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Schafer v Bacon

Schafer v Bacon

Case [2023] QCA 55 31 March 2023

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SUPREME COURT OF QUEENSLAND

CITATION:

Schafer v Bacon [2023] QCA 55

PARTIES:

SCHAFER, Michelle Lynette
(applicant)
v
BRETT CHRISTOPHER BACON
(respondent)

FILE NO:

CA No 74 of 2022
DC No 59 of 2021

DIVISION:

Court of Appeal

PROCEEDING:

Application for Extension of Time s 118 DCA (Criminal)

ORIGINATING COURT:

District Court Queensland – [2022] QDC 60 (Clarke DCJ)

DELIVERED ON:

31 March 2023

DELIVERED AT:

Brisbane

HEARING DATE:

13 March 2023

JUDGES:

Bond JA and Boddice AJA and Wilson J

ORDERS:

1. Application for extension of time is refused.

2. Costs ordered against the applicant on the standard basis.

CATCHWORDS:

ENVIRONMENT AND PLANNING – ENVIRONMENTAL PLANNING – PLANNING AND DEVELOPMENT PROSECUTIONS – OTHER MATTERS – where the applicant was prosecuted for breaching an enforcement notice issued by the local authority for carrying out assessable development work without a permit – where the applicant was found guilty of an offence pursuant to section 168(5) of the Planning Act 2016 (Qld) by Clarke DCJ – where the applicant applied for leave to appeal the sentence – where the applicant sought removal to the High Court of Australia – where the applicant raised various issues with the State of Queensland, Queensland Courts, and the power of the local authority – whether an application for adjournment should be granted on the basis that the respondent’s amended outline of submissions prejudiced the applicant – whether the applicant should be granted an extension of time to appeal the District Court decision – whether the application should be removed to the High Court of Australia – whether costs should be awarded against the applicant on an indemnity basis

Commonwealth Constitution (Cth)
Constitution of Queensland 2001 (Qld)
ConstitutionAct 1867 (Qld)
District Court of Queensland Act 1967 (Qld), s 118(3)
Evidence Act 1977 (Qld), s 43, s 46(A)
Judiciary Act 1903 (Cth), s 40
Local Government Act2009 (Qld)
Planning Act 2016 (Qld), s 168(5)

Barton v Beattie & Ors[2010] QCA 100, cited
Bone v Mothershaw [2003] 2 Qd R 600; [2002] QCA 120, cited
Burke v Commissioner of Police[2019] QCA 158, cited
Burns v State of Queensland & Anor[2006] QCA 235, cited
Clampett v Hill[2007] QCA 394, cited
Glasgow v Hall[2007] QCA 19, cited
In the matter of an application by Michelle Lynette Schafer for leave to issue or file an application for removal [2022] HCATrans 10, cited
Island Resorts (Apartments) Pty Ltd v Gold Coast City Council (2021) 7 QR 84; [2021] QCA 19, cited
Lade and Company Pty Ltd v Finlay & Anor [2010] QSC 382, cited
Ostwald Accommodation Pty v Western Downs Regional Council [2016] 2 Qd R 14; [2015] QSC 210, cited
Parisienne Basket Shoes Pty Ltd v Whyte (1938) 59 CLR 369; [1938] HCA 7, cited
Pearson v Thuringowa City Council [2006] 1 Qd R 416; [2005] QCA 310, cited
Pickering v McArthur[2005] QCA 294, cited
Queensland v The Commonwealth (1977)

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 [2023] QCA 55
Case: [2023] QCA 55
Decision Date: 31 March 2023

CaseChat Overview and Summary

The case of Schafer v Bacon involves a prosecution of the applicant, Schafer, for breaching an enforcement notice issued by the local authority for carrying out assessable development work without a permit. Schafer was found guilty of an offence pursuant to section 168(5) of the Planning Act 2016 (Qld) by Clarke DCJ in the District Court of Queensland. Schafer subsequently applied for leave to appeal the sentence and sought removal to the High Court of Australia. The applicant raised various issues with the State of Queensland, Queensland Courts, and the power of the local authority.

The legal issues before the court included whether an application for adjournment should be granted on the basis that the respondent's amended outline of submissions prejudiced the applicant, whether the applicant should be granted an extension of time to appeal the District Court decision, whether the application should be removed to the High Court of Australia, and whether costs should be awarded against the applicant on an indemnity basis.

The court found that the application for adjournment was not appropriate as the respondent's amended outline of submissions did not prejudice the applicant. The court also found that an extension of time to appeal the District Court decision should not be granted as Schafer had not demonstrated any exceptional circumstances. The court further found that the application should not be removed to the High Court of Australia as it did not raise any significant question of law of general public importance. Finally, the court ordered costs against the applicant on the standard basis.

The orders of the court were that the application for extension of time was refused and costs were ordered against the applicant on the standard basis.

