South West Helicopters Pty Ltd v Stephenson (No 2)

1. [1]

   THE COURT: On 7 December 2017 the Court handed down judgment in three appeals arising out of a fatal helicopter crash. The appeals were brought by (a) South West Helicopters Pty Ltd and Country Connection Airlines Pty Ltd, (b) Essential Energy, and (c) Parkes Shire Council: South West Helicopters Pty Ltd v Stephenson. [1] In handing down judgment, the Court granted liberty to apply in the following terms:

2. [2]

   The Court took the step of formulating orders rather than leaving that matter to the parties, partly because the orders formulated by the parties and made by the trial judge were in some cases not properly expressed, overlapping and not readily capable of being checked. The parties had not been able to clarify the meaning of some orders, nor adequately explain why other orders had been made at all.

3. [3]

   Applications to vary the Court’s orders have now been made by each of the appellants. Again, in some cases, the requests have been opaque, or proposed orders identical to those prepared by the Court or have sought orders that were not sought on the appeal. Others could readily have been disposed of by consent.

(a) Issues

1. [4]

   One party, Essential Energy, stated in its second submission, dated 22 February 2018, that there are “procedural complexities and a degree of asymmetry between some of the primary proceedings and the consequent cross-claims.” That was said to be a basis for a request for a further oral hearing. The basis of the request is not readily comprehensible. If an oral hearing were not to be granted, Essential Energy sought seven days to make a further written submission in reply to a submission by South West. Shortly thereafter, on 5 March 2018, it filed a further submission, which was an expansion on its December submission and not in reply.

2. [5]

   In its 5 March submission Essential Energy stated:

3. [6]

   The Registrar’s indication was correct because the Court had not then addressed the request. The Registrar had given directions, in respect of each set of written submissions, that if a further oral hearing were sought, the party contending for an oral hearing “is to address that shortly in their written submissions.” No party represented by experienced litigation solicitors and counsel should have made the assumption to which the written submissions referred. The first submissions filed for Essential Energy complied with the page limit specified in directions; the later written submissions did not. In any event, no further oral hearing has occurred; the additional expense would not have been justified.

4. [7]

   The notice of motion filed by Essential Energy on 22 December 2017 sought to replace all of the orders made by the Court in its judgment. In fact, not all the orders were varied, some were varied in minor respects, some were merely renumbered, and some were entirely new. The form of the proposed “variation” had two effects; first, it required the Court (and any opposing party) to work out for themselves what was sought to be varied; secondly, it effectively prevented any orders being entered in accordance with the direction that orders were to be entered 28 days from the date of judgment except to the extent that application had been made to vary them.

5. [8]

   Orders (1)(a) and (b), and order (4) were not varied in any sense, except that order (4) was renumbered (5). Order (1) was sought to be varied by the addition of par (c) in the following terms:

6. [9]

   The Court’s order (2) read “In place thereof dismiss the proceedings against the Appellant.” This was sought to be varied by addition of the words “and all cross-claims” after “the proceedings”. Although it seems unnecessary, it is no doubt appropriate, given the terms of the additional order 1(c), to add these words.

7. [10]

   Original order (3) was in the following terms:

8. [11]

   The proposed variation deleted the opening words of the provision (thereby implicitly and inexplicably leaving the trial judge’s order on foot) and added the words “and cross-claims” after the word “claims”. The first amendment is inappropriate and the second amendment is unnecessary but may be made in the interests of certainty.

9. [12]

   Orders (3) and (4) were renumbered, a course which is unnecessary and require no variation.

10. [13]

    These were minor points; there were also two major changes proposed by Essential Energy. First, it sought an order that the first and second respondents (South West and Country Connection) repay Essential Energy the 10% contribution ordered by the trial judge, payments having been made on different dates between 19 September and 8 December 2016, with interest. That matter has been resolved by agreement. [2]

(b) Interest on costs – the issues

1. [14]

   The remaining issue is whether an order should be made for payment of interest on legal costs and disbursements incurred by the appellant from the date that it paid its own costs and disbursements, both at trial and on appeal.

2. [15]

   On 7 September 2016 Essential Energy commenced proceedings in this Court by way of notice of cross-appeal challenging the judgments against it in each proceeding below, but principally that brought by South West. It sought an order for costs, but did not seek an order for interest on costs. On 7 March 2017 Essential Energy filed a notice of appeal, seeking the same orders.

