Mine Subsidence Board v Australian Gas Light Co

[2007] NSWCA 100

Reported Decision:	152 LGERA 73
Appeal Outcome:	Special leave application granted by the High Court - 5 October 2007

New South Wales

Court of Appeal

CITATION:	Mine Subsidence Board v Australian Gas Light Co & Anor [2007] NSWCA 100 This decision has been amended. Please see the end of the judgment for a list of the amendments.
HEARING DATE(S):	21 March 2007
JUDGMENT DATE:	3 May 2007
JUDGMENT OF:	Hodgson JA at 1; Tobias JA at 18; Handley AJA at 101
DECISION:	(a) Leave to appeal granted; (b) Appeal allowed; (c) Set aside Orders 1 and 2 made by Biscoe J on 11 August 2006 and in lieu thereof order that the preliminary question as to whether the Land and Environment Court had jurisdiction to hear and determine the Class 3 application filed by the opponents on 10 February 2006 be answered “No”; (d) Remit the proceedings to the Land and Environment Court for the further disposition of the said application.; (e) Order that the costs of the hearing of the preliminary question before the Land and Environment Court and the costs of the summons for leave to appeal and the appeal be paid by the opponents
CATCHWORDS:	ENERGY AND RESOURCES — Statutory regulation — Compensation — Subsidence – Appeal rights - STATUTES – Acts of Parliament – Interpretation – Mine Subsidence Compensation Act 1961 ss 12, 12A, 12B, 15 and 15B
LEGISLATION CITED:	Family Court Act 1975 Income Tax Assessment Act 1936 (Cth) Land & Environment Court Act 1979 Mine Subsidence Act 1928 Mine Subsidence Compensation (Amendment) Act 1969 Mine Subsidence Compensation Act 1961 Mine Subsidence Compensation (Amendment) Act 1989 Miscellaneous Acts (Planning) Repeal & Amendment Act 1979
CASES CITED:	Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321 Australian Gas Light Co and Another v Mine Subsidence Board (2006) 147 LGERA 433 [2006] NSWLEC 494 Bank of New South Wales v The Commonwealth (1948) 76 CLR 1 Pegasus Leasing Ltd v Federal Commissioner of Taxation (1991) 104 ALR 442 Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355 Re JJT Ex parte Victoria Legal Aid (1998) 195 CLR 184 Commissioner of Taxation v Ryan (1998) 82 FCR 345
PARTIES:	Mine Subsidence Board Australian Gas Light Company AGL Gas Networks Ltd
FILE NUMBER(S):	CA CA 40528/06
COUNSEL:	Cl: M J Leeming SC / A S Bell SC 1&2 Opp: C Withers / S E Gray
SOLICITORS:	Cl: I V Knight, Crown Solicitor 1&2 Opp: Freehills Solicitors, Sydney
LOWER COURT JURISDICTION:	Land & Environment Court
LOWER COURT FILE NUMBER(S):	LEC 30101/06
LOWER COURT JUDICIAL OFFICER:	Biscoe J
LOWER COURT DATE OF DECISION:	11/8/06
LOWER COURT MEDIUM NEUTRAL CITATION:	Australian Gas Light Company v Mine Subsidence Board [2006] NSWLEC 494

CA 40528/06

HODGSON JA
TOBIAS JA
HANDLEY AJA

Thursday 3 May 2007

MINE SUBSIDENCE BOARD v AUSTRALIAN GAS LIGHT COMPANY & ANOR

FACTS

The opponents (AGL) constructed and operated a natural gas pipeline which ran through the Appin Mine Subsidence District. Mining in the area caused subsidence to the land through which the pipeline ran and AGL undertook preventative and mitigatory works to prevent physical damage as a result, and to prevent damage from future anticipated subsidence.

Section 15(5)(b) of the Mine Subsidence Compensation Act 1961 requires that where the Board did not grant approval to the damaged improvements, “no claim for compensation could be entertained or payment made” unless a s 15B(3A) certificate has been granted to indicate that the improvement complies with the Board’s requirements. AGL applied for a s 15B(3A) certificate, although it maintained that informal approval at least had been obtained.

The Board refused AGL’s application for a s 15B(3A) certificate, giving as one of its grounds for doing so that it “will mean [that] the entertainment and payment of a compensation claim… is not precluded by operation of s 15(5)(b)”. The Board also, as a consequence, refused to entertain AGL’s compensation claim. In a letter to AGL dated 14 October 2005, the Board also expressed the view that “the only way in which a claim may be made with respect to expenses for works to prevent damage … had anticipated subsidence taken place is through the operation of s.13A.”

Section 12B of the Act provides for appeals to the Land & Environment Court by a person claiming compensation under section 12 or 12A:

“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.”

AGL appealed three decisions of the Board under s 12B, summarised as follows:

a) a decision to refuse to issue AGL with a s 15B(3A) certificate because to do so would remove the bar in s 15(5)(b) to entertainment and payment of AGL’s compensation claim;

b) a decision to refuse to entertain AGL’s compensation claim under ss 12 and 12A because AGL did not have a s 15B(3A) certificate as required by s 15(5)(b);

c) a decision, in the letter dated 14 October 2005, that ss 12 and 12A did not provide for AGL’s compensation claim insofar as it related to anticipated subsidence.

The question of jurisdiction was heard first, it being common ground that if any of the three decisions were appealable then all three could be heard under the Land and Environment Court’s ancillary jurisdiction.

The primary judge held that the first two decisions did not enliven an appeal under s 12B. However, he found that the Board’s comments in their letter did enliven s 12B(a), and so found that the Land and Environment Court had jurisdiction to hear the appeal on all three matters.

The Board appealed on the finding regarding decision (c), while AGL filed a Notice of Contention regarding (a) and (b).

HELD, granting leave and allowing the appeal:

1. (per Tobias JA, Hodgson JA and Handley AJA agreeing) The expression of the Board’s view with regards to compensation for anticipated subsidence was no more than an opinion, was not an independent reason for its refusal of the claim of compensation and was not relevantly a “decision” in respect of which s 12B of the Mine Subsidence Compensation Act 1961 was engaged.

2. (per Tobias JA and Handley AJA, Hodgson JA dissenting) The reference to “the amount of payment from the Fund” in s 12B(b) of the Mine Subsidence Compensation Act 1961 is reflective of a decision of the Board that determines the quantum of the compensation claim to be paid from the Fund after consideration of the merits of the claim.

3. (per Tobias JA and Handley AJA, Hodgson JA dissenting) The prohibition of any claim being “entertained” in s 15(5)(b) does not mean that the claim is not to be considered by the Board before it determines that it cannot entertain it. The prohibition against entertainment refers to a refusal to proceed to a consideration of the claim on its merits.

4. (per Tobias JA, Hodgson JA and Handley AJA agreeing) The Board’s decisions to refuse AGL’s application for a certificate under s 15B(3A) is not a decision “as to the amount of payment from the Fund” and did not engage any right of appeal under s 12B.

5. (per Tobias JA and Handley AJA agreeing, Hodgson JA dissenting) The Board’s decision to refuse AGL’s claim for compensation in the absence of a s 15B(3A) certificate was not a decision “as to the amount of payment from the Fund” and did not engage any right of appeal under s 12B.

CA 40528/06

HODGSON JA
TOBIAS JA
HANDLEY AJA

Thursday 3 May 2007

MINE SUBSIDENCE BOARD v AUSTRALIAN GAS LIGHT COMPANY & ANOR

Judgment

1 HODGSON JA: The circumstances giving rise to this appeal, and the issues it raises, are set out in the judgment of Tobias JA.

2 In one respect, I respectfully disagree with Tobias JA as to the issues raised on this appeal. He has concluded that there was no issue either before the primary judge or before this Court as to whether s.12B of the 1961 Act extended to a decision of the Board to refuse a claim on the ground that it had not granted approval to the erection or alteration of the relevant improvement. In my opinion, this was an issue before the primary judge and before this Court, for the following reasons:

(1) In its amended Points of Claim AGL alleged that approval had been granted (see pars.[39] and [59]-[60]).
(2) Before the primary judge, the Boards’ Counsel Mr. Leeming accepted that AGL was relying on s.15(3) of the 1961 Act as well as s.15(3A), that is, that it alleged it had approval and so was entitled as of right to a certificate; and also accepted that, on the question of jurisdiction, the matters relied on by AGL as supporting an inference of approval could be taken as common ground.
(3) AGL’s Notice of Contention referred to the above matters.
(4) In oral submissions, AGL’s Counsel submitted that implicit in the Board’s decision was that a s.15B(3A) certificate was needed because there was no approval (transcript pp.27, 29), and that accordingly a s.12B appeal lay.

