Visser v Department of Customer Service

[2021] NSWLEC 88

Land and Environment Court

New South Wales

Medium Neutral Citation:

Visser v Department of Customer Service [2021] NSWLEC 88

Hearing dates:

23 July 2021

Date of orders:

25 August 2021

Decision date:

25 August 2021

Jurisdiction:

Class 3

Before:

Pain J

Decision:

(1)   Prayer 1 of Tahmoor Coal Pty Ltd’s amended notice of motion dated 23 July 2021 is dismissed.

(2)   Prayer 2 of Tahmoor Coal Pty Ltd’s amended notice of motion dated 23 July 2021 is reserved.

(3)   Costs of Tahmoor Coal Pty Ltd’s amended notice of motion dated 23 July 2021 are reserved

Catchwords:

PROCEDURE – compensation for mine subsidence claim – application by coal mine proprietor for joinder as a party – whether ought to be joined as a party – whether necessary to be joined as a party – first time such application has been considered under Coal Mine Subsidence Compensation Act 2017

Legislation Cited:

Administrative Arrangements (Administrative Changes – Public Service Agencies) Order 2019 (NSW) cl 7

Civil Procedure Act 2005 (NSW) s 56

Coal Mine Subsidence Compensation Act 2017 (NSW) ss 3, 4, Pt 2 (ss 6, 8, 11, 12, 13, 14, 15, 16, 17, 18), Sch 1

Land and Environment Court Act 1979 (NSW) ss 34, 38, 39

Mine Subsidence Compensation Act 1961 (NSW) ss 4, 10, 11, 12, 12A, 12B

Uniform Civil Procedure Rules 2005 (NSW) rr 6.24, 6.27

Valuation of Land Act1916 (NSW) Pt 4 Div 1

Cases Cited:

AQC Dartbrook Management Pty Ltd v Minister for Planning and Public Spaces [2021] NSWCA 112

Double Bay Marina Pty Ltd v Woollahra Municipal Council (1985) 54 LGRA 313

John Alexander’s Clubs Pty Ltd v White City Tennis Club Ltd (2010) 241 CLR 1; [2010] HCA 19

News Limited v Australian Rugby Football League Limited (1996) 65 FCR 410; [1996] FCA 807

Ross v Lane CoveCouncil (2014) 86 NSWLR 34; [2014] NSWCA 50

Tenstat Pty Ltd v New South Wales Valuer-General (2002) 119 LGERA 278; [2002] NSWLEC 14

The Trust Company (Australia) Ltd v Valuer-General of New South Wales [2015] NSWLEC 169

Texts Cited:

New South Wales Legislative Council, Parliamentary Debates (Hansard), 8 August 2017

Subsidence Advisory NSW, Guidelines – Process for Claiming Mine Subsidence Compensation, (1 January 2018)

Category:

Procedural rulings

Parties:

Jan Visser (First Applicant)
Yvonne Visser (Second Applicant)
Department of Customer Service (First Respondent)
Tahmoor Coal Pty Ltd (Applicant on notice of motion)

Representation:

COUNSEL:
L Chapman (Applicants)
A Hemmings (First Respondent)
A Hannam (Applicant on notice of motion)
SOLICITORS:
RMB Lawyers (Applicants)
Department of Customer Service (First Respondent)
Johnson Winter and Slattery (Applicant on notice of motion)

File Number(s):

21/134928

Judgment

1. Jan and Yvonne Visser (the Vissers) have commenced an appeal under s 16(2) of the Coal Mine Subsidence Compensation Act 2017 (NSW) (CMSC Act 2017) in relation to mine subsidence damage they consider they have suffered at their property at Picton as a result of coal mine operations by Tahmoor Coal Pty Ltd (Tahmoor). The sole Respondent, the Department of Customer Service (Department), is the relevant government entity responsible for administering compensation claims under Pt 2 of the CMSC Act 2017. Subsidence Advisory NSW (SANSW) is the agency within the Department which considers claims. Tahmoor filed a notice of motion dated 5 July 2021 seeking joinder as a party and that is the subject of this judgment. Tahmoor was given leave at the hearing to rely on an amended notice of motion dated 23 July 2021 which sought an additional alternative order to participate under s 38(2) of the Land and Environment Court Act 1979 (NSW) (LEC Act). The amended notice of motion is opposed by the Vissers.

2. The Department did not oppose or consent to the joinder application. At the Court’s request it was represented and made submissions on the operation of the scheme under the CMSC Act 2017, aspects of which fall for consideration for the first time in considering this amended notice of motion. This is the first time a mine proprietor has sought to join as a party in proceedings of this kind. Tahmoor bears the onus of demonstrating that it ought to be joined as a party.

Coal Mine Subsidence CompensationAct 2017

3. Relevant sections of the CMSC Act provide:

Part 1 Preliminary

…

3   Objects of Act

(1)   The object of this Act is to provide for a fair, efficient and sustainable compensation framework for dealing with the impacts of coal mine subsidence.

(2)   In particular, it is the object of this Act to provide for—

(a)   a scheme for the provision of compensation for damage caused by subsidence resulting from coal mine operations, and

(b)   the assessment and management of risks associated with subsidence resulting from coal mine operations.

4   Definitions

(1)   In this Act—

active coal mine means the following—

(a) a colliery holding registered in accordance with section 163 of the Mining Act 1992 for which a mining lease or other authorisation is in force that authorises mining for coal or the carrying out of mining purposes in connection with the mining of coal,

(b)   a coal mine prescribed by the regulations,

but does not include a coal mine excluded from this definition by the regulations.

approved procedures—see section 14.

