WYKANAK v ROCKDALE CITY COUNCIL [1999] NSWCA 191

New South Wales Court of Appeal CITATION : WYKANAK v ROCKDALE CITY COUNCIL [1999] NSWCA 191 FILE NUMBER(S) : CA 40851/98; 40928/98 HEARING DATE(S) : 3 June 1999 JUDGMENT DATE : 3 June 1999

DOMINIC WYKANAK PARTIES : v ROCKDALE CITY COUNCIL & ORS JUDGMENT OF : Mason P at 17; Handley JA at 1; Giles JA at 18

LOWER COURT JURISDICTION : Land & Environment Court LOWER COURT FILE NUMBER(S) : 97/40005 LOWER COURT JUDICIAL OFFICER : Pearlman CJ

COUNSEL : Claimant - In person Opponent - S B Austin QC/S A Duggan Opponent - In person Opponent 1 - Abbott Tout (Rockdale City Council) SOLICITORS : Opponent 2 - Robinson Creais (Oceanview) Opponent 3 - Pike Pike & Fenwick (Plexvon) Opponent 4 - Director Legal Services, Minister Urban Affairs and Planning CATCHWORDS : APPEAL - extension of time for appeal - relevance of prospects of success - Supreme Court Act 1970 - s 46 (2)(a) ACTS CITED : Supreme Court Act 1970 Environmental Planning and Assessment Act CASES CITED: Gallo v Dawson (1990) 64 ALJR 458 at 459 DECISION : Notice of motion dismissed

THE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL CA 40851/98 40928/98 MASON P HANDLEY JA GILES JA

Thursday 3 June 1999 DOMINIC WYKANAK v ROCKDALE CITY COUNCIL

JUDGMENT 1 HANDLEY JA: The first matter before the Court is a notice of motion of 2 March filed by the claimant, Mr Dominic Wykanak, which seeks a review under s 46(2)(a) of the Supreme Court Act of a decision of Stein JA on 1 March who had refused to extend time for an appeal to be brought to this Court from a decision of Pearlman CJ of the Land and Environment Court. 2 The matter was properly before Stein JA under s 46(2) of the Supreme Court Act which gives this Court power to discharge or vary a judgment given by a Judge of Appeal sitting alone. 3 The proceedings before Pearlman CJ were commenced by application and points of claim in Class 4 filed on 8 January 1997. The case went to trial on 22 April 1998 and concluded on 5 June. Her Honour's reserved judgement was given on 20 July. 4 The first attempt by Mr Wykanak to challenge the decision of Pearlman CJ occurred on 23 October 1998, more than three months after the judgment sought to be appealed from. Under SCR Pt 51 r 5 the prescribed time for an appeal was 28 days but r 5(4) enables this Court to extend the time at any time and it is the refusal of Stein JA to exercise that power which is the subject of the present application. 5 The principles which this Court applies where an extension of time is sought for an appeal, after the time prescribed by the Rules of Court has expired, are those stated by McHugh J in Gallo v Dawson (1990) 64ALJR 458 at 459. His Honour said: