Schafer v Bacon[2023] QCA 55

SUPREME COURT OF QUEENSLAND

1. [1]
   BOND JA: I agree with the reasons for judgment of Wilson J and with the orders proposed by her Honour.
2. [2]
   BODDICE AJA: I agree with Wilson J that the applicant did not demonstrate any prejudice in relation to the delivery of an amended outline by the respondent, and that the documentation sought by way of disclosure was not relevant to the applicant’s application. It was for those reasons that I joined in the order refusing her application for an adjournment.
3. [3]
   I also agree with Wilson J that the application for an extension of time within which to appeal should be refused.
4. [4]
   The grounds upon which the applicant seeks leave to appeal reveal no reasonable argument that there was an error in the decision below that needs to be corrected, or that that decision has occasioned a substantial injustice to the applicant.
5. [5]
   The applicant’s assertion of a lack of jurisdiction to hear the complaint is without merit, and the fine imposed fell within a sound exercise of the sentencing discretion.
6. [6]
   Finally, I agree with Wilson J that the applicant should be ordered to pay the respondent’s costs, assessed on the standard basis. Although the application was misconceived, the applicant’s conduct of the proceeding was not of such a nature as to warrant an award of costs on an indemnity basis.
7. [7]
   WILSON J: On 20 January 2021, the applicant, Michelle Schafer, was found guilty in the Rockhampton Magistrates Court of an offence pursuant to section 168(5) of the Planning Act 2016 (Qld) (“Planning Act”).

8. [8]
   The applicant conducted assessable development works by moving two shipping containers and utilities connecting them to a block of land at Ogmore north of Rockhampton and within the boundaries of the Livingstone Shire Council (“the council”) without council approval. An enforcement notice was issued which she failed to comply with.
9. [9]
   The respondent, the then Acting Chief Executive of the council, brought a complaint against the applicant. At the start of her summary trial the applicant was not inclined to enter a plea (or, as she put it, to consent to the proceedings). The applicant challenged the jurisdiction of the local authority to prosecute the complaint and summons against her, being either a subject of the Queen in the UK or a “natural-born subject”. The magistrate then entered a plea of not guilty on the applicant’s behalf and the trial continued. The evidence led in support of her conviction was largely unchallenged, save for repeated objections. Procedural matters were proven by evidentiary certificates.
10. [10]
    The applicant ultimately was found guilty. An enforcement order was made, and she was fined $4,000 with no conviction recorded.
11. [11]
    The applicant subsequently made an application for judicial review of the Magistrate’s decision, which was dismissed by the Supreme Court in Rockhampton on 24 May 2021.
12. [12]
    The applicant then sought to commence proceedings in the District Court at Rockhampton by filing, out of time, a notice of appeal that sought to agitate alleged breaches of the Commonwealth Constitution and the Constitution of Queensland 2001 (Qld) (“Constitution of Queensland”).
13. [13]
    On 18 March 2022, Clarke DCJ refused the application to extend time and the appeal was dismissed.
14. [14]
    The applicant now seeks leave to appeal the District Court decision on nebulous grounds:

“The grounds of my application are – lack of clarification especially when the presumption has been placed on the prosecution,

‘[9]Courts have regularly determined the basic following principles apply: it is for the appellant to demonstrate some legal, factual or discretionary error;’

That phrase needs further clarification as you have placed the presumption on the prosecution to prove their claim.

They have clearly hand balled the burden onto me without having to confront the judicial review of the legislation based on the fact that no evidence was brought forward to clarify their standing under the Commonwealth Constitution.

Cost can only be imposed by consent especially when there has been abreak down in the satisfaction of the presumption.

There has been no satisfaction of the prosecution having jurisdiction over a subject of the Queen and no satisfaction of their jurisdiction to impose a statutory demand when there is no consent and there is no clear established authority to clearly satisfy the requirements as inherited in law. Allowing a Magistrate or judge to just ignore the legal boundaries established by law calls into question the authority of the judiciary to impose a lawful court order.

If the court cannot produce a coram justice order then according to the High Court the order is void.

I would apply to have the matter set aside for want of a coram judice order.”

Application for an adjournment

15. [15]
    The applicant and the respondent both filed written outlines of submissions in the Court of Appeal. The respondent then filed an amended outline of submissions. Consequently, the applicant sought an adjournment on the following basis:

3. 1.
   Failure for the respondent to supply notice discovery and requirements of above matter as per 28^th November 2022 and reminder sent on 31^st of January 2023, which the court has on record.

3. 2.
   As per respondents outline number one the genesis is in error therefore the true genesis of this matter needs to be revealed, so as to allow the court to see the true nature of events.

