Ashton v Cassowary Coast Regional
[2017] QDC 203
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- Unreported Judgment
- Ashton v Cassowary Coast Regional[2017] QDC 203
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Ashton v Cassowary Coast Regional[2017] QDC 203
Ashton v Cassowary Coast Regional[2017] QDC 203
DISTRICT COURT OF QUEENSLAND
CITATION: | Ashton v Cassowary Coast Regional [2017] QDC 203 |
PARTIES: | GEOFFREY JOHN ASHTON (appellant) v CASSOWARY COAST REGIONAL COUNCIL (respondent) |
FILE NO/S: | APPEAL NO: 216 of 2016 |
DIVISION: | Appellate |
PROCEEDING: | Appeal |
ORIGINATING COURT: | Magistrates Court, Cairns |
DELIVERED ON: | 3 February 2017 |
DELIVERED AT EX TEMPORE: | Cairns |
HEARING DATE: | 3 February 2017 |
JUDGE: | Morzone QC DCJ |
ORDER: |
|
CATCHWORDS: | CIVIL PROCEDURE – APPEAL – application for stay the decision and the enforcement of the orders for forced removal of a vessel from a mooring – consideration of merits of appeal – where substance of the appeal would be rendered a futility – dispute of identify of first respondent – defective service and absence of proper party at the hearing – proceeding determined in the absence of the first respondent – Magistrates’ Court mislead by omission of critical information as to service – good prospects of appeal – no disadvantage or prejudice to the respondent if stay granted – application for stay allowed – costs. Legislation Land Act 1994 Cases Croney v Nand [1992] 2 Qd R 342 Kowalski v Public Trustee (2) [2011] QSC 384 |
SOLICITORS: | Self-represented for the Appellant Vandeleur & Todd Prosecutions for the respondent |
- [1]The applicant, Geoffrey John Ashton, who is also an appellant in relation to Magistrates Court proceedings of the 8 November 2016, seeks a stay of the decision and the enforcement of the orders resulting from that proceeding, pending the determination of his appeal.
- [2]The applicant is self-represented in this proceeding and I have had the advantage of reading competing outlines of argument in respect of the application for stay.
- [3]In addition, the applicant has filed a document titled “Motion to Strike-Out”, purporting to be an application to strike-out all of the proceeding below in the Innisfail Magistrates Court pursuant to rule 171 of the Uniform Civil Procedure Rules. Notwithstanding the unusual nature of the document, it seems to go to the same issues that relate to the substance of the appeal, and I will receive that as a submission, as opposed to some form of invalid application.
Background
- [4]The original proceedings in the Magistrates Court numbered M19 of 2016 were commenced by a preceding notice filed pursuant to s 415 of the Land Act 1994. That notice sought various orders to the effect of requiring the respondents to remove the vessel “MV Kieter” from the mooring known as number 6 at Innisfail Boat Harbour, coupled with orders restraining those respondents from mooring or otherwise occupying that place.
- [5]The proceeding was, apparently, served upon individuals who answered to the names identified in the heading of the document, namely, ”Geoffrey John Ashton” as the first respondent, and “Cynthia Ashton” as the second respondent.
- [6]Subsequent to that purported service, the “first respondent”, filed a defence and counter-claim, signed by ”Geoffrey John Ashton”, adjacent to the description, “first respondent”. The document was filed on the 3 November 2016. But on the 11 November 2016 an amended defence and counter-claim was filed, seemingly by the same individual, but with amendments underlined, including inclusion of the second respondent in the heading.
- [7]The defence was very short in compass:
“The first respondent has made reasonable inquiries and remains uncertain of the truth, or otherwise, of the allegation and is unable to admit it because he believes they are untrue.”
- [8]The counter-claim, in its amended form, pursued allegations of trespass and, otherwise, maintained the original form of the pleading, which included the admission in paragraph 9 that:
“The first respondent purchased “Kieter”, a prawn trawler while at sea, when in port a (recreational/leisure craft) registered Australian domestic commercial vessel from Austgold Electrical Pty Ltd on 6/9/2015.”
