NBN Co Limited v Pipe Networks Pty Limited

The plaintiff (“NBN”) is responsible for rolling out the national broadband network throughout Australia. The defendant (“Pipe”) is a wholly owned subsidiary of TPG Telecom Limited. Pipe owns and operates an optical fibre telecommunications network in some metropolitan areas of Australia.

In these proceedings NBN alleges that Pipe has engaged in misleading and deceptive conduct by representing that Schedule 3 of the Telecommunications Act 1997 (Cth) (the “Act”) empowers Pipe to install certain telecommunications equipment in premises including by plugging it into a power socket and drawing power from the premises’ power supply without the consent of the owner or occupier. In this judgment a reference to a clause is a reference to a clause of Schedule 3 of the Act.

On 28 November 2014 the Court ordered that:

The first claim for relief in the summons is:

The Court heard the Separate Question on 25 February 2015. Mr N.C. Hutley SC appeared with Mr A. Shearer of Counsel for NBN. Mr B. Walker SC appeared with Mr J. Duncan of Counsel for Pipe.

The Court concludes that NBN is not entitled to the declaration sought in paragraph 1 of the summons because, on its proper construction, Schedule 3 of the Act does authorise Pipe, its employees and contractors to install the telecommunications equipment including by plugging it into a power socket and drawing power from the premises’ power supply without the consent of the owner or occupier.

The facts which follow are derived from the Statement.

NBN is and was at all material times:

Pipe is and was at all material times:

Pipe owns and operates an optical fibre telecommunications network in some metropolitan areas of Australia (“Pipe Fibre Network”).

As part of its business activities, Pipe has commenced undertaking, and proposes to continue to undertake, the expansion of the Pipe Fibre Network to MDUs in some metropolitan areas of Australia by way of a mode of infrastructure deployment known as “fibre to the basement” so as to enable the supply of telecommunications services over the Pipe Fibre Network to owners, occupiers or tenants of individual premises (such as dwellings or offices) within the MDU (“Pipe FTTB Expansion”).

The Pipe FTTB Expansion involves Pipe undertaking, and proposing to continue to undertake, the following activities in respect of a particular MDU:

Pipe has issued LAANs to owners or occupiers of a number of MDUs. Those notices include a section in these or similar terms (emphases added):

Pipe did not obtain consent from the owners, occupiers or tenants of the MDUs referred to in the preceding paragraph to connect the Equipment to the power socket of the owner or occupier of the MDU and draw power from the power supply of the owner or occupier of the MDU on an ongoing basis.

Section 3 of the Act (Objects) includes:

Section 4 of the Act (Regulatory policy) includes:

Section 7 of the Act includes these definitions:

Part 24 of the Act is headed “Carriers’ powers and immunities” and contains one, lapidary provision:

Schedule 3 bears the same heading as s 484 of the Act – “Carriers’ powers and immunities”. It is divided into three parts. Part 1 consists of eight divisions and contains the substantive “General provisions”, Part 2 contains “Transitional provisions” in respect of infrastructure operated by a carrier which was authorised under previous Commonwealth legislation and Part 3 concerns “Compensation for acquisition of property”.

Clause 1 provides a simplified overview of the Schedule which includes:

The key powers of inspection, installation and maintenance of facilities conferred on carriers are contained in Divisions 2, 3 and 4 respectively of Part 1 of Schedule 3.

Division 2 is entitled “Inspection of land”. It contains a single provision (clause 5) empowering a carrier to inspect land and undertake related activities for the purposes of determining whether any land is suitable for its purposes.

Division 3 is entitled the “Installation of facilities”. It also contains a single provision (clause 6) which enables a carrier to install certain facilities for certain purposes. It includes:

Clause 2 defines “installation”:

For the purpose of clause 6, the Minister may, by legislative instrument, determine that a specified facility is a low-impact facility (clause 6(3)) subject to certain constraints as to the types of facility that may be so specified (clauses 6(4)-(7)). Such a determination has been made by way of the Telecommunications (Low-impact Facilities) Determination 1997 (Cth) (the “Determination”). By the Determination, “in-building subscriber connection equipment” has been specified as a low impact facility when installed in a residential, commercial, industrial or rural area other than an area of environmental significance (section 3.1; Schedule, Part 3, item 6).

