Manboom Pty Ltd atf the Outdoor Signage Unit Trust v Jemena Gas Networks (NSW) Ltd

Since September 2021, the second plaintiff, Outdoor Signage Pty Ltd, who I will call the “Owner”, has been the registered proprietor of property adjacent to Qantas Drive in Mascot (the “Property”).

There is contained within the Property, underground, a gas network comprising distribution pipelines and other gas works. I will refer to this network as the “Gas Assets”. The Gas Assets distribute natural gas to approximately 1.6 million residential and industrial sites across NSW.

The Gas Assets were installed in the Property by Jemena’s predecessor, The Australian Gas Light Company (“AGL”). In 1976 AGL installed a primary gas pipeline and associated infrastructure, and in 1982 installed a secondary gas pipeline and associated infrastructure.

At the time that AGL installed the Gas Assets at the Property, the Property was owned by the Commissioner for Railways (the “Commissioner”).

AGL installed the Gas Assets pursuant to a written licence with the Commissioner pursuant to which the Commissioner could require AGL to remove the Gas Assets on one month’s notice in writing.

In January 1986, the defendant, Jemena Gas Networks (NSW) Ltd, became the owner of the Gas Assets.

On 5 June 1987, some 18 months after Jemena acquired the Gas Assets, the licence between the Commissioner and AGL terminated when the Commissioner’s statutory successor, the State Rail Authority, sold the Property to a third party.

The State Rail Authority retained title to a stratum through the centre of the Property, through which a freight railway line operates.

The third party sold the Property to the first plaintiff, Manboom Pty Ltd, in September 1995. Manboom transferred the Property to the Owner in September 2021.

None of these parties entered a replacement licence agreement with Jemena.

Manboom and the Owner contend that the presence of the Gas Assets on the Property following termination of the licence is a continuing and actionable trespass, that they have thereby suffered loss, and that the Gas Assets should be removed.

In December 2021, Manboom served written notice on Jemena to remove the Gas Assets from the Property.

On 26 May 2023, Manboom and the Owner commenced these proceedings seeking orders that Jemena remove the Gas Assets from the Property, make good all damage to the Property caused by such removal and pay damages.

By December 2023, the matter had proceeded to the stage where Jemena had filed its Amended Commercial List Response.

In its Amended Commercial List Response, Jemena alleged that, amongst other things, it had a defence of statutory authority which it contends to be a complete answer to the Owner’s trespass claim.

On 19 December 2023, Jemena filed a Notice of Motion seeking to have that question determined as a separate question under Uniform Civil Procedure Rules 2005 (NSW) (“UCPR”) r 28.2.

As originally formulated, the proposed separate question was:

There have since been a number of iterations of the proposed separate question.

In oral argument on 5 April 2024, Mr Robertson SC, who appeared with Mr Robertson for Jemena, submitted that Jemena’s defence of statutory authority relied on, as was then alleged in its Amended Commercial List Response, amongst other statutes, the Australian Gas Light Company Act 1837 (NSW) (the “1837 Act”), the Australian Gas Light Company (Amendment) Act 1858 (NSW) (the “1858 Act”) and the Gas Supply Act 1996 (NSW) (the “1996 Act”). The latter statute commenced operation on 12 July 1996.

In response, Mr Henry SC, who appeared with Mr Delany for the Owner, submitted that one reason the proposed question was not suitable for separate determination was that potentially disputable factual questions would arise in relation to the applicability of the 1837 Act, namely the manner in which the expression “way, road, street, lane, or other public place or passage” in s 52 of that Act should be construed.

That led to Jemena seeking to amend the separate question, and indeed filing a Further Amended Commercial List Response, to refer only to the 1996 Act.

Thus, the next iteration of the proposed separate question was:

There was a third iteration:

In response, Mr Henry and Mr Delany submitted:

That led to this rejoinder from Mr Robertson:

It also led to a reformulation of the separate question, now once again to rely on the 1837 Act and the 1858 Act, as well as the 1996 Act, as follows:

Mr Robertson submitted that no factual questions would thereby arise. He submitted:

Many facts are agreed, but now that Jemena eschews reliance only on the 1996 Act in relation to its statutory authority defence and, once again, seeks to call in aid the 1837 Act and the 1858 Act, the issue Mr Henry raised that I have set out at [20] will arise. This shows that there is now a dispute between the parties as to whether any factual questions would arise on the hearing of the question now posed for separate determination. That, alone, is a reason not to order a separate question.

There are other reasons not to order a separate question; in particular, what I see as the near certainty of an appeal from a determination of the proposed separate question with all the potential complications and inefficiencies that would thereby arise, and which are a familiar reason for declining to order a separate question. [1]

I refuse to order a separate question. Jemena’s Notice of Motion of 19 December 2023 is dismissed with costs.

I stand the matter over for further directions on 3 May 2024.