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[2024] QCA 103
respondent. The application for leave to appeal was dismissed with costs.
The Court of Appeal refused Mr Singleton permission to appeal. It considered that his arguments about owning the removed items and not being named in the council order were raised too late and did not answer the statutory basis for the council’s action. His proposed new affidavit did not satisfy the requirement that the evidence could not have been obtained with reasonable diligence for trial. His complaint about being unable to collect some items depended on that affidavit, and asking for a new hearing was not itself a ground of appeal. The application was dismissed with costs.
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2,352 words · generated 08/10/2026
This was an application for leave to appeal, not a full appeal hearing on whether the council had wrongly removed Mr Singleton’s property. The applicant, Darrell Singleton, asked the Queensland Court of Appeal for leave to challenge a District Court decision dismissing an appeal from the Magistrates Court. The Court of Appeal dismissed his application with costs.
3 cited instruments linked from this judgment.
Before 2014, Mr Singleton had placed chattels on land at Plainland owned by Steven Kenefick. Some were in a 40-foot cream shipping container; a Penta motor and Penta leg were stored outside it ([4]). The items listed in the pleadings included street lights and disco controls, a welder, tools, furniture, an air compressor, wheels and a fuel tank ([5]). The Court said it was possible Mr Kenefick was a bailee of some items, but that was “far from clear on the evidence” ([5]).
The land was in a rural residential zone. Mr Kenefick’s earlier development approval had expired, and the council had received complaints about the condition and use of the property ([7]–[8]). The council issued a show cause notice to Mr Kenefick on 25 March 2015 ([8]). It later issued an enforcement notice on 26 February 2016, requiring him to stop using the land for specified storage and to remove items not associated with rural residential use ([10]). Following further council steps, including a remedial action notice, council officers and contractors entered the property on several dates in October and November 2016 and removed chattels ([11]).
Mr Kenefick and Mr Singleton claimed against the council for the value of items they said had been wrongfully removed. Their Magistrates Court claims were dismissed on 12 April 2022. Their appeal to the District Court was dismissed on 21 December 2023 ([12]–[13]). Mr Singleton’s application for leave to appeal was filed on 8 January 2024 ([14]).
His proposed grounds included that he was not named in the enforcement order, that he owned items stored on the land, that he had not known about the order, and that fresh evidence from a neighbouring landowner would show what was removed and who cut the container’s padlock ([15]–[16]). He also sought a hearing de novo. The Court assessed whether those proposed grounds met the restricted leave threshold, rather than conducting a new trial of the underlying property dispute.
Crow J stated that leave under s 118(3) of the District Court of Queensland Act 1967 (Qld) requires both a reasonable argument that there is an error to be corrected and a need to correct substantial injustice ([2]). The Court referred to Commissioner of Police v Antoniolli, which identifies other possible bases for leave, but noted that those alternatives were not argued in this case ([2] fn 1).
The first two proposed grounds concerned Mr Singleton’s ownership and the fact that he was not named in the enforcement order. The Court identified two problems. First, the arguments had not been raised at trial. It stated that new matters may be raised on appeal only in exceptional circumstances, where the interests of justice require it and where the course would not prejudice the other party ([18]). The council might have led evidence to challenge the factual assertions had they been raised earlier ([18]).
Second, the Court considered that those arguments misconceived the statutory power. It set out s 142 of the Local Government Act 2009 (Qld), under which, after a responsible person fails to take action required by a remedial notice, a local government worker may enter the property after reasonable entry notice and take that action ([19]). The remedial requirement concerned removing items of the specified kinds that were not associated with rural residential use ([10], [20]). The Court interpreted s 142(2)(b) as making the owner of a particular chattel, and whether that person was named in or knew of the enforcement order, immaterial to the authority to carry out the required action ([20]). It treated service on Mr Kenefick, the property owner and responsible person, together with his failure to comply, as engaging that power ([20]).
For the proposed fresh evidence, the Court considered Mr Hampton’s affidavit sworn on 11 November 2023. It described the affidavit as recounting observations of the 2016 removal and an account that Mr Kenefick purchased an air compressor and other material from the contractor ([21]). Because the District Court appeal was from a final judgment and the affidavit concerned events before that judgment, Mr Singleton had to establish special grounds for receiving the evidence under r 766 of the Uniform Civil Procedure Rules 1999 (Qld) ([22]–[24]).