Division 4 is entitled “Maintenance of facilities”. Its single provision (clause 7) enables a carrier to maintain a facility. It includes:

Division 5 provides certain conditions relating to the carrying out of activities authorised under Divisions 2, 3 and 4 of Part 1 of Schedule 3. These include obligations to do as little damage as practicable (clause 8) and to restore land (clause 9). Clause 17 relevantly provides that before engaging in an activity under Divisions 2, 3 or 4 in relation to any land, the carrier must give written notice of its intention to do so to the owner of the land (clause 17(1)). The LAANs purport to be such notices. The notice must specify the purpose for which the carrier intends to engage in the activity (clause 17(2)). Additional notice requirements are imposed in respect of the lopping of trees (clause 18) and, where necessary, to roads authorities, utilities etc(clause 19).

Division 7 is relevant to the provisions in Divisions 2, 3 and 4. It provides for “Exemptions from State and Territory laws” and thereby creates various immunities from such laws which are enjoyed by carriers. While relevant activities of carriers under Schedule 3 are not generally exempt from State and Territory laws (clause 36), numerous exemptions from such laws are granted by clause 37:

Division 8 contains various “Miscellaneous” provisions, including clauses 42 and 47. Clause 42 provides a compensation right in relation to financial loss or damage caused by certain types of activity as follows:

Clause 43 (which is referred to in the LAANs) extends a carrier’s powers to employees and those acting on its behalf:

Finally, clause 47 concerns ownership of facilities:

Although NBN is the plaintiff in the proceedings and bears the onus to make out its case as such, the parties accepted that for the Separate Question it was for Pipe to establish how it was entitled to undertake the impugned conduct. The hearing of the Separate Question proceeded accordingly, with Pipe making its submissions and NBN responding. Pipe’s submissions may be summarised as follows.

Clause 6(1) should be given a broad interpretation: PIPE Networks Pty Ltd v Commonwealth Superannuation Corporation [2014] FCA 444; (2013) 212 FCR 542 (“Commonwealth Super”). Clause 2 defines “installation” in relation to a “facility” in the broadest of terms including in paragraph (c) “any activity that is ancillary or incidental to the installation of the facility”. “Activity” plainly includes connecting Pipe’s equipment to a power socket and drawing power from it. Therefore, “installation” in s 6(1) includes the activity of connecting the equipment to a power socket and drawing power.

In relation to clause 7, the definition in the Macquarie Dictionary for “maintain” is (among others) “to provide with a means of existence“ and “to keep in operation”. In the case of Pipe’s equipment, this means functioning existence. If connection to a power socket and drawing power is not part of the installation, then it comes within the power conferred by clause 7(1) to maintain a facility because it provides the Equipment with the means of functioning and keeps it in existence. It falls within clause 7(3)(c) which brings “ensuring the proper functioning of the original facility” within the meaning of “maintenance of a facility”. Mr Walker SC described clause 7(3)(c) as being at the heart of Pipe’s argument.

There is no doubt that clause 6 authorises Pipe to enter a MDU and install the Equipment without the owner or occupier’s consent. Connection to and use of power is essential to the operation of the Equipment. Pipe’s right to enter and install the Equipment without consent would be rendered nugatory if it could not also connect to and draw power without consent.

Pipe’s interpretation gives effect to s 15AA of the Acts Interpretation Act 1901 (Cth) as the interpretation that best achieves the purpose or object of the Act and avoids unnecessary duplication of infrastructure and additional cost.

Pipe’s construction is not detrimental to the owner or occupier of the premises because compensation would be payable under clause 42(1). Clause 42 makes it clear that Parliament intended clauses 6 and 7 to authorise activity which should be the subject of compensation.

Contrary to the position advanced by NBN, the inclusive definitions in clause 6(2)(b) and 7(3) do not confirm the ordinary meaning of installation or maintenance. The inclusive definition serves the purpose of extending the ordinary meaning of the word to which it applies.

The connection of the Equipment to the power point and the drawing of power are necessary or desirable steps for the installation or maintenance of the Equipment because, otherwise, the Equipment would be useless. As such, the connection of the equipment and the use of power is a complement, not a supplement, to the statutory power of installation or the statutory power of maintenance: Carbines v Powell (1925) 36 CLR 88 at 92 per Isaacs J.

The decision of the Court of Appeal in Hurstville City Council v Hutchison 3G Australia Pty Ltd [2003] NSWCA 179; (2003) 200 ALR 308 (“Hurstville”) that clause 7 operates only in situations where the relevant maintenance activity does not itself constitute a trespass or other wrong is distinguishable on the facts and, in any event, concerned only clause 7 and not clause 6.