3 Relevant statutory provisions are also set out in the judgment of Tobias JA. I would refer in addition to s.13A of the 1961 Act, which empowers the Board to carry out, or cause to be carried out, works for the prevention or mitigation of damage from subsidence; and also s.12A(1)(a), which authorises claims for payment of compensation for damage caused by the exercise by the Board of its power under s.13A.

4 When a claim for payment is made under the 1961 Act, a number of issues can arise for determination by the Board:

(1) In relation to each improvement in respect of which damage is alleged:
(a) Was there damage (s.12(1)(a))?
(b) Did that damage arise from subsidence (s.12(1)(a))?
(c) Was the subsidence due to the owner’s operations (s.12(1)(a))?
(d) Was there expense incurred or to be incurred as a result of such damage (s.12(1)(b))?
(e) Should compensation be reduced because of the negligent or improper manner in which the improvement was constructed or maintained (s.12(1))?
(f) Was damage caused by the carrying out of an extraction industry or operation (s.12(1A))?
(g) Was the improvement erected or altered in contravention of s.15; and if so, was there a certificate under s.15B (s.15(5)(b))?
(2) Was damage caused by the exercise of the Board’s powers under s.13A (s.12A(1)(a))?
(3) (a) Could damage reasonably be anticipated from subsidence that has taken place (s.12A(1)(b))?
(b) Was expense incurred to prevent or mitigate such damage (s.12A(1)(b))?

5 A question then arises as to what determinations of what issues can give rise to an appeal under s.12B.

6 Under s.12B(a) decisions “as to whether damage has arisen from subsidence or could reasonably have been anticipated” can be challenged. That would plainly extend to issues 1(a) and (b) and 3(a); but not it would seem to any of the other issues I have identified.

7 Under s.12B(b), decisions “as to the amount of payment from the Fund” may be challenged. Plainly, this would allow challenge to a decision as to the assessment of the amount of payment, where the Board has decided to make some payment, including a decision on issue 1(e). However, if the Board decides that no payment is to be made because of adverse decisions of any of the issues 1(c), (d), (f) or (g), 2, or 3(b), then there could be a question whether any appeal lies.

8 There seems no reason why the legislature would permit an appeal in respect of a decision in respect of 1(a) and (b) and 3(a), but not on issues 1(c), (d) or (f), 2 or 3(a), if that decision results in a nil award. And there seems no reasonable basis on which a decision on issue 1(g) would be excluded, if an appeal on all other issues were allowed.

9 Further, if in a particular case a claim is made in respect of damage to a number of improvements, and the Board decides to award a payment in respect of one such improvement, then it would seem that an appeal concerning the whole claim would be an appeal within s.12B(b), thus opening up for appeal all the other issues in respect of all the other improvements. The contrary view, that the appeal would lie only as to the quantum of the payment relating to the particular improvement in respect of which payment was awarded, would impose a limitation not suggested by the wording of s.12B(b); and would open up the possibility of divergent lines of challenge to different aspects of the Board’s decision of a single claim. (As noted below, in relation to other improvements it may be that an order in the nature of mandamus could be sought in the Supreme Court.)

10 It might be said that an appeal on some issues would be an appeal “on the merits”, whereas an appeal on issue 1(g) is not an appeal on the merits. However, I do not see a sharp distinction between (for example) a question whether an improvement was constructed or maintained in an improper manner, and a question whether it was constructed otherwise than in conformity with an approval of the Board under s.15. Although, in the latter case, the 1961 Act provides that no claim should be entertained or payment made, in my opinion the use of that conjunction in the Act simply means that no claim should be acceded to the point of making a payment. I think that follows from the use of the conjunction in provisions such as s.12(1).

11 If the Board erroneously decides that an improvement was erected otherwise than in accordance with an approval of the Board, and for that reason does not entertain an application, then presumably, unless s.12B applies, the claimant could seek an order in the nature of mandamus in the Supreme Court.

12 It seems to me unlikely that the legislature intended that the availability of an appeal, and the availability or need to approach the Supreme Court, should depend upon capricious distinctions of the kind I have been discussing; so although there is force in the contention that a broad construction of s.12B(b) would render s.12B(a) otiose, I think the broad construction of s.12B(b) is preferable. In my opinion, there is an appeal under s.12B(b) in relation to all the issues I have identified.

13 AGL has contended that its improvements were not in contravention of s.15; and to the extent that the Board’s decision rejected that contention, in my opinion AGL has an appeal under s.12B.

14 I agree with Tobias JA that there is no appeal from a decision of the Board not to grant a certificate under s.15B(3A). Any remedy that a person seeking such a certificate might have would generally have to be a remedy in administrative law. However, since AGL does have an appeal in respect of the decision that the improvements were constructed in breach of s.15, ss.16(1A) and 39(2) of the Land and Environment Court Act 1979 become relevant. Those provisions are as follows:

16 Jurisdiction of the Court generally
…
(1A) 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.

39 Powers of Court on appeals
…
(2) In addition to any other functions and discretions that the Court has apart from this subsection, the Court shall, for the purposes of hearing and disposing of an appeal, have all the functions and discretions which the person or body whose decision is the subject of the appeal had in respect of the matter the subject of the appeal.

15 The appeal under s.12B of the 1961 Act is a class 3 appeal: see Land and Environment Court Act s.19(f1). In my opinion, s.39(2) has the effect that the Land and Environment Court would have the power of the Board to grant a certificate under s.15B(3A) for the purposes of hearing and disposing of the appeal.

16 The primary judge in this case rejected the Board’s challenge to jurisdiction on the basis that the Board had made a decision that, in the absence of the exercise of the Board’s powers under s.13A of the Act, AGL could not get compensation for preventative measures it had taken. I agree with Tobias JA that what the Board did in relation to that question did not amount to a decision.

17 However, for the reasons I have given, in my opinion, while leave to appeal should be granted, the appeal should be dismissed with costs.

18 TOBIAS JA: This appeal concerns the extent of the jurisdiction of the Land and Environment Court (the LEC) to entertain an appeal by the opponents (AGL) from certain decisions of the claimant, the Mine Subsidence Board (the Board), rejecting a claim made by AGL under the Mine Subsidence Compensation Act 1961 (the 1961 Act) for payment from the Mine Subsidence Compensation Fund (the Fund) of amounts expended to protect its natural gas pipeline from actual or anticipated subsidence due, relevantly, to the extraction of coal from the land through which the pipeline passed.

19 The Board contended that that jurisdiction was relatively confined whereas AGL asserted that the statutory provision of the 1961 Act investing the LEC with jurisdiction to determine appeals from decisions of the Board should be construed liberally.

20 The primary judge, Biscoe J, decided that an appeal lay to the LEC with respect to one of the Board’s alleged decisions but not with respect to two other decisions against which the opponents sought to appeal: Australian Gas Light Co and Another v Mine Subsidence Board (2006) 147 LGERA 433; [2006] NSWLEC 494. It is against that decision that the Board seeks leave to appeal to this Court. Upon the basis that leave is granted, AGL has filed a Notice of Contention with respect to his Honour’s decision to deny a right of appeal with respect to the other two decisions.

21 The Board’s summons for leave to appeal and the appeal were heard concurrently. AGL consented to the granting of leave to appeal, it becoming clear during the course of argument that the issues raised by the parties justified such a grant.

The background facts

22 The second opponent was at the relevant time the owner and operator of the Wilton to Horsley Park natural gas pipeline (the pipeline). It acquired the pipeline from the first opponent in 1985. As is already apparent it is convenient to refer to the opponents as AGL.

23 On 20 March 1968 the Appin Mine Subsidence District was proclaimed pursuant to s 3 of the Mine Subsidence Act 1928 (the 1928 Act). The Board had been originally constituted under s 7 of that Act and, in effect, reconstituted under s 5 of the 1961 Act which repealed the 1928 Act.