The Court referred to the considerations stated in Clarke v Japan Machines (Australia) Pty Ltd: whether the evidence could have been obtained with reasonable diligence for trial, whether it would probably have an important influence on the result, and whether it was apparently credible ([25]–[26]). Even assuming the latter two considerations in Mr Singleton’s favour, he had not shown that the evidence could not have been obtained with reasonable diligence ([27]). The fresh-evidence ground therefore had no prospect of success.
The remaining factual complaint appeared to be that Mr Singleton had not had an opportunity to collect some items. The Court said this issue had not been raised before the Magistrate or the District Court Judge and depended on Mr Hampton’s affidavit, which could not be admitted on the proposed basis ([30]). It also held that asking for a hearing de novo was not itself a ground of appeal ([28]). Taken together, the proposed grounds did not disclose a reasonable argument of error requiring correction, so leave was refused ([31]–[32]).
The judgment applied established principles rather than announcing a new general leave-to-appeal test. It stated the applicable threshold as a reasonable argument of error plus the need to correct substantial injustice ([2]). It also noted, by reference to Antoniolli, that a proposed appeal may alternatively raise an important point of law or principle or a question of general or public importance, but those alternatives were not advanced by Mr Singleton ([2] fn 1).
On new matters raised on appeal, the Court applied the principle attributed to Water Board v Moustakas: a party may only raise matters not raised at trial in exceptional circumstances, where the interests of justice require it and doing so would not prejudice the other party ([18] and fn 6). The judgment does not purport to alter that principle. It applies it to the late ownership and notice assertions and identifies the possible prejudice to the council.
For local government remedial action, the decision explains the Court’s reading of s 142(2)(b) of the Local Government Act 2009 (Qld). Where a responsible person has failed to comply with a remedial notice, the authority to take the action required by that notice is not conditioned on ownership of each item or on the item-owner being named in, or having notice of, the enforcement order ([19]–[20]). This is the judgment’s construction of the statutory scheme in the circumstances before it. It should not be enlarged beyond the notice and statutory provisions discussed in the reasons.
For further evidence, the Court applied r 766 and the considerations cited from Hawkins v Pender Bros Pty Ltd and Clarke v Japan Machines (Australia) Pty Ltd ([22]–[27]). It did not change those requirements. Its application illustrates that a failure to address reasonable diligence can defeat an application to adduce further evidence, even where the court assumes in the applicant’s favour the evidence’s importance and apparent credibility ([27]).
The supplied judgment gives no account of how later courts have treated this decision. It therefore supports identifying the principles the Court applied, but not describing a subsequent change in the law or a later pattern of judicial treatment.
At [2], Crow J said leave is not granted lightly and requires “a reasonable argument that there is an error to be corrected” and that correction is necessary to prevent “a substantial injustice”. In plain English, the applicant had to identify a properly arguable mistake in the District Court decision and explain why correcting it mattered in a substantial way. It was not enough simply to disagree with the outcome.
At [18], the Court said new matters may be raised on appeal only in exceptional circumstances, where the interests of justice require it and there is no prejudice to the other party. In this case, the Court considered that the council might have responded with evidence had the ownership and notice claims been raised at trial. The timing of an argument could therefore affect both fairness and the evidence available to the other side.
At [20], Crow J said that, under s 142(2)(b), “it matters not who owns the chattels” or whether the chattel owner was named in or had notice of the enforcement order. In plain English, the Court treated the statutory authority as turning on the remedial notice to the responsible person and the failure to comply, rather than on each removed item’s ownership. The Court’s conclusion was tied to the action required by the notice and the statutory provisions before it.
At [26], the judgment sets out the three considerations quoted from Clarke: reasonable diligence, likely importance to the result, and apparent credibility. In plain English, proposed new evidence is not admitted simply because it may be relevant. The applicant must address whether it could have been obtained for trial, whether it could matter to the result, and whether it appears credible.
