Tin Siew Tan v Papua New Guinea Electricity Commission (2002) SC683

• Jurisdiction: Papua New Guinea
• Judge: Los J, Jalina J, Sevua J
• Judgment Date: 01 May 2002
• Court: Supreme Court
• Citation: (2002) SC683
• Year: 2002
• Judgement Number: SC683

Full Title: Tin Siew Tan v Papua New Guinea Electricity Commission (2002) SC683

Supreme Court: Los J, Jalina J, Sevua J

Judgment Delivered: 1 May 2002

SC683

PAPUA NEW GUINEA

[In the Supreme Court of Justice]

SCA 66 of 2000

BETWEEN

TIN SIEW TAN

Appellant

AND

PAPUA NEW GUINEA ELECTRICITY COMMISSION

Respondent

Waigani : Los, Jalina & Sevua, JJ

2001 : 28th August &

2002 : 1st May

Practice and Procedure – Declaratory orders – Whether grant of declaration would resolve dispute between parties – Grant or refusal of declaratory order discretionary.

Cases cited:

Dent v. Thomas Kavali [1981] PNGLR 488.

National Capital District Interim Commission v. Bogibada Holdings Pty Ltd [1987] PNGLR 135.

C. Coady for Appellant

S. Kassman for Respondent

26th April 2002

BY THE COURT : The appellant appeals against the decision of His Honour, the learned Deputy Chief Justice, given on 3rd November, 2000 in relation to National Court proceedings, OS 374 of 2000.

In its originating summons in the Court below, the appellant (plaintiff) claimed the following relief:-

1. An injunction both interlocutory and permanent to restrain the defendant (respondent) by itself, its servants or howsoever otherwise from disconnecting, interrupting or interfering with the continuous power supply to Installation No. 60-6311-09400 at Allotment 2, Section 143, Tokarara, the property of the plaintiff.

2. A declaration that the Papua New Guinea Electricity Commission does not have legal authority to back charge a consumer of electricity based upon an estimate by the Papua New Guinea Electricity Commission of electricity consumption.

3. A declaration that the alleged assessment of electricity to the aforesaid installation at Allotment 2, Section 143, Tokarara, in a amount of K84,066.58 is not a valid charge of electricity to the electrical installation.

4. Damages

5. Further or other relief.

The factual background of this claim are contained in the respondent’s letter of 9th February, 1998 to the plaintiff, which is marked Annexure “A” to the affidavits of David Woodly, sworn on 28th September, 2000 and Neil Whiting, sworn on the same day and both filed on behalf of the appellant.

In summary, the respondent carried out a Meter Survey Project in Port Moresby in 1995. During that survey, it discovered that Meter No. EC 87326 on Installation No. 60 – 6311 – 09400 at Section 143, Allotment 2, Tokarara was faulty. The meter was not registering the correct volume of electricity being consumed at that premises. The fault was detected on the Meter Test Block Terminals which had the three phase current links bridged or shorted. It was discovered that although all three phase current link screws were not fully tightened, the meter disc was still rotating and registering power consumption. The result of that was that the loosely fastened screws only permitted a portion of electricity supply from all the three phase supply to flow through the meter to be registered.

Previously, the plaintiff’s shop at that location had five individual meters, which were recording power consumption to five different sections of the shop. Those five individual meters were removed and replaced with the bulk current transfer or CT meter for the whole building on 8th November, 1991. The fault was rectified and subsequent tests conducted showed that the meter was operating normally.

A review of the appellant’s electricity account after the fault had been rectified revealed that the appellant’s power consumption had increased from 346.86 kwh units to 691.84 kwh units during the fault period between 8th November, 1991 and 3rd June 1995. The respondent therefore said it had been under billing the appellant by 344.98 kwh units per day. As a result of the fault, the respondent calculated a back billing for the period 8th November, 1991 to 3rd June, 1995, which period it said, the appellant had been under charged by 451,856 kwh units, which in monetary term, translated to K83,141.54, with sales tax of K925.04, totalling K84,066.85. That amount was forwarded to the appellant to settle.

However, the appellant disputed the undercharge and refused to settle the account resulting in the respondent’s threat to disconnect electricity supply to the appellant’s property, and instituting legal proceedings to recover the sum claimed. The respondent also threatened to prosecute the appellant under s.45(2)(ii) and (iii) of the Electricity Commission Act.

The parties did not reach an amicable settlement therefore the appellant filed the originating summons we have alluded to. His Honour, the Deputy Chief Justice dismissed the summons with costs on 3rd November, 2000, hence this appeal.

The grounds of appeal are:-

1. The Honourable trial Judge erred in law in failing to find that the provisions of Section 18 of the Electricity Commission (Conditions of Supply) By Laws prohibited the Electricity Commission from rendering an account for electricity consumption:

(a) other than consumption recorded on a meter installed in connection with the installation in respect of which the account is rendered; or

(b) based on an estimate of consumption made otherwise than by reference to actual meter readings for the period of consumption.

when the provisions of the Electricity Commission Act and the Electricity Commission (Conditions of Supply) By Laws made mandatory the requirements of accounts to be based on actual meter readings for the period of consumption.

2. The Honourable trial Judge erred in law in finding that a declaration in the form sought by the appellant and based on undisputed facts would not have resolved the issues in dispute between the parties, as such a declaration would have created an issue estoppel between the parties on the Electricity Commission’s estimate of consumption made contrary to Section 18 of the Electricity Commission (Conditions of Supply) By Laws.

3. The Honourable trial Judge erred in law in finding that any issue as to the actual consumption at the installation between the period January 1991 to June 1995 arose by reference to Section 20 of the Electricity Commission Conditions of Supply By Laws when Section 20 is only evoked by an application by the Consumer for a reading of the meter under Section 19 of the Electricity Commission (Conditions of Supply) By Laws and no such application was made.

4. The Honourable trial Judge erred in law in failing to find that the Declarations sought were appropriate relief in the circumstances and ought to be made and he took into account inappropriate matters and failed to take into account all appropriate matters whereby the Judge’s direction was miscarried.

PARTICULARS

(a) Taking into consideration at a late stage of the proceedings an alleged intention of the respondent to commence criminal prosecution for tampering when such prosecution was time barred by Section 36 of the District Courts Act;

(b) Taking into consideration that the proceedings could and or should be dealt with by a writ of summons at the suit of the respondent when –

1. The Respondent had for over five years failed or neglected to commence such an action nor to commence a cross claim in the proceedings appealed from;

2. The Respondent was barred from such a...