CIVIL APPEALS

Keswick Developments P/L v Keswick Island P/L & Ors [2009] QCA 340 Chief Justice Holmes JA A Lyons J 3/11/2009

General Civil Appeal from the Supreme Court, Trial Division — Contracts — Construction and Interpretation of Contracts — Keswick Developments (KD) entered into contracts with Keswick Island Pty Ltd (KI) (a wholly owned subsidiary of Keswick Island Holdings (KIH)) for the purchase of its interest as lessee and sub-lessee under a number of Crown Leases — The ‘Land Sale Contract’, the ‘Retention Deed’ and the ‘Offset Deed’ contained provisions entitling KD to retain part of the purchase price payable to KIH for the shares in Connie Bay Developments (CBD — a wholly owned subsidiary of KIH) — The Land Sale Contract contained special condition 2 that provided that KD was “not entitled to retain any money from the “Purchase Price” in order to ensure compliance with…warranties but that…in the event” KD may in the event of KIH’s non-compliance retain such loss and damage from moneys due to be paid by KD to KIH under the “Put and Call” options — The learned Judge held that KIH had breached special condition 2 of the Land Sale Contract by granting a sub-lease to the company Kevroy Pty Ltd — There was no challenge to this finding — The learned Judge concluded that KD was “entitled to retain only such amount as has been adjudicated or agreed as the loss or damage which it has suffered for the breach of warranty resulting from the Kevroy dealing” — On Appeal — The issue is whether, absent agreement as to amount, the amount (of loss and damage) must have been the subject of adjudication prior to KD’s retaining it — The natural construction of these contractual provisions did not contemplate the invocation of an unexpressed external mechanism for the determination of the amount of any allowance to the purchaser in respect of the vendor’s breach of warranty — The absence from the contractual provisions of a specification for such external assessment by way of adjudication tells strongly against the parties having intended that course — The learned Judge introduced a refinement upon which the parties did not expressly agree, and which was not justified on an orthodox approach to the implication of terms into contracts — HELD: Appeal allowed, Order set aside, and Declare that KD may retain the value of its loss under the Land Sale Contract by way of offset against the amounts payable to KIH under the Share Sale Contracts, notwithstanding that that value may not have been agreed, or determined by a court of competent jurisdiction, before the date for payment of the shares, with costs.

Northbuild Constructions P/L v Discovery Beach Project P/L [2009] QCA 345 McMurdo P Muir JA Chesterman JA 6/11/2009

General Civil Appeal from the Supreme Court, Trial Division — Interference with the Discretion of the Court Below — Judge Mistaken or Misled — Generally — Discovery Beach (‘the redeveloper’) engaged Northbuild Construction (the ‘builder’) to carry out building work in 2003 — Their business arrangements led to a dispute about payments — Attempts to resolve the dispute have been, and are the subject of, arbitration and expert determinations outside the court system with occasional skirmishes in it — This appeal is part of one such skirmish — On 9 May 2005 the builder obtained, by consent, an interim freezing order against the redeveloper — Under this order, subject to certain qualifications, the redeveloper was required not to dispose of net assets of $3,665,585.29 and the builder undertook to “not publish the terms or substance of this order to any person except the [redeveloper]” — The builder sought an order releasing it from this undertaking, for leave to use specified documents it obtained in the freezing order proceeding, and to cross-examine two of the redeveloper’s witnesses in the Category 1 expert determination as to their credit by raising matters in those documents — The primary court determined that the builder be released from its undertaking not to publish the terms or substance of the freezing order to anyone other than the respondent, but otherwise dismissed the application — On Appeal — The dispute between the parties has been long, expensive and bitterly fought — Common ground that the builder was required to show what are conveniently termed as special circumstances before this Court would release it from its implied undertaking — The redeveloper rightly conceded that the judge wrongly considered that none of the specified documents would be amenable to subpoena — Documents which go only to credit may be subpoenaed as long as they are required for some sufficiently disclosed legitimate forensic purpose — Courts will usually relieve a party from its implied undertaking where, after giving proper consideration to the public policy reasons behind it, the circumstances of the case demonstrate this is plainly in the interests of justice — Significant in considering whether special circumstances exist in this case that the freezing order proceedings and the Category 1 expert determination in which the builder wishes to use the specified documents are closely related and raise interlocking issues — If the builder was not released from its implied undertaking, it’s cross-examination of the redeveloper’s witnesses about an alleged oral agreement would be farcically hamstrung — The specified documents were not commercially sensitive, and many are in the public domain — By allowing the appeal and releasing the builder from its implied undertaking, it is hoped that the parties’ lawyers can now assist them to speedily finalise all aspects of this lengthy and costly dispute — Otherwise the matter could become of institutional concern — HELD: Appeal allowed with costs, the appellant have leave to use the specified documents to cross-examine the redeveloper’s witnesses in the Category 1 expert determination.

Chavez v Moreton Bay Regional Council [2009] QCA 348 Keane JA Holmes JA McMeekin J 6/11/2009

General Civil Appeal from the Supreme Court, Trial Division — Procedure — Judgments and Orders — Variation and Setting Aside of Consent Judgment — On 25 November 2003 Chavez commenced proceedings for damages for negligence against the predecessor of the Moreton Bay Regional Council (MBRC) — Chavez’ claim arose out of the issue by the Council on 26 November 1997 of a building permit in respect of land then being developed by Chavez — Construction commenced in December 1997 and was substantially complete by June 1998 — The proceedings were not served on the Council until 24 November 2004 — Chavez served an amended statement of claim on 22 November 2005 — In February 2006 Chavez’ then solicitor confirmed to the Council’s solicitors that no further step would be taken in the proceedings until further and better particulars of the statement of claim were supplied — Thereafter, Chavez did not provide further and better particulars — On 16 April 2009, the Council applied to have Chavez’ action struck out for want of prosecution — A consent order was made on 11 May 2009 within which order 3 provided that Chavez was to provide security for costs in favour of the Council — On 2 June 2009 the Council obtained from the Registrar of the Supreme Court an order that Chavez’ action be struck out for want of prosecution — On 17 June 2009 Chavez filed an application in the Supreme Court seeking an extension of time to comply with the consent order of 11 May 2009 — On 7 July 2009 the Chief Justice heard Chavez’ application and declined to grant the extension of time — On Appeal — The further and better particulars of Chavez’ statement of claim to which his Honour referred in the judgment were provided only after Chavez’ action had been struck out — Until then, since February 2006, Chavez’ side had not pressed the Council to file a notice of intention to defend and defence — Chavez defaulted in the performance of his obligations under the consent order — It was his default which gave rise to the need for him to seek an extension of time for performance — There are decisions of intermediate appellate Courts of Appeal in Australia which support the proposition that a term of a consent order which contains a self-executing order for the dismissal of proceedings by reason of default in compliance by a due date may be extended by order of the court — This view seems not to accord with that taken in England, and it may not be consistent with previous decisions of Queensland courts — However it is unnecessary to resolve this difference in authorities — In accordance with the reasons of McHugh JA and Clarke JA in Paino v Hofbauer (1988) 13 NSWLR 193 the discretion conferred by r 7 of the Uniform Civil Procedure Rules 1999 (Qld) should be exercised in favour of a party in the position of Chavez only in cases where there is good reason for depriving the other party of the benefit of a free and voluntary agreement — Here unable to see any good reason — Where a party to a contract chooses to delegate the task of performing the contract to that party’s solicitor, the other party to the contract is entitled to treat the acts or omissions of the solicitor as the acts or omissions of the client — HELD: Appeal dismissed, with written submissions to be delivered to the Court on costs within seven days.

