GROUT v THE COUNCIL OF THE SHIRE OF WARRINGAH [1993] NSWCA 127

GROUT v THE COUNCIL OF THE SHIRE OF WARRINGAH

SUPREME COURT OF NEW SOUTH WALES — COURT OF APPEAL

MAHONEY JA 16 August 1993

[1993] NSWCA 127

Mahoney JA. This is an application for expedition of the hearing of an appeal. It appears that a judgment was given by Cole J on 20 December 1991 in which, as I understand what has been said, the plaintiff failed in an application against the Warringah Shire Council based on negligence and perhaps other grounds. It has been contended by Mr White, the applicant for expedition on behalf of the plaintiff, that the Government has given notice of a proposal to gazette a manual at the end of two months from the date which he specified, 12 July 1993. He has contended that if a gazettal is effected that will, or may, prejudice the rights which his client is seeking to enforce in this appeal.

The contention is, as I understand it, that the effect of the gazettal of the manual will retrospectively destroy the rights which he is seeking to achieve. He desires to have those rights crystallised in a judgment of the court by the hearing of the appeal and the making of appropriate orders before the date on which the manual is gazetted.

The matter has not proceeded, at least on the face of it, with all the speed that was necessary. I do not mean by this to criticise the parties involved. I do not know all the facts.

I think it is a matter in which, taking the argument that has been put forward at its face value, expedition should be ordered. Nothing has been urged by the respondent to this application to suggest that there is not an arguable case at least and if the appeal is not heard before the gazettal the rights may be lost or prejudiced.

In the circumstances, I think it is appropriate to order that the appeal be expedited. This will involve, if it be possible, that the appeal be heard and determined before the expiration of two months to which I have referred, or any longer period that may be granted by the Crown having regard to the pendency of the matter before the court.