Ngurampaa Ltd v Balonne Shire Council
[2014] QSC 146
•3 July 2014
SUPREME COURT OF QUEENSLAND
CITATION:
Ngurampaa Ltd v Balonne Shire Council & Anor [2014] QSC 146
PARTIES:
NGURAMPAA LIMITED ACN 082 760 110
(applicant)
v
BALONNE SHIRE COUNCIL
(first respondent)
and
MR ANDREW CRIPPS, MINISTER FOR NATURAL RESOURCES AND MINES
(second respondent)FILE NO/S:
1330 of 2014
DIVISION:
Trial
PROCEEDING:
Originating Application
ORIGINATING COURT:
Supreme Court of Queensland
DELIVERED ON:
3 July 2014
DELIVERED AT:
Brisbane
HEARING DATE:
10 May 2014
JUDGE:
Philippides J
ORDER:
The originating application is dismissed.
CATCHWORDS:
CONSTITUTIONAL LAW – IMPERIAL, COLONIAL, STATE AND COMMONWEALTH CONSTITUTIONAL RELATIONSHIPS – GENERALLY – SOVEREIGNTY – IN RESPECT OF ABORIGINALS – where the applicant is the registered owner of a property acquired from the Indigenous Land Corporation on 11 August 2000 – where the applicant failed to pay general rates levied upon the property by the first respondent by a rates notice dated 21 September 2012 – where summary judgment was awarded against the applicant and in favour of the first respondent in a Magistrates Court proceeding brought to recover the overdue rates – where the applicant seeks an order that the Magistrate Court decision be stayed, an order by way of prohibition preventing any execution by the Magistrates Court of its orders, and an order of prohibition against the first respondent prohibiting any execution of the rates notice – where the application is brought on the basis that an application is in the process of being filed in the International Court of Justice – where the essential basis upon which the applicant seeks relief rests on the notion that sovereignty adverse to the Australian Crown resides in the Euahlayi People’s Republic – whether there is a basis for a stay
Corporations Act 2001 (Cth), s 5E(2)(a)(ii)
Land Act 1994 (Qld), s 174
Land Title Act 1994 (Qld), s 37, s 185
Local Government Act 2009 (Qld), s 94(1)(a)
Judiciary Act 1903 (Cth), s 40, s 78BCoe v Commonwealth (1993) 118 ALR 193
Commonwealth v Yarmirr (1999) 101 FCR 171
Commonwealth v Yarmirr (2001) 208 CLR 1Croney v Nand [1999] 2 Qd R 342
Ellis v Scott [1964] 2 All ER 987
Hobart Bridge Co Ltd v FCT (1951) 82 CLR 372
J C Scott Constructions v Mermaid Waters Tavern Pty Ltd (No 1) [1983] 2 Qd R 243
Mabo v The State of Queensland (No 2) (1992) 175 CLR 1
Members of the Yorta Yorta Aboriginal Community v State of Victoria (2002) 214 CLR 422
R v Anning [2013] QCA 263
Salomon v Salomon & Co Ltd [1987] AC 22Walker v The State of New South Wales (1994) 182 CLR 45
COUNSEL:
M Eckford (aka Ghillar), in his capacity as director of the applicant
M P Amerena for the first respondentSOLICITORS:
M Eckford (aka Ghillar), in his capacity as director of the applicant
King & Company Solicitors for the first respondent
Background
The applicant, Ngurampaa Ltd, a not for profit unlisted public company limited by guarantee and registered in New South Wales, is the registered owner of a property known as Currawillinghi Station, being more particularly described as an estate in fee simple in Lot 7 of Crown Plan BLM458, County of Belmore, Parish of Briarie, Local Government: Balonne, Title Reference 50248944 (the property).
The property, a freehold grazing lease and homestead of some 6,650.604 hectares, was acquired by the applicant from the Indigenous Land Corporation on 11 August 2000. The Indigenous Land Corporation in turn acquired the property on 17 February 1999 from the original grantee of the property’s estate in fee simple, James Richmond. All transfers of freehold have been and continue to be subject to s 174 of the Land Act 1994 (Qld), such that the property may not be transferred without the approval of the Governor-in-Council.[1]
[1]See affidavit of Mr O’May.
The first respondent, the Balonne Shire Council, is a local government pursuant to the Local Government Act 2009 (Qld) and empowered to levy general rates on all rateable land within its local government area.[2] The property is land within the first respondent’s local government area.[3] By a rates notice dated 21 September 2012, the first respondent levied general rates upon the property in the amount of $3,062.80, which the applicant failed to pay.
