Australian Gas Light Company v Mine Subsidence Board [2006] NSWLEC 494 | Case summary | Zoe

NSWNSWLEC

Australian Gas Light Company v Mine Subsidence Board [2006] NSWLEC 494

[2006] NSWLEC 494

Land and Environment Court (NSW)|2006-08-11|Before: Biscoe J

View on NSW Caselaw

At a glance

Source facts

Court

Land and Environment Court (NSW)

Decision date

2006-08-11

Before

Biscoe J

Source

Original judgment source is linked above.

Judgment

Source: NSW Caselaw (www.caselaw.nsw.gov.au). Converted to plain text by ZoeLaw. Not the official version.

Reported Decision : (2006) 147 LGERA 433

(2007) 152 LGERA 73 [2007] NSWCA 100

Land and Environment Court

of New South Wales

CITATION : Australian Gas Light Company v Mine Subsidence Board [2006] NSWLEC 494

PARTIES : FIRST APPLICANT:

Australian Gas Light Company

SECOND APPLICANT:

AGL Gas Networks Limited

RESPONDENT:

Mine Subsidence Board

FILE NUMBER(S) : 30101 of 2006

CORAM: Biscoe J

KEY ISSUES: Jurisdiction :- to hear and dispose of appeals under s 12B of the Mine Subsidence Compensation Act 1961(NSW) – interpretation and application of s 12B.

LEGISLATION CITED: Administrative Appeals Tribunal Act 1975 (Cth) s 3(1)

Administrative Decisions (Judicial Review) Act 1977 (Cth) s 3(1)

Land and Environment Court Act 1979 (NSW) ss 16, 19(f1), 39(2

Mine Subsidence Compensation Act 1961 (NSW) ss 7A, 12, 12A, 12B, 13A, 15, 15B

CASES CITED: Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321;

Bank of NSW v The Commonwealth (1948) 76 CLR 1;

Cabell v Markham (1945) 148 F 2d 737;

Cachia v Colaco [2002] NSWLEC 64;

CDJ v VAJ (1998) 197 CLR 172;

CIC Insurance Ltd v Bankstown Football Club Ltd (1997) 187 CLR 384;

Commissioner of Taxation v Scully (2000) 201 CLR 148;

Duncan v Defence Force Retirement and Death Benefits Authority (1980) 47 FLR 256;

Eastman v R (2000) 203 CLR 1;

Federated Engine-Drivers and Firemen’s Association of Australasia v Broken Hill Proprietary Company Limited (1911) 12 CLR 398 ;

Griffith University v Tang (2005) 221 CLR 99;

Hazeldell Limited v Commonwealth (1924) 34 CLR 442;

K & S Lake City Freighters Pty Ltd v Gordon Gotch Ltd (1985) 60 ALR 509;

Knight v FP Special Assets Limited (1992) 174 CLR 178;

Minister for Local Government v South Sydney City Council (2002) 123 LGERA 367;

N&S Olivieri Pty Ltd v Fairfield City Council (2002) 121 LGERA 90;

National Parks and Wildlife Service v Stables Perisher Pty Ltd (1990) 20 NSWLR 573 ;

The ancillary jurisdiction of the Court is provided for in s 16(1A) of the Court Act as follows: The Court also has jurisdiction to hear and dispose of any matter not falling within its jurisdiction under any other provision of this Act or under any other Act, being a matter that is ancillary to a matter that falls within its jurisdiction under any other provision of this Act or under any other Act.
The jurisdictional issue is not arid. For the purposes of hearing and disposing of a s 12B appeal, this Court, if it has jurisdiction, has all the functions and discretions which the Board had: s 39(2) of the Court Act. Hence, a s 12B appeal is a merits appeal. If this Court does not have jurisdiction, then jurisdiction rests with the Supreme Court but it has only a judicial review jurisdiction. Relief by way of judicial review is ordinarily discretionary and is not, as such, concerned with the factual merits but with observance of legality: Griffith University v Tang (2005) 221 CLR 99 at 153 [155].
The preliminary issue is to be determined on the basis of AGL’s application to this Court, the pleadings and the limited evidence before me comprising documents recording and relating to three decisions made by the Board which AGL seeks to tie back to s 12B so as to found jurisdiction.
AGL made two applications or claims to the Board under the MSC Act, both of which the Board rejected: (a) an application for a certificate under s 15B (3A) of the MSC Act ; (b) a claim for compensation under ss 12 and 12A.
The Board’s three decisions which AGL contends, and the Board denies, attract jurisdiction under s 12B are as follows: (a) a decision to refuse to issue AGL with a s 15B(3A) certificate because to do so would remove the bar in s 15(5)(b) to entertainment and payment of AGL’s compensation claim; (b) a decision to refuse to entertain AGL’s compensation claim under ss 12 and 12A because AGL did not have a s 15B(3A) certificate as required by s 15(5)(b); (c) a decision that ss 12 and 12A do not provide for AGL’s compensation claim insofar as it related to anticipated subsidence. The Board submits that this was not a decision and was not put forward as a reason for refusing to entertain AGL’s compensation claim, and says it was only an expression of the Board’s view.
It is common ground, and I accept, that if any of the Board’s decisions is appellable under s 12B but the others are not, then the others are appellable in the ancillary jurisdiction under s 16(1A) of the Court Act.

