Alinta LGA Limited (Formerly The Australian Gas Light Company) & Anor v Mine Subsidence Board
[2008] HCATrans 71
[2008] HCATrans 071
IN THE HIGH COURT OF AUSTRALIA
Office of the Registry
Sydney No S520 of 2007
B e t w e e n -
ALINTA LGA LIMITED (FORMERLY THE AUSTRALIAN GAS LIGHT COMPANY)
First Appellant
ALINTA AGN LIMITED (FORMERLY AGL GAS NETWORKS LIMITED)
Second Appellant
and
MINE SUBSIDENCE BOARD
Respondent
GUMMOW J
HAYNE J
HEYDON J
CRENNAN J
KIEFEL J
TRANSCRIPT OF PROCEEDINGS
AT CANBERRA ON THURSDAY, 7 FEBRUARY 2008, AT 10.04 AM
Copyright in the High Court of Australia
MR J.T. GLEESON: May it please the Court, I appear with MR J.R. WILLIAMS for the appellants. (instructed by Freehills)
MR M.J. LEEMING, SC: May it please the Court, I appear with my learned friend, MR S.J. FREE, for the respondent. (instructed by Crown Solicitor’s Office - Sydney)
GUMMOW J: Yes, Mr Gleeson.
MR GLEESON: Your Honours, the order I would seek to follow is in three stages: firstly, to look at what we submit are the two relevant operative statutes, that is both the Mines Subsidence Compensation Act and the Land and Environment Court Act, in order to ascertain what is the scope of the jurisdiction conferred on the Court. We submit both Acts need to be considered, especially section 39 of the latter Act. That is the first matter, your Honour.
Our essential proposition is that when one reads both Acts together the Court has been given an original de novo jurisdiction to decide through the judicial power a controversy or matter which previously has been decided by the Board through the exercise of administrative power and the matter is what payment, if any, is the claimant entitled to from the fund having regard to all the provisions of the MSC Act. Your Honour, that is the first matter we wish to deal with.
The second matter will be the legislative history, to submit that that legislative history explains why section 12B has two limbs to it. The third matter will be to look at the facts of our case, which fortunately raise no real controversies, to show that if we are correct on one and two then Justice Hodgson correctly applied the law to those facts.
GUMMOW J: All right. Well, we should start with the Subsidence Act, I think.
MR GLEESON: Yes, your Honours. In the bundle we have provided to your Honours at tab 1 ‑ ‑ ‑
GUMMOW J: Yes, we have a useful booklet. We need to know something first about Mr Leeming’s client, I suppose.
MR GLEESON: Mr Leeming’s client, the Board, is constituted under section 5 as a board which under section 5(1A) is subject to the control of the Minister.
GUMMOW J: We have to look at section 6, too, do we not?
MR GLEESON: Yes, your Honours, in section 6 one sees its nature as a body corporate, a body which may make the use of employees of the Public Service. Under section 6(4) a body that is bound to keep minutes of decisions, and under section 7 a body that can delegate matters and perhaps finally, under section 7A, a body which may reconsider matters previously dealt with by it, save that where it is taking away rights, it must have the consent of the party affected.
GUMMOW J: Do we find a section which identifies the jurisdiction of the Board?
MR GLEESON: Yes, your Honour. Relevantly, for our matter, the jurisdiction, we submit, is found in section 12(2)(b), namely that provided a notification has been received which complies with paragraph (a), then what must occur is that there must be an investigation of the claim, there must be a report and the matter must be placed before the Board, and these are the critical words we emphasise:
for a decision as to the payment, if any, to be allowed in respect of the damage to which such notification relates.
GUMMOW J: It is a rather indirect way of doing it. You say that is the conferral of jurisdictional power on the Board?
MR GLEESON: Yes. Our critical point, at its simplest, is that in carrying out that statutory mandate, the Board is obliged to observe the various provisions of the Act which define and limit claims which can be paid from the fund.
GUMMOW J: Does that not then bring us to section 15(5)?
MR GLEESON: It will bring us to that section amongst others, your Honours. If your Honour would permit me to indicate the ‑ ‑ ‑
GUMMOW J: Let me explain to you my problem. Subsection (5) is introduced by the words:
Where any improvement has been erected or altered or subdivision has been made in contravention of this section . . .
(b) no claim shall be entertained –
Now, on the grant of leave we raised, I think, with you what this word “entertained” means. May it not convey a withdrawal of what otherwise would be the conferral of the jurisdiction which you say is under 12(2)(b)?
MR GLEESON: We would say not, your Honour, for two reasons. Firstly, that the ‑ ‑ ‑
GUMMOW J: If I can just say, if that is so – and I am not suggesting you agree with it – this is the sort of issue that arises here as to contravention, something to be exposed to judicial scrutiny on a mandamus application.
MR GLEESON: Our answer to those questions, the first question is no and as to the second, whether it would be available on mandamus, our submission is it is available on the appeal. Can I elaborate on those. As to the first matter, when one looks at section 12(2)(b) where we started, our proposition is that once there is a valid notification, the duty of the Board to investigate, report and then make a decision is a duty which extends to all of the questions concerning the definition ‑ ‑ ‑
GUMMOW J: Including existence of its own jurisdiction?
MR GLEESON: Including questions which, although worded with that phrase, are in substance a definition or limitation of the right. Can I just give your Honours some examples of that. If your Honours go back to section 12(1), claims can be made in two broad areas. Section 12(1) are claims for compensation for damage to improvements arising from subsidence. Paragraphs (b) and (c) provide for ancillary losses and paragraph (d) provides for damage to your household effects from subsidence. That is the first broad subject matter of claims.
GUMMOW J: Are you looking at 12(1)?
MR GLEESON: Section 12(1).
GUMMOW J: All right. That contains in the penultimate paragraph the expression “No claim shall be entertained”.
MR GLEESON: Yes, I am now coming to the five, as we say, limitations on it which are expressed in different ways.
GUMMOW J: It is that word “entertained” again.
MR GLEESON: I understand your Honour’s question. If your Honours were to look at section 12(1)(a), even within section 12(1)(a) there is already a limitation provided, namely, that if the subsidence is due to your operations that is then carved out from the valid subject matter of a claim. So we submit that is the first limitation which the Board would be considering, amongst others, namely, is it owner induced subsidence. That first limitation your Honours will see repeated at the end of section 12(1)(d).
The second limitation which uses this language of “shall not entertain or pay” is found then as the next paragraph within section 12(1). It commences with those words:
No claim shall be entertained or payment made under this Act in respect of any improvement –
where, under the 1928 Act, which we have provided your Honours a copy of, it was subject to a conditional right to ensuring the conditions were not complied with. The ascertainment of that limitation involves a question of fact; was there a condition of your insurance under the old Act that you did not comply with? The Board has to consider that question. If the Board considers there was a contravention, your Honours see at the end of that paragraph there is then a relaxation of the limitation, namely if:
the Board is satisfied that any departure –
is minor, in effect, then that limitation no longer operates. So there we have what we would call the second limitation on the basic right. It is one where the language of “shall not entertain or pay” is used. A question of fact is necessarily involved; did you breach your conditions? But even if you did, there is then a discretionary judgment in the Board to determine whether to overlook that non‑compliance.
Now, we would submit – and I will in due course – that once the appeal occurs to the court, part of the court’s jurisdiction is to consider those questions which may arise under this second limitation, including the court will have the power under section 39 of the Land and Environment Court Act to determine whether it is satisfied that any departure can be overlooked. If your Honours go to the next paragraph we come to the third fetter or the third limitation. That is that where the damage is, in effect ‑ ‑ ‑
GUMMOW J: Does “may” mean “must” there?
MR GLEESON: In our submission, your Honour, it does by reason of the reasoning four of your Honours gave in Leach v The Queen. We have provided a copy of that to your Honours.
GUMMOW J: What is the citation of Leach?
MR GLEESON: That is reported in (2007) 232 ALR 325 at paragraphs [38] to [39]. “May”, we submit, means “must” because what in fact is involved is the Board must, picking up the last few lines, give consideration to what amount of your damage is due to your negligence. Having made that judgment as to an amount, we submit it would follow that there is no further discretionary exercise to be carried out. Rather the quantum of the claim is to be reduced by that amount.
So what your Honours there see is in slightly different language, a third limitation on the basic right, one which we submit once the Board is satisfied of the fact it must apply. Again, we would be arguing that in the appeal, where such an issue arose it would be for the court to ask itself, “Do I consider that the amount is due to negligence?”
Your Honours, the fourth limitation is found in subsection (1A). It is a slight variation on the “entertain” problem. This time, if the Board is satisfied that the cause of the damage is the carrying on of an extractive industry, the language is:
the Board may refuse to entertain a claim, or make a payment –
We would submit there again “may” means “must”, that is, once you form the satisfaction that it was an extractive industry which caused the subsidence that will be the end of the claim. So that although it is there “may refuse” it is effectively working the same way as in what I have described as the second fetter or the second limitation and also the same way as in the final one which we will come to. Just before your Honours leave that subsection (1A) ‑ ‑ ‑
GUMMOW J: These provisions of section 12 you have taken us to, this reference to entertainment, the drafting is a bit obscure, but are they not all operating to cut down the conferral by 12(1)?
MR GLEESON: They are all operating to ‑ ‑ ‑
GUMMOW J: Claims may be made.
MR GLEESON: They are all operating, we would submit, to delimit ‑ ‑ ‑
GUMMOW J: This is saying, you can make it but the Board is not obliged to entertain it.
MR GLEESON: In our submission, your Honour, you make the claim which is fairly short form. That is paragraph 12(2)(a). You simply have to say, “I have suffered damage, here the damage, here is where the improvement was, and this is how much I seek”. Once you do that, your right to a payment from the fund will depend upon the correct answer in law to all of these questions as applicable to your case.
They are all parts, we would submit, of the delimitation of the right that you have, and so I just wanted to observe that in the last one we were looking at, the fourth fetter, which is subsection (1A), that in fact really covers very similar territory to the first fetter. It is an example of owner induced damage. So what in the first fetter was described as, at the end of paragraph (1)(a):
except where the subsidence is due to operations carried on by the owner –
is very closely mirrored by the fourth limitation where it is the carrying on of an extractive industry in connection with your improvements, with which your improvements were used that has caused the damage. So in terms of causation, it is in fact a limitation dealing with the causation issue. So, your Honour, having so far identified four limitations expressed in slightly different ways, when one comes to section 15 ‑ ‑ ‑
GUMMOW J: Did you take us to section 10?
MR GLEESON: Section 10, we rely upon as indicating under subsection (3)(a) that there is a right to have paid out of the fund amounts payable under the Act in respect of two categories. Firstly:
damage caused by subsidence –
That, we submit, picks up all of the provisions that we have been to in section 12, together with the limitation in section 15.
GUMMOW J: And 10(4)?
MR GLEESON: Your Honour, completing the second aspect of 10(3)(a) there is then a statutory right to have amounts which are “payable under section 12A”. Section 12A deals with the situation where you fear that subsidence will damage your pipeline and you wish to carry out preventative or mitigatory works. One of the errors in the Board’s approach is that it has treated section 12A as subject to section 15(5), which we will come to, whereas section 15(5)(b) in its language only relates back to the situation of damage caused by subsidence as opposed to ‑ ‑ ‑
GUMMOW J: Yes, your point is that 15(5)(b) would not apply to the special regime of 12A?
MR GLEESON: That is correct. So in the present case, so far as one can discern from the “reasons of the Board”, there were three issues under section 15(5)(b), if I can come to them. The first issue was, was your pipeline approved or not? If it was not approved, there is the rather startling proposition that the main pipeline from Moomba to Sydney has been an illegal construction since 1975, possible, but that was the issue of fact.
GUMMOW J: The question is, what do you mean by illegal? That is another worry in all of this.
MR GLEESON: Erected in contravention of ‑ ‑ ‑
GUMMOW J: There could not be an offence at this stage, could there, because there is 12 months, is there not, under 15(10)? Unless it is some continuing offence, I do not know.
MR GLEESON: Your Honour, there could be a consequence under section 15D, but to the extent that any further work were done on the pipeline, on the Board’s case it would be outside approval because there is no approval and there could be direction to stop the work. So it may still have significance.
GUMMOW J: There would be a fresh offence, that is the point, is it not, under 15D(2)?
MR GLEESON: Yes. So the first issue thrown up by 15(5)(b) is one of fact, was your pipeline approved? Now, on that issue the Alinta position was we cannot find the document to show approval. The Board did not produce a document of approval but it should be inferred through a range of facts. That is the first sub‑issue there.
GUMMOW J: The first question is, whose task is it to prove this one way or the other?
MR GLEESON: Yes, and if we are correct in our argument, and I realise I have to develop it fully, that the effect of the appeal right in section 39 is that we can have this question decided de novo before the Court, Alinta will be able to use the judicial process, including subpoenas to persons, production of documents and the like, and ask the Court to draw appropriate inferences on a judicial standard as to that question of approval. All that will be able to be done under section 39. So that is the first reason we are bothering, as it were.
