Mine Subsidence Board v Wambo Coal Pty Ltd

LEGISLATION CITED: Land and Environment Court Act 1979 Mine Subsidence Compensation Act 1961

CASES CITED: Cooper Brookes (Holdings) Pty Ltd v Federal Commissioner of Taxation (1981) 147 CLR 297 Network Ten Pty Ltd v TCN Channel Nine Pty Ltd (2004) 218 CLR 273

PARTIES: Mine Subsidence Board Wambo Coal Pty Limited

COUNSEL: A: P McEwan SC / M Seymour R: M Leeming SC / C Withers

SOLICITORS: A: Trisley Kilmurray, Solicitors, Newcastle R: Sparke Helmore Lawyers, Newcastle

LOWER COURT JURISDICTION: Land & Environment Court

LOWER COURT JUDICIAL OFFICER: Justice Lloyd

LOWER COURT MEDIUM NEUTRAL CITATION: Wambo Coal Pty Limited v Mine Subsidence Board [2006] NSWLEC 528

IN THE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL CA 40585/06 LED 30584/05

HODGSON JA SANTOW JA TOBIAS JA

15 June 2007 MINE SUBSIDENCE BOARD V WAMBO COAL PTY LIMITED Judgment 1 HODGSON JA: I agree with Tobias JA. 2 SANTOW JA: I agree with Tobias JA. 3 TOBIAS JA: In 1999 Wambo Coal Pty Ltd (the respondent) constructed a surface drift coal conveyor (the conveyor) approximately 1.07km in length on land which was within a mine subsidence district proclaimed under s 15(1) of the Mine Subsidence Compensation Act 1961 (the Act). 4 In 2003 the respondent became aware that United Collieries Pty Limited (United) proposed to engage in longwall underground coal mining beneath the conveyer. Engineers retained by the respondent predicted that the underground workings of United would cause subsidence of the land on which the conveyor or portions thereof were constructed. 5 Because of its concern that the potential subsidence would, when it occurred, inevitably cause damage to the conveyor, the respondent opted to dismantle and relocate it. In so doing it expended an amount of $597,400. It was common ground that it was reasonable to anticipate some damage to portions of the conveyor arising from the predicted subsidence, if and when it occurred. 6 Ultimately, United commenced mining operations and subsidence did occur in areas beneath the conveyor's original location which reasonably approximated the predicted damage. In the meantime, on 19 February 2004 the respondent had lodged a claim for compensation with the Mine Subsidence Board (the Board) pursuant to s 12A(1)(b) of the Act in respect of the expense that it had incurred in dismantling and removing the conveyor. On 27 April 2005 the Board refused the claim. On 14 June 2005 the respondent appealed to the Land and Environment Court (the LEC) pursuant to s 12B of the Act against that decision. 7 Section 12A(1) of the Act is in the following terms: "(1) Subject to this section, claims may be made under this Act for payment from the Fund of: (a) compensation for damage incurred as a result of the exercise by the Board of its powers under section 13A, and (b) an amount to meet the proper and necessary expense incurred or proposed by or on behalf of the owner of improvements or household or other effects in preventing or mitigating damage to those improvements or household or other effects that, in the opinion of the Board, the owner could reasonably have anticipated would otherwise have arisen, or could reasonably anticipate would otherwise arise, from a subsidence that has taken place, other than a subsidence due to operations carried on by the owner." 8 The respondent contended to the Board that it had incurred proper and necessary expense in preventing or mitigating damage to the conveyor that it could reasonably anticipate would otherwise arise from the subsidence that had taken place. It contended that s 12A(1)(b) did not require that subsidence to have taken place prior to the incurring or proposal to incur the relevant expense provided that it did occur before a claim was made for payment from the Fund of that expense. 9 The Board rejected the respondent's claim relevantly upon the ground that subsection (1)(b) applied only to claims in respect of a proper and necessary expense incurred or proposed to be incurred in preventing or mitigating damage to the conveyor after subsidence had taken place. 10 On 31 March 2006 Jagot J ordered that the following preliminary question be determined: "Whether for a proprietor to have an entitlement under section 12A(1)(b) of the Mine Subsidence Compensation Act 1961 (NSW) to claim compensation for expense incurred in preventing or mitigating reasonably 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." 11 The preliminary question was determined by Lloyd J who, on 24 August 2006, answered it as follows: (a) No (b) Yes

