Visser v Department of Customer Service (No 2) [2021] NSWLEC 114

Land and Environment Court New South Wales

Medium Neutral Citation: Visser v Department of Customer Service (No 2) [2021] NSWLEC 114 Hearing dates: 27 August 2021; 10, 17 and 21 September 2021 (written submissions) Date of orders: 21 October 2021 Decision date: 21 October 2021 Jurisdiction: Class 3 Before: Pain J Decision: The Court orders: (1) Tahmoor Coal Pty Ltd must pay the Applicants' costs of the amended notice of motion dated 23 July 2021 within 28 days of agreement or assessment. (2) Tahmoor Coal Pty Ltd must pay the Applicants' costs of the costs application following the amended notice of motion referred to in Order 1 within 28 days of agreement or assessment. Catchwords: COSTS – applicants appealing Deputy Secretary's review of compensation payable under Coal Mine Subsidence Compensation Act 2017 – costs claim following unsuccessful notice of motion seeking joinder as party by active coal mine proprietor – first time role of active mine proprietor in appeal proceedings considered – s 98 of Civil Procedure Act 2005 applicable costs provision – exercise of discretion to award costs in favour of applicants Legislation Cited: Civil Procedure Act 2005 (NSW) s 98 Coal Mine Subsidence Compensation Act 2017 (NSW) ss 15, 16 Land Acquisition (Just Terms Compensation) Act 1991 (NSW) Land and Environment Court Act 1979 (NSW) ss 19, 38 Land and Environment Court Rules 2007 (NSW) r 3.7 Mine Subsidence Compensation Act 1961 (NSW) s 12B Uniform Civil Procedure Rules 2005 (NSW) rr 1.5, 6.24, 42.1, 42.7, Sch 1 Cases Cited: Australian Gas Light Company v Mine Subsidence Board (2006) 147 LGERA 433; [2006] NSWLEC 494 Dillon v Gosford City Council (2011) 184 LGERA 179; [2011] NSWCA 328 Elhazouri v Subsidence Advisory NSW [2019] NSWLEC 41 Knight v FP Special Assets Ltd (1992) 174 CLR 178; [1992] HCA 28 Latoudis v Casey (1990) 170 CLR 534; [1990] HCA 59 Lou v IAG Limited t/as NRMA Insurance (2019) 101 NSWLR 606; [2019] NSWCA 319 Mine Subsidence Board v Australian Gas Light Co (2007) 152 LGERA 73; [2007] NSWCA 100 Mine Subsidence Board v Maria Vervoon (2008) 165 LGERA 346; [2008] NSWCA 280 Oshlack v Richmond River Council (1998) 193 CLR 72; [1998] HCA 11 UTSG Pty Ltd v Sydney Metro (No 6) [2020] NSWLEC 63 Venn v Mine Subsidence Board (2013) 7 ARLR 313; [2013] NSWLEC 30 Verde Terra Pty Ltd v Central Coast Council; Central Coast Council v Verde Terra Pty Ltd (No 5) [2020] NSWLEC 48 Vervoorn Maria v Mine Subsidence Board [2007] NSWLEC 538 Visser v Department of Customer Service [2021] NSWLEC 88 Yu v Cao (2015) 91 NSWLR 190; [2015] NSWCA 276 Category: Costs Parties: Jan Visser (First Applicant) Yvonne Visser (Second Applicant) Department of Customer Service (Respondent) Tahmoor Coal Pty Ltd (Applicant on notice of motion) Representation: Counsel: L Chapman (Applicants) A Hemmings (Respondent) S Daly and A Hannam (Applicant on notice of motion)