24 The pipeline was constructed by AGL in or about 1975 and passed through the Appin Mine Subsidence District within which were located the Appin and West Cliff Collieries.

25 From May 1998 to April 2003 coal was extracted from certain longwalls in the Appin Colliery which resulted in subsidence occurring in the vicinity of the pipeline. From 15 May 2003 coal was also extracted from certain other longwalls in the Appin Colliery which caused further subsidence in the vicinity of the pipeline from September 2003 to July 2004.

26 In July 2003 coal was extracted from certain longwalls in the West Cliff Colliery which also caused subsidence from September 2003 to April 2004 in the vicinity of the pipeline. From October 2003 to February 2004 AGL undertook preventative and mitigatory works to prevent physical damage to the pipeline as a result of those subsidences. It alleged that up until 30 June 2004, it had expended an amount of $2,392,229.29 on such works.

27 By letter dated 28 September 2004 AGL applied for compensation under ss 12(1)(a) and (b) and 12A(1)(b) of the 1961 Act in the amount referred to (the compensation claim). By letter dated 14 October 2005 the Board refused that claim on three grounds to which I shall refer below. On 10 February 2006 AGL filed an application in Class 3 of the LEC’s jurisdiction appealing against the Board’s decisions “as to non-payment from the Fund pursuant to [AGL’s] claim for $2,392,229.29” and to refuse to grant AGL a certificate under s 15B(3A) of the 1961 Act for which it had applied on 23 April 2003 (see [17] below).

The relevant statutory provisions

28 In order to appreciate the basis upon which the compensation claim was made on the one hand and the grounds upon which it was rejected by the Board on the other, it is convenient to set out the relevant statutory provisions of the 1961 Act which provide the necessary statutory context or framework in which to consider the legal issues which were debated both before the primary judge and on the appeal.

29 Section 10(1) of the 1961 Act constituted the Fund. Pursuant to s 10(3) there was relevantly to be paid out of the Fund

“(a) all amounts payable under this Act in respect of damage caused by subsidence or payable under s 12A”

30 Claims for payment from the Fund in respect of damage caused by subsidence or arising out of the taking of preventative or mitigating measures where subsidence had occurred could be made and were payable under s 12 and 12A of the 1961 Act. In setting out s 12 I shall emphasise those provisions upon which AGL placed particular reliance to support the width of the appeal jurisdiction of the LEC for which it contends.

“ 12. Claims for damage arising out 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,
(c) …
(d) …
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 .
(2) (a) The owner of any improvement … 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 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, an officer of the Board or some other officer in the Public Service acting for 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),(4) (Repealed)
(5) …
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) …
(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 anticipated would otherwise arise, from a subsidence that has taken place, other than a subsidence due to operations carried on by the owner.”

31 Claims for compensation under ss 12 and 12A were, however, subject to the provisions of s 15(5)(b). Section 15(1) empowered the Governor by proclamation published in the Gazette to proclaim any area to be a mine subsidence district. Section 15(2A) provided for the making of an application to the Board for approval to alter or erect improvements within such a district. Section 15(3) empowered the Board to grant approval either subject to conditions, unconditionally or to refuse its approval. Section 15(7) provided that a person contravened that subsection if that person, relevantly, erected any improvement within a mine subsidence district without the Board’s approval or not in conformity with any such approval. Such a contravention constituted an offence.

32 In the foregoing context, s 15(5)(b) provided as follows:

“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.” (Emphasis added)

33 An issue arose between AGL and the Board as to whether, when the pipeline was constructed in or about 1975, the Board had approved its construction pursuant to s 15 of the 1961 Act. Given the provisions of s 15(5)(b) and the fact that there was a dispute between the parties as to whether the pipeline had been erected in contravention of s 15, that is, without the Board’s approval, on 23 April 2003 AGL applied to the Board pursuant to s 15B(1) and (2) of the 1961 Act for the issue of a certificate of compliance under s 15B(3A) in relation to the pipeline.

34 Two types of certificate coud be applied for under s 15B. They are referred to in the following subsections:

“(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.”

35 Section 15B(4) provided that the production of a certificate granted under the section was deemed for all purposes to be conclusive evidence that the requirements of the 1961 Act relating to the relevant improvement had been complied with up to the date of the certificate. Subsection (5) provided as follows:

“(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.”

36 Neither s 15B nor any of the following provisions of the 1961 Act expressly provided for any form of appeal to the LEC against the refusal by the Board to issue a certificate under either under s 15B(3) or 3(A).

37 On 29 July 2005 the Board determined to refuse AGL’s application for a certificate under s 15B(3A) on the basis that it was not satisfied under s 15B(3A)(b) that it was appropriate to issue such a certificate having regard to the following circumstances:

“(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 subjection in s 15(5)(b) were inserted in the Act in 1989.”

The history of appeal rights under the 1961 Act

38 The 1961 Act as originally enacted contained s 12 but not s 12A which was inserted by the Mine Subsidence Compensation (Amendment) Act 1969 (the 1969 Act). However, s 12(3) and (4) provided certain appeal rights. They were in the following terms:

“(3) The Board’s decision as to whether or not damage has arisen by subsidence due to the extraction of coal or shale shall be final.
(4) (a) When the owner of an improvement is dissatisfied with the decision of the Board respecting the amount of any such payment, he may within the time prescribed appeal therefrom to the Land and Valuation Court in the manner prescribed by the Rules of that Court..
(b) That Court may make such determination as shall appear just and that the determination of that Court shall be given effect.”

39 Section 12A was, as I have indicated, inserted by the 1969 Act. Section 12A(3) relevantly provided that the provisions of s 12(4) should apply, mutatis mutandis, to and in respect of claims for payments made under s 12A in the same manner as they applied to and in respect of payments under s 12. However, s 12A(4) provided that with respect to a claim for payment of an amount under s 12A(1)(b), the Board’s decision as to whether damage could reasonably have been, or be, anticipated shall be final. That provision was consistent with s 12(3).

40 Upon the creation of the LEC by the Land & Environment Court Act 1979 (the Court Act), the Miscellaneous Acts (Planning) Repeal & Amendment Act 1979 amended s 12(4)(a) of the 1961 Act by omitting therefrom the words “Land and Valuation Court” and substituting “Land and Environment Court”.

41 In 1982 s 12A(3) was amended to provide as follows:

“The provisions of section 12(2)(b), (4) and (5) shall, mutatis mutandis, apply to and in respect of claims and payments under this section in the same manner as they apply to and in respect of notifications and payments under section 12.”

42 The foregoing constituted the appeal provisions under the 1961 Act to the LEC until the enactment of the Mine Subsidence Compensation (Amendment) Act 1989 (the 1989 Act). That Act repealed ss 12(3) and (4), 12A(4) and deleted from s 12A(3) the reference to s 12(4). In other words, it deleted the previous appeal provisions. It substituted for those provisions a new s 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
(b) as to the amount of the payment from the Fund.”

43 The most obvious difference between the appeal provisions before and after the 1989 Act was that whereas prior to that Act the Board’s decision as to whether or not damage had arisen by subsidence (s 12(3)) or its decision as to whether damage could reasonably have been, or be, anticipated (s 12A(4)), was final, s 12B(a) now permitted an appeal against the Board’s decision upon each of those issues.

44 It will also be apparent that prior to 1989, where an owner of an improvement was dissatisfied with the Board’s decision under s 12(2)(b) in respect of the amount of the payment, if any, to be allowed in respect of the damage which was the subject of the notification referred to in s 12(2)(a), an appeal from that decision lay to the LEC.

45 In other words, prior to the 1989 Act there was an appeal to the LEC “respecting the amount of any such payment”, this being a reference to the Board’s decision under s 12(2)(b) as to the “payment, if any, to be allowed in respect of the damage” arising from subsidence within the meaning of s 12(1)(a) or in respect of the amount to meet the proper and necessary expense incurred in preventing or mitigating damage to improvements claimed pursuant to s 12A(1)(b). Of particular relevance to AGL’s notice of contention is whether the change in wording between the pre-1989 s 12(4)(a) and the post-1989 s 12B(b) has widened the jurisdiction of the LEC to include an appeal against a decision of the Board to reject AGL’s compensation claim on grounds which extend beyond the quantum or merits of that claim. In this respect, there would seem to be little doubt that where a claim for payment from the Fund in respect of damage to an improvement from subsidence due to the extraction of coal was rejected on non-merit grounds, then no appeal lay under the pre-1989 s 12(4)(a).

