Alinta LGA Limited (Formerly the Australian Gas Light Company) & Anor v Mine Subsidence Board

[2007] HCATrans 598

[2007] HCATrans 598

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Sydney  No S253 of 2007

B e t w e e n -

ALINTA LGA LIMITED (FORMERLY THE AUSTRALIAN GAS LIGHT COMPANY)

First Applicant

ALINTA AGN LIMITED (FORMERLY AGL GAS NETWORKS LIMITED)

Second Applicant

and

MINE SUBSIDENCE BOARD

Respondent

Application for special leave to appeal

GUMMOW J
HEYDON J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON FRIDAY, 5 OCTOBER 2007, AT 11.06 AM

Copyright in the High Court of Australia

MR J.T. GLEESON, SC:   May it please the Court, I appear with MR J.R. WILLIAMS for the applicants.  (instructed by Freehills)

MR M.J. LEEMING, SC:   May it please the Court, I appear with MS J.K. TAYLOR for the respondent.  (instructed by Crown Solicitor’s Office)

GUMMOW J:   Yes, Mr Leeming, we would be indebted if we heard first from you.

MR LEEMING:   Your Honours, there are two reasons for refusing special leave; insufficient prospects of success and insufficient public interest.  It will be easier to deal with the second first because I can be quick.  This 1961 Act has not troubled even the Court of Appeal in the last 46 years.  It is sui generis New South Wales legislation.  The position is now completely settled by two decisions of the Court of Appeal this year.  My learned friends in their submissions point to the possible utility of this Court’s learning in relation to other State legislation.  They do not point to any particular example.  We are not aware of any, and it would require some other form of executive decision‑making where there is a split between judicial review and merits review in different courts, as is the case with the Land Environment Court and the Supreme Court here.  For those reasons, even if, which we deny, there were sufficient prospects of success, this does not warrant this Court’s intervention on this New South Wales legislation.

GUMMOW J:   What is the error that you point to in the dissenting judgment of Justice Hodgson?

MR LEEMING:   If your Honour has page 57 of his Honour’s reasons, my learned friends make much of the matters listed in paragraph 4 of the issues which his Honour says “can arise for determination by the Board”.  We disagree.  In a case like this where the applicants never before the Board contended that they did have approval and only – and I will take your Honours to the factual finding by the primary judge – where they only sought to approach the Board on the basis of a section 15(3A) certificate.  Then the only issue that arises out of the seven listed in paragraph (1) is (g) and his Honour’s correct reference to 15(5)(b) is to a provision that says  that no claim shall be entertained or payment made.  

In a case like this where there was before the Board no question of an informal approval by the Board to the pipeline some decades ago being constructed and where there was no doubt that there was no 15B(3A) certificate, then the only issue that arose was (g).   The question then is, how does his Honour deal with the construction of section 15(5)(b)?  As we read his Honour’s reasons, there is only one reference to that.  That is in the last two sentences of paragraph 10 on page 59, where his Honour grapples with the point and says:

Although, in the latter case, the 1961 Act provides that no claim should be entertained or payment made –

His Honour then construes the Act in a way that we say is simply wrong and easily disposed of and was disposed of by every other judge who has considered this point.  His Honour says:

in my opinion the use of that conjunction –

that is the “or” –

in the Act simply means that no claim should be acceded to the point of making a payment.

GUMMOW J:   Where do we see the text that he is pursuing?

MR LEEMING:   Probably most conveniently in my learned friend’s bundle of authorities, tab 1, page 20 of the book, at page 17 of the reprint, your Honours can see the whole of section 15(5).  Paragraph (b) is the relevant paragraph.  Your Honours will see the critical words are the opening words of paragraph (b) and the gloss his Honour places upon those words “or payment made”.  We say those are words that yield a very simple construction.  Those words “or payment made” strengthen the prohibition in the opening five words rather than diluting it, as his Honour has defined.

GUMMOW J:   But you would never get to making a payment if the claim had not been entertained.

MR LEEMING:   That is the simple point.

GUMMOW J:   What is the point of the words then?   What work are they doing?