Orders

Orders of the court

1. Application for extension of time is refused.

2. Costs ordered against the applicant 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.

Citations

AGLC Citation

Schafer v Bacon [2023] QCA 55

Most Recent Citation

High Court Bulletin [2023] HCAB 8

Cases citing this decision · 1 of 1 shown

High Court Bulletin
[2023] HCAB 8

…Supreme Court of Queensland (Court of Appeal) [2023] QCA 55…

View all 1 citing cases →

Cases cited in this decision · 17 of 17 shown

Schafer v Bacon
[2022] QDC 60 Para 1

…and the power of the Council. Similar questions were raised in the District Court and dealt with in this way by Clarke DCJ:[8] [8] Schafer v Bacon [2022] QDC 60 at [15] – [16]. “[15] Ms Schafer has failed to demonstrate there is any relevance between the provisions of the Australian Constitution and the Queensl…
Schafer, In the matter of an application for leave to issue or file
[2022] HCATrans 10 Para 2

…on for removal is refused.” [6] In the matter of an application by Michelle Lynette Schafer for leave to issue or file an application for removal [2022] HCATrans 10 at [3] – [4].…
Sunland Group Limited v Gold Coast City Council
[2021] HCA 35 Para 10

…ueensland Constitution: Ostwald Accommodation Pty Ltd v Western Downs Regional Council [2016] 2 Qd R 14 at [23] – [29]; Island Resorts (Apartments) Pty Ltd v Gold Coast City Council (2021) 7 QR 84 at [37] – [38].…
Island Resorts (Apartments) Pty Ltd v Gold Coast City Council
[2021] QCA 19

…ation for removal [2022] HCATrans 10, cited Island Resorts (Apartments) Pty Ltd v Gold Coast City Council (2021) 7 QR 84; [2021] QCA 19, cited Lade and Company Pty Ltd v Finlay & Anor [2010] QSC 382, cited Ostwald Accommodation Pty v Western Downs Regional Council [2016] 2 Qd R 14; [2015] QSC 210, cited Parisien…
Schafer v Commissioner of Police
[2019] QCA 292 Para 2

…e principles applicable when considering an application for leave to appeal as these were comprehensively set out in Schafer v Commissioner of Police [2019] QCA 292 [1] (which is an unrelated matter involving the applicant). [1] Schafer v Commissioner of Police [2019] QCA 292 at [9].…
Burke v Commissioner of Police
[2019] QCA 158 Para 3

…lve assessment of whether the appeal seems to be a viable one.[2] [2] Schafer v Commissioner of Police [2019] QCA 292; Burke v Commissioner of Police [2019] QCA 158.…
Ostwald Accommodation Pty Ltd v Western Downs Regional Council
[2015] QSC 210

…ty Ltd v Finlay & Anor [2010] QSC 382, cited Ostwald Accommodation Pty v Western Downs Regional Council [2016] 2 Qd R 14; [2015] QSC 210, cited Parisienne Basket Shoes Pty Ltd v Whyte (1938) 59 CLR 369; [1938] HCA 7, cited Pearson v Thuringowa City Council [2006] 1 Qd R 416; [2005] QCA 310, cited Pickering v McAr…
Lade and Company Pty Ltd v Finlay; Lade v Franks
[2010] QSC 382 Para 6

…h the Court is required to take judicial notice.[12] [11] Constitution of Queensland 2001 (Qld), s70(1); Lade and Company Pty Ltd v Finlay & Anor [2010] QSC 382 at [22]. [12]Sections 43 and 46A of the Evidence Act 1977 (Qld).…
Barton v Beattie and Ors
[2010] QCA 100 Para 5

…ion 2of the Constitution Act 1867 (Qld) and in accordance with section 107 of the Commonwealth Constitution . As stated in Barton v Beattie & Ors [2010] QCA 100, the Queensland Parliament’s legislative power undoubtedly comprehended legislation which amended existing State legislation concerning the system of loc…
Clampett v Hill
[2007] QCA 394 Para 3

…Court. Pursuant to section 40 of the Judiciary Act 1903 (Cth), the removal can only be made on application to the High Court.[7] [7] Clampett v Hill [2007] QCA 394 at [11].…
Glasgow v Hall
[2007] QCA 19 Para 7

…s 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.…
Burns v State of Queensland and Croton
[2006] QCA 235 Para 7

…e 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.…
Pearson v Thuringowa City Council
[2005] QCA 310 Para 6

…e already been fully considered at two judicial hearings.[5] [5] Schafer v Commissioner of Police [2019] QCA 292; Pearson v Thuringowa City Council [2005] QCA 310.…
Pickering v McArthur
[2005] QCA 294 Para 5

…d there is a reasonable argument that there is an error to be corrected.[4] [4] Schafer v Commissioner of Police [2019] QCA 292; Pickering v McArthur [2005] QCA 294.…
Bone v Mothershaw
[2002] QCA 120 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.…
Parisienne Basket Shoes Pty ltd v Whyte
[1938] HCA 7

