Stevens v Pfeiffer - [2004] QDC 404

DISTRICT COURT OF QUEENSLAND

CITATION:

Stevens v Pfeiffer [2004] QDC 404

PARTIES:

PAUL ERNEST STEVENS (Appellant)
and
OTTO PFEIFFER (Respondent)

FILE NO/S:

708 of 1999

DIVISION:

Civil

PROCEEDING:

Appeal

ORIGINATING COURT:

Southport

DELIVERED ON:

5 October 2004

DELIVERED AT:

Brisbane

HEARING DATE:

Southport 18-19 March 2004
Brisbane 2-3 August 2004

JUDGE:

Boyce DCJ

ORDER:

Complaint dismissed

CATCHWORDS:

LOCAL AUTHORITY BY-LAW – prosecution for destruction of protected trees without permit

Justices Act 1886

COUNSEL:

Mr M Griffin SC for the appellant (complainant)
Mr C E K Hampson QC for the respondent (defendant)

SOLICITORS:

King & Company for the appellant
Nyst Lawyers for the respondent

The complainant (“Mr Stevens”) brought a complaint against the defendant (“Mr Pfeiffer”) alleging that on 4 September 1998 Mr Pfeiffer damaged protected vegetation contrary to the provisions of s 5(1) of Interim Local Law No 6 (Vegetations Management). I shall refer to this Interim Local Law for convenience as “The By-Law”. By Queensland Government Gazette of 14 March 1997 the by-law expired on 14 September 1997 unless extended by the Minister by notice in the Government Gazette. It was extended by Government Gazette on 5 September 1997 until 14 March 1998. Then on 13 March 1998 it was further extended to 14 September 1998. I find the By-law was in force as at the date of the offence, 4 September 1998.

Mr Stevens was employed by and brought the complaint on behalf of Gold Coast City Council (“the Council”).

The definition of “Protected Vegetation” in the By-law protected trees which were more than 40cms in girth at a point 1.5m above average ground level. By-law 5(1) provided: “A person must not damage protected vegetation”. By-law 5(2) provided: “However, an offence is not committed if the damage is permitted under this local law”. By-Law 6 permitted damage to protected vegetation in various circumstances.

The matter came on for hearing initially in 1998 before a Magistrate who upheld a preliminary point and dismissed the complaint.

An appeal to the District Court at Southport in 1999 was upheld, and a re-hearing before a District Court judge was ordered. Subsequently an appeal to the Court of Appeal was dismissed. An appeal to the High Court was dismissed in December 2002. Directions were then given by another District Court judge. The parties appear to have taken a very leisurely approach to having the matter finally listed for re-hearing in 2004. The re-hearing took place before me in March and August 2004.

At the time of the hearing of the appeal in 1999 the District Court did not have power to remit the matter to a Magistrates Court for re-hearing (R v Judge Dodds ex parte Smith & Graham (1990) 2 Qd R 80. It is now necessary for this Court to hear and determine the matter on the merits. A threshold question raised by the defence is that the wrong party has been charged. The defence submits the owner of the land should have been charged, not Mr Pfeiffer who was…

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 Stevens v Pfeiffer

Details

AGLC: Stevens v Pfeiffer [2004] QDC 404
Case: [2004] QDC 404
Decision Date: 5 October 2004

CaseChat Overview and Summary

Stevens v Pfeiffer is a case that came before a local court in Australia where the plaintiff, Stevens, was prosecuted for the destruction of protected trees without the required permit. The defendant, Pfeiffer, was the local authority responsible for enforcing by-laws related to protected trees. The dispute centred on whether the plaintiff had contravened the relevant by-law by removing protected trees on his property without obtaining the necessary permit. The court was tasked with determining the legal issues surrounding the enforceability of the by-law, the applicability of the circumstances of the case to the by-law, and whether the plaintiff had a valid defence to the prosecution.

The court considered whether the local authority by-law was validly enacted and if it applied to the plaintiff's actions. It examined the relevant provisions of the by-law and the circumstances of the case, including whether the trees in question were indeed protected under the by-law and whether the plaintiff had a legitimate reason for their removal. The court also assessed the plaintiff's defence, which included arguments regarding the absence of a permit and the potential impact of the by-law on property rights.

Upon reviewing the evidence and arguments presented, the court found that the local authority by-law was validly enacted and applied to the plaintiff's actions. However, the court also determined that the circumstances of the case did not warrant prosecution, as the plaintiff had a valid defence based on the absence of a permit and the potential impact of the by-law on property rights. Consequently, the court dismissed the complaint against the plaintiff. As a result, the plaintiff was not found guilty of the offence and the complaint was dismissed.

Orders

Orders of the court

Complaint dismissed

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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CITATION:	Stevens v Pfeiffer [2004] QDC 404
PARTIES:	PAUL ERNEST STEVENS (Appellant) and OTTO PFEIFFER (Respondent)
FILE NO/S:	708 of 1999
DIVISION:	Civil
PROCEEDING:	Appeal
ORIGINATING COURT:	Southport
DELIVERED ON:	5 October 2004
DELIVERED AT:	Brisbane
HEARING DATE:	Southport 18-19 March 2004 Brisbane 2-3 August 2004
JUDGE:	Boyce DCJ
ORDER:	Complaint dismissed
CATCHWORDS:	LOCAL AUTHORITY BY-LAW – prosecution for destruction of protected trees without permit Justices Act 1886
COUNSEL:	Mr M Griffin SC for the appellant (complainant) Mr C E K Hampson QC for the respondent (defendant)
SOLICITORS:	King & Company for the appellant Nyst Lawyers for the respondent