3. [16]

   Essential Energy supplied an affidavit stating that a sum in excess of $2.7m had been incurred on account of legal costs and disbursements (without allowance for interest), a sum approximately ten times the judgment against it at trial.

4. [17]

   South West submitted that, although ultimately entirely successful, Essential Energy had raised issues both by way of a cross-appeal and at trial on which it was unsuccessful. The inference sought to be drawn was, no doubt, that had Essential Energy limited its legal costs to the issue on which it was successful, the costs incurred would have been a fraction of those now sought to be recovered, even with interest.

5. [18]

   The application for interest on costs requires the Court to address the following issues, namely:

6. [19]

   Provision for recovery of interest on amounts payable under court-ordered costs is found in s 101 of the Civil Procedure Act 2005 (NSW). The section deals with both interest on the amount of a judgment and, separately, on orders for costs. Nevertheless, it is convenient to set out the whole of the provision, as it currently reads, in order to appreciate the different regimes.

7. [20]

   The critical provisions with respect to costs are subss 101(4) and (5). The default position is that interest is payable, but only on the amount the subject of a court order: s 101(4). According to that provision, interest does not run from any earlier date. That the default date is “the date the order was made” is confirmed by subs (5). The issue is whether the court, exercising the power to specify “any other date”, can order that the calculation run from the date on which particular costs were paid by the party to its lawyers.

8. [21]

   Read in isolation, the phrase “any other date” would permit such an order, being the order sought by Essential Energy. However, there are contextual considerations which cast doubt on that conclusion.

9. [22]

   First, the provisions with respect to interest on costs are to be found in the same section as the provisions with respect to interest on a judgment. Although the heading to the section is not part of the Act, [3] it can be taken into account as extrinsic material. [4] The heading to s 101 is “Interest after judgment”; this may be contrasted with s 100, which provides for “Interest up to judgment”. Section 100 makes no provision for payment of interest on costs for the period prior to a court order. This militates against a reading of s 101(5) which would permit interest to be calculated on costs from the date of payment by the party to its lawyers to the date of the court order.

10. [23]

    With respect to a judgment, interest is to be calculated either from “the date on which the judgment takes effect” or from “such later date as the court may order.” Consistently with the operation of s 100, there is no power to backdate the calculation of interest payable on the amount of a judgment. However, so far as a judgment is concerned, it is necessary to determine when “the judgment takes effect”.

11. [24]

    Further provision is made for the date of effect of judgments and costs orders in the Uniform Civil Procedure Rules 2005 (NSW) (“UCPR”), in the following terms:

12. [25]

    In practice judgments are rarely backdated, except where a judgment on appeal is backdated to the date of judgment in the trial court, or a judgment is ordered to take effect from an earlier separate determination of liability, with damages to be assessed. However, it might need to be an exceptional case in which such a step could be taken; the effect of such an order would be to deprive the plaintiff of pre-judgment interest for a period for which it might otherwise be available, and deprive the defendant of the opportunity to avoid post-judgment interest by paying the judgment in full within 28 days, pursuant to s 101(3). The presumption in s 101(2)(b) is that the court may order a later date as the date from which the calculation of interest may run.

13. [26]

    Contextual factors thus favour a more limited reading of the power conferred to calculate interest from “any other date that the court orders.” It is necessary then to turn to the legislative history.

14. [27]

    Prior to 24 November 2015, the relevant parts of s 101 were quite differently formulated;

15. [28]

    The amendment to subs (4) [5] removed the requirement for a court order for payment of interest on costs and replaced it with a default position providing for interest on costs unless the court otherwise ordered. The change to subs (5) was substantial. It removed an express power to order that interest be calculated from the date or dates on which costs were paid, or some later date, which clearly encompassed a date earlier than the court order. That history would suggest that the new provision was not intended to provide for interest to be calculated from the date when the costs were paid, although the indication is not strong.

