Australian Gas Light Company v Mine Subsidence Board

No judgment structure available for this case.

Reported Decision: (2006) 147 LGERA 433
(2007) 152 LGERA 73 [2007] NSWCA 100

Land and Environment Court

of New South Wales

CITATION: Australian Gas Light Company v Mine Subsidence Board [2006] NSWLEC 494

PARTIES:
FIRST APPLICANT:
Australian Gas Light Company
SECOND APPLICANT:
AGL Gas Networks Limited
RESPONDENT:
Mine Subsidence Board

FILE NUMBER(S): 30101 of 2006

CORAM: Biscoe J

KEY ISSUES: Jurisdiction :- to hear and dispose of appeals under s 12B of the Mine Subsidence Compensation Act 1961(NSW) – interpretation and application of s 12B.

LEGISLATION CITED: Administrative Appeals Tribunal Act 1975 (Cth) s 3(1)
Administrative Decisions (Judicial Review) Act 1977 (Cth) s 3(1)
Land and Environment Court Act 1979 (NSW) ss 16, 19(f1), 39(2
Mine Subsidence Compensation Act 1961 (NSW) ss 7A, 12, 12A, 12B, 13A, 15, 15B

CASES CITED: Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321;
Bank of NSW v The Commonwealth (1948) 76 CLR 1;
Cabell v Markham (1945) 148 F 2d 737;
Cachia v Colaco [2002] NSWLEC 64;
CDJ v VAJ (1998) 197 CLR 172;
CIC Insurance Ltd v Bankstown Football Club Ltd (1997) 187 CLR 384;
Commissioner of Taxation v Scully (2000) 201 CLR 148;
Duncan v Defence Force Retirement and Death Benefits Authority (1980) 47 FLR 256;
Eastman v R (2000) 203 CLR 1;
Federated Engine-Drivers and Firemen’s Association of Australasia v Broken Hill Proprietary Company Limited (1911) 12 CLR 398 ;
Griffith University v Tang (2005) 221 CLR 99;
Hazeldell Limited v Commonwealth (1924) 34 CLR 442;
K & S Lake City Freighters Pty Ltd v Gordon Gotch Ltd (1985) 60 ALR 509;
Knight v FP Special Assets Limited (1992) 174 CLR 178;
Minister for Local Government v South Sydney City Council (2002) 123 LGERA 367;
N&S Olivieri Pty Ltd v Fairfield City Council (2002) 121 LGERA 90;
National Parks and Wildlife Service v Stables Perisher Pty Ltd (1990) 20 NSWLR 573 ;
Neighbourhood Association DP 285121 v Murray Shire Council (2001) 117 LGERA 95;
NTL Australia Pty Ltd v Minister For Land and Water Conservation (2001) 112 LGERA 403;
Owners of The Ship “Shin Kobe Maru” v Empire Shipping Co Inc (1994) 181 CLR 404;
PMT Partners Pty Limited (In Liquidation) v Australian National Parks and Wildlife Service (1995) 184 CLR 301;
Porter v Hunters Hill Council (2003) 131 LGERA 144;
Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355;
Re JJT; Ex Parte Victoria Legal Aid (1998) 195 CLR 184;
Scharer v State of NSW (2001) 53 NSWLR 299;
State Government Insurance Office (Qld) v Rees (1979) 144 CLR 549;
State Rail Authority of New South Wales v Coastline Constructions Pty Ltd (In liquidation) (1999) 160 ALR 588;
Vice Chancellor, Macquarie University v FM [2005] NSWCA 192;
Workers’ Compensation Board (Qld) v Technical Products Proprietary Limited (1988) 165 CLR 642

DATES OF HEARING: 26/06/2006

DATE OF JUDGMENT:
08/11/2006

LEGAL REPRESENTATIVES:
APPLICANTS:
Dr A S Bell, barrister
SOLICITORS
Freehills
RESPONDENT:
Mr M Leeming, barrister
SOLICITORS
Crown Solicitor’s Office

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

BISCOE J

11 August 2006

30101 of 2006

THE AUSTRALIAN GAS LIGHT COMPANY & ANOR. v MINE SUBSIDENCE BOARD

HIS HONOUR

:

INTRODUCTION

1 The Court has directed the separate determination of the following preliminary question: whether the Court has jurisdiction to hear and determine the application filed by the applicants on 10 February 2006. The preliminary question turns on the interpretation and application of s 12B of the Mine Subsidence Compensation Act 1961(NSW) (MSC Act). There is no authority on s 12B.

2 Mine subsidence compensation is administered by the Mine Subsidence Board (Board) established under the MSC Act. The Board is responsible for the payment of approved claims for subsidence damage to surface improvements ensuing from coalmining throughout New South Wales from a fund established under the Act.

3 The second applicant is the owner and operator of the major pipeline which supplies the majority of Sydney’s natural gas needs. It is said to have acquired the pipeline from the first applicant in 1985. It is generally convenient hereafter to refer to the applicants collectively or individually as “AGL”. The pipeline runs into Sydney from the south through a coalmining district south of Picton that has been gazetted as the Appin Mine Subsidence District under the MSC Act s 15(1). The mining activity is alleged to have resulted in actual subsidence and anticipated further subsidence such as to cause the AGL to take protective measures. That is the background to applications AGL made to the Board more than two years ago for a certificate under s 15B(3) of the MSC Act and for compensation under ss 12 and 12A in respect of expenditure incurred and to be incurred. The applications were refused and AGL appeals to the Court under s 12B.

4 The Court is given jurisdiction to hear and dispose of appeals under s 12B by reason of s 19(f1) of the Land and Environment Court Act 1979 (NSW) (Court Act) which provides that:

The Court has jurisdiction (referred to in this Act as ‘Class 3’ of its jurisdiction) to hear and dispose of:

(f1) appeals under section 12B of the Mine Subsidence Compensation Act 1961

5 Section 12B of the MSC Act provides:

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 could reasonably have been anticipated, or

(b) as to the amount of the payment from the Fund.

6 The ancillary jurisdiction of the Court is provided for in s 16(1A) of the Court Act as follows:

The Court also has jurisdiction to hear and dispose of any matter not falling within its jurisdiction under any other provision of this Act or under any other Act, being a matter that is ancillary to a matter that falls within its jurisdiction under any other provision of this Act or under any other Act.

7 The jurisdictional issue is not arid. For the purposes of hearing and disposing of a s 12B appeal, this Court, if it has jurisdiction, has all the functions and discretions which the Board had: s 39(2) of the Court Act. Hence, a s 12B appeal is a merits appeal. If this Court does not have jurisdiction, then jurisdiction rests with the Supreme Court but it has only a judicial review jurisdiction. Relief by way of judicial review is ordinarily discretionary and is not, as such, concerned with the factual merits but with observance of legality: Griffith University v Tang (2005) 221 CLR 99 at 153 [155].

8 The preliminary issue is to be determined on the basis of AGL’s application to this Court, the pleadings and the limited evidence before me comprising documents recording and relating to three decisions made by the Board which AGL seeks to tie back to s 12B so as to found jurisdiction.

