BOURNE v MURPHY and ORS [1996] NSWCA 61

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

PRIESTLEY, COLE and BEAZLEY JJA 26 November 1996, 4 December 1996 [1996] NSWCA 61

Stay of Orders of Court of Appeal pending application for special leave to High Court

APPLICATION FOR STAY OF ORDERS OF COURT OF APPEAL PENDING APPLICATION FOR SPECIAL LEAVE TO APPEAL TO HIGH COURT - FCT v Myer Emporium (1986) 160 CLR 220, Edelsten v Ward (No 2) (1988) 63 ALJR 346, Alexander v Cambridge Credit (1985) 2 NSWLR 685, referred to; John Fairfax and Sons Ltd v Kelly (No 2) (1987) 8 NSWLR 510, recalled.

ORDERS

1. Upon Miss Bourne undertaking to prosecute her application for special leave to appeal with due diligence, present stay to continue until application for special leave concluded, and if leave be granted, until

the appeal pursuant to such leave is concluded, or until the High Court otherwise orders.

2. Costs of stay application to follow the event of the special leave application; liberty reserved to apply to a single judge of this court in regard to this costs order, after the application for special leave is concluded, and within twenty-one days of that conclusion.

Priestley, Cole and Beazley JJA Miss Bourne was declared elected for the fourth of four positions of Councillor for the Annandale/Glebe Ward of Leichhardt Council shortly after local government elections on 9 September 1995. Miss Murphy, who had come fifth in the ballot took proceedings pursuant to s329 of the Local Government Act 1993 (the Act) seeking an order from the Supreme Court ordering Miss Bourne's dismissal from the Civic Office of Councillor on the ground there had been an irregularity in the manner in which she had been elected. At first instance McInerney J held there had been an irregularity under s329. He declared that Miss Bourne was not duly elected and ordered the Electoral Commissioner to undertake a recount in which he would include as formal ballot papers the Returning Officer had earlier taken to be informal.