Hearsay ... the Journal of the Bar Association of Queensland
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Issue 70 - Oct 2014
Court of Appeal Judgment Summary Notes Print E-mail

coaintro.jpgThe following summary notes of recent decisions of the Queensland Court of Appeal have been prepared by Bruce Godfrey, Court of Appeal Research Officer. They provide a brief overview of each case. For more detailed information, please consult the Reasons for Judgment which may be downloaded by clicking on the case name.

The following Judgments are summarised in this issue. The summary notes follow after this list.

CIVIL APPEALS

  • Attorney-General (Qld) v Lawrence [2014] QCA 220
  • State of Queensland v Munro [2014] QCA 231
  • McNab Developments (Qld) Pty Ltd v MAK Construction Services Pty Ltd & Ors [2014] QCA 232
  • Melisavon Pty Ltd v Springfield Land Development Corporation Pty Limited [2014] QCA 233

CRIMINAL APPEALS

  • R v Margaritis; Ex parte Attorney-General (Qld) [2014] QCA 219
  • R v Getawan [2014] QCA 235
  • Berry v Commissioner of Police [2014] QCA 238
  • R v Doolan [2014] QCA 246

law.jpgCIVIL APPEALS

 Attorney-General (Qld) v Lawrence [2014] QCA 220, 2 September 2014 

General Civil Appeal – where the respondent has been subject to a continuing detention order under Div 3 of the Dangerous Prisoners (Sexual Offenders) Act 2003 (“the Act”) since 2008 – where the primary judge rescinded that order and ordered the respondent be released subject to a supervision order – where the appellant argues the appellate court should substitute its own decision for the primary judge’s even if error in the primary decision of the kind described in House v The King is not demonstrated – whether the principles in House v The King concerning appellable error are applicable to an appeal against a discretionary decision to release a prisoner on a supervision order under s 30(3) of the Act – where the expert witnesses gave evidence that the respondent’s risk level had decreased – where those assessments were based on the assumption that the respondent was being truthful about certain matters – where the respondent was not called to give evidence about those matters – whether the primary judge properly assessed whether there was adequate evidence for assuming the respondent was being truthful about those matters – where contrary to the Attorney-General’s argument, the absence of any more or less foolproof way of verifying the truth of future reports by the respondent about his state of mind, including whether he was experiencing any sexual fantasy, does not itself mean that it was not open to the primary judge to find that adequate protection of the community could be ensured and reasonably and practicably managed under the supervision order – where the expert witnesses gave evidence that the respondent’s risk level had decreased – where the experts’ opinions were based upon the truthfulness of the respondent’s accounts in important respects – where resolution in the respondent’s favour of the questions relating to his ability to manage the risk of re-offending associated with his concerning fantasies necessarily required acceptance of the relevant aspects of the respondent’s accounts upon which the expert evidence was based – where this was quintessentially an issue for the primary judge – where the experts’ opinions on the issue may be helpful, but they cannot be determinative – where the statement by the primary judge that it was unlikely that evidence by the respondent “would have placed the court in a better position to determine those factual questions than the position it enjoys with the benefit of the evidence of these three professionals”, involved an assumption that the giving and testing of evidence by the respondent could not further assist the court in determining the extent to which the respondent’s accounts were true and reliable – where there was no basis in the evidence for such an assumption; it is contrary to a basic premise upon which the courts operate and the day to day experience of the courts – where the paramount consideration in deciding which of those orders should be made was the adequate protection of the community – whether in all the circumstances a supervision order could ensure adequate protection of the community.  Appeal allowed.  Orders of the learned primary judge be set aside.  The respondent continue to be subject to the continuing detention order made on 3 October 2008.

