Bone v Mothershaw

[2001] QDC 255

DISTRICT COURT OF QUEENSLAND

CITATION:

Bone v Mothershaw [2001] QDC 255

PARTIES:

ROBERT NEVILLE BONE  Appellant
v
JOHN WILLIAM MOTHERSHAW  Respondent

FILE NO/S:

D 130 of 2001

DIVISION:

Appellate Division

PROCEEDING:

Appeal under s. 222 of the Justice Act

ORIGINATING COURT:

Magistrates Court

DELIVERED ON:

26 September 2001

DELIVERED AT:

Brisbane

HEARING DATE:

17 September 2001

JUDGE:

Judge Robin QC

ORDER:

Appeal dismissed with costs

CATCHWORDS:

Appeal to District Court from Magistrate’s Court – Justices Act 1886 s.222 – Appellant convicted of continuing offence of failure to comply with a notice to submit a rehabilitation proposal – notice issued in consequence of destruction of vegetation protected by an order under Chapter 22 of the Ordinances (local laws) of the City of Brisbane – Arguments that Ch 22 was invalid as (1) not authorized by s.36 of the City of Brisbane Act 1924, (2) repugnant to or inconsistent with State law (in particular the Land Titles Act 1994), (3) expropriatory, or (4) exceeding “accepted notions of local government” rejected – original vegetation protection order referring to ‘all vegetation’ held to come within reference to ‘vegetation of any nature’ –vegetation protection order and subsequent “rehabilitation notice” not invalid for uncertainty – appeal dismissed.

City of Brisbane Act 1924 –1989 s.36
Justices Act 1886 s.222
Local Government Act 1936-1987 s.30

Local Government Act 1993 s.20, s.25, s.31

Land Titles Act 1994

Sellars v Coleman (2000) QCA 465
Re Gold Coast City Council By-Laws (1994) 1 Qd R 130
Re Gold Coast City (Touting and Distribution of Printed Matter) Law 1994 BC 950 5693
Local Government Act 1936
Kwik Snax Mobile Industrial & General Caterers Pty Ltd v Logan City Council (1994) 1 Qd R 291
Paradise Projects Pty Ltd v Gold Coast City Council (1994) 1 Qd R 314
Vynotas Pty Ltd v Brisbane City Council (2001) QPELR 14
Union Steamship Co of Australia Pty Ltd v King (1988) 166 CLR 1
Boral Resources Pty Ltd v Johnstone Shire Council (1990) 2 Qd R 18
Wenn v Attorney-General (Victoria) (1948) 77 CLR 84
Commonwealth v New South Wales (1923) 33 CLR 1
Fejo v Northern Territory of Australia (1998) 195 CLR 96
Re Northbuild Construction Pty Ltd (2000) 2 Qd R 600

COUNSEL:

Mr J Greenwood QC and Mr R Maguire for the appellant
Mr M Hinson SC for the respondent

SOLICITORS:

Gueuf Scassola & Associates for the appellant
Brisbane City Legal Practice for the respondent

1. This is an appeal by Mr Bone under s.222 of the Justices Act 1886 against his conviction by a magistrate on 6 December 2000 of an offence under ss.23 and 35 of “Chapter 22 – Vegetation Protection” which was added at the end of Ordinance 1 to Chapter 1 of the ordinances published in the Gazette on 1 January 1972: see Queensland Government Gazette No. 86 page 1576 (30 November 1991) - to become part of the Local Laws of the Brisbane City Council. Specifically, the offence was one of failure to comply with the requirements…