9 AGL made two applications or claims to the Board under the MSC Act, both of which the Board rejected:

(a) an application for a certificate under s 15B (3A) of the MSC Act ;
(b) a claim for compensation under ss 12 and 12A.

10 The Board’s three decisions which AGL contends, and the Board denies, attract jurisdiction under s 12B are as follows:

11 It is common ground, and I accept, that if any of the Board’s decisions is appellable under s 12B but the others are not, then the others are appellable in the ancillary jurisdiction under s 16(1A) of the Court Act.

THE MINE SUBSIDENCE COMPENSATION ACT 1961 (NSW)

12 The preamble to the MSC Act says that it is: “An Act 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”. A Mine Subsidence Compensation Fund is constituted under the direction and control of the Board: s 10. Claims for damage arising out of subsidence and claims arising out of action to prevent or mitigate damage are respectively provided for in ss 12 and 12A.

13 Sections 7A, 12, 12A, 12B, 13A, 15 and 15B relevantly provide 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…

(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

(b) where the decision was that:

(i) the Board’s approval be granted (whether with or without conditions) under section 15, or

(ii) (Repealed)

(iii) the Board issue a certificate under section 15B,

of the person in respect of whose application the decision was made or of a person having an estate or interest in the land to which the approval or the certificate, as the case may require, relates.

(2) Where a decision has been made under section 15 or 15B in respect of an application in relation to any land, nothing in this section affects the subsequent making of a decision in respect of another application under any of those sections in relation to the same land.

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,

(b)

an

amount

to meet the proper and necessary expense incurred or to be incurred as a result of

such damage

in:

(i) building retaining walls or bolting together or underpinning or otherwise supporting, raising or repairing buildings and walls,

(ii) altering the approaches to or the levels of lands or buildings,

(iii) raising, lowering, diverting or making good roads, tramways, railways, pipelines, bridges, fences, sewers, drains or other improvements,

(c)

an amount

equivalent to the rent which would have been payable for such period as may be prescribed in respect of any buildings or works which by reason of such

damage

are untenantable, under repair or in course of construction, or where such buildings or works or any part thereof are or is occupied by the owner thereof such sum in lieu of rent as the Board deems just,

(d)

compensation

for any

damage

to household or other effects that arises from subsidence, except where the subsidence is due to operations carried on by the owner of the household or other effects.

No claim shall be entertained or payment made under this Act in respect of any improvement which was the subject of a conditional right to insure granted under section 16 of the Mine Subsidence Act 1928 unless the conditions of such conditional right have been, and are at the date of making such claim, complied with, or, where such conditions have not been or are not being so complied with, unless the Board is satisfied that any departure from or contravention of such conditions is such that it need not be rectified.

Where damage, caused by subsidence, to an improvement is greater, by reason of the negligent or improper manner in which the improvement was constructed or maintained, than it would have been had the improvement not been so constructed or maintained, the Board may reduce the amount of compensation in respect of the damage by such amount as it considers is attributable to the fact that the improvement was so constructed or maintained.

(1A) Notwithstanding anything contained in subsection (1) or (2), or section 12A, or any approval given under section 15, where:

(a) improvements or household or other effects used in connection with the carrying on of an extractive industry or operation were

damaged

by subsidence before, or are so damaged after, the commencement of the Mine Subsidence Compensation (Amendment) Act 1969, or

(b)

expense

referred to in section 12A (1) (b) was incurred before that commencement, or is incurred or proposed, in relation to any such improvements or household or other effects,

the Board

may refuse to entertain a claim, or make a payment

, in respect of that

damage

or

expense

where it is satisfied that the cause of the

subsidence that caused the damage

or necessitated the

expense

was the carrying on of that industry or operation.

…

12A Claims arising out of actions to prevent or mitigate damage

(1) Subject to this section,

claims

may be made under this Act for

payment

from the Fund of:

(a)

compensation

for damage incurred as a result of the exercise by the Board of its powers under section 13A, and

(b) an

amount

to meet the proper and necessary expense incurred or proposed by or on behalf of the owner of improvements or household or other effects in preventing or mitigating

damage

to those improvements or household or other effects that, in the opinion of the Board

, the owner could reasonably have anticipated

would otherwise have

arisen

, or could

reasonably anticipate

would otherwise

arise

, from a

subsidence that has taken place

, other than a subsidence due to operations carried on by the owner.

…

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 could reasonably have been

anticipated

, or

13A Works for prevention or mitigation of damage from subsidence
The Board may carry out, or cause to be carried out such works as, in its opinion, would reduce the total prospective liability of the Fund by preventing or mitigating damage that the Board anticipates would, but for those works, be incurred by reason of subsidence, whether or not the damage anticipated is damage to improvements or household or other effects on the land on which the works are to be carried out.

15 Mine subsidence districts

(1) The Governor may by proclamation published in the Gazette proclaim any area to be a mine subsidence district.

…

(2A) An application for approval under this section to alter or erect improvements within a mine subsidence district or to subdivide land therein shall be made in a form approved by the Board.

(2B) The Board may require any applicant for approval under this section to furnish such particulars as it may specify in notice sent to the applicant.

(3) The Board may grant its approval either subject to conditions or unconditionally or may refuse its approval.

…

(5)

Where any improvement has been erected

or altered or subdivision has been made

in contravention of this section:

(a) ...

(b) no claim shall be entertained or payment made under this Act in respect of damage caused by subsidence to any such improvement or to any improvement upon land within any such subdivision, unless a certificate is issued under section 15B (3A) in respect of the improvement or land.

…

(7) A person contravenes this subsection if the person does, or causes to be done, any work in connection with the erection or alteration of any improvement within a mine subsidence district without the approval of the Board or not in conformity with such an approval.

Maximum penalty: 20 penalty units.

…

15B Certificates of compliance

(1) Any person may apply to the Board for a certificate under this section with respect to any improvement erected within a mine subsidence district or land within a subdivision within such a district.
(2) An application for a certificate under this section shall be made in writing, be accompanied by the prescribed fee and state the name and address of the applicant, and the particulars of the improvement or land in respect of which the certificate is required.
(3) Where the Board is satisfied that an improvement referred to in an application under this section was erected in accordance with the Board’s approval and that any alterations to any such improvement were so made, or that any subdivision containing any land referred to in such an application was made in accordance with the Board’s approval, or that any departure from any such approval is such that it need not be rectified, the Board shall , if the application was made in accordance with subsection (2), issue to the applicant a certificate under this section in respect of such improvement or land.

(3A) If the Board is satisfied that:

(a) an improvement or a subdivision of land referred to in an application under this section would have met the requirements of subsection (3) had the Board’s approval been obtained, and
(b) it is appropriate having regard to the circumstances of the case to do so,

the Board may issue a certificate under this section in respect of the improvement or land

.

(4) The production of the certificate shall for all purposes be deemed conclusive evidence in favour of a person having an estate or interest in the land that the requirements of this Act relating to the improvement or the subdivision had been complied with up to the date of the certificate.

(5) If the Board refuses to issue a certificate under this section, it shall notify the applicant for the certificate of the refusal and the reasons therefor.