…

Chief Executive means the person employed in the Public Service as the Chief Executive of Subsidence Advisory NSW.

Departmentmeans the Department of Finance, Services and Innovation.

…

Fund means the Coal Mine Subsidence Compensation Fund.

…

non-active coal mine means a coal mine other than an active coal mine.

…

Secretary means the Secretary of the Department.

…

Part 2 Compensation for mine subsidence

6   Compensation in relation to subsidence

A person is entitled to compensation in relation to subsidence in accordance with this Act.

…

8   Liability for compensation

(1)   Compensation under this Act is to be paid—

(a)   by the proprietor of the coal mine that caused the subsidence—in relation to compensation arising from an active coal mine, and

(b)   by the Chief Executive from the Fund—in relation to compensation arising from a non-active coal mine.

…

11   Making of claims of compensation

(1)   A person may apply for compensation under this Act by lodging a claim through the website of Subsidence Advisory NSW in the manner and form approved by the Chief Executive.

(2)   An application is to be accompanied by the information or documents (if any) specified by the regulations or that the Chief Executive requires in any particular case.

…

12   Forwarding of claims relating to active coal mines to mine proprietors

(1)   The Chief Executive is to—

(a)   forward each claim relating to compensation arising from an active coal mine to the proprietor of the coal mine, and

(b)   determine each other claim for compensation in accordance with this Act.

(2)   The proprietor of the coal mine to whom a claim has been forwarded under subsection (1) (a) may request the Secretary in writing to review the determination of the Chief Executive that the claim relates to compensation arising from the proprietor’s active coal mine.

(3)   A request under this section must be made within 21 days after the date on which the claim was forwarded to the proprietor.

(4)   On receiving a request, the Secretary is to review the Chief Executive’s determination and may confirm or reject the forwarding of the claim.

(5)   The Secretary must give the following persons notice in writing of the Secretary’s decision—

(a)   the proprietor of the coal mine,

(b)   the claimant for compensation,

(c)   the Chief Executive.

(6)   If the Secretary rejects the forwarding of a claim to the proprietor of the coal mine, the Chief Executive may—

(a)   if the Chief Executive is of the opinion that the claim relates to compensation arising from another active coal mine, forward the claim to the proprietor of that other coal mine, or

(b)   in any other case, determine the claim for compensation in accordance with this Act.

(7)   The proprietor of a coal mine to whom a claim has been forwarded under this section is to determine the claim for compensation in accordance with this Act.

(8)   A proprietor of a coal mine may not request a second or subsequent review in respect of any particular claim unless new and material evidence has been discovered after the determination of the earlier review.

13   Determination of claims in accordance with approved procedures

(1)   Claims for compensation are to be determined in accordance with the approved procedures.

(2)   A claim must be determined within—

(a)   the period of time specified in the approved procedures or otherwise prescribed by the regulations, or

(b)   such longer period of time as may be approved by the Chief Executive in a particular case.

(3)   A failure to determine a claim within the period referred to in subsection (2) is taken, for the purposes of this Part, to be a disallowance of the claim.

14   Approved procedures

(1)   The Chief Executive may approve procedures for the determination of claims under this Act.

(2)   Without limiting subsection (1), approved procedures may deal with the following—

(a)   the determination of whether damage is caused by subsidence arising from an active or non-active coal mine,

(b)   the determination of claims relating to damage caused by or likely to be caused by subsidence arising from an active coal mine, with the agreement of the claimant, by the proprietor of the coal mine—

(i)   purchasing the land, improvements or goods concerned, or

(ii)   carrying out or causing to be carried out works to restore the damaged improvements or goods or works to prevent or mitigate damage to improvements or goods,

(c)   the independent assessment of claims, including the selection of independent assessors and the processes for such assessment,

(d)   the payment of costs, fees and charges (or the prohibition of costs, fees and charges) in connection with the determination of claims under this Act,

(e)   any other matters prescribed by the regulations for the purposes of this section.

…

15   Review of claim determinations by Secretary

(1)   A claimant whose claim for compensation under this Act is wholly or partly disallowed (whether by the Chief Executive or by the proprietor of a coal mine) may request the Secretary in writing to review the decision.

(2)   A request under this section must be made within 3 months of the decision to disallow the claim.

(3)   On receiving a request, the Secretary—

(a)   if the claim is in relation to infrastructure, may—

(i)   review the claim and may allow or disallow the whole or part of the claim, or

(ii)   refuse to review the claim, or

(b)   in any other case, is to review the claim and may allow or disallow the whole or part of the claim.

(4)   The Secretary must give the following persons notice in writing of the Secretary’s decision as to the claim—

(a)   the claimant for compensation,

(b)   in relation to a claim for compensation in relation to subsidence arising from an active coal mine—the proprietor of the coal mine,

(c)   in any case—the Chief Executive.

(5)   A claimant may not request more than one review in respect of any particular claim.

(6)   Subject to section 16 (Appeals), a proprietor of a coal mine must give effect to a decision of the Secretary under this section.

Maximum penalty—

(a)   in the case of an individual—500 penalty units, or

(b)   in the case of a corporation—1,000 penalty units.

16   Appeals

(1)   If the Secretary has refused to review a claim under this Act for compensation in relation to infrastructure, the person claiming compensation may appeal to the Land and Environment Court against a determination of the claim.

(2)   A proprietor of a coal mine or a person claiming compensation under this Act may appeal to the Land and Environment Court against the decision of the Secretary under section 15 (Review of claim determinations by Secretary)—

(a)   as to whether damage has arisen from subsidence, or

(b)   as to the amount of the compensation, or

(c) to reject a claim because of a matter specified in section 10 (Limitation on claims arising out of actions to prevent or mitigate damage).