NBN’s submissions may be summarised as follows.

The task of statutory construction begins and ends with the statutory text. That text must be considered in context, which includes legislative history and extrinsic materials, although these cannot displace the meaning of the statutory text: Commissioner of Taxation v Consolidated Media Holdings Ltd [2012] HCA 55; (2012) 250 CLR 503 at [39].

The Court will only impute to the legislature an intention to abrogate or curtail freedoms where that intention is manifested by unmistakable and unambiguous language. General words will rarely be sufficient for that purpose: Coco v The Queen (1994) 179 CLR 427 (“Coco”) at 437; Plaintiff S157/2002 v Commonwealth of Australia [2003] HCA 2; (2003) 211 CLR 476 at [30].

Pipe’s reliance on the objects of the Act is misplaced. Those objects are so generally expressed that it cannot be said they support the appropriation of a third party’s power. Nor is there any basis supported by evidence or otherwise to conclude those objects will be inhibited if Pipe did not have compulsory access to an MDU’s power supply.

Insofar as Pipe relies on clause 6, in its ordinary meaning “installation” does not encompass connecting the Equipment to the power supply or the drawing of power from a third party’s power supply on an ongoing basis. None of the three matters included as part of the definition of “installation” by clause 2 is apt to refer to a power to plug a facility into a third party’s power socket or to draw power from that third party’s power supply on an ongoing basis. Nor does any of the various sub-powers in clause 6(2) authorise either the initial connection of the Equipment to the power supply or the ongoing use of it by the continuous drawing of power. Furthermore, in construing clause 6 as a whole, clause 6(2) can illuminate the meaning of clause 6(1).

Commonwealth Super is not authority for a “broad” interpretation of clause 6. It was nothing more or less than the application of the “clear and unambiguous” language of clause 6(1)(b) (Commonwealth Super at [98]).

In relation to clause 7, the core power in that clause is to “maintain a facility”. “Maintain” is not defined, other than on an inclusive basis to incorporate the matters set out in clause 7(3). The ordinary meaning of “maintain”, being to keep something up or preserve it in existence, is not suggestive of an ability to draw power on an ongoing basis.

Pipe’s submissions strain the meaning of “maintain”. For example, filling a car up with petrol (let alone taking someone else’s petrol) would not be, in its ordinary meaning, to maintain that car. Nor would such conduct fall within the natural and ordinary meaning of “ensuring the proper functioning” of the car.

The inclusions in clause 7(3) confirm the ordinary meaning of the concept of maintenance and do not include the ability to draw power on an ongoing basis. Clause 7(2), permitting the carrier to do anything necessary or desirable for the purpose of maintaining the facility, cannot be read so as to extend the concept of maintenance itself. To do so would be to supplement rather than complement the grant of power. Therefore clause 7(2) only permits activities ancillary or incidental to keeping the facility in existence or continuance. That does not extend to appropriating the owner or occupier’s power supply.

Clause 7 operates only in situations where the relevant maintenance activity does not itself constitute a trespass or other wrong: Hurstville. On that construction, appropriation of a private third party’s power supply without their consent involves a trespass or other wrong not authorised by the clause. Pipe’s attempts to confine Hurstville to its facts fail to deal with the Court of Appeal’s central finding as to the construction of clause 7.

The activities which NBN seeks to impugn interfere with the owner or occupiers right to enjoy their property and to exclude others from that property. Furthermore, drawing power from the power supply of the owner or occupier would involve the appropriation or larceny of the power supply and impose a liability on the owner or occupier to the power supplier. Neither clause 6 nor clause 7 is expressed with sufficient clarity so as to overcome the presumption of statutory construction against the invasion or curtailment of common law rights or freedoms. Insofar as there is ambiguity, the construction which least interferes with private property rights should be preferred: R & R Fazzolari Pty Ltd v Parramatta City Council [2009] HCA 12; (2009) 237 CLR 603 at [43]-[44] per French CJ. Neither clause 6 nor clause 7 is drafted with sufficient clarity so as to support the conclusion that the legislature intended to authorise the trespass constituted by plugging the facility into a power point or the appropriation or larceny of the electricity supply.

There was no evidence in the Statement which supported Pipe’s submission that its power to install the Equipment would be rendered nugatory if it could not connect to and use the MDU’s power supply without consent. There was nothing, for example, that touched on the ease or difficulty for Pipe of using its own or some other power supply.

