Ashton v Cassowary Coast Regional
[2017] QDC 279
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- Unreported Judgment
- Ashton v Cassowary Coast Regional[2017] QDC 279
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Ashton v Cassowary Coast Regional[2017] QDC 279
Ashton v Cassowary Coast Regional[2017] QDC 279
DISTRICT COURT OF QUEENSLAND
CITATION: | Ashton v Cassowary Coast Regional [2017] QDC 279 |
PARTIES: | GEOFFREY JOHN ASHTON (appellant) v CASSOWARY COAST REGIONAL COUNCIL (respondent) |
FILE NO/S: | APPEAL NO: 141 of 2017 |
DIVISION: | Appellate |
PROCEEDING: | Appeal |
ORIGINATING COURT: | Magistrates Court, Innisfail |
DELIVERED ON: | 20 October 2017 |
DELIVERED AT EX TEMPORE: | Cairns |
HEARING DATE: | 20 October 2017 |
JUDGE: | Morzone QC DCJ |
ORDER: |
|
CATCHWORDS: | CIVIL PROCEDURE – APPEAL – appeal from magistrates court – preliminary issue – standing of appellant not a party to the original proceeding – costs Legislation Land Act 1994, ss 404, 415, 417, 418, 420 Cases Croney v Mand [1992] 2 QR 342 Kowalski v Public Trustee (2) [2011] QSC 384 |
COUNSEL: | C Ryall for the respondent |
SOLICITORS: | Self-represented for the Appellant Vandeleur & Todd Prosecutions for the respondent |
- [1]On 28 July 2017, the Magistrates Court in Innisfail ordered the respondents in proceedings M19 of 2016 to remove the vessel, MV Keiter, from the Innisfail boat harbour. It was further ordered that the order be stayed for a period of 60 days pending a consideration of the respondent’s application for a permit to moor at the boat harbour together with liberty to apply on notice. And, further, it was ordered that the respondents pay the appellant’s costs of the application in the amount of $2500.
- [2]The appellant here, Geoffrey John Ashton, an 81 year old pensioner, seeks to appeal that decision notwithstanding he was not a party.
- [3]The appellant 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. He is particularly concerned about the council’s rights to administer port land vis-à-vis others and rejects any assertion that he is a trespasser in respect of that port land. The appellant has filed several submissions developing his case, having regard to the merits of the hearing and, particularly, the substance of his concerns.
- [4]The respondent council has also filed an outline of argument. It also deals with the merits of the appeal but raises, as a preliminary issue, whether the appellant has standing to bring the appeal. That submission was the subject of a Reply in Answer Outline of Argument of the Respondent, being further submission filed by the appellant here. In that, the appellant relies upon his perception that the respondent has conceded that the proceeding notice wrongly accused the appellant.
- [5]Further, since the proceeding below, the respondent council has approved and subsequently issued a permit for the respondents in the original hearing to moor the vessel in the Innisfail harbour, but at a place different to that where it was moored and relevant to the proceeding below.
Background
- [6]The original proceeding in the Magistrates Court, No M19 of 2016, was commenced on 19 October 2016 by an originating proceeding notice filed pursuant to s 415 of the Land Act 1994 (Qld).
- [7]The parties to the proceeding were the council as applicant and “Geoffrey John Ashton” and “Cynthia Ashton” as respondents. It is not disputed in this proceeding that Geoffrey John Ashton and Cynthia Ashton were in partnership and, in that sense, were co-owners of the vessel “MV Keiter”. By those proceedings, the council sought orders requiring the respondents to remove their fishing vessel from mooring number 6 in the Innisfail boat harbour and, further, restraining orders prohibiting them from using any designated mooring in that harbour without a permit from the council.
- [8]The Land Act 1994 (Qld) relevantly provides that:
“404 No trespassing
- (1)A person must not unlawfully, do any of the following things (a trespass related act) in relation to non-freehold or trust land –
- (a)occupy or live on it;
- (b)enclose it;
- (c)build, place or maintain any structure, improvement, work or thing on it; …”
- [9]Section 415 authorises the issuance of proceedings by a trustee of trust land in respect of trespass and trespass related acts.[1]Section 417 of the Act provides that the court is not bound by the rules of evidence, but must observe natural justice on the hearing of an application. And s 418 allows the court to make any order it considers appropriate, being a trespass order.
- [10]The proceeding first went to trial in November 2016. Rather unusually, the appellant here shares the same name as his son, “Geoffrey John Ashton”. It was made clear at the early stages of the hearing before the magistrate at first instance that the appellant was not associated with the relevant partnership or the vessel, and was, therefore, not a proper party to the proceeding. The proper respondents were the appellant’s son, “Geoffrey John Ashton” and the appellant’s wife, “Cynthia Ashton”. At that point in the hearing, the learned 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 she leave the bar table.