14 Sections 12B, 15(5)(b) and 15B(3A) are of central importance in the present case. They were introduced by the Mine Subsidence Compensation (Amendment) Act 1989. The Explanatory Note to the Bill sets out its objects which included:

(b) to provide rights of appeal to the Land and Environment Court from certain decisions of the Mine Subsidence Compensation Board; and
…

(d) to extend the compensation provisions to improvements or subdivisions that have met all requirements except prior approval

15 In the second reading speech for that Bill (Hansard 19 September 1989 at 10127 – 10128), the Minister for Minerals and Energy said:

Section 15B of the principal Act provides that where improvements in a proclaimed mine subsidence district are erected without, or contrary to, the board’s approval compensation cannot be paid for any damage resulting from subsidence. The community is protected by certificates issued by the board.

If any requirement of the Act is not complied with, a certificate cannot be issued. Honourable members, particularly those representing coalmining electorates, are aware of the difficulties this causes. Financial institutions are extremely reluctant to advance funds for a mortgage without a certificate. I am aware, as I am sure other members are, of recent cases where members of the community have suffered financial loss because of the action of previous owners in failing to obtain the board’s approval for erection or alteration of improvements or in obtaining a certificate from the Mine Subsidence Board.

16 AGL’s application to the Court states that it is:

Mine Subsidence Compensation Act 1961

Further

under s 16(1A) of the Land and Environment Court Act 1979 in relation to the decision of the Board to refuse to grant the applicants a certificate under s 15B of the MSC Act

17 In summary, AGL’s amended points of claim relevantly plead as follows:

MSC Act

the amount of payment

· there was no valid basis to refuse to issue a s 15B certificate;

· the Board should have issued a s 15B certificate either by reason of the fact that the pipeline had been constructed with the Board’s approval, or pursuant to s 15B(3A);

· the pipeline has suffered damage arising from subsidence within the meaning of s 12(1)(a);

· the amount claimed in the first compensation claim is a proper and necessary expense incurred as a result of such damage;

· alternatively, the amount claimed is a proper and necessary expense incurred in preventing or mitigating damage to the pipeline which AGL could reasonably anticipate from subsidence that had taken place within the meaning of s 12A(1)(b).

18 The Board’s points of defence merely plead that the Court does not have jurisdiction to hear and determine the application.

THE BOARD’S DECISIONS

19 The Board’s decisions which are said by AGL to attract jurisdiction under s 12B of the MSC Act are summarised in paragraph 10 above.

20 The Board’s decision to refuse to issue a s 15B(3A) certificate to AGL was communicated to AGL in the Board’s letter of 29 July 2005.

21 The Board’s decision not to entertain AGL’s claims for compensation under ss 12 and 12A, and its decision or view that anticipated subsidence was not compensable under those sections, were communicated to AGL in the Board’s letter of 14 October 2005. The Board’s letter of 13 December 2005 to AGL said that it had not been presented with anything to warrant changing its position.

Decision to Refuse to Issue s 15B(3A) Certificate

22 On 23 April 2003, AGL wrote a letter to the Board requesting the issue of a s 15B certificate and notifying its intention to claim compensation. The letter concluded:

AGL’s has complied with all requirements of the Pipelines Act in relation to the construction and operation of the line, as evidenced by the licence granted by the Governor and the consent to operate granted by the Minister for Mines. On this basis AGL believes it is entitled to a Certificate under s 15B in respect of the pipeline in the Appin Mine Subsidence district, particularly bearing in mind that the Minister would have considered factors as to safety and operation of the pipe line in a way similar to the Board in assessing an application for approval to construct. In the circumstances, AGL hereby requests the issue of a Certificate under s 15B and encloses a cheque for $40.00 in respect of this request.

Currently, we are working towards identifying appropriate risk management measures which will reduce the risk to the pipeline to an acceptable level. If AGL incurs costs in order to prevent or mitigate damage to the pipeline or the pipeline is damaged because of subsidence arising from BHP’s mining activities, we intend to seek compensation from the Mine Subsidence Board.

23 By letter dated 24 March 2004 to the Board, AGL provided further information relating to its application for a s 15B(3A) certificate. After narrating some circumstances in which the pipeline was constructed and designed, the letter referred to AGL’s in principle and anticipated compensation claim under ss 12 and 12A as follows:

It is clear from this that the MSB would have given the requisite approval to AGL (assuming for these purposes only, because of the lack of records both within AGL and MSB, that no such approval was in fact sought or given at the time)… we ask that you treat this letter, and our previous correspondence as an application for a section 15B(3A) certificate …

…we request that you treat this letter, and our previous correspondence, as

an application in principle and in anticipation

(once the extent and amount is able to be quantified)

for compensation

under the MSC Act in respect of:

· damage already suffered…as to which compensation… is claimed under section 12 of the MSC Act; and

· mitigatory works which we are presently undertaking to the pipeline at Simpson’s Creek to prevent damage would otherwise occur in that region, as to which an amount necessary to meet our proper and reasonable expenses incurred in conducting these mitigatory works is claimed under section 12A(1)(b) of the MSC Act.

24 In a letter dated 28 September 2004 to the Board, AGL addressed two matters. First, AGL said that they had not yet received confirmation that they had been granted a certificate under s 15B(3A) of the MSC Act for the component of their pipeline. Secondly, AGL made a formal claim for compensation:

As foreshadowed in our earlier correspondence, we wish to apply formally for compensation under the MSC Act . The claim is in respect of the costs of certain of the mitigatory works which were undertaken at Simpson’s Creek in order to prevent damage to the Pipeline that would otherwise be caused by Endeavour Coal’s Longwall mining operations in the surrounding area.

The process of undertaking mitigatory works at Simpson’s Creek is likely to continue for another year or so. For this reason, it is both practical and appropriate for our application for compensation to be made in phases. Accordingly, the present application is limited to the first phase of works, which is at Simpson’s Creek. The total amount claimed for this phase is $2,392,229.29….

…

We request that you determine

the following matters as soon as practicable:

(a)

our entitlement to s 15B(3A) certificate

; and

(b)

our entitlement to the present claim

.

…

25 Minutes of the Board’s meeting on 27 July 2005 record the Board’s decision to refuse to issue AGL with a s 15B(3A) certificate and the reasons:

The Members of the Mine Subsidence Board decided that a certificate under Section 15B(3A) be refused to AGL on the basis that the Board is

not satisfied under s.15B(3A)(b) that it is appropriate

to issue a certificate

in respect of the pipeline having regard to the circumstances of the case, namely:

(a) AGL failed to obtain approval for the pipeline at the time of its construction, apparently without good reason. AGL’s failure to obtain approval should be viewed in light of the fact that AGL is, and was at the time of construction, a large scale commercial operator involved in infrastructure projects. Other similar operators sought and obtained approval from the Board around that time;

(b) Issue of a certificate under s. 15B(3A) will mean the entertainment and payment of a compensation claim from AGL under the Act is not precluded by operation of s. 15(5)(b); and

(c) AGL applied for a certificate in 2003, however, s. 15B(3A) and the reference to this subsection in s. 15(5)(b) were inserted in the Act in 1989.

