Jemena Gas Networks (NSW) Limited v Mine Subsidence Board [2011] HCA 19

Jemena Gas Networks (NSW) Limited v Mine Subsidence Board [2011] HCA 19

Section 12A(1)(b) does not require that subsidence has already occurred at the time the preventative or mitigatory expense is incurred or proposed; what matters is whether, in the opinion of the Board, the owner of improvements could reasonably have anticipated damage from such subsidence if the works had not been done. Where proper and necessary expenses are reasonably incurred in anticipation of likely subsidence-caused damage, the owner is entitled to compensation from the Fund.

Parties
Appellant: Jemena Gas Networks (NSW) Limited; Respondent: Mine Subsidence Board
Jurisdiction
Australia
Judgment Date
01 June 2011
Procedural Posture
Appeal / High Court Appeal From the Supreme Court of New South Wales
Outcome
Appeal allowed
Legal Topics
Compensation for Preventative Works, Mine Subsidence Compensation Fund, Construction of S 12 A(1)(b), Common Law Rights and Statutory Compensation, Role of Mine Subsidence Board
Mining Law Compensation Law Statutory Interpretation Compensation for Preventative Works Mine Subsidence Compensation Fund Construction of S 12 A(1)(b) Common Law Rights and Statutory Compensation Role of Mine Subsidence Board

Case Brief

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Parties

Jemena Gas Networks (NSW) Limited

Appellant

Mine Subsidence Board

Respondent

Procedural Posture

Appeal / High Court Appeal From the Supreme Court of New South Wales

Legal Issues

  1. 1 Whether section 12A(1)(b) of the Mine Subsidence Compensation Act 1961 (NSW) requires actual subsidence before preventative or mitigatory expenses are incurred for a valid compensation claim.
  2. 2 Whether owners can claim compensation for proper and necessary prevention or mitigation expenses even before subsidence has occurred, based on reasonable anticipation.

Ratio Decidendi

Section 12A(1)(b) does not require that subsidence has already occurred at the time the preventative or mitigatory expense is incurred or proposed; what matters is whether, in the opinion of the Board, the owner of improvements could reasonably have anticipated damage from such subsidence if the works had not been done. Where proper and necessary expenses are reasonably incurred in anticipation of likely subsidence-caused damage, the owner is entitled to compensation from the Fund.

Court Disposition

Appeal allowed

Orders

  • Orders of the Court of Appeal of the Supreme Court of New South Wales made on 28 June 2010 set aside.
  • In their place, orders that the appeal to the Court of Appeal is allowed; orders of the Land and Environment Court of New South Wales made on 17 July 2009 are set aside.