- [11]In reliance upon proof of apparent service of the proceeding upon the male respondent, (ie. the appellant’s son) the magistrate then proceeded on the basis that he had been properly served, was aware of the proceeding and failed to appear. Having formed that view, she allowed the proceeding to continue with the female respondent, Cynthia Ashton who was unrepresented, although her husband (the appellant) was present in court. Critically, that proceeding continued in the absence of the male respondent (the appellant’s son). After the conclusion of that first trial hearing, her Honourmade orders, supported with reasons, in terms of the application in the form of a mandatory injunction and associated restraining orders.
- [12]The male respondent appealed to this court, coupled with an application to stay the orders and enforcement of them. That appeal was brought pursuant to s 420 of the Land Act 1994 (Qld) and, under that section, is only permitted on a question of law. During the management of those proceedings, particularly the stay application, it became obvious that the purported service on the male respondent (the then appellant) was flawed. That is, although he was served with the originating process, the process server had advised him in words which made it clear that the service was withdrawn. The court ordered that a stay of the magistrate’s orders and enforcement of them be granted.[2]
- [13]On 6 March 2017, by consent of the parties, the original judgment was set aside apparently on the basis that both parties acknowledged that the original hearing was flawed for want of proper service on the male respondent.
- [14]Accordingly, the proceeding was remitted to the Magistrates Court in Innisfail for rehearing with notice to the proper parties. That proceeding was heard on 28 July 2017 before a different magistrate. The respondents (ie. the appellant’s son and the appellant’s wife) appeared unrepresented. The female respondent subsequently withdrew because of other commitments and the hearing continued in her absence, conducted by the male respondent.
- [15]It was not disputed between the parties at that hearing that the respondents had, since September 2015, moored and continued to moor the vessel on mooring No. 6 without any approval to do so from the council. An application for such approval was pending before the council but had not been considered or at least decided. Her Honour expressed particular concern about the delay in that process. The proceeding continued in the usual way for proceedings of this type, in reliance upon affidavits of witnesses for the applicant council, who were cross-examination by the unrepresented male respondent. For the respondents, Mr Ashton Senior (the appellant here) gave oral evidence and was subsequently permitted to make submissions on behalf of the respondents in the proceeding below.
- [16]Subsequent to that hearing, the court found that the vessel was moored in the Innisfail boat harbour and also that the rights in respect of the trust land, comprised by the harbour, were found to extend to the surface of the water above that land. Her Honour found that no consent authorisation had been given to the respondents to use the mooring and, therefore, the use of that mooring was unlawful and constituted a trespass.
- [17]Her Honour did not accept the arguments presented by the respondents through Mr Ashton Senior (the appellant here). However, consistent with her Honour’s remarks during the course of the hearing, she was concerned that the outstanding application for a permit to lawfully occupy the mooring ought be considered and decided so as to avoid any injustice. Accordingly, Her Honour made the following orders:
- (1)That the respondents remove the vessel, MV Keiter, from the Innisfail boat harbour.
- (2)The order is stayed for a period of 60 days pending a consideration of the respondent’s application for a permit to moor at the boat harbour and each party have liberty to apply.
- (3)The respondents pay the applicant’s costs of an incidental to the application fixed in the amount of $2500.
- [18]The appellant now appeals against those orders and reasons for judgment.
- [19]Prior to this hearing, the appellant applied for a stay of the order which was heard in this court by his Honour Judge McGill SC on 22 September 2017. That application for a stay was dismissed.
Proper Appellant
- [20]As I alluded to earlier, the respondent council raised a preliminary issue of the standing of the appellant to bring and maintain the appeal. Clearly enough, if that argument is sustained, then it would render any further hearing of the merit of the appeal nugatory and doomed to fail.
- [21]Under the Land Act, proceedings may be brought for matters of this type. The appeal rights are found in s 420 of the Act, which provides that:
“A party dissatisfied with a trespass order may appeal to the District Court, but only on a question of law.”
- [22]The reference to “a party” must be read in conjunction with a grievance flowing from “a trespass order”. Plainly, a party in a position of the respondents would have standing to bring such an appeal or at least a party who is the subject of any restraint, or other effect of the trespass order, would have such standing even if, for some unusual reason, the order extended beyond the parties to the proceeding. It is not necessary for me to decide that extension in this case. It is sufficient to find that the appellant here was not a party to the original proceeding and the order, by its terms, is entirely confined to the respondents who were parties to the original proceeding. That, on its own, would immediately allay the concern of the appellant that he has not been found by any court as being subject of the trespass order.
