Elhazouri v Subsidence Advisory NSW

[2019] NSWLEC 41

Land and Environment Court

New South Wales

Medium Neutral Citation:	Elhazouri v Subsidence Advisory NSW [2019] NSWLEC 41
Hearing dates:	7 and 28 March and 1 April 2019
Date of orders:	10 April 2019
Decision date:	10 April 2019
Jurisdiction:	Class 3
Before:	Moore J
Decision:	See orders at [140]
Catchwords:	MINE SUBSIDENCE – compensation claim for damage to dwelling and other ancillary structures under now repealed Mine Subsidence Compensation Act 1961 – subsidence at least partial cause of damage claimed – dispute as to extent damage caused by subsidence – competing expert evidence from structural engineers – held causation of damage to dwelling and incorporated garage was mine subsidence – no evidence to support claim for damage to ancillary structures – two months to be allowed to parties to seek to resolve scope and methods of rectification of damage to dwelling MINE SUBSIDENCE – compensation claim for damage to dwelling under Coal Mine Subsidence Compensation Act 2017 not subject to proceedings – no findings with respect to claim under 2017 legislation COSTS – Applicant self-represented – Applicant entitled to limited costs consistent with approach in Cachia v The Hills Shire Council [2010] NSWLEC 136 – contingent costs order appropriate to permit Respondent to make submissions on costs – if no request to be heard within 28 days, limited costs order in Applicant’s favour
Legislation Cited:	Coal Mine Subsidence Compensation Act 2017 Land and Environment Court Act 1979 Land and Environment Court Rules 2007 Mine Subsidence Compensation Act 1961 Uniform Civil Procedure Rules 2005
Cases Cited:	Alinta LGA Limited (Formerly The Australian Gas Light Company) v Mine Subsidence Board [2008] HCA 17 Briginshaw v Briginshaw (1938) 60 CLR 336; [1938] HCA 34 Cachia v Hanes (1994) 179 CLR 403 Cachia v The Hills Shire Council [2010] NSWLEC 136 Jemena Ltd v Mine Subsidence Board [2012] NSWSC 1509 Latoudis v Casey (1990) 170 CLR 534; [1990] HCA 59 Mine Subsidence Board v Jemena Ltd and Jemena Gas Networks (NSW) Ltd (2013) 86 NSWLR 161; [2013] NSWCA 465
Category:	Principal judgment
Parties:	Nicolas Elhazouri (Applicant) Subsidence Advisory NSW (Respondent)
Representation:	Counsel: Ms S Elhazouri, agent (Applicant) Ms M O’Brien, barrister (Respondent)   Solicitors: Department of Finance, Services and Innovation (Respondent)
File Number(s):	107024 of 2018
Publication restriction:	No

Contents

JUDGMENT

Introduction

The statutory regime

The relevant statutory provisions

The evidentiary burden in these proceedings

The chronology

The broad elements to Mr Elhazouri's claim

The hearing on 28 March 2019

The involvement of the experts

The evidence

Ongoing subsidence along the Bridge Road monitoring line

The SMEC report

The quantity surveyors’ reports

Subsidence Advisory’s position on whether damage was compensable or not

The directions of 7 March 2019

Statutory interpretation and Ms O'Brien's written submissions

The oral evidence of the experts

Introduction

The limits of Mr Matheson’s evidence

Mr Matheson’s evidence on the extent of subsidence

The approach of the experts

The differing approaches in their expert assessments

Dr Nguyen’s expert report

Mr Matheson’s expert report

Mr Elhazouri’s evidence

No complaints of cracking during the tenancy period

Conclusion on damage to the dwelling

The driveway cracking and differential settlement

The brick fence element

Costs

Conclusion

Orders

JUDGMENT

Introduction

1. Mr Elhazouri owns and lives in a house at Thirlmere, a village some 72km to the south-west of Sydney as the crow flies. Some 9km to the south-east of Thirlmere is located the township of Tahmoor, on the outskirts of which is located the Tahmoor Coal underground coal mine (the mine). The mine extracts coal by the longwall mining technique. This technique can have settlement effects on the surface of the ground above a longwall panel from which coal extraction has been completed. Such settlement, referred to as subsidence, can cause damage to structures, including houses, on the ground above, or in the vicinity of, a completed longwall panel.

2. Two such longwall panels from the mine have been completed in the vicinity of Mr Elhazouri’s home, finishing some 100 metres from it. Subsidence caused by the extraction of coal from the completed longwall panels has caused damage to Mr Elhazouri’s home. The extent of the damage caused by that subsidence, and the cost of, and liability for, repairs to rectify the damage (but only in part, for reasons later explained), are the reasons for these proceedings.

The statutory regime

3. To compensate property owners such as Mr Elhazouri, a statutory regime provides a structured basis upon which claims for compensation can be made. The statutory regime is established under State legislation. With respect to some of the damage said by Mr Elhazouri to have been occasioned to his home by subsidence caused by the mine, on 17 December 2014 Mr Elhazouri lodged a claim with a government instrumentality known as the Mines Subsidence Board (the Board). At the time Mr Elhazouri lodged his claim, the statutory regime for subsidence claims (including the existence of the Board) was governed by the Mine Subsidence Compensation Act 1961 (the 1961 Act).

4. In 2017, the 1961 Act was repealed and replaced by the Coal Mine Subsidence Compensation Act 2017 (the 2017 Act). Mr Elhazouri has, separately, lodged a further claim for more recent damage to his home which he considers has been caused by subsidence arising from the mine’s underground mining activities. In these proceedings, I am only dealing with Mr Elhazouri’s claim under the 1961 Act. I am not considering his claim under the 2017 Act.

5. The Land and Environment Court was given jurisdiction, by s 19 of the Land and Environment Court Act 1979 (the Court Act) to hear and determine claims concerning mine subsidence compensation where agreement was not able to be reached between the relevant regulatory authority and the landholder whose property was said to have been damaged. Until the coming into force of the 2017 Act, that jurisdiction under the 1961 Act was invested in the Court by s 19(f1) of the Court Act. However, as a consequential measure arising from the coming into effect of the 2017 Act, the Court Act was amended and reference to the 1961 Act removed and replaced with a reference to the 2017 Act.

6. This legislative change, fortunately for Mr Elhazouri, did not have the effect of extinguishing his claim under the 1961 Act. As is customary in such legislative circumstances, the 2017 Act contains a schedule of savings and transition provisions. For the 2017 Act, these measures are contained in Schedule 1 Savings, transitional and other provisions. The relevant element of the schedule preserving Mr Elhazouri’s claim and his ability to bring these proceedings in the Court is contained in cl 7 of Part 2 Provisions consequent on enactment of this Act, a provision in the following terms:

7   Pending claims

The former Act continues to apply (as if it had not been repealed) to a claim made under that Act but not finally determined before the repeal of that Act and for that purpose references in the former Act to the Mine Subsidence Board (once it is abolished) are taken to be references to the Chief Executive.

7. However, the removal of the 1961 Act from being a specifically nominated piece of legislation falling within Class 3 of the Court's jurisdiction, and its replacement with the 2017 Act, has the effect of moving Mr Elhazouri’s proceedings from being ones in this class of the Court's jurisdiction covered by specific nomination in s 19 of the Court Act to being one which now falls within s 19(h) of the Court Act, a provision in the following terms:

(h)   any other appeals, references or other matters which an Act provides may be heard and disposed of by the Court, being appeals, references or other matters that are not referred to in any other section of this Part.

