HOLCOMBE v COULTON [1988] NSWCA 64

HOLCOMBE v COULTON

SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL SAMUELS, MCHUGH and CLARKE JJA 6 December 1988

[1988] NSWCA 64

Samuels, McHugh and Clarke JJA (On an application for adjournment)

This appeal has a somewhat lengthy history and, in the view we take of its further disposal, will not be finally dealt with today. What we have heard so far is a motion by the appellants to amend the notice of appeal by adding two further grounds. Having heard the argument on that point we have indicated that we propose to refuse the application but we will give reasons in due course so as to preserve any rights which the appellants may wish to exercise in respect of the refusal of the application to amend.

At that point Mr Ellicott of Queens Counsel for the appellants, asked us to adjourn the hearing of the appeal on the existing notice in order to enable him to apply to the Administrative Law Division or to some other first instance court, to discharge the restraining orders made by Lusher J in 1984.

The grounds for that application would be, as I understand it, the subsequent legislative history involving amendments made in 1983 and 1986 to the Water Act which, incidentally, constituted the subject matter of the grounds of appeal which the appellant sought to add and, on the basis of which it would be asserted that the various obstacles which stand in the appellants' way have been removed. So what Mr Ellicott indicates he may desire to do would be to attack the orders on the grounds of that subsequent legislative history.

The respondents oppose any adjournment, seeking to have the appeal determined now and conceding that if the appellants should lose the appeal so that the declarations and orders stand, it would nonetheless be formally and procedurally possible for them to make the application for discharge which I have adumbrated.