Virgtel Ltd & Anor v Zabusky & Ors (No 2) [2009] QCA 349 McMurdo P Mullins J Philippides J 10/11/2009

General Civil Appeal from the Supreme Court, Trial Division — Procedure — Costs — Interlocutory Proceedings — Virgtel Limited is a company incorporated in the British Virgin Islands and Virgtel Global Networks NV is a company incorporated in The Netherlands — The Virgtel companies have commenced an action against Harvey Zabusky and others alleging breaches of various duties owed to the Virgin Technologies Limited (VTL) a company incorporated in Nigeria and not a party to the appeal nor to the primary application the subject of this appeal — The respondents allege that the appellants diverted to themselves about $US11 million in payments which should have been made to VTL — This litigation has involved a number of interlocutory applications and during these applications the respondents received four costs orders in their favour — This appeal is from an order refusing a stay of those orders — On Appeal — The costs orders of this appeal are final orders — It follows that ordinarily, the Virgtel companies are entitled to the ‘fruits of their victory’ by enforcing those final costs orders before the conclusion of the action, unless the appellants show ‘special or exceptional circumstances’ warranting a stay, with the onus on the appellants to demonstrate why the court should grant the stay — His Honour’s reasons make adequately clear that his Honour understood that he had a broad discretion to exercise in determining the stay application — His Honour then fairly observed that if the other members of the judiciary who had made the previous orders felt that the appellants ought not pay the costs orders in favour of the Virgtel companies until the end of the action, then they would have so ordered — Highly relevant that the appellants did not apply to stay these orders until after the costs had been assessed, a certificate of assessment filed and the registrar ordered they take effect as judgments of the court — The lateness of the application is a telling though not conclusive factor against its success — The Virgtel companies have provided security for costs and security for their undertaking as to damages in respect of a Mareva order totalling to date, $650,000 — If, as the appellants contend that that amount is insufficient to cover their costs should they succeed, they should apply to increase that security — The gargantuan amount of costs expended by the appellants in this matter before the action has commenced is concerning — It is a stark example of the unacceptable cost of access to justice in commercial matters — The recent placement of this matter on the supervised case list will ensure it is now optimally case-managed — The parties’ lawyers also have an obligation, not just to their clients but also to the administration of justice, to do everything possible to ensure the matter is soon concluded in a timely and cost efficient way — HELD: Appeal dismissed with costs.

Fletcher v Queensland Nursing Council [2009] QCA 364 Chief Justice Muir JA Chesterman JA 27/11/2009

Application for Leave to Appeal from the District Court — Professions and Trades — Health Care Professionals — Nurses — Disciplinary Proceedings — Fletcher is a nurse registered under the Nursing Act 1992 (Qld) (‘the Act) — The Queensland Nursing Council is the body corporate established by s 6 of the Act, charged with the regulation of nursing and the maintenance of professional standards — Disciplinary charges were brought against Fletcher in the Nursing Tribunal on the ground that she had behaved in a way that constituted unsatisfactory professional conduct contrary to s 104(1) of the Act — The particulars referred to Fletcher having abused her position of influence and trust in respect of a Mr Paidley arising from a nurse/patient (therapeutic) relationship — The Tribunal found that the charge had been made out though not all of the particulars had been proved — It ordered that Fletcher’s registration be cancelled forthwith and that she be prohibited from reapplying for registration for a period of two years — Other orders relating to any future employment of her in the nursing profession were made with costs fixed at $10,000 — Fletcher appealed to the District Court which allowed the appeal, ordered the charge against her be dismissed with costs of the appeal fixed at $10,000 — On Appeal — The judge was critical of the Tribunal’s assessment of Fletcher — His Honour believed that Fletcher had been unfairly treated by the chairman, and had not been allowed to give a fair account of herself — It is not clear why the learned judge thought it necessary to criticise the chairman’s conduct of the proceedings, or to express sympathy for Fletcher — His Honour however did so, and his concern for Fletcher may have influenced his decision — Reference was made to the definition of ‘abuse’ in the Concise Oxford English Dictionary to support the argument that the words connote an intention or purpose — This, Fletcher’s argument, which the judge accepted is without substance and should have been rejected — The word ‘abuse’ has many meanings and shades of meaning — ‘Abused’, where it appears in the Notice of Charge is clearly a verb — The verb does not express any particular purpose or course of action, but describes a condition of the conduct in question — The better view of the Notice of Charge is that it contained one complaint of unsatisfactory professional conduct which was then particularised by the description of six instances — The plain structure of the charge was that the six instances alleged constituted the abuse of position — In other words, the abuse was not a separate particular of the charge but a designation of the conduct described by the particularised instances — Fletcher’s complaint to the District Court about the Tribunal’s finding were concerned with a point of substance, not form — His Honour proceeded to consider the ‘merits’ of the case which he concluded fell ‘far short of one establishing “abuse”’ — His Honour’s analysis of the ‘merits’ of the appeal is with respect irrelevant and must be disregarded because it was predicated upon there being a need to establish conduct by Fletcher intended by her to bring about the result that she benefited from Mr Paidley’s estate — Both the Tribunal and Fletcher called expert testimony with both witnesses agreeing that Fletcher had acted unprofessionally on her dealings with her patient — The Tribunal is a specialist one — Its expressions of opinion that conduct does or does not amount to unsatisfactory professional conduct should be given considerable weight and not disturbed in the absence of demonstrated error in the process of reasoning, fact finding, or the application of the statutory definition to the facts — One order of the Tribunal in relation to any future employment of Fletcher in the nursing profession was indefinite in length but was within the Tribunal’s competence — The powers conferred on the Tribunal by s 116 are to be exercised for the protection of the public, the proper disciplining of registered nurses and the regulation of their professional conduct — HELD: Leave to appeal granted, Appeal allowed, Orders of the District Court set aside with costs.

SLS Property Group P/L v Townsville CC & Anor; Catchlove & Ors v Townsville CC & Ors [2009] QCA 380 Keane JA Holmes JA Daubney J 11/12/2009

Application for Leave Integrated Planning Act from the Planning & Environment Court — Environment and Planning — Development Control — Consents, Approvals and Permits — Validity — Generally — Consolidated Properties Pty Ltd (Consolidated) applied to the Townsville City Council (“the Council”) for a material change of use of vacant land on the Bruce Highway north of Townsville for the purposes of “a district centre (extension) and fast food store” — Consolidated’s application included a master plan which showed that its proposed change was intended to take place in two stages — Council approved the first stage only of the proposed development — SLS and Centro argued that the Council exceeded the power conferred on the Council to approve an application “in part” by s 3.5.11 of the Integrated Planning Act 1997 (Qld) (“the IPA”) — The learned judge of the P & E Court rejected that argument and declared that the Council’s decision was valid — On Appeal — Under s 4.1.56 an appeal to the Court of Appeal is available only by leave and relevantly on the ground of “error or mistake in law” on the part of the P & E Court — Section 3.5.11 of the IPA is in the following terms: “…the assessment manager must- (a) approve all or part of…the application (b) approve all or part of…the application (c) refuse the application” — The text of s 3.5.11 expressly contemplates that an assessment manager, such as the Council, may approve “part” of an application — The power conferred by the provision to approve part of an application is expressly unqualified — The terms of Consolidated’s application were such as to inform interested members of the public that its application involved two stages, one or both which might be approved — To make the assumption that members of the public who were interested in the application would not have appreciated the possibility that stage 1 only would be granted does little justice to the discernment of members of the public — HELD: Applications for leave to appeal refused with costs.