(3)   An appeal under this section must be made within 3 months after the making of the decision concerned.

…

17   No contracting out of Act

This Act applies despite any contract or agreement to the contrary.

18   Failure of proprietor of coal mine to comply with Act

(1)   If, in the opinion of the Chief Executive, a proprietor of a coal mine fails to respond to a claim under this Act in accordance with the approved procedures, the Chief Executive may respond to the claim and deal with the claim as if the Chief Executive were the proprietor of the coal mine.

(2)   If, in the opinion of the Chief Executive, a proprietor of a coal mine fails to do any of the following in accordance with an agreement with a claimant to determine a claim under section 14 (2) (b), the Chief Executive may deal with the claim as if the Chief Executive were the proprietor of the coal mine—

(a)   purchase land, improvements or goods,

(b)   carry out or cause to be carried out works to restore damaged improvements or goods or works to prevent or mitigate damage to improvements or goods.

(3)   In exercising a function under subsection (1) or (2), the Chief Executive may—

(a)   make a payment to the claimant from the Fund, and

(b)   recover the amount of the payment from the proprietor as a debt due to the Crown.

(4)   If, in the opinion of the Chief Executive, a proprietor of a coal mine fails to make a payment to a claimant as required by this Act, the Chief Executive

(a)   is to make the payment to the claimant from the Fund, and

(b)   may recover the amount of the payment from the proprietor as a debt due to the Crown.

(5)   Unless the Chief Executive is of the opinion that exceptional circumstances exist, the Chief Executive must not take action under this section in relation to a claim that is pending but has not been finally determined under this Act.

(6)   Before taking action under this section, the Chief Executive must—

(a)   give the proprietor of the coal mine concerned at least 21 days notice of the proposed action, and

(b)   invite the proprietor to make submissions regarding that proposed action, and

(c)   consider any submission received from the proprietor within that 21-day period.

(7)   The Chief Executive is to pay any amounts recovered under this section into the Fund.

…

Schedule 1 Savings, transitional and other provisions

…

Part 2 Provisions consequent on enactment of this Act

…

11   Transitional payments of compensation from Fund

During the period of 5 years, commencing on the commencement of this Act, the Chief Executive may make payments from the Fund to reimburse the following persons wholly or in part for compensation payments made under this Act by those persons—

(a)   Centennial Mandalong Pty Limited,

(b)   South32 Limited,

(c)   Tahmoor Coal Pty Ltd.

…

4. Pursuant to cl 7 of the Administrative Arrangements (Administrative Changes – Public Service Agencies) Order 2019 (NSW), any reference to the Department of Finance, Services and Innovation is to be construed as a reference to the Department of Customer Service.

Mine Subsidence Compensation Act1961

5. Relevant sections of the now repealed Mine Subsidence Compensation Act 1961 (NSW) (MSC Act 1961) provided:

4   Definitions

(1)   In this Act, unless the context or subject matter otherwise indicates or requires:

Board means the Mine Subsidence Board constituted under this Act.

…

Fund means Mine Subsidence Compensation Fund.

…

10   Mine Subsidence Compensation Fund

(1)   There shall be constituted a fund to be called the Mine Subsidence Compensation Fund.

(2)   The Fund shall consist of:

(a)   all moneys which immediately before the commencement of this Act were standing to the credit of the Mine Subsidence Fund,

(b)   the contributions payable by the proprietors of colliery holdings pursuant to this Act,

(c)   interest from time to time accruing from any investment of moneys in the Fund authorised by this Act,

(d)   such moneys as are required or authorised by this Act to be paid to the Fund.

(3)   There shall be paid out of the Fund:

(a) all amounts payable under this Act in respect of damage caused by subsidence or payable under section 12A,

(a1)   moneys expended by the Board in the exercise of its powers under section 13A or 13B,

(b)   the expenses involved in the administration of this Act, including expenses incurred in connection with the investigation of notifications of damage and claims for payment of compensation,

(c)   the repayment of sums loaned to the Board together with interest thereon,

(d)   such other payments as are required or authorised by this Act to be paid out of the Fund.

…

11   Contributions to be paid by colliery proprietors to Fund

(1)   In this section, land value, in relation to a colliery holding, is the land value of the colliery holding as determined under the Valuation of Land Act 1916.

(1A)   Where, in respect of any year, a manner of calculating a sum to be contributed to the Fund by the proprietor of a colliery holding is prescribed for the purposes of this subsection, the proprietor of that colliery holding shall, subject to this section, contribute to the Fund in respect of that year the sum calculated in that manner.

(1B)   The contribution under subsection (1A) payable by a proprietor of a colliery holding in respect of any year:

(a)   shall be based:

(i)   on the land value of that colliery holding as in force on 30th June in that year,

(ii)   if no land value has been determined for that colliery holding by 30th June in that year—on the first land value of that colliery holding that is determined after that day, or

(iii)   if that colliery holding ceases to be registered in accordance with the Mining Act 1992 before 30th June in that year—on the land value last used for the purposes of this section, or

(b)   where some other basis is prescribed—shall be based on that other basis.

…

(2)   The Board shall, in respect of a year for which the proprietor of a colliery holding is required pursuant to subsection (1A) to contribute to the Fund, cause to be served, in accordance with subsection (3), on that proprietor a notice in a form approved by the Board specifying the amount of the proprietor’s contribution for that year.