8. Whilst this might, perhaps, be regarded as a matter of legislative arcana, it does have a consequence of some potential significance for Mr Elhazouri concerning costs in litigation such as this. Conventionally, for civil litigation, costs follow the event (Latoudis v Casey (1990) 170 CLR 534; [1990] HCA 59 and r 42.1 of the Uniform Civil Procedure Rules 2005).

9. This presumptive position applies relevantly to litigation in Class 3 (including that under the 2017 Act) other than those areas of jurisdiction referenced in r 3.7(1)(c) of the Land and Environment Court Rules 2007 (the Rules).

10. A different (and higher threshold) test for costs orders applies, in this instance, to matters being heard and determined pursuant to s 19(h) of the Court Act. This arises as a consequence of the application of r 3.7(1)(c)(vii) of the Rules applying.

11. As a result, the Rules mandate that, for a costs order to be made in in favour of a successful applicant in proceedings such as these, I would need to be satisfied that it would be fair and reasonable to do so. This shift to a higher costs’ threshold for preserved applications made pursuant to the 1961 Act is clearly an unintended consequence of the enactment of the 2017 Act and a failure to track through all of the potential consequences that might flow from the repeal of the 1961 Act.

12. The Chief Executive Subsidence Advisory NSW (Subsidence Advisory) is the nominated entity now standing in the shoes of the Board for the purposes of undetermined claims made under the 1961 Act and any proceedings concerning them.

13. When the matter was first before me on 7 March 2019, I asked Ms O'Brien, counsel appearing for Subsidence Advisory, whether she was able to get instructions that it would be appropriate for me to be satisfied, on the basis of the legislative history now outlined by me above and then explained to her, that I might be entitled to assume that the fair and reasonable test was satisfied if Mr Elhazouri had any success in obtaining increased compensation with respect to this preserved application under the 1961 Act. Ms O'Brien was unable to obtain those instructions at that time.

14. I later asked Ms O’Brien, during the course of her closing submissions, did Subsidence Advisory now accept that the repositioning of these proceedings from s 19(f1)) to s 19(h) of the Court Act was an inadvertent drafting omission and that, as a consequence, I would be entitled to conclude, in those circumstances, that it would be reasonable to assume that costs might follow the event. After seeking instructions, Ms O'Brien indicated that Subsidence Advisory might wish to be heard further on the question of costs depending on the outcome of my findings on causation.

15. As I have found in favour of Mr Elhazouri on matters of causation of damage to his dwelling (other than the aspects of the driveway settlement and damage to a brick fence elements of his claim), my disposition is to make a costs order in favour of Mr Elhazouri (to the extent permissible within the scope of the decision of the High Court in Cachia v Hanes (1994) 179 CLR 403 (Cachia). However, given that the precise scope of rectification works and, therefore, the quantum of compensation, is to be the subject of further discussions between the parties, the appropriate course for me to follow, I am satisfied, is to order that, unless Subsidence Advisory notifies my Associate within 28 days of the decision in these proceedings that it wishes to be heard on the question of costs, the order for costs will be that, to the extent permitted by the decision of the High Court in Cachia, the Respondent is to pay the Applicant's costs.

16. As there are no legal costs of the proceedings involved, questions of assessment do not, as I understand the position, arise for consideration in this context.

The relevant statutory provisions

17. Mr Elhazouri’s right to claim compensation arises as a consequence of the terms of s 12(1)(a) and (b) of the 1961 Act. These provisions are in the following terms:

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)  ….

……………………….

(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.

18. Having made a claim on 17 December 2014, in reliance on the above provisions, and Subsidence Advisory having determined, on 23 January 2018, not to grant Mr Elhazouri’s claim in full, he became entitled to appeal to this Court concerning that determination. His rights of appeal are set out in s 12B of the 1961 Act. This provision is in the following terms:

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)  …

19. On 6 April 2018, Mr Elhazouri exercised his right to commence proceedings concerning his claim.

20. As a consequence of s 39(2) of the Court Act, for the purposes of hearing and disposing of Mr Elhazouri’s appeal I have all the functions and discretions which Subsidence Advisory had in respect of Mr Elhazouri’s claim under the 1961 Act.

21. It seems to me that two further observations are appropriate concerning the statutory regime engaged, or potentially engaged, by these proceedings. First, as these proceedings are in Class 3 of the Court's jurisdiction, s 38 of the Court Act invests me with significant procedural flexibility (subject, of course, to the rules of procedural fairness and natural justice) in the way these proceedings are to be conducted.

22. Finally, a number of provisions of the Civil Procedure Act 2005 (the Civil Procedure Act) were called into play by virtue of the fact that Mr Elhazouri is a self-represented litigant. Although I granted leave to him to be represented by his daughter as his agent, it nonetheless remained the position that, even with her lay assistance, there was still the necessity for me to explain procedural matters in order to seek to achieve the overriding objective set by s 56 of the Civil Procedure Act of the just, quick and cheap resolution of the issues genuinely in dispute between the parties. For this purpose, it was necessary for me to explain to him the scope of, and engage the amending powers conferred by, s 64 of the Civil Procedure Act. It is not necessary for this judgment to set out its terms or the procedural matters arising.

The evidentiary burden in these proceedings

23. These proceedings are ones of conventional civil litigation. Although they are conducted with a degree of informality as a consequence of ss 38 and 39 of the Court Act applying to them, nonetheless, the burden of proof falls on Mr Elhazouri.

24. For this purpose, he must satisfy me that, pursuant to s 12B(a) of the 1961 Act that elements of damage to his house have been caused by mine subsidence.

25. For me to conclude that this is the case, I must be satisfied, on the balance of probabilities, with the appropriate degree of comfortable satisfaction, given the consequences of such a finding (Briginshaw v Briginshaw (1938) 60 CLR 336; [1938] HCA 34) that the damage to his property within the scope of his claim pursuant to the 1961 Act was caused by mine subsidence rather than any other cause.

26. In this regard, I am only to have regard to the evidence which is properly before me and I am not to speculate about other matters.

27. Although Ms O'Brien made a submission to me that Mr Elhazouri had not availed himself of the opportunity afforded to him on 7 March 2019 to provide geotechnical evidence, the fact that Mr Elhazouri elected not to do so is a matter of irrelevance, as would be any speculation on my part as to why this was so. The fact that Mr Elhazouri has elected to confine his evidence to such evidence as he himself might give, together with the written and oral expert evidence of Dr Nguyen, was purely a matter for Mr Elhazouri's election.

28. The same position arises with respect to Ms O'Brien’s observation that Mr Elhazouri had not provided further evidence concerning the dimensions of the footings of his property, nor had he provided any evidence based on historic air photos (whatever such air photos might have revealed).

29. It falls to me, therefore, to determine these proceedings on the basis of the conflict of evidence between the experts, Dr Nguyen and Mr Matheson, informed by the factual evidence given by Mr Elhazouri.

The chronology

30. Ms O'Brien handed up a copy of a chronology which had been prepared for Subsidence Advisory, setting out the various steps which had been taken with respect to Mr Elhazouri’s claim. Although somewhat lengthy, it provides a useful stepping-through of the timeline of the events involved giving rise to, an involved in, these proceedings. A copy of that document is reproduced, as a PDF file, as Annexure A to this decision.

