Veenstra v Department of Customer Service

Land and Environment Court (NSW)|2023-09-25|Before: Pritchard J

JUDGMENT

By notice of motion filed 14 August 2023, the applicants, Mr Henry Veenstra and Ms Carol Veenstra (the applicants), seek an order pursuant to r 7.3(1) of the Land and Environment Court Rules 2007 (NSW) (LEC Rules), that the Court extends the time limit in r 7.1(1)(a) from 7 July 2023, being the date of the expiry of the time for an appeal under r 7.1(1)(a), to 4 August 2023, being the date of the filing of their Class 3 application seeking to appeal the determination made by Subsidence Advisory NSW (SANSW) pursuant to s 12B of the Mine Subsidence Compensation Act 1961 (NSW) (1961 Act), dated 8 May 2023.
In their Class 3 application filed on Friday, 4 August 2023 at 5:10pm, the applicants seek the following orders: 1. Allow the appeal from the Determination made by Subsidence Advisory New South Wales dated 8 May 2023. 2. Set aside the Determination made by Subsidence Advisory New South Wales dated 8 May 2023 and in lieu thereof order an amount of compensation payable to the Applicants to be determined by the Court. 3. Costs.
The background to the appeal from the decision of SANSW is a claim made by the applicants under s 12 of the 1961 Act for damages arising out of subsidence.
The appeal from the decision of SANSW pursuant to s 12B of the 1961 Act was commenced by the applicants on 4 August 2023, being 28 days after the expiry of the time for an appeal within 60 days under r 7.1(1)(a).
In support of the application for an extension of time, the applicants read the following affidavits: 1. Ms Carol Veenstra sworn on 14 August 2023 (first Veenstra affidavit); 2. Ms Carol Veenstra sworn on 31 August 2023 (second Veenstra affidavit); and 3. Ms Carol Veenstra sworn on 21 September 2023 (third Veenstra affidavit).

Factual background

The applicants are the owners of the residential property identified as Lot 28 in DP 803255, known as 65 McWilliam Drive, Douglas Park NSW 2569 (the property).
On 26 May 2017, SANSW received a claim made by the applicants for compensation for damage said to be caused by mine subsidence (first claim). The details of the damage as set out in the first claim were as follows: CRACKING OF PAVING + CONCRETE CRACKING OF BRICK WORK CRACKING IN GYPROCK MOVEMENT OF DOORS CRACKING OF FLOOR TILES
On 7 December 2021, Forrest Engineering Pty Ltd (Forest Engineering) conducted an inspection at the property. As part of the engagement of Forrest Engineering under the SANSW Independent Assessment Scheme, the consultant was provided an Independent Claim Investigation Report template, which erroneously referred to the Coal Mine Subsidence Compensation Act 2017 (NSW) (the 2017 Act).
On 28 April 2022, SANSW issued a claim determination (the first claim determination). The claim determination letter confirmed that the applicants' claim for compensation had been investigated and accepted in accordance with s 12 of the 1961 Act. SANSW advised the applicants that they had determined monetary compensation in the amount of $167,535.00 (including GST) was to be provided for the coordination of repairs. Below is a relevant extract from the claim determination letter: I can confirm your claim has been investigated and accepted in accordance with Section 12 of the Mine Subsidence Compensation Act 1961 (the Act). Following an inspection of your property and an assessment of the damage by independent engineer Forrest Engineering Pty Ltd, it has been determined that components of the claimed damage are attributable to mine subsidence. As compensation for the damage, SA NSW has determined that monetary compensation of $167,535.00 (including GST) be provided for you to coordinate repairs.
On 3 May 2022, Ms Veenstra advised SANSW that the compensation offer was declined and requested a review (the review application).
On 8 May 2023, SANSW issued a notice of determination of the review application which increased the determination amount to $190,030 (incl GST) (second claim determination). The notice of determination provided: Under s 12B of the Act, you also have a right of appeal to the Land and Environment Court against a decision: a) as to whether damage has arisen from subsidence; b) as to the amount if the payment from the Fund; or c) to reject a claim because of a matter specified in section12A(1A) or (1B) of the Act. Please note that time limits apply for the commencement of proceedings. You may also have other rights at law in relation to your claim which you may wish to explore, and, if so, you should obtain independent legal advice.
The notice of determination letter included $1,100 allocated as a legal fee allowance.
The second claim determination is also referred to in these reasons for judgment as "the decision".
On 26 July 2023, the applicants first discussed their options in relation to the second claim determination with their solicitors, RMB Lawyers.
On 4 August 2023, the applicants filed a Class 3 application in this Court seeking to appeal the second claim determination made by SANSW dated 8 May 2023.