State of Queensland v Springfield Land Corporation (No 2) P/L & Anor [2009] QCA 381 Keane JA Fraser JA Atkinson J 11/12/2009

General Civil Appeal from the Supreme Court, Trial Division — Real Property — Compulsory Acquisition of Land — Compensation — Assessment — Adjoining Land — Where the appellants are the owners and developers of land in the local government area of Ipswich City Council (“the Council”) — The development has proceeded pursuant to arrangements between the appellants, the State and the Council — The respondents compulsorily acquired land held by the appellants for road purposes (referred to as “the Transfer Land”) — The amount of compensation payable under s 20(3) of the Acquisition of Land Act 1967 (Qld) was referred to arbitration — The arbitrator found that the land was taken to effect the realignment of a transport corridor and the value of the appellants’ land was not enhanced by that taking — The arbitrator made an award under which the State was required to pay the appellants $1,468,806 by way of compensation — On the appeal from the arbitrator the learned judge concluded that the arbitrator erred in law in failing to identify precisely what was involved in the relevant “works or purpose for which the land [was] taken” in proceeding on the footing that the relevant ‘works or purpose” were limited to the small realignment to be carried out on the Transfer Land — The learned judge determined that the works for which the land was required could not be realistically defined in terms of part of the width of a relatively small section of a proposed road — The relevant purpose was to provide some of the land which was required for the construction of a single road, which (the appellant) was prepared to accept was the road yet to be constructed from the town centre westward — The appellants did not seek to dispute the evidence of the valuation of the extent of the enhancement and accordingly the learned judge allowed the State’s appeal and substituted a value of “nil” as the assessed compensation — On Appeal — Neither the notices of intention to resume, nor any other instrument which could be said to be concerned with identifying the purpose of the taking of the land, suggests that the purpose of the taking was other than the construction of the transport corridor — That was the only “transport purpose” which is apt to explain the taking of the Transfer Land — The narrow perspective adopted by the arbitrator and advocated by the appellants in this Court is not supported by the text of s 20(3) of the ALA — It is said on behalf of the appellants that, in the present case, the scheme which caused the enhancement in the value of the appellants’ land was that of the Council and not of the Department of Main Roads — To say this is to ignore the reality that the genesis of the scheme which enhanced the appellants’ land involved agencies of the State Government as well as the Council — The appellants raised no objection to his Honour’s determining the quantum of compensation payable — No reason in terms of procedural fairness why the appellants should not be bound by the conduct of their case at first instance, and the desirability of finality of litigation affords a compelling reason to hold them to the manner in which they conducted their case below — HELD: Appeal dismissed with costs.

Attorney-General for the State of Queensland v Sybenga [2009] QCA 382 Keane JA Holmes JA Fryberg J 11/12/2009

General Civil Appeal from the Supreme Court, Trial Division — General Principles — Interference with Judge’s Findings of Fact — Appeal against the primary judge’s order, pursuant to s 13 of the Dangerous Prisoners (Sexual Offenders) Act 2003 (Qld), that he be detained in custody indefinitely for control, care or treatment — On 2 July 2004, the appellant was sentenced to four years imprisonment with a recommendation for parole after 16 months, in respect of 16 counts of indecent treatment of children under the age of 12 — The appellant did not apply for parole, and before his full-time release date the respondent sought and was granted an order under s 13 of the DPSOA that the appellant be detained in custody for an indefinite term for control, care or treatment — On Appeal — No argument here, or at first instance, as to the correctness of the finding that the appellant was a serious danger to the community in the absence of an order — The appellant was assessed by an experienced forensic psychiatrist as suffering from a schizoid personality disorder, and exhibiting paedophilia — The appellant failed to complete or refused to undertake various sexual offender courses at the Wacol precinct where he was housed — In evidence three experienced forensic psychiatrists identified the appellant’s failure to complete the group therapy program as also increasing, as a matter of statistical probability, the level of risk he posed — The primary judge described the appellant as being “unwilling”, and of his behaviour in refusing to undertake treatment as “consistent with a person who wishes to be in a controlled environment and does not wish to take responsibility for his actions” — These descriptions accurately reflected the evidence of the appellant’s responses, and were entirely consistent with what the psychiatrists had said — The attitude and behaviour of the appellant had their genesis in personality traits; the problem was the poor prognosis for rehabilitation which resulted — The appellant had told his case manager in April 2009 that he considered himself a danger to children and was likely to re-offend; that he would “do it for the rush” — He had made a similar comment to his treating psychiatrist and had also said that he believed that some children could give informed consent to sexual activity — None of the psychiatrists countenanced anything short of 24 hour supervision of the appellant in conditions described as “house arrest” — The risk was, as the primary judge had said, too great for him to be released into the community — Evidence was provided by a case manager from the Department of Corrective Services as to why the level of supervision which the appellant required was impracticable at the Wacol precinct — In addition the psychiatrists had identified the only prospect for the appellant’s improvement was his completion of a sexual offender course which was not possible at Wacol — Supervision by the appellant’s parents was not seriously advanced at the hearing as a real option — It is unfortunate that an individual who poses such a risk of re-offending as to require 24 hour supervision must be held in a custodial setting designed for the serving of sentences — Given the numbers now subject to orders of a kind once thought extraordinary, one might question whether there ought not to be an alternative secure form of accommodation which does not impose the rigours of jail on persons detained for protective, not punitive, purposes — HELD: Appeal dismissed.

Witheyman v Simpson [2009] QCA 388 Muir JA Cullinane J Fryberg J 15/12/2009

Application for Leave to Appeal from the District Court (Civil) — Environment and Planning — Trees and Vegetation — Native Vegetation — Where the respondent was charged with three offences, including starting assessable development without an effective development permit for the development in breach of s 4.3.1(1) of the Integrated Planning Act 1997 (Qld) — In January 2007 the respondent was acquitted by a Magistrate of all three counts and the applicant was ordered to pay the respondent’s costs — The applicant appealed to the District Court and during the course of the hearing, the appeal in respect of two counts was effectively abandoned — The learned judge who heard the appeal dismissed it with costs — The respondent argued successfully on appeal to the District Court that the construction of the IPA was affected by the Vegetation Management Act 1999 (Qld) so that there was no obligation to obtain a development permit at the relevant times — Two days before the VMA coming into force, the Vegetation Management Amendment Act 2000 (Qld) was passed — This Act intentionally removed reference to s 3(1)(a)(ii) which would mean that it would no longer be a purpose of the VMA to regulate the clearing of vegetation on freehold land to preserve “remnant of concern regional ecosystems” — It is not apparent, however, that the Legislative intention, in addition to the removal of this purpose, included removing from the Act’s purposes the regulation of clearing such land to meet objectives within s 3 of the VMA — Reference was made to extrinsic materials including the Minister’s second reading speech in respect of the amendment Act where the Minister stated “…we regrettably have no choice but to remove mandatory protection for these areas…” — On Appeal — The giving of a purposive construction to statutory provisions does not mean that the language of the provisions can be ignored — Despite the clear ministerial statements, a court is not free to construe the IPA as if the language of the IPA had been altered to reflect the policy contained in the ministerial statements — The respondent’s argument, like the Judge’s findings, was based on the erroneous premise that it was permissible to construe a statute by ignoring its words and applying a Legislative policy perceived to arise from extrinsic materials — Whether what was done was sufficient to identify the vegetation types which existed on the cleared land prior to clearing depended on whether the Magistrate accepted the botanist’s evidence from the Environmental Protection Agency and, in particular, the reliability of the methodology and techniques which this botanist employed — The Magistrate was of the view that in order to succeed the prosecution was required to prove that the cleared area on the land was within land “properly mapped as remnant endangered regional ecosystem in a regional ecosystem map under the VMA” — For the reasons given earlier, that conclusion was wrong — Why the Magistrate concluded as she did is unexplained — The observations on the mapping point by the Magistrate come after extensive criticisms of the prosecution evidence and there is no clear finding that the subject clearing took place within the period charged or that it was carried out by the respondent — HELD (abridged): Leave to appeal granted, Appeal allowed, Remit the proceeding to the Magistrates Court to rehear and determine count one according to law.

