Supreme Court New South Wales

• Medium Neutral Citation: Hunter Quarries Pty Ltd v State of New South Wales (Department of Trade & Investment) (No 2) [2014] NSWSC 1663
• Hearing dates: In chambers
• Decision date: 21 November 2014
• Jurisdiction: Common Law
• Before: Schmidt J

Decision

Paragraphs [67] and [68] amended.

Reference corrected at [4]

• Catchwords: JUDGMENTS - power to vary - slip rule - Uniform Civil Procedure Rules 2005 r 36.16 and r 36.17 - no dispute between parties as to error - error has no impact on conclusions the conclusions reached - judgment corrected
• Cases Cited: Hunter Quarries Pty Ltd v State of New South Wales (Department of Trade & Investment) [2014] NSWSC 1580)
• Category: Procedural and other rulings
• Parties: Hunter Quarries Limited (Plaintiff); State of New South Wales (Department of Trade & Investment (Defendant)
• Representation: Solicitors: McDonald Johnson Lawyers (Plaintiff); I V Knight; Crown Solicitor's Office (Defendant)
• File Number(s): 2014/276078
• Publication restriction: No

Judgment

1 I gave reasons for judgment on 12 November (see Hunter Quarries Pty Ltd v State of New South Wales (Department of Trade & Investment) [2014] NSWSC 1580). On 20 November 2014, the defendant drew to my attention a factual error at paragraphs [67] and [68] of the judgment, where I observed that the regulator's delegation did not include a delegation of the s 155 function to inspectors. There was no dispute between the parties as to that error, which I was asked to correct, in accordance with Rules 36.16 and 36.17 of the Uniform Civil Procedure Rules 2005 (NSW) and the Court's inherent power to correct such an error. The error has no impact on the conclusions reached on the issues lying between the parties, who did not wish to be heard further on the issue.

2 I am satisfied that an error has occurred as the result of my misreading of two lines in the delegation and that the judgment must accordingly be corrected. There is no question as to the Court's power to make such a correction.

3 In the result the following paragraphs of the 12 November judgment will be altered:

[67] In this case, the actual delegations made by the regulator (relevantly defined in this case in s 3 to be the 'the head of the Department of Trade and Investment, Regional Infrastructure and Services') were provided without objection after the hearing. They did not include a delegation of the s 155 function to inspectors.

[68] It follows that as a matter of fact, Inspector Flowers did not have s 155 powers to exercise when exercising his power of entry at the quarry after Mr Messenger's death. That did not mean, however, that the investigative function which the Act gives inspectors and which may be exercised on notification of a notifiable incident, did not exist or were not then available to be exercised by Inspector Flowers.

4 Those paragraphs will be amended to read:

[67] In this case, the actual delegations made by the regulator (relevantly defined in this case in s 3 to be the 'the head of the Department of Trade and Investment, Regional Infrastructure and Services') were provided without objection after the hearing. They include a delegation of the s 155 function to inspectors.

[68] It follows that as a matter of fact, Inspector Flowers did have s 155 powers to exercise. That did not mean, however, that the investigative function which the Act gives inspectors and which may be exercised on entry after notification of a notifiable incident, did not exist or was not then available to be exercised by Inspector Flowers.

5 There is also an incorrect reference at paragraph [4] to s 39. That will be corrected to refer to s 38(2).

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Decision last updated: 25 November 2014