Relevant legislation

In relation to appeals to the Land and Environment Court by persons claiming compensation under (relevantly) s 12 of the 1961 Act, s 12B provides as follows: 12B Appeals 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 (b) as to the amount of the payment from the Fund, or (c) to reject a claim because of a matter specified in section 12A (1A) or (1B).
In relation to the time for appeal, r 7.1 of the LEC Rules provides as follows: 7.1 Time for appeal (1) A person may commence proceedings in relation to an appeal, objection or reference to the Court - (a) except as provided by paragraph (b), at any time within 60 days after the right of appeal, objection or reference first arises, or (b) in the case of an appeal against the refusal of a claim under section 36 of the Aboriginal Land Rights Act 1983, at any time within 4 months after the refusal. (2) This rule does not apply if the time within which an appeal, objection or reference may be made to the Court is expressly provided for by or under the Act or instrument that confers the right of appeal, objection or reference.
In relation to the extension and abridgement of time, r 7.3 of the LEC Rules provides: 7.3 Extension and abridgment of time (1) The Court may, by order, extend or abridge any time fixed by these rules or by any judgment or order of the Court. (2) The Court may extend time under this rule, either before or after the time expires, and may do so after the time expires even if an application for extension is made after the time expires.
In their submissions, the parties also made reference to the 2017 Act which replaced the 1961 Act. Section 16 of the 2017 Act provides as follows in relation to the making of appeals against the determination of a claim for compensation: 16 Appeals (1) If the Secretary has refused to review a claim under this Act for compensation in relation to infrastructure, the person claiming compensation may appeal to the Land and Environment Court against a determination of the claim. (2) A proprietor of a coal mine or a person claiming compensation under this Act may appeal to the Land and Environment Court against the decision of the Secretary under section 15 (Review of claim determinations by Secretary) - (a) as to whether damage has arisen from subsidence, or (b) as to the amount of the compensation, or (c) to reject a claim because of a matter specified in section 10 (Limitation on claims arising out of actions to prevent or mitigate damage). (3) An appeal under this section must be made within 3 months after the making of the decision concerned.
In other words, unlike the 1961 Act which specifies no time limit for an appeal against a claim determination, s 16 of the 2017 Act provides for an appeal to be made within 3 months after the making of the decision concerned.
However, it was common ground that the 2017 Act has no present application. That is because although the 1961 Act was repealed on 31 December 2017, the 1961 Act continues to apply to claims made under that Act, but not finally determined before its repeal: cl 7 of Schedule 1 to the 2017 Act.

Extension of time application

It was also common ground that the appeal was filed 28 days after the 60-day period for commencing an appeal pursuant to r 7.1 of the LEC Rules. This is because the decision in question, that is, the second claim determination, was made on 8 May 2023, and the appeal was commenced on 4 August 2023.
It was not in dispute that there are four factors for the Court to consider when determining whether to extend time for proceedings to commence. Those four factors, as articulated by McHugh J in Gallo v Dawson (1990) 64 ALJR 458 at 459 (Gallo), are as follows: 1. the length of the delay; 2. the reasons for the delay; 3. the extent of prejudice; and 4. whether there is an arguable case.
In Jackamarra (an Infant) v Krakouer (1998) 195 CLR 516; [1998] HCA 27 at [66(7)], Kirby J said that the four factors above "are by no means exhaustive". His Honour continued: …Several others have from time to time been thought relevant. These include whether the delay was intentional or contumelious; or merely the result of a bona fide mistake or blunder; and whether the delay is that of the litigant or of its lawyers, with which the litigant should not be saddled. It may also be relevant, where the default is that of a party's legal representatives, to take into account any considerations personal to the party which might have affected its ability to safeguard its own interests, for example, by applying pressure to its lawyers. Similarly, the extent to which any such prejudice may be remedied by an appropriate costs order is another consideration that has sometimes been treated as relevant.
In Tomko v Palasty (No 2) (2007) 71 NSWLR 61; [2007] NSWCA 369 (Tomko), Basten JA (Hodgson and Ipp JJA agreeing) said at [80]: In these proceedings, Mr Palasty seeks an indulgence by way of an extension of time. It is not in dispute, nor could it be, that he bears a burden of persuading the Court that there are proper grounds to grant his request… (emphasis added).
The parties also referred to the decision of Robson J in Aul v Department of Customer Service [2021] NSWLEC 140 (Aul) where his Honour dismissed an application for an extension of time otherwise provided for in r 7.1(1)(a) of the LEC Rules to file an appeal under s 12B of the 1961 Act where the relevant delay was 34 months.

