Consideration
22The scope of the Court's jurisdiction to consider appeals relying on s 12B of the MSC Act is in issue. The statutory scheme in s 12, s 12A and s 12B was addressed in Alinta. Section 12B does not provide for unlimited appeal rights, as considered in Alinta. The High Court at [58] - [64] unanimously stated:
58 Three observations may be made about the text of s 12B. First, there must be a decision of the Board on a claim under ss 12 or 12A for the right of appeal provided by s 12B to be enlivened. The Board's decision on an application for approval under s 15 or certification under s 15B will not meet the statutory description called for by the section. It may thus be observed at the outset that not every decision of the Board will be the subject of an appeal to the LEC.
59 The second observation is that the Board's decision on the claim must be a decision "as to" one of two classes of subject matter (identified in pars (a) and (b) of s 12B) for the right of appeal to be enlivened.
60 The third observation is that the subject matter prescribed in pars (a) and (b) is identified and delimited by the language of ss 12 and 12A. This proposition is elucidated by a textual comparison. The disjunctive expression "arisen from subsidence or could reasonably have been anticipated" in par (a) corresponds to the language used to prescribe causal elements of claims under ss 12 and 12A respectively. Under s 12(1), compensation may be claimed for damage which "arises from subsidence" (s 12(1)(a) and (d)) (emphasis added). That language is adopted by the first limb of s 12B(a) which refers to a decision "as to whether damage has arisen from subsidence" (emphasis added). By way of example, the Board may decide on a claim under s 12(1)(a) that there is no damage or less damage than is claimed or that the relevant damage pre-existed the alleged subsidence or has some other cause. Those decisions would be decisions as to the subject matter identified by s 12B(a). Similarly, a claim may be brought under s 12A(1)(b) in respect of an amount to meet the expense of preventing or mitigating damage 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 (emphasis added). This language is reflected by the second limb of s 12B(a). This provides a right of appeal against a decision "as to whether damage ... could reasonably have been anticipated". Pursuant to s 12B(a), an appeal lies to the LEC against the Board's decision as to that subject matter on a claim under s 12A.
61 As to par (b) of s 12B, claimants under ss 12(1) or 12A(1) must specify the "amount claimed" from the Fund in their application (ss 12(2)(a) and 12A(2)(c)) (emphasis added). Sections 12(1)(b) and 12A(1)(b) confer the right to make a claim for an "amount to meet the proper and necessary expense" of undertaking certain works (s 12(1)(b)) or preventing or mitigating damage (s 12A(1)(b)) and s 12(1)(c) confers the right to make a claim for an "amount equivalent to the rent which would have been payable" (emphasis added). The Board may also reduce "the amount of compensation" where the damage caused by subsidence is greater because of the negligent or improper manner in which an improvement is constructed or maintained (s 12(1), ultimate paragraph) (emphasis added). The Board's decision as to the quantum of payment from the Fund pursuant to these provisions would be a decision "as to the amount of the payment from the Fund" within s 12B(b) of the Subsidence Act.
62 The Board submits that, if a broader construction of s 12B(b) be accepted, s 12B(a) would be rendered redundant. This would be because any adverse decision by the Board on the question of causation which leads to the refusal of a claim and hence "no payment" or a reduced payment is appealable under s 12B(b). Hodgson JA recognised the force of this submission but observed that [19]:
"It seems to me unlikely that the legislature intended that the availability of an appeal, and the availability or need to approach the Supreme Court, should depend upon capricious distinctions ... so although there is force in the contention that a broad construction of s 12B(b) would render s 12B(a) otiose, I think the broad construction of s 12B(b) is preferable."
63 However, there may be a number of reasons for the distinction drawn by the text of s 12B. One is that s 12B reflects an intention to limit the liability of the Fund under s 10(3)(b) to the costs of a rehearing in the LEC on any decision of the Board that goes on appeal. Another is that the legislature left to the Board the determination of jurisdictional facts, subject to scrutiny only on judicial review in the Supreme Court. That state of affairs is more readily understood where, as here, the jurisdictional impediment was in the alleged absence of approval and the absence of a certificate respecting Alinta's improvement. On the other hand, the legislation left for determination by the LEC de novo such questions as the determination of causation and quantum of compensation in claims competently made against the Fund.
64 The right of appeal to the LEC is restricted to appeals against decisions of the Board as to the subject matter identified in s 12B(a) and (b). The outcome of "no payment" in this case followed not from a decision as to either of those subject matters, but from the Board's application of the statutory requirement that no claim be entertained in the circumstances prescribed by s 15(5)(b). In these circumstances, there was no decision of the Board "as to the amount of the payment from the Fund" under s 12B(b) against which an appeal would lie to the LEC. The jurisdiction to hear and dispose of an appeal under s 12B of the Subsidence Act is not enlivened by Alinta's application.
23In Alinta the refusal of certification under s 15B of the MSC Act for an improvement resulted in the application of s 15(5)(b). No claim could be considered under the Act for damage to improvements from subsidence if no certificate had been issued under s 15B. The Board's decision was held not to meet the statutory description in s 12B so that a right of appeal to this Court was not enlivened. The High Court observed that not every decision of the Board would be the subject of an appeal at [58]. The Board's decision must be a decision "as to" the subject matter in s 12B(a) or (b); at [59]. At [60] the High Court identified that the subject matter in s 12B(a) and 12B(b) was delimited by the language of s 12 and s 12A. Section 12B(a) was considered in relation to claims under s 12(1)(a), 12(1)(d) and s 12A(1)(b). The High Court was considering the meaning of s 12B in the context of "arisen from subsidence or could reasonably have been anticipated".