3. 3.
   The respondent put in an addendum to this matter only days before the hearing date upsetting the rebuttal document just filed, and the time of seeking council. (If you have not adjourned before it should be no problem … but you must apply immediately …)

3. 4.
   register said matter would be listed for hearing on 15^th November 2022, but matter is listed for Application for leave to Appeal at 10.15am”

16. [16]
    The adjournment application was heard on the day of the hearing and was refused. The Court indicated it would provide its reasons for that refusal at a later date. The Court then proceeded to hear the substantive application. The following are my reasons for refusing the adjournment sought.
17. [17]
    The changes to the respondent’s amended outline were limited to two additional sentences about the council’s power to levy rates, where one sentence contained an additional footnote referencing two cases. The applicant has not demonstrated any prejudice in relation to these minor amendments.
18. [18]
    I note that the applicant subsequently provided further material to the Court titled “Rebuttal to respondent’s outline of arguments” which dealt with the additional sentence contained in the respondent’s amended outline.
19. [19]
    The applicant also sought an adjournment on the basis that she was seeking emails and records from the respondent. The applicant received disclosure of the prosecution brief before the Magistrates Court, and has not demonstrated how the material she sought was relevant to her current application.

The applicant requires leave to appeal the District Court decision

20. [20]
    The applicant requires leave to appeal the District Court decision on two bases:

    1. (a)
       pursuant to section 118(3) of the District Court of Queensland Act 1967 (Qld) (“the District Court Act”) an appeal from a judgment of the District Court in its appellate jurisdiction lies only with the leave of that Court; and
    2. (b)
       and the application for leave to appeal was filed late.
21. [21]
    The applicant is clearly familiar with the principles applicable when considering an application for leave to appeal as these were comprehensively set out in Schafer v Commissioner of Police [2019] QCA 292^[1] (which is an unrelated matter involving the applicant).
22. [22]
    In considering whether to grant an extension of time the Court will examine whether there is any good reason shown to account for the delay and consider overall whether it is in the interests of justice to grant the extension. That examination may involve assessment of whether the appeal seems to be a viable one.^[2]
23. [23]
    The applicant’s only explanation for the delay is set out in her application to extend time where she cites “health reasons, advice of which form to use and also other party has other matter before civil court and it has still not been proven this matter is not civil…” The applicant, as in her previous application to the Court of Appeal,^[3] did not file any affidavit material to explain her delay.
24. [24]
    In relation to applications for leave to appeal under section 118(3) of the District Court Act, leave will usually be granted only where an appeal is necessary to correct a substantial injustice to the applicant, and there is a reasonable argument that there is an error to be corrected.^[4]
25. [25]
    The policy reason for adopting such an approach serves the purpose of ensuring that this Court’s time is not taken up with appeals where no identifiable error or injustice can be articulated by those litigants whose arguments have already been fully considered at two judicial hearings.^[5]

Removal to the High Court

26. [26]
    The applicant’s outline applies “for an order for removal plus costs”. Presumably the applicant is seeking for this application to be removed to the High Court of Australia.
27. [27]
    I note that the applicant unsuccessfully (on many occasions) sought leave to file an application for the removal of the District Court appeal to the High Court. On 17 February 2022, Keane J determined that:^[6]

“[3]It does not appear from the material relied upon in support of the application that the other party or parties to the proceedings currently pending in the District Court have consented to the proposed removal. Nor is it apparent from that material how it is said that the interests of the parties or the public interest would be served by the disruption to the ordinary course of litigation that would be involved in removing the cause into this court. Indeed, it is not even apparent from the material that the various assertions made by the applicant bear in any way upon the resolution of the issues in the cause. The application for removal is fatally deficient. That being so, s 40(4) of the Judiciary Act would preclude the making of an order for removal.

[4]In these circumstances, it would be futile to grant leave to issue or file the application for removal. Accordingly, leave to issue or file the application for removal is refused.”

28. [28]
    This Court cannot make any order for the removal of this application to the High Court. Pursuant to section 40 of the Judiciary Act 1903 (Cth), the removal can only be made on application to the High Court.^[7]

The Commonwealth Constitution and the Constitution of Queensland

29. [29]
    The applicant’s written submissions pose rhetorical questions directed at perceived issues the applicant has with the State of Queensland, Queensland Courts, and the power of the Council. Similar questions were raised in the District Court and dealt with in this way by Clarke DCJ:^[8]

“[15]Ms Schafer has failed to demonstrate there is any relevance between the provisions of the Australian Constitution and the Queensland Constitution and the case under review. The appellant seems to have simply randomly picked some provisions of the Australian Constitution and the Queensland Constitution which have absolutely nothing to do with this case. Above a mere assertion that the appeal should again be removed from the District Court of Queensland and uplifted to the High Court of Australia, there is nothing to confirm the case involves a matter which arises under the purview of the Australian Constitution, as it must do so to enliven the operation of those provisions. No doubt, that informs the many rejected applications to the High Court of Australia in this matter already.

