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Kenefick & Ors v Lockyer Valley Regional Council[2023] QDC 249

Kenefick & Ors v Lockyer Valley Regional Council[2023] QDC 249

DISTRICT COURT OF QUEENSLAND

CITATION:

Kenefick & Ors v Lockyer Valley Regional Council [2023] QDC 249

PARTIES:

STEVEN KENEFICK

(first appellant)

and

DARRELL SINGLETON

(second appellant)

GREG WILLIAMS

(third appellant)

v

LOCKYER VALLEY REGIONAL COUNCIL

(respondent)

FILE NO.:

995/22

DIVISION:

Civil Division

PROCEEDING:

Appeal

ORIGINATING COURT:

District Court at Brisbane

DELIVERED ON:

21 December 2023

DELIVERED AT:

Brisbane District Court

HEARING DATES:

26 May 2023

JUDGE:

McGinness DCJ

ORDERS:

  1. 1.
    Appeals dismissed in relation to each appellant

CATCHWORDS:

APPEAL AND NEW TRIAL – breach of statutory duty – failure to comply with Sustainable Planning Act – enforcement action taken under Local Government Act 2009 by respondent – definition of junk yard under Laidley Shire Council Planning Scheme (2003) – whether the first appellant’s premises was a junk yard

APPEAL AND NEW TRIAL APPEAL GENERAL PRINCIPLES – admission of new evidence on appeal – where the appellants sought leave to call new evidence – where the evidence was available at trial

APPEAL AND NEW TRIAL – APPEAL GENERAL PRINCIPLES INTERFERENCE WITH DISCRETION OF COURT BELOW – where the appellants sought leave for witness to be called – where the respondent objected to witness being called – where the appellants failed to comply with court ordered directions to provide summary of evidence to respondent prior to trial – whether the Magistrate erred in the exercise of his discretion to refuse leave to call witness

APPEAL AND NEW TRIAL APPEAL GENERAL PRINCIPLES where the Magistrate did not refer to all items listed in the claim – whether the Magistrate was required to refer to each item

APPEAL AND NEW TRIAL APPEAL GENERAL PRINCIPLES – where the appellants did not call or produce evidence to prove quantum of loss – whether the Magistrate was required to have regard to discovery material on the court file, but not referred to at trial

LEGISLATION:

Local Government Act 2009 (Qld)

Sustainable Planning Act 2009 (Qld)

Magistrates Court Act 1921 (Qld)

District Court of Queensland Act 1967 (Qld)

Uniform Civil Procedure Rules 1999 (Qld)

CASES:

Mace v Murray (1995) 92 CLR 370

House v the King (1936) 55 CLR 499

Fox v Percy (2003) 214 CLR 118

Devries v Australian National Railways Commission (1993) 177 CLR 472

Thomson v Smith [2005] QCA 446

Mulholland v Mitchell [1971] AC 666

Hawkins v Pender Bros Pty Ltd [1990] 1 Qd R 135

Pickering v McArthur [2010] QCA 341

Jonathan v Mangera & Anor [2016] QCA 86

Pickering v McArthur [2010] QCA 341

Robertson v Hollings & Ors [2009] QCA 303

COUNSEL:

The first appellant appeared on his own behalf and on behalf of the second appellant.

No appearance by the third appellant.

M J McDermott for the respondent.

SOLICITORS:

The first appellant appeared on his own behalf and on behalf of the second appellant.

No appearance by the third appellant

Thomas Geer Lawyers for the respondent.

Introduction

  1. [1]
    Mr Kenefick (the first appellant) was the owner of 12 Howard Court, Plainland which consisted of a large parcel of land and a house (the premises). Prior to 1 November, he stored a variety of items belonging to him, Mr Singleton (the second appellant), Mr Williams (the third appellant) and others on the premises. On 25, 26 and 28 October and 1 November 2016, the Lockyer Valley Regional Council (the respondent) entered the premises and removed items belonging to the appellants. Some of these items were disposed of, sold as scrap metal, or made available for collection. The appellants commenced proceedings for the loss incurred. The appellants were self-represented.

The proceedings

  1. [2]
    The proceedings related to two claims (M292/18 and M77/20) by the appellants against the respondent relating to the respondent’s removal of property from the first appellant’s premises. The appellants claimed that property on the first appellant’s land was removed unlawfully, and they were entitled to compensation.
  1. [3]
    Claim M292/18 detailed items removed as marine paint, shed frame with roofing iron, three site toilets, two replica submarines and a Volvo Penta leg, a boat hull (first appellant); a Glasshouse Mountain bus/motorhome, hot water system (third appellant). Claim M77/20 detailed items removed as Italian marble, granite black and grey stair treads, flood tiles, garden pavers, six metre hardwood floor Joyces, two packs of primer white six metre planks, four packs of tile roofing top hats, eight metre Z purlins, 10 I beams, 40 packs of termite proof cladding, two treaded wood packs of fence palings, 6 steel and timber floor frames, two trunk trailer axles, tarps, two packs of treaded pine cladding, set bus ramps, stainless boat rudder, three flat packs of kitchen doors and a Toyota gearbox (first appellant); Volvo Penta motor with stern Penta leg drive and controls, three traffic street lights and disco controls, Mig welder, assorted tools, furniture, small air compressor, four mag wheels and an aluminium fuel tank (second appellant).
  1. [4]
    The respondent defended the claim on the basis there was no merit to the appellants’ case as the removal of all property was undertaken lawfully pursuant to enforcement action taken pursuant to the Local Government Act 2009 (LGA).
  1. [5]
    On 11 August 2020, the appellants asked for the boat hull to be removed from Claim M292/18 and, at the request of the parties, a Magistrate ordered both claims to be heard together. The appellants claimed damages in the amount of $149,000. The Magistrate also made directions for the parties to prepare for trial. Relevantly:
    1. On or before 5 February 2021, the plaintiffs deliver any summaries of evidence on which they intend to rely at trial.
    2. Evidence-in-chief of lay witness is to be given orally, and unless leave is given, must be confined to the issues outlined in the party’s summary of evidence.
  1. [6]
    On 16 April 2021, another Magistrate extended the date of the appellants’ compliance with those orders to 9 August 2021. The appellants delivered only one summary of the first appellant’s evidence.
  1. [7]
    The trial proceeded in the Magistrates Court on 2 September 2021 over four days (2 and 3 September, 12 October and 9 November 2021). At the original hearing the respondent accepted the property had been removed from the first appellant’s premises but maintained the first appellant was unlawfully using his land as a “junk yard” without the necessary development approvals.[1] The respondent’s case was that the first appellant had committed offences under section 578 and 582 of the Sustainable Planning Act 2009 (SPA). All requisite Statutory Notices were served upon the first appellant to give him an opportunity to comply with the SPA and the Laidley Shire Council Planning Scheme (LSCPS). The first appellant failed to comply with the notices which required him to remove items from the premises that, by their storage on the premises, caused the premises to meet the definition of “junk yard”. As a result, the respondent took legal action pursuant to the LGA.
  1. [8]
    The appellants claimed that the items stored on the premises were not junk as they had value. Therefore, the use of the premises could not be described as a “junk yard”. The appellants claimed that some of the items taken were of significant value. They had suffered harm because of the respondent’s actions and were entitled to compensation.
  1. [9]
    On 12 April 2022 the Acting Magistrate (Magistrate) ordered the appellants’ claims be dismissed.
  1. [10]
    The appellants appealed under s 45 of the Magistrates Court Act 1921 (Qld), against the decision of the Magistrate.
  1. [11]
    At the appeal hearing, the first appellant was the only party to appear. He asked to appear on behalf of Mr Singleton, the second appellant, because Mr Singleton had mobility issues which made it hard for him to attend court. The first appellant swore under oath that the second appellant had authorised him to appear on his behalf.[2] The third appellant did not attend the hearing. The first appellant asserted that the third appellant was at work in Western Australia as a mining mechanic at the time of the appeal.[3] The first appellant agreed that the third appellant was aware that the appeal was taking place.[4] The first appellant was unsuccessful at contacting the third appellant on the morning of the appeal.[5] The appeal proceeded in his absence.