Your Honours, the second issue under section 15(5)(b) is that assume Alinta is wrong on approval. There is then an ability to relax the limitation through the issue of the certificate under section 15B(3A). That power to decide whether to give the relieving certificate is one which in the first instance the Board exercises. In the present case they have exercised that against Alinta. Then, if we are correct, when the matter goes on appeal the court will have the full power of the Board under that section to decide whether to exercise the discretion to grant a certificate.
GUMMOW J: I am not blaming you for it, because it is in the statute, but it is not really an appeal, is it?
MR GLEESON: It is not an appeal at all, your Honour. We submit deliberately ‑ ‑ ‑
GUMMOW J: It is a statutory form of judicial review.
MR GLEESON: Yes, and then we submit that applying the Land and Environment Court Act it is judicial review on a de novo standard with a rehearing where the subject matter of the “decision below” becomes what the court is engaged with. It is in State jurisdiction, of course, not federal jurisdiction, but it does draw a close parallel with the position which prevailed under the Patents Act, the Income Tax Assessment Act and a close parallel with what this Court considered in a State jurisdiction context in Sperway.
GUMMOW J: A building case?
MR GLEESON: Yes. Your Honours, I will give the reference.
GUMMOW J: Sperway v Builders Licensing Board?
MR GLEESON: Yes. (1976) 135 CLR 616. That was the case where the statute conferred an appeal to the District Court against a decision by the Builders Licensing Board suspending a licence. In a case where the District Court Act was not ‑ ‑ ‑
GUMMOW J: It is notable because there is a lengthy discussion by Justice Mason as to what this word “appeal” can mean.
MR GLEESON: Yes. His Honour discussed the three categories of appeal; appeals stricto sensu, appeal by way of rehearing where there are still some limitations arising from the proceedings below, and then a true appeal de novo, which was the case there and, we submit, the case here under section 39. So, your Honours, just returning to section 15(5)(b), I have indicated that the second aspect that throws up is whether the discretion should be issued to give the claimant a certificate if it is found to be an unapproved improvement. Now, that is a second issue which arises, we would submit, first at the stage of the Board and then before the court.
The third issue which arises is the one we adverted to earlier which is the construction issue; does this section have anything to say to a claim under section 12A? We would submit not. The Board apparently has found to the contrary. That is apparent from the note of the Board’s reasons which is at page 145 of the appeal book.
GUMMOW J: This letter at 145, is that the material which constitutes the relevant decision by the Board?
MR GLEESON: The actual decision by the Board, the operative decision is probably the decision of 1 December which is found at page 132. I say that because the minutes of the ‑ ‑ ‑
GUMMOW J: Is there more dialogue?
MR GLEESON: None after that, your Honour, of relevance. The minutes which precede that decision are summarised at page 171, paragraph 33. So they just follow the letter, and then it would seem that on the construction of the 13 December letter, the Board is saying, “We adhere to the position we earlier took”, and that earlier position is what I showed your Honours at page 145.
So by that route we would submit that page 145 is the best evidence of the decision. The letter at 145 covers two matters. Firstly, the Board says it refuses “to reconsider its decision” not to give a certificate. That part of the letter is a decision by the Board, effectively under section 7A, together with 15B(3A), namely, I will not reconsider my earlier decision not to give you a certificate. Then for today’s purposes, it is really the simple paragraph under the heading, “AGL’s application for payment”. This, we submit, is a decision under section 12(2)(b) that you will receive nothing on your claim. It is a decision as ‑ ‑ ‑
GUMMOW J: They very cannily use the phrase “cannot be entertained”.
MR GLEESON: The legal and operative effect of these five lines is, in response to that claim you put in you will receive nil. That, we submit, is a decision made under section 12(2)(b), coming back to your Honour’s first question this morning, where is the source of jurisdiction. The legal effect of that decision while ever it stands, is it is unlawful to make a payment out of the fund on the claim. That decision stands unless it is either reconsidered under section 7A or the appeal is entertained.
Can I then observe something about the five lines. The first point is your Honours will have observed that where a board makes decisions under section 12(2)(b) there is no requirement in the statute that it give any reasons. Can I contrast that with the position under section 15B(5)? If the Board declines to give you a certificate, the most that you get are reasons under subsection (5) which may aid you in an application for reconsideration. However, when the Board is determining your claim for compensation under section 12(2)(b), all it must do, to use the language is make:
a decision as to the payment, if any, to be allowed –
Accordingly, this would have been an operative decision even if it did not include the particular language at page 145, if it merely said “In response to your claim we have decided a nil payment”. So that is the first point. This is a decision where no reasons have to be given.
KIEFEL J: In the letter of 14 October it said in the first complete paragraph that the reason for the Board’s decision in relation to the certificate “are set out in its letter of 29 July 2005”. Is that in the appeal book?
MR GLEESON: Yes, it is, your Honour. That letter is found at page 124. It is an interesting letter because if one compares it to the requirements of section 15B(3A), which has two limbs in it, the Board must be satisfied (a) that the improvement “would have met the requirements of subsection (3)” if you had obtained approval and (b) “it is appropriate” in the case to do so.
The Board seems to be hinging themselves on the second of those two matters. They do not seem to take an issue with the first. When one looks at the three reasons on page 124, Alinta has always taken the position that at least the second reason is clearly infected by error on any standard, namely, one of the reasons we are not giving you a certificate is because otherwise your claim for compensation may have to be paid. That is the very legal consequence of giving a certificate.
KIEFEL J: Do you say that Alinta is not in a position to challenge that decision as an independent decision?
MR GLEESON: We now accept that in the Court. As an independent decision, namely you do not get a certificate under section 15B, if that is all that it was, then within section 15B you get reasons and nothing more, but where you have a claim for compensation ‑ ‑ ‑
KIEFEL J: So you concede that you can have that decision reviewed?
MR GLEESON: Our position is that within the claim for compensation which we are making where there is a decision of a nil payment ‑ ‑ ‑
KIEFEL J: No, but go back one step. Why can you not review this decision in relation to the certificate?
MR GLEESON: The only section which confers an appeal right in the Act, leaving aside any separate prerogative risks ‑ ‑ ‑
KIEFEL J: But as Justice Gummow pointed out earlier, you are not limited to an appeal right. Why can you not have this reviewed for legal error?
MR GLEESON: If one could construct an application for a prerogative writ in respect to that letter and go to the Supreme Court then the answer is, yes, you could.
GUMMOW J: Now, is that Supreme Court jurisdiction taken away in any way by the so called “appeal structure” in this legislation, Environment Court legislation?
MR GLEESON: Our preferred position would be that if we are correct in our primary argument that once there is a decision as to a nil payment, you have a so‑called appeal where the court is seized of the whole matter.
GUMMOW J: I know that, Mr Gleeson.
MR GLEESON: If that be correct, your Honour, then our preferred position would be that a mandamus or certiorari jurisdiction is probably not expressly removed by the LEC Act, but is probably rendered unnecessary.
GUMMOW J: Do you know if there are time limits in the Supreme Court Rules, as we have some time limits in our Rules for some proceedings under 75(v)? Are there similar time limits, do you know, in the Supreme Court Rules?
MR GLEESON: I believe there are not, your Honour, but I will check that.
GUMMOW J: Perhaps that can be checked.
CRENNAN J: I suppose the unnecessary point might, of course, lead to the exercise of discretionary considerations adverse.
MR GLEESON: Yes. There is a real significance, of course, to the point that if we are entitled only to a prerogative writ, it might not be all that hard to think that paragraph (b) would be infected with legal error. However, the first stage of what the Board has done is to say “We find implicitly your pipeline was not approved” and to deal with that by way of a de novo hearing is a far more valuable and useful procedure than to attempt to find an error of law, et cetera, in that approach.
GUMMOW J: Some jurisdictional facts can themselves, as to their existence, give rise to factual disputes. It is a well‑known circumstance in the industrial jurisdiction for many years in this Court.
MR GLEESON: Yes, your Honour.
GUMMOW J: It is unfortunate, but that is the way it is.
MR GLEESON: Yes. Our proposition is that once one has something sufficiently final to be a decision which has the legal effect that you are not entitled to any money on your claim, you can bring your appeal and the court is seized of all issues. Your Honours, could I return to the letter at 145, just to those five lines. Having made the point that no reasons were required to be given, it follows that if the Board had simply said “Your claim will receive a nil payment”, we would submit that would clearly fall within the appeal right and the fact that they choose to indicate they have adopted a particular step of reasoning should not deprive us of the right.
GUMMOW J: What they are saying is, “We are not embarking on the question of how much you should be paid because we do not think we would get embarked on anything”.
MR GLEESON: Yes. If one spells out the syllogism with its implicit premises as well, the implicit and explicit syllogism becomes, “We find your pipeline was constructed without approval”. They do not say that, but that is a necessary premise. “We do not give you any reasons why we say that, but we either say that or we assume that”. Step two, “We have refused you the certificate which would solve the problem and as we have told you above in the letter, we are not going to reconsider that any more”. Step three, “We consider that that creates a bar to us entertaining any further your claim under section 12(1)”. That is implicit in the first two lines. Step four, “We also consider that it bars us entertaining your claim under section 12A for the preventative works and we do not give you reasons for that”. They are the four steps in the set of reasons that have been proffered.
GUMMOW J: They say the Board respectfully disagrees with you on the interpretation of 15(5)(b). What are they referring to there? Which passage in this letter that starts at 137?
MR GLEESON: It is reference to page 141 between lines 50 to 60 where Alinta had taken this point in the correspondence. So when we see the four aspects express and implied in the reasoning, true it is that this Board has got a conclusion that it must not go any further with the consideration of the claim. Our argument is that that is no different to the Board for any other reason deciding that the payment will be nil on the claim. Can I then move to the second topic, which is the legislative history, your Honours. Sorry, just before I do that, I have referred to the ‑ ‑ ‑
GUMMOW J: Do we not have to look at the Court Act?
MR GLEESON: The Court Act, yes. That is at tab 2. Section 16(1) says, “the jurisdiction vested in it by or under this or any other Act”. In section 19 there is a conferral of jurisdiction in class 3 “to hear and dispose of”, paragraph (f1):
appeals under section 12B of the Mine Subsidence Compensation Act 1961 –
It seems to be by combination of section 12B plus section 19(f1) that one gets to the jurisdiction. Your Honours, the reprint unfortunately omits pages 16 and 17 which contain – I will just mention it – section 22 which is a standard provision entitling the court to give all remedies necessary to resolve matters finally. Then if I could come to section ‑ ‑ ‑
GUMMOW J: There is an ancillary jurisdiction too, is there not?
MR GLEESON: There is an ancillary jurisdiction in section 16(1A).
GUMMOW J: Has that been tested, do you know? I have an idea it has.
MR GLEESON: Yes, it has, your Honour. I should be clear that we primarily are not invoking an ancillary jurisdiction in order to get what we seek within this appeal. We are invoking section 39(2) as indicated in the appeal. The Land and Environment Court has:
for the purpose of hearing and disposing of an appeal, have all the functions and discretions which the –
Board had and then we emphasise the final words, your Honours –
in respect of the matter the subject of the appeal.
The matter the subject of the appeal, we submit, is what is the payment, if any, to which the claimant is entitled from the fund and, accordingly one of the functions and discretions that the court has is, first, the function of deciding was our pipeline approved and, secondly, the discretion whether to give us a certificate under section 15B(3A). That was the approach which appealed to Justice Hodgson, we submit, correctly. Your Honours see that at page 211 at paragraph 15.
GUMMOW J: Section 39 is rather like a provision in the Administrative Appeal Tribunal Act, is it not, that provides for a full merits review?
MR GLEESON: Yes, it is, your Honour, and we would contrast it ‑ ‑ ‑
GUMMOW J: But here it is the court?
MR GLEESON: Yes, and it is of some importance that in ‑ ‑ ‑
GUMMOW J: I mean the Federal Appeals Tribunal Act.
MR GLEESON: Yes, and with the Land and Environment Court in classes 1, 2 and 3 it is what is colloquially called a merits jurisdiction and that is apparent from some later sections in the Act. I will just mention those. It is perhaps section 38 itself. Section 38 requires the proceedings to be conducted informally, “the Court is not bound by the rules of evidence”
and it may “obtain the assistance of” other persons, so that the judge often sits with an assessor.
So in the broadest possible manner one could imagine a conferral of a de novo jurisdiction, we have a court which has all the functions and discretions of the Board – that is subsection (2). Subsection (3) makes clear that it is a rehearing in the fullest sense with fresh evidence. Subsection (4) imposes a mandatory duty on the court to have regard to all Acts which would include every provision of the Mines Subsidence Act, the circumstances of the case and the public interest and, most significantly, your Honours, under subsection (5) the court’s decision is deemed to be the final decision of the Board and to be given effect to accordingly. In our argument, if the court says you are entitled to $50 on your claim, that becomes the operative decision under section 12(2)(b) of the MSC Act.
GUMMOW J: Where is that provision as to the effect of a court’s decision?