16. [29]

    Other aspects of the legislative history tell a different story. The amendments to s 101(4) and (5) were the result of a review undertaken at the behest of the Chief Justice, entitled “Review of the Costs Assessment Scheme” (“Review Report”). The review (undertaken by the Hon Paul Brereton AM RFD) made a recommendation in the following terms:

17. [30]

    The basis of that recommendation was spelled out in more detail in the following paragraphs of the Review Report:

18. [31]

    The explanatory note accompanying the bill dealt with the amendments to s 101 in the following terms:

19. [32]

    Finally, the Minister’s second reading speech dealt with the amendments in the following terms:

20. [33]

    These various descriptive passages do not speak with one voice, except to indicate that the breadth of the discretion conferred on the court to specify any other date from which interest might be calculated (other than the date of the costs order) was intended to allow that the interest could be allowed to run from the date on which the costs were paid or, possibly, the date from which the party paying the costs incurred interest. The justification for backdating the date from which interest is to be calculated is also tolerably clear; it is to reflect the economic burden of the payment of costs by a party which later enjoys success and obtains an order for payment of its costs. That reading of s 101(5) should be accepted.

21. [34]

    There is a transitional provision with respect to the operation of the new s 101(4) and (5). It provides that the amendments “do not extend to proceedings commenced before the commencement of [Sch 1.2 of the 2015 Amending Act] and those proceedings may continue as if those amendments had not been enacted.”

22. [35]

    The transitional provision requires a determination of when the relevant proceedings commenced. The appeal being by way of rehearing, is the order for costs made with respect to the trial to be treated as an order in the appeal proceedings or as an order in the trial proceedings? If the latter, the old rule will apply to it; however if the order is made in the appeal as part of the appeal proceedings, the new rule will apply with respect to the costs of the trial and the appeal.

23. [36]

    There have been three cases in this Court where the transitional provision was in play, but in none did the present issue arise because in each the appeal was commenced before 24 November 2015. [6] As the purpose of the transitional provision was not to change the rule with respect to proceedings on foot in November 2015, but rather that they should “continue as if [the] amendments had not been enacted”, the old provision should apply to the costs of the trial proceedings. Although the appeal is by way of rehearing, for most purposes it is treated as a separate proceeding; accordingly the new provision should apply to the appeal.

24. [37]

    When an order for interest was made under the old provision, the courts had to deal with the difficulty caused by lack of information as to the ultimate assessment. The Court adopted a formula which provided for the calculation of interest by reference to the proportion of each payment, being the part of the costs ultimately allowed on assessment as a fraction of the total amount paid. [7] However, that simple arithmetical formula may not cater for a case where an ultimately successful party incurred a large proportion of its costs at an early stage, but in relation to issues on which it failed. The approach was not to be treated as universally applicable.

25. [38]

    This Court has not yet had to consider the application of the new provision. With respect to the old provision, there are suggestions that there was a conflict between authorities in this Court. [8] It has never been found necessary to resolve that conflict, which, subject to the operation of the transitional provisions, is now of limited significance.

26. [39]

    However, as it is necessary to apply the old rule with respect to the costs of the trial, it is necessary to consider the apparent conflict. Given the overlapping constitution of the Court in various cases, it would be surprising if there were a true conflict. The better view is that a different emphasis as to the appropriate approach to the exercise of the discretionary power may be found in cases involving different circumstances. It is sufficient to refer to three judgments.

27. [40]

    The first, Drummond and Rosen Pty Ltd v Easey [No 2], [9] involved a careful analysis by Handley AJA as to the historical developments with respect to the provisions relating to payment of interest on costs. As part of that review, Handley AJA noted that prior to 1995 the power to allow interest on costs had been vested in the taxing officers; thereafter, the power was conferred on the court. [10] Consistently with that construction, the Review Report noted that it became necessary to bring separate proceedings (often in the Local Court) to recover interest on costs which could not be included in the assessor’s certificate. [11] This factor explained Handley AJA’s conclusions, expressed in the following terms:

28. [41]

    Without addressing that specific problem, the majority took a different view. Macfarlan JA (Tobias JA agreeing), concluding that it was “unnecessary for there to be evidence of the date or dates on which the costs concerned were paid for an order for the payment of interest to be made” and, noting that the purpose of the order was “essentially compensatory”, stated that there was no necessity “in the usual case” for the court to know when the costs were paid. [12]

29. [42]

    The issue as to evidence of the dates of payment has, subsequently, not been seen as a critical discretionary factor. Nor is it necessary to revisit the issue for present purposes: that is because from 9 June 2015 s 70 of the Legal Profession Uniform Law Application Act 2014 (NSW) confers a power on an assessor to include a calculation of interest ordered under s 101 of the Civil Procedure Act. Accordingly, the problem which vexed the Court in Drummond and Rosen has been resolved.