(emphasis added)

26 The Board communicated this decision to AGL in a letter dated 29 July 2005.

Decision to Refuse to Entertain AGL’s Claim under ss 12 and 12A. Decision that ss 12 and 12A do not Provide for Anticipated Subsidence Claims

27 On 28 September 2005, AGL wrote to the Board and addressed each of the three reasons communicated in the Board’s letter of 29 July 2005.

28 As to the first reason, AGL referred to an object of the 1989 amending legislation which introduced s 15B(3): “to extend the compensation provisions to improvements or subdivisions that have met all requirements except prior approval”. AGL stated there was nothing to suggest that the pipeline had not met all requirements except prior approval. AGL suggested that there was no reason for the Board to deny original approval to the pipeline at any time prior to its construction, and no reason to deny AGL a s 15B(3A) Certificate.

29 As to the second reason, AGL stated that “it is entirely inappropriate for the Board to consider the effect of granting the section 15B(3A) Certificate when making this decision. The effect of granting the Certificate will be the entertainment and payment of AGL’s claim – the very purpose of the power given to the Board under s 15B to grant such a Certificate…the Board’s real motive is to seek to avoid payment to AGL out of the fund. This is achieved by refusing the s 15B(3A) Certificate to AGL when it plainly ought to be granted. This is an abuse of power…”.

30 As to the third reason, AGL said that the delay in applying for the certificate was not a sustainable reason for refusing it. AGL’s letter concluded by stating that upon a proper reading of sections of the Act and the stated objects, “it is clear that payment pursuant to the Application, as well as the issue of a s 15B(3A) Certificate, is well within and clearly serves the objects and purposes of the Act”.

31 The Board’s letter of reply to AGL of 14 October 2005 addressed both AGL’s application for a s 15B(3A) certificate and its compensation claim. As to the application for a certificate, the letter stated that unless additional information is provided by AGL, which demonstrates that “it is appropriate having regard to the circumstances of the case” to issue a certificate under s 15B(3A) of the MSC Act, the Board does not propose to reconsider its decision to refuse to issue a certificate, for the reasons stated in the Board’s letter of 29 July 2005. As to the compensation claim, under the heading “AGL’s Application for Payment” the letter stated:

Given the Board’s decision to refuse to issue a certificate , AGL’s claims under ss. 12(1) and 12A(1)(b) of the Act cannot be entertained, by reason of s. 15(5)(b). Your comments on the application of s. 15(5)(b) to s. 12A(1)(b) in your letter of 28 September 2005 are noted. However, the Board respectfully disagrees with your interpretation of s. 15(5)(b).

As to the nature of AGL’s claim for compensation/expenses, your letter of 28 September 2005 refers variously to damage caused by actual subsidence; works undertaken in respect of damage caused by actual subsidence; and work undertaken to prevent or limit damage being caused by anticipated subsidence. Insofar as AGL claims compensation from the fund with respect to expenses incurred to prevent damage that might otherwise have arisen had anticipated subsidence occurred, I draw the following matters to your attention . The key provisions of the Act regarding compensation for damage arising from subsidence (s. 12) and the recovery of expenses incurred in preventing or mitigating damage that would otherwise arise from subsidence (s. 12A) apply only in respect of subsidence that has taken place . Those sections do not provide for the owner of an improvement to recover expenses incurred in preventing or limiting the damage that might be caused by anticipated subsidence . I raised this distinction in my letter of 5 May 2005. It is the Board’s view that the only way in which a claim may be made with respect to expenses for works to prevent damage that might otherwise have arisen had anticipated subsidence taken place is through the operation of s. 13A.

…

Decision not to change Board’s Previous Decisions

32 By letter dated 1 December 2005 to the Board, AGL contended, in summary, as follows:

apply only in relation to subsidence that has taken place

33 Minutes of the Board’s meeting of 8 December 2005 noted AGL’s letter of 1 December 2005 and recorded the Board’s determination that it had not been presented with anything to warrant it changing its position; and AGL was to be advised that the Board was still available for dialogue. This was communicated by the Board to AGL in a letter dated 13 December 2005.

AGL’S SUBMISSIONS

34 AGL submits that the Court’s power as a superior court of record should be construed most liberally and amply, and that the words “as to” in s 12B are extremely wide. AGL cited a number of authorities to which I refer later.

35 AGL submits that each of the Board’s decisions is a decision as to one or both of the two matters identified in ss 12B(a) and (b) of the MSC Act.

36 As to the first decision to refuse a s 15B(3A) certificate (communicated in the 29 July 2005 letter), AGL submits that it is a decision within the meaning of s 12B(b) “as to the amount of the payment from the fund”. This is because the Board gave as one of its reasons the entitlement of AGL to payment from the Fund to which such a certificate (if issued) would give rise. That reason was not merely hypothetical. At that time, there was in existence an application by AGL for compensation from the Fund, and the Board was aware of the application. The two were integrally connected, as the Board’s letters show. AGL submits that this decision was a decision “as to”, in the sense of “with respect to” or “with regard to”, “the amount of the payment from the Fund” within the meaning of s 12B(b). Given that one of the purposes of the issue of a s 15B certificate is to facilitate the entitlement to a claim for compensation, AGL submits it would be strange if the words “as to the amount of payment from the Fund” in s 12B(b) did not extend to a decision to refuse to issue a s 15B certificate, at least in a context such as the present case where the application for the issue of such a certificate was so intimately bound up with the application for the payment of compensation from the Fund. AGL submits that, so understood, there is no need for, nor is it surprising, that there is no express right of appeal in respect of applications for s 15B certificates.

37 As to the second decision that AGL’s compensation claim could not be entertained by reason of s 15(5)(b) of the MSC Act (communicated in the Board’s 14 October 2005 letter), AGL submits that it comes within s 12B(b). AGL says that it was in substance and effect a decision that no payment should be made in respect of the claim. Section 15(5)(b) equates or links non-entertainment of a claim with its non-payment. A similar equation or linking occurs in ss 12(1) and (1A). A decision that no payment should be made is plainly a decision “as to amount of payment” within the meaning of s 12B(b).

38 As to the third decision that an anticipated subsidence claim could not be made under ss 12 or s 12A (communicated in the 14 October 2005 letter), AGL submits that it falls within s 12B(a).

39 AGL submits that the Board’s letter of 13 December 2005 letter contained decisions under both limbs of s 12B given that it repeated and adopted the position that the Board had previously stated. The letter said that “[The] Board resolved that they have not been presented with anything…to warrant a change in their position”. This decision in substance and effect was twofold: there would be no payment both because of the non-issue of a certificate and because the claim was in respect of damage from anticipated subsidence which was not damage in respect of which a claim for compensation could be made under ss 12 or 12A.

40 The Board submits that AGL’s application to the Court is really an appeal against the Boards refusal to grant AGL a certificate under s 15B(3A) which is a precondition to entertainment of a claim for compensation, that no such appeal is available, and that AGL’s only avenue of redress is to seek judicial review in the Supreme Court. The Board submits that the application is not within the scope of s 12B for two cumulative reasons:

(a) because the decisions impugned are not decisions refusing a claim under ss 12 or 12A; and
(b) in any event, because the Board’s decisions fall outside the available grounds of appeal contained in s 12B(a) and (b).