[2]See s 94(1)(a) of the Local Government Act 2009.
[3]It is not in issue that it does not meet the description of exempted land in s 93(3) of the Act.
The Magistrates Court proceeding
On 15 January 2014, summary judgment was awarded against the applicant and in favour of the first respondent in a Magistrates Court proceeding brought to recover the overdue rates. In its defence in that proceeding, the applicant raised four matters by way of objection to the payment of the rates levied as follows:
“1. Ngurampaa Limited is a company solely owned and operated by‘Ghurrieburrah’ … clan of the Euahlayi Nation. A Nation, whose lands and waterways had been illegally squatted on. The control of these tracts of lands which the squatters claimed as theirs was defended and expanded through force and the Murdering of the people who did at the time and continue to maintain sovereignty and sovereign legal proprietary interests in the said lands and waterways.
2.The Euahlayi Nation was never defeated in war by the British thus; continue to be an Independent Nation as is defined under International Law.
3.The Euahlayi Nation has at no material time entered into Treaty’s; Contracts; Compacts, Peace Pacts or any other legal arrangements agreeing to pay rates for services by the Balonne Shire Council, then or now and
4.It is unconstitutional for the Federal Commonwealth Government of Australia to pay the Balonne Shire Council, fees for the provision of services to Aboriginal People’s communities’ living within their Shire Council boundaries.”
Additionally, the applicant had raised the following matter in affidavit material:
“13.Since the filing of this case by the Plaintiff, a number of significant actions have materialised. On July 1st 2013, the Euahlayi Peoples made a public Declaration of Independence, thereby, challenging the right and validity of the Australian colonial States and their colonial parent, The United Kingdom of Britain to assert sovereignty and dominion over the lands; waters; natural resources and airspace of the Euahlayi Nation. Attached and marked exhibit ND3 is a copy of the Euahlayi Peoples Republic Declaration of Independence. Thereby invoking the ‘Act of State Doctrine’.”[4]
[4]See affidavit of Mr Eckford sworn in the Magistrates Court proceedings on 7 February 2014, pp 106 and 107 to the exhibits to Mr O’May’s affidavit; see also exhibit ND-4 to that affidavit of Mr Eckford; pp 194-197 of the exhibits to the affidavit of Mr O’May.
The learned Magistrate noted that the arguments advanced by the applicant concerned “whether the Commonwealth properly gained [the] lands from the indigenous inhabitants”, which the Magistrate considered was a question to be dealt with by the Native Title Court or the Federal Court. The Magistrate determined that, as there was no real prospect of successfully defending the claim, there was no need for a trial of the claim and the defence was struck out. Summary judgment was entered for the first respondent for unpaid rates of $3,062.80 and costs of $897.85.
The proceedings in this court
The second respondent did not appear on the hearing of the application. Leave was given to Mr Eckford to appear on behalf of the applicant.
There has been no appeal brought against the Magistrates Court judgment. Instead, by the originating application, the applicant sought an order that the Magistrates Court decision be stayed, an order by way of prohibition, preventing any execution by the Magistrates Court of its orders, and an order of prohibition against the first respondent prohibiting any execution by the first respondent in respect of the rates notice. The basis on which that relief is sought is that “… an application is in process of being filed in the International Court of Justice by Wirring-un Ghillar of the Ghurrieburrah (aka Michael John Eckford) and on behalf of the Euahlayi Peoples Republic”.
Further, in an affidavit by Mr Eckford relied upon in support of the originating application, this court was asked “… to overturn the decision of the St George Magistrates Court and dismiss all costs awarded” (though such relief is not sought in the originating application).[5]
[5]See affidavit of Mr Eckford at para 42.
Also in the applicant’s outline of argument dated 6 May 2014 (at para 58), the applicant sought two additional orders. The first was that this matter be referred to the High Court as the issues raised are questions of international law. The second was that, “There are also questions of a constitutionality of a Commonwealth Act issuing an authority for something that is beyond the parliamentary Executive Powers under the Australian Constitution”. Both contentions were without merit. At the hearing of the matter I indicated that I did not consider that any valid jurisdictional issue was raised by the applicant. Nor was any matter raised that required the giving of notices to the Attorney-General of the Commonwealth and the States pursuant to s 78B of the Judiciary Act 1903. Leave to amend the originating application to raise other constitutional arguments as a basis for the relief sought was refused, given that the premise for orders sought in the originating application was the proceedings being pursued in the International Court of Justice.