AGL’s application to the Court states that it is: (a) an “Appeal under s 12B of the Mine Subsidence Compensation Act 1961 against the decision of the Board as to non-payment from the Fund constituted under s 10 of the Act pursuant to the Applicants’ claim for $2,392,229.29 and ongoing costs under the Act”; and (b) a “ Further application under s 16(1A) of the Land and Environment Court Act 1979 in relation to the decision of the Board to refuse to grant the applicants a certificate under s 15B of the MSC Act ”.
In summary, AGL’s amended points of claim relevantly plead as follows: (a) The second applicant is the owner and operator of the Wilton to Horsely Park natural gas pipeline which it bought from the first applicant in 1985 and which runs through the Appin Mine Subsidence District proclaimed under the MSC Act (pars 1-4); (b) the pipeline was constructed, and commenced and continued to operate, with the approval of the Board. The approval is to be inferred from certain facts, matters and circumstances (para 39); (c) alternatively, if there was no such approval under s 15(3) of the MSC Act , the construction would have met the requirements of s 15B(3) had the Board’s approval been obtained. This is to be inferred from the same facts, matters and circumstances (para 40); (d) from May 1998 to April 2003 subsidence and other ground movements occurred in the vicinity of the pipeline due to mining; from May 2003 the pipeline suffered damage; and from June to September 2003 AGL undertook preventative and mitigatory works as a result of the subsidence and to ensure that the pipeline was operating within statutory pressure limits during future mining (pars 49 – 51); (e) from September 2003 to September 2004, subsidence and other ground movements occurred in the vicinity of the pipeline due to mining; and from October 2003 to February 2004 AGL undertook preventative and mitigatory works as a result of the subsidence and to ensure that the pipeline was operating within the statutory pressure limits during future mining (pars 52 to 54); (f) AGL spent $2,392,229.29 on works up to 30 June 2004 to prevent damage to the pipeline that would otherwise be caused by the subsidence that commenced as a result of the mining operations (para 55); (g) the Board refused in a letter dated 13 December 2005 (and previous correspondence) to issue a certificate under s 15B of the MSC Act , for which AGL had applied in a letter dated 23 April 2003, on grounds stated in the Board’s letter of 29 July 2005. Contrary to what was asserted in the Board’s letters of 28 April 2003 and 29 July 2005, the pipeline was constructed, and its operation commenced and continued, with the approval of the Board, and its construction was in accordance with that approval; or alternatively was such that any departure from it was not required to be rectified within the meaning of s 15B(3) had the Board’s approval been obtained under s 15B(3). In the circumstances, the Board was required to issue a certificate pursuant to s 15B(3) (pars 56-60); (h) alternatively, if the pipeline was not constructed and operated with the Board’s approval etc, the construction would have met the requirements of s 15B(3) had the Board’s approval been obtained under s 15(3) at the time of its construction (para 61); (i) further, it was and is appropriate to issue a s 15B certificate pursuant to s 15B(3A) (para 62); (j) alternatively to paragraphs 56 to 60, the Board’s decision to refuse a s 15B certificate was vitiated by jurisdictional error, improper purpose, failure to take into account relevant considerations, taking account of irrelevant considerations, error of law and manifest unreasonableness (para 63); (k) by letter dated 28 September 2004, AGL made its first compensation claim under ss 12 (1)(a) and (b) and s 12A(1)(b) for $2,392,229.29 relating to work undertaken. The claim was based on two grounds stated in AGL’s letters of 24 March 2004 and 28 September 2005. By letter dated 13 December 2005 (and previous correspondence), the Board refused that claim. That decision and the decision conveyed by the Board’s letter of 29 July 2005 was a decision as to “ the amount of payment ” from the Fund pursuant to ss 12 and 12A (pars 64-67B). (l) the Board’s grounds of refusal of the first compensation claim were stated in the Board’s letter of 14 October 2005 (para 68); (m) AGL appeals pursuant to s 12B from the decision to refuse the first compensation claim on five grounds (para 69):

