Jemena Ltd v Mine Subsidence Board [2012] NSWSC 1509

Supreme Court New South Wales

Medium Neutral Citation: Jemena Ltd v Mine Subsidence Board [2012] NSWSC 1509 Hearing dates: 29 - 31 October 2012 Decision date: 29 November 2012 Jurisdiction: Common Law - Administrative Law Before: Rein J Decision: Plaintiff's claim for expenses incurred in preventing or mitigating damage to its pipeline caused by mine subsidence not precluded by its failure to obtain approval from the Mine Subsidence Board for construction of the pipeline. Catchwords: ADMINISTRATIVE LAW - judicial review - grounds of review - irrelevant considerations in defendant's decision not to grant certificate to retrospectively approve pipeline construction - where defendant took into account the fact that approval might lead to claims on the Mine Subsidence Compensation Fund - where defendant took into account delay in bringing application when pipeline had been in place for many years before legislative change and no damage or risk of damage appreciated until many years after legislative change - such grounds not open to be relied on under the legislative scheme - decision ultra vires

ADMINISTRATIVE LAW - prerogative writs and orders - mandamus - discretion to refuse relief by reason of delay in bringing proceedings not exercised where delay is sufficiently explained and justified - inappropriate to order the grant of a certificate where legislation required satisfaction on a matter which the defendant had not yet considered

ENERGY AND RESOURCES - mining - Mine Subsidence Compensation Act 1961, s 15(5)(b) - whether s 15B(3A) certificate required to claim for works preventing or mitigating damage caused by subsidence - whether "or anticipated to be caused" can, in effect, be read into "a claim in respect of damage caused by subsidence" - consideration of the legislature's intention - consideration of the phrase "in respect of" - where s 10(3) makes clear distinction between amounts payable in respect of damage caused by subsidence and preventative or mitigatory works