Chief Executive, Department of Natural Resources and Mines v Kent Street P/L [2009] QCA 399 McMurdo P Keane JA P Lyons J 22/12/2009

General Civil Appeal from the Land Appeal Court — Real Property — Valuation of Land — Unimproved Value — Methods of Assessing — The Land Appeal Court determined the unimproved value of the site of the Pacific Fair Shopping Centre at $47,490,000 as at 1 October 2002 under s 3(1)(b) of the Valuation of Land Act 1944 (Qld) (VLA) — The valuation of Pacific Fair was initially issued by the appellant in an amount of $180 million which was reduced to $90 million following objection — On appeal to the Land Court the member determined the value as $128,200,000 which on appeal to the Land Appeal Court (LAC) was reduced to the earlier figure — On Appeal — The critical provision for the determination of the unimproved value for the Pacific Fair site is s 3(1) VLA — Land is improved land for the purpose of s 3(1), if it can be said in relation to it that at the valuation date, “improvements…exist” — Amendments were made to the VLA in 2008 which were applied in the Pacific Fair appeal to the Land Appeal Court — When the 2008 Bill was first presented to Parliament the clause proposing amendments to s 3 of the VLA with the Explanatory Notes included the clarification of the definition of unimproved value — However the Bill was itself the subject of amendments — The legislative history reveals that consideration was given to requiring that the unimproved value of land include any increase in the value of the land as a result of the making of an improvement of the land, and requiring, that it should be assumed that there was no risk in realising the use of the land, or continuing its use, for any purpose for which it is being used at the valuation date — However a deliberate decision was subsequently made to omit both requirements — Consideration of a literal reading of s 3 which involves a hypothetical sales transaction where the prudent vendor and prudent purchaser would be taken to know that immediately after the valuation date the shopping centre is “back in the form it was immediately before the valuation date, including leases” — Difficult to imagine any difference between the unimproved value and improved value with a possible difference reflecting whether rent might be payable on the day of valuation — However improved value and unimproved value are separately defined within the VLA — The decision to omit the provisions from the Bill in the eventual VLA as amended is of considerable significance — Section 3(1)(b) requires consideration of a hypothetical sale and that some allowance for profit is to be recognised — In considering the profit to be achieved from the development of the land, this cannot be achieved without making allowance for the time that it would take for a development to occur — Leases add significant value to the developed shopping centre, however considerations lead to the conclusion that the statute did not require that their effect on value be taken into account in determining the unimproved value — A decision of the Land Appeal Court in relation to the Chermside Shopping Centre was influential on the Land Appeal Court’s determination of the Pacific Fair appeal — In determining the value of the Chermside Shopping Centre the Land Appeal Court applied the sale of land adjoining the site (the Telstra sale) — The Land Appeal Court expressly identified points of comparison for its use of the Telstra sale to determine the unimproved value of the Chermside site — There has been no serious suggestion that the Chermside site and Pacific Fair site were not sufficiently comparable to enable the unimproved value for the Pacific Fair site to be derived from the unimproved value of the Chermside site — Authorities relied on by the appellant dealt with legislative provisions which in a number of instances are expressed differently to the VLA or appear in different statutory settings — The VLA is revealed by the history of 2008 amendments with an attempt to interpret the relevant provisions in the statutory context that they are found, and by reference to what can be gleaned from the intention of those responsible for the adoption of the amendments — The appellant has not demonstrated that the Land Appeal Court has wrongly construed, or that it has acted on a wrong construction of the VLA — The appellant advanced a miscellany of other points, some of which, on analysis, of a factual nature, and some of which fail to recognise the scope of the powers of the Land Appeal Court on an appeal to it — HELD: Appeal dismissed, Leave to make written submissions on costs.

CRIMINAL APPEALS

R v Dyke [2009] QCA 339 Keane JA Muir JA Fraser JA 3/11/2009

Appeal against Conviction from the District Court — Verdict Unreasonable or Insupportable Having Regard to Evidence — Dyke was convicted after a jury trial of arson, fraud and attempted fraud — The Crown case was that Dyke had deliberately set fire to his house with the intention of defrauding the insurer who had issued a policy to his wife — Opinion evidence was given by a Mr Smith, who was qualified to give evidence about the cause of the fire — The jury was not directed that an expert’s opinion based on what the expert witness has learned of the facts may be of little value if those facts have not been established to the jury’s satisfaction — Differences between “fire tests” conducted by Smith as to how the fire might have started and the scenario as to what would actually have been happening when the fire started were at least of sufficient importance to require analysis — Smith agreed in cross-examination that his report of his opinions was qualified by the statement that his opinions ‘are indicative only due to the extended period of time between the fire and the examination of the scene’ (five months after the fire) — The absence of a cogent explanation of those differences make good Dyke’s point that there were significant weaknesses in Smith’s evidence of his ‘indicative’ opinion — The respondent’s counsel acknowledged the weaknesses in the evidence of the experiments but contended that Smith’s opinion was supported by well regarded research — The only evidence of that research was given by Smith: ‘…There are a number of textbooks and academic papers about cigarettes…they are in fact the cause of a lot of fires. …But the tests I performed and all of the literature I’ve read indicate that cigarettes are a very unlikely source of ignition in this circumstance.’ — The generality of this statement rendered this evidence of limited probative value — A Ms McKinnon, a chartered accountant, gave opinion evidence of the finances of Dyke and his wife — McKinnon had no knowledge of the cleaning industry, in which Dyke provided services, and did not take into account the fact that December/January was generally quiet in the building industry in which Dyke provided much of his services, her analysis based upon accounting records was also unpersuasive because there may have been unbanked cash receipts and cash payments as had been supported by other evidence — After the house was effectively destroyed in the fire the property sold for $190,000 — Evidence was given that a finance company lent Mrs Dyke $216,000 for the purpose of repaying existing debts, with the new loan secured by a mortgage over the property, with a condition that the house be insured for replacement value ($200,000) — The insurance policy and Mrs Dyke’s claim on the policy were not put in evidence — The inference is available that the mortgagee or the insurance company would have insisted upon reinstatement or payment to the mortgagee, rather than any substantial cash payment, in the event of the house being damaged or destroyed — Reference is made to s 58 of the Property Law Act 1974 (Qld) and the Crown adducing no evidence that the insurer or mortgagee would not insist upon reinstatement — Evidence that Dyke and his wife were in a difficult financial position could not establish that he had a motive to destroy the house — The trial judge concluded that the evidence of a Ms Alexander was the only evidence of an intention to defraud — Alexander gave evidence of a conversation where Dyke said ‘…this place will have to go up.’ — Alexander’s evidence in chief referred to two such conversations, then on two or three occasions and concluded by saying that it was said on five occasions — It emerged in cross-examination that Alexander was a ‘service provider in the adult entertainment industry’ who used illicit substances — Alexander stated that she was taking illicit substances at the time of the conversation ‘but not very much at all’ and she was sober ‘because it was in the afternoon’ — Other evidence noted that the relevant conversation took place in the morning — Alexander first gave a statement some 14 months after the fire and some 16 months after the conversation she purported to recount — Alexander’s evidence on this topic evidence wears the appearance of fantasy — A conviction based upon her evidence must be regarded as unsafe — Because the evidence at trial did not justify a conviction the discretion to order a new trial should not be exercised — HELD: Appeal allowed, Verdicts set aside and Verdicts of acquittal entered.

