Ashton v Cassowary Coast Regional

Link copied
Case Copied 13 min read

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”…

CaseChat AU logo

Keep reading for free

Create a free CaseChat account to read Ashton v Cassowary Coast Regional and more:

  • Read every judgment in full
  • Ask AI and get answers linked to paragraphs
  • See how each paragraph was cited in later cases
  • Download judgments as PDF or Word
Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details
Case
[2017] QDC 203
Decision Date

CaseChat Overview and Summary

In the case of Ashton v Cassowary Coast Regional, the appellant sought a stay of the enforcement of orders made by the Innisfail Magistrates Court for the forced removal of their vessel from a mooring. The primary dispute involved the identity of the first respondent, which was not properly served, and the absence of this party at the hearing. The court was required to determine whether the appeal had good prospects of success and whether the granting of a stay would cause prejudice to the respondents. The appellant argued that the substance of the appeal would be rendered a futility if the stay was not granted due to the defective service and the absence of the first respondent, who was not properly identified. The court considered these issues, finding that the proceeding was determined in the absence of the first respondent, and that the Magistrates’ Court was misled by an omission of critical information regarding the service. The court concluded that there were good prospects of appeal and that no prejudice or disadvantage would be caused to the respondents if the stay was granted. The application for a stay was allowed, and the costs of the proceeding were reserved to be determined in conjunction with the appeal.

Orders

Orders of the court

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

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.