Conquest v Bundaberg Regional Council
[2014] QDC 166
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- Unreported Judgment
- Appeal Determined (QCA)
- Conquest v Bundaberg Regional Council[2014] QDC 166
- Add to List
Conquest v Bundaberg Regional Council[2014] QDC 166
Conquest v Bundaberg Regional Council[2014] QDC 166
DISTRICT COURT OF QUEENSLAND
CITATION: | Conquest v Bundaberg Regional Council; Conquest v Bundaberg Regional Council [2014] QDC 166 |
PARTIES: | Matter 48/12 ROBERT JOHN CONQUEST (appellant) v BUNDABERG REGIONAL COUNCIL (respondent) Matter 49/12 ANN CONQUEST (appellant) v BUNDABERG REGIONAL COUNCIL (respondent) |
FILE NO/S: | 48/12 and 49/12 |
DIVISION: | Appellate |
PROCEEDING: | Appeal |
ORIGINATING COURT: | Maroochydore Magistrates Court |
DELIVERED ON: | 8th August 2014 |
DELIVERED AT: | Brisbane |
HEARING DATE: | 28th April and 6th May and written submissions |
JUDGE: | Robertson DCJ |
ORDER: | Appeal dismissed |
CATCHWORDS: | APPEALS: appeal against conviction, sentence, and reparation order; where appellants had caused works to be undertaken on their land at Inness Park via Bundaberg which involved excavating and filling in excess of 50m3 and construction of revetment and retaining walls and access road without any approvals; where respondent issued a Show Cause Notice and appellants responded; where Council issued an Enforcement Notice which was not complied with; whether Enforcement Notice was valid; whether prosecution had proved that the works were not “building work” as defined by the IPA DEVELOPMENT OFFENCES: where only issued ventilated on appeal was whether the works were not building work; whether the learned Magistrate applied the correct “test”; whether subjective intention of appellants in relation to the purpose for the works was relevant to the only live issue on appeal where his Honour had made adverse findings of credit against the appellants. WORDS AND PHRASES: “building work” and “operational works”; whether principles developed in cases decided in merits appeals and other forms of civil proceedings are relevant to the proper approach to the prosecution of a criminal offence |
COUNSEL: | Mr M Black for the appellants Mr M Williamson for the respondent |
SOLICITORS: | Payne Butler Lang for the appellants Connor O'Meara for the respondent |
- [1]Both appellants were convicted in the Maroochydore Magistrates Court on 5 October 2012 of one count each of contravening s 4.3.15(1) of the Integrated Planning Act 1997 (“IPA”) in that he/she failed to comply with an enforcement notice dated 14 May 2008 issued by the Bundaberg Regional Council pursuant to s 4.3.11 of the IPA in relation to land situated at Logan Road, Innes Park in the State of Queensland, more particularly described as Lot 2 on RP893359, County Cook, Parish Barolin.
- [2]Both appellants were convicted after a trial before Acting Magistrate P Buetel. The trial proceeded over a number of days. From 10 to 11 October 2011 the appellants were represented by Mr Barr of Counsel. On 4 November 2011 and from 22 to 23 December 2012 the appellants represented themselves, or at least the female appellant appeared to take the lead in representing both appellants. I was informed that the parties were the owners of the land as joint tenants but had divorced in 2006. His Honour, not surprisingly, adjourned to consider his judgment which he delivered on 5 October 2012. The judgment covers 75 pages of transcript.
- [3]He convicted each of the defendants, fined them each $20,000, ordered them to pay the respondent’s costs fixed in the sum of $20,000 and made a remediation order under the IPA requiring the appellants to remove all filling and reinstate all excavations in relation to the land.
- [4]The notices of appeal filed 5 November contained four grounds of appeal. This expanded in an outline filed on 7 December 2012, and in a certificate of readiness filed on 24 October 2013, eight issues were identified. Myriad outlines and replies have been filed and responses made by Mr Williamson on behalf of the respondent.
- [5]That was the position until 29 January 2014 when the appellants filed a further outline of argument signed by Mr Northcote of counsel which purported to confine the grounds of appeal to only one. I assume that Council did not regard this submission as unequivocally abandoning all other grounds, so on 9 April 2014 new Counsel on behalf of the appellants, Mr Black, filed a short further outline confirming that his client would rely upon only one ground, and that is that his Honour erred in finding that the works were not for or incidental to building work and that the works were operational works.