- [23]Even the order made at the first trial was never intended by the court to extend to the appellant. Clearly enough, despite the appellant being wrongly served with the originating process, that was acknowledged such that the true identity of the proper respondent was established and the proceedings continued, albeit erringly, against that proper respondent. The appellant has never been a party and remains a non-party, that is, not a party to the proceeding the subject of the application brought by the applicant council or any order of the court below or on appeal.
- [24]It must then follow that the appellant has no standing to appeal from the orders or the decision of the Magistrates Court made on 28 July 2017 and the appeal is, therefore, incompetent for want of his standing as a proper appellant.
- [25]It is clear from the effort and depth of submissions and research undertaken by the appellant that he feels confident about his asserted position or at least about the authority of the council to proceed in the way that they have. However, given the conclusion I’ve reached, it is unnecessary, and would be inappropriate, that I adjudicate upon those matters which affect parties who are not parties to the appeal here, namely, the respondents at first instance.
- [26]For these reasons, I order that the appeal be dismissed and that the orders made by the Magistrates Court on 28 July 2017 are affirmed.
Costs
- [27]The appellant’s appeal in this proceeding is brought pursuant to section 410 of the Land Act 1994 (Qld). As I have found, it has been improperly brought by a party who is not a party to the original proceeding and the appeal is, therefore, dismissed on that basis.
- [28]The respondent council seeks costs of the appeal which is opposed by the appellant on the grounds that the court does not have jurisdiction to award costs in appeals of this nature and, in any event, such an order would be futile given his status as a pensioner.
- [29]Although the underlying proceeding is one brought pursuant to the Land Act, it is nevertheless an appeal from the Magistrates Court exercising that jurisdiction to this court. Section 113 of the District Court Act 1967 (Qld) provides that:
“The District Court has, for an appeal from a Magistrates Court, the same powers as the Court of Appeal has to hear an appeal.”
- [30]Those powers are contained in part 3, division 1 of the Supreme Court of Queensland Act 1991 and the relevant rules, in particular, chapter 18, part 3. By virtue of r 785 of the Uniform Civil Procedure Rules:
“Part 1, other than rules 746, 753, 758, 766(3), 767, 776 and 777, applies to appeals to the District Court, with necessary changes, and subject to any practice direction of the court in which the appeal is brought.”
- [31]The general powers of the court are found in r 766. As to costs the court, having the same powers as the Court of Appeal, may make an order as to the whole or part of the costs of an appeal it considers appropriate, pursuant to r 766(1)(d). This rule is not excluded by operation of r 785 and, therefore, it seems to me that this court does have the requisite jurisdiction and power to make a costs order.
- [32]Here, the appellant was ultimately unsuccessful in the appeal. The nature and complexity of the proceeding is evident from the extent of the judgment and reasons. Its greater complexity as perceived by the appellant is evident from his multiple outlines of argument and submissions made below and on this appeal.
- [33]The merits of the appeal were doomed because of want of standing. That matter was brought to the appellant’s attention during the course of management of this proceeding when the matter was the subject of directions on 15 September 2017 as well as more pointed remarks made by his Honour Judge McGill SC in the decision made on 22 September 2017. But the status of the appellant as a party was not a sudden surprise even at that stage. It is a matter which has permeated the proceedings for most of its life and journey through the various stages of proceedings below and appeal to this court, a return to the court below and, again, to this court. Indeed, it was the focal point of the appellant’s consideration before the trial magistrate at first instance as well as his contribution to the proceedings since that time in the various jurisdictions. Notwithstanding those matters, he remained determined and passionate about the merit of his cause throughout the proceedings and, in particular, this appeal. He did so not in ignorance but despite the indications given to him from time to time particularly in relation to this appeal.
- [34]On the other hand, the respondent in this appeal, the council, was forced to endure the management of the appeal through directions and filing of relevant documents, attendances at court and attendance on hearing of the appeal. Matters of this type do demand special skill, labour and knowledge to be employed through legal representatives of the respondent local government.
- [35]Although the appellant has proceeded in this way, I do not suggest that he has done so in a dishonest or with an improper motive but, rather, his ability to search, research and convince himself about the merit of his argument has overwhelmed his good judgment about whether to participate in and continue the proceedings.
- [36]In the circumstances of this case, it would nevertheless be inequitable for the respondent council to bear the financial burden of the appellant’s unsuccessful recourse to this court in those circumstances and it is, in my view, just and reasonable to compensate the respondent for its costs.
- [37]Therefore, I further order that the appellant pay the respondent’s costs of the appeal to be assessed on the standard basis.
Judge D Morzone QC