Aul v Department of Customer Service

[2021] NSWLEC 140

Land and Environment Court

New South Wales

Medium Neutral Citation:

Aul v Department of Customer Service [2021] NSWLEC 140

Hearing dates:

22 September 2021

Date of orders:

29 November 2021

Decision date:

29 November 2021

Jurisdiction:

Class 3

Before:

Robson J

Decision:

See orders at [107]

Catchwords:

APPEALS — Procedure — Time limits — Extension of time — Exercise of discretion to grant extension of time — Reason for delay — Prospect of success on appeal

ENVIRONMENT AND PLANNING — Land and Environment Court — Practice and procedure — Extension of time — Notice of motion seeking extension of time in which to commence proceedings for an appeal pursuant to r 7.3 of Land and Environment Court Rules 2007 (NSW)

Legislation Cited:

Aboriginal Land Rights Act 1983 (NSW)

Civil Procedure Act 2005 (NSW), ss 56, 57, 58, 59, 60

Coal Mine Subsidence Compensation Act 2017 (NSW), Sch 1, cl 7, s 16

Land and Environment Court Act 1979 (NSW), ss 19, 39

Land and Environment Court Rules 1980 (NSW), Pt 15 r 1

Land and Environment Court Rules 2007 (NSW), rr 3.7, 7.1, 7.3

Mine Subsidence Compensation Act 1961 (NSW), ss 4, 7A, 10, 12, 12B

Mine Subsidence Compensation Act 1961, Regulations (NSW) cl 5

Mine Subsidence Compensation Regulation 2012 (NSW), cl 6

Uniform Civil Procedure Rules 2005 (NSW), r 1.12

Cases Cited:

Alinta LGA Ltd (formerly The Australian Gas Light Co) v Mine Subsidence Board [2008] HCA 17; (2008) 82 ALJR 826

Apokis v Transport for NSW [2020] NSWCA 39; (2020) 101 NSWLR 844

Arthur Andersen Corporate Finance Pty Ltd v Buzzle Operations Pty Ltd (in liq) [2009] NSWCA 104

Gallo v Dawson [1990] HCA 30; (1990) 64 ALJR 458

Jackamarra v Krakouer (1998) 195 CLR 516; [1998] HCA 27

Jassls Pty Limited v Valuer General [2006] NSWLEC 59

La Perouse Local Aboriginal Land Council v Minister Administering the Crown Lands Act [2014] NSWLEC 128

Moorebank Recyclers Pty Ltd v Tanlane Pty Ltd [2017] NSWLEC 97

Mosman Municipal Council v IPM Pty Ltd [2016] NSWLEC 26; (2016) 216 LGERA 252

Nguyen v Nguyen [2021] NSWCA 161

O'Hare v Bradfield Bentley Pty Ltd(in liq) [2019] NSWCA 122

Renshaw v New SouthWales Lotteries Corporation Pty Ltd [2021] NSWCA 41

Richards v Cornford (No 3) [2010] NSWCA 134

Rizk v FA Constructions Australia Pty Ltd (No 2) [2016] NSWCA 203

Teh v Dormer [2016] NSWLEC 42

Tomko v Palasty(No 2) (2007) 71 NSWLR 61; [2007] NSWCA 369

Venn v Mine Subsidence Board [2013] NSWLEC 30 Wechsler v City of Sydney Council [2014] NSWLEC 201

Yves Deyris v Elizabeth Jones [2017] NSWLEC 165

Category:

Procedural rulings

Parties:

John Aul and Cheryl Aul (Applicants)
Department of Customer Service (ABN 81 913 830 179) (Respondent)

Representation:

Counsel:
L M R Chapman (Applicants)
A Hemmings with T Poisel (Respondent)

Solicitors:
RMB Lawyers (Applicants)
Department of Customer Service (Respondent)

File Number(s):

2021/00220173

Publication restriction:

Nil

Judgment

1. Before the Court is a notice of motion filed 3 September 2021 by John Aul and Cheryl Aul (‘applicants’) seeking an extension of the time otherwise provided for in r 7.1(1)(a) of the Land and Environment Court Rules 2007 (NSW) (‘LEC Rules’) to commence an appeal in Class 3 of the Court’s jurisdiction.

2. By Class 3 application filed 2 August 2021, the applicants seek to appeal the determination of Subsidence Advisory NSW, an agency within the Department of Customer Service (‘respondent’), dated 3 August 2018 under s 12 of the Mine Subsidence Compensation Act 1961 (NSW) (‘1961 Act’) refusing the applicants’ claim for mine subsidence damage (‘review determination’). The applicants seek orders setting aside the review determination, and an order that the applicants be paid an amount of compensation to be determined by the Court.

3. Mr L Chapman of counsel appeared for the applicants and Ms A Hemmings of counsel appeared with Mr T Poisel of counsel for the respondent. The motion was heard before me via Microsoft Teams in accordance with the Court’s COVID-19 Pandemic Arrangements Policy.

4. For the reasons that follow, I do not exercise my discretion under r 7.3(1) of the LEC Rules to extend the time for the applicants to commence an appeal from the review determination in Class 3 of the Court’s jurisdiction, and I dismiss the motion.

Evidence

5. The applicants read the affidavits of John Aul sworn 3 September 2021 and Steven Baker sworn 3 September 2021.

6. The respondent read the affidavits of Matthew James Montgomery affirmed 10 September and 17 September 2021. The respondent also tendered a bundle of documents referred to in the affidavit of Mr Montgomery affirmed 10 September 2021.

7. The salient facts are noted in the background that follows and in the summary of the parties’ submissions.

Background

8. The applicants own Lot 125 in DP 10669 known as 5-7 Moorland Road, Tahmoor (‘Property’). Mr Aul deposes that a house with four bedrooms, a rumpus room and a family room was built on the Property in 1987.

9. On 1 November 2017, Mr Aul lodged a claim application with the respondent pursuant s 12 of the 1961 Act (‘claim application’) in respect of damage to the structures on the Property. The claim application recorded the damage as:

“CRACKS IN CEILING

ROOF BOWED

PEIRS [SIC] LEANING, CRACKS IN FLOORTILES

POOL”

10. On 1 December 2017, an officer of the respondent conducted an inspection of the Property and prepared a report dated 30 January 2018 (‘Claim Investigation Report’). The Claim Investigation Report recorded details of damage to the structures on the Property (including detailed photography) and attached a further report dated 12 January 2018 (‘JMA Report’) prepared by John Matheson and Associates Pty Ltd (‘JMA’).

11. The Claim Investigation Report identified the relevant colliery as “Tahmoor”, and indicated that while the Property was not undermined, it was within the zone of influence of longwall “LW-27”. The Claim Investigation Report included a graph providing details of subsidence (in mm) over time at survey peg “MD-38” at the front of the property, being the most relevant of the survey pegs located along local roads to the Property, extracted below.

12. The Claim Investigation Report recorded that “[d]ata taken from the July 2017 subsidence survey indicates that mine subsidence is complete. Observed ground movement in the area is within seasonal tolerances.” It also noted that in circumstances where the swimming pool at the Property was emptied of water approximately two years prior to the inspection, and the fibreglass shell had been left exposed since that time, “[t]he damage to the pool appears to have been caused by removing the water and leaving the pool exposed to the elements”. The Claim Investigation Report concluded that “[t]he property has a vast amount of damage, which is typical from mining impacts that has been displayed on many properties in the suburb of Tahmoor. However, there is an anomaly between the extent of the damage observed and the very minimal subsidence recorded at the property.”