46 A critical issue in the appeal, therefore, was whether the change of wording in s 12B(b) permitted such an appeal. AGL submitted that that provision now extended to an appeal against the refusal of the Board to allow payment in respect of any such damage on grounds which were not merit-based and, therefore, unrelated to quantum.

The Board’s “decisions” against which AGL sought to appeal

47 I have already referred in [37] above to the Board’s refusal on 29 July 2005 to issue a certificate to AGL under to s 15B(3A) of the 1961 Act including the grounds or reasons provided by the Board to support that decision. In par 66 of its Amended Points of Claim filed in the LEC, AGL alleged that the compensation claim was based on the following grounds:

“(a) From May 1998, the Pipeline suffered damage in the form of increased stress such that the regulatory stress limits of the Pipeline required operating pressure to be lowered, as a result of the subsidence and other ground movements caused by the mining of longwall panels 404 to 406. Further amounts were spent by the Second Applicant to meet the proper and necessary expenses of immediate and complicated preventative/mitigatory works to make good the Pipeline.
(b) The Second Applicant reasonably anticipated (and continues to anticipate) that damage to the Pipeline, in the form of substantial physical damage and lowered operating pressures, will arise as a result of the prior and future predicted subsidence and ground movements caused by the ongoing mining activity of the Miner, if not otherwise prevented by preventative/mitigatory works.”

48 In par 67 AGL pleaded that the Board refused the compensation claim by letter dated 13 December 2005 “and previous correspondence”. In fact that letter merely restated the resolution of the Board to not change its “position”, as stated in its letters of 29 July 2005 (see [37] above) and 13 October 2005 (see [58] below).

49 Pars 67A and 67B of the Amended Points of Claim then relevantly alleged:

“67A. The decision conveyed by the [Board’s] letter of 13 December 2005 … was a decision of the [Board] as to the amount of payment from the … Fund in relation to [AGL’s] claim for compensation pursuant to sections 12 and 12A of the [1961 Act].
67B. Further or in the alternative, the decision conveyed by the [Board’s] letter of 29 July 2005 … was a decision of the [Board] as to the amount of payment from the Fund in relation to [AGL’s] claim for compensation pursuant to sections 12 and 12A of the [1961 Act].”

50 In par 69 of its Amended Points of Claim, AGL asserted that it appealed to the LEC pursuant to s 12B of the 1961 Act from the decision of the Board to refuse the compensation claim on the following grounds:

“(a) There was no valid basis for the [Board] to refuse to issue [AGL] a Section 15B Certificate.

(b) The [Board] should have issued [AGL] with a Section 15B Certificate either by reason of the fact that the Pipeline had been constructed with the approval of the [Board] or, alternatively, pursuant to s 15B(3A) of the [1961 Act];

(c) The Pipeline has suffered damage arising from subsidence within the meaning of s 12(1)(a) of the [1961 Act].

(d) The amount claimed in the [compensation claim] is proper and necessary expense incurred as a result of such damage.

(e) In the alternative, the amount claimed is a proper and necessary expense incurred in preventing or mitigating damage to the Pipeline which [AGL] could reasonably anticipate would otherwise have arisen from subsidence that had taken place within the meaning of s 12A(1)(b) of the [1961 Act].”

51 Although ground (a) above refers to a “section 15B Certificate” without differentiating between a s 15B(3) certificate and a s 15B(3A) certificate (as to which see [34] above), ground (b) does so differentiate. Although AGL alleged in its Amended Points of Claim that the pipeline was constructed, and commenced and continued to operate, with the approval of the Board (see par 39), its particulars make clear that that approval was to be inferred from the facts, matters and circumstances then alleged.

52 As noted in [31] above, s 15(2A) of the 1961 Act provides for the making of an application for approval to erect improvements within a mine subsidence district and s 15(3) empowers the Board to grant its approval either unconditionally, conditionally or to refuse it. There was no suggestion by AGL in its Amended Points of Claim that it had ever made an application for approval of the pipeline by the Board pursuant to s 15(2A).

53 Further, the parties’ correspondence in evidence before the primary judge proceeded on the express basis that no such application had been made although AGL asserted that the acknowledged absence of any evidence of the grant of an approval for the construction of the pipeline under s 15(3) was to be assumed only because of the lack of any records of either itself or the Board to support any assertion that such an approval had been either sought or granted. In any event, there may be a real question as to whether under s 15(3) there can be an inferred approval from the Board as alleged by AGL in par 39 of its Amended Points of Claim as distinct from an express grant of approval made pursuant to an application made under s 15(2A). This was not an issue canvassed either before the primary judge or on the appeal.

54 The point of the foregoing remarks is that a s 15B(3) certificate is applicable only where the Board has granted an approval under s 15(3). Where it has not but the relevant improvement would have met the requirements of s 15B(3) had the Board’s approval been obtained, then the relevant certificate is one under s 15B(3A). That was the only type of certificate applied for by AGL in its letter to the Board of 23 April 2003 (see [33] above). There was nothing in the subsequent correspondence between AGL and the Board which was in evidence that suggested to the contrary.

55 It is no doubt for these reasons that AGL’s purported appeal under s 12B of the 1961 Act and the conduct of the proceedings challenging jurisdiction both before the primary judge and this Court proceeded on the basis, notwithstanding grounds (a) and (b) of par 69 of AGL’s Amended Points of Claim, that the relevant issue for determination was whether s 12B extended to an appeal against the decision of the Board to refuse to grant AGL a certificate under s 15B(3A).

56 There was therefore no issue either before the LEC or this Court as to whether s 12B extended to a decision of the Board to refuse the compensation claim on the ground that it had in fact granted approval to the erection and or construction of the pipeline pursuant to s 15(3) of the 1961 Act. In other words, the case was not conducted on the basis that AGL was purporting to appeal pursuant to s 12B against any such decision. I return, therefore, to the decisions of the Board which were said to be amenable to an appeal to the LEC.

57 In par 68 of its Amended Points of Claim, AGL purported to summarily set out the grounds for the Board’s refusal of the compensation claim as stated in its letter of 14 October 2005 in the following terms:

“(a) Given the Respondent’s decision to refuse to issue a Section 15B Certificate, it could not entertain claims for compensation by reason of s 15(5)(b) of the MSC Act .
(b) The compensation provisions in ss.12 and 12A of the MSC Act ‘apply only in respect of subsidence that has taken place’.
(c) The Respondent did not cause the Second Applicant to carry out works with respect to the Pipeline to prevent or mitigate damage that would otherwise be caused by subsidence, within the meaning of s 13A of the MSC Act. ”

58 The accuracy of this summary of that letter was challenged insofar as it asserted that sub-paragraphs (b) and (c) constituted grounds for the Board’s decision to refuse the compensation claim. It is therefore necessary to set out the two relevant paragraphs of the letter (and to which I shall refer below as the first paragraph and the second paragraph).

“ AGL’s application for payment
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.” (Emphasis added)

59 There can be no doubt that the Board rejected AGL’s compensation claim under ss 12(1) and 12A(1)(b) of the 1961 Act upon the ground that, as it had refused to issue a certificate under s 15B(3A), it was prohibited from entertaining that claim by reason of the provisions of s 15(5)(b). Accordingly, that decision to reject the claim was not merit-based.

60 AGL contended before the primary judge that the second paragraph constituted a decision by the Board within the meaning of s 12B to refuse AGL’s compensation claim upon the ground that that claim was, at least in part, a claim under s 12A(1)(b) for an amount to meet the proper and necessary expense incurred or proposed to be incurred by AGL in preventing or mitigating damage to the pipeline arising from anticipated subsidence as distinct from subsidence that had already taken place. In this respect, par 66(b) of AGL’s Amended Points of Claim alleged that it reasonably anticipated that damage to the pipeline would arise as a result not only of prior subsidence but also of “future predicted” subsidence.

