Hooper v Port Stephens Council (No 4)

[2010] NSWLEC 186

Land and Environment Court

of New South Wales

CITATION:

Hooper v Port Stephens Council (No 4) [2010] NSWLEC 186
This decision has been amended. Please see the end of the judgment for a list of the amendments.

PARTIES:

APPLICANT:
Stephen James Hooper

FIRST RESPONDENT:
Port Stephens Council

SECOND RESPODNENT:
Trevlyn Peter Hallett

FILE NUMBER(S):

40010 of 2010

CORAM:

Biscoe J

KEY ISSUES:

PRACTICE AND PROCEDURE :- judgments and orders - temporary stay of entry of costs orders

LEGISLATION CITED:

Land and Environment Court Rules 2007, r 7.6
Uniform Civil Procedure Rules 2005, rr 36.11, 36.16

CASES CITED:

Hooper v Port Stephens Council and Anor (No 3) [2010] NSWLEC 178

DATES OF HEARING:

24 September 2010

EX TEMPORE JUDGMENT DATE:

24 September 2010

LEGAL REPRESENTATIVES:

APPLICANT:
n/a

FIRST RESPONDENT:
n/a

SECOND RESPONDENT:
Mr P Larkin
SOLICITORS
Equilaw Solicitors

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

BISCOE J

24 September 2010

40010 of 2010

HOOPER v PORT STEPHENS COUNCIL AND ANOR

EX TEMPORE JUDGMENT

1 HIS HONOUR: Today her Honour Justice Pain delivered reasons for judgment in Hooper v Port Stephens Council and Anor (No 3) [2010] NSWLEC 178. Her Honour ordered the applicant, Mr Hooper, to pay the first and second respondents’ costs with certain exceptions subject, in effect, to a stay of those orders for certain periods.

2 The second respondent now moves orally for an order that the orders made by Justice Pain not be entered until further order by her Honour. The motion would ordinarily come before Justice Pain, however her Honour is on leave and consequently the motion has come before me as the duty judge. The reason for the motion is that the second respondent (and perhaps the first respondent) wishes to apply to vary the orders made by her Honour and considers that this may not be possible if the orders are entered in the meantime.

3 I am informed by counsel for the second respondent that he has communicated orally to the first respondent that the second respondent would be seeking a postponement of entry of the orders and that the first respondent consents. I have also been informed by counsel for the second respondent that his solicitor has spoken to the applicant, a litigant in person who lives in Port Stephens, who has indicated that he has not seen the judgment and would like the second respondent to put its position in writing to him.

4 In bringing this oral motion the second respondent erroneously assumed that entry of orders was governed by r 36.11(2) of the Uniform Civil Procedure Rules 2005 which provides: “Unless the Court orders otherwise, a judgment or order is taken to be entered when it is recorded in the court’s computerised court record system”. Under this rule, an order is entered automatically once it is entered on the court’s computerised record system. The Court may set aside or vary an order after it has been entered only in limited circumstances: r 36.16(2). However, if a notice of motion for setting aside or variation of an order is made within 14 days after it is entered, the Court may determine the matter as if the order had not been entered: r 36.16(3A).

5 There may be a question as to whether the Land and Environment Court has a computerised court record system within the meaning of UCPR 36.11 but it is unnecessary to consider that point further. That is because UCPR 36.11 does not apply in this jurisdiction. Rule 7.6 of the Land and Environment Court Rules 2007 provides: “Despite rule 36.11 of the Uniform Civil Procedure Rules 2005, unless the Court orders otherwise, a judgment or order is taken to be entered when a document embodying the judgment or order is first sealed by the Registrar”. It may be thought improbable that the applicant as a litigant in person would submit a form of order to the Registrar for sealing in order to effect entry of these costs orders against the applicant. Nevertheless, it is a possibility and once the orders are entered there may be difficulties in reopening them in the way that the second respondent contemplates.

6 As I have said, normally an application like this should be made to the judge who determined the matter but in the circumstances of that judges’ absence on leave I am prepared to make an order that would maintain the status quo pending further order by that judge, even though this may not be strictly necessary if the second respondent were to file a timely notice of motion for variation as provided for in UCPR 36.16.

7 The orders of the Court are as follows:

1. Order that the orders made by Justice Pain on 24 September 2010 not be entered until further order of her Honour.
2. Order that the respondents file any notice of motion relating to the said orders together with supporting evidence and submissions by Wednesday 29 September 2010.
3. Re-list the matter before Justice Pain on a date to be arranged as soon as possible by arrangement with her Honour’s Associate and the registry.

01/10/2010	-	typographical error "variation" should be "vacation" - Paragraph(s) 6 (last line)
01/10/2010	-	cancel the earlier said correction - Paragraph(s) 6