Manboom Pty Ltd atf the Outdoor Signage Unit Trust v Jemena Gas Networks (NSW) Ltd (No 2)

1. [1]

   The Court has before it four questions which, on 28 August 2025, Peden J ordered should be determined separately, and before, any other question in the proceedings (the separate questions). The separate questions, as amended by me in terms agreed between the parties by order of 9 October 2025, raise what are, primarily, questions of statutory construction. They are as follows:

2. [2]

   The separate questions are posed in seemingly absolute terms, asking whether the identified matters, in each case, provide a complete defence to the plaintiffs’ claims in trespass. In oral submissions both parties submitted that questions one and four permitted only of a yes/no answer, but questions two and three might be answered in a qualified way, on the basis there was a defence to trespass as regards some of the periods of the alleged trespass but not otherwise. I have approached the separate questions on that, agreed, basis.

3. [3]

   These questions arise in proceedings in which Manboom Pty Limited (ACN 067 574 010) as trustee for the Outdoor Signage Unit Trust (the first plaintiff) and Outdoor Signage Pty Ltd (ACN 635 831 695) as trustee for the Outdoor Signage Unit Trust No. 3 (the second plaintiff) (together, the plaintiffs) contend that it is a trespass for gas infrastructure (Gas Main Assets), installed by the Australian Gas Light Company (AGL) in 1976 and 1982 and now owned and used by the defendant, Jemena Gas Networks (NSW) Ltd (ACN 003 004 322) (Jemena), to be on a property in Mascot, New South Wales. The plaintiffs seek both damages and an order that Jemena remove the Gas Main Assets.

4. [4]

   A statement of agreed facts with annexures (SOAF) was tendered on the hearing of the separate questions, as was an updated version of a plan showing the location of some of the Gas Main Assets in 1977. As the difference in area and various iterations of title are largely immaterial to the separate questions, I use the term “the Property” to denote the land which was owned by the Public Transport Commissioner of NSW in 1976, by the State Rail Authority in 1982, and which ultimately came to be owned, at different points in time, by the first and second plaintiffs, and on which the Gas Main Assets were installed and have at all relevant times been located (noting that this differs from how that term is used in the SOAF). The periods of alleged trespass (having regard to the date from which the first plaintiff became the registered proprietor of the Property as set out in the SOAF), are 29 November 1995 to 19 December 2000 and 13 September 2021 onwards.

5. [5]

   For the reasons given below, the separate questions should all be answered “yes”.

Background

1. [6]

   For present purposes, it suffices to observe that the first plaintiff owned the Property from 29 November 1995 until 13 September 2021 and thereafter the second plaintiff has owned the Property.

2. [7]

   It is an agreed fact that Jemena, as the successor of AGL, is the owner and operator of a gas network which distributes natural gas to residential and industrial customers across New South Wales, and which includes the Gas Main Assets.

3. [8]

   Some of the Gas Main Assets were installed in 1976 (1976 Gas Assets). The remainder were installed in 1982 (1982 Gas Assets). It is an agreed fact that AGL owned and used the Gas Main Assets from the time that they were installed on the Property until about 3 January 1986.

4. [9]

   AGL was established by the Australian Gas Light Company Act 1837 (NSW) (the 1837 Act). The preamble to that Act stated:

5. [10]

   This preamble (read in the context of the Act as a whole) provides a clear indication that at least one purpose of the 1837 Act was to facilitate the town of Sydney being lit by gas. That purpose was elaborated upon in s 11:

6. [11]

   The Gas Main Assets are not within the town of Sydney, as defined for the purposes of the 1837 Act. However, as will become apparent, the Australian Gas Light Company Act 1858 (NSW) (the 1858 Act) expanded the undertaking of AGL to extend throughout New South Wales.

7. [12]

   Under the 1837 Act, a number of named individuals, and such other persons who may from time to time own shares in the undertaking, were constituted as a company of proprietors by the name AGL. Under s 10, it was provided that the Act should not be taken to have created a body corporate. AGL was thus a statutory entity, but not a corporation. As a statutory entity, the capacity, functions and powers of AGL are to be found in the language of its constituent statute, whether by reason of express provision or necessary implication: see, by analogy, Kathleen Investments (Australia) Ltd v Australian Atomic Energy Commission (1977) 139 CLR 117 at 130 (Barwick CJ, dissenting), 136 (Gibbs J), 141 (Stephen J) and 153 (Mason J); [1977] HCA 55. In this regard, the grant of a power carries with it the power to do everything necessary, in the sense of being reasonably necessary to accomplish what is expressly provided, for its effective exercise: see eg Australian Building and Construction Commissioner v Construction, Forestry, Mining and Energy Union (2018) 262 CLR 157; [2018] HCA 3 at [40] (Kiefel CJ), [52] (Gageler J), [114]-[115] (Keane, Nettle and Gordon JJ).

8. [13]

   In s 2, it was provided that:

9. [14]

   In this way AGL had the power to acquire interests in land for the purposes of the 1837 Act.

10. [15]

    Pursuant to s 9, the provisions in the 1837 Act extended and were to be construed to extend to the company at all times during its continuance, irrespective of who it was composed of. Under s 12, AGL was permitted to raise capital and to apply that capital “in establishing and carrying on the said undertaking and the purposes aforesaid” up to a limit which is of no present relevance.

11. [16]

    Section 31 provided that the directors of the company shall direct the affairs and business of the undertaking in “entering into agreements or contracts for supplying with gas all persons whomsoever and all public places roads streets ways lanes passages and buildings and also all private houses shops manufactories and buildings within the said town of Sydney where mains and pipes shall hereafter be laid” and “making enforcing and rescinding compounding and compromising all contracts and bargains touching or in anywise concerning the same …”. While the language of this section is somewhat difficult, I would read this as conferring authority upon the directors of AGL to make contracts relating to the installation of gas infrastructure for the purpose of facilitating the supply of gas as provided for in the 1837 Act. Alternatively, as a matter of necessary implication, AGL, as a statutory entity, would have had the power to enter into such contracts to give effect to the statutory purposes and powers in the 1837 Act: see eg Attorney-General v Great Eastern Railway Co (1880) 5 App Cas 473 at 478, cited by Young J in Beneficial Finance Corporation Ltd v Multiplex Constructions Pty Ltd (1995) 36 NSWLR 510 at 537.

12. [17]

    Section 44 provided for the lawfulness of sales and conveyances to AGL and provided that:

13. [18]

    Turning now to the 1858 Act, the preamble to that Act described the 1837 Act as having united identified persons into a company of proprietors by the name of AGL:

14. [19]

    The preamble to the 1858 Act then said:

15. [20]

    This provides a clear indication that the purpose of the 1858 Act was to extend AGL’s undertaking throughout New South Wales, beyond the city of Sydney and to confer powers and authority upon AGL to do so. As to the significance of a preamble on the question of the proper construction of a statute, as held by Griffith CJ in Bowtell v Goldsbrough, Mort & Co Ltd (1905) 3 CLR 444 at 451; [1905] HCA 60 and applied by Gibbs CJ, Mason, Aickin and Wilson JJ agreeing in Wacando v Commonwealth (1981) 148 CLR 1 at 15-16; [1981] HCA 60:

16. [21]

    Section 1 of the 1858 Act provided:

17. [22]

    Section 1 was said to give AGL the power to supply gas: McTiernan J in Benning v Wong (1969) 122 CLR 249 at 276; [1969] HCA 58. Consistent with the preamble, this should be read as extending the ambit of AGL’s lawful undertaking and the purposes of AGL, and therefore also as expanding the ambit of AGL’s statutory powers to acquire proprietary interests and to enter into contracts: see the discussion of ss 2 and 31 of the 1837 Act above. Alternatively, as a matter of necessary implication, AGL, as a statutory entity, would have had statutory power to enter into such contracts to achieve the statutory purposes of the 1858 Act.

18. [23]

    Sections 3 to 5 dealt with some of the mechanics by which AGL was authorised to achieve the purpose of the 1858 Act, and I return to these provisions below. In Benning v Wong at 262, Barwick CJ observed that, unlike the 1837 Act, the 1858 Act imposed no obligation on AGL to supply gas.

19. [24]

    Both the 1837 and 1858 Acts were repealed by ss 15(a) and (d) of the AGL Corporate Conversion Act 2002 (NSW), but that does not affect the previous operation of those Acts as regards anything done or any right, privilege, obligation or liability acquired or incurred under them: Interpretation Act 1987 (NSW), s 30.

20. [25]

    The Gas and Electricity Act 1935 (NSW) (the 1935 Act) made further provision relating to the supply of gas. AGL fell within the definition of a gas company in s 3 of the 1935 Act. The 1935 Act did not diminish the express or implied powers of AGL deriving from the 1837 and 1858 Acts. To this effect, s 4(4) provided:

21. [26]

    The 1935 Act introduced standards for the heating power, purity and pressure of gas supplied by a gas company: s 23, and an obligation, on request, to supply gas to premises within 25 yards of a pipe of a gas company (subject to certain conditions): s 28, but Jemena does not contend that these provisions authorised the installation of the Gas Main Assets. It also introduced a power of inspection by an officer or servant of a gas company of any premises in which a gas pipe had been installed: s 29. Section 30 imposed penalties for injuring a gas pipe or other apparatus belonging to a gas company. The plaintiffs accept that ss 29 and 30 of the 1935 Act implicitly recognise Jemena’s ownership rights in the Gas Main Assets, and this necessarily would include rights at the time of their installation in 1976 and 1982. Jemena relies upon these provisions as giving AGL the exclusive right to control, use and protect gas infrastructure such as the Gas Main Assets which is consistent only with AGL being the entity which was entitled to possession of the Gas Main Assets in situ.