30. [43]

    The second case is Doppstadt Australia Pty Ltd v Lovick & Son Developments Pty Ltd, [13] in which Gleeson JA stated:

31. [44]

    It is clear from the opening words of this passage (not always quoted in later authorities) that the paragraph was not intended to be an exhaustive statement of the relevant principles. Further, although there can be no doubt as to the correctness of the statement, what may constitute “countervailing discretionary factors” must now be viewed in light of the new rule. Importantly, the question under the new provision is whether the Court should backdate the period over which interest is calculated, a matter which was the default position where an order was made under the old rule.

32. [45]

    In the third case, Illawarra Hotel Company Pty Ltd v Walton Construction Pty Ltd (No 2), [14] it was explained that where proceedings are protracted, it may be appropriate to consider why they were protracted, whether the delay was unreasonable and, if so, whether the party seeking interest on its costs was to any extent responsible for that delay.

33. [46]

    That approach involved no departure, or qualification, or even change in emphasis, from Doppstadt. The passage frequently cited as the rationale of the judgment is as follows:

34. [47]

    But that passage cannot properly be viewed in isolation from the preceding paragraphs. There were three factors addressed by the Court. The first was that Illawarra Hotel had sought interest on costs awarded to it in the Equity Division, when it had not sought that order either in the Equity Division, or in its amended notice of appeal. Secondly, the Court accepted the statement by Campbell J in Lahoud that there was no need for the Court to be satisfied that the circumstances of the case “are out of the ordinary” before making an order for payment of interest on costs. [15] The Court then noted that “Illawarra nevertheless recognises that the power to award interest on costs is discretionary and that some positive case must be made in support of the application.” [16] Finally, the supposed statement of principle was made in response to a submission by the respondent to the appeal that “the question of interest on costs cannot be determined without an exhaustive consideration of the circumstances that caused the proceedings to be protracted by the serving of evidence on unsuccessful issues, futile amendments to pleadings, issues not pursued at trial and matters relevant to McDougall J’s observation concerning ‘the evident animosity between the parties and the lengths to which each has gone to buttress its case’.” [17]

35. [48]

    The tendency to extract statements which are responsive to the particular circumstances of a case and elevate them into freestanding statements of principle is wrong. Once that point is appreciated, there is no conflict in relation to the approach taken by this Court to applications for interest on costs made in widely differing circumstances.

36. [49]

    A range of other considerations will arise in particular circumstances. In two cases before single judges of the Court there was discussion relating to the new provision. [18] Thus, in T&DC Pty Ltd v Workforce Clothing Pty Ltd (No 3) [19] McCallum J stated, in addressing an order for interest apparently brought under the new provisions:

37. [50]

    In litigation between two family members involved in proceedings under the Property (Relationships) Act 1984 (NSW), Maria Saravinovksa v Krste (Chris) Saravinovski (No 7) [20] , Kunc J stated:

38. [51]

    In Sheppard v State of New South Wales, [21] Lonergan J, although referring to the current version of s 101, correctly adopted the approach relevant to the old version, including the reasoning of Campbell J in Lahoud, and continued:

(A) Costs of trial

1. [52]

   In considering the application by Essential Energy for interest on the costs incurred in the trial, the old provision applies not permitting the recovery of interest unless the court so orders. There are two general considerations and some particular considerations which should govern the exercise of the discretion.

2. [53]

   The first general consideration is that the court should be wary of adopting any approach which could lead to satellite litigation. Such a consequence would contradict the obligations under s 56 of the Civil Procedure Act to facilitate the just, quick and cheap resolution of the real issues in the proceedings and would contradict the principles articulated in the same vein by the High Court in Expense Reduction Analysts Group Pty Ltd v Armstrong Strategic Management and Marketing Pty Ltd. [22]

3. [54]

   The second general principle is that different considerations may well apply to costs incurred in disputes between (or where the interested parties are) large commercial entities, in contrast to disputes between uninsured individuals. In disputes between uninsured individuals the court may wish to have some evidence that the proceedings have been financed through interest-bearing credit or, if not, that there is a realistic likelihood that interest has otherwise been foregone by the party seeking interest. If the proceedings have been funded under a speculative agreement, it may be relevant to know whether the solicitors have a contractual entitlement to interest on outstanding costs. By contrast, in litigation between large commercial entities or insurers, the court may be willing to assume that expenses, where significant in amount, will have been funded from debt or from commercial opportunities foregone if paid from cash-in-hand. In any case where interest is awarded, there will be a benefit in applying the court rate for pre-judgment interest to avoid potential further litigation as to the actual cost to the party.

