Anthony De Lisle Venn v Elcom Collieries Pty Ltd

[2006] NSWDC 60

CITATION:	Anthony De Lisle Venn v Elcom Collieries Pty Ltd [2006] NSWDC 60
HEARING DATE(S):	20 - 21 September 2005
JUDGMENT DATE:	4 October 2005
JUDGMENT OF:	Murrell SC DCJ
PARTIES:	Anthony De Lisle Venn (Plaintiff) Elcom Collieries Pty Ltd (Defendant
FILE NUMBER(S):	3611/01
COUNSEL:	Mr L V Gyles (Defendant)
SOLICITORS:	C Kardell (Plaintiff) R Cutler (Defendant)

Introduction

1 Since 1976, Mr Venn has owned picturesque land at Colongra Point, Lake Munmorah on the Central Coast of New South Wales. In the 1980s, the defendant, a coal miner, extracted coal from under Mr Venn’s land. On 2 August 1992, Mr Venn observed with horror that, overnight, the Lake had flooded his land to the extent that his jetty and boat ramp were submerged, his foreshore beach was inundated and water encroached onto his garden. The damage was caused by subsidence associated with underground coal mining by the defendant in the mid 1980s.

2 In September 1992, Mr Venn received an apology from the defendant’s mine manager, who promised that the land would be restored within six weeks. To date, that promise remains unfulfilled. In July 1995, with Mr Venn’s consent, the defendant obtained development approval to do work worth $300,000 on Mr Venn’s land. Between February and June 1996 the defendant completed a substantial amount of that work. However, Mr Venn was dissatisfied with the standard of work. Work ceased. There were negotiations. In mid 1996, the defendant prepared two draft deeds of release, but neither was signed by the defendant or Mr Venn. There were fresh negotiations.

3 In February 1998, there was a second major subsidence.

4 Other landowners who were affected by the 1992 subsidence commenced proceedings. Mr Venn did not commence these proceedings until 18 April 2001, almost three years after the normal six year limitation period expired in August 1998.

5 The defendant asserts that, insofar as it relates to damage sustained before 18 April 1995, Mr Venn’s claim is statute barred.

Section 54 of the Limitation Act 1969

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“54 (1) Where, after a limitation period fixed by or under this Act for a cause of action commences to run but before the expiration of the limitation period, a person against whom … the cause of action lies confirms the cause of action, the time during which the limitation period runs before the date of the confirmation does not account in the reckoning of the limitation period for an action on the cause of action by a person having the benefit of the confirmation against a person bound by the confirmation.

(2) For the purposes of this section:
(a) a person confirms a cause of action if, but only if, the person:
(i) acknowledges, to a person having … the cause of action, the right … of the person to whom the acknowledgement is made, or
(ii) makes, to a person having … the cause of action, a payment in respect of the right … of the person to whom the payment is made,

(4) An acknowledgement for the purposes of this section must be in writing and signed by the maker.

(5) For the purposes of this section a person has the benefit of a confirmation if, but only if, the confirmation is made to the person or to a person through whom the person claims.”

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1. Did the work performed in 1996 constitute a “payment”, so that the time for commencing proceedings ran from 1996 and the proceedings were commenced within time?

2. Is either of the draft deeds of release an “acknowledgement”, so that the time for commencing proceedings ran from mid 1996?

3. Is a letter dated 3 July 1998 from the defendant to its litigation manager, which was produced to Mr Venn on discovery in 2004, an “acknowledgement”?

Work Performed In 1996

8 The defendant’s September 1992 promise to remediate Mr Venn’s land was reinforced by the defendant’s 1992/1993 conduct and statements. In that context, in 1996 the defendant must have obtained development approval and undertaken work because it accepted responsibility for the damage to Mr Venn’s land caused by the 1992 subsidence.

9 A payment under s 54 (2) (a) (ii) need not be in cash. It may be a payment in kind: In re Wilson [1937] 1 Ch 675. A s 54 confirmation may relate to an unliquidated claim. It need not refer to a particular sum of damages: Duncan v Mendes NSWCA 29.5.98. However, any confirmation (including a “payment” by conduct) must unambiguously relate to the right sought to be revived: Ostabridge Pty Ltd v Stafford [2001] NSWSC 131. “Right” means the right to recover damages on a particular cause/class of causes of action. It may be difficult to characterise a confirmation by conduct as unambiguously relating to a right to recover unliquidated damages on a particular basis.

10 The defendant’s conduct in remediating Mr Venn’s land did not unambiguously relate to common law liability for negligence/nuisance/trespass. The defendant’s conduct was consistent with accepting responsibility to pay compensation under the Mining Act 1992 (even if the defendant was mistaken in its belief that the Mining Act applied). It was consistent with the defendant accepting responsibility for damage as an exercise in public relations.

The Draft Deeds Of Release

11 Each of the draft deeds (at pages K90 to K137 of Ms Kardell’s affidavit) recites that the defendant operated the relevant mine and that subsidence occurred above the mine. Each of the deeds states that Mr Venn “has alleged” or “has made a claim alleging” that damage was caused as a result of the subsidence. Each goes on to state that “without admission of liability” the defendant has agreed to undertake certain works on condition that Mr Venn enter into the deed.

12 Neither document is a s 54 acknowledgement. Neither document is a final document. Each is merely a draft. Neither document is signed as required by s 54 (4). Neither contains an admission that damage was actually caused by the defendant’s conduct, let alone that the defendant is liable for the damage, or liable on a particular basis. Each document refers to an agreement made “without admission of liability”.

The Discovered Letter

13 The letter (at page K181 to Ms Kardell’s affidavit) is not a s 54 acknowledgement. A person cannot claim the benefit of an acknowledgement until it has been made to them: s 54 (5). Arguably, the letter was “made” to Mr Venn in 2004, when it was provided on discovery. However, for an acknowledgement to be operative, it must be made before the expiration of the limitation period, i.e., in this case, before August 1998: s 54 (1). Further, a s 54 acknowledgement must be a voluntary admission. The discovered letter was never intended to be a voluntary admission made to Mr Venn. It is an internal document which was produced to Mr Venn under a compulsory process.

Conclusion

14 In 1992-1996 the defendant accepted responsibility for remediating the damage caused by the 1992 subsidence. However, neither then nor later did the defendant confirm that it accepted common law liability for that damage. Despite Mr Venn’s moral entitlement to recompense, events have conspired against him so that (subject to his claim under s 55 of the Limitation Act) he is statute barred from recovering at common law for damage sustained before 18 April 1995.