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Alinta LGA Ltd v Mine Subsidence Board

Alinta LGA Ltd v Mine Subsidence Board

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Case Copied 24 April 2008 34 min read

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HIGH COURT OF AUSTRALIA
GUMMOW, HAYNE, HEYDON, CRENNAN AND KIEFEL JJ
ALINTA LGA LIMITED (FORMERLY
THE AUSTRALIAN GAS LIGHT COMPANY)
& ANOR APPELLANTS
AND
MINE SUBSIDENCE BOARD RESPONDENT
Alinta LGA Limited (Formerly The Australian Gas Light Company) v
Mine Subsidence Board
[2008] HCA 17
24 April 2008
S520/2007
ORDER
Appeal dismissed with costs.
On appeal from the Supreme Court of New South Wales
Representation
J T Gleeson SC with J R Williams for the appellants (instructed by Freehills)
M J Leeming SC with S J Free for the respondent (instructed by Crown Solicitor (NSW))
Notice: This copy of the Court's Reasons for Judgment is subject to formal revision prior to publication in the Commonwealth Law Reports.

GUMMOW, HAYNE, HEYDON, CRENNAN AND KIEFEL JJ. The Appin Mine Subsidence District was proclaimed under s 15(1) of the Mine Subsidence Compensation Act 1961 (NSW) ("the Subsidence Act") on 20 March 1968[1]. Located within that district are the Appin and West Cliff Collieries. Between May 1998 and July 2003, coal was extracted by a third party from longwalls in these collieries. AGL Gas Networks Limited owned the Wilton to Horsley Park natural gas pipeline ("the Pipeline") at that time. It had acquired the Pipeline in 1985 from The Australian Gas Light Company. The Pipeline was built in or around 1975 and passes through the Appin Mine Subsidence District.
[1]In their submissions the appellants identified the source of the proclamation in legislation which in fact had been repealed in 1961 by s 2 of the Subsidence Act.
The Australian Gas Light Company is now styled Alinta LGA Limited (the first appellant) and AGL Gas Networks Limited is now styled Alinta AGN Limited (the second appellant). It is convenient to refer to the appellants collectively as Alinta. Alinta alleges that the extractions between May 1998 and July 2003 caused subsidence to occur in the vicinity of the Pipeline and that it undertook preventative and mitigatory works to prevent damage to the Pipeline as a result of that subsidence. Alinta claims that the works cost $2,392,229.29.
Section 10(1) of the Subsidence Act establishes a Mine Subsidence Compensation Fund ("the Fund"). The Fund is under the direction and control of the respondent, the Mine Subsidence Board ("the Board") (s 10(4)). Sections 12 and 12A establish a scheme for the payment from the Fund of compensation for damage to improvements caused by subsidence, of amounts to meet the expense of preventing or mitigating such damage and of compensation for damage caused by the Board carrying out certain works. "Improvement" is defined by s 4 to include any building or work erected or constructed on land and, relevantly to this appeal, any pipeline.
The litigation which has reached this Court stems from the treatment by the Board of a claim made by Alinta on 28 September 2004. Alinta made a claim for compensation from the Fund in the sum of $2,392,229.29. By letter dated 14 October 2005, the Board informed Alinta that the claim could not be entertained…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2008] HCA 17
Decision Date: 24 April 2008

CaseChat Overview and Summary

Alinta LGA Ltd (formerly The Australian Gas Light Company) appealed to the High Court of Australia against a decision of the Mine Subsidence Board. The dispute concerned a claim for compensation from the statutory fund established under the *Mine Subsidence Compensation Act 1961* (NSW) for the cost of works undertaken to prevent damage to a pipeline from mine subsidence. The Board had refused to entertain the claim on the basis that the pipeline was erected without the required approval, and therefore, a certificate under section 15(5)(b) of the Act could not be issued.

The central legal issue before the High Court was whether the Board's refusal to entertain the claim, due to the alleged absence of jurisdictional facts, was an appealable decision under section 12B(b) of the *Mine Subsidence Compensation Act 1961* (NSW), which confers a right of appeal to the Land and Environment Court against "the decision of the Board as to the amount of the payment from the Fund". Alternatively, the question was whether such a refusal was amenable only to judicial review in the Supreme Court of New South Wales. The High Court also considered whether the Land and Environment Court possessed the jurisdiction to hear and determine the appeal against the Board's decision, given the breadth of its powers under section 39(3) of the *Land and Environment Court Act 1979* (NSW) to conduct a de novo rehearing.

The High Court held that the refusal by the Board to entertain the claim was not a decision "as to the amount of the payment from the Fund" within the meaning of section 12B(b). Instead, it was a preliminary determination that the jurisdictional prerequisites for a claim to be entertained had not been met. Consequently, the appeal to the Land and Environment Court under section 12B(b) was not competent. The Court reasoned that the Land and Environment Court's jurisdiction under section 16 and 19(f) of the *Land and Environment Court Act 1979* (NSW) was confined to appeals of the type specified in section 12B of the *Mine Subsidence Compensation Act 1961* (NSW). The broad powers of rehearing under section 39(3) did not extend the Court's appellate jurisdiction beyond what was conferred by the specific appeal provisions.

The appeal was dismissed with costs.

Orders

Orders of the court

Appeal dismissed with costs.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

GUMMOW, HAYNE, HEYDON, CRENNAN AND KIEFEL JJ (dissent)

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Ratio Decidendi

Legal Principle Established

Established by:

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