D'Anastasi v Environment Protection Authority

Court of Appeal

New South Wales

Case Title:	D'Anastasi v Environment Protection Authority
Medium Neutral Citation:	[2011] NSWCA 1
Hearing Date(s):	13 January 2011
Decision Date:	13 January 2011
Jurisdiction:
Before:	Allsop P
Decision:	Notice of motion dated 21 December 2010 filed 24 December 2010 be dismissed with costs. [Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.]
Catchwords:	PROCEDURE - application to stay execution of judgment pending appeal proceedings - whether stay should be granted - whether appeal has reasonable prospects of success
Legislation Cited:	Protection of the Environment Operations Act 1997 (NSW)
Cases Cited:	Alexander v Cambridge Credit Corp Ltd (1985) 2 NSWLR 685, Miller v Nationwide News Pty Ltd [2008] NSWCA, Varma v Varma [2010] NSWCA 358
Texts Cited:
Category:	Principal judgment
Parties:	Charles D'Anastasi (Applicant) Environment Protection Authority (1st Respondent) Gregory Abood (2nd Respondent)
Representation
- Counsel:	Counsel: Mr J R Dupree (Applicant) Mr D K Jordan (1st & 2nd Respondents)
- Solicitors:	Solicitors: Russo & Partners (Applicant) Department of Environment, Climate Change and Water NSW (1st & 2nd Respondents)
File number(s):	2010/423014
Decision Under Appeal
- Court / Tribunal:
- Before:	Pain J
- Date of Decision:	16 December 2010
- Citation:	D'Anastasi v Environment Protection Authority and Anor [2010] NSWLEC 260
- Court File Number(s)	40881 of 2010
Publication Restriction:

Judgment

1. ALLSOP P: This is an application for a stay to the Court of Appeal in support of notice of appeal dated 21 December 2010. The source of the proceedings is the Land and Environment Court. On 16 December, Pain J made certain orders. The first was that she lifted, that is, dissolved the injunction made by Craig J on 26 November 2010 which in turn had been made by agreement in effect, between the parties which restrained the first and second respondents from seeking to enforce a notice and a variation of notice issued under s193 of the Protection of the Environment Operations Act 1997 (NSW) to which I will refer as the PEO Act.

2. Her Honour also dismissed the summons that had been filed by the present applicant on 29 October in which challenge had been made to the legitimacy of the notices under s 193. Her Honour also made an order that the applicant answer the statutory notice within 10 business days of publication of the Court's reasons and reserved the question of costs. Later that month, before Christmas, an application was made to her Honour to stay her Honour's orders which are refused. Thus, the motion before me today is, in effect, to stay her Honour's lifting of the earlier injunction. In effect, that is to hold position such that the…