State of Queensland v Munro [2014] QCA 231, 16 September 2014

Application for Leave s 118 DCA (Civil) – where the respondent claimed damages for negligence and/or breach of statutory duty – where the primary judge gave judgment for the respondent plaintiff against the applicant defendant in proceedings in the District Court – where the applicant applied for leave to appeal under s 118(3) of the District Court of Queensland Act 1967 (Qld) – where the respondent, then a 50 year old registered nurse, was on the third day of an aggressive behaviour management course – where, when attempting a manoeuvre under instruction, the respondent fell and injured her left hand – where the primary judge found that risk could have been minimised by teaching the different parts of the manoeuvre separately before combining them – where the applicant submits that the techniques were split up and taught in different parts separately before they were combined – whether the primary judge erred in finding that the applicant failed to separately train the respondent to perform the parts of the manoeuvre before combining them – whether the primary judge erred in finding that the applicant breached its duty of care to the respondent by failing to provide proper training and instruction – where it is apparent from the reasons that the primary judge approached his findings of fact with his customary rigour – where having regard to the way in which the evidence unfolded and its lack of clarity, his Honour enjoyed a distinct advantage over this Court in determining the facts and this Court should not interfere with the findings unless persuaded that they are “glaringly improbable” or “contrary to compelling inferences” – where the applicant contends that there was no evidence that the alternate technique to learning the manoeuvre would have obviated the respondent’s misunderstanding in producing the manoeuvre that resulted in her fall – where causation was not an issue raised at trial – whether the applicant should be permitted to rely on the causation ground when the focus of the argument before the primary judge was whether the applicant’s duty of care had been breached – whether the primary judge erred in finding that the breach of duty caused the respondent’s injury – where the applicant was represented on the trial by experienced counsel with counsel not asserting before the close of evidence that the evidence of a Mr Turner was led in breach of the rule in Browne v Dunn – where the interests of finality and justice militate against permitting the applicant to rely on the rule in Browne v Dunn, not having made it an issue on the trial – where the primary judge relied on expert evidence as to how the course ought to be conducted – where the applicant submits that the expert was not qualified to give an opinion related to biomechanics or human movement – whether the primary judge erred in admitting and relying upon the evidence of the witness – where the hearing of the appeal, there was no attempt to identify what it was in the paragraphs relied on by the appellant that showed the primary judge’s reliance on inadmissible evidence – where the primary judge ordered that the applicant pay the respondent’s costs of the action on the Magistrate’s Court scale – where the applicant applies for leave to appeal against the costs order – where leave to appeal is refused in the substantive application – whether, given the operation of s 118B of the District Court of Queensland Act 1967 (Qld), the Court has power to grant leave to appeal in the costs application – where the legislative scheme leaves no scope for the grant of leave by this Court in relation to an appeal against the costs order made in the present case in the District Court – where leave is to be refused to appeal against the damages judgment given in the respondent’s favour in the District Court, there is not, and will not be, an appeal properly instituted which might be said to have become an appeal “only in relation to the costs of the original proceeding”.  Application refused with costs.  Application for leave to appeal against the costs order refused.

McNab Developments (Qld) Pty Ltd v MAK Construction Services Pty Ltd & Ors [2014] QCA 232, 16 September 2014

General Civil Appeal – where the appellant was a contractor and the first respondent was a subcontractor for a building project – where the first respondent served a payment claim on the appellant totalling $853,952.97 – where the appellant contended that the subcontract had been terminated due to the first respondent’s default – where the first respondent sought adjudication of its claim under the Building and Construction Industry Payments Act 2004 (Qld) – where the adjudication was heard by the third respondent – where the third respondent decided that the appellant owed the first respondent $241,441.20 – where the appellant claimed a right to liquidated damages under the subcontract – where the appellant’s right to liquidated damages depended on the date for practical completion – where the applicant filed an application to the Supreme Court seeking to void the adjudication or set it aside on a range of grounds – where the primary judge dismissed the application – where the appellant contends that the third respondent decided on a basis which the parties had not addressed – whether there was a denial of natural justice – whether the third respondent acted unreasonably – where the parties did make submissions which reflected their perspective arguments as to how a relevant clause operated – where the Adjudicator preferred a view of that which accorded with MAK’s submissions and, on the basis of that view, she concluded that McNab had not established its claim – where there was no denial of natural justice – where the respondent did not notify the appellant of variation claims in accordance with the prescribed notice form – whether progress payments are permissible under common law or contract – where the Adjudicator proceeded on the footing that it was for McNab to establish actual non-compliance by MAK with these provisions – where the third respondent allowed a claim by the first respondent with respect to 15 day dockets – where the appellants allege that the third respondent did not engage in a proper evaluation of each claim – whether the third respondent committed jurisdictional error with respect to the day dockets – where the documentary material before the Adjudicator was sufficient for her to have been satisfied for the purposes of the adjudication that the work was done and of its value – where it was fairly open to the Adjudicator to have reasoned in respect of each day docket that MAK did the work to which the day docket related at McNab’s direction and that MAK was contractually entitled to payment of the amount claimed for the work – where the appellant undertook rectification for defective works – where the appellant issued backcharges – where the third respondent omitted to consider one of the backcharges – whether the validity of the determination overall has been impugned – where it is evident that the Adjudicator did not disallow these backcharges on a basis of a failure on the part of McNab to discharge an obligation to reply to MAK’s submissions with respect to them – where the basis of the disallowance clearly was that the Adjudicator could not be satisfied that McNab had established an entitlement to them.  Appeal dismissed with costs.

