PARTIES:	Power and Water Authority and
	Alice Springs Abattoirs Pty Ltd

TITLE OF COURT:	In the Supreme Court of the 
	Northern Territory of Australia

JURISDICTION:	Interlocutory Application

FILE NO.:	381 of 1991

DELIVERED:	31 August 1995

REASONS OF:	Master Coulehan

CATCHWORDS:

PRACTICE - Northern Territory - summary judgment application - issue argued but not pleaded - whether question to be tried

STATUTE - Northern Territory - interpretation of s6 Limitation Act - Crown agency - construction of phrase “fee, tax, duty or other sum of money”

STATUTE - Northern Territory - Power and Water Authority - Crown Agency - Electricity By-laws

Cases followed:

	Adatia Pty Ltd v Nazbit Pty Ltd 100 FLR 189
	ANZ Banking Group v David (1991) 1 NTLR 93
	Banque Commerciale S.A. En Liquidation v Akhill 
	Holdings Ltd 169 CLR 279
Burgundy Royale Investments Pty Ltd and Ors v Westpac Banking Corporation and Ors 76 ALR 173
D.P.P. v Durgutovski - unreported decision of Mildren J No. 129 of 1993 delivered 8 June 1993
Fancourt v Mercantile Credits Ltd 154 CLR 87
Gould and Birbeck and Bacon v Mount Oxide Mines Ltd (In liquidation) and Ors 22 CLR 490
Prospect County Council v Blue Mountain City Council (1992) LGRA 198

Representation:

	Counsel:

	Plaintiff	Mr Reeves
	Defendant	Mr McIlwaine

	Solicitors:

	Plaintiff	Messrs De Silva Hebron
	Defendant	Messrs Ward Keller

IN THE SUPREME COURT
OF THE NORTHERN TERRITORY
OF AUSTRALIA
AT DARWIN
381 of 1991		BETWEEN:
					POWER AND WATER AUTHORITY
						Plaintiff
					and
					ALICE SPRINGS ABATTOIRS PTY LTD
						Defendant

MASTER COULEHAN: REASONS FOR DECISION
(Delivered 31 August 1995)

In this proceeding, commenced on 18 October 1991, the plaintiff claims $54,326-14 for electricity supplied to the defendant.

It appears from the affidavit of David John English sworn on 21 June 1995 that by written application dated 23 May 1986 the defendant applied to the plaintiff for the supply of electricity to premises situated at lot 3202 Smith Street, Alice Springs.

The application contained the following information:-
	"IMPORTANT: Please note that under the terms and conditions of supply as stated in the Northern Territory Electricity Commission By-laws, when this document is signed, you are responsible for all electricity consumption at these premises until you give the Commission 48 hours written notice that supply is no longer required."
On 22 September 1988 an account for electricity supplied between 22 August 1988 and 20 September 1988 in the sum of $35,945-88 was rendered to the defendant, the due date being 27 September 1988.

On 27 October 1988 a further account for the period 20 September 1988 to 20 October 1988 in the sum of $18,380-26 was rendered to the defendant, the due date being 27 October 1988.

The plaintiff's evidence is that these accounts have not been paid and it seeks summary judgment in the sum of $54,326-14.   Mr English avers that there is no defence to the claim.

The defendant has filed an affidavit sworn by Milson Hayward, a director of Alice Springs Meatworks Pty Ltd, on 26 July 1995.

The plaintiff objects to several paragraphs of Mr Hayward's affidavit on the grounds of relevance.   In order to consider these objections it is necessary to explore the issues.

The relevant paragraphs of the statement of claim read as follows:

				"3.	By written agreement made on the 23rd May, 1986 the Plaintiff agreed to the Defendant's request to supply electricity to the defendant.

				"4.	As at the 20th October 1991 the Plaintiff supplied the Defendant with electricity in the amount of $54,326.14.

				"5.	As at the 20th October, 1991 the Plaintiff's Solicitors notified the Defendant's receivers of the demand by the Plaintiff from the Defendant of the said amount of $54,326.14.

				"6.	The Defendant has failed and/or refused to pay the Plaintiff the sum of $54,326.14.

		"And the plaintiff claims -
		 1. Payment of the sum of $54,326.14.
		 2. Interest; and
		 3. Costs"
Although the terms of payment have not been pleaded, and the relevance of paragraph 5 is not apparent, this pleading raises a claim for monies owing for electricity supplied.   There was no argument to the contrary.

In its amended defence, the defendant admits paragraph 3 of the statement of claim.   There are bare denials to the allegations in paragraphs 4, 5 and 6.

The defendant further pleads as follows:-
	"(3) As to the whole of the Writ, the Defendant says that in or about July 1988 the Plaintiff was notified that a company unassociated with the Defendant known as Alice Springs Meat Works Pty Limited was in occupation of the Defendant's premises to which the application for electricity applied and that as and from that date, Alice Springs Meat Works Pty Limited was assuming responsibility for payment of all accounts in respect of the supply of the said electricity.

	"(4) Alternatively, notification of the assumption by Alice Springs Meat Works Pty Limited of responsibility for electricity was given to the Plaintiff on or about 29 September 1988.

	"(5) The Defendant therefore says that the Plaintiff was notified that the Defendant was no longer in occupation of the premises in question and therefore no longer responsible for any debt incurred in respect of the supply of electricity and the Defendant therefore says that it is not liable to the Plaintiff as claimed."
It is not expressly pleaded that the defendant was not in occupation of the premises when the electricity was consumed and there is no reference to any contractual terms or the Electricity By-laws.   Notwithstanding this, the nature of the defence is reasonably clear.

The plaintiff has not pleaded in reply.   It may have been expected that it would have pleaded the contractual term as to written notice and, possibly, Electricity By-law 7(c). (See Order 13.07(1) (a) ).

Electricity By-law 7(c), which was raised in argument, reads as follows:-
	"(c) that if the consumer intends to discontinue the use of electricity, he shall give to the commission not less than 48 hours written notice of his intention to so discontinue and that if no such notice is given, the consumer will be liable for the cost of electricity supplied to his electrical installation until such time as the meter is first read after the Commission becomes aware that the consumer has discontinued the use of the supply of electricity."
The state of the pleadings creates some difficulty.   It is necessary to consider the issues on the basis that Electricity By-law 7(c) had been pleaded and deal with the arguments of the parties on that basis (see Gould and Birbeck and Bacon v Mount Oxide Mines Ltd (In liquidation) and Ors 22 CLR 490, 517 and Banque Commerciale S.A. En Liquidation v Akhill Holdings Ltd 169 CLR 279, 296 297).

On the pleadings, and in the light of Electricity By-law 7(c), evidence as to notification of the plaintiff as to changes in the occupier of the premises and responsibility for payment is relevant.  The evidence of Mr Hayward as to the arrangements made in setting up Alice Springs Meatworks Pty Ltd should therefore be allowed.   His intentions, insofar as they do not accord with what occurred, will be disregarded.

The defendant did not press the second sentence in paragraph 11 which is struck out.

As to paragraph 12, the plaintiff argues that the evidence as to payment of accounts by cheques drawn on Computer Decor Pty Ltd and Shandona Pty Limited is irrelevant and an attempt to adduce secondary evidence of documents in breach of the "best evidence" rule.  However I consider that the evidence is relevant to the issue of the plaintiff's knowledge as to the occupier of the premises and the responsibility for payment.  This is evidence of the fact of payment and by whom, it is not sought to prove the contents of documents.

In paragraph 13, the last sentence purports to be Mr Hayward's understanding of the situation in relation to the liability of Alice Springs Meatworks Pty Limited.  This is not relevant evidence and it is struck out.

Mr Hayward deposes that in June 1988 he informed the plaintiff that a company called "Computer Decor Pty Ltd" was assuming occupation of lot 2295 Smith Street, Alice Springs, and that he was assuming occupation of lot 3202 Smith Street, the lot upon which the Alice Springs Abattoirs was built.  Mr Hayward was the Manager of Computer Decor Pty Ltd.  He notified the plaintiff that accounts in respect of lot 3202 were to be sent to the address of that company.

An account for the electricity supplied to lot 2295 for the period 15 June 1988 to 7 July 1988 and due on 25 July 1988 was sent to Computer Decor Pty Ltd whose address was P.O. Box 3896, Alice Springs.  The defendant used the same postal address.  The connection, if any, between lots 2295 and 3202 is not clear.

Mr Hayward paid accounts addressed to the defendant by cheques drawn on Computer Decor Pty Ltd or Shandona Pty Ltd.   There is no explanation as to how or why the latter company was involved.

On 3 October 1988 the plaintiff received a letter signed by Mr Hayward under the letterhead "Alice Springs Meatworks", which, omitting formal parts, reads as follows:-
			"Re: Lot 3202 Smith Street, Alice Springs
		A/c AQQ 165000047.