61 On the other hand the Board submitted that its expressed opinion as to the validity of any claim for compensation by AGL based on “anticipated subsidence” as distinct from “subsidence that had already taken place”, was not a decision in respect of which an appeal lay to the Court pursuant to s 12B(a), as being a decision as to whether damage could reasonably have been anticipated within the meaning of that provision.

62 AGL also contended that s 12B(b) extended to the Board’s decision to refuse to issue AGL with a certificate under s 15B(3A) upon the basis that that refusal resulted not only in the Board not entertaining the compensation claim but also in not making any payment from the Fund with respect to that claim so that its “decision” was that the amount of the payment to be made from the Fund in respect of the compensation claim was nil.

63 In support of this contention, AGL submitted that the prohibition in s 15(5)(b) extended in terms not only to the entertainment of the compensation claim but also to the making of a payment from the Fund in respect of that claim. Although in the first paragraph, the only reason expressed by the Board in rejecting the compensation claim was that it could not be entertained by reason of s 15(5)(b), it was submitted that the Board could not, as it were, stifle AGL’s right of appeal under s 12B(b) by confining its reasons to the prohibition against entertainment of a claim as mandated by s 15(5)(b) where that prohibition also extended to the making of a payment under the 1961 Act in respect of that claim.

The submissions made to the primary judge

64 The primary judge (in [10]) considered and the parties accepted for the purposes of the appeal that the three “decisions” of the Board in respect of each of which it was contended attracted the LEC’s jurisdiction under s 12B were as follows:

“(a) a decision to refuse to issue AGL with a s 15B(3A) certificate because to do so would remove the bar in s 15(5)(b) to entertainment and payment of AGL’s compensation claim;
(b) a decision to refuse to entertain AGL’s compensation claim under ss 12 and 12A because AGL did not have a s 15B(3A) certificate as required by s 15(5)(b);
(c) a decision that ss 12 and 12A do not provide for AGL’s compensation claim insofar as it related to anticipated subsidence. The Board submits that this was not a decision and was not put forward as a reason for refusing to entertain AGL’s compensation claim, and says it was only an expression of the Board’s view.”

65 As I have indicated, AGL submitted that the LEC’s jurisdiction under s 12B was to be construed liberally and amply and that the introductory words to limbs (a) and (b) of “as to” were extremely wide, being equivalent to the words “with respect to” which had been described by the High Court as words of extremely wide import: Bank of New South Wales v The Commonwealth (1948) 76 CLR 1 at 186; Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355 at 387 [87].

66 AGL therefore submitted that the words in s 12B(b) – “as to the amount of the payment from the Fund” – extended to the Board’s refusal to issue a certificate under s 15B(3A), the issue of which was a condition precedent to the power of the Board to entertain the compensation claim and to make a payment from the Fund with respect thereto. Accordingly, as the refusal to issue the certificate was so intimately bound up with the application for the payment of compensation from the Fund in that the latter was dependant upon the former, the Board’s refusal to issue the certificate thus resulted, in effect, in a decision to make a nil payment in respect of the compensation claim. As a result the Board’s decision was one “as to” the amount of the payment from the Fund in respect of that claim within the meaning of s 12B(b).

67 It was further submitted that the Board’s decision in the first paragraph that the compensation claim could not be entertained by reason of s 15(5)(b) of the 1961 Act was, in substance and effect, also a decision that no payment should be made in respect of that claim. The provision equated or linked non-entertainment of the claim with its non-payment. A similar equation or linking occurred in those parts of ss 12(1) and (1A) set out in [30] above which I have emphasised. That no payment should be made was, it was submitted, a decision “as to the amount of the payment from the Fund” within the meaning of s 12B(b).

68 Finally, AGL submitted that the Board’s decision in the second paragraph that an “anticipated subsidence” claim could not be made under ss 12 or 12A fell within s 12B(a) as being a decision as to whether damage could reasonably have been anticipated within the meaning of s 12A(1)(b). The decision so communicated was, therefore, two-fold: there would be no payment of the compensation claim first, because of the non-issue of a certificate under s 15B(3A) and, second, because the claim was in respect of damage from anticipated subsidence as distinct from subsidence that had taken place which was not damage in respect of which a claim for compensation could be made under s 12A(1)(b).

69 The Board submitted that the decision communicated by its letter of 29 July 2005 to refuse AGL’s application for a certificate under s 15B(3A) was not a decision in respect of the compensation claim. It contended that an appeal under s 12B only lay in respect of a decision concerning any such claim provided the grounds of the decision related to whether damage had arisen from subsidence or could reasonably have been anticipated as doing so or as to the amount of the payment, if any, which the Board had determined should be made from the Fund in respect of the claim.

70 It was thus submitted that s 12B(a) only permitted appellate review of the Board’s decision on questions of causation, that is, whether the damage alleged had arisen from subsidence or whether it could reasonably have been anticipated as arising from subsidence that had taken place. Similarly, s 12B(b) was only concerned with quantum such as whether the amount claimed under s 12A(1)(b) was a “proper and necessary expense”. In particular, it was submitted that neither limb of s 12B extended to a complaint about the refusal to issue a certificate under s 15B(3A) whose only link to a compensation claim was that without the issue of such a certificate, such a claim could not be entertained: s 15(5)(b).

71 Finally, the Board submitted that the second paragraph did not constitute a “decision” of the Board in respect of AGL’s claim for compensation within the meaning of the chapeau of s 12B but was only an expression of the Board’s opinion with respect to what it perceived to be a further problem as to the legal basis of AGL’s compensation claim as alleged.

The findings of the primary judge

72 The primary judge accepted first (at [46]), that it was inappropriate to read provisions conferring jurisdiction upon a court by making implications or imposing limitations which were not found in the express words of the statute; second (at [47]), that a grant of jurisdiction to a court of superior record should be construed in accordance with ordinary principles and that the words used should be given their full meaning unless there was something to indicate to the contrary; and third (at [48]), that given that the power conferred upon the LEC must be exercised judicially in accordance with legal principle, the most liberal construction should be accorded to the grant of jurisdiction by s 12B.

73 In this last respect, his Honour referred to the statement of Kirby J in Re JJT; Ex parte Victoria Legal Aid (1998) 195 CLR 184 at 201 to the effect that a grant of power to a court (in that case the Family Court) to make orders as to costs would not, in the absence of a legislative indication to the contrary, be construed narrowly. This was because it was implied from the character of the donee of the power that it would be exercised judicially and in accordance with established legal principles. Further, because the recipient of the power was the Family Court of Australia which was a superior Federal court of record, it would be contrary to principle for the power to be given anything other than the most liberal and ample construction.

74 However, Kirby J also noted that it was legitimate in construing the power to have regard to the course of any amendments which might help to explain the legislative purpose that lay behind the provision being construed. Accordingly, the history of the appellate provisions of the 1961 Act with respect to claims for compensation are of some significance. Furthermore, principle required that the provision being construed only be given the most liberal and ample a construction as its terms and context permitted.

75 The primary judge noted that the words “as to” which introduced limbs (a) and (b) to s 12B connoted a broad or wide nexus with the relevant subject matter. Thus in Re JJT Gaudron J (at 189[2]) noted that the Family Court’s power under the Family Court Act 1975 was not simply a power to make an order “for costs” but “as to” costs which was a broader power. In particular, it was broader than a bare power “to award costs”.

76 In the same case, Hayne J (at 219 [92]) noted that the statutory provision to make orders “as to” costs might well enable a broad range of orders to be made. However, the subject matter of those orders must be “costs”: a power to make orders “as to” costs did not enable the court to make orders dealing with something other than costs.

77 The primary judge then turned to the three decisions in respect of each of which AGL contended were amenable to an appeal under s 12B.

The first decision

78 The first decision was the refusal to issue AGL with a s 15B(3A) certificate for the reasons set out in the letter of 29 July 2005. Upon the assumption that AGL had no approval from the Board to erect the pipeline, then it was in contravention of s 15(7) of the 1961 Act and as a result no claim for compensation could be “entertained or payment made under the 1961 Act in respect of such damage” unless the Board issued such a certificate in respect of the pipeline. In other words, the issue of a s 15B(3A) certificate would remove the bar or condition precedent to the entertainment or payment by the Board of the compensation claim under ss 12 and 12A.

