Scriven v Sargent - [2013] QDC 216

[2013] QDC 216

DISTRICT COURT OF QUEENSLAND
CIVIL JURISDICTION
JUDGE ROBIN QC
No 2 of 2011
SAM CHESTER SCRIVEN Appellant
and
CAMERON JAMES SARGENT Respondent
BRISBANE
1.11 PM, MONDAY, 20 MAY 2013
JUDGMENT

CATCHWORDS
Constitution of the Commonwealth of Australia, s51(xxxi), s51(xxxvi), s96
Integrated Planning Act 1997 (Q), s4.3.
Invalid appeal and conviction - The development for a development offence of clearing vegetation without a permit sought to be amended to raise invalidity - assertion that there was an acquisition of property by the Commonwealth (which allegedly obtained a benefit under the Kyoto Protocol) on terms that were unjust

HIS HONOUR: The immediate question for the court is whether an amendment ought to be allowed to Mr Scriven's notice of appeal against his conviction for carrying out assessable development in the form of removal of vegetation on his property near Roma without a development permit.

He was self‑represented in the early stages of the appeal. He has been permitted by Judge Andrews to amend to complain of the severity of the substantial penalty imposed by the Magistrate.

When that amendment was permitted, there was deferred until a later time, which turned out to be today, determination of whether further amendment should be permitted.

The point of that would be to make a point which I think Mr Scriven attempted to make at first instance that section 4.3.1 of the Integrated Planning Act 1997 (IPA) on which the conviction was based is invalid by reason of section 51 (xxxi) of the Constitution which, of course, precludes acquisition of property by the Commonwealth except on just terms.

The explanation for the State law may be assumed to lie in arrangements between Commonwealth and State authorities to do with assisting the Commonwealth to meet targets it committed itself to, under international arrangements, the Kyoto Protocol, in particular. If vegetation is preserved intact, that is said to have the consequence of authorising greater carbon emissions than might otherwise be permissible.

It is said by Mr King for Mr Scriven that the benefits or advantages to the Commonwealth are such that there is an acquisition of property by it. There would seem to be little difficulty in the way of establishing that there were no just terms provided because Mr Scriven obtained no benefit whatever nor any compensation whatever in return for what, from his point of view and the points of view of many, might be substantial sterilisation of his land from the point of view of his doing what he wanted to with it. That was said to be by way of the clearing of land in drought times to facilitate the feeding of stock.

In my view, the amendment sought has to be refused because it would be futile. The inescapable reason for that is that section 51 (xxxi) does not strike at State laws. It is enough to refer to the now venerable Pye v Renshaw (1951) 84 CLR 58 in the joint judgment at page 78 referring to Magenis [1949]

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 Scriven v Sargent

Details

AGLC: Scriven v Sargent [2013] QDC 216
Case: [2013] QDC 216
Decision Date: 20 MAY 2013

CaseChat Overview and Summary

The matter in Scriven v Sargent was heard in the District Court of Queensland and involved a dispute between Sam Chester Scriven, the appellant, and Cameron James Sargent, the respondent. The appellant, Scriven, appealed against his conviction for carrying out assessable development in the form of vegetation removal on his property near Roma without a development permit. The legal issues in this case revolved around the validity of an amendment to the appellant's notice of appeal, which sought to argue that section 4.3.1 of the Integrated Planning Act 1997 (IPA) was invalid due to section 51(xxxi) of the Constitution. The appellant claimed that the state law was invalid because it facilitated an acquisition of property by the Commonwealth on unjust terms, as part of the Commonwealth's international obligations under the Kyoto Protocol.

The court considered whether the amendment sought by the appellant would be futile, as section 51(xxxi) of the Constitution does not apply to state laws. The court found that the amendment would be futile, as the state's legislative power was not affected by section 51(xxxi). The court referred to the case of Pye v Renshaw (1951) 84 CLR 58, which held that state legislation authorising the acquisition of land was not affected by section 51(xxxi) of the Constitution. The court also considered the case of ICM Agricultural Pty Ltd v the Commonwealth Australia (2009) 240 CLR 141, which dealt with the Commonwealth's grants power and the conditions under which financial assistance could be provided to a state. The court concluded that the amendment sought by the appellant would be futile, as there was no acquisition of property by the Commonwealth, and section 4.3.1 of the IPA did not constitute an acquisition of property.

In conclusion, the court refused the amendment sought by the appellant, as it would be futile. The court held that section 51(xxxi) of the Constitution did not invalidate state law, and the state's legislative power was not affected by it. The court found that the amendment sought by the appellant would not prevail, and therefore, refused the amendment.

Orders