Background

  1. [12]
    The premises was in the rural-residential zone of the LSCPS. The first appellant applied for and was granted development approval in March 2005 to build a house. The development approval expired in March 2007. The first appellant did not apply for a new development permit. He continued to build. He stored building materials and other items including large quantities of scrap metal, used tyres and other scrap materials and vehicles in various states of disrepair. On 10 June 2010, the respondent wrote to the first appellant regarding uncompleted building works on the premises. In 2014 and 2015, the respondent received several complaints from members of the public about the state of the first appellant’s premises.
  1. [13]
    On 25 March 2015, the respondent issued the first appellant with a Show Cause Notice. The first appellant was advised that:

“The Lockyer Valley Regional Council believes that you are committing a development offence by contravening section 582 of the [SPA], for the use of premises that is not a lawful use.”

  1. [14]
    The notice provided the first appellant with an opportunity to show cause why an enforcement notice, requiring the first appellant to refrain from and remedy the offence, should not be issued. The first appellant sent the respondent several emails but did not show cause or apply for new development approval.
  1. [15]
    On 2 February 2016 council officers who worked for the respondent entered the premises under the authority of a Warrant to Enter and found a “large number of tyres, scrap metals, machinery, vehicles and other scrap materials” still stored on the land.
  1. [16]
    On 26 February 2016 the respondent issued an Enforcement Notice. The Enforcement Notice advised:

The Council “believes you are committing a development offence against the [SPA] by:

  1. Contravening section 578 (1) of the [SPA], by carrying out assessable development without an effective development permit for the development, in respect of land … situated at 12 Howard Court Plainland.
  1. Contravening section 582 of the [SPA] in that the use of the [p]remises is not a lawful use of the [p]remises.”
  1. [17]
    The Enforcement Notice advised that the first appellant’s response to the Show Cause Notice did not address “the issue of carrying out assessable development namely the use of the ‘land’ as a “junk yard” (the storage of tyres, scrap metals, machinery, vehicles, and other scrap materials on the land)”.
  1. [18]
    The Enforcement Notice was issued under section 590(1) SPA. It required the first appellant to:
  1. 1.
    Refrain from committing the offence by:
  1. a.
    Ceasing to use the land for the storage of tyres, scrap metals, machinery, vehicles, other scrap materials and other items described in the definition of a [“junk yard”] under the [LSCPS].
  1. 2.
    Remedy the commission of the Offence against section 578 SPA by:
  1. a.
    Restoring the premises as far as practicable to the condition the land was in immediately before the unlawful development commenced within twenty (20) business days after the day this Enforcement Notice is given to you, including:
  1. i.
    The removal of all tyres, scrap metals, machinery, vehicles, other scrap materials and items described in the definition of a [“junk yard”] as defined in the [LSCPS] that are not associated with the rural residential use of the land.
  1. ii.
    Ceasing to store tyres, scrape metals, machinery, vehicles, other scrap materials and other items described in the definition of a [“junk yard”] as defined in the [LSCPS] that are not associated with the rural residential use of the land.”
  1. [19]
    On 2 June 2016 the respondent issued a Notice of Entry to check whether the first appellant had complied with the Enforcement Notice. On 27 June 2016 the respondent obtained a warrant to enter the land, which was executed by Mick Brennan, an authorized employee of the respondent.
  1. [20]
    The respondent issued a Remedial Action Notice on 7 September 2016. The first appellant was advised that failure to comply with the notice would result in the respondent undertaking the necessary work to remove the property, stored on the premises, at the first appellant’s expense.
  1. [21]
    The first appellant did not comply with the Statutory Notices. On 25, 26 and 28 October and 1 November 2016, the respondent undertook works on the premises to cease the allegedly unlawful use of the premises as a “junk yard”. The respondent sought quotes from various businesses to remove the property from the premises, and engaged Bryan Evans, the owner of Sunstate Recyclers. Mick Brennan and other council employees managed the operation. They consulted with Mr Evans throughout the process about what property to remove, which property should be stored, which property could be sold as scrap metal and which property should go to landfill.

The evidence at the trial

First appellant’s evidence

  1. [22]
    The first appellant was the only witness to give evidence on behalf of the appellants. His evidence was to the effect that he had development approval as an owner/builder from the council to finish his house. He had spoken and written to the council on occasions and had not appreciated they were going to remove his property. He was going through a property settlement in the Family Court. He was spending a lot of time away from the property, including in Thailand where he had a new partner. He believed he was entitled to have property stored on the premises. The property on his premises was of value and did not amount to junk. The property of value included site toilets, marine paint, a shed frame, building materials (including cladding, hardwood for fencing and decking), a jet ski he intended to rebuild, shipping containers which contained new tools amongst other things, trucks, a bus belonging to the third appellant which the first appellant was going to renovate, a Penta engine (outboard motor) that belonged to the second appellant, and tarpaulins.
  1. [23]
    The first appellant believed that Mr Evans, who was contracted by the council to remove property, had “pilfered” items of value which he sold to others. Mr Evans also made money from selling scrap metal he removed from the premises.
  1. [24]
    The first appellant gave evidence about many  other matters which were either irrelevant to the claim or amounted to inadmissible hearsay.
  1. [25]
    The second and third appellants chose not to give evidence.
  1. [26]
    In effect, the first appellant contended that he was not properly made aware by the respondent that the property would be removed, and the property that was removed was not junk. The removal was unlawful, and the appellants were entitled to damages for the property removed.
  1. Respondent’s evidence
  1. [27]
    The respondent tendered a Chief Executive Certificate under section 251 LGA accompanied by certified council records relevant to the defence of the claim.[6] It provided evidence of the background leading up to the decision to remove property and authorisation of the respondent to enter and undertake the works to remove and dispose of the property at the premises. The respondent called two witnesses. Mr Evans and Mr Brennan.
  1. [28]
    Mr Evans was the head contractor engaged to supervise and undertake removal of the property from the premises. Mr Evans gave evidence and was cross-examined by the first and second appellants. He described the property on the premises as strewn everywhere, and in poor condition. It appeared to have been left out in the weather for quite some time and was overgrown with high grass. The tarpaulins and property underneath them had deteriorated. At the respondent’s request, and under its direction, he and subcontractors removed items to be sold as scrap metal, rubbish that was dumped as landfill, and a list of items to go into storage at Gherke Rd. Those items were made available for collection by owners of the property. Mr Evans had also stored a few items of property at his home including some lights, and a Volvo motor engine. He had contacted the first appellant to come and collect the property anytime. It had not been collected at the time of trial.
  1. [29]
    Mr Evans, his contractors, council representatives, and sometimes police worked at the property each day. He worked in the areas identified by the council representative. They removed property that was identified by the council representative when directed. He described the premises as hazardous and only removed items that appeared to be in a state of disrepair. The bus belonging to the third appellant was dismantled and went to scrap metal because it was not possible to remove it without damaging it. The bus was in poor condition, had no wheels and was filled with rubbish. Mr Evans did not see three site toilets at the property. He also could not recall seeing a shed frame or roofing iron although he acknowledged these items may have been somewhere on the premises. Mr Evans could not recall several items claimed by the first appellant to have been on the premises.[7] He determined the fibreglass submarines were in poor condition. The submarines’ frameworks consisted of rotting wood and rusted fames.
  1. [30]
    Under cross-examination, Mr Evans agreed some items that he had said in evidence- in-chief he could not recall, were visible in photographs shown to him, however, he maintained he could not recall specifically seeing the items. Mr Evans agreed that he removed the bus and the submarines. He did not recall hardwood located next to the bus, I-beams, specific tools, site toilets, a shed frame or a welder. He denied stealing any items or seeing the other workers unlawfully taking items.
  1. [31]
    Mr Brennan, a retired development compliance officer worked for the respondent at the relevant time. Mr Brennan gave evidence and was cross examined by the first and second appellants. Mr Brennan was assigned to investigate a complaint in 2014 in relation to the first appellant storing tyres and scrap metal on his premises. A second complaint was lodged in 2015. He made numerous failed attempts to contact the first appellant and/or his ex-partner to informally resolve the issue of their unlawful use of their premises as a “junk yard” to store scrap metal and tyres without the necessary development approval. The respondent issued a Show Cause Notice. The first appellant’s reply failed to address the matters raised. Mr Brennan eventually obtained a warrant to enter and inspect the premises. He, other council officers and police officers executed the warrant. They viewed the premises and took photographs[8] and samples to assess the public health risk. He noted the bus had no wheels, engine, or axles. He described other items in poor condition, including building materials infected by white ants and scrap metal. In his opinion, the items on the premises fit the definition of a “junk yard” was under the LSCPS. The first appellant appeared at the premises when Mr Brennan and the others were finishing their visit. Mr Brennan informed the first appellant that the property fit the definition of a “junk yard” as described in the Show Cause Notice, and the first appellant would need development approval if he wished to retain it, otherwise the property would have to be removed. The first appellant replied with words to the effect it was his property, he could do what he liked with it, and he would probably just go back to Thailand and desert the place. Mr Brennan subsequently completed a report, and he was directed to issue an Enforcement Notice.[9] The first appellant did not respond.
  2. [32]
    Mr Brennan and other council officers subsequently inspected the premises on 2 June 2016, and noted there was no change. They took more photographs.[10] Mr Brennan subsequently organized quotes from contractors to remove the property. He engaged Mr Evans to remove all property except the tyres, which another agency was contracted to remove. Mr Brennan outlined further steps taken in compliance with the respondent’s statutory obligations. He detailed the process of supervising the contractors to remove the property from the premises, which occurred over a period of approximately one week in October 2016. Mr Brennan recorded the operation in numerous photographs.[11]
  3. [33]
    Mr Brennan did not recall seeing any site toilets, except the one brought to the premises by Mr Evans. He described the Glasshouse bus as “like scrap” with no axel, tyres, or motor, with one side taken out and covered by iron, and filled with rubbish. The bus was in very poor condition and was not driveable.[12] It was decided that it would be pointless to use a crane to remove the bus.[13] Mr Brennan was not present the day the bus was removed.[14]
  4. [34]
    He described the submarines as made from flaking fibreglass with little holes throughout. The submarines were taken to landfill at Gatton. Mr Brennan did not recall a shed frame or roofing iron, although he acknowledged they could have been on the premises. The storage containers that were removed were taken for storage to Gehrke Road. Other property was collected from there by various owners. He did not recall seeing specific property outlined to him by the respondent’s lawyer during evidence.[15]
  1. [35]
    Under cross-examination, Mr Brennan denied failing to follow correct procedure, denied that any property was stolen by the respondent, maintained he had no knowledge of any workers or contractors stealing property, and denied he was not entitled to direct the removal of property up to the edge of the house. He denied he was unlawfully in a 20-metre exclusion zone around the house. He explained he had used the term “exclusion zone” to describe an area surrounding the house where the workers were to avoid removing property out of fairness to the first appellant, however there was no formal designation of an exclusion zone.