The submissions
The applicant’s submissions largely reflected the matters raised previously in the Magistrates Court. The first respondent submitted that the relief sought by the applicant should be refused on the basis that:
(a)the Crown’s sovereignty is not justiciable in this court or any other Australian court;
(b)the applicant is an Australian corporation subject to Australian domestic laws including laws in relation to rates;
(c)the International Court of Justice has no jurisdiction or power to interfere with the sovereignty of the Australian Crown or with Australian domestic laws;
(d)no appeal lies from the Magistrates Court to this court in respect to the orders;
(e)further and in any event, no proper basis for a stay has been demonstrated.
Australian sovereignty is not justiciable
The essential basis upon which the applicant sought the relief in the originating application rests on the notion that sovereignty adverse to the Australian Crown resides in the Euahlayi People’s Republic. In effect, the applicant sought to challenge the Australian Crown’s acquisition of sovereignty. It also sought to contend that Australian domestic law, including laws of the State of Queensland concerning the levying of rates, do not apply to the Euahlayi People as members of that putative State, nor to the applicant corporation whose members are said to be members of that putative State. The same justification underpinned the request that this court overturn the orders made in the Magistrates Court proceeding.
In advancing its case, the applicant faces an insurmountable difficulty. The challenge to Australian sovereignty which underlies the relief sought before this court is a matter that is not cognisable in this or any other Australian court; for it is a basic doctrine of Australian law that Britian’s acquisition of sovereignty over the Australian continent was an act of State that is not justiciable before municipal courts: Mabo v The State of Queensland (No 2).[6]
[6](1992) 175 CLR 1, 15, 31-32, 78-79.
The proposition that Australian sovereignty may be challenged was emphatically rejected by Mason CJ in Coe v Commonwealth:[7]
“Mabo (No 2) is entirely at odds with the notion that sovereignty adverse to the Crown resides in the Aboriginal people of Australia. The decision is equally at odds with the notion that there resides in the Aboriginal people a limited kind of sovereignty embraced in the notion that they are ‘a domestic dependent nation’ entitled to self-government and full rights (save the right of alienation) or that as a free and independent people they are entitled to any rights and interests other than those created or recognised by the laws of the Commonwealth, the State of New South Wales and the common law. Mabo (No 2) denied that the Crown’s acquisition of sovereignty over Australia can be challenged in the municipal courts of this country.”
[7](1993) 118 ALR 193, 200 (footnotes omitted).
Mason CJ again dealt with assertions of the sovereignty of a particular Aboriginal people in Walker v The State of New South Wales,[8] stating:
“There is nothing in the recent decision in Mabo v Queensland (No 2) to support the notion that the Parliaments of the Commonwealth and New South Wales lack legislative competence to regulate or affect the rights of Aboriginal people, or the notion that the application of Commonwealth or State laws to Aboriginal people is in any way subject to their acceptance, adoption, request or consent. Such notions amount to the contention that a new source of sovereignty resides in the Aboriginal people.”
[8](1994) 182 CLR 45, 48 (footnotes omitted).
That is a position that has been reiterated by the High Court.[9] In Members of the Yorta Yorta Aboriginal Community v State of Victoria[10] Gleeson CJ, Gummow and Hayne JJ referring to the consequences of sovereignty and change in sovereignty explained:
“First, it follows from Mabo (No 2) that the Crown’s acquisition of sovereignty over the several parts of Australia cannot be challenged in an Australian municipal court. Secondly, upon acquisition of sovereignty over a particular part of Australia, the Crown acquired a radical title to the land in that part, but native title to that land survived the Crown’s acquisition of sovereignty and radical title. What survived were rights and interests in relation to land or waters. Those rights and interests owed their origin to a normative system other than the legal system of the new sovereign power; they owed their origin to the traditional laws acknowledged and the traditional customs observed by the indigenous peoples concerned.
…
… It is important to recognise that the rights and interests concerned originate in a normative system, and to recognise some consequences that follow from the Crown’s assertion of sovereignty. Upon the Crown acquiring sovereignty, the normative or law-making system which then existed could not thereafter validly create new rights, duties or interests. Rights or interests in land created after sovereignty and which owed their origin and continued existence only to a normative system other than that of the new sovereign power, would not and will not be given effect by the legal order of the new sovereign.
