Kelly v Mosman Municipal Council [2010] NSWCA 370

Reported Decision: 178 LGERA 136

New South Wales Court of Appeal

CITATION: Kelly v Mosman Municipal Council [2010] NSWCA 370

HEARING DATE(S): 13 December 2010

JUDGMENT DATE: 13 December 2010

JUDGMENT OF: Campbell JA

EX TEMPORE JUDGMENT DATE: 13 December 2010

(1) Any application that Lydia Williams be granted leave of the court to appear as McKenzie friend for David Kelly is stood over to any further hearing of this matter before the court, to be dealt with by the judicial officer hearing that matter. (2) Being of the opinion that it is in the interests of justice so to do, I refer Mr Kelly to the registrar for referral to a barrister or solicitor on the Pro Bono Panel for legal assistance relating to: (i) the purported appeal from the decision of Biscoe J on 19 June 2009, Mosman Municipal Council v Kelly (No 3) [2009] NSWLEC 92 and the appeal from the decision of Biscoe J in Mosman Municipal Council v Kelly (No 6) [2010] NSWLEC 20. That referral is a referral in the first instance to give advice relating to the grounds of appeal 6(a), 6(c), 6(d), 6(e), 6(f) and that part of 6(g) up to the word "including" but not including the balance of ground 6(g). (ii) The extent to which the legal practitioner giving that advice is of the view that there are reasonable prospects of the court either granting an application for leave to appeal on those grounds, or on any other grounds that that legal practitioner advises have reasonable prospects of success, to advise further about the steps needed to prosecute such an appeal or further appeal and (if the legal practitioner is willing to undertake this part of the reference), to appear in such proceedings. In the event that the legal practitioner who first gives the advice is unwilling to appear, I would reserve liberty to Mr Kelly to seek a further referral, for the purpose of obtaining representation at any hearing that might occur. (3) I order that the decision of Biscoe J given on 19 June 2009 and 23 February 2010 be stayed pending the determination of any appeal or application for leave to appeal from those decisions. (4) I grant leave to the respondents to apply to terminate that stay in the event that the appeal or application for leave to appeal is not being prosecuted with reasonable diligence. DECISION: (5) I dismiss the prayer for relief numbered five in the notice of motion filed on 8 December 2010. (6) I stand over orders one and three in that notice of motion for further consideration at a time to be listed by the registrar. (7) I refuse to grant an extension of time in which to appeal or grant leave to appeal concerning the judgment of Jagot J of 19 February 2007 and the judgment of Lloyd J on 31 July 2008. It follows that grounds 1, 2, 3, 4, 7 and 8 of the notice of appeal filed on 24 May 2010 are incompetent and must be dismissed. (8) I order that those paragraphs of the notice of appeal be dismissed. (9) I order the appellant to pay the respondent's costs of the portions of the notice of appeal that have been dismissed, but order that enforcement of any order for payment of those costs be stayed pending the determination of the appeal or further order of the court. (10) I order that the costs of the notice of motion be costs in the cause. (11) I stand the matter over before the Registrar for further directions and such further application as the parties might be advised to make on 14 February 2011. [The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.]