22. [27]

    The Gas and Electricity (Amendment) Act 1985 (NSW) (the 1985 Act) amended the 1935 Act. Schedule 1 of the 1985 Act introduced s 6A into the 1935 Act, requiring AGL to transfer to one or more wholly owned subsidiary:

23. [28]

    For this purpose, “gas activity” was broadly defined, in a new s 6 of the 1935 Act introduced by the 1985 Act, to include “any activity carried on for or in connection with the … distribution or supply of gas”. Undertaking was defined to include assets. After such transfer, AGL was itself precluded by a new s 6D of the 1935 Act from carrying on a gas activity. As to the mechanics of the required transfer, s 6B of the 1985 Act provided that this was to be effected in the manner and on such terms as were agreed between the Minister and AGL, which could include the making of a Ministerial Order. As is clear, under s 6B, transfer could be effected by means other than Ministerial Order.

24. [29]

    The 1935 Act was largely repealed as regards gas regulation by the Gas and Electricity (Gas Repeal) Amendment Act 1986 (NSW). The provisions set out at [27] to [28] above were largely reflected in the provisions of ss 3, 21-30 of the Gas Act 1986 (NSW), now renamed the Gas Industry Restructuring Act 1986 (NSW), (the 1986 Act).

25. [30]

    It is pursuant to these provisions that, as is agreed, from around 3 January 1986 to date, Jemena has owned and used the Gas Main Assets. Implicit in this is agreement that, whether by Ministerial Order or otherwise, the Gas Main Assets were transferred to Jemena. As to this, the plaintiffs’ contention is that the ownership of the assets vested from that date in Jemena because “the statute tells us that implicitly or explicitly”. Consequently, the plaintiffs submit, it is clear that the Gas Main Assets did not, at any relevant time, become a fixture on the Property.

26. [31]

    As I have already observed, only limited aspects of the historical title to the property are relevant.

27. [32]

    First, by February 1972 the Commissioner for Railways, being a body corporate established by the Transport (Division of Functions) Act 1932 (NSW), was the registered proprietor of the Property (for convenience I use the term Commissioner for Railways in this judgment to refer also to its statutory successors, being the Public Transport Commission of NSW from 1976 and the State Rail Authority from 1982). Pursuant to s 4 of the Government Railways Act 1912 (NSW) (the 1912 Railways Act), the Commissioner for Railways had authority to carry out that Act, including to lease and hold lands for the purpose of the Act. Land, including railways, lands on which railway buildings may later be constructed and land within and outside of fences acquired for railway or tramway purposes was, under s 11, vested in the Commissioner for Railways. Having regard to these provisions, I would accept Jemena’s submission that lands vested in the Commissioner for Railways were held for the purpose of the 1912 Railways Act and (for reasons set out below) this was a public purpose. The plaintiffs accepted, moreover, that there is no reason to think that the Property, through which (as is an agreed fact) a freight railway ran in 1976 and 1982, was used other than in accordance with the purposes and functions of the Commissioner for Railways as dictated by the governing Acts. This is so notwithstanding that, as is apparent from plans from 1977 and a photograph from 1986, the Property extended for some distance on each side beyond the railway line itself.

28. [33]

    When the Gas Main Assets were installed, the statutory successors to the Commissioner for Railways remained subject to the 1912 Railways Act. From 1987, the Commissioner for Railways retained title over the land on which the freight railway track ran, albeit that the land on either side and the airspace over was held by a company called Paskaidorjums Pty Ltd, who subsequently transferred that land (which included the Property) to the first plaintiff.

29. [34]

    Second, in February 1972, AGL entered into a licence with the Commissioner for Railways that was deemed to have commenced on 1 January 1971 (the Licence). The Licence provided:

30. [35]

    Whilst the plaintiffs place some reliance upon the fact that the Licence does not describe itself as a “consent” for the purpose of any legislative provision, the language of “permission”, which one sees here, is relevantly indistinguishable from that of “consent”.

31. [36]

    The Licence included, and extended well beyond, the Property. Clause 5 of the Licence permitted AGL:

32. [37]

    The Licence also permitted AGL to make connections to the gas main crossings: cl 6 and provided that AGL was to make good any damage caused in works permitted by the licence: cl 7. It also provided that AGL was required to remove the gas main crossings or any one of them within one month if required to do so by notice in writing: cl 7. It was, however, common ground that no such notice was ever issued under the Licence. The Licence also permitted the Engineer to direct how the gas main crossings were laid: cl 8, and provided that the Commissioner for Railways could require the position of the gas main crossings to be altered at AGL’s expense: cl 9. The Licence was deemed not to create a tenancy: cl 16. What is described as “Former Schedule ‘C’” of the Licence, which appears to relate to the form of Schedule C prior to amendments in 1978, included the 1976 Gas Assets, and the “Second Phase of Schedule ‘C’ for Mains Laid post 1.1.1978”, included the 1982 Gas Assets.

33. [38]

    No issue has been taken as to the power of the Commissioner for Railways to enter into the Licence. Jemena’s submission was that it was an exercise of the incidental powers of the Commissioner for Railways to maintain the safety of the railway system. A Ministerial Order made pursuant to s 6B of the 1985 Act, at cl 21, made the Licence binding and enforceable by, against or for Jemena and vested AGL’s property in the Licence in Jemena with effect from 5 January 1986.

34. [39]

    It is an agreed fact that AGL installed the Gas Main Assets pursuant to, and subject to the terms of, the Licence. The question raised by the first separate question is whether this installation was also “pursuant to statutory authority” under the 1837 and 1858 Acts. The plaintiffs concede that if so, Jemena has a complete defence to the plaintiffs’ claims in trespass, having regard to the authority of Rosebanner Pty Ltd v Energy Australia [2011] NSWCA 28 (considered further below).

35. [40]

    It is an agreed fact that, upon the transfer of the Property on 5 June 1987 to Paskaidorjums Pty Ltd, the Licence (which was for a five year term but was extended) terminated (to the extent that it related to the Property).

36. [41]

    It suffices to note that the 1976 Gas Assets comprised two gas mains, one of which had a nominal diameter of 550 mm within an approximately 900 mm diameter steel casing, the other of which was a 350 mm gas main off take, a connection, an underground housing structure with steel access lids, above ground cathodic protection test points and some above ground pipeline markers and remote monitoring devices. The 1982 Gas Assets comprised a gas main with a nominal diameter of 100 mm in an approximately 250 mm casing and above ground pipeline markers. It is an agreed fact that the Gas Main Assets:

    1. (1)

       are part of a network of primary gas network infrastructure, whose function is to convey large volumes of high-pressure natural gas to downstream regulation stations; and

    2. (2)

       are critical gas infrastructure for the supply of gas in the State of New South Wales.

37. [42]

    Both parties confirmed during oral submissions that they would not seek to tender any additional material at the trial of the plaintiffs’ claims to establish the use of the Property and that there will not be any attempt at trial to adduce additional evidence which might go to the question of the use of the Property in 1976 and 1982 or which might otherwise go to the characterisation of the property for the purpose, in particular, of the 1858 Act.

38. [43]

    The location of the 1976 Gas Assets, as at 1977, can be seen from the plan below:

39. [44]

    What is apparent from this is:

    1. (1)

       The approximate boundary of the title held by the Commissioner for Railways at the time is shown in green. The approximate boundary of the Property (albeit that the land on which the rail line itself is located does not fall within the Property save for the airspace above the rail line), is marked in red (albeit that to the east and west the boundary is the green line which meets the red lines).

    2. (2)

       In 1977 there was only a single rail track running through the Property. At some point subsequent to this that apparently became two rail tracks, (although the answers to the separate questions in no way turn on this).

    3. (3)

       Where measured, the distance from the centre point of the railway line to the 550 mm gas main (part of the 1976 Gas Assets) is 12.5 metres.

    4. (4)

       It appears that in some places the distance between the railway line and the 550 mm gas main is more than 12.5 metres, seemingly roughly equivalent to the 17.8 metre measurement (which can be seen on the plan but which does not itself measure distance between the 550 mm gas main and the railway line), and in some places it is less.

40. [45]

    As regards the 1982 Gas Assets, their location can be gleaned from the photo below which was taken in 1986:

41. [46]

    This shows the location of all of the Gas Main Assets (marked with black lines) vis-à-vis the boundaries of the titles held by the Commissioner for Railways as at 1986 (marked in pink and green) and the railway line. The Gas Main Assets run along the side of the railway line to the north west of Robey Street, then proceed to cross the railway line a little north west of Robey Street, then go along the side of the railway line (between the railway line and Qantas Drive), and pass under Robey Street. At some places when running broadly parallel to the railway line the Gas Main Assets look to be further than the 12.5 metres referred to above as regards the 550 mm gas main that forms part of the 1976 Gas Assets, and it is difficult to put a precise measurement upon the extent to which this is the case.

