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[1997] NSWCA 231
Court of Appeal (NSW)
1997-04-22
Stein JA, Hamilton AJ
Original judgment source is linked above.
(b) any person other than the Crown, is vested in the Crown freed and discharged from all trusts. leases, licences. obligations, estates, interests and contracts.
Cl9 of the Arrangements is as follows:
(1) Any person, other than the Crown or an instrumentality or agency of the Crown, is eligible to make a claim under cl10 or cl11 if:
(a) saleable coal was, immediately before the base date, vested in that person; and
(b) that coal was situated within a colliery holding at any time during the period beginning with the base date and ending with Ist January 1986.
(2) Where a person claims to have sustained pecuniary loss which is directly attributable to the discharge of any trust, lease, licence, obligation, estate, interest or contract by virtue of the operation of s5 of the Coal Acquisition Act 1981, and the loss is not one in respect of which a claim could be made under cl10 or cl11, the person is eligible to make a claim under cl12.
Inter alia, cl3(1) defines 'pecuniary loss':
in relation to a claim made under cl12, does not include any loss which is attributable to a liability to pay royalties to the Crown in respect of coal which is extracted from a colliery holding on or after the base date,
The case also requires consideration of schedule 2 of the CMAA, in particular c12(4) and cl4. These provide:
2(4) A person who, immediately before the appointed day, had a right to mine coal otherwise than pursuant to an authorisation to mine in force under the Principal Act or a coal lease so in force may, subject to the conditions imposed by the Minister, continue on and after that day to mine the coal to which, if the Coal Acquisition Act, 1981, had not been enacted, the right would have related and may so continue until -
(a) the Minister otherwise directs by instrument in writing served on that person; or
(b) a coal lease is granted in respect of the coal to which the rights conferred by this subclause relate,
whichever first occurs.
4(1) To the extent to which any lease, agreement or other instrument in force immediately before the appointed day provided for the payment of rent or royalty in respect of coal other than coal vested in or reserved to the Crown, the lease, agreement or other instrument ceases on and from that day to have any force or effect.
(2) Except to the extent provided by subcl(1), a lease, agreement or other instrument referred to in that subclause continues in force on and after the appointed day until -
(a) the Minister, by instrument in writing served on the parties to the lease, agreement or other instrument otherwise directs; or
WRB COAL COMPENSATION BOARD v NSW COAL COMPENSATION TRIBUNAL (Steii JA)
(b) a coal lease is granted in respect of the coal which the lease or other instrument would have related if the Coal Acquisition Act, 1981, had not been enacted,
whichever first occurs.
ISSUES
As the argument developed on the appeal a number of issues arose for consideration. These questions may be conveniently phrased as follows:
Did the expiration of cl4(2) leave s5 of the CAA free to operate as and from 30 April 1982 (the date on which the Regulation to the Coal Mining (Amendment) Act, 1981 was gazetted) thereby frustrating or discharging the whole of the leases including rights to use the surface and access to and from it?
Whether the deferred loss sustained by Bloomfield is a pecuniary loss within cl19(2) of the Arrangements?
Whether the loss is directly attributable to the discharge of the leases by virtue of s5 of the CAA?
Does the definition of pecuniary loss in cl3 of the Arrangements, which excludes loss due to liability to pay royalties, also exclude all claims by lessees under private leases?
Phrased in this way, I would answer the questions as follows:
Yes
Yes
4(1) continued in force, except as to payment of rent or royalty in respect of coal. until one of two events occurred. One of these was the grant of a coal lease. By cl6(1) of the Regulation a person who, immediately before | January 1982, had a right to mine coal in a colliery holding was deemed to have been granted a coal lease under the Coal Mining Act, 1973. The regulation was gazetted on 30 April 1982.
In my opinion, Broornfield's surface rights survived on 1 January 1982 by reason of cl4 of the savings and transitional provisions in schedule 2 to the CMAA. They continued in force, but only until 30 April 1982 when they ceased to have any force or effect. Therefore, cl4(2) operated as an interim measure between | January and 30 April 1982 to preserve the surface rights. However, the effect of cl4(2) as a savings provision was spent on 30 April 1982. It had no more work to do and was retrospectively superseded by the deemed coal lease and later (on 28 April 1983) by Coal Lease 500 entered into between the Crown and Bloomfield. Neither the deemed coal lease nor Coal Lease 500 carried any surface rights.
The operation of cl4(2), having ceased on 30 April 1982, left s5 of the CAA free to operate in a complete and uninhibited fashion on the leases in question or rather on what remained of them, namely the surface rights. Cl4(2) in effect performed a statutory severance. Therefore, s5 had a delayed effect on the surface rights which continued to exist between 1 January and 30 April 1982. However, when the transitional arrangements were swept away by the granting of the deemed coal lease, s5 determined the surface rights. It confirmed the immediate operation of s5 of the CAA on any lease to the extent that it provided for payment of rent or royalty in respect of coal, but otherwise preserved any lease etc until one of two events occurred, as specified in the clause. In other words, the ancillary parts of the lease (concerning surface rights) continued in force after 1 January 1982 and were not 'reinstated' by the clause as submitted by Bloomfield.
6 UNREPORTED JUDGMENTS
If it was intended that s5 allow private rights to mine coal and private surface rights to continue unaffected, it is difficult to see the need for cl2 and cl4 of schedule 2 to the CMAA. They would have been unnecessary. The legislative intention is reinforced by the content of s4 CAA (that the Act has effect notwithstanding any other law or instrument etc.) and the contemplation that arrangements for compensation to be made under s6 could extend to rights other than coal ownership.
