Clarke v Pelenyi

[2002] QCA 81

COURT OF APPEAL

McMURDO P

No 2118 of 2002

JUSTINE LESLIE CLARKE Respondent (Plaintiff)

and

PETER PELENYI Appellant (Defendant)

BRISBANE

..DATE 15/03/2002

JUDGMENT

THE PRESIDENT: The applicant has applied for leave to appeal from a decision of a District Court Judge dismissing the applicant's appeal from the decision of a Magistrate at Beenleigh finding that the applicant was liable for a motor vehicle collision with the respondent awarding damages and costs to the respondent.

This is an application for a stay of the District Court Judge's order dismissing the appeal, pending the hearing of any appeal in this Court. The application is brought under UCPR rule 761 which provides:

The starting of an appeal does not stay the enforcement of the decision under appeal;
However, the Court of Appeal, a Judge of Appeal or the Court that made the order appealed from may order a stay of the enforcement of all or part of a decision subject to an appeal.

This Court has no power under that rule to stay an order the subject of an application for leave to appeal because until leave is granted there is no appeal. See Stone v. Copperform Pty Ltd [2001] QCA 7, CA No 11195 of 2001, 31 January 2001, QLR June 23 2001. I refuse the application at this stage. The application should, however, be adjourned to the hearing of the application for leave to appeal. If the applicant is successful in obtaining leave, the question of a stay can be considered at that time.

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CaseChat Overview and Summary

The matter of Clarke v Pelenyi before the Queensland Court of Appeal concerns a motor vehicle accident where the plaintiff, Justine Leslie Clarke, was injured. The defendant, Peter Pelenyi, appealed a decision of the District Court, which upheld the lower court's ruling that Pelenyi was liable for the accident and awarded damages and costs to Clarke. Pelenyi applied for leave to appeal to the Court of Appeal and requested a stay of the District Court's decision pending the outcome of the appeal. The court was required to determine whether it had the authority to grant a stay of enforcement of the District Court's decision before the appeal was formally granted.

The Court of Appeal examined the relevant rule under the Uniform Civil Procedure Rules, which provides that an appeal does not automatically stay the enforcement of the decision being appealed. However, the Court of Appeal or a Judge of Appeal may order a stay of enforcement subject to an appeal. The Court found that it did not have the power to stay the enforcement of the District Court's order at the stage of the application for leave to appeal since there was no appeal until leave was granted. The Court cited a previous case, Stone v. Copperform Pty Ltd, which held that the Court of Appeal has no jurisdiction to stay enforcement of a decision prior to the grant of leave to appeal. The Court refused the application for a stay at that stage but noted that the stay issue could be revisited if leave to appeal was granted.

The Court of Appeal dismissed the application for a stay of enforcement of the District Court's decision pending the outcome of the appeal for leave. The Court noted that the application should be adjourned to the hearing of the application for leave to appeal. If the defendant was successful in obtaining leave, the issue of a stay could be considered at that time. The Court did not make any final orders regarding the stay but clarified the legal position concerning the enforcement of the District Court's decision pending the outcome of the appeal for leave.

CaseChat Overview and Summary

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Legal Principle Established