	"We commenced leasing the above referenced facilities in June 1988 and would be grateful if you could transfer this account and the water supply account to Alice Springs Meatworks, at P.O. Box 3896, Alice Springs."
By letter dated 13 October 1988 the plaintiff responded, the relevant part of the letter reading as follows:-
	"In order to comply with your request it will be necessary for a representative of Alice Springs Meatworks to approach the business office and sign the relevant documents."
Alice Springs Meatworks Pty Ltd came into existence on 19 September 1988 when a company called "Norsblue Pty Limited" changed its name.

There was similar litigation between the parties in 1985 (see Northern Territory Electricity Commission v Alice Springs Abattoirs Pty Ltd (1985) Vol. 2 N.T. Supreme Court Judgments 628).   It was held, inter alia, that under Electricity By-law 7(c) knowledge of change of occupancy did not necessarily imply awareness of the discontinuance of use of the supply of electricity (see pages 652-654).

The evidence of Mr Hayward does not support the allegations in paragraph 3 of the defence and there is no evidence to suggest or from which it may be inferred that around July 1988 the plaintiff was made aware that the defendant had discontinued use of the supply of electricity.

The letter received by the plaintiff on 3 October 1988 does not refer to Alice Springs Meatworks Pty Ltd.  However, it is capable of supporting the allegations in paragraph 5 of the amended defence and of giving the plaintiff sufficient notice to make it aware that the defendant had discontinued the use of the supply of electricity within the meaning of Electricity By-law 7(c).

There is no evidence as to when the meter was first read after 3 October 1988.   This is not necessarily a fact of which the defendant ought to be aware.   Without such evidence there remains an arguable defence to part of this account on the basis of Electricity By-law 7(c).   It is not possible to ascertain how much of the account is severable.

The defendant has pleaded that the plaintiff's claim is statute barred by reason of s12 of the Limitation Act. Either s.12(1)(a) or (d) of the Act would appear to be appropriate to the plaintiff's cause of action and each apply a limitation period of 3 years.

The plaintiff argues that the Act does not apply by reason of s6(3).   This has not been pleaded, however, no objection was taken.

S6(3) of the Limitation Act provides as follows:-
			"(3) This Act does not apply to -

		(a)  an action by the Crown -

(i)	for the recovery of a fee, tax, duty or
other sum of money or interest on a fee, tax, duty or other sum of money; or
(ii)	in respect of the forfeiture of a ship;
	or

				(b)	a prosecution for an offence whether it be 
					an offence at common law or created by 
					statute.

As to the status of the plaintiff as a Crown agency, it was held to be the Northern Territory in another guise by Mildren J in D.P.P. v Durgutovski, an unreported decision No. 129 of 1993 delivered 8 June 1993.  This is consistent with authority: see Burgundy Royale Investments Pty Ltd and Ors v Westpac Banking Corporation and Ors 76 ALR 173, 178 and Prospect County Council v Blue Mountain City Council (1992) LGRA 198, 215-216.

The question is whether money payable for the supply of electricity is "a fee, tax, duty or other sum of money" (s6(3)(a)(i).

In its widest sense "fee" means payment for services (see Macquarie Dictionary).  However, the sum charged for the supply of electricity or other like services is not usually referred to as a "fee" and the Electricity By-laws distinguish between fees and charges (see By-law 7(a)(vi).)

In the context of the words "tax" and "duty" it is arguable that "fee" and "other sum of money" should be read down so as to have a similar meaning (see Prior v Sherwood (1906) 3 CLR 1054, 1072).

Summary judgment applications are to be approached with great care and should only succeed where there is no real question to be tried (see Order 22.06(1)(b), Fancourt v Mercantile Credits Ltd 154 CLR 87, 99 and ANZ Banking Group v David (1991) 1 NTLR 93).

In Adatia Pty Ltd v Nazbit Pty Ltd 100 FLR 189, 190, Angel J said:
	
	"The authorities make it clear that the defendants should be given leave to defend if there is a difficult and substantial question of law which ought not to be determined without full argument."
I consider that the proper interpretation of s6(3)(a)(i) of the Limitation Act raises such a difficult and substantial question of law.

The defendant also argued a defence of waiver based on the plaintiff's attempts to recover the debt from Alice Springs Meatworks Pty Ltd.   This has not been pleaded.  It is unnecessary for me to deal with this argument.

I am satisfied that there is a question to be tried in relation to each account for which payment is claimed.  
The plaintiff's application for summary judgment is refused.