Issue 41: May 2010 Archives

CIVIL APPEALS

Queensland Bulk Water Supply Authority t/a Seqwater v McDonald Keen Group P/L (in liq) & Anor [2010] QCA 007 Holmes JA Fraser JA Fryberg J 5/02/2010

General Civil Appeal from the Supreme Court, Trial Division — Contracts — Building, Engineering and Related Contracts — Remuneration — Statutory Regulation of Entitlement to and Recovery of Progress Payments — The respondent McDonald Keen Group (MKG) was the successful tenderer for construction of a water pipeline — It made a payment claim under the Building and Construction Industry Payments Act 2004 (Qld) (BCIPA) in respect of excavation of rock which it claimed was a “latent condition” within the contract — The claim was adjudicated with an amount determined of $11 million as the amount of the progress payment to be made by the appellant, Queensland Bulk Water Supply Authority (QBWSA) to MKG — Under s 31 of the Act MKG filed the adjudication certificate as a judgment — The learned judge at first instance dismissed QBWSA’s application seeking a declaration that the adjudication decision was void and an order setting aside the judgment — On Appeal — MKG had quoted a rate of $250 (presumably per cubic metre), with a total of $25,000 — By facsimile (a document which QBWSA says the adjudicator impermissibly treated as a contractual document), QBWSA, through its project manager, advised that the tender was non-conforming because of its inclusion of the provisional sum, with the facsimile continuing “Adequate information has been provided in the documentation to allow this activity to be priced as a lump sum.” — MKG responded by letter with QBWSA accepting the tender — The adjudicator did not characterise the facsimile as resulting in a new contract on different terms from those of the construction contract, but as an invitation to re-tender containing a relevant representation — The learned judge considered that the adjudicator had referred to the facsimile as a matter relevant to the application of the latent condition test for the purposes of the relevant clause — The adjudicator regarded the facsimile, and its representation to the adequacy of the geotechnical report as a basis for pricing, as relevant to what a reasonable and competent operator should have anticipated and thus relevant to the application of the contract — As the learned primary judge, correctly, with some respect observed, it was not to the point to ask whether a court would have come to the same conclusion as the adjudicator; the question was whether he had arrived at his conclusion by a process which failed to consider the matters set out in s 26(2) of the Act — The evidence which he had relied on was within the range of the considerations identified in that section — HELD: Appeal dismissed with costs.

Bradshaw v Henderson & Anor [2010] QCA 008 Holmes JA Atkinson J Fryberg J 5/02/2010

Application for Extension of Time from the District Court — Practice and Procedure — Time for Appeal — The claim at first instance was for specific performance of a contract for the sale by Winstanley to the first respondent, Bradshaw, of his interest in a sub-lease of a marina berth, with an alternative claim for damages for breach of contract — On 5 February 2009 damages were awarded for Bradshaw for the sum of $14,000 with $6,800 interest with an associated order for costs of 27 February 2009 that Winstanley pay the costs of both Bradshaw and Henderson (the second respondent) — The learned trial judge accepted that Henderson had acted as agent for Winstanley, who was the sub-lessee of the marina berth — Bradshaw had responded to an advertisement for sale of the berth which Henderson had placed at the marina — Bradshaw and Henderson met and agreed on a purchase price of $30,000, with Henderson providing Bradshaw a receipt for the sum of $1,000 which was expressed to be for: “Deposit…Marina Berth…” — The receipt was dated 3 January 2003 — The trial judge accepted Bradshaw’s evidence on the point that he had made repeated unsuccessful attempts to contact Mr Winstanley to complete a settlement date — In April 2003 Winstanley informed Henderson to give up on the transaction and send the deposit back — On 21 April Henderson wrote a letter to Bradshaw enclosing a cheque in the amount of the deposit with a note with the following explanation “The sale of the berth cannot be completed, as the owner is unavailable…” — On Appeal — Bradshaw suffers from some unspecified medical conditions — On 24 February 2009 Winstanley telephoned a solicitor who had acted for him previously who advised him of the procedure for appealing the decision — Winstanley found for himself the relevant provisions under the Uniform Civil Procedure Rules 1999 (Qld) — The application for leave was filed on 9 April 2009 — On 11 March 2009 Bradshaw’s solicitors obtained an injunction restraining Winstanley from dealing with the sub-lease — That course of events explains the delay on Winstanley’s part between 24 February 2009 and 10 March 2009 — The inference to be drawn was that Winstanley had decided an appeal after considering the UCPR provisions, and changed that decision when it became apparent that he was not going to be able to dispose of the marina berth — Winstanley could not demonstrate any error in the learned judge’s conclusion that the circumstances fell within the second of the three categories in Masters v Cameron (1954) 91 CLR 353, the parties having agreed the necessary terms, but having made their performance conditional upon the execution of a formal document — Winstanley sought to argue that if there were any interest in land the contract was one for its sale or disposition that would attract s 59 of the Property Law Act 1974 (Qld) — The difficulty for Winstanley was the paucity of evidence about the berth — The sub-lease itself was ambivalent as to what the berth consisted of, whether it was the pontoon or the adjacent water or both — HELD: Application dismissed with costs.

Sica v Director of Public Prosecutions (Qld) [2010] QCA 018 Chief Justice Keane JA Chesterman JA 16/02/2010

Appeal from Bail Application from the Supreme Court, Trial Division — Jurisdiction, Practice and Procedure — Bail — Before Trial — From Second Bail Application — The appellant was arrested and charged with the murder of three siblings — On 2 January 2009 the applicant applied for bail which was dismissed — On 19 November 2009 the appellant made a second bail application which was dismissed — On Appeal — Delay is, obviously, of considerable importance in cases of this kind — It is possible to in this case to conclude that the reason for the delay and the length of the committal hearing is the responsibility of the appellant — The prosecution case is a circumstantial case and the circumstances are few in number and small in content — How the appellant and his lawyers conduct the preliminary hearing is a matter for them, but if they choose, as they appear to have done, to use it for the appellant to identify other possible suspects for the murders, and in a manner so extravagant of time, thereby prolonging proceedings, any complaint of delay loses most of its force — The appellant has a relevant criminal history — In 1993 he was convicted in the District Court of numerous charges including arson of a building and attempted arson and was sentenced to nine years’ imprisonment with parole recommended after three years — He was released on parole in 1996 but in 1998 he was again dealt with in the District Court on a charge of attempted arson and sentenced to a further term of imprisonment — In relation to the 1993 offences the appellant and others sought to destroy evidence which might implicate them in an earlier offence by setting fire to the Ashgrove police station and destroying it — The attempted arson in 1997 had its origin in some enmity between the appellant, his co-accused and a man they both encountered in prison — Weeks prior to the murders the appellant and Mr Singh (the father of the three siblings) were engaged in a bitter physical confrontation in which the appellant made threats against Singh’s life and assaulted him, though not seriously — A listening device was concealed in the appellant’s home in 2006 which recorded a conversation between the appellant and his parents in which they discussed the possibility that he leave the state to avoid being served with a summons in connection with the murders — He did not in fact leave the jurisdiction — The appellant is 40 years of age and has lived in Queensland since he was 14 — He is married, has a daughter and has two teenage children from a previous relationship — His parents have offered a surety for the appellant’s appearance at trial, if granted bail, in the sum of $900,000 — There is a legislative presumption against the granting of bail in cases of murder — If the risk that the appellant might not appear is sufficient to justify his continued detention then he should be detained — The matter is incapable of precise expression or definition — As the primary judge pointed out a number of the appellant’s previous convictions, for serious offences, involved the destruction of buildings in an attempt to destroy incriminating evidence against him, and retaliation against persons whom he disliked or who had participated in the investigation of his criminal activity — His Honour’s concern for this aspect of the case appears entirely justified — HELD: Appeal dismissed.