R v Martens [2009] QCA 351 Muir JA Fraser JA Chesterman JA 13/11/2009

Reference under s s 672A Criminal Code — Pardon, Commutation of Penalty, Reference on Petition for Pardon and Inquiry After Conviction — Reference to Court — Powers of Court on Appeal — To Consider Fresh Evidence — Petitioner (Martens) was convicted in October 2006 of engaging in sexual intercourse with a person who was under 16 years old, whilst outside Australia — Martens unsuccessfully appealed to this Court in April 2007 — In March 2008 Martens applied to the Commonwealth Minister for Home Affairs for a pardon or, alternatively, requested that his case be referred to the Court of Appeal pursuant to s 672A of the Criminal Code 1899 (Qld) — In September 2008 this request was declined — Martens sought review of this decision under the Administrative Decisions (Judicial Review) Act 1977 (Cth) — In March 2009 the Federal Court held that it was open to the Minister whether to refer this matter to this Court for the purposes of s 68 of the Judiciary Act 1903 (Cth) (JA) in its application of the Criminal Code (Qld) — On 9 April 2009 a letter was sent by the Commonwealth Attorney-General to the President of the Court referring ‘Martens’s case to the Court of Appeal…’ — Review of authority (R v Chard (1984) AC 279, Mallard v The Queen (2005) 224 CLR 125) compels the conclusion that the proceeding which follows a reference to the Court pursuant to s 672A is an appeal and is to be determined as an appeal against conviction (or sentence) — Accordingly, s 68(2) of the JA confers the ‘like jurisdiction’ to entertain the reference against a law of the Commonwealth — To achieve uniformity for persons convicted of an offence against a law of the Commonwealth having the same rights as those convicted of State offences, s 68(2) of the JA is required to be read as extending the power to make the reference to the Commonwealth Attorney-General — At the time of the offence the complainant (GN) was a 14 year old girl who live with her family in a small village in a remote part of Papua New Guinea (PNG) — Martens is a man in his 50s who was employed as a commercial pilot flying light aircraft within PNG and between PNG and Australia — Records from the PNG CA Authority were put into evidence on the reference but not tendered at Martens’ trial — The upshot of the records is that a Cessna flew from the small village to Port Moresby on 9 September 2001, returned on 13 September and flew back to Port Moresby on 16 September — GN said that she was flown from the small village to Port Moresby by Martens on Friday 14 September 2001, and was raped by him that evening in his house at Korobosea — An aircraft may not take off without flight clearance from officers of the CA Authority — There is no reasonable doubt as to the authenticity of the records — The records describe flight movements but do not identify the pilot — However the records are of the Cessna which on the evidence was only flown by Martens who, at the relevant times, flew no other aircraft — The evidence to this effect was not challenged — The Director of Public Prosecutions (Cth) submitted the records should be disregarded or discounted, because they are not fresh evidence — The submission does little credit to the DPP — The records are of critical importance — The prosecutor did not provide the records and instead told Martens that they did not exist — They were found after Martens’ conviction as a result of efforts made by his wife — It is a poor reflection upon the DPP and the Australian Federal Police that one should have failed to find them, and denied their existence, and the other object to their use in the reference on the ground that Martens should have obtained them earlier — The fresh evidence proves that GN did not fly with Martens from the small village to Port Moresby on any occasion which satisfies her depiction of the circumstances in which she was assaulted — The evidence also corroborates Martens’ evidence at his trial — Other evidence at the trial takes on new significance because the evidence of GN as to the second flight cannot be accepted — HELD: Appeal allowed, conviction quashed and the order for imprisonment is set aside.

Barkworth v Sidhu [2009] QCA 356 Keane JA Fraser JA Atkinson J 20/11/2009

Application for Leave s 118 DCA (Criminal) — Trade and Commerce — Statutory Regulation of Particular Matters — In October 2008 the Magistrates Court dismissed the charge brought by the applicant, an officer in the Department of Fair Trading, that the respondent, Sidhu, had committed 11 offences against s 32(1)(a) of the Trade Measurement Act 1990 (Qld) (TMA) and discharged Sidhu — An appeal to the District Court was dismissed — The complaint against Sidhu was that a pack of blueberries, being a pre-packed article, had in November 2007 been found to be of short measure and that, as the person who had packed the article, Sidhu was guilty of an offence — In November 2007 Trade Measurement Inspectors conducted a routine inspection of the produce market at the Brisbane Markets at Rocklea — The punnets of blueberries were labelled as containing 125 grams — The average shortfall of the 11 punnets were 6.5 per cent — Sidhu was a small scale blueberry farmer based in Woolgoolga in New Shouth Wales and accepted responsibility for the matters of the charge on the basis that he had engaged the people who had packed the blueberries on his behalf — The punnets in question formed part of a larger consignment of more than 2,400 punnets of blueberries — Sidhu caused the berries to be packed in punnets and then sold them to a company in New South Wales, with the berries eventually being sold to the owner of a stall at the Brisbane Markets — On Appeal — The TMA is a consumer protection measure and forms part of a national scheme of legislation which was born out of the growth in national and international commerce — Section 32(1)(a) should not be construed as if it included a requirement that the packing of the article occur in Queensland — Section 32(1)(a) creates a ‘result-crime’ (Treacy v Director of Public Prosecutions [1971] AC 537), that is to say, it punishes the harmful consequences in Queensland of conduct wherever it occurs — The offence is established where a short measure occurs in the State regardless of whether or not the other elements of the offence occur out of the State — HELD: Application for leave to appeal granted, Allow the appeal, Set aside the order made in the District Court and order instead that the appeal to the Court be allowed, the order made in the Magistrates Court be set aside, The defendant is convicted and fined $1,200, A conviction is not recorded.

R v Lui [2009] QCA 366 McMurdo P Fraser JA Fryberg J 1/12/2009

Sentence Application from the District Court — Grounds for Interference — Other Matters — In August 2009 the applicant was convicted on his pleas own pleas of two counts of unlawful assault and sentenced to concurrent terms of imprisonment of 12 months on each count each count and a parole release date was fixed on 27 November 2009 — On 9 August 2009 the applicant, who was intoxicated, entered into a dispute with the complainant who lived near him — The applicant ran towards the complainant whilst holding a kitchen knife some 30 centimetres long — The applicant shouted abuse at the complainant, including “You’re the Nazi guy that keeps calling the police” — The applicant grabbed the complainant and held the knife to his chest — The complainant’s eldest daughter (the complainant in the second count of assault) appeared on the scene — The applicant put the knife away — As the daughter walked out of the driveway the applicant came up behind her and thumped her on the back of her shoulder — No victim statement was provided by the daughter and the complainant said in his statement that he and his family did not suffer any long term effects — As required by s 671A of the Criminal Code 1899 (Qld) and r 94 of the Criminal Practice Rules 1999 (Qld) the sentencing judge provided this Court with a report dated 31 August 2009 — In it the sentencing judge said “…the suburb of Cairns where the offence occurred, is regrettably the source of vigilante conduct of the type, the subject of the sentence. Unfortunately, this conduct also generally involves a racist element. There is…a strong need for the Court to send out a clear message in terms of both public and private deterrence when dealing with offences of this type. …The sentence was therefore reflective of these elements.” — On Appeal — The judge’s report makes it clear that his Honour’s view about the local prevalence of offences with features similar to those committed by the applicant was an important consideration in fixing upon the sentence imposed — Unfortunately, that is mentioned only in the report, rather than in the sentencing remarks — In light of the importance that which the sentencing judge evidently attributed to that factor in fixing upon the sentence, his Honour’s failure to bring it to the parties’ attention so that they might be heard on it was unfair, particularly (though not exclusively) to the applicant — This Court must exercise the sentencing discretion afresh — Noted that neither party sought to adduce evidence to this Court concerning any local prevalence of offences like those committed by the applicant — The applicant was not on probation when he committed the offences and he has more promising personal circumstances than precedents that were provided on the appeal — He committed all his offences (other than a minor offence) in the year or so after finishing school and thereafter seems to have been a productive member of society — He presents as having good prospects for full and early rehabilitation — HELD: Application for leave to appeal granted, Appeal allowed, Set aside the sentence imposed in the District Court, In respect of Count 2 order a conviction is recorded, sentence the applicant to a term of imprisonment of 12 months suspended immediately (with consequential orders), In respect of Count 3 order a conviction is recorded and that the applicant perform unpaid community services for 120 hours.