79 His Honour stated the question to be determined in the following terms (at [69]):

“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 ’.”

80 The primary judge determined that the decision did not fall within that limb for two reasons. The first (at [71]) was that an application for a certificate under s 15B(3A) was not a claim for compensation under ss 12 or 12A although it may have been a precursor to the making of such a claim. In this context his Honour considered that there were three classes of decisions which the Board was empowered to make under the 1961 Act.

81 The first was a decision with respect to a claim for compensation under ss 12 or 12A. Such a decision related to the merits of the claim. The second was a decision with respect to an application to erect improvements made under s 15. The third was a decision whether to issue a certificate under s 15B(3) or (3A). His Honour considered (at [71]) that s 12B was only concerned with the first class of decisions. It contemplated that the Board had decided a s 12 or 12A claim on its merits and permitted an appeal from that decision provided the issue raised by the decision fell within limbs (a) or (b). The former permitted a merits appeal as to causation and reasonable anticipation which were factual elements of a claim required to be established under ss 12 and 12A. The latter permitted 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) resulted in the merits of a compensation claim not being considered at all.

82 The second reason advanced by his Honour (at [72]) in rejecting AGL’s submission was that the refusal of the certificate on which AGL relied did not convert that refusal into a decision “as to the amount of the payment from the Fund” within the meaning of s 12B(b). That limb, his Honour considered, included a decision on the merits not to pay any amount in respect of a s 12 or 12A claim as well as a decision to pay such a claim in a specified amount. In other words, limb (b) required an amount (which could be nil) to be allowed by the Board after the requirements of causation and reasonable anticipation referred to in limb (a) had been satisfied.

The second decision

83 The second decision was the Board’s refusal to entertain AGL’s compensation claim because it did not have a s 15B (3A) certificate. AGL had submitted that the non-entertainment of the claim and the non-payment thereof by the Board were both referred to in s 15(5)(b) and, as they were equated or linked, then the decision of the Board not to entertain the compensation claim was one “as to the amount of the payment from the Fund” within s 12B(b).

84 His Honour then asked himself the following question (at [76]):

“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 the meaning of s 12B(b)?”

He answered that question in the negative upon the basis that s 12B(b) was confined to a decision on the merits as to whether a payment should be made or not and, if so, as to how much. This would be consistent with the terms of s 12(2)(b) which applied not only to a claim under s 12 but also to one under s 12A [see s 12A(3)] and which speaks of a decision of the Board “ as to the payment, if any, to be allowed in respect of the [alleged] damage ” the subject of the claim.

85 His Honour summarised his reasons with respect to this decision in the following terms (at [77]):

“However, in my view, the words ‘ the amount of the payment ’ in s 12B(b) referred 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, and on the premise, that damage had 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.”

86 Accordingly, his Honour held that s 12B was confined to a merit appeal to the LEC whereas if AGL wished to challenge the Board’s decisions based on the refusal of a s 15B(3A) certificate, then the relevant relief must be sought in the Supreme Court in an application for judicial review.

The third decision

87 The primary judge then turned to the letter of 14 October 2005 in relation to what he referred to as AGL’s claim based on anticipated subsidence. After setting out the second paragraph, he determined (at [81]) that it:

“… 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 ’. “

88 His Honour then considered whether the second paragraph constituted a “decision” within the meaning of s 12B. After referring to various authorities on the meaning of that word including what Mason CJ said in Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321 at 335, he concluded (at [84]) that although there was a difference between a “decision” and a “view”, in the present case the view of the Board was one on a question of entitlement to recover under ss 12 and 12A. It did not strain ordinary language to say that, in giving its view, the Board decided that question. Form should not trump substance. Accordingly, the Board’s “view” constituted a “decision” within the meaning of s 12B.

89 That being so, it fell within limb (a) of s 12B so that an appeal lay to the LEC against the Board’s “decision” that a claim for expenses under s 12A(1)(b) could not arise in respect of anticipated subsidence as distinct from subsidence that has taken place.

The submissions on the appeal and the Notice of Contention and their resolution

90 It is convenient to deal first with AGL’s Notice of Contention. It submitted that the Board’s decision to refuse to issue a certificate under s 15B(3A) (as conveyed by the letter of 29 July 2005) and its decision not to entertain the compensation claim because it did not have such a certificate (as conveyed by the letter of 14 October 2005) were each a decision of the Board “as to the amount of the payment from the Fund” within the meaning of s 12B(b). As was the case before the primary judge, much reliance was placed upon the width of the words “as to”.

91 In essence, AGL advanced four propositions:

(a) In September 2004 AGL made its compensation claim under ss 12(1)(a) and 12A(1)(b) of the 1961 Act so that it was a person claiming compensation under those provisions within the meaning of the chapeau of s 12B;

(b) That claim was rejected by the Board in the first paragraph upon the basis that it could not be entertained by reason of the provisions of s 15(5)(b) as it had refused to issue AGL with a certificate under s 15B(3A);

(c) Section 15(5)(b) not only prohibited the entertainment of a claim but also the making of a payment under the 1961 Act; the expression “ no claim shall be entertained or payment made under this Act ” was also to be found in that part of s 12(1) which I have emphasised in [30] above. A similar but not identical phrase was to be found in s 12(1A) in the portion of that subparagraph which has been emphasised.

(d) The effect of each of the Board’s decisions to refuse the s 15B(3A) certificate and not to entertain the compensation claim because AGL’s application for such a certificate had been refused, was that no amount would be paid from the Fund to AGL in response to its claim for compensation under ss 12 and 12A;

(e) Accordingly, each of those decisions resulted in a nil amount of compensation and, accordingly, each was a decision “ as to the amount of the payment from the Fund ” in respect of the compensation claim and was, accordingly, appellable pursuant to s 12B(b).

92 Reliance was placed upon the decision in Commissioner of Taxation v Ryan (1998) 82 FCR 345 at 365. It was there held by Merkel J that there was nothing in the definition of “assessment” in s 6(1) of the Income Tax Assessment Act 1936 (Cth), which was “the ascertainment of the amount of taxable income …”, that required a conclusion that either “a positive amount of tax must be assessed under an assessment” or “an assessment of an amount of taxable income upon which no tax is payable is not capable of being such an assessment”. AGL therefore submitted that just as there could be a nil assessment made under the Income Tax Assessment Act, so also there could be a decision to award a nil amount in respect of a compensation claim under the 1961 Act so that the subject decisions of the Board constituted a determination that the amount of the payment from the Fund to which AGL was entitled was nil.

93 AGL then submitted that there were six considerations that supported the above propositions. They were:

(a) The words “ as to ” which introduced s 12B(b) were very broad. Reliance was place upon the decision of the High Court in Re JJT to which I have already referred.

(b) The language of a provision such as s 12B vesting the LEC with jurisdiction should be construed liberally as the primary judge had concluded at [46]-[48] of his judgment.

(c) The first paragraph of the Minister’s Second Reading Speech extracted by his Honour at [15] of his judgment referred to s 15B as protecting the community, subject to certificates issued by the Board, from claims for compensation in respect of damage to improvements which had been erected without, or contrary to, the Board’s approval. It was submitted that the Minister was in effect saying that there would be no payment of compensation from the Fund absent certification under s 15B. Accordingly, a decision refusing a s 15B(3A) certificate was a decision that there would be no amount paid to the claimant from the Fund.

(d) The opening words of s 15(5)(b) not only prohibited the entertainment of a claim for compensation in the circumstances there postulated, but also the making of a payment under the 1961 Act. The Board could not frustrate an appeal under s 12B(b) by confining the ground of its refusal of a compensation claim to its lack of power to entertain the claim where the subsection equally prohibited the making of a payment from the Fund with respect to that claim. In other words, a decision of the Board refusing a claim for compensation upon the ground that it could not entertain that claim by reason of s 15(5)(b) was also a decision that it was prohibited from making a payment under the 1961 Act with respect to that claim. It was therefore a decision “ as to the amount of the payment from the Fund ” which was assessed at nil.

(e) The approach of the primary judge was to place an unjustifiable gloss upon the provisions of s 12B when he held (at [71]) that the decisions of the Board in respect of which an appeal lay under that provision, was one on the merits of the claim in terms of first, causation and, second, quantum.

