Millmerran Shire Council v Smith
[2009] QCA 103
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- Unreported Judgment
- Appeal Determined (QCA)
- Millmerran Shire Council v Smith[2009] QCA 103
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Millmerran Shire Council v Smith[2009] QCA 103
Millmerran Shire Council v Smith[2009] QCA 103
SUPREME COURT OF QUEENSLAND
PARTIES: | |
FILE NO/S: | |
Court of Appeal | |
PROCEEDING: | Miscellaneous Application – Civil |
ORIGINATING COURT: | |
DELIVERED ON: | 24 April 2009 |
DELIVERED AT: | Brisbane |
HEARING DATE: | 20 April 2009 |
JUDGES: | Keane, Fraser and Chesterman JJA |
ORDER: |
|
CATCHWORDS: | APPEAL AND NEW TRIAL – APPEAL - PRACTICE AND PROCEDURE – QUEENSLAND – WHEN APPEAL LIES – BY LEAVE OF COURT – GENERALLY – where applicant sought leave to appeal against enforcement orders with respect to building permits under Integrated Planning Act 1997 (Qld) – where applicant did not dispute carrying out of building work without necessary building permits – where applicant claimed proceedings for enforcement orders statute barred – where applicant claimed independent state – where applicant claimed deed of grant – where applicant claimed discrimination on religious grounds – whether leave to appeal should be granted Integrated Planning Act 1997 (Qld), s 4.1.56, s 4.3.20,s 4.3.22, s 4.3.25, s 4.4.1, s 4.4.2 Bone v Mothershaw [2003] 2 Qd R 600; [2002] QCA 120, applied |
COUNSEL: | The applicant appeared on his own behalf |
SOLICITORS: | The applicant appeared on his own behalf |
[1] KEANE JA: On 14 October 2008 Judge Wilson QC of the Planning and Environment Court ("the P & E Court") made orders against the applicant which obliged him to apply to the respondent Council for the necessary development permits for structures on his land at Millmerran which had been built without the necessary permits under the Integrated Planning Act 1997 (Qld) ("the IPA"). These orders were made as enforcement orders under s 4.3.22 of the IPA.
[2] On 9 December 2008 his Honour ordered the applicant to pay the respondent Council's costs of the proceedings after 27 May 2008, assessed on the indemnity basis.
[3] The applicant seeks leave to appeal against these orders pursuant to s 4.1.56 of the IPA.
[4] The applicant represents himself in these proceedings, as he represented himself in the P & E Court. It is not easy to understand the arguments he advances. The learned primary judge helpfully summarised the bases on which the applicant had sought to resist the orders which were made against him on 14 October 2008. It is convenient to refer to his Honour's summary:[1]
"… First, he contends that because the property upon which the buildings were constructed has freehold title, that title makes it immune from the operation of IPA. The argument was advanced on appeal to the District Court, and rejected. It has also been the subject of unequivocal adverse decisions from the Court of Appeal (Bone v Mothershaw [2003] 2 Qd R 600; Burns v State of Queensland & Croton [2007] QCA 235).
The second is that the land comprises an independent sovereign state, which also attracts immunity. That question was decided against Mr Smith by this court in the first proceedings in 2003, and the Court of Appeal found it no apparent error in that aspect of the primary decision. It was also raised in the first prosecution in the Magistrates’ Court and, again, decided against the respondent. Finally, it has been comprehensively rejected by the Court of Appeal in other, unrelated proceedings (Cameron v Beattie [2001] QCA 392).
The third argument relies upon s 106 of the Australian Constitution and a claimed immunity from regulatory laws and in particular IPA by virtue of the respondent’s religious beliefs or practices. It, again, was rejected at first instance in this court (without demur from the Court of Appeal on that issue) and by the magistrate in the first prosecution.
