Court of Appeal Judgments – Summary Notes
Maguire v Lynch  QCA 290; Appeal No 122 of 2007, 7 September 2007
General Civil Appeal — where the appellant made an originating application to the Supreme Court seeking an order that the respondent veterinary surgeon hand over to him her records of treatment for his greyhounds — where primary judge in dismissing the application could find no legal basis for order sought — where the appellant merely argued he had a right to the records — where no other litigation was on foot giving rise to a right of disclosure — where proceeding also incorrectly started by application — whether the appellant had a legal right of access to the veterinary records — HELD: appeal dismissed.
Kozak v Matthews  QCA 296; Appeal No 2501 of 2007, 14 September 2007
General Civil Appeal — where the appellant was the de facto husband of the deceased — where the deceased made some provision for the appellant in her will — where the appellant brought an application for further provision — where determination of adequacy of provision is a jurisdictional question of objective fact but involves a value judgment — where the primary judge dismissed the application holding that adequate provision was made for the appellant’s maintenance and support — where the primary judge took into account a deed signed by the appellant and deceased in relation to the appellant’s claim to the deceased’s property upon her death — whether the deed should have been disregarded — where it was open to conclude that inadequate provision was made for the appellant — whether, in exercising the relevant discretion, the primary judge fell into error in a way expressed in House v The King — HELD: that the appeal be dismissed; that the appellant pay the respondents’ costs of and incidental to the appeal to be assessed on the standard basis.
Hainsworth & Trevor v Department of Natural Resources, Mines and Energy  QCA 297; Appeal No 4289 of 2007, 14 September 2007
Application for Leave s 118 DCA (Civil) — where the applicants were two of some 49 original shareholders in a company which had, with the consent of the relevant Minister, received a transfer of a special purpose lease granted over land in the Lockhart River area for a term of 30 years — where as shareholders the applicants received the benefit of lawful occupation of the land — where the relevant company actually transferred its special lease on 19 February 1990; and on 19 February 1993 the special lease was again transferred — where the lease expired on 30 June 1994 with no subsequent assignment, sublease or grant to right of occupancy or tenancy — where land became unallocated State land — where the applicants continued occupation in spite of transfers and the expiration of the special purpose lease — where the applicants were served with a notice under s 406 of the Land Act 1994 (Qld) for unlawful occupation — where applicants claimed that through certain correspondence, the State Government created an expectation of an entitlement to remain on the property — whether the communication gave rise to such an expectation — HELD: application refused; applicants pay the respondent’s costs.
BGM Projects Pty Ltd v Hervey Bay City Council  QCA 298; Appeal No 10244 of 2006, 14 September 2007
Application for leave Integrated Planning Act — where the respondent made a reconfiguration of a lot application to the applicant for subdivision — where the applicant approved the reconfiguration with a number of conditions regarding infrastructure — where the respondent appealed to the Planning and Environment Court, firstly, against condition number 65, which required supplying costs towards providing infrastructure, claiming it was irrelevant or unreasonable, and secondly, that the applicant’s transitional planning scheme, which allowed approval with conditions, commenced after the start of the decision stage for the application and should, therefore, have no weight or be disregarded by that court — where the latter appeal point was determined by that court as a preliminary legal point — where that court ordered that no regard or weight be given to the transitional planning scheme — where the applicant appealed against that finding — where s 4.1.52 of the Integrated Planning Act 1997 (Qld) gives a court discretion with regard to the weight it gives to new policies — whether there were identifiable reasons to restrict the scope of that discretion — where the remainder of the Planning and Environment Court appeal was on foot — where on appeal from that court the parties agreed that chapter 6 of the Integrated Planning Act applied to the applicant’s transitional planning scheme — where the primary judge construed s 3.5.3 and s 3.5.6 as precluding the applicant from imposing conditions in spite of s 6.1.31 — whether the primary judge erred in that construction — whether that construction was inconsistent with s 4.1.52 — whether s 6.1.31 empowered the Council to impose condition number 65 — HELD: application for leave to appeal granted; appeal allowed; set aside the declaration of the Planning and Environment Court made herein on 13 October 2006; remit the proceedings to that court to hear and determine according to law; order that the respondent pay the applicant’s costs of the application to be assessed.
Australand Corporation (Qld) P/L v Johnson & Ors  QCA 302; Appeal No 1956 of 2007, 21 September 2007
General Civil Appeal — where the appellants were purchasers of apartments bought subject to a lease granted by the respondent to a related company — where contracts guaranteed an apartment owner entitlement to rent of seven to eight per cent of the price of the apartment in the first four years of the term — where owners had acquired ownership of their apartments — where the rent payable was clearly less than the appellants expected — where the appellants and other apartment owners sought to rescind their contracts in writing on 8 September 2003 under the then repealed s 1073 of the Corporations Law — where the respondent claimed the notices were not validity given pursuant to s 1073 and the notices were ineffective to avoid the contracts — where the appellants counter-claimed that notices of avoidance were effective and they should be restored to their pre-contractual positions — where trial judge found the contracts created “prescribed interests;” that the appellants had a right to take advantage of an enactment, but which was not intended to be exercisable after the repeal — where appellants claim their right of avoidance survived until the date of its purported exercise — whether the appellants had an acquired or accrued right of avoidance under s 1073 Corporations Law within the meaning of s 8 of the Acts Interpretation Act 1901 (Cth) which survived the repeal — whether the right conferred by s 1073 and if preserved by s 8 was a contingent right to be restored — whether an effective choice was made at the relevant time to restore the parties to their pre-contractual positions — whether repealing legislation revealed intention contrary to
s 8 Acts Interpretation Act — HELD: appeal dismissed; appellants to pay the respondent’s costs of the appeal.
