NSW Caselaw
LANG v KIRKNESS
SUPREME COURT OF NEW SOUTH WALES — COURT OF APPEAL
MAHONEY JA 28 February 1995
[1995] NSWCA 253
Mahoney JA. (On application for stay of proceedings)
This is an application which comes before the court on short notice. It is an application for, as the initiating document suggests, an order that all proceedings in a particular proceeding and all judgments and orders originating from these proceedings be stayed until the High Court of Australia has issued a judgment.
The basis of the application lies in the fact that, as I understand from the papers, on | February 1994 a judgment was given by Windeyer J in relation to a dispute between the parties relating to an easement. (The matter is no doubt more complicated than that, but that will be a sufficient description of it for present purposes).
In November 1994, an application was made to this Court for leave to appeal against his Honour's decision out of time — the decision, as I have said, that was given on | February 1994. Application had to be made during February 1994 and was not so made.
When the matter came before this Court, comprised of the President, Kirby P, Clarke JA and myself, the court heard, first, the application for extension of time tomake an application for leave to appeal against Windeyer J's decision, and then an application for leave to appeal. The court refused the application.
The President, in a judgment given by him, indicated that he would have been inclined to grant an extension of time to make the application for leave to appeal because he thought that:
In this long saga of litigation it is only just that an opportunity should be had to ventilate the case for leave, as indeed it has been ventilated.
His Honour considered the terms of the judgment of Windeyer J and said:
His Honour acknowledged that the issue now remaining is one of controversy, to which he provided his best answer. I am not convinced that his Honour was wrong. I am therefore of the view that the court should bring this part of the litigation to a close.
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