… But what the assertion of sovereignty by the British Crown necessarily entailed was that there could thereafter be no parallel law-making system in the territory over which it asserted sovereignty. To hold otherwise would be to deny the acquisition of sovereignty and as has been pointed out earlier, that is not permissible.’”
[9]See Commonwealth v Yarmirr (2001) 208 CLR 1, 50-51; Members of the Yorta Yorta Aboriginal Community v State of Victoria (2002) 214 CLR 422. Arguments as to sovereignty of Aboriginal people, not dissimilar to those raised by the applicant, were recently considered and rejected in R v Anning [2013] QCA 263, [40]-[53].
[10](2002) 214 CLR 422, 441, 443-444 (footnotes omitted).
Clearly, a stay premised on a challenge to the Australian Crown’s acquisition of sovereignty cannot be sustained as a matter of law. Perhaps mindful of that difficulty, the applicant sought to advance a number of other contentions, all of which, however, collide with the settled principle that Australian sovereignty is not justiciable in any Australian court and are therefore unsound.
One argument advanced by the applicant, relying on principles of international law, was that the claim of sovereignty of the Euahlayi Nation is not justiciable in this court and therefore “cannot be interfered with”, but must be assumed.[11] It was contended that such sovereignty was “established by the Euahlayi Peoples Republic’s Declaration of Independence and the pre-existing and continuing sovereign independence of the Euahlayi Nations and Peoples”. As the first respondent identified, the assertion put forward appeared to be based on the proposition that a purported act of self-determination resulted in the exclusive and absolute sovereignty of the Euahlayi Nation, invoking the doctrines of “jus cogens” and “erga omnes” and was an “Act of State”, which could not be challenged save with the consent of the Euahlayi Nation. The first respondent disputed the correctness of those assertions as a matter of international law, and submitted that it was telling against the asserted sovereignty of the Euahlayi Nation that the applicant brought its case for relief to an Australian court. The first respondent relied on the observation of Gleeson CJ, Gaudron, Gummow and Hayne JJ in Commonwealth v Yarmirr[12] that the “critical question for a municipal court is what reach the Sovereign claims for itself, not what reach other Sovereigns may concede to it”. It is abundantly clear, as the first respondent argued, that as a matter of law this court cannot take into account or act upon any assumption of competing sovereignty from the purported Euahlayi Nation for any purpose. To do so would contravene the fundamental doctrine of Australian law previously mentioned.
[11]See applicant’s outline of argument of 6 May 2014 at paras 1-8, 15, 22, 53, 54 and 56.
[12](2001) 208 CLR 1 at 52.
Another contention was raised by the applicant as follows:
“The Balonne Shire Council and the Minister for Natural Resources and Mines confirmed to this court that they do not possess any documents/contracts/Treaties of surrender by the Euahlayi Peoples as a result of being defeated in a declared war, nor do they possess any documents relating to the Euahlayi People ceding to the English Crown. In view of these admissions, the right to rate the lands of the Euahlayi is ultra vires. This represents a lacuna in Australian colonial law.”[13]
[13]See applicant’s outline of argument of 6 May 2014 at para 36; also paras 30, 35 and 45.
The first respondent argued that this contention appeared to misunderstand or challenge the decision in Mabo (No 2), given that it proceeds on the assumption that the British Crown cannot have acquired sovereignty over the lands inhabited by the Euahlayi Nation, in the absence of defeat by conquest or ceding of territory, whereas conquest and cession are not the only recognised means of acquiring sovereignty. In that regard, it was submitted that Mabo (No 2) established that at the time of the acquisition of Australian sovereignty, international law recognised acquisition of sovereignty not only by contest, cession and occupation terra nullius, but also by the settlement of inhabited lands whether that process of “settlement” involved negotiations with and/or hostilities against the native inhabitants. The High Court recognised this lastmentioned method of the acquisition of sovereignty as applicable in the case of Australia.[14] Those submissions are correctly made.
[14](1992) 175 CLR 1 per Brennan J (with whom Mason CJ and McHugh J agreed) at 32-34; per Deane and Gaudron JJ at 77 and 78, 79. See also Members of the Yorta Yorta Aboriginal Community v State of Victoria (2002) 214 CLR 422 at 441.