The appellant’s submissions at the end of the evidence

  1. [36]
    The first appellant submitted that he obtained an owner/builder permit from the Laidley Council. The issue with the respondent arose from a complaint. The first appellant sent written submissions informing the respondent of the ongoing family law property settlement between himself and his ex-partner. The first appellant’s understanding was the warrants were confined to tyres. The second warrant related to quotes for cleaning up various loose metals and tools around the property for $5,500. The quote did not include the wood, shipping containers, trucks, and buses. The first appellant submitted that he was not provided with notice that the respondent was removing property and was informed by Mr Evans that “nothing’s getting done”.
  1. [37]
    The scrap had value, and this meant it could not be considered junk. There was an exclusion zone around the house that was not to be breached by the respondent. Despite this, council representatives entered the exclusion zone and removed property from within the exclusion zone. Items removed by the respondent that belonged to the first appellant were not available for collection including hardwood fencing, tarps, or Z purlins.
  1. [38]
    The first appellant submitted the Magistrate should not accept Mr Evans’ evidence that the marine paint was dumped. The bus belonging to the third appellant was on the first appellant’s premises because the first appellant was intending to raise the roof and fix the motor axles.
  1. [39]
    The first appellant referred to photographs taken of some toilets as evidence they were taken from his property by a subcontractor and were now located in Tasmania. The first appellant’s submissions were otherwise a repetition of evidence he had earlier given.
  1. [40]
    The second appellant made no submissions.
  1. [41]
    The third appellant submitted he left the bus at the premises for the first appellant to fix, he was not aware that the council was going to remove it and he would have taken it away if he had been told.

The respondent’s submissions at the end of the evidence

  1. [42]
    The respondent handed up written submissions[16] and supplemented those with oral submissions. The written submissions include the following assertions:
  1. 2.
    “The context of the claim makes clear the lack of merit in the claims. The proper characterisation of the [respondent’s] actions the subject of the [appellants’] claim is as an enforcement action to abate a development offence; What was being undertaken on the [p]remises was the unlawful use of land as a “junk yard” without necessary development approvals, which constituted a development offence under the (then) [SPA].
  1. 3.
    The [respondent] required [the first appellant] to undertake the necessary actions to bring the [p]remises into compliance with the SPA and [LSCPC] by requiring the [first appellant] to undertake works including the removal of tyres, scrap metal, vehicles and other material within the definition of a “junk yard”.
  1. 4.
    The [first appellant] failed to do so, and the [respondent] undertook the required action under the [LGA], which it was authorised to do by that Act. As part of that work, it was necessary for the [respondent] to remove the material from the [p]remises.
  1. 5.
    The [respondent’s] costs of undertaking the work, less the scrap value of the metal removed from the [p]remises were charged to the [first appellant] in accordance with the LGA. To the extent that the material removed had any value, the [first appellant] has had the benefit of it and has suffered no loss or damage.
  1. 6.
    The pleaded claims identify the scope of what this Court is being asked to decide. That is important, because a significant amount of the matters traversed by the [first appellant], in his evidence and his cross-examination (particularly of Mr Brennan), go well beyond those claims. The claims relate to specific items of property allegedly lost, and their alleged value.
  1. 7.
    The [first appellant] has not, in his claim, sought to invalidate the charges for the work undertaken by the [respondent], although he clearly has concerns about that work. Those concerns are groundless; the [respondent] was authorised to undertake the work because of the [first appellant’s] ongoing refusal to rectify the development offence.
  1. 8.
    It is submitted that what is clear is that:
  1. (a)
    the work was necessary to comply with the SPA and the [LSCPC];
  1. (b)
    the costs were incurred by the [respondent] in undertaking the work; and
  1. (c)
    the [first appellant] is responsible for those costs because of his failure to undertake the necessary work himself (or to engage contractors to do it).
  1. 9.
    In any event, the [respondent’s] position is that the [appellants] have not proven, on the balance of probabilities, that:
  1. (a)
    all of the property the subject of the claim was taken.
  1. (b)
    what property was taken, was taken unlawfully.
  1. (c)
    property was disposed of unlawfully by the [respondent].
  1. (d)
    that the property disposed of had value, beyond the scrap value (in circumstances where the scrap value was accounted for in the removal costs, which were and remain ultimately to be borne by the [first appellant]).
  1. (e)
    the [appellants] have suffered harm because of the [respondent’s] actions; and
  1. (f)
    that the [appellants] should receive compensation for the harm pursuant to the LGA.
  1. 10.
    Consequently, the [respondents] have not made out a cause of action under the relevant provisions of the LGA or any potentially relevant property torts.
  1. 11.
    Accordingly, it is the [respondent’s] submissions that the claims must be dismissed”.
  1. [43]
    In oral submissions the respondent reiterated that the Show Cause Notice, the Enforcement Notice, and the Remedial Notice all identified land use as the issue. The first appellant was committing a development offence by using the land as a “junk yard” without development approval for that use. The use of the property to store the appellants’ material fell within the definition of “junk yard”. There is no requirement that the items be of no value. The fact that the first appellant was storing items for other people is indicative that the premises was used as a “junk yard”. For the first appellant’s use to be considered lawful, it must be ancillary to the residential use of the premises, where ancillary is understood to mean incidental and necessarily associated with. Mr Brennan and Mr Evans’ evidence indicated that the use could not be considered ancillary.
  1. [44]
    The first appellant was not storing the material as an owner/builder as his building permit had expired. The first appellant conceded in evidence that he knew that a building permit was required and that he was continuing to build despite not having the required permit. The $5,000 quote referred to by the first appellant is only a portion of the complete quote provided to him. There was no inflation of the scope of the project. The first appellant should not have been charged storage fees of $2,600 and the respondent would resolve this. The evidence of Mr Evans and Mr Brennan should be preferred to the photographs put to witnesses. The photographs were taken months before the respondent undertook the clean-up. Mr Brennan in cross- examination denied that there was an exclusion zone.

