Tahmoor Coal Pty Ltd v Visser - [2022] NSWCA 35

Court of Appeal

Supreme Court

New South Wales

Summary available

Medium Neutral Citation: Tahmoor Coal Pty Ltd v Visser [2022] NSWCA 35
Hearing dates: 11 March 2022
Date of orders: 11 March 2022
Decision date: 11 March 2022
Before: Basten JA; Gleeson JA; Payne JA
Decision:
(1)   Grant Tahmoor Coal Pty Ltd leave to appeal from the judgments given in the Land and Environment Court on 25 August 2021 and 21 October 2021.
(2)   Direct that Tahmoor Coal file within 7 days a notice of appeal, in the form of the draft notice of appeal contained in the white folder, but identifying the third respondent as the Secretary, Department of Customer Service.
(3)   Dispense with the requirements of the rules for service of the notice of appeal.
(4)   Allow the appeal and set aside orders 1 and 2 made in the Land and Environment Court on 25 August 2021 and orders 1 and 2 made by that Court on 21 October 2021.
(5)   Order that Tahmoor Coal be joined as a respondent to the proceedings brought by Jan and Yvonne Visser in the Land and Environment Court and that the Class 3 application be amended to reflect the additional party.
(6)   Order that Jan and Yvonne Visser pay the costs of Tahmoor Coal of and incidental to its application for joinder as a party.
(7)   Order that Jan and Yvonne Visser pay Tahmoor Coal’s costs in this Court.
(8)   Make no order as to the costs of the Secretary in this Court or the Land and Environment Court.
(9)   Grant the Vissers a certificate under the Suitors’ Fund Act 1951 (NSW).

Catchwords:
APPEALS – leave to appeal – interlocutory order in Land and Environment Court – refusal to join new party – strongly arguable case of error – need to identify proper parties – amount in issue sufficient to justify court proceedings
ENERGY AND RESOURCES – mining – subsidence – compensation claimed from proprietor of active mine – appeal by claimants from Secretary’s decision on review – Mine Subsidence Compensation Act 2017 (NSW), s 16
CIVIL PROCEDURE – joinder of parties – whether proprietor of active mine a “necessary party” –proprietor liable to pay compensation – whether direct affectation satisfies test of necessity – Uniform Civil Procedure Rules 2005 (NSW), rr 6.24, 6.27 – Ross v Lane Cove Council 86 NSWLR 34; [2014] NSWCA 50 applied
CIVIL PROCEDURE – appeal from administrative determination of compensation – Secretary of Department identified as decision-maker – naming of party – government department not a person –joinder of Secretary

Legislation Cited:
Civil Procedure Act 2005 (NSW), Pt 2, Div 1, s 98
Coal Mine Subsidence Compensation Act 2017 (NSW), ss 8, 11, 12, 15, 16
Land Acquisition (Just Terms Compensation) Act 1991 (NSW), Pt 3, Div 5
Land and Environment Court Act 1979 (NSW), s 19, 38, 39
Uniform Civil Procedure Rules 2005 (NSW), rr 6.24, 6.27, 42.1; Sch 1

Cases Cited:
A Goninan & Co Ltd v Gill (2001) 51 NSWLR 441

Grounds of appeal

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

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

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

Consideration

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

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

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Details

Case: [2022] NSWCA 35
Decision Date: 11 March 2022

CaseChat Overview and Summary

Tahmoor Coal Pty Ltd sought leave to appeal from interlocutory decisions of the Land and Environment Court of New South Wales concerning the joinder of parties in proceedings brought by Jan and Yvonne Visser. The Vissers claimed compensation for mine subsidence damage under the *Mine Subsidence Compensation Act 2017* (NSW), with the Secretary of the relevant department initially identified as the decision-maker. Tahmoor Coal, the proprietor of the active mine, argued it was a necessary party to the proceedings.

The primary legal issues before the Court of Appeal were whether Tahmoor Coal was a necessary party to the proceedings under the Uniform Civil Procedure Rules 2005 (NSW), specifically rules 6.24 and 6.27, and whether the Land and Environment Court erred in refusing its joinder. The court also considered the proper identification of the respondent, noting that a government department is not a legal person and that the Secretary, as the decision-maker, should have been named.

The Court of Appeal reasoned that Tahmoor Coal, as the entity liable to pay compensation for subsidence damage caused by its mining operations, was a necessary party to ensure a just and efficient determination of the Vissers' claim. Applying the principles from *Ross v Lane Cove Council*, the court found that the direct affectation of Tahmoor Coal by the proceedings satisfied the test of necessity. The court concluded that the Land and Environment Court had erred in its refusal to join Tahmoor Coal and in its identification of the respondent.