The separate questions

1. [47]

   Given the framing of the separate questions, it appears to be accepted by both parties that if any of the separate questions are answered “yes” or a qualified “yes”, then the plaintiffs’ claims in trespass cannot be maintained, at least to the extent of the affirmative answer. The plaintiffs submit, however, that if the answer to the first of the separate questions is “no”, then none of the other separate questions can be answered “yes” unless Jemena can identify some statutory provision or provisions permitting the Gas Main Assets to remain on the Property after the termination of the Licence.

2. [48]

   It is necessary, at the outset, to observe that there is an ambiguity as to the phrasing of the separate questions. Each question is framed as raising an issue as to the application of the relevant law to the facts (which I will call the first part of the question). The questions then each include words (which I will call the second part of the question) “such that [(paraphrasing) Jemena has a complete defence to the plaintiffs’ claims of trespass]”.

3. [49]

   On their face, therefore, the questions appear to raise the possibility that the first part of the question could be answered “yes” but, depending upon the answer to the second part of the question, the question as a whole could be answered “no”. However, the way in which the parties both approached the questions in their submissions indicated that this was not how the questions should be understood. Rather, the parties approached the questions on the implicit predicate that the answer to the first part of the question dictated the answer to the question as a whole. So understood, the second part of the question gives context to the first part of the question but does not raise any additional matters for the Court’s determination. Consistent with this, the parties did not in their submissions separately address whether, if the first part of any of the questions was answered in the affirmative, that constituted a complete defence to the trespass claims. Rather, the answer to each question as a whole was assumed to follow the answer to the first part of each question. That is how I propose to approach the separate questions.

4. [50]

   During the hearing of the separate questions, I raised with the parties an issue as to which party bore the onus of proof on the issues raised by the separate questions. The plaintiffs’ position is that the drafting of the separate questions is such that I should assume that the trespass or trespasses are made out, and approach the questions as if they raise only issues as to whether Jemena has a good defence, in which case the onus rests on Jemena. Jemena, by contrast, contended that the separate questions raise issues which go to the heart of whether or not there is a trespass, in particular as to whether or not the plaintiffs had or have possession of the stratum of land where the Gas Main Assets are located. Absent possession, Jemena contends, the plaintiffs could not succeed in a claim in trespass.

5. [51]

   Ultimately, my answers to the separate questions do not in any way rest on the onus of proof. I have concluded, however, that the question of onus must be answered by reference to the substance of the issues raised by the separate questions. It follows that I do not accept that the phrasing of the separate questions necessarily leads to the onus resting on Jemena. Rather, it is for the plaintiffs to establish their possessory interest and, if this is established, it is for Jemena to show some lawful justification for any interference occasioned by the presence of the Gas Main Assets. If Jemena had a right of possession as regards the strata of land where the Gas Main Assets were located at the time of the claimed trespass, or if Jemena was the owner of those strata of land, then there could be no trespass because there could not be interference with the plaintiffs’ right to possession of those strata of land: see eg Brendan Edgeworth, Butt’s Land Law (7th ed, 2017, Lawbook Co) at [6.430] (and the authorities cited therein). Cases such as JK Williams Staff Pty Ltd v Sydney Water Corporation (2021) 249 LGERA 109; [2021] NSWLEC 23, which consider whether there is statutory authority for an otherwise tortious act, are thus readily distinguishable, as they consider a very different question.

6. [52]

   Finally, to the extent that the answers to the separate questions turn on matters of statutory construction, the statutory text must be read in context and in accordance with its purpose, recently described by the High Court as “[t]he required approach”: Valuer-General Victoria v WSTI Properties 490 SKR Pty Ltd [2025] HCA 23 at [34].

The first separate question

1. [53]

   The issue at the heart of the first separate question is whether AGL had statutory authority to install the Gas Main Assets at the Property. A subsidiary issue is, if so, whether the installation was pursuant to that authority. It is convenient to summarise key elements of the parties’ submissions on the first separate question before explaining my answer, in the course of which I will consider the relevant legislation and some additional matters raised in the parties’ submissions.

2. [54]

   Before doing that, however, it is necessary to consider what the words “pursuant to statutory authority” mean for the purpose of the first separate question. Particularly having regard to the character of AGL as a statutory entity, those words could direct attention simply to whether or not, directly or indirectly, statute authorised AGL to install the Gas Main Assets, including by virtue of the fact that there was statutory authority for AGL to enter into the Licence, the terms of which authorised the installation of the Gas Main Assets. Alternatively, those words could require some direct authorisation, by statute, of the installation of the Gas Main Assets. The parties approached the first separate question, however, on the premise that it should be answered “yes” only if I were to be satisfied that there was some direct statutory authority under the 1837 Act or 1858 Act for the installation of the Gas Main Assets. This was so notwithstanding that there was no suggestion by either party that AGL (a statutory entity) was not authorised to enter into the Licence. Given that the separate questions have been framed by the parties, I will address the first separate question consistent with the way in which the parties approached it.

3. [55]

   Jemena submits that authorisation to install the Gas Main Assets can be found in the 1837 and 1858 Acts because the Gas Main Assets were installed on land which would fall within the ambit of “passages and public places” in s 3 of the 1858 Act, which I discuss below. In this regard, Jemena relies upon the location of the Gas Main Assets, which it describes as within the curtilage of the railway line and, in the alternative, upon the purposes of the 1912 Railway Act which it submits were such that the Property would be characterised as a “public place” for the purposes of the 1858 Act. Jemena also relies upon s 1 of the 1858 Act or s 52 of the 1837 Act, which, as noted below, was picked up by the 1858 Act, as statutory authority for the installation of the Gas Main Assets. Jemena contends that the Licence can be understood as providing both the consent of the Commissioner for Railways to the installation of the Gas Main Assets and as making additional provision as regards how those works should be effected. That, Jemena says, explains why the Licence was entered into in circumstances where there was in any event statutory authority for the installation of the Gas Main Works.

4. [56]

   The plaintiffs frame the first separate question as being whether the Licence was unnecessary because AGL had exercised statutory authority in installing the Gas Main Assets. The plaintiffs submit that the 1858 Act did not confer statutory authority to install the Gas Main Assets, as the location where they were installed is neither a passage nor a public place within the meaning of the 1858 Act. The plaintiffs also submit that it is necessary for Jemena to prove that, on an objective assessment, albeit not necessarily as a matter of subjective belief, AGL in fact installed the Gas Main Assets pursuant to statutory authority as opposed to under, and subject to the terms of, the Licence, submitting that the issue raised by the first separate question should be distinguished from issues that arise as to whether or not an administrative decision maker’s acts were authorised by statute, as discussed in (for example) Mercantile Mutual Life Insurance Co Limited v Australian Securities Commission (1993) 40 FCR 409 and Brown v West (1990) 169 CLR 195 at 203; [1990] HCA 7. In this regard, the plaintiffs contend that the first separate question should be approached consistently with the approach taken by Preston CJ in JK Williams Staff where the issue was whether statutory authority provided a defence to what would otherwise have been a nuisance.

5. [57]

   The first separate question requires close attention to a number of features of the combined operation of the 1837 and 1858 Acts, as applicable to the installation of Gas Main Assets in 1976 and 1982.

6. [58]

   Consistent with [10] to [22] above, I would infer that the purpose of both the 1837 and 1858 Acts was to put AGL in the position that it could light and supply an identified range of places with gas, first within the town of Sydney (in the 1837 Act) and later in New South Wales beyond the city of Sydney (in the 1858 Act). That purpose included enabling AGL to install infrastructure to enable it to supply with gas and light that range of places. That purpose informs the proper construction of both Acts.

7. [59]

   The 1858 Act provided for AGL to extend its undertaking beyond the city of Sydney in three ways. First, as just observed, by expanding the ambit of the purpose for which statutory powers were conferred upon AGL beyond the city of Sydney as reflected in the preamble and by s 1 (at [21] above). Consistent with this, I would read s 1 of the 1858 Act as having the effect that powers conferred on AGL, such as the power to enter into contracts or acquire interests in property, could lawfully be used for this expanded statutory purpose. Section 1 also strongly suggests that Parliament intended that AGL could lawfully light and supply with gas and continue and extend the existing mains and erect additional works in a range of public and private locations going well beyond the locations identified in s 3 (see below at [62]). It follows that, to the extent that contracts or proprietary rights enabled AGL to light and supply with gas “all public streets highways roads ways lanes passages and buildings and also all private houses shops manufactories properties buildings and grounds” outside of the city of Sydney, or to continue and extend the existing mains and erect additional works, s 1 of the 1858 Act provided statutory authority for AGL to perform those acts.

