Gerhardt v Brisbane City Council

[2016] QCA 272

[2016] QCA 272

COURT OF APPEAL

GOTTERSON JA

Appeal No 10289 of 2016
DC No 2023 of 2016

TREVOR WILLIAM GERHARDT  Applicant

v

BRISBANE CITY COUNCIL  Respondent

BRISBANE

THURSDAY, 27 OCTOBER 2016

JUDGMENT

GOTTERSON JA:  The applicant, Trevor William Gerhardt, has applied for an order staying the decision of the Planning and Environment Court in Gerhardt v Brisbane City Council (No 2) reported at [2016] QPEC 48.  The decision for which the application is referenced is properly described as the orders made in that matter on 5 October 2016.  The orders then made did two things: they ordered that an application brought by Mr Gerhardt be dismissed; the second order was that there be no order as to costs.

The application before the Planning and Environment Court sought declaratory relief under s 456 of the Sustainable Planning Act 2009 (Qld) concerning land at Rossiter Street, Morningside. The declarations related to steps in the assessment and determination by Mr Gerhardt of a building development application concerning the property.

The application for a stay was filed on 7 October 2016. On the same day, Mr Gerhardt also filed an affidavit in support of that application and an application for leave to appeal to this court pursuant to s 498(2) of that Act. It is not clear from the application for the stay or from Mr Gerhardt’s outline of argument in support of it, whether he seeks to invoke the power conferred on this Court to grant a stay by r 761(2) of the Uniform Civil Procedure Rules 1999 or whether he relies on the Court’s inherent jurisdiction to order a stay of a decision pending appeal, affirmed in JC Scott Constructions v Mermaid Waters Tavern Pty Ltd.

I proceed on the basis that either jurisdiction is sought to be invoked.  In either case, the jurisdiction is one to stay the enforcement of the decision under appeal.  An order to dismiss an application for declaratory relief is not apt to be enforced.  Such an order does not lend itself to enforcement by the processes of the Court as do, for example, orders that require the payment of money or the doing of some act or that restrain a person from doing some act.  The same may be said of an order that there be no order as to costs.  For this reason, the application for a stay of the orders made on 7 October 2016 is misconceived; it must be refused.  Whether Mr Gerhardt might be entitled to some kind of relief other than the stay of these orders, for example, an interlocutory injunction pending appeal, is a separate and distinct matter.  It does not arise for determination on this application.

I acknowledge the submission by counsel for the respondent that decisions of this Court, including Stone v Copperform Pty Ltd, have established that a stay may not be granted under r 761 until any necessary leave to appeal has been granted.  Those decisions do not, however, establish that a like constraint applies in respect of the inherent jurisdiction to grant a stay.  Whether it does or not is a question that I need not decide on this application.

The orders of the Court are:

1. The application is refused.

2. The applicant is to pay the respondent’s costs of the application on the standard basis.