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Bone v Mothershaw

Bone v Mothershaw

Case [2002] QCA 120 12 April 2002

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SUPREME COURT OF QUEENSLAND

CITATION: Bone v Mothershaw [2002] QCA 120

PARTIES: ROBERT NEVILLE BONE
(appellant)
v
JOHN WILLIAM MOTHERSHAW
(respondent)

FILE NO/S: CA No 294 of 2001
DC No 130 of 2001

DIVISION: Court of Appeal

PROCEEDING: Application for leave s118 DCA (Criminal)

ORIGINATING COURT:
District Court Brisbane

DELIVERED ON: 12 April 2002

DELIVERED AT: Brisbane

HEARING DATE: 26 February 2002

JUDGES: McPherson and Williams JJA and Byrne J
Separate reasons for judgment of each member of the Court, each concurring as to the orders made

ORDER: Application for leave to appeal dismissed with costs.

CATCHWORDS:
STATUTES – BY-LAWS AND REGULATIONS – VALIDITY – REPUGNANCY – IN GENERAL – REPUGNANCY TO AUTHORIZING STATUTE – whether a law prohibiting the removal of and forcing the replacement of trees on private property is valid - where s 36 (3) of the City of Brisbane Act 1924 was amended to include the words “the environment”.

STATUTES – BY-LAWS AND REGULATIONS – VALIDITY – UNREASONABLENESS – PARTICULAR CASES - where the by-law could be read to be beyond the power of the organisation - whether the legislation’s validity can be tested in that way.

STATUTES – BY-LAWS AND REGULATIONS – VALIDITY – VAGUENESS AND UNCERTAINTINY – IN GENERAL – where the word “any” was used – whether the order made under the by-law exceeded the limits of the by-law – where the subject of an order is required to take action to the satisfaction of the local authority – where the provision suffers from fatal uncertainty.

STATUTES – BY-LAWS AND REGULATIONS – VALIDITY – REPUGNANCY – IN GENERAL – REPUGNANCY TO GENERAL LAW – where a by-law is inconsistent with general or common law – whether the result is an invalid by-law.

Acquisition of Land Act 1967
City of Brisbane Act 1924
City of Brisbane Ordinances, Chapter 22
Integrated Planning Act 1997
Land Act 1962
Local Government Act 1993
Vegetation Management Act 1999

Attorney-General v De Keyser’s Royal Hotel [1920] AC 508, considered
C J Burland Pty Ltd v Metropolitan Meat Industry Board (1968) 120 CLR 400, distinguished
Commonwealth v New South Wales (1923) 33 CLR 1, considered
Commonwealth v Tasmania (Dam Case) (1983) 158 CLR 1, considered
Cullis v Ahern (1914) 18 CLR 540, applied
Durham Holdings Pty Ltd v State of New South Wales (2001) 75 ALJR 501, applied
Fejo v Northern Territory of Australia (1998) 195 CLR 96
Fraser v Hemming [1911] St R Qd 139, applied
Ibralebbe v The Queen [1964] AC 900, considered
Jerusalem Jaffa District Governor v Suleiman Murra [1926] AC 321, applied
King Gee Clothing Co Pty Ltd v The Commonwealth (1945) 71 CLR 184, considered
Kwiksnax Mobile Industrial & General Caterers Pty Ltd v Logan City Council [1994] 1 Qd R 291, distinguished
London County Council v James [1912] 2 KB 504 considered
Lynch & Standon v Brisbane City Council (1961) 104 CLR 353, considered
Mitchell v Lemm (1908) 3 HKLR 75, considered
R…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Bone v Mothershaw

Details

AGLC: Bone v Mothershaw [2002] QCA 120
Case: [2002] QCA 120
Decision Date: 12 April 2002

CaseChat Overview and Summary

In the case of Bone v Mothershaw, the dispute arose from the validity of a by-law enacted by the Brisbane City Council that prohibited the removal and forced the replacement of trees on private property. The case was heard in the Queensland Court of Appeal. The primary issue before the court was whether the by-law, which was enacted under the authority of section 36(3) of the City of Brisbane Act 1924, was valid given its potential inconsistency with both the authorizing statute and the common law.