- [9]The document, again, is purportedly signed by ”Geoffrey John Ashton”, against the description of, “first defendant”.
- [10]It is not disputed in this proceeding that a Geoffrey John Ashton and Cynthia Ashton were in partnership and, in that sense, were the owners of the vessel. Whilst there is no issue about the identity of Cynthia Ashton being the second respondent, there is a dispute about the identity of the first respondent.
- [11]Prior to the hearing of the matter, and in the course of service, it seems that the process server effected service on two individuals whose name was identical, namely “Geoffrey John Ashton”. The reality is that there are two individuals of that name, one being a father and the other being his son. They assert that it is Geoffrey John Ashton, the son, who is the proper respondent and who owned the vessel with his mother, the second respondent, Cynthia Ashton.
- [12]During the course of this proceeding, it was conceded that the defence and counterclaim was, in fact, signed by Geoffrey John Ashton, the father, who, at the original hearing, objected to the continuation of the proceeding on the basis that he was not the first respondent named in the proceeding notice, and that he was incorrectly served.
- [13]In the respondent solicitor’s affidavit, at paragraph 11, he deposes that at the hearing of the matter on the 22 November 2016 in the Magistrates Court at Innisfail, the following occurred:
“Mr Chris Ryall, counsel for the applicant, submitted that service was acknowledged on the basis that a defence and counterclaim and amended defence and counterclaim were filed. Mr Ryall with counsel then proceeded to read the affidavits of service of Mr Melton, dated 10 November 2016 into the record. Her Honour accepted those affidavits as evidence of service by hand of the proceeding notice and supporting affidavit of Mr James Patrick Cecil Gott on Mr Geoffrey John Ashton Senior, Ms Cynthia Ashton and Mr Geoffrey Ashton Junior.”
- [14]It is then deposed that her Honour, the Magistrate, informed Mr Ashton Senior that he did not have standing to make any submissions because he was not a party, and she directed that he leave the bar table. The matter then proceeded on the basis that submissions were accepted from Cynthia Ashton, who was unrepresented, although her husband, Mr Ashton Senior, was present in the court. Critically, however, the proper respondent, that is Geoffrey John Ashton named as the first respondent, was not present during the course of the proceeding.
- [15]The affidavits of service provided to the court on that occasion assert service upon the second respondent, Cynthia Ashton on the 26 October 2016 at 3.25 pm. So much is uncontroversial. The deponent, Mr Melton, in his affidavit of the 10 November 2016, further deposes that on Wednesday the 26 October 2016 at 5 pm, he caused to be served the “first respondent, Geoffrey John Ashton” with the proceeding notice and the supporting affidavit by delivering a copy of those documents to him personally at an address in Innisfail. At paragraph 4, he deposes:
“I identified the person served by asking: “Are you Geoffrey John Ashton, the person named in these documents?”
The person who accepted service replied: I am Geoffrey John Aston Junior.”
- [16]The deponent then describes how he had a conversation with the first respondent, Geoffrey John Ashton (junior), about serving documents from the solicitors for the applicant in the proceeding.
- [17]A further affidavit of service was provided to the court, affirmed by Mr Melton on the same date on the 10th of November 2016. In that document, he deposed that on Tuesday the 1st of November 2016 at 12.40 pm, he served the “first respondent, Geoffrey John Ashton” by delivering the same documents to that person at the same address in Innisfail. He deposed that:
“I identified the first respondent by asking: “Are you Geoffrey John Ashton, the person named in these documents?”
The person who accepted service replied “Yes”.”
- [18]Her Honour apparently relied upon those depositions to proceed and determine the proceeding below. I do not have the advantage of the transcript of the proceeding. However, the solicitor for the respondent deposes at paragraph 15 that:
“In the course of her judgment, her Honour remarked that Mr Geoffrey John Ashton Junior had ample opportunity to take appropriate steps to defend the matter, as he was served in person.”
- [19]Her Honour, after giving reasons, made orders in terms of the application, which, of course, are in terms of a mandatory injunction and associated restraining orders.