- [6]This is a reference to definitions contained in s 1.3.5 of the now repealed IPA. Relevantly the definitions for consideration are as follows:
“1.3.5Definitions for terms used in development
- (1)In this Act—
building work—
1Building work means—
- (a)building, repairing, altering, underpinning (whether by vertical or lateral support), moving or demolishing a building or other structure; or
…
- (c)excavating or filling—
- (i)for, or incidental to, the activities mentioned in paragraph (a); or
…
- (d)supporting (whether vertically or laterally) land for activities mentioned in paragraph (a).
…
operational work—
1Operational work means—
…
- (c)excavating or filling that materially affects premises or their use;
…
2Operational work does not include—
- (a)…
- (i)building work …”
- [7]There is really no challenge now to the substantial and comprehensive findings of fact made by his Honour except to the extent that Mr Black asserts that his Honour overlooked relevant facts.
- [8]In essence, as Mr Williamson submits, the appellants’ complaint properly characterised is that his Honour erred in applying these definitional provisions to the facts found by him, rather than an error of law in interpreting these provisions.
- [9]The parties agree that, with one exception, the description of the works undertaken by the appellants prior to the issue of the enforcement notice on or about 14 May 2008, is as set out in paragraph 3 of Mr Williamson’s outline filed 13 February 2013:
“3.The works observed by Council officers on the subject land included the construction of a tiered sea revetment wall, stockpiling of fill behind the revetment wall, excavation of a dam, construction of a manoeuvring area and access road, construction of a pad area and a stock pile of soil. The volume of fill material on the subject land was calculated to be in the order of 730m3.”
- [10]The dispute relates only to the use of the word “sea” which can be ignored for the purpose of considering the argument. To prove the charge the respondent had to establish beyond reasonable doubt that the works described above were not “building work”. This remains the only live issue on the appeal.
- [11]A significant focus of the defence case (presented at a time when the appellants were not legally represented) was on casting doubt on Council’s allegation that the works did not constitute building work.
The law
- [12]The appeal is by way of rehearing on the evidence before the Magistrate. It is necessary for me to conduct a real review of the evidence before his Honour, and make my own determination of relevant facts in issue; giving due deference and attaching due weight to his Honour’s view. This is of particular importance in a case like this that proceeded over such a lengthy period, and which required his Honour to carefully assess the reliability and truthfulness of witnesses and reach conclusions about issues of facts. To succeed, the appellants must establish some legal, factual or discretionary error. In light of the express abandonment of all grounds except the one set out above, the review will concentrate on that ground.
A preliminary matter
- [13]As this appeal was listed for my first day on circuit in Brisbane, I had had no chance to see the file. When I did the transcript and exhibits were not with the file, so when the hearing proceeded I was unfamiliar with the matter except to the extent that issues were revealed in the various outlines. After the hearing, I was able to read his Honours’ reasons, and I determined to give the parties a further opportunity to make submissions on the nature of the prosecution case presented below in relation to the central issue. In effect my query was whether the prosecution case below was largely based on circumstantial evidence. Mr Williamson provided a written response, and the matter was mentioned briefly and both Mr Williamson and Mr Black appeared. Mr Black does not assert error on this basis and does not seek to add another ground. For that reason I will proceed on the basis that his Honour did not err in proceeding on the basis that for the respondent to succeed (on the only live issue on appeal), it had to prove a negative beyond reasonable doubt. As Mr Williamson helpfully noted in his written outline there was one particularly relevant piece of direct evidence to which reference will be made later.
The evidence below (in relation to the sole ground of appeal)
- [14]The prosecution case involved evidence from a number of Council officers who visited the site prior to the issue of the enforcement notice, some of whom had had contact and conversations with the female appellant at the site and/or at Council offices. Mr McIntosh, a compliance officer, gave evidence that a check of Council records revealed that there were no relevant approvals previously obtained in relation to the land. He also clarified that if a private certifier was engaged (as the female appellant alleged), the certifier was required to also notify the Council of the commencement of the building certification. No such notification had been received. He first visited the site on 20 March 2008 in the company of Mr Jenner, a Senior Town Planner employed by Council. Another Council officer was also present. At that time, the female appellant was on site, and Mr Jenner engaged in a discussion with her. He prepared the show cause notice on 26 March 2008 which became Exhibit 5. The female appellant responded on behalf of both defendants and that response ultimately became Exhibit 10.