CAR & Anor v Department of Child Safety [2010] QCA 027 Muir JA Fraser JA Chesterman JA 23/02/2010

General Civil Appeal from the District Court — Family Law and Child Welfare — Children in Need of Protection — Proceedings Related to Care and Protection — Parent’s and Children’s Right to be Heard — The Chief Executive of the respondent Department was granted custody of the applicant’s child KVS under a temporary assessment order made on 22 December 2009, the day the child was born — On 8 January 2010 a Magistrate constituting the Childrens Court adjourned until 26 February 2010 the Department’s application for a child protection order seeking that long term guardianship of the child be granted to the Chief Executive — The Magistrate refused the Department’s application for an interim order under the Child Protection Act 1999 (Qld) granting the Chief Executive temporary custody of the applicant’s child for the period of the adjournment — Later on 8 January the Department made an oral, ex parte application by way of appeal to the Children’s Court — The application was heard over the telephone during the evening, so the Department’s solicitor informed this Court, Martin DCJ considered that it was appropriate to proceed ex parte, he heard and determined the matter, and allowed the Department’s appeal and made the orders that the Department sought for temporary custody of the child, and directing that the child’s father not have any contact with the child, and directing that the child’s mother not have any contact with the child other than when accompanied by a person authorised by the Department — Those interim orders were to remain in effect until the hearing in the Childrens Court on 26 February 2010 — On Appeal — The effect of those orders is significant, as they might remain in force for a lengthy period with the Department’s solicitor informing the Court that this matter will be mentioned on 26 February 2010 but that the final hearing will likely not occur for some considerable time after mention — The principle “audi alteram partem”, that a person against whom a claim or charge is made should be given a reasonable opportunity of appearing and presenting that person’s case in opposition to the claim or charge, has been described as a “fundamental” and “deep-rooted” principle of natural justice which is applicable to all courts: whilst that principle may be displaced by legislation, it will be displaced only by clear words — Section 118 of the Act provides that an appeal is started by filing a written notice of appeal with the registrar of the appellate court and that the appellant must serve a copy of the notice on the other persons entitled to appeal — The Department was unable to identify any source of power in the judge to overlook the apparently mandatory requirements — The judge erred in determining the appeal without notice to the applicants, however the evidence certainly justified the judge’s concern that the best interests of the child were served by an interim order — Affidavit evidence filed on behalf of the Department before the Magistrate, a copy of which was said by the District Court judge to have been given to him at the ex parte hearing of the appeal, identified in very considerable detail the numerous bases for the concerns which had provoked the Department’s application — This material included that the three older children of the applicants had been placed in care; the applicant mother suffered a long standing mental illness; the applicant father has a very extensive criminal record which includes violent offences, including violent sexual offences; and at one stage the applicant mother took one of their children to another state, where the applicants were found with the child only when there was a report to authorities of an alleged domestic violence incident — The Department appears not to have conducted a thorough assessment of the suitability of the applicants for a very long time — It may be that it was justified in that approach by perceived non-cooperation by the applicants, but that topic seems not to have been fully explored in the evidence — HELD: (briefly) Allow the appeal, Set aside those orders of the Childrens Court constituted by a judge of the District Court and instead order: Grant the Department an extension of time to 26 February 2010 to file a notice of appeal in the Childrens Court constituted by a judge of the District Court from the orders made by the Childrens Court constituted by a Magistrate on 8 January 2010; Order that the order made by Childrens Court constituted by the Magistrate be stayed, Temporary custody be granted to the Chief Executive, (with relevant contact and non-contact orders) that the orders above remain in force until 4 pm on Friday 26 February 2010 or until such other time as may be ordered by the Childrens Court, being a time no later than the determination of the Department’s appeal to the Childrens Court constituted by a judge of the District Court.

Aurukun Shire Council & Anor v CEO Office of Liquor Gaming and Racing in the Department of Treasury [2010] QCA 037 McMurdo P Keane JA Philippides J 1/03/2010 General Civil Appeals from the Supreme Court, Trial Division — Human Rights — Racial Discrimination — On Appeal — The issue which arises for consideration in these appeals is whether s 10 of the Racial Discrimination Act 1975 (Cth) (RDA) denies legal effect to amendments made in 2008 to the Liquor Act 1992 (Qld) — By those amendments, the general liquor licence held by each of the appellants was brought to an end on 1 July 2008, and the appellants, together with all other local government authorities in Queensland, were barred from applying for or holding such a licence — Each of the appellants is a local government authority — The RDA is intended to give effect to Australia’s obligations under the United Nations International Convention on the Elimination of All Forms of Racial Discrimination (CERD) — It may be accepted that the legislative removal of the supply of alcohol from the functions of local government in Queensland will have the effect of restricting the local availability of alcohol in the appellants’ communities, at least for so long as other licensed suppliers of alcohol do not seek to meet local demand for alcohol — The effect of the amending Act is that no-one in Queensland has a right to obtain alcohol from one’s local government — The amending Act simply does not engage s 10 of the RDA — The application of s 10 of the RDA requires the identification of a right enumerated in Article 5 of CERD or a right of that kind as expressly contemplated by s 10(2) of the RDA — A licence to sell alcohol and the opportunity to have access to and use a local supplier of alcohol is simply not a human right or fundamental freedom of the kind described in CERD — Gerhardy v Brown (1985) 159 CLR 70 obliges a court to seek to determine whether domestic laws said to attract the operation of s 10 of the RDA are concerned with human rights of the kind referred to in CERD — Bropho v Western Australia (2008) 169 FCR 59 confirmed that where human rights and fundamental freedoms of the kind referred to in CERD are in tension it is for the local legislature to give expression to the appropriate balance — It may be said that the Queensland legislature was entitled, if not obliged, to address the claims of women and children in Aurukun and Kowanyama under Article 5(b) of CERD — It is difficult to accept that the opportunity to buy alcohol from a licensed local government authority can rationally be placed on the same level of importance in any frame of reference with the right of women and children to live free of alcohol-fuelled violence — The Court should recognise that its ability to set aside the political judgment of the legislature is necessarily confined to cases where the balance struck by the legislature is demonstrably unreasonable in the sense that no reasonable legislature could have struck that balance — Section 10 of the RDA is concerned to ensure that the rights and duties created by legislation apply generally, without distinction on the ground of race — The amending Act simply provides that the licensed supply of alcohol shall no longer be a function of local government and applies in the same terms throughout the State — Whether or not the residents of Aurukun and Kowanyama have access to a local licensed supplier of alcohol to the same extent as other Queenslanders depends on the forces of supply and demand — Section 10(1) of the RDA is concerned with the effect of laws upon persons of a particular race — It can only be concerned with natural persons, with the appellants being outside the scope of s 10(1) of the RDA — The amending Act can be seen as a special measure within the meaning of s 8 of the RDA — The amending Act was introduced after extensive consultations with the affected parties — A political judgment that if the local government authorities such as the appellants are to be part of the solution, they must not continue to be part of the problem is one which could reasonably be made by the Queensland legislature — HELD: Appeals dismissed.