Law on an Appeal

  1. [45]
    An accurate summary of the legal principles which govern an appeal from the Magistrates court to the District Court are set out in the respondent’s written outline as follows. The appeal is brought pursuant to section 45 of the Magistrates Court Act 1921 (Qld) (“MCA”). The power of this Court to make orders on appeal arises under section 766 of the Uniform Civil Procedure Rules 1999 (Qld) (“UCPR”). On appeal from the Magistrates Court, the District Court has the same powers as the Court of Appeal to hear the appeal.[17] By rule 756(1) of the UCPR, the appeal is by way of rehearing. By rule 766(1)(c) of the UCPR, the Court may, on special grounds, receive further evidence as to questions of fact.
  1. [46]
    An exercise of discretion should not be interfered with unless an appellate court “reaches a clear conclusion that by reason of some error, whether of fact or law, the primary judge not only has taken a view different from that which the judges of the Court of Appeal would have taken if they had been in his place but has failed properly to exercise the discretion.”[18]
  2. [47]
    The appellant is required to show that the Magistrate in exercising the discretion did one of the following:[19]
    1. acted on a wrong principle of binding law;
    2. allowed extraneous or irrelevant matters to guide or affect the decision;
    3. mistook the facts or did not consider some material issue;
    4. gave such inadequate weight to relevant considerations that amounted to a failure to exercise the discretion; or
    5. the decision was so plainly unreasonable or unjust as to warrant the appeal court inferring that there has been a failure to properly exercise the discretion.
  1. [48]
    An appellate court should hesitate to intervene with the trial judge’s findings of fact where those findings are based on the credibility of witnesses unless the judge has “failed to use or has palpably misused his advantage or has acted on evidence which was inconsistent with facts incontrovertibly established by the evidence or was glaringly improbable.”[20]

Grounds of appeal

  1. [49]
    The notice of appeal raises five grounds of appeal which can be summarized as follows:
  • Ground 1: The Magistrate erred in not allowing evidence from Mr Robert Eric Lee.
  • Ground 2: The Magistrate did not conduct the trial by law and should have allowed new evidence to be heard.
  • Ground 3: The Magistrate erred in fact in relation to an alleged 20-metre exclusion zone around the residence on the property.
  • Ground 4: The Magistrate erred by not addressing all the claimed items in the statement of claim in M292/18 and M77/20.
  • Ground 5: The Magistrate erred in failing to address documents contained in the first appellant’s List of Documents.
  1. [50]
    These grounds of appeal are considered below.
  1. [51]
    The first appellant also sought leave to rely on new evidence in the form of affidavits from witnesses he had not called at trial.
  1. [52]
    I have examined the evidence at trial, and the Magistrate’s findings and reasons. I have had regard to the appellants’ and respondent’s written submissions and the first appellant’s and respondent’s oral submissions during the appeal hearing. Although there was no appearance by the second or third appellant, I consider it appropriate to have regard to their written outlines and the first appellant’s submissions made on their behalf in determination of the appeal.

Magistrate’s Decision

  1. [53]
    Before considering the separate grounds of appeal it is appropriate to review the Magistrate’s decision.
  1. [54]
    The Magistrate considered the first appellant’s evidence to be neither credible nor reliable in material respects. He found the first appellant’s evidence to be implausible and inconsistent with other evidence he accepted. The Magistrate provided several examples of the first appellant’s evidence he rejected, including the first appellant’s “assertions that he was told by the council that he could continue to build, despite official notices that his development approval had lapsed; his assertion that despite several enforcement notices detailing his breaches, that council officer Mick Brennan ‘never mentioned’ that he had to get rid of the tyres.”[21] He correctly noted the appellants had provided no admissible evidence to contradict the respondent’s evidence.
  1. [55]
    The Magistrate found the respondent’s witnesses’ evidence to be credible, convincing, and consistent with the respondent’s documentary evidence. He accepted their evidence where it differed from the first appellant’s evidence on material matters.
  1. [56]
    The Magistrate was satisfied the respondent had complied with the LGA, SPA and the LSCPS.
  1. [57]
    The Magistrate considered the definition of “junk yard”. “Junk yard” is defined in the LSCPS as:

The use of premises for collection, storage, abandonment, or sale of scrap metals, wastepaper, rags, bottles, or other scrap materials, or scrap goods, or used for the collection, dismantling, storage, salvaging, of automobiles or other vehicles, or machinery.

  1. [58]
    He determined that premises will be considered a “junk yard” for the purposes of the LSCPS when items are located on a property for one of the above-mentioned purposes. The value of the items is irrelevant. Storing items on a premises can, on this definition, result in the premises being considered a “junk yard”, even where some of those items have value. It was not the case, as the first appellant submitted, that an item having value prevented the premises where it is being stored from being a “junk yard”.
  1. [59]
    The first appellant was storing submarines, a boat hull, a Volvo Penta engine, trunk trailer axles, mag wheels, Glasshouse Mountain Bus (motorhome) and a boat rudder on the premises. These items clearly constituted “storage … of automobiles or other vehicles, or machinery”. Photographs of the property in situ provided evidence that there were scrap materials and scrap goods stored on the property, and that items including the motorhome, submarines and other property listed in the claim were in poor condition.
  1. [60]
    The Magistrate determined the respondent issued the Statutory Notices according to law. These notices gave the first appellant an opportunity to comply with the SPA and the LSCPS. To comply, the first appellant was required to undertake works to removes items that, by their storage on the premises, caused the premises to fall within the definition of “junk yard”. The first appellant failed to comply with the Statutory Notices. No such work was undertaken by the first appellant. The respondent was authorised by law to enter the premises and remove property.
  1. [61]
    The Magistrate determined that the first appellant’s use of the premises to store the items located there fell within the definition of “junk yard” under the LSCPS and was satisfied that the premises were unlawfully being used as a “junk yard”. The Magistrate referred to the case of Redland City Council v Gerling [2004] to clarify the term ‘use’ under the SPA. The Magistrate found that the use of the first appellant’s land in the present case was analogous, in that the storage of scrap metal, building materials, tyres, motor vehicle bodies and parts, was the overarching use of the allotment rather than an ancillary or subordinate use to the residential use. The Magistrate held that “under the scheme, once appropriate notice has been served, the [first appellant] could either show cause and demonstrate that it was not a “junk yard”, apply for a development approval for a material change of use, or work with the council to have the land use comply.”[22] The first appellant did none of those things.
  2. [62]
    The first appellant continued to take no action to bring the land to compliance, despite the respondent lawfully issuing a Show Cause Notice, Enforcement Notice and Remedial Notice. The Magistrate determined that pursuant to section 142 of the LGA, the respondent was authorised to enter the premises to act as required under the Remedial Notice. The respondent was authorised to remove to an appropriate waste disposal site all tyres, scrap materials, vehicles, machinery, other scrap materials and items within the definition of “junk yard” in the LSCPS that are not associated with the rural residential use of the land. The Magistrate noted that section 142 LGA provides that the costs of this action are recoverable from the person who failed to take action, namely the first appellant.
  1. [63]
    The Magistrate correctly noted that the appellants had not properly pleaded any cause of action, although the claim referred to the respondent removing property without the first appellant’s permission, and the respondent failing to return property that it had removed.[23]
  1. [64]
    The Magistrate accepted the respondent’s submission that section 147 LGA provided a statutory remedy for the appellants and ousted any otherwise applicable common law remedies such as the torts of detinue, trespassing and conversion. The Magistrate considered that “to establish a claim under section 147 LGA, the appellants must demonstrate that they have incurred damage or loss because of the council’s actions in exercising a power.”[24] The Magistrate considered the respondent’s actions, in removing the property from the first appellant’s premises, was an exercise of power authorised by statute, and therefore lawful.
  1. [65]
    The Magistrate determined that the appellants had failed to establish any loss or damage. He was satisfied, having regard to Mr Brennan’s and Mr Evans’ evidence, which he accepted, that all the items of value beyond scrap value taken from the premises “were either returned to the owners, are still in storage awaiting collection, or … all reasonable efforts had been made for them to be returned before they went to landfill.”[25] The Magistrate accepted their evidence that the value of scrap was factored into the quote, and used to offset the overall cost of removal.
  1. [66]
    The Magistrate then referred to some of the specific items listed in the claim. The Magistrate’s findings in relation to these items are later referred to and considered under Ground 4.
  1. [67]
    The Magistrate noted that the appellants provided no evidence, documentary or otherwise of the value of any of the items listed in the claim, and therefore had failed to prove any quantum of damages apart from bare assertions made by the first appellant during his evidence.
  1. [68]
    The Magistrate dismissed the claim. In relation to costs, applying section 147(4) LGA, the Magistrate declined to make an order for costs in favour of the appellants. He ordered costs follow the event.