R v Collins [2009] QCA 387 Keane JA Holmes JA M Wilson J 15/12/2009

Sentence Application from the Supreme Court, Trial Division — Grounds for Interference — Sentence Manifestly Excessive or Inadequate — The applicant pleaded guilty to one count of trafficking in cannabis and was sentenced to four years imprisonment, suspended after six months, for an operational period of four years — His co-offender (his ex-wife) was sentenced to four years imprisonment wholly suspended — On Appeal — The applicant’s representatives filed a list of authorities extending to 17 cases in respect of this appeal, many of which served only to state uncontentious principles which appellate courts rely on a daily basis — The temptation towards excessive citation should be resisted — Some useful guidance can be obtained from the recent decision of the English Court of Appeal, Criminal Division, in R v Erskine [2009] 2 Cr App R 29 — It was said that the learned sentencing judge had failed to give sufficient weight to the fact that the applicant had in the three years since he was charged significantly expanded his trucking business, which would be damaged by his incarceration — The written submissions went so far as to say the applicant’s perseverance in expanding his business called for “an identifiable and significant discount”; a curious proposition — It has no basis in any recognised sentencing principle — The learned judge did consider the issue of parity in sentencing the applicant and his ex-wife, and identified, properly the different basis on which she had been sentenced — Nonetheless, he gave the applicant the benefit of a lower head sentence to take that matter into account — To have wholly suspended the applicant’s sentence would have produced a result that failed to recognise the seriousness of the offence — HELD: Appeal dismissed.

R v Stafford [2009] QCA 407 Keane, Holmes and Fraser JJA 24/12/2009

Reference under s 672A Criminal Code — Pardon, Commutation of Penalty, Reference on Petition for Pardon and Inquiry after Conviction — Reference to Court — Appellant was convicted on the verdict of a jury of the murder of a child — The case against the appellant was circumstantial — The Crown case was advocated to the jury using a scenario in which the appellant killed the deceased in the bathroom of the house by repeatedly striking her on the head with a silver hammer — After the deceased had been killed, the appellant cleaned up the blood in the house, took the body of the deceased down the front stairs of her house and placed the body in the boot of his red sedan — The car was at the time parked in the open in the front yard of the house in sight of passing traffic and neighbours — The Crown Prosecutor invited the jury to accept that, after the body was left in the boot during the Tuesday, the appellant dumped the body in the bush at Redbank Plains early in the morning on Wednesday, 25 September 1991 — On an Attorney-General’s reference to this Court, pursuant to s 672A of the Criminal Code, this Court is obliged to consider and come to its own conclusion on the “whole case” — The only improvement on the challenge to the evidence which supported the original conviction which has emerged since the 1997 determination is the entomological evidence which casts some doubt of marginal materiality on the likelihood that the maggot found in the boot of the appellant’s car was connected to the deceased — Of particular importance here is the point that a reconsideration of a reference under s 672A of the Criminal Code of a circumstantial case presented by the Crown at trial may be necessitated by new evidence which tends to unravel important strands of the case presented by the Crown, and on which the jury convicted — The evidence which has subsequently emerged shows that the jury should not have been invited to regard central aspects of the Crown’s scenario as fairly open on the evidence — The potency of the circumstantial scenario advocated by the Crown as an instrument of persuasion should not be underestimated — it offered a seemingly coherent, internally consistent theory of the case — In truth, the Crown case against the appellant lacked an explanation as to where he killed the deceased, or how he disposed of her body, or why he would have wanted to kill her — In this case the jury were misled (albeit unintentionally) by the Crown Prosecutor and the learned trial judge as to the case which the Crown could fairly make against the appellant — The flaw in the trial of the appellant was one of procedural fairness — An order involving a verdict of acquittal would not recognise the importance of the consideration that the question of the appellant’s guilt should be determined by a jury, and that a jury could, acting reasonably, convict him of the murder of the deceased — The decisive consideration here is that it was indeed reasonably open to the jury to conclude that the appellant was guilty of murder — HELD: Appeal allowed, Conviction quashed and Retrial ordered.

Taiapa v The Queen [2009] HCA 53 (16 December 2009)

The Australian Military Court was arguably a ‘half-way house³‘ towards a completely independent and impartial military justice system. Before the High Court of Australia, the Commonwealth argued that the Australian Military Court was a ‘modernisation’ of the existing system⁴.

The decision in Lane v Morrison [2009] HCA 29 (C3/2008), delivered on 26 August 2009 (“Lane“), was a ‘watershed’ for military justice in Australia, in that there was the ‘striking-down’ by declaration of Division 3 of Part VII of the Defence Force Discipline Act 1982 (Cth) (“DFDA”). The decision is the conclusion of a long series of reviews as to the military justice system in this country⁵. The Australian Military Court, which the decision effectively abolished, was set up as part of the review process⁶, with the intention of ensuring the objective, just and fair resolution of discipline matters within the Australian Defence Force. The practical result of the decision in Lane is to revert to the system of military justice as existed prior to the creation of the Australian Military Court: that is the system of Courts Martial and Defence Force Magistrates.

The international jurisprudence that led to the creation of the Australian Military Court had some basis in the ‘human rights’ legislation enacted in the United Kingdom⁷ and Canada⁸. Those statutorily enshrined rights and freedoms made military discipline systems existing without independence from the ‘command structure’ potentially illegitimate.

In these circumstances, this article argues that the Australian Military Court was a ‘half-way house’.

 Brief summary of the case

The full bench of the High Court of Australia (French CJ, Gummow, Hayne, Heydon, Crennan, Kiefel and Bell JJ) in its decision in Lane ordered as follows:

“1. Declare that the provisions of Division 3 of Part VII of the Defence Force Discipline Act 1982 (Cth) are invalid.

2. Order that a writ of prohibition issue directed to the first defendant Colonel Peter John Morrison, a Military Judge of the Australian Military Court, prohibiting him from proceeding further with the charges relating to the plaintiff identified in the charge sheet dated 8 August 2007 and referred to the Australian Military Court for trial.

3. Second defendant to pay the costs of the plaintiff.”

The Court was unanimous in making the orders for the Plaintiff. The Court delivered two separate reserved judgments: French CJ and Gummow J⁹ ; and Hayne, Heydon, Crennan, Kiefel and Bell JJ¹⁰.

Creation of the Australian Military Court. The Australian Military Court was created by the insertion of new provisions in the DFDA¹¹. The Australian Military Court replaced the Defence Force Magistrate and Court Martial system, which was historically based upon the English military justice system.

The Military Court was not a creation under Chapter III¹² of the Constitution, as specifically confirmed by s 114¹³ of the amended DFDA. By s 140 of the (now repealed) Act, the Military Court did have the ability to hear matters in public, subject to restrictions. The ‘Judges’ were appointed for a term of 10 years, but their appointment was conditional upon their retention in the Australian Defence Force. Colonel Morrison and the other two Military Judges (so-called), were Officers of the Commonwealth under s 75(v)¹⁴ of the Constitution.