13. As a result of these observations, on 12 December 2017, JMA were engaged by the respondent to assess and report on the damage to the structures on the Property and the likelihood of it being caused by mining subsidence. JMA undertook an inspection of the Property on 15 December 2017. The JMA Report was received by the respondent on 12 January 2018. It included an assessment of subsidence survey data, ground tilt and ground strain data, and concluded “…in a relative sense, ground movement due to mine subsidence has been very slight and that the structure damage that has been observed is primarily the result of reactive soil movement and other structure actions within the roof structure that may or may not be related to reactive soil movement”.

14. On 31 January 2018, the respondent refused the claim application, on the basis that the damage to the Property was not attributable to mine subsidence (‘original determination’).

15. On 12 February 2018, the applicants wrote to the respondent requesting reconsideration of the original determination of the claim application. On 14 February 2018, the reconsideration process commenced, with the respondent seeking from the applicants the nomination of an assessor from a list of independent structural engineers from Subsidence Advisory NSW’s Independent Assessment Scheme.

16. Following the selection of an independent assessor, an inspection of the Property was undertaken by Philip Wanis of CLS Consulting Engineers on 22 June 2018. On 23 July 2018, the respondent received a copy of a report dated 23 July 2018 (“Opinion Report on Existing Residence at 5-7 Moorland Road, Tahmoor, NSW, 2573 for Subsidence Advisory, NSW prepared by CLS Consulting Engineers”) (‘CLS Report’). It included an analysis of subsidence at survey pegs “MD-37”, “MD-38” and “MD-39” over time, and identified that “the site is highly reactive as the subsidence is in both directions (up and down)”. The CLS Report concluded that the damage to the structures on the Property was caused by “reactive clay” soils and other factors including “bad workmanship” and “defected” materials/design, rather than mine subsidence.

17. On 3 August 2018, the respondent upheld the original determination, refusing the claim for mine subsidence damage to the Property in the review determination and by notice of that date stated:

“Your rights

Under section 12B of the Act, you have a right of appeal to the Land and Environment Court against a decision:

a)   as to whether damage has arisen from subsidence;

b)   as to the amount of the payment from the Fund; or

c) to reject a claim because of a matter specified in section 12A(1A) or (1B) of the Act.

Please note that time limits apply for commencement of proceedings.

You may also have other rights at law in relation to your claim which you may wish to explore, and, if so, you should obtain independent legal advice.”

18. In April 2021, the applicants were visited by a friend and electrical engineer, Neil Pernell, who looked at the structures on the Property, made enquiries about the proximity of the mine, and advised the applicants that he thought their house had “clearly” been affected by mining. Following this, the applicants contacted their local Member of Parliament and then a lawyer, Steven Baker of RMB Lawyers, regarding their options with respect to the review determination.

19. On 2 August 2021, the applicants filed a Class 3 application in this Court seeking to appeal the review determination.

Relevant legal framework

20. The 1961 Act was repealed on 1 January 2018. However, pursuant to cl 7 of Sch 1 to the now current Coal Mine Subsidence Compensation Act 2017 (NSW) (‘2017 Act’), the 1961 Act continues to apply to claim applications made but not finally determined before the repeal of the 1961 Act, which includes the applicants’ claim application made on 1 November 2017.

21. The long title of the 1961 Act indicates that its purpose is “…to make provision for and in respect of a scheme for the payment of compensation where improvements on the surface or household effects are damaged by subsidence following the extraction of coal or shale; ...”

22. Section 12 of the 1961 Act provides for claims for compensation for damage from subsidence to be made and then determined by the “Board” (being the Mine Subsidence Board constituted under the 1961 Act, which is now abolished, with references to the Mine Subsidence Board taken to be to the Chief Executive of Subsidence Advisory NSW), as follows:

12   Claims for damage arising out of subsidence

(1)   Claims may be made under this Act for payment from the Fund of:

(a)   compensation for any damage to improvements that arises from subsidence, except where the subsidence is due to operations carried on by the owner of the improvements,

…

…

(2)

(a)   The owner of any improvement or any household or other effects which have been damaged by subsidence may notify the Secretary of the Board in a form approved by the Board and within the prescribed time of the details of such damage; the location of the improvement damaged; the description of the household or other effects damaged; the amount claimed from the Fund and such other particulars as may be prescribed.

Such notification shall be treated as a claim for payment from the Fund under subsection (1).

(b)   Any such notification received shall be recorded and investigated by the Board or a member of staff of the Board and on receipt of a report of such investigation the matter shall be placed before a meeting of the Board for a decision as to the payment, if any, to be allowed in respect of the damage to which such notification relates.

(3)   The Board must notify the claimant of its decision about a claim and the reasons for its decision.

…

(5)   Payments may be made under and in accordance with the provisions of this Act notwithstanding any covenant, condition, stipulation or restriction affecting, limiting or restricting the recovery of damages or compensation for damage arising from subsidence to improvements or household or other effects in respect of which a claim for such payment has been made.

23. The Mine Subsidence Compensation Regulation 2012 (NSW) (‘Regulation’) contains time limits for the making of a claim under s 12 of the 1961 Act.

6 Notifications under section 12 (2)

A notification under section 12 (2) of the Act must be lodged with the Secretary of the Board:

(a)   within 12 months after the day on which it became known to the owner concerned that the damage was caused by subsidence, or

(b)   if the Board determines that the owner should have known on a particular day that the damage was caused by subsidence, within 12 months after that day, or

(c)   if the Board determines that a longer period is justified in the circumstances of the case, within the longer period so determined.

24. Subsidence is defined in s 4 of the 1961 Act as follows:

Subsidence means subsidence due to:

(a)   the extraction of coal or shale, or

(b)   the prospecting for coal or shale carried out within a colliery holding by the proprietor of the holding,

and includes all vibrations or other movements of the ground related to any such extraction or prospecting (whether or not the movements result in actual subsidence), but does not include vibrations or other movements of the ground that are due to blasting operations in an open cut mine and that do not result in actual subsidence.

25. Payments of compensation for damage caused by subsidence are made out of the “Fund” (being the Mine Subsidence Compensation Fund constituted under s 10 of the 1961 Act).

26. Section 7A of the 1961 Act expressly provides for the Board to reconsider its decision under s 12 of the 1961 Act, being a form of internal review without a specific time limit, as follows:

7A   Board may reconsider matters

(1)   The Board may reconsider any matter which has been dealt with by it and may adhere to, rescind, alter or amend any decision previously made by it, but shall not rescind, alter or amend any such decision except with the consent in writing:

(a) where the decision was that a payment be made under section 12 or 12A, of the person in respect of whose claim the decision was made, or

…

…

27. Section 12B of the 1961 Act provides for appeals from the determination of the Board to this Court, as follows:

12B   Appeals

A person claiming compensation under section 12 or 12A may appeal to the Land and Environment Court against the decision of the Board:

(a)   as to whether damage has arisen from subsidence, or

(b)   as to the amount of the payment from the Fund, or

(c) to reject a claim because of a matter specified in section 12A (1A) or (1B).

28. When the review determination was made, there was no express time limit for an appeal pursuant to s 12B of the 1961 Act to this Court provided in the 1961 Act or Regulation. As such, the general time limit of 60 days for commencing proceedings in relation to an appeal in the LEC Rules was applicable, as follows:

7.1   Time for appeal

(1)   A person may commence proceedings in relation to an appeal, objection or reference to the Court—

(a)   except as provided by paragraph (b), at any time within 60 days after the right of appeal, objection or reference first arises, or

(b) in the case of an appeal against the refusal of a claim under section 36 of the Aboriginal Land Rights Act 1983, at any time within 4 months after the refusal.

…

…

29. However, this general time limit for commencing proceedings in relation to an appeal may be extended or abridged by the Court, in its discretion, as follows:

7.3   Extension and abridgment of time

(1)   The Court may, by order, extend or abridge any time fixed by these rules or by any judgment or order of the Court.

(2)   The Court may extend time under this rule, either before or after the time expires, and may do so after the time expires even if an application for extension is made after the time expires.

Exercise of the Court’s discretion

30. The issue before the Court is whether, in the exercise of the Court’s discretion, the time to commence an appeal from the review determination should be extended.

31. While the parties relied on different authorities, they agreed that the legal principles to be considered by the Court in exercising its discretion were “well settled” and “relatively clear”, and that the following four factors were relevant:

1. The length of the delay;

2. The reasons for the delay;

3. The extent of the prejudice; and

4. Whether there is an arguable case.

32. In this respect, the applicants emphasised Craig J’s summary of the principles for the exercise of discretion in La Perouse Local Aboriginal Land Council v Minister Administering the Crown Lands Act [2014] NSWLEC 128 (‘La Perouse’) at [7]-[10]. In extending the time to appeal, the Minister Administering the Crown Lands Act's refusal of two Aboriginal land claims under r 7.3 of the LEC Rules, Craig J referred to the object of rules that provide the Court with discretion to extend time, noting the comments of McHugh J in Gallo v Dawson [1990] HCA 30; (1990) 64 ALJR 458 (‘Gallo’) at 459:

“The object of the rule is to ensure that those Rules which fix times for doing acts do not become instruments of injustice. The discretion to extend time is given for the sole purpose of enabling the Court or Justice to do justice between the parties: …” (citations omitted)

33. Craig J at [8]-[10] also noted the identification of the four factors at [31] above by Preston CJ of LEC in Jassls Pty Limited v Valuer General [2006] NSWLEC 59 (‘Jassls’) at [29]; the similarities between r 7.3 of the LEC Rules and r 1.12 of the Uniform Civil Procedure Rules 2005 (NSW) (‘UCPRs’); and the emphasis in Arthur Andersen Corporate Finance Pty Ltd v Buzzle Operations Pty Ltd (in liq) [2009] NSWCA 104 at [28] on the discretion being exercised without being fettered by “inflexible prescriptions”, noting however that this does not mean that the discretion is at large, as it is to be exercised having regard to “the context of and by reference to the statute by which it is conferred (and any other statute that is relevant to the legislative context)” and in accordance with principles from previous decisions.

34. In contrast, the respondent emphasised the recent summary of legal principles in Nguyen v Nguyen [2021] NSWCA 161 (‘Nguyen’) at [12]-[15], which contains significant extracts of the Court of Appeal’s earlier decision in Tomko v Palasty (No 2) (2007) 71 NSWLR 61; [2007] NSWCA 369 at [54]-[55], [80] (‘Tomko’). In Tomko, Basten JA identified the four factors at [31] above, noting that those issues are not exhaustive and that other factors may be relevant, including whether the delay was intentional or as a result of a mistake, and whether the delay is due to the litigant or its legal representatives.

35. Basten JA also noted in Tomko at [80] that an extension of time to appeal is an “indulgence” of the Court which puts at risk the “vested right” of the respondent to the application to retain the judgment proposed to be the subject of appeal. This context was further reiterated by Brereton JA in Renshaw v New South Wales Lotteries Corporation Pty Ltd [2021] NSWCA 41 (‘Renshaw’) at [23], where his Honour noted “perhaps more so than with other applications for extensions of time, applications for extensions of time within which to appeal have some of the characteristics of applications for extensions of limitation periods: after the time for appeal has expired, the party that succeeded at trial is entitled to expect that the litigation is over, and that legitimate expectation ought not be disturbed by an extension of time except for good reason”. The respondent notes that the principles summarised in Nguyen have been applied in this Court, including in Teh v Dormer [2016] NSWLEC 42 (‘Teh’), where Pepper J refused an application to extend time to appeal pursuant to r 7.3 of the LEC Rules.

Submissions

Length of delay

36. The applicants accept that there has been a delay of approximately three years in filing the Class 3 application, and that this period is “considerable”. The applicant contends that two issues need to be considered by the Court when assessing the length of the delay, being: first, the absence of a specific limitation period in the 1961 Act; and second, the objective length of the delay. The applicant contends that having considered these two issues, the Court would be satisfied that the length of the delay supports the granting of an extension of time to appeal.

37. The applicants note that while s 12B of the 1961 Act generates the right to appeal a determination, it does not specify a time period by which such an appeal must be brought. The applicants submit that, as such, there is no evidence that Parliament intended that the appeal right be subject to any time limitation (where, by its nature, damage due to mine subsidence is not necessarily immediately observable). Further, this approach can be distinguished from the approach to time limits in s 16 of the 2017 Act which includes a three-month time limitation. The applicants conclude that there is “no support” for a time limit on appeal in the 1961 Act and the “implicit intention” of s 12B of the 1961 Act is to permit appeals to be brought at any stage, however, the applicants accept that the general LEC Rules impose a general time limit. On the applicants’ submission, a distinction can be made between positively failing to take steps in relation to a limitation period in the 1961 Act, and the failure to comply with a general limitation period.

38. The applicants contend that an objective assessment of the delay of approximately three years in filing the Class 3 application is not extreme, where a delay has the potential to be for a significantly longer period of time (extending to 10 or 20 years). Further, granting an extension of time for a delay of this period is not unprecedented. The Court has previously been willing to grant an extension of time for a delay of over three years under the same provision in the LEC Rules (albeit in a different substantive legislative context): La Perouse at [44]. The applicants reject the respondent’s contentions to the contrary, labelling its references to cases “selective” and noting, in any event, that each case turns on its facts.

39. Finally, in oral submissions the applicants sought to emphasise that the length of the delay and the reason for such a delay needed to be considered together, submitting that characterisation of a delay as gross or excessive requires a consideration of the reasons.

40. The respondent submits that the length of the delay in commencing the appeal is, “in itself”, excessive. The respondent notes that a long delay, without reasonable explanation, is a “powerful factor” militating against the grant of leave to extend time. While accepting that each case turns on its facts, the respondent points to previous decisions of this Court and the Court of Appeal where delays of between 12 months and 23 months have been characterised as “excessive”, “gross” and “extraordinary” in the absence of a satisfactory explanation: Nguyen at [31]; O'Hare v Bradfield Bentley Pty Ltd(in liq) [2019] NSWCA 122 (‘O'Hare’) at [35]; Rizk v FA Constructions Australia Pty Ltd (No 2) [2016] NSWCA 203 (‘Rizk’) at [6]; Teh at [31].

