Key Principles for Applying for a Stay of an Administrative Decision pending a Merit's Appeal in Queensland

When an administrative decision is appealed, the appellant may seek a stay to prevent the decision from taking immediate effect while the appeal is determined. Such an application (if available for a decision) is underpinned by a specific statutory framework; however, it invariably involves the application of general law principles, which a Court will apply in the circumstances of the case. 

Those principles are as follows:

1.       Onus on the Applicant

The applicant bears the burden of proving a proper basis for the stay. This was outlined in Bond v Chief Executive, Department of Environment and Science [2022] QPELR 191, [21], where the court emphasized that the onus is on the applicant, citing Alexander v Cambridge Credit Corporation Ltd (1985) 2 NSWLR 685, 694 (Kirby P, Hope JA, McHugh JA).

2.       Filing an Appeal is Not Enough

Merely filing an appeal does not establish a case for a stay or discharge the applicant’s burden. As stated in BM Alliance Coal Operations Pty Ltd v Michael Scully, Inspector Resources Safety & Health Queensland [2021] ICQ 1, [8], the court referred to Alexander v Cambridge Credit Corporation Ltd (1985) 2 NSWLR 685, 694-695 (Kirby P, Hope JA, McHugh JA) in asserting this principle.

3.       Assessment of Appeal’s Prospects

The court does not need to conduct a detailed assessment of the appeal’s merits unless the appeal appears frivolous or not arguable. This principle was applied in Cougar Energy Limited v Debbie Best, Chief Executive under the Environmental Protection Act 1994 [2011] QPEC 150, [20], citing Cook’s Construction Pty Ltd v Stork Food Systems Australasia Pty Ltd (2008) Qd R 453; Alexander v Cambridge Credit Corporation Ltd (1985) 2 NSWLR 685; and Attorney for the State of Queensland v Farden [2011] QCA 111.

4.       Irreparable Prejudice

A critical focus of the court is whether the applicant would face irreparable prejudice if the stay is not granted, potentially rendering the appeal nugatory. This is laid out in Cougar Energy Limited v Debbie Best [2011] QPEC 150, [20], citing Cook’s Construction Pty Ltd v Stork Food Systems Australasia Pty Ltd (2008) Qd R 453, Alexander v Cambridge Credit Corporation Ltd (1985) 2 NSWLR 685, and Attorney for the State of Queensland v Farden [2011] QCA 111.

5.       The Balance of Convenience

Even if irreparable prejudice is shown, the court must consider where the balance of convenience lies. The applicant’s position is weighed against the respondent’s to identify which course carries a lower risk of injustice. This was explained in Cougar Energy Limited v Debbie Best [2011] QPEC 150, [22], citing Australian Broadcasting Corp v O’Neill (2006) 227 CLR 57, 82-82 [65] (Gummow, Hayne JJ), endorsing Beecham Group Ltd v Bristol Laboratories Pty Ltd (1968) 118 CLR 618, 622-623 (Kitto, Taylor, Menzies, and Owen JJ).

6.       Public Law Considerations

In public law cases, the court must consider not only the harm to the parties but also the potential impact on the public for whom the decision was made. This includes weighing the risk of irreparable harm to both litigants and the public interest (Bryant v Commonwealth Bank of Australia (1996) 134 ALR 460, 464 (Kirby J); Australian Leisure & Hospitality Group Ltd v Chief Executive, Department of Employment, Economic Development and Innovation [2009] QSC 354, [30] (Applegarth J)). The timing of the application is also relevant, as delays in bringing proceedings may be a factor against the applicant (Elliott v Knott [2002] FCA 1030, [12] (Finkelstein J)).

These principles ensure that courts carefully assess stay applications to balance fairness and protect the integrity of the appeal process.  Making an application for a stay of an administrative decision can be complex and will always turn on the facts of a specific case.

Joshua Pemberton, Barrister-at-Law

Level 11, Inns of Court, Queensland