BOURNE v MURPHY and ORS [1996] NSWCA 61

BOURNE v MURPHY and ORS [1996] NSWCA 61

Given the risk of an obscure or confusing legal situation resulting from immediate execution of the order (potentially requiring a by-election before the special leave application can be heard and leading to more litigation), and the exceptional circumstances including Miss Bourne's continued occupancy of the office...

Source-derived case information.

Parties
Appellant: Miss Bourne; Respondent: Miss Murphy; Other: Electoral Commissioner
Jurisdiction
Australia
Judgment Date
04 December 1996
Procedural Posture
Stay Application / Post Appeal, Pending Special Leave Application to High Court
Outcome
Stay of Court of Appeal's orders continued pending the outcome of the special leave application to the High Court.
Legal Topics
Stay of Orders, Special Leave Application, Councillor Election Recount, Casual Vacancy, Costs
Electoral Law Local Government Law Civil Procedure Stay of Orders Special Leave Application Councillor Election Recount Casual Vacancy Costs

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Summary, issues, holding and outcome

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Parties

Miss Bourne

Appellant

Miss Murphy

Respondent

Electoral Commissioner

Other

Procedural Posture

Stay Application / Post Appeal, Pending Special Leave Application to High Court

Legal Issues

  1. 1 Should the stay of the Court of Appeal's orders pending Miss Bourne's special leave application to the High Court be continued?
  2. 2 What are the relevant principles guiding the grant of a stay in these circumstances?
  3. 3 What should be the costs consequences of the stay application?

Ratio Decidendi

Given the risk of an obscure or confusing legal situation resulting from immediate execution of the order (potentially requiring a by-election before the special leave application can be heard and leading to more litigation), and the exceptional circumstances including Miss Bourne's continued occupancy of the office for fourteen months, the stay should be continued until the determination of the special leave application.

Court Disposition

Stay of Court of Appeal's orders continued pending the outcome of the special leave application to the High Court.

Orders

  • Upon Miss Bourne undertaking to prosecute her application for special leave to appeal with due diligence, present stay to continue until application for special leave concluded, and if leave be granted, until the appeal pursuant to such leave is concluded, or until the High Court otherwise orders.
  • Costs of stay application to follow the event of the special leave application; liberty reserved to apply to a single judge of this court in regard to this costs order, after the application for special leave is concluded, and within twenty-one days of that conclusion.