The court examined whether the by-law was repugnant to the City of Brisbane Act 1924, particularly in light of the amendment that introduced the term "the environment." The court also considered whether the by-law was unreasonable and whether it suffered from vagueness and uncertainty. The primary focus was on the interpretation of the word "any" in the by-law and whether the requirement for action to be taken to the satisfaction of the local authority created an element of fatal uncertainty.

The Queensland Court of Appeal concluded that the by-law was not repugnant to the authorizing statute and did not contravene common law principles. The court found that the by-law was not unreasonably beyond the power of the Brisbane City Council. Additionally, the court held that the use of the term "any" and the requirement for action to be taken to the satisfaction of the local authority did not render the by-law fatally uncertain. Therefore, the by-law was upheld as valid.

The application for leave to appeal was dismissed with costs. The court found that the by-law was within the powers granted by the City of Brisbane Act 1924 and did not conflict with common law, nor was it rendered invalid by vagueness or uncertainty.

Orders

Orders of the court

Application for leave to appeal dismissed with costs.

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.

Actions

Citations

Bone v Mothershaw [2002] QCA 120

Most Recent Citation

Spencer v Commonwealth [2015] FCA 754

Cases Citing This Decision

Charlie v State of Queensland [2025] FCAFC 55
Citation 1 (Para 15)

…Crown Lands Act 1884 (Qld) and s 6, Land Act 1910. As McPherson JA (with whose reasons Williams JA and Byrne J agreed) explained in Bone v Mothershaw [2002] QCA 120; [2003] 2 Qd R 600 at [18] with respect to s 6 of the Land Act 1962: The section is one of several successive re-enactments of earlier statutory prov…
Wang v State of Queensland [2024] QSC 156
Citation 2

…erritory Revenue (2009) 239 CLR 27; [2009] HCA 41, cited Bone v Mothershaw [2003] 2 Qd R 600; [2002] QCA 120, cited Commissioner of Taxation (Cth) v Official Liquidator of EO Farley Ltd (in liq) (1940) 63 CLR 278; [1940] HCA 13, cited CPT Custodian Pty Ltd v Commissioner of State Revenue of the State of Victoria…
Handley v Commissioner of Police [2024] QDC 116
Citation 3 (Para 8)

…7] District Court of Queensland, Kingham DCJ, 30 November 2012 at [18], citing Widgee Shire Council v Bonney [1907] HCA 11; Bone v Mothershaw [2002] QCA 120; Barton v Beattie & Ors [2010] QCA 100. An application for an extension of time for leave to appeal to the Court of Appeal was subsequently dismissed: R v St…
Schafer v Bacon [2023] QCA 55
Citation 4 (Para 7)

…an estate in fee simple somehow precludes the exercise of legislative power in respect of the land was comprehensively rejected in Bone v Mothershaw [2002] QCA 120 and Burns v State of Queensland & Anor [2006] QCA 235.[13] [13]See also Glasgow v Hall [2007] QCA 19.…
McDonald v Holeszko [2019] QCA 285
Citation 5 (Para 23)

…pondent filed 13 August 2019, paragraph 22. [27]Submissions on behalf of the Respondent filed 13 August 2019, paragraph 27 citing Bone v Mothershaw [2002] QCA 120; [2003] 2 Qd R 600, 609-10 [17]-[20] (McPherson JA, Williams JA and Byrne J agreeing); Burns v State of Queensland & Croton [2006] QCA 235, [12]-[20] (…
McDonald v Holeszko [2018] QDC 204
Citation 6 (Para 1)

…e planning schemes which restricted what the owners of estates in fee simply (sic) might lawfully do with that land. … [55][2003] 2 Qd R 600; [2002] QCA 120. [56] Burns v Queensland [2006] QCA 235 per Jerrard JA at [18]. [I]f this challenge is correct, then there would seem no limit at all that a State Parliament…
Spencer v Commonwealth [2015] FCA 754
Citation 7