8. [60]

   On one view, s 1 might also be construed as having itself authorised AGL to erect additional works such as the installation of the Gas Main Assets irrespective of whether that was authorised elsewhere in the 1858 Act or by contract or proprietary right. That construction of s 1 is, perhaps, supported by the fact that the 1858 Act replaced a complex description of authorisation of works, in s 48 of the 1837 Act, with a far more streamlined scheme of regulation in ss 1, 3-5 of the 1858 Act. On balance, however, given that, as set out below, s 3 makes specific provision for the installation of infrastructure, consistent with the principle stated by Gavan Duffy CJ and Dixon J in Anthony Hordern & Sons Ltd v Amalgamated Clothing & Allied Trades Union of Australia (1932) 47 CLR 1 at 7; [1932] HCA 9, I would accept the plaintiffs’ submission that these general words do not themselves provide statutory authority (within the meaning of the first separate question as construed by the parties) for the installation of the Gas Main Assets.

9. [61]

   Section 1 also shows that Parliament divided the places which AGL could light, supply with gas, and continue existing mains and erect additional works, between public and private places. I would infer that Parliament intended that classification, namely between public and private, broadly to cover the field. There is no reason to think that there was some intermediate category (between public and private) in which AGL was not authorised to extend its undertaking. This is so notwithstanding the curiosity in the drafting as between the preamble, which referred to “all public places roads streets ways lanes passages and buildings and also all private houses shops manufactories properties and buildings” (as the undertaking to be continued), and s 1 which referred to “all public streets highways roads ways lanes passages and buildings and also all private houses shops manufactories properties buildings and grounds”. Given that this curiosity has no apparent explanation or rationale, I attach no significance to these differences.

10. [62]

    Second, direct statutory authority was given, in ss 3 and 4, to the erection of certain infrastructure and undertaking of certain works. These sections stated:

11. [63]

    As is immediately apparent, a specific power to construct lighting and gas infrastructure, including to fix alter and repair mains and pipes (as opposed to branch pipes), was conferred under s 3 only in some of the places referred to in the preamble and where s 1 of the 1858 Act authorised AGL to light and supply gas and to continue existing mains and erect additional works. More particularly, s 3 provided no express authority for AGL to install mains infrastructure in, through, under or across the private places described in the preamble and in s 1. It can also be observed that, as regards public locations, “ways” was not included in s 3 (but was included in the preamble and s 1) and “other public places” was included in s 3 (but not in s 1).

12. [64]

    As to these matters, the plaintiffs placed much emphasis upon the fact that s 48 of the 1837 Act, which was the relevant provision in that Act directly authorising the installation of gas infrastructure, authorised the installation of such infrastructure under, across and along “ways”, but no such authorisation was conferred by s 3 of the 1858 Act. They submitted that it should thus be inferred that Parliament intended that, under the 1858 Act, gas infrastructure could not be installed in, through, under or across railways. That submission should be rejected. This is not an instance of Parliament using significantly and materially different wording which might suggest that Parliament intended a different meaning to be conveyed: see eg Melville v Townsville City Council [2004] 1 Qd R 530; [2003] QCA 456 at [25]. The word “way” does not have such a distinct meaning, when considered by reference to those words that were included in s 3 of the 1858 Act, that any particular conclusion should be drawn from its absence. I would thus not construe the words “streets roads highways and public places” to exclude anything that could also fall within the ambit of a “way”.

13. [65]

    Read together, ss 3 and 4 do two things:

    1. (1)

       provide express authorisation for installation of gas infrastructure in the identified public locations (in s 3) and impose certain obligations upon AGL in respect thereof (in s 4); and

    2. (2)

       provide express authorisation for the laying of branch pipes into or through public or private houses, buildings, manufactories or grounds, upon the request of the owner or occupier of those premises, for the purpose of lighting such premises, and also to repair or amend such works (in s 3).

14. [66]

    By contrast to s 48 of the 1837 Act, there is nothing in ss 3 and 4 of the 1858 Act which authorises the installation of gas pipes (other than branch pipes for the purpose of lighting the premises where the work is to be conducted) “into or against any dwelling-house or dwelling-houses manufactories public or private buildings”, or through such buildings, or grounds, (for the purpose of carrying gas to or lighting other premises), with the consent (or in the latter case previous consent) of the owner and occupier for the time being of such private premises. The plaintiffs contended that it necessarily followed that there was no statutory authority under the 1858 Act to lay gas mains (as opposed to branch pipes which are specifically dealt with in s 3 of the 1858 Act) on private places. Thus, they submit, there was no statutory authority to install the Gas Main Assets unless the location where they were installed fell within the ambit of s 3 of the 1858 Act. I agree that no direct authorisation is conferred under s 3 the 1858 Act for gas infrastructure (other than branch pipes) to be installed on private property. Consistent with the preamble and s 1 of the 1858 Act, it appears that Parliament intended that such works could lawfully be carried out by AGL beyond the boundaries of the city of Sydney only where it had a contractual or proprietary entitlement to do so.

15. [67]

    Thus, under the 1858 Act, installation of gas infrastructure such as the Gas Main Assets was potentially authorised in two ways:

    1. (1)

       where it was carried out pursuant to a contractual or proprietary entitlement; or

    2. (2)

       where it fell within the ambit of s 3 of the 1858 Act.

16. [68]

    This construction of the 1858 Act avoids the absurdity of reading the 1858 Act to have had the effect that gas mains could not lawfully have been installed in, on, under or through any land that did not fall within the ambit of s 3, which I would infer would preclude such installation on, under or through large swathes of land in New South Wales. It also gives s 1 of the 1858 Act real work to do, and is consistent with the cardinal rule for the construction of statutes authorising works, set out by Barwick CJ in Benning v Wong at 256, that a statute will not be construed to authorise an interference with common law rights (without compensation) “without unambiguous and compelling language”. The spectre of the erosion of common law rights, as raised by the plaintiffs, simply does not arise given that consent is required for installation of gas infrastructure in public places (under s 52 of the 1837 Act picked up in the 1858 Act, discussed at [69] below), a request is required for installation of branch pipes from the owner or occupier of premises under s 3, and installation will otherwise require some contractual or proprietary entitlement.

17. [69]

    The third way in which the 1858 Act operated as regards AGL’s expanded undertaking was by providing, in s 5, that s 52 (together with ss 57, 58, 59, 65, 67-79) of the 1837 Act applied mutatis mutandis beyond the boundaries of the city of Sydney, and that those provisions should be read and construed as if they were repeated in the 1858 Act. Section 52 provided:

18. [70]

    The application of s 52 of the 1837 Act is entirely consistent with the analysis of the ways in which the installation of gas infrastructure could be authorised at [67] above. The Licence, in which the Commissioner for Railways gave permission for the installation of the Gas Main Assets, readily supplied the necessary consent if it were the case that the Gas Main Assets were installed in a place falling within the ambit of “streets roads highways passages and public places” in s 3 of the 1858 Act. I would add that Jemena’s submission that s 52 provided an independent authorisation for the installation of the Gas Main Assets must be rejected. Section 52 operated against a background of the authorisation conferred either by s 48 of the 1837 Act or s 3 of the 1858 Act, or by a contractual or proprietary entitlement, and, as the plaintiffs submit, it conditioned the exercise of powers by AGL and (contrary to Jemena’s submission) did not confer additional powers. To the extent that s 52 provides that neither the 1837 Act, nor once picked up, the 1858 Act, prevented AGL from installing or repairing gas infrastructure (subject to consent being given), it is entirely consistent with Parliament intending that AGL could lawfully do so pursuant to contractual or proprietary entitlements (again, subject to consent being given).

19. [71]

    Section 57 of the 1837 Act prohibited any person from laying a pipe “to communicate with any pipe belonging to the said company” without the consent of AGL. It is relevant to the extent that it recognises AGL as the owner of the pipes that it laid. There is nothing in the 1858 Act to suggest that this ownership interest was limited to pipes laid under s 3 as opposed to pursuant to a contractual or proprietary entitlement. Section 58 of the 1837 Act provided that it was an offence for any person to wilfully, maliciously or negligently damage “any of the mains or service pipes of” AGL. Again, this recognises the ownership interest of AGL in its pipes and there is nothing to suggest that this ownership interest was limited to pipes authorised under s 3. In this way, these provisions provide some (albeit limited) support for the analysis at [67] above.

20. [72]

    One final matter to note is that there is no equivalent in the 1858 Act to s 51 of the 1837 Act. This section provided that, if required to do so by a subsequent occupier at the expiration of a previous tenancy, AGL must remove gas infrastructure which is in a house or other buildings, if that infrastructure had been installed with the consent of the previous occupier, (unless it was otherwise stipulated or agreed). Thus, where gas infrastructure was installed pursuant to a request of an occupier or owner of premises or grounds, as provided under s 3 of the 1858 Act, Parliament should be taken to have intended that this infrastructure could remain in place notwithstanding a change in occupation. In cases where gas infrastructure was installed as provided under a contract, Parliament should be taken to have intended that infrastructure installed in the premises or grounds could remain in place notwithstanding a change of ownership or the termination of the tenancy of the contractual counterparty.

