State of New South Wales v Stevens (No 2)

The Court of Appeal of New South Wales, comprising McColl and Ward JJA and Sackville AJA, considered an application by the State of New South Wales to set aside or vary an order made on 12 December 2012. The dispute concerned the costs of an appeal.

The primary legal issue before the court was whether it had the power to set aside or vary its previous order pursuant to Rule 36.17 of the Uniform Civil Procedure Rules 2005 (NSW). This rule permits the court to set aside or vary an order if it is satisfied that the order was entered into by mistake or is otherwise vitiated by a fundamental defect.

The court reasoned that while Rule 36.17 provides a broad power to correct errors, it is not intended to allow a party to re-argue a matter that has already been decided, particularly where no question of principle arises. The State of New South Wales had not demonstrated that the order of 12 December 2012 was entered into by mistake or was vitiated by a fundamental defect. Consequently, the court declined to set aside the order.

The court ordered that order 6 of its orders made on 12 December 2012 be deleted, and that the Appellant pay the Respondent's costs of the appeal as agreed or assessed.