- [20]The first respondent in those proceedings has appealed to this court coupled with the application to stay the orders and enforcement of them. The appeal is brought pursuant to s 420 of the Land Act 1994, and such an appeal is only permitted on a question of law.
- [21]The notice of appeal originally relied upon the defective service of the proceeding notice. However, it was recently amended to also include grounds dealing with substantive issues in the proceeding, including the transferability of the mooring to the respondents at the time of acquisition of the vessel.
- [22]In support of the application for stay, Mr Ashton senior, an 80 year old pensioner, asserts that he was falsely “charged” as being a partner in the business which owned the vessel, and he also deposes to the appearance in the Magistrates Court asking to be removed from the proceeding. He has, in this proceeding, properly conceded that it was he who signed the defence and counterclaim as well as the amended defence and counterclaim in the original proceeding, but that he did so as agent for the first and perhaps second respondents, and not in his personal capacity.
- [23]The applicant, being the first respondent in the original proceedings, Mr Ashton junior, has also provided an affidavit of the circumstances of service upon him. He deposes that he was served with proceedings, but: ‘The bailiff, about a week later, phoned me, and advised that my father, Geoffrey John Ashton senior, was to be served, not me.” He then described how the bailiff later came to the business premises and served Mr Ashton senior, who, he says, is not a partner in the business comprised of himself and his mother.
- [24]There is no explanation in the document as to why it is that he did not attend at the hearing, well knowing that a grave error, or at least an obvious mistake, had occurred, in the identification of the relevant party to be served. Mr Ashton senior may have been able to give such an explanation on his appearance, but he was compliant, at least to the extent of removing himself from the bar table and further participation. It is not clear to me what the capacity of the second respondent was in those proceedings. That may reveal itself in the fullness of time, having regard to the transcript.
Defective Service
- [25]The threshold, and perhaps critical, matter, is that the proceeding continued, in circumstances where, on first respondent’s argument, the relevant parties were not properly served and present during the course of the hearing, and orders were made in his absence. In effect, his argument is that whilst he was originally served, the agent for the respondent Council (the applicant in the original proceedings) had disavowed of that service by the telephone call.
- [26]That matter has been the subject of a further affidavit from the process server, Mr Melton, affirmed on the 30th of January 2017. In addition to the documents relied upon before her Honour, Mr Melton discloses the circumstances which are entirely consistent with the assertions made by the first respondent, Mr Ashton junior, being the appellant applicant here. In paragraphs 6, 7 and 8, he deposes as follows:
“At the time of service, Geoffrey John Ashton junior seemed to be aware of the legal proceeding, and stated, “There is a long-term dispute with the Cassowary Coast Regional Council about the mooring of our boat”.
At the time of service, Geoffrey John Ashton junior and Cynthia Ashton were at the premises, at 13 Ernest Street, Innisfail, 4860, in the State of Queensland.
On Tuesday, 1st day of November 2016, I phoned Geoffrey John Ashton junior, and said that I meant to serve the documents on his father, Geoffrey John Ashton Senior. I then served the documents on Geoffrey John Ashton senior.”
- [27]It is not clear to me why, in an affidavit sworn nine days after the telephone call deposed to, or, indeed, at the proceeding that occurred some 21 days after that, those critical facts were not disclosed by the process server, or otherwise disclosed to the Court.
- [28]Her Honour, even having regard to the sworn recollection of the respondent’s solicitor, apparently proceeded with some confidence that Mr Ashton junior, as the first respondent in those proceedings, had ample opportunity to take appropriate steps to defend the matter, as he was served in person.
- [29]It seems to me that, in the circumstances, whilst service might have been effected, the conduct of the process server rendered that service nugatory. There is, in fact, no dispute that the service was communicated as being one of a mistake, and intended for Mr Ashton senior was in itself, as it turns out, a mistake. It is disturbing that such critical matters were not brought to the attention of the Court at the relevant time, and it seems to me that both parties were seized of information which could have overcome the apparent defect in the service.