Length of the delay

The second claim determination, being the decision the subject of the appeal, was made on 8 May 2023. The time for an appeal under r 7.1(1)(a) of the LEC Rules expired on 7 July 2023. The appeal was commenced on 4 August 2023, being 28 days after the expiry of time for an appeal under r 7.1(1)(a) of the LEC Rules. I accept, as submitted by the applicants, that the delay here of 28 days, compared with the delay in Aul of 34 months, is relatively minor. The characterisation of the delay in Aul as "considerable" is not apposite to the period of delay of just under one month in this matter.
Nor can the period of 28 days be described, as the delay was in Aul, as "excessive" or "extraordinary", Robson J observing in Aul at [40] (citations omitted): The respondent submits that the length of the delay in commencing the appeal is, "in itself", excessive. The respondent notes that a long delay, without reasonable explanation, is a "powerful factor" militating against the grant of leave to extend time. While accepting that each case turns on its facts, the respondent points to previous decisions of this Court and the Court of Appeal where delays of between 12 months and 23 months have been characterised as "excessive", "gross" and "extraordinary" in the absence of a satisfactory explanation…
Whilst accepting that each case turns on its facts, I accept the applicants' submission that a delay of 28 days is a far less powerful factor militating against the exercise of the Court's discretion in favour of an extension of time to appeal.