Melisavon Pty Ltd v Springfield Land Development Corporation Pty Limited [2014] QCA 233, 16 September 2014

General Civil Appeal – where the appellant appealed the decision of the learned primary judge dismissing an application for summary judgment – where the appellant made an application for summary judgment pursuant to r 293 of the Uniform Civil Procedure Rules 1999 (Qld) – where the respondent made a claim for damages for negligence – where by operation of s 10 of the Limitation of Actions Act 1974 (Qld) the claim will be statute barred if the cause of action arose prior to 16 June 2005 – where the respondent argued that there were real issues of fact to be tried in the proceeding – whether the appeal ought to be allowed – where the decision to grant or refuse summary judgment is a discretionary exercise so that this Court will set aside the decision only where there is error in the sense discussed in House v The King – where summary judgment based on a statute of limitation defence, should be granted only where sufficient is known of the alleged damage sustained by the plaintiff and the circumstances in which it was sustained to determine the issue ahead of a full hearing of the action – where the determination of whether a statute of limitation defence is made out is a technical application of the relevant legal principles to the facts – where the defendant has the onus of establishing that the plaintiff's claim is statute-barred – where the cause of action is founded on tort – where the latent defect at the centre of the claim was the appellant's negligently engineered design of the clubhouse – when does time accrue – whether the learned primary judge erred in finding that the limitation period did not commence until the respondent "first became aware, or ought to have become aware, that it had sustained loss because of the alleged defective design" – whether the respondent's claim in this proceeding is statute barred – where the appellant pleaded the cause of action was statute-barred because the cracking pleaded in the Amended Statement of Claim para 18(k) occurred in 2003 so that the cause of action was complete at that time, more than six years before the respondent brought its claim – where it may be that ultimately a trial judge will find that the respondent acting reasonably should have made further enquiries in 2003 or that a prudent notional purchaser observing the cracking in 2003 would have obtained independent engineering advice and discovered the faulty design – where, in that case, the faulty design would have become manifest in 2003 and the respondent would have suffered either direct physical damage or resultant economic loss or both so that its action would be statute-barred – where until the High Court says otherwise, the cause of action in the present case was complete when the respondent suffered economic loss, that is, when the respondent had actual knowledge of the appellant's faulty engineering design or when the faulty design itself became manifest or could be discovered by reasonable diligence – where this case demonstrates why courts are reluctant to grant summary judgment based on a limitation defence where the facts are disputed – where it was for the appellant to establish the limitation defence was so clear that it should be granted summary judgment – where it did not demonstrate unequivocally that the respondent had suffered economic loss arising from the alleged faulty design when it became aware in 2003 of the cracking particularised in the ASOC para 18(k).  Appeal dismissed with costs.