It is from his Honour's decision to so answer the preliminary question that the Board appeals to this Court. 12 However, the primary judge's decision was clearly interlocutory. Accordingly, an appeal from that decision to this Court only lies with leave: Land and Environment Court Act 1979, s 57(4)(d). The Board now acknowledges that leave is required and the parties were content to treat the appeal as if an application for leave had been made upon the basis that that application and the substantive appeal would be heard concurrently. The matter has proceeded accordingly.

The relevant statutory provisions 13 Section 10(1) of the Act constituted a fund to be called the "Mines Subsidence Compensation Fund" (the Fund). Pursuant to s 10(3) there was relevantly to be paid out of the Fund: "(a) all amounts payable under this Act in respect of damage caused by subsidence or payable under s 12A." 14 Where damage to an owner's improvements on land has actually been caused by subsidence, s 12(1) relevantly provides as follows: "(1) Claims may be made under this Act for payment from the Fund of: (a) compensation for any damage to improvements that arises from subsidence, except where the subsidence is due to operations carried on by the owner of the improvements, (b) an amount to meet the proper and necessary expense incurred or to be incurred as a result of such damage in: (i) building retaining walls or bolting together or underpinning or otherwise supporting, raising or repairing buildings and walls, and (ii) … (iii) … " 15 Section 12A is directed to claims for compensation arising out of actions by the owner of improvements to prevent or mitigate damage. I have already set out s 12A(1), but it is convenient to repeat that subsection together with subsection (2): (1) Subject to this section, claims may be made under this Act for payment from the Fund of: (a) compensation for damage incurred as a result of the exercise by the Board of its powers under section 13A, and (b) an amount to meet the proper and necessary expense incurred or proposed by or on behalf of the owner of improvements or household or other effects in preventing or mitigating damage to those improvements or household or other effects that, in the opinion of the Board, the owner could reasonably have anticipated would otherwise have arisen, or could reasonably anticipate would otherwise arise, from a subsidence that has taken place, other than a subsidence due to operations carried on by the owner. (2) A claim under subsection (1): (a) shall be made, in the case of a claim for compensation under subsection (1) (a), within three months after the day on which the extent of the damage to which the claim relates became apparent to the claimant or, where some other time within which such a claim may be made is prescribed by the regulations, within the time so prescribed, (b) shall be made, in the case of a claim for payment of an amount under subsection (1) (b), within three months after the day on which the expense to which the claim relates became known to the claimant or, where some other time within which such a claim may be made is prescribed by the regulations, within the time so prescribed, (c) shall specify the location of the land or improvements, or the description of the household or other effects, to which the claim relates, the amount claimed, the nature and extent of the damage or, as the case may be, the matters in respect of which the expense was, or is to be, incurred, and (d) shall contain such other particulars as may be prescribed." 16 Section 12B is the appeal provision and is in the following terms: "A person claiming compensation under section 12 or 12A may appeal to the Land and Environment Court against the decision of the Board: (a) as to whether damage has arisen from subsidence or could reasonably have been anticipated, or (b) as to the amount of the payment from the Fund." 17 Section 13A is headed "Works for Prevention or Mitigation of Damage from Subsidence". It is in the following terms: "The Board may carry out, or cause to be carried out such works as, in its opinion, would reduce the total prospective liability of the Fund by preventing or mitigating damage that the Board anticipates would, but for those works, be incurred by reason of subsidence, whether or not the damage anticipated is damage to improvements or household or other effects on the land on which the works are to be carried out." 18 The primary judge acknowledged (at [14]) that it was common ground that the critical words, the construction of which would determine the answer to the preliminary question, namely, "from the subsidence that has taken place" in s 12A(1)(b), should be given work to do. It was further common ground that there must have been actual subsidence before any compensation was payable. Contrary to the Board's submission, his Honour considered that the meaning of the subsection was both ambiguous and obscure since it refers to expense incurred in preventing or mitigating damage which could be reasonably anticipated from a subsidence that "has taken place", by which time the damage would have occurred. 19 His Honour therefore considered (at [18]) that the subsection was intended to operate in the following manner: the owner of improvements may incur any necessary and proper expense in preventing or mitigating damage to those improvements which the owner could reasonably have anticipated would otherwise have arisen, but the claim may not be made until the subsidence has taken place. 20 In so concluding, his Honour placed reliance upon the following passage from the Minister's Second Reading Speech supporting the Bill which introduced ss 12A and 13A into the Act in 1969: "As the Act stands at present the board can carry out works only after damage to improvements by subsidence has arisen. This power to repair is to be supplemented by power to carry out preventative works, as the costs of prevention are often cheaper than of cure. 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. In such cases proposed new section 12(A)(1)(b) will empower a claim to be made for the proper and necessary expense so incurred." 21 The primary judge therefore concluded (at [19]) that the purpose of the provision as explained by the Minister would be defeated unless it was construed to admit of a claim for compensation where:

(ii) the expense has been directed to preventing or mitigating damage which is reasonably anticipated;

(iii) there has been subsidence at the time of the making of the claim; and (iv) there is a connection between the subsidence and the incurring of the expense. 22 His Honour finally considered (at [20]) that it would be an absurd consequence if the cheaper option constituted by expenditure on prevention or mitigation works in anticipation of subsidence could not be the subject of a claim where it avoided the far larger expense of repairing damage which arose as a consequence of subsidence.

The submissions on the appeal 23 The Board submitted that the words of s 12A(1)(b) were plain and defined the entitlement for reimbursement of expenditure only after subsidence "has taken place". In other words, the provision did not permit the payment of compensation for expenditure incurred in anticipation of subsidence which had not occurred at the time of the expenditure; on the contrary, it applied only to expenditure after subsidence "has taken place". It was thus submitted that the words of the subsection required expenditure to mitigate anticipated damage incurred post-subsidence. It contemplated that the owner of the improvements which were prospectively liable to damage from subsidence either notifying the Board of the prospect of that damage with a request that it carry out works pursuant to s 13A to prevent or mitigate the damage that it anticipated would, but for those works, be incurred by reason of subsidence; or alternatively, to seek reimbursement for expenditure on account of damage inflicted post-subsidence. 24 The respondent submitted that the Board's construction gave rise to an anomaly that could not have been intended by the legislature, namely, the carrying out of preventative work when subsidence was imminent but had not yet occurred and for which compensation could not be claimed. It was submitted that the effect of the Board's contention was that the owner of improvements would have to wait until subsidence damage actually occurred before a claim could be made. A construction of s 12A(1)(b) that led to that result was said to be capricious or absurd. 25 It was further submitted that the purpose of the subsection in its context was to avoid the possibility or likelihood that the cost of repairing damage after it was incurred was likely to substantially exceed the cost of preventative work performed prior to any anticipated subsidence taking place. It would be extraordinary, so it was contended, for the Act to encourage conduct that could lead to greater loss and greater claims on the Fund administered by the Board. Reference was made to the necessity to consider context in the first instance and not merely when ambiguity might be thought to arise on consideration of the text of the statutory provision: Network Ten Pty Ltd v TCN Channel Nine Pty Ltd (2004) 218 CLR 273 at 280-281 [11]. 26 The respondent then submitted that s 12A(1)(b) applied to a category of expense not caught by the words of s 12(1)(a) "compensation for any damage to improvements that arises from subsidence". The latter provision presupposes subsidence from which there has arisen some damage to improvements. It does not apply to works undertaken before there has been either subsidence or damage arising therefrom. Accordingly, it was to be inferred that s 12A(1)(b) was intended to apply where there had been neither subsidence nor damage. 27 The use of the word "otherwise" in s 12A(1)(b) reflected, so the respondent submitted, the obvious intent that the subsection was to apply to expense incurred which fell outside s 12(1), the obvious candidate being expense incurred for works performed ahead of actual subsidence to avoid apprehended damage. Accordingly, there need be no damage prior to the making of a s 12A(1)(b) claim. This would be consistent only with a claim for expense incurred prior to anticipated or predicted subsidence becoming an actuality.