41 In relation to the first reason, the Board submits that its letters do not purport to determine AGL’s claims for compensation under ss 12 and 12A. The subject matter of the letter of 29 July 2005 is AGL’s application for a s 15B certificate. The letter of 14 October 2005 makes clear that the Board has correctly refused to entertain the compensation claim in the absence of a s 15B certificate. The letter of 13 December 2005 takes the matter no further.

42 In relation to the second reason, the Board submits that its decision was as to the issue of a s 15B certificate, not as to anything referred to in ss 12B(a) or (b). Section 12B(a) permits appellate review of the Board’s decision on the questions of causation and reasonable anticipation involved in ss 12 and 12A claims. Section 12B(b) looks to the quantum (in particular, the “proper and necessary expense” in ss 12 and 12A claims). The words in ss 12B(a) and (b) do not extend to a complaint about the issue of a s 15B certificate, whose only link to a compensation claim is that without which the claims cannot be entertained: s 15(5)(b). Nor do they extend to advice from the Board that a claim cannot be entertained by reason of the absence of a certificate. Section 15(5)(b) barred the Board from entertaining the claim because AGL was in contravention of s 15 by erecting the pipeline without the Board’s approval and did not have a s 15B(3A) certificate. The distinction between a decision under ss 12 and 12A and a decision under s 15B is reflected in s 7A.

43 In relation to the statement in the Board’s letter of 14 October 2005 that ss 12 and 12A do not apply to expenses incurred in relation to anticipated subsidence, the Board submits that s 12B(a) did not apply because this was not expressed to be a basis for the refusal of compensation but was only a helpful expression of the Board’s view that there was a further problem. The Board says that if it were to be viewed as a basis for rejecting the claim, although that would bring it closer to s 12B than anything else submitted by AGL, it still would not be within s 12B(a).

JURISDICTION – GENERAL CONSIDERATIONS

44 The Land and Environment Court is a superior court of limited jurisdiction, such that it is necessary in respect of any proceedings to identify a statutory conferral of jurisdiction: Court Act s 16, National Parks and Wildlife Service v Stables Perisher Pty Ltd (1990) 20 NSWLR 573 (CA) at 580G. Its first duty is to satisfy itself that its jurisdiction has been properly invoked, and its jurisdiction depends upon the facts: Federated Engine-Drivers and Firemen’s Association of Australasia v Broken Hill Proprietary Company Limited (1911) 12 CLR 398 at 415; Hazeldell Limited v Commonwealth (1924) 34 CLR 442 at 446.

45 The following three general propositions as to jurisdiction may be accepted, as submitted by AGL.

46 First, it is inappropriate to read provisions conferring jurisdiction and granting powers to a court by making implications or imposing limitations which are not found in the express words: Owners of The Ship “Shin Kobe Maru” v Empire Shipping Co Inc (1994) 181 CLR 404 at 421; Knight v FP Special Assets Limited (1992) 174 CLR 178 at 205; CDJ v VAJ (1998) 197 CLR 172 at 185-186.

47 Secondly, a grant of power or jurisdiction on a court should be construed in accordance with ordinary principles and the words used should be given their full meaning unless there is something to indicate to the contrary: Knight v FP Special Assets Limited (1992) 174 CLR 178 at 205.

48 Thirdly, given that powers which are conferred on courts are powers which must be exercised judicially and in accordance with legal principle, the most liberal construction should be accorded to a court’s powers and jurisdiction: Knight v FP Special Assets Limited (1992) 174 CLR 178 at 205. Where a recipient of a power is a superior court of record, it would be contrary to principle for the power to be given anything other than the most liberal and ample construction (see Re JJT; Ex Parte Victoria Legal Aid (1998) 195 CLR 184 at 201.5 and the cases cited in footnote 64) and certainly as liberal a construction as its terms and context permit: PMT Partners Pty Ltd (In Liquidation) v Australian National Parks and Wildlife Service (1995) 184 CLR 301 at 313.

49 The jurisdictional question in the present case is whether AGL’s application to the Court is an “appeal” under s 12B of the MSC Act. An “appeal”, as the Board submits, is a creature of statute. Its content is determined by the statute which creates it: Eastman v R (2000) 203 CLR 1 at 11 [14], State Rail Authority of New South Wales v Coastline Constructions Pty Ltd(In liquidation) (1999) 160 ALR 588 at [72]. The appeal created by s 12B is expressly limited to two grounds, namely, that the Board has made a decision (a) as to whether damage has arisen from subsidence or could reasonably have been anticipated, or (b) as to the amount of payment from the Fund.

50 On the face of it, s 12B has a very wide operation because of the words “as to”. In my opinion, the words “as to” are a sharp sword that can penetrate strong armour – but only if the armour is of a kind described in limbs (a) or (b) of s 12B. In a related context (the construction of a court’s power to make orders), the words “as to” connote a broad or wide nexus with the relevant subject matter: Re JJT; Ex Parte Victoria Legal Aid (1998) 195 CLR 184 at 189.1; 189.6; 207.6 and 219.5. In that case, Gaudron J drew a distinction between a simple power to make an order “for costs” and a power to make an order “as to costs”. This latter, broader power was said to encompass power to order one party to proceedings to provide another party with funds to conduct the proceedings.

51 The Macquarie Dictionary defines the phrase “as to” as meaning “with regard or respect to”. The phrase “with respect to” has been described as “as wide a legislative power as can be created. No form of words has been suggested which could give a wider power”: Bank of NSW v The Commonwealth (1948) 76 CLR 1 at 186. The similar statutory words “relate to” are “extremely wide”: Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355. In that case the High Court said at 387 [87]:

105 CLR 602 at 620

.

52 Although regard should be had to the dictionary meaning of words, we do not, as Justice Learned Hand once said, “make a fortress out of a dictionary”: Cabell v Markham (1945) 148 F 2d 737 at 739. That is because words do not exist in splendid isolation. They exist, and must be understood, in their legislative context: State Government Insurance Office (Qld) v Rees (1979) 144 CLR 549 at 560 – 561 per Mason J; Workers’ Compensation Board (Qld) v Technical Products Proprietary Limited (1988) 165 CLR 642 at 646-647 per Wilson and Gaudron JJ; K & S Lake City Freighters Pty Ltd v Gordon Gotch Ltd (1985) 60 ALR 509 at 514 per Mason J; CIC Insurance Ltd v Bankstown Football Club Ltd (1997) 187 CLR 384 at 408 per Brennan CJ, Dawson, Toohey and Gummow JJ; Cross on Statutory Interpretation (3rd ed, 1995) 165 – 166. “Legal words are never susceptible to interpretation standing by themselves, and in any case they never stand by themselves”; Spigelman CJ, “Principle of Legality and the Clear Statement Principle” (2005) 12 ALJ 769 at 772, citing Sunstein “Principles, Not Fictions” (1990) 57 U Chi L Rev 1247.

