Chief Executive, Office of Environment and Heritage v Ausgrid (No 2)

[2013] NSWLEC 63

Land and Environment Court

New South Wales

Medium Neutral Citation:	Chief Executive, Office of Environment and Heritage v Ausgrid (No 2) [2013] NSWLEC 63
Hearing dates:	8 May 2013
Decision date:	08 May 2013
Jurisdiction:	Class 5
Before:	Pepper J
Decision:	Order 4(b) varied as sought in notice of motion.
Catchwords:	PRACTICE AND PROCEDURE: application to vary final orders - application made by notice of motion within 14 days of orders being entered - application made by consent - orders varied.
Legislation Cited:	Uniform Civil Procedure Rules 2005, rr 36.15(2), 36.16(3A)
Cases Cited:	Chief Executive, Office of Environment and Heritage and Ausgrid [2013] NSWLEC 51
Category:	Interlocutory applications
Parties:	Chief Executive, Office of Environment and Heritage (Prosecutor) Ausgrid (Defendant)
Representation:	Mr R Verzosa (Solicitor) (Prosecutor) Mr S Nash (Defendant) Office of Environment and Heritage (Prosecutor) Holding Redlich (Defendant)
File Number(s):	51112 of 2012

Ex Tempore Judgment

Ausgrid Applies to Vary Final Sentencing Orders

1. This is an application made by Ausgrid by way of notice of motion filed on 3 May 2013, that the Court vary order 4(b) made by it on 22 April 2013 in the judgment of Chief Executive, Office of Environment and Heritage v Ausgrid [2013] NSWLEC 51 (at [112]).

1. The application is by consent.

1. Order 4(b) is as follows:

Pursuant to s 205(1a) of the Parks and Wildlife Act 1974, at its own expense, the defendant is to:

...

(b) within 28 days of the date of this order place a notice in the Koori Mail newspaper within the first five pages of at a size of a least a quarter of a page (18.6cm x 12.9cm) in the form at annexure A"...

1. Order 4(b) was agreed to by the parties.

1. It is proposed that order 4(b) be varied in the following way:

Pursuant to s 205(1a) of the National Parks and Wildlife Act 1974, at its own expense, the defendant is to:

...

(b) prior to 25 May 2013, place two notices in the Koori Mail newspaper, the first notice within the first five pages at size of a least 7cm x 26cm and the second notice on any page after page 9 at a size of at least 19cm x 12.9cm in the form at annexure 'A'"...

1. The reason for the required variation is contained in the affidavit of Mr Robert Moses sworn 3 May 2013. Mr Moses is Ausgrid's legal representative. In short, in seeking to comply with the Court's orders, Ausgrid representatives were informed by the Koori Mail that it was unable to accommodate a notice of the size referred to in the terms of order 4(b) in the first five pages of the newspaper within the requisite time (the newspaper is a fortnightly publication). It could, however, accommodate two notices in the sizes stipulated in the order as varied.

1. These facts were not known to the parties, and Ausgrid in particular, at the time the form of the publication order in the Koori Mail was being mooted before the Court at the sentence hearing.

1. The Court plainly has power under r 36.15(2) of the Uniform Civil Procedure Rules 2005 ("the UCPR") to make the variation because the prosecutor consents to the application. That rule provides:

36.15 General power to set aside judgment or order

(2) A judgment or order of the court in any proceedings may be set aside by order of the court if the parties to the proceedings consent.

1. Alternatively, because a notice of motion has been filed within 14 days of the final orders being entered, the Court has the power to vary the order pursuant to r 36.16(3A), which states:

36.16 Further power to set aside or vary judgment or order

(3A) If notice of motion for the setting aside or variation of a judgment or order is filed within 14 days after the judgment or order is entered, the court may determine the matter, and (if appropriate) set aside or vary the judgment or order under subrule (1), as if the judgment or order had not been entered.

Orders

1. Satisfied that the Court has the power to make the variation and that in all the circumstances to do so is an appropriate exercise of the Court's discretion, I order that:

(1) order 4(b) of the judgment made on 22 April 2013 be set aside and in lieu thereof, the following order be made:

"prior to 25 May 2013, place two notices in the Koori Mail newspaper, the first notice within the first five pages at a size of at least 7cm x 26cm and the second notice on any page after page 9 at a size of at least 19cm x 12.9cm in the form at annexure 'A'."

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