Mine Subsidence Board v Jemena Ltd and Jemena Gas Networks (NSW) Ltd

The Mine Subsidence Board appealed a decision of the primary judge in favour of Jemena Ltd and Jemena Gas Networks (NSW) Ltd. The dispute concerned whether the respondents were entitled to compensation from the Mine Subsidence Compensation Fund for expenses incurred to prevent or mitigate damage to a gas pipeline from mine subsidence. The pipeline had been erected within a mine subsidence district without the necessary approval, in contravention of the *Mine Subsidence Compensation Act 1961* (NSW).

The central legal issue before the Court of Appeal was whether the respondents' claim for expenses incurred to prevent or mitigate damage fell within the exclusion in section 15(5)(b) of the Act. This section states that "no claim shall be entertained or payment made" by the Board "in respect of damage caused by subsidence" to improvements erected without approval, unless a certificate has been issued by the Board. The respondents argued their claim was made under section 12A(1)(b) of the Act, which allows for compensation for expenses incurred to prevent or mitigate damage, and was therefore distinct from a claim for damage itself.

The Court of Appeal, comprising Beazley P, Macfarlan and Meagher JJA, reasoned that the exclusion in section 15(5)(b) was not limited to claims for damage that had already occurred, but also encompassed claims for expenses incurred to prevent or mitigate such damage. The Court held that the respondents' claim, despite being framed under section 12A(1)(b), was fundamentally a claim "in respect of damage caused by subsidence" because the expenses were incurred as a direct consequence of the apprehended damage from subsidence to an unapproved improvement. Therefore, the exclusion applied.

The appeal was dismissed, and the respondents were ordered to pay the Mine Subsidence Board's costs.