Hooper v Port Stephens Council (No 5)

[2010] NSWLEC 194

Land and Environment Court

of New South Wales

CITATION:

Hooper v Port Stephens Council (No 5) [2010] NSWLEC 194

PARTIES:

APPLICANT:
Stephen James Hooper

FIRST RESPONDENT:
Port Stephens Council

SECOND RESPONDENT:
Trevlyn Peter Hallett

FILE NUMBER(S):

40010 of 2010

CORAM:

Biscoe J

KEY ISSUES:

PRACTICE AND PROCEDURE :- whether necessary or appropriate to order that orders not be entered where under statutory regime if a notice of motion to set aside or vary an order is made within 14 days after it is entered, the court may determine the matter as if it had not been entered.

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 & Anor (No 3) [2010] NSWLEC 178
Hooper v Port Stephens Council (No 4) [2010] NSWLEC 186

DATES OF HEARING:

1 October 2010

EX TEMPORE JUDGMENT DATE:

1 October 2010

LEGAL REPRESENTATIVES:

APPLICANT:
Mr Stephen Hooper (in person)

FIRST RESPONDENT:
Mr M Fraser, barrister
SOLICITORS
Harris Wheeler

SECOND RESPONDENT:
Mr P Larkin, barrister
SOLICITORS
Equilaw Solicitors

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

BISCOE J

1 October 2010

40010 of 2010

HOOPER v PORT STEPHENS COUNCIL & ANOR

EX TEMPORE JUDGMENT

1 HIS HONOUR: On 24 September 2010 Justice Pain made costs orders against the applicant in favour of the respondents: Hooper v Port Stephens Council & Anor (No 3) [2010] NSWLEC 178. That afternoon, on the application of the second respondent, I made an order that those costs orders not be entered until further order of her Honour: Hooper v Port Stephens Council (No 4) [2010] NSWLEC 186. The matter came before me on that occasion, and again today, as the duty judge because her Honour was on leave. My order was made because at that time the second respondent wished to reopen her Honour’s costs orders and considered that there may be difficulties in doing so if they were entered. I said in my judgment that I was prepared to make the order to maintain the status quo pending further order by her Honour, even though this may not be necessary if the second respondent were to file a timely notice of motion for variation as provided for in Uniform Civil Procedure Rules 2005 (UCPR) 36.16. I expressed the qualification in that way because I did not have the benefit of any submission on it and only the second respondent was represented before me on that occasion.

2 The matter is before me again today on Mr Hooper’s application to vacate my order. There is an issue as between him and the second respondent as to whether he received notice of the hearing before me on 24 September 2010, which it is unnecessary to resolve because the respondents consent to the vacation of my order and the second respondent consents to an order that it pay the reasonable travel costs of Mr Hooper in attending today.

3 I am informed that the second respondent has decided not to proceed with its course foreshadowed before me on 24 September to reopen her Honour’s orders, but that the first respondent has elected to take that course and has filed a notice of motion to that effect.

4 This morning I asked counsel to assist me with the qualification expressed in my judgment of 24 September 2010 that an order restraining the entry of judgment may not be necessary (or appropriate) because a timely notice of motion for variation may be filed as provided for in UCPR 36.16(3A). Counsel agree that that interpretation seems to be correct. In my opinion it is correct. My reasoning is as follows.

5 Under r 36.11(2) UCPR, 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. The machinery for entry of a judgment or order is different in the Land and Environment Court by virtue of r 7.6(2) of the Land and Environment Court Rules 2007 (LECR) than it is in other courts under r 36.11(2) UCPR. Rule 7.6(2) LECR provides that:

“(2) 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.”

6 Rule 7.6(2) LECR overrides r 36.11(2) in the Land and Environment Court. However r 36.16(3A) UCPR applies in the Land and Environment Court. Under r 36.16(3A) UCPR, if a notice of motion for setting aside or variation of an order is made within 14 days after it was entered, the court may determine the matter as if the order had not been entered. There is therefore normally no utility in making an order restraining entry (such as was made on 24 September) since the party seeking to set aside or vary the order can achieve the same result under r 36.16(3A) by filing a notice of motion to set aside or vary the order within the time prescribed by that rule. In the present case, the first respondent has filed a notice of motion seeking such relief albeit the costs orders have not been entered.

7 The orders of the Court are as follows:

1. Order 1 made by Justice Biscoe on 24 September 2010 is vacated.
2. The second respondent is to pay the applicant’s reasonable travel costs relating to the hearing on 1 October 2010 as agreed or assessed.