Did the primary judge err? 28 In my opinion the Board's submissions should be accepted for the following reasons: First, there is no doubt that s 12(1)(a) relates to claims for payment from the Fund of compensation in respect of damage to improvements that has arisen from subsidence which has taken place. On the other hand, s 12A(1)(b) relates to claims for payment from the Fund of an amount to meet the proper and necessary expense incurred or proposed to be incurred in preventing or mitigating damage which the owner of the improvements could reasonably have anticipated would otherwise have arisen, or could reasonably anticipate would otherwise arise, from "a subsidence that has taken place".

29 Second, as s 12(1)(a) is directed to claims for compensation in respect of damage which has in fact arisen from subsidence, s 12A(1)(b) is directed to expense incurred in preventing or mitigating damage which is yet to arise but which is reasonably anticipated to arise from a subsidence that has in fact (that is, already) taken place.

30 Third, the flaw in the respondent's argument accepted by the primary judge is that it assumes that subsidence and damage occur simultaneously. It submitted that s 12A(1)(b) was intended to apply when there has been neither subsidence nor damage. However, that is not what the subsection says: what is to be reasonably anticipated is damage arising from subsidence that has (already) taken place. In other words, subsidence has occurred but has not given rise to damage to the relevant improvements but it is reasonably anticipated it will do so. In these circumstances, an owner of improvements who reasonably anticipates that damage will otherwise arise from that subsidence unless preventative or mitigating works are carried out will be reimbursed with respect to the proper and necessary incurring of, or proposal to incur, expense for such work. 31 Fourth, of course, if subsidence occurs which simultaneously causes damage to the improvements before preventative or mitigating works are performed, then the owner of those improvements has a claim under s 12(1)(a). Alternatively, as the Board submits, the owner could request the Board to carry out preventative or mitigating works pursuant to s 13A. That provision contemplates the carrying out of such works to prevent or mitigate damage which the Board anticipates would, but for those works, be incurred "by reason of subsidence"; these last words are to be contrasted with the words in s 12A(1)(b), "from a subsidence that has taken place". Accordingly, the Board may invoke its powers under s 13A where a subsidence has not taken place but it is anticipated that damage will arise if and when subsidence occurs.

32 It will be appreciated that I have construed the words "be incurred by reason of subsidence" in s 13A as including "anticipated subsidence". This must be so given that if damage has already arisen by reason of subsidence that has taken place, then the carrying out of preventative or mitigating works would be too late. In any event, once damage has occurred by reason of subsidence the owner of the relevant improvements has a claim under s 12(1)(a) in respect of that damage. As s 13A is directed towards the reduction of the prospective liability of the Fund by preventing or mitigating damage that the Board anticipates, it follows that the damage anticipated includes that which, but for the carrying out of those works, would be incurred by reason of subsidence which has yet to take place.