…

12   Claims for damage arising out of 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,

(iii)   raising, lowering, diverting or making good roads, tramways, railways, pipelines, bridges, fences, sewers, drains or other improvements,

(c)   an amount equivalent to the rent which would have been payable for such period as may be prescribed in respect of any buildings or works which by reason of such damage are untenantable, under repair or in course of construction, or where such buildings or works or any part thereof are or is occupied by the owner thereof such sum in lieu of rent as the Board deems just,

(d)   compensation for any damage to household or other effects that arises from subsidence, except where the subsidence is due to operations carried on by the owner of the household or other effects.

…

(2)

(a)   The owner of any improvement or any household or other effects 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 description of the household or other effects 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 or a member of staff of 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.

…

12A   Claims arising out of actions to prevent or mitigate damage

(1)   The following claims may be made under this Act for payment from the Fund:

(a)   a claim for compensation for damage incurred as a result of the exercise by the Board of its powers under section 13A,

(b)   a claim for preventative or mitigative expenses.

(1A)   The Board must not make a payment from the Fund for a claim for any preventative or mitigative expense unless:

(a)   the claim is made after the subsidence concerned has commenced, and

(b)   the expense is incurred or proposed after the subsidence concerned has commenced, and

(c)   at the time the expense is incurred or proposed the damage concerned is more likely than not to occur, and

(d)   the Board is satisfied that the preventative or mitigating work (or proposed preventative or mitigating work) is appropriate and necessary to prevent or mitigate the damage concerned, and

(e)   the subsidence concerned is not due to operations carried on by the owner.

(1B)   The Board may reject a claim if the Board is of the opinion that the total preventative or mitigative expenses claimed are disproportionate to the reasonably expected total expense of repairing or replacing the improvements or household or other effects concerned if no preventative or mitigating work had been or were to be carried out.

…

(4)   The Board may determine the amount of payment in response to a claim under this section.

(5)   The Board must notify the claimant of its decision about a claim and the reasons for its decision.

…

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

(b)   as to the amount of the payment from the Fund, or

(c) to reject a claim because of a matter specified in section 12A (1A) or (1B).

6. I observe that there are some substantial differences between the CMSC Act 2017 and the MSC Act 1961. Under the CMSC Act 2017 the administration and provision of compensation for mine subsidence is split between historic (non-active) coal mines which no longer operate and active coal mines. Compensation for subsidence from non-active mines continues to be paid from the “Mine Subsidence Compensation Fund” (Fund) administered by the Chief Executive of SANSW (Chief Executive) as provided in s 8(1)(b). For active coal mines new procedures have been put in place whereby the active mine proprietor is directly liable to a claimant under s 8(1)(a) for any amounts of compensation found to be payable. Under the MSC Act 1961 mine proprietors paid into the Fund from which payments were made by the Mine Subsidence Board.

7. The appeal provisions under the CMSC Act 2017 have been expanded to allow mine proprietors and claimants to appeal to the Court under s 16(2) against the decision of the Secretary under s 15 (review of claim determinations by Secretary). Under the MSC Act 1961 all compensation was paid for historic and active mines from the Fund which mine proprietors contributed to. Under s 12B of the MSC Act, no right of appeal against a determination of compensation payable for mine proprietors existed, only claimants for compensation could appeal to the Court. One line in the Second Reading Speech for the CMSC Act 2017, New South Wales Legislative Council, Parliamentary Debates (Hansard), 8 August 2017 at 65, refers to appeals namely “[t]he right to appeal against the decision of the Secretary to the Land and Environment Court remains where claimants and mine operators are dissatisfied with the independent review process”. That sentence does not imply that appeals continue as they did under the MSC Act 1961, given the new capacity conferred on proprietors of coal mines to launch an appeal.

8. Tahmoor’s application for joinder as a party is made under rr 6.24(1) and 6.27 of the Uniform Civil Procedure Rules 2005 (NSW) (UCPR) which state:

Part 6 Commencing proceedings and appearance

…

Division 5 Joinder of causes of action and joinder of parties

…

6.24   Court may join party if joinder proper or necessary

(1)   If the court considers that a person ought to have been joined as a party, or is a person whose joinder as a party is necessary to the determination of all matters in dispute in any proceedings, the court may order that the person be joined as a party.

…

6.27 Joinder on application of third party

A person who is not a party may apply to the court to be joined as a party, either as a plaintiff or defendant.

Approved procedures

9. The “Guidelines – Process for Claiming Mine Subsidence Compensation” (Approved Procedures) provided for in s 14(1) of the CMSC Act 2017 were marked MFI-1. The Approved Procedures came into effect on 1 January 2018. SANSW is identified at par 2.2 as the agency responsible for managing all claims for compensation for mine subsidence damage. SANSW facilitates the involvement of mine proprietors where the damage is in the zone of an active coal mine. Mine proprietors are responsible for compensating the costs of mine subsidence damage arising from their operations and providing timely input through SANSW at key stages of the claims process.

10. Paragraph 5.1 identifies six steps in the claims process, briefly summarised here in relation to active coal mines. Step 1, a claim for compensation for mine subsidence damage is lodged with SANSW. Step 2, a preliminary assessment of the claim is undertaken by SANSW. Within seven days of the claim being lodged, SANSW notifies the relevant mine proprietor that a claim is being made within their zone of influence. SANSW may arrange meetings with the claimant to further explain information and will endeavour to facilitate a constructive relationship between the mine proprietor and claimant so that claims can be resolved in a fair and timely manner. SANSW will invite the mine proprietor to attend meetings with the claimant.