Reasons for the delay

The applicants relied on the following reasons for their delay in the commencement of the Class 3 appeal: 1. Ms Veenstra's evidence in relation to an uncorroborated, but not contested, telephone conversation with Ms Flatley of SANSW in "about March or April 2023" where Ms Flatley was said to have told Ms Veenstra that "normally the [time] limitation in most cases is 3 months". In relation to this conversation, the respondent submitted that Ms Flatley did not recall "one way or another" whether she said words to that effect. 2. Ms Veenstra accessed a copy of a document prepared by SANSW and titled "Guidelines - Process for Claiming Mine Subsidence Compensation" (SANSW Guidelines) which provided that the time limit for appealing a claim determination was 3 months (however those guidelines were applicable only to claims under the 2017 Act and not the 1961 Act, which is presently applicable and specifies no particular time limit). 3. The applicants spent a period of 10 days overseas from 5 to 14 June 2013. 4. On the applicants' return from overseas, Ms Veenstra was unwell for 3 to 4 weeks, and shortly thereafter Ms Veenstra was also required to care for her mother who became unwell. During that period, the applicants "did not seriously discuss" with each other "the prospect of appealing the second claim determination as [they] understood, based on representations from Ms Flatley and the SANSW literature, that [they] had three (3) months to lodge an appeal and wanted to focus on the health of [Ms Veenstra] and [her] mother first." 5. On 1 August 2023, after the 60-day time limit had already expired, the applicants received an email from Ms Flatley stating that "under section 12B of the Mine Subsidence Compensation Act 1961, you have a right of appeal to the Land and Environment Court. Please note that time limits apply for commencement of proceedings" (emphasis added).
The respondent separately referred to a file note of a conversation on 26 July 2023 between Ms Flatley and Mr Veenstra, where Ms Flatley wrote "I advised [Mr Veenstra] there is a time limit for applications to the LEC and he might wish to contact them to clarify to ensure he does not miss the cut off".
The respondent submitted that the applicants' evidence did not evince a "very compelling explanation" for their delay in commencing the Class 3 proceedings. The respondent submitted that it is not the role of SANSW to provide legal advice to claimants regarding time limits for appeals. Each of the letters in respect of the first and second claim determinations issued on 28 April 2022 and 8 May 2023 included an allocation of $1,100 as a legal fee allowance. Both letters noted that the compensation amount included an allowance for the applicants to seek legal advice.
In their written submissions, the applicants contended that in addition to the objective length of the delay (which was submitted to be relatively minor), the reasons for the delay were "highly significant on this application and, perhaps above all the other considerations, support the extension sought".
In Aul, Robson J said at [82]: …on the evidence, it is clear that the applicants knew that their right to appeal the review determination was subject to a time limit, but decided to delay commencing an appeal in order to "think about it further" as they did not consider immediate action to be warranted.
In relation to the reasons for delay, the applicants distinguished the present case from Aul in the following respects: 1. while the applicants were made aware that any appeal was subject to a time limit, it is apparent that they were informed by SANSW, erroneously, that a longer time limit applied than that which was in fact applicable, that is, 3 months as opposed to 60 days; 2. the error in the applicants' understanding of the correct limitation period was the result of multiple erroneous representations made on behalf of SANSW (albeit inadvertently); 3. unlike the position in Aul, the applicants did not unreasonably defer making a decision in terms of whether to appeal. Here, the applicants were considering a decision to appeal assuming, not unreasonably, that they had 3 months to arrive at a decision; and 4. when the applicants decided to proceed with an appeal, they contacted their current lawyers who promptly filed both the Class 3 application and the present notice of motion.
I do not accept the applicants' submission that the reasons for the delay were "highly significant on this application and, perhaps above all the other considerations, support the extension sought". There are scant references in Ms Veenstra's evidence to a suggestion or representation on behalf of SANSW that the time limit to appeal the second determination was 3 months, as opposed to 60 days. That includes the SANSW Guidelines, limited to decisions under the 2017 Act, which stipulate a time limit of 3 months, and a conversation to which Ms Veenstra deposes having occurred in or about March or April 2023 in which Ms Flatley said that "normally the limitation in most cases is 3 months". Ms Veenstra's account of that conversation was not disputed by SANSW, however there is no contemporaneous note recording the conversation. Ms Ranson appearing for SANSW said that while that account was not denied, Ms Flatley had no recollection one way or the other.
Nor do I accept the evidence relied on by the applicants in the affidavits of Ms Veenstra that the applicants were informed by SANSW, other than in the conversation referred to in the circumstances set out above, that a time limit of 3 months applied.
Nor do I accept that multiple "erroneous representations" were made on behalf of SANSW.
Ultimately in relation to the question of reasons for the delay in commencing the appeal, as explained by Ms Veenstra in her affidavit sworn on 14 August 2023, I find as follows: 1. during the relevant 60-day period, being 8 May 2023 to 7 July 2023, the applicants were not legally represented; 2. the notice of determination letter dated 8 May 2023 did not provide for a date by or timeframe in which an appeal must be commenced; 3. there were a number of representations made to the applicants in relation to their appeal rights, including after the expiry of the relevant limitation period on 7 July 2023, in particular an email from Ms Flatley on 1 August 2023 which provided "[i]f you disagree with the final determination, under section 12B of the Mine Subsidence Compensation Act 1961, you have a right of appeal to the Land and Environment Court. Please note that time limits apply for the commencement of proceedings" (emphasis added), and Ms Veenstra says she understood that email to mean that it was open to appeal the determination and that "they were within time". 4. there is evidence, uncontested, that in or about March or April 2023 Ms Flatley said to Ms Veenstra that "normally the [time] limitation in most cases is 3 months"; 5. Ms Veenstra accessed the SANSW Guidelines which provided that the time limit for commencing an appeal against a determination is three (3) months; 6. Ms Veenstra was unwell for a period of 3 to 4 weeks upon her return to Australia after a period of 10 days (between 5 June and 14 June 2023) overseas. During that period, Ms Veenstra and subsequently her elderly mother became unwell, and Ms and Mr Veenstra did not discuss the prospect of appealing the second claim determination because she understood they had 3 months to commence an appeal; 7. having contacted their legal representatives on 26 July 2023, and between 27 and 31 July 2023 sending documentation to their legal representatives, the applicants were advised that it was necessary for the matter to be actioned with urgency due to potential limitation issues; 8. this Class 3 appeal was commenced on 4 August 2023.
The applicants bear the burden of persuading the Court that there are proper grounds for an extension of time. Although the matters relied upon by the applicants may not present "a very compelling explanation" for the delay, I am satisfied that they provide a satisfactory explanation for the delay in circumstances in which: 1. during the relevant 60-day period, being 8 May 2023 to 7 July 2023, the applicants were not legally represented; 2. there were ambiguities in the communications between the applicants and SANSW in relation to time limits for appeals; 3. there is evidence, not disputed, that Ms Flatley said to the applicants that "normally the [time] limitation in most cases is 3 months"; 4. there is evidence, not disputed, in relation to the illness of Ms Veenstra and her mother during the relevant period concerning ill health; and 5. there is nothing in the evidence before me capable of establishing that any delay on the part of the applicants was intentional or contumelious.
In all the circumstances, I find that the applicants have provided an explanation for the delay in lodging an appeal.