- [15]Mr McIntosh gave evidence of a site inspection on 18 April 2008 with Mr Jenner, reviewing the response to the show cause notice, which led to a recommendation that the respondent issue an enforcement notice. He also viewed a development application for operational works made by both appellants under the hand of a Mr Mackay, a town planner of Urban Planet Town Planning Consultants, on 11 June 2008. I will refer to this evidence later. His Honour was entitled to infer, as he did, that at that point in time both Mr Mackay and the appellants were, as it were, accepting that the works were operational works which required Code assessment and not self-assessable building work. The Council refused the development application and the decision notice dated 7 April 2009 became Exhibit 15. The reasons for refusal are no longer relevant. The appellants were advised of their right to appeal to the Planning & Environment Court of Queensland against the decision which they did not do.
- [16]As with all Council witnesses, his Honour formed a favourable view of Mr McIntosh’s reliability, and that is not challenged in any way. Significantly, as his Honour’s later findings reveal, he did not accept that certain things were said by the female appellant in Mr McIntosh’s presence.
- [17]Mr Jensen, a cadastral surveyor with Sommerfield Jensen Campbell Pty Ltd, gave evidence of undertaking a survey of the land and it is on the basis of his evidence that the volume of the fill was estimated, which is now not challenged.
- [18]I have already referred to Mr Jensen, the town planner who gave evidence in the proceeding. He did accept that he told the female appellant that if a retaining wall did not exceed 1m and fill not more than 50m3 an operational works permit was not required. His Honour did not accept “despite some reservations about the evidence of this witness” that he told the female defendant to continue with the work, or that the works proposed were not operational works.
- [19]Mr Jensen produced Exhibit 29, which Mr Williamson handed up to me during the appeal. It helpfully shows the extent of the works superimposed and colour-coded on an old survey plan prepared apparently at the request of the appellants. This evidence, which is not challenged, is of some significance to which I will later refer.
- [20]Another Council officer gave evidence, a Mr Fulton. He confirmed from a diary note that he had met the female appellant at the Bargara office of the respondent on 13 May 2008. He did not accept that he told the female appellant that an enforcement notice would not issue and he said that at no time did he tell her that the works were self-assessable. This evidence was accepted by his Honour and, as I will refer to later, the female appellant’s evidence to the contrary was rejected.
- [21]As I have noted by the time the hearing resumed on 4 November 2011 the appellants were unrepresented. The prosecution case was closed. Mr Connor, a solicitor of Connor O'Meara, appeared on behalf of the respondent throughout the lower court proceedings.
- [22]The female appellant gave evidence and Exhibits 42 to 44 were tendered through her. She was given very significant latitude by his Honour, who treated her courteously and with great fairness. No complaint is made to the contrary.
- [23]In his reasons commencing on p 22, his Honour carefully analysed the documents which the appellants relied upon to show their (and in particular her) subjective intention at the time the works were undertaken. As his Honour noted, attachment 2 to Exhibit 4 suggested a much grander vision held by the appellants for building on the land and not necessarily in the pad area marked in Exhibit 29. None of the authors of these documents were called, so as his Honour observed, the documents were evidence relating to her subjective intention and not evidence of the truth of the contents. As he noted no drawings prepared by the architect referred to in attachment 2 were tendered. Exhibit 43 was described as a chronology of building plans, and again his Honour in his judgment undertook a careful and detailed analysis of this exhibit upon which the appellants heavily relied.
- [24]His Honour referred to a number of specific matters that are relevant to the issue before me. Firstly, in the chronology, it is alleged that in October 2007 the female appellant engaged building designer KRed Building Design of Bundaberg to complete the design of the house to be positioned at or near the pad area in Exhibit 29. Those building plans were tendered as Exhibit 42 but no-one from KRed was called to confirm the female appellant’s evidence. Also, item 15 asserts that in November 2007 a building application was filed with Darryl O'Brien of the private certifying company Certcon, Bundaberg. As his Honour noted, there is no actual evidence of any detail of the building application that was said to be filed with Certcon in November 2007, some four months prior to the copy of the plans being given to Certcon (a reference to item 24 in Exhibit 43). As his Honour noted “there is no evidence or any details of, any quotes or estimates by Certcon as to the cost or proposed cost of their certification fee or associated costs”. As his Honour noted earlier there was no record in the records of the respondent of the appointment of the private certifier.
- [25]In cross-examination, the female appellant acknowledged that she did not have a copy of any development application lodged with Certcon the private certifier.. His Honour concluded at p 32:
“The established fact that the Council had not been notified of the actual engagement of Certcon by (the appellants) would tend to indicate that Certcon had not been formerly engaged by (them) and the discussions and plans delivered may have been preliminary to actual formal engagement and that Certcon had not commenced any work on behalf of (the appellants) in relation to certification.”
- [26]As his Honour noted, this was completely inconsistent with her sworn evidence that she “filed a building application with Darryl O'Brien at Certcon”.
- [27]As his Honour noted her evidence was in direct conflict with evidence of Council officers e.g. Mr Fulton who he accepted to be truthful and reliable.
- [28]His Honour did not accept the evidence of the female appellant where it conflicted with the evidence of Mr Fulton. Mr Fulton gave evidence of recalling a meeting on the subject site with a number of local councillors and that the female appellant was present. He did not accept that despite the date of the meeting, the enforcement notice was discussed at the time, and that he swore that he did not indicate to the female appellant that building on a dwelling on the pad fill adjacent to the foreshore was self-assessable development. His Honour also found that he did not advise the female appellant (as she alleged) that an enforcement notice would not be issued if she lodged an operational works application.
- [29]His Honour also referred to Exhibit 71. This was a letter written much later by solicitors on behalf of the female appellant. It is dated 29 June 2009 and addressed to the Chief Executive Officer, Bundaberg Regional Council.
- [30]Relevantly the letter states as follows:
“We confirm that Mrs Conquest’s instructions are that she does not intend to build on the site of the fill and that she intends to build in another location on the property.
With respect to the existing fill, Mrs Conquest’s understanding is that it triggers a requirement for an operational works permit due to the quantity of fill that has been brought to the land. Accordingly, she would propose to remove that excess fill to below the level which would trigger the requirement for an operational works permit and which would render the works self-assessable.”
- [31]His Honour could have held that that evidence was strongly suggestive that the female appellant knew (contrary to the whole tenor of her evidence), at the time of the works being constructed, that it was not self-assessable development i.e. not building work but operational work.
- [32]In the same vein she was cross-examined about her response to the enforcement notice in Exhibit 10. Apart from relying on alleged statements by Council officers which his Honour concluded were not made, she would not concede that the contention that the filling and excavation works were building works was a recent invention. His Honour made this specific finding which is not impugned on appeal at p 27 of his judgment.
- [33]He repeated this finding at p 38 after considering her evidence about consulting a town planner. In his judgment his Honour then proceeded to make adverse findings against the female appellant in relation to evidence that prior to July 2007, she intended to build her house near the shed on the high part of the land (i.e. well away from the pad area), but changed her mind after talking with the builder.
- [34]As his Honour noted, particularly having regard to the chronology and attachments Exhibits 43 to 44 which she tendered, that these did not suggest support for this proposition. His Honour, also concluded that she was evasive in her evidence that she decided not to build on the pad, which was completely contrary to instructions to her lawyers in Exhibit 71 albeit given some time later. His ultimate conclusion in relation to the reliability of the female appellant at 1-46 to 1-47 could be described as unequivocal:
“On her own evidence, I found Ann Conquest to be an unimpressive witness and have concerns in relation to her recollection given to the court, taking into account the whole of the evidence before me and the documentary evidence and the uncontested events and occurrences.
It may be possible in her own mind, and Conquest may honestly believe her recollections or things that happened and things that others actually said, however, on the totality evidence before me, the documentary evidence and the uncontested events and occurrences, I have little hesitation in accepting the recollections of evidence of others in preference to her evidence where there is conflict.”
- [35]The appellants also called a builder who had been involved in constructing the works. His name is Mr Gorlick, and I will refer to his evidence a little later. They also called the planner Mr Mackay who had prepared the operational works development application for the appellants after the issue of the enforcement notice. Mr Mackay’s opinion appeared to have radically changed since preparing the development application. Not surprisingly his Honour did not accept Mr Mackay’s changed opinion, and this finding is not impugned on appeal. Mr Robert Conquest also gave evidence and his Honour pointed out that Mr Conquest’s evidence was initially that he had little to do with the land, but that he was aware of the show cause notice and the response and he signed the development application for approval for operational works. There is no complaint now that he should have been dealt with in a different way to his ex-wife despite the clear evidence that he left much of the detail to her.
- [36]His Honour from pages 61 to 65, then proceeded to discuss a number of authorities that had been referred to him by the parties, and I will refer to these later. Ultimately he proceeded on the basis of what he described as “an objective test” and said at 1-64 to 1-65:
“I accept the submissions on behalf of the complainant that in ascertaining whether the excavation and filling works might otherwise be operational works carried out at the relevant site are for or incidental to building works, this Court should adopt the principles that (1) it is a question of fact and degree to be viewed objectively; (2) the defendant’s subjective intentions about the future use of the works are not necessarily determinative but may have some influence in certain circumstances; (3) there must be an inextricable link between the operational works and the building works. That is, when viewed objectively, the operational works must be unequivocally for or incidental to the building works.”