The Board communicated this decision to AGL in a letter dated 29 July 2005. Decision to Refuse to Entertain AGL’s Claim under ss 12 and 12A. Decision that ss 12 and 12A do not Provide for Anticipated Subsidence Claims
On 28 September 2005, AGL wrote to the Board and addressed each of the three reasons communicated in the Board’s letter of 29 July 2005.
As to the first reason, AGL referred to an object of the 1989 amending legislation which introduced s 15B(3): “to extend the compensation provisions to improvements or subdivisions that have met all requirements except prior approval”. AGL stated there was nothing to suggest that the pipeline had not met all requirements except prior approval. AGL suggested that there was no reason for the Board to deny original approval to the pipeline at any time prior to its construction, and no reason to deny AGL a s 15B(3A) Certificate.
As to the second reason, AGL stated that “it is entirely inappropriate for the Board to consider the effect of granting the section 15B(3A) Certificate when making this decision. The effect of granting the Certificate will be the entertainment and payment of AGL’s claim – the very purpose of the power given to the Board under s 15B to grant such a Certificate…the Board’s real motive is to seek to avoid payment to AGL out of the fund. This is achieved by refusing the s 15B(3A) Certificate to AGL when it plainly ought to be granted. This is an abuse of power…”.
As to the third reason, AGL said that the delay in applying for the certificate was not a sustainable reason for refusing it. AGL’s letter concluded by stating that upon a proper reading of sections of the Act and the stated objects, “it is clear that payment pursuant to the Application, as well as the issue of a s 15B(3A) Certificate, is well within and clearly serves the objects and purposes of the Act”.
The Board’s letter of reply to AGL of 14 October 2005 addressed both AGL’s application for a s 15B(3A) certificate and its compensation claim. As to the application for a certificate, the letter stated that unless additional information is provided by AGL, which demonstrates that “it is appropriate having regard to the circumstances of the case” to issue a certificate under s 15B(3A) of the MSC Act, the Board does not propose to reconsider its decision to refuse to issue a certificate, for the reasons stated in the Board’s letter of 29 July 2005. As to the compensation claim, under the heading “AGL’s Application for Payment” the letter stated: Given the Board’s decision to refuse to issue a certificate , AGL’s claims under ss. 12(1) and 12A(1)(b) of the Act cannot be entertained, by reason of s. 15(5)(b). Your comments on the application of s. 15(5)(b) to s. 12A(1)(b) in your letter of 28 September 2005 are noted. However, the Board respectfully disagrees with your interpretation of s. 15(5)(b).

AGL submits that the Court’s power as a superior court of record should be construed most liberally and amply, and that the words “as to” in s 12B are extremely wide. AGL cited a number of authorities to which I refer later.
AGL submits that each of the Board’s decisions is a decision as to one or both of the two matters identified in ss 12B(a) and (b) of the MSC Act.
As to the first decision to refuse a s 15B(3A) certificate (communicated in the 29 July 2005 letter), AGL submits that it is a decision within the meaning of s 12B(b) “as to the amount of the payment from the fund”. This is because the Board gave as one of its reasons the entitlement of AGL to payment from the Fund to which such a certificate (if issued) would give rise. That reason was not merely hypothetical. At that time, there was in existence an application by AGL for compensation from the Fund, and the Board was aware of the application. The two were integrally connected, as the Board’s letters show. AGL submits that this decision was a decision “as to”, in the sense of “with respect to” or “with regard to”, “the amount of the payment from the Fund” within the meaning of s 12B(b). Given that one of the purposes of the issue of a s 15B certificate is to facilitate the entitlement to a claim for compensation, AGL submits it would be strange if the words “as to the amount of payment from the Fund” in s 12B(b) did not extend to a decision to refuse to issue a s 15B certificate, at least in a context such as the present case where the application for the issue of such a certificate was so intimately bound up with the application for the payment of compensation from the Fund. AGL submits that, so understood, there is no need for, nor is it surprising, that there is no express right of appeal in respect of applications for s 15B certificates.
As to the second decision that AGL’s compensation claim could not be entertained by reason of s 15(5)(b) of the MSC Act (communicated in the Board’s 14 October 2005 letter), AGL submits that it comes within s 12B(b). AGL says that it was in substance and effect a decision that no payment should be made in respect of the claim. Section 15(5)(b) equates or links non-entertainment of a claim with its non-payment. A similar equation or linking occurs in ss 12(1) and (1A). A decision that no payment should be made is plainly a decision “as to amount of payment” within the meaning of s 12B(b).
As to the third decision that an anticipated subsidence claim could not be made under ss 12 or s 12A (communicated in the 14 October 2005 letter), AGL submits that it falls within s 12B(a).
AGL submits that the Board’s letter of 13 December 2005 letter contained decisions under both limbs of s 12B given that it repeated and adopted the position that the Board had previously stated. The letter said that “[The] Board resolved that they have not been presented with anything…to warrant a change in their position”. This decision in substance and effect was twofold: there would be no payment both because of the non-issue of a certificate and because the claim was in respect of damage from anticipated subsidence which was not damage in respect of which a claim for compensation could be made under ss 12 or 12A.