- [30]Having been informed by the Council’s agent that service on him was mistaken, with clear intent that he ought not act on it, it seems to me that Mr Ashton junior was entitled to take a technical approach, and not submit himself to the Court. The matter is complicated, of course, by the filing of pleadings purportedly signed by his agent. Those pleadings do, in a bare way, dispute the primary matters, based upon a want of knowledge, as I have set out above. However, it is perhaps more disturbing that there was a purport on the part of Mr Ashton senior to, in fact, be the first respondent, when he apparently never was. This may be explained by his view that he was, perhaps, the agent of the first respondent. That, in itself, is odd, given that the assertion is that the first respondent, his son, was not properly served.
- [31]Our system of justice and the proper function of the courts rely heavily upon the parties and their representatives being candid with the court. For whatever reason and for whatever circumstances which remain entirely unclear, it seems to me that there are prospects in the applicant’s argument that the court proceeded erroneously in his absence, because it was not appraised of matters which vitiated effective service. It is appropriate that proceedings be conducted with all the relevant parties present before the court at the one hearing.
- [32]In the absence of the first respondent, during the course of the hearing, and its determination, there is, it seems to me, a strong argument that the whole of the proceeding is subject to challenge, even before the substantive issues in that proceeding are dealt with.
Application for stay
- [33]Rule 761 (1) of the Uniform Civil Procedure Rules provides that the starting of an appeal does not stay the enforcement of a decision under appeal and sub rule (2) provides that the court of appeal here, the District Court, may order a stay of the enforcement of all or part of the decisions, subject of an appeal. By operation of rule 785(1), those rules apply to the District Court and its appellate jurisdiction. Accordingly, this court does have power to grant a stay of the decision and by association, the enforcement of the order dated 22 November 2016.
- [34]The appropriate test is whether the applicant has demonstrated that it is an “appropriate” case for a stay.[1] The applicant bears the onus of showing that the case was “appropriate” for a stay to be granted. As to the factors which are relevant to determining whether it is an appropriate case, the Honourable Justice McMeekin in Kowalski v Public Trustee (2) [2011] QSC 384 at [5], summarised the considerations for granting a stay of enforcement of a decision which is pending appeal as:
“(a) whether there is a good arguable place
(b) whether the applicant will be disadvantaged if a stay is not ordered
(c) whether there is some competing disadvantage to the respondent, should the stay be granted which outweighs the disadvantage suffered by the applicant if a stay is not granted.”
- [35]Justice McMeekin further stated at [6]:
“In circumstances where it can be demonstrated that there are no or very poor prospects of success on appeal, that can weigh heavily against the granting of the application for a stay.”
- [36]As can be gleaned from my remarks in my discussion above, it seems to me that the respondent does have a good arguable case. Indeed, if a stay of the order were not made, such that execution were enforced, the substance of the appeal would be rendered a futility. The material does not disclose any competing disadvantage or prejudice to the respondent council, which would otherwise outweigh the disadvantage of applicant, if a stay is not granted.
- [37]It is fundamental to our legal process, where apart from what I have said above, that a party is given the opportunity to be heard in the normal and ordinary sense of natural justice. It seems to me that the respondent has a good argument that he was not given an opportunity to be heard.
- [38]I should add that these remarks do not, and it is unnecessary, to consider the substance of the dispute underlying the proceeding below. It may well be, and indeed the respondent counsel’s argument is, that there are very limited or no prospects of the appeal succeeding in the context of the amended aspects of the notice of appeal going to the substance of the dispute. It seems to me that that argument is very strong and ultimately the respondent may fail in due course.
- [39]However, it is fundamental, as I said, that a party have an opportunity to be heard before those matters are ultimately considered again. For those reasons, I order that:
- The judgment and orders of the Innisfail Magistrates Court made on 22 November 2016 in proceeding 19 of 2016 will be stayed until the determination of the appeal number 7 of 2016 in this court.
- Costs of the proceeding are reserved and will be determined in conjunction with the appeal in due course.
Footnotes
[1] See Croney v Nand [1992] 2 Qd R 342 at [33]