The compensation provision in clause 42 cannot be called in aid to construe clauses 6 and 7. The anterior question of whether particular conduct is authorised (so as to engage the possibility of compensation) must be answered first. In any event, it is doubtful whether exposing the owner or occupier of the MDU to a liability to the power supplier is financial loss or damage of the kind referred to in clause 42.

Pipe’s construction also gives rise to practical difficulties. These include questions such as what if multiple carriers deploy their own equipment in the one area? Which one gets access to the power point? Is one carrier entitled to pull the plug out of the other carrier’s equipment and then connect their own equipment by way of maintenance? If a power board is used, how many switches may be added before issues of dilution arise?

Finally, if Pipe is correct, Schedule 3 would allow the carrier to appropriate a third party’s power, water, gas or other utility to supply or service a telecommunications facility such that the property owner would then incur the primary liability to meet the charges incurred for that power, water, or gas. Nothing suggests that any of this was contemplated by Parliament when it enacted Schedule 3 of the Act. In particular, to the extent such conduct breached State or Territory criminal laws, these were not excluded by the exemption in clause 37.

I gratefully adopt the summary of the relevant principles set out by Tracey J in Commonwealth Super:

In addition to the matters to which Tracey J drew attention, it is necessary to add the following from Coco at 436-438 (per Mason CJ, Brennan, Gaudron and McHugh JJ (footnotes omitted)):

Finally, I should record for completeness that since the hearing of the Separate Question, the High Court delivered its judgment in Independent Commission Against Corruption v Cunneen [2015] HCA 14 (“ICAC”). That decision is the latest authoritative treatment of the principles of statutory construction. However, there are two reasons why I do not give it further specific consideration in these reasons.

First, and with respect, it applies but does not extend existing principles such as those set out in Project Blue Sky v Australian Broadcasting Authority [1998] HCA 28; (1998) 194 CLR 355. Second, particular emphasis on some aspects of those principles was required by the “protean” nature of the expression “adversely affect” (ICAC at [2]) which was central to that case. The key expressions in the case at bar – “installation” and “maintain” – do not share that chameleon-like quality.

Before considering clauses 6 and 7, four preliminary observations are necessary.

First, the parties agreed (and there can be no doubt) that the Equipment is a “facility” as defined in s 7 of the Act (see paragraph [17] above).

Second, plugging the Equipment into a power socket and then drawing power are two separate acts and I will consider them as such. Although Mr Hutley SC, for NBN, submitted that there was no real point in being able to plug in the Equipment unless you had the right to draw the power, the parties’ arguments correctly proceeded on the basis that the two steps could be considered separately. Furthermore, that dichotomy is reflected in the LAANs themselves, which refer to the plugging into the wall socket as part of installation and the drawing of power as maintenance. Whether that is, in law, a correct characterisation is the central issue in the Separate Question.

Third, a very significant feature of Schedule 3 for the purposes of its construction is the dedication of separate divisions to inspection of land, installation of facilities and maintenance of facilities. That structure gives those parts of Schedule 3 a logical form which reflects practical realities. The carrier first determines whether particular land is suitable for its purposes, then installs its facilities on the land which it has identified and is then entitled to maintain those facilities once they have been installed. The step between installation and maintenance is the operation of those facilities. The parties agreed that their entitlement to operate facilities as part of a telecommunications network came not from Divisions 2 to 4 of Part 1 of Schedule 3 but rather from their being licensed as carriers under other provisions of the Act.

Fourth, it is necessary to consider Hurstville because if it applies then I am bound by it. In a sense both parties were correct in their characterisation of Hurstville: it can be distinguished on its facts but that point of distinction is also why the application of the principle for which Hurstville stands does not prevent Pipe’s recourse to clauses 6 and 7 if they otherwise apply as a matter of construction.

In Hurstville, the respondent company wished to replace one of the Council’s light poles (which was clearly the property of the Council and in which the respondent had no prior title or interest) with an identical pole on which it was also going to install certain telecommunication facilities. As the Court of Appeal observed (at [7]), “the Council’s ownership of the original pole also armed it with the right to prevent interference with it, by virtue of the common law of trespass”.

The Court of Appeal precisely described the issue which it was called upon to determine (emphasis added):

The essence of the trial judge’s reasons was that the existing pole became a “facility” subject to the “maintenance” power conferred by clause 7 when and because the respondent had notified its intention to use it as part of its telecommunications network (Hurstville at [48]). In rejecting the correctness of the trial judge’s approach, the Court of Appeal’s decision has two key aspects.