Facts. Brian George Lane, the Plaintiff, was a member of the Royal Australian Navy, before transferring to the Royal Australian Naval Reserve on 14 March 2007. On 8 August 2007 the Plaintiff was charged with offences which were alleged to have occurred in August 2005, when Mr Lane was a member of the Royal Australian Navy. The charges included an alleged “act of indecency without consent”, contrary to s 61(3)¹⁵ of the DFDA, as applied by s 60(2)¹⁶ of the Crimes Act 1900 (ACT) and a charge of assaulting a superior officer contrary to s 25¹⁷ of the DFDA. On 3 September 2007 his service with the Royal Australian Naval Reserve was concluded¹⁸. On 26 November 2007 the Chief Military Judge formally nominated Colonel Morrison to hear the charges. At the first hearing before the Australian Military Court on 25 March 2008, Mr Lane, by his Reserve Officer counsel, objected to the jurisdiction of the Court, without personal appearance. In May 2008 an application was filed in the High Court of Australia, seeking a prohibition preventing the Military Court from hearing the charges and a declaration that the legislation creating the Court was invalid.

The matter was initially listed before French CJ as an originating motion. Before French CJ, the Commonwealth submitted that the section 78B notice by the Plaintiff sought to reagitate the grounds dismissed as unarguable in White v Director of Military Prosecutions [2006] HCATrans 566 at 770-885¹⁹. French CJ dismissed three of the proposed grounds in the further amended application, but referred grounds 1, 2, 3 and 6 to the Full Court for further hearing. The parties were able to agree a Statement of Facts for the substantive hearing.

High Court judgment. Significantly, it was held that²⁰:

“[T]he jurisdiction conferred upon the AMC by s 115 of the Act, to try charges of service offences, involves the exercise of the judicial power of the Commonwealth otherwise than in accordance with Ch III of the Constitution. Legislation conferring that jurisdiction is consistent with the Constitution only if … the establishment of the AMC [is] supported by s 51(vi) of the Constitution.”

Therefore, in Lane, the High Court by its judgment confirmed that the Military Court was exercising the judicial power of the Commonwealth in circumstances where it was not a constitutionally-valid Court under Chapter III. The Court was “established to make binding and authoritative decisions of guilt or innocence independently of the chain of command of the defence forces”²¹.

Analysis of the decision

At the foundation of the decision was the concept that Chapter III of the Constitution is a judicial power, distinct from the judicial power of the (Australian) States and the United Kingdom; with the power to create Courts existing only in sections 71²², 72²³ and 122²⁴. In breach of the Constitution , the purported Court was not created in accordance with those constitutional sections, with the Judges also not having tenure. However, the High Court accepted that military justice has a separate head of power under s 51(vi)²⁵ of the Constitution , but that the Australian Military Court exceeded that head of power, due to its existence outside of the command structure²⁶.

The predicament for the Australian Military Court was that it purported to exist outside of the ‘command structure’, when in fact s 51(vi) ‘relied’ upon that structure. In this regard, reference was had to the decision of Dixon J in R v Cox; Ex parte Smith where His Honour emphasised that, while an element of justice was crucial to military proceedings, military tribunals “do not form part of the judicial system administering the law of the land”²⁷.

Understandably, the High Court in Lane was cognisant of the existing jurisprudence, both in Australia and overseas, as to military justice and the constitutionality of the processes relating to the same. Critically, the High Court decision in Lane was affected by the decisions in White , Findlay, Grieves and Généreux .

White’s Case. The High Court had previously given validity to DFM’s and Courts Martial in White v Director of Military Prosecutions²⁸. That case concerned a Chief Petty Officer in the Royal Australian Navy who was charged under the DFDA in relation to several offences which occurred while she was off duty. The High Court held that the judicial powers of military tribunals were independent of s 71 of the Constitution , and in fact arose under s 68 of the Constitution , due to the Governor-General’s role as Commander-in-Chief of the armed forces²⁹. Significantly, the High Court held in Lane that White “should not be re-opened”³⁰.

United Kingdom. Two cases concerning the validity of courts martial in the United Kingdom are referred to in Lane : Findlay v United Kingdom³¹ in relation to court-martial procedures under the Army Act 1955 (UK) and Grieves v United Kingdom³² as to procedures under the Naval Discipline Act 1957 (UK). Those decisions involved specific challenges under Article 6(1) of the European Convention on Human Rights, which provides that criminal charges must be heard by “an independent and impartial tribunal established by law”. In both instances, it was held that the legislation governing courts martial in the United Kingdom contravened Article 6(1), due to an insufficient demarcation from the military chain of command³³.

Canada. The 1992 Canadian Supreme Court decision in R v Généreux³⁴ similarly concerned the independence and impartiality of military tribunals in the Canadian context. In that case the military member was charged with a drug trafficking offence and with desertion. It was held that courts martial in Canada contravened the right to an impartial, independent tribunal as provided for in s 11(d) of the Canadian Charter of Rights and Freedoms 1982, in particular, as tribunal members did not have secure tenure in their positions as judicial officers.

The conundrum for the High Court was therefore that a number of challenges had been made to the previous court martial and DFM system in Australia³⁵ and constitutional courts in the United Kingdom and Canada had ruled invalid a system akin to the Australian military justice system prior to the Australian Military Court.

Legal doctrinal implications of the decision

The decision in Lane will have an enduring impact upon the creation of new determination bodies, not just within the military context, but within all the Australian jurisdictions. At paragraph 26 of the joint judgment of French CJ and Gummow J, their Honours refer to the Courts of Marine Inquiry that existed under the repealed Navigation Act 1912 (Cth). Those ‘Courts’ were an example of the Commonwealth creating a body and calling it a ‘court’, without giving it Chapter III Constitutional status. Further, their Honours recognise that under other s 51 limbs, the legislature has been able to create bodies without seeking to endow that body with Chapter III powers³⁶. Their Honours discuss the concept of a ‘Court’ in paragraphs 21-27 of their reasons. It is noted that their Honours do not refer, as one of their examples, to the Judicial Committee of the Privy Council which retains its existence in the Commonwealth Constitution in s 74³⁷.

Policy implications of the decision

The Minister for Defence has already indicated that the intention will be to create a Chapter III Court as the institution that determines military justice. In a policy sense, how this is to occur is yet to be determined. It is noted that recommendations 18 and 19 of the 2005 Senate Report were as to the creation of a Chapter III Constitutional Court³⁸ – it is not clear why the creation of the Australian Military Court did not follow these recommendations. The amendments to the DFDA created a court of record and as stated above allowed for proceedings to be in public³⁹.

Conclusion

The Australian Military Court only went ‘half-way’ towards achieving Constitutional status in that it did not exist in a statutory sense as a Chapter III Court. If the decision is again to be taken to create a military justice system that is completely independent of ‘command’, then that system could potentially exist as part of the Federal Court of Australia. There are a number of Federal Magistrates and Federal Court Judges with strong military backgrounds, who have served in their previous lives as Judge Advocates. These existing Commonwealth Judicial Officers could be panelled to serve, as required, on military justice matters.

“If we don’t change direction soon, we’ll end up where we’re going.⁴⁰“

Dominic Katter

Footnotes

1 I am indebted to Mark Heiser, student-at-law, for his assistance as to the preparation of this article.

2 Ayn Rand (1905 – 1982), US (Russian-born) novelist: at http://www.quotationspage.com/quotes/Ayn_Rand/ (accessed on 28 September 2009 at 3:41pm)

3  The purpose of a half-way house is generally to allow those previously incarcerated people to begin the process of re-integration with society, while still providing monitoring and support: see http://www.encyclopedia.com/doc/1O999-halfwayhouse.html (accessed on 28 September 2009 at 4:56pm).

