JOANNE McCARTHY: Family’s legal minefield 

A LAWYER and I had a chat outside the Land and Environment Court in Sydney on Friday, after a day of argument about the intricacies of the Mine Subsidence Compensation Act, 1961.

‘‘That must have been a dry old day for a journalist,’’ he said. ‘‘Not much for you there.’’

I was about to reply when another conversation started, and we moved on to other things.

It was only later, as I read engineers’ reports about mine subsidence at a Gillieston Heights property, that I thought about that chat.

The arguments about how sections of the act applied to other sections, and sub-sections, and parts of sub-sections, were dry and legalistic, but I wasn’t there for entertainment.

The dry argument about that Gillieston Heights property will determine the future for a family. If the judge rules in their favour, Andrew and Kylie Neale will be able to go ahead with an appeal against a Mine Subsidence Board decision that they’re not entitled to compensation.

It will only give them their day in court to argue their case.

If they lose, they’re left with a house and property that is subject to subsidence, including the formation of deep potholes.

This is despite a section149 certificate issued in 2004 saying their property was not the subject of a mine subsidence proclamation.

A Sydney lawyer’s perspective was about the argument in court. A Newcastle Herald journalist’s perspective included the people involved, to add to the growing list of people coming up against the ‘‘dry old arguments’’ of laws that underpin the mining industry.

In court on Friday Justice Nicola Pain was told she had to make a judgment on a single point – whether the Mine Subsidence Board had made a ‘‘decision’’ or not in September last year.

That’s when it told the Neales they couldn’t receive money for preventive works on their property, or compensation for $60,000rent they paid after leaving their house because of a report saying the risk of subsidence on the property was high. They only realised that after Mr Neale fell down a deep pothole in 2007.

Under the Mine Subsidence Compensation Act, people like the Neales have three months to lodge a claim after learning ‘‘the expense to which the claim relates’’.

The MSB has argued the clock started ticking in 2008 when the Neales received a report estimating preventive and mitigation work could range from $400,000 to $6million.

The Neales have argued the clock didn’t start until July last year when they received a second report estimating works would cost about $3million.

The Mine Subsidence Compensation Act can tend to be confusing. At various times Justice Pain’s comments supported that view. Even the barrister for the MSB apologised after arguing a point based on one sub-section, only to find she was referring to the wrong one.

I admit to a confused moment while preparing an article for Saturday’s paper about the court hearing. I wrote that Justice Pain used the phrase ‘‘tough luck’’ in relation to claimants caught out by words and definitions, such as the right to appeal hingeing on the word ‘‘decision’’.

She actually used the phrase to describe people caught out by the three-month rule. The point to note is there  appear to be many hurdles for people like the Neales.

An engineer’s report prepared for the MSB notes that ‘‘workings with large voids do exist below the house’’, but the risk to the house was ‘‘generally in the form of minor settlement’’. The report, by Coffey Geotechnics, notes that potholes ‘‘may pose greater risk to users of the site’’.

Mr Neale said on Saturday that a senior MSB representative had suggested he fence off parts of his acreage to deal with that problem. The Neales have young children.

Justice Pain reserved her decision the other day.

It’s a decision worth watching out for. 

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