NSW Coal Compensation Board v Nardell Colliery P/L [2004] NSWCA 35

New South Wales Court of Appeal

CITATION : NSW Coal Compensation Board v Nardell Colliery P/L [2004] NSWCA 35 HEARING DATE(S) : 02/12/03 03/12/03 JUDGMENT DATE : 2 March 2004

JUDGMENT OF : Meagher JA at 1; Sheller JA at 26; Hodgson JA at 27 DECISION : 1. Appeal allowed, in part, quashing the part of the NSW Coal Compensation Review Tribunal's decision which determined the quantification of factors referred to as "r" and "e"; 2. The parties to submit to the Court, within fourteen (14) days, either: (i) agreed orders; or, alternately, (ii) alternative versions with supporting written submissions, to give quantitative effect to the "r" and "e" factors in accordance with the findings of this judgment; 3. Appeal dismissed otherwise; 4. First respondent to pay the appellant's costs of instituting the appeal and preparing the appeal books, and further each party to pay its own costs apart from this aspect of the appellant's preparations.

CATCHWORDS : APPEAL - COMPENSATION - LEASE - DAMAGES ASSESSMENT - LEGISLATIVE AMENDMENTS - COSTS - Compensation determination made pursuant to loss of entitlements arising under variations to a lease - effects to a lease flowing from legislative amendments - appeal concerning: 1(a) the tribunal's choice of methodology regarding the assessment of damages - 1(b) quantum assessments made thereunder - and 2 the tribunal being bound to make a 'just and equitable' finding for compensation for the loss of particular entitlements under a lease - Held: Appeal allowed in part - lower tribunal's damages assessment methodology in part quashed - parties to agree to quantification assessment of factors "r" and "e" as set out in judgment, or submit supported written alternatives to the Court within 14 days - appeal otherwise dismissed - first respondent to pay the appellant's costs of instituting the appeal proceedings and preparing the appeal books, otherwise each party to bear its own costs. Coal Mining Act 1973 Coal Acquisition Act 1981 LEGISLATION CITED : Mining Act 1992 Coal Ownership (Restitution) Act 1990 Coal Acquisition (Amendment) Act 1997 Nelungaloo Pty Limited v The Commonwealth (1948) 75 CLR 495 CASES CITED : NSW Coal Compensation Board v NSW Coal Compensation Tribunal NSWCA 26/7/97 Malec v J C Hutton Pty Limited (1990) 169 CLR 638 Attorney-General (NSW) v Quinn (1990) 170 CLR 1 NSW Coal Compensation Board PARTIES : v The Nardell Colliery Pty Ltd & NSW Coal Compensation Review Tribunal FILE NUMBER(S) : CA 40518/03 COUNSEL : A: Mr N Perram R: Mr S D Robb QC & N Kidd A: Michael Burke, NSW Coal Compensation Board SOLICITORS : 1R: Allen Arthur Robinson 2R: I V Knight - Crown Solicitor