The broad elements to Mr Elhazouri's claim

31. It is unnecessary, for the purposes of this decision, given the conclusion about causation which I have reached, to set out in fine detail the elements of Mr Elhazouri's claim made under the 1961 Act. Doing as best I can, it would seem that there are at least two, and possibly a third, separate elements to this claim. The first, and dominant, element making up by far the greatest proportion of matters pressed by Mr Elhazouri are the various cracking and other damage elements said by Mr Elhazouri to have been occasioned to his house and its incorporated garage. These elements include not just cracking to the brickwork, but also damage to the principal bathroom and to an ensuite bathroom, together with the separation of portion of the ceiling from the roof framing to which it was attached.

32. The second element comprises cracking to, and settlement of, the concrete-slab driveway leading to the garage. The third, as I understand it, relates to cracking of a brick fence.

33. These three elements require separate consideration. For the reasons later explained, I am satisfied that the cause of the damage to Mr Elhazouri's house and garage (to the extent that that damage falls within the scope of his claim made pursuant to the 1961 Act) was subsidence resulting from the exhaustion of the two longwall panels from the mine that concluded in proximity to his dwelling, as shown in the figure later reproduced from the SMEC report.

31. However, as also elsewhere explained, there is no proper basis upon which I can be satisfied that the second and third (albeit minor) elements of his claim made pursuant to the 1961 Act have been demonstrated by Mr Elhazouri to have been caused by the subsidence resulting from completion of the extraction of the two longwall panels.

The hearing on 28 March 2019

35. On 28 March 2019, I was listed to hear and determine Mr Elhazouri’s claim under the 1961 Act. The necessity for me to do so arose as a consequence of the fact that, although a claim pursuant to the 1961 Act for subsidence damage to Mr Elhazouri’s house had been accepted as valid, there was a dispute as to the extent to which causation of that damage could be ascribed to the subsidence alone, or whether other factors had contributed to the damage.

36. If this latter position applied, as was the position adopted by Subsidence Advisory, it was submitted that the additional causal factors (if held to be present) should mean that Mr Elhazouri was only entitled to a proportion of the costs of rectification to his house for the damage to which this claim related.

37. Whatever the result of my determination concerning this causation aspect of the proceedings, there was also a dispute between Mr Elhazouri and Subsidence Advisory as to the quantum of the rectification costs necessary to be incurred to remedy those elements of damage to Mr Elhazouri’s house, as was encompassed within this claim pursuant to the 1961 Act.

38. At the hearing on 7 March 2019, Mr Elhazouri was self-represented but assisted by his daughter, who I permitted to speak on his behalf. Subsidence Advisory was represented by Ms M O'Brien, barrister. On 28 March 2019, I granted Ms Elhazouri leave to appear as her father’s agent. This leave was granted pursuant to s 63(2) of the Court Act.

The involvement of the experts

39. As noted below, Mr Elhazouri had engaged Dr Nguyen, a structural engineer, to provide him with expert advice concerning his claim pursuant to the 1961 Act (relevant to these proceedings) and Subsidence Advisory had engaged Mr Matheson, a structural engineer, to provide evidence on the same basis.

40. The two experts had prepared individual expert reports and had conferred and produced a joint report.

41. At the hearing on 7 March 2019, Ms O'Brien advised me that Mr Matheson was present and available to give evidence and that Mr Elhazouri had been advised that Dr Nguyen was required by her client to give oral evidence at the hearing. She advised that she had been informed by Mr Elhazouri that Dr Nguyen was not available. I was advised by Ms Elhazouri, on behalf of her father, that Dr Nguyen was not present because Mr Elhazouri had exhausted such funds as were available to him for the purposes of obtaining expert advice and that Dr Nguyen was not prepared to attend without guarantee of payment of his fees. Ms Elhazouri further advised me that the requirement for Dr Nguyen to attend and give oral evidence had only been conveyed to her father shortly before the hearing. However, on this latter point, I was satisfied that the notice mandated by the pre-trial directions of the requirement of Dr Nguyen being required to give evidence had been met.

The evidence

42. It is appropriate to note the evidence which has been given in these proceedings. It comprised the following:

• two expert reports (2016 and December 2018) from Mr John Matheson, a structural engineer engaged by Subsidence Advisory;

• an expert report by Dr Ha Nguyen, the structural engineer engaged by Mr Elhazouri;

• a Joint Expert Report prepared as a result of conferencing by Mr Matheson and Dr Nguyen;

• an affidavit by Mr Matthew Montgomery, an employee of Subsidence Advisory; and

• although Mr Elhazouri had not deposed any affidavit evidence, he gave lay oral evidence during the course of the hearing.

43. Mr Matheson and Dr Nguyen also gave concurrent oral evidence during the course of the hearing.

44. Two folders of documentary material were tendered. The Court Book, containing relevant expert reports and associated material, was tendered and became Exhibit 1.

45. The second, a folder containing relevant documents providing contextual history to Mr Elhazouri's claim, had been exhibited to Mr Montgomery's affidavit. This folder became Exhibit 2.

46. To the extent necessary for the purposes of this decision, reference is made to this evidence and elements of it have been scanned and incorporated in this decision.

47. Finally, as elsewhere noted, Ms O'Brien handed up a chronology which has been scanned and reproduced as an appendix to this decision.

Ongoing subsidence along the Bridge Road monitoring line

48. Mr Matheson’s December 2018 report included a figure depicting the extent of subsidence at two nominated peg points along the subsidence monitoring line which had been established along Bridge Road, Thirlmere. The two peg points nominated are those which are relevant for the purposes of assessing, in these proceedings, the extent to which Mr Elhazouri's dwelling has been damaged by subsidence caused by the extraction of coal from the completed longwall panels. The extent of that subsidence was set out in Appendix G to Mr Matheson's report of December 2018. A copy of the chart showing that subsidence is reproduced below.

49. As can be seen from this chart, there were significant elements of subsidence, in two tranches, in the period between February 2012 and February 2014.

50. However, more importantly for the purposes of addressing such elements in Mr Elhazouri's claim made pursuant to the 1961 Act, there has continued to be subsidence measured at the relevant locations, at least up until the date of the final measurement depicted in 2018. Although the extent of the subsidence since February 2014 may only be a matter of some 20 millimetres or so, the graph demonstrates that, nonetheless, there has been some ongoing subsidence since the earlier two more marked subsidence periods.

51. This, in itself, provides a basis for understanding why there continues to be incremental alteration to those elements of damage to Mr Elhazouri's dwelling, which I have concluded can properly be regarded as giving rise to a valid claim pursuant to the 1961 Act.

The SMEC report

52. As part of the iterative process shown in the chronology, Subsidence Advisory also agreed to have a second engineering report undertaken. This report, prepared by Mr Bob Kenderes, from SMEC, was dated 9 June 2017. As it was not prepared for the purposes of this litigation, it does not have the relevant expert witness acknowledgements adopted in its terms. This report was in evidence as an element of the documentary background contained in the material which had been exhibited to Mr Montgomery's affidavit (coming into evidence as Exhibit 2, Tab 11).

