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Stock v Anning

Stock v Anning

Case [2006] WASC 275 8 December 2006

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STOCK -v- ANNING [2006] WASC 275

Jurisdiction:	SUPREME COURT OF WESTERN AUSTRALIA	Citation No:	[2006] WASC 275
Case No:	SJA:1070/2005	Heard:	2 NOVEMBER 2005
Coram:	JOHNSON J	Delivered:	8/12/06
No of pages:	45	Judgment Part:	1 of 1
Result:	Leave to appeal refused Application dismissed
Category:	C
PDF Version

Parties:	MICHAEL STOCK PHIL ANNING
Catchwords:	Prosecution under Local Government (Miscellaneous Provisions) Act 1960 Breach of requirement to obtain building licence Failure to comply with notice to remove building
Legislation:	Building Regulations 1989 Criminal Code (WA) Criminal Procedure Act 2005 Local Government (Miscellaneous Provisions) Act 1960 (WA) Town Planning and Development Act 1928
Case References:	Abalos v Australian Postal Commission (1990) 171 CLR 167 Abram v Bank of New Zealand [1996] ATPR 41-507 Devries v Australian National Railways Commission (1993) 177 CLR 472 Fox v Percy (2003) 214 CLR 118 Minogue v HREOC (1999) FCA 85 Neil v Nott (1994) 121 ALR 148 R v Apostilides (1984) 154 CLR 563 Richardson v R (1974) 131 CLR 116 Rjaski v Scitec Corporation Ltd, unreported; NSW (CA); 16 June 1986 Hollingham v Head (1858) 27 LJCP 241 Hollington v F Hewthorn & Co [1943] KB 587 Mraz v The Queen (1955) 93 CLR 493 R v Mullen (1938) 59 CLR 124 Re Capobianco; Ex parte Castelli, unreported; Library No 980567; 25 September 1998

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

IN CIVIL

CITATION : STOCK -v- ANNING [2006] WASC 275 CORAM : JOHNSON J HEARD : 2 NOVEMBER 2005 DELIVERED : 8 DECEMBER 2006 FILE NO/S : SJA 1070 of 2005 BETWEEN : MICHAEL STOCK

Appellant

AND

PHIL ANNING

Respondent

ON APPEAL FROM:

Jurisdiction : MAGISTRATES' COURT OF WESTERN AUSTRALIA

Coram : MAGISTRATE V EDWARDS

File No : MI 1594 of 2005, MI 1595 of 2005

Catchwords:

Prosecution under Local Government (Miscellaneous Provisions) Act 1960 - Breach of requirement to obtain building licence - Failure to comply with notice to remove building

(Page 2)

Legislation:

Building Regulations 1989

Criminal Code (WA)
Criminal Procedure Act 2005
Local Government (Miscellaneous Provisions) Act 1960 (WA)
Town Planning and Development Act 1928

Result:

Leave to appeal refused

Application dismissed

Category: C

Representation:

Counsel:

Appellant : In person

Respondent : Mr S S Barbaro

Solicitors:

Appellant : In person

Respondent : Minter Ellison

Case(s) referred to in judgment(s):

Abalos v Australian Postal Commission (1990) 171 CLR 167
Abram v Bank of New Zealand [1996] ATPR 41-507
Devries v Australian National Railways Commission (1993) 177 CLR 472
Fox v Percy (2003) 214 CLR 118
Minogue v HREOC (1999) FCA 85
Neil v Nott (1994) 121 ALR 148
R v Apostilides (1984) 154 CLR 563
Richardson v The Queen (1974) 131 CLR 116
Rjaski v Scitec Corporation Ltd, unreported; NSW (CA); 16 June 1986

(Page 3)

Case(s) also cited:

Hollingham v Head (1858) 27 LJCP 241
Hollington v F Hewthorn & Co [1943] KB 587
Mraz v The Queen (1955) 93 CLR 493
R v Mullen (1938) 59 CLR 124
Re Capobianco; Ex parte Castelli, unreported; Library No 980567; 25…

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 Stock v Anning

Details

AGLC: Stock v Anning [2006] WASC 275
Case: [2006] WASC 275
Decision Date

CaseChat Overview and Summary

The appellant, Michael Stock, sought leave to appeal against his conviction in the Midland Magistrates Court on two charges arising from the building of a free-standing timber framed room referred to as a games room on his property at Lot 182. The first charge, brought on 25 September 2003, alleged that the appellant commenced and proceeded with a building, namely a free-standing timber framed room, without first submitting and obtaining approval for a building licence, contrary to s 374(1)(a) of the Local Government (Miscellaneous Provisions) Act 1960 ("the Act") and in contravention of s 670 of the Act. The second charge alleged that on 28 October 2004, being the owner of the building and having been served with a notice under s 401(1)(c) of the Act ("the Notice"), the appellant failed to comply with the requisitions in the Notice within 14 days of the dismissal of an appeal against the Notice. In that charge the complainant sought an order under s 401(7) of the Act that the appellant, within 21 days, remove the building in accordance with the Notice. The complainant further sought an order for the costs of the Shire in relation to the proceedings as provided for in s 401(7) of the Act. Both charges were found by the Magistrate to be proved beyond a reasonable doubt and the appellant was fined $750.00 plus costs of $3,830.20 and given 35 days to remove the building. The appellant argued that the CEO Mr Phil Anning was not available to be cross-examined because he was not called as a witness by the Shire, and that the Shire President Mr Anspatch failed to bring his diary which would have proved that the CEO acknowledged that the three applications for planning consent were in the possession of the CEO. The appellant further alleged that Mr Ray Galbraith, who was in partnership with the appellant to relocate a house, witnessed violence and misconduct by Mr Trevor Walker, and that Mr Geoff Erickson, a councillor who had helped the appellant, was not allowed to give evidence on his behalf. The court dismissed the grounds of appeal and refused leave to appeal. The court found that the appellant's inability or unwillingness to accept the correct position on the issue of the different types of approval required for the construction of a building had led the appellant to pursue his application for leave to appeal in an unsatisfactory manner. The court also found that the Magistrate had given the appellant all appropriate assistance to defend himself against the charges and that the Magistrate's reasons for decision were without error. The court concluded that the application for leave to appeal was wholly without merit.

Orders