MR GLEESON: That is section 39(5). So that the matter which is the subject of the appeal is, what is the payment, if any, to which you are entitled out of the Act, if the court says $50, that becomes the decision back under section 12(2)(b) of the Mines Act and once that occurs, it then becomes lawful to have $50 paid out of the fund.
GUMMOW J: You took us to paragraph 15 of Justice Hodgson on page 211. What is the significance of paragraph 11 of his Honour’s reasons?
MR GLEESON: As I put it earlier in answer to your Honour’s question, that the better view would be that section 12B has not abolished or forbidden the right to seek mandamus. It is possible that that could be sought in an appropriate case, but because the appeal ‑ ‑ ‑
GUMMOW J: If there was a specific remedy provided, the mandamus might be declined for discretionary reasons.
MR GLEESON: Yes, and that is what his Honour was indicating in ‑ ‑ ‑
GUMMOW J: Is that what he is saying there?
MR GLEESON: When one reads 11 with 12 ‑ ‑ ‑
GUMMOW J: Your problem may be that you do not have a specific remedy.
MR GLEESON: We may well not have.
GUMMOW J: Mr Leeming says you do not, you see. We are going to ask him whether he says, if he is right, you would still have mandamus.
MR GLEESON: And what it is that we would have mandamus in respect of, because at the moment he would say they have carried out their duty to decide whether to give us a certificate under section 15B(3A). They have decided we are not entitled to one, there is nothing to be compelled. Our point is that under section 12(2)(b) ‑ ‑ ‑
GUMMOW J: There is something to be compelled. They have said they are not embarking on these questions because they are not entitled to embark on them. If the Chief Justice were here, he would say that is a possible point of view. Anyhow, I took you off your course and you have said what you want to say about paragraph 11.
MR GLEESON: Yes, your Honour, and I am seeking to indicate that because of section 39(5) and because the matter viewed properly is what payment, if any, are you entitled to from the fund, the court’s decision on that matter becomes the operative decision under section 12(2)(b) of the Mines Act and which then permits the payment to flow from the fund.
Your Honours, I want to give one practical example to test whether the words in question go to jurisdiction or whether they go to the right, as we would put it. If your Honours were to go back to section 12(1), let us assume a case where, when the Board first looks at the claim, two matters are staring the Board in the face. The first is that it looks like the owner caused the subsidence, 12(1)(a) the exception, and worse than that, over in section 12(1A) the owner was carrying out an extractive industry which caused the subsidence. That is the first issue staring the Board in the face.
The second issue staring the Board in the face is that the pipeline may not have been approved. We submit that there is nothing in the scheme of the Act which would prevent the Board saying, “There are those preliminary issues and, of course, many other issues as well, we are going to decide the question of whether this was owner induced subsidence, extractive industry induced subsidence first. It is just so clear, we will decide it, it is perfectly clear. We look at that, we find that it is, your payment is nil”. The Board then gives a decision “Your payment is nil”. That scenario, we would submit, would squarely trigger section 12B(b) of the appeal right. It would be a decision as to the amount of a payment from the fund.
GUMMOW J: Is not another way of looking at it that the contravention may not be something that can found a prosecution because too much time has passed under 15(10), but one of the consequences of the continuing illegality, if you use that expression, is that the party concerned is shut out what otherwise is this beneficial arrangement for compensation? Is that not the policy of the section?
MR GLEESON: That may well be the policy of the section, but it leaves aside the critical question, did the appeal right in section 12B intend to give the claimant a chance to have that aspect of the matter determined on the merits by the court through the exercise of the judicial power? Our critical point is that because the court is equally bound by all these provisions, that policy of the Act is one that binds the court. An example may well be, to give your Honours an example of further tweak, this point works both ways. Let us assume that the Board gives us a nil payment because they say we caused the subsidence, that is a nil payment, it attracts the appeal right, the matter goes to the court. The Board is perfectly free in the court to take the “illegality point”. The court is also bound by that Act in its policy and the Board is then free to say to the court, “We want to prove this was a non‑approved pipeline erected in contravention of the Act”. If the court were persuaded of that matter, then the court would be bound by section 15(5)(b) to reject the claim.
HAYNE J: Then what meaning or work are you assigning to the expression “No claim shall be entertained” as distinct from “no payment made under this Act”?
MR GLEESON: That in the circumstances which follow, namely, a finding that your pipeline was unapproved and that it is not appropriate to give you a certificate, then in those two circumstances your claim for compensation must receive a nil payment, must be rejected and must receive a nil payment and ‑ ‑ ‑
HAYNE J: That seems to me to give no separate work to the words “claim shall be entertained”, separate, that is, from the work that is being done by “no payment made under this Act”. It may be that the answer is, well, it is a composite expression in which words are simply there for emphasis or the like, but what do you say we make of this apparently disjunctive phrase?
MR GLEESON: Firstly, that it is being used for added emphasis, that these two matters are sufficient matters to mean the claim can be rejected, should be rejected, whatever be its other merits. Could I test your Honour’s example if we are in the court? Let us assume we have a nil payment decision, we are in the court, and it is a case where the Board had never taken the non‑approval point earlier. In the court, no one is bound by their position below. The Board says, “We have got a fundamental point. It was not approved”. What the court must do, in our submission, is consider that question of approval or not.
If it finds it is not approved, it must consider whether to give us a certificate. If it refuses to give us a certificate, those are necessary and sufficient conditions for the court to be able to say, “I am not required to deal with all the other aspects that might arise under your claim”. We fully accept that, your Honours, that if we are in the court, if we lose on approval, if we lose on the certificate, then our section 12(1) claim, not our 12(1A) claim, will then be one which the court will be entitled to say, “I am not to entertain this claim further and there will be no payment”.
KIEFEL J: Mr Gleeson, could you assist me with some background to the applications to the Board? Was the first application to it for the grant of a certificate and, if so, could you identify where that request is made?
MR GLEESON: Yes, your Honour. At page 54 of the appeal book, paragraph 14 of our submissions, the first request was for the certificate and at page 55 line 48 an intention to seek compensation was foreshadowed. At that stage the certificate was sought generically under section 15B. That is apparent at line 35.
KIEFEL J: When was the claim for compensation made?
MR GLEESON: On 28 September 2004, at page 56, a claim for compensation was made, paragraph 15 of our submissions.
KIEFEL J: The letter of 29 July 2005 at page 124 that you took us to before is a refusal only with respect to the certificate?
MR GLEESON: Yes.
KIEFEL J: Does it follow from paragraph (c) of that letter that the reason for refusal is delay?
MR GLEESON: That is one of three reasons that are proffered.
KIEFEL J: Is the preferred position of Alinta then in seeking to have this agitated in the Land and Environment Court to have these factual matters agitated?
MR GLEESON: Absolutely.
KIEFEL J: Because the refusal combines both factual and legal?
MR GLEESON: Factual and legal, including discretionary questions.
KIEFEL J: And would not be, therefore, amenable to mandamus?
MR GLEESON: Certain parts of it probably would not be amenable to mandamus. That is why we are pursuing ‑ ‑ ‑
GUMMOW J: Which parts?
MR GLEESON: A claim that in the discretion you refuse a certificate because we think you should have acted earlier would be difficult in bringing mandamus. Paragraph (c), for instance, would be difficult in challenging that in mandamus.
GUMMOW J: Paragraph (c) at page?
MR GLEESON: Page 124. As to paragraph (a), even if there is mandamus, which is questionable, it would not give us the same ability to say, we wish to have the factual question of approval determined de novo by a court on the facts drawing the inferences that we seek. That is something which we can only obtain through the de novo appeal.
GUMMOW J: Are you familiar with the South Hetton Case, Bellbird Collieries and so on. There is a whole lot of cases in this Court under section 75(v) where are all sorts of threshold questions had to be thrashed out in the industrial sphere.
MR GLEESON: Yes. Your Honours, the fundamental difference between us is we are saying that whatever be the precise language used, the sections that we are grappling with in the ‑ ‑ ‑
GUMMOW J: One would not be rushing, would one, to circumscribe the scope of prerogative relief?
MR GLEESON: True. Equally, we would be saying one would not be rushing to circumscribe the scope of an appeal from a decision as to the amount from the fund and, in particular, when one looks at the nature of the process before the Board – and this does take up Justice Mason’s point in the Builders Licensing Case – it is a process where there is no procedure for an oral or written hearing, there is no transcript, there is no record, there is no necessary evidence and there are no requirements for reasons. You simply get a decision under the statute as to how much, if any, you are entitled to.
When an appeal right in terms of section 12B says a decision as to the amount of the payment from the fund, we would submit that that has fairly clearly defined the subject matter; how much, if any, are you entitled to and ‑ ‑ ‑
GUMMOW J: I think it is said against you, it may be nil. It may be nil because that is the way the merits pan out or it may be nil because you do not get across the threshold. They are conceptually different notions, are they not? You have to coalesce them, I think. Maybe you are right in doing so, but I think you do.
MR GLEESON: If your Honours went back to the section which gave the jurisdiction to the Board, which was section 12(2)(b), that spoke of “a decision as to the payment, if any, to be allowed in respect of the damage”. It recognised the decision may be nil. We submit that that is the concept which has been directly taken up ‑ ‑ ‑
GUMMOW J: It may be nil for different reasons.
MR GLEESON: It may be nil for different reasons.
GUMMOW J: The reason given here was, we are not entitled to embark on the question. They did give a reason. They said, “We are not entitled”.
MR GLEESON: A reason which we wish to submit is infected by a range of errors, a whole range of errors, errors of pure construction of the statute, errors of fact, both primary fact and inferences from primary fact were we approved, errors in the exercise of a discretion which in turn involve questions of the purpose which the discretion has exercised, the use of the delay concept and the like. So they are the range of matters which they have chosen to adopt to produce a nil payment.
We wish to submit they were wrong in each of those areas: law, fact and discretion. We submit the purpose of 12B is once we get the answer, nil, we have one chance on the merits before a court to have all of those matters reviewed de novo by a court instead of what would produce, as Justice Hodgson said, the possibility of at least capricious and arbitrary distinctions that some parts of their reasoning have to be subjected to a prerogative writ standard, other parts can be subjected to a merits review standard. All of it seems to hinge upon the particular way they have chosen to get to a nil result, a way which we say is wrong in law and fact.
KIEFEL J: But that is it, you are talking about – when you say nil result, the way in which you are – in truth, what has happened is that the effect for you is no payment, but that does not mean that the decision is one which is considered and results in no payment. You are confusing effect and decision, are you not?
MR GLEESON: With respect, I differ from your Honour. Under section 12(2)(b) if one asks, what decision did we get in December 2004, the decision we got in respect to a claim for several millions of dollars was ‑ ‑ ‑
KIEFEL J: Is we will not think about payment. That was the decision, was it not?
MR GLEESON: The decision is nil because we consider, for reasons of law and fact, that we are entitled to stop before we get to every question on your claim. Your Honours, I submit it is not simply effect, it is the direct legal effect given to the statute of the Board saying in December what it said.
GUMMOW J: You were going to take us to some factual material, were you?
MR GLEESON: I was going to take your Honours next to the history to show how the appeal right came about. If your Honours were to go ‑ ‑ ‑
GUMMOW J: This will be an unappealing thicket. Anyhow, we have to get into it.
MR GLEESON: No, well, your Honour, in the present case ‑ ‑ ‑
HEYDON J: Are we going to legislative history now or factual history?
MR GLEESON: Legislative history. Your Honour, in the present case it is most helpful because it explains the conundrum of why 12B has two limbs.
HAYNE J: This may be helpful, but whether it is appealing.
MR GLEESON: My tastes differ from your Honours.
GUMMOW J: Go on, Mr Gleeson.
This is the topic that we deal with in our written submissions commencing at paragraph 45. Your Honours, could I start by observing that I have handed up the Mines Subsidence Act 1928 for one purpose, which is that that Act had a very different scheme where the owners of the improvements paid a premium for what was called insurance and the Board determined insurance claims. Significantly, in section 14(2) there was an absolute privative clause in respect to Board decisions on payments. The first major change in favour of the improvement owners is the Act at tab 3 of the bundle, the Mines Subsidence Compensation Act 1961.
GUMMOW J: Was the 1928 Act the first New South Wales statute in this field, do you know? There has been a lot of mining in New South Wales for a long time. It does not seem to repeal any other statute, does it?
MR GLEESON: It amends the Coal Mines Regulation Act 1914. We can check, your Honour, whether there was an earlier provision. It is repealed by the 1961 Act and the scheme changes from insurance to the fund that we now know of. Accordingly, much of it is in the form as at the relevant time, for instance, section 10(3), section 12(1). Subsection (1) has within it the certain exceptions. Then at the end of section 12(1) there is the first appearance of the language “No claim shall be entertained or payment made”. That is the language in the operative Act concerning the failure to insure properly. At that stage there is no relieving discretion in the Board.
GUMMOW J: You are saying that if you are under the old Act you stay under it? Is that what it is saying?