53. The author of the SMEC report did not take part in joint expert conferencing with Dr Nguyen and was not called by Subsidence Advisory to give evidence in its case during the hearing. After a brief discussion on this point with Ms O'Brien during the course of her closing submissions, it is undoubtedly the position that the SMEC report is in evidence. Indeed, one uncontentious aspect of the document, a plan showing the location of Mr Elhazouri's dwelling when compared to the finishing points of the two extracted longwall panels, provides the clearest depiction of this relationship. That plan is reproduced below:

54. However, given that the SMEC report took a more jaundiced attitude to Mr Elhazouri's claim than that which has been taken by Mr Matheson when coupled with the fact that its author was not made available to be questioned during the hearing causes me consider whether to give it any weight in my deliberations. In particular, given that these are proceedings in Class 3 of the Court's jurisdiction, where the greater degree of flexibility and informality available pursuant to this provision of the Court Act is applied and, in the concurrent expert evidence, as has been given in these proceedings, permits an active participation by the presiding decision-maker in the questioning of experts during the course of their concurrent evidence, the absence of Mr Kenderes becomes problematic.

55. As with the position concerning the election by Mr Elhazouri not to provide geotechnical evidence, the determination by Subsidence Advisory not to have Mr Kenderes give oral evidence, or affirm a report which complied with the expert witness obligations, is an understandable forensic decision.

56. The corollary of that, given that Mr Matheson‘s written and oral evidence would provide an appropriate and sufficient foundation for Subsidence Advisory’s position adopted concerning Mr Elhazouri's claim under the 1961 Act, means that the weight able to be given to the report by Mr Kenderes raised considerable problems, ones resulting in my conclusion that it is not appropriate to give any weight to this report, given the inability to test it and the absence of the relevant adoption of the expert witness obligations.

The quantity surveyors’ reports

57. As part of the process undertaken by Subsidence Advisory, in October 2017 Subsidence Advisory engaged a quantity surveyor, Denary Quantity Surveyor, to undertake a quantification of the elements which Subsidence Advisory was prepared to accept provided a foundation for compensation arising out of Mr Elhazouri's claim.

58. When Mr Elhazouri expressed dissatisfaction with the outcome of this assessment, Subsidence Advisory agreed to engage a second quantity surveyor, Altus Group, to undertake an assessment of those elements of Mr Elhazouri's claim for which Subsidence Advisory was prepared to accept, consistent with the approach adopted by Mr Matheson and embraced by Subsidence Advisory, as providing a basis for a compensation entitlement.

59. Given that each of these assessments was predicated on the assumption that the appropriate scope of works was limited to the elements conceded to be compensable by Subsidence Advisory, it is not surprising that Mr Elhazouri remained dissatisfied. As a consequence, Mr Elhazouri retained his own quantity surveyor, Mr Ken Whyte, to undertake an assessment of the scope of works for which Mr Elhazouri was claiming compensation.

60. Although there is no need to be precise as to the quantum involved, at more than $250,000 this assessment was over five times the amount of compensation (being $48,674.00) that is currently the offer made by Subsidence Advisory.

Subsidence Advisory’s position on whether damage was compensable or not

61. It is appropriate to note that the position taken by Mr Matheson was, in general terms, that where he was satisfied that mine subsidence was likely to have at least been a contributory cause to damage to Mr Elhazouri's house, it was appropriate that he be compensated to permit rectification or repair of that damage. As a consequence, his detailed reports of 2016 and 2018 were prepared on that basis (being based on not only his own inspections of Mr Elhazouri's property, but also the assessment reports carried out on behalf of Subsidence Advisory (or its predecessor, the Board)).

62. I should also note that Subsidence Advisory has adopted the approach advanced by Mr Matheson and, in this regard, has accepted that it should compensate for those elements of the damage to Mr Elhazouri's house where mine subsidence has contributed to the damage, even if the subsidence might not have been the sole cause of the damage. This approach is to be commended.

63. Despite that commendation, it still remains my role, based on the rights of appeal in s 12B(a) of the 1961 Act, as to causation, and s 12B (b) of that Act, as to quantum of compensation, to determine those matters. In making that self-evident point, I am not to be seen to resile from my commendation of Mr Matheson and of Subsidence Advisory for the approach which has been taken.

64. Mr Matheson set out, in his December 2018 report (Court Book, Tab 10), the elements of Mr Elhazouri’s claim under the 1961 Act which Mr Matheson considered had no subsidence linked causation. These elements were (pages 26 and 27 of his report):

l. The horizontal bed joint crack in the laundry appears to have developed in isolation from other structure movement and could be related to thermal movement and moisture effects possibly caused by leaking water.

m. The random cracking that has been observed in the wall tiles of the main bathroom and the Ensuite is more like to be related to the manufacturing process. There is no evidence of cracking on the rear surface of the walls to which these tiles are affixed, either in the master bedroom, or bedrooms 2 & 3.

n. There is no wall cracking in the corner that correlates with the cracked floor tile. It is more likely that bending of the suspended slab has caused slab tensile strain to be transmitted up through the tile bed and caused the cracking in the Ensuite.

o. The twisted ceiling joists reflect the tendency for green timber to twist and shrink as the timber dries noting that if blocking had been constructed between the joists at supporting walls, the blocking could have reduced the amount that the ceiling joists have twisted. This is regarded as a being caused by a construction defect.

p. The driveway slab appeared to be 10-15mm higher than the garage slab on 11 November 2016, which had reduced to a few millimetres when inspected on 2 July 2018, which is consistent with soil shrinkage outside the building perimeter causing downwards movement of the driveway slab. Furthermore, the slab dips from north to south across a portion of the slab that has been filled, which is strongly suggestive of the impact consolidation settlement of the fill.

q. The cracking across the driveway slab had rounded edges, which have clearly retreated away from the original crack due to wheel abrasion and weathering, and the cracks were found to be full of debris and appeared to be old cracks and had not developed during mining of LW25 to LW27.

The directions of 7 March 2019

65. On the first day when the matter was before me when the absence of Dr Nguyen gave rise to the necessity to adjourn the proceedings until 28 March 2019 to enable him to be present to give concurrent expert evidence with Mr Matheson, I also granted leave to Mr Elhazouri to file such further evidence as he might consider appropriate on the very limited topic of what might be any relevant soil conditions underlying his dwelling. The reason for this was that I had observed, in the joint report of Mr Matheson and Dr Nguyen (subsequently admitted as Exhibit 1, Tab 11) that they had agreed that professional geotechnical evidence was, in their joint opinion, desirable. The direction I gave regarding further evidence was in the following terms:

(4) The Applicant is granted leave to file and serve any evidence on soil conductivity by the close of business 21 March 2019.

66. No leave was sought by Ms O'Brien to permit Subsidence Advisory to file and serve any further evidence and, as a consequence, no direction was made by me making timetabling provision for this to occur. However, on 21 March 2019, a document entitled “320 Bridge Street, Thirlmere: Lounge & kitchen ceiling”, authored by Mr Matheson, was filed. This document had also been served on Mr Elhazouri. At the resumed hearing, I indicated that whether or not I would permit Subsidence Advisory to rely on this document would be deferred but that I would permit it to be dealt with during the oral expert evidence (Transcript 28 March page 11, lines 23 to 31).

67. I subsequently said (Transcript 28 March page 73, line 48 to page 74, line 3):

HIS HONOUR: I'm not bound by the rules of hearsay, but I am bound by the rules of procedural fairness, and permitting questions of that nature at this time strikes me as a big risk of procedural unfairness, under the circumstances. I'll permit you to ask the question, and I will later deal with the question - perhaps in the judgment even - as to what, if anything, I might make of the answer. But I'll permit you to put it in the general, rather than in the particular.

68. Ms O’Brien then posed the following question to Mr Matheson (Transcript 28 March page 74, lines 9 to 11):

O'BRIEN: Okay. Mr Matheson is, has there been anything that has made you reconsider the conclusions about what damage arose from subsidence that you've made in your report, that have happened since the report was finalised?