53 The words “in respect of” (similar to the words that appear in the Macquarie Dictionary when you look up “as to”) take their meaning from their context and have a wide meaning, although it goes somewhat too far to say that they have the widest possible meaning of any expression intended to convey some connection or relation between the two subject matters to which the words refer: Commissioner of Taxation v Scully (2000) 201 CLR 148 at 171 [39] where Gaudron, McHugh, Gummow and Callinan JJ held:

We do not think that the words ‘

enlarge the class of payments to the extent for which the respondent contends. It is well accepted that such words take their meaning from their context. Thus, in

165 CLR 642 at 653-654, Deane, Dawson and Toohey JJ said:

in respect of

they have the widest possible meaning of any expression intended to convey some connection or relation between the two subject matters to which the words refer

54 In my opinion, in interpreting s 12B, two propositions should be accepted. First, an ample and liberal construction should be accorded to s 12B because it confers jurisdiction on a superior court. Secondly, the words “as to” in s 12B connote a very wide nexus with the subject matter of limbs (a) and (b). These are reasons why it is inappropriate to struggle to confine s 12B in a way that is not fully sustained by the language, structure and purposes of the MSC Act.

55 Section 16(1A) was enacted following National Parks and Wildlife Service v Stables Perisher Pty Ltd (1990) 20 NSWLR 573 (CA). It has been held that “ancillary” is to be read as “incidental”, “accessory” or “auxiliary”: eg NTL Australia Pty Ltd v Minister For Land and Water Conservation (2001) 112 LGERA 403 at 411 – 413; Scharer v State of NSW (2001) 53 NSWLR 299 (CA) at 308 [51]. Thus, there must be another “matter” falling within jurisdiction, in relation to which the s 16(1A) matter is incidental, accessory or auxiliary. See also Neighbourhood Association DP 285121 v Murray Shire Council (2001) 117 LGERA 95, N&S Olivieri Pty Ltd v Fairfield City Council (2002) 121 LGERA 90, Cachia v Colaco [2002] NSWLEC 64, Minister for Local Government v South Sydney City Council (2002) 123 LGERA 367 and Porter v Hunters Hill Council (2003) 131 LGERA 144 at [50] – [65].

56 It is common ground, and I accept, that if any one of the Board’s decisions is appellable under s 12B, then the other decisions are appellable in the ancillary jurisdiction under s 16(1A) of the Court Act.

57 Section 12 of the MSC Act provides:

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 could reasonably have been anticipated, or

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

58 The Board made three decisions which AGL submits attract the Court’s jurisdiction under s 12B of the MSC Act.

59 The first decision was to refuse to issue AGL with a s 15B(3A) certificate because (inter alia) to do so would remove the s 15(5)(b) bar to entertainment and payment of AGL’s compensation claim under s 12 and 12A. AGL submits that this falls within s 12B(1)(b).

60 The second decision was to refuse to entertain AGL’s compensation claim because AGL did not have a s 15B(3A) certificate, as required by s 15(5)(b). AGL submits that this falls within s 12B(1)(b).

61 The third decision (or view) was that the anticipated subsidence claim was not compensable under ss 12 or 12A. AGL submits that this falls within s 12B(1)(a). The Board disputes that this was given as a reason for refusing to entertain AGL’s compensation claim, and says it was merely an expression of the Board’s view in the same letter as communicated that decision.

62 The first decision was communicated to AGL in the Board’s letter of 29 July 2005. The second and third were communicated to AGL in the Board’s letter of 14 October 2005. All were, in effect, confirmed in the Board’s letter of 13 December 2005.

63 The effect of each of the Board’s decisions is that AGL is to receive nothing in respect of its claim for compensation, in the case of the third decision (or view) insofar as the claim relates to anticipated subsidence.

Decision to Refuse to issue AGL with a s 15B(3A) certificate

64 If AGL had approval from the Board to erect its pipeline (as it now pleads in these proceedings), it did not need a s 15B certificate in order to make a claim for compensation under ss 12 or 12A. If AGL had no approval from the Board to erect its pipeline (as it alternatively pleads), then it was in contravention of the Act: s 15(7). If it was in contravention, then no claim could be “entertained or payment made under the Act in respect of such damage” unless the Board issued a certificate under s 15B(3A) in respect of the pipeline: s 15(5)(b). In other words, the issue of a s 15B(3A) certificate removed a bar or condition precedent to entertainment or payment of AGL’s claim under ss 12 and 12A.

65 Removal of that bar is not the only reason why a person may apply for a s 15B(3A) certificate. Another reason is that the certificate is conclusive evidence in favour of a person having an estate or interest in the land that the statutory requirements relating to the improvement have been complied with: s 15B(4). This may, among other things, assist such a person in obtaining mortgage finance: see the Second Reading Speech to the 1989 amending Bill (set out above). As refusal of a s 15B(3A) certificate may be unrelated to an existing or contemplated compensation claim under ss 12 or 12A, it cannot be that all decisions to refuse such a certificate fall within s 12B(b).

66 Two different doorways lead to a s 15B certificate and each door has its own key. To unlock the first door, under s 15B(3), you have to satisfy the Board that your improvement was erected in accordance with the Board’s approval or that any departure from any such approval is such that it need not be rectified. If satisfied, the Board is obliged to issue you with a certificate. It is harder to unlock the second door, under s 15B(3A). To unlock that door, you have to satisfy the Board that your improvement would have met the requirements of subsection (3) had the Board’s approval been obtained and that is it “appropriate having regard to the circumstances of the case” that the Board issue a certificate. If the Board is satisfied as to both those matters, then it still has a discretion whether to issue a certificate and is not obliged to do so.

67 AGL’s Points of Claim plead, in the alternative, the existence of all matters in respect of which the Board has to be satisfied before either door can be unlocked. The Board’s Points of Defence do not plead to those matters. They are to be assumed for present purposes.

68 Notwithstanding its subsequent pleading, AGL tried to enter through the second door only, under s 15B(3A). This is evidenced by the repeated references to a s 15B(3A) certificate – not to a s 15B(3) certificate – in the decisions of the Board and in the correspondence between the parties. In other words, AGL applied for a certificate solely on the basis that the Board had not approved erection of the pipeline. If AGL had applied on the basis that the Board had approved erection of the pipeline, then there would have been a reference to a s 15B(3) certificate.

69 The Board’s letter of 29 July 2005 said that it had decided to refuse AGL’s application for a s 15B(3A) certificate because it was not satisfied under s 15B(3A)(b) that it was appropriate to do so having regard to the circumstances of the case. One of those circumstances was identified as: “Issue of a certificate under s 15B(3A) will mean the entertainment and payment of a compensation claim from AGL under the Act is not precluded by operation of ss 15(5)(b)”. In other words, issue of the certificate would remove the s 15(5)(b) bar to entertainment and payment of AGL’s compensation claim under ss 12 and 12A. The issue is whether, because this reason was given, it was a decision within limb (b) of s 12B “as to the amount of the payment from the Fund”.