…eneral (1969) 17 LGRA 409 Beaudesert Shire Council v Smith [1966] HCA 49; 120 CLR 145 Bone v Mothershaw [2002] QCA 120; [2003] 2 Qd R 600 British American Tobacco v Commonwealth [2003] HCA 47; 217 CLR 30 Clunies-Ross v Commonwealth [1984] HCA 65; 155 CLR 193 Collins v Livingstone Shire Council [1972] HCA 35; 127…
Scriven v Sargent [2014] QCA 133
Citation 8

…he Commonwealth (1993) 176 CLR 480, [1993] HCA 10, cited Bone v Mothershaw [2003] 2 Qd R 600; [2002] QCA 120, considered Durham Holdings Pty Ltd v New South Wales (2001) 205 CLR 399; [2001] HCA 7, cited ICM Agriculture Pty Ltd v The Commonwealth (2009) 240 CLR 140; [2009] HCA 51, considered JT International SA v…
QPS v Earthey [2011] QMC 56
Citation 9 (Para 1)

…ercise of the power, or is calculated to attain its particular end or object: Riel v The Queen (1885) 10 App Cas 673, 678; Bone v. Mothershaw [2002] QCA 120 per McPherson JA at page 4.…
Lade and Company Pty Ltd v Finlay; Lade v Franks [2010] QSC 382
Citation 10

…an estate in fee simple has been granted. So much has been established in a number of decisions that Ms Hartigan has taken me to: Bone v Mothershaw [2002] QCA 120; Burns v State of Queensland [2006] QCA 235; Wilson v Raddatz [2006] QCA 392; Glasgow v Hall [2007] QCA 19. Special leave to appeal to the High Court w…
Canaway v Chief Executive, Department of Natural Resources and Water [2009] QLC 120
Citation 11 (Para 3)

…orities,[4] I am in no doubt that the VMA is a valid Act of the Queensland Parliament and applicable to the appellant’s land. [4] Bone v Mothershaw [2002] QCA 120; Burns v State of Queensland [2004] QSC 434; Wilson v Raddatz [2005] QDC, Brabazon DCJ, Maryborough, 24 August 2005; Burns v State of Queensland [2004]…
Millmerran Shire Council v Smith & Anor [2009] QCA 103
Citation 12

…ated Planning Act 1997 (Qld), s 4.1.56, s 4.3.20, s 4.3.22, s 4.3.25, s 4.4.1, s 4.4.2 Bone v Mothershaw [2003] 2 Qd R 600; [2002] QCA 120, applied Burns v State of Queensland & Croton [2006] QCA 235, applied Cameron v Peter D Beattie (in his capacity as Premier) & Ors [2001] QCA 392, applied Millmerran Shire Cou…
Watts v Ellis [2007] QCA 234
Citation 13

…District Court of Queensland Act 1967 (Qld), s 118(3) Water Act 2000 (Qld), s 269, s 814(1) Bone v Mothershaw [2003] 2 Qd R 600; [2002] QCA 120; Appeal No 294 of 2001, 12 April 2002, followed Burns v The State of Queensland & Croton [2006] QCA 235; Appeal No 526 of 2006, 23 June 2006, cited Dore & Others v Penny…
Spencer v Australian Capital Territory [2007] NSWSC 303
Citation 14

…nd Traffic Authority of New South Wales; Batistatos v Newcastle City Council [2006] HCA 27 Bone v Mothershaw [2003] 2 Qd R 600; [2002] QCA 120 Brimson v Rocla Concrete Pipes Ltd [1982] 2 NSWLR 937 Burns v Queensland [2006] QCA 235 Commonwealth v Tasmania (1983) 158 CLR 1 CSR Ltd v Valuer-General (1977) 17 SASR 44…
Glasgow v Hall [2007] QCA 19
Citation 15

…s 4.3.18(3) Land Act 1994 (Qld) Property Law Act 1974 (Qld) Vegetation Management Act 1999 (Qld), s 68(6) Bone v Mothershaw [2002] QCA 120; [2003] 2 Qd R 600, followed Burns v State of Queensland & Anor [2006] QCA 235; CA No 526 of 2006, 23 June 2006, followed Wilson v Raddatz [2006] QCA 392; CA No 276 of 2006, 1…
Wilson v Raddatz [2006] QCA 392
Citation 16

