Witheyman v. Van Riet & Ors

[2007] QDC 342

DISTRICT COURT OF QUEENSLAND

CITATION:

Witheyman v Van Riet & Ors [2007] QDC 342

PARTIES:

PETER ROBERT WITHEYMAN

Appellant

V

NICHOLAS DANIEL VAN RIET

First respondent

AND

EKARI PARK PTY LTD

Second Respondent

AND

N J CONTRACTING PTY LTD

Third Respondent

FILE NO/S:

Appeal 53/07; Roma Appeal 2/06; MAG-0192264/05 (7)

DIVISION:

PROCEEDING:

Appeal

ORIGINATING COURT:

Magistrates Court, Roma

DELIVERED ON:

21 December 2007

DELIVERED AT:

Brisbane

HEARING DATE:

17 August 2007

JUDGE:

McGill DCJ

ORDER:

Appeal dismissed.

CATCHWORDS:

CRIMINAL LAW – Limitation Period – summary offence – when offence came to complainant’s knowledge – identity of offender not required.

Vegetation Management Act 1999 s 68(3), (4).

Cross Country Realty Pty Ltd v Peebles [2006] QCA 501 – considered.
House v the King (1936) 55 CLR 499 – applied.
Morgans v Director of Public Prosecutions [1999] 2 Cr App R 99 – considered.
Peebles v Cross Country Realty Pty Ltd [2006] QDC 269 – considered.
Power v Heyward [2007] 2 Qd R 69 – followed.
Smith v Baldwin, ex parte Smith [1979] Qd R 380 – applied.
Tesco Stores Ltd v London Borough of Harrow [2003] EWHC 2919 – considered.
William Crosby & Co Pty Ltd v the Commonwealth (1963) 109 CLR 490 – cited.
Woods v Beattie, ex parte Woods [1995] 1 Qd R 343 – applied.

COUNSEL:

A. J. MacSporran SC and D. J. Grealy for the appellant

M. J. Byrne QC and P. D. Sheridan for the respondents

SOLICITORS:

C. W. Lohe, Crown Solicitor for the appellant

Crowley Greenhalgh solicitors for the respondents

1. This is an appeal from a decision of a magistrate at Roma who on 6 June 2006 dismissed complaints by the appellant against the respondents alleging offences under the Integrated Planning Act 1997, and offences under the Land Act 1994. The complaints were dismissed after the magistrate upheld a preliminary objection on the part of the respondents, that the proceeding had not been started within the times limited by the applicable statutes. The magistrate also refused to extend the time set by the applicable statutes, under a power to extend time if the magistrate considered it just and equitable in the circumstances to do so.

1. By notice of appeal filed in the District Court at Roma, the appellant appealed against the whole of the decision in respect of the complaints against the three respondents under the Integrated Planning Act; the notice of appeal made no reference to the proceedings for offences under the Land Act.  All the complaints involved allegations of unlawful clearing of native vegetation, the complaints brought under the Integrated Planning Act relating to alleged clearing on freehold land, while the complaints brought under the Land Act relating to alleged clearing on road reserves.  I was told that the great bulk of the area alleged to have been unlawfully cleared was freehold land, so that the three complaints in respect of which appeals were brought covered most of the alleged offending, and there was a practical difference between the two sets…