CGU Insurance Limited v AMP Financial Planning Pty Ltd (two matters) [2007] HCA 36 (29 August 2007)

AMP was not entitled to be indemnified by its insurer for payouts it made to investors because it had not established by appropriate evidence that the payments were reasonable, the High Court of Australia has held.

In 1999, AMP entered into a professional risks insurance contract with CGU. That same year, Ashok Pal and Anthony Howarth, who conducted the Macquarie Advisory Group (MAG) and were representatives of AMP, were found to have invested $3.4 million of clients’ funds in a company already in deep financial trouble and the investors lost their money. Mr Pal and Mr Howarth became bankrupt, and the Australian Securities and Investments Commission (ASIC) banned them from the securities industry and from company management. On becoming aware of the large losses, AMP notified CGU, its insurer, and sought indemnity under the policy. AMP drew up a protocol for handling claims in which AMP would notify CGU of each claim and prepare a liability report and CGU would decide within 14 days whether to settle or defend the claim. CGU agreed in principle to the protocol, but held off deciding whether it would indemnify AMP for the losses and repeatedly told AMP to act as a “prudent uninsured”. AMP, under pressure from ASIC to resolve claims promptly and after repeated requests to CGU for determination of AMP’s liability, went ahead and paid out more than $3.24 million for 47 claims in October and November 2001. CGU eventually denied AMP indemnity and AMP commenced proceedings alleging that CGU was in breach of its policy. It sought damages for the investors’ claims paid, interest and investigation costs and sought a declaration that AMP was entitled to indemnity for outstanding claims.

In the Federal Court, Justice Peter Heerey dismissed the application. He held that AMP had no belief that CGU had accepted liability and that AMP paid the settlement amounts because it considered this was in its own best interests to do so, not because of any representation by CGU that it would not require AMP to prove its liability to the investors. AMP had also not shown that the settlements were reasonable and had failed to take into account whether section 819(4) of the Corporations Law could have made MAG rather than AMP liable. The Full Court of the Federal Court, by majority, allowed an appeal by AMP and remitted to Justice Heerey questions on whether AMP was induced by CGU into settling the claims. CGU appealed to the High Court.

The Court, by a 4-1 majority, allowed the appeal. It held that nothing in CGU’s conduct conveyed a representation to AMP that it would not be required to prove its liability to investors to receive indemnity. Nothing in AMP’s conduct showed that it relied on such a representation. AMP had no belief that CGU accepted liability, instead making payments for its own commercial reasons to ensure legal proceedings for determining investors’ claims did not occur and to preserve relations with ASIC. It was open to Justice Heerey to conclude that AMP had not shown the settlements were reasonable.

In the Full Court of the Federal Court, CGU had cross-appealed against Justice Heerey’s costs order. The Full Court, in allowing the appeal by AMP, did not deal with the cross-appeal, and CGU brought a second appeal to the High Court. The High Court ordered that the matter should be remitted to the Full Court for consideration of CGU’s cross-appeal.

Shu-ling Chang and Tai-hsing Chang v Laidley Shire Council [2007] HCA 37 (29 August 2007)

An application to subdivide land for a housing development was rightly refused by the Laidley Council as it did not comply with legislation then in force, the High Court of Australia has held.

In 2004 the Changs applied to Laidley Council to subdivide their 16.67-hectare block at Blenheim near Laidley in south-eastern Queensland into 25 lots. The reconfiguration was not permitted under revised planning provisions. Under the Council’s 1996 town plan, the subdivision was permissible. A new planning scheme adopted in March 2003 meant the 25 lots would be too small as new rural subdivisions had to be at least 100 hectares, the reconfiguration could not take place, and the value of the Changs’ interest would be reduced. However, Queensland’s 1997 Integrated Planning Act allowed affected land owners to seek redress from their Council within two years of the adoption of such a planning scheme. Within that period, expiring in March 2005, the Changs could make a “development application (superseded planning scheme)” (DA(SPS)). The Council could then either pay compensation or consent, in whole or in part, to the development sought. The Changs lodged their DA(SPS) in December 2004. However in September 2004 the earlier Act was superseded by the Integrated Planning and Other Legislation Amendment Act (IPOLA), which cut short the two-year period. IPOLA provided for a completely revised regional planning scheme for south-eastern Queensland. The Council did not accept the Changs’ DA(SPS) as the development was contrary to the draft regulatory provisions for the regional plan provided for by IPOLA.

The Changs sought to recover compensation for the diminished value of their land. The Planning and Environment Court held that the Changs’ development application was not a “properly made application”. The Court of Appeal refused them leave to appeal. The Changs then appealed to the High Court. They argued their entitlement to make a DA(SPS) had accrued under the 1997 Act, that they had applied for the DA(SPS) within the two-year leeway provided by that Act, and that because the 2004 changes did not expressly or impliedly repeal the compensation provisions of the 1997 Act their entitlement to compensation survived even if the Council could no longer give approval for their proposed development.

The Court unanimously dismissed the appeal. It held that the effect of IPOLA was to deprive the Changs of what would otherwise have been an entitlement to compensation if they had made a DA(SPS) within time. Under IPOLA, the Changs’ application was not a properly made application. As the application was made after IPOLA came into effect, their application fell to be determined in accordance with the legislative provisions that were then in force. The Court held that IPOLA did not have retrospective operation and that no right to compensation had accrued to the Changs.

Australian Competition and Consumer Commission v Baxter Healthcare Pty Ltd, the State of Western Australia, the State of South Australia and the State of New South Wales [2007] HCA 38 (29 August 2007)

A corporation does not derive immunity from civil proceedings for contraventions of the Trade Practices Act (TPA) through conducting business with governments, the High Court of Australia has held.

Baxter Healthcare is the Australian arm of a global medical products company. It manufactures various sterile fluids for hospitals and fluids and apparatus for home-based kidney dialysis patients. Baxter has the only Australian manufacturing plant for certain types of sterile fluids, at Toongabbie in Sydney. Between 1998 and 2001, Baxter entered into long-term contracts to supply sterile fluids and dialysis products to public hospitals in four States and the ACT. Baxter offered to supply products either priced on an item-by-item basis or heavily discounted by bundling together on a sole-supplier basis. The resulting contracts provided for the total supply of certain sterile fluids and at least 90 per cent of dialysis fluids for up to five years. None of the contracts is still on foot.