…District Court of Queensland Act 1967 (Qld) , s 118 Integrated Planning Act 1997 (Qld), s 4.3.1, s 4.3.18 Bone v Mothershaw [2002] QCA 120; CA No 294 of 2001, 12 April 2002, applied Burns v State of Qld & Anor [2006] QCA 235; Appeal No 526 of 2006, 23 June 2006, applied…
Burns v State of Queensland and Croton [2006] QCA 235
Citation 17 (Para 1)

…v Mothershaw [2003] 2 Qd R 600 [14] , as Mr Walter recognised in various of the written submissions he filed in this Court on this application. [14][2002] QCA 120; Appeal No 294 of 2001, 12 April 2002.…
Watts v Ellis [2006] QDC 56
Citation 18

…vegetation in a watercourse Legislation referred to: Water Act 2000, s. 266, 748, 814 Land Act 1962, s.125 Cases referred to: Bone v. Mothershaw [2002] QCA 120 (FAA) Burns v. State of Queensland , Planning and Environment Court Cairns, 2 August2004, Judge White (CON) Burns v. State of Queensland [2004] QSC 434 (…
Glasgow v Hall [2006] QDC 478
Citation 19 (Para 1)

…udges are against the argument.[4] I will endeavour to explain in my own words where I think Mr Walter has fallen into error. [2] Bone v Mothershaw [2002] QCA 120 [3] Burns v State of Queensland [2004] QSC 434 [4]Brabazon DCJ ( Wilson v Raddatz [2005] QDC, Maryborough, 24 August 2005), White DCJ ( Burns v State o…
Glasgow v Hall [2006] QDC 42
Citation 20 (Para 1)

…udges are against the argument.[4] I will endeavour to explain in my own words where I think Mr Walter has fallen into error. [2] Bone v Mothershaw [2002] QCA 120 [3] Burns v State of Queensland [2004] QSC 434 [4]Brabazon DCJ ( Wilson v Raddatz [2005] QDC, Maryborough, 24 August 2005), White DCJ ( Burns v State o…
Phillips v Spencer [2005] QCA 317
Citation 21

…, s 154, s 162 Bell v Bay-Jespersen [2004] QCA 68; [2004] 2 Qd R 235, cited Bone v Mothershaw [2002] QCA 120; [2003] 2 Qd R 600, cited Chugg v Pacific Dunlop Ltd (1990) 170 CLR 249, cited Dowling v Bowie (1952) 86 CLR 136, cited Long v Spivey [2004] QCA 118; CA No 400 of 2003, 23 April 2004, affirmed Meissner v R…
Douglas Shire Council v Queensland Ombudsman [2005] QSC 207
Citation 22 (Para 1)

…legislation separately specified individual functions of local government and the extent of the limiting effects could be a cause of contention; see Bone v Mothershaw (2002) 121 LGERA 75 and the Minister’s second reading speech; Hansard, 3 December 2002. That said in my view s 36(2)(c) is not ambiguous it its application…
Dore v State of Queensland [2004] QDC 364
Citation 23 (Para 1)

…g the right to commit unlimited waste”. But the right to use such land has in modern times, been severely restricted.[2] [2]See Bone v Mothershaw [2002] QCA 120…
Seymour CBD P/L v Noosa Shire Council [2002] QPEC 21
Citation 24 (Para 1)

…e appellant would have no basis for making its appeal to this court. For a recent confirmation of the extent of a local government’s powers see Bone v Mothershaw (2002) QCA 120.)…

See all citing cases →

Cases Cited

Durham Holdings Pty Ltd v New South Wales [2001] HCA 7
Citation 1 (Para 1)

…The same opinion is explicit in the reasoning of the High Court in Durham Holdings Pty Ltd v State of New South Wales (2001) 75 ALJR 501, holding that a State Parliament has the legislative power to deprive a person of property without just compensation. To the objection that chapter 22 is not State legislation there…
Durham Holdings Pty Ltd v State of New South Wales [2000] HCATrans 70
Citation 2 (Para 1)