Neutral Bay P/L v DCT; MA Howard Racing P/L v DCT; Broadbeach Properties P/L v DCT  QCA 312; Appeal Nos 449, 448 and 430 of 2007, 28 September 2007
General Civil Appeal — where the appellant served the respondents with a statutory demand for payment of a tax debt under the Corporations Act 2001 (Cth) — where the debt for Broadbeach Properties Pty Ltd entailed a demand for income tax debt and for Neutral Bay Pty Ltd and MA Howard Racing Pty Ltd for the non -payment in each case of their goods and services tax debt — where the respondents were pursuing proceedings under Part IVC of the Taxation Administration Act 1953 (Cth) challenging the indebtedness which was claimed by the statutory demand — where the appellant before the trial judge had conceded that each respondent had an arguable case — where the respondents sought an order that the demands be set aside pursuant to s 459H and s 459J of the Corporations Act — where the primary judge held that Neutral Bay Pty Ltd and MA Howard Racing Pty Ltd partly demonstrated a genuine dispute under s 459H but Broadbeach Properties Pty Ltd had not made out the ground under s 459H — where s 459J provides that a court can set aside a statutory if “… there is some other reason why the demand should be set aside” — where the primary judge found that the discretion in s 459J was broad enough to set aside the statutory demands and was warranted in each case — whether the discretion conferred by s 459J supported setting aside the demands — HELD: appeals dismissed; appellant to pay respondents’ costs to be assessed on the standard basis.
Cusack v De Angelis  QCA 313; Appeal No 3270 of 2007, 28 September 2007
General Civil Appeal — where the appellant had guaranteed a loan made to a company owned and controlled by him — where the appellant, upon his company’s default, had failed to meet the demand by the respondent for immediate repayment of the loan sum with interest — where the respondent obtained a judgment in default for damages from the appellant based on his liability under the guarantee; the amount assessed included default interest at 30 per cent and then 40 per cent — where the appellant applied to the Supreme Court to set aside the default judgment on the basis that he was entitled to rescind the guarantee because it was induced by the respondent’s misrepresentations and that the default interest at 40 per cent constituted a penalty — where before the primary judge it was accepted that the claims of misrepresentation were without substance — where it was accepted that reliance on the penalty argument meant that the judgment would stand but for a reduced amount — where the respondent also accepted that the default judgment should be amended to give effect to the calculation of interest at the non penalty rate and submitted that there was power under rule 290 of the Uniform Civil Procedure Rules to amend the amount — where the trial judge dismissed the application and varied the default judgment — whether rule 290 permits a default judgment to be amended — whether the judgment was irregularly entered — HELD: appeal dismissed with costs.
Team Dynamik Racing P/L v Longhurst Racing P/L  QCA 314; Appeal No 3527 of 2007, 28 September 2007
General Civil Appeal — where the respondent and two companies entered an agreement — where the most important rights arsing from the agreement related to two licences to participate in a car championship — where each licence permitted the respondent one car entry into the race — where the agreement carried certain consequences for failure to enter — where the respondent suffered substantial loses in his endeavour — where the requirement for funding lead to dealings with the appellant — where the respondent obtained a loan from the appellant and the parties entered into licence agreements — where the licences were transferred — where it was in dispute as to whether the licence agreements transferred the respondent’s interest to the appellant by way of security or transfer by way of sale — where the trial judge found the transactions were by way of mortgage — whether the trial judge considered the totality of the agreements between the parties and the rights which arose from these agreements in characterising the dealings between the parties — whether the rights of the respondent were transferable and subject to a mortgage — whether a mortgage arose — whether the transactions met the requirements of a mortgage — HELD: appeal dismissed with costs to be assessed.
Leach & Leach (as personal representatives of the estate of Irene Clare Leach) v Leach; Leach (as personal representative of the estate of Alan John Leach) v Leach  QCA 315; Appeal Nos 50 and 967 of 2007, 28 September 2007
Application to Strike Out — Further Order — where an appeal against the orders of the primary judge were struck out — where the Court ordered the appellant pay the respondents’ costs of the appeal and application assessed on an indemnity basis — whether the assessment of the costs recoverable by that order should be heard by the Registrar of the Supreme Court at Cairns — whether the Court should make orders as to costs by ordering that they be paid on the indemnity basis and fixed — HELD: assessment of costs pursuant to the orders of this Court of 5 April 2007 to proceed before the Registrar of the Supreme Court at Cairns; appellant to pay costs of application to be assessed by the Registrar of the Supreme Court at Cairns.
Di Carlo v Dubois & Ors  QCA 316; Appeal Nos 1388 of 2006 and 3622 of 2007
Application for Extension of Time/General Civil Appeal — where the applicant brought an action for personal injuries allegedly inflicted by the respondents — where the action was tried and dismissed by entry of judgment on 16 June 2003 — where the applicant’s application to the Court of Appeal was dismissed and the application for special leave to the High Court was not granted — where the applicant through two applications seeks permission to renew his claims against the respondents and, by virtue, reverse the outcome of litigation for events which occurred 14 years ago and, for which, more than two years ago, have prima facie been concluded in favour of the respondents — where the applicant located a CT scan on 27 January 2005 and sought more than a year later in reliance of that scan, for an extension of time to file a further notice of appeal to the Court against the decision of 16 June 2003 — where the applicant subsequently brought a new action in the Supreme Court to set aside the judgment of 16 June 2003 on the basis that that judgment was obtained by fraud — where the respondents brought an action to strike out the new action — where the applicant did not produce the CT scan to the respondents nor put the image before the Chief Justice in answer to the respondent’s strike out action — where the claim and statement of claim were struck out on 28 March 2007 — where the applicant filed a notice of appeal against that decision one day late due to an oversight by the applicant’s research assistant — whether an extension of time should be granted in each application — whether the CT scan should be tendered to the Court — given the fact that there is a public interest which requires an end to law suits, whether the litigation should be reopened — HELD: a pplication for extension of time in Appeal No 1388 of 2006 refused; application for extension of time in Appeal No 3622 of 2007 refused; applicant to pay costs of the respondents in each application on the indemnity basis.
SBD v Chief Executive, Department of Child Safety  QCA 318; Appeal No 5726 of 2007, 2 October 2007
Application for Leave s 118 DCA (Civil) — Miscellaneous Application – Civil —Application for Stay of Execution — where respondent notified on several occasions of applicant’s failure to properly care for her child — where an application for a child protection order filed in the Childrens Court constituted by a magistrate was made pursuant to s 54 of the Child Protection Act 1999 (Qld) in December 2006 — where the applicant was served pursuant to s 56 of the Act by leaving it at the applicant’s last known address — where the application for a child protection order was adjourned in January 2007 and an interim order for temporary custody of the child and limiting access of the applicant to the child, was made pursuant to s 67 of the Act — where a solicitor on behalf of the applicant claimed the Childrens Court had no jurisdiction to make the orders it did as the applicant and the child were in New South Wales at the time — where no evidence was placed before the Childrens Court in that regard — where the applicant appealed to the Childrens Court constituted by a judge of the District Court on the basis of the Court not having jurisdiction as the applicant and child were out of the State and the applicant not being personally served — where the appeal was partially successful in that the interim order for temporary custody of the child was removed — where the applicant appealed out of time to this Court on the same basis — where the applicant sought an extension of time — whether an appeal lies to this Court — whether the proposed appeal possesses utility — whether there are sufficient prospects of success — whether the Childrens Court had jurisdiction to make orders — HELD: application for leave to appeal refused.