Consideration of Magistrate’s Reasons

  1. [69]
    The Magistrate’s findings in relation to issues of credibility and reliability of the evidence were clearly open on the evidence and consistent with the documentary evidence. The first appellant’s evidence was often difficult to follow, strayed into irrelevant matters, comprised long passages of hearsay and was, on occasions, internally inconsistent and inconsistent with unchallenged documentary evidence of correspondence between him and the respondent. The photographs the first appellant relied on were either undated or taken months earlier.
  1. [70]
    The first appellant’s development permit lapsed seven years earlier, and he accepted he did not apply to extend the approvals. The first appellant was not living at the premises or present during the removal of property. Neither were the other appellants. The first appellant had not been at the premises since February 2016, so he could not give evidence of what property was in situ prior to removal, apart from what could be seen in the photographs tendered by the respondent. He could not give reliable evidence of the condition of the material taken from the premises. He accepted there were numerous tyres stored on the premises, an unregistered truck and building materials.
  1. [71]
    The first appellant accepted he received the Statutory Notices. He did not comply with the notices because he disagreed with the definition of “junk yard” in the LSCPS. The first appellant admitted that property had previously gone missing from the premises before the respondent removed property.
  1. [72]
    The appellants provided no evidence of the value of any items allegedly taken.
  1. [73]
    Mr Brennan’s and Mr Evans’ evidence, that the premises was mainly littered with items in various states of deterioration and disrepair, scrap, and rubbish, was corroborated by photographs. The respondent’s evidence, both documentary and oral, provided overwhelming evidence that the respondent and its contractors were lawfully on the land, and lawfully entitled to clear the premises.
  1. [74]
    I consider it was open to the Magistrate to be satisfied the respondent had reasonable grounds to issue the Statutory Notices that the premises was being used as a “junk yard” within the definition in the LSCPS; the first appellant did not comply with the notices; the material removed fit within the definition of “junk yard” in the LSCPS; the items removed were in a state of disrepair apart from items that were stored for collection; the money made from items sold as scrap metal was deducted from the costs of work undertaken by the respondent; the respondents acted in accordance with section 142 LGA.
  1. [75]
    There was no error in the Magistrate’s findings that the respondent was legally entitled to remove the appellants’ property pursuant to the LGA, the appellants consequently suffered no loss or harm, and the claim should be dismissed.
  1. [76]
    The appellant has failed to establish that the Magistrate acted on a wrong principle of law; or allowed extraneous or irrelevant matters to guide or affect the decision; or mistook the facts or did not consider some material consideration; or gave inadequate weight to relevant considerations. The appellants have failed to establish a failure by the Magistrate to properly exercise his discretion.
  1. [77]
    I now turn to consider the specific grounds of appeals and the appellants’ attempts to rely on new evidence by way of affidavit material.

Admissibility of further affidavit material

  1. [78]
    At the hearing of the appeal, the first appellant sought leave to rely on four affidavits said to contain evidence obtained after the original hearing. The first affidavit, filed on 3 June 2023 by the first appellant attached an affidavit of Mr Ford sworn on 27 May 2022. Mr Ford swore he had attended the premises in early October 2016 at the request of the second appellant and removed a burnt-out bus. He intended to remove other items that were in good condition, but the respondents turned up and had an argument with someone called Fred, so Mr Ford did not carry out further work.
  1. [79]
    The second affidavit, filed on 3 June 2022 by the first appellant attached an affidavit of Mr Robert Lee sworn on 4 May 2022. Mr Lee affirmed that he worked as a sub- contractor on the premises under Mr Evans for the duration of the council clean-up. Mr Evans gave him permission to take a site toilet, shed frame, and other items in exchange for money. He also saw Mr Evans remove items, including paint, a shipping container, a gas hot water system, granite, marble, and truck axles. Mr Lee told the first appellant he would give evidence at the trial but would need a subpoena because he lived in Tasmania at the time. Mr Lee did not receive a subpoena.
  1. [80]
    The third affidavit, filed on 23 December 2022 by the first appellant attached an affidavit of Mr Edward Hampton sworn on 22 December 2022. Mr Hampton, the first appellant’s neighbour in 2016, asserts that he did not own a site toilet.
  1. [81]
    The fourth affidavit was filed on 24 May 2023 by the first appellant and merely rehashes earlier submissions and attaches documents already before the court.
  1. [82]
    The second appellant filed one affidavit which contained statements by him that were known to him at the time of trial. He did not take the opportunity to give evidence of these matters at trial.
  1. [83]
    The third appellant’s affidavit filed 27 October 2022 is essentially a rehash of his and the first appellant’s grounds of appeal, specifically that Mr Lee should have been allowed to give evidence, and that the Magistrate failed to have regard to information in the third appellant’s list of documents (earlier filed under the rules of disclosure, and which the third appellant did not take the opportunity to give evidence about during the trial).
  1. [84]
    The respondent objects to the appellant’s reliance on the new affidavit material.
  1. [85]
    During the appeal hearing, I reserved my rulings until judgment about whether leave should be granted for the appellants to rely on the new affidavit material. It is not a right and always a discretionary power of the court to receive further factual evidence.[26]
  2. [86]
    The principles upon which further evidence will be received were discussed by the Queensland Court of Appeal in Thomson v Smith [2005] QCA 446. Muir JA cited the reasons of Lord Wilberforce in Mulholland v Mitchell [1971] AC 666 as follows:[27]

“I do not think that, in the end, much more can usefully be said than, in the words of my noble and learned friend, Lord Pearson, that the matter is one of discretion and degree. Negatively, fresh evidence ought not to be admitted when it bears upon matters falling within the field or area of uncertainty, in which the trial judge’s estimate has previously been made. Positively, it may be admitted if some basic assumptions common to both sides, have clearly been falsified by subsequent events, particularly if this has happened by the act of the defendant. Positively, too, it may be expected that courts will allow fresh evidence when to refuse it would affront common sense, or a sense of justice.”

  1. [87]
    The authorities establish that fresh evidence can be admitted if it:
  1. could not have been obtained with reasonable diligence for the original hearing;
  2. is such that, if given, it would probably have an important influence on the result of the case; and
  3. is apparently credible.[28]

Consideration

  1. [88]
    I accept the matters raised in the respondent’s submissions that support a finding that leave should not be granted to admit the four affidavits.
  1. [89]
    Mr Ford’s affidavit relates to a burnt-out bus that was never part of the proceedings. Mr Ford’s evidence would have had no bearing on the outcome of proceedings and could have been obtained with reasonable diligence prior to the trial. If the appellants are suggesting they had engaged Mr Ford to clean up the property prior to the respondent’s clean up, the appellants led no evidence of that at trial.
  1. [90]
    Mr Hampton’s evidence does not assist the appellant’s case because the respondent accepted in its opening that there were at least two site toilets on the premises, even though Mr Evans and Mr Brennan did not recall seeing them. In his decision, the Magistrate was satisfied that “the site toilet, if it was present on the site at the time of the clean-up would fall within the definition of “junk yard””.[29] Mr Hampton’s evidence would not have had a material bearing on the result of the proceedings, and the first appellant has failed to show Mr Hampton’s evidence could not have been obtained with reasonable diligence for the original hearing.
  1. [91]
    Mr Lee’s affidavit contains information the first appellant now wishes to rely upon. It is clear from the affidavit that Mr Lee informed the first appellant of this information during conversations and a visit he and the first appellant made to the premises in mid-June 2021, approximately 3 months before the first day of the original trial. Mr Lee’s affidavit was not sworn until 4 May 2022, after the Magistrate had delivered judgment against the appellants. At a Directions hearing prior to trial, the court ordered the appellants and respondents to file and serve summaries of evidence well before the commencement of the trial. The first appellant failed to do so in relation to evidence from Mr Lee. For these and other reasons discussed below, the affidavit does not satisfy the test for leave to be granted to file the affidavit. Neither the first appellant’s affidavit, nor Mr Lee’s affidavit explained why the appellants had not provided this information to the respondents prior to trial.
  1. [92]
    The first appellant’s affidavit dated 24 May 2023 does not contain any evidence. It does not satisfy the test for leave to be granted. As noted above, it merely repeats earlier submissions and attaches documents already before the court.
  1. [93]
    The second appellant chose not to give evidence at trial and asked limited questions in cross-examination. To the extent that his written outlines of argument contain statements amounting to evidence, that evidence could have been given at the original hearing. The second appellant has provided no explanation for failing to do so. I disregard that material.
  1. [94]
    I also disregard the third appellant’s affidavit filed for the appeal hearing, because it repeats earlier submissions and attached a List of Documents which contains material that could have earlier been introduced to the court at the trial (assuming it was ruled to be admissible).
  1. [95]
    I consider that the information in the four affidavits was known to one or more of the appellants prior to the original hearing and could have been presented as evidence to the Magistrate at the time of the original hearing. The Magistrate was clearly mindful of the fact the appellants appeared self-represented and afforded them leniency in allowing the appellants to present their evidence, and cross-examine the respondents witnesses extensively (over a four-day period). The fact they were self-represented does not afford them the opportunity of improving upon their original case at an appeal hearing.[30]
  2. [96]
    Leave to lead new evidence is refused.

