JONATHAN v LISMORE CITY COUNCIL [1995] NSWCA 222

JONATHAN v LISMORE CITY COUNCIL SUPREME COURT OF NEW SOUTH WALES — CouRT OF APPEAL

CLARKE JA 11 December 1995

[1995] NSWCA 222

Clarke JA. This is an application for expedition by a respondent to an appeal who obviously was successful in the court below. The appeal is brought from a decision of Bannon J in the Land and Environment Court and, on my understanding, is limited to a question of law. However, the hearing took something like four days. There are four appeal books and I am not confident that this case could be disposed of in less than half a day. A more conservative estimate would be that it would last a day, or perhaps even more. I say that because I was tempted at one stage to consider listing this matter in the short appeals list which, because of its nature, would enable an earlier hearing time than otherwise would occur in the normal situation.

I do not, however, think I can responsibly place this case in that list and so the question is simply whether a sufficient case has been made out for expedition.

Without going into detail I accept that there has been put before me a reasonably compelling case for granting expedition. The difficulty with acceding to the application lies in the state of this court's list. There are cases awaiting hearing in which notices of appeal and appeal books were filed as long ago as 1992. One of the reasons why such a long delay has come about is that the court has been, until now, quite liberal in granting expedition. It is my view that there is an absolute need to balance the case for urgency made out by an applicant seeking expedition against the needs of all the other litigants, appellants and respondents, whose appeals have been in the list for a long time awaiting

hearing. I would add that, as part of the attempt to meet the challenge that has been thrown up by the long delay in the hearing of appeals in the Court of Appeal, I have compiled a list of all the cases awaiting hearing which has required my staff and Ito examine all the appeal books which have been filed in the court.

There are something over 800 appeals awaiting hearing and some of those, which have been waiting a long time, have what, on the surface, appears to be grounds for a much earlier hearing than they have been afforded. In other words, the measure of urgency in some of those cases is as great as the measure of urgency in the case which I am considering at the moment.

I would, of course, like to assist this claimant but I have to balance the strength of his application against the rights of persons who have been waiting here for a long time to have their cases heard without undue delay. Obviously if grant a case like this expedition I displace another case which has been waiting for some time. In that balancing exercise it will be necessary, I fear, for the court to take a restrictive approach to the grant of expedition limiting an order only to those cases in which a very great urgency is shown.

In all circumstances of this case while, as I have said, I think a reasonable case has been made out for expedition, in carrying out the balancing exercise I am unable to make an order in favour of the claimant. Accordingly, expedition will not be granted at this stage.

2 UNREPORTED JUDGMENTS

I have, I should add, informed the claimant's legal representatives that it may be that with measures being introduced the court will be able to move its list more quickly than I anticipate. For that reason I have suggested that enquiries be made of the Registrar in about six months time to see whether the situation has changed and whether some measure of expedition can be granted to this case.

The formal order is that the notice of motion is dismissed. Costs in the motion will be costs in the appeal.