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. In the circumstances I propose to direct that the orders that have been made by the judge be stayed. The effect of that is, for example, that orders in relation to recount will not be carried out in the meantime. The period between today and the hearing is comparatively short. The Court has given this matter substantial expedition and in the circumstances I do not think that there is any such prejudice as would warrant the Court making special orders in that regard. I have in mind what has been said on behalf of the respondents in relation to the matter. But in the circumstances I do not think that it is necessary to make special orders in this regard. I therefore propose to direct that the matter be heard as I have indicated. If the matter is to be heard on that date, then it will be necessary for the parties to file full written submissions of the arguments that they propose to present to the Court on that date. I would propose to direct, subject to any observations which counsel may make as to time, that written submissions by the parties be exchanged and therefore be disclosed, each to the other party, one week before the date on which 2 UNREPORTED JUDGMENTS the appeal has been fixed for hearing. I assume that there will be no question of evidence being adduced on the appeal and that it is not necessary for me to make any order in that regard. I am disposed at the moment to order that the costs of the present application be reserved to the Court dealing with the appeal. Counsel may address short arguments to the Court if there is any matter of substance to the contrary. The orders that I make are the orders which I have indicated. Orders accordingly.