Viavattene v Tweed Shire Council [2013] NSWCA 331

Court of Appeal Supreme Court New South Wales Medium Neutral Citation: Viavattene v Tweed Shire Council [2013] NSWCA 331 Hearing dates: 19 September 2013 Decision date: 19 September 2013 Before: Leeming JA; Tobias AJA Decision: (1) Extend the time within which to apply for leave to appeal pursuant to UCPR r 51.10(2). (2) Grant leave to the Attorney General to be heard as amicus on the basis that he will neither seek nor bear costs. (3) Grant leave to appeal from so much of order three made by Barr AJ on 28 June 2013 as states: "and remit the matter to the Local Court sitting at Murwillumbah for redetermination in accordance with these directions." (4) Direct the Council to advise the Registrar and the applicant within 14 days whether it consents to orders allowing the appeal in part, setting aside that part of order three made on 28 June 2013 and otherwise dismissing the appeal with no order as to costs. (5) In the event that the Council does not consent, list the matter for directions before the Registrar at a date to be fixed for the hearing of the appeal. (6) Otherwise refuse leave to appeal on the basis that there be no order as to the costs of the application for leave to appeal. [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: APPEAL - practice and procedure - appeal from convictions in Local Court - primary judge set aside convictions and remitted matter to Local Court - remitter should not have occurred - otherwise no error warranting grant of leave - orders formulated to permit disposition of appeal by consent Legislation Cited: Uniform Civil Procedure Rules 2005 Category: Principal judgment Parties: Peter Viavattene (applicant) Tweed Shire Council (first respondent) Local Court of New South Wales (second respondent) Representation: Counsel: BG Viavattene (lay advocate on behalf of the applicant) H El-Hage (Attorney General of New South Wales as amicus curiae) Solicitors: HWL Ebsworth Lawyers (first respondent) Crown Solicitor's Office (second respondent) File Number(s): 2013/230117 Decision under appeal Citation: Viavattene v Tweed Shire Council & Anor [2013] NSWSC 838 Date of Decision: 2013-06-28 00:00:00 Before: Barr AJ File Number(s): 2013/293341