Noonan v MacLennan & Anor [2010] QCA 050 Keane JA Holmes JA Chesterman JA 12/03/2010 Application for Leave from the District Court — Limitation of Actions — Extension or Postponement of Limitation Periods — Noonan is the plaintiff in an action for damages for defamation arising out of the publication of an article in “The Australian” newspaper on 11 April 2007 — The defendants were at all material times staff members of the Queensland University of Technology (QUT) — The article in “The Australian” repeated the defendants’ criticisms of Noonan’s PhD thesis — These criticisms are alleged to be defamatory — On 21 August 2009 the learned primary judge granted Noonan’s application to extend the date for bringing an action until 18 June 2009, and his Honour dismissed the defendants’ cross-application for judgment in the action based on the limitation defence pleaded by them — Section 10AA of the Limitation of Actions Act 2005 (Qld) provides that an action on a cause of action must not be brought after the end of one year from the date of publication of the matter complained of, however s 32A of the Act provides that the Court may order an extension of time if it was not reasonable to commence an action during that period — On Appeal — The burden is on a plaintiff to point to circumstances which make it not reasonable to seek to enforce his or her legal rights in the way required by law — On the reading of s 32A(2) which was favoured by Dutney J in Robertson v Hollings (unreported) there was no evidence by which Noonan could have satisfied the court that the commencement of proceedings before the end of the year after 11 April 2007 was not reasonable — The test posed by s 32A(2) is an objective one — When s 32A(2) refers to “the circumstances”, it means the circumstances as they appear objectively to the court and not “the circumstances which the plaintiff believed, however unreasonably, to exist” — Mere ignorance of the strict time limits fixed by the Act cannot afford a reasonable basis for not complying with them — Noonan was under no disadvantage which might have impeded his ability to ascertain, and comply with, the applicable time limit in this case — The grievance procedure through QUT concluded at the end of October 2007 — Noonan was informed at that time he was entitled to pursue an action for defamation against the defendants — Noonan decided to commence an action in February 2008 — Objectively speaking, he had ample opportunity to do so before 11 April 2008 — Noonan’s evident assumption that he did not need to seek legal advice about the action was not a reasonable one, at least in the absence of any attempt on his part to inform himself of the law relating to his proposed action — HELD: Leave to appeal granted, Appeal allowed, Decision below set aside with judgment given for the defendants against the plaintiff and costs.

Hartnett v Hynes [2010] QCA 065 Muir JA Daubney J P Lyons J 23/03/2010 General Civil Appeal from the Supreme Court, Trial Division — Civil Procedure — Pleadings and Amendment — Originating Process and Pleadings — The appellant appealed against an order refusing leave to the appellant to amend his statement of claim in certain respects — An original statement of claim was filed on 3 September 2007 — The appellant and respondent had carried on a partnership business of solicitors and migration agents which was dissolved on 3 September 2001 — Before the matter came before the primary judge the appellant had delivered a number of redrafts of the statement of claim to the respondent and there had been at least four interlocutory hearings, concerning, amongst other things, disclosure and the pleadings — On Appeal — Paragraph 7F of the Third Amended Statement of Claim provided that the defendant did not invoice certain clients of the Partnership for unbilled work in progress…and sought Particulars in this regard — The breaches of clause 2 in the dissolution agreement (unbilled work) and of the implied term in paragraph 6(a) have been alleged from the time of the original pleading — Reliance on those breaches could not have caused paragraph 7F to raise a new cause of action — The unqualified finding by the primary judge that paragraph 7F pleaded a new cause of action was erroneous — Paragraphs 7G (issuing credit notes) and 7H (writing off sums owing to the partnership) of the TASC are closely related to the allegation that the respondent failed to collect moneys — If the allegations are made out, they will show that the respondent took actions which ensured that relevant moneys could not be collected — Paragraphs 7G and 7H probably go beyond particularising or restating a pre-existing claim and thus contribute to the pleading of new causes of action — However, they are causes of action which arise out of the same facts or substantially the same facts, as the causes of action pleaded in the original statement of claim — Of considerable relevance to the exercise of the discretion is the fact that these paragraphs received, in effect, the imprimatur of a trial division judge at an earlier interlocutory hearing, less than a year after the commencement of the proceedings — It was wrong to describe the pleadings under consideration as “recently formulated” and the primary judge erred in this regard — The 73 page schedule provides very few particulars of the allegations in 7G and 7H and those particulars do not purport to be complete — This lack of particularity was justified by counsel for the appellant on the basis of the continuing disputes over disclosure — If the appellant does not comply with the Order and the particulars are inadequate, prompt application can be made by the respondent to strike out any allegations which are insufficiently particularised — No change to the costs order at first instance as the appellant obtained an indulgence from the Court — HELD: Appeal allowed, Paragraphs 1 and 9 of the orders and directions made on 10 September be set aside and that “machinery orders” be put in their place, costs of the appeal to be costs in the cause, the costs at first instance remain.

Multi-Service Group Pty Ltd (in liq) & Anor v Osborne & Anor [2010] QCA 072 McMurdo P Muir JA Daubney J 26/03/2010 General Civil Appeal from the Supreme Court, Trial Division — Procedure — Supreme Court Procedure — Procedure Under Rules of Court — Judgments and Orders — The appellant company in liquidation and the appellant liquidator (the liquidator) appeal against the order by the primary judge in each of the proceedings that the appellants’ “application for reactivation” of the proceeding be refused — Two actions were commenced by the appellants seeking recovery of moneys with allegations of MSG being insolvent and failing to keep financial records correctly recording and explaining its transactions and financial position — Osborne had been the former managing director of Multi-Service Group Pty Ltd (MSG) and Gro Services Pty Ltd (GRO) was the corporate trustee of the Osborne Family Trust — The primary judge made an order dated 30 May 2008 containing comprehensive directions for the future progress of the action with specific dates as to when events were to occur — There was extensive non-compliance with the requirements of the Order and the appellants were not in a position to serve a request for trial date by 15 May 2009, as required by the Order — On 22 May 2009 a Deputy Registrar made an order in each proceeding that “The matter is deemed resolved” as provided for in the Order of 30 May 2008 (“16. By 22 May 2009…or the matter be deemed resolved.”) — The Deputy Registrar’s order was made before the expiration of the time stipulated by the Order — On Appeal — It is implicit in paragraph 5.4 of Practice Direction No 4 of 2002 that as long as a proceeding is “deemed resolved” no steps may be taken in it but that the proceeding nevertheless continues in existence and is susceptible to reactivation — A deemed resolution of a proceeding thus results in something akin to the placing of the proceeding on an abeyance list — The primary judge treated the application for reactivation as akin to an application for dismissal for want of prosecution or to an application for leave to proceed under r 389 of the Uniform Civil Procedure Rules 1999 (Qld) — There being no serious question that the appellants lacked an arguable case the focus of the primary judge on the application for reactivation should have been on the matters identified in paragraph 5.4 of the Practice Direction, namely whether the appellants had explained and justified the circumstances in which the proceeding was deemed resolved and prepared a plan to facilitate its timely determination — The primary judge erred in her implicit conclusion that the Liquidator did not face a complex and time consuming task in disentangling the financial affairs of MSG — The primary judge failed to consider the prospects of success of the appellants’ claims — The appellants’ evidence establish that: their claims were, at the very least, fairly arguable, a trial could take place in the reasonably near future, they had a plan to facilitate the timely determination of the proceedings and that they were in a position to prosecute their claim diligently and in accordance with the Rules — It is not ordered that the respondents pay the appellants’ costs at first instance, as the genesis of the applications before the primary judge was the extensive default and cavalier conduct of the appellants — HELD: Appeals allowed, Orders of the primary judge set aside, Proceedings be reactivated, costs.

