State of New South Wales v Stevens (No 2)

[2012] NSWCA 448

Court of Appeal

New South Wales

Case Title:

State of New South Wales v Stevens (No 2)

Medium Neutral Citation:

[2012] NSWCA 448

Hearing Date(s):

On the papers

Decision Date:

24 December 2012

Before:

McColl JA, Ward JA, Sackville AJA

Decision:

1. Delete order 6 of the Court's orders made on 12 December 2012;

2. Appellant to pay the Respondent's costs of the appeal as agreed or assessed.

[Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.]

Catchwords:

PROCEDURE - entry of judgments and orders - application to set aside or vary orders - UCPR r 36.17 - no question of principle

Legislation Cited:

Uniform Civil Procedure Rules 2005, r 36.17

Category:

Consequential orders

Parties:

State of New South Wales (Appellant)
Helen Stevens (Respondent)

Representation

- Counsel:

Counsel:

- Solicitors:

Solicitors:
Crown Solicitor's Office (Appellant)
Herbert Weller (Respondent)

File Number(s):

2012/62221

Decision Under Appeal

- Before:

Olsson SC DCJ

- Date of Decision: 

29 November 2011

- Court File Number(s):

2010/284809

Publication Restriction:

No

JUDGMENT

1. The Court: The Court handed down judgment in this matter on 12 December 2012: State of New South Wales v Stevens [2012] NSWCA 415. It allowed the appeal in part by varying the sum awarded for nominal damages and, as each party had had a measure of success, its sixth order was that the appellant and respondent bear its and her costs of the application for leave to appeal and the appeal respectively.

2. The parties have now drawn to the Court's attention an undertaking given by the appellant that it would pay the respondents' costs in any event. They have applied pursuant to the slip rule (Uniform Civil Procedure Rules 2005, r 36.17) to have the costs order amended to read:

   "6. The Appellant to pay the Respondent's costs of the appeal as agreed or assessed"

3. Although the appellant's undertaking was communicated in terms to the Registrar of the Court of Appeal, the parties did not explicitly draw it to the attention of the Court which heard the appeal. This clearly led to an "accidental slip or omission" in the costs order capable of attracting the operation of the slip rule.

4. Accordingly the Court makes the following orders:

   1. Delete order 6 of the Court's orders made on 12 December 2012;

   2. Appellant to pay the Respondent's costs of the appeal as agreed or assessed.

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