In 2000, the South Australian Department of Human Services sought tenders for various products and Baxter and two other companies responded. Baxter’s Offer 1 was an item-by-item bid for two years, with optional extensions. Offer 2 was a combined bid on an exclusive basis for five years with volume discounts. The Department requested a revised offer for a five-year term for all products, except renal products, with a volume discount. Baxter’s Offer 1A did not include this discount. Both Offer 1A and Offer 1 cost $5,914,291. The bundled Offer 2 cost $4,501,053, which included renal products but was cheaper than Offer 1A. The Department protested and raised concerns about Baxter’s conduct possibly breaching section 46 of the TPA. Offer 1A was not accepted and a different offer from Baxter was later accepted.

Section 46 is concerned with misuse of market power and section 47 with exclusive dealing. Section 46 prohibits corporations taking advantage of market power to eliminate or damage a competitor or to deter or prevent competitive conduct. Exclusive dealing in section 47 includes corporations’ supplying goods on condition that the customer will not acquire certain goods from a competitor or refusing to supply goods because the customer has not agreed not to acquire goods from a competitor, if the conduct has the purpose or effect of substantially lessening competition.

In the Federal Court of Australia, the ACCC sought declarations that Baxter had committed 20 contraventions of sections 46 and 47, plus monetary penalties and injunctions. Justice James Allsop found that Baxter’s conduct would have contravened section 46 in one respect in relation to Offer 1A in SA and section 47 in a number of respects. The conduct was not in making or giving effect to a contract but occurred before any contract was entered into. However Justice Allsop held that the Act did not apply to this conduct due to the Crown immunity Baxter derived from doing business with the States and dismissed the ACCC’s application. The Full Court dismissed an appeal, but did not decide Baxter’s argument that Justice Allsop was wrong to conclude that, but for immunity, there would have been breaches of sections 46 and 47. The ACCC appealed to the High Court.

The High Court, by a 6-1 majority, allowed the appeal. It held that Baxter, in dealing with a government, did not enjoy a general immunity not available to the government if the government itself had carried on a business. Such a conclusion would go beyond what is necessary to protect the legal rights of governments. The Court rejected an argument that the TPA does not prevent the Crown in right of a State or Territory from making any contract it wishes and that the TPA preserves the Crown’s freedom by providing that corporations dealing with the Crown should be free to make any contract unfettered by any constraints. The Court held that this argument was not supported by established principles of statutory construction and could not be reconciled with the purpose and subject matter of the TPA. It held that in its dealings with the States and Territories, Baxter was bound by sections 46 and 47. Conduct found to have fallen within the prohibitions of sections 46 and 47 should now be subject to remedies, including pecuniary penalties, sought by the ACCC. The Court remitted the case to the Full Court of the Federal Court for further consideration of remaining issues, including whether Baxter’s conduct contravened sections 46 and 47.

Lemaluofuifatu Alipapa Tofilau v The Queen Matthew Joseph Marks v The Queen Shane John Hill v The Queen Malcolm Joseph Thomas Clarke v The Queen [2007] HCA 39 (30 August 2007)

Confessions to unsolved murders made to Victorian undercover police posing as criminal gangsters were voluntary and admissible as evidence, the High Court of Australia has held.

Mr Tofilau was suspected of strangling his ex-girlfriend, Belinda Loree Romeo, in her unit. Mr Marks was suspected to have beaten his great-aunt, Margaret Mary O’Toole, to death after borrowing large sums of money from her. Mr Hill was suspected of killing his stepbrother, Craig Anthony Reynolds, in the house they shared by fracturing his skull with a blunt object. Mr Clarke was suspected of killing six-year-old Bonnie Melissa Clarke (no relation) in 1982. He had been boarding with Bonnie’s mother until three months before. Bonnie had been stabbed in the chest and sexually assaulted. Police had been unable to make a strong enough case against any of the men.

In a technique imported from Canada, each of the four Melbourne men was tricked by undercover police posing as criminals into confessing. They were approached by supposed criminal gangs playing out various crime scenarios over several months. Each was told that in order to be a gang member and to profit from the gang’s activities he had to tell the gang boss the truth about his involvement in the murder. Each was told that the boss could make any problems disappear.

In Mr Tofilau’s case, typical of all four cases, undercover police staged 16 scenarios in which he participated in or observed what appeared to be serious criminal activity. This was designed to instil confidence that association with the gang would bring financial benefits and protection from police investigation. In March 2002 police served notice on Mr Tofilau that they were applying to the Magistrates Court for permission to take a DNA sample from him. On hearing of this, a gang member exhorted him to tell the truth and Mr Tofilau admitted strangling Ms Romeo. He was taken to a meeting in a hotel room with the gang boss. The boss told him that if he told the truth the boss would make it “go away”. Mr Tofilau described how he had killed Ms Romeo with her scarf which he threw into a car at her unit block. He was arrested the next day and later convicted of murder.

In each case the trial judge held that what each man had said to people he believed to be criminal gang members did not constitute a statement to a person in authority. Each trial judge also held that the confession was voluntary. The convictions were upheld by the Court of Appeal. All four men appealed to the High Court which, by a 6-1 majority, dismissed the appeals.

The Court held that the confessions of all four were procured by inducements, but that the people holding out the inducements — police officers posing as criminals — were not persons in authority. The men believed they had been offered inducements, not by police, but by gangsters apparently able to influence certain corrupt police officers. The Court held that, although the confessions were obtained by deception, the wills of the appellants were not overborne, there was no duress or intimidation, and the confessions were voluntary. Mr Clarke also argued that the trial judge should have exercised his discretion to exclude the confession for reasons of unreliability, unfairness and public policy. Those arguments were dismissed by both the Court of Appeal and the High Court.

SZATV v Minister for Immigration and Citizenship and Refugee Review Tribunal [2007] HCA 40 (30 August 2007) SZFDV v Minister for Immigration and Citizenship and Refugee Review Tribunal [2007] HCA 41 (30 August 2007)

Relocation to another part of a country of nationality by applicants for protection visas may sometimes be reasonable, the High Court of Australia held in two judgments today.

SZATV, from Chernovtsky in what is now Ukraine, trained as a civil engineer but worked as a journalist. He wrote stories on regional government corruption but after a campaign of alleged intimidation he came to Australia in 2001. He was refused a protection visa. That decision was affirmed by the Refugee Review Tribunal in 2003. The RRT accepted that SZATV had been subjected to systematic harassment, including physical mistreatment, but held that the persecution was localised and he could reasonably move to another part of Ukraine so his fears of persecution upon returning to Ukraine were not well-founded. Appeals to the Federal Magistrates Court and the Federal Court of Australia were dismissed. SZATV appealed to the High Court. The appeal was heard with the appeal by SZFDV also concerning the internal relocation principle.