Barkworth Olives Management Ltd v Deputy Commissioner of Taxation [2010] QCA 080 McMurdo P Fraser JA P Lyons J 9/04/2010

AG(CQ) P/L v A&T Promotions P/L & Anor [2010] QCA 083 McMurdo P Holmes JA McMeekin J 13/04/2010

Medical Board of Queensland v Freeman [2010] QCA 093 Holmes JA Muir JA Fraser JA 23/04/2010

Jiona Investments Pty Ltd & Ors v Medihelp General Practice Pty Limited [2010] QCA 099 Muir JA Atkinson J Ann Lyons J 30/04/2010

CRIMINAL APPEALS

R v Ruha, Ruha & Harris; ex parte Cth DPP [2010] QCA 010 Keane JA Fraser JA Atkinson J 9/02/2010

Sentence Appeal by Cth DPP from the District Court — Grounds for Interference — Sentence Manifestly Excessive or Inadequate — The respondents pleaded guilty to an offence against s 135.4(3) of the Criminal Code 1995 (Cth), namely causing a loss to the Commissioner of Taxation — The respondents conspired together to defraud the Commonwealth by lodging false refunds for Goods and Services Tax with the Australian Taxation Office — Roland and Wikitoria Ruha were married, Harris was their cousin — Roland and Wikitoria Ruha were sentenced to a term of imprisonment of three years and it was ordered that they be released after serving 12 months of that term upon giving security by recognizance in the sum of $1,000 conditioned upon good behaviour for a total of three years — Harris was sentenced to a term of six months imprisonment with similar consequential orders — Each respondent was also ordered to pay $138,551.37 to the Commissioner of Taxation, each respondent being jointly and severally liable for that payment — On Appeal — The periods of imprisonment imposed by the sentencing judge in each case were as sought by the appellant and accepted as appropriate by each of the respondents — What was controversial was the time to be served in actual custody by each of the respondents — The prosecutor’s approach on appeal reflected the principle that in an appeal against sentence by the Crown, the Court will ordinarily not impose a more severe sentence than was imposed below if the increase is sought on the basis of a submission which was not made by the prosecutor at the sentence hearing — It is relevant to note in these appeals that the necessary deterrent and punitive effects of sentences for serious tax fraud must be reflected both in the head sentence and also in any provision for earlier release from custody — There can be no “mechanistic or formulaic” approach which requires sentencing judges to ensure that the proportion which the pre-release period bears to the sentence of imprisonment must or must usually fall within a range which is substantially narrower than the whole period of imprisonment, which is the range the statute expressly contemplates for recognizance release orders — If there are authoritative sentencing decisions of the courts of this State or the other States and the Territories which concern comparable circumstances the sentencing court should take those decisions into account in affording weight to the generally desirable aim of imposing like orders in like cases — Though there were differences in each respondent’s criminality, in each case it was of a high order — The respondents’ conspiracy was pre-meditated and persisted for nearly two years — Examination of decisions determine that Roland and Wikitoria Ruhas’ offending required that he and she serve a substantially longer minimum period of imprisonment than 12 months — Proper punishment requires that Harris serve the minimum period of 12 months in custody before release on recognizance — HELD: For Roland and Wikitoria Ruha, the order for release on recognizance be varied by substituting the period of 18 months imprisonment for the period of 12 months imprisonment, and for Harris the period of 12 months imprisonment is substituted for the period of six months imprisonment, otherwise confirm the sentences and orders.

R v Fidler [2010] QCA 025 Holmes JA Muir JA Chesterman JA 23/02/2010

Sentence Application from the District Court — Grounds for Interference — Sentence Manifestly Excessive — The applicant was convicted on her own pleas of guilty of 12 counts of dishonestly obtaining, and one count of attempting to obtain, a financial advantage by deception — All of the offences concerned breaching s 134.2(1) of the Criminal Code 1995 (Cth) by fraudulently obtaining or attempting to obtain fuel grant monies under the Energy Grants Credit Scheme through the lodgement of false claims — The applicant was sentenced to imprisonment for 36 months “on each indictment” to be released after serving 18 months upon her entering into a recognizance in the sum of $500 to be of good behaviour for a period of five years, and a reparation order in the sum of $174,609.47 was made in favour of the Commonwealth of Australia — On Appeal — The applicant who was self-represented did not challenge the appropriateness of the head sentences — A court exercising its discretion must have regard to all relevant circumstances and not, in effect, abdicate its responsibilities by the mechanical application of a pre-determined formula — Attempts to prescribe the circumstances in which departure from a perceived sentencing norm or practice is justified may assist in improving consistency of sentencing but are likely to discourage the proper exercise of the sentencing discretion by reference to all relevant considerations — The primary judge failed to impose a separate sentence for each offence on each indictment or to impose a head sentence for one offence on each indictment which reflected the applicant’s criminality — The primary judge imposed one sentence for all offences on each indictment — Counsel for the respondent accepted that this was impermissible and that it was thus necessary for this Court to exercise the sentencing discretion afresh — The applicant’s pleas of guilty were early, she is in very bad health and has pronounced psychiatric disabilities which partially explain her aberrant behaviour — HELD: Application for leave to appeal allowed, Appeal allowed, For count 1 on each indictment the applicant be sentenced to three years imprisonment, to be released after serving 12 months imprisonment, upon her entering into one recognizance in the sum of $500, to be of good behaviour for a period of five years, The terms of imprisonment to be concurrent and Convictions recorded but no further penalty imposed in respect of the other counts on the indictments.

R v Colless [2010] QCA 026 Chief Justice Holmes JA Muir JA 23/02/2010

Sentence Application from the District Court — Grounds for Interference — Sentence Manifestly Excessive or Inadequate — The applicant pleaded guilty to a series of sexual offences committed on 11 women over a 27 month period covering the years 2006-2007 — The offences included five instances of digital rape — For each of those rapes, the applicant was sentenced to 25 years imprisonment, of which he must serve at least 15 years (s 161A(a) Penalties and Sentences Act 1992 (Qld); s 182(2)(b) Corrective Services Act 2006 (Qld) — The learned Judge concluded that this did not fall into the worst category of such offending, such as to warrant the imposition of the maximum penalty — On Appeal — Previous appellate authority does not provide any definitive assistance in determining the appropriate penalty in this case — In support of the sentence imposed, the respondent relied on the learned Judge’s view that this case was more serious than R v Buckley [2008] QCA 45 — While the present applicant violated more victims, Buckley’s conduct displayed a persisting, sadistic brutality of an order which far surpasses that exhibited by the applicant — Also, Buckley was guilty of penile penetration, of both the vagina and anus — The repetitive extent of the applicant’s offending could reasonably be seen to minimize the significance of the circumstances that the rapes were digital not penile — The feature which critically distinguishes this case from those relied on by the Crown is the substantial number of complainants (11) and the prolonged period (27 months) over which the offending occurred, and that on the applicant’s admission, he would not have stopped but for his being apprehended — There were substantial mitigating circumstances: the applicant’s cooperation with the authorities from an early stage, including his confession to the crimes, saving an even more substantial police investigation; his genuine remorse; the early intimation of his intention to plead guilty, and his doing so, saving the resources of the State, and highly significantly, removing any prospect of the complainants having to give evidence and be subjected to cross-examination thereby re-living their appalling experience; the fact that without his confessions, convictions might not have been obtained on some of the counts; the absence of any prior criminal history and the applicant’s promising prospects of rehabilitation — The 25 year sentences for the rapes were manifestly excessive, and should be set aside — The effectiveness of his rehabilitation, having completed the sexual offender behaviour program, will obviously bear on the question whether at a future time recourse need be had to the mechanisms of the Dangerous Prisoners (Sexual Offenders) Act 2003 — HELD: Application for leave granted; Allow the appeal; Set aside the sentences of 25 years imprisonment and substitute sentences of 16 years imprisonment; Otherwise confirm the orders then made.