41. The respondent submits that the delay of approximately three years in these proceedings is more extensive than the delays considered in the previous decisions of this Court and the Court of Appeal, and itself militates against the grant of the extension of time without reasonable explanation (where no reasonable explanation has been provided).

Reasons for delay

42. The applicants proffer five reasons for the delay in seeking to appeal the review determination. First, the respondent did not refer to any specific time limit on the applicants’ ability to appeal when notifying the applicants of the review determination. Rather, a “general statement” that “time limits apply for commencement of proceedings” was provided which was “incomplete and vague” and created “practical uncertainty” about what the applicants could do (although was not, the applicants clarified, deliberately misleading on behalf of the respondent). By reference to the evidence of Mr Aul, the applicants explain that in the absence of a clear cut-off date by which to file an appeal, they decided to “think about it further”, on the basis that an appeal could be filed at any time (and contend that this was a reasonable assumption to make). The applicants submit that it would be unfair for the respondent to assume that the applicants would have the means to seek legal advice as to the length of the limitation period and its statutory basis, and further, that if the respondent was aware of these matters, it ought to have advised the applicants.

43. Second, the applicants did not have the financial means to begin Court proceedings (or, the Court was invited to infer, seek legal advice about appealing the review determination) when notice of the review determination was received. In oral submissions, the applicants noted that Mr Aul’s evidence extended to the fact that the applicants did not have the financial means to fix the damage to their house. The applicants submit that limited financial means is neither an uncommon nor unreasonable reason for a delay in filing an appeal. They contend that had the respondent specified a particular date by which an appeal needed to be commenced, this would have given the applicants a deadline by which to act (and, by inference, they may have been able to gather funds to begin Court proceedings in that period). In the absence of such a date, the applicants did not consider immediate action to be required.

44. Third, the applicants’ evidence is that the concept of a “limitations period”, or limit on the time in which to commence appeal proceedings, was unknown to them when they received the review determination. Further, the applicants submit that in circumstances where the respondent intended to rely on the limitation period to prevent the applicants commencing an appeal, it had an obligation to be precise as to the relevant limitation period. Ultimately, it was “incumbent” on the respondent, and not the applicants, to identify with precision the time limitation that would be relied upon to oppose the appeal of the review determination.

45. Fourth, the applicants explain that the impetus for filing the Class 3 application after the period of delay was the visit of Mr Pernell in April 2021. Mr Aul deposes that the applicants specifically asked Mr Pernell for his advice regarding the damage, and that after looking at the house and making further enquiries, in late May 2021, Mr Pernell indicated that he thought their house had been affected by mining and encouraged them to seek legal advice.

46. Fifth, and finally, the applicants acted promptly to commence the appeal following the visit of Mr Pernell. They consulted with their local Member of Parliament on or about 4 June 2021, and then met with Mr Baker on 8 June 2021. Following his engagement on or about 11 June 2021, Mr Baker engaged in correspondence with the respondent in relation to the limitation period for an appeal and then acted promptly to file proceedings on 2 August 2021, to mitigate the impacts of any additional delay. In summary, the applicants contend that for the above reasons the delay in filing the appeal was reasonable in the circumstances.

47. The respondent surveys the applicants’ evidence for the reason for the delay, including the evidence of Mr Aul and Mr Baker, and concludes that it does not provide “a very compelling explanation” for the delay (citing Teh at [33]) or even an “adequate explanation” or “satisfactory explanation” for the delay (citing Rizk at [6] and O’Hare at [35]). The respondent raises three issues with the reasons put forward by the applicants.

48. First, the respondent contends that, contrary to Mr Aul’s evidence, the applicants were put on notice that time limits applied to the commencement of the appeal proceedings by both the notice of the original determination and the notice of the review determination. As such, the Court would not accept the applicants’ evidence that they were not aware of any limitation period and that they thought they could appeal at any time. The respondent also takes issue with the applicants’ distinction between limitation periods within a legislative scheme and limitation periods within procedural rules, contending that it is a commonplace circumstance for time limits on appeals to be imposed by rules of courts rather than primary legislation, by reference to the provisions of the UCPRs.

49. Second, the respondent contends that, on the evidence, the applicants were aware they had the option to either accept the review determination or commence an appeal, and they chose not to start appeal proceedings. The respondent characterises this decision as “deliberate” and submits that it was made for two reasons: first, Mr Aul was not aware he had any grounds for an appeal; and second, the financial implications of starting an appeal. The respondent notes that the Court has distinguished between the reasonableness of a delay on the basis of intention, in that there is a difference between an intentional delay (caused by deliberate inaction or an intentional decision to delay) and delay which is a result of a bona fide mistake or blunder, or caused by seeking to clarify rights and try and solve the matter without litigation: Tomko at [56]; Mosman Municipal Council v IPM Pty Ltd [2016] NSWLEC 26; (2016) 216 LGERA 252 at [82]; Moorebank Recyclers Pty Ltd v Tanlane Pty Ltd [2017] NSWLEC 97 at [52]; Yves Deyris v Elizabeth Jones [2017] NSWLEC 165 at [13]. The respondent submits that in this context the applicants made a “conscious decision” not to commence an appeal until receiving the benefit of Mr Pernell’s (non-legal) opinion, and as such the following comments of McHugh J in Gallo at 459 are apposite:

“A case would need to be exceptional before a court would enlarge by many months the time for lodging an appeal simply because the applicant had refrained from appealing until he or she had researched the issues involved. In Hughes, McInerney J pointed out (at 263) that one object of fixing time under court rules is “to achieve a timetable for the conduct of litigation in order to achieve finality of judicial determinations”. When the time for appealing has expired, the litigation is at an end; the successful party is entitled to the benefit of the judgment in his or her favour. At that stage, the successful party has a “vested right to retain the judgment”. It would make a mockery of O 70, r 3 [the relevant rule] if, months after the time for appealing has expired, the unsuccessful party could obtain an extension of time on the ground that he or she had delayed appealing because that person wanted to research the issues involved. Lack of legal knowledge is a misfortune, not a privilege.”

50. The respondent contends that the reasons the applicants did not commence an appeal, being that they were not aware of any grounds for an appeal and due to the financial implications of starting an appeal, have not changed (in contrast to other extension of time cases). The respondent submits that in a similar manner it would make a “mockery” of r 7.1 of the LEC Rules if following the applicants’ conscious decision not to appeal, an extension of time was granted because of Mr Pernell’s (non-legal) opinion offered around three years later.

51. Third, the respondent takes issue with the delay of two months between the applicants engaging their solicitor, and the filing of the Class 3 application. In circumstances where the Class 3 application does not provide particulars or evidence in support of the appeal, it contends that the delay of two months is “inexplicable”.

Extent of prejudice

52. The applicants contend that this factor includes both the prejudice to the applicants if the relief is not granted, and the prejudice to the respondent if the relief is granted. The applicants submit that they will suffer “irreversible and substantial prejudice” if the extension of time is refused, whereas any prejudice to the respondent is speculative.