24The Board's refusal of a claim, in relation to causation, and therefore no payment from the Fund, could result in many appeals under s 12B(b) if that section was broadly interpreted. The Board submitted such an approach would render s 12B(a) redundant in [61] - [62]. The High Court's acceptance of that submission and the observations in [63] are particularly pertinent where the High Court concluded that the legislation leaves for determination by this Court questions of determination of causation and quantum in claims competently (emphasis added) made against the Fund. The legislature left to the Board the determination of jurisdictional facts, subject only to scrutiny of judicial review in the Supreme Court. The High Court adopted a narrow approach to the scope of s 12B(b) in the reasoning in [63] and [64]. The no payment outcome was held not to give rise to a decision as to the subject matters of s 12B(a) or (b) in [64].
25Jemena was decided after Alinta. The facts in Jemena vary from this matter and Alinta. In Jemena the majority of the High Court (French CJ, Gummow, Hayne, Heydon, Crennan and Kiefel JJ, Bell J dissenting) was considering a claim for payment from the Fund of expenditures made in relation to subsidence-caused damage to those improvements under s 12A(1)(b). At issue was the meaning of the phrase "damage...from a subsidence that has taken place" in s 12A(1)(b). In the course of its determination the majority of the High Court identified at [37] that there is a common law rule of statutory interpretation requiring that "clear and unambiguous words be used before there will be imputed to the legislature an intent to expropriate or extinguish valuable rights relating to property without fair compensation." Legislation is commonly construed not to expropriate or extinguish rights unless just terms are provided instead. The High Court referred to Alinta but not in relation to those aspects relied on by the Board in this case. This was no doubt because the scope of the appeal under s 12B did not arise for consideration in Jemena in the same manner. The reasoning in Alinta, which is unaffected by the reasoning in Jemena, must be applied to the facts of this case.
26As already stated, the facts in this matter vary from those in Alinta. The application by Mrs Neale is directed to the subject matter in s 12B being a claim for rent under s 12(1)(c) and for prevention costs under s 12A(1)(b). That is clear from the application for compensation made to the Board. The opening words of s 12B refer explicitly to a claim for compensation under s 12 or s 12A. The same notification process applies to both claims as identified in s 12(2)(b) for the rent claim and adopted in s 12A(3) for the prevention claim. The issue for decision in this case is whether a claim for compensation on two bases having been made under s 12 and s 12A, is a decision made by the Board as to the subject matter of s 12B(a) and/or (b). Mrs Neale's counsel relied particularly on s 12B(b).
27The Board through its CEO determined in relation to the prevention claim under s 12A(1)(b) that the claim was not made within time under s 12A(2)(b) because the expense became known, or should have become known, to Mrs Neale as early as the date of the Pells report, being 11 June 2008. That I am informed was an earlier report provided to the Board by Mrs Neale. The reasoning of the Board, set out in the letter from its solicitor in par 13 above, was that the expense claim under s 12A(2)(b) (claim item B(1)) of the schedule) had already been made in 2008. The claim for expenses based on the later Keller report was therefore out of time. Section 12A(2)(b) is expressed in mandatory terms as a statutory time limit for the making of claims and is similar in that regard to s 15(5)(b) considered in Alinta, in that it is a mandatory provision which must be complied with if making a claim. The decision that the claim is time-barred under s 12A(2)(b) is a decision whether Mrs Neale's claim was competently made. Section 12A(2)(b) was not therefore complied with. Mrs Neale's counsel submitted that if form is considered the Board did have before it an expenses claim which came within s 12A(1)(b). Section 12A(1)(b) is qualified by s 12A(1)(c) which is in mandatory terms and determines the competency of an appeal in relation to a statutory time bar.
28The High Court's reasoning in Alinta that the Court's jurisdiction is enlivened by claims competently made under s 12B in [63] and a narrow approach to a no payment outcome under s 12B(b) in [64] applies squarely. I am bound by it in concluding that the Board's letter dated 6 September 2012 does not provide a decision from which an appeal can be made under s 12A(1)(b) for the prevention claim.
29As identified in the solicitor's letter in par 13, the Board considered the rent claim made under s 12(1)(c) (claim item B(3) of the schedule) was a reiteration of part of a claim already made in May 2008 and rejected in September 2010. Such claims are limited by the time frame specified in cl 5 of the Regulation of six months or no more than three years if the Board is satisfied that there are special circumstances. The claim was considered by the Board as a request under s 7A for the consideration of a previous decision on the same topic. While Mrs Neale's counsel sought to render the substance of the decision as a claim as to payment from the Fund, the decision of the Board was on the competency of the claim. That decision which resulted in a no payment outcome cannot be characterised as a decision as to the payment from the Fund in accordance with s 12B(b). That the result of the Board's response is a non-payment from the Fund does not result in it being a decision as to the subject matter identified in s 12B(b) per Alinta at [64].
30I am mindful of the observations in Jemena that legislation which appropriates property rights is frequently construed as not extinguishing rights unless fair compensation is provided. I agree with the Board that Alinta is unable to be distinguished however. It follows that I am bound to apply the reasoning to the facts here which raise squarely the scope of an appeal enabled by s 12B. Based on the reasoning in Alinta, only competent appeals may be brought before the Court and the determination of competence remains with the Board, subject to judicial review proceedings in the Supreme Court of NSW, reflecting the specific nature of the appeal rights in s 12B. My reasoning is also consistent with the recent decision of Craig J in Venn v Mine Subsidence Board [2013] NSWLEC 30 at [24], [40] - [41]. My conclusion means that Mrs Neale's appeal cannot proceed.
31The Board's notice of motion is successful and I find that this Court lacks jurisdiction to hear this appeal.