(f) Finally, there was no rational reason to bifurcate the remedies available to a person who had made a claim for compensation under ss 12 or 12A by on the one hand permitting an appeal to the LEC where the Board’s decision was as to the merits of the claim in terms of causation and quantum and, on the other, denying such an appeal where the decision of the Board was not merit-based thus requiring the aggrieved claimant to seek judicial review, with all its limitations, in the Supreme Court.

94 In my opinion AGL’s submissions should be rejected for the following reasons:

(a) The words “ as to ” which introduce the substantive part of each limb of s 12B must be read in their context. In my view they are equivalent to “ about ”. AGL’s submission may have had more force had limb (b) read “ as to payment from the Fund ”. The reference to “ the amount of the payment from the Fund ” in my opinion is reflective of a decision of the Board that determines the quantum of the compensation claim to be paid from the Fund.

(b) In other words, a decision of the Board “ as to the amount of the payment from the Fund ” contemplates the Board having made a decision upon the merits as to the amount which should be paid from the Fund having regard to the determination of that amount in accordance with the provisions of s12(2)(b), which is applicable to a claim both under s 12(1) as well as s 12A(1): see s 12A(3). Section 12(2)(a) requires a claimant to notify the Board in a form approved by it and within a prescribed time of the details of the damage to the relevant improvement by subsidence as well as the amount claimed from the Fund. Such notification is to be treated as a “ claim for payment from the Fund ” under s 12(1). Section 12(2)(b) then requires that that notification be investigated and the subject of a report to a meeting of the Board for

“a decision as to the payment, if any, to be allowed in respect of the damage to which the notification relates.”


(c) Accordingly, when s 12B(b) is read in the context of a decision of the Board pursuant to s 12(2)(b) with respect of a claim for compensation under ss 12 or 12A, it is apparent that its decision “ as to the amount of the payment from the Fund ” in respect of which an appeal lies to the LEC must bear reference to the decision referred to in s 12(2)(b) “ as to the payment [from the Fund], if any, to be allowed in respect of ” the relevant claim, be it damage to an improvement arising from subsidence pursuant to s 12(1)(a) or an amount to meet the proper and necessary expenses incurred in the circumstances referred to in s 12A(1)(b). Of course, the amount allowed may be nil but that is because the Board has determined as a matter of merit that no payment is to be allowed in respect of the damage claimed on the one hand or the expense incurred in preventing or mitigating damage on the other.

(d) The foregoing construction of s 12B(b) is consistent with its predecessor, the now repealed s 12(4)(a). The reference in that provision to a decision of the Board “ respecting the amount of any such payment ” was clearly a reference back to its decision as to the payment, if any, to be allowed pursuant to s 12(2)(b). As the 1989 Act repealed ss 12(3) and 12A(4) by permitting an appeal against the decision of the Board as to whether damage had arisen from subsidence or could reasonably have been anticipated, it was logical that there should be a self-contained provision with respect to appeals to the LEC to give effect to the repeal of those subsections and which therefore necessitated a change in the wording of an appeal against the decision of the Board as to the amount of the payment, if any, from the Fund to be allowed pursuant to s 12(2)(b).

(e) Accordingly, I do not accept that the construction of s 12B adopted by the primary judge that limbs (a) and (b) were confined to a decision of the Board on the merits of each of the matters referred to in those limbs to be an unjustified gloss upon the words of the section. In this respect it is pertinent to note that the 1989 Act also amended the Court Act by inserting into s 19 a reference to appeals under s 12B of the 1961 Act and into s 20 a reference to proceedings under s 15D of that Act. The relevance of the format is that s 19 is concerned with Class 3 of the LEC’s jurisdiction relating to hearing and disposal of appeals dealing generally with matters of compensation whereas s 20 is concerned with Class 4 of its jurisdiction relating to proceedings generally for judicial review or for injunctive relief. In this respect s 15D of the 1961 Act empowers the Board to bring proceedings in the LEC for an order restraining the carrying out of work in contravention of a notice directing a person to cease carrying out work without the approval of the Board required under s 15 or which is not in conformity with any such approval. In other words, it involves questions of civil enforcement.

(f) In my opinion reliance by AGL upon the opening words of s 15(5)(b) is misplaced. The prohibition of any claim being “ entertained ” does not mean that the claim is not to be considered by the Board (before it determines that it cannot entertain it). The claim must be considered for the purpose of determining whether it can be entertained. The prohibition against entertainment refers in my view to a refusal to proceed to a consideration of the claim on its merits or, to put it another way, to refuse to accede to or accept a claim irrespective of its merits. It cannot refer, as AGL contended, to a refusal to accede to a claim to the point of approving a payment from the Fund.


(g) The same approach should be adopted with respect to the prohibition against the making of a payment under the 1961 Act in the circumstances referred to in s 15(5)(b). What is prohibited is the making of a payment under the 1961 Act unless a s 15B(3A) certificate has been issued. Any consideration of the merits of making any such payment cannot be entertained unless and until the condition precedent that requires the issue of such a certificate is satisfied.

(h) In the foregoing context, in my opinion AGL gains no comfort from the prohibition against the entertainment of a claim or the making of a payment under the 1961 Act in that part of s 12(1) which I have emphasised in [30] above. That particular provision is merely a “ run off ” provision following the repeal of the 1928 Act by the 1961 Act. But even if that were not the case, I see no reason, merely because the prohibition is contained in s 12 as distinct from s 15, to construe s 12B(b) as extending to the refusal of a claim because it cannot be entertained nor a payment made with respect to it in the circumstances postulated. In any event, the emphasised part of s 12(1) is not an absolute prohibition as it is subject to the Board’s satisfaction that any departure from or contravention of the relevant condition is such that it need not be rectified, an expression which is also to be found in s 15B(3).

(i) Accordingly, I see no justifiable basis upon which s 12B(b) should be construed to extend an appeal on the merits of the refusal of the Board to be satisfied that any departure from or contravention of the relevant conditions is such that it need not be rectified as distinct from leaving any relevant relief to the more limited grounds of challenge permitted by judicial review proceedings. The same comments apply, in my opinion, to that part of s 12(1A) which I have emphasised in [30] above. In that provision the Board has a discretion and any challenge to the exercise of that discretion should be confined to judicial review proceedings.

(j) If AGL’s submissions were accepted then it would follow that every decision of the Board, whether direct or indirect, which in some way could be related to or linked to a claim for compensation including any decision required to be made by the Board antecedent to a determination of such a claim on its merits, would be subject to a merit appeal under s 12B(b). In my view it is not possible to so construe that provision. Limb (b) is concerned with a decision of the Board as to whether there should be any payment of any amount from the Fund. It is a reference to a determination of that issue by the Board on its merits as is made plain by s 12(2)(b).

(k) Had the legislature wished to provide an uncontained right of appeal against every decision of the Board which touched or concerned a claim for compensation, it could easily have done so in simple language. Consistent with the limited appeal rights which existed prior to 1989, the legislature has, in my view, been at pains to maintain limits to appeals to the LEC against a decision of the Board to issues of causation and quantum relating to a claim for compensation under ss 12 and 12A. There is nothing in the Second Reading Speech or in that part of that speech upon which AGL relies which would justify any different conclusion. AGL’s construction of s 12B(b) seeks to give the unambiguous wording of the provision a reach which the words, in their context, simply cannot bear.

95 It follows from the foregoing that in my opinion the decisions of the Board to on the one hand refuse AGL’s application under s 15B(1) and (2) for a certificate under s 15B(3A) as well as its decision to refuse AGL’s claim for compensation in the absence of such a certificate, were not decisions which engaged any right of appeal under s 12B. Accordingly, the grounds advanced in AGL’s Notice of Contention should be rejected.

96 Finally, I turn to the third decision in respect of which his Honour concluded that a right of appeal pursuant to s 12B(a) did lie to the LEC. The issue that arises is whether the second paragraph constituted a “decision” within the meaning of the chapeau of s 12B. His Honour held that it did but, with respect, I disagree. The only decision of the Board with respect to the compensation claim was that it could not be entertained by reason of s 15(5)(b) as stated in the first paragraph. The second paragraph then purported to respond to AGL’s letter of 28 September 2005 by drawing “the following matters to your attention” including the fact that compensation in respect of expenses incurred in preventing or mitigating damage that otherwise would arise from subsidence pursuant to s 12A(1)(b) applied only in respect of subsidence that had taken place and not to damage caused by anticipated subsidence.

