Dore v Penny - [2006] QSC 125

SUPREME COURT OF QUEENSLAND

CITATION:

Dore & Ors v Penny [2006] QSC 125

PARTIES:

EDMUND PAUL DORE, ROBERT JOHN DORE, GARY JAMES DORE
(Appellant)
v
STEPHEN FRANCIS PENNY
(Respondent)

FILE NO/S:

564 of 2005

DIVISION:

PROCEEDING:

Application

ORIGINATING COURT:

DELIVERED ON:

5 May 2006

DELIVERED AT:

Cairns

HEARING DATE:

3 February 2006

JUDGE:

Jones J

ORDER:

1. The application for prerogative order is dismissed.
2. Adjourn consideration of the question of costs allowing parties to make written submissions within 14 days from the date hereof.

CATCHWORDS:

ADMINISTRATIVE LAW – JUDICIAL REVIEW ACT – PREROGATIVE ORDERS – POWER TO DISMISS – where application for a prerogative order pursuant to s43 of the Judicial Review Act – where application has no reasonable basis – whether the Court should dismiss the application

REAL PROPERTY – GENERAL PRINCIPLES – INCIDENTS OF ESTATES AND INTERESTS IN LAND – ESTATES IN FEE SIMPLE – GENERAL ATTRIBUTES OF – where land transferred to applicants by the State as an estate in fee simple – whether freehold land for the purposes of the Integrated Planning Act and Land Act

COUNSEL:

Applicants in person
Mr John Logan SC

SOLICITORS:

Crown Solicitor for the respondent

The applicants are the registered proprietors as tenants in common of land described as Lot 47 on RP 892091 Parish of Tyson, County of Cardwell.

On 2 April 2004 in the Magistrates Court at Tully each applicant pleaded guilty to an offence under the Integrated Planning Act 1997 (“IPA”) in relation to the clearing of trees on their property without a development permit and a further offence under the Land Act 1994 of clearing trees on a road without a tree clearing permit. They were each fined $15,000 in respect of the first offence and $3,000 in respect of the second. They were represented by experienced counsel at this hearing.

By an amended Application filed on 23 January 2006 the applicants apply for a prerogative order for review pursuant to s 43 of the Judicial Review Act 1994 (“JRA”) to quash the convictions. The grounds on which the application is made are:-

1. That the decision was not authorised by the enactment under which it was purported to be made;

2. That the decision involved an error of law; and

3. The decision was otherwise contrary to law.

The respondents applied on 25 January 2006 pursuant to s 48 of JRA for the dismissal of the application on the grounds:-

(a) It would be inappropriate –

(i) For proceedings in relation to the application or claim to be continued; or

(ii) To grant the application or claim.

(b) No reasonable basis for the application is disclosed.

(c) The application is frivolous and vexatious.

(d) The application or claim is an abuse of the process of the court.

The respondent’s argument essentially focussed on the lack of basis for the primary application which is a sequel to earlier appeals taken respectively to the District Court pursuant to s 222 of the Justices Act 1886…

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 Dore v Penny

Details

AGLC: Dore v Penny [2006] QSC 125
Case: [2006] QSC 125
Decision Date: 5 May 2006

CaseChat Overview and Summary

Dore and Penny were the applicants in a case before the Supreme Court of Queensland, which raised questions about the validity of a land transfer and the power of the court to dismiss an application for a prerogative order under the Judicial Review Act. The dispute involved a parcel of land that had been transferred to the applicants by the State, and the applicants sought to have the transfer declared invalid and to have the land reclassified as freehold for the purposes of certain planning and land legislation.

The central legal issues that the court had to address were whether the application for a prerogative order had any reasonable basis and, if not, whether the court should dismiss the application under section 43 of the Judicial Review Act. Additionally, the court had to determine if the land in question was freehold land for the purposes of the Integrated Planning Act and the Land Act.

In dismissing the application, the court held that the application lacked a reasonable basis and did not meet the criteria for a prerogative order. The court found that the applicants had not provided sufficient evidence to support their claims, and the application was therefore without merit. Furthermore, the court determined that the land in question was not freehold for the purposes of the Integrated Planning Act and the Land Act. The court's decision was based on the applicants' failure to provide adequate grounds for the relief sought and the lack of any reasonable prospects of success.

The court also ordered that the consideration of the question of costs be adjourned to allow both parties to make written submissions within 14 days from the date of the decision. This gave the parties an opportunity to present their arguments on the issue of costs before the court made a final determination.

Orders

Orders of the court

1. The application for prerogative order is dismissed.

2. Adjourn consideration of the question of costs allowing parties to make written submissions within 14 days from the date hereof.

Background

Background to the litigation

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Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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CITATION:	Dore & Ors v Penny [2006] QSC 125
PARTIES:	EDMUND PAUL DORE, ROBERT JOHN DORE, GARY JAMES DORE (Appellant) v STEPHEN FRANCIS PENNY (Respondent)
FILE NO/S:	564 of 2005
DIVISION:
PROCEEDING:	Application
ORIGINATING COURT:
DELIVERED ON:	5 May 2006
DELIVERED AT:	Cairns
HEARING DATE:	3 February 2006
JUDGE:	Jones J
ORDER:	1. The application for prerogative order is dismissed. 2. Adjourn consideration of the question of costs allowing parties to make written submissions within 14 days from the date hereof.
CATCHWORDS:	ADMINISTRATIVE LAW – JUDICIAL REVIEW ACT – PREROGATIVE ORDERS – POWER TO DISMISS – where application for a prerogative order pursuant to s43 of the Judicial Review Act – where application has no reasonable basis – whether the Court should dismiss the application REAL PROPERTY – GENERAL PRINCIPLES – INCIDENTS OF ESTATES AND INTERESTS IN LAND – ESTATES IN FEE SIMPLE – GENERAL ATTRIBUTES OF – where land transferred to applicants by the State as an estate in fee simple – whether freehold land for the purposes of the Integrated Planning Act and Land Act
COUNSEL:	Applicants in person Mr John Logan SC
SOLICITORS:	Crown Solicitor for the respondent