FRANKS -v- ROADS & TRAFFIC AUTHORITY [1996] NSWCA 192

Court of Appeal (NSW)|1996-02-12|Before: Clarke JA

SUPREME COURT OF NEW SOUTH WALES - COURT OF APPEAL

Clarke JA. This is an application by Gregory Michael Franks for a stay of an order made by GREAT in June 1995. The order was one dismissing Mr Franks from his employment with the RTA and the basis upon which the stay is sought is that Mr Franks has appealed from the decision upon which that order was based.

The reason underlying his application is that last year the opponent advertised his position internally but did not replace him at that time and has since, be believes, advertised externally. There is other evidence which suggests that there has been no external advertisement but it is not necessary for me to work out what the position really is. What is known is that the position has not been filled at the present time and has in fact been vacant since 8 December 1994 when the applicant was demoted and transferred.

Mr Colefax, who has assisted the Court considerably in supplementing material put before the Court by the applicant, who appeared in person, has accepted that provided expedition is granted for the appeal there would not be substantial prejudice to his client. He raises, however, three significant questions:

First, he says, there is no explanation why the application for a stay is so late in the piece. Although the applicant sought to meet that point by reference to difficulties he had in obtaining the transcript and the consequential inability toGREAT's determination on liability, that the previous demotion would simply be reinstated. If that is so then there is little purpose in preventing the opponent from advertising the position.

In the course of submissions Mr Franks said that he had been discussing his appeal with his barrister who had informed him that she wised to raise additional grounds but that she needed access to the transcript in order to obtain those grounds; that is the transcript of the appearances before GREAT. Mr Franks said, and I have no reason to disbelieve him, that he had been denied access to that transcript and that he had been unable to formulate his Notice of Appeal properly and press on for an application for expedition in the absence of a completed Notice of Appeal. I should interpolate that the reason that this matter was ventilated was that I had suggested in December 1995 that an application for expedition be made and the applicant was really pointing out why he had not done that at this stage.

In all the circumstances and having regard to the factors mentioned by Mr Colefax and the competing prejudices, it seems to me that I should make two orders:

I should expedite the appeal and place it in the expedited list, which would probably mean it would be heard in April or May;

I should stay the execution of the order made until the determination of the appeal or further order; and

I order that the opponent's costs be costs in the appeal.

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Judgment (10 paragraphs)

Cited By (3)