MR GLEESON: No, not quite, your Honour. We are saying if you are under the old Act and you had not complied with a condition pursuant to which the right of insurance work was granted, then that will be a fatal defect in your claim. So it is a similar language of ‑ ‑ ‑
GUMMOW J: Yes, the language of disqualification.
MR GLEESON: If that matter exists, then that will be the end of your claim.
GUMMOW J: Because this is a consequence of disobedience to section 16 of the old Act.
MR GLEESON: Yes, and quite a draconian provision because property could be subdivided or sold on and the person owning the improvements at the unlucky time may not have been the person that did not insure. At that stage there is no relieving discretion, whereas now we have the ability for the Board, or we would say the court, to be satisfied that the non‑compliance is minor. In subsection (2)(a) we have the same provision for notification or making of claim. In subsection (2)(b) we have the same provision for the Board’s duty to investigate, report and a decision as to the payment, if any, to be allowed in respect of the damage.
In our submission, as I have put, that duty of the Board includes the duty to consider whether the claim is barred because of the insurance problem. Subsection (3) is a privative clause, “The Board’s decision as to whether ‑ ‑ ‑
GUMMOW J: It is a fairly feeble privative clause.
MR GLEESON: It is a feeble one and our point is that when one reads (3) together with (4)(a) and (b) essentially what you are now being given totally contrary to 1928 was a general right of appeal. If a Board makes a decision under (2)(b) of the amount, if any, that you receive, you may go to the old Land and Valuation Court for what is called an appeal but is a de novo hearing where the court may consider every question necessarily arising on the claim save for the one protected by the privative clause and thus, for instance – and this tests the point – if the Board had said, “You did not comply with insurance, we will not entertain your claim or make a payment, the answer is nil”, you could go to the court under subsection (4) and have that issue tested on the merits. Your Honours will see in (4)(b) that the provisions ‑ ‑ ‑
GUMMOW J: Why do you say that?
MR GLEESON: Because as part of your appeal from a decision respecting the amount, you go to the court and say, “The amount that I have been awarded is nil ‑ ‑ ‑
GUMMOW J: That is where we are now. It is the same debate over again. You are saying what I am saying to you today is my construction, is consistent with what I say is the construction of the Act in its pristine form.
MR GLEESON: What I am seeking to put is that when one sees that originally there was a right of appeal which we submit allowed everything to be considered save for one matter, the matter the subject of the privative clause which is subsection (3), that is the explanation for why, when we come to the 1989 Amendment Act, which your Honours have at tab 4 ‑ ‑ ‑
GUMMOW J: What I am trying to put to you is, the feeble privative clause in subsection (3) would not oust the Supreme Court’s jurisdiction to debate on a mandamus the operation of the limitation “No claim shall be entertained” because that would be a decision as to damages arisen. It would be a refusal to get into that question.
MR GLEESON: That may well be true, your Honour. The privative clause does not cut down the ability in the de novo appeal to say, “My complaint about that decision is one that hinges on the facts. My complaint is that when you look at everything I did I in fact adequately complied with the requirements of insurance. I have a fact case” and that is the matter which, when the court considers it, if the court on the merits says, “You are correct”, then it will be seen that one can proceed to consider the balance of the questions on the payment.
Your Honour is correct in a sense that it raises the very similar issue. It simply highlights that what we submit is an appeal which raises everything subject to the privative clause is the better view of the original 1961 Act to the alternative view that Parliament was intending in 1961 that if the Board thought itself bound not to go further, you could only use mandamus as a way of testing that.
KIEFEL J: The privative clause in section 12(3) is one as to causation, is it not, and that is now reflected in section 12B(a) together with the anticipation provision. So the new 12B(a) is causation and (b) is damage. That is the change, that causation is now able to be gone into.
MR GLEESON: Exactly what happened in 1989 was, we submit, Parliament said that part of the process that previously has been immune from the full review now ought to be open to that review and so there are various ways of achieving that as a drafting technique. The one that was chosen was to identify that as a “decision” which can be the subject of the full review. What it was not doing in 1989 was cutting down the ability to appeal in a case where you have been given a decision of a nil payment.
KIEFEL J: I suppose it could be said against you that it is chosen never to state it and there might be reason for that.
MR GLEESON: Your Honours will see tab 4 is the 1989 change. Tabs 5 and 6 is the explanatory material. At tab 6 at page 145, in the first full paragraph the purpose of the 1989 amendment is stated. We read that as being an amendment designed to expand the pure rights and in no way designed to cut them down.
GUMMOW J: When did the offence provision, now found in section 15(10), appear? Section 15 has been amended about a dozen times, it would seem. I am just looking for schedule to the reprint No. 8 of the Subsidence Act. Anyhow, do not hold things up now.
MR GLEESON: We can check that, your Honour. One also sees in the 1989 Act that that is when section 15(5)(b) was amended to give the relieving discretion in respect to the issue of a certificate.
Now, if your Honours were to look at the appeal right that we now have in section 12B of the Act, our submissions are, firstly, that any case where the legally operative effect of the Board’s decision determines a nil payment is sufficient to satisfy paragraph (b), irrespective of how the Board chose to get there. The second submission is that the characterisation of whether the decision is as to the matters is one to be done by reference to the legal effect which the decision has, not the way the decision‑maker chooses to reason. The third is that there is a very close correlation between the language as to the amount of the payment in 12B(b) and the decision which had been given to the Board under 12(2)(b), decision as to the payment, if any.
The fourth submission, your Honour, is that any case where the Board chooses to determine a nil payment on a basis that it considers that it cannot entertain the claim or pay it, still comes within 12B(b). So that will pick up each of what I have described as the second, the fourth and the fifth fetters. If we are wrong on that, any time the Board considers itself bound by the second, the fourth or the fifth limitation, even though that may involve questions of fact and discretion as well as law, the only rights will be the more limited mandamus rights.
The next matter is that there will be some decisions which will satisfy both paragraphs (a) and (b) and give an appeal right on both bases. Some will satisfy only one. Our case satisfies paragraph (b). An example which satisfied only paragraph (a), and I can give one, would be where the owner said, “I fear that the subsidence is going to damage 1,000 metres of my pipeline and I claim compensation under section 12A”. If the Board says, “We determine you can only anticipate damage as to 100 metres”, that subsidiary decision will permit an immediate appeal even though the Board has not yet gone to quantum.
Your Honours, thirdly in relation to the way the law was applied to the facts, could I go first to ‑ ‑ ‑
HAYNE J: Before you seek to develop that, could I take you back to this expression “No claim should be entertained or payment made under this Act”. Do the words “under this Act” attach also to “No claim shall be entertained”, that is, is one to read this collection of words as no claim shall be entertained under this Act, no payment shall be made under this Act, et cetera?
MR GLEESON: They probably attach to both as part of a composite expression, your Honours.
HAYNE J: Does that not present a fundamental difficulty in your argument in that 12 and 12A are both introduced by:
Claims may be made under this Act –
This expression about entertaining, “no claim shall be entertained under this Act”, represents cutting down of the subject matter with which 12 and 12A deal. Let me amplify the point a little before you make answer to the proposition just advanced. The colliery proprietors provide the money, do they not, which forms the corpus of this fund?
MR GLEESON: Yes.
HAYNE J: They provide that as the quid pro quo, presumably, for the exemption from liability which is section 14 of the current Act. A possible understanding, indeed even a possible point of view about the way in which the scheme of the Act operates, might be that you have this trade‑off between liability and obligation of colliery proprietors, a limited class of claims may be made against the fund, exceptions to that limited class of claims are delineated by the expression “no claim shall be entertained under the Act” because the claims that are available under the Act are described as claims that may be made under the Act, and the appeal structure that is erected deals only with claims that may be made under the Act, leaving mandamus and other prerogative relief as the control over what falls within or without of the Act. Now, there are several propositions that have been put there. What do you say in answer to them?
MR GLEESON: That if one were to adopt that approach, the effect would be that the difference in language between 12(1)(a), you cannot make a claim for compensation where it is due to your own activity, where presumably you can get an appeal because it has not used the words “entertained” and the use of the words “shall not entertain” has created a difference in your appeal rights.
I draw attention then to 12(1A) where, as I mentioned, that exception for where the person is engaged in extractive industries, it has also picked up the “entertain” language and it really is a subset of the first limitation. It is where you are causing the damage because in this case you are extractive industry. Now, is that a distinction which was intended to be drawn? We would submit not. But more fundamentally, your Honour, the alternative way of viewing it is to say that yes, the colliery owners are putting up the money. Yes, the claims can only be paid in tightly defined circumstances.
If the circumstances are not met, it is unlawful for the money to part from the fund. As time has gone on and more attention has been given to what are to be all the circumstances, there are a whole range of matters which go to defining the right. What the colliery owners know is if we start at the very beginning, that their money will not be paid out if there was not subsidence, it will not be paid out if the improvement was not damaged, it will not be paid out if it is owner induced, it will not be paid out if the insurance has not been met, it will not be paid out if it was an extractive industry, it will not be paid out if it is unlawful, and so on.
Each of those limitations of the right can involve questions of fact, law and discretion, and it is hard to see why, even viewing it from the viewpoint of careful stewardship of the colliery owner’s money, that the difference in language was intended to say that an owner induced subsidence defence is to be treated differently to a failure to insure.
GUMMOW J: But the colliery proprietors are saying through the statute, we have to put money into this fund, but where the claimant has brought it upon the claimant’s own head, as it were, the claimant not having got the approval, this scheme just does not bite. No claim shall be entertained against us, in effect. Why should we bear the blame of the delinquency of the claimant?
MR GLEESON: The first fetter is in exactly the same category, you have brought it on your own head because it was your work that caused the subsidence. That is covered by 12(1)(a), and that, as we see the Board’s argument, is something you can take to the appeal, because they say, well, that is part of the causation question. You are the true cause of the cause.
Your Honours, can I just put a narrower proposition which may or may not assist. Assume against part of what I have been putting that very strong work is to be given to “no claim shall be entertained or payment made”, and that we effectively have three fetters which have used that language. We have the middle paragraph in section 12(1), we have section 12(1)(a) and we have section 15. Let us assume there is the three of them, they have used that very strong language, and that what they mean by way of protection for the colliery owner is, you have a legal protection by reason of this Act, that if these disqualifying conditions exist, the claim is one which is not to be taken to any further stages of consideration, disqualifying conditions which of themselves may involve the exercise of discretions, as we have seen.
Even if that be so, in our submission, it does not detract from the proposition that what the Act has said is that those absolutely critical roadblock defences, which are entrusted to the Board as a matter of administrative power at the first stage, are matters where the person directly interested has one right to have them considered by a court on the merits, because they are so fundamental to the claimant’s right as well.
So when one comes to the court – as I said a little earlier ‑ if Mr Leeming says to the court, I want you to consider first the approval question, I want you to consider first the certificate, and I want to try and persuade you that because of them no claim shall be entertained, a narrower position would be that if he can establish those matters, the court would then say, “I am relieved of a duty of considering every other aspect of this matter. I have been satisfied by the roadblocks”, and that gives ample work to do to, no claim shall be entertained or payment made. The protection is if they exist further matters are not to be considered, but not denying the fact, are you given one chance by a court to have them considered on the merits.
CRENNAN J: Do the regulations provide for the keeping by the Board of a register of approvals, something of that sort?
MR GLEESON: The only regulation we found at the time was the Mine Subsidence Compensation Regulation 2002, which did not deal with that.
GUMMOW J: There certainly used to be a requisition in conveyancing matters. If you were buying land in Newcastle, your solicitors thought long and hard about mines subsidence legislation.
MR GLEESON: We are focusing on improvements, but the relevant sections deal both with improvements and subdivisions, and that can be seen in section 15(5)(a), the conveyancing protection.
GUMMOW J: A standard contract for sale of land has provisions in it about the Mine Subsidence Act, I am sure.
CRENNAN J: Would not the Minister under the Pipelines Act have to sign off in relation to safety issues and so on, have to check approvals?
MR GLEESON: That was the factual point that Alinta wanted run on the facts before the Land and Environment Court, which may or may not be able to be established through mandamus. The factual case was at the time this pipeline was built, one of the largest pieces of infrastructure in Australia, the same Minister was the Minister for Mines and the Minister for Pipelines. The MSB was subject to his direction. I am simply indicating the factual case, your Honour, one I enjoy and probably will not be allowed to put, or hopefully I will. That was the case and ‑ ‑ ‑
GUMMOW J: You can inflame us as much as you like.
MR GLEESON: I was trying to tempt your Honour’s sense of history that there was a very large public inquiry, some of your Honours may have had an involvement in it, in about 19 ‑ ‑ ‑
CRENNAN J: I was really trying to ask you about the access to approvals.
MR GLEESON: Access?
CRENNAN J: Yes. If there is no provision for a register, but we know that conveyancing is being undertaken, there could be a requisition in relation to it. I am just not quite sure precisely what the legislative obligations are in relation to the keeping of approvals and, for that matter, copies of certificates of compliance.