…The same opinion is explicit in the reasoning of the High Court in Durham Holdings Pty Ltd v State of New South Wales (2001) 75 ALJR 501, holding that a State Parliament has the legislative power to deprive a person of property without just compensation. To the objection that chapter 22 is not State legislation there are at least two answers. The first is…
Union Steamship Co of Australia Pty Ltd v King [1988] HCA 55
Citation 3 (Para 1)

…lative powers appropriate to a sovereign”. Ibralebbe v The Queen [1964] AC 900, 923. Union Steamship Co of Australia Pty Ltd v King (1988) 166 CLR 1, 9-10. They have been held to admit of no inquiry by the courts as to whether, as a matter of fact or law, a particular statute is or is not a prudent exercise of the…
Commonwealth v Tasmania [1983] HCA 21
Citation 4

…) 120 CLR 400, distinguished Commonwealth v New South Wales (1923) 33 CLR 1, considered Commonwealth v Tasmania (Dam Case) (1983) 158 CLR 1, considered Cullis v Ahern (1914) 18 CLR 540, applied Durham Holdings Pty Ltd v State of New South Wales (2001) 75 ALJR 501, applied Fejo v Northern Territory of Australia (1998) 195 CLR 96 Fraser v He…
CJ Burland Pty Ltd v Metropolitan Meat Industry Board [1968] HCA 77
Citation 5

…Hotel [1920] AC 508, considered C J Burland Pty Ltd v Metropolitan Meat Industry Board (1968) 120 CLR 400, distinguished Commonwealth v New South Wales (1923) 33 CLR 1, considered Commonwealth v Tasmania (Dam Case) (1983) 158 CLR 1, considered Cullis v Ahern (1914) 18 CLR 540, applied Durham Holdings Pty Ltd v State…
R v District Court of Queensland Northern District; Ex parte [1968] HCA 48
Citation 6 (Para 1)

…far from being an unusual use of that form. For example, in R v District Court of the Northern District of Queensland , ex p Thompson (1968) 118 CLR 488, 491-492, Barwick CJ construed a statutory expression that recognised conscientious objection to engaging “in any form of military service” as referring to engaging…
Lynch v Brisbane City Council [1961] HCA 19
Citation 7 (Para 1)

…with a unit of local government, even if a large one; and the decision of the High Court in Lynch & Standon v Brisbane City Council (1961) 104 CLR 353, 364 (Dixon J), is authority for saying that the provisions of s 36 of the Act give:…
Randwick Corporation v Rutledge [1959] HCA 63
Citation 8 (Para 1)

…uthority of the colonial legislature. The subject is discussed in the reasons for judgment of Windeyer J in Randwick Municipal Council v Rutledge (1959) 102 CLR 54, 71, of Brennan J in the Tasmanian Dam Case (1983) 158 CLR 1, 209-212, and in many historical accounts of the evolution of representative and responsible…
Barringer v Nyngan Corporation [1953] HCA 4
Citation 9 (Para 1)

…ings, their removal, restoration and repair. See, for example, London County Council v James [1912] 2 KB 504, 505; Barringer v Nyngan Corporation (1953) 86 CLR 495, 502; Ex p Consolidated Press Ltd (1960) 18 WN (NSW) 261, 265. No authority was cited to show that provisions in that form result in fatal uncertainty: s…
King Gee Clothing Co Pty Ltd v The Commonwealth [1945] HCA 23
Citation 10 (Para 1)

…Again to quote from Sir Owen Dixon ( King Gee Clothing Co Pty Ltd v The Commonwealth (1945) 71 CLR 184 at 194):…
Williams v Melbourne Corporation [1933] HCA 56
Citation 11 (Para 1)

…However, as he went on to point out, since Williams v Melbourne Corporation (1933) 49 CLR 142 unreasonableness of a by-law has not been regarded in Australia as a separate and distinct ground of invalidity. As he there pointed out at 155 in such a case the by-law will only “be invalid . . . because it is not a real…
Commonwealth v New South Wales [1923] HCA 34
Citation 12

…an Meat Industry Board (1968) 120 CLR 400, distinguished Commonwealth v New South Wales (1923) 33 CLR 1, considered Commonwealth v Tasmania (Dam Case) (1983) 158 CLR 1, considered Cullis v Ahern (1914) 18 CLR 540, applied Durham Holdings Pty Ltd v State of New South Wales (2001) 75 ALJR 501, applied Fejo v Norther…
Cullis v Ahern [1914] HCA 59
Citation 13 (Para 1)

…orrespond to the way in which s 109 of the Constitution has been interpreted and also to the position as established at common law. In Cullis v Ahern (1914) 18 CLR 540, the High Court held that a Melbourne city by-law requiring lighting of motor cycles after dark was not inconsistent with a Victorian statute that im…
Widgee Shire Council v Bonney [1907] HCA 11
Citation 14 (Para 1)

…stablished view that local laws or by‑laws are capable of altering the received English law, as was recognised in Widgee Shire Council v Bonney (1907) 4 CLR 977, 982, 986-987, in the passages referred to above. Otherwise, as it was said in that case, the power to make municipal by-laws would be nugatory. The provis…
Fejo v Northern Territory [1998] HCA 58
Citation 15

…e of New South Wales (2001) 75 ALJR 501, applied Fejo v Northern Territory of Australia (1998) 195 CLR 96 Fraser v Hemming [1911] St R Qd 139, applied Ibralebbe v The Queen [1964] AC 900, considered Jerusalem Jaffa District Governor v Suleiman Murra [1926] AC 321, applied King Gee Clothing Co Pty Ltd v The Commonwea…
[1920] AC 508 [1920] AC 508
Citation 16 (Para 1)

…al prerogative is, it is well settled, displaced by legislation that covers the same subject matter: Attorney-General v De Keyser’s Royal Hotel [1920] AC 508, 560. The primary function of s 6(1) and other such legislation is facultative. Its object and effect are to confer on the Crown legislative, as distinct f…
Riel v The Queen (1885) 10 App Cas 675
Citation 17

…k Municipal Council v Rutledge (1959) 102 CLR 54, 71 considered Riel v R; Ex parte Riel (1885) 10 App Cas 675, applied Union Steamship Co of Australia Pty Ltd v King (1988) 166 CLR 1, considered Widgee Shire Council v Bonney (1907) 4 CLR 977, applied Williams v Melbourne Corporation (1933) 49 CLR 142, applied COUNSEL: J…
[1964] AC 900 [1964] AC 900
Citation 18 (Para 1)

…oing back to early colonial times, used to confer “the widest legislative powers appropriate to a sovereign”. Ibralebbe v The Queen [1964] AC 900, 923. Union Steamship Co of Australia Pty Ltd v King (1988) 166 CLR 1, 9-10. They have been held to admit of no inquiry by the courts as to whether, as a matter of fac…
[1926] AC 321 [1926] AC 321
Citation 19 (Para 1)

…or nature authorises or permits such an outcome. Such was the conclusion of the Privy Council in Jerusalem Jaffa District Governor v Suleiman Murra [1926] AC 321, where, despite an express provision in the terms of the Mandate for Palestine safeguarding the civil rights of all inhabitants, an ordinance promulgat…
Riel v The Queen (1885) 10 App Cas 673
Citation 20 (Para 1)

…lar statute is or is not a prudent exercise of the power, or is calculated to attain its particular end or object: Riel v The Queen (1885) 10 App Cas 673, 678. We are, however, concerned here not with a sovereign law-making body, but with a unit of local government, even if a large one; and the decision of the High Cour…
[1912] 2 KB 504 [1912] 2 KB 504
Citation 21 (Para 1)

…g with matters such as dangerous or dilapidated buildings, their removal, restoration and repair. See, for example, London County Council v James [1912] 2 KB 504, 505; Barringer v Nyngan Corporation (1953) 86 CLR 495, 502; Ex p Consolidated Press Ltd (1960) 18 WN (NSW) 261, 265. No authority was cited to show that…

