Grant Fergus Stump and Neil Eric Stump (Second Respondents)

Environment and Planning - Planning appeal - Application to adjourn appeal pending outcome of separate proceedings - Obligation to prosecute appeal expeditiously - Prejudice to proponent unable to act on permit.

Practice and Procedure - Adjournments - Application to adjourn own appeal pending outcome of separate proceedings - Prejudice to respondents unable to act on planning permit - Adjournment refused.

Land Use Planning and Approvals Act 1993, ss 53, 61;

Local Government (Building and Miscellaneous Provisions) Act 1993, s 85;

Tasmanian Civil and Administrative Tribunal Act 2020, ss 10, 77, 83, 84;

Aon Risk Services Australia Limited v Australian National University (2009) 239 CLR 175; [2009] HCA 27;

L & W Developments Pty Ltd v Della [2003] NSWCA 140; (2003) 135 IR 118;

Merck Sharp & Dohme Corporation v Pfizer Inc [2021] FCA 57;

Webb v Kingborough Council [2024] TASCAT 108.

Appellant: L Fernandez - Leonard Fernandez Barristers and Solicitors

First Respondent: S Edwards - Glenorchy City Council

1. The appellant has applied to stay or adjourn her own appeal. The circumstances of the application, which is opposed by the respondents, are somewhat unusual. I have decided to refuse it.

Background and the stay/adjournment application

1. The second respondents (the proponents) want to subdivide and carry out some associated works on a block of land Glenhope Road in Granton. On 19 August 2025, the first respondent (the council) granted them a permit under the Land Use Planning and Approvals Act 1993 (LUPAA). The appellant was unhappy about that decision. On 29 August, she filed an appeal under LUPAA, s 61(5). The appeal relates to the subdivision provisions of the Local Government (Building and Miscellaneous Provisions) Act 1993 (LGBMPA). Section 85(e) of that Act allows a council to refuse to approve a plan of subdivision if it is of the opinion that:

[T]he adjacent land of the owner, including land in which the owner has any estate or interest, ought to be included in the subdivision...

2. I understand the appellant to contend that the council should have refused the proponents' permit application on the basis that she has an interest in land (specifically a right of way) which should be included in the subdivision.
3. On 9 September, the appellant applied for:

[O]rders staying or adjourning the appeal pending the outcome of the Supreme Court proceedings pursuant to s.83(3)(f) and/or 83(4) of the [Tasmanian Civil and Administrative Tribunal Act 2020]...

4. It is apparent from the lengthy material filed by the appellant that the proponents and the appellant have been in dispute for several years. That dispute relates to whether the appellant has the benefit of a right of way over the proponents' property. Before filing this appeal, the appellant commenced a proceeding against the proponents in the Supreme Court to resolve that dispute. That proceeding is unresolved. It is not suggested that it is near to finalisation.
5. This appeal asserts that the proposed right of way (under the proponents' permit) wrongly omits a particular parcel of land. I am told that, in the Supreme Court, the appellant seeks an order to the effect that the proponents transfer to the appellant a right of way over the omitted parcel of land.
6. The appellant submits that the two proceedings involve the same issue (the existence of the claimed right of way) and "in substance the same parties". She contends that the Supreme Court proceeding, being commenced first and being heard by a superior court, should be determined first to avoid:

[A]n unseemly race to judgment between two sets of proceedings in circumstances which would generate substantial further legal costs and impose unnecessary hardship upon the parties.

7. She contends that the proponents will suffer no prejudice:

[B]ecause they too will want that central question resolved for the purposes of this appeal and the Supreme Court proceedings.

8. In her reply submissions, the appellant's application appeared to transmogrify into a request for a shorter adjournment so that she may obtain further material relating to the Supreme Court proceeding to bolster a longer adjournment or stay.

1. It is clear that the Tribunal has the power to stay the operation of a decision under review: Tasmanian Civil and Administrative Tribunal Act 2020 (TASCAT Act), s 77(2). I doubt that the Tribunal has the power to stay its own proceeding. In any event, it is unnecessary to decide the point. In these circumstances, staying the appeal is akin to adjourning it sine die (that is, with no appointed date for resumption) or simply not listing it for hearing.
2. The TASCAT Act provides a broad power to adjourn proceedings. Section 83(3)(f) allows the Tribunal to:

[A]djourn any proceedings at any time and to any place, including for the purpose of enabling the parties to the proceedings to negotiate a settlement or for the purpose or reconsideration of a decision by the decision-maker..

To the extent that the practice or procedure of the Tribunal is not prescribed by or under this Act, Tribunal rules, practice directions or a relevant Act, the practice or procedure is to be as the Tribunal determines.