At [27], the Court identified the decisive deficiency in Mr Singleton’s fresh-evidence argument: he had not shown that Mr Hampton’s evidence could not have been obtained with reasonable diligence for use at trial. At [30], it connected that evidentiary problem to the factual argument that Mr Singleton lacked an opportunity to collect items. The argument depended on the affidavit, so the inability to rely on it on appeal left the factual complaint unsupported in the proposed appeal.
The decision is most directly relevant to an application for leave to appeal from a final civil judgment where the proposed appellant seeks to raise factual matters that were not put to the trial court. It highlights the need to consider whether the opposing party could have responded with different evidence if the issue had been raised earlier ([18]).
It is also relevant where a local government has issued a remedial notice to a property owner or occupier, the responsible person has failed to comply, and the council later carries out the action described in the notice. On the statutory wording considered here, the Court did not treat the ownership of individual chattels or the chattel owner’s knowledge of the order as conditions of the power to take that action ([19]–[20]). The judgment concerns items that the notice described as inconsistent with rural residential use; it does not decide every possible dispute about removal or disposal of property.
The fresh-evidence discussion is relevant where a party seeks to rely on an affidavit about events that occurred before trial, particularly on an appeal from a final judgment. The applicant must address the special-grounds requirement and the reasonable-diligence consideration ([22]–[27]). Here, the proposed affidavit concerned events in 2016, and the application did not establish why the evidence could not have been obtained for trial.
Finally, the decision is relevant where a proposed appellant describes the desired outcome as a hearing de novo but does not identify an appeal ground. The Court stated that the request itself was not a ground of appeal ([28]). The applicant still has to identify an alleged error that meets the leave threshold.
The material provided is the judgment in Singleton itself and does not include later decisions discussing or applying it. It is therefore not possible, on this source alone, to say how later courts have treated the decision.
Within its own reasons, the Court identifies and applies earlier authorities. It cites Commissioner of Police v Antoniolli for the leave threshold and notes that alternative grounds were not argued ([2] fn 1). It follows Hawkins v Pender Bros Pty Ltd and Clarke v Japan Machines (Australia) Pty Ltd in addressing further evidence ([25]–[27]). It cites Water Board v Moustakas for the restriction on raising new matters on appeal ([18] fn 6), and cites the District Court decision in Kenefick v Lockyer Valley Regional Council for the procedural history ([13] fn 2). Those relationships describe the authorities referred to in this judgment, not later treatment of Singleton.
The decision was confined to whether Mr Singleton had shown a reasonable argument for leave on the grounds he proposed. It does not determine every factual question about the individual chattels, their ownership, or what happened to each item. The Court noted that Mr Singleton’s ownership of some items was asserted and that any bailment by Mr Kenefick was unclear on the evidence ([5]).
The reasons do not decide the validity of every possible council entry or removal under the Local Government Act 2009 (Qld). The Court addressed the statutory provisions and remedial notice described in the judgment, including the council’s action after Mr Kenefick failed to comply ([10]–[11], [19]–[20]). Questions about a different notice, different action, or different statutory circumstances are not resolved by these reasons.
Nor does the decision establish that any affidavit discovered after trial will be excluded. The relevant failure here was that Mr Singleton did not show that the evidence could not have been obtained with reasonable diligence for trial ([27]). The Court assumed the other two considerations in his favour rather than deciding them against him.
The judgment also does not assess the alternative grounds for leave mentioned in Antoniolli, because they were not argued ([2] fn 1). It does not report later appellate treatment of its reasoning. Any broader account of those issues would require sources beyond the judgment provided.
This is general legal information, not legal advice. Zoe can make mistakes. Before acting on, relying on, or using this analysis, have it checked by a qualified Australian lawyer.
Source: Queensland Judgments (Supreme Court Library Queensland) (www.queenslandjudgments.com.au). Converted to plain text by ZoeLaw. Not the official version.
