Jemena Gas Networks (NSW) Limited v Mine Subsidence Board

Jemena Gas Networks (NSW) Limited appealed to the New South Wales Court of Appeal against a decision of the Mine Subsidence Board concerning compensation for works undertaken to prevent or mitigate damage from anticipated mine subsidence. The core of the dispute involved the interpretation of provisions within the *Mine Subsidence Compensation Act 1961* (NSW), specifically sections 12, 12A, 12B, and 13A, which govern claims for compensation arising from subsidence caused by coal mining operations.

The Court of Appeal was required to determine whether compensation could be claimed under the Act for works carried out to prevent or mitigate damage that was anticipated to occur due to future subsidence, rather than for damage that had already manifested. A further significant issue was whether the Court of Appeal should depart from its own previous decision in *Mine Subsidence Board v Wambo Coal Pty Ltd* [2007] NSWCA 137, and if so, under what standard of reconsideration, particularly in the context of a five-judge bench.

The Court affirmed the principles of precedent, holding that an earlier decision of the Court of Appeal, particularly one delivered by a five-judge bench, should only be departed from if it is "plainly" or "clearly" wrong. Applying this stringent test, the Court found that the interpretation of the relevant sections of the *Mine Subsidence Compensation Act 1961* in *Wambo Coal* was correct. The Court reasoned that the statutory language, particularly phrases such as "a subsidence" and "from subsidence," contemplated compensation for damage that had already occurred or was directly attributable to an actual subsidence event, and did not extend to works undertaken in anticipation of future subsidence.

The appeal was dismissed, and Jemena Gas Networks (NSW) Limited was ordered to pay the costs of the Mine Subsidence Board.