COUNCIL OF CASINO vy ELJO PTY LTD SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL PRIESTLEY JA 7 November 1994 [1994] NSWCA 67 Priestley JA The very bare bones of this case are that the Council of the Municipality of Casino obtained a declaration from Young J on 4 February 1993 prohibiting Eljo Pty Ltd and Solo Waste Australia Pty Ltd trading as Richmond Waste from collecting and disposing of all trade refuse, container garbage, depot rubbish, (night soil) or waste products within the Municipality of Casino on or after 24 August 1992, other than useful and saleable materials which do not represent a threat to health, safety or convenience. Having made that declaration, Young J ordered that the two companies be restrained from collecting and disposing of the waste as defined in the declaration, subject to the exception as defined in the declaration. The declaration and orders had been obtained by the Council after proceedings based on the Local Government Act as it stood in 1992 and 1993. As from 1 July 1993 a new Local Government Act came into operation which dealt with the subject matter which had given rise to the proceedings which culminated in the declaration and orders I have mentioned in a different way from that in which the preceding Act had dealt with it. The two companies then applied to the Council for consent to act in the business of waste collection and disposal. The Council refused the application. An appeal was taken to the Land and Environment Court and in early October 1944 Justice Bignold upheld the appeal. An appeal has been filed by the Council whose name has now apparently changed to the "Council of Casino" against his Honour's decision. The Council has applied today for a stay of Justice Bignold's orders pending the result of the appeal. Representatives of both sides of the record have put to the Court their opposing contentions as to the propriety and practicality of the granting of the Council's application. On the material at the moment before me, it seems to me that the balance of convenience is in favour of maintaining the position as it stood until Justice Bignold's decision was handed down, but I am not persuaded at the moment that an order for a stay should in the first instance be made for longer than a short time. The existence of the injunction made by Young J complicates the situation. The Court will be in a better position to assess whether or not a stay should be carried forward for longer than a brief time, once it is known whether the two companies have applied to the Equity Division for dissolution of the injunction and if so what the result of that application turns out to be. If no such application is made, then again the Court will be in a better position to assess the situation than it is today. 2 UNREPORTED JUDGMENTS A further matter which leads me to think it is appropriate to grant a stay for a short time only is that evidence which has been admitted in connection with the application from both the applicant for the stay and the companies opposing it is in a rather vague and not very helpful state. It may be that that position will be remedied by the time the matter comes on for further argument if that becomes necessary. I therefore propose to order, subject to the two further matters to be mentioned, that there be a stay of Justice Bignold's declaration and orders until a date three or four weeks away from today, a date which I will fix after I hear submissions about it. The first of the two further matters I need to mention is that it seems to me that if the Council is to have a stay it should undertake to the Court that any damages caused to the two companies by the granting of the stay must be paid by the Council. Second, it seems to me that the matter is one which, from the point of view of the parties at any rate, should be resolved as soon as possible. Therefore I enquired whether the Council would take steps to make an application for expedition of the hearing of the appeal. I have been informed this afternoon that the Council is prepared both to give the undertaking as to damages and to apply with all reasonable speed to the Court for an expedited hearing of the appeal. This motion will be stood over until the 28 November and until 4.15 on that day, the usual undertaking as to damages having been given by the Council of Casino through its counsel in the form used according to the practice in the Equity Division, and the Council also having undertaken to apply with all reasonable speed for expedition of the hearing of the appeal in this matter, I order a stay of the orders of Justice Bignold pronounced on 7 October 1994. I will reserve the costs of today's hearing unless anybody wants to seek some other order. Those are the court's orders.