69. Mr Matheson then responded as recorded over approximately two pages of transcript. It is not necessary to set that material out but I have carefully read the document and the transcript of this element of Mr Matheson’s evidence.

70. It is sufficient to note that nothing in the document, when coupled with Mr Matheson’s oral evidence concerning it, causes me to set aside my reasons (later set out) for my general conclusion as to preference for Dr Nguyen’s evidence over that of Mr Matheson or requires further detailed analysis of the specifics he addressed in it (the partial ceiling collapse).

Statutory interpretation and Ms O'Brien's written submissions

71. Ms O'Brien provided written submissions, submissions which had been filed on 27 March 2019. Although it is necessary to address, separately, the matters of causation dealt with by Mr Matheson submitted by Ms O'Brien as being said to provide a proper basis to reject Mr Elhazouri's appeal and confirm Subsidence Advisory’s determination as to the limited scope of damage to Mr Elhazouri’s dwelling caused by subsidence and to confirm the quantum of compensation appropriate to be awarded to rectify such damage (these being the two elements engaged by s 12(1)(a) and (b) of the 1961 Act), the language of Ms O'Brien's written submissions made it clear that the words “arises from” in s 12(1)(a) were to be regarded as being perfectly synonymous with the words “caused by”.

72. The validity or otherwise of this proposition advanced by her was a matter potentially requiring to be determined in these proceedings because, if her submission was correct, such an interpretation might be more limiting in scope than an alternative interpretation of the words “arises from”.

73. At the commencement of the resumed hearing, I outlined my reservations to Ms O'Brien as to whether or not the words “arises from” in s 12(1)(a) of the 1961 Act were to be regarded as a perfectly synonymous expression for the words “caused by”.

74. On the basis of the short opportunity I had to have research done on this point with respect to past litigation arising from the 1961 Act, it appeared, I advised her, that that position might not be correct (see Alinta LGA Limited (Formerly The Australian Gas Light Company) v Mine Subsidence Board [2008] HCA 17 and Jemena Ltd v Mine Subsidence Board [2012] NSWSC 1509 (Rein J) not disturbed on appeal - Mine Subsidence Board v Jemena Ltd and Jemena Gas Networks (NSW) Ltd (2013) 86 NSWLR 161; [2013] NSWCA 465).

75. Ms O'Brien’s initial response was that it would be appropriate for me to read her written submissions on the basis that she had written “arises from” in each instance where the words “caused by” appeared. She indicated that she might wish to provide further written submissions on this point. I agreed to that course – however, it has proved to be unnecessary as discussed below.

76. Having now heard the oral evidence of Mr Matheson and Dr Nguyen, and the factual conclusions on causation which I have drawn from it, it is unnecessary to explore whether or not the distinction in interpretation could have any relevance (assuming that a difference in shades of meaning might exist) because, taking Subsidence Advisory's case on the basis that the expressions were of identical effect and thus taking Subsidence Advisory's case at its the highest, namely that a causal link was required, Dr Nguyen’s evidence is to be preferred. As a consequence, however the statutory provision is to be approached, I am satisfied that Mr Elhazouri should succeed on general issues of causation of damage to Mr Elhazouri’s dwelling.

The oral evidence of the experts

Introduction

77. Ms O'Brien questioned Dr Nguyen as to his relevant academic qualifications and experience, particularly to the extent with which he had had involvement with structural engineering issues potentially arising from mine subsidence. It was Dr Nguyen’s evidence that he had a PhD in structural engineering with several post-doctoral scholarships to advance his training further. He also candidly acknowledged that he had had no experience with mine subsidence influences on matters of dwelling stability. He did, however, testify as to his extensive practical, professional experience, including examining hundreds of dwellings that had suffered structural disruption and cracking, in order to advise their owners about causation and rectification.

78. It was Mr Matheson's evidence that he had had extensive practical experience in undertaking examination of dwellings and other structures located in potential mine subsidence areas for the purposes of advising on structural causation and rectification matters.

79. I am satisfied that each of them had appropriate qualifications and experience to express expert opinions in their professional discipline on matters relevant to my consideration in these proceedings.

The limits of Mr Matheson’s evidence

80. Appendix I to Mr Matheson's report of November 2018 is entitled “Cumulative Rainfall”. It reproduces rainfall data between 1980 and 2019 for a rainfall data collection point at a location in Buxton, a village some nine kilometres from the location of Mr Elhazouri's house. No explanation is offered by Mr Matheson of the reason for selection of the Buxton collection-point data being particularly relevant, nor as to why data from a closer collection point, for example, at Picton, a location less than six kilometres from Mr Elhazouri's house, was not used by him. A copy of the rainfall data graph in Appendix I is reproduced below.

81. In his written evidence, at page 25, he makes the following observations concerning what he says should be drawn from this data. He expanded on these propositions in his oral evidence. The material contained in his written report on this point was in the following terms:

… The severe decline in cumulative rainfall since September 2016 has most likely caused significant reactive soil movements to occur on this property, that would be sufficient to explain most or all the damage that I observed since the 11 November 2016 inspection, noting again, that the strip footing that I observed in a test pit on site and have assumed to be generally representative of the strip footings writ-large across the site, is of dimensions that infer considerably greater structural flexibility and therefore a greater likelihood of damage, than intended by AS2870, for a full masonry structure.

82. I observe that I had occasion, during the course of Mr Matheson's oral evidence, to remind him that he was to give evidence confined to his area of expertise (which does not, from his CV, encompass geotechnical matters).

83. There are two observations to be made about Mr Matheson's evidence in this regard concerning rainfall. Other aspects of this extract from his written evidence concerning footings’ dimensions are also, separately, dealt with elsewhere in this decision.

84. First, the speculation about soil expansion and contraction under the influence of rainfall patterns over a some eight-or-nine-year period; how long soil moisture might be retained and what the drying-out process might be, are, undoubtedly, technical issues about which expert evidence would have been able to be given in these proceedings. However, Mr Matheson is not that expert and his evidence in this regard, being given entirely outside any area of professional competence, is to be rejected.

85. Second, the rainfall data depicted shows consistency in rainfall over the period between 1989 and 2002 with a then significant decline in the rainfall pattern with that pattern then being generally consistent between 2007 and 2016. It is inappropriate for me to speculate in any fashion whatsoever as to what conclusion is appropriate to be drawn from this information.

86. Although expert opinion, I am sure, could have engaged with this issue had Subsidence Advisory considered that it was appropriate to do so, as I elsewhere discuss, in the context of forensic decisions concerning evidence engaged in these proceedings and forensic choices made, one of those forensic choices on behalf of Subsidence Advisory was that it did not seek consent to rely on expert geotechnical evidence.

87. To the extent that Mr Matheson blithely embarked upon expressing opinions outside his area of professional qualification, not only is that “evidence” to be rejected, it also reflects poorly on Mr Matheson's understanding of what his responsibilities are as an expert witness adopting the Expert Witness Code and how his evidence is to be limited to his area of admitted professional expertise.

Mr Matheson’s evidence on the extent of subsidence

88. Mr Matheson wrote (page 15 of 86):

In the absence of construction drawings and site photographs taken during construction, knowledge of the footing system is incomplete. However, reactive soil movement does explain a significant amount of the damage that was observed around the building on 11 November 2016, when ground movement due mine subsidence up to that time, as measured along the Bridge Street ground movement monitoring survey line, had been comparatively slight.