As is plain cl2(4) gave Bloomfield the right to continue to mine coal but said nothing about contractual rights to use the surface. Cl4 however had the effect of keeping the surface rights alive and not discharged until either of the events in cl4(2) occurred. Once such an event occurred, s5 took its full effect and wholly discharged the leases, including the surface rights.
The result of this, leaving aside the appellant's other arguments, is that Bloomfield may receive no compensation for loss of surface rights between 1 January and 30 April 1982, because these rights were not lost until 30 April when the leases became wholly discharged.
In my view it is wholly artificial to say that the leases were not discharged by s5 but rather by cl(2). The amendments to the CMAA would not have occurred except as a consequence of the CAA and as part of the necessary legislative package relating to the acquisition of coal and payment of compensation.
QUESTION 2
From the above it will be clear that the loss suffered by Bloomfield with regard to the surface rights was deferred until 30 April 1982. The question therefore arises whether it is a pecuniary loss within cl(2) of the Arrangements.
The first matter which may be adverted to is the proposition of the appellant Board that one needs to have been an owner of coal under cl9(1) to qualify as a claimant under cl9(2). I cannot accept this. Loss, other than in respect of royalties, is still compensable as pecuniary loss, even if royalties would otherwise have formed part of the claimant's loss. The definition of pecuniary loss in cl3(1) merely requires that the Board calculate what part of a claimant's loss is related to loss of surface rights in leases, and eliminate any part which relates to royalties. Leaving this to one side, it is difficult to conceive how it can be said that the fact of deferral of the loss to 30 April 1982, by reason of the savings and transitional provisions, makes any difference. A claim under cl9(2) of the Arrangements is not fixed as at the appointed date or any other particular date. The requirements are rather that the pecuniary loss be one which is directly attributable to be operation of s5 of the CAA.
QUESTION 3
This question involves examining the meaning of 'directly attributable'. In a different context Lord Reid examined the meaning of 'attributable' in Central Asbestos Co Ltd v Dodd [1972] All ER 1135. His Lordship said:
That means capable of being attributed. 'Attribute' has a number of cognate meanings; you can attribute a quality to a person or thing, you can attribute a product to a source or author, or you can attribute an effect to a cause. The essential element is connection of some kind. (at 1141)
In Walsh v Rotter District Council [1978] 1 All ER 510 Donaldson J considered the meaning of 'attributable' in an employment context. After referring to Lord Reid in Central Asbestos he remarked:
WEBW COAL COMPENSATION BOARD v NSW COAL COMPENSATION TRIBUNAL (Grové AJA)
Suffice it to say that these are plain English words involving some causal connection between the loss of employment and that to which the loss is said to be attributable. However, this connection need not be that of a sole, dominant, direct or proximate cause and effect. (at 514)
In my opinion 'directly' in cl9(2) should not be construed to mean solely, which is in effect the submission of the appellant. What is required is a causal connection, but this need not be the sole or even dominant cause. In this instance there is no doubt that there exists a direct causal connection. The loss to
Bloomfield was attributable to its need to acquire and pay for new surface rights and this loss was a direct result of the termination of the leases.
QUESTION 4
The appellant also submits that the loss suffered by Bloornfield is not a 'pecuniary loss' within cl3(1) of the Arrangements. This argument maintains that the exclusion of any loss attributable to a liability to pay royalties for coal to the Crown also excludes all claims by lessees under private leases.
In the circumstances of the particular leases in question, it is apparent that no part of the claim is attributable to a liability to pay royalties to the Crown. C19(2) provides no reason for cutting down the meaning of 'pecuniary loss' beyond excluding any loss attributable to a liability to pay higher royalties to the Crown as specifically excluded by cl3(1). Accordingly, the cl3(1) 'definition' is not relevant. C19(2) of the Arrangements provides for a person who has sustained pecuniary loss to make a claim where the loss is directly attributable to the operation of s5 other than a claim under cl9(1), cl10 and cll1, which concern compensation for former coal owners.
There remains a submission based on cl17C of the Arrangements. Cl17C deals with the reduction of compensation by the amount of benefits obtained from the discharge of any trust, lease etc "by virtue of the Coal Acquisition Act, 1981, or from the operation of the Coal Acquisition (Transitional Provisions) Regulation 1982 or cl4 of schedule 2 to the Coal Mining (Amendment) Act 1981' (emphasis added). It was submitted that cll17C acknowledges the differentiation in effect of the discharge of any trust, lease etc whereas s6 of the CAA only enables arrangements for compensation to be payable 'as a result of the enactment of this Act'. As observed earlier, the Regulation and schedule 2 to the CMAA are enactments which are clearly consequent on the CAA so as to give effect to the CAA in an orderly fashion and to provide for a compensation regime. In the end, however, they all refer back to the CAA, and s5 in particular.
In my estimation the appeal must fail. The judge was essentially correct in his reasoning and conclusions. I would propose that the appeal be dismissed with the appellant being ordered to pay the costs of the second respondent. The claim should be remitted to the Board to be determined according to law.
Handley JA I agree with Stein JA.
Grove AJA I agree with Stein JA
Appeal dismissed with costs.
Counsel for the Appellant: P M Hall QC & J A Needham Solicitors for the Appellant: Michael Burke
Solicitors for the Respondent 1: I V Knight, Crown Solicitor
8 UNREPORTED JUDGMENTS
Counsel for the Respondent 2: S Austin QC & L V Gyles
Solicitors for the Respondent 2: McDonald Johnson
NSW COAL COMPENSATION BOARD
NSW COAL COMPENSATION