4. Moreover, the Tribunal may give directions for the expeditious and fair conduct of proceedings: s 84(1). This extends to directions as to when a matter is to be heard.
5. In Webb v Kingborough Council [2024] TASCAT 108, Deputy President Grueber considered, at [8], s 83(3)(f) not to apply to situations where an appeal has not yet been listed for hearing. It is unnecessary for me to express a view, although I am inclined to respectfully agree. In any event, the principles governing adjournments are similar to those governing directions for the conduct of proceedings under s 84(1).
6. I reject the proponents' submission that s 83(3)(f) and (4) do not:

[E]xpressly or impliedly empower the Tribunal to order a stay of proceedings temporarily or otherwise, otherwise than for the purposes of facilitating mediation, or, we submit, for purposes of like nature.

7. Paragraph (f) is phrased disjunctively. The reference to enabling the parties to negotiate a settlement is described inclusively. It should not be read as limiting the reasons for which proceedings are adjourned. The proponents' submission is inconsistent with the provision's plain meaning, having regard to its context and purpose. The clear purpose of s 83 is to confer on the Tribunal a broad power to control its own proceedings, subject to other statutory commands. Relevantly, the Tribunal is to be "flexible" and "adjust its procedures to best fit the circumstances of a particular case or a particular jurisdiction": s 10(1)(g).
8. I find that the Tribunal has the power to adjourn an appeal sine die or make directions as to the listing of a matter, including for a reason relating to another proceeding.

1. The discretion whether to grant an adjournment is largely unfettered. But the discretion must be exercised judicially: Merck Sharp & Dohme Corporation v Pfizer Inc [2021] FCA 57 at [7].
2. The appellant bears the onus of establishing that I should grant her request: Aon Risk Services Australia Limited v Australian National University (2009) 239 CLR 175; [2009] HCA 27 at [103]. The overarching consideration is whether it is in the interests of justice. In answering that question, case management considerations are of little moment, the application having been made so early. In these circumstances, prejudice is the determinative factor.
3. An adjournment would prejudice the proponents. Their permit does not take effect until the appeal is determined or abandoned: LUPAA, s 53(3). It follows that the appellant is obligated to prosecute her appeal expeditiously and any further delay further prejudices the proponents. Moreover, I am told that the proponents have contracted to sell part of their land, that contract being predicated on completing the proposed works and the council sealing a plan of subdivision.
4. The appellant relies on L & W Developments Pty Ltd v Della [2003] NSWCA 140; (2003) 135 IR 118. Mason P, Giles and Santow JJA agreeing, considered a stay granted by the Supreme Court pending the outcome of proceedings in the New South Wales Industrial Relations Commission. In that case, the proceedings in the Commission were for a variation of employment contract on the ground of unfairness. The proceedings in the Supreme Court sought damages for negligence, breach of contract, and misrepresentation arising from the employment relationship. The Court of Appeal's decision is distinguishable. This appeal is, as the council contends, a statutory merits review of a planning decision, not a forum to determine civil property rights. In contrast, the terms of the employment contract were in issue before the Commission and the Supreme Court. If I am wrong about that, whether to adjourn is a discretionary consideration such that each case turns on its own facts.
5. Here, the proponents contend that the appeal has little merit. I have not found it necessary to form a view about the prospects of success. Instead, the question of prejudice militates overwhelmingly against granting the adjournment sought. This also militates against granting a shorter adjournment to allow the appellant to obtain further material to support a longer adjournment. So too does the lateness (being made in reply) of the applicant's transmogrification that I referred to above.
6. The Tribunal has a statutory obligation to hear and determine the appeal. The Tribunal is required to do so "as quickly as possible while achieving a just outcome": TASCAT Act, s 10(1)(c). Principles may pull in different directions. The appellant correctly points out that that the Tribunal may adopt another court or tribunal's findings and is required to act in a flexible way and "according to equity, good conscience and the substantial merits of the case": ss 10(1)(g) and 79(b)(ii) and (c).
7. While there may be some overlap with the Supreme Court proceeding, and therefore some increase in costs because of duplication, and potentially some risk of inconsistent findings (and therefore prejudice to the appellant), I consider these risks to be outweighed by the prejudice suffered by the proponent. Prejudice to the appellant is comparatively slight. Aside from cost and the risk of inconsistent findings, the appellant would nonetheless receive the benefit of a recognised right of way. I reject the appellant's submission that relief granted by the Supreme Court would be frustrated. It is not apparent to me why relief could not, if necessary, be sought against any subsequent owner (although it is neither necessary, nor am I able, to determine that point).
8. Balancing all these matters, I am far from persuaded that it is in the interests of justice to adjourn the appeal or otherwise delay its listing. The appellant commenced the appeal. She is obliged to prosecute it. The appeal is delaying the proponents' ability to act on their permit. Additional costs from running two proceedings are the consequence of the appellant's decisions to commence two proceedings.

1. I refuse the application. The appeal will be listed for a preliminary conference before a Senior Case Officer in accordance with the Tribunal's usual practice.