Construction of s 12A(1)(b)
143 The subject matter of the paragraph involves a claim for an identified expense, where the Board forms a relevant opinion. Critically, that opinion is as to the reasonable anticipation of damage arising from a subsidence, that not being the view which the claimant actually formed (although in practical terms it is likely that the claimant did form such an opinion). Importantly, the Board is not directed to assess the claimant's actual opinion at the time that it may have been formed, but, with the light of hindsight, to determine whether such an opinion could reasonably have been formed, so as to anticipate damage, absent the preventative measures. In formulating that opinion, the Board must assess the likelihood of damage arising from a subsidence, being a subsidence that "has taken place". If the Board were required to form an opinion as to the reasonableness of the claimant's conduct in incurring the expense, when it was incurred, and so as to exclude reference to anticipated subsidence, the section would have referred to subsidence that 'had taken place'. That language was not used.
144 Once it is understood that the relevant assessment is not that made by the claimant, the relevant time at which the section speaks, is that at which the Board forms its opinion. It is, on that view, necessary that a subsidence "has taken place", but prior only to that time. It is not necessary that it had taken place at the time the expense was incurred, nor at a point prior to that time, such as when the claimant decided to incur the expense.
145 It remains to consider the aspects of the Act which were thought in Wambo to support a different construction. The first two reasons involved a comparison between s 12(1)(a) and s 12A(1)(b). There are three reasons for not placing weight upon that comparison. The first is that the comparison is justified by the proposition that the provisions are complementary in relevant respects. However, that is to assume the answer to the question as to the proper construction of s 12A(1). The second reason, which is not independent of the first, is that complementarity is only achieved by ignoring what has been identified above as the central feature of the second limb of par (b) in sub-s 12A(1), namely that it is posited upon the opinion of the Board. The third answer is that by not taking into account the scope of s 12(1)(b), which contemplates expense incurred with respect to damage which has not yet occurred, there is an artificial construct placed on s 12, in order to conclude that it does not address future events, which are solely the province of s 12A.
146 The third argument relied upon by this Court in Wambo, at [30] and repeated at [32], was that the argument below had relied upon an assumption that subsidence and damage were simultaneous. This aspect has been partly addressed above at [135], two answers being given: first that, although it was part of the reasoning in Wambo in the Land and Environment Court, it was not a feature of the argument in this case. The second answer is that, even if the assumption, so expressed, were erroneous, the fact that subsidence and damage could readily be simultaneous or close in time is a matter which should not be disregarded.
147 The fourth argument relied on in Wambo depended on the operation of s 13A. It was relied on for two different purposes. First, s 13A is said to be clearly directed to anticipated subsidence, a conclusion reached from the different language adopted in s 13A, compared with s 12A(1)(b) at [32]. Secondly, it is said to provide an answer, at least in part, to the complaint that Parliament cannot have intended to provide a remedy with respect to anticipated damage only when the damage and subsidence were separated in time. Thus, it is argued, s 13A provides a power for the Board to carry out preventative or mitigating works in cases where damage is anticipated by reason of subsidence which has not yet occurred: at [33]-[34].
148 There are a number of countervailing considerations. First, s 13A only empowers the Board to carry out such works if it is of the opinion that to do so would "reduce the total prospective liability of the Fund". If the owner of the improvements (or others) were in danger of suffering a detriment which would not be recoverable as compensation from the Fund should the damage occur, but the likely cost to the Fund would be the same whether the works were undertaken before or after the damage, s 13A would not be engaged. Secondly, it is by no means self-evident that to identify damage that the Board anticipates "would … be incurred by reason of subsidence" involves anticipated subsidence, as opposed to anticipated damage from existing subsidence. Undoubtedly the wording is different from that in s 12A(1)(b), but so is the principal purpose of the provision, focussing on the comparative cost to the Fund of different courses of action. Thirdly, the structure of the provision owes something to an entirely separate purpose, which is to permit the Board to intervene in anticipation of damage where the required works are to be carried out on land other than that on which the improvements stand.
