SUPREME COURT OF QUEENSLAND
CITATION:
Millmerran Shire Council v Smith & Anor [2009] QCA 103
PARTIES:
MILLMERRAN SHIRE COUNCIL
(applicant/respondent)
v
CHRISTOPHER LAWRENCE SMITH
(first respondent/applicant)
JOCK McTAVISH
(second respondent/not a party to the application)FILE NO/S:
Appeal No 11390 of 2008
DC No 163 of 2008DIVISION:
Court of Appeal
PROCEEDING:
Miscellaneous Application – Civil
ORIGINATING COURT:
Planning and Environment Court at Brisbane
DELIVERED ON:
24 April 2009
DELIVERED AT:
Brisbane
HEARING DATE:
20 April 2009
JUDGES:
Keane, Fraser and Chesterman JJA
Separate reasons for judgment of each member of the Court, each concurring as to the orders madeORDER:
1. Application for leave to appeal refused
2. Applicant to pay the respondent's costs of and incidental to the application to be assessed on the indemnity basis
CATCHWORDS:
APPEAL AND NEW TRIAL – APPEAL - PRACTICE AND PROCEDURE – QUEENSLAND – WHEN APPEAL LIES – BY LEAVE OF COURT – GENERALLY – where applicant sought leave to appeal against enforcement orders with respect to building permits under Integrated Planning Act 1997 (Qld) – where applicant did not dispute carrying out of building work without necessary building permits – where applicant claimed proceedings for enforcement orders statute barred – where applicant claimed independent state – where applicant claimed deed of grant – where applicant claimed discrimination on religious grounds – whether leave to appeal should be granted
Integrated 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 4.4.2Bone 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 Council v Smith & Anor [2008] QPEC 73, affirmedCOUNSEL:
The applicant appeared on his own behalf
S P Fynes-Clinton for the respondentSOLICITORS:
The applicant appeared on his own behalf
Bernays Lawyers for the respondent
KEANE JA: On 14 October 2008 Judge Wilson QC of the Planning and Environment Court ("the P & E Court") made orders against the applicant which obliged him to apply to the respondent Council for the necessary development permits for structures on his land at Millmerran which had been built without the necessary permits under the Integrated Planning Act 1997 (Qld) ("the IPA"). These orders were made as enforcement orders under s 4.3.22 of the IPA.
On 9 December 2008 his Honour ordered the applicant to pay the respondent Council's costs of the proceedings after 27 May 2008, assessed on the indemnity basis.
The applicant seeks leave to appeal against these orders pursuant to s 4.1.56 of the IPA.
The applicant represents himself in these proceedings, as he represented himself in the P & E Court. It is not easy to understand the arguments he advances. The learned primary judge helpfully summarised the bases on which the applicant had sought to resist the orders which were made against him on 14 October…
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- Case
- [2009] QCA 103
- Decision Date
CaseChat Overview and Summary
The primary legal issue before the Court of Appeal was whether leave to appeal should be granted. The Court needed to consider the merits of the applicant's arguments, including the statute-barred claim, the existence of an independent state, the relevance of the deed of grant, and the alleged religious discrimination. The Court had to evaluate whether these grounds provided sufficient basis for an appeal against the enforcement orders.
In assessing the application, the Court of Appeal held that the applicant's arguments did not present a sufficiently strong case to warrant an appeal. The Court found that the arguments regarding statute-barred proceedings, the independent state, the deed of grant, and religious discrimination were not compelling enough to justify granting leave to appeal. Consequently, the Court dismissed the application for leave to appeal and ordered the applicant to pay the respondents' costs of and incidental to the application, to be assessed on an indemnity basis.
The final orders of the Court of Appeal were that the application for leave to appeal was refused and that the applicant was to pay the respondents' costs of and incidental to the application, assessed on the indemnity basis.
Orders
Orders of the court
1. Application for leave to appeal refused
2. Applicant to pay the respondent's costs of and incidental to the application to be assessed on the indemnity basis
Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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