GUMMOW J: There does not seem to be anything in the Pipelines Act 1967 which contained detailed licence provisions in Part 3 that the licensee is to make sure the licensee is complying with any other legislative requirement touching this improvement. I may be wrong about that, but.
MR GLEESON: Yes. As a matter of fact, when the public inquiry occurred, one of the issues, says Alinta, which was addressed, was the subsidence impact of the pipeline. The MSB was informed of the inquiry, had an opportunity to speak, no objection was raised. That is all what goes to the factual case of, do we have a pipeline where a Court can infer there was approval because the opposite conclusion ‑ ‑ ‑
GUMMOW J: Yes, but were the colliery proprietors engaged in that inquiry?
MR GLEESON: Yes, they were, your Honour. Your Honours, the evidence that that was the case to be made is in the appeal book at page 134, lines 50 to 60. Then, more specifically, at 140, line 50, there was evidence that:
Australian Iron & Steel Pty Limited (the then owner of the Appin Colliery) –
one of the two collieries in question, had written a report concerning the pipeline in 1977 and its ability to withstand subsidence. So to conclude my tempered answer to your Honour Justice Hayne’s question, the narrower proposition I am putting is, even if this subset of matters are given special significance such that when determined they mean nothing else is to be looked at, that leaves for the separate consideration whether it was intended that, pursuant to the appeal right, the Land and Environment Court could be asked to do the same exercise on the merits.
Your Honours, as to the third matter, which is how the law was applied, could I go first to Justice Handley’s judgment commencing at 245. At line 60 he correctly recognises that the question of approval or not was in dispute before the Board and clearly before the court. Your Honours, I mention that because there was a strand in Justice Tobias’ reasoning at page 225, paragraph 56, which suggested that somehow Alinta was not taking the approval point. Clearly Alinta was, before the court, and it was taking it before the Board. Justice Hodgson explained why that is so at page 207 and I do not propose to burden your Honours with that further unless Mr Leeming seeks to defend paragraph 56 of Justice Tobias.
Returning to Justice Handley, on page 246 at paragraph 104, and this is not a small point, his Honour attributes the Board’s decision to reject our claim as being a decision made under section 15(5)(b). We would submit that is not just loose language but it is a misapprehension, that it is a decision to reject our claim made under section 12(2)(b) because of the Board’s understanding of the constraints imposed on it by the other section. At paragraph 107, he says it would have been very easy to put the appeal in one sentence if we were correct. His Honour does not deal with the legislative history that I have attempted to explain.
At paragraph 110, when his Honour deals with the Land and Environment Court Act, he does not consider section 39. His critical reasoning is in two paragraphs, 113 and 114, and the language he uses which we submit contains an ambiguity which throws up the problem is:
In my judgment the only decisions which satisfy this language are those where the Board has had to apply its mind to the question of quantum –
Now, “has had” appears to be a reference to what the Board thought it was obliged to do applying the constraint of section 15(5) as opposed to what the correct legal position was. If we are correct on the law, this Board was obliged to apply its mind to the question of quantum. Finally, your Honours will observe that section 12(2)(b), the section we rely upon as the Board’s decision‑making power, is not referred to by Justice Handley.
In relation to Justice Tobias, commencing at page 239, paragraph (a) he relies upon the word “amount” as somehow reading down the appeal right. It is perfectly explicable because the decision is a decision as to the payment, if any, from the fund. Your Honours will see in paragraph (b) that he has immediately moved, in other words to a conclusion that it is decisions on the merits. He has immediately moved to its decisions on the merits and he seems to have made that leap, we would submit, solely by virtue of the word “amount” and he sees section 12(2)(b) – this is critical to our argument – as being only about the merits of an amount as opposed to being the operative section under which the Board makes decisions. Over the page at paragraph (d) he regards the legislative history as supporting his view, contrary to what I have put.
On page 242, paragraph (i), when he is dealing with the limitation in section 12A which uses “entertained” or “pay” but has the “may”, his Honour is treating it as a discretion, whereas we submit it is a mandatory provision.
Now, your Honours, there is just one other aspect I would proffer with Justice Tobias which we submit is an error. What his Honour appears to have done, we would submit, is he has read down from the Land and Environment Court’s distinction between class 3 merits jurisdiction and class 4 judicial review jurisdiction to treat the Board as if it is doing two separate exercises, a merits exercise and a non‑merits exercise. Your Honours see in paragraph (i) on page 242:
I see no justifiable basis upon which s 12B(b) should be construed to extend an appeal on the merits –
so he is there speaking of class 3 as a merits appeal –
of the refusal of the Board to be satisfied –
of a certain matter. Then at the bottom of paragraph (j):
Limb (b) is concerned with a decision of the Board as to whether there should be any payment of any amount from the Fund. It is a reference to a determination of that issue by the Board on its merits as is made plain by s 12(2)(b).
So the way his Honour has read it – and we submit it is erroneous – is that one treats the Board as doing a merits exercise and a non‑merits exercise. The merits exercise goes to the class 3 merits jurisdiction. The non‑merits exercise goes to the Supreme Court. That, we submit, is erroneous because the Board is doing one task, one statutory task, of deciding the amount of the payment, observing all of the limitations in the Act.
GUMMOW J: Mr Gleeson, is it convenient to go back to Justice Handley at paragraph 110 on page 247?
MR GLEESON: Yes.
GUMMOW J: Section 20(2), which you took us to, I think, would give to the Environment Court judicial review remedies, but not with respect to this statute, is that correct?
MR GLEESON: Yes, and we rely upon that as part of the incongruous consequences and unintended consequences that if one were to take Justice Tobias’ view that the Board is doing a merits function and a non‑merits function and one goes to the merits Land and Environment Court and the other does not even go to class 4, it does not sit together. But our primary point is the Board is not doing a merits and a non‑merits function. It is doing one job of determining the amount, observing all the limitations in the Act, and if it gets to a nil amount by whatever reason, there is one merits chance before the Court. Those are our submissions, your Honours.
GUMMOW J: Yes, thank you, Mr Gleeson. Mr Gleeson, before you sit down, the relief you seek from us – you were successful before Justice Biscoe, were you not?
MR GLEESON: Yes.
GUMMOW J: And we see the order his Honour made at page 194.
MR GLEESON: Yes.
GUMMOW J: He was deciding a preliminary question on the court’s jurisdiction?
MR GLEESON: Yes.
GUMMOW J: And then in the Court of Appeal you lost that and that appears at 251. They substituted an answer no as he had said yes. But then what you seek from us appears at page 258. It seems to be more than the restoration of what you got from Justice Biscoe. Why is that and why should that be so? You did not complain about Justice Biscoe’s paucity of relief?
MR GLEESON: Your Honours, we have narrowed what we seek to paragraph 20 of our submissions which simply restores Justice Biscoe’s decision.
GUMMOW J: So we can disregard the draft notice of appeal, can we, at 258?
MR GLEESON: Yes, and we ask your Honours to act upon the orders sought at page 20 of our submissions.
GUMMOW J: Yes, thank you. Yes, Mr Leeming.
MR LEEMING: Just on that topic, we embrace not merely the reasons of Justices Handley and Tobias in the Court of Appeal but also paragraphs 73 to 78 at appeal book 186 to 188 of Justice Biscoe’s reasons where he, like the majority of the Court of Appeal, rejected the notion that my learned friend’s primary submission at 12B(b) extends to a nil amount decision even where as here the Board has not turned its mind to quantum, if I can use that broad expression.
The ultimate question is whether the appeal that AGL sought to engage in the Land and Environment Court fell within that court’s statutory jurisdiction and so, yes, that analysis does turn upon the powers of the Board – we spent a lot of time going through those, and I will indicate a couple of extra provisions that my learned friend did not go to – and the restrictions upon the Board, including what “entertain” means and also I wish to give a fuller answer to your Honour Justice Kiefel’s question about the nature of the applications that were before the Board and the series in which they were decided and the assumed basis upon which those applications were put to the Board and on which the Board made those decisions.
Then the legal analysis requires, in my submission, an analysis as to whether that decision‑making exercise in that regime engaged the limited statutory appeal conferred by 12B of the Act and more than once there was an assumption in my learned friend’s submissions that there is a full merits appeal in 12B. That is the ultimate question in this case. It does not help the analysis to say that there is, for example, one right of appeal on the merits to a court on all those critical roadblocks, whether the dispute that AGL has on the facts with the Board as to those critical roadblocks falls within the 12B statutory grant of appeal is the ultimate question in this case. The same error, in my submission, is found in the reliance upon the legislative history. The assumption there was pre‑1989 there is a full appeal on the merits save for the rather puny privative provision as to causation.
That is the same error, in our submission, that was detected in Mr Meadows’ submissions in Brown v The Repatriation Commission (1985) 7 FCR 302. I think your Honours have a copy of that. I apologise it was not on my list. It is the same error that is found in about paragraph 42 of my learned friend’s written submissions where he relies upon Ruhamah, the old mechanism of appeal from decisions of the Board of Review which simply required a determination by the court, does this appeal involve an error of law and, if so, everything is up for grabs at the rehearing.
GUMMOW J: It used to be that once you got a question of law you were in the door and then the whole of the subject was open, then it was cut down to the question of law and nothing else.
MR LEEMING: Yes, and the question of law was two things. It was the qualifying condition to enlivening the appellate jurisdiction and also it was the subject matter of the appeal. The language, indeed, in Brown of the Full Court was picked up by your Honour the presiding Judge in TNT Skypak in the reference we have given to that in our written submissions in paragraph 43.
In Brown, if the Court has the photocopy I have provided, at page 303 point 5, the paragraph beginning “The appellant’s argument on appeal to this Full Court was twofold”, the first of those submissions, as the Full Court rejected, mirrors what one reads and has heard from my learned friend today. There is set out the proposition that I just identified that the whole decision on not merely the question of law was available for review by the court on appeal. The paragraph after that, “the parties are not limited to the material which was before the Tribunal”, also echoes something that Mr Gleeson said.
GUMMOW J: It is really the second paragraph on 304, is it not?
MR LEEMING: Indeed, that is the heart of it, your Honour, preceded by the words that the statutory grant of appeal, in this case in the Repatriation Commission in the unhappily named 107VZZH, was “couched in very different terms”. So, as I say, the…..of analysis is look to the statutory grant of ‑ ‑ ‑
GUMMOW J: How do you apply the reasoning in Brown to the text of the State statute that we are looking at here?
MR LEEMING: One looks at 12B of the Act and in order to determine whether or not – can I do it in two phases.
GUMMOW J: It is the words “as to”.
MR LEEMING: Yes, one has to have the decision of the Board. There is no dispute that there is one of those. Section 12B, we would say unequivocally, identifies two subclasses of decisions of the Board which attract the statutory grant of appeal, those falling within paragraph (a) and those falling within paragraph (b). I think this may be the last thing I say about legislative history. As your Honour, I think, Justice Kiefel remarked in argument with my learned friend, there is a broadening from two classes of decisions from one when one compares this Act to its form before 1989.
The language in both of those paragraphs is chosen with some care. In paragraph 12B(a) there are two bases; one is “as to whether damage has arisen from subsidence” and the second is “or could reasonably have been anticipated”. It is no accident that that is precisely the language in each of the paragraphs in section 12 for a reason and 12A which are integers of the claim. They are the paragraphs going to an issue of causation as to which the claimant has to succeed in order to get any money at the end of the day.
To make that good, going back to section 12(1), it is plain on the face of paragraphs (a) and (d) dealing in terms with “damage to improvements”, that is paragraph (a), and “damage to household or other effects”, that is paragraph (d), that an element of a successful claim must be that there is damage either to improvements or to household or other effects that arises from subsidence. If the Board takes a different view, less or no money is going to be the outcome of your claim.
The same language of arising, so the same language of causation in those terms, is also found indirectly in paragraphs (b) and (c) because both of those paragraphs are pitched in terms of ‑ ‑ ‑
HEYDON J: As a result of.
MR LEEMING: And “such” in particular, “as a result of such damage”, and the such damage ‑ ‑ ‑
GUMMOW J: I am sorry. You have lost me. Paragraph?
MR LEEMING: I am sorry. It is not a happy piece of legislation.
GUMMOW J: Section 12(1)?
MR LEEMING: Section 12(1)(b). Another basis of claim is I want:
an amount to meet the proper and necessary expense incurred or to be incurred as a result of such damage in –
those various paragraphs. Now, the “such damage” is the same damage that is specified in (a) to the same improvements and it is damage which arises from subsidence. Likewise, the “such damage” in the third line of paragraph (c), so rent which you have lost by reason of such damage, that is, damage that itself has arisen from subsidence, that is what the Board has to be satisfied of in order for the claim ‑ ‑ ‑
GUMMOW J: And then (d) actually uses the phrase again “arises from subsidence”.
MR LEEMING: That is why (d) is easier because (d) is moving from improvements to household or other effects.
GUMMOW J: Yes, thank you.