First, there is no doubt that the Court of Appeal accepted the applicability of the principle in Coco to the construction of clause 7. The first part of the Court’s decision assumed the correctness of the respondent’s submission that the definition of “facility” included the structure on which the telecommunications equipment rested. On that basis, the Court concluded (emphasis added):

This first part of the Court of Appeal’s decision makes it clear that the Court was not prepared to extend the operation of clause 7 to something in which the carrier had no prior interest (in that case the original light pole). However, in these proceedings it is common ground that the Equipment which is sought to be plugged in and powered is a facility. It will be the property of Pipe (see clause 47 set out in paragraph [31] above). Therefore, to adapt the language of the Court of Appeal (at [59]), the Equipment is a facility already owned by Pipe or over which Pipe has existing rights sufficient to ground the right of maintenance (if it otherwise applies) of what clause 7(3) calls the “original facility”.

The second aspect of the Court of Appeal’s decision negated the assumption made in relation to the first part of its decision that the definition of “facility” included the structure on which it rested. As to this, the Court decided (emphasis added):

This second aspect of the Court of Appeal’s decision has no bearing in the present case because, again, there is neither a dispute about the Equipment being a “facility” nor any suggestion that the MDU, being the structure to which the Equipment is attached, becomes part of the “facility”.

In summary, for present purposes the decision in Hurstville confirms that the principle in Coco applies to the construction of Clause 7 (and the Court finds is equally applicable to Clause 6) and that, because Pipe owned or otherwise has existing rights in relation to the Equipment, Clause 7 (and Clause 6) will operate if the plugging in and drawing of power in relation to the Equipment are acts which fall within either of those clauses as a matter of construction.

Although reproduced earlier, for convenience I again set out the relevant parts of Clause 6:

The structure of the clause produces the following analysis:

The analysis in the previous paragraph makes it clear that it is inapt to refer to clause 6(2) as somehow expanding, or saying anything at all about, the meaning of “installation”. The necessary inquiry is whether “a particular activity” is authorised as being part of the carrying out the installation of a facility. The rules of statutory construction require “installation” in the context of “carry out the installation of a facility” to be given its natural and ordinary or grammatical meaning (the terms are interchangeable), unless something in the Act or elsewhere compels otherwise. Nothing in this case compels otherwise. That meaning is then extended by taking into account the non-exhaustive inclusionary definition in clause 2, which for convenience I set out again:

Therefore, for any “particular activity” to be authorised by clause 6, that activity must fall within the natural and ordinary meaning of “installation” or, more precisely, “carry out the installation of the facility” or any of the matters within the inclusionary definition in clause 2. If the “particular activity” is such an activity, then clause 6(1) is the source of power to carry it out generally. Clause 6(2) is an additional source of power whereby the legislature has expressly authorised certain conduct in connection with the carrying out of that activity that would otherwise constitute, amongst other things, the tort of trespass to land. In other words, the conduct authorised by clause 6(2) is an incident or subset of what a carrier is empowered to do by clause 6(1) to “carry out the installation of a facility”.

Against this background, the question in this case becomes whether plugging the Equipment into a power socket and then drawing power falls within the natural and ordinary meaning of “carry out the installation of a facility” either in its own terms or taking into account the inclusionary definition in clause 2. As stated in paragraph [62] above, the Court will deal with these two actions separately.

The etymological meaning of “install’ is “to place in a stall, seat or office” (W.W. Skeat, An Etymological Dictionary of the English Language, Oxford, 1882). The word, and its cognate “installation”, has progressed from its medieval origins of placing someone into a position or office by reference to sitting in a seat to its modern meaning of “the act of installing” (Macquarie Dictionary 6th ed). To “install” means “to place in position for service or use, as a system of electric lighting, etc” (Macquarie Dictionary, 6th ed). Another modern definition of “installation” is “the action of setting up or fixing in position for service or use (machinery, apparatus, or the like) …; spec. used to include all the necessary plant, materials and work required to equip rooms or buildings with electric light” (Oxford English Dictionary, online edition).

Those definitions support, and the Court finds, that plugging the Equipment into the power socket falls within the meaning of “installation”. A prosaic example is sufficient to make the point. If a householder arranges for a washing machine to be delivered and installed, the ordinary meaning of “installation” is such that the householder would be entitled to expect more than just the machine being unpacked and placed in his or her laundry. “Installation” in that context (and in the case of the Equipment) clearly encompasses connection to the power supply.

