Pearson v Thuringowa City Council

[2005] QCA 310

SUPREME COURT OF QUEENSLAND

CITATION:

Pearson v Thuringowa City Council [2005] QCA 310

PARTIES:

ANGUS ALEXANDER PEARSON
(applicant/appellant)
v
THURINGOWA CITY COUNCIL
(respondent/respondent)

FILE NO/S:

CA No 94 of 2005
DC No 208 of 2004
MC No 182464 of 2003

DIVISION:

Court of Appeal

PROCEEDING:

Application for Extension of Time s 118 DCA (Criminal)

ORIGINATING COURT:

District Court at Townsville

DELIVERED ON:

26 August 2005

DELIVERED AT:

Brisbane

HEARING DATE:

15 August 2005

JUDGES:

McPherson and Keane JJA and Dutney J
Separate reasons for judgment of each member of the Court, each concurring as to the orders made

ORDER:

1.   Application for extension of time granted

2.   Application for leave to appeal dismissed

3.   Applicant to pay the respondent's costs of each application to be assessed on the standard basis

CATCHWORDS:

STATUTES - BY-LAWS AND REGULATIONS - CONSTRUCTION - PARTICULAR WORDS - where
s 97(1) Standard Building Regulation 1993 (Qld) prohibits the use of certain types of buildings for "residential purposes" without the approval of the relevant local government - where applicant was convicted in the Magistrates Court of using a shed in contravention of this prohibition - where applicant's appeal against his conviction to the District Court was dismissed - where there was unchallenged evidence that the shed used by the applicant was a building of the type subject to the prohibition on use for "residential purposes" and that no approval had been sought from the relevant local government - where the applicant admitted to regularly using the shed for food preparation, washing and storage - where the applicant also admitted to receiving mail and telephone calls at the shed - where the applicant did not sleep in the shed but in a nearby camper van - whether the Magistrate at first instance had been correct to find that the applicant had used the shed for "residential purposes"

A New Tax System (Goods and Services Tax) Act 1999 (Cth), s 195-1

District Court of Queensland Act 1967 (Qld), s 118(3)

Residential Tenancies Act 1994 (Qld)

Standard Building Regulation 1993 (Qld), s 97(1)

Marana Holdings Pty Ltd & Anor v Commissioner of Taxation [2004] FCAFC 307; (2004) 214 ALR 190, considered

Zinace P/L v Tomlin & Ors [2003] QCA 102; Appeal No 195 of 2003, 12 March 2003, cited

COUNSEL:

The appellant appeared on his own behalf
G P Lynham for the respondent

SOLICITORS:

The appellant appeared on his own behalf
MacDonnells for the respondent

1. McPHERSON JA: 

   I agree with the reasons of Keane JA for dismissing this application with costs.  The question in dispute is primarily, if not exclusively, one of fact as to which there are already concurrent findings of the Magistrates Court, and, on appeal from it, the District Court.  In making it a statutory requirement in

   
   

   s 118(3) of the District Court of Queensland Act 1967 that a further and third appeal be permitted only with leave of this Court, Parliament plainly intended that the discretion conferred by that provision should be favourably…