Weber v Greater Hume Shire Council (No 2) [2018] NSWSC 1338

Supreme Court New South Wales

Medium Neutral Citation: Weber v Greater Hume Shire Council (No 2) [2018] NSWSC 1338 Hearing dates: 3-5, 10-12, 18-19, 21 April 2017; 4 June 2018 (answers to common questions) Date of orders: 14 May 2018 Decision date: 30 August 2018 Jurisdiction: Common Law Before: Walton J Decision: The common questions posed for the proceedings are answered. The order for costs made on 14 May 2018 is confirmed. Catchwords: REPRESENTATIVE PROCEEDINGS – common questions concerning claim for negligence – answers to common questions – costs Legislation Cited: Civil Procedure Act 2005 (NSW) Uniform Civil Procedure Rules 2005 (NSW) Cases Cited: Hamod v State of NSW [2011] NSWCA 375 Oshlack v Richmond River Council (1998) 193 CLR 72 Weber v Greater Hume Shire Council [2018] NSWSC 667 Category: Procedural and other rulings Parties: Sharon Patricia Weber (Plaintiff) Greater Hume Shire Council (Defendant) Representation: Counsel: T Tobin SC with A Fraatz and C Nicholson (Plaintiff) R Sheldon SC with A Barnett (Defendant)

Solicitors: Maddens Lawyers (Plaintiff) Mills Oakley (Defendant) File Number(s): 2015/368036

jUDGMENT 1. HIS HONOUR: By a further amended statement of claim filed 4 April 2017, Ms Sharon Patricia Weber ("the plaintiff") commenced proceedings against the Greater Hume Shire Council ("the defendant"), pursuant to Pt 10 of the Civil Procedure Act 2005 (NSW), on her behalf and on behalf of the group members. There were 57 group members registered as affected persons. The plaintiff sought damages for negligence and, in the alternative, nuisance. 2. The Court gave judgment in relation to that application on 14 May 2018: Weber v Greater Hume Shire Council [2018] NSWSC 667 ("Weber No 1"). 3. The Court made the following orders (Weber No 1 at [441]): 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 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 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. 1. On 4 June 2018, the parties filed answers to the common questions of law or fact filed on 31 March 2017 ("the common questions") in accordance with sub-para (3) above, save that the parities jointly sought that the Court not further list the matter to resolve any disagreement as to those answers and rather to resolve the matter on the papers. 2. I have extracted below the common questions posed in the proceedings in Weber No 1 at Annexure C of that judgment, together with the responses to the common questions by the parties including the helpful references they provided to Weber No 1 (although the reference to those passages in the following answers to the common questions should not be taken as an exhaustive identification of passages of the judgment bearing upon each question). 3. Unless there are additional observations by the Court with respect to an answer to a question, the answer provided should be understood as an acceptance by the Court of the proposed answer to a question by the parties. 4. It should also be noted that the common questions were drafted prior to the filing of a further amended statement of claim. Accordingly, the common questions include references to the amended statement of claim or "ASOC". This, however, does not appear to be an issue of great moment, particularly with paragraph referencing appearing to be unaffected.