149 In any event, the construction accepted above allows for s 12A(1)(b) and s 13A to have different consequences. Under s 13A, if the Board intervenes it takes the risk that prevention was unnecessary because the feared subsidence did not occur. Under s 12A, where the claimant acts to protect its own property, it takes the risk that it will not recover if the subsidence does not occur before the Board determines its claim.
150 Part of the fifth reason given by the Court in Wambo was that the Second Reading Speech of the Minister, introducing the 1969 amendments to the Act, indicated that the power to carry out preventative works with "the objective of reducing the prospective liability of the Fund" (Wambo at [34]) was intentionally left to the Board. That would be quite understandable, but it does not mean that the owner was given no power under s 12A to carry out preventative works, and recover the necessary and proper expense incurred, in anticipation of subsidence. Further, as already noted, recovery of a claim under s 12A(1)(b) will only be permitted where the Board forms the opinion as to the identified factors.
151 The reasoning in Wambo further called in aid the fact that statements in the Second Reading Speech, to the effect that "the costs of prevention are often cheaper than of cure", were made in the context of s 13A and not in the context of s 12A. However, that aphorism accurately reflected the purpose of s 13A, namely to allow the Board to choose the cheaper course, which was not the underlying purpose of s 12A.
152 Finally, as part of the reliance on the Second Reading Speech, reference was made to the following statement (Hansard, 2 October 1969, Assembly) p 1551, col 1:
"It is recognised also that emergencies may occur when it might be necessary for the owner to carry out works to prevent or mitigate damage arising from a subsidence."
153 It was accepted in Wambo that that passage related to s 12A, the following sentence in the Second Reading Speech stating that "[i]n such cases proposed new s 12A(1)(b) will empower a claim to be made …". Of it, the Court said that it was "only in the context of emergencies (where presumably the Board's power under s 13A could not be exercised in a timely fashion) that it was contemplated that the owner of improvements would carry out preventative or mitigating works arising from a subsidence that had taken place": at [34].
154 With respect, that reliance is unpersuasive. Not only is there nothing in s 12A itself which limits the power of the owner to take preventative steps to cases of emergency, but, as the Chief Justice has pointed out at [89] above, the section envisages a claim where the preventative work, and the expense involved, are merely proposed. Nor is it immediately apparent why the Parliament would have assumed that the Board might not act in a "timely fashion": it appears to have done so in the present case.
155 Thus, not only does the Second Reading Speech not provide a limitation upon the exercise of the power under s 12A, but it also does not provide a legitimate basis of distinctive operation between that provision and s 13A. In fact, the last quoted passage in the Second Reading Speech suggests that the semantic differences between the two provisions were not significant, the Minister, referring to s 12A, rather than using the precise language of s 12A(1)(b) (arising "from a subsidence that has taken place") having used the language of s 13A ("arising from a subsidence"). If anything is to be drawn from that passage in the Second Reading Speech, it is that the reference to subsidence that "has taken place", was not intended as language of limitation.
156 Having stated (at [37]) that "some initial subsidence must have taken place before the subsection is engaged", the judgment in Wambo concluded (at [38]) that the section was "directed to the situation where subsidence has taken place but damage has not yet arisen therefrom but could reasonably be anticipated to do so if works to prevent or mitigate such anticipated damage are not performed." It then continued, adding a sixth ground in support of its preferred construction, namely that a claim for compensation or expenses under s 12A "shall be made", relevantly, "within three months after the day on which the expense to which the claim relates became known to the claimant": s 12A(2)(b). Construing s 12A(1) as requiring that subsidence merely occur "at or before the time of making the claim", introduced, the Court said, a temporal element which was itself "anomalous, if not irrational": at [39].
157 That characterisation was not entirely inapt, but invited comparison with the conclusion that the owner could recover its expense if willing to risk damage following quickly on a subsidence, but not if minded to take a more cautious approach. In any event, rejecting the time of claim, being the temporal reference point accepted by the primary judge (Lloyd J) in Wambo, does not provide much support for the preferred reference point, unless those are alternatives which exhaust the relevant possibilities. I would view the temporal limitation on making claims as a neutral consideration in the circumstances.
