Witheyman v Van Riet

Case [2008] QCA 168

SUPREME COURT OF QUEENSLAND

CITATION:

Witheyman v Van Riet & Ors [2008] QCA 168

PARTIES:

PETER ROBERT WITHEYMAN
(applicant/appellant)
v
NICHOLAS DANIEL VAN RIET
(first respondent)
EKARI PARK PTY LTD ACN 101 606 419
(second respondent)
N J CONTRACTING PTY LTD ACN 090 955 954
(third respondent)

FILE NO/S:

Appeal No 522 of 2008
DC No 53 of 2007

DIVISION:

Court of Appeal

PROCEEDING:

Application for Leave s 118 DCA (Civil)

ORIGINATING COURT:

District Court at Brisbane

DELIVERED ON:

20 June 2008

DELIVERED AT:

Brisbane

HEARING DATE:

2 June 2008

JUDGES:

Holmes and Fraser JJA and Daubney J
Separate reasons for judgment of each member of the Court, each concurring as to the orders made

ORDERS:

That leave to appeal is granted 1.   

That the appeal is dismissed2.   

That the applicant is to pay the respondents' costs of the application and the appeal to be assessed on the standard basis3.   

CATCHWORDS:

CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – LIMITATION OF TIME FOR PROSECUTION – where the applicant alleged that the respondents had contravened s 4.3.1. of the Integrated Planning Act 1997 (Qld) by starting an assessable development without a development permit – where that offence was committed by the clearing of native vegetation which constituted operational works for the purposes of
s 4.3.1 of the Integrated Planning Act 1997 (Qld) – where
s 68 of the Vegetation Management Act 1999 (Qld) required that a proceeding for a vegetation offence must start within one year of the offence coming to the complainant’s knowledge – where the trial judge found that a complainant possesses the requisite knowledge for the purposes of s 68 when the complainant has such information as to give reasonable grounds for a belief that the offence has been committed – where the applicant contended that knowledge of the offence necessarily involves knowledge of the identity of the offender – whether the judge erred in holding that a complainant possesses the requisite knowledge for the purposes of s 68 when the complainant knows that the offence has been committed even if the complainant does not then know who committed the offence

Integrated Planning Act 1997 (Qld), s 4.3.1
Vegetation Management Act 1999 (Qld), s 68

Arnold Electrical & Data Installations P/L v Logan Area Group Apprenticeship/Traineeship Scheme Ltd
[2008] QCA 100, cited
Cross Country Realty P/L v Peebles [2007] 2 Qd R 254; [2006] QCA 501, cited
Foxpine Pty Ltd v Collings[2001] QCA 355, cited
Hablelthwaite& Anor v Andrijevic & Ors[2005] QCA 336, cited
House v The King (1936) 55 CLR 499; [1936] HCA 40, cited
Smith v Baldwin; ex parte Smith [1979] Qd R 380, cited
Witheyman v Van Riet & Ors [2007] QDC 342, affirmed
Woods v Beattie; ex parte Beattie [1995] 1 Qd R 343; [1993] QCA 085, cited

COUNSEL:

A J MacSporran SC with D J Lang for the applicant
P J Callaghan SC with P Sheridan for the respondents

SOLICITORS:

Crown…

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AGLC
Witheyman v Van Riet [2008] QCA 168
Case
[2008] QCA 168
Decision Date

CaseChat Overview and Summary

In the case of Witheyman v Van Riet, the applicant, Witheyman, sought to appeal against a decision of the Supreme Court of Queensland, which dismissed their claim against the respondents, Van Riet, for contravening a provision of the Integrated Planning Act 1997 (Qld). The applicant alleged that the respondents had started an assessable development without a development permit, which constituted an offence under the legislation. This alleged offence was committed by the clearing of native vegetation, which the applicant argued was an operational work for the purposes of the relevant section of the Act. The respondents argued that the proceeding was statute-barred under s 68 of the Vegetation Management Act 1999 (Qld), which requires that a proceeding for a vegetation offence must start within one year of the offence coming to the complainant’s knowledge.

The legal issues for the court to decide were whether the trial judge was correct in finding that a complainant possesses the requisite knowledge for the purposes of s 68 when the complainant has such information as to give reasonable grounds for a belief that the offence has been committed and whether the requisite knowledge for the purposes of s 68 necessarily involves knowledge of the identity of the offender. The applicant argued that knowledge of the offence necessarily involves knowledge of the identity of the offender. However, the court held that the requisite knowledge for the purposes of s 68 is not dependent on the complainant knowing the identity of the offender, but rather that the complainant must know that the offence has been committed.

The court dismissed the appeal and held that the trial judge was correct in finding that a complainant possesses the requisite knowledge for the purposes of s 68 when the complainant has such information as to give reasonable grounds for a belief that the offence has been committed. The court found that the requisite knowledge for the purposes of s 68 does not necessarily involve knowledge of the identity of the offender. The court held that the applicant’s proceeding was statute-barred as it was commenced outside the one-year period specified in s 68. The appeal was dismissed, and the applicant was ordered to pay the respondents' costs of the application and the appeal to be assessed on the standard basis.

Orders

Orders of the court

That leave to appeal is granted 1.

That the appeal is dismissed2.

That the applicant is to pay the respondents' costs of the application and the appeal to be assessed on the standard basis3.

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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