[16]Also, as counsel for the respondent otherwise correctly points out:

3. (i)
   The Magistrate considered and property rejected the jurisdictional issue, which is confirmed by legislation;

3. (ii)
   The Queensland Parliament is constitutional;

3. (iii)
   No conflict arises – Australian Constitution s 109 has no operation;

3. (iv)
   The role of the Governor or Governor-General is irrelevant; and

3. (v)
   The Court is required to take judicial notice of legislation.”

(citations omitted)

30. [30]
    The applicant’s submissions do not in any way acknowledge or address these matters, apart from some extractions of commentary accompanied by rhetorical questions and assertions without a basis. Consequently her submissions, like her grounds of appeal, are meandering with a lack of any particularity:

“Part II:

3. 1.
   Magistrate court Quoting magistrate “Well, I’ve determined that issue about jurisdiction. I don’t have a problem with the jurisdictionally of Queensland Courts. I don’t have a problem with the legislation, whether it is valid or not. The court needs to confront clause 5 of the Commonwealth Constitution.

3. 2.
   Supreme court : Queensland Parliament consistent with every other state and the federal Parliament?

3. 3.
   Does section 109 of the Constitution apply due to the obvious inconsistency?

3. 4.
   Can a single house of a State Parliament alter the State constitution?

3. 5.
   Is there an obligation in the Commonwealth Constitution and the Queensland Constitution to have the head of State being the Governor, appointed by the Queen of the United Kingdom through letter patent and where is the evidence of those letters patent authorised by Queen Elizabeht II?

3. 6.
   If the electors of Queensland approve the abolition or alteration of the office of Governor before assent where did the Parliament receive the authorisation to abolish the upper house in the light of the 1917 referendum results pertaining to the standing of the upper house of the Parliament of Queensland?

Fee Simple

The greatest possible estate in land, wherein the owner has the right to use it, exclusively possess it, commit waste upon it, dispose of it by deed or will, and take its fruits. A fee simple represents absolute ownership of land, and therefore the owner may do whatever he or she chooses with the land. If an owner of a fee simple dies intestate, the land will descend to the heirs.

The term fee used independently is an adequate designation of this type of estate in land. The term simple is added to distinguish clearly this estate from other interests in real property.

West’s Encyclopedia of American Law, edition 2. Copyright 2008 The Gale Group Inc. All rights reserved.

How is the council capable of imposing a fee against the land consistent with section 20 of the Property Law Act 1974 Queensland?

There is no mention in the Local Government Act 2009 to the obligation to a proprietor of land held in Fee Simple to a Rates Notice or enforcement notice.

Sir Harry Gibbs ex chief justice of the high court has said the current system has no basis in law, his advice is the courts should adjourn a case sine die that challenges the letters patent which obvious I am, and the court should not hear a case it’s the politicians that should answer for this.

Does this court have the jurisdiction to hear a case that challenges the legislation?

The Constitutional commission reports 1988 clearly shows that the commonwealth law have been made without proper due process as per citizenship (bill number 7) local governments (bill number16) and oaths (bill number 1 and 2) plus bill of rights 1688

Part III:

3. 1.
   The Livingstone council has fail to provide jurisdiction over a natural born subject of the Queen

3. 2.
   The Council has failed to provide any evidence that the Notice is consistent with A Grant in Fee Simple and is consistent with the power of a Council being a Department of a properly created State under clause 5 of the Commonwealth Constitution Act 1900 UK, to impose a tax.

3. 3.
   The Premier in Cabinet does not have the Constitutional power to take over the roll of Governor appointed by letters patent.

3. 4.
   There is no Constitutional permission to allow the Governor of the State of Queensland to be a Public Servant within the office of the Premiere in Cabinet

3. 5.
   The Queensland Constitution 1867 in its current format is not consistent with section 106 of the Commonwealth Constitution

3. 6.
   How can a local government act be made in a state, when the Commonwealth Constitution Act 1900(UK) section 107 has not allowed environment to be a residual power?

Failure to provide evidence of jurisdiction when a Coram Judice order was sought consistent with the High Court judgement of Dixon in Parisene Basket Shoes Pty Ltd v Whyte 1938.

Part V:

They have failed to try any mediation, threats to sell property and enforcement of NAB to pay. Making an example of someone on a DSP

Making someone pay a fine in excess, especially for and a drug rape victim. Whereas the perpetrator of such is renting a shed out for the local council worker to live, hypocrisy to the maximum”

31. [31]
    The applicant also filed a document titled “Challenge to the authority of the Livingstone Municipal Council which is a cartel under the COMPETITION AND CONSUMER ACT 210 SECT 2BA PART 1V Division 1”. This document, whilst in an affidavit form, is in the same vein as her written submission and contains more of the applicant’s arguments about the Commonwealth Constitution and the Constitution of Queensland.
32. [32]
    Nothing that the applicant has raised (in whatever form) demonstrates that:

    1. (a)
       there is a reasonable argument that there is an error to be corrected; or
    2. (b)
       there is a substantial injustice to the applicant in refusing leave.
33. [33]
    The applicant’s submissions are not supported by any authority, and the applicant in her oral submissions urges this court not to follow the doctrine of precedent:

“It shouldn’t be just taken as gospel, everything should be taken on board, but I think the foundation of science or the foundation of law should take precedent over different cases and the court should be able to look outside the box and test and see if this is proper.”