 fingerprint.jpgCRIMINAL APPEALS

R v Margaritis; Ex parte Attorney-General (Qld) [2014] QCA 219, 2 September 2014

Sentence Appeal by Attorney-General (Qld) – where the respondent was convicted after a plea of guilty to one count of supplying a dangerous drug with a circumstance of aggravation and three counts of indecent treatment of a child under 16 – where the respondent was sentenced to a term of imprisonment for 12 months with a parole eligibility date of 13 July 2015 for each offence – where the terms were made concurrent but were ordered to be served cumulatively upon a four year term of imprisonment for prior maintaining offences – where the respondent was eligible to apply for parole on 13 March 2015 – where the respondent was one of the complainant’s teachers – where the respondent’s parole eligibility date of 13 July 2015 is four months later than the date on which he was eligible to apply for parole under his earlier sentence – whether the primary judge misapplied the totality principle – whether the sentence was manifestly inadequate – where in this case there is neither a misstatement or misapplication of principle nor a level of sentencing which necessarily bespeaks error.  Appeal dismissed.


R v Getawan [2014] QCA 235, 19 September 2014

Sentence Application – where the applicant pleaded guilty to one count of attempting to pervert justice – where the applicant was sentenced to 15 months’ imprisonment with immediate parole – where the applicant had been charged with offences including burglary and attempted robbery – where the applicant, while on remand, made numerous telephone calls to his 18 year old fiancée to urge her to dissuade her sister and another friend by threats from giving evidence against him – where the applicant’s fiancée did not communicate the threats to the other girls, both of whom gave evidence at the applicant’s trial – where the applicant was acquitted – where the applicant contends that the sentencing judge was prejudiced against him – where the applicant contends the sentencing judge did not take into account his early plea of guilty, other mitigating circumstances and the fact the immediate parole release date would have no impact because he faced other charges – where the applicant’s guilty plea plainly was reflected in a sentence which required no further period in custody; whether he was able to obtain his release on other charges was beyond the sentencing judge’s control – where the sentence imposed on the applicant of fifteen months’ imprisonment was within a proper exercise of discretion, having regard to the circumstances of the offending and his previous criminal history – whether the sentence was manifestly excessive.  Application refused.

Berry v Commissioner of Police [2014] QCA 238, 23 September 2014

Application for Leave s 118 DCA (Criminal) – where the applicant was convicted for speeding – where the offence was driving 123 kilometres per hour in a 60 kilometres per hour zone – where the applicant was interstate at the time – where there were other traffic infringements that occurred during her absence – where her nephew and his girlfriend were house sitting at her house – where other family members had access to her house and vehicle – where there was a police investigation and trial of her nephew in relation to the vehicle offences during her absence – where the nephew was found not guilty on the basis of identification – where the applicant assisted with the investigation and made enquires – where the traffic infringement notice was not accompanied with the correct written information under s 116(1)(b) of the Transport Operations (Road Use Management) Act 1995 – where the applicant was charged under s 114(1) and sought to rely upon the defences in s 114(3) of the Act – where the applicant notified the commissioner by statutory declaration as per s 114(4) outlining the requirements in s 114(3)(b)(ii) and s 114(6) in her defence – whether the notice required in the statutory declaration provided more than what was actually notified – whether the learned primary judge fell into error – where the applicant notified the way in which she had exercised control over the vehicle’s use (leaving the vehicle under her house, behind an electric door and inside a paling gate, with the keys left with one set in a drawer and the other in a bowl near the dining table), and the reasonable way she had of finding out the name and address of the person in charge, namely by contacting her relatives who held sets of keys to her house, and investigating whether they were the driver, or knew who the driver was – where in this fashion the applicant also gave notice about the matters required in s 114(6)(b), namely that proper search and enquiry had been made – where the learned primary judge fell into error by holding that the notice required in a statutory declaration required more than what was notified – where her Honour seems to have proceeded on the basis that the statutory declaration was required to set out the matters to be proved, rather than to give notice “about the matters specified” – where further, the learned primary judge approached the provisions of s 114(4) inconsistently, holding different standards between the requirement to give notice about the matters specified in ss (3)(b)(ii) and ss (6) – where her Honour held that the notice requirement in respect of ss (3)(b)(ii) was satisfied because the direct claim required by the subsection was made “adopting the precise language of that subsection and then by giving some further detail of it” – where however, even though within the same sentence the applicant made the direct claim required by ss (6), and details were given of that claim, her Honour nonetheless held that the notice was deficient – where the primary judge’s decision was affected by that error of law and it resulted in a substantial injustice to the applicant – where it is difficult to see what else could be reasonably required of the applicant in terms of exercising reasonable control over the vehicle’s use while she was away – where bearing in mind that the particular vehicle in question was the applicant’s private vehicle, and those who might arguably have access to it were family members (or a girlfriend of a family member), the applicant did exercise reasonable control over the vehicle’s use in her absence – where the applicant did demonstrate that she made reasonable search and enquiry – where she did so by interrogating, by telephone, all of the potential drivers – whether the application for leave to appeal should be granted.  Application granted.  Order of primary judge set aside.  Appeal against conviction allowed.  Orders of the magistrate set aside.  Submissions on costs.