The Board submits that AGL’s application to the Court is really an appeal against the Boards refusal to grant AGL a certificate under s 15B(3A) which is a precondition to entertainment of a claim for compensation, that no such appeal is available, and that AGL’s only avenue of redress is to seek judicial review in the Supreme Court. The Board submits that the application is not within the scope of s 12B for two cumulative reasons: (a) because the decisions impugned are not decisions refusing a claim under ss 12 or 12A; and (b) in any event, because the Board’s decisions fall outside the available grounds of appeal contained in s 12B(a) and (b).
In relation to the first reason, the Board submits that its letters do not purport to determine AGL’s claims for compensation under ss 12 and 12A. The subject matter of the letter of 29 July 2005 is AGL’s application for a s 15B certificate. The letter of 14 October 2005 makes clear that the Board has correctly refused to entertain the compensation claim in the absence of a s 15B certificate. The letter of 13 December 2005 takes the matter no further.
In relation to the second reason, the Board submits that its decision was as to the issue of a s 15B certificate, not as to anything referred to in ss 12B(a) or (b). Section 12B(a) permits appellate review of the Board’s decision on the questions of causation and reasonable anticipation involved in ss 12 and 12A claims. Section 12B(b) looks to the quantum (in particular, the “proper and necessary expense” in ss 12 and 12A claims). The words in ss 12B(a) and (b) do not extend to a complaint about the issue of a s 15B certificate, whose only link to a compensation claim is that without which the claims cannot be entertained: s 15(5)(b). Nor do they extend to advice from the Board that a claim cannot be entertained by reason of the absence of a certificate. Section 15(5)(b) barred the Board from entertaining the claim because AGL was in contravention of s 15 by erecting the pipeline without the Board’s approval and did not have a s 15B(3A) certificate. The distinction between a decision under ss 12 and 12A and a decision under s 15B is reflected in s 7A.
In relation to the statement in the Board’s letter of 14 October 2005 that ss 12 and 12A do not apply to expenses incurred in relation to anticipated subsidence, the Board submits that s 12B(a) did not apply because this was not expressed to be a basis for the refusal of compensation but was only a helpful expression of the Board’s view that there was a further problem. The Board says that if it were to be viewed as a basis for rejecting the claim, although that would bring it closer to s 12B than anything else submitted by AGL, it still would not be within s 12B(a).

