MORTENSEN v CROWN [1991] NSWCA 206

MORTENSEN v CROWN SUPREME COURT OF NEW SOUTH WALES — COURT OF APPEAL

SAMUELS JA 22 April 1991

[1991] NSWCA 206

Samuels JA. This is an application for expedition of an appeal from a judgment of Needham AJ dated 22 August 1990. The case concerns the construction of s 29A of the Wills Probate and Administration Act, a section which was added to the Act after inquiry by the Law Reform Commission. The judgment deals with the construction which should be placed upon s 29A, and I am told that this is the first time that that provision has been before the court, that is, the Equity Division, and certainly the first time that the section has commenced its path to a determination in the Court of Appeal.

Three arguments are put in support of the application. First, the matter which I have just mentioned, the novelty aspect, if I may call it that. Secondly, that the matter will take no more than two hours and therefore, it is said by counsel, will not unduly disrupt the lists of the court; and, finally, that the administration of the estate will be somewhat hampered until the point at issue is determined.

There is, it is frankly conceded, no real element of urgency. I do not think that the first of the three points in the circumstances of this case authorises an order for expedition and certainly the second and third do not. Indeed, the third would be a circumstance normally present in any appeal on the probate side of the court. I do not think, therefore, that the claimant has made out the case for expedition and I will dismiss the motion with costs.

Orders accordingly.