21. [73]

    It follows from the analysis above that the answer to the first separate question turns on whether the Gas Main Assets were installed on land which falls within the ambit of the words “any streets roads highways passages and public places” in s 3 of the 1858 Act. This is a question of construction which turns on the text, context and purpose of the Act. Consistent with the approach taken by O’Connor J in Richardson v Austin (1911) 12 CLR 463 at 479; [1911] HCA 28, the proper construction of the term “public place” should not be approached in the abstract, but must turn on the subject matter and purpose of the 1858 Act. For the reasons given below, I have concluded that a railway and a reasonable curtilage around the railway falls within the ambit of “other public places” in s 3 of the 1858 Act. In these circumstances, it is unnecessary to consider whether it might also be described as a “passage”.

22. [74]

    Starting with text, as I have already observed, the concept of “public” in the 1858 Act was used in contradistinction to the concept of “private” places. In this context, I would infer that as regards works other than branch pipes, in s 3 Parliament was identifying places that were public, as opposed to private, places. The language used also makes it clear that Parliament was not intending to limit the authority conferred by s 3 only to streets, roads, highways and passages, but intended that authority be granted in respect of “other public places” (notwithstanding that s 1 does not include these words). To the extent that some genus can be derived from the words that precede those general words, so as to make the ejusdem generis rule of construction applicable: R v Regos (1947) 74 CLR 613 at 623-624; [1947] HCA 19 (Latham CJ), all of the words connote some thoroughfare or means of passage or conveyance of people or goods from one place to another. That genus could readily comprehend a railway, and (for the reasons set out below) its reasonable curtilage, as it provides a means of passage from one place to another to both members of the public and their freight, upon payment of such fare or sum as is required. I would reject the plaintiffs’ submission that the common genus is an unrestricted public right of access to the location. There may well not be unrestricted public right of access to a street, road, highway or passage and, in any event, there is nothing in the 1858 Act that suggests that gas and lighting infrastructure should only be installed by AGL in places to which the public had unrestricted access.

23. [75]

    I also note that, somewhat before the 1837 and 1858 Acts were passed, in both The King v The Severn and Wye Railway Company (1819) 2 B&ALD 645; 106 ER 501 and in Rowe v Shilson (1833) 4 B&AD 726; 110 ER 62, railways were found to fall within the ambit of descriptions that may, in today’s context, seem unexpected. In the first of these cases a railway was described as a “road”, and in the second a railway was described as a “new public way”. Moreover, whilst I am mindful of the dangers of reliance upon dictionary definitions, where, as here, it is necessary to consider what intention should be inferred from words used in the 19th century, some assistance can be taken from the definition of a railway, from A New English Dictionary on Historical Principles, ed James A H Murray (1914, Clarendon Press) (as the Oxford English Dictionary was then called), as “1. Way or road laid with rails … also, the way composed of rails thus laid” and “b. Any line or set of rails intended to facilitate the motion of wheels or other apparatus”. This is entirely consistent with, at least, the genus of locations in s 3 of the 1858 Act comprehending a railway and indeed might suggest that a railway fell within the ambit of a “road”.

24. [76]

    In this regard, in 1976 and 1982 when the Gas Main Assets were installed, the railway on the Property was not just a thoroughfare but also had a public character. It provided a means of carriage available to the public and both the land so used, and the railway itself, was vested in the Commissioner for Railways for the purposes of the 1912 Railways Act. These purposes were directed towards the public good, tethered as they were to the establishment of railways in New South Wales including for the carriage of passengers, livestock and goods under the administration of the Commissioner for Railways (or his or her statutory successor) (see eg, ss 15 and 16 of the 1912 Railways Act). As to this, I would reject the plaintiffs’ contention that a place can only have the necessary public character if it is generally accessible to the public. There is no reason why such a limited use of the word “public” should be attributed to Parliament. My conclusion is consistent with the approach taken in Ex parte Ryan (1899) 20 LR (NSW) 274, albeit by reference to a very different statutory question, where the Court characterised a railway as a public thoroughfare notwithstanding that there were restrictions on the ways in which the public might use it. It is also consistent with the recognition of Windeyer J in Randwick Corporation v Rutledge (1959) 102 CLR 54 at 88-89; [1959] HCA 63 that a place may be characterised as being for public recreation and enjoyment even when only certain members of the public were allowed access to parts of the premises.

25. [77]

    Given that s 3 provides authorisation for the erection of lighting infrastructure and the digging of trenches and drains for the purpose of laying mains in, through, under or across the places identified in s 3, Parliament would also be presumed to have intended to authorise installation of infrastructure in, through, under, or across, a reasonable curtilage on either side of the actual thoroughfare itself. It would be wholly impracticable if the digging or sinking of trenches, the laying of pipes or the erection of lighting infrastructure were to take place only on or under the thoroughfare itself. That would necessarily cause significant upheaval and inconvenience, such that I would not infer that Parliament intended such a result. Moreover, in any instance in which gas mains or other infrastructure were to cross a railway line, it would be expected that works laying the pipes and digging trenches would need to be carried out on a reasonable curtilage of the railway itself. It can also be observed that both the preamble to, and s 1 of, the 1858 Act suggest that public places would comprehend public buildings. Consistent with this, the words “other public places” should not be narrowly construed only to include the actual thoroughfare or means of passage, as opposed to surrounding or necessary public buildings or land associated with the thoroughfare or means of passage.

26. [78]

    As for context, both s 4 of the 1858 Act and s 52 of the 1837 Act, picked up by s 5 of the 1858 Act, suggest that the places falling within s 3 (other than as regards a branch pipe) were expected to be under the control, direction or superintendence of a town surveyor, commissioners, surveyors, trustees or other person “having the control” of the place. That indicates that one aspect of a public place within the meaning of s 3 is that it is under the control or superintendence of some form of public official or authority. That is entirely consistent with land under the control of the Commissioner for Railways (or his or her statutory successor) being a public place for the purposes of s 3 of the 1858 Act.

27. [79]

    I take judicial notice, consistent with the submissions of both parties, that Parliament would be presumed to have been aware of the existence of railways in New South Wales. Legislation concerning railways in New South Wales dates back to the Sydney Railway Company Act 1849 (NSW) and the Hunter River Railway Company Act 1853 (NSW), both of which authorised the building of railways outside the city of Sydney. Parliament would also be presumed to have been aware that by 1855 the railways and other property had been purchased by the government of New South Wales and vested in the Commissioners for Railways, as provided in the preamble to the Railways Act 1855 (NSW). Contrary to the plaintiffs’ submission, however, I would not reason from this that Parliament should be taken, by omission, to have excluded railways from the ambit of s 3. Rather, I would read the words in s 3 as having been intended to encompass thoroughfares other than those specified, such as railways.

28. [80]

    Contrary to the plaintiffs’ submission, I do not attach any material significance on the question of construction to the fact that s 4 of the 1858 Act refers to reinstatement and making good of “stones ground soil or pavement”, but not railway lines or sleepers. Those words should be given a practical construction and be read as capable of extending to whatever ground needed to be made good.

29. [81]

    As for purpose, it is consistent with the purpose of the 1858 Act for there to be authorisation for gas mains to be laid in, through, under or across railways, including a reasonable curtilage thereof. First, the purpose of the 1858 Act was to enable AGL’s undertaking to extend beyond the boundaries of the city of Sydney. That undertaking involved both supplying gas to, and lighting, a range of places. I would readily infer that Parliament intended that AGL’s undertaking beyond the city of Sydney could include the lighting of railway lines, along with other thoroughfares, and the supply of gas for this purpose. That would plainly have been in the public interest. That supports a construction of s 3 that enables gas infrastructure to be installed in, through, under, or across, railways. It is speculation to suggest, as the plaintiffs did, that Parliament had any concerns that gas infrastructure or lighting might be dangerous if in proximity to railways.

30. [82]

    Second, as with the other locations identified in s 3, there could be great public benefit in gas mains being laid along, through or under railway lines. As thoroughfares, these were locations where there would be means of access and transportation available which would facilitate the laying and repair of gas mains and infrastructure. They were also locations where there had already been some public works undertaken, and the land was vested in the Commissioner for Railways such that the works would not interfere with private rights. They would also likely be locations where the laying of gas pipes may be expedient, in that they link settlements or towns.

31. [83]

    Third, it would be somewhat absurd for Parliament to have intended to exclude railways from the ambit of s 3, given that this would likely lead to considerable additional expense and inconvenience in any circumstance in which the most direct route for a gas main to travel would be through, under or across a railway line or its reasonable curtilage. It would also readily be inferred that Parliament would have intended the protections of s 4 of the 1858 Act and s 52 of the 1837 Act (applied by s 5 of the 1858 Act) to apply where gas infrastructure and associated works were carried out through, under or across a railway line.

32. [84]

    Fourth, given the very real public benefits that could flow from enabling the supply of gas, and lighting, throughout New South Wales, I would not narrowly construe the ambit of the authorisation provided by s 3 of the 1858 Act (noting that, consistent with my analysis above, this would not interfere with private rights).

33. [85]

    In light of this analysis, the words “streets roads highways passages and public places”, in particular the words “public places” in s 3, should be construed to include a railway and its reasonable curtilage.