53. The applicants characterise the prejudice to themselves as follows: first, the appeal will be dismissed and the applicants will be denied the opportunity to seek further redress (where there is no alternative route under the 1961 Act to seek review of the review determination, this will “bring the Applicants’ claim for compensation in this matter to an end”); second, the applicants do not have the financial resources to fix the damage to the structures on the Property; and third, the house on the Property is the applicants’ primary asset and will as a result be left in disrepair and will likely degrade further over time. The applicants note that granting the extension of time provides them with the opportunity to proceed with an appeal against the review determination, and that the success (or otherwise) of that appeal remains to be seen.

54. The applicants contend that there is little evidence of prejudice to the respondent. The applicants suggest that to the extent the respondent contends the passage of time would affect the assessment of damage to the structures on the Property for the purposes of an appeal, this is not a relevant reason to refuse to allow the appeal to continue (where the deterioration over three or four years will not be material, and in any event the respondent already has the benefit of over 150 photographs taken when the claim application was assessed in 2017 and 2018). Where the respondent raises concern about cost implications of the appeal proceedings, the applicants note that the respondent has the ability to apply for costs orders which would assist to ameliorate these concerns. Thus, in the absence of any substantive evidence, the Court would find that the respondent would not suffer any prejudice as a result of the extension of the time to file the appeal.

55. The respondent points to evidentiary prejudice arising as a result of the significant passage of time since the review determination on the assessment of the condition of the structures on the Property; the potential for “highly reactive clay soils” to cause further and ongoing damage to the structures on the Property; and the impact of these circumstances on the ability of experts to assess damage. In this respect, the effluxion of time makes the appeal more difficult for the respondent to defend. The respondent contends that this risk is illustrated in the changes in the description between Mr Aul’s claim application and his affidavit in these proceedings, where, in his later affidavit, Mr Aul has identified a greater scope of damage to the Property.

56. The respondent also contends that it will be prejudiced by wasted costs and resources as the appeal is incompetent and lacking merit. The respondent refers to the observations of Basten JA in Apokis v Transport for NSW [2020] NSWCA 39; (2020) 101 NSWLR 844 at [10]-[11], where his Honour identified the prejudice to the respondent of the costs of a full hearing in circumstances where the appeal was lacking in merit.

57. In response to the applicants’ contention that commencing the appeal constitutes the applicants’ only opportunity to redress the damage to their Property, the respondent notes that s 7A of the 1961 Act provides a further and ongoing opportunity for the reconsideration of the respondent’s decision on a claim (in circumstances where this has already occurred once when the respondent made the review determination after reconsidering the original determination).

58. In response to a query from the Court during the course of the hearing about the operation of the compensation scheme in the 1961 Act in circumstances where that legislation has been repealed, the respondent emphasises the precedential factor of a decision by the Court to extend the time for an appeal to be commenced in circumstances where there are many active claims under the 1961 Act.

Arguable case

59. The applicants contend that the substantive appeal is “fairly arguable”, by reference to the threshold utilised by Craig J in Wechsler v City of Sydney Council [2014] NSWLEC 201 at [24], where his Honour emphasised that this threshold does not require a determination that the appeal is allowed – as this remains for the hearing of the appeal if the application for an extension of time is granted. The applicants resist any attempt by the respondent to move the applicable standard of proof to something that is higher than “fairly arguable”.

60. The applicants submit that the respondent’s evidence is primarily based on opinions, presented as facts, which need to be tested by means of competing expert evidence and through cross-examination in a hearing. This includes claims regarding the location of the Property in relation to a longwall mine; claims by experts regarding ground movements being a characteristic of soil reactivity; comparisons to other properties; personal experience assessing claims; and independent assessments by structural engineers. The applicants submit that the Court would not reject the application for an extension of time on the basis of the “untested” evidence of the respondent.

61. The applicants submit that for the purposes of the application for an extension of time, it is sufficient for the applicants to demonstrate that they will seek to test the evidence advanced by the respondent and indicate that they will adduce their own evidence. They contend that it would be unreasonable to expect the applicants to put on evidence for the application for an extension given the substantial cost of preparing the evidence and their limited financial resources, and note that the reason the respondent has evidence available to it, is as a result of its statutory function of assessing and determining claims.

62. The applicants take issue with the respondent’s reliance on the opinions of structural engineers which focus on structural issues rather than geological experts who can give evidence as to the cause of subsidence, suggesting this highlights the need for the evidence to be tested at hearing. The applicant contends that it would be inappropriate to “pre-judge” issues of evidence in relation to the substantive appeal. In this respect, as a de novo hearing, the assessment of the causal connection between subsidence and damage is matter for evidence at hearing.

63. Finally, the applicants reject the respondent’s submissions (noted below) regarding “procedural defects” of the claim application and the Class 3 application. The applicants refer the Court to the respondent’s own claim application form, and contend that in circumstances where no guidance is given on the claim application to lay persons indicating what is required, and that the form does not make any provision for the quantum of compensation to be nominated, the respondent’s contention should be rejected. The applicants also submit that if there was a procedural issue with the claim application, this should have been raised when the claim application was received by the respondent in November 2017, and the right to raise this as an issue has been waived at this late juncture in the proceedings (raising the principle of issue estoppel, despite the review determination not being made by a court or tribunal). The applicants also raise the issue of whether the procedural requirements are mandatory, as posited by the respondent, or are instead permissive, as a result of the use of “may” in s 12 of the 1961 Act: cf. Venn v Mine Subsidence Board [2013] NSWLEC 30 (‘Venn’) at [36].

64. Further, the applicants reject the respondent’s submission that the Class 3 application is incompetent because it refers to the determination of a quantum of compensation, and contend that the Class 3 application implicitly refers to both causation and compensation issues through the use of the terminology “in lieu of”, because “there can be no compensation without causation being determined in the applicant[s’] favour”.

59. As a preliminary comment, the respondent draws the Court’s attention to the observations of Hodgson JA in Tomko at [14], where his Honour contemplated a different threshold to “fairly arguable” being adopted where an unsatisfactory explanation for the delay or substantial prejudice is shown, as follows:

“In my opinion, there may be circumstances where it is appropriate to go further into the merits of the case of a person seeking an indulgence such as this, than to ask whether or not the case is fairly arguable. If such a person has a reasonable explanation of delay and the opponent does not have a strong case of prejudice, then a fairly arguable case is sufficient. However, if the explanation for the delay is less than satisfactory, or if the opponent has a substantial case of prejudice, then it may be relevant that the person seeking the indulgence shows that his or her case has more substantial merit than merely being fairly arguable.”

66. It is the respondent’s position that the applicants need to meet the higher threshold contemplated by Hodgson JA, such that the appeal has more substantial merit than fairly arguable. The respondent raises three issues, which include jurisdictional hurdles that the applicants need to address. Even in the event that the applicants do address the jurisdictional hurdles, the respondent submits that the applicants do not have an arguable, or fairly arguable, case. In oral submissions the respondent characterised the applicants’ case as “hopeless” for the following reasons.

67. First, the claim application was not made in accordance with the requirements of s 12(2)(a) of the 1961 Act, because (amongst other things) the claim application did not notify “the amount claimed from the Fund”. The respondent relies on the decisions of Alinta LGA Ltd (formerly The Australian Gas Light Co) v Mine Subsidence Board [2008] HCA 17; (2008) 82 ALJR 826 (‘Alinta’) at [61] and Venn at [36] and [38] in support of its contention that this means the applicants’ claim application was not a valid claim under s 12(1) of the 1961 Act and as such the Court has no jurisdiction to entertain the appeal.