MR LEEMING:   First of all, out of an abundance of caution, they are not weakening the actual words, they are strengthening it.  Secondly, there is scope in section 13 of the Act on page 16 of that book, “in lieu of making payments” for the Board to buy the land and perhaps they were ‑ ‑ ‑

GUMMOW J:   I am sorry, whereabouts in 13?

MR LEEMING:   I am sorry.  Section 13, “The Board may, in lieu of making payments” for compensation for subsidence damage can come to an agreement with the owner to acquire the land.  Now, it is possible that those latter words make it clear beyond doubt, although it is hard to see there was much doubt beforehand, that none of the remedial beneficial provisions of this Act apply where there is not a 15B(3A) certificate and where there has been a contravention of section 15.  That will give some use to them, but primarily, we put it, it would be unlikely for those words to dilute the force of the prohibition in the opening words.

GUMMOW J:   When it says, “no claim shall be entertained”, it is an odd use of language really, what does “entertained” carry with it?

MR LEEMING:   It means, we think, as his Honour Justice Tobias found, a claim comes to the Board, the Board has to look at it and has to be faithful to the prohibition, the Board has to determine ‑ ‑ ‑

GUMMOW J:   Where is the Board’s power?

MR LEEMING:   In section 12 and 12A.  Those provisions enable owners to make claims under the Act.  Your Honours can see that the same language of neither entertaining nor making a payment appears in section 12(1) immediately after paragraph (d).  So it is rather odd old‑fashioned ‑ ‑ ‑

GUMMOW J:   Sorry, section 12(1)?

MR LEEMING:   In subsection (1) immediately after paragraph (d) there is another prohibition:

No claim shall be entertained or payment made under this Act . . . a conditional right to insure granted under section 16 –

So, although I accept that the language is less than straightforward, at least there is the virtue of consistency.  There are further general words confirming the power in 12(5), the section 12 claims, which is then picked up for section 12A claims by section 12A(3).  It says that those earlier provisions apply mutatis mutandis to section 12A claims.  So directly in answer to your Honour’s question, a  claim comes in to the Board, there is a prohibition or a restriction on the Board’s power to make a payment, which is ultimately what the claimant is after, by section 15(5)(b).  The Board has to, in our submission, consider whether or not there has been a contravention of section 15.  

In the present case there was no question about that, having regard to Justice Biscoe’s factual findings at paragraph 68, to which I can go now.  Much is made in my learned friend’s submissions about the fact that in a land and environment court, as opposed to in its dealings with the Board, the applicants did contend that there had been some sort of informal

approval by the Board and so it did and we accepted that.  But after careful examination of the documentary matters that were before him, at leave book 37 Justice Biscoe dealt with the two different doorways.  He said, “AGL tried to enter through the second door only, under s 15B(3A)” and his Honour sets out there exactly why that is so. 

If one accepts that the question posed by the statutory appellate grant in 12B requires attention to the decision of the Board, then one asks, what was the Board doing, and answers, this is a case where the applicant before it had erected a pipeline without there being a section 15 approval.  That is easy and that was the only thing that was put.  It was also quite plain that there had not been a section 15B(3A) certificate.  Those two things had to be considered.  Once the Board formed the view that neither of those two preconditions were satisfied, then the prohibition in 15(5)(b) bit and it could not entertain the claim.

All four of the judges agreed that refusal of a claim by reason of the absence of a 15B(3A) certificate does not enliven 12B appellate grant and that must be right.  That is not as to damage or as to causation.  My learned friend’s last ground of appeal seeks to resurrect Justice Biscoe’s reasoning, that is, the concluding words in one of the letters.  That is easily found in the letter at page 146 of the special leave book appended to my learned friend’s summary of argument.  At the top of page 146 the Board says in the second line, “I draw the following  matters to your attention” and sets out its views about subsidence that has taken place. 

Two things to say; as it turns out, the Court of Appeal has now held in another decision that that is right, there is no application to this Court from that, but more importantly, all members of the Court of Appeal agreed, as we would say is fairly plain on the face of that paragraph, that that is not dispositive.  It is not decision at all and does not give rise to any appeal rights.  I think in doing that I have dealt with all of the grounds of appeal my learned friend wishes to put.  They are the reasons why we say there should not be a grant of special leave.

GUMMOW J:   Thank you, Mr Leeming.  Yes, Mr Gleeson.

MR GLEESON:   Your Honours, could I deal with four aspects of the statutory scheme which is at tab 1 of our booklet.  The first is that section 10(3)(a) creates a right to a payment out of the statutory fund in circumstances where the amount is payable under the Act in respect of damage caused by subsidence.  That statutory right is then defined through a number of sections.  If I can identify them, section 12(1)(a) has the first element of the statutory right.  At the end of section 12(1) there are two further aspects of the statutory right, “No claim shall be entertained  or payment made”.  That is the first paragraph and then the next paragraph also goes to the nature of the right. 

Section 12(1A) goes to the nature of the right and, critically, a further aspect to the right is found in section 15(5)(b), namely, if the improvement was erected in contravention of the section – that takes one down to 15(7), erected without approval – then the claim shall not be entertained or payment made.  So two aspects of the right arising there are, did you have approval?  If not, do you have a certificate under section 15B(3A)?  That is the right.

Secondly, as to the method of claiming the right, that is found in section 12(2)(a).  That is how one claims the right and in the present case  AGL claimed a right to compensation under this section.  The third element is the power of the Board as an administrative body to make a decision in respect to the claimed right and that is found in section 12(2)(b).  That is a critical provision.  It requires the Board to investigate, report and then make “a decision as to the payment, if any, to be allowed in respect of the [claimed] damage”.  That is the power of the Board to make a decision as an administrative body on the right.

GUMMOW J:   What version are you reading from?

MR GLEESON:   I am reading from section 12(2)(b) on page 15.  That is the power of the Board as an administrative body to make a decision on the claim.

GUMMOW J:   Yes.

MR GLEESON:   It is the most critical section the majority Court of Appeal have overlooked because the legal effect of that is, if the decision is,  yes, a payment may be made as to X dollars, it then becomes lawful under section 10 for that payment to be made.  If the decision is a nil payment, it is unlawful to make a payment out of the fund.  The fourth section of the Act that is relevant is section 12B, which is the appeal right.  It is phrased as an appeal against the decision of the Board on two matters, critically (b), “as to the amount of the payment from the Fund”, a direct reference back to the section I have just been to, section 12(2)(b). 

What has been established in State jurisdiction is a similar scheme of conferral of jurisdiction to that your Honours are familiar with in the federal scheme of the court having original jurisdiction to decide a stated controversy, namely, do you have  a right to a payment from the fund with the administrative body having earlier made its decision on that matter?   We have given your Honours at tabs 3 and 4 cases you will be well familiar with in the federal ‑ ‑ ‑

GUMMOW J:   What does this phrase “as to the amount of the payment” mean?  If you cannot get to that?

MR GLEESON:   Any decision by the Board under section 12(2)(b) that you get a nil payment, your amount is nil, whatever reason they have given for it or not given for it, you have a decision which satisfies the requirements of the earlier section, namely, it is of legal effect.  You cannot get money out of the fund.

GUMMOW J:   You fix upon the words in section 12(2)(b), second‑last line “for a decision as to the payment, if any”?

MR GLEESON:   Yes.  That is their task as an administrative body.  What payment, if any, are you to have?  Once they make a decision that the payment is nil, whatever reasons they give or do not give, you have a right under 12B to approach the court in its original jurisdiction de novo and have the court decide by the exercise of judicial power what is the amount you are entitled to.  The fact that it is de novo is confirmed by the  Land and Environment Court Act, which the majority did not refer to.  Your Honours have that Act at tab 2, in particular, section 39 on page 29, between subsections (2) through to (5) confers a de novo jurisdiction in the broadest of possible terms.

Indeed, under subsection (5) the decision of the court becomes the final decision of the Board.  If the court says we are entitled to $10, that becomes the decision which enables $10 to be paid out of the fund.  The majority’s error is, instead of concentrating on the statutory conferral of jurisdiction, they were distracted, with respect, by the particular reasons the Board gave, reasons we say are wrong, and, in addition, they introduced a distinction which is found nowhere in the statute that it all depends whether the Board gets to the merits ‑ ‑ ‑

GUMMOW J:   Is not section 39(2) of the Land and Environment Court Act important?

MR GLEESON:   It is very important, your Honour.

GUMMOW J:   Is this adverted to by the majority?

MR GLEESON:   No, but Justice Hodgson did advert to it, correctly we would submit, in our favour, on page 60 of the book at paragraph 15.  One of the critical reasons we seek the appeal is that, pursuant to section 39(2), the court, exercising the function or discretion of the Board, can do two things.  The first is it can decide our factual contention that we had approval all along as a matter of fact, in which case we are fine, or it can decide whether, as a matter of discretion, to grant us the section 15B(3A) certificate that was sought all along.  They are two matters we can obtain from the court by way of judicial power, which is a very different remedy to being told go to the Supreme Court and seek judicial review.

GUMMOW J:   It is not a judicial review operation at all.

MR GLEESON:   Not at all.

GUMMOW J:   Section 39(3) is important as well.

MR GLEESON:   It is very important, your Honour.  With respect, Justice Tobias was misled by the legislative history.

GUMMOW J:   I want to be sure about this.  Is there any reference by the majority to 39?

MR GLEESON:   We could not find a reference by the majority to section 39.  There is some discussion of other provisions around pages 89 through to 91.

GUMMOW J:   In a way, the first task is to work out what had been the charter of the Environment Court.

MR GLEESON:   Exactly, and it is a charter in the broadest of terms and, your Honour, it is similar, we submit, in the federal context to an appeal against the decision of the Patent Office.  We have given Justice Kitto’s familiar statement in Kaiser Aluminium at tab 4 that it is an appeal in name only.  It is de novo if the statute so provides, as this one does.

GUMMOW J:   What was the nature then of the step from the Environment Court to the Court of Appeal?

MR GLEESON:   In the Court of Appeal it was an appeal on the question of ‑ ‑ ‑

GUMMOW J: Section 75A, is it, of the Supreme Court Act?

MR GLEESON:   Yes.  It was a general question of law, I think.  I think it was an appeal on a question of law under that section.

GUMMOW J:   Under a provision of the Land and Environment Court Act or the Supreme Court Act?  That was the next task to work out.

MR GLEESON:   Yes.  That is referred to by Justice Biscoe.  Can I just check that, your Honour?  I just wanted to mention on the legislative

history, to the extent Justice Tobias relied upon that, it was in fact the other way.  What we have given your Honours at tab 5 is the 1961 Act.  Under that Act your Honours will see on page 45 of the book the old subsection 12(4)(a) conferred the equivalent right of appeal but it was subject to a privative clause immediately above it in section 12(3) on “The Board’s decision as to whether or not damage had arisen by subsidence”.  What happened in 1989 was that the privative clause was removed by way of expanding the court’s jurisdiction and instead the Court of Appeal has interpreted that as in fact narrowing the jurisdiction.  May it please your Honours.

GUMMOW J:   Yes, Mr Leeming.

MR LEEMING:   Just two points.  In our submission, the starting point in relation to the statutory appeal invoked in the Land and Environment Court is obviously the statutory conferral of jurisdiction by section 12B and you do not get to section 16 or section 39 unless properly invoked there is something via the claimant in that court within its jurisdiction.  Section 12B, in our respectful submission, is the starting point, not the fourth point and then the question is, is the nature of the decision the subject of section 12B something which falls within its terms?

The second point we would say is that when one reads the reasoning of the Board, which it is necessary to do in order to determine whether section 12B has been properly enlivened, then one sees that they have purported to and in fact relied upon the prohibition in 15(5)(b).  That is all I wish to say.

GUMMOW J:   You may turn out to be right, Mr Leeming, but there do seem to be some questions here.  There will be a grant of special leave in this matter.  It will be a half‑day case.

AT 11.30 AM THE MATTER WAS CONCLUDED