158 The Court then considered whether it were sufficient that subsidence occur before the claim was paid, rather than before the claim was made: at [40]. That contention was rejected, on the basis set out at [42], namely that:
"The requirement for damage that the owner could reasonably anticipate would have arisen or would arise ' from a subsidence that has taken place ' is temporally linked to the making of a claim, not to the payment of a claim already made."
159 That reasoning may be accepted: the time of payment has no point of reference in the language of the provision. However, its rejection fails to address the role to be played by "the opinion of the Board" in the structure of the provision.
160 The final arguments addressed in Wambo, at [44]-[46], although set out as supportive arguments, after the conclusion had been stated, are in fact a repetition of the aspects of statutory construction discussed above.
161 The Chief Justice adds to these reasons reliance upon the use of the indefinite article "a" before "subsidence" in s 12A(1)(b). His Honour relies upon this language as support for the requirement of "an actual, not a hypothetical occurrence": at [69]. That reasoning may also be accepted, but does not affect the conclusion reached above, which is to require actual subsidence, the question being by what stage the subsidence must occur.
162 Some of the difficulties with the reasoning in Wambo may be traced to the separate question considered in that case, stated by a judge of the Land and Environment Court, in the following terms:
"Whether for a proprietor to have an entitlement under section 12A(1)(b) of the Mine Subsidence Act 1961 (NSW) to claim compensation for expense incurred in preventing or mitigating anticipated damage to improvements:
(a) it was necessary for a subsidence to have occurred prior to the expenditure being incurred; or alternatively
(b) that the expense could be incurred prior to any subsidence occurring."
163 The formulation of the question was unfortunate in several respects. It did not follow the form of s 12A. In part that may have been because of the grammatical difficulties created by the form of the section, which does not in terms identify criteria for payment of a claim, but for the making of a claim. It is that feature which may well have distracted attention from the importance of the phrase "in the opinion of the Board". More importantly, the separate question assumed that the only relevant time was the time when the expenditure was incurred. As a result, the debate was not focused on other potentially relevant times, nor on the relevant time in a case where expenditure had not been incurred, but was merely proposed.
164 A second difficulty in Wambo was, as noted by Lloyd J in the Land and Environment Court, that it did not appear to have proceeded on agreed facts, and certainly not on found facts. Thus, his Honour stated that he did "not understand that any material facts in the present case are in dispute": at [2]. His Honour then noted that the relevant improvement (a conveyor), to which damage was feared from subsidence, was removed in two stages between February and November 2004: at [5]. The claim was apparently lodged on 19 February 2004, "for expenses [the applicant] incurred in dismantling and removing the conveyor": at [7]. It appears that, as at the date of claim, at least some of the expense (if not a substantial part thereof) had not yet been incurred. Nevertheless, it appears that the claim did not involve proposed expense. Further, it was not clear when subsidence occurred, nor when the mining operations took place: cf [6]. The claim was refused on 27 April 2005. Again, whether that was before or after subsidence occurred is not known.
165 These unsatisfactory features of the procedure adopted in Wambo render it difficult to be sure of the factual premise on which the argument was based.
166 The critical aspect of s 12A(1)(b), ignored in Wambo, is the express reference, in the second limb, to "the opinion of the Board". Giving full weight to that language, the provision is grammatically internally consistent. Had the relevant criterion been not the opinion of the Board but the reasonable anticipation of the owner, the section would naturally have referred to damage that 'the owner reasonably anticipated would otherwise have arisen, or would otherwise arise, from a subsidence that had taken place …'. In that case, the language would unambiguously referred to an opinion held at the time the expense was incurred or proposed in respect of subsidence which had then taken place. On that approach, Wambo would have been correct. But that is not the language used by the section: it refers to an opinion of the Board as to that which the owner "could reasonably have anticipated", not from a subsidence "that had then taken place" but from a subsidence that "has taken place". That construction must, in my view, refer to a subsidence which has taken place when the Board forms its opinion.
167 This reading of the provision has a second, consequential effect. It means that, despite the chapeau to sub-s (1), paragraphs (a) and (b) respectively identify the conditions of entitlement. The subsection thus serves two purposes, analogously to a provision which, by identifying the circumstances of exercise of the powers of a court, implicitly confers jurisdiction.