70 In my opinion, this decision does not come within s 12B for two reasons.

71 First, s 12B is expressly limited in scope to prescribed decisions on an application by a person “claiming compensation under section 12 or 12A”. An application for a certificate under s 15B(3A) is not a claim for compensation under ss 12 or 12A. There are at least three classes of decisions under the MSC Act. In the first class are compensation claim decisions under ss 12 or 12A. They are decisions on the merits of the claim. In the second class are approval application decisions under s 15. In the third class are certificate application decisions under s 15B. The three classes are reflected in s 7A. In my opinion, having regard to the structure and text of the Act, s 12B is only concerned with the first class, compensation claim decisions under ss 12 or 12A. Section 12B contemplates that the Board has decided a ss 12 or 12A claim on its merits and permits an appeal from that decision in accordance with limbs (a) and (b) of s 12B. Limb (a) of s 12B permits a merits appeal as to causation and reasonable anticipation which are factual elements of ss 12 and 12A. Limb (b) permits a merits appeal as to the amount of the payment on a claim under ss 12 or 12A. In contrast, a decision to refuse a certificate under s 15B(3A) means that the merits of the compensation claim will not be considered at all: s 15(5)(b).

72 Secondly, the reason for refusal of the certificate on which AGL relies does not convert the refusal into a decision “as to the amount of payment from the Fund” within limb (b) of s 12B. Limb (b) includes, I think, a decision on the merits to pay a ss 12 or 12A claimant nothing, as well as a decision to pay such a claimant a specified amount. However, it does not follow that because the effect of the refusal of a s 15B (3A) certificate is that AGL receives nothing (assuming the Board had not approved erection of the pipeline), then the refusal becomes a decision contemplated by limb (b) of s 12B. “The amount of the payment from the Fund” in limb (b) is the amount struck by the Board after the requirements of causation and reasonable anticipation in ss 12A and 12A are satisfied. The reason given by the Board for its refusal to grant AGL a s 15B(3A) certificate concerned a different subject, namely the removal of the s 15(5)(b) bar or condition precedent to entertainment or payment of AGL’s ss 12 and 12A claims. The elastic words “as to” in s 12B(b) do not stretch to that different subject because it is not mentioned in s 12B(b).

Decision not to Entertain AGL’S Compensation Claim because AGL did not have a s 15B(3A) Certificate

73 I turn next to the Board’s decision to refuse to entertain AGL’s claim under ss 12 and 12A because AGL did not have a s 15B(3A) certificate.

74 The Board was obliged to refuse to entertain or pay AGL’s compensation claim because s 15(5)(b) provides that, if the Board had not approved erection of the pipeline, “no claim shall be entertained or payment made under this Act” unless a certificate is issued under s 15B(3A). AGL had applied for that certificate but the application had been refused.

75 AGL submits that the non-entertainment of a claim and the non-payment which are both referred to in s 15(5)(b) are equated or linked - as they are in ss 12 and 12A - and that both are decisions “as the amount of the payment from the fund” within limb (b) of s 12B.

76 One way of testing this point is to ask the following question. If the Board’s decision had been that “no payment” would be made because a s 15B(3A) certificate had not issued (rather than that the claim would not be “entertained” for that reason), would it be a decision “as to the amount of the payment from the Fund” within limb (b) of s 12B? If the answer is “yes”, then it would be a rather perverse result if that decision was appellable in a merits appeal in this Court while a decision expressed in the alternative terms that the claim would not be “entertained” had to go off to the Supreme Court for judicial review. A way of avoiding this perverse result would be to accept that there is no difference in substance or effect in the context of s 15(5)(b) between a claim not being “entertained” and a payment not being made. Consequently, a decision expressed in either of those ways under s 15(5)(b) could be regarded as appellable under s 12B(b).

77 However, I would answer the question that I have posed “no”. I accept that s 12B(b) includes a decision on the merits to make no payment. I also accept that a decision not to entertain the claim on the ground that no certificate has issued under s 15B(3A), has the effect that no payment would be made (assuming that the Board had not approved erection of the pipeline). However, in my view, the words “the amount of the payment” in s 12B(b) refer to the striking of the “amount”, or the striking of the quantum of the “expense” or “compensation”, referred to in ss 12 and 12A after it is established, or on the premise, that damage has arisen from subsidence or could reasonably have been anticipated. I do not think that the words “the amount of the payment” refer to a decision by the Board that s 15(5)(b) bars it from making a payment or entertaining a claim under ss 12 or 12A because the applicant has no s 15B(3A) certificate.

78 Two classes of disappointed claimants under ss 12 and 12A may be identified. One class has had their claims looked at on the merits. The other class has not had their claims looked at on the merits because they do not have s 15B(3A) certificates as required by s 15(5)(b). The distinction between the classes is reflected in s 7A. The first class in entitled to a s 12B merits appeal in this Court. The second class falls outside s 12B and can only go to the Supreme Court for judicial review. In the present case, the Board’s decision is in the second class.

Decision that Anticipated Subsidence Claim is not Compensable

79 Finally, I turn to consider the fact that the Board in its letter of 14 October 2005 said that ss 12 and 12A do not provide for AGL’s claim based on anticipated subsidence. AGL submits that this was a decision within limb (a) of s 12B “as to whether damage has arisen from subsidence or could reasonably have been anticipated”. The Board submits that it was not a decision nor was it expressed to be a basis for rejecting the compensation claim: that it was only an expression of the Board’s view that there was a further problem; and that even if it is viewed as a basis for rejecting part of the compensation claim it still would not fall within s 12B.

80 The Board’s letter of 14 October 2005 relevantly stated:

Given the Board’s decision to issue a certificate, AGL’s claims under ss. 12(1) and 12A(1)(b) of the Act cannot be entertained, by reason of s. 15(5)(b)….

As to the nature of AGL’s claim for compensation/expenses, your letter of 28 September 2005 refers variously to damage caused by actual subsidence; works undertaken in respect of damage caused by actual subsidence; and work undertaken to prevent or limit damage being caused by anticipated subsidence . Insofar as AGL claims compensation from the fund with respect to expenses incurred to prevent damage that might otherwise have arisen had anticipated subsidence occurred, I draw the following matters to your attention. The key provisions of the Act regarding compensation for damage arising from subsidence (s. 12) and the recovery of expenses incurred in preventing or mitigating damage that would otherwise arise from subsidence (s. 12A) apply only in respect of subsidence that has taken place . Those sections do not provide for the owner of an improvement to recover expenses incurred in preventing or limiting the damage that might be caused by anticipated subsidence . I raised this distinction in my letter of 5 May 2005. It is the Board’s view that the only way in which a claim may be made with respect to expenses for works to prevent damage that might otherwise have arisen had anticipated subsidence taken place is through the operation of s. 13A.

81 This should be construed, in my view, as saying that there was a second reason (additional to the absence of a certificate) why AGL could not recover under ss 12 and 12A to the extent that their claim related to anticipated subsidence. The second reason was that AGL’s expenses incurred in relation to anticipated subsidence were not compensable under those sections. The Board thereby responded in the negative “as to whether damage has arisen from subsidence or could reasonably have been anticipated”.