During his oral submissions Mr Smith did raise further arguments – that the relief sought by Council involved discrimination on the basis of religion and offended the Queensland Anti-Discrimination Act 1991 and similar Commonwealth legislation. There is, however, simply no evidence that these proceedings either now, or in the past, have involved conduct referrable to some matter involving religion, or that Council is treating Mr Smith any differently from anybody else by reason of his religious beliefs. Mr Smith also referred to the Bible, and a number of other pieces of legislation (The Queensland Constitution, Sale of Goods Act [1896], C’wealth Trade Practices Act (1974), The Australian Constitution, Local Government Act (1993), Land Act [1994], Property Law Act [1974], Justices Act [1886]; and, The Bill of Rights (1689) and Magna Carta) and judgments. None – intending no disrespect – have any discernable relevance or give rise to a sustainable basis for resisting Council’s application."
[5] It will be seen that the arguments advanced by the applicant below did not dispute that he had carried out building work by way of an extension to an existing dwelling and by building a second dwelling on his land. Nor did he dispute that he had not applied for the necessary building permits for that work.
[6] In support of his application for leave to appeal, the applicant seeks now to rely upon the arguments advanced below as well as upon the further arguments that:
(a) s 4.3.22 of the IPA did not authorise the making of enforcement orders because a previous prosecution of the applicant by the respondent under s 4.3.20(5) of the IPA had failed,
(b) the proceedings for the enforcement orders were time-barred by s 4.4.2 of the IPA.
[7] As to these new arguments, it is clear from s 4.3.25(2) of the IPA that it was open to the P & E Court to make the enforcement orders whether or not an unsuccessful prosecution had previously been brought. Section 4.3.25 of the IPA provides:
"4.3.25Making enforcement order
(1) The court may make an enforcement order if the court is satisfied the offence–
(a) has been committed; or
(b) will be committed unless restrained.
(2) If the court is satisfied the offence has been committed, the court may make an enforcement order whether or not there has been a prosecution for the offence under division 4."
[8] It is also clear that s 4.4.2 of the IPA applies only to prosecutions brought under the Justices Act 1886 (Qld) as proceedings for an offence under s 4.4.1 of the IPA. Sections 4.4.1 and 4.4.2 of the IPA provide:
"4.4.1 Proceedings for offences
A proceeding for an offence against this Act may be instituted in a summary way under the Justices Act 1886.
4.4.2 Limitation on time for starting proceedings
A proceeding for an offence against this Act must start–
(a) within 1 year after the commission of the offence; or
(b) within 6 months after the offence comes to the complainant’s knowledge."
[9] Section 4.4.2 of the IPA has no application to the proceedings instituted by the Council in this case. A proceeding under s 4.3.22 of the IPA is not a proceeding for an offence under s 4.4.1 and s 4.4.2 of the IPA.
[10] The applicant's other arguments were referred to by the learned primary judge, and were rightly rejected by his Honour. The "independent state" argument is legal nonsense. It was rejected as such by this Court in Cameron v Peter D Beattie (in his capacity as Premier) & Ors.[2] The "Deed of Grant" argument is also legal nonsense, which was rejected as such in Bone v Mothershaw[3] and Burns v State of Queensland & Croton.[4] There is no occasion for this Court to reconsider these earlier decisions which gave the quietus to these legal fantasies.
[11] As to the argument founded on the notion that the applicant has been discriminated against because of his religious beliefs, there was no evidence before the P & E Court or this Court that the applicant has suffered any such discrimination. There is no evidence which suggests that it is a tenet of the applicant's religion that its adherents are not obliged to comply with laws of the land. Like any other subject, Mr Smith is obliged to "render to Caesar the things that are Caesar's".[5] In any event, there can be no suggestion that the provisions of the IPA purport to single out the applicant or his religion for adverse treatment.
[12] In summary, the applicant has advanced no argument which is attended with sufficient prospects of success to warrant the grant of leave to appeal.
Conclusions and orders
[13] Because the application raises no argument of any merit, the application for leave to appeal should be refused. The pursuit of the application was quite unreasonable. The order for the disposition of the costs of the application should reflect that conclusion.
[14] In my opinion the application for leave to appeal should be refused.
[15] In my opinion the applicant should be ordered to pay the respondent's costs of and incidental to the application to be assessed on the indemnity basis.
[16] FRASER JA: I agree with the orders proposed by Keane JA and his Honour's reasons for those orders.
[17] CHESTERMAN JA: I agree with the orders proposed by Keane JA for the reasons given by his Honour.