R v Dodd [2010] QCA 031 McMurdo P Muir JA Douglas J 26/02/2010

Sentence Application from the District Court — Grounds for Interference — Sentence Manifestly Excessive or Inadequate — The applicant pleaded guilty to one count of entering premises with intent to commit an indictable offence and one count of serious assault — An incident had arisen over the alleged distribution of inappropriate photographs of the cousin of Dodd’s girlfriend — He was sentenced to two years probation with convictions recorded — Originally Dodd had been sentenced in the Magistrates Court to two years probation with no conviction recorded and an order to pay the complainant $300 — The magistrate subsequently re-opened the sentencing proceedings and determined that she did not have jurisdiction — The matter then came to the District Court for sentence on an ex officio indictment — In sentencing the judge noted that Dodd had no previous convictions and that the offences were clearly out of character — Her Honour then stated: “All right. Well, in your case a conviction is recored.” — On Appeal — The transcript of the sentencing proceeding suggests that the judge did not give patent consideration to whether or not convictions should be recorded — Neither counsel made submissions on the issue, probably because they both assumed that, as convictions were not recorded when the sentence was originally imposed in the Magistrates Court, convictions would not be imposed in the District Court — With hindsight, that was a brave assumption — The judge did not articulate any reasons for recording convictions — This Court should now re-exercise the discretion — Dodd was a relatively young man, had a supportive upbringing, no prior convictions, an excellent work history and pleaded guilty at an early time, along with other relevant factors — The question of whether or not to record convictions in this case is finely balanced because of the serious nature of Dodd’s offending and the many factors in Dodd’s favour — His commission of these offences seems completely out of character and at a time when his life was at a low ebb — If the decision to not record convictions turns out to be misplaced and Dodd re-offends in any significant way during the two year probation period he is presently undertaking, he will be dealt with by the courts with the likely consequence of then having convictions recorded for these offences — HELD: Application granted, appeal allowed only to the extent of setting aside the order that a conviction is recorded on each offence, instead ordering that no conviction is recorded on each count.

R v Byrne [2010] QCA 033 McMurdo P Keane JA Douglas J 26/02/2010

Sentence Application from the Supreme Court, Trial Division — Grounds for Interference — Sentence Manifestly Excessive or Inadequate — The applicant pleaded guilty to fraud under the Criminal Code (Qld) and dealing in proceeds of crime in excess of $1,000,000 under the Criminal Code (Cth) — He was sentenced to three and a half years imprisonment on the Queensland offence and six years imprisonment with a non-parole period fixed after three and a half years for the Commonwealth offence — At sentence he was legally represented — On 15 October 2007 Byrne had pretended to be a customer of the Commonwealth Bank and withdrew $1.38 million from a term deposit account in the customer’s name and transferred it to the customer’s transaction account — The next day Byrne went to the same bank and completed documentation to enable the money to be telegraphically transferred to an account in Hong Kong — The primary judge noted that Byrne must have been aware that what he was doing was “of a serious criminal nature” and his conduct “was extravagant, it was bold, it was brazen, it was deliberate, it was planned” — On Appeal — In this Court, as Byrne was self-represented, his reasoning processes were exposed in his lengthy oral submissions and in his discussions with the judges — His reasoning processes were somewhat impaired — There is no evidence that he was not of sound mind when he committed the offences or when he pleaded guilty — It was considered that he probably was a vulnerable pawn cynically used by others — The assessment of him, having interacted with him in this Court, is that his reasoning processes and functionality are far from completely normal so that his culpability for his offending is less than it would be otherwise — Both he and the community would benefit from him being subject to the supervision available under a lengthy parole period — HELD: Application granted, Appeal allowed only to the extend of deleting the non-parole period being fixed at three years and six months and substituting an order that the non-parole period be fixed at 18 months.

R v Corr; ex parte A-G (Qld) [2010] QCA 040 McMurdo P Muir JA Douglas J 5/03/2010

R v CAU [2010] QCA 046 McMurdo P Fraser JA Douglas J 12/03/2010

Hayes v Surfers Paradise Rock and Roll Cafe P/L & Anor [2010] QCA 048 McMurdo P Fraser JA Chesterman JA 12/03/2010

R v McCosker [2010] QCA 052 Keane JA Holmes JA Chesterman JA 19/03/2010

R v Pham [2010] QCA 088 Holmes JA Chesterman JA Atkinson J 20/04/2010

R v Cruz; ex parte Cth DPP [2010] QCA 090 Holmes JA Muir JA Chesterman JA 23/04/2010

R v SBR [2010] QCA 094 McMurdo P Holmes JA Muir JA 30/04/2010

R v Hayes [2010] QCA 096 Holmes JA Chesterman JA Ann Lyons J 30/04/2010

The book is divided up into three parts those being Part 1 the Context, Part 2 Probing the Details and Part 3 the conclusions. Within those three parts are eleven chapters ranging from the constitutional framework to military callout legislation to global trends and democratic implications.

The book follows in essence, the development of the military callout powers that were introduced into and passed by the Commonwealth Parliament in 2000 and 2006. It examines issues and potential issues that have been raised as a result of the legislation that has been passed.

It traces the historical use of and deployment of the troops over the last couple of centuries with particular emphasis upon the use of troops within Australia. It also analyses and comments upon several High Court cases in relation to the use of troops during peace time. The book covers at length the High Court case of Thomas v Mowbray3 and the ramifications, real and potential, of that case for the Australian Defence Force and the extension of powers.

The author covers areas where the military have been more recently used in civilian areas within Australia such as the Sydney Olympics, the Rugby World Cup, the Melbourne Commonwealth Games and the Northern Territory Aboriginal Intervention.

Topically, the navy are being used in relation to asylum seekers and the author specifically refers to and analyses the Tampa operation and the subsequent legal proceedings associated with it.

The book also covers at length the “War on Terror” which has been conducted since the attacks in New York and Washington in September 2001. It comments upon the way in which the Australian Defence Force is increasingly becoming more integrated with civilian counter terrorism structures4. The author also specifically addresses the role of the Australian Defence Force and its deployments in the Middle East and the Pacific, especially, in the post 9/11 context.

Professor Head examines the significant impact the relatively new legislation has had, generally, upon the rights of the individual and the further ways in which it might impinge on those rights. The legislation bestows expanded powers upon the ADF including the use of lethal force, interrogation of people and powers of search and seizure. The author specifically comments that many of the powers go beyond those possessed by civilian Police Forces.

The book is a very useful analysis of important aspects of the way in which governments, both in Australia and overseas, have used the “war on terror” to erode human and legal rights5.

This book would be of interest to academic, military lawyers, and students. It would also be of interest to persons concerned about progressive incursions by government upon the human rights of citizens. That, perhaps, should include all of us.

At a price of $45.00 direct from the publisher or recommended retail price of $49.95, this book at 256 pages presents excellent value for money.

James McNab

Footnotes

Michael Head is the Associate Professor School of Law in the University of Western Sydney. He is an expert on military callout law. A profile of Professor Head may be found at http://www.uws.edu.au/law/sol/academic _profiles/michael_head

2. See the publisher’s web page for the book at http://www.federationpress.com.au/bookstore/book.asp?isbn=9781862877092

3. [2007] HCA 33

4. Page 86

It is a privilege to speak at your Honour’s swearing in as the Chief Justice of the Federal Court of Australia.

Your Honour was always a shining light of the Queensland Bar, pre-eminent amongst us.

You were not long admitted before you developed a large practice in commercial and constitutional law. You were much sought after by our busiest and mot successful silks and you appeared many times in the High court led by the likes of Jackson QC, Davies and Thomas of Queens Counsel and, often for the Attorney-General for the State of Queensland, by de Jersey QC. In the important trade practices case of Queensland Wire Industries and BHP, your Honour appeared as junior to former Chief Justice Murray Gleeson and Byrne QC, now theSenior Judge Administrator of the Supreme Court.