4. [55]

   In the present case, the claim by Essential Energy related to costs incurred as between it and South West and Parkes Shire Council, each of which may be treated as a large commercial entity for these purposes. (The plaintiffs did not join Essential Energy to their claims.) There was evidence from the solicitor for Essential Energy that fees were charged on a regular basis and were paid as they fell due. It should be accepted that Essential Energy incurred costs in funding the litigation. It may thus be accepted that any order for payment of interest on costs would be compensatory in effect.

5. [56]

   There are particular features of the case which militate against an order for interest. First, there were three judgments delivered at trial. The first concerned liability, the second apportionment and the third costs (as well as other aspects of the form of the orders). With respect to the cross-claims brought by Essential Energy against the Council, Essential Energy sought its costs; [23] there is no suggestion that it sought interest on those costs. There was no evidence or submission on the present application suggesting that Essential Energy had sought interest on the costs of the trial. Although its entitlement to costs has increased significantly as a result of its success on the appeal, its failure to seek interest on costs of the trial at the time of the trial is a significant factor weighing against the exercise of the discretion on appeal with respect to the costs of the trial.

6. [57]

   Secondly, the Court is entitled to take into account the evidence that Essential Energy has expended some $2.7 million by way of costs and disbursements in relation to these proceedings. Given that the involvement of Essential Energy was entirely by way of response to cross-claims brought by South West, together with its own cross-claims against South West and the Council, it could only realistically have been liable for a proportion of the total amounts payable to the plaintiffs. Furthermore, there are realistic limits to the amounts recoverable by relatives of a deceased family member. Accordingly, even disregarding the outcome, the amount expended by Essential Energy was grossly disproportionate to any amount for which it might reasonably expect to become liable. This is a weighty factor against increasing the amount of costs recoverable by way of interest, and thus increasing the disparity between the costs incurred and the importance of the subject-matter, in disregard of s 60 of the Civil Procedure Act. Thirdly, because the Court has no information as to when amounts were paid by way of costs and disbursements, it has no way of knowing with any exactitude what amount might theoretically be claimable by way of interest. This factor must be taken into account against an award, in combination with the previous factors.

7. [58]

   Taking account of the foregoing considerations, the Court should decline to order that Essential Energy receive interest on the costs ordered to be paid to it with respect to the trial.

(B) Interest on costs of appeal

1. [59]

   With respect to its costs of the appeal, Essential Energy is entitled to interest on costs from the date of the Court’s order. No party has sought to vary that consequence of the current form of s 101(4). The sole question is whether Essential Energy should have the effect of the calculation of interest backdated to the date on which it paid its lawyers for the appeal.

2. [60]

   The general factors noted above should be considered, together with the specific factors relevant to this case. In addition, South West raised, as a basis for declining to award interest, a number of factors which might have formed the basis for disallowing part of the costs awarded to Essential Energy. Although no such variation was sought, those considerations would be relevant to the costs on which interest should be awarded. There is no reason to reject these considerations as irrelevant to the exercise of the residual discretion, described in the Review Report as “unfettered”. As the Court has said with respect to the earlier form of the power, where proceedings have been protracted the cause of any delay may be a highly significant consideration. [24] Such factors will still be relevant under the new power.

3. [61]

   The first specific factor is that the Court has no indication of what costs were incurred with respect to the appeal, nor when they were paid. Essential Energy did not appeal initially, but filed a notice of cross-appeal on 7 September 2016. The judgment on appeal was delivered on 7 December 2017. It did not seek interest on costs in its cross-appeal, nor when it filed a notice of appeal. Given the relatively small amount at issue for Essential Energy in this Court, it would be important for the Court to know what amount was being considered with respect to costs of the preparation for and conduct of a three day appeal. There is at least the possibility that the amount of costs incurred by Essential Energy in this Court may have been disproportionate to the amount in issue. If that were the case, it might be inappropriate to increase the disproportion by awarding a further amount by way of interest.