The Land and Environment Court is a superior court of limited jurisdiction, such that it is necessary in respect of any proceedings to identify a statutory conferral of jurisdiction: Court Act s 16, National Parks and Wildlife Service v Stables Perisher Pty Ltd (1990) 20 NSWLR 573 (CA) at 580G. Its first duty is to satisfy itself that its jurisdiction has been properly invoked, and its jurisdiction depends upon the facts: Federated Engine-Drivers and Firemen’s Association of Australasia v Broken Hill Proprietary Company Limited (1911) 12 CLR 398 at 415; Hazeldell Limited v Commonwealth (1924) 34 CLR 442 at 446.
The following three general propositions as to jurisdiction may be accepted, as submitted by AGL.
First, it is inappropriate to read provisions conferring jurisdiction and granting powers to a court by making implications or imposing limitations which are not found in the express words: Owners of The Ship “Shin Kobe Maru” v Empire Shipping Co Inc (1994) 181 CLR 404 at 421; Knight v FP Special Assets Limited (1992) 174 CLR 178 at 205; CDJ v VAJ (1998) 197 CLR 172 at 185-186.
Secondly, a grant of power or jurisdiction on a court should be construed in accordance with ordinary principles and the words used should be given their full meaning unless there is something to indicate to the contrary: Knight v FP Special Assets Limited (1992) 174 CLR 178 at 205.
Thirdly, given that powers which are conferred on courts are powers which must be exercised judicially and in accordance with legal principle, the most liberal construction should be accorded to a court’s powers and jurisdiction: Knight v FP Special Assets Limited (1992) 174 CLR 178 at 205. Where a recipient of a power is a superior court of record, it would be contrary to principle for the power to be given anything other than the most liberal and ample construction (see Re JJT; Ex Parte Victoria Legal Aid (1998) 195 CLR 184 at 201.5 and the cases cited in footnote 64) and certainly as liberal a construction as its terms and context permit: PMT Partners Pty Ltd (In Liquidation) v Australian National Parks and Wildlife Service (1995) 184 CLR 301 at 313.
The jurisdictional question in the present case is whether AGL’s application to the Court is an “appeal” under s 12B of the MSC Act. An “appeal”, as the Board submits, is a creature of statute. Its content is determined by the statute which creates it: Eastman v R (2000) 203 CLR 1 at 11 [14], State Rail Authority of New South Wales v Coastline Constructions Pty Ltd (In liquidation) (1999) 160 ALR 588 at [72]. The appeal created by s 12B is expressly limited to two grounds, namely, that the Board has made a decision (a) as to whether damage has arisen from subsidence or could reasonably have been anticipated, or (b) as to the amount of payment from the Fund.
On the face of it, s 12B has a very wide operation because of the words “as to”. In my opinion, the words “as to” are a sharp sword that can penetrate strong armour – but only if the armour is of a kind described in limbs (a) or (b) of s 12B. In a related context (the construction of a court’s power to make orders), the words “as to” connote a broad or wide nexus with the relevant subject matter: Re JJT; Ex Parte Victoria Legal Aid (1998) 195 CLR 184 at 189.1; 189.6; 207.6 and 219.5. In that case, Gaudron J drew a distinction between a simple power to make an order “for costs” and a power to make an order “as to costs”. This latter, broader power was said to encompass power to order one party to proceedings to provide another party with funds to conduct the proceedings.
The Macquarie Dictionary defines the phrase “as to” as meaning “with regard or respect to”. The phrase “with respect to” has been described as “as wide a legislative power as can be created. No form of words has been suggested which could give a wider power”: Bank of NSW v The Commonwealth (1948) 76 CLR 1 at 186. The similar statutory words “relate to” are “extremely wide”: Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355. In that case the High Court said at 387 [87]: The Parliament has not said that the ABA must give preferential treatment to Australian programs. It has said that the ABA must determine standards that ‘relate to ... the Australian content of programs’ (s 122(2)(b)). The words ‘relate to’ are ‘extremely wide’: Tooheys Ltd v Commissioner of Stamp Duties (NSW) (1961) 105 CLR 602 at 620 , per Taylor J. They require the existence of a connection or association between the content of the Standard and the Australian content of programs. What constitutes a sufficient connection or association to form the required relationship is a matter for judgment depending on the facts of the case. No doubt the association or connection must be a relevant one in the sense that it cannot be accidental or so remote that the Standard has no real effect or bearing on the Australian content of programs. But, without attempting to provide an exhaustive definition, once the Standard appears to prohibit, regulate, promote or protect the Australian content of television broadcasts the required relationship will exist. Furthermore, the fact that the Standard also deals with matters other than the Australian content of programs will not necessarily negate the existence of a relevant relationship. A standard can relate to the Australian content of programs although it also regulates other matters .
Although regard should be had to the dictionary meaning of words, we do not, as Justice Learned Hand once said, “make a fortress out of a dictionary”: Cabell v Markham (1945) 148 F 2d 737 at 739. That is because words do not exist in splendid isolation. They exist, and must be understood, in their legislative context: State Government Insurance Office (Qld) v Rees (1979) 144 CLR 549 at 560 – 561 per Mason J; Workers’ Compensation Board (Qld) v Technical Products Proprietary Limited (1988) 165 CLR 642 at 646-647 per Wilson and Gaudron JJ; K & S Lake City Freighters Pty Ltd v Gordon Gotch Ltd (1985) 60 ALR 509 at 514 per Mason J; CIC Insurance Ltd v Bankstown Football Club Ltd (1997) 187 CLR 384 at 408 per Brennan CJ, Dawson, Toohey and Gummow JJ; Cross on Statutory Interpretation (3rd ed, 1995) 165 – 166. “Legal words are never susceptible to interpretation standing by themselves, and in any case they never stand by themselves”; Spigelman CJ, “Principle of Legality and the Clear Statement Principle” (2005) 12 ALJ 769 at 772, citing Sunstein “Principles, Not Fictions” (1990) 57 U Chi L Rev 1247.
The words “in respect of” (similar to the words that appear in the Macquarie Dictionary when you look up “as to”) take their meaning from their context and have a wide meaning, although it goes somewhat too far to say that they have the widest possible meaning of any expression intended to convey some connection or relation between the two subject matters to which the words refer: Commissioner of Taxation v Scully (2000) 201 CLR 148 at 171 [39] where Gaudron, McHugh, Gummow and Callinan JJ held: We do not think that the words ‘ in respect of’ enlarge the class of payments to the extent for which the respondent contends. It is well accepted that such words take their meaning from their context. Thus, in Workers' Compensation Board (Q) v Technical Products Pty Ltd (1988) 165 CLR 642 at 653-654, Deane, Dawson and Toohey JJ said: Undoubtedly the words ‘ in respect of ’ have a wide meaning, although it is going somewhat too far to say, as did Mann CJ in Trustees Executors & Agency Co Ltd v Reilly [1941] VLR 110 at 111 that ‘ they have the widest possible meaning of any expression intended to convey some connection or relation between the two subject matters to which the words refer '. The phrase gathers meaning from the context in which it appears and it is the context… which will determine the matters to which it extends.
In my opinion, in interpreting s 12B, two propositions should be accepted. First, an ample and liberal construction should be accorded to s 12B because it confers jurisdiction on a superior court. Secondly, the words “as to” in s 12B connote a very wide nexus with the subject matter of limbs (a) and (b). These are reasons why it is inappropriate to struggle to confine s 12B in a way that is not fully sustained by the language, structure and purposes of the MSC Act.
Section 16(1A) was enacted following National Parks and Wildlife Service v Stables Perisher Pty Ltd (1990) 20 NSWLR 573 (CA). It has been held that “ancillary” is to be read as “incidental”, “accessory” or “auxiliary”: eg NTL Australia Pty Ltd v Minister For Land and Water Conservation (2001) 112 LGERA 403 at 411 – 413; Scharer v State of NSW (2001) 53 NSWLR 299 (CA) at 308 [51]. Thus, there must be another “matter” falling within jurisdiction, in relation to which the s 16(1A) matter is incidental, accessory or auxiliary. See also Neighbourhood Association DP 285121 v Murray Shire Council (2001) 117 LGERA 95, N&S Olivieri Pty Ltd v Fairfield City Council (2002) 121 LGERA 90, Cachia v Colaco [2002] NSWLEC 64, Minister for Local Government v South Sydney City Council (2002) 123 LGERA 367 and Porter v Hunters Hill Council (2003) 131 LGERA 144 at [50] – [65].
It is common ground, and I accept, that if any one of the Board’s decisions is appellable under s 12B, then the other decisions are appellable in the ancillary jurisdiction under s 16(1A) of the Court Act.