11. Under step 3, an independent assessor has three months to assess the claim for mine subsidence damage. The mine proprietor has an opportunity to dispute the assessor’s report and to request a peer review of the findings. Step 4, within four weeks of receiving the report, the mine proprietor determines the claim in accordance with the independent assessor’s finding by making an offer of fair and reasonable compensation or advising that the claim has not been accepted and why. The claimant has three months from the date of determination to accept the claim determination (Step 5) or seek an independent review (Step 6). A request for an independent review is lodged with SANSW, who then notifies the Secretary of the Department and the mine proprietor. The mine proprietor may revise their determination, otherwise the Secretary will provide a new determination within three months of receiving notice of the claimant’s request for review. The claimant and mine proprietor can appeal the Secretary’s decision in accordance with s 16 of the CMSC Act.

Evidence

12. An affidavit affirmed by Samantha Daly, solicitor for Tahmoor, dated 5 July 2021 was filed in support of the application for joinder. Essentially Tahmoor, as the active mine proprietor responsible for paying the subsidence claim, wishes to be joined as a necessary party. On 20 July 2018, the Vissers made a claim to SANSW under s 11 of the CMSC Act alleging damage to their property. SANSW forwarded the claim application to Tahmoor pursuant to s 12. Tahmoor determined the claim in accordance with the approved procedures under s 13. A copy of the determination letter was sent by SIMEC (being the parent company of Tahmoor) to the Vissers. The Vissers requested that the Secretary of the Department review the determination of their claim under s 15(1). On 15 February 2021, the Deputy Secretary made a new determination that the Vissers were entitled to $402,000 which Tahmoor was required to give effect to under s 15(6). Tahmoor wrote to the Vissers offering compensation, as the Secretary’s review found. On 13 May 2021, the Vissers filed an appeal against the Department’s review decision under s 16.

13. The Department provided a letter dated 17 June 2021 (Ex 1A) which it sent to SIMEC, the parent company of Tahmoor, copied to the Vissers’ solicitor, which stated:

Visser v Department of Customer Service

Land and Environment Court Proceedings 2021/00134928

I act for the Department of Customer Service (DCS) which is the Respondent in the above matter.

Please find enclosed a copy of the Class 3 application to the Land and Environment Court served on the Respondent on behalf of Jan and Yvonne Visser (the Applicants). I understand that the Applicants’ solicitor also provided a copy of the Application to you on 21 May 2021.

As you know, the Applicants have claimed compensation for coal mine subsidence damage to their property at […] Picton (the Property).

The application is an appeal against the determination of compensation by Rose Webb, Deputy Secretary, DCS (Secretary’s Delegate) dated 15 February 2021. In accordance with section 15(3)(b) of the Coal Mine Subsidence Compensation Act 2018 [sic] (the Act) the Secretary’s Delegate determined that the Applicants were entitled to $402,000 by way of compensation for damage caused to the Property by coal mine subsidence (the Determination).

Under section 8(1) of the Act, compensation is payable by the proprietor of the coal mine that caused the subsidence in relation to compensation arising from an active coal mine. I have been informed that, following the making of the Determination, Tahmoor Coal Pty Ltd (the Colliery) made an offer to the Applicants in accordance with subsection 15(6) of the Act.

The application is listed for the first directions hearing at the Land and Environment Court, Sydney on 21 June 2021 at 10.00 am. The Land and Environment Court’s Practice Note Classes 1,2 and 3 Miscellaneous Appeals applies to these proceedings and a copy is attached for your reference. Unless good reason is demonstrated, directions are usually made on the first return date to list the matter for a conciliation conference under section 34(1) of the Land and Environment Court Act 1979 (LEC Act) and to set a timetable up to and including the conciliation conference date.

If the Court arranges a section 34 conciliation conference between the parties, the parties are required to participate in good faith and, if the parties reach agreement as to the terms of a decision acceptable to both parties, then the Court is commanded to dispose of the proceedings in accordance with the decision, so long as the decision is one which “the Court could have made in the proper exercise of its functions” (s. 34 of the LEC Act).

The Colliery has an interest in these proceedings which is affected by the outcome of the litigation, in that it is responsible for the compensation payable to the Applicant under section 8(1) of the Act. However, unless the Colliery is joined as a party to the proceedings pursuant rule 6.24 of the Uniform Civil Procedure Rules 2005 (UCPR), the Colliery does not have the right to participate in the section 34 conference other than as an objector, unless an application to be heard as an amicus is made by the Colliery (see AQC Dartbrook Management Pty Ltd v Minister for Planning and Public Spaces [2021] NSWCA 112 at [15], [17] and [19]).

In these circumstances, it is appropriate for the just, quick and cheap resolution of the proceedings that the proceedings should be adjourned to allow the Colliery the opportunity to consider whether it will make an application under rule 6.24 of the UCPR to join the proceedings or otherwise seek to participate in the proceedings. Accordingly, unless we hear otherwise from the Colliery, my client will seek directions on Monday to adjourn the proceedings for fourteen (14) days.

I look forward to hearing from you.

14. The Department’s counsel submitted that the letter expressed the Department’s view that Tahmoor had an interest in the proceedings, based on Ross v Lane CoveCouncil (2014) 86 NSWLR 34; [2014] NSWCA 50 (Ross) in the Court of Appeal. The Department’s counsel also submitted that if Tahmoor was joined as a party, the Department would file a submitting appearance. It would continue to assist in providing any documents sought from it by the Vissers at no charge.

