KELLY v COUNCIL OF THE CITY OF LAKE MACQUARIE [1997] NSWCA 173

KELLY v COUNCIL OF THE CITY OF LAKE MACQUARIE SUPREME COURT OF NEW SOUTH WALES — COURT OF APPEAL

PRIESTLEY JA and POWELL JA 22 September 1997

[1997] NSWCA 173

Priestley JA. I will simply say that this is a summons which the claimant has brought for greater precaution in case leave to appeal is necessary before the question concerning a costs assessment decision can be properly before the Court of Appeal. The Court without forming any final view has reached the opinion that the substantial question which the claimant here wishes to argue in an appeal is probably an arguable question which needs to be decided, and has also come to the view that it may well be that no leave is required for that appeal to be carried forward.

For the first opponent it has been contended that leave is necessary before the appeal can go forward, although counsel for the first opponent has correctly conceded in my opinion that the question is an arguable one.

In view of the two matters being arguable it seems to the Court the most convenient course is for them to be dealt with at the same time by a court of three if at that time it becomes necessary to decide the leave point.

The Court therefore orders the further hearing of the summons for leave to be stood over to be dealt with at the same time as the appeal is listed for hearing so the Court then sitting can deal with either or both matters as then appears to be expedient.

The Court will reserve the question of costs today, noting that counsel for the first opponent has maintained that her appearance here and her client's opposition to the granting of the leave sought were both properly justified.

The Court orders that the notice of appeal with appointment be filed within 28 days. We include amongst the orders a direction that your client as the moving party, Mr Toner, give Mr Buckworth notice of the orders made today within 28 days and that leave be reserved to Mr Buckworth to make application to the Court in respect of those orders within a further 14 days if he feels a necessity to do so.