Jemena Gas Networks (NSW) Limited v Mine Subsidence Board [2011] HCA 19

HIGH COURT OF AUSTRALIA

FRENCH CJ,

GUMMOW, HAYNE, HEYDON, CRENNAN, KIEFEL AND BELL JJ

JEMENA GAS NETWORKS (NSW) LIMITED APPELLANT

AND

MINE SUBSIDENCE BOARD RESPONDENT

Jemena Gas Networks (NSW) Limited v Mine Subsidence Board

[2011] HCA 19

1 June 2011

S312/2010

ORDER

1. Appeal allowed.

2. Set aside the orders of the Court of Appeal of the Supreme Court of New South Wales made on 28 June 2010 and in their place order:

(a) That the appeal to that Court be allowed.

(b) Set aside the orders of the Land and Environment Court of New South Wales made on 17 July 2009 and in their place order that the preliminary question of law identified by Sheahan J of the Land and Environment Court of New South Wales, namely:

Whether the Applicant is entitled to an amount under section 12A(1)(b) of the Mine Subsidence Compensation Act 1961 (NSW) in respect of expenses that it incurred in performing work on the Sydney to Moomba Gas Pipeline in circumstances where subsidence occurred at or near Mallaty Creek near Campbelltown in or about October 2005, on the assumption that the Applicant can establish that, for the purposes of that section, the expenses incurred by it were "proper and necessary",

be answered:

It being agreed that the applicant reasonably anticipated, based on expert advice, that cumulative subsidence at Mallaty

Creek from approved longwall mining of Longwalls 30-32 was likely to cause damage to its pipeline, the applicant was entitled under s 12A(1)(b) of the Mine Subsidence Compensation Act 1961 (NSW) to an amount from the Mine Subsidence Compensation Fund to meet the proper and necessary expense of preventing or mitigating that damage.

(c) The Board to pay the appellant's costs of the hearing of the preliminary question before the Land and Environment Court and of the appeal to the Court of Appeal.