Tahmoor’s submissions

15. The applicable principles are those in John Alexander’s Clubs Pty Ltd v White City Tennis Club Ltd (2010) 241 CLR 1; [2010] HCA 19 (White City) at [131]-[136]. Further, in News Limited v Australian Rugby Football League Limited (1996) 65 FCR 410; [1996] FCA 807 (Superleague), the relevant passage of which was endorsed by the High Court in White City, the court held that the question of joinder should be decided in any given case according to whether the party’s rights against or liabilities to any party to the action in respect of the subject matter of the action will be directly affected by any order which may be made in the action. The court held in Superleague at 525 that the test involves matters of degree and judgment, having regard to the “practical realities” of the case, and the nature and value of the rights and liabilities of the third party; the requirement of a direct effect differentiates the case where a person ought to be joined from other cases where the effect of the order on non-parties can be characterized as only indirect nor consequential; and where, before trial, a question arises whether a necessary party has been joined, attention should be directed to the orders sought in the proceedings. It is the effect of the orders upon the third party that must be determined.

16. The relevant portion of the judgment of Leeming JA in Ross from [51] addressing joinder provides a helpful synthesis of the above principles. In that case, since widely applied, Leeming JA held at [57] that the joinder of a party directly affected by an order “is not, at least not ordinarily, a matter of discretion: it is a matter of obligation upon the party seeking the order”. Leeming JA addresses the qualifications to the principle from [61], such as where no prejudice would be suffered by a party not being joined, or where a party has been notified but does not wish to join proceedings or otherwise be heard.

17. Tahmoor ought to have been joined as a party applying the above principles. Under the CMSC Act 2017, any claim relating to compensation arising from an active coal mine is forwarded by the Chief Executive of SANSW to the mine proprietor. Provided the mine proprietor does not dispute that the claim relates to compensation arising from its mine, the proprietor must then determine the claim for compensation in accordance with the CMSC Act 2017 and any approved procedures (ss 12-14 of the CMSC Act 2017). Unlike the MSC Act 1961, compensation is determined and paid by the coal mine proprietor directly, rather than through contributions to the Fund (subject to certain transitional arrangements).

18. In determining the compensation claim in this case, Tahmoor was required to follow the Approved Procedures summarised above in [9]-[11] which set out a number of steps, several of which require the active involvement of and input by the mine proprietor. Tahmoor will be bound by the Court’s decision as the mine proprietor and therefore its liability for the payment of compensation. These circumstances are similar to the joinder of a party in valuation of land proceedings in Tenstat Pty Ltd v New South Wales Valuer-General (2002) 119 LGERA 278; [2002] NSWLEC 14 and The Trust Company (Australia) Ltd v Valuer-General of New South Wales [2015] NSWLEC 169.

19. The interests of the Department and Tahmoor do not precisely align. Tahmoor can assist the Court in testing the expert evidence and/or adducing its own expert evidence concerning mining activities carried out under or in proximity to the Vissers’ property and subsidence.

20. The only question to be considered and determined in the proceedings is the amount of compensation owed to the Vissers. This is not a case where the financial interests of the party seeking joinder are just one, or a peripheral component of the proceedings. For instance, the proceedings do not concern any question of liability on the part of Tahmoor.

21. If Tahmoor was not permitted to join and participate in the proceedings as a party, this would create an anomalous result given that Tahmoor is otherwise actively involved in and entitled/required to contribute to the statutory process established by the CMSC Act 2017 and the Approved Procedures. It would be apparently inconsistent with the intent of the compensation determination process established by the CMSC Act 2017. Tahmoor wishes to participate in any conciliation or mediation processes undertaken in the proceedings.

Vissers’ submissions

22. Ms Daly’s affidavit above in [12] filed in support of the amended notice of motion does not provide any basis for joinder. Tahmoor ought not to be joined as a party. There is no requirement under the CMSC Act 2017 for joinder of a mine proprietor in an appeal lodged by a claimant under s 16(2). When a claimant commences an appeal under s 16(2) naming the Department as the respondent, no provision is made in the CMSC Act 2017 for notification of the mine proprietor. No obligation is placed on the Vissers to join Tahmoor under the CMSC Act 2017. The CMSC Act 2017 is silent as to the involvement of a mine proprietor in an appeal brought under s 16(2). If that had been Parliament’s intention it would have made that plain in the section and it has not.

23. Section 16(2) creates a right of appeal by “a person claiming compensation” in relation to the decision of the Secretary who determines the amount of the compensation payable. While the amount of compensation required to be paid is borne by an active mine proprietor, there is no discretion in the CMSC Act 2017 for the mine not to pay the amount determined by the Secretary. Section 18(3) provides a right of recovery against any mine by the Chief Executive of SANSW as a debt due to the Crown in relation to any amount which the mine proprietor fails to pay.

24. This application is the first occasion a mine proprietor has sought to be joined despite a number of other appeals being filed in the Court under the CMSC Act 2017.

25. Joinder is not necessary. While Tahmoor has an interest in the proceedings, the test is whether joinder is necessary for the purposes of the resolution of the proceedings. It is plainly not necessary as s 16 of the CMSC Act limits appeal proceedings as between the claimant, such as the Vissers, and the Department. The appeal is against the Secretary’s determination. That Tahmoor is liable is extraneous to the proceedings. Tahmoor, if joined, would have no functional role. Other appeal proceedings have not needed the involvement of the mine proprietor. Section 56 of the Civil Procedure Act 2005 (NSW) suggests that permitting a non-party who is not necessary to resolve the issues in dispute is not consistent with the “just, quick and cheap” resolution of the proceedings.

26. In the exercise of its residual discretion, the Court ought not to order joinder due to the prejudice to the Vissers of having two active respondents in terms of cost and time required. There is no material prejudice to Tahmoor if it is not joined. The Vissers seek compensation. Liability has been admitted so that the only issue is quantum. Tahmoor has not demonstrated how its involvement will contribute to the proceedings.