4. [62]

   On the other hand, in circumstances where interest has not been claimed prior to judgment, it would be tantamount to inviting satellite litigation to permit claims for small additional amounts to be brought, without prior notice to the parties, after judgment is delivered. The current pre-judgment interest rate under the UCPR is, from 1 January 2017, 5.5%. If one were to assume that the outstanding amount was, on average, $100,000, for the period of one year, the amount in issue would be $5,500. (If the amount were larger, the risk of creating greater disproportion between costs and the amount in issue would be correspondingly increased.) There is no reason for the Court to entertain such an application, with no knowledge of whether interest has been incurred, or for what amount, or what period, where the request is first raised after judgment.

5. [63]

   In these circumstances, the Court should allow the default position under the rules to stand. The application for a further order under s 101(5) should be refused.

(2) Parkes Shire Council’s application

1. [64]

   The Council gave notice on 4 January 2018 in the following terms:

2. [65]

   No indication of the variations sought was provided. It was not possible for other parties to know whether they were required to respond. With respect to the first matter, order (4)(c) required that Parkes Shire Council pay the costs of the defendant (South West) in proceedings brought by it against South West under s 151Z(1)(d) of the Workers Compensation Act 1987 (NSW). Order (9) required that the Council pay 25% of South West’s costs of the appeal brought by South West. No reason was given to vary either of these orders. The Council’s written submissions did not address any variation to those orders.

3. [66]

   Orders 5(d), (6)(c) and (7)(c) required that the Council pay the plaintiffs’ costs in each of the separate proceedings brought by members of the Stephenson family. Such claims against a joint tortfeasor, if made in a timely manner in a cross-claim and then on the appeal, would no doubt be successful; contribution may include both damages and costs. [25] However, South West was not a joint tortfeasor in the ordinary sense, as the submissions on the motion conceded; there was an issue as to whether the cap on recovery under s 31 of the Civil Aviation (Carriers’ Liability) Act 1959 (Cth), was exclusive of costs. Further, at least in this Court, the issue was not raised before judgment was delivered. This application should not be entertained post-judgment on a motion to vary the orders to accord with the Court’s determination of the appeal.

4. [67]

   In the second matter, the Council, South West and Country Connection were, by order (4), required to pay Essential Energy’s costs of the appeal. As the principal judgment correctly stated at the outset, [26] the Council did not bring any claim or cross-claim against Essential Energy. The later statement that it did was in error; [27] rather, Essential Energy cross-claimed against the Council. [28] The order that the Council bear responsibility for Essential Energy’s costs of the appeal should not have been made and the order should be varied accordingly.

5. [68]

   With respect to the third matter, order (2) required the Council to pay the Stephensons’ costs incurred with respect to the Council’s appeal and the Council’s cross-appeal in South West’s appeal. No variation was sought; it was not referred to in the written submissions on the motion.

South West’s application

1. [69]

   South West made an application for a variation of the judgment in favour of the Council against South West in matter 2016/255761, being South West’s appeal. The application related to the proceedings brought by Parkes Shire Council against South West pursuant to s 151Z of the Workers Compensation Act, in which Parkes Shire Council had claimed an amount of $357,316. The judgment at trial was in an amount of $277,316 plus interest; the variation sought is a reduction to an amount of $224,000, in round terms, plus interest. The proceedings (matter 339501/2009 in the Common Law Division) were for the recovery of compensation payments to the wife of the deceased, Malcolm Buerckner. This Court did not interfere with that order.

2. [70]

   Although with respect to the proceedings brought by the Council to recover compensation paid in respect of the death of Mr Stephenson, the Court concluded that the proceedings should have been dismissed, no similar order was made with respect to Mr Buerckner’s widow. The Court stated: [29]

3. [71]

   As the Court made no order with respect to those proceedings there is no order to vary. Although the Council did not respond to this application, there is no reason to entertain it.

Orders

1. [72]

   (A) In matter No 2017/70847, Essential Energy’s appeal:

   1. (1)

      Vary order (1) made on 7 December 2017 to add par (c):

   2. (2)

      Vary order (2) to add the words “and all cross-claims” after “the proceedings”.

   3. (3)

      Vary order (3) to add the words “and cross-claims” after “claims”.

   4. (4)

      Vary order (4) to delete reference to the “sixth respondent”, so that it now reads:

   5. (5)

      Subject to variations at (A)(1), (2) and (3), otherwise dismiss Essential Energy’s notice of motion filed 22 December 2017.

   6. (6)

      Subject to the variations at (A)(4), otherwise dismiss Parkes Shire Council’s application dated 4 January 2018 to vary the orders of the Court.