Grounds of Appeal

Ground 1

  1. [97]
    The appellants submit the Magistrate erred by refusing to grant leave for Mr Lee to be called as a witness.[31]
  2. [98]
    At the commencement of the trial, the first appellant informed the Magistrate he wished to call Mr Lee to give telephone evidence. The first appellant informed the Magistrate that Mr Lee told him he was one of the workers on his property “that was actually taking stuff”, and Mr Lee also told him he had toilets from the property and “he’s crucial because he’s seen everything. He was there. He knows what was taken”.[32]
  3. [99]
    The respondent objected to Mr Lee’s evidence on the basis the first appellant had failed to comply with a pre-trial Magistrates Court order made on 16 April 2021 in the first appellant’s presence.[33] Relevantly, the order directed both the appellants and respondent to provide any summaries of evidence, upon which they intend to rely at the trial. The appellants were ordered to provide a summary of any evidence they intended to call to the respondent on or before 9 August 2021. The appellants had failed to put the respondent on notice that Mr Lee would be called as a witness.[34] The respondent had therefore been denied the opportunity to undertake any investigations in relation to what Mr Lee would say.[35] Counsel for the respondent asserted that granting leave for Mr Lee to give evidence would be a breach of the order dated 16 April 2021.[36]
  1. [100]
    The first appellant explained to the Magistrate that he did not provide Mr Lee’s summary of evidence because the first appellant “didn’t really want to have too much conversation with [Mr Lee] because I didn’t want to look like I- that I’m using him, and I was keeping my distance from him, so it wasn’t going to be looking like they I’m coercing him. So, I’ve kept my distance from him.”[37] The first appellant told the Magistrate he therefore found himself between a rock and a hard place, and for that reason did not provide the respondent with a summary of his evidence.[38] The first appellant also submitted that he had tried to subpoena Mr Lee, but the court registry had made things difficult resulting in the subpoena not being issued. The first appellant also claimed that he had not notified the respondent’s counsel because he did not know if Mr Lee would be giving evidence at the trial or not.[39]
  2. [101]
    The Magistrate ruled that the first appellant had failed to comply with the Magistrates Court order made on 16 April 2021, and he had also failed to comply with rule 415(10) of the UCPR. The Magistrate considered that the failure to provide a summary of Mr Lee’s evidence amounted to procedural unfairness to the respondent to adequately prepare its case.[40]
  3. [102]
    At the appeal hearing, the first appellant agreed that he knew of Mr Robert Lee prior to the trial commencing.[41] The first appellant also agreed that he did not provide the respondent with a summary of Mr Lee’s evidence prior to the trial.[42] He submitted that he attempted to file a subpoena for Mr Lee on two separate occasions prior to the trial but was unsuccessful.[43] He submitted that on the first occasion he was told by the registry that the subpoena was in the wrong form and on the second occasion that the Magistrate could make a decision about the subpoena in court.[44] The appellant submitted that Mr Lee was not present on the day of the hearing because he lives in Tasmania and would have had to quarantine for 14 days due to the covid-19 pandemic.[45]
  4. [103]
    The respondent submits that the decision of the Magistrate to refuse the admission of Mr Lee’s evidence was discretionary. It was open to him to refuse the appellant’s application on the basis that the appellants had not produced a summary of evidence as required by Court orders and to allow Mr Lee’s evidence would constitute a breach of those orders. The respondent submits it would have been unfairly taken by surprise if Mr Lee had been allowed to give evidence. In any event, the first appellant cross- examined Mr Evans and Mr Brennan about the allegations contained within Mr Lee’s affidavit. The respondent’s witnesses denied the allegations.

Consideration

  1. [104]
    I accept the submissions made on behalf of the respondent. The Magistrates Court order dated 16 April 2021 required the appellants to deliver any summaries of evidence on which they intended to rely at trial on or before 9 August 2021. The order also contained a direction that evidence-in-chief of lay witnesses is to be given orally and unless leave is given, must be confined to the issues outlined in the parties’ summaries of evidence. The order clearly outlined the appellants’ responsibility to provide the respondent with summaries of evidence and gave them plenty of time to do so.
  1. [105]
    The first appellant made no submissions that indicated he was unaware or did not understand the direction to provide a summary of Mr Lee’s evidence to the respondent by 9 August 2021. The first appellant evidently understood the orders as he provided a summary of his own evidence to the respondent.
  1. [106]
    It is not possible to assess whether Mr Lee’s evidence would have been accepted as credible and reliable, or to what extent it would have impacted the Magistrate’s findings. The Magistrate determined the evidence of the respondent’s witnesses to be credible and reliable. Their evidence was to some extent supported by documentary evidence. I am not satisfied that Mr Lee’s evidence would have been relevant to the Magistrate’s findings that the respondent was lawfully on the first appellant’s premises. I consider Mr Lee’s evidence would not have affected the Magistrate’s findings that the state of the first appellant’s premises fitted within the definition of “junk yard”. Nor would it be likely to have affected his view of the credibility of the respondent’s witnesses, particularly given that much of it was supported by contemporaneous documents and photographs.
  1. [107]
    In any event, I accept that the respondent would have been unfairly taken by surprise if Mr Lee had been allowed to give evidence. The first appellant did not even have a summary of Mr Lee’s evidence to provide to the respondent on the first day of trial when he made the application to call him. It is an important aspect of procedural fairness that the parties in a proceeding are notified of the case against them. The pre- trial orders relating to the exchange of summaries of evidence were intended to simplify the disclosure process for the self-represented appellants. Although the court process can admittedly be challenging for self-represented litigants to navigate, fundamental aspects of the process such as disclosure should not be waived and must equally apply to all parties.
  1. [108]
    It is at the discretion of the Court to refuse leave for a witness to be called where there has been non-compliance with orders relating to the evidence of that witness. In my view, the first appellant did not provide a valid reason to the Magistrate for failing to comply with the order.
  1. [109]
    The first appellant has not satisfied me that the Magistrate erred in the exercise of his discretion in refusing leave to the first appellant to call Mr Lee as a witness.

Ground 2

  1. [110]
    The appellant submits that the trial judge did not allow new evidence to be heard. The appellant can only be referring to one or two groups of witnesses. First, at the beginning of the trial the Magistrate asked the first appellant if he had witnesses other than Mr Lee he was calling. The first appellant mentioned Conan Taylor, who he said was in South Australia and could not travel to attend court. His evidence was to be about working on the submarines. Second, during the trial, at the end of the first appellant’s evidence, the Magistrate asked him if wanted to call any other witnesses. The first appellant mentioned he wanted to call a carrier named Tony about the value of some property, but Tony had since died. He was thinking of calling a yardman who saw him load property he purchased onto a truck, but he was too busy to attend court.
  1. [111]
    The first appellant identified in three outlines of submission filed before the appeal that he wanted to call other witnesses at the trial but was unable to for various reasons. However, these witnesses were never identified by the appellants at the original trial. The appellants have no basis for arguing the trial judge did not allow for new evidence to be heard from witnesses he failed to identify at the trial. This ground of appeal fails.