89. It is to be observed that “ground movement … along the Bridge Street ground movement monitoring survey line” can readily be seen from the figure reproduced earlier at [58]. It shows that, as at February 2014, there had been subsidence of approximately 13.5cm. Why this should be regarded as “comparatively slight” is unexplained.

The approach of the experts

90. The approach taken to addressing matters of causation (this being the fundamental matter requiring determination in these proceedings concerning Mr Elhazouri’s first claim for statutory compensation) were quite distinctly different. Each of them had inspected Mr Elhazouri’s dwelling, Mr Matheson in 2016, solely for the purposes of addressing Mr Elhazouri’s claim under the 1961 Act and, for a second time, in November 2018, for the purposes of reconsideration of Mr Elhazouri’s claim under the 1961 Act (with this reconsideration being for the purposes of this litigation) and, additionally, for the purposes of assessing his second claim, being a claim made under the 2017 Act. Each of these inspections lasted for several hours.

91. Dr Nguyen had inspected Mr Elhazouri’s dwelling on one occasion when he, too, had spent several hours at the property. They had produced expert reports and had undertaken joint conferencing, resulting in a Joint Expert Report. Their individual expert reports and the Joint Expert Report formed part of the evidence in Exhibit 1.

The differing approaches in their expert assessments

92. The approaches taken by each of them to the preparation of their evidence were quite distinctly different. It was Mr Matheson's approach to analyse each separate element of the damage to Mr Elhazouri’s dwelling and endeavour to reach a conclusion as to whether or not that element of the damage might have had mine subsidence caused by the completed longwall panels that had terminated in the vicinity of Mr Elhazouri’s dwelling. He also expressed opinions about potential alternative causes to the various elements of damage where that cause was not mine subsidence-related. These alternative causes were, as a general proposition, based on the possibility of there being a combination of inadequate footings for the dwelling when it was constructed, coupled with reactive soil expansion and contraction as a consequence of rainfall patterns since the dwelling had been erected. I earlier addressed, specifically, the question of rainfall patterns and the conclusions to be drawn from the material upon which Mr Matheson relied. It is sufficient, for present purposes, to note the basis of his approach to assessing the damage to the dwelling.

93. Dr Nguyen’s approach was different, one not involving the quite specific process of analysis undertaken by Mr Matheson. Dr Nguyen said that, in the first instance, he looked for immediately identifiable potential causation factors. In this instance, as I understood his evidence, there was no relevant cross-slope on Mr Elhazouri’s property, thus eliminating the possibility of slippage as a causal factor. Slippage, on sloping sites, was a likely factor of causation where cracking was occurring in dwellings, he said.

94. He also considered the possibility that a rural dam in the vicinity of Mr Elhazouri’s dwelling might have caused seeping and, thus, over time, differential soil wetting resulting in expansion and contraction contributing to the damage. It was his opinion that this dam was too far from the dwelling to have made such a contribution.

95. I also observe that neither Mr Matheson nor Dr Nguyen gave evidence of any obvious wet surface areas between that dam and the dwelling that might lead to an inference that such seepage was present.

96. For the purposes of reaching his conclusion as to causation, Dr Nguyen relied on the following chain of reasoning:

• Mr Elhazouri’s dwelling had been constructed in 1996;

• there was no evidence that it was not constructed in accordance with the appropriate standard of footings compliant with the then applicable Australian Standard, being AS 2870.1-1988;

• it was Mr Elhazouri’s uncontested evidence that, in 2011, when he and his family vacated the property for three years and rented it out, cracking of the nature about which the present two subsidence claims were made did not exist, at all;

• the conventional statutory framework for homeowner’s warranty insurance designed to provide protection against structural defects was limited to seven years;

• no structural defects were evidenced during the 15-year period from 1996 until 2011; and

• the only functional change in the environment of Mr Elhazouri’s dwelling that could have caused the damage was the completion of the longwall extraction panels by the mine.

97. In the absence of any other credible factor arising after 2011, it was Dr Nguyen’s opinion that the only valid conclusion to be drawn was that, a degree of mine subsidence having been acknowledged as having occurred at the property, that subsidence was the cause of the damage to Mr Elhazouri’s dwelling.

Dr Nguyen’s expert report

98. There are two aspects of Dr Nguyen’s expert report (Exhibit 1, Tab 8) that warrant express reproduction. First, at its commencement, Dr Nguyen described the basis of the inspection which he had undertaken. He did so in the following terms:

1.0   INTRODUCTION

…

The assessment is only based on my site visual inspection. The inspection did not include breaking apart, dismantling, removing or moving objects including, but not limited to, foliage, mouldings, roof insulation, floor or wall coverings, sidings, ceilings, floors, furnishings, appliances or personal possessions. The inspector cannot see inside walls, between floors, inside roofing, behind stored goods in cupboards, other areas that are concealed or obstructed. The inspector did not dig, force or perform any other invasive procedures.

…

99. It is clear from the photographs with which Dr Nguyen illustrated his report that his examination of the damage to Mr Elhazouri’s dwelling was at least as comprehensive as the inspection undertaken by Mr Matheson in November 2018. For example, each of them climbed to the roof cavity to be able to inspect and understand the nature of the ceiling separation which had occurred and which was depicted, albeit from slightly differing angles, in photographs in each of their reports.

100. Second, the relevant elements of Dr Nguyen’s summary and conclusion warrant being reproduced. These were in the following terms:

7.0   DISCUSSION ABOUT REASONS AND METHODS FOR RECTIFICATION

…

As per the inspector’s point of view, the main reason for the cracks would be the house is resting on unstable ground condition because the house is a single story building, not much load is on it and the timber walls and timber roof structures are standard structures.

In order to reduce the settlement and movement of the house and minimize cracks in the future, two suitable methods can be applied as below:

-   Stabilizing the soil condition under the house by resin injection to improve the quality of the soil and reduce the reactivity of the soil.

-   Underpinning would be used to reduce the footing movement.

Only after the footing is fixed, the owner can repair the cracks. If the footing is not stable, the cracking through the house would resurface.

The best method for this case to fix the footing, in my opinion, is using resin injections as the underpinning would be more expensive and take much more time. A detailed design will need to be prepared by a company specialising in this reinforcing method (i.e. Mainmark or BuildFix).

After fixing the footing, the owner should wait 6 to 12 months until the soil in stable condition and the crack don’t develop before fixing all the gaps.

8.0   CONCLUSION

-   The house structures are in poor condition and may not fulfil the current requirements of Australian standards. Many cracks are shown as above.

-   The main reason for all the cracks in the house would be that the house is sitting on unstable ground and the ground would be too reactive. A geotechnical investigation would be required to classify exact soil classification of the site (to AS2780-2011).

-   The mine tunnel underground would be the main reason for the soil instability. More information about the mine tunnels running under the ground in this location would be required for further assessment.

-   In order to fix the cracking issues, the owner has to improve the quality of the ground first.

-   The best method to improve the quality of the ground, in my opinion, is using resin injection. Detailed design would be required for this method.

-   After resin injections and supporting footings, the owner should wait 6 -12 months to observe if the cracks still developing or not. If not, the owner can fix the cracking issues.

101. Although Dr Nguyen expresses a view about the desirability of further geotechnical assessment as can be seen in the above extract from his conclusion, he was nonetheless definite in his oral evidence as to the causal factor that had brought about the damage to Mr Elhazouri’s dwelling.