SZFDV, from the Indian State of Tamil Nadu, claimed his family were Communist sympathisers and that his brother was killed by members of the major Tamil parties, the DMK and AIADMK. At the mill where he worked he was elected a trade union leader and was involved in pay disputes. SZFDV said the mill owners held him responsible for the mill’s closure by government order in 2002, that the owners used their DMK influence to procure the laying of false charges of murder of a DMK leader, and that he was assaulted by DMK members and his family threatened. He moved to the capital Chennai (formerly Madras) where he continued to fear DMK persecution. He left for Australia in May 2004. An application for a protection visa was refused. This decision was upheld by the RRT, the Federal Magistrates Court and the Federal Court. The RRT noted that the adjoining State of Kerala had a large Tamil-speaking community and that the Communist Party had a significant presence. SZFDV appealed to the High Court.

The Court unanimously allowed SZATV’s appeal but refused SZFDV’s appeal by a 4-1 majority. It held that whether it is reasonable or practicable to relocate to another part of the country depends upon the particular circumstances of the applicant and the impact upon that person of relocation. Differential treatment in matters like race or religion may be encountered in parts of a country whereas in other parts there is insufficient basis for a well-founded fear of persecution. In other cases, the conduct or attribute of an individual attracting persecution may be unrelated to regional geography.

In SZATV’s case, the Court held that the effect of the RRT’s decision was that SZATV was expected to move elsewhere, not work as a journalist, and live discreetly so as not to attract the attention of authorities. It held that the RRT had not properly considered whether his fear of persecution was well-founded and ordered the RRT to reconsider SZATV’s application for review. In SZFDV’s case, the Court held that it may be reasonable to relocate in the country of nationality to a region where objectively there is no appreciable risk of recurrence of the feared persecution. It held that the RRT had properly considered that SZFDV could safely relocate to Kerala and that it would not be unreasonable to expect him to do so.

Roads and Traffic Authority of New South Wales v Philip James Dederer and Great Lakes Shire Council [2007] HCA 42 (30 August 2007)

The Roads and Traffic Authority did not breach its duty of care to a teenager who became a partial paraplegic by diving off a bridge, the High Court of Australia has held.

On 31 December 1998, Mr Dederer, then aged 14, dived from the bridge across the Wollamba River, struck a submerged sandbank and suffered a severe spinal injury. Pictorial signs prohibited diving and written signs prohibited climbing on the bridge. Mr Dederer spent family holidays in the area so he knew of the sandbar from boating and that the water varied in depth, but he had not jumped or dived from the bridge until jumping twice the day before the accident. Both times he was totally submerged in the water and his feet did not touch bottom. Mr Dederer had frequently seen people jumping and occasionally diving off the bridge. He had seen a “no diving” sign but did not think the activity was dangerous. Council officers and police had been unable to stop other people diving. Mr Dederer’s dive was the first reported accident since the bridge was built in 1959.

Mr Dederer sued the RTA and the Council in the NSW Supreme Court for negligence. Justice John Dunford found for Mr Dederer against both defendants but reduced damages by 25 per cent for Mr Dederer’s contributory negligence. Mr Dederer was awarded $840,000, with RTA ordered to pay 80 per cent of the damages and the Council 20 per cent. Justice Dunford found that the RTA was negligent in failing to erect signs warning of the danger of shifting sands and variable depth, in failing to replace horizontal railings with vertical pool-style fencing, and in failing to change the flat top of the handrail to a triangular shape that would be difficult to stand on.

The Court of Appeal held that the NSW Civil Liability Act meant that the Council was not liable but that the Act did not apply to the action against the RTA. The Court of Appeal, by majority, dismissed the appeal by the RTA apart from increasing the proportion of Mr Dederer’s contributory negligence from 25 per cent to 50 cent. The RTA appealed to the High Court and Mr Dederer cross-appealed against the increase in his contributory negligence. The Council was joined as a second respondent but played no active part in the appeal.

The High Court, by a 3-2 majority, allowed the appeal and dismissed the cross-appeal. It held that a duty of care imposes an obligation to exercise reasonable care, not a duty to prevent potentially harmful conduct. The extent of the obligation owed by the RTA is that of a roads authority exercising reasonable care to see that the road is safe for users exercising reasonable care for their own safety. The Court held that the risk arose not from the state of the bridge but from the risk of jumping into shallow water and shifting sands, which were not under the RTA’s control. The magnitude of the risk and the probability of injury had to be balanced against the expense, difficulty and inconvenience of any alleviating action. New fencing was estimated to cost $150,000 and a triangular handrail $108,072 and would not necessarily stop people jumping from bridges. The Court held that the existing “no diving” signs were a reasonable response to the risk and the RTA did not breach its duty of care.

Vickie Lee Roach v Electoral Commissioner and Commonwealth of Australia

Chief Justice Murray Gleeson made the following statement:

Prior to an amendment of the Commonwealth Electoral Act in 2006, prisoners serving a sentence of three years or longer were not entitled to vote. In 2006, the Act was amended to provide that prisoners serving any sentence of imprisonment were not entitled to vote.

The plaintiff challenged the validity of the 2006 amendment. The plaintiff also argued that, if the 2006 amendment were invalid, either the pre-2006 legislation did not continue to apply, or, if it did, it also was invalid.

The Court, by majority, upholds the challenge to the 2006 amendment. It also holds that the pre-2006 legislation continues in force and is valid. Reasons for the decision will be published at a future date.

The order of the Court is as follows:

The questions stated in the amended special case filed on 9 July 2007 be answered as follows:

(1)

(2)

(3)

I publish that order.

CIVIL APPEALS

• Spencer & Anor v Hutson & Ors [2007] QCA 178
• Rapid Roofing P/L v Natalise P/L & Ors [2007] QCA 179
• Hall v R H & C E McColl P/L [2007] QCA 182
• Cth DPP v Hart & Ors [2007] QCA 184
• Kenny v Nominal Defendant & Ors; Anderson v Kenny & Ors [2007] QCA 185
• Johnston v Jewry & Anor [2007] QCA 188
• Australand Land and Housing No 5 (Hope Island) P/L & Ors v Gold Coast City Council; Fish Developments (Hope Island) P/L & Ors v Gold Coast City Council [2007] QCA 189
• Angus v Conelius & Anor [2007] QCA 190
• Cousins Securities P/L & Ors v CEC Group Ltd & Anor; CEC Group Ltd v Cousins Securities P/L & Ors [2007] QCA 192
• Haug v Jupiters Limited t/a Conrad Treasury Brisbane [2007] QCA 199
• Charles & Howard P/L v Redland Shire Council [2007] QCA 200
• Montgomery & Ors v Pickard & Ors [2007] QCA 203
• Haraba P/L v Castles [2007] QCA 206
• Elesanar Constructions P/L v State of Qld [2007] QCA 208
• Reardon-Smith v Allianz Australia Insurance Ltd [2007] QCA 211
• EPAS Ltd & Ors v AMP General Insurance Ltd [2007] QCA 212