Ground 3

  1. [112]
    The appellants submit that the Magistrate erred when considering evidence about an alleged 20-metre “exclusion zone” around the residence on the premises. At the appeal hearing the first appellant asserted that photographs revealed that there was an exclusion zone around the residence.[46] The first appellant submitted that property should not have been removed from within that exclusion zone.[47] It seems the first appellant’s submission is that the removal of property from within a 20-metre area around the zone was unlawful.
  1. [113]
    At trial the respondent’s witness Mr Brennan gave evidence that the workers established an exclusion zone around the residence. Mr Brennan testified that the perimeter of the exclusion zone was determined by what the workers considered to be of rural residential use.

Were any areas of the site not worked on?---That’s right. We had a, sort of, an exclusion zone around the – around the residence. Basically, on the side of the – there’s a bit of a track goes in beside the residence. From there over, right down there’s a there’s a swimming pool behind the house. We didn’t, sort of, go down into there or go into the western side of it. We, sort of, said, well, even though there was a lot of rubbish and stuff there, we, sort of, said that’s what we considered to be reasonable to for the an area for the rural residential use, and the rest of it we believed – reasonably believed was was associated with the unlawful use.[48]

  1. [114]
    In cross-examination the first appellant put to Mr Brennan that property was removed from a shipping container within the exclusion zone and that this was not allowed. Mr Brennan responded:

“No, that’s that’s not correct. I said we made a we made a we were quite entitled to go right into the edge of the house, and we didn’t do that, for a good reason. Like, we wanted to be fair.[49]

  1. [115]
    I consider the first appellant has misconstrued Mr Brennan’s evidence to mean a 20- metre exclusion zone legally existed around the outside area of the house which the workers could not enter. Mr Brennan’s reference to an exclusion zone was no more than a proposed procedure for workers to follow when undertaking the work on the premises. It was not indicative of a legal requirement or precondition for undertaking the work. Mr Brennan’s evidence was that the shipping container which the first appellant suggested was in the exclusion zone, was part of the “junk yard” and its presence constituted an unlawful use of the premises. The Magistrate was entitled to accept Mr Brennan’s evidence on this point, and he did. There is no merit in this ground of appeal.

Ground 4

  1. [116]
    The first appellant submits the Magistrate erred by not addressing all the claimed items in the Statement of Claim in M292/18 and M77/20 in his decision.[50]
  2. [117]
    The items listed in the claims are set out above in [3].
  1. [118]
    The respondent submits that “the Magistrate’s decision has at the end a very broad sort of catchall of the property dealt with by [the respondent] which is sufficiently wide to address any of the matters that may not have been mentioned expressly.”[51] The respondent submits it was unnecessary for the Magistrate to particularize each item listed in the claims.

The Magistrate’s references to the items claimed

  1. [119]
    The Magistrate concluded in his judgment: “I have found that of the first appellant’s property which was dealt with by the council:
    1. if the material was redeemable in that it had some potential value beyond scrap, it was retained by Evans for collection, and the owners were given the opportunities to collect this property;
    2. if the material was of the nature of scrap or deteriorated, it was scrapped;
    3. it was if it was deteriorated such that it had no value, it went to landfill;
    4. if it was deteriorated and unable to be removed intact, such as the boat, it was cut up on site and sent to scrap or landfill, and
    5. I consider that in each case, the treatment of the property was in the above- mentioned manner and was appropriate and authorised.”[52]
  2. [120]
    In addition, the Magistrate specifically referred to some of the items allegedly removed from the premises, including the property highlighted by the first appellant during his evidence at the trial, and items removed which allegedly belonged to the second and third appellants.
  1. [121]
    The Magistrate had regard to the first appellant’s evidence of specific items he claimed were on the property, and to the first appellant’s evidence that he considered them to be valuable and in good working order.[53] The Magistrate correctly identified that none of the appellants had provided documentary or oral evidence of the value of any of the items referred to by the first appellant during his evidence, or of any of the items listed in the claims.
  1. [122]
    The Magistrate in his decision specifically referred to the Volvo Penta engine, two submarines, boat hull, site toilets, marine paint, shed frame and roofing iron, Italian marble, I-Beams and disco lights. Some examples of his findings follow.
  1. [123]
    Marine paint: The Magistrate was not satisfied on the balance of probabilities that the paint was located on the premises when the respondent entered the premises.[54] The Magistrate referred to the first appellant’s concession that property had gone missing from the premises before the respondent had acted. There were no photographs of the paint and none of the witnesses for the respondent recalled seeing any paint. The Magistrate noted that the first appellant had provided no evidence to substantiate bare assertions that Mr Evans had misappropriated the paint.
  1. [124]
    The toilets: The Magistrate found that if the site toilets were present at the time the respondent took action, they fell within the definition of “junk yard”.[55] The Magistrate accepted there were some photos tendered as evidence, such as photo 293 of exhibit 5, “which appeared to show a site toilet prior to the clean-up”.[56] The first appellant provided no evidence as to purchase, value, age or condition.
  1. [125]
    Submarines: The two submarines were scrapped because the first appellant failed to collect them, despite encouragement from the respondent. The Magistrate found that the submarines were “in a state of disrepair and decay” and on balance agreed with Mr Evans’ assessment that they had no value. Later in the decision, the Magistrate considered the submarines to have value beyond scrap value but were only sent to landfill after “all reasonable efforts had been made for them to be returned”. The Magistrate was satisfied that the submarines “were correctly scrapped at an appropriate waste disposal site”.
  1. [126]
    Volvo Penta engine: The Magistrate was satisfied on the evidence that the engine was located on the premises at the time the respondent entered the premises. The engine had not been returned but remained available for the second appellant to collect.
  1. [127]
    Disco Lights: The magistrate accepted the unchallenged evidence that the disco lights were available for the second appellant to collect.[57]
  2. [128]
    Glass House Mt Bus [motorhome]: The third appellant’s claim is limited to the Glasshouse Mountain bus and an LPG hot water system. The Magistrate considered the motorhome to be “in a poor state of repair. It was simply a shell of a bus, full of rust. It had no motor, gearbox, or axles.” The Magistrate accepted Mr Evans’ evidence that the bus could not be removed without causing further damage and that it “fell withing (sic) the definition of a premises used for collecting, dismantling, storage, or salvaging of automobiles or other vehicles or machinery.” [58]
  3. [129]
    Hot water System: The Magistrate did not refer to the hot water system identified in claim M292/18. The only reference to the hot water system during the trial was during cross examination of the first appellant, who agreed that he was not present on the day the motorhome was removed and did not know if the hot water system was there on the day.[59]
  1. [130]
    Marble: At the time of trial, the owner of the marble had collected it, and the first appellant was aware of that.[60]
  2. [131]
    Other items: The Magistrate was satisfied that “the shed frame, roofing iron, I-beams, reinforcing rods, and other miscellaneous items” fell within the definition of “junk yard”.[61] The Magistrate did not specifically refer to any of the other building materials listed in the claim.
  1. [132]
    Jewellery: At the appeal hearing, the first appellant submitted that the second appellant left some of his mother’s jewellery in a shipping container. The Magistrate did not refer to the second appellant’s mother’s jewellery. The second appellant’s mother’s jewellery did not form part of the claim. During the cross examination of Mr Evans, the second appellant raised the proposition that some of his mother’s jewellery was in a shipping container, but he did not ask Mr Evans any questions about it.[62] The second appellant did not give evidence about it at trial. At the appeal hearing, the first appellant conceded that the jewellery was not included in either claim.