MR LEEMING: So different subject matters upon which the damage arises. That is “arisen”, going back to 12B(a). The other limb of 12B(a) is, “could reasonably have been anticipated” and that is the very thing that one sees in 12A(1)(b). Again it is this:
proper and necessary expense incurred . . . that, in the opinion of the Board, the owner could reasonably have anticipated would otherwise have arisen, or could reasonably anticipate would otherwise arise –
It is true and it is convenient because it is such a mouthful otherwise to refer in general to causation, but the point I wish to emphasise is that it is no accident, we would say, that the statutory ‑ ‑ ‑
GUMMOW J: I am sorry. I am being slow-witted. Paragraph 12B(a) has a disjunction “arisen from subsidence” you have explained that to us, “or could reasonably have been anticipated”. Where do we find that phrase?
MR LEEMING: “Arisen from subsidence” is 12, “could reasonably have been anticipated” is 12A.
GUMMOW J: Whereabouts in 12A?
HEYDON J: Section 12A(1)(b).
MR LEEMING: Yes, I am grateful to your Honour. It is lines 6, 7 and 8 within paragraph (b).
GUMMOW J: Yes.
HEYDON J: You should not keep saying it is no accident. The late Marshal Stalin used to keep saying that.
MR LEEMING: I shall not keep saying that.
HAYNE J: In his case it was not.
MR LEEMING: We rely, of course, on the coincidence between that language ‑ ‑ ‑
HEYDON J: You keep saying that too.
MR LEEMING: There it is ‑ ‑ ‑
GUMMOW J: You will get to General Franco soon.
MR LEEMING: One of the difficulties, and we say it is an insuperable one on a proper approach to construction – and despite my learned friend’s attempt to come up with an interlocutory decision, as it were, on causation before the Board gets to quantum that would enliven (a) – is that all of the three judges who ruled in my favour on this issue have adverted to is the fact that (a) is carefully drafted. It picks up in terms that language of causality in claims made under both 12 and 12A.
As we know from the legislative history, which I said I was not going to go back to, expressly inserted in order to give rise to additional rights, and if my learned friend is right and section 12B(b) gives him his merits appeal whenever there is any decision including as to nil amount, one simply is not giving any work to 12B(a). Rather, this is a case where the legislature has ‑ ‑ ‑
GUMMOW J: What is the relationship in 12B between (a) and (b)? When will there be a case under one but not the other?
MR LEEMING: There will be a case under (b) and not (a) where there is no dispute about damage having arisen. So there is a crack in your wall that needs to be repaired in some way, but there is a dispute about whether your invoice is a reasonable one, but the Board says you should have got a cheaper quote.
HEYDON J: Pure quantum.
MR LEEMING: Pure quantum. There can be disputes about causation when the Board forms the view, I am sorry, that crack was already there. The claimant says, no, it was caused by the subsidence that has happened, so that appeal question comes up, and one can imagine in those cases there may well be no dispute at all as to quantum. The only question is whether the crack that needs to be fixed in the wall was caused by subsidence or was pre‑existing.
Now, those matters of causation and quantum are, one might expect, precisely the sorts of matters that can give rise to factual dispute between Board and claimant and, of course, they are exactly the sorts of matters that courts are very familiar themselves at determining again. So in terms of policy, if one steps back to that level, it is easy to see why the legislature may have thought it appropriate to give those traditionally curially determinable issues a merits review role in a court.
My submission, of course, consistently with what the Full Court held in Brown, was that having a decision which satisfies either of the limbs in 12B(a) and 12B(b) is the content of the appeal and that content does not extend to other of the matters that need to be determined by the Board in assessing a claim.
There are a few of those. One, as my learned friend points out, is whether or not the subsidence itself was caused by the owner or came about by reason of an extractive industry. Another, which we have referred to in our submissions, is whether or not the claim was put in in time. It may be noted that claims under 12A(2) must be made within three months on the day on which the extent of the damage became apparent.
GUMMOW J: Where do we see that?
MR LEEMING: In the text of the statute at the bottom of 15 of my learned friend’s bundle and the same can be found in 12A(2)(b) at the top of page 16. From my learned friend’s section 12 claim, it is not obvious on the face of the statute, but in 12A(2)(a) there is a provision for a prescribed time. It is the fourth line on page 15. The prescribed time is 12 months with provision for it to be extended in certain circumstances. We say, of course, if the Board says this claim is refused because it was lodged out of time, that is not a decision as to the amount, just as equally as it is not a decision as to whether damage has arisen or could reasonably have been anticipated. It is a decision which relates to neither of the two bases set out in section 12B(a) and (b).
There is no difference between that and a decision as made here where the claim was refused because the Board formed the view that it could not – not merely that it would not but that it could not – entertain us in the absence of a certificate. That decision is not one that falls within the words of 12B(a) or (b). In saying all of that, in my submission, there is no obstacle to the general propositions that my learned friend puts against me, one, that grants of jurisdiction should be construed broadly and, two, that those words “as to” are words of broad connection. We embrace all of that. But we do say that plainly enough those two paragraphs serve to divide divisions of the Board into two classes; those which fall within them and those which do not.
GUMMOW J: There is the opening words of 12B as well.
MR LEEMING: Indeed. So that the class of applicants is merely those claiming compensation under 12 or 12A.
GUMMOW J: No, you have to have claimed compensation under the sections.
MR LEEMING: Indeed, I should have said that as well.
GUMMOW J: If they were not entitled to do so, then there has to have been a decision of the Board on that claim.
MR LEEMING: Yes, there has been, that is so.
GUMMOW J: Then as to the decision of the Board on that claim, there is a further contraction as to the nature of the appeal by those words “as to”?
MR LEEMING: Yes. As to the intermediate step, we accept that the Board is under a duty to make a decision on a claim. It is amenable to mandamus if nothing happens to the claim after an extended period of time.
GUMMOW J: There is a decision of this Court – I have forgotten the name of it now – on the time restrictions on prerogative writs in this Court and at general law. Is there any specific provision in New South Wales? You do not have to tell us now. Over lunch time if someone could find it.
MR LEEMING: One case where it arose was in Wakim itself.
GUMMOW J: No, this is within the last 12 months. Bodruddaza, I think it is.
MR LEEMING: Yes. In New South Wales – I am with my learned friend but we will check it – I do not believe there is a six month or a three month limitation period for the prerogative relief that we say my learned friend was able to seek in the Supreme Court but we accept, of course, that discretionary matters, including delay, are factor in that discretionary relief.
GUMMOW J: Yes. It is really a question of just looking at Bodruddaza, I think, unless there is some statutory provision or rule in the New South Wales Supreme Court.
MR LEEMING: We will check it. I do not believe there is and that is in contradistinction to this Court.
GUMMOW J: Yes.
HEYDON J: What do you say about paragraph 8 of Justice Hodgson on page 209? One answer you have already given, namely, that the words are clear, a second answer you have given is that courts can handle causation questions and quantum questions easily, but do you have any other answer?
MR LEEMING: Yes, I do, I have two other answers. I will deal with the short one first. The heart of the reasoning of the other three judges is what I have sought just now to indicate. Work should be given to those words in 12B(a) and (b) and his Honour Justice Hodgson really does not, in my respectful submission, grapple with the force of that proposition. The only real reference to it is in paragraph 12, acknowledgement that there is force, but for the broad reasons above he thinks the view for which my learned friend contends is preferable.
HEYDON J: This is a very medieval statute in the sense that if you just fall outside one category you have to start somewhere else and maybe you cannot do it for some reason or other. It is not a happy scheme, but your proposition is, who cares whether it is happy or not. It is just the scheme.
MR LEEMING: What one just has to deal with the legislation that has been enacted.
GUMMOW J: It was even unhappier under the earlier emanation of this Act.
MR LEEMING: Quite so. There are two things that follow from the 1989 amendments to which twice I have said I would not go back. One is that there was an appreciation of the unhappiness that led to an expansion but not an unqualified expansion. As they say, why have any of these qualifications in (a) and (b), why not just have an appeal against the decision of the Board, which is really what AGL wants.
Secondly, in answer to, I think your Honour the Presiding Judge’s reference to section 20, it is the case – I think my learned friend did not quite refer to this – that 1989 did indeed amend section 20 itself and so one has the rather unusual circumstances where for some particular forms of proceedings under the Mine Subsidence Compensation Act ‑ ‑ ‑
HEYDON J: Page 137.
MR LEEMING: It is section 20(1)(db).
HEYDON J: Which is on page 137 of Mr Gleeson’s bundle.
MR LEEMING: Thank you, your Honour, yes. But although it gave therefore class 4 judicial review decision for 15D proceedings, it did not make the broader amendment which would have been effected by adding to the list of planning or environmental laws in section 20(3) the Mine Subsidence Compensation Act. So one does not know the reason, of course, and it is idle to speculate, but it is not the case that when enacting the 1989 amendments this Parliament was oblivious to section 20 of the Land and Environment Court Act or class 4 of its jurisdiction. That is, indeed, the point made by both Justice Tobias and Justice Handley. Justice Handley in paragraph 109 and 110 at page 247 emphasises the unusual nature of the gap, if there be one. But I was getting to the real answer, and it is a little longer, to your Honour Justice Heydon’s query to me about paragraph 8 of Justice Hodgson’s reasons. It needs a little bit of attention. There are some errors.
HEYDON J: Yes, I was wondering whether the assumptions are correct that he ‑ ‑ ‑
MR LEEMING: We disagree. They are partially correct but not wholly. What Justice Hodgson has done in paragraph 4 is to identify a total of 10 issues arising for determination by the Board and we say not all of those are accurately identified and they are not complete. Then in paragraphs 7 and 8 he has said correctly that many of them fall within the statutory grant of appeal but said others do not. We say some do quite plainly. He has forgotten about one, but then reasons that there is no reasonable basis on the one that matters, the section 15 certificate should then fall outside. So the reasoning does take a little bit of time to deal with.
The first error in the recitation in paragraph 4 is that his fourth and tenth issues do not, in my respectful submission, fairly reflect the issue that arises on the Act. It is not was there expense incurred as a result of such damage, rather, it is whether there was proper and necessary expense incurred. An example of that is the dispute that can arise, was my tradesman giving a fair quote or an inflated quote to fix the cracks in my wall. The same slight error occurs in his tenth issue and that matters because, in our submission, if there is a dispute between claimant and Board about whether the expense that was incurred was proper or necessary and the Board makes a decision adverse to the claimant, then there is an appeal from that and that decision is a decision as to the amount of payment from the fund.
So that some of the issues that his Honour identifies in paragraph 8 as falling outside the scope of appeal we say fall within. But we agree with him, and we respectfully disagree with my learned friend, that whether subsidence was due to the owner’s own operations or whether the subsidence was due to an extractive industry do fall outside the grant of appeal. That is fairly clear in such a case ‑ ‑ ‑
GUMMOW J: Why would we have to decide all these fascinating questions?
MR LEEMING: Your Honour, there is no need to decide any of this, but I wish to say, though, if reliance is to be placed on paragraph 8 of Justice Hodgson’s reasons, we are critical of bits of it and it supports – the same reasoning process supports a principled approach, we say, to a construction of 12B because the matters which are outside, on my construction of the Act, the scope of a 12B appeal, are exactly the sorts of matters that one might think the Board was peculiarly well equipped to determine for itself. Whether subsidence, for example, is caused by an extractive industry, that is something where one might think that this Board, highly qualified senior officers appointed by the Governor, nominated by the Minister, is perhaps better equipped to decide than the Land and Environment Court.
The legislature, in other words, has acknowledged the curial expertise in questions of causation and quantum but has chosen not to give merits appeal on other questions, and one might well also expect that questions of limitation periods, of whether there was an extraction industry that causes subsidence and, importantly, whether there was approval for the improvements need not be subject of merits appeal in the Land and Environment Court. I apologise for the length of that. That is all that we say in answer to paragraph 8 of his Honour’s reasons.
GUMMOW J: Behind all this is, I suspect, we do not know, but I suspect some hard bargaining between the relevant economic interest holders, particularly the colliery proprietors.
MR LEEMING: One could understand the colliery proprietors do not want their contributions being spent up by lawyers in the Land and Environment Court on long merits appeals.
GUMMOW J: Yes, these are hard-faced men from black country.
MR LEEMING: The colliery proprietors, of course, have a representative on the Board to look after their interests.
GUMMOW J: Just to interrupt for a minute, the position with mandamus at general law which seems to be controlled simply by notions of delay and perhaps conduct of the parties is in Bodruddaza 228 CLR 651 at 667 paragraphs 40 to 42. So the question is whether there is any departure from that general provision of the ordinary law in New South Wales.
MR LEEMING: Thank you. We will check that.
GUMMOW J: Thank you.
MR LEEMING: To answer first of all Justice Hayne’s question about entertain, we, I think in contrast to my learned friends, give real work to those words in 15(5)(b) “No claim shall be entertained”. We do not merely say they are emphatic, although they are.
GUMMOW J: Perhaps before you do that, what work do you give to the phrase “under this Act” and what is the point of the disjunction between “entertainment” and “payment”?
