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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2010] NSWLEC 194
Decision Date: 1 October 2010

CaseChat Overview and Summary

In Hooper v Port Stephens Council (No 5), Stephen James Hooper, the applicant, sought to vacate an order made by Justice Biscoe on 24 September 2010, which had temporarily restrained the entry of costs orders made by Justice Pain in favour of the respondents. The respondents, Port Stephens Council and Trevlyn Peter Hallett, consented to the vacation of the order and agreed to pay the applicant's travel costs for the hearing on 1 October 2010. The court was required to determine whether it was appropriate to make an order that costs orders not be entered under the statutory regime, given that a notice of motion to set aside or vary an order could be made within 14 days after it was entered, and the court could then determine the matter as if the order had not been entered. The court considered the relevant rules and authorities, and concluded that it was not necessary or appropriate to make such an order, as the same result could be achieved by filing a notice of motion to set aside or vary the order within the time prescribed by the relevant rule.

The court further examined the different mechanisms for entry of a judgment or order in the Land and Environment Court, as opposed to other courts. Under rule 7.6(2) of the Land and Environment Court Rules 2007, a judgment or order is taken to be entered when a document embodying the judgment or order is first sealed by the Registrar, whereas under rule 36.11(2) of the Uniform Civil Procedure Rules 2005, a judgment or order is taken to be entered when it is recorded in the court’s computerised court record system. The court noted that rule 7.6(2) of the LECR overrides r 36.11(2) UCPR in the Land and Environment Court, but that 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. The court therefore concluded that there is normally no utility in making an order restraining entry, 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 had filed a notice of motion seeking to set aside or vary the costs orders, albeit the costs orders had not been entered. The court vacated the order made on 24 September 2010 and ordered that the second respondent pay the applicant's reasonable travel costs relating to the hearing on 1 October 2010 as agreed or assessed. The court's decision highlights the importance of understanding the different mechanisms for entry of a judgment or order in the Land and Environment Court, and the utility of filing a notice of motion to set aside or vary an order within the time prescribed by r 36.16(3A) UCPR. The court's decision also underscores the importance of ensuring that parties receive notice of hearings, and the need for the court to maintain the status quo where necessary to avoid any difficulties in reopening a judge's orders.

Orders