SUPREME COURT OF QUEENSLAND
CITATION: Singleton v Lockyer Valley Regional Council [2024] QCA 103
PARTIES: DARRELL SINGLETON / (second appellant/applicant) / v / LOCKYER VALLEY REGIONAL COUNCIL / (respondent) / STEVEN KENEFICK / (first appellant/not a party to the application) / GREG WILLIAMS / (third appellant/not a party to the application)
FILE NO/S: Appeal No 42 of 2024 / DC No 995 of 2022
DIVISION: Court of Appeal
PROCEEDING: Application for Leave s 118 DCA (Civil)
ORIGINATING COURT: District Court at Brisbane – [2023] QDC 249 (McGinness DCJ)
DELIVERED ON: 31 May 2024
DELIVERED AT: Brisbane
HEARING DATE: 10 May 2024
JUDGES: Boddice JA and Crow and Crowley JJ
ORDERS: The application for leave to appeal be dismissed with costs.
CATCHWORDS: APPEAL AND NEW TRIAL – APPEAL – GENERAL PRINCIPLES – INTERFERENCE WITH JUDGE’S FINDINGS OF FACTS – IN GENERAL – where the applicant owned a number chattels on a property owned by Mr Kenefick – where Mr Kenefick was subject to an enforcement notice issued by Lockyer Valley Regional Council (“the council”) – where Mr Kenefick failed to remedy the breaches contained in the enforcement notice and the council took action by engaging a contractor to dispose of a number of chattels on the property including the chattels of the applicant – where the applicant and Mr Kenefick made claims against the council in the Magistrates Court on the basis that the chattels were wrongfully removed – where at trial in the Magistrates Court both claims were dismissed – where the applicant and Mr Kenefick appeal the Magistrates decision to the District Court – where the District Court dismissed the appeal – where the applicant sought leave to the Court of Appeal to appeal the decision of the District Court – whether the District Court Judge erred in finding that the applicant did not have the opportunity to remove items from the property – whether the applicant has identified such error to be corrected by this Court in the District Court Judge’s factual findings / District Court of Queensland Act 1967 (Qld), s 118 / Local Government Act 2009 (Qld), s 138, s 142, sch 4 / Sustainable Planning Act 2009 (Qld), s 582, s 590 / Uniform Civil Procedure Rules 1999 (Qld), r 766 / Clarke v Japan Machines (Australia) Pty Ltd [1984] 1 Qd R 404, followed / Commissioner of Police v Antoniolli [2021] QCA 237, considered / Hawkins v Pender Bros Pty Ltd [1990] 1 Qd R 135, followed / Kenefick v Lockyer Valley Regional Council [2023] QDC 249, cited / Water Board v Moustakas (1988) 180 CLR 491; [1988] HCA 12, cited
COUNSEL: The applicant appeared on his own behalf / M J McDermott for the respondent
SOLICITORS: The applicant appeared on his own behalf / Thomson Geer for the respondent
BODDICE JA: I agree with Crow J.
CROW J: The applicant, Mr Singleton, seeks the leave of the Court of Appeal to appeal a decision of the District Court. Leave to appeal is not granted lightly but may be granted under s 118(3) of the District Court of Queensland Act 1967 where:There is a reasonable argument that there is an error to be corrected; andIt is necessary to correct a substantial injustice to the applicant.1
In order to determine whether there is a reasonable argument that there is an error to be corrected and that it is necessary to correct a substantial injustice to the appellant it is necessary to have reference to the long history of proceedings between Mr Singleton and others and the respondent council.
Some time prior to 2014, Mr Singleton deposited numerous chattels in a 40 foot cream shipping container on a property that was owned by Mr Kenefick at [the address] Plainland. Mr Singleton also deposited some other chattels: a Penta motor and a Penta leg outside of the 40-foot shipping container on Mr Kenefick’s land.
According to the pleadings in claim M77/20, Mr Singleton’s chattels included three traffic street lights and disco controls, a Mig welder, assorted tools, furniture, a small air compressor, four mag wheels and an aluminium fuel tank. It may be that the owner of the land, Mr Kenefick, was a bailee of Mr Singleton’s chattels, although that is far from clear on the evidence.
In his application for leave filed 8 January 2024 and in his outline of argument filed in April 2022 and in his written submissions filed 8 May 2024, Mr Singleton alleges that he had moved onto the property on 21 July 2015 as a tenant, however, Mr Singleton also alleged he was unaware of any enforcement order being undertaken by the Lockyer Valley Regional Council (“the council”).