34. [34]
    However, the doctrine of precedent underpins the proper exercise of the judicial power:^[9]

“… No Justice is entitled to ignore the decisions and reasoning of his predecessors, and to arrive at his own judgment as though the pages of the law reports were blank, or as though the authority of a decision did not survive beyond the rising of the Court.”

35. [35]
    The Queensland Parliament is empowered to make “laws for the peace welfare and good government” of the State as provided by section 8 of theConstitution of Queensland, section 2 of the Constitution Act 1867 (Qld) and in accordance with section 107 of the Commonwealth Constitution. As stated in Barton v Beattie & Ors [2010] QCA 100, the Queensland Parliament’s legislative power undoubtedly comprehended legislation which amended existing State legislation concerning the system of local government.^[10]
36. [36]
    The Constitution of Queensland requires there to be a system of local government in Queensland.^[11] The council is a local government duly constituted under the Local Government Act 2009 (Qld) (“the LGA”). The LGA and the Planning Act are Acts of the Queensland Parliament of which the Court is required to take judicial notice.^[12]

37. [37]
    Any notion that the grant of an estate in fee simple somehow precludes the exercise of legislative power in respect of the land was comprehensively rejected in Bone v Mothershaw [2002] QCA 120 and Burns v State of Queensland & Anor [2006] QCA 235.^[13]

38. [38]
    The applicant asserts a failure to “prove” jurisdiction and “cites” Parisienne Basket Shoes Pty Ltd v Whyte (1938) 59 CLR 369 (“Parisienne Basket Shoes”) per Dixon J (as he then was). However, Parisienne Basket Shoes was a case which addressed aquestion of whether there was a lack of jurisdiction to decide a matter due to a statutory limitation period. The statement apparently referred to by the applicant is as follows:^[14]

“Where there is a disregard of or failure to observe the conditions, whether procedural or otherwise, which attend the exercise of jurisdiction or govern the determination to be made, the judgment or order may be set aside and avoided by proceedings by way of error, certiorari, or appeal. But, if there be want of jurisdiction, then the matter is coram non judice. It is as if there were no judge and the proceedings are as nothing. They are void, not voidable.”

39. [39]
    It appears that the applicant’s argument is that, in the absence of the respondent “proving” jurisdiction, there was no jurisdiction to hear the complaint. Such a position is baseless as:

    1. (a)
       the jurisdiction of the Courts of Queensland is not a matter of fact to be proven by evidence; and
    2. (b)
       the applicant did not dispute matters establishing that jurisdiction, being that she:

    1. (i)
       is and was resident in Queensland;
    2. (ii)
       owns property in Queensland; and
    3. (iii)
       resided within the local government area of the Council.
40. [40]
    The applicant raises section 109 of the Commonwealth Constitution in relation to the obligation to pay rates imposed by local governments. However, any issue about the power of the council to levy rates is irrelevant to this application which concerns the applicant breaching an enforcement notice issued by the council.^[15]
41. [41]
    Finally, in relation to penalty, in the applicant’s written submissions she raises her impecuniosity and seems to state that the $4,000 fine was excessive. Prior to these submissions, the applicant has never raised any issue with the penalty imposed by the Magistrate, not in her appeal to the District Court, nor in her application for leave to appeal the District Court decision.
42. [42]
    In imposing a fine of $4,000, the Magistrate took into account that the applicant had no criminal history, that the maximum penalty was 4500 penalty units,^[16] and that the applicant was a disability pensioner receiving approximately $900 per fortnight and that the fine and costs order would be a financial detriment.
43. [43]
    In all of the circumstances, the applicant has not demonstrated that her sentence was manifestly excessive.
44. [44]
    The proposed appeal lacks any prospect of success, and it is not in the interests of justice to grant an extension of time. Accordingly, I would dismiss the application for leave to appeal with costs.
45. [45]
    I note that the respondent seeks its costs on an indemnity basis because they characterise the applicant’s arguments as vexatious with no prospects of success. In my view, this is not a matter that warrants an award of indemnity costs. However, there is no reason that costs of the appeal should not follow the event.
46. [46]
    The application for an extension of time within which to appeal should be refused and the applicant should pay the respondent’s costs on the standard basis.