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. He refused to make an order dismissing Miss Bourne from office. Miss Bourne appealed from McInerney J's decision to this court. Pending the appeal McInerney J's orders were stayed. On 4 November 1996 this court upheld Miss Bourne's appeal, set aside the declaration by McInerney J and ordered that Miss Bourne be dismissed from the office of Councillor. Miss Bourne immediately applied for a stay of the court's orders while she considered whether she would seek special leave from the High Court to appeal against this court's decision. A stay was granted until 26 November 1996. On the morning of 26 November 1996 Miss Bourne applied for a continuation of the stay from the same Bench that had decided the appeal. The court was informed that an application for special leave to appeal to the High Court had been filed in the High Court. Miss Bourne sought a continuation of the stay until the determination of her application for special leave. 2 UNREPORTED JUDGMENTS Miss Murphy opposed the continuation of the stay. This opposition was put on the basis that if the stay were continued Miss Bourne would continue to hold office as a Councillor which would be a clear nullification of the electors' intentions and that to terminate the stay would not make the application for special leave a futile one. It was said that the approach the court should adopt was that stated by Dawson J in FCT v Myer Emporium (1986) 160 CLR 220 at 222-223 and Brennan J in Edelsten v Ward (No 2) (1988) 63 ALJR 346. It was submitted that the requirements which an applicant for a stay must fulfil as described in those cases were stricter than those discussed and set out at some length in this court's decision in Alexander v Cambridge Credit (1985) 2 NSWLR 685. It was nevertheless accepted, as we understood counsel for Miss Murphy, that the requirements in Myer Emporium and Edelsten would be met if the application for leave to appeal would be futile in the absence of a stay. In the absence of a stay the court's order of dismissal would take effect immediately: s331(1) of the Act. Probably, that would immediately cause a casual vacancy: s233 and s234. On that basis it would become necessary for a by-election to be held to fill the casual vacancy, and that by-election would have to be held not later than three months after the occurrence of the vacancy: s292. We were told by counsel that so far as their enquiries extended at the present time, it seemed unlikely that the application for special leave could be heard in the High Court before February 1997. Thus, there is a real prospect that if the stay is not continued a new Councillor will be elected pursuant to the Act around about the time when the application for special leave is heard. The court heard rather undeveloped and inconclusive argument on the question whether if a new Councillor were elected and special leave were granted and the appeal eventually upheld, the result would be to displace the newly elected Councillor without further litigation. We do not think it necessary to resolve this question, which, in the way the argument was left, seems to us, at least at this stage, likely to be one of some difficulty. The difference between the tests stated in this court in Alexander on the one hand and by Dawson J in Myer Emporium and Brennan J in Edelsten on the other, seem to us to be in practice more semantic than substantial. We are inclined to think that the circumstances that now obtain are "sufficiently exceptional" to use Dawson J's words from Myer Emporium at 224 to justify the continuation of the stay. One of the principal circumstances is the one already touched on, that the termination of the stay might well lead to an obscure, confusing position likely to cause more litigation. Another practical consideration is that it is now fourteen months since Miss Bourne was declared elected as a Councillor and she has been fulfilling the office in that period. To allow that position to continue for a further period, which in comparative terms is not long, seems to be preferable to letting the situation develop which we have already mentioned. For these reasons we have decided that the stay should be continued until the special leave application has been disposed of. Not mentioned in the written and oral submissions that were put to us and therefore not taken into account in arriving at our decision, was the case of John Fairfax and Sons Ltd v Kelly (No 2) (1987) 8 NSWLR 510, a practice decision of this court, in which positions such as that in the present case were considered. A Bench comprising Kirby P, Mahoney and McHugh JJA stated what the court's practice would be, as follows: URJ BOURNE v MURPHY (Priestley, Cole and Beazley JJA) 3 "Accordingly, upon signification to the Court of the intention of a party to an appeal to this Court that it will seek special leave to appeal to the High Court of Australia, this Court will in future not insist, as in the past, that any such stay (except in exceptional circumstances) should be granted by a justice of the High Court of Australia. Instead the Court will normally grant a stay of twenty-one days from the date of the judgment of this Court, to permit an application to be made for special leave to appeal to the High Court of Australia. Such a stay will normally endure until such application is made or, if leave be granted, the appeal pursuant to such leave is disposed of by the High Court or until the High Court itself otherwise orders. Any such stay, granted by this Court, will be conditional upon: (i) the application for special leave being made in accordance with the rules of the High Court of Australia; (ii) an undertaking by the applicant to prosecute with due diligence; and (iii) where appropriate, undertakings being given as to any damages suffered in consequence of the stay by the opponent." (at 512) In that case when the court gave its decision on the stay the application for special leave had not yet been made. Accordingly the court ordered a stay for twenty-one days during which the application for leave might be made and a further order that upon the filing of an application for special leave the stay would continue until the application was disposed of and if leave were granted until the appeal was disposed of or until the High Court otherwise ordered. As already indicated, in the present case the court is of the view that quite apart from the practice decided upon in the John Fairfax case, and within the rules for stays relied upon by Miss Murphy, the present stay should be continued at least until the decision of the special leave application. The form of orders made in the Fairfax case, however, provides a guide for the orders here. We order that, upon Miss Bourne undertaking to prosecute her application for special leave to appeal with due diligence, the stay presently on foot in these proceedings be continued until the application for special leave is decided, and if leave be granted the appeal pursuant to such leave is disposed of or until the High Court itself otherwise orders. We think that in the circumstances the appropriate costs order on the application for the stay is that if Miss Bourne is unsuccessful in the application for special leave, she should pay the costs of the other parties of the stay application, and that if Miss Murphy is unsuccessful, she should pay those costs, and we order accordingly. To guard against the possibility of any complication in the working out of the costs order, liberty is reserved to apply to a single judge of this court, after the application for special leave is concluded, and within twenty-one days of that conclusion. 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. Counsel for the appellant: P King 4 UNREPORTED JUDGMENTS Counsel for the respondent: (1) S Rothman SC / N Rudland (2 and 3) A Pickles (Sol) (4 and 5) S Wheelhouse Solicitors for the appellant: Smallwood Cathcart 5 Solicitors for the respondent: (1) Geoffrey Edwards and Co (2 and 3) Lindsay, Mark Taylor (4 and 5) NSW Crown Solicitor