4  Lane v Morrison [2009] HCA 29 at [29] per French CJ and Gummow J.

5  See the recent Military Justice Review by Sir Laurence Street and Air Marshal Les Fisher (Retired) at: http://www.defence.gov.au/header/publications.htm#I, which itself was the result of the 2005 Senate Committee report ‘The Effectiveness of Australia’s Military Justice System’: http://www.defence.gov.au/media/DepartmentalTpl.cfm?CurrentId=8867 (accessed on 23 October 2009, 2:38pm).

6  See the June 2005, Foreign Affairs, Defence and Trade References Committee of the Senate, report titled: The Effectiveness of Australia’s Military Justice System .

7  Human Rights Act 1998 (UK).

8  Human Rights Act 1978 (Can).

9  [2009] HCA 29, [1]-[64].

10 Ibid [65]-[118].

11  The transitional provisions of the 2006 amendments to the DFDA meant that the 21 September 2007 referral of the Director of Military Prosecutions to a Court Martial, created a referral to the Military Court for trial: see Lane v Morrison [2009] HCA 29 at [3] and fn 3 per French CJ and Gummow J.

12 The Judicature.

13 Section 114 of the Act then relevantly stated:

“(1) A court, to be known as the Australian Military Court, is created by this Act.

Note 1: The Australian Military Court is not a court for the purposes of Chapter III of the Constitution.

Note 2: The Australian Military Court is a service tribunal for the purposes of this Act: see the definition of service tribunal in subsection 3(1).

(1A) The Australian Military Court is a court of record.

(2) The Australian Military Court consists of:

(a) the Chief Military Judge; and

(b) such other Military Judges as from time to time hold office in accordance with this Act.”

14  “Original jurisdiction of High Court

In all matters: … (v) in which a writ of Mandamus or prohibition or an injunction is sought against an officer of the Commonwealth;

the High Court shall have original jurisdiction.”

15 “Offences Based on Territory Offences …

(3) A person who is a defence member or a defence civilian is guilty of an offence if:

(a) the person engages in conduct outside the Jervis Bay Territory (whether or not in a public place); and

(b) engaging in that conduct would be a Territory offence, if it took place in the Jervis Bay Territory (whether or not in a public place).”

16 “Act of indecency without consent …

(2) A person who, acting in company with any other person, commits an act of indecency on, or in the presence of, another person without the consent of that other person and who knows that that other person does not consent, or who is reckless as to whether that other person consents, to the committing of the act of indecency is guilty of an offence punishable, on conviction, by imprisonment for 7 years.”

17 “Assaulting a superior officer

(1) A defence member is guilty of an offence if:

(a) the member assaults a person; and

(b) that person is a superior officer.

Maximum punishment: Imprisonment for 2 years.

(2) Strict liability applies to paragraph (1)(b).

Note: For strict liability, see section 6.1 of the Criminal Code .

(3) It is a defence if the member proves that he or she neither knew, nor could reasonably be expected to have known, that the person against whom the offence is alleged to have been committed was a superior officer.

Note: The defendant bears a legal burden in relation to the matter in subsection (3). See section 13.4 of the Criminal Code.”

18 As to the methods by which service can be concluded, see the Defence (Personnel) Regulations 2002 (Cth).

19 Lane v Morrison [2009] HCA 5 (16 January 2009) C3/2008 at [19]-[20] per French CJ.

20 [2009] HCA 29, [10] per French CJ, Gummow J.

21 Lane at [115] per Hayne, Heydon, Crennan, Kiefel and Bell JJ.

22 “71 Judicial power and Courts

The judicial power of the Commonwealth shall be vested in a Federal Supreme Court, to be called the High Court of Australia, and in such other federal courts as the Parliament creates, and in such other courts as it invests with federal jurisdiction. The High Court shall consist of a Chief Justice, and so many other Justices, not less than two, as the Parliament prescribes.”

23 “72 Judges’ appointment, tenure, and remuneration

The Justices of the High Court and of the other courts created by the Parliament:

(i) shall be appointed by the Governor ‑ General in Council;

(ii) shall not be removed except by the Governor ‑ General in Council, on an address from both Houses of the Parliament in the same session, praying for such removal on the ground of proved misbehaviour or incapacity;

(iii) shall receive such remuneration as the Parliament may fix; but the remuneration shall not be diminished during their continuance in office. …”

24 “122 Government of Territories

The Parliament may make laws for the government of any territory surrendered by any State to and accepted by the Commonwealth, or of any territory placed by the Queen under the authority of and accepted by the Commonwealth, or otherwise acquired by the Commonwealth, and may allow the representation of such territory in either House of the Parliament to the extent and on the terms which it thinks fit.”

25 “51 Legislative powers of the Parliament

The Parliament shall, subject to this Constitution, have power to make laws for the peace, order, and good government of the Commonwealth with respect to: …

(vi) the naval and military defence of the Commonwealth and of the several States, and the control of the forces to execute and maintain the laws of the Commonwealth; …”

26 Lane at [13] per French CJ and Gummow J.

27 (1945) 71 CLR 1, 23.

28 (2007) 231 CLR 570.

29 See (2007) 231 CLR 570, [239] per Callinan J.

30 [2009] HCA 29, [63] per French CJ and Gummow J.

31 (1997) 24 EHRR 221.

32 (2004) 39 EHRR 2.

33 See Lyon, After Findlay: A Consideration of Some Aspects of the Military Justice System in Eugene R. Fidell & Dwight H. Sullivan (eds.), Evolving Military Justice (2002).

34 [1992] 1 SCR 259.

35 See White; Re Aird; Ex parte Alpert (2004) 220 CLR 308; Re Tyler; Ex parte Foley (1994) 181 CLR 18; Re Nolan; Ex parte Young (1991) 172 CLR 460; and Re Tracey; Ex parte Ryan (1989) 166 CLR 518.

36 See R v Turner; Ex parte Marine Board of Hobart (1927) 39 CLR 411, 424, 454 per Knox CJ, Gavan Duffy, Rich, Starke and Powers JJ; Lane v Morrison [2009] HCA 29 at [26] per French CJ and Gummow J.

37 Appeal to Queen in Council [see Note 12]

No appeal shall be permitted to the Queen in Council from a decision of the High Court upon any question, howsoever arising, as to the limits inter se of the Constitutional powers of the Commonwealth and those of any State or States, or as to the limits inter se of the Constitutional powers of any two or more States, unless the High Court shall certify that the question is one which ought to be determined by Her Majesty in Council.

The High Court may so certify if satisfied that for any special reason the certificate should be granted, and thereupon an appeal shall lie to Her Majesty in Council on the question without further leave.

Except as provided in this section, this Constitution shall not impair any right which the Queen may be pleased to exercise by virtue of Her Royal prerogative to grant special leave of appeal from the High Court to Her Majesty in Council. The Parliament may make laws limiting the matters in which such leave may be asked, but proposed laws containing any such limitation shall be reserved by the Governor ‑ General for Her Majesty’s pleasure.

38 Lane v Morrison [2009] HCA 29 at [17] per French CJ and Gummow J.

39 Lane v Morrison [2009] HCA 29 at [20] per French CJ and Gummow J.

40 Professor Irwin Corey (1914 – ) American vaudeville comic and actor at: http://www.quotationspage.com/quotes/Professor_Irwin_Corey/ (accessed on 28 September 2009 at 3:51pm)