Tahmoor Coal Pty Ltd v Visser [2022] NSWCA 35

Court of Appeal Supreme Court New South Wales Medium Neutral Citation: Tahmoor Coal Pty Ltd v Visser [2022] NSWCA 35 Hearing dates: 11 March 2022 Date of orders: 11 March 2022 Decision date: 11 March 2022 Before: Basten JA; Gleeson JA; Payne JA Decision: (1) Grant Tahmoor Coal Pty Ltd leave to appeal from the judgments given in the Land and Environment Court on 25 August 2021 and 21 October 2021. (2) Direct that Tahmoor Coal file within 7 days a notice of appeal, in the form of the draft notice of appeal contained in the white folder, but identifying the third respondent as the Secretary, Department of Customer Service. (3) Dispense with the requirements of the rules for service of the notice of appeal. (4) Allow the appeal and set aside orders 1 and 2 made in the Land and Environment Court on 25 August 2021 and orders 1 and 2 made by that Court on 21 October 2021. (5) Order that Tahmoor Coal be joined as a respondent to the proceedings brought by Jan and Yvonne Visser in the Land and Environment Court and that the Class 3 application be amended to reflect the additional party. (6) Order that Jan and Yvonne Visser pay the costs of Tahmoor Coal of and incidental to its application for joinder as a party. (7) Order that Jan and Yvonne Visser pay Tahmoor Coal's costs in this Court. (8) Make no order as to the costs of the Secretary in this Court or the Land and Environment Court. (9) Grant the Vissers a certificate under the Suitors' Fund Act 1951 (NSW). Catchwords: APPEALS – leave to appeal – interlocutory order in Land and Environment Court – refusal to join new party – strongly arguable case of error – need to identify proper parties – amount in issue sufficient to justify court proceedings ENERGY AND RESOURCES – mining – subsidence – compensation claimed from proprietor of active mine – appeal by claimants from Secretary's decision on review – Mine Subsidence Compensation Act 2017 (NSW), s 16 CIVIL PROCEDURE – joinder of parties – whether proprietor of active mine a "necessary party" –proprietor liable to pay compensation – whether direct affectation satisfies test of necessity – Uniform Civil Procedure Rules 2005 (NSW), rr 6.24, 6.27 – Ross v Lane Cove Council 86 NSWLR 34; [2014] NSWCA 50 applied CIVIL PROCEDURE – appeal from administrative determination of compensation – Secretary of Department identified as decision-maker – naming of party – government department not a person –joinder of Secretary Legislation Cited: Civil Procedure Act 2005 (NSW), Pt 2, Div 1, s 98 Coal Mine Subsidence Compensation Act 2017 (NSW), ss 8, 11, 12, 15, 16 Land Acquisition (Just Terms Compensation) Act 1991 (NSW), Pt 3, Div 5 Land and Environment Court Act 1979 (NSW), s 19, 38, 39 Uniform Civil Procedure Rules 2005 (NSW), rr 6.24, 6.27, 42.1; Sch 1 Cases Cited: A Goninan & Co Ltd v Gill (2001) 51 NSWLR 441; [2001] NSWCA 77 News Ltd v Australian Rugby Football League Ltd (1996) 64 FCR 410 Ross v Lane Cove Council (2014) 86 NSWLR 34; [2014] NSWCA 50 State of Victoria v Sutton (1998) 195 CLR 291; [1998] HCA 56 Category: Principal judgment Parties: Tahmoor Coal Pty Ltd (Applicant) Jan Visser (First Respondent) Yvonne Visser (Second Respondent) Secretary, Department of Customer Service (Third Respondent) Representation: Counsel: Mr R P L Lancaster SC / Mr N Eastman (Applicant) Mr L M R Chapman (First and Second Respondents) Mr A M Pickles SC / Ms A C Hemmings (Third Respondent)