Locally, your Honour had a wide ranging practice in and out of Court. Of note was your enviable retainer for the Proprietary Sugar Millers Association, for whom you appeared each Winter led by Hampson QC before the Central Sugar Cane Prices Board sitting in sunny regional Queensland.

As Queens Counsel Your Honour was one of those to whom juniors always looked but you gained a reputation for being one of the few to engage when an appeal looked particularly tough. “Perhaps we should get Keane” was often said by the junior bar, resigned as they were to the meagre realities of the case but ever hopeful Your Honour could find a way to rescue it. It never occurred to us at the time that Your Honour might not necessarily have wanted these most difficult of appeals, but you took your instructions manfully and found challenge in the contest. And you did so in a way which inspired confidence in your team. You had that ability, characteristic of truly able leaders, to absorb the uncertainties and pressures of the cae rather than deflect them.

Your Honour was a natural force at the Bar. Not only did Your Honour posssess outstanding scholastic ability, but you had the force of personality, the skill in advocacy and the capacity for devotion to duty truly to distinguish you among your peers.

Your Honour is unpretentious and modest notwithstanding your singular talent. You have never been one overtly to seek advancement or promotion yet your appointments to the Court of Appeal and now to the Federal Court have seemed the most natural of progressions. From the perspective of those who worked with you, your advancement was always assured. That that should be so is a consequence of much more than your ability as a lawyer. Your Honour has, it has seemed to me, an acute intuition into the character and the strengths and the nuances of those around you.

No-one here who knows you can have any doubts that Your Honour will be a strong, effective and popular leader of this Court.

The Queensland Bar takes great pride in Your Honour’s appointment.

You are one of our very best.

We wish you well.

On 14 May 2010, the Federal Attorney-General released the proposed new National Regulatory System for the Legal Profession.

There is a three month consultation period.

The Association will participate in that consultation directly through the Australian Bar Association and the Law Council of Australia.

For the edification of members, reproduced below are:

Press release by the Attorney-General

An interview with the Attorney-General published online on 14 May 2010 by The Australian.

ATTORNEYÂ-GENERAL

HON ROBERT McCLELLAND MP MEDIA RELEASE

14 May 2010 RELEASE OF NATIONAL LEGAL PROFESSION REFORM CONSULTATION PACKAGE

Attorney-General, Robert McClelland, today released the National Legal Profession Reform draft Bill and accompanying materials for public consultation.

The consultation package includes the draft Bill, National Rules, national conduct rules for barristers and solicitors prepared by the Australian Bar Association and the Law Council of Australia, a consultation report from the National Legal Profession Reform Taskforce, a Regulation Impact Statement, and independent economic analysis conducted by ACIL Tasman.

“Australia is now very much a national economy and for that reason we need to tackle disparate, complex systems of regulation to deliver a truly national profession,” Mr McClelland said.

The proposals contain a number of key reforms, including:

a national, co-regulatory framework with national bodies and legislation established jointly by the States and Territories with continued involvement by the profession in its regulation;

simple and uniform regulation including national practising certificates, a national register of practising entitlements, central processing of foreign lawyers’ applications for admission and registration, and all lawyers becoming officers of each State and Territory Supreme Court on admission;

reduced regulatory burdens including single national trust accounts for multijurisdictional practices and increased consistency in the regulation of legal business structures;

enhanced consumer protection through simplified processes and a National Ombudsman with greater powers to resolve clients’ disputes with their lawyers; and

support for Access to Justice initiatives, including low or no cost practising certificates for volunteer practitioners.

“The proposed Bill, comprising fewer than 200 pages, would for the first time create a single national market for legal services and a truly national legal profession with simpler uniform regulation.”

Independent economic analysis suggests that the proposed reforms will save more than $130 million over 10 years in cost and duplication and will actually grow the economy by more than $25 million.

“The proposed new national system would ensure that Governments continue to work collaboratively with the legal profession and consumers to achieve efficient and effective regulatory outcomes.”

The consultation period for the proposals will focus on maximising engagement with both the profession and consumers through the conduct of stakeholder meetings in all States and Territories, three dedicated consumer forums, telephone interviews and an online survey.

“Comments on all aspects of the proposals will be closely considered as public scrutiny and robust debate will be critical to ensuring we achieve a national system that serves us well in the coming decades.”

The Government thanks the Taskforce and Consultative Group for their work in the delivery of this package which will now be open for consultation prior to the presentation of a finalised legislative package and Inter-Governmental Agreement to COAG in the second half of this year.

The consultation package and information on how to make a submission are available at www.ag.gov.au/legalprofession. Submissions may be made until 13 August 2010.

ATTORNEY-GENERAL

HON ROBERT McCLELLAND MP

TRANSCRIPT

INTERVIEW

THE AUSTRALIAN ONLINE WITH CHRIS MERRITT FRIDAY, 14 MAY 2010 Subject: National Legal Profession Reform MERRITT: Hello I’m Chris Merritt and with me is Federal Attorney General Robert McClelland, and we’re here to discuss the proposed new national regulatory system for the legal profession. Mr McClelland first up can you tell me what’s in it for law firms? McCLELLAND: Essentially we’re about reducing the regulatory burden on the legal profession, which demonstrated by the legislation in some States will reduce from about 600 pages to about 200 pages, but it will also result in savings in the order of $16.9 million to $17.5 million for legal firms, and over a 10 year period about $132 million in savings. And there’ll also be benefits for the economy generally. But essentially, the goal is to achieve a reduction in red tape and regulatory burden faced by the profession. MERRITT: It’s been a long time coming, it’s been decades that this has been a long sought goal. Was it very difficult to get to this point? McCLELLAND: It was difficult. We’ve had a Taskforce working on it, and I think they’ve done an outstanding job over the last 12 months. It must be said that preliminary work was done about a decade ago, but to get everyone in the cart for the reform that occurred there it was necessary to add layers of shale on the base model. So essentially what we’ve been trying to do is peel back those layers of shale so that we have the core framework. Ultimately, I think what has got everyone on board is that this will be truly a Federal model rather than a Federal Government model. So essentially it will be the States and Territories in combination regulating the profession across Australia rather than the Federal Government doing so. MERRITT: How is it going to look from the perspective of law firms, from the perspective of a national firm, what will be different? McCLELLAND: Well, there will be one professional development framework that they’ll have to comply with, that is there will be a standard procedure, there won’t be eight different standards across the country. They will be able to maintain a single trust account in one jurisdiction rather than eight separate trust accounts. There will also be a streamlining in the focus of regulations. So we’ll be looking at broader principles rather than pedantic details, and the regulation in turn will have regard to the sophistication of their client.

MERRITT: So it sounds like there’s big benefits for law firms. What’s in it for consumers of legal services?

