The Court lacks jurisdiction to determine the 2010 claims
90As would be apparent from my analysis of each claim, the response of the Board was, in substance, to deny that it retained any power to determine them. Leaving aside any debate as to prior determination of the claims, the decision in all cases was founded upon the fact that the "notification" given to it in "the form approved by the Board" (s 12(2)(a)) had not been given to the Secretary within the prescribed time (cl 6 of the 2007 Regulation). The claim forms to which I have referred constituted the "notification". The evidence informing the application of cl 6 of the 2007 Regulation is essentially that contained in each of the claim forms read with or explained in the accompanying correspondence. In each case, the damage described and the statement as to when that damage first occurred made it apparent that by 2004, at the very latest, Mr Venn knew or asserted that the damage was caused by subsidence.
91As will also be apparent from my discussion, the Board also declined to entertain some of the claims because they were made in respect of improvements erected or altered after the mine subsidence district proclamation without the approval of the Board. Those decisions are founded upon s 15(5)(b) of the Subsidence Act.
92The fact that improvements were erected or altered after the mine subsidence district proclamation in 1966 is apparent from the information supplied by or on behalf of Mr Venn in support of the relevant 2010 claims. No evidence was produced to indicate that the Board had given its approval under s 15(3) of the Subsidence Act to the erection or alteration of those improvements that are the subject of claims made by Mr Venn. As the information provided on his behalf indicates, the erection or alteration to those improvements, save for those carried out to the boatshed, were undertaken following the 1992 subsidence event.
93Whether the decisions of the Board on the two grounds just discussed were legally or factually correct is not presently relevant although on the material before me I am of the opinion that they were decisions properly open to the Board. Importantly, the decision of the High Court in Alinta clearly establishes that a decision or decisions of the Board that there was no "claim" before it within the meaning of s 12(2), or that it was enjoined by the Subsidence Act from determining the claim, is not a "decision" or are not "decisions" of the kind that engage the provisions of s 12B (at [64]).
94I have not found the submissions made by Ms Kardell on behalf of Mr Venn easy to comprehend. As I understand her submissions directed to the jurisdictional question, they were :
(i) under the provisions of the Land and Environment Court Act 1979 (the Court Act) the Court has all the powers and discretions of the Board when determining the appeal and therefore is able to make a merit determination of the applications;
(ii) each of the claims was made by reason of continuing mine subsidence and the date upon which Mr Venn became aware that the damage claimed was due to subsidence was the date upon which each of his claims was submitted to the Board in 2010;
(iii) cl 6 of the 2007 Regulation only restricts the time for making a claim in respect of damage alleged to have been caused by subsidence: it has no application to claims already approved for payment of compensation by reason of subsidence.
95None of Mr Venn's submissions appear to address the fundamental question as to the nature of the "decisions" made in response to the 2010 claims. For reasons already explained, the substance of those decisions was to deny that the Board had power to determine the "claims", having regard to the provisions of the Subsidence Act to which I have referred. The holding of the High Court in Alinta speaks clearly against such a decision engaging this Court's jurisdiction under s 12B. The Court does not otherwise have jurisdiction to adjudicate upon disputes arising under the Subsidence Act.
96The absence of a "decision" enlivening the jurisdiction of this Court strictly renders it unnecessary to consider the three specific matters raised by Mr Venn in response to the jurisdictional question. However, as the matters were argued, it is appropriate that I should say something about them.
97I can readily accept the submission made by Mr Venn that by s 39 of the Court Act, this Court is given broad powers when determining an appeal to it in Class 3 of its jurisdiction. Those powers include the exercise of "all the functions and discretions" which the Board had "in respect of the matter the subject of the appeal" (s 39(2)). However, the exercise of those broad powers is only engaged once the proceedings before it are properly characterised as "an appeal" which may be disposed of by the Court in proceedings in Class 3 of its jurisdiction. Whether the present proceedings may be so characterised turns upon the proper construction and application of s 12B of the Subsidence Act (Alinta at [13]). It was that exercise of characterisation that was undertaken in Alinta.
98As I have earlier recorded, the High Court determined that the subject matter "prescribed" in paragraphs (a) and (b) of s 12B is relevantly circumscribed by the language of s 12 (Alinta at [60]).
99There being no decision of the Board in response to the 2010 claims that was a "decision" made upon the subject matter of either paragraph (a) or (b) of s 12B, there was no "appeal" to the Court that engaged the exercise of jurisdiction in Class 3 pursuant to s 19(f1) of the Court Act. As a consequence, the provisions of s 39 of the Court Act are irrelevant to the present issue.
100The second of Mr Venn's contentions directed to jurisdiction is founded upon damage claimed to have occurred by reason of ongoing subsidence. As I understood the submission, Mr Venn's awareness of the damage claimed as being due to subsidence was only manifest when his 2010 claims were made. It follows, so the argument runs, that the "prescribed time" referred to in s 12 and stipulated in the 2007 Regulation had not expired. I do not accept that submission.
101The terms in which the claim forms were completed together with the accompanying correspondence from Ms Kardell, contradicts the essential foundation for the submission. By way of example, the claim made for repairs to the seawall not only refers to the state of the wall following the 1998 subsidence event, but relies upon a quote for repairs to the wall which was obtained in 2006, the letter from Ms Kardell indicating an upward adjustment to the amount of that quote "for period to date". Clearly, the claim relates to the state of the wall as it was in 2006 when the quote was obtained, being for damage acknowledged then to have occurred and alleged to be the consequence of subsidence of which Mr Venn was aware long prior to that date.
102The material in and accompanying the 2010 claim for the hardstand area expressly seeks to have the Board "review its decision in 2005" as to the amount then tendered by the Board to repair this item. Such a claim, on its face, is unrelated to damage alleged from ongoing subsidence of which Mr Venn became aware in 2010. Moreover, the claim under this head for $16,751.36 was for reimbursement of moneys outlaid to carry out repairs. Invoices said to substantiate this claim are for the period from 31 July 2008 to 13 October 2008.
103In similar vein is the sewer line claim. This claim is identified as being for work "incomplete and outstanding" from 2002. Likewise the boatshed claim is said to be "unresolved" since 2003 and the revetments, landscaped area and transpiration bed claims are all stated to be the consequence of incomplete works following claims made in 2003.
104It is by reference to the material provided in support of the claims made in 2010 that, on my assessment, speak against the assertion that Mr Venn was only aware of damage from ongoing subsidence at or about the time of making his 2010 claims.
105That subsidence may be dynamic, in the sense that it may not be confined to a single or discrete event, can be accepted. However, Mr Venn faces difficulty in sustaining his claims founded upon damage said to be the consequence of ongoing subsidence occurring through to 2010. His difficulty is essentially factual.
106That difficulty is simply stated. Mr Venn did not lead any evidence seeking to establish that the damage claimed in 2010 was occasioned by "subsidence". Having regard to the definition of "subsidence" in s 4 of the Subsidence Act, evidence of damage due to subsidence from coal mining was necessary in order to sustain his claim for compensation.
107As I have said, Mr Venn adduced no evidence either of subsidence continuing up to the time of his claims or as to any causal nexus between subsidence and damage to improvements for which he claimed compensation. To the extent to which the 2010 claims made reference to compensation sought under the same heads in 2001 and 2003, once again there was no evidence adduced as to the requisite causal connection between damage then claimed and subsidence.
108As was acknowledged in Ms Kardell's correspondence, the Board's letter to Mr Venn of 28 February 2005 expressly denied that damage claimed was due to subsidence, save for that occasioned to the hardstand area and for which compensation in the sum of $1,650 was tendered. In the face of the Board's denial, apparent since 2005, the absence of direct evidence on which the Court could determine an entitlement to compensation cannot be readily understood.
109Mr Venn sought to rely upon inferences drawn from both the acknowledgement by the Board that subsidence events had occurred in 1992 and 1998 and also from the Board's acceptance that some improvements, other than those for which claim was and is presently made, had been damaged as a consequence of subsidence. However, there are difficulties for Mr Venn in seeking to rely upon inference to sustain his case.
110Acknowledged damage from subsidence to one improvement does not, without more, render it probable that damage to another improvement was occasioned by the same subsidence event. Drawing an inference from the facts relied upon by Mr Venn requires more than a possibility that each improvement has been damaged as a consequence of subsidence. An inference of the requisite causal connection may properly be drawn only where the evidence is sufficient to justify the probability, rather than the possibility, that the requisite causal connection exists (Seltsam Pty Ltd v McGuiness; James Hardie and Co Pty Ltd [2000] NSWCA 29; 49 NSWLR 262 at [83]). Evidence that raises conjecture as to whether the causal connection exists, or even which establishes the possibility of such a connection, is an insufficient basis upon which to draw an inference that supports Mr Venn's submission (Carr v Baker [1936] 36 SR (NSW) 301 at 306 - 307; Jones v Dunkel [1959] HCA 8; (1959) 201 CLR 298 per Kitto J at 305).