- [37]His Honour’s ultimate conclusions about relevant facts are set out at 1‑67 to 1‑68 of his judgment:
“(a) that no building works have ever been commenced on or in the vicinity of the excavation or filling works; (b) there is no evidence that the pad area was designed and constructed in a way to accommodate a structure and in that regard it is noted there is no evidence of footings or foundations or the like; no development applications have ever been made or approvals granted for the building works in that location, notwithstanding that such works constitute assessable development and require approval from a private certifier and the Bundaberg Regional Council, and the fact that the defendants have not removed the works despite abandoning any attention to build a house in that location over three years ago, preferring instead to consider constructing their house in a different location further to the south and on piers, supports the view that the excavation and filling works may have but not necessarily been for purposes other than just the construction of a house.”
The cases discussed below
- [38]Before his Honour both parties referred to Fox & Anor v Brisbane City Council & Ors [2003] QCA 330 (which refers to the South Australian case of Development Assessment Commission v Macag Holdings [2001] 116 LGERA 1, relied upon by Mr Black before me) and Barnes & Anor v Southern Downs Regional Council & Ors [2010] QPEC 131 , a decision of Judge Rackemann, and the judgment of the primary Judge in Fox, Judge Brabazon QC, in his decision reported at [2003] Q.P.E.L.R. 215. On appeal, his Honour’s judgment was affirmed unanimously in relation to one appeal, and by a majority of 2 to 1 in respect of the other appeal. The learned Magistrate relied on some obiter remarks by de Jersey CJ (as his Honour then was) in dissent in Fox, in relation to the meaning of “for, or incidental to, the activities mentioned in” s 1.3.5(1)1 of the IPA; and is criticised by Mr Black for so doing. His Honour appears to have misquoted at 1-64, in the sense that (in relation to the criticisms of Fox) it was not Judge Rackemann who said this, his Honour was referring to remarks made by his Honour Judge Alan Wilson SC (as his Honour then was) in Cairns Aquarius Body Corporate Committee & Anor v Cairns City Council & Anor [2010] QPELR 134. All of these cases have their limitations. I have to say that having regard to what the former Chief Justice said in dissent in Fox, and given the extensive criticism of the majority decision referred to by Judge Wilson, that his Honour’s construction, with respect, seems to accord with the natural and ordinary meaning of these words.
- [39]As I say these cases have their limitations. Some, such as Barnes, were concerned with whether as a matter of fact or degree the proposal involved a material change of use; Macag involved a completely different legislative framework (a matter referred to by the former Chief Justice) although the definition of “building” was similar in the South Australian legislation; and none involved a prosecution for a criminal offence.
- [40]It is permissible, as his Honour did, to have regard to these decisions as a guide. However in a prosecution such as this, to establish guilt, the respondent was required to prove beyond a reasonable doubt each element of the offence. The only live issue now is whether the evidence was sufficient to satisfy his Honour beyond a reasonable doubt that the works carried out, prior to the expiration of the period in which to comply with the enforcement notice, were not building work as defined by s 1.3.5(1)1 of the IPA.
- [41]As Mr Williamson notes in his written outline filed on 13 February 2013 at 35 it is uncontroversial between the parties that:
“(e)no development approval had been granted which would have authorised the carrying out of the filling works on the subject land;
- (f)no building approval had ever been issued for a proposed Detached Dwelling on the subject land;
- (g)no building application had ever been formally accepted or assessed by a private certifier for the construction of a Detached Dwelling on the subject land; and
- (h)the works required by the enforcement notice had never been completed.”
- [42]Relevantly to the only issue now in dispute, his Honour accepted the reliability and truthfulness of Council witnesses, particularly their rejection of versions of conversations with the female appellant prior to the issue of the enforcement notice, obviously put to them by Counsel on instructions from the appellants. By the time the defence case commenced, the appellants were self-represented and his Honour (as he noted in his decision) did give the female appellant a great deal of latitude in presenting her case.
