Ashton v Cassowary Coast Regional

DISTRICT COURT OF QUEENSLAND

CITATION:

Ashton v Cassowary Coast Regional [2017] QDC 203

PARTIES:

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

FILE NO/S:

APPEAL NO: 216 of 2016

DIVISION:

Appellate

PROCEEDING:

Appeal

ORIGINATING COURT:

Magistrates Court, Cairns

DELIVERED ON:

3 February 2017

DELIVERED AT EX TEMPORE:

Cairns

HEARING DATE:

3 February 2017

JUDGE:

Morzone QC DCJ

ORDER:

1.   The judgment and orders of the Innisfail Magistrates Court made on 22 November 2016 in proceeding 19 of 2016 will be stayed until the determination of the appeal number 7 of 2016

2.   Costs of the proceeding are reserved and will be determined in conjunction with the appeal in due course

CATCHWORDS:

CIVIL PROCEDURE – APPEAL –application for stay the decision and the enforcement of the orders for forced removal of a vessel from a mooring – consideration of merits of appeal – where substance of the appeal would be rendered a futility - dispute of identify of first respondent - defective service and absence of proper party at the hearing - proceeding determined in the absence of the first respondent – Magistrates’ Court mislead by omission of critical information as to service – good prospects of appeal – no disadvantage or prejudice to the respondent if stay granted - application for stay allowed – costs.

Legislation
Land Act 1994

Cases

Croney v Nand [1992] 2 Qd R 342
Kowalski v Public Trustee(2) [2011] QSC 384

SOLICITORS:

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

1. The applicant, Geoffrey John Ashton, who is also an appellant in relation to Magistrates Court proceedings of the 8 November 2016, seeks a stay of the decision and the enforcement of the orders resulting from that proceeding, pending the determination of his appeal. 

1. The applicant 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. 

1. In addition, the applicant has filed a document titled “Motion to Strike-Out”, purporting to be an application to strike-out all of the proceeding below in the Innisfail Magistrates Court pursuant to rule 171 of the Uniform Civil Procedure Rules.  Notwithstanding the unusual nature of the document, it seems to go to the same issues that relate to the substance of the appeal, and I will receive that as a submission, as opposed to some form of invalid application. 

Background

1. The original proceedings in the Magistrates Court numbered M19 of 2016 were commenced by a preceding notice filed pursuant to s 415 of the Land Act 1994. That notice sought various orders to the effect of requiring the respondents to remove the vessel “MV Kieter” from the mooring known as number 6 at Innisfail Boat Harbour, coupled with orders restraining those respondents from mooring or otherwise occupying that place. 

1. The proceeding was, apparently, served upon individuals who answered to the names identified in the heading of the document, namely, ”Geoffrey John Ashton” as the first respondent, and “Cynthia Ashton”…