Consideration

27. I am informed by the Department that to date the only appeals lodged in the Court under s 16(2) of the CMSC Act 2017 have concerned claimants for compensation arising from non-active coal mines. None of those matters have proceeded to hearing. This appears to be the first appeal under s 16(2) by a claimant seeking compensation arising from subsidence caused by an active coal mine. As identified above in [6]-[7], there have been substantial changes to the statutory regime for the claiming, assessment and payment of compensation for damage caused by subsidence in relation to active coal mines. That there has been no previous application for joinder by a mine proprietor is because no such appeal has been lodged before. Nor have I been informed that a mine proprietor has sought to exercise the right it now has under s 16(2) to commence an appeal.

27. The steps now required by ss 11-15 of the CMSC Act 2017, including under the Approved Procedures, are identified in the affidavit of Ms Daly summarised above in [12] and set out in Tahmoor’s submissions above in [17]. The involvement of the mine proprietor is integral to these processes, which result in the proprietor of an active coal mine being directly liable to pay compensation to a claimant, the amount of which is determined by the Secretary under s 15 if not resolved earlier in the statutory process.

28. Tahmoor referred to accepted authorities on the question of joinder and I will set out the useful summary in Ross of Leeming JA at [51]-[55] which refers to these:

51   It is settled law that a person who is directly affected by the orders sought in a proceeding is a necessary party, and that the obligation to join that person rests upon the plaintiff or applicant or person applying for those orders.

52   In the Superleague case (News Ltd v Australian Rugby Football League Ltd (1996) 64 FCR 410) at 524-526, the Federal Court (Lockhart, von Doussa and Sackville JJ) applied the test stated by Lord Diplock delivering the advice of the Judicial Committee of the Privy Council in Pegang Mining Co Ltd v Choong Sam [1969] 2 MLJ 52 criticising the dichotomy between “legal” and “commercial” interests. His Lordship said at 56:

A better way of expressing the test is: will [a non-party’s] rights against or liabilities to any party to the action in respect of the subject matter of the action be directly affected by any order which may be made in the action?

53   That test has very regularly been followed. Most recently, in John Alexander’s Clubs Pty Ltd v White City Tennis Club Ltd [2010] HCA 19; (2010) 241 CLR 1 at [131], a unanimous High Court said:

Walker Corporation submitted that where a court is invited to make, or proposes to make, orders directly affecting the rights or liabilities of a non-party, the non-party is a necessary party and ought to be joined. That submission is correct.

54   Sometimes it is said, as it was said in the present appeal, that merely giving notice to the person affected by the order is sufficient. It will be necessary to return to this in more detail below, but it should be recognised immediately that joinder, not notice, is the default position. …

55   In John Alexander’s Clubs the last two sentences of that passage were reproduced, and endorsed by the High Court in these terms at [140]:

News Ltd v Australian Rugby Football League Ltd was a case where players who had not been joined in the proceedings but only informed of them were not debarred from attacking the orders made. There is no doubt that Walker Corporation was aware of the first proceedings, and it informed the Court of Appeal of that fact. Walker Corporation said there was a reasonable explanation for its delay in seeking to be joined. Whether or not that is so, it had no duty to seek to be joined, and its delay does not in this case call for explanation.

Ought to be joined?

30. While the extract immediately above is a clear statement of the generally applicable law on joinder, one important observation to make is that Ross, White City and Superleague were not considering statutory compensation schemes, here concerned with compensation for mine subsidence. One would usually expect that the appropriate parties are identified in the relevant legislation establishing the scheme. The letter sent by the Department to SIMEC as parent company for Tahmoor set out above in [13] suggests that is not the case with the CMSC Act 2017. It is surprising that the statutory scheme administered by the Department caused it to suggest recourse to the general joinder provisions of the UCPR to Tahmoor. Section 16 is the only section of the CMSC Act 2017 dealing with statutory appeals. Section 16(2) provides for appeals against the decision of the Secretary made under s 15 by a person seeking compensation or a mine proprietor. Section 16 does not suggest that any entity other than the Department would be a party to an appeal by a person seeking compensation.

31. There is no provision in the CMSC Act 2017 to warrant a finding that Tahmoor ought to be joined as a party. This appeal is commenced against the Department in relation to the Secretary’s determination of a review under s 15. There is no requirement under the CMSC Act 2017 that Tahmoor be a party for the purposes of the CMSC Act 2017. I do not consider it ought to have been joined by the Vissers.

Necessary party

32. In considering whether Tahmoor is a necessary party for the purposes of r 6.24 of the UCPR the carefully structured scheme given effect to under the CMSC Act 2017 must be considered. The authorities White City, Superleague, and Ross at [51]-[55] do not consider such a statutory scheme.

33. Claims for compensation under the CMSC Act 2017 are made under s 11 to SANSW’s website in the form specified by the Chief Executive. Under s 12(1)(a) the Chief Executive forwards a claim for compensation arising from an active coal mine to the proprietor of a coal mine. That proprietor can request the Secretary to review the determination of the Chief Executive that a claim relates to compensation arising from the proprietor’s mine. Assuming the timeline under subs (3) is complied with by the proprietor, under subs (4) the Secretary can confirm or reject the forwarding of a claim to the proprietor. If a claim is not forwarded, the Chief Executive determines a claim for compensation in accordance with the CMSC Act 2017. If a claim is forwarded, a proprietor of a coal mine must determine a claim for compensation in accordance with the CMSC Act 2017 under subs (7). Under subs (8) a proprietor may not request a second or later review in relation to a claim unless new and material evidence is discovered. A mine proprietor’s ability to seek a review of the Chief Executive’s decision to forward a claim to it is therefore limited under the statutory scheme.

34. Section 14 provides for the making of approved procedures by the Chief Executive for the determination of claims under the CMSC Act 2017. Section 13(1) requires that claims for compensation be determined in accordance with the approved procedures, whether by the Chief Executive or a mine proprietor. The Approved Procedures are summarised above in [9]-[11] and were also referred to in the affidavit of Ms Daly above in [12]. Time periods specified in the Approved Procedures must be complied with, unless extended by the Chief Executive under s 13(2)(b). A failure to determine a claim in the period required by the Approved Procedures is taken to be disallowed under s 13(3).

35. Under s 15(1) where an application for a claim for compensation is wholly or partly disallowed, a review by the Secretary of the decision of the Chief Executive or of the mine proprietor can be requested by a claimant. Under subs (4), the Secretary must inform the claimant for compensation, the proprietor of the active coal mine where subsidence arises and the Chief Executive of the Secretary’s decision. Under subs (5) a claimant may only request one review.

36. Under s 16(1) the Secretary’s refusal to review a claim can be appealed to the Court. Under s 16(2) a mine proprietor has an appeal right in relation to the matters specified in subs (a)-(c), as does the person claiming compensation. The right of appeal under s 16(2) has been exercised by the persons claiming compensation in this matter.

37. As part of the statutory scheme, pursuant to s 17 the CMSC Act 2017 applies regardless of any contract or agreement providing otherwise. Section 18 enables the Chief Executive to deal with a claim as if a mine proprietor if that proprietor fails to respond to a claim under the CMSC Act 2017 as required by the approved procedures. Any payment made under the various circumstances identified in s 18 is able to be recovered by the Chief Executive as a debt due by the mine proprietor.

38. This carefully structured statutory compensation scheme under which the mine proprietor has the same right of appeal as a person claiming compensation under s 16(2) and where the ability of the mine proprietor to request a review of the referral of a claim under s 12 is limited by subs (8), suggests the application of the general joinder provisions in the UCPR are not relevant on the question of who is a necessary party.

39. Stating that Tahmoor’s interests are affected by the outcome of the proceedings in that it will have to pay the amount ordered by the Court, essentially Tahmoor’s submission, does not on its own lead to a finding that it is a necessary party. The authorities it relied on are not addressing the detailed statutory scheme which is the context that this application for joinder must be considered in relation to.

40. Tahmoor had a right of appeal under s 16(2) which it could have exercised and that also suggests it is not necessary that it be joined in this appeal as a party.

41. Joinder of a party was considered in AQC Dartbrook Management Pty Ltd v Minister for Planning and Public Spaces [2021] NSWCA 112 in the context of a different statutory scheme being development appeals under the EPA Act. Meagher and Leeming JJA observed at [19]-[20] that joinder as a party was not necessary where there were other available mechanisms for the objector’s involvement in the appeal. One option identified was by participation as an amicus. Similarly here, other options exist for participation by Tahmoor.

42. Tahmoor’s amended notice of motion also referred to r 6.27 of the UCPR. This provision provides no additional basis for the consideration of joinder as a party.

43. Tahmoor’s application for joinder as a party is refused.

44. Another basis for Tahmoor’s involvement proposed under the amended notice of motion dated 23 July 2021 is an order to participate under s 38(2) of the LEC Act. Tahmoor seeks an order that it be permitted to make submissions, retain an expert, file expert evidence and cross-examine any expert whose evidence is sought to be relied upon by the Vissers, per Double Bay Marina Pty Ltd v Woollahra Municipal Council (1985) 54 LGRA 313. The Vissers did not oppose participation by Tahmoor pursuant to s 38(2) to permit it to adduce evidence for the purposes of any conciliation conference under s 34 of the LEC Act. I will make orders allowing further participation by Tahmoor as provided by s 38(2) of the Court Act. The precise content of such an order will be discussed with the parties and Tahmoor before finalisation.

Further observations

45. The CMSC Act 2017 provides little guidance on how appeals to the Court are to be conducted and does not specify any powers of the Court on appeal. The sole provision is s 16. This is in marked contrast to, for example, the Valuation of Land Act1916 (NSW) Pt 4 (Appeals to Land and Environment Court) Div 1 (Appeals) in ss 37-41. Under s 39(2) of the LEC Act the Court has all the functions and discretions on appeal which the Department had in respect of the compensation claim. By virtue of s 39(3) of the LEC Act any hearing in Class 3 proceedings is de novo and is therefore likely to be based on fresh evidence. In the absence of any statutory provision concerning onus of proof, the Vissers have a persuasive onus as the party commencing the appeal. If a mine proprietor commences an appeal it would have such an onus.

46. Under Sch 1 cl 11 of the CMSC Act 2017 the Fund is available to assist Tahmoor, at the discretion of the Secretary, in paying claims for the first five years of operation of the scheme. Given that this may well ameliorate any obligation for the payment of some or all compensation by Tahmoor that may arise from this appeal, I observe that further advice from the Department on the operation of that scheme in relation to this appeal is relevant and should be provided as soon as possible to the Vissers.

47. The parties have requested that costs be reserved.

Orders

48. The Court orders:

1. Prayer 1 of Tahmoor Coal Pty Ltd’s amended notice of motion dated 23 July 2021 is dismissed.

2. Prayer 2 of Tahmoor Coal Pty Ltd’s amended notice of motion dated 23 July 2021 is reserved.

3. Costs of Tahmoor Coal Pty Ltd’s amended notice of motion dated 23 July 2021 are reserved.

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Decision last updated: 27 August 2021