Mine Subsidence Board v Jemena Ltd and Jemena Gas Networks (NSW) Ltd [2013] NSWCA 465

Mine Subsidence Board v Jemena Ltd and Jemena Gas Networks (NSW) Ltd [2013] NSWCA 465

Section 15(5)(b) does not preclude the making or payment of claims under s 12A(1)(b). A claim under s 12A(1)(b) is for an amount to meet proper and necessary expense incurred or proposed for preventative or mitigatory work; subsidence damage is relevant only as anticipated damage that the work seeks to prevent or mitigate. The subject matter and justification of the claim and payment are the expense and work, not damage caused by subsidence or its detrimental consequences. Because the Act materially distinguishes claims in respect of actual damage from claims in respect of expense, and because any denial of the s 12A(1)(b) right would require clear language, the natural construction of s...

Jurisdiction
Australia
Judgment Date
20 December 2013
Procedural Posture
Appeal / Court of Appeal From Jemena Ltd V Mine Subsidence Board [2012] NSWSC 1509
Outcome
Appeal dismissed with costs.
Legal Topics
['mine Subsidence Compensation Act 1961' 'mine Subsidence Districts' 'claims From Mine Subsidence Compensation Fund' 'preventative or Mitigatory Works' 'unapproved Improvements']
['energy and Resources' 'mining' 'statutory Interpretation'] ['mine Subsidence Compensation Act 1961' 'mine Subsidence Districts' 'claims From Mine Subsidence Compensation Fund' 'preventative or Mitigatory Works' 'unapproved Improvements']

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Procedural Posture

Appeal / Court of Appeal From Jemena Ltd V Mine Subsidence Board [2012] NSWSC 1509

Legal Issues

  1. 1 ['Whether s 15(5)(b) of the Mine Subsidence Compensation Act 1961 prevents the Board from entertaining and paying claims under s 12A(1)(b) for proper and necessary expense incurred or proposed in preventing or mitigating subsidence caused damage to a pipeline erected in a mine subsidence district without approval and without a certificate under s 15B(3A).' 'Whether a claim under s 12A(1)(b) is a claim or payment "in respect of damage caused by subsidence" within s 15(5)(b).']

Ratio Decidendi

Section 15(5)(b) does not preclude the making or payment of claims under s 12A(1)(b). A claim under s 12A(1)(b) is for an amount to meet proper and necessary expense incurred or proposed for preventative or mitigatory work; subsidence damage is relevant only as anticipated damage that the work seeks to prevent or mitigate. The subject matter and justification of the claim and payment are the expense and work, not damage caused by subsidence or its detrimental consequences. Because the Act materially distinguishes claims in respect of actual damage from claims in respect of expense, and because any denial of the s 12A(1)(b) right would require clear language, the natural construction of s...

Court Disposition

Appeal dismissed with costs.

Orders

  • ['Appeal dismissed with costs.']