Hunter Development Corporation v Save Our Rail NSW Incorporated (No 2)

The dispute in *Hunter Development Corporation v Save Our Rail NSW Incorporated (No 2)* concerned an appeal before the New South Wales Court of Appeal. The appeal arose from a decision at first instance, and the central issue on appeal was whether the Court should proceed to deliver judgment despite the supervening enactment of legislation that rendered the substantive appeal moot, save for the question of costs.

The Court of Appeal was required to determine whether proceeding to judgment in such circumstances would result in the Court impermissibly delivering an "advisory opinion." It also had to consider whether it should set aside the principal judgment given at first instance, and whether it was appropriate to proceed to a determination of the appeal when costs at first instance remained in issue between the parties. Furthermore, the Court was asked to consider the appropriateness of departing from the usual costs orders under the *Civil Procedure Act 2005* (NSW) s 98 and *Uniform Civil Procedure Rules 2005* (NSW) r 42.1, particularly in light of the possibility that the proceedings might be considered "public interest litigation" or that the appeal being rendered moot by subsequent legislation warranted a departure from the usual costs order.

The Court of Appeal ultimately dismissed the notice of motion. The reasoning, though not detailed in the provided text, would have addressed the principles governing the Court's jurisdiction and discretion when legislation intervenes after judgment has been reserved. This would likely have involved consideration of the distinction between advisory opinions and the Court's power to make binding declarations or to determine costs orders even in moot cases. The dismissal of the motion indicates the Court's view that it was appropriate to proceed to a determination, at least in relation to costs, and that the circumstances did not warrant setting aside the principal judgment or making an unusual costs order in favour of the appellant.

The notice of motion was dismissed with costs.