LEE v LUTZE [1989] NSWCA 131

LEE v LUTZE [1989] NSWCA 131

A stay of the execution of the return order should be granted at least until the reasons of the trial judge are available to protect the right of appeal, and exceptional circumstances are not required in such cases.

Parties
Claimant: Lee; Opponent: Lutze
Jurisdiction
Australia
Judgment Date
17 February 1989
Procedural Posture
Application for Stay Pending Appeal / Interlocutory Application Before Court of Appeal
Outcome
Stay of execution of order granted until 23 February 1989 at 7pm, with procedural directions for written submissions and costs to be in the motion for a stay.
Legal Topics
Stay of Execution, Return of Prisoner, Appellate Rights
Criminal Procedure Appellate Practice Stay of Execution Return of Prisoner Appellate Rights

Case Brief

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Parties

Lee

Claimant

Lutze

Opponent

Procedural Posture

Application for Stay Pending Appeal / Interlocutory Application Before Court of Appeal

Legal Issues

  1. 1 Whether a stay should be granted of an order for the return of a prisoner pending appeal when reasons of the trial judge are not available
  2. 2 Whether exceptional or special circumstances are necessary to grant such a stay

Ratio Decidendi

A stay of the execution of the return order should be granted at least until the reasons of the trial judge are available to protect the right of appeal, and exceptional circumstances are not required in such cases.

Court Disposition

Stay of execution of order granted until 23 February 1989 at 7pm, with procedural directions for written submissions and costs to be in the motion for a stay.

Orders

  • Stay the execution of the order of Carruthers J until 23 February 1989 at 7 pm
  • Liberty to restore the motion for stay upon one day's notice