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Kelsall v Brisbane City Council

 

[2010] QCA 314

 

COURT OF APPEAL

 

HOLMES JA

MUIR JA

MCMURDO J

 

 

Appeal No 8359 of 2010

LAC No 006 of 2009

 

PAUL ANTHONY KELSALL AND OTHERSApplicants

 

and

 

BRISBANE CITY COUNCILRespondent

 

BRISBANE 

DATE 10/11/2010

 

JUDGMENT

 

 

HOLMES JA:  I will ask Justice Muir to give his reasons first.

 

MUIR JA:  The applicants commenced a proceeding in the Land Court claiming compensation in respect of the resumption by the respondent of land owned by the applicants for road works purposes.  The applicants asserted that the resumption was unlawful and instituted proceedings by a summons in the Magistrates Court alleging fraud against the Governor, the Premier, the Lord Mayor and others.  The summons was struck out on 11 June 2009 and the applicants either appealed to the District Court in respect of that decision or commenced some other proceeding in that Court.  The respondent commenced proceedings in the Supreme Court with a view to paying into that Court an advance of compensation under s 29 of the Acquisition of Land Act 1967 (Qld).  The applicants made an application in that proceeding for a stay of the District Court proceeding and a stay of the compensation proceeding in the Land Court until the Supreme Court proceeding had been determined.

 

The applicants then made application to the Land Court under s 25 of the Land Court Act 2000 (Qld) for a stay of the Land Court proceeding until, "such time as there has been a decision regarding [the respondent's] application to the Supreme Court".  On 1 October 2009, the Land Court dismissed the application for the reasons that:

 

(a)   It had not been shown that the applicants would suffer any material and irredeemable harm if the stay was refused;

(b)   The applicants were dilatory in pursuing the Supreme Court proceeding;

(c)   No good reason was shown why the respondent should not have the Land Court proceeding dealt with reasonably and effectively.

 

The applicants appealed to the Land Appeal Court on grounds which challenged the basis of the Land Court's refusal to stay the proceeding.  The notice of appeal was then amended to include an additional ground, stated in a variety of ways, to the effect that the Land Court had no power to grant a stay of proceeding.  The appeal to the Land Appeal Court was dismissed on 28 June 2010.  The Court found, in effect, that the initial grounds of appeal had not been made out and it concluded that the Land Court did have power to grant a stay of the proceeding.

 

The applicants apply for leave to appeal under s 74 of the Land Court Act on grounds that:

 

“(1)the Land Appeal Court made an error in law in finding the Land Court has the power to order a stay of proceedings before it pursuant to s 22 of the Land Court Act 2000 which relates to the power to make directions.

(2)the Land Appeal Court made an error in law in finding the Land Court has an implied power to order a stay of any proceeding before it.”

 

The application for leave to appeal should be refused.  It appears to lack any utility.  The applicants' concern was that the Land Court's decision to refuse a stay affirmed on appeal might give rise to an estoppel such that the applicants may be prevented from obtaining an order of the Supreme Court restraining the respondent from pursuing the Land Court proceeding.

 

The appellants' fears are groundless.  The refusal to grant a stay based on the facts before the Land Court for the reasons given by the Land Court would not prevent it from revealing its decision on other evidence nor could it prevent the Supreme Court restraining the respondent from pursuing the Land Court proceeding if it considered it appropriate to make such an order to protect the applicants' rights.

 

The respondent, by its counsel, properly conceded that no such issue estoppel arose and undertook that the respondent would not rely on any such argument.  In any event, if the applicants' argument concerning the power of the Land Court were to succeed the inevitable result would have been that the Land Court order would have been left undisturbed.  That is because the stay application was decided on its merits and dismissed.  There was no contention that the Court lacked power to make the order the applicants were seeking and the Court did not need to consider the question of power.  If it had lacked power to grant the stay application, and if that lack of power had been adverted to, the appropriate course for the Land Court to have followed was to have dismissed the application.

 

The appeal to this Court, if the application for leave to appeal succeeds, would not challenge the determination of the stay application on its merits.  Also, if the applicants succeeded in persuading this Court that the Land Court lacked power to grant a stay, for the reasons already given, the Land Court decision would remain undisturbed.  It would follow also that the Land Appeal Court was right to dismiss the applicants’ appeal. 

 

As I have said, the appeal is without utility.  For the above reasons I would dismiss the application for leave to appeal.

 

HOLMES JA:  I agree.

 

McMURDO J:  I agree.

 

HOLMES JA:  The order will be that the application for leave to appeal is dismissed.

 

HOLMES JA:  As has transpired, the application was one without merit as the Court has found, however, there is nothing to suggest that it was brought in bad faith or that it amounted to an abuse of process and, in those circumstances, the Court does not consider that indemnity costs should be awarded.

 

The applicants should pay the respondent's costs on the standard basis.

 
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Editorial Notes

  • Published Case Name:

    Kelsall & Ors v Brisbane City Council

  • Shortened Case Name:

    Kelsall v Brisbane City Council

  • MNC:

    [2010] QCA 314

  • Court:

    QCA

  • Judge(s):

    Holmes JA, Muir JA, McMurdo J

  • Date:

    10 Nov 2010

Litigation History

Event Citation or File Date Notes
Primary Judgment - - QLAC
Appeal Determined (QCA) [2010] QCA 314 10 Nov 2010 -

Appeal Status

{solid} Appeal Determined (QCA)