MANALDO PTY LTD v BAULKHAM HILLS SHIRE COUNCIL and ANOR [1997] NSWCA 193

MANALDO PTY LTD v BAULKHAM HILLS SHIRE COUNCIL and ANOR

SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL

PRIESTLEY JA 1 December 1997

[1997] NSWCA 193 Priestley JA

On application to adjourn the hearing of the appeal.

Before the court there is an application to stand out of the list a matter which is set down for hearing of the appeal on 16 December 1997. I have heard counsel for the applicant/appellant, and I understand the common sense, from his client's point of view, of the matter's standing over. I have received a written submission from counsel for the first opponent, elaborated orally, in which that party's reasons have been fully given for wanting the matter to proceed. The second opponent has also added submissions as to why the matter should proceed.

At first, I thought there might be some real usefulness in considering the various reasons on either side of the record for and against the granting of the application. These related to the possibility of the overall settlement of matters concerning all three parties, of which the appeal concerned part only. As the argument proceeded, however, I came to the conclusion that it would not be right to allow my decision to be governed by the considerations of advantage or disadvantage to the three parties which the postponement of the hearing of the appeal might bring about in negotiations about the rather complicated overall situation.

In the end, it seems to me that the proper approach is to recognise that the appellant, having a right to appeal, has appealed on certain questions of law and a hearing date for the appeal has been fixed. The two respondents to the appeal say they wish the appeal to proceed on the day for which it has been fixed.

Leaving aside the practical reasons concerning the overall situation between the parties which are actuating the appellant to seek postponement of the hearing of the appeal, and the respondents to oppose it; and looking simply at the situation of a matter ready to proceed in which the respondents who have as legitimate an interest in the appeal being disposed of, as the appellant had, first in bringing it on and, secondly, possibly in seeking its postponement, and again looking at it simply as an appeal involving questions of law which stand apart from the wider considerations which are the real motives of the parties, it seems to me I should not interfere with the appeal going forward in the ordinary course which has brought it to this hearing date of 16 December 1997.