R v Doolan [2014] QCA 246, Orders delivered 26 September 2014; Reasons delivered 30 September 2014

Appeal against Conviction & Sentence – where the appellant was a civilian police prosecutor – where the appellant was in a relationship with Mr Roep – where Mr Roep was the defendant in a proceeding for common assault – where the appellant improperly accessed information on the Queensland Police Service (QPS) database in relation to the complainant in Mr Roep’s criminal proceeding – where the appellant was not authorised to access the information – where the appellant improperly provided the information to Mr Roep’s lawyer by way of email (count 1) – where the appellant applied to re-open Mr Roep’s sentence proceeding after it was finalised – where the appellant put forward a version of events at the re-opened sentence proceeding that was not in accordance with the prosecution brief of evidence – where the appellant made submissions at the re-opened sentence proceeding to reduce the fine and compensation orders (count 2) – where the appellant was found guilty at trial of two counts of misconduct in relation to public office – where the appellant was sentenced to one year imprisonment on count 1 and 18 months imprisonment on count 2 – whether the guilty verdict on count 1 was against the weight of the evidence – whether the jury could infer beyond reasonable doubt that the appellant provided the information to Mr Roep’s solicitor by way of email with intent to benefit Mr Roep – whether the appeal against conviction should be allowed – where after reviewing the whole of the relevant evidence on count 1, including the appellant's evidence the jury were entitled to conclude that the only rational inference was that the appellant sent the information in the email to Ms Allen intending that it would benefit Mr Roep – where the learned trial judge did not direct the jury that they must consider each count separately and consider only the evidence on each count in relation to that count – where the appellant contends that the learned trial judge erred in failing to give a separate consideration warning – where counsel for the appellant did not ask for redirections at trial – whether there was a substantial miscarriage of justice – where it is concerning that counsel for the appellant, who was also counsel at trial, did not ask for redirections at trial of the kind which he now says should have been given – where counsel have a duty to listen carefully to the judge's directions to the jury and to try to ensure that all necessary directions are given – where counsel’s failure to ask for an essential jury direction, however, will not be fatal to the success of a ground of appeal if the failure to give the direction amounts to an error of law or has resulted in a miscarriage of justice: s 668E(1) Criminal Code – where nowhere did the judge tell the jury to consider each count separately; to consider only the evidence on each count; that they could return separate verdicts; and that, if they convicted on one count, they should not take that into account in considering the other count – where the fact remains that although the counts were properly joined, the trial was effectively two trials, each one involving one count – where the appellant was entitled to have the jury consider the evidence on each count separately and to return different verdicts – where the absence of directions from the judge as to how to correctly approach their deliberations concerning two counts in the one trial left open the real possibility that the jury may have considered that, because they found the appellant was guilty on one count, she must have been guilty on the other count as well – where the failure to give the direction as to how to approach their deliberations on a trial of two counts has denied the appellant a procedurally fair trial according to law so that s 668E(1A) can have no application.  Appeal allowed.  Guilty verdicts set aside.  Retrial ordered.


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