Consideration

  1. [133]
    The two claims and the items listed therein do not of themselves amount to evidence that each of those items were on the first appellant’s premises at the time the respondent lawfully removed property from the premises. It was for the appellants to prove each item in the two claims was present on the premises at the relevant time and removed by the respondent.
  1. [134]
    The first appellant gave evidence of only some of the items listed in the claim. The first appellant cross-examined the respondent’s witnesses about only some of the items listed in the claim, and the respondent’s witnesses could not recall whether some of the items claimed were present or not. The respondent tendered photographs taken during the removal process. The photographs showed many items located on the premises were in very poor condition. The first appellant tendered some photographs; however, these were not taken at the time of removal, but months before.
  1. [135]
    The first appellant did not specify in his outline of argument or oral submissions what specific items from the claims constituted “building materials”.[63] The Magistrate accepted Mr Brennan and Mr Evans’ evidence that wood left on the premises was in extremely poor condition, and that neither could recall other building materials.
  1. [136]
    The effect of the Magistrate’s findings was that the appellants had failed to prove:
  1. that some of the property listed in the claims was on the premises at the relevant time, and that therefore all property listed in the claims was removed by the respondent.
  2. the value of any of the property removed (also see ground 5).
  1. [137]
    The appellant has not demonstrated that the Magistrate’s findings were not supported by the evidence. This ground fails.

Ground 5

  1. [138]
    The appellants in their outlines of argument referred to the Magistrate’s failure to consider the appellants’ List of Documents. The first appellant clarified during the appeal hearing that the List of Documents was filed as part of the pre-trial discovery process. The first appellant submitted he did not appreciate that the List of Documents did not form part of the evidence at trial. The first appellant explained the List of Documents contained receipts to prove both the value of items removed from the premises by the respondent and what the appellants had paid for the items claimed.[64] The first appellant during the appeal hearing conceded that he did not tender any of the receipts or provide other evidence relevant to the value of items removed.[65] The second and third appellants also did not tender or call evidence to establish the value of the items. The first appellant explained that he thought the List of Documents was already in evidence because it had been filed and did not know that evidence of receipts and value should have been introduced as evidence during the trial.[66] The first appellant submitted that his understanding was that the respondent was able to question witnesses about the List of Documents.[67] Another reason the appellant gave for not tendering the List of Documents was that by the fourth day of trial his concentration was affected (it can be inferred, that he forgot to) and also he ran out of time.[68]
  2. [139]
    The respondent submits the List of Documents is not evidence. The appellants failed to introduce any receipts into evidence. The Magistrate was not required to read and interpret discovery documents that were not drawn to his attention during trial. The appellants bore the onus of proving their case and drawing the Court’s attention to documents they were relying upon.

Consideration

  1. [140]
    The arguments raised by the respondent are valid. The List of Documents filed in the discovery process was not evidence in the trial. It was not incumbent upon the Magistrate to read through discovery documents. On the first day of the trial the Magistrate reminded the appellants on at least two occasions, that if they wished to prove the value of items removed from the premises, they would have to demonstrate the value of items in evidence, for example by tendering receipts.[69] The Magistrate gave the first appellant time at the end of his evidence to consider whether there was other evidence he wished to call. The second and third appellants would have heard these exchanges, yet they chose not to give or call evidence.
  1. [141]
    The appellants attached some documents, purporting to be receipts, to their written outlines of argument filed on this appeal. They are not admissible on the appeal. In any event, a cursory reading of the documents reveals a mixture of handwritten quotes from unknown sources, or under the hand of one of the appellants; invoices without evidence of payment, quotes as opposed to payment and very dated receipts –most would have been inadmissible at trial or carried little weight without other evidence to prove their validity.
  1. [142]
    I do not consider the Magistrate erred in not having regard to the List of Documents as evidence.

Other matters

  1. [143]
    The second and third appellant’s written material repeated the issues already considered above. Additionally, the third appellant submitted in the outline of argument filed on 3 December 2022 that he was not given an opportunity to cross- examine a witness about a particular issue. He does not identify what issue that was. However, the trial transcript shows the third appellant was given sufficient opportunity to cross-examine witnesses. The other matters raised by each appellant were unclear in their meaning or irrelevant.

Conclusion

  1. [144]
    The appeals are dismissed. The parties are to file written submissions in relation to costs before 4pm on 26 January 2024, unless costs are agreed.

Footnotes

[1]Laidley Council Planning Scheme Schedule 1.

[2]Appeal transcript, 1-9.

[3]Appeal transcript, 1-2.

[4]Appeal transcript, 1-5.

[5]Appeal transcript, 1-7.

[6]Exhibit 2.

[7]Trial transcript, 2-17 to 2-19.

[8]Exhibit 9.

[9]Exhibit 1, attachment 16.

[10]Exhibit 10.

[11]Exhibits 11-15.

[12]Trial transcript, 2-114.

[13]Trial transcript, 2-114.

[14]Trial transcript, 2-114.

[15]Trial transcript 2-122 to 2-123.

[16]The written submissions were not able to be located on the Magistrate’s court file. The respondent supplied a copy at the request of the Judge’s associate on 5 December 2023.

[17]District Court of Queensland Act 1967 (Qld) s 113; Magistrates Courts Act 1921 (Qld) s 47; UCPR rr 766, 785(1).

[18]Mace v Murray (1955) 92 CLR 370,378.

[19]House v the King (1936) 55 CLR 499,504-505.

[20]Fox v Percy (2003) 214 CLR 118 following Devries v Australian National Railways Commission (1993) 177 CLR 472, 479.

[21]Reasons for Judgment, 8.

[22]Reasons for Judgment, 9.

[23]Reasons for Judgment, 10.

[24]Reasons for Judgment, 12.

[25]Reasons for Judgment, 13.

[26]Hawkins v Pender Bros Pty Ltd [1990] 1 Qd R 135 at 37.

[27]Pickering v McArthur [2010] QCA 341 at [21].

[28]The principles applicable to the issue of whether leave ought to be granted to adduce further evidence were concisely summarised by the Queensland Court of Appeal in Jonathan v Mangera & Anor [2016] QCA 86 at [11] and [21]; see also Pickering v McArthur [2010] QCA 341 at [22].

[29]Reasons for Judgment, 13; Appeal transcript, 1-78.

[30]Robertson v Hollings & Ors [2009] QCA 303 [11].

[31]Also referred to as the Sunstate recyclers crane driver or contract witness by the appellants.

[32]Trial transcript, 1-7 to 1-8; 1-10 ll 30-40.

[33]The order of Magistrate Sheppard dated 16 April 2021 is on the court file.

[34]Trial transcript, 1-14.

[35]Trial transcript, 1-14.

[36]Trial transcript, 1-14.

[37]Trial transcript, 1-18 ll 38-41.

[38]Trial transcript, 1-18 ll 20-19 and 25.

[39]Trial transcript, 1-17.

[40]Trial transcript, 1-17 to 1-20.

[41]Appeal transcript, 1-22.

[42]Appeal transcript, 1-23.

[43]Appeal transcript, 1-25 to 1-26.

[44]Appeal transcript, 1-25 to 1-26.

[45]Appeal transcript, 1-22.

[46]Appeal transcript, 1-96.

[47]Appeal transcript, 1-97.

[48]Trial transcript, 2-114.

[49]Trial transcript, 3-69 to 3-70.

[50]Paragraph 3 of first appellant outline of argument.

[51]Appeal transcript, 1-37.

[52]Reasons for Judgment,14 ll 15-24.

[53]Reasons for Judgment, 3 (I-Beams, fence palings, cladding, tiles, marble, submarines, trucks, portable toilets, handgun, disco lights).

[54]Reasons for Judgment, 13 ll 33-34.

[55]Reasons for Judgment, 13 ll 39-40.

[56]Reasons for Judgment, 13 ll 37-38.

[57]Reasons for Judgment, 13 l 8.

[58]Reasons for Judgment, 13 ll 20 and 22-25.

[59]Trial transcript, 1-86.

[60]Exhibit 1, attachment 57.

[61]Reason for Judgment, 13 ll 18-19.

[62]Trial transcript 2-93.

[63]Appeal transcript, 1-36.

[64]Appeal transcript, 1-38.

[65]Appeal transcript, 1-39.

[66]Appeal transcript, 1-39.

[67]Appeal transcript, 1-43.

[68]Appeal transcript, 1-40.

[69]Trial transcript, 1-12 to 1-13.

Close

Editorial Notes

  • Published Case Name:

    Kenefick & Ors v Lockyer Valley Regional Council

  • Shortened Case Name:

    Kenefick & Ors v Lockyer Valley Regional Council

  • MNC:

    [2023] QDC 249

  • Court:

    QDC

  • Judge(s):

    McGinness DCJ

  • Date:

    21 Dec 2023

Appeal Status

Please note, appeal data is presently unavailable for this judgment. This judgment may have been the subject of an appeal.

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