THEIR home is ‘‘unlivable’’, the repair bill is in the millions, and now the Mine Subsidence Board is trying to deny Andrew and Kylie Neale their day in court on a technicality.
Mr and Mrs Neale, of Gillieston Heights, are in what Land and Environment Court Justice Nicola Pain yesterday called the ‘‘tough luck’’ category of Mine Subsidence Board claimants – the ones caught out by words and definitions.
Last September the Mine Subsidence Board rejected the Neales’ compensation claim by saying they had lodged it four years too late.
Yesterday the board went further and argued the Neales were barred from appealing to the Land and Environment Court to overturn the finding because of the word ‘‘decision’’.
The September letter was an ‘‘explanation’’, and not a ‘‘decision’’, barrister for the Mine Subsidence Board Penny Thew told the court.
The Neales needed a board ‘‘decision’’ about a compensation payment before they could appeal, she said.
The September letter was simply the board’s explanation why they could not receive compensation, based on the board’s chief executive Greg Cole-Clark ‘‘forming a view’’ the Neales had not complied with the Mine Subsidence Compensation Act, she said.
The Neales needed to have lodged a claim in 2008 within three months of receiving a consultant’s report about the cost of likely damage to their home from subsidence.
The 2008 report found there was a ‘‘very high likelihood of catastrophic subsidence’’ from the old East Greta mine that closed in the 1920s.
The cost of damage was from $400,000 to $6million.
The family moved out of their home in 2008 and rented. In 2010 the Mine Subsidence Board rejected their claim for rent compensation after an engineering firm reported that ‘‘damage to the dwelling has not resulted from mine subsidence’’.
Mr Cole-Clark rejected the Neales’ claim that the three month time limit started in July last year when a second consultant estimated the cost of work at the house at $3million.
Mr Cole-Clark had ‘‘made an administrative decision and he didn’t refer the application to a meeting of the board’’, Ms Thew said.
Justice Pain asked if Mr Cole-Clark was ‘‘under some obligation’’ to place the matter before the board, and was advised his initial ‘‘view’’ ended the process.
‘‘It just seems a rather convenient administrative mechanism to not investigate claims,’’ Justice Pain said.
John Robson QC, for Mr and Mrs Neale, said if the Mine Subsidence Board was successful in court it would cause a ‘‘significant deprivation of rights’’ for the Neales.
‘‘A significant consequence is the Neales don’t have their day in court,’’ Mr Robson said.
‘‘The manner in which the board is conducting itself means it is taking a very technical point.
‘‘It’s denying it’s made a decision. We say it has made a decision.’’
Justice Pain reserved her decision.