34. [86]

    It is thus necessary to consider whether the position of the Gas Main Assets vis-à-vis the railway itself is such that I should find that their installation was authorised by s 3 of the 1858 Act. What is a reasonable curtilage in this context must be determined by reference to the legislative context, which is one in which the digging and sinking of trenches is envisaged, including to cross under a thoroughfare. That suggests that a reasonable curtilage should include sufficient area for such works, and that it was not intended that this should be an unduly narrow area. Whilst it is not possible to be precise as to the distance between the Gas Main Assets and the railway line as it was in 1976 and 1982, the Gas Main Assets appear to have run along the line of the railway within a distance of likely nothing more than about 20-25 metres from the centre of the single railway line present in 1977, and that where they are directed towards the railway line they are somewhat closer. I would characterise this as being within a reasonable curtilage of the railway so as to fall within the ambit of s 3 of the 1858 Act.

35. [87]

    Finally, in circumstances where, on the analysis above, AGL was authorised under s 3 of the 1858 Act to install the Gas Main Assets, that installation should be described as being pursuant to statutory authority. As the plaintiffs accepted before this Court, this is not a question that turns upon the subjective understanding of those who decided to, or in fact, conducted the installation. It is a characterisation dependent upon construction of the 1858 Act having regard to what occurred. Taking that approach, irrespective of the fact that the installation was clearly authorised by the Licence, it was also pursuant to the statutory authority conferred by s 3 of the 1858 Act. It would be wholly artificial to find otherwise simply on account of the existence and terms of the Licence, which, in any event, provided the necessary consent for the purposes of s 52 of the 1837 Act (applied by s 5 of the 1858 Act) and included a range of clauses which regulated the mechanics of the installation and use of the land.

36. [88]

    The first separate question should be answered “yes”.

37. [89]

    Notwithstanding that the parties are agreed that the rest of the separate questions do not arise unless I have answered the first separate question “no”, I have decided that this is an occasion in which it will enhance efficiency overall if I indicate my response to all questions, albeit with greater brevity than might otherwise have been required: by analogy with the approach discussed in Boensch v Pascoe (2019) 268 CLR 593; [2019] HCA 49 at [8].

38. [90]

    Given that the parties agree that the trespass claims cannot succeed if the answer to the first separate question is “yes”, to have utility, the rest of the separate questions should be approached on the (false) assumption that the first separate question was answered “no”. They should, however, be approached on the basis that the installation of the Gas Main Assets was lawfully undertaken in accordance with the provisions of the Licence, and on the basis that AGL was authorised to enter into the Licence. Neither of those propositions was disputed by either party. They should also be approached on the agreed basis that the Gas Main Assets were at all relevant times owned by either AGL or Jemena.

The second separate question

1. [91]

   The second separate question asks whether there was and is statutory authority for the continued presence, maintenance and use of the Gas Main Assets at the Property. It invites attention not just to the 1837 and 1858 Acts, but also to the 1986 Act and the Gas Supply Act 1996 (NSW) (the 1996 Act). This question also invites attention to the periods of the plaintiffs’ claims of trespass, that is from 29 November 1995 to 19 December 2000, and from 13 September 2021 onwards.

2. [92]

   Jemena’s key contention is that its obligation to continue the supply of gas at all times was explicit in the 1986 and 1996 Acts. Broadly, it contends that the 1986 and 1996 Acts, being the applicable legislation over the periods of the claimed trespasses, provided AGL, now Jemena, with statutory authority to retain the Gas Main Assets on the Property and to maintain, control, use and protect them. Prior to 1996, it says that that authority arises as a matter of necessary implication from the 1986 Act, but after 12 July 1996 when the 1996 Act came into effect, such authority was expressly conferred under s 52. In this regard, Jemena contends that the relevant legislation conferred upon Jemena duties to supply gas and to maintain and to protect the Gas Main Assets as well as a power to prevent others from occupying or interfering with those assets. Once that is accepted, Jemena submits, it must have a form of statutory licence or authority to occupy or possess the land where the Gas Main Assets are situated, which necessarily precludes any claim in trespass arising. Jemena contends that this position is, in particular, supported by the decisions of North Shore Gas Co Ltd v Commissioner of Stamp Duties (NSW) (1940) 63 CLR 52; [1940] HCA 7 (North Shore Gas (No 1)), Commissioner of Main Roads v The North Shore Gas Co Ltd (1967) 120 CLR 118; [1967] HCA 41 (North Shore Gas (No 2)), Rosebanner and Conexa Sydney Holdings Pty Ltd v Chief Commissioner of State Revenue [2025] NSWCA 20. By way of fallback submission, Jemena contends that if its submissions relying upon the 1986 and 1996 Acts were not accepted, then a right to occupy or possess arises by implication under the 1935 Act. Given my findings, it is not necessary to address this submission.

3. [93]

   The plaintiffs contend that, construed consistently with the presumption outlined at [68] above, none of the provisions relied upon by Jemena conferred any entitlement in AGL or Jemena for the Gas Main Assets to remain on the Property. In this regard they rely also on the presumption, which they derive from Asciano Services Pty Ltd v Chief Commissioner of State Revenue (2008) 235 CLR 602; [2008] HCA 46 at [27] (but which in fact derives from a judgment of Evershed J discussed at [116] below), that Parliament is not to be presumed to create an interest in land if the statute does not refer to the incidents normally associated with the creation of such an interest. The plaintiffs rely, critically, upon the assumption that there was no statutory authority for the installation of the Gas Main Assets. This, they say, is a crucial point of distinction between the facts before the Court in Rosebanner, and the present case. They also contend that Jemena had no entitlement to have the Gas Main Assets remain on the Property after the Licence terminated. They submit, moreover, that it would be “startling” if the Commissioner for Railways (or his or her successor in title) could have been precluded from requiring removal of the Gas Main Assets pursuant to his or her rights under the Licence by reason of the provisions of the 1986 Act, yet they say this is the logical corollary of Jemena’s contention.

4. [94]

   The plaintiffs did not dispute that, under the 1986 Act, Jemena was a gas distributor, the Gas Main Assets were part of a reticulation system and the distribution of gas through Jemena’s pipes was a primary gas activity within the meaning of s 3. Nor did the plaintiffs dispute that Jemena engaged in the reticulation of gas within s 4 of the 1986 Act including using the Gas Main Assets. Under s 5(2), in the event of inconsistency with any other Act in relation to any matter in respect of which the 1986 Act applied, it prevailed. Under s 31(4), “[n]otwithstanding the provisions of [its] relevant Act”, Jemena was authorised to “do any act or thing necessary for or reasonably incidental to engaging in the reticulation of gas if authorised to do so under this Act”. The position is, thus, that the 1837 and 1858 Acts do not limit the statutory entitlements expressly or impliedly conferred by the 1986 Act.

5. [95]

   Section 57 of the 1986 Act provided that a gas distributor shall not, without the written approval of the Minister, “realise or dispose of an asset or assets if to do so would significantly impair the continuing ability of the gas distributor to carry on the gas activities carried on by it”. On its face, this suggests that Parliament considered that a gas distributor had some proprietary interest in gas infrastructure, as it presupposes that a gas distributor would have power to realise or dispose those assets. Section 64 provided:

6. [96]

   These provisions had the effect that, at least subject to Ministerial approval, as Jemena submits, it was under a statutory duty to retain the Gas Main Assets, noting, as indicated above, that it is agreed that these are critical gas infrastructure.

7. [97]

   There was also a duty under s 107(4) (subject to a power under s 108 in limited circumstances to refuse) for a gas distributor to connect premises to the gas distributor’s reticulation system, and to supply gas, where a request is made from a person who occupies premises on land, the boundary of which is not more than 20 metres from an appropriate gas main (as defined) of a distributor. Under s 107A(1), a gas distributor such as Jemena had a duty:

8. [98]

   Under ss 113(1) and (2), if a failure to maintain supply was due to compliance with a requirement under the 1986 Act or “anything not within the control of the gas distributor”, then the distributor would not be guilty of an offence under the Act. A failure of, or interference with, gas supply could be excused, under s 113(3), where the failure was caused by maintenance (including repair) provided that reasonable notice was given (other than in an emergency).

9. [99]

   Having regard to these provisions, under the 1986 Act, Jemena was under a duty (albeit in some circumstances qualified) to supply gas and to maintain its supply of gas. This is consistent with the observation made by Barwick CJ in Benning v Wong at 262 as regards the duty on AGL to supply gas under the 1837 Act. In order to comply with this obligation a gas distributor such as Jemena would need to maintain, control, access and use its gas reticulation system.

10. [100]

    Beyond this, the 1986 Act imposed obligations upon Jemena, as a gas distributor, to supply gas of a prescribed standard: s 114. Also, under s 118, obligations were imposed upon Jemena, as a gas distributor which operated a gas distribution system, to:

11. [101]

    As Jemena submits, it was thus obliged under the 1986 Act to maintain and control its gas distribution system, which would include the Gas Main Assets. Whilst no power to enter for this purpose is expressly conferred by the 1986 Act, a power to do so must be implied, for the purpose of Jemena carrying out its obligations under the 1986 Act.

12. [102]

    Under s 125, a gas distributor’s gas inspector was given the power to enter any land, premises or place for the purpose of discontinuing supply for offence or non-payment.

13. [103]

    Section 130 provided:

14. [104]

    If a person contravened s 130, the gas distributor concerned was entitled (in addition to any other right or remedy) to recover $50 for each contravention in addition to any damage suffered by the distributor as a result of the contravention: s 131.