Extent of prejudice

In relation to the factor of prejudice, the applicants submitted that the "significant and irreversible prejudice" would flow to them from an extension of time to appeal not being granted. That prejudice would include: 1. First, that the appeal would be deemed incompetent (out of time) and dismissed as a matter of course. This would have the effect of denying them the opportunity of seeking any redress in relation to the second claim determination despite the 1961 Act and 2017 Act making provision for challenges by way of appeal to this Court. Their right of appeal would have been extinguished by reason of the (albeit unfortunate) conduct and representations on the part of SANSW as to applicable time limits. 2. Secondly, in the absence of an appeal to this Court, there is no alternative procedure by which the second claim determination can be challenged. If there is no appeal, the second claim determination would be dispositive of the applicants' rights in the matter. 3. Thirdly, the applicants are retired and semi-retired. They have incurred considerable costs engaging with this process and been consistent in their desire to pursue all aspects of their claim, including those declined in each of the first and second claim determinations. 4. Fourthly, although the applicants do not in their evidence raise the issue of costs as a form of prejudice, it would be open to the respondent to make a costs application in the event that the proceedings were dismissed. While there is a presumption against costs orders in Class 3 proceedings, such orders may be made in appropriate cases and that is a liability they may confront even if they had not acted in any way unreasonably: Teh v Dormer [2016] NSWLEC 42 at [62] (Pepper J).
In relation to prejudice, the respondent submitted that it will suffer some prejudice if the Court were to allow the applicants to appeal after the 60-day period as the current condition of the property is unlikely to reflect the condition of the property at the time of the assessment of the second claim determination.
In relation to prejudice, I find as follows: 1. SANSW will suffer some prejudice if the Court were to allow the applicants to appeal after the 60-day period as the current condition, or the condition of the property as at the date of the hearing of the Class 3 appeal, is unlikely to reflect the condition of the property at the time of the claim and the two claim determinations. To that event the "assessment period" referred to by Forest Engineering in its report that the "dwelling has been assessed from 12 November 2019 through to 14 December 2021 - 25 months" suggests that there would be some prejudice to the respondent in meeting an appeal based on expert evidence by Forest Engineering in December 2021, more than 24 months after the assessment of the property. On the other hand, I do not consider there to be any reasonable likelihood of such prejudice being exacerbated by extending the limitation period by 28 days. 2. On the other hand, there is a real risk of significant and irreversible prejudice to the applicants if the extension of the limitation period were not granted, and they were not provided an opportunity to appeal against the decision of SANSW in relation to the amount of monetary compensation to be provided to them arising from subsidence.
In the circumstances, I do not find that the respondent stands to suffer any material prejudice by an extension of the limitation period by 28 days.

