Edwards v Colleton [1995] QSC 198

TRANSCRIPT OF PROCEEDINGS (Copyright in this transcript is vested in the Crown. Copies thereof must not be made or sold without the written authority of the Director, State Reporting Bureau.) · ... SUPREME COURT OF QUEENSLAND CIVIL JURISDICTION CULLINANE J No OA 24 of 1995 PETER THOMAS EDWARDS and MICHAEL HARRY COLLETON TOWNSVILLE .. DATE 14/08/95 JUDGMENT .,REVISED coPiEs iss0c1. ·7 Court Reporting Bureau l Date i5 I 8 I q(j Applicant Respondent -Ith Floor. ThC' I.an Court.-;, GrnrJ!C' Strc<'I, Hrhb:int•, Q. -1000 Tclcpho11c: (07) 1.17-1360. Facsimilt': (07) 227 5532 -- 1 of 6 -- 'I 140895 HIS HONOUR: The application is dismissed. I order the applicant to pay the respondent's cost of and incidental to the application, to be taxed. I publish my reasons. There will be liberty to the parties to apply on the question of costs if they wish. 2 JUDGMENT 1,c,. 10 20 (,,_ 30 40 50 60 -- 2 of 6 -- ( ( ( IN THE SUPREME COURT OF QUEENSLAND TOWNSVILLE BETWEEN: PETER THOMAS EDWARDS AND: MICHAEL HARRY COLLETON O.A. No. 24 of 1995 Applicant Respondent REASONS FOR JUDGMENT - CULLINANE J. DELIVERED THE FOURTEENTH DAY OF AUGUST, 1995 In this matter the Applicant seeks a prerogative order pursuant to the provisions of Part 5 of the Judicial Review Act 1991 as amended. The order is sought in respect of the judgment of a Judge of the District Court exercising the appellate jurisdiction provided for in Section 222 of the Justices Act 1886 as amended. Although there was raised in the statement of issues placed before the Court a question as to the power of the Court to entertain an application for a prerogative order in respect of such a judgment I think that it is fair to say that ultimately the Respondent accepted that the Court had such a power. See Westpac Banking Corporation -v- Commissioner of Stamp Duties (1994) 1 Qd.R. 19 and Stevenson -v- Wenck (1994) 85 L.G.E.R.A. 161. The Respondent however contended that in view of the provisions of Section 227 of the Justices Act the Court ought to exercise the discretion inferred upon it by Section 12(b) -- 3 of 6 -- ( ( ( 2 to refuse the order. It is in the result unnecessary for me to deal with this. The Applicant sought the order because of a claimed error of law appearing on the face of the record. The Applicant had been convicted of an offence under the bylaws of the Shire of Johnstone. An element of the offence was that the area where the relevant activity occurred was a road. The Applicant contended that the District Court had erred in law in concluding that the area was a road and that such error was apparent on the face of the record. The questions which the District Court considered had to be answered in order to resolve the appeal were twofolO: (a) Was the land dedicated to public use? (b) Was that public use as a road? The area was described in some of the evidence as an ( esplanade. It was also referred to as a reserve. At page 3 of the judgment of the District Court the following passage appears:- "It is common ground that it is not made up but remains a grassed area. It is also common ground that it is used by the public for passage on foot along the seafront and to the sea itself which abuts the esplanade. On the other side of the esplanade there are houses and at a number of points, access through those houses to the esplanade by means of areas marked 'road' on exhibit 7." -- 4 of 6 -- 3 The Court concluded that the land had been dedicated to public use and that that public use was as a road and thus the area fell within the definition contained in the Local Government Act 1933 as amended. In my view the questions (which placed together raised the single question whether the land in question had been dedicated as a road) which His Honour posed are not questiQns of law but are questions of fact. Whether land has been dedicated for public use as a road is always a question of fact which will involve considerations of the actions of the ( Crown where it ia Crown land under consideration or a proprietor where private land is under consideration~ the use of the land as a road and the history of the relevant lancl generally and where a statutory procedure for:.;~edicatiOft la ' :.",· '·(. . . ·:··. ··.,,' ......,.;·\·,'. ( ( relevant, whether the evidence establishes compliance with it. See Ex Parte: Louis Alley Gould in Re: The Registrar-General and the Master of Titles 1 Q.S.C.R. 130 at 132 where the Court said:- "There could be no doubt that there might be a public highway over a place where there was no thoroughfare but the existence of the highway was a question of fact " There are many cases in which the Courts have had to consider whether on the evidence dedication had occurred. It is as much a question of fact where the land is Crown land as it is where it is privately owned and the same considerations apply. See Turner -v- Walsh (1881) 6 A.C. 636. -- 5 of 6 -- ( ( ; 4 It follows that no application for a prerogative order can be entertained in respect of the matter (see Section 41(2)). The application is dismissed. I order the Applicant to pay the Respondent's costs of and incidental to the application to be taxed. -- 6 of 6 --