111As I have indicated, in order to address the submission by the Board that his claims have not been made "within the prescribed time", Mr Venn alleges that the 2010 claims reflect damage due to ongoing subsidence. Assuming, contrary to my earlier finding, that the damage now claimed was newly discovered in 2010, the inference that I would be required to draw is that the subsidence events in 1992 and 1998 had the consequence that subsidence then commenced had continued through to 2010 and that the improvements the subject of claim had been damaged as a consequence of that continued or continuing subsidence. In the absence of any expert evidence led at the hearing, the only evidence to which Mr Venn is able to point is a survey measuring levels on and around Lot 2, reflecting the extent to which levels at those points had fallen between 1992 and 2004. That evidence also identified the extent to which those levels changed between 1992 and 1998 on the one hand and between 1998 and 2004 on the other. There is no persuasive evidence indicating any difference in those levels between 2004 and 2010, let alone evidence which would leave open the probability that if subsidence between the latter dates did occur, it resulted in damage to the particular improvements for which Mr Venn now makes claim.
112In the context of the inference that Mr Venn seeks to have drawn, I again refer to correspondence from the Board to Mr Venn indicating that after investigation, none of the improvements that were the subject of his claim had been damaged by mine subsidence. In evidence before me are letters from Mr Venn, who claims no expertise, or from Ms Kardell asserting that damage was so occasioned. The only independent material in support of Mr Venn's assertion is a letter dated 11 December 2009 from a plumber retained by Mr Venn who expresses an opinion that "the problem" has been caused by mine subsidence. The basis upon which that opinion was expressed is not stated in the plumber's letter.
113Faced with competing conclusions expressed in correspondence that was tendered in the proceedings, there is no proper basis upon which to infer that the damage to improvements identified in the 2010 claims was damage that occurred as a consequence of mine subsidence. As I have indicated, the possibility of such a consequence is insufficient.
114Moreover, in the conduct of an appeal in which Mr Venn asserts an entitlement to be paid compensation under the Subsidence Act from the Fund, a practical onus is cast upon him to establish that entitlement. While the rules of evidence do not apply to proceedings competently commenced in Class 3 of the Court's jurisdiction, where the subject matter of those proceedings is an entitlement to be paid compensation, evidence that is persuasive of the existence of those facts necessary to found the statutory entitlement is necessary.
115It is in this context that I have described the need for a practical onus to be satisfied. Particularly is that so where, as here, Mr Venn was on notice for some years of the Board's denial that damage claimed had been occasioned by subsidence. That practical onus has not been satisfied by Mr Venn. He has not satisfied me that continuing subsidence has occurred giving rise to new claims that only crystallised in 2010.
116The third argument addressed on behalf of Mr Venn as to jurisdiction was directed to cl 6 of the 2007 Regulation and the clause to similar effect in the earlier Regulations. He submitted that the clause applied only to damage alleged to have been occasioned by subsidence and not to an application for compensation where damage was previously found by the Board to be due to subsidence.
117I accept that the clause applies where damage to an improvement is claimed to have been caused by subsidence. That is the basis for notifying a claim under s 12(2). To the extent that a claimant seeks to found a claim by asserting the damage/subsidence nexus, the claim to which the section applies will inevitably be a claim for damage "alleged to have been caused by subsidence". How acceptance of that proposition assisted Mr Venn in relation to the 2010 claims was never adequately explained. The terms of s 12 contemplate that the Board may reject the claim so made on the basis that the required nexus is not established.
118By reference to documentary evidence that I have already identified, the Board had in 2002 and 2005 denied that damage claimed under the heads of claim now propounded was damage due to mine subsidence. I leave aside from that observation the claim made in respect of the hardstand area which I have previously addressed. The factual premise of Mr Venn's submission has not therefore been established.
119The purpose of limiting the time for notification under s 12(2) is apparent. Once damage due to subsidence is identified, the Board must be afforded the opportunity to investigate and address that damage in a timely manner. Not only does the timely notification of claims afford the Board the opportunity properly to manage the Fund which it is charged to control (s 10(4)), it also provides the Board with the opportunity to consider undertaking remedial works (s 13) or taking mitigation measures (s 13A) with a view to avoiding, or at least mitigating, further damage from subsidence. Timely notification of damage claimed to be consequential upon subsidence is therefore an important element in the operation of the legislation.
120For these reasons, I do not accept the submissions made by Mr Venn as to the manner in which cl 6 of the 2007 Regulation should be construed. The purpose of cl 12(2) is to impose a limit by reference to the "prescribed time" within which each claim for damage to an improvement is made so as to give effect to the proper administration of the Act.