Maroochydore Central Holdings P/L v Maroochy Shire Council  QCA 326; Appeal No 2344 of 2007, 5 October 2007
Appeal from the Land Appeal Court — where the applicant’s land was compulsorily resumed for road purposes by the respondent under the Acquisition of Land Act 2000 (Qld) — where the applicant lodged a claim for compensation which was not determined — where provisional payments were made to the applicant to the amount of $180,000 as advances in respect of compensation payable pursuant to s 23 of the Act — where there was a revocation of the resumption of land — where the respondent wrote to the applicant offering the land back for $180,000 and sought an acceptance in writing from the applicant for the revesting of the land for that amount — where the respondent agreed — where the Land Appeal Court concluded no agreement had been reached between the parties which would satisfy s 17 — where the applicant claimed under s 17, the power to revoke a resumption becomes an obligation when conditions for its exercise have arisen — whether under the proper construction of s 17 such an obligation arises — whether s 17 was properly invoked — whether the Anshun principle stands bar to arguing issues of construction which should have been litigated in the first proceeding — HELD: application dismissed; the applicant is to pay the respondent’s costs.
Greenhalgh v Bacas Training Limited & Ors  QCA 327; Appeal No 3493 of 2007, 5 October 2007
Application for Leave s 118 DCA (Civil) — where the respondent suffered personal injuries in the course of his employment with the applicant — where the respondent was an apprentice motor mechanic — where the respondent resumed full work duties one month after the incident — where the injury had not fully resolved — where the medical reports in 2005 were not conclusive as to the respondent’s prognosis in relation to his capacity to work as a motor mechanic — where the 2006 medical report provided a definitive statement about the restrictions on the respondent’s work and career options in that his future as a mechanic was permanently at risk — where the respondent subsequently sought an extension of the limitation period for an action for damages to negligence — where the limitation period was extended on the basis that the 2006 medical report enlivened the discretion under s 31(2)(a) Limitation of Actions Act 1974 (Qld) — whether the trial judge erred in concluding that the 2006 medical report was a material fact of a decisive character relating to the right of action — HELD: application for leave to appeal refused; applicants to pay respondent’s costs of the application for leave to appeal on the standard basis.
Haug v Jupiters Limited t/a Conrad Treasury Brisbane  QCA 328; Appeal No 3006 of 2007, Further Order delivered 5 October 2007
General Civil Appeal — Further Order — where the Court allowed the appeal and ordered the respondent pay the appellant’s costs to be assessed on the standard basis — where the respondent was granted leave to apply for an Indemnity Certificate pursuant to s 15 of the Appeal Costs Fund Act 1973 (Qld) — whether Indemnity Certificate should be granted — HELD: an Indemnity Certificate be granted to the respondent.
Caloundra City Council v Netstar P/L  QCA 329; Appeal No 2930 of 2007, 5 October 2007
Application for Leave Integrated Planning Act — where the appellant has been the registered proprietor of land at Little Mountain near Caloundra since 1996 — where, since 1984, the relevant land has been subject to a series of planning schemes and changes of legislation under which the planning schemes have been made — where an Order-in-Council was published in 1984 which permitted the development of townhouses on the relevant land — where a new planning scheme for the shire was made under the Local Government Act 1936 (Qld) in 1987 which prohibited the building of multiple dwellings due to the rural residential zoning — where the zoning did not preclude the Council from approving an application for the construction of 10 townhouses in 1988; but which were never built — where in 1991 the LGA was repealed and replaced by the Local Government (Planning and Environment) Act 1990 (Qld) — where another scheme was made under the LGPAEA in 1996 — where again that planning scheme prohibited the building of multiple dwellings due to the rural residential zoning — where the LGPAEA was repealed and replaced by the Integrated Planning Act 1997 (Qld) — whether the 1984 Order-in-Council survived the various legislative schemes — whether the transitional provisions in IPA were inconsistent with the survival of accrued rights under the 1984 Order-in-Council — whether the provisions of IPA displaced the operation of s 20 of the Acts Interpretation Act 1954 (Qld) — HELD: Grant leave to appeal; dismiss the appeal; order the appellant pay the respondent’s costs of the appeal, agreed or assessed on the standard basis.
A-G for the State of Queensland v WW  QCA 334; Appeal No 2493 of 2007, 12 October 2007
General Civil Appeal — where the respondent had been convicted and sentenced for a number of offences of a sexual nature against children — where the respondent pleaded guilty in 1997 of 43 counts of sexual offences including maintaining an unlawful sexual relationship with a child under the age of 16 — where the respondent was sentenced to 10 years imprisonment for the maintaining offence and concurrent terms for the various other offences — where the respondent was refused parole and nearly served the 10 year sentence — where the respondent withdrew from a sexual offenders treatment program in 2002 — where the respondent briefly saw a psychiatrist in 2006 but declined to be interviewed — where the psychiatrist considered that the respondent fit the criteria for paedophilia and had a moderate to high risk of re-offending — where a second psychiatrist concluded that the respondent was likely to pose a moderately high risk — where a third psychiatrist who interviewed the respondent concluded that the respondent was a moderate risk of re-offending and would benefit from continued probationary supervision, physical limitations and suitable accommodation — where the trial judge noted that in the case of the respondent there was an appreciable risk of re-offending — where the trial judge concluded the risk of re-offending without the imposition of suitable conditions was substantial — where the trial judge made an order under s 13(5)(b) of the Dangerous Prisoners (Sexual Offences) Act 2003 (Qld) releasing the appellant from custody subject to conditions until 1 February 2017, or until further order — where thirty three conditions were specified — where the Attorney General sought to overturn those orders and ask for a continuing detention order — where the imposition of such an order involves an exercise of discretion — whether the trial judge fell into error in exercising the discretion — HELD: Dismiss the appeal; order the appellant to pay the respondent’s costs agreed or assessed on the standard basis; the conditions imposed on the respondent by order No 2 made on 21 February 2007 be varied to include the further condition (xxxiv) that the respondent comply with any reasonable direction given by an authorised Corrective Services officer to establish the nature of any usage of any computer by the respondent.
