Jemena Ltd v Mine Subsidence Board [2012] NSWSC 1509

Jemena Ltd v Mine Subsidence Board [2012] NSWSC 1509

The Mine Subsidence Compensation Act 1961 s 15(5)(b) does not, in the absence of Board approval or certificate, preclude claims for expenses incurred in preventing or mitigating damage—claims under s 12A(1)(b)—even if approval was not obtained. The Board's refusal to grant a certificate under s 15B(3A) was ultra vires as it took into account irrelevant considerations; however, court would not order Board to grant certificate, as all statutory requirements are not yet satisfied.

Parties
First Plaintiff: Jemena Ltd; Second Plaintiff: Jemena Gas Networks (NSW) Ltd; Defendant: Mine Subsidence Board
Jurisdiction
Australia
Judgment Date
29 November 2012
Procedural Posture
Judicial Review / Principal Judgment
Outcome
Plaintiff's claim for expenses incurred in preventing or mitigating damage to pipeline caused by mine subsidence not precluded by failure to obtain approval; Board's refusal of certificate was ultra vires for irrelevant considerations; relief granted subject to further argument.
Legal Topics
Judicial Review, Irrelevant Considerations, Ultra Vires, Mandamus, Mine Subsidence, Statutory Interpretation, Estoppel, Retrospective Approval, Licensing, Compensation for Preventative and Mitigatory Works
Administrative Law Energy and Resources Judicial Review Irrelevant Considerations Ultra Vires Mandamus Mine Subsidence Statutory Interpretation +4 more

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Parties

Jemena Ltd

First Plaintiff

Jemena Gas Networks (NSW) Ltd

Second Plaintiff

Mine Subsidence Board

Defendant

Procedural Posture

Judicial Review / Principal Judgment

Legal Issues

  1. 1 Whether Jemena constructed the pipeline with approval from the Board under s 15 of the Mine Subsidence Compensation Act 1961
  2. 2 Whether the Board is estopped from denying approval
  3. 3 Whether a licence under the Pipelines Act 1967 excuses non-compliance with Board approval requirements

Ratio Decidendi

The Mine Subsidence Compensation Act 1961 s 15(5)(b) does not, in the absence of Board approval or certificate, preclude claims for expenses incurred in preventing or mitigating damage—claims under s 12A(1)(b)—even if approval was not obtained. The Board's refusal to grant a certificate under s 15B(3A) was ultra vires as it took into account irrelevant considerations; however, court would not order Board to grant certificate, as all statutory requirements are not yet satisfied.

Court Disposition

Plaintiff's claim for expenses incurred in preventing or mitigating damage to pipeline caused by mine subsidence not precluded by failure to obtain approval; Board's refusal of certificate was ultra vires for irrelevant considerations; relief granted subject to further argument.