Court of Appeal Judgments – Summary Notes

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

CIVIL APPEALS

• A-G (Qld) v Robinson [2007] QCA 111
• Candy v Christensen [2007] QCA 114
• Freeleagus v Nominal Defendant [2007] QCA 116
• Leach (as personal representative of the estate of Alan John Leach) v Leach [2007] QCA 117
• Leach & Leach (as personal representatives of the estate of Irene Clare Leach) v Leach [2007] QCA 118
• Pryke & Ors v Commissioner of State Revenue [2007] QCA 121
• EG (by his litigation guardian) v SAZ [2007] QCA 122
• WorkCover Qld v Whiteman [2007] QCA 123
• MAV v ABA [2007] QCA 124
• Phipps v Australian Leisure and Hospitality Group Ltd & Anor [2007] QCA 130
• Malaxetxebarria v State of Queensland [2007] QCA 132
• Leyden v Caboolture Shire Council [2007] QCA 134
• Merrin v The Nominal Defendant [2007] QCA 135
• Camden & Anor v McKenzie & Ors [2007] QCA 136
• Clark & Ors v Cook Shire Council [2007] QCA 139
• Clairview Developments Pty Ltd v Law Mortgages Gold Coast Pty Ltd & Ors [2007] QCA 141

CRIMINAL APPEALS

• R v MAU [2007] QCA 115
• R v Schluter [2007] QCA 125
• R v Drier [2007] QCA 129
• R v JL [2007] QCA 131
• Crowther v Sala [2007] QCA 133
• R v Martens [2007] QCA 137

CIVIL APPEALS

A-G (Qld) v Robinson [2007] QCA 111; Appeal No 10282 of 2006, 5 April 2007 General Civil Appeal — where appellant served nine years imprisonment for sexual offences — where trial judge found that the appellant was a serious danger to the community in the absence of a s 13 order — where continuing detention order made pursuant to s 13(5)(a) Dangerous Prisoners (Sexual Offenders) Act 2003 (Qld) —where nature of offences, psychiatric evidence, appellant’s progress in custody and available support networks considered — whether trial judge erred in making a continuing detention order — whether supervision order with appropriate conditions would provide adequate community protection — HELD: appeal dismissed.

Candy v Christensen [2007] QCA 114; Appeal No 9302 of 2006, 5 April 2007 General Civil Appeal — where appellant had possession of a swamp wallaby — where possession was pursuant to a permit held by his daughter — where permit was not renewed — where Queensland Parks and Wildlife departmental officers removed the wallaby pursuant to a warrant — where wallaby later died — whether appellant had property in or a right to possession of the wallaby — whether appellant had right to damages for its removal — HELD: appeal dismissed with costs.

Freeleagus v Nominal Defendant [2007] QCA 116; Appeal No 9528 of 2006, 23 March 2007 General Civil Appeal — where unregistered vehicle stopped on edge of highway as result of deflated tyre — where vehicle protruded into right lane — where plaintiff’s motor vehicle collided with unregistered vehicle — where plaintiff suffered personal injuries resulting from the collision — where plaintiff saw stopped vehicle 200-300 metres prior to collision — where trial judge apportioned liability 70/30 in favour of the plaintiff — whether driver of stopped vehicle was negligent — whether liability appropriately apportioned — HELD: appeal allowed — judgment in favour of the plaintiff set aside and plaintiff’s action dismissed — plaintiff to pay appellant’s costs of the action and of the appeal.

Leach (as personal representative of the estate of Alan John Leach) v Leach [2007] QCA 117; Appeal No 967 of 2007, 5 April 2007 Application to Strike Out — where appellant lodged caveat contesting father’s will — where caveat lacked proper particulars — where appellant was invited to provide proper particulars or withdraw the caveat — where respondent’s application to remove caveat granted on basis that appellant could not demonstrate caveatable interest — where appeal lodged — where respondent advised appellant of hopelessness of appeal prior to application to strike out — whether appeal should be struck out — whether indemnity costs should be awarded — HELD: appeal struck out — appellant ordered to pay the respondent’s costs of the appeal and application assessed on an indemnity basis.