A further argument advanced by the applicant was the proposition that because the land in question was, it was asserted, unconveyed and unconveyable Euahlayi alloidal title, the first respondent Council had “no power to rate” it. That argument also runs counter to Mabo (No 2). The first respondent argued that upon acquisition of sovereignty, radical title vested in the Crown. And even if it was correct to say that before the acquisition of Australian sovereignty, alloidal title of the character contended for vested in “the collective group of a clan” of the Euahlayi tribe in respect of the land in question, and upon acquisition of sovereignty such alloidal title constituted common law native title, that did not assist the applicant in its argument. The nature of that native title did not put it beyond the reach of valid Commonwealth, State and Territorial legislation which, being inconsistent with the existence of that bundle of rights, expropriated or extinguished that native title: see Mabo (No 2).[15] That, the first respondent submitted, is what happened in respect to the land in question in this matter, given the matters referred to at [2] of these reasons. Furthermore, even if the extinguishment of native title had not occurred, no incident of such native title rights “exempted” the applicant from the operation of the State legislation imposing a liability to pay rates on the land of which it is the registered owner. Those submissions are correctly made.
[15]Per Brennan J (with whom Mason CJ and McHugh J agreed) at 69 and 70; per Deane and Gaudron JJ at 110-112; per Toohey J at 195 and 196.
In its outline of argument, the applicant also advanced a contention based on the notion of “grant by deceitful fraud”. The argument was that the land in question was:
“… considered by the British colonisers as the King’s wastelands and all the King’s land grants to the illegal immigrants to the Euahlayi Lands were done deceitfully by a deceitful fraud. … if a recipient party to a royal command acts deceitfully, the Crown is taken to have been defrauded, and any such grant or warrant is void; see Eastern Archipelago Company v Queen …”[16]
[16]See applicant’s outline of argument of 6 May 2014 at para 37; see also para 38.
As the first respondent pointed out, the current submission differed from the assertion in Mr Eckford’s affidavit filed 30 April 2014, in that the former attributed fraud to the grantees while the latter attributed fraud to the grantor. The submissions now made appear to be an attempt to invoke “a rule of very ancient standing” applicable when the King was “deceived in his grant” considered in some detail by Spencer Bower in the 1st Edition of his work “The Law of Actionable Misrepresentation”[17] to which the applicant referred.As the first respondent submitted, by the time of the publication in 1974 of the 3rd Edition, the ancient rule was considered to be a principle of diminishing importance and doubt was expressed as to how long it would retain any real significance.[18] That observation was made against the background that such grants were no longer made by the King, but rather by statutory authorities under statutory provisions and subject to the regime of administrative law remedies.
[17](1911) Butterworth & Co at pp 357-361.
[18]See 3rd ed at pp 386-387.
The first respondent submitted that the ancient rule would not apply in this case because what Spencer Bower identified as having to be proved has not been proved, the onus being on the applicant in this case.[19] But additionally it was submitted that indefeasible title to the land presently in question, which was rated, was created in accordance with s 37 of the Land Title Act 1994 (Qld) by an order for indefeasible title, Registered No 703065737, executed by the Registrar of Titles.[20] In effect, only the statutory exceptions to indefeasibility found in s 185 of the Land Title Act or in some other statute could displace that indefeasible title. In other words, the Torrens title system of land excluded the operation of the ancient rule that the King may be deceived in his grant. Further, upon acquisition of Australian sovereignty, the legislative power of the Crown ultimately passed into the hands of the State of Queensland to pass valid laws of full force and effect not only concerning the imposition of rates but also the management of Crown lands and the Torrens title system. The purported past frauds of various unidentified grantees, even if established, would not suffice to displace the validity and effect of this legislation.
[19]See The Law of Actionable Representation, 3rd ed at pp 384-386.
[20]See p 21 of the exhibits to Mr O’May’s affidavit filed 28 April 2014.
I accept that there is no substance in the contentions of the applicant based on the concept of “grant by deceitful fraud”. The applicant’s argument is in reality an attack on the acquisition of sovereignty and unsound.
The applicant also seemed to advance an argument premised on the proposition that there was “absolutely no doubt there is a subsisting Continental common law in Australia, which cannot be permanently extinguished”.[21] It is clear it was the English common law, not some Continental common law, which applied in Australia on the acquisition of sovereignty: see Mabo (No 2).[22] It is difficult to comprehend what point was sought to be made by this submission. It is lacking in merit.
[21]See outline of argument of the applicant dated 6 May 2014 at paras 28 and 29.
[22]Per Brennan J (with whom Mason CJ and McHugh agreed) at pp 34-38 and per Deane and Gaudron JJ at pp 79 and 80.
Finally, some reliance was placed by the applicant on observations of the Full Court of the Federal Court in Commonwealth v Yarmirr,[23] which was affirmed on appeal in the High Court in Commonwealth v Yarmirr.[24] However, as the first respondent correctly submitted, nothing said in those decisions advances the case for the applicant or detracts from the first respondent’s case.
