Legal Research
Cases
Jemena Ltd v Mine Subsidence Board

Jemena Ltd v Mine Subsidence Board

Link copied

Case Copied 29 November 2012 67 min read

Contents

On this page

Supreme Court

New South Wales

Medium Neutral Citation: Jemena Ltd v Mine Subsidence Board [2012] NSWSC 1509
Hearing dates: 29 - 31 October 2012
Decision date: 29 November 2012
Jurisdiction: Common Law - Administrative Law
Before: Rein J
Decision:
Plaintiff's claim for expenses incurred in preventing or mitigating damage to its pipeline caused by mine subsidence not precluded by its failure to obtain approval from the Mine Subsidence Board for construction of the pipeline.

Catchwords:
ADMINISTRATIVE LAW - judicial review - grounds of review - irrelevant considerations in defendant's decision not to grant certificate to retrospectively approve pipeline construction - where defendant took into account the fact that approval might lead to claims on the Mine Subsidence Compensation Fund - where defendant took into account delay in bringing application when pipeline had been in place for many years before legislative change and no damage or risk of damage appreciated until many years after legislative change - such grounds not open to be relied on under the legislative scheme - decision ultra vires

ADMINISTRATIVE LAW - prerogative writs and orders - mandamus - discretion to refuse relief by reason of delay in bringing proceedings not exercised where delay is sufficiently explained and justified - inappropriate to order the grant of a certificate where legislation required satisfaction on a matter which the defendant had not yet considered

ENERGY AND RESOURCES - mining - Mine Subsidence Compensation Act 1961, s 15(5)(b) - whether s 15B(3A) certificate required to claim for works preventing or mitigating damage caused by subsidence - whether "or anticipated to be caused" can, in effect, be read into "a claim in respect of damage caused by subsidence" - consideration of the legislature's intention - consideration of the phrase "in respect of" - where s 10(3) makes clear distinction between amounts payable in respect of damage caused by subsidence and preventative or mitigatory works

EVIDENCE - burden of proof, presumptions, and weight and sufficiency of evidence - whether approval was granted by a public body - whether presumption of regularity available - where public body has not done some act inconsistent with the grant of approval - where presumption needs to also found an assumption that application was made - presumption not available and even if available, there is evidence to rebut the presumption

ESTOPPEL - general principles - no evidence that plaintiff assumed approval had been granted - no evidence that defendant had induced any such assumption
STATUTES - acts of parliament - interpretation - whether licensing scheme under s 11, Pipelines Act 1967 excuses non-compliance with requirement to obtain approval from the Mine Subsidence Board under s 15, Mine Subsidence Compensation Act 1961 - whether the two Acts are inconsistent - where Pipelines Act specifies acts not to apply to pipelines authorised by licence - where unlikely that Parliament intended licence to exempt pipelines from supervision of the Mine Subsidence Board - where Mine Subsidence Compensation Act more specific than Pipelines Act
Legislation Cited: Local Government Act 1919
Mine…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Keep reading for free

Create a free CaseChat account to read Jemena Ltd v Mine Subsidence Board and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2012] NSWSC 1509
Decision Date: 29 November 2012

CaseChat Overview and Summary

Jemena Ltd sought judicial review of a decision by the Mine Subsidence Board to deny a certificate under section 15B(3A) of the Mine Subsidence Compensation Act 1961, which was necessary for Jemena to claim compensation for works preventing or mitigating subsidence damage. The Federal Court was asked to determine whether the Board's decision was lawful and whether the Board had considered irrelevant factors.

The court first examined the grounds of review, finding that the Board had taken into account irrelevant considerations in deciding not to grant the certificate. Specifically, the Board had considered that granting the certificate might lead to claims on the Mine Subsidence Compensation Fund and that there had been a delay in bringing the application, despite the pipeline having been in place for many years before the legislative change and no damage or risk of damage being appreciated until many years after the change. The court held that these grounds were not open to be relied upon under the legislative scheme, and therefore the decision was ultra vires.

The court also considered whether the Board had discretion to refuse relief due to the delay in bringing proceedings. The court found that the delay was sufficiently explained and justified, and therefore declined to exercise its discretion to refuse relief. The court also found that it was inappropriate to order the grant of a certificate when the legislation required satisfaction on a matter which the Board had not yet considered. Furthermore, the court examined whether the Pipelines Act 1967 excused non-compliance with the Mine Subsidence Compensation Act 1961, and concluded that the two Acts were not inconsistent and that the Pipelines Act did not exempt pipelines from supervision of the Mine Subsidence Board.

The court ultimately found in favour of Jemena Ltd and ordered the Board to grant the certificate required under section 15B(3A) of the Mine Subsidence Compensation Act 1961.

Orders