Watts v Ellis[2007] QCA 234

SUPREME COURT OF QUEENSLAND

WILLIAMS JA:  I will ask Jerrard J to deliver his reasons first.

JERRARD JA:  This matter was an application for an extension of time within which to appeal from a decision given by a District Court on the 7th of March 2006 in its appellate jurisdiction dismissing an appeal from a judgment in the Magistrates Court at Bowen given on 27th October 2005.

The applicant, Mr Watts, did not appear either in person or by any representative on the hearing of this application set for hearing today.  In the judgment in the Magistrates Court in October 2005 the learned Magistrate found Mr Watts guilty of committing two offences against s 814(1) of the Water Act 2000 (Qld).

Those were offences of excavating in a watercourse and of destroying the vegetation of a watercourse without a permit under s 269 of that Act.  Mr Watts was fined and he was ordered to pay costs of Court.  He appealed to the District Court but that appeal was dismissed and now he asks for an extension of time of almost one year within which to seek leave to appeal against that dismissal.

Mr Watts did not defend the proceedings in the Magistrates Court on the ground that he had not done, as was alleged against him, and or is it suggested in any argument advanced orally or in writing on his behalf that he had any lawful excuse under the relevant legislation of this State or elsewhere for doing as was contended against him.

Rather the argument that was put on his behalf and put by his agent, a Mr Walter, was that the State of Queensland could not enact legislation restricting the rights of the holder of a grazing homestead freehold lease granted under the Land Act 1962 (Qld) to interfere with a watercourse or vegetation as that landholder pleased subject only to any reservations in the original lease.

I should mention at this point that Mr Watts was not the actual leaseholder but his parents were and he managed the rural property which was the subject of the lease.  The Magistrate noted in the Magistrate's reasons for judgment that the lease upon which Mr Walter had made submissions and which was an exhibit before the Magistrate was subjected to a condition which was in these terms and I quote:

"This lease is conditional upon such other reservations or conditions as may be contained in and declared by the laws of the State."

Mr Walter argued to the Magistrate that that condition was irrelevant to the merits of his argument and further that the rights of the leaseholder could not be affected by any later legislation by the Queensland Parliament.

Similar arguments have been presented to Queensland Courts in the past principally about land held in fee simple and about which the argument has been that such land held pursuant to a deed of grant issued by the Governor-in-Council of Queensland was alienated from any control by the State of Queensland or by any local laws of a local Government other than any reservations which were expressed in the actual deed of grant.

Arguments to that effect were rejected by this Court in the decision in Bone v Mothershaw [2003] 2 Qd R 600 and, in particular, in the passages in the judgment of McPherson JA at pages 609 and 610.  The High Court refused special leave to appeal from that decision on the 25th of June 2003.  Despite that fact, an argument, on the same basis, regarding an estate in fee simple was represented to Jones J in the Supreme Court in Cairns in the matter of Dore & Others v Penny [2006] QSC 125 on the 3rd of February 2006 and rejected by his Honour in a judgment delivered on 5th May 2006.

That matter had concerned the Integrated Planning Act 1997 (Qld) and the argument before Jones J followed that rejected in Bone v Mothershaw being an argument that the grant was a contract between the landowner and the sovereign giving the land to the landowner free of any restrictions on its use which were not contained in the deed of grant.

In the meantime, and before that decision by Jones J, Mr Walter had appeared in person to advance the contention in the Bowen District Court in this very matter on the 3rd of March 2006 about land held by lease.  That was rejected in a judgment delivered by the Judge, the one subject to this application, on the 7th of March 2006.

Mr Walter then assisted a different applicant to present essentially the same argument in a decision titled Burns v The State of Queensland & Croton [2006] QCA 235 on a hearing on the 1st of June 2006 in which judgment was delivered on the 23rd of June 2006.

That matter also concerned the Integrated Planning Act 1997 and the Vegetation Management Act 1999 (Qld) and once again Mr Walter in the written submissions prepared for that applicant invited this Court to reconsider and reverse the decision in Bone v Mothershaw.

Once again he was unsuccessful and an argument in similar terms in writing failed in this Court in Wilson v Raddatz [2006] QCA 392, which also involved the same legislation.  I observed that the appeal records show that Mr Walter also prepared the submissions in a matter of Glasgow v Hall [2007] QCA 90 and a judgment delivered on the 2nd of February 2007.

That matter too concerned the Integrated Planning Act and the Vegetation Management Act and once again the written argument was to the effect of Bone v Mothershaw should be reversed. There was no argument presented to either the Magistrate or the learned District Court Judge in this matter suggesting that the prosecution case failed on the facts in any way against Mr Watts.  Since that is so, it follows that no grounds exist for considering that Mr Watts has any prospect of success on an appeal if he should be given leave.

No explanation has really been given at all for the delay in bringing what would be a pointless appeal.  Hearing the appeal would simply allow the repetition of arguments presented to different Courts both orally and in writing in this State by Mr Walter even thought those have been authoritatively rejected.

Courts hearing future applications to have either Mr Walter or anyone else appear as an unqualified representative on behalf of others where the object is to allow for arguments of that sort to be repeated will undoubtedly consider whether any such leave should be granted and whether it should be subject to conditions about costs.

For my part, I will dismiss the application for an extension of time within which to appeal.

WILLIAMS JA:  When this application for leave to extend time was called on for hearing there was no appearance by or on behalf of the applicant.  Today the Registry received from a David Walter a document headed "Outline of Argument on behalf of the Applicant" and it is clear from the covering letter that the applicant was aware of the hearing being listed for today.

In those circumstances, it was determined that the Court should deal with the application on the merits.  The argument for the applicant that he was not bound by relevant Queensland legislation is entirely without substance.  Other issues raised in the written submission lodged on behalf of the applicant must be rejected as irrational and totally without merit.

I agree with all that has been said by Jerrard JA.  The application for an extension of time to appeal should be dismissed with costs.

MULLINS J:  I also agree.

WILLIAMS JA:  Well, the order of the Court is that the application for extension of time to appeal is dismissed with costs.