Dore v State of Queensland and Anor [2004] QDC 364

The applicants pleaded guilty to an offence under the Integrated Planning Act 1997 in relation to the clearing of trees on their property without a development permit and a further offence under the Land Act 1994 of clearing trees on a road without a tree clearing permit. The brothers were represented by counsel in the Magistrates Court but were not legally represented in their appeal in Dore v State of Queensland and Anor [2004] QDC 364.

David Walter prepared their Notices of Appeal and a lengthy written submission running to well over 100 pages in support of the appeals. Unfortunately the Notices of Appeal, not having been prepared by someone with legal qualifications, are long (some 10 pages) and confusing, as are the written submissions.  During the hearing of the appeal, however, the brothers confirmed that they were each appealing against both their conviction and the penalties imposed upon them. They contended that they are registered owners of the subject land which, pursuant to a Deed of Grant was land alienated from State control, and that their land is not freehold land but is alienated land held in an estate in fee simple, and hence the respondent has no jurisdiction to exercise any function over the alienated land so held in fee simple.  The court held:

The right to use such land has in modern times, been severely restricted. (See Bone v Mothershaw [2002] QCA 120) In Queensland the Constitution Act 1867 gives the Executive power, with the advice and consent of the Legislative Assembly, to “make laws for the peace, welfare and good government of the colony in all cases whatsoever.” These words have traditionally been used to confer “the widest legislative powers appropriate to a sovereign”. (See Ibralebbe v The Queen1964 AC 900 at 923 and Union Steamship Co of Australia Pty Ltd v King (1998) 166 CLR 1 at 9-10) Such words permit the Legislative Assembly of Queensland to pass laws restricting, modifying or even removing common law rights. The Legislative Assembly of Queensland is the supreme law-making authority in the State of Queensland and there is no doubt that it had the power to pass the Integrated Planning Act and the Land Act. Equally there is no doubt that the Integrated Planning Act applies to the land owned by the three brothers or that the Land Act applies to Bellenden Road. The brothers’ property has not been “alienated from the State” in the sense that Queensland State law does not apply to the property or that the Queensland legislature is precluded from passing laws adversely affecting the property.”

In Dore & Ors v Penny [2006] QSC 125 they applied for a prerogative order for review to quash the convictions on the grounds that the decision was not authorised by the enactment under which it was purported to be made, that the decision involved an error of law; and was otherwise contrary to law. The application for prerogative order was dismissed.