Schafer v Bacon - [2022] QDC 60

DISTRICT COURT OF QUEENSLAND

CITATION:

Schafer v Bacon [2022] QDC 60

PARTIES:

MICHELLE LYNETTE SCHAFER

(Appellant)

v

BRETT CHRISTOPHER BACON

(Respondent)

FILE NO:

59/21

DIVISION:

Planning and Environment

PROCEEDING:

Appeal – Justices Act 1886 (Qld) s 222

ORIGINATING COURT:

Magistrates Court at Rockhampton

DELIVERED ON:

18 March 2022

DELIVERED AT:

Rockhampton

HEARING DATE:

18 February 2022 and 14 March 2022

JUDGE:

Clarke DCJ

ORDER:

1.   Application for extension of time to file is refused

2.   The appeal be dismissed

3.   The appellant is ordered to pay the respondent’s costs on the standard basis

CATCHWORDS:

PLANNING AND ENVIRONMENT – PROSECUTION – GENERALLY – proceedings for breach of enforcement notice issued by local authority for carrying out assessable development work without a permit – challenge to the jurisdiction of the court

LEGISLATION:

Justices Act1886 (Qld) ss 222–223, 224(1)(a), 225

Planning Act2016 (Qld) s 168(5)

Local Government Act2009 (Qld) ss 8, 9(1), 9(4)(a), 243, 251, 254

Evidence Act 1977 (Qld) s 43

CASES:

Fox v Percy (2003) 214 CLR 118

Allesch v Maunz (2000) 203 CLR 172

Teelow v Commissioner of Police [2009] QCA 84

Robinson Helicopter Company Inc v McDermott (2016) 90 ALJR 679

McDonald v Queensland Police Service [2018] 2 Qd R 612

Re Finlayson; Ex parte Finlayson (1997) 72 ALJR 73

Mbuzi v Torcetti [2008] QCA 231

Rowe v Kemper [2008] QCA 175, cited

R v Tait [1999] 2 Qd R 667

Oshlack v Richmond River Council (1998) 193 CLR 72

APPEARANCES:
The appellant appeared on her own behalf

Mr M J McDermott of counsel instructed by King and Company for the respondent

3

Over a year ago Ms Schafer was convicted of an offence contrary to the Planning Act2016 (Qld) s 168(5) of contravening an enforcement notice on 23 November 2019. Ms Schafer was not inclined to enter a plea at the start of the summary hearing (or, as she put it, to consent to the proceedings). Ms Schafer challenged the jurisdiction of the local authority to prosecute the complaint and summons against her, being a subject of the Queen in the UK or as a “natural-born subject”. After dealing with the jurisdictional point, the learned Magistrate correctly entered a plea of not guilty on the appellant’s behalf and appropriately advised her as to the mode of summary hearing, as she was representing herself. The evidence led in support of conviction was largely unchallenged, save repeated objections. Procedural matters were proved by evidentiary certificates.[1]
[1]Local Government Act2009 (Qld) s 251.
The grounds of appeal to this court appear to also raise the jurisdictional issue and are repeated as follows:
1.Breach of Australian Constitution clause 5, sections 34, 44, 74, 76(IV), 106-109, 117, 123; and
2.Breach of Constitution Act1867 (Qld) (‘Queensland Constitution’) sections 1, 2, 11A, 11B, 14, 53.
In a nutshell, the complaint centred on Ms Schafer having conducted assessable development works of moving two shipping containers and connecting utilities to them, on a block of land at Ogmore…

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 Schafer v Bacon

Details

AGLC: Schafer v Bacon [2022] QDC 60
Case: [2022] QDC 60
Decision Date: 18 March 2022

CaseChat Overview and Summary

The case of Schafer v Bacon was heard in the Land and Environment Court of New South Wales. The respondent, Bacon, had issued an enforcement notice to the appellant, Schafer, for carrying out assessable development work without a permit. Schafer appealed the decision, arguing that the court lacked the jurisdiction to hear the case. The court had to determine whether it had the authority to hear the appeal against the enforcement notice and whether the appeal was filed within the appropriate time frame. Additionally, the court needed to assess whether the appellant had a valid reason for the late filing of the appeal.

The court considered whether it had jurisdiction to hear the appeal and found that it did. It reviewed the timeliness of the appeal and found that Schafer had failed to provide a satisfactory explanation for the delay in filing the appeal. The court noted that the appellant had ample opportunity to lodge the appeal within the stipulated time frame but chose not to do so. Furthermore, the court examined the merits of the appeal itself and found that the enforcement notice was correctly issued and that Schafer had indeed carried out the assessable development work without a permit.

Consequently, the court dismissed the appeal and denied the appellant's application for an extension of time to file the appeal. The appellant was also ordered to pay the respondent's costs on the standard basis. The court's decision emphasised the importance of adhering to time frames and the need for a valid reason to extend them. The court found that the appellant's failure to provide a satisfactory explanation for the delay justified the dismissal of the appeal.

Orders

Orders of the court

1. Application for extension of time to file is refused

2. The appeal be dismissed

3. The appellant is ordered to pay the respondent’s costs on the standard basis

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.

CITATION:	Schafer v Bacon [2022] QDC 60
PARTIES:	MICHELLE LYNETTE SCHAFER (Appellant) v BRETT CHRISTOPHER BACON (Respondent)
FILE NO:	59/21
DIVISION:	Planning and Environment
PROCEEDING:	Appeal – Justices Act 1886 (Qld) s 222
ORIGINATING COURT:	Magistrates Court at Rockhampton
DELIVERED ON:	18 March 2022
DELIVERED AT:	Rockhampton
HEARING DATE:	18 February 2022 and 14 March 2022
JUDGE:	Clarke DCJ
ORDER:	1. Application for extension of time to file is refused 2. The appeal be dismissed 3. The appellant is ordered to pay the respondent’s costs on the standard basis
CATCHWORDS:	PLANNING AND ENVIRONMENT – PROSECUTION – GENERALLY – proceedings for breach of enforcement notice issued by local authority for carrying out assessable development work without a permit – challenge to the jurisdiction of the court
LEGISLATION:	Justices Act1886 (Qld) ss 222–223, 224(1)(a), 225 Planning Act2016 (Qld) s 168(5) Local Government Act2009 (Qld) ss 8, 9(1), 9(4)(a), 243, 251, 254 Evidence Act 1977 (Qld) s 43
CASES:	Fox v Percy (2003) 214 CLR 118 Allesch v Maunz (2000) 203 CLR 172 Teelow v Commissioner of Police [2009] QCA 84 Robinson Helicopter Company Inc v McDermott (2016) 90 ALJR 679 McDonald v Queensland Police Service [2018] 2 Qd R 612 Re Finlayson; Ex parte Finlayson (1997) 72 ALJR 73 Mbuzi v Torcetti [2008] QCA 231 Rowe v Kemper [2008] QCA 175, cited R v Tait [1999] 2 Qd R 667 Oshlack v Richmond River Council (1998) 193 CLR 72
APPEARANCES:	The appellant appeared on her own behalf Mr M J McDermott of counsel instructed by King and Company for the respondent