THE BAR ASSOCIATION OF QUEENSLAND
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Issue 100: June 2025
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CIVIL APPEALS

Mortimer v Lusink & Ors [2017] QCA 001 (16/6284) Gotterson and Morrison JJA and Jackson J 31 January 2017

General Civil Appeal — where the appellant, the testator’s daughter, was refused an application for an extension of time within which to apply for provision from the estate — where it is alleged on appeal that the primary judge reached his conclusions by the application of principles or considerations applicable to the grant of final relief, rather than those applicable to the exercise of the discretion under s 41(8) of the Succession Act 1981 (Qld) (SA) — where it is further alleged that the primary judge made factual errors arising from misapprehensions of the evidence — where the primary judge relied on a principle that it was necessary for an applicant to establish an entitlement to final relief, instead of whether or not an applicant has established an arguable case for final relief — where it was relevant for the learned primary judge to have enquired into whether the appellant’s claim was one that was clearly unlikely to succeed or was one that would probably fail — where it was noteworthy that in other jurisdictions, intermediate courts of appeal have held that under the comparable statutory provision, the relevant enquiry is as to whether or not an arguable case has been made out by the applicant for relief — where his Honour did not, however, undertake such an enquiry — where his Honour did not address the issue whether the appellant’s case was clearly unlikely to succeed, nor did he enquire into whether it would probably fail — where his Honour expressed no view as to whether there was an arguable case — where in undertaking the assessment that he did make, his Honour appears to have conflated the concept of a substantial case for relief under s 41(8) SA with the concept of a prima facie case for a substantial award by way of final relief — where the evidential factors leads irresistibly to a conclusion that the financial resources available to the appellant are insufficient to meet her needs now and into the future — where in all the circumstances, the discretion under s 41(8) SA ought to be exercised in the appellant’s favour — where at the hearing of the appeal, the parties were in agreement as to the form of the orders that ought be made by this Court in the event that the appeal is allowed. Appeal allowed. The orders of the Supreme Court be set aside an lieu thereof it is ordered that a. It is directed that the applicant’s application for provision out of the deceased’s estate shall be heard notwithstanding that such application was instituted within nine months after the death of the deceased; b. By consent, all amounts received by the second, third and fourth respondents from the first respondent, less any amounts paid by them for reasonable legal fees and expenses incurred in responding to this proceeding, shall be repaid to the first respondent forthwith and be held by him as executor of the executor of the estate of the deceased pending the determination of the applicant’s application for provision out of the estate of the deceased; c. By consent the proceedings are discontinued as against the second, third and fourth respondents upon such payment. Procedural orders. The first respondent pay the appellant’s costs of the appeal, including the application to adduce further evidence, and her costs of the application below. The first respondent be granted a certificate under s 15 of the Appeal Costs Fund Act 1973 (Qld) including for his own costs of the appeal

Chandra v Queensland Building and Construction Commission [2017] QCA 004 (16/2885) Margaret McMurdo P and Fraser JA and Daubney J 3 February 2017

Application for Leave Queensland Civil and Administrative Tribunal Act — where the respondent had previously made findings of unsatisfactory conduct against the applicant — where the respondent determined that the applicant had also engaged in professional misconduct because of his repeated unsatisfactory conduct — where the Queensland Civil and Administrative Tribunal ordered that the applicant’s licence as a building certifier under the Building Act 1975 (Qld) be cancelled — where the Tribunal ordered that the applicant never be re-licensed and imposed a pecuniary penalty — where the applicant appealed against the decision that he never be re-licensed and challenged the pecuniary penalty — where the Appeal Tribunal affirmed the decision but vacated the pecuniary penalty order — where the Tribunal did not find that a less severe, available order would not provide sufficient and appropriate protection for the public — where the Tribunal’s concluding statement in paragraph 64 was instead that “the best protection for the public in this case is that Mr Chandra never be allowed to hold a licence again” — where the Tribunal did not apply the correct test — where in every case of professional misconduct it might be said that a permanent ban supplies the best protection for the public, but that is not a justification for a permanent ban where a less severe order is appropriate to meet the legislative purposes — where authorities suggest that a permanent ban should not have been imposed in this case unless the Tribunal was satisfied that the licensee was probably permanently unfit to hold the licence — where the Tribunal made no such finding — where a less severe order of the kind proposed by the applicant – an order that precluded the applicant from applying to be re-licensed for a specified period of time determined by the Tribunal, thereafter leaving it to the respondent to decide if the applicant then satisfied the statutory criteria for holding a licence – would appear to sufficiently and appropriately protect the public against the risk of further misconduct by the applicant — where the judicial member concluded instead that the applicant’s “own failure to propose an equally effective but less onerous available option” indicated that “there realistically isn’t one” and that his failure was “also indicative of an inability to come to grips with the magnitude of the risk he poses now and in the foreseeable future” — where those conclusions did not explain why an order along the lines proposed in the applicant’s extensive submissions was not appropriate and sufficient to protect the public — where the judicial member also observed that, in the absence of “some evidence of positive and lasting change or sign of reasonable prospects of, or even a genuine willingness to accept and reduce the risks proposed by, his professional shortcomings, the Tribunal was entitled to take a “better safe than sorry” approach” — where that observation affirmed the Tribunal’s erroneous approach of adopting the most severe penalty without explaining why a less severe penalty would not provide the required protection of the public — where the Tribunal’s findings engender a reasonable concern about the applicant’s suitability to hold the licence but they do not establish that he was unlikely ever to rehabilitate himself — where in these circumstances, whilst the seriousness and repetition of the applicant’s conduct merited a severe sanction, including deprivation of the licence for a substantial period, to further the dominant legislative purpose of protecting the public, it was not open to impose a permanent ban for the subject conduct — where absent a finding that it was likely that the applicant would remain unfit to be licensed for the rest of his working life, the protection of the public could be secured by a severe sanction, falling short of a permanent ban, that precluded the applicant from applying to be re-licensed for a substantial period, when he would be required to satisfy the respondent that he was then a suitable person to be licensed — where the respondent applied for leave to cross-appeal against the Appeal Tribunal’s decision to vacate the pecuniary penalty order — whether it was open to the Appeal Tribunal to set aside the Tribunal decision imposing the pecuniary penalty — where those reasons depend in part upon the effect of the permanent ban which has been overturned — where the judicial member clearly found that as a result of the order that the applicant must never be re-licensed by the respondent, the applicant had lost his livelihood, and that this occurred at a time “when his employability in another field must be problematic” — where there was no finding to that effect made by the Tribunal — where there was no evidence that the applicant had lost his livelihood or that his employability in another field was problematic — where the parties’ submissions in the Appeal Tribunal were to the contrary effect — where there were no facts found by the Tribunal or agreed between the parties that could justify the inference drawn by the judicial member — where leave to appeal should be given because the Appeal Tribunal’s order vacating the penalty involved an error of law and the public interest is served by the restoration of the order imposing the penalty. In relation to the application for leave to appeal by Chandra: Leave granted. Appeal allowed. Set aside Order 1 of the Appeal Tribunal and instead it is ordered that Suresh Chandra is not permitted to apply to be licensed or re-licensed by Queensland Building and Construction Commission (QBCC) before 21 November 2018. Costs. In relation to the application for leave by the QBCC: Leave granted. Appeal allowed. Set aside Order 2 of the Appeal Tribunal. Costs

Ure v Robertson [2017] QCA 020 ; [2017] 10 QLR (16/10555) Gotterson and Morrison JJA and Bond J 28 February 2017

General Civil Appeal — where the appellant filed a claim in March 2007 and the respondent filed a counterclaim in September 2010 — where the appellant provided a list of documents in March 2015 without obtaining an order of the Court — where r 389 of the Uniform Civil Procedure Rules 1999 (Qld) (UCPR) provided that if no step was taken in a proceeding for two years, a new step could not be taken without an order of the Court — where r 371(2)(d) of the UCPR empowered the Court to declare a step taken in breach of the UCPR to be effectual — where it is common ground that by 20 March 2015 no step had been taken in relation to either the claim or the counterclaim for more than two years — where by that date r 389(2) of the UCPR therefore operated in relation to all parties to the proceeding and prevented them from taking a new step without obtaining an order of the Court — where on 20 March 2015, the solicitors for Mrs Ure and the other defendants by counterclaim provided a list of documents on behalf of the second and third defendants by counterclaim — where they took that step without obtaining an order of the Court as they were required to do by r 389(2) — where the respondent applied for an order dismissing the claim for want of prosecution and declaring ineffectual the delivery of the list of documents — where the primary judge dismissed the claim and counterclaim for want of prosecution — whether the delivery of the list of documents constituted a step having been taken within the meaning of r 389(2) UCPR — where the evident intention of r 389 UCPR is that a stay should be imposed on proceedings in certain circumstances and to require any person who seeks to lift the stay to approach the Court to seek an order — where the policy is to ensure that proceedings which are significantly delayed come to the attention of the Court so that they can be dealt with appropriately: see Thompson v Kirk [1995] 1 Qd R 463 — where the construction of r 389 for which the appellant contends would defeat that intention — where the proper construction of r 389(2) is that the “last step” contemplated must be the last effectual step, namely a step which was effectual because it was regular when taken, or a step which, although irregular when taken, has since been declared to be effectual under the rules — where if the Court is approached by a party seeking to re-enliven proceedings after two years have passed before the step is taken the appropriate order, assuming the Court is persuaded to exercise its discretion, would be an order pursuant to r 389(2) authorising the step to be taken — where if the step has already been taken in breach of r 389(2) then the appropriate order would be an order under r 371(2)(d) declaring the step to be effectual, perhaps together with an order nunc pro tunc under r 389(2) permitting the step to be taken — where this approach treats the step as irregular but not effectual — where r 371(1) does not make regular that which is irregular — where that depends upon the exercise of the discretions authorised by r 371(2) — where it follows that the learned primary judge made no error when he concluded that the proceeding was to be regarded as having been stayed by operation of r 389(2), notwithstanding the fact that the list of documents was served on 20 March 2015 — where the appellant suggests the learned primary judge erred in not finding, and attributing significance to, the fact that the delay in the prosecution of the claim was stalled and frustrated by the respondent — where there is no merit in this complaint — where the primary judge did not mistake the facts — whether the discretion of the primary judge miscarried. Appeal dismissed with costs.

CRIMINAL APPEALS

R v MCJ [2017] QCA 011 (16/63) Margaret McMurdo P and Gotterson JA and Henry J 10 February 2017

Appeal against Conviction — where the appellant was charged on a 13 count indictment with one count of maintaining a sexual relationship with a child with a circumstance of aggravation, three counts of indecent treatment of a child under 12 in his care, five counts of indecent treatment of a child under 12 and four counts of rape — where the appellant contended that the judge failed to adequately give a direction in terms of Robinson v The Queen (1999) 197 CLR 162 — whether there was a misdirection or non-direction — where the circumstances relied on by the appellant in some instances are entirely lacking in substance and the balance, at worst, give rise to potential arguments about credibility and reliability — where even considered collectively they do not give rise to a perceptible risk of a miscarriage of justice so as to have required reference to them in the warning which was in fact given in this case — where a note the complainant had written was an exhibit at trial — where the appellant submits the jury was not properly directed as to how it could use the evidence of the note — whether the jury was properly directed — where it would have been difficult for the jury to comprehend the distinction between them having regard to “the tenor of the note” but not using the note’s content “as evidence that any particular thing had happened between” the appellant and complainant — where it is unnecessary to resolve whether it was permissible for the jury to use the evidence about the note and its content as circumstantial evidence in proof of the alleged sexual relationship between the appellant and complainant — where there was another legitimate pathway for the admission into evidence and the use of the note in such a way — where that pathway was s 93A of the Evidence Act 1977 (Qld) — where regrettably that provision was not referred to the learned trial judge — where had it been, his Honour would likely have given a less obscure direction, unconcerned by the vague parameters of the above discussed common law principles — where the note was admissible as evidence of that fact pursuant to s 93A and the jury was entitled to use its content as tending to establish that fact — where the direction in dispute has had to be considered on the basis the jury may have regarded it as allowing the evidence about the note to be used as circumstantial evidence in proof of the alleged sexual relationship between the appellant and complainant — while that use was permissible the dilemma remains that the direction said so little about the parameters of such a use — where a significant omission was the absence of explanation of circumstantial reasoning apposite to the use of the note — where accepting it was permissible for the jury to use the evidence about the note as tending to establish there had been a relationship involving sexual behaviour, the evidence only tended to establish that fact as a matter of inference, that is, as circumstantial evidence — where the only direction given of relevance to circumstantial evidence was a standard direction in the introductory phase of the summing up dealing with the drawing of inferences — where this was not a case requiring a special direction of the kind apt to a case based substantially on circumstantial evidence, however, it at least required an explanation of the need to be satisfied the note’s reference to “the things we do” was to physical sexual interaction between the appellant and complainant and to exclude the possibility it was a reference to some lesser form of interaction, such as the showing of pornography or discussions about sexual topics such as dildos — where such a direction would have explained those examples of lesser interaction arose from the evidence, in that the complainant told her mother the note was a reference to the showing of pornography and the appellant told his wife he and the complainant had discussions including about a dildo — where it is reasonably possible the jury regarded the note as tending to confirm the complainant’s account that the appellant had maintained a sexual relationship with her — where unfortunately the real risk which cannot be discounted here is that the jury may have used the note as evidence tending to prove the sexual relationship between the appellant and complainant as alleged by the prosecution without reaching a specific view as to whether the note’s reference to “the things we do” was to physical sexual behaviour or something less than that — where the jury may not have appreciated if it was possibly the latter then the note could not be used as evidence in proof of the charge of maintaining a sexual relationship with a child — where it is reasonably possible that the failure to direct of the need to be satisfied the note’s reference to “the things we do” was to physical sexual interaction between the appellant and complainant, and not some lesser conduct, may have resulted in the impermissible use of the note in a way which affected the verdicts — whether a miscarriage of justice occurred. Appeal allowed. Convictions on counts 1, 2, 3, 4, 5, 6, 7, 9, 10, 11, 12, 13 and 15 of the indictment be quashed. The appellant be retried upon those counts on the indictment.

R v HBO [2017] QCA 018 (16/79) Fraser and Philip McMurdo JJA and Mullins J 24 February 2017

Appeal against Conviction — where the appellant was convicted of seven counts of sexual offending against his stepdaughter — where the most serious offence was an attempted rape for which he was sentenced to four and a half years’ imprisonment — where the offences were allegedly committed in certain broadly defined periods, the earliest commencing in 1989 and the latest ending in 1994 — where there is no issue that a Longman direction (Longman v The Queen (1989) 168 CLR 79) was required in the present case — where the trial judge was obliged to inform the jury that the delay in the making of the complaint had disadvantaged the defendant because the evidence of the complainant could not be adequately challenged, either by cross examination or by contradictory evidence, after the passage of about 25 years — where having identified those effects of the delay on the fairness of the trial, the trial judge was required to warn of the danger in convicting in this case without the jury scrutinising the complainant’s testimony with great care and considering the circumstances which were relevant to that evaluation of her testimony — where what was said in that respect could not be criticised — where the question is whether a warning in those general terms was sufficient in the present case because of a risk that, unassisted by the trial judge’s instruction as to what were those circumstances, the jury might convict without that required scrutiny of the evidence — where the jury was bound to follow the trial judge’s instructions and, in particular, to heed the warning within this instruction about the complainant’s testimony — where unless “the circumstances relevant to its evaluation” must have been plain to the jury, the warning could have been sufficient only if those circumstances were identified by the trial judge — where this was not a case where the circumstances relevant to the evaluation of that testimony were so obvious that they could not be overlooked — where the relevant circumstances were the passage of 20 to 25 years from the alleged events, the young age of the complainant at the time, the absence of any complaint notwithstanding the complainant’s close relationship with her mother and twin brother, the circumstance that many of the events were said to have occurred as she slept or after she had awoken, the antipathy of the complainant towards the appellant from his having been unfaithful to her mother, the coincidence of the timing of her learning of that fact and her complaint to police and the complainant’s explanation for going to the police when she did — where without those circumstances being identified by the trial judge as necessary considerations, what was said was insufficient to instruct the jury of the required scrutiny of the complainant’s testimony. Appeal allowed. Appellant’s convictions of 11 March 2016 quashed. Retrial ordered.

The Court is honoured by the presence of their Excellencies the Governor-General and Lady Cosgrove, of former Chief Justices the Honourable Sir Gerard Brennan and the Honourable Robert French and of the Right Honourable Dame Sian Elias, Chief Justice of New Zealand.  I am delighted that my former colleagues the Honourable William Gummow, the Honourable Michael Kirby, the Honourable Kenneth Hayne and the Honourable Susan Crennan are sitting with us today.

I am pleased to have been sworn in as Chief Justice by my dear colleague, Justice Virginia Bell.  This occasion is therefore historically significant on two counts.

The Court welcomes you, Mr Attorney, the Shadow Attorney-General, the President of the Senate, the Speaker of the House of Representatives, the Chief Justice of the Federal Court, the Chief Justices of State and Territory Supreme Courts and judges of those courts, the Acting Chief Justice of the Family Court and judges of other courts, retired judges, the Solicitors‑General of the Commonwealth and of the States and Territories, and the Presidents and members of Bar Associations and Law Societies and of the Law Council of Australia.

I am personally honoured by the attendance today of members of my family, especially my husband and my sister, and our friends.  Some have travelled a considerable distance to be here and I am deeply appreciative that they have done so.

There have been six Chief Justices of this Court since the time that I commenced my legal studies.  I have had something of a personal connection with three of them.

Sir Gerard Brennan was still in practice as a Silk at the Brisbane Bar when I began my legal studies.  He was kind enough to seek me out in order to loan me his treasured texts on Roman law and thereafter would enquire as to my progress.  It was of some pleasure to me that, many years later, Sir Gerard was a member of the Court when it sat, ceremonially, on the occasion when I announced my appointment as a Senior Counsel for Queensland.  A similar ceremony will take place in this Court tomorrow.

I came to know Sir Harry Gibbs through a solicitor, Gerald Patterson, who was a close friend of Sir Harry’s and one of my staunchest supporters when I first came to the Bar.  Whenever our paths crossed, Sir Harry was kind enough to express an interest in how I was getting on at the Bar.  His greatest act of kindness, though, was during one of my first appearances in this Court.  He reminded me of the next step in my argument when a question from Sir Garfield Barwick resulted in me suffering a temporary loss of memory.

I have enjoyed a friendship with the retiring Chief Justice, the Honourable Robert French, since shortly after I joined the Federal Court in 1994.  I believe that we may both have learned much from our time on that Court about the importance of civility and collegiality.  At a ceremony in this Court, in December last, fitting tributes were paid to the considerable public service that he has given as a judge and the contribution that he has made to the law.

It has been my privilege to serve with Chief Justice Gleeson and Chief Justice French since I joined this Court and a pleasure to work with my colleagues.

At the opening of the High Court in 1903 the first Chief Justice, Sir Samuel Griffith, said that “[w]e know that we shall be expected to solve difficult questions, to compose strife between states, and possibly between the states and the Commonwealth”.  Sir Samuel was right on each count.  There have also been important historical events affecting the Court, such as when the right to appeal to the Privy Council was finally abolished.  It was important because it enabled the High Court to assume its present position as the final arbiter of appeals in Australia and more confidently to develop the common law of Australia.

In the year preceding the opening of this Court, Australian women were given the right to vote at federal elections.  It was then that they truly became part of “the people” to whom our Constitution refers.  That year also saw the first woman graduate in law from an Australian university.  It would not be until 1987 that a woman, the Honourable Mary Gaudron, was appointed to this Court.

When I came to the Bar in 1975 there were very few women members of the profession.  This is not the occasion to consider why this was so.  The point presently to be made is that this has changed and so has the composition of this Court.  In more recent times the appointment of more women to this Court recognises that there are now women who have the necessary legal ability and experience, as well as the personal qualities, to be a Justice of this Court.  There seems no reason to think that that situation will not be maintained in the future.  It may well improve.

Sir Samuel Griffith also spoke of the “weighty and responsible duties” the new Justices had undertaken.  Chief Justices, like the other Justices, give a part of their lives to the service of this Court and thereby to the people of Australia.  That service is not given for the purpose of personal acknowledgment or the enhancement of reputation.  It is given to ensure that this Court is maintained as an institution in which the government, the legislature, the legal profession and the people of Australia can have confidence.

The presence of so many Chief Justices here today, from Australia and New Zealand, is a reminder of the co-operation which is effected through that national and trans-Tasman body, the Council of Chief Justices of Australia and New Zealand.  The presence of so many judges from different courts reminds us that, whilst the High Court stands at the apex of Australian courts, its position depends upon the existence of all Australian courts.  Its work relies upon the diligence and dedication of judges of courts at every level.  This Court will strive to assist these courts by providing decisions which are clear and which offer practical guidance.

It is sometimes said that Justices of this Court must write judgments with an eye to the past and also to the future.  We could also look around us, as did judges of the English tradition in the past.  Communication and translation technology allows us an even wider perspective.  We can observe how other courts reason in areas of common interest.  Identifying and comparing our different approaches can provide us with a deeper understanding of our own laws.

In the not too distant past the term “globalisation” may have been thought to be little more than a slogan, but it may now be considered to be a way of thinking about the world rather than ourselves in isolation.  This Court maintains dialogues with overseas courts, including courts in the Asia Pacific region.  Some are undertaken to share knowledge and find solutions to common problems.  Others are engaged in to foster a mutual understanding of the work of our respective courts, the constitutional framework within which our courts operate and the laws which we apply.

It is no less important that the people of Australia understand our court system.  It is to be hoped that the 37,000 school children, from over 750 schools around Australia, who visit the Court each year will be encouraged to learn more about this Court.  The High Court is conscious of its educative role.  It provides materials about the Court and the Constitution to schools, it makes written arguments in matters coming before the Court accessible and it provides audio-visual recordings of its hearings on its website.  It has recently made arrangements with the Constitution Education Fund Australia for the establishment of an Australian Constitution Centre at the Court, by which it is proposed to promote public understanding and an appreciation of the Australian Constitution, its history and contemporary relevance.

Since its inception this Court has provided the stability and certainty for which the framers of the Constitution hoped.  In accordance with the Constitution, this Court must sometimes declare that legislative or executive power has been exceeded.  The Court does so respectfully, conscious of its constitutional role and the role which the Constitution gives to the legislature and the government.

The Chief Justices who have preceded me have been persons of the highest integrity and ability.  I have been given a great responsibility.  With the co‑operation of my colleagues I trust that I shall discharge it well and justify the confidence that has been reposed in me.

On behalf of the Court I thank you all for your presence today.

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By Richard Douglas QC

Those engaged in vocations affording specialised services would covet being characterised as a “professional”. The primary reason for that, no doubt, would be the cachet attracted by such mantle. In addition, perhaps cynically, such descriptor may serve to amplify the fee for service.

The attraction of that descriptor is also important for a number of legal reasons. Four come readily to mind.

First, the Competition and Consumer Act 2010 (Cth), albeit without defining “professional”, utilises the term in two respects:

  • in s 4 concerning general interpretation of terms, and s 95A concerning interpretation pertaining to price surveillance, the definition of “services” includes those:

… provided, granted or conferred under … a contract for or in relation to … the performance of work (including work of a professional nature), whether with or without the supply of goods …

  • in s 6, in extension of the application of the Act to persons who are not corporations, with some exceptions, it is provided:

… a reference in those provisions to a thing done by a corporation in trade or commerce included a reference to a thing done in the course of professional activities of a professional person.

Second, the Civil Liability Act 2003 (Qld) – while in s 20 defining “a professional” unhelpfully as meaning “a person practising a profession” – goes on in s 22 1 to provide, with some exceptions:

A professional does not breach a duty arising from the provision of a professional service if it is established that the professional acted in a way that (at the time the service was provided) was widely accepted by peer professional opinion by a significant number of respected practitioners in the field as competent professional practice.

This provision entails enactment of a qualified version of the standard of care prescribed in the seminal decision of Bolam v Friern Barnet Hospital Management Committee. 2

Third, the Civil Liability Act, in making provision for proportionate liability in Part 2 of Chapter 2 thereof, provides in s 28(3)(b) for an exception to application in the instance of “a claim … by a consumer”. Section 29 defines “consumer”, inter alia, as meaning:

… an individual whose claim is based on rights relating to goods or services, or both, in circumstances where the particular goods or services … relate to advice given by a professional to the individual for the individual’s use, other than for a business carried on by the individual whether solely or as a member of a business partnership.

Fourth, in the sphere of insurance, the subject matter of “professional services” arises for construction, whether in the context of a policy insuring or exclusion clause. 3

So much begs the question; just who is a “professional”?

professional_01.jpg“Professional” — the authorities

Close to a century ago, in Bradfield v Federal Commissioner of Taxation,4 Isaacs J observed that the term “is not one which is rigid or static in its signification; it is undoubtedly progressive with the general progress of the community”.

Modern mores have taken the status of a “professional” beyond the learned professions, namely medical practitioners, lawyers, architects, engineers. More recently, such status, quite properly, has been accorded dentists, accountants, valuers, naval architects, patent attorneys, pharmacists, surveyors, geologists, veterinarians, agricultural (and other) scientists, investment advisors, stockbrokers, psychologists, physiotherapists, speech therapists and occupational therapists.

In the sphere of health, the Health Practitioner National Law,5 in s 5 thereof, affords a wide definition of “Health Profession”:

health profession means the following professions, and includes a recognised specialty in any of the following professions—

(a) Aboriginal and Torres Strait Islander health practice;

(b) Chinese medicine;

(c) chiropractic;

(d) dental (including the profession of a dentist, dental therapist, dental hygienist, dental prosthetist and oral health therapist);

(e) medical;

(f) medical radiation practice;

(g) nursing and midwifery;

(h) occupational therapy;

(i) optometry;

(j) osteopathy;

(k) pharmacy;

(l) physiotherapy;

(m) podiatry;

(n) psychology.

This statutory prescription ought, at least, inform the “professional” character of such vocations.

In Durant v Greiner, 6 a politician was found to be a professional for the purpose of the Fair Trading Act 1987 (NSW). That finding, with respect, is surprising given that the only qualification is lawful election to office.

In Prestia v Aknar,7 Santow J8 considered a raft of authorities from the United Kingdom and Australia in the context of what constitutes a “professional activity” in state legislation bereft of any definition thereof:9

One might essay a working definition of these terms. This would embrace intellectual activity, or manual activity controlled by the intellectual skill of the operator, whereby services are offered to the public, usually though not inevitably for reward and requiring professional standards of competence, training and ethics, typically reinforced by some form of official accreditation accompanied by evidence of qualification.

The term “professional activity” refers at least to particular activity which a member of a profession would characteristically carry out in that capacity and which is in fact so carried out by that member as such a professional. It may be that it thus excludes someone who carries out that characteristic activity pretending to be a professional but which is not. However, I do not have to decide that question. An example of the later would be an unqualified person who sought to carry out, for example, medical procedures. Of course if excluded from being a professional activity, the activity may still be business activity, depending on the facts.

Santow J observed that taxation consultants, brokers, teachers and mediators may be professionals, depending on how they organised and conducted themselves. By parity of reasoning, one would have thought tertiary teaching staff would also garner the “professional” mantle.

Plainly self-employment is not a prerequisite of professional status. With the exception of barristers, the modern professional often is a private or public sector employee.professional_02.jpg

Extended meaning

Most “blue collar” specialist vocations – eg, builders, electricians, plumbers, mechanics, ship pilots and marine masters – in addition to “white collar” specialist vocations – eg teachers, nurses (and midwives), insurance brokers, optometrists, chiropractors, osteopaths and podiatrists – are hallmarked by an extensive course of study in a tertiary institution or technical college, coupled with compulsory statutory registration founded upon the ubiquitous “fit and proper person” touchstone to garner and maintain registered status. The latter often mandates ongoing technical re-education.

It is submitted that each such “tradesperson”, for some or all purposes, ought enjoy the general law mantle of “professional”. As the authors of Charlesworth and Percy observe,10 the standard of care owed by a “learned” tradesperson has long been virtually synonymous with that of each of the said “learned” professions.

Necessarily there are limits.

Spooner-Hart Prosthetics v Jones11  is an example of an unsuccessful attempt to characterise a defendant as a professional advisor in circumstances where the apt character was no more than a “specialised technician”. That case turned on the precise content of the duty owed by that defendant where there were known necessary dealings with government authority for funding of the specialised service in question.

The same could be said of other quasi-specialised services, despite those in their ranks claiming their services to be, broadly speaking, “professional” in character.

Thus, for example, specialised equipment operators – eg crane drivers, long distance haulage drivers, heavy equipment operators – while undoubtedly highly skilled, requiring significant experience and assuming considerable responsibility for safety of person and property, are unlikely to attract the requisite characterisation. Similarly, the mantle is unlikely to extend to military, police or other public or private security personnel.

Further, in the sphere of insurance, a narrower approach is generally considered apt, apropos of the usual policy language of “professional services”. Subject to policy definition, that language is ordinarily confined to the mainstream modern professions, bereft of the abovementioned extended meaning.12 Recently, in Chubb v Robinson,13 the Full Court of the Federal Court was not satisfied that the moving party had proved that, in or about 2011, building project management was a “profession”, or that provision of project management services constituted the rendering of “professional services” within an exclusion in a D & O policy.

The faux professional

There are instances of a person purporting to practise as a professional, or expressing professional opinion, while in truth bereft of qualification or experience, or registration where required. The applicable principles appear to dictate that such a person will be found to owe a duty of care to the standard of care of the adopted profession.

In Pickering v McArthur 14 the defendant, a massage therapist, advised the plaintiff, his trusting client, to leave his wife. The plaintiff suffered psychiatric injury in consequence. Approving the first instance judge’s view that the application to strike out the claim ought be refused, Keane JA15 wrote:

[13] In my opinion, if it be the fact that the respondent (plaintiff) was persuaded by the applicant’s (defendant’s) claims of competence in the field of relationship counselling to act in reliance upon his advice, and such reliance was reasonable, then, if that advice was given without the reasonable care that might be expected of a person holding themselves out as qualified to give that advice, the respondent may have a good claim for damages for negligence if he suffered psychiatric harm as a result of acting upon the applicant’s advice.

[14] The respondent’s case may be said to involve a claim to remarkable gullibility and susceptibility on his part. It may also be said that the respondent’s allegations of assumption of responsibility and reliance tend to strain credulity. But, of course, the law of negligence protects the gullible as well as those who are astute to conserve their own interest. And these are arguments about whether the respondent’s allegations are true as a matter of fact.

In Timbs v Shoalhaven City Council,16 a large tree on the deceased’s land blew over on to his residence, and in turn onto the deceased who was sleeping. He was killed. The tree was the subject of an earlier tree preservation order, such that it could only be removed or cut with the consent of the defendant council. The deceased applied to the council to remove the tree. A council officer conducted a perfunctory examination of the tree and declared it safe. The deceased was advised that if he made any attempt to remove or prune the tree a fine would be imposed. In truth, the tree was unhealthy and, in consequence, unstable. The fatal incident then ensued.

It was held on appeal, apropos of a dependency claim by the deceased’s widow, that actionable negligence was proved, notwithstanding that there was no obligation in the council to declare the tree safe, and even though the examination of the tree actually conducted reasonably did not reveal it to be unsafe. The New South Wales Court of Appeal wrote (at [55]):

When the Council officer took it upon himself to express a positive view as to the safety of the tree, he was representing a capacity to do so based upon his expertise and experience. In those circumstances, the requisite standard of care required of him was higher than that of a layman. The inspector was not warranting the safety of the tree, but it was reasonable in the circumstances to expect of him that he would have made more than a cursory visual inspection. Like a general practitioner he professed a sufficient level of expertise to require him to make a reasonably informed diagnosis or to admit the need for referral to a specialist (arborist) before pronouncing and repeating his firm and positive opinion as to the safety of the tree.

If, in truth, a person purporting to act as a professional, either as a matter of routine or on a single occasion, bears the same standard of care as a true professional in that field, the cautious dictum Santow J expressed in the second paragraph of the above extract from Prestia v Aknar may be erroneous. That is, the argument would go, with the burdens ought come any benefits, including immunities afforded at common law or by statute. That issue remains moot.

Conclusion

The concept of who is a “professional” in modern commerce is fluid. Undoubtedly, the courts will address the issue with some caution. In the absence of statutory definition, much depends upon the fabric of the legislation or commercial instrument (eg insurance policy) under consideration.

As in other areas of the law, an incremental approach is likely to be adopted in construing who is to be ordained with such vocational mantle.

R J Douglas QC


Footnote

[1] Analogues of this provision, with some variation, are to be found in each Australian state, but not the territories.

[2] Bolam v Friern Barnet Hospital Management Committee [1957] 2 All ER 118; [1957] 1 WLR 582; see also Bolitho v City and Hackney Health Authority [1998] AC 232.

[3] Chubb Insurance Company of Australia Ltd v Robinson (2016) 239 FCR 300, where the case law is reviewed and exemplified in operation.

[4] Bradfield v Federal Commissioner of Taxation (1924) 34 CLR 1 at 7.

[5] in Queensland, adopted in the Health Practitioner Regulation National Law Act 2009 (Qld).

[6] Durant v Greiner (1990) 21 NSWLR 119 .

[7] Prestia v Aknar (1996) 40 NSWLR 165 ; see also Shahid v Australasian College of Dermatologists (2008) 168 FCR 46 at [192].

[8] Subsequently Santow JA of the New South Wales Court of Appeal.

[9] Prestia v Aknar op cit at 186.

[10] “Charlesworth and Percy on Negligence”, 12th Ed, Sweet & Maxwell, London, 2010 at [9-02].

[11] Spooner-Hart Prosthetics v Jones [2005] NSWCA 2.

[12] Chubb Insurance Company of Australia Ltd v Robinson (2016) 239 FCR 300 at [162]-[166].

[13] Ibid at [162].

[14] Pickering v McArthur [2005] QCA 294.

[15] Now Keane J of the High Court of Australia.

[16] Timbs v Shoalhaven City Council [2004] NSWCA 81; High Court special leave refused 4 March 2005; see also Capital Weed Control Pty Ltd v Australian Capital Territory [2014] ACTCA 8.

Issue of New National Practice Notes on 25 October 2016

The Federal Court of Australia is in the process of implementing its National Court Framework (NCF) reforms. Under the NCF, the Court’s practice documents have been consolidated and refined from 60 practice documents to 25 new national practice notes. The new national practice notes will be issued on Tuesday, 25 October 2016 . 

An update has been prepared that provides an outline of these reforms and a reference table of the new national practice notes: NCF Update.

Edited by Justice Debra Mortimer , Federal Court of Australia

Publisher: The Federation Press

Reviewed by Kate Blackford Slack

Administrative Justice and its Availability is a collection of papers that were presented at a joint conference of the Federal Court of Australia and the Law Council of Australia held in Melbourne in August 2014.

The profundity of each of the papers demonstrates the important contribution to the practice of public law that this conference provides. A brief summary of each of the papers is outlined below.

First in the collection is an address titled ‘Administrative Law: The Challenges of the 21st Century’ that was written and presented by Justice Dennis Davis, a judge of the Western Cape High Court and President of the Competition Appeal Court of South Africa.

In his paper, Davis J sought to address whether there are core values of judicial review that transcend national boundaries and constitutional frameworks. After acknowledging that ‘context is everything in law’, Davis J identified that the South African executive government and its administration are ‘neither well-resourced nor experienced’ which, he believed, placed the South African courts under increasing pressure to step in to make up for the administration’s shortcomings.

This expanded role for the courts means that there is not an equal distribution of what Davis J identified as being ‘critical to the process of review’, namely, participation and accountability.

A result of the administration bearing less than its fair share of the load is that government officials ‘make little effort to implement legal decisions or to adhere to the specific terms of court orders’.

While Davis J considered that his country’s experience was less than optimum, he was keen not to encourage a complete judicial withdrawal from regulating public life. Using the example of the Roberts court in the United States, His Honour concluded that extracting courts from their role in providing administrative remedies ignores the continuous tension between the ‘legitimate province of the legislature and the executive, and the framework of rights within which the democracy must operate.’

In his address titled, ‘Rationality and Reasonableness as Grounds of Review’, The Hon William Gummow AC discussed the principles of rationality and reasonableness and their implication for the scope of judicial review powers. His Honour conducted an analysis of applicable constitutional principles, considered the distinctions between public and private law and addressed the Australian systems of statutory review.

The address ends with an assessment of the current terrain. In doing so, His Honour provided a suitable introduction to the two addresses that follow, namely, those delivered by Justice Gleeson SC and Kristen Walker QC, respectively titled ‘Taking Stock after Li’and ‘Judicial Review for Unreasonableness or Irrationality: The Role of Proportionality’.

In his address, Gleeson J comprehensively analysed Minister for Immigration and Citizenship v Li (2013) 249 CLR 332 and concluded that, as a result of the majority’s reasoning in Li, there is effectively an onus on administrative decision-makers to provide reasons that demonstrate how they have weighed the evidence to avoid both express and inferred error.

In her address, Kristen Walker QC discussed the role of proportionality post-Li and the distinction between power and discretion and the implications for rationality, reasonableness and proportionality.

Justice Alan Robertson, in his address, ‘The Contemporary Approach to Jurisdictional Error’ draws on the views of Sir Stephen Sedley to remind the reader that unreasonableness, in the Associated Provincial Picture Houses Ltd v Wednesday Corporation [1948] 1 KB 223 sense, was not a radical invention of 20th century jurisprudence but was the result of a long line of authority ‘belonging to a depressing catalogue of abdication and as another example of failure to apply an elementary rule of public law (pursuant of a collateral purpose — text book ultra vires) …’

A comprehensive overview of the authorities that apply to the issue of whether a decision-maker’s failure to provide adequate reasons means that a decision is infected by jurisdictional error, is provided by Stephen McLeish SC in his contribution, ‘Reasons, Reasoning and Jurisdictional Error’.

Margaret Allars SC, in her address titled, ‘The Distinction between Jurisdictional and Non-jurisdictional Errors: Its Significance and Rationale’, examines the distinction between jurisdictional and non-jurisdictional errors in the seminal cases of Craig v South Australia (1995) 184 CLR 163 and Kirk v Industrial Court (NSW) (2010) 239 CLR 531.

Using the no evidence ground as an example, Ms. Allars then evaluated how the distinction operates in practice and concluded that there is little support for the distinction.

In her address titled, ‘Accessibility, Merits Review and Self-represented Litigants’, Melinda Richards SC addressed the accessibility of merits review for self-represented litigants. She pondered the following four areas that bear on that question: practical measures to improve accessibility; the role of the model litigant; the obligation to afford a fair hearing; and inquisitorial versus adversarial justice.

In the final address titled ‘Constitutional Writ Review and the ADJR Act’, Neil Williams SC provided a concise synopsis of the scope of review under the Administrative Decisions (Judicial Review) Act 1977 (ADJR Act) compared with constitutional writ review at common law. The reader is gently reminded that ‘each mechanism of review has its own complex limitations, and the prudent pleader would plead, or at least consider, all available avenues of relief’. That is especially so given, for example, the gradual elasticity of the test of unreasonableness at common law compared to the static statutory test provided in the ADJR Act.

The compilation ends with in-depth summaries of four panel sessions that contemplated: the contemporary approach to jurisdictional error; administrative review in other jurisdictions; federal administrative law and accessibility; and, constitutional writ review and the ADJR Act: ships in the night?

All contain insightful perspectives offered by practitioners and jurists, well qualified to comment.

This collection is highly recommended to those interested in the current state of public administrative law principles.

Kate Blackford Slack

CPJ17 v Minister for Immigration and Border Protection [2018] FCA 1241

In this case, Charlesworth J had before her for consideration whether Rule 4.03 of the Federal Court Rules 2011 required a barrister, acting on a direct access brief, to file a notice of acting.

Rule 4.03 provides:

4.03 Appointment of a lawyer—notice of acting

If a party is unrepresented when a proceeding starts and later appoints a lawyer to represent the party in the proceeding, the lawyer must file a notice of acting, in accordance with Form 4.

Note: File is defined in the Dictionary as meaning file and serve.

The question arose in migration proceedings in which the applicant was not represented by any lawyer when the proceeding commenced but subsequently came to be represented by a barrister acting on a direct access brief. The barrister had not filed a notice pursuant to Rule 4.03. The Bar Association of New South Wales intervened on an application by the barrister for a declaration that such a notice was not required.

The Association argued, inter alia, that Rule 13 of the Legal Profession Uniform Conduct (Barristers) Rules 2015 (NSW) gave rise to an inconsistency with Rule 4.03. The Barristers’ Rule provided:

13. A barrister must not …

…

(d) act as a person’s only representative in dealings with any court, otherwise than when actually appearing as an advocate;

(e) be the address for service of any document or accept service of any document;

(f) commence proceedings or file (other than file in court) or serve any process of any court;

…

Plainly enough, if Rule 4.03 did oblige a barrister in the circumstances to file a notice of acting, there was a potential inconsistency such as to invoke the operation of section 109 of the Constitution, with the effect that relevant section of the State delegated legislation (the Barristers Rules) would be invalidated.

Her Honour found, after detailed consideration of the context of the Rules and their purpose, that Rule 4.03 did not operate to require a barrister acting on a direct access brief basis to file such a notice.

That did not, her Honour observed, mean that where a document was prepared by a barrister acting in such a matter, the obligation in Rule 2.16 did not apply. That Rule provides:

2.16 Details at foot of each document

(1) A document filed in a proceeding must contain the following information under a horizontal line at the foot of the front page of the document:

(a) the name and role of the party on whose behalf the document is filed;

(b) the name of the person or lawyer responsible for preparation of the document;

(c) if the party is represented by a lawyer—the telephone number, fax number and email address of the lawyer;

(d) if the party is not represented by a lawyer—the telephone number, fax number and email address, if any, of the party;

(e) the address for service of the party.

Thus, where a barrister acting on a direct access brief prepares a document filed in a proceeding, there must be compliance with Rule 2.16 and the barrister’s name must appear accordingly.

Adrian Duffy QC

FINANCIAL ASSURANCE

The payment of a FA is a requirement either under the EP Act or as a condition of an environmental authority (EA). The DEHP is required to decide the amount and form of FA under s295 of the EP Act. Such decision must be made having regard to the prescribed guideline being the Guideline: Financial Assurance under the Environmental Protection Act 1994 (4 March 2016) (the Guideline).

DECISION HIGHLIGHTS

What you need to know …

For more information please contact me at kmcintyre@qldbar.asn.au

Author: Jane Harper

Publisher: Macmillan

Reviewer: Stephen Keim

A phone call in March changed the course of my year in 2016. I accepted an item of work which took up the next five months. Its demands squeezed out many of the more pleasurable aspects of my normal routines and replaced them with an ascetic rhythm of their own. Among the things that received the flick was my participation in the Blokes’ Book Club.

It was with singular pleasure then that, one balmy night in late October, I was off to John’s Tuscan villa in Saint Lucia having read the designated book and prepared to take part in discussions.

The Dry uses a well-worked theme of mystery thrillers, namely, the return to the home town of the protagonist who has left and made a life in the city. The return unravels memories and brings back events and conflicts which have been forced below the concerns of day to day thought. The past and present rush towards one another until mysteries that haunt both are finally laid bare.

The returning child of the town, on this occasion, is Aaron Falk, an AFP investigator who specialises in fraud and money laundering. He is returning for a funeral. His childhood best friend, Luke Hadler, amid the desperation of a long drought, has used his shot gun to kill his wife, Karen, his son, Billy, and himself. Only his infant child has been spared.

Aaron intends to make the barest of social catch ups before his return to Melbourne. He does not feel comfortable in this town. Another scandal involving suspicion attaching to his father for another death had driven both father and son to the city when Aaron was in his late high school years. A lie told by Aaron at that time, at the behest of the now dead Luke, had heightened the suspicion that fell on father and son. Luke had urged Aaron to lie, purportedly, for Aaron’s benefit at the time but, in the light of recent events, Aaron is not now so sure.

Aaron runs into Gretchen, Luke’s high school sweetheart, in the grounds of the church. Along with the Ellie, whose drowning death had led to the departure of Aaron and his father, Gretchen, Luke and Aaron had made a close foursome in the years before the tragedy of Ellie’s death had brought everything apart.

A phone call from Luke’s Dad, Gerry, forces Aaron to do what he knew he had to do: visit Gerry and Luke’s Mum, Barb. Apart from being his best friend’s mother, Barb had been the closest thing to a mother that Aaron had ever experienced. His own mother had died before he had known her.

Barb and Gerry have a request. They think murder suicide is too pat an explanation for this tragedy. They want Aaron to make some inquiries to second guess the explanation which has been accepted by the police from the nearby regional centre who have conducted a cursory investigation. Reluctantly, pleading that this kind of investigation is not his thing, anyway, Aaron agrees to look at the books from Luke and Karen’s farm and make a few other inquiries to see what he can find out.

Gerry and Barb’s perhaps natural misgivings turn out to be shared by the local police constable, Greg Raco. There are aspects of the killings that do not quite add up to murder suicide, such as the positioning of Karen’s body (as if she had been answering the door to a visitor) and the shot gun cartridges, not the brand normally used by Luke for work around the property.

Aaron is unable to avoid other actors from his previous life in the town. Grant Dow, the school bully, from Aaron’s days in school has graduated to the role of town bully. In this regard, he has inherited the mantle from his uncle, Mal Deacon. Mal is still alive but, as Aaron observes, is losing aspects of his mental acuity. Mal’s part in Aaron’s past life is particularly acute since he is not only Ellie’s father but, in his role of aggrieved parent, was instrumental in driving Aaron and his father from town.

The Dry is a first novel. Ms. Harper won the Victorian Premier’s Literary Award for an Unpublished Manuscript. She brings to the task of her first novel, however, the skills of an accomplished journalist having worked as such both in Australia and the UK.

The Dry is narrated in the third person. The narrator, however, most of the time, is not omniscient but, rather, is restricted to the knowledge and feelings of Aaron Falk. Ms. Harper uses the additional device of a truly omniscient narrator, identified by italics, for flashbacks and other circumstances where the atmosphere of the novel requires a wider perspective. The technique proves very effective.

In any mystery piece of art, the reader is continually invited to ask whether a particular event or piece of information is key to the novel’s eventual resolution or whether it is mere detail designed to distract the reader. The Dry is remarkable for the extent to which everything contributes to the novel’s denouement. Even the extreme drought conditions are more than mere atmosphere and a false explanation for the deaths of Luke, Karen and Billy. The dry conditions play a key role in the dramatic scenes at the conclusion of the novel. The Dry is also remarkable for the way in which the involvement of the distant past influences the present mystery. The reader’s search for the solution will vary according to whether she thinks there is one mystery to be solved or two.

The blurb on the front cover quotes David Baldacci describing The Dry as one of the most stunning debuts that Mr. Baldacci has ever read. The members of the Blokes’ Book Club did not go that far in their praise (but they are a hard mob to please). They did think, however, that The Dry was a very well thought out and well-executed work. Ms. Harper obviously benefits from her experience as a journalist and the pre-honed skills this allows her to bring to the task.

As well as the handling of the mystery, the novel develops and works its characters well. The reader comes to identify with Aaron as his investigations reveal much about him. Most moving, however, is the pathos of the last weeks and days of Ellie Deacon’s life before her drowning death. Although the reader comes to the subject decades after the events and learns about Ellie in small dribs of information, the experience is, nonetheless, compelling. Of all the tragedy revealed in The Dry, this is what is most likely to move the reader to tears.

Stephen Keim

On 4 May 2016, the High Court handed down its decision in Attwells v Jackson Lalic Lawyers Pty Limited [2016] HCA 16.

There were two main issues on the appeal. The first was whether the advocate’s immunity from suit extends to negligent advice which leads to an agreed settlement. The second was whether the Court should reconsider its previous decisions on the advocate’s immunity.

The Court unanimously declined to reconsider its previous decisions on the advocate’s immunity, but held, by majority (French CJ, Kiefel, Bell, Gageler and Keane JJ; Nettle and Gordon JJ dissenting), that the immunity does not extend to negligent advice which leads to an agreed settlement.

A detailed analysis of this important decision will be included in the next edition of Hearsay.

The Court’s decision, as well as links to the transcript of the hearing and the parties’ submissions, can be found here.

Josh Underwood