15. [105]

    Whilst s 130 did not require Jemena itself to protect gas infrastructure such as the Gas Main Assets from the interference or occupation of others, it had the effect that persons, including any owners or occupiers of the land within which gas infrastructure was situated, were prohibited from damaging or interfering with it without the approval of the gas distributor. In this way, it gave a gas distributor, such as Jemena, the right to control what was done, by others, to infrastructure such as the Gas Main Assets.

16. [106]

    The explanatory note to the Gas Bill 1986, which was enacted as the 1986 Act, explained that the objects of the bill included:

17. [107]

    I would accept that this is one of the purposes of the 1986 Act. Moreover, one way in which the 1986 Act sought to achieve that object was, as explained above, to place on a gas distributor such as Jemena certain duties and rights.

18. [108]

    Having regard to this legislative scheme, Jemena’s contention that under the 1986 Act there was an implied statutory right for the Gas Main Assets to occupy or possess the land where they are installed should be accepted. Whether or not a right is to be implied turns on both the legislative purpose and the detail of the applicable legislative scheme. As Basten JA explained in Chief Commissioner of State Revenue v Pacific National (ACT) Limited (2007) 70 NSWLR 544; [2007] NSWCA 325 at [68], the correct approach when considering such issues is to identify the relevant statutory power or interest and identify the consequences as may flow from the scheme without assuming that the those legal consequences will be the same as would flow from an analogous general law categorisation of the power or interest.

19. [109]

    It would simply make no sense were Jemena to have no right of occupation or possession of the strata of land where its gas infrastructure is located given its obligations as explained above, the role which installed gas infrastructure such as the Gas Main Assets plays in the system of gas distribution and supply, and the provisions to protect that system, as reflected in the 1986 Act. It would also undermine the statutory purpose of facilitating and maintaining gas supply to the requisite standards were landowners and occupiers entitled to require the removal of critical gas infrastructure such as the Gas Main Assets (noting that they could not themselves remove them). It is, moreover, reasonably necessary to the fulfilment of its statutory duties for Jemena to have an implied statutory entitlement for its gas infrastructure to occupy or possess the land where it is situated. This conclusion does not in any way depend upon whether the installation of such infrastructure was pursuant to some express statutory authority or was pursuant to a contract that AGL was authorised to enter into. There is no reason why the precise indicia of the lawfulness of installation should impact upon continuing rights of occupation or possession of strata of land where gas infrastructure is installed. In this regard, it is unnecessary to decide whether the position would be any different as regards gas infrastructure that had not been lawfully installed as there was no suggestion that this was the case as regards the Gas Main Assets.

20. [110]

    It is unnecessary for the purposes of the second separate question to characterise this entitlement as a matter of property law. It suffices to say that it is an entitlement in the nature of a statutory right of occupancy or possession, the effect of which is that Jemena has an implied statutory right of possession as regards the stratum of land where the Gas Main Assets are located.

21. [111]

    As to the plaintiffs’ contention that it would be startling if such an implied right were to overcome contractual rights under the Licence, there is nothing outlandish about subsequent statutory rights conflicting with contractual entitlements: see eg Scanlan’s New Neon Ltd v Tooheys Ltd (1943) 67 CLR 169; [1943] HCA 43, and, as the Licence terminated well before the periods of claimed trespasses, it is unnecessary to consider whether Jemena could contract out of its statutory entitlements under the 1986 Act: see eg the discussion in Price v Spoor (2021) 270 CLR 450; [2021] HCA 20 at [76] (Steward J).

22. [112]

    My analysis is also consistent with judicial consideration of the rights associated with gas infrastructure such as the Gas Main Assets. As explained by Windeyer J in Benning v Wong at 294 (in dissent as to the result):

23. [113]

    The plaintiffs contend that this observation is necessarily dependent upon AGL having been authorised by statute to lay the Gas Main Assets, as they were in Benning v Wong. No such qualification is stated by Windeyer J. Moreover, it is difficult to see why his Honour’s analysis should depend upon there having been statutory (as opposed to contractual) authority for the laying of pipes in circumstances where AGL had obligations, under the applicable legislation, to maintain its gas assets and to supply gas, including by using those assets.

24. [114]

    Gas mains and pipes were also considered by the High Court in North Shore Gas (No 1). The issue was whether, for rating purposes, gas infrastructure including mains and pipes were goods, wares or merchandise for the purpose of the Stamp Duties Act 1920-1933 (NSW). Rich J held that they were not. His Honour observed, at 61-62, that gas mains and pipes had been:

25. [115]

    These observations were cited with apparent approval by the plurality in North Shore Gas (No 2), where the North Shore Gas Company sought compensation for the statutory resumption of land in which its gas mains and pipes were located which had the consequence that the gas mains and pipes were destroyed. This claim depended, in part, upon the company showing that its interest in the gas mains and pipes constituted an interest in land: at 125. The plurality rejected that contention but observed that:

26. [116]

    The plurality then said, at 127-128, that the answer to the question raised in the case was supplied by the decision of Evershed J in Newcastle-under-Lyme Corporation v Wolstanton Ltd [1947] Ch 92 at 103-104. There, his Lordship explained that the undertakers of pipes and cables laid under special acts should be treated as having “no greater rights or interests … than are necessary for the fulfilment of the object of the statute” and that, having regard to this, they had the interest of “licensees without any title, legal or equitable, in the land itself”.

27. [117]

    In North Shore Gas (No 2) at 131, Windeyer J (agreeing in the result) said that it was “futile really to try to classify and describe the [North Shore Gas Company’s] rights in respect of mains and pipes under streets and roads according to the traditional categories and terminology of the law of real property”. His Honour then observed at 132 that decisions regarding the status of mains and pipes for rating purposes established that:

28. [118]

    At 133 his Honour referred to the company’s “mere right of occupation” and said that the right was in fact “sui generis”. His Honour also accepted what Evershed J said in Wolstanton and, at 134, described the company as having “something more than a mere revocable licence”.

29. [119]

    The analysis in each of these cases supports my conclusion that Jemena is in lawful occupation or possession of the land where the Gas Main Assets are located.

30. [120]

    It is also necessary, in this context, to consider the decision of Ward J in Rosebanner Pty Ltd v EnergyAustralia [2009] NSWSC 43; 223 FLR 406 (“Rosebanner (SC)”) in which one issue was whether electricity infrastructure, which was claimed to be a trespass on the plaintiff’s land, had been lawfully erected. There was no suggestion of any contractual or proprietary entitlement to erect the infrastructure at the time it was erected, albeit that an easement was created for the transmission line, but not the pole, stays or feeder line (together, the pole), some 2 or 3 years later. Ward J held that the applicable legislation authorised the erection of the infrastructure and then turned to consider whether there was authority to maintain the infrastructure on the premises. Having considered provisions of the Sydney Electricity Act 1990 (NSW), her Honour said at [111]:

31. [121]

    Her Honour then considered the Electricity Supply Act 1995 (NSW), noting in particular s 54(1) of that Act which conferred a right to enter premises for the purpose of maintaining electricity works. Ward J concluded at [114]:

32. [122]

    On appeal, the Court of Appeal found that the pole was lawfully erected, upholding one of the bases upon which Ward J found that there was statutory authority to erect the pole. At [97], the Court held that the respondent was entitled to keep the pole on the land and there was no trespass in its continued presence on the land. It should be noted that this was a finding that there was no trespass, not that acts which would otherwise have been a trespass were justified by statutory authority. At [98] the Court explained this conclusion:

33. [123]

    Whilst the legislative scheme under the 1986 Act did not contain all of these indicia, and, in particular, there was no express statutory conferral of ownership in the 1986 Act (although the plaintiffs accept ownership as a matter of common law), and no express entitlement in AGL to enter the Property to maintain the Gas Main Assets, this analysis is consistent with my analysis set out above. It will rarely be the case that the indicia relied upon to found a right to maintain infrastructure on property will be identical as between cases. What is necessary, in that context, is to consider whether the statutory indicia present suffice to indicate that such an entitlement should be implied. For the reasons I have already given, as was the case in Rosebanner, in the present case it should.

34. [124]

    Further, to the extent that the plaintiffs contend that Rosebanner is distinguishable from the present case because the lawful authority for the installation of the Gas Main Assets derived (as is assumed for the purpose of the second separate question) from the Licence and not statute, that contention should be rejected. The fact that in Rosebanner, and indeed in Gallen v Strathfield Municipal Council [1971] NSWLR 122 and Quirindi Shire Council v Gigli (1985) 3 NSWLR 178 which were both noted in Rosebanner at [95], the authority for installation of the infrastructure derived from statute does not suggest that a different consequence would flow where lawful authority for installation was pursuant to a contract which was itself entered into pursuant to statutory authority. As I have already observed, there is no good reason why a different consequence would flow from the legislative scheme for that reason.

35. [125]

    It should finally be noted that in Rosebanner the Court, at [102], referred to the enactment of the Electricity Supply Amendment (Protection of Electricity Works) Act 2006 (NSW), which had inserted s 53 into the Electricity Supply Act and which was to the effect that an “action by an owner or occupier of land did not lie against a ‘network operator’ by reason of the presence in, on or over the land of existing electricity works, or the operation or use of the electricity works, save where there was a registered easement”. The Court confirmed that this legislation, which it described as “precautionary” at [104], did not alter its conclusion as to the correct interpretation of the legislation prior to its introduction.