McCLELLAND: There will be an enhanced consumer focus. I’ve got to say some jurisdictions do that better than others, but this will be lifting the bar across the nation so that there will be consumer representation on the Board of the profession. There will also be a National Ombudsman that will have a look at costs, for instance, being fair and reasonable and looking at professional standards as well as, of course, the importance of that consumer representative on the Board of the profession influencing the development of policies and rules. MERRITT: So that’s good for consumers, it gives them a voice in the highest counsel of the profession, but what does it do to the independence of the legal profession? McCLELLAND: This has been the subject of quite some debate and this will be the subject of consultation. The legal profession is concerned as to the method of selection. The legal profession, including the judiciary, are concerned about the method of selection of the Board both in terms of whether it’s appointed, how it’s appointed, but also the numbers in terms of sheer voting influence. So these are issues that we’ll be discussing with them. I’ve consistently said that I do think it is important for the legal profession to function at arms length from Government control. How we get there is going to be the subject of discussion. The Bill proposes a model whereby the standing committee of Attorneys-General appoint the Board, but we’re certainly open to other processes. MERRITT: This sounds pretty similar to the reasonably new arrangements that are in place in England and Wales. Were you influenced by that model? McCLELLAND: Yes to a degree. I met with the British legal profession who are pretty well down the road on their reforms, but their experience reinforces, if you like, the measures we are taking. The measures we are taking brings the legal profession into the 21st century and importantly, from Australia’s point of view, it gives them a greater ability to launch into the rapidly emerging markets in South East Asia. British firms in particular are trying to seek a foothold here in Australia because they realise we’re on the doorstep of these rapidly emerging markets. By unifying the profession we think it will be easier for Australian lawyers to take advantage of these rapidly emerging markets. So in that sense the profession is also going to benefit. MERRITT: What’s the next step, what’s the way ahead? McCLELLAND: We’ve got a three month consultation period which will be beneficial. Obviously all Law Societies, Bar Associations and consumer groups will have input, as will the respective Attorneys-General and indeed the Chief Justices as leaders of the court system. So we’re going to go around, if you like, with a roaming briefing and members of the Taskforce that developed the proposal will provide a briefing, answer questions and then we will receive the considered submissions from the various bodies.

MERRITT: Are there any hurdles that need to be overcome? McCLELLAND: We think the system will ultimately save money in terms of streamlining processes and enable the States and Territories to wind back some of their processes and procedures and hence costs. But initially, I think until people become confident with the system there will be a degree of replication of those central structures that we’ll need to work on over time, so at least initially there will be some duplication of costs, but again the challenge will be over time to streamline the regulation across the central system and that remaining in the States and Territories, so that we get the benefit of those savings.

MERRITT: It sounds terrific, but is it going to cost lawyers anything? Are they going to be asked to pay for it? McCLELLAND: No, we’ve made it absolutely clear that this is all about reducing regulation and indeed cost. So the legal profession won’t be charged any additional funds for this new system and indeed ultimately we think they will be the beneficiaries, as I said at the outset, to the extent of about $16 million to $17 million a year. MERRITT: Now when that transition to the new system takes place it looks as though those savings are going to be spread right across. There’ll be savings for the States, savings for law firms, and probably a better deal for consumers. McCLELLAND: That is true and the challenge is to get to that point, for everyone to be convinced of good faith all round so that they’re prepared to look at where those things can be wound back. But as I’ve said, the central system is costed out at about $4 million a year which in the overall scheme of things is really quite modest given that the legal profession itself is worth about $13 billion, not million, but $13 billion a year in Australia. So, it’s an immediate challenge and one not to be sniffed at, but equally it’s not an enormous challenge given the benefits that flow. MERRITT: Okay well that’s a great point to finish on. Thank you very much for your time. We’ve been talking to Robert McClelland, the Federal Attorney-General about the new regulatory system for the legal profession. McCLELLAND: It’s my pleasure. [Ends]

The Association’s Committees regularly advise and assist the Bar Council in the preparation of detailed submissions regarding draft legislation, law reform matters and current issues in the administration of justice. The expert commentaries of Bar Association Committees are sought by the Courts, the Parliament, governments as well as law reform agencies.

A list of the new Committees is below listing each Committee and the names of the relevant convenors.

Any member wishing to express an interest in being appointed to one or more of the Committees should send an email to the Chief Executive at chiefexec@qldbar.asn.au identifying the Committee on which they wish to serve and clearly setting out their contact details.

I encourage members to express an interest in participating in the Association’s work by nominating for inclusion on one of the Committee panels.

Richard Douglas S.C.

President

Standing Committees of BAQ

Committee Name Convenor/s C CS Ex-officio Member Access to Justice Long S.C. Dollar Administrative Law & Public Law Hinson SC Plunkett Alternative Dispute Resolution Hanger QC/DOJ North S.C. Crow Bar Care Implementation Committee Bell QC Carew Bar Practice Course Bain QC Brown Charitable Fund Raising Committee Cameron/Kirkman-Scroope Heaton Collegiality Committee Gunn/ Kate Heyworth-Smith Plunkett Continuing Professional Development The Hon Justice JA Logan RFD / The Hon Justice GC Martin/ Boddice S.C., Diehm S.C. Davis S.C. Commercial Law Doyle SC/Derrington S.C. Traves SC/Wilson Criminal Law Glynn SC, Devlin S.C./ Callaghan SC/ Davis S.C. Collins/Dollar/Wilson/Courtney Environmental Law Keim S.C./Hay O’Gorman S.C. Ethics Counsellors Panel Gotterson QC Davis S.C. Family Law T. North S.C./Kent S.C. Carew General Litigation and Law Reform D.J.S. Jackson QC Brown Human Rights and Equal Opportunities Perkiss Wilson Industrial Law Murdoch S.C. Crow Planning and Environment Gallagher QC/ Gore QC Holland Practice and Procedure McKenna S.C./ Charrington Shah Practice Structure Reform Committee Coulsen Amerena Professional Conduct Traves S.C. Traves S.C. Professional Indemnity/ Professional Standards Committee Gibson QC/Carrigan Murphy Pupillage/ Junior DJ Campbell S.C. Holland Resourcing of Justice Committee Morris QC Amerena Succession Mullins S.C. Shah Technology Morris QC Heaton University Liaison D O’Sullivan Holland

Single Issues Committees of BAQ

WorkCover Inquiry Committee Dominic Murphy Murphy Valuation Legislation Review Committee* Grant Allan Traves S.C.

On Friday, 19 March 2010, I witnessed the presentation of the John Koowarta Reconciliation Law Scholarship to two very impressive Indigenous law students.

The scholarship commemorates John Koowarta, a Winychanam Elder from the Archer River region in Cape York.

In presenting the scholarship, the President of the Law Council of Australia, Mr Glenn Ferguson, said that the scholarship is one small measure towards “closing the gap” between Indigenous citizens and all other Australians, and he noted that Indigenous Australians are underrepresented in the legal profession, a statistic that the Law Council of Australia is committed to addressing.

The scholarships have previously assisted 11 Indigenous law students to complete their legal studies and go on to admission as lawyers.

This year, Krista McMeeken of Perth and Merinda Dutton of Sydney were presented with scholarships.

Krista is in her fourth year of a Bachelor of Laws degree at the University of Western Australia. In 2007, she won the Western Australian Outstanding Female Aboriginal of the Year award and was a nominee for Western Australian Young Citizen of the Year in 2008.

Merinda is in her fourth year of a Bachelor of Jurisprudence/Bachelor of Laws degree at the University of New South Wales. She has worked as a Teaching Assistant at the Kingsford Legal Centre and as a volunteer at the UNSW Faculty of Law Indigenous Legal Centre. In 2009 she was a recipient of the Robert Riley Scholarship form the Foundation for Young Australians.

In receiving her award, Krista McMeeken stated:

“As someone who came from Esperance, WA, eight hours south of any university which taught law, and a single parent family in which I was the first to go to university, moving away to study law wasn’t easy.

Being away from home and managing the costs of university only became harder last August when I became a full time carer for my mother and therefore the sole income earner for my family, making continuing law almost financial impossible. So for me, this scholarship not only meant I could buy text books and a functioning laptop, it meant I could continue my degree at all.”

In receiving her award, Merinda Dutton stated:

“I am an Aboriginal woman and am proud of my heritage. I am 19 years old. I am the eldest of 6 children; my youngest brother is 5 years old and just started primary school. I have had to move wary from the comforts of home to begin my journey towards my law degree.

