Ashton v Cassowary Coast Regional

DISTRICT COURT OF QUEENSLAND

CITATION:

Ashton v Cassowary Coast Regional [2017] QDC 279

PARTIES:

GEOFFREY JOHN ASHTON
(appellant)
v
CASSOWARY COAST REGIONAL COUNCIL
(respondent)

FILE NO/S:

APPEAL NO: 141 of 2017

DIVISION:

Appellate

PROCEEDING:

Appeal

ORIGINATING COURT:

Magistrates Court, Innisfail

DELIVERED ON:

20 October 2017  

DELIVERED AT EX TEMPORE:

Cairns

HEARING DATE:

20 October 2017

JUDGE:

Morzone QC DCJ

ORDER:

1.   The appeal is dismissed and the orders made by the Magistrates Court on the 28^th of July 2017 are affirmed.

2.   The appellant pay the respondent’s costs of the appeal to be assessed on the standard basis.

CATCHWORDS:

CIVIL PROCEDURE – APPEAL –appeal from magistrates court – preliminary issue – standing of appellant not a party to the original proceeding – costs

Legislation
Land Act 1994, ss 404, 415, 417, 418, 420

Cases

Croney v Mand [1992] 2 QR 342
Kowalski v Public Trustee(2) [2011] QSC 384

COUNSEL: 

C Ryall for the respondent

SOLICITORS:

Self-represented for the Appellant
Vandeleur & Todd Prosecutions for the respondent

1. On 28 July 2017, the Magistrates Court in Innisfail ordered the respondents in proceedings M19 of 2016 to remove the vessel, MV Keiter, from the Innisfail boat harbour.  It was further ordered that the order be stayed for a period of 60 days pending a consideration of the respondent’s application for a permit to moor at the boat harbour together with liberty to apply on notice.  And, further, it was ordered that the respondents pay the appellant’s costs of the application in the amount of $2500.

1. The appellant here, Geoffrey John Ashton, an 81 year old pensioner, seeks to appeal that decision notwithstanding he was not a party. 

1. The appellant is self-represented in this proceeding and I have had the advantage of reading competing outlines of argument in respect of the application for stay. He is particularly concerned about the council’s rights to administer port land vis-à-vis others and rejects any assertion that he is a trespasser in respect of that port land.  The appellant has filed several submissions developing his case, having regard to the merits of the hearing and, particularly, the substance of his concerns. 

1. The respondent council has also filed an outline of argument.  It also deals with the merits of the appeal but raises, as a preliminary issue, whether the appellant has standing to bring the appeal.  That submission was the subject of a Reply in Answer Outline of Argument of the Respondent, being further submission filed by the appellant here.  In that, the appellant relies upon his perception that the respondent has conceded that the proceeding notice wrongly accused the appellant.

1. Further, since the proceeding below, the respondent council has approved and subsequently issued a permit for the respondents in the original hearing to moor the vessel in the Innisfail harbour, but at a place different to that where it was moored and relevant to the proceeding below.

Background

1. The original proceeding in the Magistrates Court, No M19 of 2016, was commenced on 19 October 2016…