102. Dr Nguyen’s conclusion, set out earlier, was unequivocal that the combination of the 15 year period of stability of the dwelling without any of the damage now evidenced when coupled with the advent of the mining of the two long wall panels mandated the conclusion that the mine subsidence was the only intervening factor and its occurrence at the relevant time, made the conclusion that the mine subsidence caused the damage inescapable.

Mr Matheson’s expert report

103. It is common ground that Mr Elhazouri’s dwelling is of all masonry construction. This means that the external walls are of double brick cavity wall construction. Mr Matheson agreed with my description of this as the construction method for this dwelling. Construction in that fashion, he agreed, caused a dwelling to have less structural flexibility than more common modern construction techniques such as brick veneer houses or timber or other boarding-clad houses.

104. In this context, Mr Matheson had reproduced, in his expert report dated December 2018, a photograph of an element of the footings of Mr Elhazouri’s dwelling, as he was able to observe it in a test pit which Mr Elhazouri had dug near a crack in the external wall supporting a porch slab forming part of the dwelling. It was Mr Matheson's evidence that his interpretation of what was exposed was that the footing had an estimated depth of 430 millimetres and was 300 millimetres wide. His written report said on this (page 15 of 86) said:

It is noted based on AS2870: 2011 that strip footings supporting a full masonry structure on a Class M site should be 900mm deep x 400mm wide to meet the serviceability requirements of the standard, which is approximately 10-times the section stiffness of the footing that was observed in the test pit. If the footings were constructed entirely to the dimensions that were observed in the test pit, they would generally be unsuitable to support a residence of full masonry construction on a moderately reactive clay site according to AS2870: 2011.

Retrospectively, the permissible footing systems for a “full masonry” structure designed in accordance with Table 4.1 of AS2870.1: 1988 for a Class M site, were a stiffened raft (SR), Pier and beam/pier and slab (PBS) or a piled system (PS). Strip footings (STR) were not a permissible footing system for a full masonry structure. However, to place this in perspective in terms of relative stiffness, if the dimensions for a strip footing supporting “articulated full masonry” (600mmx400mm as permitted by AS2870.1: 1988) were increased in proportion to the limiting deflection ratios for both forms of construction (Table E1, AS 2870.1: 1988), the strip footing supporting “full masonry” should have been around 814mm deep by 400mm wide or around 8-times the stiffness of the footing exposed in the test pit.

105. A scanned copy of the figure from his Statement of Evidence (at page 51 of 86) is reproduced below. The element of the photograph depicting the footing is that which is in the right-hand insert with a yellow arrow pointing towards a crack in the footing.

106. I questioned Mr Matheson about his estimate of the width of the footing as it appeared to me that, if the footing was 300 millimetres wide, the width that was exposed on the outer side of the brickwork was insufficient as there would not be enough distance inward of the brickwork for a second skin of bricks for the cavity wall.

107. Mr Matheson responded by saying that this footing was one which he anticipated was of a single skin of bricks because it was only supporting an external slab for an open area. However, he did concede that the necessity for engaged piers, at regular intervals along the internal face of such a single-skin wall, would also require some additional width of footing to support them.

108. Mr Matheson also conceded that, for a double-brick cavity wall, the appropriate construction methodology for the 1996 era would require a 400‑millimetre-wide footing as a minimum for such a structure.

109. To the extent that Mr Matheson’s general conclusions concerning external wall cracking was made on the assumption of a 300-millimetre-wide footing which he considered to be inadequate, that conclusion cannot be sustained given his concession in oral evidence that, for those elements of the house that were double-brick external walls, a 400-millimetre-wide footing was likely to have been poured for that purpose.

110. He also observed, in the course of his oral evidence, that questions of footing adequacy were also dependent on whether or not proper and appropriate reinforcing had been installed in the footing trench before the footing concrete was poured. I note he made this as a speculative comment and proffered no definite suggestion that such reinforcing was not present, nor had he undertaken any investigation which might have permitted him to express an opinion as to whether it had or had not been installed during construction. Given that proper use of reinforcing was part of the necessary construction standards at the time of erection of the Elhazouri dwelling and the uncontradicted evidence of the lack of cracking until 2011 (that providing sufficient basis for the inference that, for at least 15 years, the footings had proved to be entirely adequate), there is no basis upon which I could conclude that the footings were installed otherwise than in accordance with conventional construction standards and methodology at the time of the erection of the Elhazouri dwelling.

106. Finally, on this point, I observe that Mr Matheson made no subfloor inspection of the Elhazouri dwelling in order to undertake an examination of the internal face and footings of the external brickwork or any inspection of the footings and internal single-skin brick walls.

Mr Elhazouri’s evidence

112. Prior to Mr Elhazouri entering the witness box to give his evidence, I explained to him the difference between evidence and submissions. I explained to him that he did not need to pay attention to the distinction when he was giving his evidence because, subject to any objections which might be raised by Ms O'Brien, I proposed to permit him to give his evidence in narrative form, because both Ms O'Brien and I would understand, from what he said, what portions should be regarded as evidence and what portions should be taken as being submissions. Ms O'Brien indicated that she was content for that approach to be taken.

113. Mr Elhazouri then gave evidence. The sole element of that evidence of significance in these proceedings was his confirmation that, at the time he and his family moved out of the dwelling in 2011 (not returning, as earlier noted, for three years), none of the cracking which was the subject of the present claim was in evidence in his dwelling.

114. I also observe that Ms O'Brien question Mr Elhazouri about the management of his property during the period when it was rented out. It was his evidence that, for part of that period, the property was managed by a real estate agent, but for the remainder of the period he managed the property himself. In response to questioning from Ms O'Brien, he indicated that, whilst managing the property directly himself, there had been no complaint about cracking nor had there been any complaint on that topic transmitted to him from his agent while the agent was managing the property.

115. Mr Elhazouri’s oral evidence was not lengthy and I am satisfied that it was given with candour.

No complaints of cracking during the tenancy period

116. I have noted that Mr Elhazouri, in his oral evidence, said that there had been no complaints to him concerning cracking during the period from 2011, when his house was tenanted.

117. It is clear from the report by Mr Matheson from his first inspection in 2016 that the cracking to the dwelling was not such that it would have interfered, in any fashion whatsoever, with the functionality of the dwelling. The extent of the cracking would not have impacted on a tenant’s quiet enjoyment of the property.

118. As a consequence, I am satisfied that there would have been no particular need for any tenant to draw the cracking to the attention of the agent or to Mr Elhazouri (as relevant). The absence of complaint does not give me any cause to question the evidence of Mr Elhazouri that there was no cracking present as at late 2011.

Conclusion on damage to the dwelling

119. I have concluded that I should accept that the entirety of the damage to Mr Elhazouri’s dwelling that is the subject of his claim pursuant to the 1961 Act was caused by mine subsidence. There are three reasons for this.

120. First, the chain of reasoning by Dr Nguyen as earlier set out at [92] has no inherent faults. The conclusion that he reaches, as a consequence of that chain of reasoning, is compelling absent any alternative logical reasoning sequence and there is none.

121. Second, to the extent that Mr Matheson proposes an alternative causation theory, this is based on assumptions he makes about the presence of, and effects caused by, reactive soils. These are matters, as I have earlier explained, outside his area of professional competence.

122. Third, to the extent that Mr Matheson relies, as a second alleged contributory factor being what he regards as the inadequacy of the footings upon which the dwelling has been erected, his evidence on this point is to be rejected for the reasons earlier explained. In summary, his conclusions as to the inadequacy of the overall footings for the dwelling are based on inappropriate inferences drawn from what can only be regarded as an insufficient examination of the footings of the dwelling. First, the footing in the test pit was not a footing of one of the major structural walls of the dwelling. Second, for the reasons earlier set out, the conclusion he has drawn as to the horizontal dimension of the footing in the test pit cannot be correct. Third, he has not undertaken any subfloor examination of the footings of any of the structural double brick walls of the dwelling and he gave no evidence that it was not possible to do so. In these circumstances, where the adequacy of the footings of the major structural walls was, in his opinion, to be questioned, a subfloor examination would have been appropriate or an explanation given as to why it was not possible.

123. For these reasons, Dr Nguyen's evidence is to be accepted on the question of causation of damage covered by the claim pursuant to the 1961 Act. The damage must be regarded as having been caused by subsidence resulting from the completion of extraction of coal from the two nearby longwall panels.

The driveway cracking and differential settlement

124. There is no proper evidentiary basis upon which I can accept that the element of Mr Elhazouri's claim, made under the 1961 Act, relating to cracking and settlement of the driveway, has been proved as arising from subsidence caused by the longwall mining activities.

125. Mr Matheson gave, in his oral evidence, a summary of his conclusions concerning this cracking and settlement. First, he said that the wear on the cracking (it having, in general terms, worn edges consistent with long-term vehicle movement across it) indicated a likely longer time period since its occurrence than had elapsed since the timing of post longwall completion subsidence. I interpolate that, had that been the sole basis upon which Mr Matheson had rejected this element of Mr Elhazouri's claim, I would likely have found this to be a potentially unsatisfactory basis upon which to reject the driveway claim.

126. However, Mr Matheson also gave evidence that the driveway had been constructed on a cut-and-fill basis (albeit of comparatively limited extent) in a fashion so that one edge of the driveway was supported by, he inferred, the fill that had been taken to form the cut for the other side of the driveway.

127. This evidence provides a logical basis for understanding why there may have been some settlement, on a cross-fall basis, of the driveway, resulting in its cracking and settlement, as shown in Figure 28 of Mr Matheson's December 2018 report.

128. During the course of his oral evidence, Dr Nguyen acknowledged that he had not inspected the driveway and had confined his examination, whilst on site, to damage to the principal structure, being the house and the integrated garage.

129. As a consequence, there is no evidentiary basis upon which it could be appropriate to conclude that Mr Elhazouri has established this element of his claim.

The brick fence element

130. To the extent that there is a claim for cracking to the brick fence within the scope of Mr Elhazouri's claim under the 1961 Act, there is also no proper evidentiary basis upon which I could conclude that Mr Elhazouri has established any entitlement with respect to this damage.

Costs

131. In Cachia v The Hills Shire Council [2010] NSWLEC 136 (Cachia v The Hills Shire Council), Preston CJ discussed the scope of permissible reimbursement of a self-represented litigant (as is here the case), when that litigant is successful. The principles adopted by his Honour in that decision, with respect to the costs element (there being no separate issues of reimbursement under separate legislation, such as the Local Government Act as was the case in those proceedings), provides guidance as to the extent to which Mr Elhazouri is entitled to be reimbursed for expenses for matters such as preparation of expert reports and the participation of Dr Nguyen in his written and oral evidentiary engagement with Mr Matheson.

132. As also dealt with by his Honour, Mr Elhazouri is entitled to reimbursement of his filing fee paid to the Court to commence these proceedings, plus reasonable (but limited) photocopying and other associated documentary costs.

133. As his Honour also made clear, a self-represented litigant is not entitled to travelling expenses for the purposes of attending the hearing, nor for any reimbursement for time and effort necessarily involved in pursuing the claim, or for participation in the hearing.

134. The principles set out in Cachia v The Hills Shire Council are apposite to be applied to these proceedings given the success which Mr Elhazouri has had with the dominant contested elements in his claim made pursuant to the 1961 Act. It is, therefore, appropriate that I make an order providing for his reimbursement within the permitted scope. However, as Ms O'Brien foreshadowed that Subsidence Advisory might wish to be heard further on the question of costs, that order will be made in terms which permit Subsidence Advisory to be heard further on the question of costs provided it notifies my Associate within 28 days of the date of this decision that it wishes to address this matter further.

Conclusion

135. Based on the evidence I have set out, I have reached the following conclusions with respect to the matters that are the subject of Mr Elhazouri's claim made pursuant to the 1961 Act:

• I am comfortably satisfied, on the basis of my acceptance of Dr Nguyen’s evidence in preference to that of Mr Matheson, that such damage subject to the claim pursuant to the 1961 Act to Mr Elhazouri's dwelling (including his garage) was caused by mine subsidence resulting from the extraction of coal from the two longwall panels which terminated in the vicinity of Mr Elhazouri's dwelling and to its east and south-east;

• in the absence of any evidence from Dr Nguyen to the contrary, as he had not inspected the driveway slab, I accept the evidence of Mr Matheson that such cracking and settlement as has been occasioned to the concrete driveway slab is as a result of the cut‑and‑fill method of construction employed in its creation; and

• a similar insufficiency of evidence position arises with respect to such element of Mr Elhazouri's claim made pursuant to the 1961 Act as relates to cracking of his brick fence so that this element of his claim is also rejected.

136. As a result, I propose, as I discussed with the parties during the course of the hearing, to adjourn the matter for two months to permit discussion between the parties as to the quantum of compensation for, timing of implementation of, and construction methods to be employed in, rectifying the damage to Mr Elhazouri's house and garage.

137. I have also concluded that the appropriate position with respect to costs (given the limited nature of costs’ reimbursement available to a self-represented litigant, as is here effectively the case,) I should make a contingent costs order that Mr Elhazouri is to be reimbursed the costs and expenses associated with this litigation with those costs being confined to:

1. the filing fee paid to the Court for the commencement of these proceedings;

2. the costs of Mr Elhazouri obtaining expert advice and evidence for the purposes of these proceedings; and

3. reasonable copying costs associated with the preparation for the proceedings.

138. Costs purely confined to matters that had been incurred by Mr Elhazouri for the purposes of presentation of his claim to Subsidence Advisory under the 2017 Act are not encompassed in the terms of the costs order set out below.

139. Similarly, for the reasons earlier noted, travel costs and other personal time-related costs for Mr Elhazouri and his daughter are not encompassed, for the purposes of the order made below.

Orders

140. It follows from what I have earlier set out, that the orders of the Court are:

1. The matter is adjourned until 9.15 am on Friday 7 June 2019 in the LVC List;

2. Unless the Respondent advises my Associate by 5.00 pm on 8 May 2019 that it wishes to be heard further on the question of costs, the Respondent is to pay the Applicant's costs and expenses of these proceedings in accordance with the basis set out in this decision;

3. In the event that the parties are able to reach agreement on the quantum of compensation pursuant to the Applicant's claim pursuant to the Mine Subsidence Compensation Act 1961 and the appropriate methodology for implementation, the parties are to cause the matter to be listed in a Friday LVC List for the purposes of making orders to give effect to such agreement; and

4. Liberty to relist the matter in a Friday LVC List for the purposes of seeking guidance on the process of working out implementation of the terms of this decision. Not less than three working days’ notice is to be given to the other party by a party seeking to relist the matter pursuant to this order.

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Annexure A (80.5 KB, pdf) Annexure A (80.5 KB, pdf)

Decision last updated: 10 April 2019