36. [126]

    The position is all the more clear after 12 July 1996 when the 1996 Act came into operation. The objects of the 1996 Act at s 3(1) include, relevantly:

37. [127]

    Further, as is clear from the second reading speech in the Legislative Council on 19 June 1996 for the Gas Supply Bill 1996, which became the 1996 Act, one of the aims of the 1996 Act was to facilitate third party access to the natural gas distribution systems by establishing a right of third party access to the pipelines and pipes which deliver gas to the final customer. It was also noted in the second reading speech that the access to be provided by the bill would “apply to the natural gas distribution or reticulation systems such as those owned and operated by the AGL Gas Companies”.

38. [128]

    These purposes would be undermined were there no entitlement for gas infrastructure owned by entities such as Jemena to remain in situ.

39. [129]

    The 1996 Act applies as regards gas works, distribution pipelines and gas networks, all of which are defined in the Dictionary to that Act. It is an agreed fact that the Gas Main Assets fall within the ambit of those definitions. Jemena is a network operator under the Act. Provision is made in s 50 for a network operator to serve a notice requiring that work be carried out if it “has reasonable cause to believe that any structure or thing placed in, on or near its gas works is destroying, damaging or interfering with those works” (noting that this provision was amended by the Energy Legislation Amendment Act 2021 (NSW), but not so as to alter the meaning set out above). If the work is not carried out within a reasonable time the network operator may carry out the work itself. A similar power is conferred under s 50A where a network operator “has reasonable cause to believe that the carrying out or proposed carrying out of excavation work in, on or near its gas works” could destroy, damage or interfere with those works or could make them a potential risk to public safety. Thus, a network operator such as Jemena has a right to take steps to protect its gas infrastructure, including from acts of the owner of the land where they are located (and that is made express in s 50A(6)). Significantly, under both ss 50 and 50A, a network operator may apply for an injunction to prevent the placement of the structure or thing, or excavation works.

40. [130]

    Sections 55 to 64 deal with the rights of entry and inspection of gas industry inspectors, and the consequences of those rights being exercised. Section 72 makes it an offence to prevent, hinder or obstruct an inspector exercising functions under the Act.

41. [131]

    Section 66 provides that a person must not interfere with “a network operator’s gas works unless authorised to do so by the network operator”. Sections 67 and 68 make similar provision as regards gas meters and seals, and s 69 provides that a person “must not connect a gas installation to a network operator’s distribution pipeline or distribution system unless authorised to do so by the network operator”.

42. [132]

    The analysis at [108] to [110] above applies equally as regards the 1996 Act. Jemena had at least an implied statutory right for the Gas Mains Assets to remain on the Property pursuant to the 1996 Act.

43. [133]

    Over and above that, however, it is necessary to consider the consequence of s 52 of the 1996 Act, upon which (for obvious reasons) Jemena placed particular significance. This provides that:

44. [134]

    Section 52(3) was added by the Real Property and Conveyancing Legislation Amendment Act 2009 (NSW), (the 2009 Act) cl 3.9 of Schedule 3 (at the same time as analogous provisions were added into s 51 of the Electricity Supply Act (the legislation considered in Rosebanner) and s 64 of the Water Industry Competition Act 2006 (NSW) (the legislation considered in Conexa). As the plaintiffs recognise in their written submissions, s 52(3) is confirmatory of the position that pertained from at least the time of the 1935 Act, that a gas distributor such as Jemena owned its gas infrastructure irrespective of who owned the land on which it was located. Further, as the plaintiffs accepted in oral submission, they are no different materially than the Water Industry Competition Act considered in Conexa.

45. [135]

    In the second reading speech to the 2009 Act, Mr Collier, Parliamentary Secretary said:

46. [136]

    As Payne JA (with whom Ward P and Stern and McHugh JJA agreed) explained in Conexa at [93], the right conferred by s 64(1) of the Water Industry Competition Act (which is relevantly the same as s 52(1) of the 1996 Act), is to confer an exclusive use of a piece of land, being the stratum of land occupied by the pipeline. The particular features his Honour relied upon at [93] were that the appellant in that case had statutory rights to exclude all others from the stratum of land, to control and exploit the stratum for reward, and the right of alienation which necessarily includes the infrastructure in the existing stratum of land it occupies. The same can be said of the Gas Main Assets given the rights conferred by the 1996 Act.

47. [137]

    Thus, despite the plaintiffs’ attempts to distinguish Conexa, and notwithstanding that the conclusion of Payne JA was reached in a case concerning the Duties Act 1997 (NSW) (the issue in Conexa being whether pipelines were an interest in land under that Act), his Honour’s analysis in this respect did not depend to any significant extent upon provisions in the Duties Act. His Honour’s conclusion as to construction of s 64(1) of the Water Industry Competition Act applies equally to s 52(1) of the 1996 Act.

48. [138]

    In this regard, whilst it is true that at [107] Payne JA referred to the definition of an “interest in land” in the Duties Act in his analysis of statutory context, I do not regard that as diminishing the force of his Honour’s construction of s 64 of the Water Industry Competition Act by reference to its own text and purpose, nor as providing a substantive basis upon which his Honour’s analysis can properly be distinguished here. His Honour’s observations at [107] are in no sense integral to his Honour’s conclusion as to statutory construction, which relied primarily upon the text and purpose of the Water Industry Competition Act. Nor is Conexa distinguishable from the present case on the basis that the sale of the Gas Main Assets could only, under the 1996 Act, be to a licensed network operator, that the land on which the infrastructure was placed in Conexa was largely Crown land or that the question of construction arose in the context of an issue under the Duties Act. Nor were the terms of s 63 of the Water Industry Competition Act, which provided that charges should not be paid by licensed network operators, critical to his Honour’s construction of s 64. None of these matters go to the essence of Payne JA’s reasoning.

49. [139]

    Noting the plaintiffs’ submissions as to the entitlement to levy a charge on gas infrastructure not turning upon an ownership interest, however, I have placed no significance on s 51 of the 1996 Act (which is equivalent to s 63 of the Water Industry Competition Act) in my reasoning.

50. [140]

    Payne JA in Conexa held, at [101], that s 64(3) of the Water Industry Competition Act was “designed to make clear what was always the intention of s 64(1)” of that Act, which was to confirm that “the unrecorded statutory interest in land created by s 64(1) would override the interest in that land recorded pursuant to s 42 of the Real Property Act”. At [128], his Honour held that the legislative context in Asciano differed significantly from that of the Water Industry Competition Act given that that legislation did not include provisions equivalent to those in s 64 of the Water Industry Competition Act. In both respects, the analysis applies equally to s 52 of the 1996 Act.

51. [141]

    Finally, contrary to the plaintiffs’ submission, the fact that the 1996 Act does not include any provision equivalent to s 53(2) of the Electricity Supply Act, precluding any action by the owner or occupier of land against the network operator by reason of the presence or operation or use of electricity works, does not stand against my conclusions as set out above. Section 53(2) was added to the Electricity Supply Act in 2006 by the Electricity Supply Amendment (Protection of Electricity Works) Act. The speech of the Hon Mr Tripodi, Minister for Energy, in the Legislative Assembly when the bill that introduced these amendments was read a second time suggests that the amendments were introduced because of uncertainty as to whether long term use combined with the statutory rights and responsibilities of network operators to operate, maintain and repair essential electricity infrastructure would provide a defence to actions in nuisance and trespass. As Ward J said in Rosebanner (SC) at [75], “recognition by the legislature of uncertainty” does not mean that, properly construed, the legislation did not in any event protect network owners; see also Rosebanner at [102]–[104] (at [125] above).

52. [142]

    I note that the plaintiffs reserved their right to say, on any appeal from my orders, that Conexa was wrongly decided.

53. [143]

    It follows that the second question should be answered “yes”. Throughout the periods of the trespass claims Jemena had, at least, implied statutory authority for the continued presence, maintenance and use of the Gas Main Assets at the Property. Moreover, and whilst my answer to the second separate question does not depend upon this, from 12 July 1996, Jemena had a statutory interest in the stratum of land where the Gas Main Assets were located.

The third and fourth separate questions

1. [144]

   It follows from the conclusions I have already reached that the third and fourth separate questions should also be answered “yes”.

Conclusion

1. [145]

   Neither party contended that anything other than the usual order as to costs should be made. Accordingly, the orders I make are:

   1. (1)

      I answer the first separate question referred to in the order of Peden J made on 28 August 2025: Yes.

   2. (2)

      I answer the second separate question referred to in the order of Peden J made on 28 August 2025, as amended by the order of Stern J made on 9 October 2025: Yes.

   3. (3)

      I answer the third separate question referred to in the order of Peden J made on 28 August 2025: Yes.

   4. (4)

      I answer the fourth separate question referred to in the order of Peden J made on 28 August 2025: Yes.

   5. (5)

      The plaintiffs to pay the defendant’s costs of the determination of the separate questions.