33 Fifth, the significance of the Board carrying out works pursuant to s 13A to "reduce the total prospective liability of the Fund" and its relationship to or influence upon the proposed construction of s 12A(1)(b), is to be found in the following passage from the Minister's Second Reading speech with respect to the 1969 amendment to the Act which inserted ss 12A and 13A and which preceded the passages recorded in [20] above: "The bill will provide also for the carrying out of works by the board to prevent or mitigate subsidence damage before it [the damage] occurs. Proposed new section 13A will empower the board to carry out such works where the total prospective liability of the fund will thereby be reduced." 34 When that passage from the Minister's speech is read with those set out in [20] above, it becomes apparent that first, the objective of reducing the prospective liability of the Fund by the carrying out of preventative works is left to the Board. Second, it is only in the context of that power of the Board that the concept of the costs of prevention being often cheaper than of cure was regarded as relevant. Third, 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. 35 In other words the Minister was speaking of an emergency arising when subsidence has occurred but damage, although anticipated, has not yet arisen but will do so unless works to prevent or mitigate it are carried out. Although it is true that costs of prevention are often cheaper than the cure, the scheme of the legislation in my view is as follows: (a) payment from the Fund of compensation for damage to improvements that arises from subsidence that has taken place (s 12(1)(a)); (b) compensation for damage incurred as a result of the exercise by the Board pursuant to s 13A of its power to carry out works to reduce the prospective liability of the Fund by preventing or mitigating damage that the Board anticipates would, but for those works, be incurred by reason of subsidence including anticipated subsidence; and (c) payment of compensation from the Fund in an amount to meet the proper and necessary expense incurred or proposed to be incurred in preventing or mitigating damage to improvements which their owner could reasonably have anticipated would otherwise have arisen or could reasonably anticipate would otherwise arise from a subsidence that has in fact taken place but is yet to cause damage or significant or more extensive damage (s 12A(1)(b)). 36 Thus his Honour, with respect, was in error when he held that the subsection was both ambiguous and obscure because it referred to expense incurred in preventing or mitigating damage which could be reasonably anticipated from subsidence that "has taken place" by which time the damage would have occurred. As I have observed in [30] above, the flaw in this reasoning is that it assumes that subsidence and damage inevitably occur simultaneously. 37 Common sense would indicate that some subsidence may take place but may not be so extensive as to cause immediate or significant damage to surface improvements located over or near to the area which has subsided. Further subsidence may be anticipated which, without the taking of preventative or mitigating measures, is likely to cause damage or greater damage to those improvements. It is only in that sense that s 12A(1)(b) contemplates damage arising from anticipated subsidence. But some initial subsidence must have taken place before the subsection is engaged. 38 The terms of s 12A(1)(b) are therefore 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. 39 Sixth, further support for this construction of s 12A(1)(b) is to be found in s 12A(2)(b) which requires that a claim for payment of an amount under subsection (1)(b) is to be made within three months after the day on which the expense to which the claim relates becomes known to the claimant or, where some other time is prescribed by the Regulations, within the time so prescribed. With respect, the primary judge's construction ignores the impact of this provision. His Honour held (at [18] and [19]) that one of the elements that must exist in order for a claim for compensation to be made under subsection (1)(b) is that there must have been subsidence at or before the time of making the claim. Accordingly, on that construction and given the provisions of s 12A(2)(b), the claim could only be made if the subsidence had taken place within three months after the day on which the expense to which the claim relates has become known to the claimant. It would be anomalous, if not irrational, for subsection (1)(b) to be construed to only require the subsidence to have taken place by the time of the making of a claim which is barred if not made within the three months referred to in subsection (2)(b). In other words, unless the anticipated subsidence takes place within that period, no claim can be made. 40 In supplementary written submissions on this point the appellant countered that the subsidence need not take place, as the primary judge had held, before the claim for payment was made provided it took place before payment was made from the Fund. In other words, the occurrence of subsidence was a condition precedent only to an amount under s 12A(1)(b) becoming payable. The payment of a claim made within the nominated three months would, therefore, be postponed unless and until "a subsidence … has taken place". Such a construction, so it was submitted, would be consistent with the necessity for the Board to be notified timeously of the claim so that, like an insurer, it could make provision for it even though it may or may not crystallise into a payment from the Fund. Further, it would not give rise to the anomaly referred to in the preceding paragraph. 41 Although the appellant sought to call in aid the terms of a regulation made for the purpose of s 12A(2)(a), accepting that no such regulation had been made for the purpose of s 12A(2)(b), in my opinion it is well established that as a general rule it is impermissible to call in aid in the construction of an Act delegated legislation made under that Act: Pearce & Geddes "Statutory Interpretation in Australia", 6th ed. (2006), Chatswood, [3.41] pp.104-105 and the cases there cited. It was not suggested by the appellant that the regulation in question and the Act formed part of a legislative scheme which, for the purpose of ascertaining but not construing that scheme, permits of a partial exception to the general rule. 42 In my opinion, the construction contended for by the appellant whereby the taking place of a subsidence is only a condition precedent to an entitlement to payment of the relevant expense from the Fund, cannot stand with the clear words of s 12A(1)(b). 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. Although, as the appellant submitted, there must be a causal link between the anticipated damage and a subsidence that has taken place, there is also a temporal link required between the making of the claim and that to which the claim relates, namely, the incurring or proposal to incur an amount to meet the proper and necessary expense in preventing or mitigating damage to improvements that, in the opinion of the Board, the owner could reasonably have anticipated would otherwise have arisen, or would reasonably anticipate would otherwise arise, from a subsidence "that has taken place" - not one that "will take place" or that "takes place". 43 The better view, therefore, is that the Board should be in the position to assess and pay the claim upon it being made: not that it be merely notified of a claim the assessment of which must be postponed unless and until a subsidence "takes place" some time in the indeterminate future.