The land was contained in the rural residential zone of the Laidley Shire Council Planning Scheme (“LSCPS”). Mr Kenefick had applied for and was granted development approval to build a house in March 2005. He did not do so and the development approval expired in March 2007. Mr Kenefick did not apply for any other development permits but did store building materials and other items including large quantities of scrap material, used tyres, and vehicles in various states of repair upon the property.
Several complaints had been received by the council as to the state of the land. On 25 March 2015, the council issued Mr Kenefick with a show cause notice advising him that he was committing a developmental offence by contravening s 582 of the Sustainable Planning Act (“”).
“2.Remedy the commission of the Offence against section 578 SPA by:
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:
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.
ii.Ceasing to store tyres, scrap 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.”
Council officers inspected the property to check whether Mr Kenefick had complied with the enforcement notice on 2 June 2016. On 27 June 2016, the council obtained a warrant to enter the land. Finally, council issued a remedial action notice on 7 September 2016 requiring the works as set out in the above notice to be undertaken. Mr Kenefick was also advised that a failure to comply with the notice would result in council undertaking the necessary work to remove the property stored on the premises at Mr Kenefick’s expense. As that further notice was not complied with, council officers and contractors entered the land at [the address] Plainland on 25, 26, 28 October and 1 November 2016 and removed all chattels that were not associated with the rural residential use of the land.
Mr Kenefick and another owner of some other chattels, Mr Greg Williams, sued the council for the value of the chattels that they maintained were wrongly removed in the Magistrates Court action M2292/18. In another Magistrates Court action M77/20 Mr Kenefick and Mr Singleton sued the council for the value of the chattels they allege were wrongfully removed.
Both claims proceeded to trial in the Magistrates Court on 23 September, 12 October and 9 November 2021. Both of the claims were dismissed by the Magistrate on 12 April 2022. Mr Kenefick and Mr Singleton appealed to the District Court with the appeal being dismissed on 21 December 2023.2
On 8 January 2024, Mr Singleton filed an application seeking leave to appeal the part of the decision in which it was ordered that:
“The owner of the property at [the address], Plainland Qld, Fail to comply with a enforcement order that was taken out on Steven Kenefick and ex defacto Sharon Engel. The inforcment order was taken out by Council in 2014 and in October 2016 Council entered the property to carry out work that was ordered in the enforcment order.”3
“Second Appellant Darrell Singleton had moved onto the property 21st July 2015 as a tenant and was not aware of any enforcment order. The personal property listed in the claim was put in a 40 foot cream shipping container that was on the botton section of the owners property under lock and key. Two other items a penta motor and a penta leg was on the top section of the property under cover. In the trial Magistrates court Ipswich the contractor Bryan Evens explain that he was in prossession of the Penta motor and that it can be picked up at anytime. The other remaining items of Darrell Singletons claim was not forth comimg.”4
“If leave is granted, the appeal will be on the grounds that:
1.That the second Appellant is not named in the inforcment order and isnt the owner of that land stated in the inforcment order.
2.That the items in the second Appllent claim is his own property that was brought onto the owners land and put in a container and locked after the enforcment order was taken out against the property owners and that presonal property would not be recognised as part of the order or seen by council at any time prior to the clean up October 2016.
3.On the hearing of the Appeal the Appellant will seek to adduce fresh evidence to the following effect: That new evidence from the property owner Edward Hampton of [neighbouring address] (Next door neighbour) has provided an Affidavit of where items where taken and who cut the padlock from the second Appllents stored items within the shipping container and sold off. EXHIBIT DWS1.
4.The Appellant seeks a hearing de novo of the proceedings the subject of the Appeal.”5
Grounds One and Two
As to the first and second proposed grounds of appeal, namely that Mr Singleton was not named in the enforcement order, is not the owner of the land stated in the enforcement order, but is the owner of certain chattels, these arguments have no prospect of success.
Firstly, as a matter of law, an applicant may only in exceptional circumstances raise on appeal matters not raised at trial. An applicant would only be given such opportunity where the interests of justice required it, and such a course could be taken without prejudice to the other party.6 In this case prejudice may arise as the council may have brought evidence to challenge the factual basis of these new assertions.