On this view it is not necessary to have recourse to the inclusionary definition in clause 2. However, plugging the machine into the power socket also satisfies two aspects of that definition, being both “the attachment of the facility to … any building” and as an activity that is “ancillary or incidental to the installation of the facility” (the activity to which it is ancillary or incidental being the placing of the Equipment in position for use).

Having regard to the meaning of “installation” as the Court has found it, the subsequent drawing of power falls into a different category. “Installation” in the context of “carry out the installation of a facility” does not extend in either its natural and ordinary meaning or by recourse to the inclusionary definition in clause 2 to the drawing of power. The drawing of power is an incident of the operation of the Equipment. “Installation” stops at the point when the Equipment is ready to be used or operated.

In relation to both plugging the Equipment in and drawing power some argument was directed by Pipe to the applicability of the power to “do anything necessary or desirable for those purposes” in clause 6(2)(b). Having regard to the conclusion in paragraph [79], it is not necessary to consider that argument in relation to plugging the equipment into a socket. But it might be argued that if plugging the equipment into the socket is authorised as part of “carry(ing) out the installation of a facility”, then drawing power is authorised by clause 6(2)(b).

However, even assuming drawing power is done “on …the land” for the purposes of clause 6(2)(b), that clause does not authorise the drawing of power. That is because it authorises the doing of “anything necessary or desirable for those purposes”, “those purposes” being “purposes in connection with the carrying out of that activity”, being the “particular activity” authorised by clause 6(1). On this analysis that particular activity is plugging the Equipment into the socket. Drawing power is not something done “for purposes in connection with the carrying out of that activity” because plugging the Equipment into the socket can be done (and, for safety reasons, would normally be done) and completed without drawing power.

In summary, the Court concludes that plugging the Equipment into a power socket in the MDU is authorised by clause 6. However, that clause does not authorise the drawing of power once the Equipment has been plugged into the socket. Those conclusions have been reached by reference to the natural and ordinary meaning of “installation” in the context of “carry out the installation of a facility” or, alternatively, if necessary with recourse to the inclusionary definition of “installation” in clause 2. If there were any ambiguity as to whether the expression extended to the drawing down of power, then the same result would be reached by the application of the principle in Coco.

The drafting structure of clause 7 is not identical to clause 6. While clause 7 has already been set out above, for convenience I will set it out again.

Clause 7(1) confers the power on a carrier to “at any time, maintain a facility”. In the first instance the scope of the power to “maintain” will be determined by the natural and ordinary meaning of “maintain” unless there is anything in the Act or elsewhere to justify some other meaning. That latter qualification does not apply in this case. However, the natural and ordinary meaning of “maintain” is also extended to include the conduct referred to in clause 7(3).

If particular conduct falls within the natural and ordinary meaning of “maintain” or its extended meaning set out in clause 7(3), then clause 7(2) permits the carrier to “do anything necessary or desirable for the purpose of” that conduct. Engaging in that conduct will necessarily constitute “exercising powers under” clause 7(1). Clause 7(2) expressly refers to certain conduct which would otherwise be tortious or criminal e.g. removing a fence could amount, among other things, to conversion or theft.

The use of the words “including (but not limited to)” in clause 7(2) makes it clear that the examples in that sub-clause do not limit the conduct which the sub-clause authorises. No submission was made about, and nothing turns on, the apparent inconsistency in clause 7(2) using the expression “including (but not limited to)” and clause 7(3) using the word “includes”. Because of the conclusions which the Court has reached it is not necessary to decide whether those two expressions mean different things. However, were it necessary to do so, the Court would conclude that the use of “includes” in the context of clause 7(3) means “includes without limitation”. In other words, clause 7(3) extends, but does not limit, the natural and ordinary meaning of “maintain”.

The Macquarie Dictionary (6th ed) defines “to maintain” in several possibly relevant ways:

The Oxford English Dictionary (online edition) gives several possibly relevant meanings of “maintain” as a transitive verb:

Even among these possibilities for the grammatical meaning of “maintain” there is considerable scope for variation. Dictionaries are a starting point but not a substitute for the process of statutory interpretation (Provincial Insurance Australia Pty Ltd v Consolidated Wood Products Pty Ltd (1991) 25 NSWLR 541 at 560 (per Mahoney JA)). To determine which of those meanings is the legal or statutory meaning, being the meaning which gives effect to Parliament’s intention, requires recourse as part of the process of statutory construction to other matters. In this case those matters are the context in which the word appears and the principles in Coco. The particular tension which must be resolved is the extent to which “maintain” includes either or both of notions of the ordinary operation of the facility and keeping it in a state of good repair.

