BOURNE v MURPHY [1996] NSWCA 60

BOURNE v MURPHY SUPREME COURT OF NEW SOUTH WALES — COURT OF APPEAL

MAHONEY P

20 May 1996

[1996] NSWCA 60

Mahoney P. This is an application which comes before the Court as the result of a decision given by Mr Justice McInerney on 17 April 1996.

In the proceedings before his Honour the plaintiff, Ms Alice Murphy, sought an order pursuant to s 329 of the Local Government Act 1993 for the dismissal of the third defendant, Ms Christine Bourne, as a councillor of the Leichhardt Council on the ground that there had been an irregularity in the manner in which she had been elected to the office of councillor on 19 September 1995. In the event his Honour declared that Ms Bourne had not been duly elected to the office of councillor and made orders which he saw as consequent upon that finding.

An appeal has been lodged in this Court against his Honour's judgment and the orders that he made. The present application is that the hearing of the appeal be expedited and that the orders made by the judge be stayed pending determination of the appeal or further order.

An appeal has been lodged upon the basis that there is an appeal as of right. It is not necessary for me to consider that question: if any question arises as to whetherleave to appeal is necessary, and I am not suggesting by my observation that I am of that opinion, then that matter can be dealt with by the Court dealing with the appeal.

I have indicated to the parties that in the circumstances I think this is a matter which should be given expedition and I propose to order that the hearing of the appeal be fixed for 6 June 1996. I am informed that the appeal will last approximately one day.

It is then sought that the declaration and the orders made be stayed pending the determination of the appeal. The concept of a stay is, of course, prima facie inapplicable to a declaration but I understand the substance of the application.