Secondly, the complaint that Mr Singleton owned some of the chattels and was not named in the enforcement order misconceives the power of the council to remove property as set out in s 142(2)(b) of the Local Government Act 2009. Section 142 provides:
“142****Entry by a local government worker, with reasonable entry notice, under a remedial notice
(1)This section applies if—
(a)a local government gives a remedial notice to the owner or the occupier of a property (the “responsible person”); and
(b)the responsible person fails to take the action required under the remedial notice.
(2)After giving a reasonable entry notice to the occupier of the property, a local government worker may—
(a)enter the property (other than a home on the property) without the permission of the occupier; and
(b)take the action that is required under the remedial notice.
(3)However, the local government worker must, as soon as the local government worker enters the property—
(a)inform any occupier of the property—
(i)of the reason for entering the property; and
(ii)that the local government worker is authorised under this Act to enter the property without the permission of the occupier; and
(b)produce his or her identity card for the occupier of the property to inspect.
(4)The local government may recover the amount that the local government properly and reasonably incurs in taking the action as a debt payable by the person who failed to take the action.
(5)Interest is payable on the debt at the same rate that interest is payable on overdue rates levied by the local government.
(6)The local government must give the person who failed to take the action notice of the amount of the debt.
(7)Subsection (8) applies if the person who failed to take the action is the owner of the property.
(8)If the debt is not paid within 30 days after the date of the notice, the local government may recover the debt as if the debt were overdue rates.”
Ground Three
As to the proposed third ground, Mr Singleton seeks to rely on fresh evidence, being a recent affidavit of Edward Hampton. In the appeal heard by the District Court, the first appellant to that appeal, Mr Kenefick had sought to have four affidavits admitted in that appeal, the third of which attached a seven paragraph affidavit of Mr Edward Hampton sworn 22 December 2022. In this appeal, Mr Singleton seeks leave to have new evidence admitted from Edward Hampton, the owner of the adjacent property, [neighbouring address] Plainland, in another affidavit of Mr Hampton sworn 11 November 2023. In his 11 November 2023 affidavit, Mr Hampton sets out his observations of chattels which were taken from Mr Kenefick’s property in 2016. Mr Hampton swears he attended Mr Kenefick’s property on the second day that the council contractor Brian Evens was removing items and Mr Kenefick purchased from Mr Evens, Mr Singletons’ air compressor for $50 and roofing iron and U-shaped capping for $400.
Rule 766(1)(c) of the Uniform Civil Procedure Rules 1999 (Qld) provides:
“766General powers
(1)The Court of Appeal—
[…]
(c)may, on special grounds, receive further evidence as to questions of fact, either orally in court, by affidavit or in another way; and…”
“(2)For subrule (1)(c), further evidence may be given without special leave, unless the appeal is from a final judgment, and in any case as to matters that have happened after the date of the decision appealed against.”
As the appeal is from a final judgment and the fresh evidence sought to be adduced does not relate to matters that have happened after the date of judgment, r 766(1)(c) is engaged and Mr Singleton is required to show special grounds in order to have the further evidence received.
In Hawkins v Pender Bros Pty Ltd [1990] 1 Qd R 135 at 137, Thomas J (with whom Shepherdson and Williams JJ agreed) said:
“It is of primary importance to note that the power of the Court of Appeal to receive further evidence upon questions of fact is discretionary. This is so whether or not it is a case that additionally requires “special leave” or “special grounds”… The usual considerations that apply to the admission on appeal of evidence of events occurring before trial are summarised in Fredericks v May (1973) 47 ALJR 362, 368 and Clarke v Japan Machines (Australia) Pty Ltd [1984] 1 Qd R 404, 408. The reception is discretionary, but the usual requirements are now well identified.”
“The classic statement of what amounts to “special grounds” for reception of further evidence upon an appeal was approved recently by Lord Bridge in Langdale v. Danby [1982] 3 All E.R. 129 at 137–138. Three conditions must be fulfilled. ‘First it must be shown that the evidence could not have been obtained with reasonable diligence for use at the trial: second, the evidence must be such that, if given, it would probably have an important influence on the result of the case, although it need not be decisive: third, the evidence must be such as is presumably to be believed, or in other words, it must be apparently credible, though it need not be incontrovertible.’”
