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. I should emphasise that the concessions made by Mr Gyles of Queens Counsel and Miss Needham did not, of course, include any concession as to the prospect of success and they reserve, of course, their full armoury of opposition to any independent application of the type which Mr Ellicott envisages. It seems to me that the most efficient use of judicial time would be to accede to Mr Ellicott's application. We have before us an appeal and a cross appeal and the whole of the matter was originally set down for some two to three days. If an application to discharge the orders is made and succeeds, then the appeal and cross appeal will be pointless. Furthermore, it is I suppose, having regard to the history of the matter, not beyond the realms of possibility that whatever happens to an independent application for discharge of the orders, one party or another may well seek to come back to this Court and it may well be that it is preferable, bearing in mind that possibility, that the existing appeal should not be dealt with now on that account also. 2 UNREPORTED JUDGMENTS Primarily, however, it seems to me that to embark upon the hearing of the appeal and cross appeal may very well use up time to no purpose. We are, therefore, minded to adjourn the hearing of the appeal. We will dismiss the motion seeking amendment of the grounds of appeal with costs but order that those orders are not to take effect until we publish our reasons for dismissing that motion. We will reserve the costs of the appeal and we will note that this Bench as now constituted is not part heard in the appeal. (For argument on costs see transcript) We are of the opinion that we should order the appellants to pay the respondents' costs of the appeal thrown away by the adjournment; otherwise we reserve the costs of the appeal and of the cross appeal. The orders therefore will be those which I have indicated.