82 Was this the Board’s “decision”? In Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321 at 335 Mason CJ (with whom Brennan and Deane JJ agreed) observed:

The word [decision] has a variety of potential meanings. As Deane J noted in

; (1980) 47 FLR 80 at 100, (1980) 31 ALR 571 at 590 in the context of judicial or administrative proceedings it ordinarily refers to an announced or published ruling or adjudication. In such a context, the word may signify a determination of any question of substance or procedure or, more narrowly, a determination effectively resolving an actual substantive issue. Even if it has that more limited meaning, the word can refer to a determination whether final or intermediate or, more narrowly again, a determination which effectively disposes of the matter in hand: see

83 “The interpretation of words in an unrelated Act is unlikely to be of significant guidance”: Vice Chancellor, Macquarie University v FM [2005] NSWCA 192 at [39] per Spigelman CJ with whom Tobias JA and Brownie AJA agreed. Some assistance may be derived from the interpretation of the word “decision” in the not dissimilar context of an appeal from a decision under the Administrative Appeals Tribunal Act 1975 (Cth). The statute defined the word widely but non-exhaustively. The Full Federal Court held that where an authority expressed a view which had a practical effect upon an application, it made a “decision” even though it did not alter rights nor impose a liability nor decide the matter judicially in a final sense: Duncan v Defence Force Retirement and Debt Benefits Authority (1980) 47 FLR 256 at 260 (Brennan, Keeley and Lockhart JJ). A reviewable decision is defined restrictively in s 3(1) of the Administrative Decisions (Judicial Review) Act 1977 (Cth) as a “decision of an administrative character made, or proposed to be made, or required to be made…under an enactment”. Here, the High Court has held that it would generally be necessary to point to a decision which is final or operative and determinative, at least in a practical sense of the issue of fact falling for consideration: Griffith University v Tang (2005) 221 CLR 99 at 122 [61], following Bond (above) at 337. I think that this interpretation is not of significant guidance because the statutory definition on which it is based is too removed from the present case.

84 The letter of 14 October 2005 at one point referred to “the Board’s view” although its stated position at an earlier point was not prefaced by such words. Let it be assumed that the Board was expressing its “view”. As a matter of language, there is a difference between a “decision” and a “view”, but the view of the Board was a view on a question of entitlement to recover under ss 12 and 12A. It does not strain ordinary language to say that, in giving its view, the Board decided that question. The decision operated to determine a question, being a question that affects AGL’s rights. Form would trump substance if it were to be said that the Board’s communicated view did not decide the question.

85 In my opinion, the Board made a “decision” contemplated by limb (a) of s 12B.

86 It is common ground, and I accept, that if this decision falls within s 12B, then the other decisions of the Board come within the Court’s ancillary jurisdiction.

ORDERS

87 Accordingly, in my opinion, the preliminary question whether the Court has jurisdiction to hear and determine the application filed by the applicants on 10 February 2006 should be answered “yes”.

88 I direct that the matter be listed before the Registrar for directions on 18 August 2006.

Citations

Australian Gas Light Company v Mine Subsidence Board [2006] NSWLEC 494

Most Recent Citation

Cases Citing This Decision

7

Mine Subsidence Board v Australian Gas Light Co [2007] NSWCA 100

Australian Securities and Investments Commission v Banovec (No 2) [2007] NSWSC 961

Cases Cited

32

Statutory Material Cited

4

Griffiths v The Queen [1994] HCA 55

Griffith University v Tang [2005] HCA 7

Darkingjung Pty Limited v Darkingjung Aboriginal Land Council [2006] NSWSC 42

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CITATION:	Australian Gas Light Company v Mine Subsidence Board [2006] NSWLEC 494
PARTIES:	FIRST APPLICANT: Australian Gas Light Company SECOND APPLICANT: AGL Gas Networks Limited RESPONDENT: Mine Subsidence Board
FILE NUMBER(S):	30101 of 2006
CORAM:	Biscoe J
KEY ISSUES:	Jurisdiction :- to hear and dispose of appeals under s 12B of the Mine Subsidence Compensation Act 1961(NSW) – interpretation and application of s 12B.
LEGISLATION CITED:	Administrative Appeals Tribunal Act 1975 (Cth) s 3(1) Administrative Decisions (Judicial Review) Act 1977 (Cth) s 3(1) Land and Environment Court Act 1979 (NSW) ss 16, 19(f1), 39(2 Mine Subsidence Compensation Act 1961 (NSW) ss 7A, 12, 12A, 12B, 13A, 15, 15B
CASES CITED:	Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321; Bank of NSW v The Commonwealth (1948) 76 CLR 1; Cabell v Markham (1945) 148 F 2d 737; Cachia v Colaco [2002] NSWLEC 64; CDJ v VAJ (1998) 197 CLR 172; CIC Insurance Ltd v Bankstown Football Club Ltd (1997) 187 CLR 384; Commissioner of Taxation v Scully (2000) 201 CLR 148; Duncan v Defence Force Retirement and Death Benefits Authority (1980) 47 FLR 256; Eastman v R (2000) 203 CLR 1; Federated Engine-Drivers and Firemen’s Association of Australasia v Broken Hill Proprietary Company Limited (1911) 12 CLR 398 ; Griffith University v Tang (2005) 221 CLR 99; Hazeldell Limited v Commonwealth (1924) 34 CLR 442; K & S Lake City Freighters Pty Ltd v Gordon Gotch Ltd (1985) 60 ALR 509; Knight v FP Special Assets Limited (1992) 174 CLR 178; Minister for Local Government v South Sydney City Council (2002) 123 LGERA 367; N&S Olivieri Pty Ltd v Fairfield City Council (2002) 121 LGERA 90; National Parks and Wildlife Service v Stables Perisher Pty Ltd (1990) 20 NSWLR 573 ; Neighbourhood Association DP 285121 v Murray Shire Council (2001) 117 LGERA 95; NTL Australia Pty Ltd v Minister For Land and Water Conservation (2001) 112 LGERA 403; Owners of The Ship “Shin Kobe Maru” v Empire Shipping Co Inc (1994) 181 CLR 404; PMT Partners Pty Limited (In Liquidation) v Australian National Parks and Wildlife Service (1995) 184 CLR 301; Porter v Hunters Hill Council (2003) 131 LGERA 144; Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355; Re JJT; Ex Parte Victoria Legal Aid (1998) 195 CLR 184; Scharer v State of NSW (2001) 53 NSWLR 299; State Government Insurance Office (Qld) v Rees (1979) 144 CLR 549; State Rail Authority of New South Wales v Coastline Constructions Pty Ltd (In liquidation) (1999) 160 ALR 588; Vice Chancellor, Macquarie University v FM [2005] NSWCA 192; Workers’ Compensation Board (Qld) v Technical Products Proprietary Limited (1988) 165 CLR 642
DATES OF HEARING:	26/06/2006
DATE OF JUDGMENT:	08/11/2006
LEGAL REPRESENTATIVES:	APPLICANTS: Dr A S Bell, barrister SOLICITORS Freehills RESPONDENT: Mr M Leeming, barrister SOLICITORS Crown Solicitor’s Office

[2006] NSWLEC 494

11/08/2006