Leach & Leach (as personal representatives of the estate of Irene Clare Leach) v Leach [2007] QCA 118; Appeal No 50 of 2007, 5 April 2007 Application to Strike Out — where appellant lodged caveat contesting grandmother’s will — where appellant purported to be acting in the interests of his nieces and nephew — where caveat lacked proper particulars — where respondent’s application to remove caveat granted on basis that appellant failed to show caveatable interest — where appeal lodged — where respondents advised appellant of hopelessness of appeal prior to application to strike out — whether appeal should be struck out — whether indemnity costs should be awarded — HELD: appeal struck out — appellant ordered to pay the respondent’s costs of the appeal and application assessed on an indemnity basis.

Pryke & Ors v Commissioner of State Revenue [2007] QCA 121; Appeal No 7814 of 2006, 13 April 2007 General Civil Appeal — where respondents entered partnership agreement in 1972 for the operation of a caravan park — where land for caravan park purchased but transfer executed in the name of Robert Pryke only — where Robert Pryke in 2003 executed a transfer of the property into the names of all respondents — where consideration described as nil, noting this transfer to be a correction of a previous transfer — where description of consideration rejected — where Commissioner performed valuation and assessed duty — where trial judge found intention to transfer to all partners existed at time of original transfer — where trial judge considered this to be an error within the meaning of s 152 Duties Act 2001 (Qld) — where appellant did not challenge the trial judge’s findings as to intention on appeal — whether transfer contained error for the purposes of s 152 thereby exempting respondents from stamp duty liability — HELD: appeal dismissed — appellant to pay respondents’ costs of and incidental to the appeal.

EG (by his litigation guardian) v SAZ [2007] QCA 122; Appeal No 9234 of 2006, 13 April 2007 Miscellaneous Application (Civil) and General Civil Appeal — where respondent convicted of indecent dealing and permitting the applicant to indecently deal with him — where applicant awarded criminal compensation of $12,000 — where District Court judge made award on basis of moderate mental or nervous shock — where applicant contends for assessment as severe mental or nervous shock — whether judge erred in assessment — whether leave should be granted — HELD: application for extension of time and grant of leave refused.

WorkCover Qld v Whiteman [2007] QCA 123; Appeal No 8496 of 2006, 13 April 2007 General Civil Appeal — where respondent sought compensation for work related injuries against Hinchinbrook Island Ferries Pty Ltd — where respondent was also employed by Hinchinbrook Island Resort Pty Ltd as a director — where respondent did work for both companies — where payroll summaries showed respondent on payroll for Hinchinbrook Island Resort P/L but not Hinchinbrook Island Ferries P/L — where agreement between companies provided for recovery of some moneys by Hinchinbrook Island Resort Pty Ltd from Hinchinbrook Island Ferries Pty Ltd — whether respondent was a ‘worker’ within the meaning of s 12 WorkCover Queensland Act 1996 (Qld) — whether respondent was within the ‘director exclusion’ contained in s 1(a) of Part 2 of Schedule 2 of the Act — HELD: appeal allowed and previous declaration set aside — appellant’s application for declarations that respondent not a worker and that he was not a person entitled to compensation dismissed — appellant to pay respondent’s costs of and incidental to appeal to be assessed.

MAV v ABA [2007] QCA 124; Appeal No 10078 of 2006, 13 April 2007 Application for Extension of Time and General Civil Appeal — where respondent convicted of maintaining, indecent dealing, attempted rape and rape — where conduct spanned over approximately nine years — where applicant became pregnant as a result of the rape — where assessment under s 663B Criminal Code made for conduct occurring up to 18 December 1995 and under s 24 Criminal Offence Victims Act 1995 (Qld) for conduct thereafter — where trial judge made assessment under Code on basis of criminal acts forming part of a ‘course of conduct’ — whether trial judge erred in classifying the criminal acts in question as a ‘course of conduct’ — whether applicant entitled to full compensation for each criminal act — where trial judge made assessment of $10,000 for pregnancy — where applicant was young, the pregnancy was her first and delivery was by caesarean section — where consideration given to pregnancy as an ‘injury’ for purposes of s 20 — whether learned trial judge made inadequate assessment of compensation under the Criminal Offence Victims Act — HELD: application for leave to appeal granted — appeal allowed with costs to be assessed — order made in District Court varied by substituting for the amount of $55,500 the amount of $65,500.

Phipps v Australian Leisure and Hospitality Group Ltd & Anor [2007] QCA 130; Appeal No 9841 of 2006, 20 April 2007 General Civil Appeal — where claimant suffered an injury at work — where claimant had not received a notice of assessment prior to bringing claim — where Workers’ Compensation and Rehabilitation Act 2003 (Qld) requires claimant receive notice of assessment in order to seek damages — where claimant had not received notice of assessment at time of cross-application to strike out proceedings — where fresh proceedings would be statute barred — where statute provides machinery to prospectively seek an extension of time — where mechanism not employed — whether failure to comply with pre-court procedure is absolute bar to relief claimed — whether an action susceptible to being struck out as an abuse of process is a nullity — whether the appellant’s action should be summarily terminated where the issue of the notice of assessment was imminent — whether Pt 5 of Ch 5 Workers’ Compensation and Rehabilitation Act 2003 (Qld) affects the substance of the claimant’s right of action and not merely the availability of a remedy to vindicate that right — whether trial judge recognised and exercised the discretion vested in him — whether trial judge erred — HELD: appeal allowed — orders of primary judge dismissing proceedings and awarding costs set aside — respondents to pay appellant’s costs of the appeal and of their application made to the primary judge.

Malaxetxebarria v State of Queensland [2007] QCA 132; Appeal No 9338 of 2006, 20 April 2007 General Civil Appeal — where respondent gifted primary school aged student — where respondent applied for unconditional acceleration into public high school — where appellant refused respondent full time attendance at high school — where respondent was instead offered tailored program — where respondent declined offer and was enrolled in private secondary school — where mid-year report issued by private school showing progress at high school level — where no evidence that report received by department — where no subsequent application for entrance made to department — where Anti-Discrimination Tribunal rejected the respondent’s complaint of discrimination — where Tribunal’s decision overruled by trial judge — whether trial judge erred in identifying the decision forming the basis of the alleged discrimination — whether refusal of unconditional acceleration amounted to age discrimination — HELD: appeal allowed — orders dated 4 October 2006 set aside — decision of Tribunal dated 18 April 2006 be affirmed.

Leyden v Caboolture Shire Council [2007] QCA 134; Appeal No 6211 of 2006, 20 April 2007 General Civil Appeal — where appellant suffered personal injuries whilst riding a bicycle on a council constructed BMX track — where council was found to be in control and occupation of the track, consented to use of track by members of the public and was authorised to maintain and repair it — where at the time of the appellant’s accident the track was different from the original construction as a result of unauthorised modifications — where appellant was aware of the altered state of the jump — where prior to the accident, the appellant had successfully completed the relevant jump in its modified form — where appellant sought damages in the District Court against the council claiming breach of duty of care — where learned trial judge dismissed the claim with costs — whether council ought have taken more vigorous steps to detect alteration and reinstate jump to previous condition — whether council owed a specific duty of care to the appellant as opposed to general duty of care owed generally to class of potential users — whether duty breached — whether defence of volenti non fit injuria established — HELD: appeal dismissed — appellant to pay the respondent’s costs.

Merrin v The Nominal Defendant [2007] QCA 135; Appeal No 8227 of 2006, 20 April 2007 Application for Leave s118 DCA (Civil) — where applicant suffered personal injuries when riding a bicycle and forced off the road by a passing car — where applicant sustained injuries to neck, right elbow and hand, right hip and buttock and lower back as a result of accident — where applicant continued to suffer from ongoing pain and discomfort after accident — where evidence of resolution of initial symptoms with further symptoms referable to pre-morbid pathology — where respondent conceded liability to compensate — where issue for determination at first instance was appropriate quantum — where trial judge gave judgment for the applicant for $23,667.84 — whether trial judge erred in attributing ongoing symptoms to pre-morbid pathology — whether leave to appeal should be granted — HELD: leave to appeal refused with costs — application for leave to adduce further evidence dismissed.

Camden & Anor v McKenzie & Ors [2007] QCA 136; Appeal No 6683 0f 2006, 20 April 2007 General Civil Appeal — where appellants entered lease with third respondent for retail space in shopping centre — where appellants commenced proceedings in the District Court claiming damages for breach of s 52 Trade Practices Act — where appellants claimed misleading representations made by first respondent as to refurbishment of the premises — where competing evidence of surrounding circumstances — where learned trial judge made finding as to credibility, favouring the evidence of the first respondent — where learned trial judge’s reasons did not advert to conflict of evidence between first respondent and another witness and other documentary evidence — whether representations were made in the terms alleged — whether representations were misleading — whether representations were material to appellant’s decision to enter lease — whether reasons were adequate — whether re-trial should be ordered — HELD: appeal dismissed — appellants to pay respondents’ costs of appeal.

Clark & Ors v Cook Shire Council [2007] QCA 139; Appeal No 11323 of 2006, 27 April 2007 Application for Leave Integrated Planning Act — where respondent council notified public of proposed planning scheme — where submissions were received in respect of the proposed scheme — where respondent then sought to implement modified scheme — whether s 16(2) of Sch 1 Integrated Planning Act 1997 (Qld) obliged the respondent to recommence notification process — meaning of ‘significant difference’ in s 16(2) of Sch 1 Integrated Planning Act 1997 (Qld) — HELD: leave to appeal granted — appeal dismissed — applicants to pay the respondent’s costs of the application and appeal.

Clairview Developments Pty Ltd v Law Mortgages Gold Coast Pty Ltd & Ors [2007] QCA 141; Appeal No 8060 of 2006, 27 April 2007 General Civil Appeal — where appellants were owners of certain land — where mortgages granted in favour of first defendant — where first defendant transferred interest under mortgage to respondents without notice to the appellants — where respondents sought to enforce debt owing under mortgages — where debt exceeded value of land — where appellants lodged caveat to prevent sale of land and brought proceedings against defendants seeking a declaration that no moneys were owing — where appellants also sought an injunction restraining the exercise of rights under the mortgage — where respondents bought an action against the appellants to enforce rights allegedly existing under the mortgage — where trial judge ordered removal of caveat and gave judgment in favour of the respondents — whether trial judge erred in making such orders — where respondents purported to exercise power of sale — whether respondents entitled to exercise power of sale — where appellant contends for oral term to be read into the mortgages — where appellant relies on oral term to support an unliquidated claim for damages against defendants — where appellant seeks set off of unliquidated sum against mortgage debt — whether set off possible — HELD: appeal dismissed — appellant to pay the respondents’ costs.

CRIMINAL APPEALS

R v MAU [2007] QCA 115; CA No 17 of 2007, 21 March 2007 Reference under s 672A Criminal Code — where petitioner charged with various sexual offences — where petitioner convicted by jury on some counts and acquitted on others — where petitioner unsuccessfully appealed to this Court on a prior occasion — where petitioner contends inconsistency between convictions and acquittals — where petitioner contends defence counsel at trial failed to put all relevant evidence before the jury — whether evidence supports verdict — whether verdict unsafe or unsatisfactory — HELD: appeal dismissed.

R v Schluter [2007] QCA 125; CA No 12 of 2007, 13 April 2007 Sentence Application — where applicant was convicted of various drug offences — where applicant sentenced to 18 months imprisonment, wholly suspended, with an operational period of three years — where applicant committed further offences during the operational period of the sentence — where 12 months of suspended sentence activated by learned trial judge — where mitigating factors present, including genuine attempts at rehabilitation — whether activation of 12 months of sentence was a manifestly excessive penalty — HELD: application dismissed.

R v Drier [2007] QCA 129; CA No 1 of 2007, 20 April 2007 Appeal against Conviction — where appellant convicted after a re-trial of unlawful assault occasioning bodily harm — where assault followed traffic incident — where police officer gave evidence of damage to appellant’s car — where photographs taken by officer not available — where self-defence and provocation left to jury — where inconsistencies in evidence given by crown witnesses — whether verdict supported by the weight of the evidence — where crown did not call nor make available for cross-examination the doctor who examined the complainant’s injuries — whether failure to call doctor led to a miscarriage of justice — where crown prosecutor in closing made submissions about the appellant’s motive to lie — where trial judge in summing up directed the jury as to these submissions made by the crown — whether jury should have been discharged — HELD: appeal dismissed.

R v JL [2007] QCA 131, CA No 353 of 2006, 20 April 2007 Appeal against Conviction — where appellant convicted of maintaining, unlawful carnal knowledge and two counts of indecent dealing but acquitted of other counts of sexual offences — where complainant gave conflicting evidence — where allegations of complainant supported by other evidence on some counts but not others — where trial judge gave directions as to the effect of the complainant’s credibility in relation to other counts — whether verdicts inconsistent — whether Markuleski direction was properly given — whether it was open to the jury to take a different view of the reliability of the complainant’s testimony in relation to the different counts on the indictment — whether there was a miscarriage of justice — HELD: appeal dismissed.

Crowther v Sala [2007] QCA 133; CA No 345 of 2006, 20 April 2007 Application for Leave s 118 DCA (Criminal) — where applicant made phone calls which were allegedly threatening — where applicant charged and convicted under s 474.17(1) Criminal Code (Cth) of using a carriage service in a way that reasonable persons in all the circumstances would regard as menacing, harassing or offensive — where section does not specify a fault (mental) element — where Code provides that recklessness is the fault element where nothing specified — where evidence as to applicant’s state of mind not adduced in Magistrates Court or on appeal to District Court — whether leave to appeal should be granted — whether fault element applied to intent that words be menacing — whether any findings as to fault made at first instance — whether Court can draw inferences from facts as found below — HELD: leave to appeal granted — appeal allowed — respondent to pay applicant’s costs of this application.

R v Martens [2007] QCA 137; CA No 323 of 2006, 20 April 2007 Appeal against Conviction & Sentence — where appellant convicted of one count of having sexual intercourse with a person under 16 years whilst outside Australia — where case turned upon the conflicting evidence of the complainant and appellant — where delay in taking statement of complainant — where complaint resulted from investigation, and not made at the initiation of the complainant — where some evidence threw doubt on the reliability and truthfulness of the complainant’s evidence — where judge fairly summarised the elements of the offence and defence case to the jury — where inconsistencies in complainant’s evidence thoroughly addressed in cross-examination — whether jury were entitled to accept complainant’s evidence — whether verdict unreasonable — whether verdict supported by the evidence — where defence counsel was stopped from cross-examining witnesses about their knowledge of rumours — whether such cross-examination was an exception to the hearsay rule — whether judge erred in permitted prosecutor to cross-examine a witness on a prior inconsistent statement to police — whether trial judge erred in failing to give a Longman direction — whether trial judge erred in failing to give specific warnings concerning the evidence of the complainant given her age and culture — whether trial judge gave adequate directions as to the date of the offence — where appellant sentenced to five and a half years imprisonment with a non-parole period of three years — whether sentence in appropriate range under s 50BA Crimes Act 1914 (Cth) — HELD: appeal against conviction dismissed — application for leave to appeal against sentence refused.