The submissions of the parties
- [43]Fundamentally Mr Black submits that there was positive evidence that should have caused his Honour to have a reasonable doubt about the “building work” issue. In oral argument, he referred to a response from compliance officer McIntosh in cross-examination to the effect that in relation to the pad, you could possibly build a house there physically. He also relied on the evidence of the builder Mr Gorlick, who gave evidence that he observed a builder there and he also recalls seeing the builder’s employee marking pegs. It is not clear who the builder was because neither the builder nor any alleged employee gave evidence. There was no reference to this in Exhibit 43, the chronology tendered through Ms Conquest. Certainly the apparent author of Exhibit 42 was not called, so Mr Gorlick’s evidence (although accepted by his Honour) could have little weight in relation to the critical issue.
- [44]I referred earlier to the multiple outlines filed by the appellants, and their ultimate abandonment of all but the one ground of appeal – confirmed with an outline filed on 29 January 2014 and confirmed by Mr Black’s one paragraph outline filed on 11 April 2014 shortly before the hearing date. In that he refers to reliance upon an amended outline filed by the appellants dated 18 December 2012. I have not been able to locate that submission but I assume he is referring to an outline filed by the previous Counsel on 7 December 2012 because the quoted paragraphs seem to refer to the disputed issue. I have had regard to those paragraphs and to the paragraphs referred to by Mr Black from the appellants’ submissions in reply filed 8 August 2013.
- [45]In its latest submission, particularly 13-17, the appellants seemed to proceed on the basis that the evidence before his Honour was insufficient to enable him to determine that there was no inextricable link between the pad and the proposed dwelling to be constructed in accordance with the plans (on the basis of Mrs Conquest’s evidence as assessed by his Honour). This is a reference to terminology used in the cases above. The correct test on a prosecution is stated a number of times above and seems now to be accepted by the appellants. It is not asserted that his Honour erred in applying the appropriate test in relation to the onus of proof. The submissions to which I refer are confusing, as they tend to conflate subjective intention (i.e. of the appellants) with objective assessment of the evidence i.e. matters of fact and degree, which again is not helpful when dealing with the prosecution for a criminal offence.
- [46]The submission also seems to retreat from placing importance on the female appellant’s subjective intention, probably in light of the strong credibility findings made against her, and rather it relies on her “objective” intention. These submissions are made with only the briefest reference to the evidence most of which is uncontroversial. The submissions seem to proceed on the dubious basis that even though the female appellant’s evidence as to what she did and said prior to the issue of the enforcement notice is not probative, nevertheless the “evidence” introduced through her e.g. Exhibit 43 should be accepted, even though many of the players, indeed none of the players referred to therein (with the exception of Mr Gorlick)r were called to give evidence. There was of course no onus on the appellants, however their failure to call evidence from any of these people, which may have been very relevant to whether the works were for,or incidental to, matters set out in s,1.3.5 (1) 1(a), was very relevant to his Honour’s assessment of the weight of the exhibits tendered through a witness who he found to be unreliable and discreditable.
- [47]In relation to the earlier submission filed 7 December 2012, I note that Mr Black specifically disavows reliance on 1.15, a chronology of events, which in large part, is not established on the evidence as determined by his Honour. The paragraphs in this submission he does rely on and are largely repetitive.
- [48]Mr Williamson has made a number of submissions, in response to the multiple and changing grounds for appeal which have proved to be a complete waste of time and resources, but he addresses the one live issue in paragraphs 37 to 48 of his outline filed on 13 February 2013. Although I have some misgivings about the “inextricable link” point nevertheless I agree with the thrust of his submission as referred to earlier in these reasons.
- [49]In his oral submission Mr Williamson helpfully referred me to Exhibit 29. There is no dispute that the coloured editions on that plan fairly represented the extent and position of the works. It strongly supports Mr Williamson’s point that it is a mistake, in considering the narrow issue in the appeal, to focus only on the pad.
- [50]As I have noted the matters of fact referred to by Mr Black i.e. Mr McIntosh’s response, has little or no evidentiary weight particularly in light of all the evidence which his Honour accepted. Mr Gorlick’s evidence of seeing pegs etc. is of very limited value, as the person who allegedly placed the pegs and the builder who employed him or her was not called. He does not suggest that any of the photographs, apparently taken soon after, show any pegs or layout.
- [51]The evidence accepted by his Honour to the effect set out above was more than sufficient to satisfy the onus upon the respondent. The subjective intention of the appellants again has little weight given his Honour’s significant adverse findings of credit against the female appellant which findings are now not challenged.
- [52]As I have noted all other grounds of appeal including those against costs and the severity of the fine and the reparation order are abandoned. The appeals are dismissed and I will hear the parties in relation to costs.