If AGL had approval from the Board to erect its pipeline (as it now pleads in these proceedings), it did not need a s 15B certificate in order to make a claim for compensation under ss 12 or 12A. If AGL had no approval from the Board to erect its pipeline (as it alternatively pleads), then it was in contravention of the Act: s 15(7). If it was in contravention, then no claim could be “entertained or payment made under the Act in respect of such damage” unless the Board issued a certificate under s 15B(3A) in respect of the pipeline: s 15(5)(b). In other words, the issue of a s 15B(3A) certificate removed a bar or condition precedent to entertainment or payment of AGL’s claim under ss 12 and 12A.
Removal of that bar is not the only reason why a person may apply for a s 15B(3A) certificate. Another reason is that the certificate is conclusive evidence in favour of a person having an estate or interest in the land that the statutory requirements relating to the improvement have been complied with: s 15B(4). This may, among other things, assist such a person in obtaining mortgage finance: see the Second Reading Speech to the 1989 amending Bill (set out above). As refusal of a s 15B(3A) certificate may be unrelated to an existing or contemplated compensation claim under ss 12 or 12A, it cannot be that all decisions to refuse such a certificate fall within s 12B(b).
Two different doorways lead to a s 15B certificate and each door has its own key. To unlock the first door, under s 15B(3), you have to satisfy the Board that your improvement was erected in accordance with the Board’s approval or that any departure from any such approval is such that it need not be rectified. If satisfied, the Board is obliged to issue you with a certificate. It is harder to unlock the second door, under s 15B(3A). To unlock that door, you have to satisfy the Board that your improvement would have met the requirements of subsection (3) had the Board’s approval been obtained and that is it “appropriate having regard to the circumstances of the case” that the Board issue a certificate. If the Board is satisfied as to both those matters, then it still has a discretion whether to issue a certificate and is not obliged to do so.
AGL’s Points of Claim plead, in the alternative, the existence of all matters in respect of which the Board has to be satisfied before either door can be unlocked. The Board’s Points of Defence do not plead to those matters. They are to be assumed for present purposes.
Notwithstanding its subsequent pleading, AGL tried to enter through the second door only, under s 15B(3A). This is evidenced by the repeated references to a s 15B(3A) certificate – not to a s 15B(3) certificate – in the decisions of the Board and in the correspondence between the parties. In other words, AGL applied for a certificate solely on the basis that the Board had not approved erection of the pipeline. If AGL had applied on the basis that the Board had approved erection of the pipeline, then there would have been a reference to a s 15B(3) certificate.
The Board’s letter of 29 July 2005 said that it had decided to refuse AGL’s application for a s 15B(3A) certificate because it was not satisfied under s 15B(3A)(b) that it was appropriate to do so having regard to the circumstances of the case. One of those circumstances was identified as: “Issue of a certificate under s 15B(3A) will mean the entertainment and payment of a compensation claim from AGL under the Act is not precluded by operation of ss 15(5)(b)”. In other words, issue of the certificate would remove the s 15(5)(b) bar to entertainment and payment of AGL’s compensation claim under ss 12 and 12A. The issue is whether, because this reason was given, it was a decision within limb (b) of s 12B “as to the amount of the payment from the Fund”.
In my opinion, this decision does not come within s 12B for two reasons.
First, s 12B is expressly limited in scope to prescribed decisions on an application by a person “claiming compensation under section 12 or 12A”. An application for a certificate under s 15B(3A) is not a claim for compensation under ss 12 or 12A. There are at least three classes of decisions under the MSC Act. In the first class are compensation claim decisions under ss 12 or 12A. They are decisions on the merits of the claim. In the second class are approval application decisions under s 15. In the third class are certificate application decisions under s 15B. The three classes are reflected in s 7A. In my opinion, having regard to the structure and text of the Act, s 12B is only concerned with the first class, compensation claim decisions under ss 12 or 12A. Section 12B contemplates that the Board has decided a ss 12 or 12A claim on its merits and permits an appeal from that decision in accordance with limbs (a) and (b) of s 12B. Limb (a) of s 12B permits a merits appeal as to causation and reasonable anticipation which are factual elements of ss 12 and 12A. Limb (b) permits a merits appeal as to the amount of the payment on a claim under ss 12 or 12A. In contrast, a decision to refuse a certificate under s 15B(3A) means that the merits of the compensation claim will not be considered at all: s 15(5)(b).
