NEWCASTLE CITY COUNCIL v SMITH [1988] NSWCA 103

NEWCASTLE CITY COUNCIL v SMITH

SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL

MAHONEY JA 16 May 1988

[1988] NSWCA 103

Mahoney JA (MOTION) The Land and Environment Court has made orders against Mr Smith, the respondent in this notice of motion. Mr Smith has appealed against those orders. He has not pursued the appeal properly in accordance with the rules. The council has therefore applied to strike out his appeal on the ground that it has not been duly prosecuted within Pt51 r 17. It is that application which is now before this Court.

The orders disclose the following position. On 21 August 1987 Perrignon J, a Judge of the Land and Environment Court, made orders against Mr Smith. Mr Smith in those proceedings appeared for himself. The proceedings were heard over a number of days. The orders which the learned judge made, and which are set out in the judgment now before this Court, include several declarations and an order that Mr Smith demolish and remove within six months from the date of the orders all of the sheds and other structures erected and standing on Lot 312, other than the cottage and shed, to which reference was made in the order.

Mr Smith lodged an appeal to this Court against that judgment. The grounds of the notice of appeal are set forth in the appeal. The grounds relate, if I may summarise them briefly, to matters going to the proceedings before Perrignon J and his failure to adjourn the proceedings or to give time in relation to them; and to the fact that, as the notice of appeal suggests, some or all of the structures were erected at times before the legislation came into effect. Whether these be good and sufficient grounds of appeal is not a matter on which I need form an opinion at this stage.

If an appeal is to be brought against those orders the appeal must be prosecuted with due speed. It cannot be allowed to move at the leisurely pace at which the present appeal has moved. And a fortiori an appeal cannot be used for the purpose of defeating or delaying the effect of orders. In saying this, of course, I form no judgment whether that was the purpose of the delay in the present case.