Smits v Tabone and Blue Coast Yeppoon Pty Ltd v Tabone  QCA 337; Appeal Nos 2651 and 4208 of 2007, 12 October 2007
Application for costs — where the appellants each lodged a caveat on the same parcel of land; the appellant Smits on 9 February 2007, and the appellant Blue Coast Yeppoon Pty Ltd on 2 March 2007 — where each caveat was ordered to be removed — where each appealed against the removal orders — where one week before the matters were to be heard, the appellants gave notice to the respondent of their intention to not pursue the appeals and offered to pay the respondent’s costs of the appeal on a standard basis — where the respondent rejected the appellants’ offer in favour of receiving costs of the appeals on an indemnity basis — where the two appeals were heard together and dismissed by consent — whether costs on an indemnity basis should be ordered — whether the appellants’ case was wholly without arguable merit — HELD: the appeals are dismissed; the respondent’s costs of both appeals are to be paid by the appellant, Leonardus Gerardus Smits on an indemnity basis.
Queensland Conservation Council Inc v Xstrata Coal Queensland P/L & Ors  QCA 338; Appeal No 2235 of 2007, 12 October 2007
General Civil Appeal — where the respondent successfully applied to the Land and Resources Tribunal under s 275 Mineral Resources Act 1989 (Qld) for the grant of an additional surface area to a mining lease — where the appellant objected to the mine expansion being approved without conditions requiring a 100 per cent offset of greenhouse gas emissions from the mining, transport and use of the coal — where the appellant’s application to amend its particulars to reduce the amount of offsets required for emissions from 100 per cent to 10 per cent was refused on the basis that the amendment would substantially change the case the first respondent had to meet — where expert witnesses gave evidence to the Tribunal viz climate change — where the hearing concluded and the judgment was reserved — where the Tribunal wrote to the parties seeking submissions on two further documents not in evidence during the hearing to which the President of the Tribunal became aware of and to which the President may find “relevant to his decision” — where the documents concerned whether climate change is occurring and whether greenhouse gas emissions contribute to that climate change through global warming — where both parties submitted the documents were not directly relevant to the proceedings and related to facts undisputed — where the Tribunal relied on the new documents with regard to reaching its decision — where the Tribunal had not indicated the extent of its reliance before delivering its reasons — whether the parties were afforded procedural fairness viz presenting an argument on the new material — whether the appellant was denied natural justice viz being accorded the opportunity to respond — whether the appellant can amend its particulars as first indicated in its unsuccessful application to the Tribunal — HELD: appeal allowed with costs to be paid by the first respondent; the orders of the Land and Resources Tribunal of 8 May 2007 are set aside; the matter is remitted to the Land Court for determination according to law; the appellant is given leave to amend its particulars of the conditions it seeks to have imposed on the respondents’ applications in accordance with the appellant’s application filed in the Land and Resources Tribunal on 24 January 2007.
Coolum Properties P/L v Maroochy SC & Ors  QCA 351; Appeal No 3394 of 2007, 19 October 2007
Application for Leave Integrated Planning Act — where the applicant was both unsuccessful in its application to the respondent for a material change of use of land and its appeal of this refusal to the Planning & Environment Court — where the lot in question occupied most of Precinct 7 of Planning Area 11 under the Maroochy Plan 2000 — where the applicant intended to develop a number of showrooms, the occupant of one to be the Bunnings Group Ltd — where the judge at first instance concluded that the Statements of Intent and Preferred and Acceptable Uses for Precinct 7 had to be contextualised with the statements of intent for the whole of the planning area — where it followed that an acceptable use for showrooms in Precinct 7 was a smaller scale development than that proposed by the applicant — whether the general provisions of the planning scheme prevailed over the specific provisions — whether the proposed development conflicted with the planning scheme — whether it was relevant to consider need in a planning scheme — whether an error or law occurred — HELD: Application dismissed with costs.
Barker v Linklater & Anor  QCA 363; Appeal No 5537 of 2007, 26 October 2007
General Civil Appeal — where the deceased, by Will, left her estate to her daughters — where the appellant claimed to be the de facto partner of the deceased as defined by s 5AA of the Succession Act 1981 (Qld) — where the appellant applied under s 41 of the Succession Act 1981 (Qld) for proper maintenance and support out of the estate of the deceased against the deceased’s daughters who were the respondents — where the application was dismissed and no appeal was pursued on this point — where the appellant in the same proceedings sought a declaration, commenced by claim, that the respondents held their interest in the property on a constructive or resulting trust for the appellant — where the primary judge did not accept that representations concerning the appellant’s right or interest to reside in the deceased’s house were made by the deceased let alone relied upon by the appellant to her detriment — where the primary judge did not find any significant financial contribution by the appellant in relation to the property nor contribution by way of domestic tasks — where the appellant claims that the finding by the primary judge as to the expenditure of money and work done justify a finding of a constructive trust — whether the evidence would support the claim of whether a constructive or resulting trust arose — whether allegations in the defence were deemed admissions — HELD: Appeal dismissed with costs.
Castillon v P&O Ports Ltd  QCA 364; Appeal No 3395 of 2007, 26 October 2007
Miscellaneous Application – Civil — where the plaintiff worked for the defendant as a machine operator — where the plaintiff made an application to WorkCover for compensation for bilateral carpal tunnel syndrome — where the applicant first applied in 2004 for an extension of the limitation period pursuant to s 31 Limitation of Actions Act 1974 (Qld) — where the first application was refused on the basis that at the relevant date the plaintiff had sufficient knowledge of material facts of decisive character to conclude that he had a worthwhile cause of action — where the applicant again applied for an extension in 2007 — where the second application was successful on the basis that there was previously undisclosed documentation which was not available at the time of the first application and that the judge in the first application erred in concluding that the plaintiff had the means of knowing he had a worthwhile action against the defendant prior to November 2001 — whether the second application should have been granted — whether the evidence supported against the finding of fact in the first application viz sufficient knowledge — whether determination on first application created an issue estoppel — whether second application should not have been entertained — HELD: application for leave to appeal granted; appeal allowed; judgment below set aside; plaintiff to pay defendant’s costs of appeal to be assessed on the standard basis.
Greenhalgh v Bacas Training Limited & Ors  QCA 365; Appeal No 3493 of 2007, Further Order delivered 26 October 2007
Application for Leave s 118 DCA (Civil) — Further Order — where defendants’ application for leave dismissed — where plaintiff had offered not to seek costs of appeal if defendants withdrew appeal — where defendants failed to accept plaintiff’s offer — whether costs after offer should be paid on the indemnity basis — HELD: the costs order of 5 October 2007 be varied to provide that the costs incurred by the plaintiff before 27 June 2007 be paid on the standard basis and those incurred after 27 June 2007 be paid on the indemnity basis.
Hegarty v Queensland Ambulance Service  QCA 366; Appeal No 4386 of 2007, 26 October 2007
General Civil Appeal — where the plaintiff worked as an operational ambulance officer for fifteen years at Emerald, Esk, Ayr and Gayndah — where in the course of that employment the plaintiff was exposed to numerous traumatic events — where the plaintiff left his employment in 1999 suffering from post traumatic stress disorder and obsessive compulsive disorder — where the plaintiff claimed the respondent was responsible for these conditions and commenced an action claiming damages for negligence, breach of contract and breach of statutory duty — where the plaintiff argued at trial that had his supervisors been appropriately trained to recognise signs of dysfunction, they would have recognised these signs in the plaintiff, recommended to him to seek professional assistance, to which he would have done, and that, he would either not have developed psychiatric injuries or would have suffered them to a lesser extent — where the trial judge concluded that the failure by the plaintiff’s superiors to identify signs of dysfunction in him, due to the absence of training, caused the plaintiff to lose the chance of “a better outcome” — whether the plaintiff presented with signs of dysfunction in 1996 — whether the plaintiff’s superiors were privy to the plaintiff’s “cluster of complaints” in total — whether the plaintiff’s cluster of complaints could reasonably have been construed as industrial issues and not signs of dysfunction — whether there was a breach of duty and causation — whether it could be satisfied, on the balance of probabilities that had training to recognise signs of dysfunction occurred, the dysfunction would have been recognised — whether breach of obligation to ensure workplace health and safety of plaintiff — HELD: appeal allowed; judgment below set aside; plaintiff’s action dismissed; plaintiff must pay defendant’s costs of the action and of the appeal to this Court to be assessed on the standard basis.
Lawes v Nominal Defendant  QCA 367; Appeal Nos 4281 and 4623 of 2007, 26 October 2007
General Civil Appeal — where the respondent suffered injuries after his motorcycle struck a horse lying on the road — where the primary judge found that the horse was lying in the middle of the road as a result of a collision with an unidentified vehicle — where the horse was dead but still warm — where the collision was not proof of the negligence of the driver of the unidentified vehicle — where the driver of the unidentified vehicle had a duty to exercise reasonable care to prevent harm to road users which the presence of the horse may have caused — where failure to exercise such care resulted in the respondent’s injuries — where the trial judge therefore held that the nominal defendant was liable in respect of the injuries sustained by the respondent — whether the elements of 5(1) of the Motor Accident Insurance Act 1994 (Qld) were satisfied — whether construction of the Act should be restricted — whether there was sufficient evidence to establish that the driver of the unidentified vehicle knew or ought to have known that they had created an obstacle on the road — whether the duty of care involved staying and warning other drivers of the hazard — HELD: appeal dismissed with costs.
R v Watt  QCA 286; CA No 122 of 2007, 7 September 2007
Appeal against Conviction — where the appellant was charged with three counts of rape and one count of deprivation of liberty — where the complainant, an Aboriginal Australian, gave evidence with the aid of an interpreter — where the quality of the interpreting and some of the procedures adopted were criticised — where the Crown case depended on the jury accepting the complainant’s evidence — where the appellant was acquitted of two counts of rape and convicted of one count of rape and the count of deprivation of liberty — where the trial judge gave a misstatement of evidence with regards to the count of rape for which the appellant was convicted — whether the misstatement misled the jury and satisfied the setting aside of the conviction on that count — whether the complaint’s evidence was vague and inconsistent — whether cultural and linguistic issues affected the complainant’s evidence — whether upon the whole of the evidence it was open to the jury to be satisfied beyond reasonable doubt of the appellant’s guilt — whether the conviction verdicts were inconsistent with the two verdicts of acquittal — whether the guilty verdicts were unsafe and unsatisfactory — HELD: appeal allowed; set aside the convictions on counts 3 and 4; enter verdicts of acquittal on counts 3 and 4.
R v KR  QCA 287; CA No 115 of 2007, 7 September 2007
Appeal against Conviction — where the appellant was charged with one count of maintaining a sexual relationship with a circumstance of aggravation; five counts of indecent treatment of a boy under 17 while under 14; and four counts of indecent treatment of a child under 16 — where the appellant was convicted of one count of indecent treatment of a boy under 14 years and found not guilty on the remaining charges — where the appellant contended that his conviction was unreasonable and could not be supported by the evidence pursuant to s 668E of the Criminal Code 1899 (Qld) — where this ground of appeal required a review of the evidence — whether the guilty verdict was unsafe or unsatisfactory — whether it was open to the jury to be satisfied beyond reasonable doubt that the appellant was guilty on that count — HELD: appeal against conviction dismissed.
R v GAA ; ex parte A-G (Qld)  QCA 288; CA No 157 of 2007, 7 September 2007
Sentence Appeal by A-G (Qld) — where the respondent pleaded guilty to four counts of indecent treatment of a child under 12 years and one count of possessing child exploitation material — where the offences were committed during the operational period of two suspended sentences — where the respondent also committed two summary offences under the Child Protection (Offender Reporting) Act 2004 (Qld) — where the appellant contended that the sentence was manifestly inadequate — where the appellant and respondent on appeal both agreed that an imposition by the primary judge of an intensive correction order for the one count of possessing child exploitation material was unlawful given that the total period of imprisonment ordered for the respondent exceeded 12 months — where the error required the Court to allow the appeal and to re-sentence the respondent — whether the Court should take the approach of the primary judge — HELD: appeal allowed to the limited extent of setting aside the sentence imposed on count 7 and instead order; that the respondent be admitted to probation for three years on the terms and conditions set out in s 93 Penalties & Sentences Act 1992 (Qld) together with a special condition that he receive medical, psychiatric and psychological counselling and treatment as directed by his probation officer; he is to report to the probation office at Bundaberg within seven days of the delivery of these reasons for judgment; a conviction is recorded; in respect of the summary offences against the Child Protection (Offender Reporting) Act 2004 (Qld) the respondent is convicted but not further punished; the sentences imposed on 18 June 2007 are otherwise confirmed; the non-contact order and the orders relating to the photos and the computer made on 15 June 2007 are also confirmed.
R v Unsworth  QCA 289; CA No 113 of 2007, 7 September 2007
Sentence Application — where the applicant pleaded guilty to the dangerous operation of a motor vehicle with a circumstance of aggravation — where the offence was committed during the operational period of a suspended sentence — where the applicant had also defaulted on an order to pay compensation; default of which, according to the original sentence, would lead to an order of imprisonment for one year — where the sentencing judge activated the whole suspended period of imprisonment of two years, ordered that a sentence of 12 months imprisonment be imposed on the dangerous operation of a motor vehicle, to be served cumulatively, ordered that the 12 months of imprisonment previously ordered for default of payment of compensation be served concurrently and fixed a parole release date — where s 147 of the Penalties and Sentences Act 1992 (Qld) provides that, in dealing with an offender for suspended imprisonment, the offender be ordered to serve the whole of the suspended imprisonment unless it would be unjust to do so — where the applicant claims the order to serve the whole of the suspended period of imprisonment was unjust having regard to his rehabilitation and new family responsibilities — where s 147 provides non-exhaustive criteria when considering whether activation of the whole suspended period of imprisonment could be considered unjust — whether it was unjust — whether the discretion under s 147 miscarried — whether the sentence was manifestly excessive — HELD: application for leave to appeal granted; appeal allowed to the extent of: setting aside the order activating the whole of the two year suspended sentence, ordering that 12 months of the suspended sentence imposed on 17 September 1997 be activated, setting aside the parole release date of 4 June 2008, ordering that his parole release date be 4 December 2007.
R v HAH  QCA 291; CA No 59 of 2007, 7 September 2007
Appeal against conviction — where the appellant was convicted of three counts of indecent treatment of a child under 12 years whilst in his care — where the appellant contended that the complainant’s evidence was unreasonable given the discrepancies and inadequacies of the complainant’s uncorroborated account and was unreasonable in that the evidence was such that no reasonable jury could find the element of indecency — where the grounds of appeal required a review of the evidence — whether the verdicts were unreasonable against the weight of the evidence — whether the evidence established the appellant’s guilt beyond reasonable doubt — HELD: appeal against conviction allowed; convictions on each count set aside; instead, on each count a verdict of acquittal is entered.
R v Richardson; ex parte A-G  QCA 294; CA No 158 of 2007, 14 September 2007
Sentence Appeal by A-G (Qld) — where the respondent was sentenced to 12 months imprisonment wholly suspended for three years and convictions recorded for three counts of knowingly possessing child exploitation material — where the sentencing judge observed the respondent’s offences were serious and the material in question repulsive — where the sentencing judge accepted the material was downloaded for the respondent’s personal use — where in sentencing for this type of offence personal and general deterrence is of considerable importance — where the respondent had no prior convictions — where there was strong evidence of an intention to rehabilitate — where the respondent cooperated with the administration of justice, entered an early guilty plea and showed remorse — where the conviction, sentence and appeal were conducted in public — where suppression of the respondent’s name was not legally required — where the consequences of offending would lead to loss of career prospects — where the recording of convictions means that the respondent must report for a period of eight years to police in accordance with the Child Protection (Offender Reporting) Act 2004 (Qld) — whether the sentencing judge was bound to order actual imprisonment — whether the sentence reflects adequately the seriousness of the offences — whether general deterrence was sufficiently taken into account — whether too much weight was given to mitigating factors — HELD: appeal dismissed.
R v Wharley  QCA 295; CA No 190 of 2007, 14 September 2007
Sentence Application — where the applicant was convicted of knowingly possessing child exploitation material and was sentenced to six months’ imprisonment suspended after two months for an operational period of two years — where the number of images was relatively small but depicted abhorrent exploitation of children including images of very young children subject to serious sexual abuse — where images kept on a disk in a lasting form — where the applicant lacked remorse — where a guilty plea or cooperation with the administration of justice were absent — where the sentencing judge accepted the images were not for commercial use and gave regard to the applicant’s personal circumstances — where the sentencing judge, in imposing the sentence, regarded the need for personal deterrence from and community denunciation for such acts as requiring the applicant to serve actual imprisonment — whether the sentencing judge erred in the exercise of the sentencing discretion under s 9(2) of the Penalties and Sentences Act 1992 (Qld) — whether the sentence imposed was manifestly excessive — HELD: application for leave to appeal dismissed.
R v De Silva  QCA 301; CA No 125 of 2007, 21 September 2007
Appeal against Conviction — where the appellant was convicted by a jury of the offence of attempted arson of a dwelling house and of motor vehicles — where the jury were directed as to the elements of attempt under s 4 of the Criminal Code — where no attention was drawn at trial nor was the trial judge asked to rule on whether the evidence was capable of establishing preparation and not attempt to commit — where the submission was only made on appeal — where it was contended that the trial judge should have directed the jury as to the difference between mere preparation and attempt to commit an offence — where such a direction is usually made at trial because the defence advances mere preparation — where the case against the appellant was a strong one — whether on the totality of the evidence the appellant was deprived of any possible chance of acquittal — whether such a direction was required — HELD: appeal dismissed.
R v Maygar; ex parte A-G (Qld); R v WT; ex parte A-G (Qld)  QCA 310; CA Nos 65 and 92 of 2007, 28 September 2007
Sentence Appeal by A-G (Qld) — where the circumstances establishing the offences in question were horrific — where the 18 year old respondent was sentenced to life imprisonment with a non-parole period of 20 years for two counts of murder, 15 years imprisonment for one count of manslaughter, 10 years imprisonment for each count of four counts of rape and sentenced to concurrent sentences for other offences committed by him between the ages of 15 and 18 years — where the respondent showed no remorse apart from the pleas of guilty on the second day of the trial — where the Crown case was strong — where the respondent’s youth and guilty pleas were the main mitigating factors taken into account by the sentencing judge — where the sentencing judge found the respondent was a continuing danger to the community and was at real risk of re-offending — where the murders were in the worst category of that offence — where the Crown submitted that a non-parole period of 25 to 30 years should be fixed for each of the murders pursuant to s 305 of the Criminal Code — whether the sentence was manifestly inadequate — whether the sentencing judge erred by treating the disparity with the non-parole period of a juvenile co-offender (not in this appeal) as a relevant consideration — whether the sentence adequately protected the community and punished the offender — where the 15 year old respondent was sentenced to 10 years detention for one count of murder with an order for release after five years — where his involvement in the offences was substantially less than his co-offenders — where the respondent was compelled to act under threat of being killed — where the sentencing judge considered the fact that the respondent had acted under compulsion, the respondent’s youth, his low intelligence, his conduct in acting to protect a baby during the course of the offences, his cooperation with police, and his demonstration of remorse were relevant mitigating factors — where the sentencing judge considered the offence was not “particularly heinous” for the purposes of s 176 of the Juvenile Justice Act 1992 (Qld) — whether the sentence was manifestly inadequate — whether too much weight was accorded to acting under compulsion — whether the offence was a particularly heinous one — HELD: in CA No 65 of 2007 (in relation to Maygar): appeal allowed; non-parole period increased to 30 years in respect of each of the sentences of murder; in CA No 92 of 2007 (in relation to WT): appeal dismissed.
R v Weeding  QCA 311; CA No 82 of 2007, 28 September 2007
Sentence application — where the applicant pleaded guilty to six counts of burglary and stealing, three counts of burglary by breaking, one count of burglary, and two counts of common assault — where most offences were committed after the applicant’s release from prison — where the offences in question were serious — where the applicant had a lengthy criminal history of similar offences as well as armed robbery in company — where the applicant was sentenced to concurrent terms of imprisonment of four and a half years for the property offences and 18 months for the assaults with parole eligibility after 13 months — whether sentence manifestly excessive — whether applicant should have been given a parole release date — HELD: application dismissed.
R v Lude; R v Love  QCA 319; CA No 211 of 2007 and CA No 217 of 2007, 2 October 2007
Sentence Application — where applicants were jointly charged with, and pleaded guilty to, one count of assault occasioning bodily harm in company — where the assault was unprovoked — where Love was the instigator of the assault — where sentencing judge took into account early guilty pleas — where each was sentenced to 18 months imprisonment with a parole release date fixed after six months — where sentencing judge concluded custodial sentences were necessary for reasons of deterrence — whether weight placed on deterrence was excessive — whether insufficient recognition given to mitigating circumstances and prospect of rehabilitation of both applicants — whether the sentences imposed were manifestly excessive — whether basis for distinguishing between applicants in imposing sentences — HELD: in CA No 211 of 2007 application for leave to appeal against sentence allowed, a set aside the sentence imposed at first instance and substitute a sentence of nine months imprisonment with a parole release date fixed at 2 October 2007; in CA No 217 of 2007 application for leave to appeal against sentence allowed, set aside the sentence imposed at first instance and substitute a sentence of nine months imprisonment with a parole release date fixed at 8 November 2007.
R v MAY  QCA 333; CA No 111 of 2007, 12 October 2007
Appeal against Conviction & Sentence — where the appellant was tried on one count of maintaining a sexual relationship with a child, 14 counts of indecent treatment of a child under 12 who was a lineal descendant, and seven counts of possession of a child abuse computer game — where Crown presented an indictment with all charges — where defence counsel unsuccessfully applied for a sever of charges — where the appellant was convicted on five of the counts, counts 1-5, of indecent treatment and all counts, counts 16-22, of possessing a child abuse computer game — whether counts 1 5 and counts 16-22 on the indictment were properly joined as a series of offences of the same or similar character — whether the evidence on the two sets of charges was cross-admissible — whether failure to sever prejudiced the appellant’s trial, leading to a miscarriage of justice — where appellant contended verdict was unreasonable because of discrepancies in the evidence — whether discrepancies amounted to an unreasonable verdict — HELD: appeal allowed; separate re-trials ordered of the remaining counts on which the appellant was convicted: the indecent treatment counts, 2, 4, 6, 8 and 15 in one trial, and counts 16-22 in another.
R v KS  QCA 335; CA No 144 of 2006 and CA Nos 6 and 7 of 2007, 12 October 2007
Appeal against Conviction — Application for Extension (Conviction) — where the appellant was convicted of 3 counts of unlawful and indecent treatment of a child — where evidence was admitted in relation to uncharged acts without objection — where the trial judge directed the jury that the evidence of the incident of the uncharged acts was limited to providing a relevant context and to assisting in establishing the true relationship between the appellant and child — where there was no evidence distinguishing the charged and uncharged acts — where particulars were neither given nor sought to establish which of the separate offences were the offences charged on the indictment — whether, upon convicting, the jurors had the same occasion in mind for each count — whether the appellant’s defence was limited — whether the absence of particulars led to a miscarriage of justice — where the appellant was convicted of 5 counts of unlawful and indecent treatment of a child — where the evidence at trial included video evidence — where, during deliberation, the jury requested access to the video evidence — where the trial judge permitted viewing of part of the video evidence — whether the decision of the trial judge established an error of law capable of causing a miscarriage of justice — where the appellant entered guilty pleas in relation to unlawful and indecent dealing — where the appellant sought to later have the pleas set aside — where the appellant was refused leave — whether the appellant failed to understand pleading guilty was an admission of guilt — whether the guilty pleas were voluntarily entered — whether a miscarriage of justice occurred — HELD: allow the appeal in CA No 144 of 2006; set aside the convictions regarding KM; order a re-trial; dismiss appeal in CA No 6 of 2007; dismiss appeal in CA No 7 of 2007.
DPP v Cicolini & Anor  QCA 336; CA Nos 116 and 117 of 2007; 12 October 2007
Application for Leave s 118 DCA (Criminal) — where the applicants were committed for trial and the Crown did not present an indictment within six months — where an application for an extension of time to present an indictment was sought — where the primary judge was satisfied that “good cause” was established and granted the extension — where “good cause” is determined by reference to the facts and circumstances of each case as it arises — whether good reason had been shown — whether the primary judge took into account irrelevant considerations — whether the matter was considered on its merits — whether the discretion of the primary judge miscarried — HELD: leave to appeal granted; appeal dismissed.
R v West  QCA 347; CA No 143 of 2007, 19 October 2007
Sentence Application — where the applicant was sentenced to four and a half years imprisonment for one count of torture and lesser concurrent sentences for related offences — where the applicant had a history of domestic violence — where, in sentencing, the learned judge took into account the applicant’s guilty pleas, his adherence to stringent bail conditions, the fact that the applicant had no prior convictions and his efforts towards rehabilitation — where the applicant will become eligible for parole after serving half his sentence — where the applicant contends that the sentencing judge erred in failing to suspend his sentence after serving half the term — whether the sentencing judge failed to advert to the option of a suspended sentence — whether the applicant’s rehabilitation is such to safely return him to the community without further supervision — whether the sentence was affected by error — HELD: application refused.
R v BBH  QCA 348; CA No 123 of 2007, 19 October 2007
Appeal against Conviction — where the appellant was convicted of one count of maintaining an indecent relationship with a child under 16 who was his daughter, four counts of indecent treatment of a child under 16 who was his daughter and four counts of sodomy of his daughter — where the appellant was acquitted of three counts of indecent treatment but convicted on the remaining counts — where the appellant contended that the verdicts of guilty could not be reconciled with the verdicts of acquittal — where arrival, by the jury, of different verdicts on multiple counts involving the credibility of the complainant is not automatic evidence of unreasonableness — whether the different verdicts were irrational — where the evidence of the complainant’s brother was admitted at trial over counsel objection — whether the evidence admitted was relevant — whether adequate directions were given to the jury with respect to that evidence — where the appellant contended a Robinson warning was necessary — where the trial judge directed the jury that there was no direct support for the complainant’s evidence and stressed the “danger” of convicting on unsupported evidence — whether a Robinson direction requires use of the actual term “corroboration” — whether the directions to the jury prejudiced the appellant’s right to a fair trial — HELD: appeal dismissed.
R v Robinson  QCA 349; CA No 124 of 2007, 19 October 2007
Appeal against Conviction & Sentence — where the appellant was convicted of and sentenced to concurrent terms of imprisonment for: six counts of rape, counts 4, 6, and 7 for 16 years imprisonment, counts 2, 3 and 5 for 10 years imprisonment; one count of burglary, count 1 for 10 years imprisonment; one count of deprivation of liberty, count 8 for two years imprisonment; and one count of stealing, count 9 for 12 months imprisonment — where the appellant’s DNA established intercourse had occurred — where the appellant’s case at trial was that intercourse had occurred consensually — where forensic testing of the bedding where the last count of rape occurred revealed presence of unidentified semen — where the appellant’s counsel was informed of the results of the test on the first day of the trial after the complainant had given evidence — where the jury were informed of the results — where the appellant’s counsel did not recall the complainant — whether the Crown’s failure to make timely disclosure of the evidence prejudiced the appellant’s prospects of acquittal so as to give rise to a miscarriage of justice — whether the verdicts were unsafe and unsatisfactory — where the appellant contended that the sentence for the 3 counts of rape, counts 4, 6, and 7, was manifestly excessive — where the appellant had a bad criminal history, involving similar offending — where the appellant knew he suffered from Hepatitis C — where the sentence must afford real protection to the community — whether the sentence was manifestly excessive — HELD: appeal against conviction dismissed; application for leave to appeal against sentence refused.
R v Assurson  QCA 350; CA No 72 of 2007, Further Order delivered 19 October 2007
Sentence Application — Further Order — where the Court allowed an appeal against sentence — where the order varied the original sentence and fixed the appellant’s parole eligibility date — where it was submitted that that Order be amended to take into account the time spent in pre-sentence custody — where the Court can vary the Order pursuant to its inherent jurisdiction — whether the Order should be amended — HELD: amend paragraph 2(b) of the orders of this Court made on 24 August 2007 in R v Assurson  QCA 273 by removing 14 September 2012 and inserting in lieu thereof 1 January 2011.
R v S  QCA 360; CA No 155 of 2007, 26 October 2007
Application for Extension (Sentence & Conviction) — where the applicant unsuccessfully appealed in 2004 against his convictions and the sentence of 10 years imprisonment imposed for the offences of four counts of indecent treatment of a girl under 14 years, one count of indecent treatment of a boy under 14 years, five counts of rape, and one count of unlawful carnal knowledge of a child — where the applicant’s grounds of appeal were essentially identical to the earlier grounds — where the applicant’s first appeal was already considered on its merits — whether the second appeal is a second attempt to appeal on the merits — whether the Court has jurisdiction to hear a second appeal — whether the applicant has shown any reason to overturn the earlier decision — HELD: application dismissed.
R v Oliver  QCA 361; CA No 152 of 2007, 26 October 2007
Sentence Application — where the applicant pleaded guilty to unlawful possession of the dangerous drug cocaine, in a quantity exceeding 200 grams — where the applicant was sentenced to 11 and a half year’s imprisonment with a parole eligibility date fixed at four years and three months from the date of sentence — where it was accepted that the applicant had constructive, and not actual, possession of the cocaine for a commercial purpose — where counsel for the applicant contended the sentence was more appropriate for the offence of trafficking in cocaine than for possession of it albeit for a commercial purpose — whether the sentence was manifestly excessive — HELD: application allowed; set aside the sentence; substitute instead a sentence of nine years imprisonment, with a parole eligibility date of 15 June 2010, that is, after three years.
Abbott v Martin  QCA 362; CA No 181 of 2007, 26 October 2007
Application for Leave s118 DCA (Criminal) — where applicant was convicted on one count of stalking in the Magistrates Court — where the applicant’s appeal to the District Court was dismissed — where the elements establishing stalking were not seriously in dispute — where the applicant contended that the element of fear was not made out — where the Magistrate accepted the evidence of the complainant including his evidence of actual fear — whether the complainant’s fears were reasonable in all the circumstances — HELD: application dismissed.