New South Wales
Court of Appeal
CITATION: Mine Subsidence Board v Maria Vervoon [2008] NSWCA 280 HEARING DATE(S): 22 July 2008
JUDGMENT DATE:
31 October 2008JUDGMENT OF: Beazley JA at 1; McColl JA at 166; Nicholas J at 167 DECISION: 1. Appeal dismissed;
2. Cross-appeal allowed in part;
3. Remit the following matters to the Land and Environment Court for determination in accordance with these reasons and for the making of orders for the disposition of the application (including orders of remitter to the Board) relating to:
(a) the compensation to which the respondent is entitled as a result of damage to her property due to mine subsidence;
(b) the compensation to which the respondent is entitled in relation to rent under s 12(1)(c) of the Mine Subsidence Compensation Act 1961;
(c) costs of the hearing before Talbot J;
4. Order that the appellant (the Mine Subsidence Board) pay the respondent’s costs of the appeal and the cross-appeal.CATCHWORDS: JUDGMENT – reasons – whether trial judge failed to consider expert evidence critical to appellant’s case – whether evidence critical - PRACTICE and PROCEDURE – failure of counsel to cross-examine opposing experts on evidence said to be critical to its own case – consequences of failure at trial to treat evidence as critical - EVIDENCE – expert evidence – failure to include matters said to be critical to one party’s case in joint expert report – whether such failure indicates material not critical – failure to cross-examine on matters said to be critical – consequences of such failures - MINE SUBSIDENCE - assessment of the extent to which property was affected by mine subsidence – failure to give reasons for assessment - unreasonable apportionment of damage LEGISLATION CITED: Land and Environment Court Act 1979, s 57
Mine Subsidence Compensation Act 1961, ss 12, 13CATEGORY: Principal judgment CASES CITED: Apps v Pilet (1987) 11 NSWLR 350
Cogger v The Mine Subsidence Board (Land and Environment Court, Bignold J, 31 July 1992, unreported)
Fox v Percy [2003] HCA 22; (2003) 214 CLR 118
House v The King [1936] HCA 40; (1936) 55 CLR 499
Housing Commission (NSW) v Tatmar Pastoral Co Pty Ltd [1983] 3 NSWLR 378; (1983) 53 LGRA 325
Kiama Constructions Pty Limited v Davey (1996) 40 NSWLR 639
Maurici v Chief Commissioner of State Revenue (2001) 51 NSWLR 673
Mifsud v Campbell (1991) 21 NSWLR 725
North Broken Hill Ltd v Tumes [1999] NSWCA 309; (1999) 18 NSWCCR 412
Pettitt v Dunkley [1971] 1 NSWLR 376
State Rail Authority of New South Wales v Earthline Constructions Pty Ltd (In Liq) [1999] HCA 3; (1999) 160 ALR 588.
Thaina Town (On Goulburn) Pty Ltd v City of Sydney Council [2007] NSWCA 300; 156 LGERA 150
Waterways Authority v Fitzgibbon [2005] HCA 57; (2005) 221 ALR 402
Wiki v Atlantis Relocations [2004] NSWCA 174; (2004) 60 NSWLR 127PARTIES: Mine Subsidence Board (Appellant)
Maria Vervoon (Respondent)FILE NUMBER(S): CA 40646/07 COUNSEL:
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Details
- Case
- [2008] NSWCA 280
- Decision Date
CaseChat Overview and Summary
The Mine Subsidence Board appealed to the Court of Appeal of New South Wales against a decision of the Land and Environment Court concerning the extent of damage to Maria Vervoon's property caused by mine subsidence. Ms Vervoon also cross-appealed. The primary dispute concerned the assessment of compensation for damage to Ms Vervoon's property and for rent, with the Board arguing that the trial judge failed to adequately consider expert evidence critical to its case, while Ms Vervoon contended the assessment was unreasonable.
The central legal issues before the Court of Appeal were whether the trial judge erred in his assessment of the damage and compensation by failing to give adequate reasons for his findings, particularly in relation to expert evidence that the Board considered critical. The court also had to consider the consequences of counsel's failure at trial to cross-examine opposing experts on evidence that was later argued to be critical to the Board's case, and whether the omission of such matters from a joint expert report indicated they were not considered critical.
The Court of Appeal found that while the trial judge had considered the expert evidence, he had failed to provide sufficient reasons for his assessment of the damage and the apportionment of compensation. The court noted that the failure of the Board's counsel to cross-examine the respondent's experts on matters now asserted as critical weakened the Board's argument that this evidence was indeed critical. However, the court also acknowledged that the trial judge's reasons were insufficient to allow for a proper understanding of how the compensation was determined.
Consequently, the appeal by the Mine Subsidence Board was dismissed, but the cross-appeal by Ms Vervoon was allowed in part. The matter was remitted to the Land and Environment Court for redetermination of the compensation to which Ms Vervoon was entitled for property damage and rent, as well as the costs of the original hearing. The Mine Subsidence Board was ordered to pay Ms Vervoon's costs of the appeal and cross-appeal.
The central legal issues before the Court of Appeal were whether the trial judge erred in his assessment of the damage and compensation by failing to give adequate reasons for his findings, particularly in relation to expert evidence that the Board considered critical. The court also had to consider the consequences of counsel's failure at trial to cross-examine opposing experts on evidence that was later argued to be critical to the Board's case, and whether the omission of such matters from a joint expert report indicated they were not considered critical.
The Court of Appeal found that while the trial judge had considered the expert evidence, he had failed to provide sufficient reasons for his assessment of the damage and the apportionment of compensation. The court noted that the failure of the Board's counsel to cross-examine the respondent's experts on matters now asserted as critical weakened the Board's argument that this evidence was indeed critical. However, the court also acknowledged that the trial judge's reasons were insufficient to allow for a proper understanding of how the compensation was determined.
Consequently, the appeal by the Mine Subsidence Board was dismissed, but the cross-appeal by Ms Vervoon was allowed in part. The matter was remitted to the Land and Environment Court for redetermination of the compensation to which Ms Vervoon was entitled for property damage and rent, as well as the costs of the original hearing. The Mine Subsidence Board was ordered to pay Ms Vervoon's costs of the appeal and cross-appeal.
Orders
Orders of the court
1. Appeal dismissed; 2. Cross-appeal allowed in part; 3. Remit the following matters to the Land and Environment Court for determination in accordance with these reasons and for the making of orders for the disposition of the application (including orders of remitter to the Board) relating to: (a) the compensation to which the respondent is entitled as a result of damage to her property due to mine subsidence; (b) the compensation to which the respondent is entitled in relation to rent under s 12(1)(c) of the Mine Subsidence Compensation Act 1961; (c) costs of the hearing before Talbot J; 4. Order that the appellant (the Mine Subsidence Board) pay the respondent's costs of the appeal and the cross-appeal.
Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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