97 In my view the relevant contents of the second paragraph contained no more than an expression of opinion in response to an argument to the contrary asserted by AGL in its letter of 28 September 2005. It was not, and did not purport to be, an operative decision of the Board refusing the compensation claim; nor, contrary to the view of his Honour was it a further ground upon which the Board had decided to refuse that claim. The only ground for refusal relied upon by the Board was that it could not entertain the claim by reason of s 15(5)(b). Its observations upon which AGL relied as constituting a decision to which s 12B(a) applied, was no more than an expression of opinion or, to use judicial language, an obiter dictum made, as the second paragraph indicated, for the purpose of drawing AGL’s attention to the relevant provisions of s 12A(1)(b).

98 Not being an independent reason for the rejection by the Board of the compensation claim it was not, in my view, a decision in respect of which s 12B was engaged. It was an expression of a view which was in no way dispositive and, therefore, not relevantly a “decision”: cf Pegasus Leasing Ltd v Federal Commissioner of Taxation (1991) 104 ALR 442 at 447.

Conclusion

99 It follows from the foregoing that in my opinion, the primary judge erred in finding that the Board made a “decision” within the meaning of s 12B when it expressed in the second paragraph of the 14 October 2005 letter its observations as to the construction of s 12A(1)(b). Accordingly, the Board’s appeal against his Honour’s determination that AGL had a right of appeal to the LEC pursuant to s 12B(a) against that decision should be allowed. On the other hand, in my opinion his Honour was correct in rejecting AGL’s submissions that the Board’s decisions to refuse AGL’s application for a s 15B(3A) certificate engaged s 12B or that that provision entitled AGL to appeal against the Board’s decision to refuse to entertain the compensation claim by reason of s 15(5)(b).

100 I would therefore propose the following orders:

(a) Leave to appeal granted.

(b) Appeal allowed.

(c) Set aside Orders 1 and 2 made by Biscoe J on 11 August 2006 and in lieu thereof order that the preliminary question as to whether the Land and Environment Court had jurisdiction to hear and determine the Class 3 application filed by the opponents on 10 February 2006 be answered “No”.

(d) Remit the proceedings to the Land and Environment Court for the further disposition of the said application.

(e) Order that the costs of the hearing of the preliminary question before the Land and Environment Court and the costs of the summons for leave to appeal and the appeal be paid by the opponents.

101 HANDLEY AJA: In these proceedings I have had the benefit of reading the judgment of Tobias JA in draft. He has set out the history of the proceedings, the text of the relevant legislation, and the submissions of the parties and there is no need for me to repeat these matters. I agree generally with his reasons but prefer to give brief reasons of my own. The issue before this Court concerns the scope of the right of appeal to the Land and Environment Court (the Court) conferred by s 12B of the Mine Subsidence Compensation Act 1961 (the Act).

102 AGL seeks to challenge in the Court three decisions of the Board. The first was its refusal to issue a certificate under s 15B(3A). This would have permitted AGL to claim compensation for damage to its pipeline notwithstanding its failure (this is disputed) to obtain the Board’s approval for the construction of the pipeline across the Appin Mine Subsidence district (the district).

103 This failure (if it occurred) and the refusal of the certificate left AGL’s claim barred by s 15(5)(b) of the Act. This prevented any claim being “entertained or payment made” in such a case.

104 The second is the Board’s decision under s 15(5)(b) to reject a AGL’s claims under s 12(1) for compensation for damage to its pipeline and under s 12A(1)(b) for reimbursement of expenses incurred in preventing or mitigating such damage because the pipeline had been constructed without the approval of the Board, and AGL did not hold a certificate under s 15B(3A).

105 The third decision, said to be evidenced by the Board’s letter to AGL of 14 October 2005, was that its claims under ss 12 and 12A, insofar as they related to expenditure incurred in anticipation of future subsidence, were not allowable for that reason.

106 Section 12B 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.”

107 The first point that needs to be made is that the section does not, in terms, confer a general right of appeal from decisions of the Board dealing with claims against the Fund. If that had been intended it would have been very easy to say so. The second point is that if all decisions of the Board rejecting claims on the Fund are properly regarded as decisions that the amount of the payment from the Fund should be nil there was no need to include para (a).

108 For whatever reason Parliament has only granted a limited right of appeal from decisions of the Board dealing with claims against the Fund. Justiciable disputes that fall outside the scope of s 12B can only be litigated in proceedings for judicial review.

109 The section was inserted by Act No 154 of 1989, which also gave the Court jurisdiction in proceedings by the Board under s 15D to restrain the carrying out of unauthorised work within a mine subsidence district. Schedule 2 of the 1989 Act amended s 19 of the Land and Environment Court Act 1979 (the Court Act) to allocate s 12B appeals to Class 3 of the Court’s jurisdiction, and s 20 to allocate s 15D proceedings to Class 4.

110 Section 20(2) of the Court Act confers on the Court “the same civil jurisdiction as the Supreme Court would … have to hear and dispose of proceedings … (b) to review, or command the exercise of a function conferred or imposed by a planning or environmental law”. The latter expression is defined in s 20(3) by listing the relevant statutes without more. The Act is not one of those statutes. Parliament, for some reason, or perhaps by inadvertence, has not given the Court jurisdiction to judicially review decisions of the Board which fall outside s 12B.

111 This legislative scheme will inevitably generate jurisdictional disputes turning on the construction or application of s 12B read with s 16(1A) of the Court Act which confers jurisdiction on the Court in ancillary matters. While such disputes are regrettable and tend, as in this case, to generate litigation which fails to resolve the underlying dispute, this cannot justify a construction of s 12B which the text does not fairly support.

112 The right of appeal conferred by s 12B(a) is limited to two classes of decisions. Those decisions “as to whether damage has arisen from subsidence”, that is decisions under s 12(1)(a) (“damage to improvements that arises from subsidence”), and those as to whether damage “could reasonably have been anticipated” that is decisions under s 12A(1)(b) (“preventing or mitigating damage to … improvements that in the opinion of the Board the owner could reasonably have anticipated”). None of these decisions were of this character.

113 The right of appeal conferred by para (b) is limited to “a decision of the Board … as to the amount of the payment from the Fund”. In my judgment the only decisions which satisfy this language are those where the Board has had to apply its mind to the question of quantum in order to dispose of the claim.

114 Decisions of the Board rejecting claims on other grounds, such as the absence of a certificate under s 15B(3A), or a contravention of s 15(7) and (5)(b), where the Board did not have to apply its mind to the question of quantum, are not within s 12B(b). The first and second decisions of the Board are outside para (b) for this reason and the appeal to the Court from those decisions was incompetent.

115 The third so-called decision of the Board was not a decision at all. The Board’s letter of 14 October 2005, having stated that AGL’s claims “could not be entertained” because of s 15(5)(b) proceeded to draw certain matters “to the attention” of AGL, namely the application of ss 12 and 12A, on the Board’s construction of those sections, in cases where subsidence has not yet taken place.

116 This was in no sense an operative decision. It decided nothing and changed nothing. The relevant parts of the letter did no more than provide information. The decision to reject the claim on the ground that it could not be “entertained” had already been made and communicated, and what followed was no more than supposedly helpful dicta.

117 Accordingly none of the decisions fell within s 12B. There was no matter within the jurisdiction of the Court and nothing to attract its ancillary jurisdiction under s 16(1A). Where that section applies it gives the Court jurisdiction over a matter otherwise outside its jurisdiction, and within the jurisdiction of some other Court, but it does not change or enlarge that ancillary jurisdiction.

118 If s 16(1A) had given the Court jurisdiction over a challenge by AGL to a decision of the Board which was not within s 12B, that ancillary jurisdiction would have been conferred but not otherwise altered. The merits review jurisdiction of the Court under s 12B would not have extended to that other decision. The ancillary jurisdiction would have been limited to judicial review.

119 I agree with the orders proposed by Tobias JA.

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