Arguable case

In relation to the question of an arguable case, the applicants referred to Aul at [65], where Robson J quoted the observations of Hodgson JA in Tomko at [14] as follows: In my opinion, there may be circumstances where it is appropriate to go further into the merits of the case of a person seeking an indulgence such as this, than to ask whether or not the case is fairly arguable. If such a person has a reasonable explanation of delay and the opponent does not have a strong case of prejudice, then a fairly arguable case is sufficient. However, if the explanation for the delay is less than satisfactory, or if the opponent has a substantial case of prejudice, then it may be relevant that the person seeking the indulgence shows that his or her case has more substantial merit than merely being fairly arguable.
The applicants submitted that the standard to be applied on the present application is for the applicants to demonstrate that their position is "fairly arguable" for two reasons: 1. they have a (more than) reasonable explanation for what is a relatively minor delay; and 2. SANSW does not have a strong case for prejudice or, if it does (which is not accepted), it has not been demonstrated on the evidence.
The applicants distinguished the present case from Aul as follows: 1. First, the applicants submitted that the scope of their "causation claim" (being their appeal against the findings in the second claim determination that parts of the damage claimed were not caused by mine subsidence) is tolerably clear in that it is recorded in SANSW's own expert material prepared by CLS Consulting Engineers as the damage claimed was not accepted by SANSW (and its experts). Those claims are proposed to be the subject of a claim on appeal. 2. Secondly, the scope of the quantum claim, while not as clear as the causation claim, is open to be tested by reference to the applicants' expert evidence. 3. Thirdly, in both respects, given that the applicants were required to and did act expeditiously to bring the present application to Court, there has not been a sufficient opportunity in the period between the filing of the application for an extension of time and the service of evidence on the notice of motion to brief and obtain reports from relevant experts (such as Geotech engineers and quantity surveyors) to challenge the findings in relation to causation and quantum made in the second claim determination.
The applicants, in relation to the establishment of an arguable case, relied on two tables titled "Disputed items of structural engineer and quantive [sic] surveyor report for mine subsidence" and "Additional items which have occurred since independent damage assessment not reported on", setting out the applicants' comments in response to the findings of SANSW's expert CLS Consulting Engineers in relation to the damage claimed, providing the scope of items in relation to the second claim determination that are in dispute.
While accepting that there must be a "statement" that puts the applicants' case beyond speculation, the applicants submitted that the maintenance of their claim in respect of items of damage which were disallowed in the first and second claim determinations here establish a claim "beyond speculation" for the purposes of meeting an "arguable case".
The applicants submitted that they should not, as a matter of fairness, be expected on this interlocutory application to incur the significant costs of preparing a complete suite of expert opinion in respect of an appeal that may be statute-barred. This factor, it was submitted, requires a degree of flexibility to be applied. The applicant submitted that "[t]he fact that SANSW has evidence prepared on their 'case' is unsurprising given that [SANSW] has an obligation under the scheme to prepare evidence to support the claim determinations".
In relation to the question of an assessment of prospects/arguable case, I am satisfied that the applicants have demonstrated that their position is "fairly arguable" and not more. The evidence in the third affidavit of Ms Veenstra in the form of the two tables referred to above at [51] is capable of establishing a basis to challenge the findings in relation to causation in the second claim determination.
I accept the applicants' submission that the applicants should not, at this stage, be required to bear the costs of preparing expert evidence in relation to an appeal that may be statute-barred.

Conclusion and orders

For the foregoing reasons, I am satisfied, on balance, that the applicants have met each of the four factors identified by the High Court in Gallo. In so concluding, I am satisfied that it is open to me, in exercising the Court's discretion, to ascribe different weight between the four factors identified in Gallo. Here, I attach particular weight to the factor of the relatively minor length of the delay. I have also attached weight to each of the other three factors in Gallo, in deciding to extend time for the commencement of the Class 3 proceedings.
Accordingly, I make the following orders: 1. The Court extends the time in r 7.1(1)(a) of the Land and Environment Court Rules 2007 (NSW) from 7 July 2023, being the date of the expiry of the time for an appeal under r 7.1(1)(a), to 4 August 2023, being the date of the filing of the applicants' Class 3 application seeking to appeal the determination of compensation for subsidence made by Subsidence Advisory NSW pursuant to s 12B of the Mine Subsidence Compensation Act 1961 (NSW), dated 8 May 2023. 2. Costs reserved.

DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 26 September 2023

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

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