Weber v Greater Hume Shire Council (No 2)

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:

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.

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:

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

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.

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.

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.

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.

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.

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