MR LEEMING: I just misheard your Honour. Is it within 15(5)(b), “or payment made under this Act”?
GUMMOW J: I was looking at 12, but it will occur again, I guess.
HEYDON J: Yes, it is a recurring phrase, “entertained or payment made under this Act”.
MR LEEMING: I am so sorry. The second last paragraph of 12(1)?
GUMMOW J: Yes, but it occurs elsewhere, does it not?
MR LEEMING: It is there and it is in a slightly different form in 12(1)(a).
GUMMOW J: And in 15(5)(b). Perhaps that is the critical one, is it?
MR LEEMING: Yes, it is. First of all, dealing with the first instance which is the second last paragraph within 12(1), that is the paragraph that deals with section 16 of the Mines Subsidence Act 1928. There is a parallel between that – largely historical now, of course – and the critical one, 15(5)(b). That is because in both cases the legislation expressed a very clear policy with criminal sanctions in both cases to require certain things to be done. If you were a property developer subdividing land in a subsidence district, then you had to get a conditional right to insure under section 16 of the old Act and you had to tell purchases about that and, if you did not, it was an offence. I will just give your Honours a reference. It is section 16(5) of the 1928 Act that does that.
GUMMOW J: Just a minute. Section 16(5).
MR LEEMING: Mr Gleeson helpfully handed it to your Honours. The land developers who alienate “land in contravention of this section” are “guilty of an offence . . . penalty not exceeding one hundred pounds”.
HAYNE J: But it was also registered?
MR LEEMING: Yes, indeed so and purchasers could find out about it.
HAYNE J: Yes.
MR LEEMING: So too, as we know, under 15(5) the policy goal of having the Board within something that is declared to be a mine subsidence district as the consent authority from whom approval must be sought before there be subdivision or improvements erected was – sorry, contravention of that in 15(7) gives rise to an offence, “Maximum penalty: 20 penalty units”. To give effect, we say, to that sensible policy goal, the same language “no claim shall be entertained” is used.
That means, first of all, as was said by one member of the Bench, in cases where that policy has not been achieved they simply stand outside of the scope for the Board to grant compensation. That is one obvious consequence and ready reading of the provision. But it goes further and we give further work to those words “no claim shall be entertained” in both cases because they are directed to the powers of the Board in terms.
The entertainment of a claim that is referred to is, we accept, the matters describe in section 12(2)(b), my learned friend’s favourite paragraph; record, investigate, report, decision by the Board. That all falls within entertainment. The powers that the Board has been given to fulfil those statutory obligations are considerable.
GUMMOW J: It is the Royal Commissions Act, is it not?
MR LEEMING: Indeed. These people have the power to compulsorily obtain information on oath. Your Honours have not been taken to section 8 which confers that power on them. It is all of the Royal Commissions Act with the exception of Division 2, Part 2. So that privileges against self‑incrimination and legal professional privilege are preserved but otherwise compulsive powers of Royal Commissioners are afforded to the Board.
The activities and functions that the Board fulfils in the course of exercising the powers upon it are contained in section 16 – I think that is the other provision to which the Court has not yet been taken – and rather like 12B itself, that is a provision that descends to the integers of the various issues, each of which a claimant must persuade the Board on, in order to have a successful claim. So they are expressly questions of causation, of substance and reasonable anticipation – are there set out in terms – as well as, at the end, the power:
to ascertain whether the provisions of this Act or any determination of, or condition imposed by, the Board under the provisions of this Act have been or are being complied with.
So, very clearly, there is an express conferral of power, not only for the big issues of causation and quantum but also for, are you within time, is the improvement within a mine subsidence district, has there been approval? To answer belatedly your Honour Justice Hayne’s question we say that that command, “No claim shall be entertained” unless there is a certificate, in terms directed, we say, to the powers and the exercise of the powers by the Board, compels the Board to approach its decision‑making function in a particular order. There is a prohibition in 15(5)(b).
The first question for the Board is not to start exercising its quite powerful Royal Commission powers on questions of quantum and causation but instead ask some rather simple questions, is this improvement within a mine subsidence district, was there an approval? If not, do not entertain the claim, and these powers simply cannot be exercised. So it speaks to the exercise of powers as well as the preservation of the fund, and that gives, we say, real work to those collocation of words, “No claim shall be entertained” and also “or payment made”.
CRENNAN J: May I just ask, Mr Leeming, given the fact that failure to get an approval is an offence and, indeed, a failure to insure under the old Act was an offence, what is the administrative procedure and so on for tracking approvals?
MR LEEMING: That is a question that was asked of my learned friend. The Act on the subject of approvals is a little opaque. The application itself must be made in a form as a matter of practice, I say, but it does not flow from the Act. Approval itself comes in a form ‑ ‑ ‑
CRENNAN J: I am really asking about the recording of such matters.
MR LEEMING: There is a record made both of those matters and also of the various claims that are received. On the claims that are received, a question which did arise, there is an obligation in section 12(2)(b) for the notification. It “shall be recorded” and that therefore enlivens the provisions of the State Records Act requiring those records to be maintained and made accessible in certain circumstances.
GUMMOW J: Just a moment, 12(2)?
MR LEEMING: Section 12(2)(b), “shall be recorded” enlivens State Records Act obligations.
HEYDON J: What flows from that, page 15? Is it open to the public?
MR LEEMING: I am not sure, but it was an attempt to answer a question that was ‑ ‑ ‑
HEYDON J: But is it open to the public, if you were buying land, or a solicitor wanting to check?
MR LEEMING: Is that something that we could provide a short note on to assist the Court?
GUMMOW J: What is the relevant provisions in the State ‑ ‑ ‑
MR LEEMING: Can I include that within the note, your Honour?
GUMMOW J: Yes. What is the State statute? We do not have these.
MR LEEMING: There is a new one. It is the State Records Act.
GUMMOW J: Is it called the State Records Act?
MR LEEMING: We believe so, and we will make sure what is on the note is correct.
GUMMOW J: Yes, all right. It is quite important, I think.
MR LEEMING: Can I answer more fully your Honour Justice Kiefel’s question about what was before the Board and when and on what basis. At appeal book 134 is AGL’s letter of 24 March 2004, which is probably the best window into the two applications concurrently that were before the Board, and this is in part answering your Honour’s question and in part explaining what Justice Tobias said in the paragraph that my learned friend was critical of.
That letter refers in terms to an application by AGL for a 15B(3A) certificate. That can be seen towards the bottom of the second full paragraph of 134, but more formally at the top of 135 they say, from the middle of the second line:
we ask that you treat this letter, and our previous correspondence, as an application for a section 15B(3A) certificate for the section of our pipeline.
HAYNE J: The presupposition of that and, indeed, the conventional basis for this litigation is that such a permission of the kind described in the certificate was necessary?
MR LEEMING: Indeed, and necessary because this application was being made expressly on the basis that there was not approval.
HAYNE J: Yes. So we do not need to get into any question of intersection with the Pipelines Act or any of those ‑ ‑ ‑
MR LEEMING: Not at all.
HAYNE J: Yes.
MR LEEMING: To be fair and complete, it is clear on the face of the same letter from the bottom of page 134 that AGL was not conceding that the pipeline had not been approved. The reference there to lack of records within both AGL and the MSB makes that clear. But in answer to your Honour Justice Kiefel’s question, the application before the Board, which was rejected, as we know, for the three reasons that my learned friend was a little critical of, was an application under 15B(3A), an integer of which was we do not have approval.
Just to make that good, if one turns to 15B(3) and (3A) they are, as Justice Biscoe described, two quite distinct gateways to getting a certificate. The 15B(3) gateway occurs when there has been approval by the Board, so the Board must be satisfied that an improvement was erected in accordance with the Board’s approval, or there are de minimis departures. In contradistinction, 15B(3A) requires the satisfaction of the Board that, in paragraph (a):
an improvement or a subdivision . . . would have met the requirements of subsection (3) had the Board’s approval been obtained –
KIEFEL J: Could I ask you about (b). Given the policy that you have referred to earlier about non-approvals, what does (b) mean? In what circumstances would it be appropriate to grant a certificate?
MR LEEMING: One could imagine a case where a claimant says, “We have done everything right, but we were ignorant of the fact that this was a known subsidence district and we needed to get approval. We have only just realised that. We are trying to do the best we can to remedy the fact that there is a contravention of the Act in what we have done. It was wholly inadvertent and we are fixing it up as soon as we can. Therefore please give us one”. That, of course ‑ ‑ ‑
KIEFEL J: I will let you come to the letter from the Board and the reasons for refusal, but is that part of what they are saying to AGL, that you were a big commercial entity and you knew what you were doing?
MR LEEMING: Yes, and the big pipeline that is a few yards to one side of your pipeline put in by Alinta at one stage, a competitor no longer, did get approval. My learned friend took you to the passages in the submissions that deal with that.
GUMMOW J: Subsection 15B(3) says “the Board shall” issue the certificate. One can understand that, but (3A) is “may”.
MR LEEMING: Quite. There is a difference between those two that should be recognised. That difference is consistent with the functions that are being performed. Section 15B(3) is dealing with someone who has put their hand up and obtained approval but perhaps, for example, there were some slight deviations in the approval. Section 15B(3A) is a remedial provision inserted afterwards in point of time and as a favour to the applicant putting them in a better position then they would otherwise have been. So it is a real discretion. The fact that (3A)(b) makes an element of the Board’s satisfaction appropriateness, confirms that that is a discretionary nature.
Now, reasons are to be given, as my learned friends pointed out from 15B(5), that is the decision that was made. It is not the subject of appeal in this Court although it was in the courts below. We say, as we said below, if they are dissatisfied with that decision, if, for example, they point to some error of law on the face it, then prohibitive relief relies. But one thing that is clear, we say, is that that decision is not a decision as to the amount or a decision as to whether damage has arisen and falls outside of the 12B appeal.
So then, as can be seen, back to page 135, in the same letter, which was the formal application for the 15B(3A) certificate, AGL applied in principle and in anticipation for a large amount of compensation for works that it was in the process of doing and was intending to do. That separate application was refused, as we know, because the Board formed the view that it could not entertain the claim. The Board is not to be criticised, in my submission, for the brevity of its reasons. It has made it perfectly clear. It may be right or wrong about whether 15(5)(b) stood in the way of both the 12 and the 12A claim. That does not matter a jot, in my respectful submission, as to whether that decision is one which falls within the scope of 12B ‑ ‑ ‑
GUMMOW J: This is all happening in 2004?
MR LEEMING: Yes.
GUMMOW J: When did the Australian Gas Light Company take its present persona of Alinta LGA Limited?
MR LEEMING: After the Court of Appeal decision and part of the same contretemps that your Honours had to deal with and handed reasons down just a few days ago. For much of early last year and the end of the year before there was a series of Alinta AGL litigation, but at all relevant times for the purposes of this appeal, that is to say ‑ ‑ ‑
GUMMOW J: It is the same corporate entity, is it?
MR LEEMING: I should know the answer to that. As I stand here I believe there was not merely a takeover but also a scheme.
HAYNE J: A scheme into Mergeco, was there not?
MR LEEMING: I think the answer to your Honour’s question maybe, no, but it is irrelevant for ‑ ‑ ‑
HEYDON J: It is inherited.
GUMMOW J: But we can assume the necessary corporate succession, can we?
MR LEEMING: Yes, certainly, which is the only thing that matters.
GUMMOW J: We will assume that unless Mr Gleeson says otherwise.
MR LEEMING: There are two points remaining that I need to deal with. One is my learned friend’s reliance upon section 39 of the Land and Environment Court Act. That does not help him at all and, in my respectful submission, there is a misreading of what section 39 achieves. Section 39(2), true it is, gives the court additional functions and discretions in certain appeals, in class 1, 2 and 3, but section 39(2), although it confers those functions and discretions, it only does so “for the purposes of hearing and disposing of an appeal” and “an appeal” is defined for section 39 in subsection (1) as meaning relevantly:
an appeal, objection, reference or other matter which may be disposed of by the Court in proceedings in Class –
in this case –
3 of its jurisdiction.
That directs one back to section 19 which identifies the matters falling within Class 3 of its jurisdiction that it can herein dispose. The only way into Class 3 of the Land and Environment Court’s jurisdiction is that given by section 19(f1):
appeals under section 12B of the Mine Subsidence Compensation Act –
GUMMOW J: Yes, but I think your opponent is saying, if he gets in the door, as he says he does, he then has the benefit of this.
MR LEEMING: I do not have anything to say against that.
GUMMOW J: You do not dispute that?
MR LEEMING: I do not dispute that at all. What I do dispute, though, is that one can use the benefit that you might get, once your foot is in the door, to put your foot in the door in the first place. If this falls outside of an appeal under section 12B, it is therefore outside of Class 3 of the court’s jurisdiction and the fact that there would be all these extra powers and functions if one had enlivened the appellate jurisdiction of the Land and Environment Court under section 39(2) does not add anything at all. It is the same.