…Downs Regional Council [2016] 2 Qd R 14; [2015] QSC 210, cited Parisienne Basket Shoes Pty Ltd v Whyte (1938) 59 CLR 369; [1938] HCA 7, cited Pearson v Thuringowa City Council [2006] 1 Qd R 416; [2005] QCA 310, cited Pickering v McArthur [2005] QCA 294, cited Queensland v The Commonwealth (1977) 139 CLR 585; [1…
Queensland v Commonwealth
[1977] HCA 60

…R 416; [2005] QCA 310, cited Pickering v McArthur [2005] QCA 294, cited Queensland v The Commonwealth (1977) 139 CLR 585; [1977] HCA 60, cited Schafer v Commissioner of Police [2019] QCA 292, cited COUNSEL: The applicant appeared on her own behalf M J McDermott for the respondent SOLICITORS: The applicant appear…

Legislation cited in this decision · 8

District Court of Queensland Act 1967 (Qld)
118(3) 2 mentions (from Para 1)
Evidence Act 1977 (Qld)
43 2 mentions (from Para 6)
Judiciary Act 1903 (Cth)
40 2 mentions (from Para 3)
Planning Act 2016 (Qld)
168(5) 2 mentions (from Para 7)
Constitution Act 1867 (Qld)
1 mention (from Para 5)
Constitution of Australia (Cth)
1 mention (from Para 12)
Local Government Act 2009 (Qld)
1 mention (from Para 2)
Property Law Act 1974 (Qld)
1 mention (from Para 2)

CITATION:	Schafer v Bacon [2023] QCA 55
PARTIES:	SCHAFER, Michelle Lynette (applicant) v BRETT CHRISTOPHER BACON (respondent)
FILE NO:	CA No 74 of 2022 DC No 59 of 2021
DIVISION:	Court of Appeal
PROCEEDING:	Application for Extension of Time s 118 DCA (Criminal)
ORIGINATING COURT:	District Court Queensland – [2022] QDC 60 (Clarke DCJ)
DELIVERED ON:	31 March 2023
DELIVERED AT:	Brisbane
HEARING DATE:	13 March 2023
JUDGES:	Bond JA and Boddice AJA and Wilson J
ORDERS:	1. Application for extension of time is refused. 2. Costs ordered against the applicant on the standard basis.
CATCHWORDS:	ENVIRONMENT AND PLANNING – ENVIRONMENTAL PLANNING – PLANNING AND DEVELOPMENT PROSECUTIONS – OTHER MATTERS – where the applicant was prosecuted for breaching an enforcement notice issued by the local authority for carrying out assessable development work without a permit – where the applicant was found guilty of an offence pursuant to section 168(5) of the Planning Act 2016 (Qld) by Clarke DCJ – where the applicant applied for leave to appeal the sentence – where the applicant sought removal to the High Court of Australia – where the applicant raised various issues with the State of Queensland, Queensland Courts, and the power of the local authority – whether an application for adjournment should be granted on the basis that the respondent’s amended outline of submissions prejudiced the applicant – whether the applicant should be granted an extension of time to appeal the District Court decision – whether the application should be removed to the High Court of Australia – whether costs should be awarded against the applicant on an indemnity basis Commonwealth Constitution (Cth) Constitution of Queensland 2001 (Qld) ConstitutionAct 1867 (Qld) District Court of Queensland Act 1967 (Qld), s 118(3) Evidence Act 1977 (Qld), s 43, s 46(A) Judiciary Act 1903 (Cth), s 40 Local Government Act2009 (Qld) Planning Act 2016 (Qld), s 168(5) Barton v Beattie & Ors[2010] QCA 100, cited Bone v Mothershaw [2003] 2 Qd R 600; [2002] QCA 120, cited Burke v Commissioner of Police[2019] QCA 158, cited Burns v State of Queensland & Anor[2006] QCA 235, cited Clampett v Hill[2007] QCA 394, cited Glasgow v Hall[2007] QCA 19, cited In the matter of an application by Michelle Lynette Schafer for leave to issue or file an application for removal [2022] HCATrans 10, cited Island Resorts (Apartments) Pty Ltd v Gold Coast City Council (2021) 7 QR 84; [2021] QCA 19, cited Lade and Company Pty Ltd v Finlay & Anor [2010] QSC 382, cited Ostwald Accommodation Pty v Western Downs Regional Council [2016] 2 Qd R 14; [2015] QSC 210, cited Parisienne Basket Shoes Pty Ltd v Whyte (1938) 59 CLR 369; [1938] HCA 7, cited Pearson v Thuringowa City Council [2006] 1 Qd R 416; [2005] QCA 310, cited Pickering v McArthur[2005] QCA 294, cited Queensland v The Commonwealth (1977)