Secondly, the reason for refusal of the certificate on which AGL relies does not convert the refusal into a decision “as to the amount of payment from the Fund” within limb (b) of s 12B. Limb (b) includes, I think, a decision on the merits to pay a ss 12 or 12A claimant nothing, as well as a decision to pay such a claimant a specified amount. However, it does not follow that because the effect of the refusal of a s 15B (3A) certificate is that AGL receives nothing (assuming the Board had not approved erection of the pipeline), then the refusal becomes a decision contemplated by limb (b) of s 12B. “The amount of the payment from the Fund” in limb (b) is the amount struck by the Board after the requirements of causation and reasonable anticipation in ss 12A and 12A are satisfied. The reason given by the Board for its refusal to grant AGL a s 15B(3A) certificate concerned a different subject, namely the removal of the s 15(5)(b) bar or condition precedent to entertainment or payment of AGL’s ss 12 and 12A claims. The elastic words “as to” in s 12B(b) do not stretch to that different subject because it is not mentioned in s 12B(b). Decision not to Entertain AGL’S Compensation Claim because AGL did not have a s 15B(3A) Certificate
I turn next to the Board’s decision to refuse to entertain AGL’s claim under ss 12 and 12A because AGL did not have a s 15B(3A) certificate.
The Board was obliged to refuse to entertain or pay AGL’s compensation claim because s 15(5)(b) provides that, if the Board had not approved erection of the pipeline, “no claim shall be entertained or payment made under this Act” unless a certificate is issued under s 15B(3A). AGL had applied for that certificate but the application had been refused.
AGL submits that the non-entertainment of a claim and the non-payment which are both referred to in s 15(5)(b) are equated or linked - as they are in ss 12 and 12A - and that both are decisions “as the amount of the payment from the fund” within limb (b) of s 12B.
One way of testing this point is to ask the following question. If the Board’s decision had been that “no payment” would be made because a s 15B(3A) certificate had not issued (rather than that the claim would not be “entertained” for that reason), would it be a decision “as to the amount of the payment from the Fund” within limb (b) of s 12B? If the answer is “yes”, then it would be a rather perverse result if that decision was appellable in a merits appeal in this Court while a decision expressed in the alternative terms that the claim would not be “entertained” had to go off to the Supreme Court for judicial review. A way of avoiding this perverse result would be to accept that there is no difference in substance or effect in the context of s 15(5)(b) between a claim not being “entertained” and a payment not being made. Consequently, a decision expressed in either of those ways under s 15(5)(b) could be regarded as appellable under s 12B(b).
However, I would answer the question that I have posed “no”. I accept that s 12B(b) includes a decision on the merits to make no payment. I also accept that a decision not to entertain the claim on the ground that no certificate has issued under s 15B(3A), has the effect that no payment would be made (assuming that the Board had not approved erection of the pipeline). However, in my view, the words “the amount of the payment” in s 12B(b) refer to the striking of the “amount”, or the striking of the quantum of the “expense” or “compensation”, referred to in ss 12 and 12A after it is established, or on the premise, that damage has arisen from subsidence or could reasonably have been anticipated. I do not think that the words “the amount of the payment” refer to a decision by the Board that s 15(5)(b) bars it from making a payment or entertaining a claim under ss 12 or 12A because the applicant has no s 15B(3A) certificate.
Two classes of disappointed claimants under ss 12 and 12A may be identified. One class has had their claims looked at on the merits. The other class has not had their claims looked at on the merits because they do not have s 15B(3A) certificates as required by s 15(5)(b). The distinction between the classes is reflected in s 7A. The first class in entitled to a s 12B merits appeal in this Court. The second class falls outside s 12B and can only go to the Supreme Court for judicial review. In the present case, the Board’s decision is in the second class. Decision that Anticipated Subsidence Claim is not Compensable
Finally, I turn to consider the fact that the Board in its letter of 14 October 2005 said that ss 12 and 12A do not provide for AGL’s claim based on anticipated subsidence. AGL submits that this was a decision within limb (a) of s 12B “as to whether damage has arisen from subsidence or could reasonably have been anticipated”. The Board submits that it was not a decision nor was it expressed to be a basis for rejecting the compensation claim: that it was only an expression of the Board’s view that there was a further problem; and that even if it is viewed as a basis for rejecting part of the compensation claim it still would not fall within s 12B.
The Board’s letter of 14 October 2005 relevantly stated: Given the Board’s decision to issue a certificate, AGL’s claims under ss. 12(1) and 12A(1)(b) of the Act cannot be entertained, by reason of s. 15(5)(b)….