The same position obtains with section 16(1A) of the ancillary jurisdiction, you cannot bootstrap yourself into jurisdiction through that. There must be something within the conferral of jurisdiction and that comes either directly from 12B itself or in conjunction with 16(1) of the Land and Environment Court Act. That is where the Court’s jurisdiction is.
GUMMOW J: You said there was one more point, I think?
MR LEEMING: I did. I have already dealt with most of it. We embrace what is said by the trial judge, as I have said, at paragraphs 73 to 78, by Justice Tobias at 94 to 95 and Justice Handley at 107 to 114. The critical passages have shrunk because of the shrinking of this appeal, as my learned friend has referred the Court to. We disagree, respectfully, with Justice Hodgson’s reasons. I have dealt at some little length with that which appears on pages 208 and 209. I have not quite dealt with paragraph 10. I will do so concisely. The difficulty, we say, in the reasoning at paragraph 10 is that on analysis the operative sentence simply renders words otiose that should be given work to do. Let me be more precise. His Honour says:
Although, in the latter case, the 1961 Act provides that no claim should be entertained or payment made, in my opinion the use of that conjunction in the Act –
and the reference to that conjunction we read as a reference to “or” between entertaining a claim and making a payment. His Honour says:
in my opinion the use of [or] simply means that no claim should be acceded to the point of making a payment.
That, with respect, simply reads out of all operative co‑operation the preceding words, “No claim shall be entertained or”, as is appropriate ‑ ‑ ‑
GUMMOW J: And you read the phrase under this Act as attaching to both entertainment and payment?
MR LEEMING: Yes, I am, that is a fair reading of the section, although if I am wrong no different result obtains. What I have sought to do lengthily in answer to Justice Hayne’s question is to give those words some work to do, I will develop that and I will not repeat it. But what his Honour has done, with respect, in paragraph 10 is simply say, those words do not have any work at all to do because to say that no claim should be acceded to the point of making a payment is merely to say no payment should be made under the Act that get to the operative words. Unless I can be of further assistance, and noting the ‑ ‑ ‑
GUMMOW J: Yes, well, you need to tell us at 2 o’clock if you can what the New South Wales situation is.
MR LEEMING: Yes, I will do what I can.
GUMMOW J: We will adjourn until 2 pm.
AT 12.48 PM LUNCHEON ADJOURNMENT
UPON RESUMING AT 2.02 PM:
GUMMOW J: Yes, Mr Leeming.
MR LEEMING: Can I deal with three outstanding matters. The first is time limits in New South Wales for mandamus; there are none. I think that is common ground between us. On that topic might we refer the Court as well to section 65 of the Supreme Court Act which gives a new statutory simplified version of mandamus described in the notes as being orders akin to mandamus but stripped of the technicalities which restricted their efficacy.
HAYNE J: You are not going to explain this to us, Mr Leeming?
MR LEEMING: I am happy to do so. It has a history that derives in the Commonwealth Procedure Act. But in a matter of substance your Honour Justice Crennan observed discretionary considerations will obtain to all of those. Secondly, in relation to access to such approvals as the Board has given from time to time, I mentioned the State Records Act. It is the State Records Act 1998 (NSW). The relevant provisions of the definitions of “public office” and “State record” and section 11 of the Act imposes an obligation upon such offices to keep State records ‑ ‑ ‑
GUMMOW J: “State record” as defined in section 3(1)?
MR LEEMING: Yes, it is not going to assist in answering the matter that was of concern before lunch because this is simply preservation for archival purposes rather than access ‑ ‑ ‑
GUMMOW J: Yes. Not inspection.
MR LEEMING: Quite. The answer to that, we would suggest, is section 15B itself, that is in the legal sense. In the practical sense, I am instructed there are registers and they are made available, but there is no evidence about any of that. On the face of the statute, though, and if one thinks of the typical example when one would be keen to know, one is thinking of buying a house in a mine subsidence district and wants to know whether the vendor or his or her predecessor had obtained an approval so that if some subsidence does cause damage to it you can put up your hand for compensation, that certainly was the expressed purpose for introducing 15B(3) certificates and it explains why in 15B(3) there is an obligation, a “Board shall” issue the certificate in contrast to the discretionary “may” in 15B(3A).
Can I refer the Court to the second reading speech. It is conveniently in Mr Gleeson’s bundle which concerns 15B. It is at page 145 behind tab 6. In the Legislative Assembly on 19 September 1989, page 10127, the very bottom of the page, The Minister in 1989, Mr Pickard, said of 15B, the last line:
The community is protected by certificates issued by the board. If any requirement of the Act is not complied with, a certificate cannot be issued.
And he deals with the problem that lending institutions would not lend money that without the comfort that if something happened to the property over which they were taking security, they would not be protected by the
right to compensation. So in the same place where the Minister is introducing a better form of certificate, a 15B(3A) certificate, he also discloses the purpose behind the 15B(3) certificate.
The third and last thing was to clarify, if clarification be needed, where I stand in relation to paragraph 56 of Justice Tobias’ reasons. I did touch on them and I want to make it absolutely clear that it seems to have been – we say it is common ground, and I believe that it is, that the only application for a certificate that AGL ever made was for a 15B(3A) certificate, not a 15B(3) certificate. I took the Court to the pages that made that quite plain. That is what his Honour says at paragraph 54 at appeal book 224. As I think I made plain before lunch, we recognise that AGL both before the Board and in the court never conceded that there was no approval for the construction of the pipeline. That is a live issue if these proceedings ever be litigated.
When one looks at what Justice Tobias said in paragraph 56, it does seem to be wrong. It certainly is wrong at least on a grammatical level. It looks at though he is missing a “not”. But we accept for all purposes that when AGL’s section 12 and 12A compensation claim was refused, as it was for want of a certificate, Mr Gleeson is completely right to say that within that is a finding that it was within a mine subsidence district and there was not an approval and, therefore, the lack of a 15B(3A) certificate was fatal to the claim. I do not think there is any dispute between my learned friend and I, but he is right. Paragraph 56 does not accurately record those facts.
HEYDON J: My learned friend and me.
MR LEEMING: Yes, your Honour. Those are the additional matters I wish to make.
GUMMOW J: Thank you, Mr Leeming. Yes, Mr Gleeson.
MR GLEESON: Your Honours, on the outstanding matters, we agree as to there being no time limit on mandamus. The 1928 Act was the first Act dealing with the present issue of subsidence. The offence provision was introduced in 1966 by Act No. 9.
GUMMOW J: Just a minute. That is Act?
MR GLEESON: No. 9 of 1966. Your Honours, the matters in reply, there are six. The first concerns Brown’s Case 7 FCR 302. We rely upon the whole of page 304, not just the first part. It is clear from the second half of page 304 that two critical reasons for the decision that the appeal in that case had a narrow subject matter included the fact that there were elaborate procedures for determining questions of fact before the administrative body. That is 304, point 8.
Just above that, the legislature did not give a general provision like section 39 to the court in respect of these appeals. The actual provision is set out at the foot of the page, the court may affirm, set aside or remit. We distinguish the present case where there is no elaborate or any procedure for how facts are determined before the Board and we have section 39.
Your Honours, the second matter concerns the difficult question of the interaction between the making of a claim and the prohibition upon entertainment. We submit that for a person to be a person claiming compensation within the opening words of section 12B, all that is necessary is that the person has provided an appropriate notification complying with section 12(2)(a) and that the person has identified that they are seeking money under section 12 or section 12A. That must be so because once that claim has been lodged all of the Board’s duties and powers are enlivened in determining whether it is a claim which should not be entertained.
Specifically, we embrace Mr Leeming’s reference to section 8, the powers of the Royal Commission, section 16, the powers of inquiry and section 16(1A) powers of entry. They are all powers which the Board may exercise in determining the questions whether this is a claim not to be entertained. So, one has a valid claim. The court must exercise the appropriate powers and in deciding whether the pipeline was approved or whether the certificate should be issued all those powers are available.
The third matter which follows is that we disagree with Mr Leeming that the decision as to these questions of approval and issue of a certificate are in some way ill‑suited to the merits jurisdiction of the Land and Environment Court. They are the very types of questions determined by a superior court and by that court by the application of a curial process to dismiss them as simple or not requiring the full powers of the Act or as being matters solely in the Board’s expertise we would reject.
Your Honour, the fourth matter is that as we do place more reliance on section 12(2)(b) than does the respondent, we submit that the requirement there that the notification be investigated, reported on and then decided upon, of itself embraces the process of investigating and considering all the questions which arise under the non‑entertainment provisions. Is it approved? Should there be a certificate? Has insurance been complied with? Is it damage caused by an extractive operation? That is all part of the process of the investigation and, accordingly, the decision which results from it is one which is reflective of compliance with those sections in the Act.
If, as Justice Hayne put to me, the end result of that process is the Board says, “Looking solely at the roadblocks, I conclude we cannot go further”, that may be so. Our proposition is that the process of the Board must conclude in a decision as to payment under 12(2)(b). If it does not, the Board has not finished its task, and in the present case, that is the very thing we submit it did.
I will not repeat the debate I had with Justice Kiefel as to whether the Board simply said, “We are not entertaining it”, or whether, as we would put it, the Board said, “Because of our understanding of 15(5)(b) the decision is nil”. So following from that we do seek to decouple the prohibition upon entertainment from the ultimate question in the case which is whether that prohibition upon entertainment in certain circumstances binds the Board and then binds the court, which is how we would see it working out.
Your Honour, the fifth matter is that Mr Leeming referred to section 15(5)(b), (3A) and said the Board has a discretion because of “may”. We would again apply Leach’s Case. If the Board decides it is appropriate in the circumstances then “may” means “shall”.
GUMMOW J: Just before you come to the sixth point, could you give us some help with section 14 of the Act, the provision that deals with “Liability of proprietors”. What is the effect of it? There is no relief under subsection (2) in respect of subsidence caused by negligence ‑ ‑ ‑
MR GLEESON: Yes, it leaves open actions both under the common law and under section 177 of the Conveyancing Act which is the statutory replacement of “nuisance”, at least arguably so.
GUMMOW J: That is what I was wondering about, yes.
MR GLEESON: But provides a degree of immunity under subsection (1) and in terms of the quid pro quo of the scheme that very valuable immunity which they obtain, we submit ‑ ‑ ‑
GUMMOW J: Wait a minute, what then is the extent of the benefit? Are you still liable under 177 and you can still be liable under the tort of negligence. What can you not be liable under, Rylands v Fletcher, or what?
MR GLEESON: Your Honour, “nuisance” per se is gone, “negligence” appears to remain and I have to say it is an undecided question whether 177 applies in the light of two New South Wales statutes dealing with the similar subject matter in different ways.
HAYNE J: But for this it would have been an action in nuisance, would it not?
MR GLEESON: At least nuisance, yes, your Honour, and perhaps when the Act was first enacted people may not have thought of negligence.
GUMMOW J: It was in the 1928 Act. It was section 6 in the 1928 Act which again talked about negligence which is looked at rather differently in 1928, I suspect.
MR GLEESON: We are urging your Honours not to construe the difficult statutory question against a broad freestanding notion of what would the colliery proprietors be expecting to achieve.
GUMMOW J: You have to read the Act as a whole, step one.
MR GLEESON: You have to read it as a whole, and that includes the fact that the improvement owners are also represented on the Board in section 6, and what we submit the submission is that they attain this immunity in exchange for (a) their payments and (b) the certainty that the whole range of questions affecting the claim, including those expressed in terms of non‑entertainment, will be determined by a Board unbound by procedure, and then they will be exposed to judicial power in the court.
Your Honours, the sixth matter was Mr Leeming took you to the 1989 amendment to the Land and Environment Court Act and said, “We observe that although it did confer a class 4 jurisdiction on section 15D decisions it said nothing about the issue that is troubling us”. We would take some support from that, that the reason the legislature would not have put any issue such as the one we are grappling with in class 4 is for the very reason the legislature understood that the appeal right in section 12B would cover all such issues.
Your Honour, the last matter was that reliance was placed on Justice Biscoe paragraphs 77 and 78. When your Honours review paragraph 78 of Justice Biscoe he takes some comfort from section 7A of the Act as recognising a distinction between what he calls two classes of claimants, one who have their case considered on the merits and one who do not. If your Honours review section 7A, it has nothing to do with that fact at all. Section 7A merely says that people who have the benefit of favourable decisions under either of those areas cannot have them reconsidered without their consent. If your Honours please, they are our submissions.
GUMMOW J: Thank you, Mr Gleeson. Do you want to say anything more about section 14, Mr Leeming?
MR LEEMING: No, your Honour.
GUMMOW J: Yes, we thank counsel for their assistance in this matter. We will reserve our decision and we will adjourn until 9.30 am tomorrow in Canberra and 9.30 am tomorrow in Sydney.
AT 2.20 PM THE MATTER WAS ADJOURNED
Key Legal Topics
Areas of Law
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Administrative Law
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Statutory Interpretation
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Negligence & Tort
Legal Concepts
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Judicial Review
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Statutory Construction
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Duty of Care
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Negligence
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Standing
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Natural Justice
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