44 Seventh, it should also be observed that under s 12A(1)(b) a claim may only be made for payment from the Fund of an amount to meet "the proper and necessary expense incurred or proposed" in preventing or mitigating anticipated damage. As noted in subparagraph (e) above, that claim must be made within three months "after the day on which the expense to which the claim relates became known to the claimant". The latter refers to knowledge of an expense which either has been incurred or which is only proposed to be incurred in preventing or mitigating damage to improvements that, in the Board's opinion, their owner could reasonably have anticipated would otherwise have arisen or could reasonably anticipate would otherwise arise, from a subsidence that has taken place. Accepting, as the respondent submits, that the words "arisen" or "arise from" in the subsection require a causal rather than a temporal connection between anticipated damage and a subsidence that has taken place, it must follow that that connection is more easily demonstrated where there has been an actual subsidence in respect of which damage to particular improvements arising therefrom is reasonably anticipated. 45 Eighth, the requirement in the opening words of s 12A(1)(b) that the expense, actual or proposed, be "proper and necessary" is also significant. It would be one thing to determine whether such an expense so qualifies with respect to a subsidence that has already taken place but quite another if it has not but is only anticipated to take place at some future time.

46 Finally, and again not without significance, the use of the past tense in the phrase "a subsidence that has taken place" is confirmatory of a construction of s 12A(1)(b) that applies it only to the reimbursement of expense incurred or proposed to be incurred to prevent or mitigate damage which could be reasonably anticipated to arise, but which is yet to do so, from an existing subsidence. The text of the provision is in my opinion unambiguous. Giving the words used their ordinary meaning does not result in any irrationality and that meaning should therefore prevail: Cooper Brookes (Holdings) Pty Ltd v Federal Commissioner of Taxation (1981) 147 CLR 297 at 304-305. 47 It follows from the foregoing that in my respectful view the primary judge erred when he construed s 12A(1)(b) to apply to expense incurred in preventing or mitigating reasonably anticipated damage to an improvement where the subsidence which is anticipated to give rise to that damage has yet to take place. 48 I would therefore propose the following orders: a) Leave to appeal granted. b) Set aside the answers given by Lloyd J to questions (a) and (b) on 24 August 2006 and in lieu thereof substitute the following answers: (a) Yes (b) No

c) The proceedings be remitted to the Land and Environment Court for further disposition.

d) The respondent to pay the appellant's costs of the appeal but to have a certificate under the Suitor's Fund Act 1951 if otherwise qualified.

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