Late last year, the High Court released its decision on a claim by Francis Mining Company Limited against the West Coast Regional Council arising out of a landslip into a creek below Francis Mining's open cast coal mine (Francis Mining Company Ltd v West Coast RC).
The claim in the High Court followed an earlier prosecution in the District Court. Judge Kenderdine in the District Court found Francis Mining not guilty because the Regional Council failed to prove Francis Mining caused the landslip - she accepted it was a probability that landslip had been caused by natural forces.
Francis Mining subsequently issued civil proceedings against the Regional Council in the High Court claiming its costs incurred in remedying the effects of the landslip.
First, Francis Mining said the Council had failed to meet (alleged) duties to:
properly investigate and determine the cause of the discharge
take reasonable remedial measures to control, remedy, or mitigate the effects of the discharge advise the plaintiff that it may not be legally obliged to take remedial action.Secondly, Francis Mining claimed unjust enrichment/restitution, ie Francis Mining had been compelled by the Regional Council to carry out remedial work which, as it later appeared, they were not in fact responsible for and the Regional Council had received the benefit of such remedial work.
Ultimately, Francis Mining's claim was unsuccessful because the High Court differed from the District Court on the cause of the landslip. Much of the decision was about whether the High Court was bound by the District Court's findings. It decided it was not (the burden of proof in the criminal case - beyond reasonable doubt - was different from the civil claim - balance of probabilities - and the ultimate issues were different). The High Court ruled the most probable cause of the slip was the mining operations of Francis Mining.
As these factual findings disposed of Francis Mining's claims, the Court did not need to consider the merit of the 'novel' claims in negligence and unjust enrichment. The Court did, however, say there were 'powerful policy reasons against imposing a duty on regional councils in these circumstances'. It also said the claim in unjust enrichment could not succeed because Francis Mining had voluntarily undertaken the remedial work - the necessary degree of coercion to undertake the work had not been established. It will be interesting to see whether these types of claims are developed or accepted in (more compelling) cases in the future.
This is a general summary only and should not be taken as a substitute for specific advice.
For further information, please contact Dean Knight, solicitor:
dean.knight@phillipsfox.com
Web site:
Phillips Fox