Weber v Greater Hume Shire Council (No 2)

[2019] NSWCA 108

Court of Appeal

Supreme Court

New South Wales

Medium Neutral Citation:	Weber v Greater Hume Shire Council (No 2) [2019] NSWCA 108
Hearing dates:	On the papers
Date of orders:	14 May 2019
Decision date:	14 May 2019
Before:	Basten JA; Gleeson JA; Sackville AJA
Decision:	The Court makes the following order additional to those made on 17 April 2019:  (4)   To the extent that it contains orders, set aside the judgment given in the Common Law Division on 30 August 2018
Catchwords:	CIVIL PROCEDURE – appeal – judgments and orders – representative action – orders of trial judge a to plaintiff’s personal claim set aside – further order setting aside answers to common questions sought – whether judge made orders
Legislation Cited:	Uniform Civil Procedure Rules 2005 (NSW), r 36.17
Cases Cited:	Weber v Greater Hume Shire Council [2019] NSWCA 74 Weber v Greater Hume Shire Council (No 2) [2018] NSWSC 1338
Category:	Procedural and other rulings
Parties:	Sharon Patricia Weber (Appellant) Greater Hume Shire Council (Respondent)
Representation:	Solicitors: Maddens Lawyers (Appellant) Mills Oakley Lawyers (Respondent)
File Number(s):	2018/180967
Decision under appeal	Court or tribunal: Supreme Court Jurisdiction: Common Law Division Citation: [2018] NSWSC 667; [2018] NSWSC 1338 Date of Decision: 14 May 2018 Before: Walton J File Number(s): 2015/368036

Judgment

1. THE COURT: On 17 April 2019 the Court handed down judgment and made orders in relation to Ms Weber’s appeal from a judgment in the Common Law Division delivered on 14 May 2018. The orders entered in the Common Law Division on that date were as follows:

“(1)   The plaintiff’s claim is dismissed.

(2)   Subject to further orders of the Court, the plaintiff shall pay the defendant’s costs of the proceedings as agreed or, in the absence of agreement, as assessed.

(3)   In the event [there is] agreement as to answers to the common questions, the plaintiff shall file and serve a joint answer to the questions within 21 days of this judgment. If there is disagreement as to the answer[s] to the common questions, the parties shall file and serve their respective versions of the answers within the same timeframe. The matter will then be listed for directions, at a date to be fixed, to resolve any disagreement as to the common questions. 

(4)   In the event any application is made by the parties as to costs such application(s) and a summary of submissions in support thereof shall be filed and served within 21 days of this judgment. In the event of such application(s), the Court will list the matter for directions.”

2. On 17 April 2019 the Court made orders granting Ms Weber leave to appeal and setting aside the orders made on 14 May 2018: Weber v Greater Hume Shire Council [2019] NSWCA 74. The matter was remitted to the Common Law Division to deal with outstanding issues in the representative proceedings.

3. There was in fact a further hearing in the Common Law Division, before the appeal, on 4 June 2018. On 30 August 2018 the primary judge delivered a further judgment: Weber v Greater Hume Shire Council (No 2) [2018] NSWSC 1338. That judgment set out the answers provided by the parties to some 23 common questions which had been formulated in the representative proceedings. With respect to some questions there was disagreement; with respect to others there was agreement. Where there was disagreement, the judge indicated which answer he preferred. The conclusion of the reasons was stated in the following terms:

“[48]   The common questions posed for the proceedings are answered in accordance with the above. The order for costs is, in the circumstances described below, confirmed. I note the plaintiff’s claim is dismissed.”

4. The decision set out on the coversheet of the judgment was in the following terms:

“The common questions posed for the proceedings are answered. The order for costs made on 14 May 2018 is confirmed.”

The “order” entered in JusticeLink was a verbatim repetition of the statement on the coversheet.

5. On 28 February 2019, after the hearing of the appeal, this Court was supplied with a draft amended notice of appeal. The only substantive change from the document as filed was to refer to the judgment delivered on 30 August 2018 and seek an order setting the judgment aside.

6. Following delivery of judgment, on 8 May 2019 the solicitors for the plaintiff wrote to the Court requesting that, pursuant to r 36.17 of the Uniform Civil Procedure Rules 2005 (NSW), referred to as the “slip rule”, the Court amend the orders made on 17 April 2019 so as to set aside the judgment in the Common Law Division dated 30 August 2018. That is, a further order was sought.

7. Whether such an order is necessary is by no means certain. No document setting out the “orders” made on 30 August 2018 has been prepared. The orders can only be divined by extracting passages from the judgment published on that date. No orders have been entered on JusticeLink.

8. Further, all that the answers to the common questions provided was a summary of aspects of the findings derived from the judgment delivered on 14 May 2018. This Court has already set aside the orders made on 14 May, including the directions for the formulation of answers to the common questions; in the absence of any formulation of orders made on 30 August, it is extremely doubtful that there is any further legally effective order to be set aside.

9. Further, in circumstances where the answers to the common questions were prepared by the parties, with a substantial level of agreement, it is unclear why this Court is asked to make a formal order, rather than the parties filing a consent order in the Registry, or, indeed, the parties simply proceeding to the next stage in the litigation in the Common Law Division in circumstances where there are no binding answers given to the common questions.

10. From an abundance of caution, the Court makes the following order additional to those made on 17 April 2019:

(4)   To the extent that it contains orders, set aside the judgment given in the Common Law Division on 30 August 2018.

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Decision last updated: 14 May 2019