68. Second, the Court has limited jurisdiction to determine questions arising from a claim asserting damage due to subsidence as outlined by the High Court in Alinta at [57]-[65]. The respondent submits that the review determination constituted a decision as to whether damage has arisen from subsidence, pursuant to s 12B(a) of the 1961 Act, and as such this Court’s jurisdiction is enlivened in respect of that provision. However, the Court’s jurisdiction does not extend to s 12B(b) of the 1961 Act and the determination of the quantum of compensation. In this respect, the Court’s jurisdiction in the appeal is restricted to causation and not the determination of compensation (if any).

69. Third, the applicants have the burden of establishing causation (that is, that the damage to the structures on the Property was caused by subsidence due to coal mining). The respondent submits that while an inference regarding the probability of causation may be used in the absence of evidence, this requires a probability rather than a possibility of causation: Venn at [110]. In circumstances where no evidence has been filed to indicate that the damage to the structures on the Property was caused by mine subsidence, the respondent characterises the applicants’ approach as “bare assertions” about damage made by Mr Aul. The respondent rejects the applicants’ contention that no evidence needs to be adduced in this motion in support of their position that there is an arguable case (characterising the applicants’ position as that an appeal right equates to an arguable case), and submits that the absence of evidence should be interpreted as either that there is no evidence or that the evidence does not support the applicants’ position (where there is no evidence before the Court in this motion that the absence of evidence to support the applicants’ contention they have an arguable case is as a result of financial constraints). Finally, the respondent notes the absence of any statement of facts and contentions or other identification of the applicants’ case, for the purposes of their contention that they have an arguable case.

70. In contrast, the respondent points to the already “abundant” evidence before the Court demonstrating that damage to the structures on the Property was not caused by mine subsidence, including two independent reports which conclude that the damage to the Property was not caused by mine subsidence; information about the location of longwall mining operations; and mine subsidence survey data of the Property over the relevant period. The respondent notes that a specific geotechnical investigation is normally only undertaken where there is an absence of reliable survey data for a property the subject of the claim. Further, the respondent refers to a recent assessment of soil reactivity in the Tahmoor/Thirlmere region as evidence that the soil on the Property is likely to be reactive.

71. In these circumstances, the respondent submits that the Court would not be satisfied that the applicants have an arguable case.

Public interest

72. Beyond the four factors agreed to be relevant to the exercise of the Court’s discretion, the respondent also made submissions to the effect that granting the extension of time sought by the applicants will not advance the public interest. In this respect, the respondent relies on the guiding principles in ss 56 to 60 of the Civil Procedure Act 2005 (NSW) (‘CP Act’) to support the contention that the entitlement to justice needs to be balanced with reasonable expedition, and that the discretion whether or not to extend time is to be exercised in this context. The respondent notes the comments of Allsop P, as his Honour then was, in Richards v Cornford (No 3) [2010] NSWCA 134 at [110] and [120], highlighting the importance of the “modern approach to despatch of litigation and the need for reasonable expedition”. Similar sentiments are expressed by Gleeson JA, as her Honour then was, in O’Hare at [44]-[45]. The respondent contends that the applicants’ entitlement to have their claim heard and determined must be balanced with the respondent’s entitlement to have finality in relation to the administration of claims.

73. The applicants do not cavil with the principles in these previous cases. However, they contend that the previous cases are not dealing with the specific context of the 1961 Act which the Court is considering in this motion, which is different in character to the legislation considered in those previous cases.

Consideration

74. Turning first to the length of, and reasons for, the applicants’ delay in seeking to commence the appeal. I accept that these factors can be conveniently considered together, and further, that the reason for the delay provides useful context when considering the length of the delay.

75. I have considered the previous cases referred to me by both the applicants and the respondent, and the respective lengths of delay, and I treat these cases as indicative but not precedential. It is clear that the previous decisions of this Court and the Court of Appeal in relation to extensions of time to appeal have been decided on their facts and in the context of the relevant legislative scheme. Nonetheless, I accept that this Court has found it to be appropriate to grant an extension of time to appeal despite a delay of approximately four years in the context of a claim for land under the Aboriginal Land Rights Act 1983 (NSW), while the Court of Appeal has found that a delay of approximately 12 months when filing an appeal against a declaration of an equitable interest in property to be excessive, such that an application for an extension of time was refused.

76. In the circumstances before me, I note that the applicants do not cavil with the characterisation of the length of the delay as “considerable”. I find that this characterisation is appropriate for the delay of some 34 months between the applicants receiving notice of the review determination and filing the Class 3 application. In coming to this conclusion, I give weight to the objective length of the delay, and have been informed by the evidence and explanation from the applicants as to the reasons for this period of delay.

77. In contrast, I do not give significant weight to the applicants’ submission in relation to the absence of a specific limitation period in the 1961 Act. When the 1961 Act was passed by Parliament in 1961, it only provided for appeals in relation to the quantum of compensation granted for damage due to subsidence (rather than whether damage was caused by subsidence), and the then current regulations imposed a six-month time limit on the right to appeal: s 12(3) and (4) of the 1961 Act; cl 5 of the Mine Subsidence Compensation Act 1961, Regulations (NSW).

78. In 1989, when s 12B was inserted into the 1961 Act to provide for appeals in relation both findings about whether damage was caused by subsidence and the quantum of compensation granted for damage due to subsidence, the regulations were not updated, but the then current Land and Environment Court Rules 1980 (NSW) provided a general 60-day time period for the commencement of proceedings in Pt 15, r 1. In these circumstances, I do not accept the applicants’ submission that Parliament did not intend for there to be a time limit on the commencement of appeals. Rather, I find that locating limitation periods in subordinate legislation or in the rules of court is an accepted and usual feature of legislative drafting, which was utilised in these circumstances, and I accept the respondent’s submission that no distinction should be made between the location of applicable limitation periods in substantive legislation or in the rules of court.

79. I do not accept the respondent’s contention that the period of delay is more than considerable, such that it is excessive or gross, to be made out, given the reasons provided by the applicants for the delay. The applicants submitted that there were five reasons for the delay in commencing the proceedings. While I do not accept all five of those reasons, for the reasons that I do accept, the delay in seeking to commence these proceedings does not meet those descriptors contended for by the respondent.

80. It is clear on the evidence before the Court (noted at [17] above) that a general statement about the existence of a limitation period was provided in the notice of the review determination dated 3 August 2018, indicating to the applicants that “time limits apply for the commencement of proceedings”. There had also been a statement in similar terms when the applicants were informed (by notice dated 31 January 2018) of the respondent’s original determination of the claim application. I do not accept the applicants’ contention that this general statement created practical uncertainty about what the applicants could do (as it was clear that they had a right to appeal the review determination subject to a time limit). Given this, I do not accept the applicants’ submission that they were under the impression that an appeal of the review determination could be filed at any time, and further, that this was a reasonable assumption to make. Instead, I find, consistent with the respondent’s position, that the general statement in the notice of the review determination put the applicants “on notice” as to the existence of a temporal restriction on their ability to appeal the review determination.