CRIMINAL APPEALS

• R v Kolb [2007] QCA 180
• R v Blenkinsop; R v Blenkinsop [2007] QCA 181
• R v Sheedy; ex parte A-G (Qld) [2007] QCA 183
• R v Gibb [2007] QCA 191
• R v Ronkovich [2007] QCA 193
• R v Saub [2007] QCA 194
• R v Newman [2007] QCA 198
• R v Richwood [2007] QCA 201
• R v Glattback [2007] QCA 204
• R v Cannon [2007] QCA 205
• R v WS [2007] QCA 207
• R v Lake; R v Carstein; R v Geerlings [2007] QCA 209

CIVIL APPEALS

Spencer & Anor v Hutson & Ors [2007] QCA 178; Appeal No 11354 of 2006, 1 June 2007

Application for Extension of Time/General Civil Appeal — where second respondent entered consultancy agreement with third and fourth respondent — where deed purported to assign balance of moneys payable under agreement to applicants — where property of second respondent was subject to floating charge — where floating charge crystallised — where second respondent had undertaken not to deal in property subject to a fixed charge — where second respondent was wound up — where first and second respondents sought to recover moneys paid to applicants by third respondent — where summary judgment given for recovery of moneys payable at date of assignment deed — whether there was a novation of the consultancy agreement so that applicants displaced second respondent as third respondent’s consultant — whether assignment confined to moneys payable at date of deed — whether applicants obliged to repay moneys to second respondent — whether assignment deed executed in best interests of second respondent for good consideration — whether extension of time should be granted — HELD: application for extension of time refused — applicants to pay second respondent’s costs of the application.

Rapid Roofing P/L v Natalise P/L & Ors [2007] QCA 179; Appeal No 8388 of 2006, 1 June 2007

Application for Stay of Execution — where Court of Appeal gave judgment in favour of the respondents — where applicant seeks special leave to appeal to the High Court — whether the balance of convenience favours the granting of a stay of execution — HELD: orders numbered 1(c) and (d) of orders of this Court made 23 March 2007 be stayed pending determination of application to High Court for special leave to appeal from that judgment — the stay be discharged if that application is dismissed — if special leave is allowed, those orders be stayed pending the outcome of the appeal to the High Court, such stay being conditioned upon the applicants for special leave and appellants if leave be granted prosecuting hereafter without any delay caused by them the application for special leave and appeal respectively — liberty to apply granted.

Hall v R H & C E McColl P/L [2007] QCA 182; Appeal No 11027 of 2006, 1 June 2007

General Civil Appeal — where appellant injured himself in Queensland — where appellant had been employed by NSW respondent company — where appellant sought compensation — where respondent applied to strike out claim and statement of claim for want of prosecution — where learned judge struck out claim — whether discretion to strike out was properly exercised — HELD: appeal dismissed — appellant to pay the respondent’s costs assessed on the standard basis — appellant’s solicitors to promptly provide the appellant with a copy of these reasons.

Cth DPP v Hart & Ors [2007] QCA 184; Appeal No 1952 of 2007, 1 June 2007

Application for Leave s 118 DCA (Civil) — where Cth DPP filed an application seeking a pecuniary penalty order against Hart on 17 July 2006 — where restraining order under the Proceeds of Crime Act 2002 (Cth) was made 8 May 2003 pursuant to s 17 of the Act — where the property covered by the restraining order was said to be in Hart’s “effective control” — whether “benefits derived” should be assessed from the six years preceding 8 May 2003 or 17 July 2006 — whether failure to “specify” each item of property in the restraining order meant that the property was not “covered by” the restraining order — interpretation of s 121(4)(a)(i) — meaning of “covered” — distinction between “covered” and “specified” — HELD: leave to appeal granted — appeal allowed — orders made by learned primary judge set aside — first respondent to pay the appellant’s costs of the application at first instance and of the application for leave to appeal and of the appeal.

Kenny v Nominal Defendant & Ors; Anderson v Kenny & Ors [2007] QCA 185; Appeal Nos 8945, 10170, 8946 and 10169 of 2006, 5 June 2007

General Civil Appeal — where matter arises out of a collision between two unregistered motorcycles in March 2004 — where one bike was ridden by Carl Anderson carrying Paul Kenny as a pillion passenger — where other bike owned and ridden by Clinton Anderson, carrying Heather Brooker as a pillion passenger — where both riders were unlicensed — whether Carl Anderson and Paul Kenny contributed to their injuries by not wearing properly fastened helmets — whether it was open on the evidence for the trial judge to find both riders were wearing properly fastened helmets — whether learned judge properly apportioned liability between Clinton and Carl Anderson — whether the finding that Carl believed he had his father’s authority to ride the motorcycle was inconsistent with the finding that Carl did not in fact have his father’s authority to ride the motorcycle — whether the findings gave rise to defences under s 4G(1)(a) and s 4G(1)(b) Motor Vehicles Insurance Act 1936 (Qld) for William Anderson as owner and Carl Anderson as rider of the motorcycle, against the appellant’s claim for recovery of debt — where both motorcycles involved in the accident were uninsured — whether the provisions of the now repealed Motor Vehicles Insurance Act 1936 (Qld) applied at the time of the accident — whether the repeal of that Act and the enactment of the Motor Accident Insurance Act 1994 (Qld), specifically the transitional provisions in s 104 and s 106, had the effect of extinguishing the appellant’s claims and were consistent with s 20(2), s 20(3) and s 20(4) Acts Interpretation Act 1954 (Qld) — where Paul Kenny’s future economic loss was discounted by 20 per cent — where no discount was applied to past economic loss — where the appellant claimed that both warranted a discount of 25 per cent — whether past economic loss should be discounted — whether future economic loss should be discounted further — where administration costs were awarded — where appellant contends that a less expensive administrator was available and therefore a reduction in the award of administration costs was warranted — whether trial judge erred in appointing the administrator and awarding costs accordingly — where Paul Kenny was awarded costs of both the claim and counter-claim on an indemnity basis — where that order was made because of his pre-trial offers to the appellant to settle — where those offers were not made strictly in accordance with O 26 Supreme Court Rules — where Paul Kenny was affected by intellectual disabilities — whether his capacity was so impaired that the pre-trial offers were not capable of acceptance without sanction by the court — whether the pre-trial offers were consistent with the spirit of O 26 Supreme Court Rules — whether the order for indemnity costs was within the proper exercise of judicial discretion — where the judge was entitled to find that the headlight on the motorcycle was illuminated at the time of the accident (twilight) — where appellant contended that apportionment of liability at 70/30 was in error — whether apportionment of liability should be disturbed — HELD (8945/06): appeal allowed — the amount of $879,181.68 ordered to be paid to Paul Joseph Kenny on 20 September 2006 is reduced to $822,955.68 and the amount ordered to be paid to him for administration and management fees on 27 October 2006 is reduced from $238,165 to $222,923 — no order as to costs other than the appellant, the Nominal defendant, is to pay the second respondent’s, William John Anderson’s, costs of the appeal to be assessed — HELD (10170/06): the appeal against the costs orders made on 27 October 2006 is dismissed with costs to be assessed — HELD (8946/06): the appeal against the amount ordered to be paid to Carl Robert Anderson on 20 September 2006 is dismissed with costs to be assessed — HELD (10169/06): the appeal against the amount ordered to be paid to Carl Robert Anderson for administration and management fees on 27 October 2006 is dismissed with costs to be assessed.