Consequently, the Court of Appeal granted Tahmoor Coal leave to appeal, allowed the appeal, and set aside the orders of the Land and Environment Court. Tahmoor Coal was ordered to be joined as a respondent, and the Vissers were ordered to pay Tahmoor Coal's costs of the joinder application and the appeal. The Vissers were also granted a certificate under the *Suitors’ Fund Act 1951* (NSW).

Orders

Orders of the court

(1) Grant Tahmoor Coal Pty Ltd leave to appeal from the judgments given in the Land and Environment Court on 25 August 2021 and 21 October 2021.

(2) Direct that Tahmoor Coal file within 7 days a notice of appeal, in the form of the draft notice of appeal contained in the white folder, but identifying the third respondent as the Secretary, Department of Customer Service.

(3) Dispense with the requirements of the rules for service of the notice of appeal.

(4) Allow the appeal and set aside orders 1 and 2 made in the Land and Environment Court on 25 August 2021 and orders 1 and 2 made by that Court on 21 October 2021.

(5) Order that Tahmoor Coal be joined as a respondent to the proceedings brought by Jan and Yvonne Visser in the Land and Environment Court and that the Class 3 application be amended to reflect the additional party.

(6) Order that Jan and Yvonne Visser pay the costs of Tahmoor Coal of and incidental to its application for joinder as a party.

(7) Order that Jan and Yvonne Visser pay Tahmoor Coal’s costs in this Court.

(8) Make no order as to the costs of the Secretary in this Court or the Land and Environment Court.

(9) Grant the Vissers a certificate under the Suitors’ Fund Act 1951 (NSW).

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

Medium Neutral Citation:	Tahmoor Coal Pty Ltd v Visser [2022] NSWCA 35
Hearing dates:	11 March 2022
Date of orders:	11 March 2022
Decision date:	11 March 2022
Before:	Basten JA; Gleeson JA; Payne JA
Decision:	(1) Grant Tahmoor Coal Pty Ltd leave to appeal from the judgments given in the Land and Environment Court on 25 August 2021 and 21 October 2021. (2) Direct that Tahmoor Coal file within 7 days a notice of appeal, in the form of the draft notice of appeal contained in the white folder, but identifying the third respondent as the Secretary, Department of Customer Service. (3) Dispense with the requirements of the rules for service of the notice of appeal. (4) Allow the appeal and set aside orders 1 and 2 made in the Land and Environment Court on 25 August 2021 and orders 1 and 2 made by that Court on 21 October 2021. (5) Order that Tahmoor Coal be joined as a respondent to the proceedings brought by Jan and Yvonne Visser in the Land and Environment Court and that the Class 3 application be amended to reflect the additional party. (6) Order that Jan and Yvonne Visser pay the costs of Tahmoor Coal of and incidental to its application for joinder as a party. (7) Order that Jan and Yvonne Visser pay Tahmoor Coal’s costs in this Court. (8) Make no order as to the costs of the Secretary in this Court or the Land and Environment Court. (9) Grant the Vissers a certificate under the Suitors’ Fund Act 1951 (NSW).
Catchwords:	APPEALS – leave to appeal – interlocutory order in Land and Environment Court – refusal to join new party – strongly arguable case of error – need to identify proper parties – amount in issue sufficient to justify court proceedings ENERGY AND RESOURCES – mining – subsidence – compensation claimed from proprietor of active mine – appeal by claimants from Secretary’s decision on review – Mine Subsidence Compensation Act 2017 (NSW), s 16 CIVIL PROCEDURE – joinder of parties – whether proprietor of active mine a “necessary party” –proprietor liable to pay compensation – whether direct affectation satisfies test of necessity – Uniform Civil Procedure Rules 2005 (NSW), rr 6.24, 6.27 – Ross v Lane Cove Council 86 NSWLR 34; [2014] NSWCA 50 applied CIVIL PROCEDURE – appeal from administrative determination of compensation – Secretary of Department identified as decision-maker – naming of party – government department not a person –joinder of Secretary
Legislation Cited:	Civil Procedure Act 2005 (NSW), Pt 2, Div 1, s 98 Coal Mine Subsidence Compensation Act 2017 (NSW), ss 8, 11, 12, 15, 16 Land Acquisition (Just Terms Compensation) Act 1991 (NSW), Pt 3, Div 5 Land and Environment Court Act 1979 (NSW), s 19, 38, 39 Uniform Civil Procedure Rules 2005 (NSW), rr 6.24, 6.27, 42.1; Sch 1
Cases Cited:	A Goninan & Co Ltd v Gill (2001) 51 NSWLR 441