81. I accept that despite being put on notice as to the existence of a limitation period, no specific duration was provided by the respondent to the applicants. This was likely to generate practical uncertainty about the time by which the applicants had to commence the appeal of the review determination in order to comply with the time limit. I accept that this constitutes a practical reason why the applicants did not file the appeal within the limitation period, however, I consider that the comment of McHugh J in Gallo at 459, being that “[l]ack of legal knowledge is a misfortune, not a privilege”, to be apt. In these circumstances, the lack of legal knowledge enabling the applicants to ascertain the limitation period does not mean that the applicants should be allowed an extension of time. As a result, while it was undoubtedly unfortunate that no specific duration for the applicant to appeal was provided by the respondent on the review determination, I do not consider this failure to be determinative in my consideration.

82. Further, I accept that it is likely that had the applicants been given a specific duration for the limitation period, this would have been factored into their decision-making process when deciding whether to commence an appeal. However, my assessment of the motion is not concerned with what the applicants would have thought in hypothetical circumstances, but rather what the applicants thought in the actual circumstances which resulted in the delay in filing the Class 3 application. On the evidence, it is clear that the applicants knew that their right to appeal the review determination was subject to a time limit, but decided to delay commencing an appeal in order to “think about it further” as they did not consider immediate action to be warranted.

83. The applicants also provided two further reasons for the delay, which I consider now. First, I accept the evidence that the applicants had limited financial means and viewed this as a barrier to commencing an appeal against the review determination. While the evidence as to limited financial means was led in relation to the commencement of an appeal, I accept that it can be inferred that this issue would also have been considered by the applicants in making a decision about whether to seek legal advice about appealing the review determination.

84. Second, I accept the evidence of the applicants that prior to the visit of Mr Pernell, they did not consider that they had “grounds” to appeal the review determination. However, the visit of Mr Pernell to the Property was a catalyst for the applicants seeking to commence an appeal, in that the applicants placed weight on Mr Pernell’s opinion that the house had been affected by “mining” and decided that it would be worthwhile, weighing the various factors including cost, in commencing an appeal. I also accept that once they had consulted a solicitor the applicants acted, if not with haste, without undue delay, to commence the appeal. In the context of the three-year delay between the review decision and the filing of the Class 3 application, a delay of two months is not material.

85. Given these findings, it is clear that the applicants were aware that they had a choice about whether to commence an appeal against the review determination, and for a number of (understandable) reasons they chose not to commence that appeal until August 2021. In these circumstances, I accept the respondent’s submission that the delay was “intentional” in the manner described in Tomko at [56]. I find that the applicants were aware that they could appeal the review determination but initially took a specific and deliberate decision not to appeal.

86. Both parties made submissions regarding the prejudice that would result if the extension of time to commence the appeal was granted or refused. As an initial comment, it is clear that both parties approached the issue of prejudice broadly, making submissions as to both the prejudice to the respondent and to the applicants of various outcomes. While the traditional formulations of the factor focus on the prejudice to a defendant or respondent to the application to extend time (see, Tomko at [55]; Jackamarra v Krakouer (1998) 195 CLR 516; [1998] HCA 27 (‘Jackamarra’) at 520; Palata Investments v Burt and Sinfield [1985] 1 WLR 942 at 946), more recent consideration by the Court of Appeal in Renshaw at [23] illustrates that the consideration of prejudice extends to “the prejudice to the applicant if leave be refused; the prejudice to the respondent if leave be granted”.

87. Turning first to the prejudice to the applicants, I accept that if the application for an extension of time to file the Class 3 application is refused, the applicants will be unable to pursue their claim for compensation in this Court. However, I also accept the respondent’s submission that from a technical legal perspective s 7A of the 1961 Act operates as an alternative route for the applicants to be awarded compensation if the respondent reconsiders the review determination. In circumstances where this has already occurred once, the practicality of this alternative route may be limited, as in the absence of further and different evidence being adduced by the applicants there does not appear to be any prospect of a different decision being arrived at by the respondent.

88. The applicant made submissions indicating that without the opportunity to appeal against the review determination, they will be unable to repair the structures on the Property due to their limited financial means. Compounding the issue is the continued degradation of the structures on the Property without repair. As the applicants properly accept, granting the extension of time will not necessarily resolve these issues (as this depends on the outcome of the substantive Class 3 appeal proceedings), but without the extension of time, the applicants will not have the opportunity to proceed with the appeal proceedings that seek to resolve these issues. Given this, I find that the applicants will be prejudiced if the extension of time is not granted.

89. Turning then to the prejudice to the respondent, the respondent submits that the time since the review determination was made militates against an extension of time being granted, given the impact of the passage of time on the assessment of damage to the structures on the Property. While I accept that this must be true, I do not consider it to be material, and further consider that, as submitted by the applicant, this issue can be appropriately ameliorated with the photographic evidence available from when the claim application was assessed in 2017 and 2018. Further, I do not consider that the risks of the passage of time on the assessment of damage to be illustrated by the change in the scope of the damage shortly noted in Mr Aul’s claim application and later expanded in his affidavit in these proceedings. Rather, these differences may be explained by the limited space provided for the description of damage provided on the claim application form, and the benefit of Mr Aul receiving professional legal assistance and having access to information from a number of independent assessments in the preparation of his affidavit in these proceedings.

90. The respondent submits that it would be prejudiced by wasted costs and resources as the appeal is incompetent and lacking in merit. I accept the first part of that proposition – that the respondent would be prejudiced by wasted costs and resources – if, in fact, the second part of that proposition is true and the appeal is incompetent and lacking in merit, but leave any further consideration of the second part of that proposition to my consideration of the arguable case. Even in circumstances where (analogous to Preston J’s discussion of the prejudice to the Valuer General in Jassls at [35]) the respondent determined the applicants’ claim for compensation pursuant to statutory powers and by reason of a statutory obligation, and has no proprietary interest in the outcome of the exercise of those powers or of the determination of any appeal to this Court, such that references to “vested right” or “legitimate expectation” of finality in relation to the review determination are inapt (as Basten JA noted in Apokis at [9]-[13]), wasted costs and resources constitute a potential prejudice to the respondent where the appeal is lacking in merit. I accept this as a matter of principle, without, as I have already noted, at this point concluding whether the appeal before me is lacking in merit.

74. The applicant contends that this prejudice can be ameliorated through cost orders. However both parties acknowledged that this would be a departure from the usual position in Class 3 proceedings whereby the Court does not make an order for costs unless the Court considers that the making of an order as to the whole or any part of the costs is fair and reasonable in the circumstances: r 3.7(1)(c)(vii) of the LEC Rules; s 19(h) of the Land and Environment Court Act 1979 (NSW) (‘LEC Act’). In addition, analogous to the circumstances considered by Gleeson JA in O’Hare at [40], no undertaking to submit to an order as to costs on the appeal was offered by the applicants.

75. The parties made submissions relating to the precedential value of my decision whether or not to extend the time to appeal in these proceedings. Put simply, the applicants remind the Court that it is dealing with the application before the Court, and consideration of any “floodgates” implications of further decisions being opened to review should not be detrimental to the determination of the application for an extension of time. In contrast, the respondent highlights: first, the precedential value where other people may seek to appeal a determination under the 1961 Act outside the 60-day limitation; and second, the nebulous group of determinations that may be impacted, where s 7A of the 1961 Act allows reconsideration of determinations under the 1961 Act. As it is, I do not give significant weight to the suggested precedential value, or otherwise, of my determination whether or not to extend the time to appeal.