Ground Four
Similarly, the proposed ground four which simply seeks “a hearing de novo” has no prospect of success. Indeed it is not even a ground of appeal.
In addition to the introductory paragraph and the background paragraph as set out above, the applicant’s outline of argument states the following six points:
“1.Page 3 Paragragh 3 The proceedings
Darrell Singletons Claim item small air compressor (second appellant)
2.Page 23 Paragragh [119] (a) The Magistrates references to the items claimed. Owners were given the opportunitie to collect this property.
ARGUMENT
3.The property that Judge [McGinness] refers to Page 23 Paragragh [119] (a) are the claim items of Page 24 Paragragh [126]Volvo Penta motor [127]Disco lights.
4.The other claim item small air compressor. Page 3 Paragragh 3 is not part of the opportunitie to collect and as it wasnt in Mr Evans evidences at trial as ever mention as seen on the property nor any tools.
WITNESS
5.The neighbour of [neighbouring address] Plainland at the time of the clean up Mr Edward Hampton has provide an affidavit (Filed with appeal appication) that he had brought items from Mr Evans from [the address] Plainland and one item the small air compressor as being the second appellants.
6.Mr Hampton had confirm that other claimed items (THE TOOLS) where also seen by the witness and was offered by Mr Evans for sale.”9
It is difficult to discern what Mr Singleton seeks to argue. He presumably seeks to argue that the judgment is factually incorrect because he did not have the opportunity to collect some of his items. If that is so, that is a matter of fact which was not raised before Judge McGinness, nor acting Magistrate Turra. The evidence to support the argument in paragraphs 3 and 4 appears to be based on paragraphs 5 and 6 which, in turn, are based on Mr Hampton’s affidavit sworn 11 November 2023. As discussed above at [19] to [25], Mr Hampton’s new affidavit cannot be admitted into evidence on appeal. Mr Singleton’s written submission filed 8 May 2024 contains 10 paragraphs which raise the same matters as his outline of argument and notice of appeal.
Accordingly, there is no reasonable argument that there is an error to be corrected and it is inappropriate to grant leave to appeal in respect of the points raised in the outline of argument and written submissions.
I would order that the application for leave be dismissed with costs.
CROWLEY J: I agree with Crow J.
Commissioner of Police v Antoniolli [2021] QCA 237 at [105]–[115] where Bond JA (with whom Flanagan J agreed) listed two alternatives to (b). Firstly that the proposed appeal raises an important point of law or principle or secondly the proposed appeal raises a question of general or public importance. These alternatives are not argued in this case. ↩
Kenefick v Lockyer Valley Regional Council [2023] QDC 249. ↩
Errors kept from original. ↩
Ibid. ↩
Errors kept from original. ↩
Water Board v Moustakas [1988] HCA 12; (1988) 180 CLR 491 at 497-498 per Mason CJ, Wilson, Brennan and Dawson JJ. In Ross v Leach [2014] QCA 126 at [29], the principle was described as “well established”. ↩
Defined in s 138(1)(a) to include an employee or agent of the local government. ↩
Defined in Schedule 4 of the Local Government Act 2009 (Qld). ↩
Errors kept from original. ↩
Singleton
Lockyer Valley Regional Council [2024] QCA 103
(1988) 180 CLR 491
(1973) 47 ALJR 362
The application for leave to appeal was dismissed with costs.
The notice required Mr Kenefick to show cause why an enforcement notice requiring him to refrain or remedy the offence should not be issued. Mr Kenefick entered into correspondence with the council through several emails but did not show cause nor apply for developmental approval.
On 2 February 2016, council officers entered the premises under an authority of a warrant to enter and observed a large number of tyres, scrap metals, machinery, vehicles and other scrap materials still stored on the land. On 26 February 2016, the council issued an enforcement notice requiring Mr Kenefick to cease using 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. Importantly, the enforcement notice issued under s 590(1) SPA required Mr Kenefick to: