Jemena Gas Networks (NSW) Limited v Mine Subsidence Board [2011] HCATrans 80

Jemena Gas Networks (NSW) Limited (Jemena) sought special leave to appeal from a decision of the Supreme Court of New South Wales, which had dismissed its appeal against a decision of the Mine Subsidence Board (the Board). The dispute concerned the Board's refusal to grant Jemena a certificate of indemnity under section 15 of the *Mine Subsidence Compensation Act 1961* (NSW) (the Act). Jemena, as the owner of a gas pipeline, had sought the certificate in relation to proposed mining operations by Glencore Coal Pty Ltd (Glencore) that were likely to cause subsidence affecting the pipeline. The Board's refusal was based on its interpretation of section 15, which it considered did not apply to a statutory authority like Jemena. The High Court of Australia heard the application for special leave.

The primary legal issue before the High Court was whether section 15 of the *Mine Subsidence Compensation Act 1961* (NSW) applied to a statutory authority such as Jemena, which owned and operated a gas pipeline. This involved determining the scope of the Board's power to grant a certificate of indemnity and whether Jemena was a person or body for whose benefit such a certificate could be issued, notwithstanding its statutory nature. The Court also considered whether the Board had erred in law in its construction of the Act and its application to Jemena's circumstances.

The High Court granted special leave to appeal and, upon hearing the appeal, found that the Supreme Court had erred in its interpretation of section 15 of the Act. The Court held that the term "person" in section 15 was not limited to natural persons or private entities but extended to statutory authorities like Jemena. The Court reasoned that the purpose of the Act was to provide compensation for damage caused by mine subsidence, and to exclude statutory authorities from its protective provisions would undermine this purpose. The Court emphasised that the Board's power to grant a certificate of indemnity was a crucial mechanism for managing the risks associated with mining and protecting infrastructure.

The High Court allowed the appeal, set aside the decision of the Supreme Court of New South Wales, and remitted the matter to the Mine Subsidence Board for determination according to law.