76. Turning to whether the applicants have an arguable case on appeal, the initial issue to be considered is the threshold that the applicants must meet. I accept, as contended by the respondent, that the extent to which the merits of the case on appeal are considered when determining whether to grant an extension of time to appeal is not set, but rather depends on the circumstances of the application for an extension of time. As noted by McHugh J in Gallo at 459, the overarching context for the Court’s exercise of its discretion to extend the time in which to appeal the review determination is to do justice between the parties, and I consider that this requires flexibility in relation to the consideration of the merits of the case. Given this, I accept and adopt (and repeat) the comments of Hodgson JA in Tomko at [14], that:

“…there may be circumstances where it is appropriate to go further into the merits of the case of a person seeking an indulgence such as this, than to ask whether or not the case is fairly arguable. If such a person has a reasonable explanation of delay and the opponent does not have a strong case of prejudice, then a fairly arguable case is sufficient. However, if the explanation for the delay is less than satisfactory, or if the opponent has a substantial case of prejudice, then it may be relevant that the person seeking the indulgence shows that his or her case has more substantial merit than merely being fairly arguable.”

94. This approach was further confirmed by Brereton JA in Renshaw at [23]:

“…However, one consequence of being out of time to appeal and requiring an extension is that, in distinction from an appeal brought in time as of right, an application for an extension of time invites a preliminary review of the merits. This will, at least ordinarily, not involve a detailed evaluation of the prospects of success of the proposed appeal, and it will generally suffice for the applicant to demonstrate a fairly arguable case, at least if there is a reasonable explanation for delay and no significant prejudice to the opponent; but if either of those conditions is not satisfied, the applicant may be required to show that the proposed appeal has more than merely arguable prospects of success. If it appears that the appeal is a highly meritorious one, that will weigh heavily in favour of an extension of time, although it is not decisive; but if it appears that the appeal cannot succeed, an extension of time to bring a hopeless appeal should not be granted.”

95. In the motion before me, I consider that the length of delay in bringing the appeal has been considerable and find that although there were understandable reasons for the applicants’ delay, the applicants initially took a deliberate decision to not appeal the review determination. The applicant has demonstrated that it will be prejudiced if an extension of time to appeal is not granted, while the prejudice to the respondent arises if an appeal is allowed but it has no merit. Given this, I find that the appropriate threshold for the applicants to meet is that they have a “fairly arguable” case on appeal. Having considered the evidence and submissions before the Court, I am not satisfied that the applicants have met this threshold.

96. Before the Court is significant evidence regarding the assessment of the claim application (including the initial Claim Investigation Report and the JMA Report) and the reconsideration of the original determination (including the CLS Report), which details why the respondent came to the conclusion that the damage to the structures on the Property was not caused by subsidence. Of particular note, is the survey data about subsidence obtained from local survey pegs, which indicates that subsidence had occurred before the area was undermined, and the attribution of the damage to the structures on the Property was due to reactive clay soils and other factors including bad workmanship and defected materials/design.

97. The applicants seek to challenge this conclusion on appeal, submitting that the respondent’s “opinions” need to be “tested” by competing expert evidence and cross-examination. The applicants identify the relative location of a longwall mine; the characteristics of soil reactivity; comparisons to other properties; the experience of the claims’ assessors; and the assessments of structural engineers, as some of the issues that need testing, and have indicated that they will adduce their own evidence (where this evidence has not been provided in this application for an extension of time due to the cost of preparation).

98. The practical effect of this approach appears to be that the applicants seek the Court’s indulgence to extend the time to appeal to assess the evidence relied upon by the respondent in making the review determination (and the original determination) and see if there are, in fact, errors in this evidence. In these circumstances, it cannot be said that the applicants’ case on appeal goes any higher than the “possibility” of causation being made out: Venn at [110]. In my view, this does not satisfactorily demonstrate a fairly arguable case on appeal.

99. While I am sympathetic to the applicants’ limited financial circumstances and the impact of this on their ability to marshal evidence in this motion, this does not justify the absence of a statement of the applicants’ case, which provides a basis for the Court to assess whether the case is fairly arguable – whether that be on the basis of a legal error, error in the evidence relied upon by the respondent, or details of alternative evidence that will be relied upon. In the absence of any of these, I do not consider the threshold of a fairly arguable case to have been met. Rather, it appears, as submitted by the respondent, that the applicants’ position is that an appeal right somehow equates with an arguable case.

100. I remain cognisant that an application to extend time to appeal should not be “full rehearsals” for an appeal, and that “parties do not expect to argue the merits issue as elaborately as if they were arguing the appeal itself”: Jackamarra at 522. However, I do not consider this to assist the applicants where those merits issues have not been identified.

101. I note in passing that the respondent raises procedural issues regarding the content of the claim application and the scope of the appeal from the review determination, which, it says, means that the applicants’ appeal is incompetent. Whilst the procedural issues raised by the respondent involve matters of some nicety, they do not need to be decided in relation to the motion before me, given my conclusion that the applicants have not demonstrated that they have a fairly arguable case for other, substantive, reasons.

102. The respondent raises the issue of public interest. I accept that the applicants’ entitlement to justice needs to be balanced with reasonable expedition, and in this respect, the guiding principles in the CP Act remain relevant to the exercise of my discretion. I have had regard the guiding principles in the CP Act in coming to the conclusions recorded above.

Conclusion

103. Making an evaluative judgment and considering my analysis and findings in relation to each of the four factors identified above, I have concluded that it is not appropriate to exercise my discretion to extend the time for the applicants to appeal the review determination.

104. I am acutely aware of the effect, and implications, of this decision on the applicants, including that this effectively precludes them from what can be colloquially termed as “having their day in Court”, and further, the potential for compensation to be ordered for subsidence damage to the Property. However, taking into account the evidence and submissions, I do not consider that extending the time to appeal the review determination would do justice between the parties.

Costs

105. At the hearing of the motion, the applicants revised their position on costs, submitting that the costs of the motion should be costs in the cause. In contrast, the respondent took the position that the costs of this motion should be reserved.

106. In the circumstances, as requested by the respondent, I reserve the issue of costs, and list the proceedings for mention in relation to costs of the motion on 16 December 2021 at 9.30am. However, I note that, on the evidence before me, where costs are determined pursuant to r 3.7 of the LEC Rules, I am of the view that there should be no order for costs. Unless an application for costs is made by one of the parties within 14 days of today, I shall make orders vacating the mention and making no order for costs.

Orders

107. The Court orders:

1. The notice of motion filed 3 September 2021 by John Aul and Cheryl Aul seeking an extension of the time otherwise provided for in r 7.1(1)(a) of the Land and Environment Court Rules 2007 (NSW) (‘LEC Rules’) in accordance with r 7.3 of the LEC Rules to commence an appeal in Class 3 of the Court’s jurisdiction is dismissed.

2. Costs are reserved.

3. If necessary, the proceedings are listed for mention on 16 December 2021 at 9.30am in relation to costs of the motion.

**********

Decision last updated: 29 November 2021