The answer to that dilemma is provided by the context to which the Court has referred in paragraph [63] above. Clause 7 appears as the third element of a trilogy consisting of inspection, installation and maintenance. When it is accepted, as the parties did, that the power to operate the Equipment as part of a telecommunications network came from elsewhere in the Act, then the conclusion is clear that in the context in which it appears “maintain” means keeping the facility in good repair. This is captured by the Macquarie Dictionary definition of keeping the facility in “due condition, operation or force” (emphasis added) or the Oxford English Dictionary definition of “to keep (a road, building, etc.) in repair; to take action to preserve (machine, etc.) in working order”.

That conclusion is fortified by the application of the principle in Coco. To include ordinary operation within the scope of the verb “maintain” would mean that clause 7 licensed a wider range of conduct which interfered with the rights of others. Where the narrower meaning, which the Court has identified, is available then, in accordance with Coco, it is to be preferred (see also paragraph [51] above).

Therefore, the initial connection of the Equipment to a power socket (as opposed to connecting and disconnecting the Equipment from the power socket in the course of repairing it) is not authorised by clause 7(1). Similarly, the drawing of power for the ordinary operation of the Equipment is also not authorised.

In reaching this conclusion, the Court accepts the force of NBN’s motoring analogy in relation to the word “maintain” (see paragraph [48] above). Putting the key into the ignition or filling a car with petrol do not fall within the ordinary meaning of “maintain”.

Support for this conclusion is also derived from the legislature’s choice of the catch all “maintenance” in clause 7(3) rather than, for example, “maintaining”. “Maintenance” in its ordinary usage connotes keeping something in repair or in good working order rather than operating it. The legislature’s choice of “maintenance” to refer back to “maintain” in clause 7(1) is an additional, clear contextual indication of the meaning of “maintain” which is to be preferred.

However, the conclusion expressed in the preceding paragraphs is not the final answer. The question remains whether the relevant conduct falls within any of the matters included as maintenance by clause 7(3). Pipe relied on two such sub-clauses.

First, reference was made to clause 7(3)(b), “the provisioning of the original facility with material or with information (whether in electronic form or otherwise)”. Pipe submitted that the “material” that was being provisioned was the electrons which made up the electricity that was being drawn. Mr Walker SC put these submissions with, in his own word, diffidence. That diffidence was justified.

“Provisioning” is derived from the verb “to provision” which means, for example, “to supply with provisions or stores” (Oxford English Dictionary, Online edition). That this meaning is correct is reinforced by its combination with “material”. Furthermore, “provisioning” has a connotation of being from resources which, as Mr Walker SC conceded, unless you were an Angevin king, were obtained other than by right or compulsion. In short, even in the context in which it appears, the expression “provisioning of the original facility with material” cannot on the ordinary or grammatical meaning of those words include the drawing down of power or the plugging in of the Equipment to a socket to the extent that action is necessary to draw that power.

In contradistinction to clause 7(3)(b), the full weight of Pipe’s submissions fell on clause 7(3)(c), “ensuring the proper functioning of the original facility”.

The starting point for construing clause 7(3)(c) is to recall that the legislature is to be taken to have been intended that all the words it has used have work to do. The consequence of that observation is that while there may be overlap with other conduct specified in clause 7(3), a construction is to be preferred which gives each of those sub-clauses work to do. Thus, while “ensuring the proper functioning of the original facility” may include repairing it and provisioning it, those latter matters are expressly provided for in sub-clauses (a) and (b).

To “ensure” means “to make certain the occurrence or arrival of (an event), or the attainment of (a result)” (Oxford English Dictionary, online edition) or “to make sure or certain to come, occur, etc” (Macquarie Dictionary, 6th ed). “Functioning” is synonymous with “operation”. Therefore, any conduct which makes certain the proper functioning or operation of the Equipment will be included within the power to “maintain” the Equipment under clause 7(1) by operation of clause 7(3).

The drawing of power to the Equipment is obviously conduct which ensures its proper functioning. That necessarily also includes plugging the Equipment into a power point. Alternatively, if the conduct authorised by clause 7(1) is the drawing of power, then plugging the Equipment into an available power point is “necessary or desirable for the purpose of exercising” that power under sub-clause (1) and is therefore authorised by clause 7(2). In reaching this conclusion, the court disagrees with NBN’s car analogy (see paragraph [48] above) insofar as it suggests that filling a car with petrol does not fall within the ordinary or grammatical meaning of “ensuring the proper functioning” of the car.

In summary, the Court concludes that clause 7(3)(c) together, if necessary, with clause 7(2) entitles Pipe to plug the Equipment into an available power socket of the MDU and draw power from it for the Equipment. The language of clause 7(3)(c) is clear such that there is no ambiguity as would invoke the application of Coco.

For completeness, the Court will now consider some of the other arguments put by NBN, although they make no difference to the ultimate outcome.

It will be apparent from the way in which the Court has analysed clauses 6 and 7 that it does not accept NBN’s submission that clause 6(2) illuminates the ordinary meaning of “installation” in clause 6(1) or that clause 7(3) illuminates the ordinary meaning of “maintain” in clause 7(1). In relation to clause 6 the matters set out in clause 6(2) only engage if the particular activity falls within the either the ordinary or grammatical meaning of “installation” or its inclusionary definition in clause 2. Similarly, clause 7(3) is a separate and additional source of content for “maintain” in clause 7(1).

The Court accepts NBN’s submissions that Commonwealth Super is not authority for a “broad based interpretation of clause 6” and that, in the absence of evidence, the objects of the Act are of no real assistance in determining the proper construction of clauses 6 and 7.

NBN was correct to submit that the compensation provision in clause 42 cannot be called in aid to construe clauses 6 and 7. The first question to be determined is whether particular conduct is authorised under one of those clauses. It then becomes an issue of construing clause 42 to ascertain whether compensation is payable.

However, for the reasons next set out the Court does not accept NBN’s submission that it is doubtful that the liability of the owner or occupier of the MDU to their power supplier to pay for power used by the Equipment constituted a financial loss or damage of the kind referred to in clause 42. Although reproduced above, I set out clause 42 again for convenience:

The Court accepts Pipe’s submission that clause 42, as a compensation clause, would be interpreted beneficially. Accordingly, the expression “financial loss or damage” would not be given a restrictive interpretation. Furthermore, the beneficial approach would reinforce the proposition that the words “in relation to” where they appear in clause 42 would be interpreted as connoting a broad connection, not necessarily causal (see P. Herzfeld, T. Prince and S. Tully, Interpretation and use of Legal Sources, Thomson Reuters, 2013 at [25.1.1400]).

The parties agreed that electricity was, after it had passed the MDU’s meter, property or goods: AGL Victoria Pty Ltd v Lockwood (2003) 10 VR 596 at [71]. Pipe’s use of the MDU’s electricity would give rise to “financial loss or damage” because the MDU would have a corresponding obligation to pay its supplier for electricity which the MDU did not cause or consent to be consumed and from which it did not derive a benefit. The property in relation to which that financial loss or damage would be suffered for the purposes of clause 42(1)(a) or (b) would be both the electricity and the physical matters such as the socket and electrical wiring. Compensation would also be payable pursuant to the extended definition in clause 42(2)(b) referring to “the taking of sand, soil, stone, gravel, timber, water and other things” because the electricity would be an “other thing”.

Finally, NBN suggested that insofar as Pipe’s conduct in drawing the MDU’s power breached State or Territory criminal laws, these were not excluded by the exemption in clause 37 (see paragraph [28] above). NBN provided the Court with a list of such laws which included, for example, s 64 of the Electricity Supply Act 1995 (NSW) which provides that “a person must not extract, cause to be wasted or diverted, consume or use any electricity from a generating, transmission or distribution system unless authorised to do so under a wholesale supply arrangement or customer retail contract”. However, the Court accepts Pipe’s submission that such laws fall within the exemption in clause 37(2)(h) as the “law of a State or Territory about the supply of fuel or power, including the supply and distribution of extra-low voltage power systems”.

Finally, the Court does not accept NBN’s submission that Pipe’s construction gives rise to practical difficulties (see paragraph [54] above). In the absence of evidence about the reality of such postulated practical difficulties the Court makes two observations. First, none of the supposed practical difficulties appears to be so serious as to militate against the construction which the Court has found. Second, common sense suggests that the practical difficulties of the kind posited by NBN are able to be resolved by practical solutions in the light of a carrier’s powers as the Court has found them to be under clauses 6 and 7.

NBN is not entitled to the first claim for relief in the Summons. The Court will hear the parties as to what orders should be made to give effect to these reasons, including in relation to the proceedings generally, and as to costs.