This should be construed, in my view, as saying that there was a second reason (additional to the absence of a certificate) why AGL could not recover under ss 12 and 12A to the extent that their claim related to anticipated subsidence. The second reason was that AGL’s expenses incurred in relation to anticipated subsidence were not compensable under those sections. The Board thereby responded in the negative “as to whether damage has arisen from subsidence or could reasonably have been anticipated”.
Was this the Board’s “decision”? In Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321 at 335 Mason CJ (with whom Brennan and Deane JJ agreed) observed: The word [decision] has a variety of potential meanings. As Deane J noted in Director-General of Social Services v Chaney ; (1980) 47 FLR 80 at 100, (1980) 31 ALR 571 at 590 in the context of judicial or administrative proceedings it ordinarily refers to an announced or published ruling or adjudication. In such a context, the word may signify a determination of any question of substance or procedure or, more narrowly, a determination effectively resolving an actual substantive issue. Even if it has that more limited meaning, the word can refer to a determination whether final or intermediate or, more narrowly again, a determination which effectively disposes of the matter in hand: see Chaney.
“The interpretation of words in an unrelated Act is unlikely to be of significant guidance”: Vice Chancellor, Macquarie University v FM [2005] NSWCA 192 at [39] per Spigelman CJ with whom Tobias JA and Brownie AJA agreed. Some assistance may be derived from the interpretation of the word “decision” in the not dissimilar context of an appeal from a decision under the Administrative Appeals Tribunal Act 1975 (Cth). The statute defined the word widely but non-exhaustively. The Full Federal Court held that where an authority expressed a view which had a practical effect upon an application, it made a “decision” even though it did not alter rights nor impose a liability nor decide the matter judicially in a final sense: Duncan v Defence Force Retirement and Debt Benefits Authority (1980) 47 FLR 256 at 260 (Brennan, Keeley and Lockhart JJ). A reviewable decision is defined restrictively in s 3(1) of the Administrative Decisions (Judicial Review) Act 1977 (Cth) as a “decision of an administrative character made, or proposed to be made, or required to be made…under an enactment”. Here, the High Court has held that it would generally be necessary to point to a decision which is final or operative and determinative, at least in a practical sense of the issue of fact falling for consideration: Griffith University v Tang (2005) 221 CLR 99 at 122 [61], following Bond (above) at 337. I think that this interpretation is not of significant guidance because the statutory definition on which it is based is too removed from the present case.
The letter of 14 October 2005 at one point referred to “the Board’s view” although its stated position at an earlier point was not prefaced by such words. Let it be assumed that the Board was expressing its “view”. As a matter of language, there is a difference between a “decision” and a “view”, but the view of the Board was a view on a question of entitlement to recover under ss 12 and 12A. It does not strain ordinary language to say that, in giving its view, the Board decided that question. The decision operated to determine a question, being a question that affects AGL’s rights. Form would trump substance if it were to be said that the Board’s communicated view did not decide the question.
In my opinion, the Board made a “decision” contemplated by limb (a) of s 12B.
It is common ground, and I accept, that if this decision falls within s 12B, then the other decisions of the Board come within the Court’s ancillary jurisdiction.