BARIC v THE COUNCIL OF THE CITY OF LIVERPOOL [1988] NSWCA 13

BARIC v THE COUNCIL OF THE CITY OF LIVERPOOL SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL

KIRBY P 1 February 1988, 1 February 1988

[1988] NSWCA 13

PRACTICE & PROCEDURE — stay pending appeal — appeal as of right from Land and Environment Court — Judge of that Court declines stay — proper approach by Court of Appeal to the exercise of its discretion — relevance of estimate of prospects of appeal's succeeding — Alexander & Ors vy Cambridge Credit Corporation Limited (Receivers Appointed) & Anor (1985) 2 NSWLR 685, 695 discussed — limited role of such assessment — function to protect utility of appeal — whether irretrievable damage to appellant in default of stay — whether necessary to interfere in orders below — proceedings still before judge at first instance — held: no stay granted but liberty to apply to provide relief in the event that agreed adjustment to orders below are not made. Supreme Court Act 1970, s46.

ORDERS

1. The motion to be listed for mention on 11 April 1988.

2. Costs of the motion be costs in the appeal.

3. Liberty to apply upon two days notice to the other party.

4. I direct that the transcript of these proceedings be taken out so that it can be available to Cripps J.

Kirby P The motion before the Court is for a stay of certain orders made by the Chief Judge of the Land and Environment Court (Cripps J) pending the determination of an appeal which has been brought to this Court from a decision of the Land and Environment Court. The motion has been dealt with by me pursuant to s46 of the Supreme Court Act 1970.

It is agreed that the appeal is brought as of right. However, it must be said, without further delay, that the notice of appeal filed by the claimant is entirely defective. It gives no indication, at least with the specificity which this Court requires, of the grounds of appeal that will be argued. The notice of appeal will need to be amended. Due notice should be given to the opponent and to the Court of the true grounds upon which the claimant will seek to advance his case before the Court.