Johnston v Jewry & Anor [2007] QCA 188; Appeal No 11352 of 2006, 8 June 2007

General Civil Appeal — where appellant offered to purchase the first respondent’s residential property — where first respondent accepted offer by having the second respondent real estate agents execute the contract document and having it and other documents sent to the appellant’s solicitors — where s 366(1) Property Agents and Motor Dealers Act 2000 (Qld) provided that “a relevant contract must have attached, as its first or top sheet,” a form 30c warning statement — where failure to attach warning statement, or where the warning statement is of no effect under s 366(4), gives the buyer an entitlement to terminate the contract at any time before settlement — where the appellant purported to terminate the contract prior to settlement on the basis of the respondent’s alleged failure to attach the warning statement as the first sheet — where the respondent rejected the purported termination — where an employee of second respondent gave evidence that the form 30c was signed by the appellant before execution of the formal contract — where learned judge rejected the appellant’s evidence concerning the order of the documents when he signed — where this finding was not challenged on appeal — where, after execution of the formal contract by seller, the employee of the second respondent sent to the solicitors for the appellant and first respondent, a bundle of documents stapled together in the following order: form 27b, form 30c and contract — where appellant contends that PADM requires the warning statement to be attached as the first or top sheet when the seller returns the executed contract to the buyer — where legislation was ambiguous — where Act subsequently amended to clarify ambiguous sections — whether relevant provisions were complied with — whether term “contract” as it appears in s 366(1) means “proposed contract” or “concluded contract” — whether the appellant was entitled to terminate the contract and receive a refund of deposit monies — whether amendments can be used to ascertain the original intention of parliament — proper time for warning statement to be attached as first document — HELD: appeal dismissed — appellant to pay the first and second respondents’ costs of and incidental to the appeal to be assessed.

Australand Land and Housing No 5 (Hope Island) P/L & Ors v Gold Coast City Council; Fish Developments (Hope Island) P/L & Ors v Gold Coast City Council [2007] QCA 189; Appeal No 10615 and 10616 of 2006, 8 June 2007

General Civil Appeal — where council levied the respondents with the Hope Island Canal Infrastructure Special Charge, purportedly imposed under s 971 Local Government Act 1993 (Qld) — where charge imposed related to the construction of the new Hope Island canal systems and associated infrastructure works — where rateable land other than that charged also benefited from the construction — whether the appellant was entitled to impose the rate or charge upon the respondents only — HELD: appeals dismissed — appellants to pay the respondents’ costs of the appeal assessed on the standard basis.

Angus v Conelius & Anor [2007] QCA 190; Appeal No 11131 of 2006, 8 June 2007

Application for Extension of Time/General Civil Appeal — where appellant was injured in a motor vehicle accident — where respondent issued the appellant with a request for information pursuant to s 45 Motor Accident Insurance Act 1994 (Qld) — where appellant rejected the request — where respondent applied for an order requiring compliance with the request — where learned judge made order — whether giving the order was proper — nature of discretionary power under s 50 of the Act — HELD: application for an extension of time granted — appeal dismissed — appellant to pay the respondent’s costs assessed on the standard basis.

Cousins Securities P/L & Ors v CEC Group Ltd & Anor; CEC Group Ltd v Cousins Securities P/L & Ors [2007] QCA 192; Appeal Nos 9793 and 9794 of 2006, 8 June 2007

General Civil Appeal — where appellant entered joint venture with the first respondent — where appellant repaid debt owing on land purchased by the joint venture and the mortgage was assigned to them — where first, second and third respondent lodged a caveat against registration of any instrument over the land — whether the respondents failed to start proceedings to establish the interest claimed under the caveat within 3 months as required under s 126(4) Land Title Act 1994 (Qld) — whether caveat lapsed — whether starting a proceeding to establish an interest under a caveat requires the relief to be stated in the claim and not merely the statement of claim — whether learned judge erred in finding there was a serious question to be tried — whether the interest held by the respondents could be considered conditional — whether the respondents possessed a caveatable interest — where the caveatable interest claimed by the respondents was 2,521square metres — where caveat forbade registrations of any instrument over the whole of lot 9 (746.1 hectares) — whether the caveat was too wide in scope — whether the judge’s failure to require an undertaking as to damages constituted an error — where primary judge refused to strike out various paragraphs of the amended claim — where primary judge gave leave to the respondent to re-plead generally — whether the learned judge erred in so doing — HELD (9793/06): appeal dismissed with costs — HELD (9794/06): appeal allowed to the limited extent of varying the Order of 31 October 2006 by adding at the commencement of para 1 of that Order the words: “Upon the undertaking of the first respondent Cousins Securities Pty Ltd ACN 080 152 914 and the second respondent Russell Kingsley Cousins and the third respondent Colleen Judith Cousins as to the damages in the usual form…” — appeal otherwise dismissed with costs.

Haug v Jupiters Limited t/a Conrad Treasury Brisbane [2007] QCA 199; Appeal No 3006 of 2007, 15 June 2007

General Civil Appeal — where respondent was injured at appellant’s premises whilst being removed by security guards — where learned judge made interlocutory orders under s 27(1)(a)(i) and s 27(1)(b)(i) Personal Injuries Proceedings Act 2002 (Qld) for disclosure of certain documents and information — where orders did not expressly exclude from production documents over which legal professional privilege could be claimed — whether absence of express exclusion meant that privilege could not operate — whether there was inconsistency in the orders — whether the orders for production of documents made were inconsistent with the purposes of the Act — whether orders went beyond the terms of s 27(1)(a) — HELD: appeal allowed — Order No 1 of 22 March 2007 varied to exclude the references therein to paras 1, 5, 6 and 7 of the solicitor’s letter of 17 January 2007 — Order No 2 of that same day varied by the deletion therein of the reference to para 11 of the solicitor’s letter — respondent to pay the appellant’s costs to be assessed on the standard basis.

Charles & Howard P/L v Redland Shire Council [2007] QCA 200; Appeal No 8518 of 2006, 15 June 2007

Application for Leave Integrated Planning Act — where director of Harridan P/L is hoping to build family home on a certain block of land at Victoria Point — where Harridan P/L entered conditional contract for the purchase of the land — where the applicant company has an interest in the land — where under the council’s 1988 Planning Scheme the land is zoned Residential A but under 1998 Strategic Plan the preferred dominant land use is Special Protection Area, not Urban Residential — where development approval was required as building on desired site would require fill — where applicant, in November 2005, made a development application indicating their preferred site — where council’s approval was conditional upon the applicant placing the fill on a different location on the site — whether the conditional approval was unreasonable — whether the condition had the effect of significantly altering the development application — whether conditional approval, in effect, amounted to a refusal of the development application — where judge made determinations under the 1988 Planning Scheme (the scheme in force at the time of the development application) — where judge also considered provisions of 2006 Planning Scheme in force at time of appeal — whether the learned judge erred in construing the planning instruments and placing partial reliance on the 2006 Planning Scheme — where learned judge found that the fill the subject of the development application was not “of a minor nature” — whether it was open to the judge to make this finding — where judge undertook a comparative analysis of the merits of the competing sites — whether judge erroneously applied a “best sites” test — whether learned judge erred in considering evidence of climate change — HELD: application for leave to appeal refused with costs.

Montgomery & Ors v Pickard & Ors [2007] QCA 203; Appeal No 151 of 2007, 22 June 2007

General Civil Appeal — where first plaintiff initially claimed against the defendants for damages/equitable compensation arising from negligence, negligent/fraudulent misstatement, breach of fiduciary duty, and under the Trade Practices Act — where first plaintiff successfully applied to join the second and third plaintiffs to the proceedings after expiration of limitation period — where learned judge ordered the action by the second and third plaintiffs “be taken to have started when the amended statement of claim is filed” — where plaintiffs contend that the action should be taken to be started from when the original proceedings started — where learned judge found defendants suffered prejudice as a result of the delay — whether discretion of learned judge miscarried — HELD: appeal dismissed with costs.

Haraba P/L v Castles [2007] QCA 206; Appeal No 10612 of 2006, 22 June 2007

Application for Leave s 118 DCA (Civil) — where applicant was owner of resort consisting of manufactured home sites, holiday cabin sites, caravan sites and communal facilities — where respondent entered site agreement with applicant for use of site 42 as a manufactured home site — where the agreement was under the ambit of the Manufactured Homes (Residential Parks) Act 2003 (Qld) — where under the Act the “owner’s” rights under the agreement continue until terminated — where right’s conferred are contractual in nature — where applicant applied to the Commercial and Consumer Tribunal for an order terminating the agreement — where applicant proposed a change of use of site 42 from a manufactured home site to a holiday cabin site — whether particular site was a “part of the park” for the purposes of s 38(1)(f) of the Act — whether the applicant intended to use a defined part of the park for “another purpose” — whether s 38(3) mandates a new town planning approval — whether leave should be granted — HELD: g rant leave to appeal — allow the appeal and set aside the orders of the Tribunal that the application be dismissed and of the District Court that the appeal to that court be dismissed — remit the matter to the Commercial and Consumer Tribunal for the application to be heard and determined according to law — set aside the order of the District Court that the applicant pay the respondent’s costs of the application and appeal to that court — order that the respondent pay the applicant’s costs of the application and appeal to the District Court and of the application and appeal to this court to be assessed — grant the respondent an indemnity certificate pursuant to the Appeal Costs Fund Act 1973 (Qld) with respect to the costs ordered to be paid to the applicant.

Elesanar Constructions P/L v State of Qld [2007] QCA 208; Appeal No 503 of 2007, 22 June 2007

General Civil Appeal — where Elesanar was the owner of land on the Gold Coast —where the State sought to acquire the land for the purposes of extending the current Brisbane to Robina train line — where parties entered contract for sale containing a number of special conditions including a lease back of the property — where a lease was subsequently executed — where cl 4 of the lease provided the tenant with an option to renew — where cl 6 provided the circumstances in which notice could be given to exclude the operation of cl 4 — where the state gave notice under cl 6 — where Elesanar remained in possession — where notice to quit later issued — where Elesanar purported to exercise the option under cl 4 and sought declarations to uphold its position — where state counter-claimed for delivery up of possession — where state applied under r 483(1) UCPR for determination of the question of whether cl 4 gave a right to renew the lease for one further term or for more than one further term — where ordinary meaning of the words of the contract would suggest the creation of a perpetually renewable lease — where learned judge relied on legal authority as creating a presumption that an option clause will not be construed as creating a lease in perpetuity unless it is clear that the parties intention was to do so — where judge made reference to surrounding circumstances in construing the agreement — where declaration made that cl 4 was only for one further term — whether the option clause was capable of creating a lease in perpetuity — whether surrounding circumstances, objectively construed, displaced the effect of the ordinary meaning of the words — whether the question as to the construction of cl 4 was appropriate for summary determination — whether upon proper construction of the lease, cl 4 should have been held to give rise to a lease renewable for more than one further term — whether the learned judge erred in failing to consider a number of surrounding circumstances in assessing the objective intention of the parties — whether it was appropriate to construe the lease by reference to a legal presumption against creation of perpetually renewable leases — where a letter before the court gave evidence of the subjective intention of parties — where the letter was in materials before the primary judge but not referred to nor relied on by the parties — where Elesanar sought to rely on the letter on appeal as giving evidence of the actual intention of the parties — whether this evidence was admissible, being within the exception to the general rule articulated in Codelfa — whether this evidence was properly before the court — whether Elesanar’s case on appeal was inconsistent with that argued below — overview of principles relevant to contractual construction — HELD: appeal allowed — set aside para 3 of the order of Muir J made on 21 December 2006 and in lieu thereof, declare that the option contained in cl 4 of the lease dated 24 May 2002 was an option for renewal for more than one further term of one year — unless within seven days of the date of this order either party files submissions seeking some other order as to costs: (a) set aside para 4 of the order of Muir J made on 21 December 2006 and in lieu thereof order that the applicant pay the respondent’s costs of the application up to and including 21 December 2006 to be assessed; and (b) order that the respondent pay the appellant’s costs of and incidental to the appeal to be assessed.

Reardon-Smith v Allianz Australia Insurance Ltd [2007] QCA 211; Appeal No 842 of 2007, 27 June 2007

General Civil Appeal — where appellant is a professional surfer — where appellant suffered personal injury in a motor vehicle accident and sued for damages — where issue at trial was amount to be awarded for economic loss suffered as a result of the injuries — where other heads of compensation were agreed upon — where assessment of degree of probability of success on international surfing circuit was required — where learned trial judge made an assessment of $35,000 for past and future economic loss — whether findings of learned trial judge were open on the evidence — whether assessment of $35,000 was manifestly inadequate — whether assessment should have included lost prize money — whether explanation of assessment complied with s 55(3) Civil Liability Act 2003 (Qld) — HELD: appeal dismissed — appellant to pay the respondent’s costs of the appeal.

EPAS Ltd & Ors v AMP General Insurance Ltd [2007] QCA 212; Appeal No 2650 of 2007, 27 June 2007

General Civil Appeal & Miscellaneous Application (Civil) — where ASIC, exercising its power under s 50 ASIC Act 1989 (Cth), caused two separate proceedings to be brought in relation to restoring a superannuation trust fund — where EPAS (the former trustee company of the trust fund in question) is plaintiff in one proceeding and defendant in the other — where TCSSL (the successor trustee company) is plaintiff in the other proceeding — where ASIC engaged lawyers and instructs them on behalf of the plaintiffs in both matters — where the lawyers therefore act for EPAS in one matter and “against” EPAS in the other matter — where AMP (the insurer of the trustee companies and the eighth defendant) applied to the Supreme Court requesting the exercise of its inherent jurisdiction to control officers of the Court to prevent the lawyers acting for both plaintiffs — where the lawyers act on the sole instruction of ASIC — where the Court was not invited to review ASIC’s decisions — where s 50 requires consideration of public interest — whether the Court should exercise their power to restrain lawyers acting for EPAS as plaintiffs — the test to be applied to determine whether proceedings are affront to the due administration of justice — factors to consider in determining “public interest” — whether the lawyers should be joined as parties to the appeal — HELD: appeal dismissed — appellant to pay EPAS’ costs assessed on the standard basis — appellant’s application for joinder dismissed — appellant to pay costs of respondents to joinder application on the standard basis.

CRIMINAL APPEALS

R v Kolb [2007] QCA 180; CA No 29 of 2007, 1 June 2007

Sentence Application — where applicant sentenced to 12 months imprisonment for one count of dangerous operation of a motor vehicle and two serious assaults — where applicant further sentenced to four years imprisonment cumulative on the first term, with a parole eligibility date of 9 August 2008, for two counts of malicious act with intent — where applicant contends that sentence was manifestly excessive not because of the head sentence but due to the parole eligibility date — where error in declaring pre-sentence custody as custody did not relate solely to the charges on that indictment — whether mitigating factors properly considered in exercising sentencing discretion — whether sentencing discretion should be re-exercised — HELD: allow the application for leave to appeal — set aside sentence imposed at first instance — substitute a sentence of four and a half years imprisonment with a parole eligibility date set at 9 February 2008.

R v Blenkinsop; R v Blenkinsop [2007] QCA 181; CA Nos 24 and 25 of 2007, 1 June 2007

Sentence Application — where applicants carried out a home invasion in part to gather information about a suspected paedophile ring — where applicants pleaded guilty to one count of burglary with a circumstance of aggravation, two counts of deprivation of liberty, one count of common assault and one count of stealing — where first applicant sentenced to five and a half years imprisonment with two years concurrent for the remaining counts — where first applicant pleaded guilty to five counts of receiving and one of fraud on a separate indictment and was further sentenced to two years imprisonment to be served concurrently — where second applicant sentenced to four years imprisonment suspended after 12 months with an operational period of five years on the burglary count, with lesser concurrent sentences for other counts — where first applicant and second applicant were 23 and 18 years old respectively at the time of the offences — where first applicant had a criminal history with conviction for a comparable offence — where second applicant had no prior convictions, had a wife and family and showed good prospects of rehabilitation — where first applicant submitted that the sentence was excessive having regard to the totality principle — whether sentences were manifestly excessive — HELD (first applicant): application for leave to appeal against sentence dismissed — HELD (second applicant): application for leave to appeal against sentence allowed — set aside sentence of four years imprisonment on the burglary count and substitute a sentence of three years imprisonment with a parole release date fixed at 24 October 2007 — on remaining counts, leave in place the sentence of two years imprisonment to be served concurrently with the sentence on the burglary count, but set aside the order for suspension and instead fix a parole release date of 24 October 2007.

R v Sheedy; ex parte A-G (Qld) [2007] QCA 183; CA No 46 of 2007, 1 June 2007

Sentence Appeal by A-G (Qld) — where respondent pleaded guilty to dangerous operation of a motor vehicle causing death whilst adversely affected by an intoxicating substance, driving while unaccompanied with a learner’s permit and failing to display learner’s plates — where respondent sentenced to five and a half years imprisonment with parole eligibility after 18 months — where mitigating factors considered included remorse, cooperation with authorities, early plea of guilty to an ex officio indictment and reasonable prospects for rehabilitation — where aggravating features included a concerning traffic history, driving after voluntary ingestion of cannabis whilst unaccompanied, the death of two innocent victims, and commission of further offences whilst on bail — whether circumstances permitted such an early parole eligibility date combined with such a lenient head sentence — whether sentence within range — HELD: appeal allowed to the extent of setting aside that part of the sentence recording the respondent’s date for parole eligibility at 7 August 2008 and instead substituting the date for his parole eligibility at 7 December 2008.

R v Gibb [2007] QCA 191; CA No 151 of 2006, 8 June 2007

Appeal against Conviction & Sentence — where appellant convicted of one count of common assault, one count of wilful damage and one count of assault occasioning bodily harm whilst armed — where appellant sentenced to nine months imprisonment on each count, wholly suspended with an operational period of three years, with an order to pay $1,507.25 by way of compensation — where appellant acquitted of second count of assault occasioning bodily harm whilst armed — where offences relate to event occurring on same date — where evidence of complainant largely in accord with evidence given by other witnesses — where crown did not call nor the trial judge direct the calling of the appellant’s wife as a witness — where defence did not request that she be called — where trial judge ruled photographs of appellant’s wife, marked for identification, were inadmissible — where possible defence was that the appellant was acting in defence of his wife — whether failure to call appellant’s wife and failure to admit photographs led to a miscarriage of justice — whether sentence outside appropriate range — HELD: appeal against conviction dismissed — applications for leave to appeal against sentences refused.

R v Ronkovich [2007] QCA 193; CA No 41 of 2007, 8 June 2007

Sentence Application — where appellant convicted on one count of GBH and one count of sexual assault — where appellant sentenced to three and a half years imprisonment with a parole eligibility fixed at 6 December 2007 — where parole eligibility date was unable to be met for administrative reasons outside the appellant’s control — whether sentence imposed on a clear factual error of substance — whether this caused the sentencing discretion to miscarry — whether the sentence was manifestly excessive — HELD: application for leave to appeal granted — appeal against sentence allowed — original sentence set aside and in lieu thereof: (a) vary the sentence of three and a half years imprisonment on count 1 to be suspended after 10 months with an operational period of four years; and (b) substitute the sentence of three and a half years imprisonment on count 2 with a sentence of 10 months imprisonment followed by a probation order of two years.

R v Saub [2007] QCA 194; CA No 27 of 2007, 8 June 2007

Appeal against Conviction — where appellant convicted of six counts of indecent dealing with a child under 12 — where appellant’s counsel at trial cross-examined the complainant about digital penetration not charged on the indictment — where crown had not led evidence of allegation — whether miscarriage of justice occurred — HELD: appeal dismissed.

R v Newman [2007] QCA 198; CA No 63 of 2007, 15 June 2007

Sentence Application — where applicant pleaded guilty to charges of rape, GBH, robbery with violence, burglary and deprivation of liberty — where offences were committed in victim’s home — where victim was an elderly lady and suffered serious physical and psychological harm as a result of the attack — where offender showed little remorse — where degree of callousness was significant — whether applicant’s age (17 years at time of offence) was properly considered as a mitigating factor — whether sentence manifestly excessive — HELD: application for leave to appeal against sentence dismissed.

R v Richwood [2007] QCA 201; CA No 64 of 2007, 15 June 2007

Sentence Application — where applicant pleaded guilty to a number of offences including assault occasioning bodily harm whilst armed, deprivation of liberty, disabling with intent, wilful damage, attempting to destroy property by explosives, attempting to injure by explosives, and extortion with a circumstance of aggravation — where applicant sentenced to 10 years imprisonment on the extortion charge, with lesser sentences on the other charges but with serious violent offence declarations being made — where the extortion offence was not a type of offence for which a SVO declaration could be imposed — whether it was appropriate to attach the global head sentence to the extortion offence — whether the sentence imposed was within range — whether there was a sufficient basis for the making of SVO declarations — HELD: leave to appeal against sentence granted — appeal allowed only to the extent of deleting the declaration as to time spent in pre-sentence custody and substituting the following: “The applicant was held in pre-sentence custody between 24 April 2005 and 2 November 2005 and between 2 May 2006 and 16 March 2007, a period of 510 days, which is declared imprisonment already served under the sentences imposed”.

R v Glattback [2007] QCA 204; CA No 330 of 2006, 22 June 2007

Reference under s 672A Criminal Code — where appellant convicted of murder — where defence based on accident — where appellant’s legal representatives refused to adduce evidence of deceased’s psychiatric history — where appellant consequently did not give evidence — whether evidence of psychiatric history relevant and admissible — whether appellant lost fair chance of acquittal — whether miscarriage of justice occurred — HELD: appeal dismissed.

R v Cannon [2007] QCA 205; CA No 317 of 2005, 22 June 2007

Appeal against Conviction & Sentence — where appellant convicted of one count of trafficking in the dangerous drug, methylamphetamine, and one count of possessing a dangerous drug, methylamphetamine, in excess of two grams — where evidence received at trial from various witnesses who received the benefit of reduced sentences under s 13A Penalties and Sentences Act 1992 (Qld) — where various pieces of evidence were ruled admissible, including evidence obtained through use of a listening device, evidence obtained through execution of a search warrant, and where conversations were admitted under the Tripodi principle — whether evidence properly admitted — whether directions of learned judge in relation to the witnesses’ evidence were adequate — whether verdicts unreasonable — where appellant sentenced to 12 years and eight months imprisonment with a concurrent term of two years imprisonment for the possession charge, with an automatic SVO declaration — whether sentence was manifestly excessive — HELD: appeal against conviction dismissed — application for leave to appeal against sentence refused.

R v WS [2007] QCA 207; CA No 51 of 2007, 22 June 2007

Sentence Application — where applicant pleaded guilty to the murder of his father — where applicant aged 16 years and 6 months at the time of the offence — where applicant sentenced to 12 years detention under provisions contained in Pt 6 Div 11 Juvenile Justice Act 1992 (Qld) — whether learned judge should have made an order under s 227(2) ordering release of the applicant after serving 50 per cent of the detention — whether sentence was manifestly excessive — HELD: application dismissed.

R v Lake; R v Carstein; R v Geerlings [2007] QCA 209; CA Nos 327, 312 and 309 of 2006, 22 June 2007

Appeal against Conviction & Sentence — where appellants were convicted of conspiracy to import cocaine under s 233B(1)(b) of the Customs Act 1901 (Cth) — where appellants discussed plans for the illegal import through telephone conversations which were taped, and conversations captured on a listening device planted in a motel room — where jury listened to these conversations at trial and were also provided with transcripts of the conversations — whether learned trail judge erred in allowing the jury to retain the transcripts during the trial and their deliberations — where defence counsel for Geerlings and Lake submitted that their actions were merely preparatory — where counsel for Carstein submitted he had no actual intention or capacity to import cocaine — whether learned judge properly directed on the inferences that could be drawn on the defence cases as opposed to the crown case — whether this amounted to a lack of balance in summing up — where s 11.5(2)(c) Criminal Code (Cth) requires that a party to that agreement must have committed an “overt act” pursuant to the agreement — where counsel for the appellants sought particulars of the overt acts alleged by the Commonwealth — where crown sought to rely on each phone call as constituting an overt act — where trial judge in summing up explained the requirements of an overt act and listed the matters relied upon by the crown as constituting overt acts — whether trial judge erred in failing to require the crown to provide particulars of the overt acts alleged against the appellants — whether jury should have been directed that it was necessary to agree on the overt act committed pursuant to the agreement — where Lake and Geerlings were sentenced to seven years imprisonment with a non-parole period of three and a half years — where Carstein was sentenced to eight years imprisonment with a non-parole period of four years — whether the sentences should have been reduced to take into account the futility of the scheme — whether Carstein’s lesser involvement should have been taken into account in his sentence — whether the sentences imposed were manifestly excessive — HELD: appeals against conviction dismissed — applications for leave to appeal against sentence refused.