Legislation Cited

Acquisition of Land Act 1967 (Qld)
1 mention (from Para 1)
Australian Courts Act 1828 (Imp)
1 mention (from Para 1)
Barley Marketing Board (NSW) v Norman
1 mention (from Para 1)
City of Brisbane Act 1924 (Qld)
1 mention (from Para 1)
Foreign Jurisdiction Act 1890 c.37
1 mention (from Para 1)
Integrated Planning Act 1997 (Qld)
1 mention (from Para 1)
Land Act 1962 (Qld)
1 mention (from Para 1)
Land Act 1994 (Qld)
1 mention (from Para 1)
Local Government Act 1993 (TAS)
1 mention (from Para 1)
Vegetation Management Act 1999 (Qld)
1 mention (from Para 1)

CITATION:	Bone v Mothershaw [2002] QCA 120
PARTIES:	ROBERT NEVILLE BONE (appellant) v JOHN WILLIAM MOTHERSHAW (respondent)
FILE NO/S:	CA No 294 of 2001 DC No 130 of 2001
DIVISION:	Court of Appeal
PROCEEDING:	Application for leave s118 DCA (Criminal)
ORIGINATING COURT:	District Court Brisbane
DELIVERED ON:	12 April 2002
DELIVERED AT:	Brisbane
HEARING DATE:	26 February 2002
JUDGES:	McPherson and Williams JJA and Byrne J Separate reasons for judgment of each member of the Court, each concurring as to the orders made
ORDER:	Application for leave to appeal dismissed with costs.
CATCHWORDS:	STATUTES – BY-LAWS AND REGULATIONS – VALIDITY – REPUGNANCY – IN GENERAL – REPUGNANCY TO AUTHORIZING STATUTE – whether a law prohibiting the removal of and forcing the replacement of trees on private property is valid - where s 36 (3) of the City of Brisbane Act 1924 was amended to include the words “the environment”. STATUTES – BY-LAWS AND REGULATIONS – VALIDITY – UNREASONABLENESS – PARTICULAR CASES - where the by-law could be read to be beyond the power of the organisation - whether the legislation’s validity can be tested in that way. STATUTES – BY-LAWS AND REGULATIONS – VALIDITY – VAGUENESS AND UNCERTAINTINY – IN GENERAL – where the word “any” was used – whether the order made under the by-law exceeded the limits of the by-law – where the subject of an order is required to take action to the satisfaction of the local authority – where the provision suffers from fatal uncertainty. STATUTES – BY-LAWS AND REGULATIONS – VALIDITY – REPUGNANCY – IN GENERAL – REPUGNANCY TO GENERAL LAW – where a by-law is inconsistent with general or common law – whether the result is an invalid by-law. Acquisition of Land Act 1967 City of Brisbane Act 1924 City of Brisbane Ordinances, Chapter 22 Integrated Planning Act 1997 Land Act 1962 Local Government Act 1993 Vegetation Management Act 1999 Attorney-General v De Keyser’s Royal Hotel [1920] AC 508, considered C J Burland Pty Ltd v Metropolitan Meat Industry Board (1968) 120 CLR 400, distinguished Commonwealth v New South Wales (1923) 33 CLR 1, considered Commonwealth v Tasmania (Dam Case) (1983) 158 CLR 1, considered Cullis v Ahern (1914) 18 CLR 540, applied Durham Holdings Pty Ltd v State of New South Wales (2001) 75 ALJR 501, applied Fejo v Northern Territory of Australia (1998) 195 CLR 96 Fraser v Hemming [1911] St R Qd 139, applied Ibralebbe v The Queen [1964] AC 900, considered Jerusalem Jaffa District Governor v Suleiman Murra [1926] AC 321, applied King Gee Clothing Co Pty Ltd v The Commonwealth (1945) 71 CLR 184, considered Kwiksnax Mobile Industrial & General Caterers Pty Ltd v Logan City Council [1994] 1 Qd R 291, distinguished London County Council v James [1912] 2 KB 504 considered Lynch & Standon v Brisbane City Council (1961) 104 CLR 353, considered Mitchell v Lemm (1908) 3 HKLR 75, considered R…