[23](1999) 101 FCR 171.
[24](2001) 208 CLR 1.
Applicant corporation subject to the laws of Queensland
The first respondent submitted that the applicant faced a further obstacle in the relief sought. The first respondent submitted the liability to pay the rates in question here was not imposed on the Euahlayi People’s Republic, nor even members of that putative State, but on the applicant corporation. The first respondent pointed to the argument which the applicant raised in the Magistrates Court proceedings, in an endeavour to overcome this difficulty:
“Ngurampaa Limited is a Corporation owned solely by members of the ‘Ghurrieburrah’ clan of the Euahlayi Nation. The Directors also form the Governance body of the Clan group under our ancient customs and laws/lores. Each of the Directors with the exception of the Company Secretary is direct bloodline descendants of the ancient Peoples whose lands the registered company is situated on. (The company Secretary is in fact a spouse of a Director).
Ngurampaa Limited is incorporated under the Australia (sic) Australian and Securities and Investment Commission (ASIC) so as to operate outside of our territories in the modern commercial world. The fact that Ngurampaa limited is incorporated under Australian laws, does not equate to acquiescence on our part.”[25]
[25]Page 1 of the Defence at p 82 of the exhibits to Mr O’May’s affidavit.
As the first respondent submitted, the applicant corporation has its own legal personality separate and distinct from that of its members: see Salomon v Salomon & Co Ltd [26] and Hobart Bridge Co Ltd v FCT.[27] The applicant is subject not merely to the Corporations Act 2001 (Cth) but also to the concurrent operation of a law of a State that, inter alia, imposes additional or civil liabilities on it as a company: see s 5E(2)(a)(ii) of the Corporations Act. The applicant corporation was liable for the rates levied and there is no basis to challenge orders made by the Magistrates Court in that regard.
[26][1897] AC 22 per Lord McNaughton at 51.
[27](1951) 82 CLR 372 per Kitto J at 384 and 385 where the observations of Lord Sumner in Gas Lighting Improvement Co Ltd v IRC (1923) AC 723 at 740 and 741 are cited with approval.
The International Court of Justice has no jurisdiction or power in this matter
The International Court of Justice is the principal judicial organ of the United Nations: see Article 92 of the Charter of the United Nations. It is established and constituted by and functions in accordance with the Statute of the International Court of Justice, which is an integral part of the Charter of the United Nations and is annexed thereto. Only States may be parties in cases before the International Court of Justice. The Euahlayi People’s Republic is not a member of the United Nations and it does not, as a matter of international law, have access to the International Court of Justice. The International Court of Justice may only deal with a dispute when the States concerned have recognised its jurisdiction. No State can therefore be a party to proceedings before the International Court of Justice unless it has in some manner or other consented thereto.[28] As the first respondent submitted, there is not a scintilla of evidence that Australia in some manner or other has consented to being a party to any proceeding sought to be brought by the Euahlayi People’s Republic before the International Court of Justice.
[28]See the notes on contentious jurisdiction contained on the website of the International Court of Justice; see pp 235 and 236 of the exhibits to the affidavit of Mr O’May.
No appeal lies to the Supreme Court
There is no need to address the arguments made by the first respondent concerning any right of appeal to this court from the Magistrates Court. No such appeal is sought to be made. The only basis on which the proceeding is before this court is as an originating application.
No proper basis for a stay
The first respondent submitted that in the absence of an appeal, it may be doubted that the court has power under the Uniform Civil Procedure Rules 1999 to stay the execution of the orders: see rule 761 and J C Scott Constructions v Mermaid Waters Tavern Pty Ltd (No 1).[29] It accepted that the content of the statutory discretion to grant a stay of execution of a judgment is now recognised as requiring appropriate rather than special or exceptional circumstances making it expedient to do so: see Croney v Nand.[30]Additionally, it acknowledged that a superior court of record has inherent jurisdiction to grant a stay against the execution of the judgment even if an appeal has not been instituted, provided there are special circumstances which render that course expedient: see Ellis v Scott.[31]
[29][1983] 2 Qd R 243.
[30][1999] 2 Qd R 342 at para [33].
[31][1964] 2 All ER 987.
But in the present case there is entirely no basis for a stay. The arguments advanced are without merit and fail at the first hurdle.
The originating application should be dismissed. I will hear submissions as to costs.
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