While I am loving the new Sydney lifestyle, the fast pace and my law degree, I often envy those that still live at home with their parents.

……

Previous scholarship winners such as Terri Janke who I admire and look up to for her work in Indigenous intellectual property.”

The Australian superior courts surveyed were the High Court of Australia, the State and Territory Supreme Courts and Courts of Appeal, the Federal Court of Australia, the Family Court of Australia and the Family Court of Western Australia.

The term “appearances” was defined as “those occasions in which a legal practitioner raises legal argument or adduces evidence while defending or presenting a case”, and thus did not include matters in the nature of directions hearings and mentions.

The survey findings provide comparative data about the rate of appearances of categories of barristers with the rate at which they could be expected to appear given their representation at the Bar.

EXTENT OF THE SURVEY

Most of the survey data was collected during the four week period between 4 and 29 May 2010. However, where necessary, the survey was also conducted during modified timeframes.

Nationally, the survey covered 2,320 matters involving 5,462 appearances by legal practitioners, 4,165 by males (76%) and 1,297 by females (24%). In Queensland, it covered 596 matters (that is 26% of the 2320 matters surveyed nationally) involving 1216 appearances by legal practitioners in Queensland (that is, 22% of the 5462 appearances nationally).

The survey involved a total appearance time for practitioners nationally of 15,177 hours while the total appearance time for Queensland practitioners was 1,876 hours (or 12% of the 15,177 hours nationally).

Nationally, civil matters accounted for 77% of the matters, while criminal matters accounted for 23% of the matters. In Queensland, 73% of matters surveyed were civil and 27% were criminal matters. Appearances arose from applications in 36% of the matters nationally and in 51% of the matters in Queensland. Nationally, 43% of matters were hearings while in Queensland 40% of the matters were hearings. Trials constituted 10% nationally and 4% in Queensland, and appeals constituted 12% nationally and 6% in Queensland. Nationally, 88% of matters were heard by a single judge and 12% by more than one judge, while in Queensland, these figures were 93% and 7%, respectively.

THE SURVEY POPULATION

At the time of the survey, the survey population was as follows:

Australia

Queensland

Male

Female

Male

Female

Total barristers (Australia = 5,487; Queensland = 932)

81%

19%

81%

19%

Total Silks (Australia = 827; Queensland = 94)

94%

96%

Total Junior Counsel (Australia = 4,660; Queensland = 838)

78%

22%

80%

20%

Silks (15% of all barristers nationally) constituted 18% of appearances while junior counsel constituted 59% of appearances. Solicitors/advocates constituted 24% of appearances of which 62% are male and 38% are female. However, it was not possible to quantify the solicitor/advocate category from any records kept and therefore no comparisons or conclusions can be made about this segment of the survey population.

MAJOR FINDINGS

Some of the more significant findings may be summarised thus:

There was no significant difference between survey appearance rates and the actual Bar population of both male and female barristers;

Nationally, the average appearance time for male barristers was 3.8 hours but only 2.8 hours for female barristers;

In Queensland, the average appearance time for male barristers was 2.2 hours, whereas the average appearance time for female barristers was 1.5 hours; hence, average appearance time for male barristers was 46% longer than for female barristers;

Although “other entities” (see below) brief female barristers in higher proportions than private law firms and in higher proportions than they exist in the Bar population, there is a significant gap in the length of their appearances relative to their male counterparts.

Appearances Relative To The Bar Population

Appearances relative to the bar population was as follows:

Australia

Queensland

Male

Female

Male

Female

Total barristers

81%

19%

81%

19%

Total Silks

91%

95%

Total Junior Counsel

78%

22%

78%

22%

Appearances By Time Duration

Appearances by time duration was as follows:

Australia

Queensland

Male

Female

Male

Female

Total barristers: per cent of hours

86%

14%

86%

14%

Total barristers: total average hours

3.8 hrs

2.8 hrs

2.2 hrs

1.5 hrs

Total Silks: total average hours

4.9 hrs

4.1 hrs

Total Junior Counsel: total average hours

3.8 hrs

2.8 hrs

Appearance by Briefing Entity

There are two categories of briefing entity, namely “private law firm”1 and “other entities”2.

Nationally:

Private law firms briefed male barristers in 86% of matters and 87% of appearance hours while female barristers accounted for 14% of matters in 13% of appearance hours;

Male barristers were briefed by “other entitles” in 70% of matters, whereas female barristers were briefed in 30% of matters;

On average male barristers briefed by private law firms appear for 3.9 hours and females for 3.4 hours (a difference of 15%).

In Queensland:

Private law firms briefed male barristers in 87% of matters and female barristers in 13% of matters;

Male barristers were briefed by “other entitles” in 66% of matters, whereas female barristers were briefed in 34% of matters.

CONCLUSION

In my opinion, this survey confirms the need to develop strategies to increase (1) the proportion of woman at the Bar; (2) the number and quality of briefs provided to female barristers, particularly from private law firms; and (3) the advocacy role of female barristers to ensure access to silk where appearance work is more concentrated.

The Law Council is presently developing a response to the survey results.

Dan O’Gorman SC 30 April 2010

Footnotes

includes incorporate legal practices and sole practitioners
includes, for example, government departments and community legal services

CRIMINAL APPEALS

R v Ruha, Ruha & Harris; ex parte Cth DPP [2010] QCA 010 Keane JA Fraser JA Atkinson J 9/02/2010

R v Fidler [2010] QCA 025 Holmes JA Muir JA Chesterman JA 23/02/2010

R v Colless [2010] QCA 026 Chief Justice Holmes JA Muir JA 23/02/2010

R v Dodd [2010] QCA 031 McMurdo P Muir JA Douglas J 26/02/2010

R v Byrne [2010] QCA 033 McMurdo P Keane JA Douglas J 26/02/2010

R v Corr; ex parte A-G (Qld) [2010] QCA 040 McMurdo P Muir JA Douglas J 5/03/2010

Sentence Appeal by A-G (Qld) from the District Court — Grounds for Interference — Sentence Manifestly Inadequate — The respondent pleaded guilty on 15 October 2009 to doing grievous bodily harm with intent to disable (count 1) and rape (count 2) — The complainant in both counts was the same two and a half year old child — On each count, the respondent was sentenced to nine years imprisonment and a serious violent offence declaration was made — He will have to spend 7.2 years in prison before becoming eligible for parole — On Appeal — The respondent was 22 at the time of the offences and 24 at sentence — He had no relevant criminal history — The prosecutor at sentence tendered an agreed schedule of facts — The prosecutor tendered photographs which showed the injuries to the child and confirmed the viciousness of the attack on him — The prosecutor agreed with the judge’s observation that the rape offence was an episode of violence rather than of sexual gratification — No acceptance of the respondent’s contention that a rape offence is necessarily less serious and deserving of a lesser penalty if it can be categorised as an offence of violence rather than one giving sexual gratification — The appropriate sentence will not necessarily depend on whether the offending involved an aggressive violent act, sexual gratification, or as is often the case, a combination of both — In this instance the rape offence was a terrible violation of a vulnerable two year old child in the respondent’s care — It caused life-threatening injuries — It is a grave example of the serious offence of rape — R v TK [2004] QCA 394 is of some assistance in determining the proper sentence in this case but, unfortunately, neither counsel provided assistance to the sentencing judge — It does not assist the administration of justice when cases relied upon as comparable in an Attorney-General’s appeal against sentence are not placed before the sentencing judge by the prosecutor — Sentencing proceedings are not intended to be dress rehearsals for an Attorney-General’s appeal against sentence under s 669A(1) Criminal Code — There are significant mitigating factors in the present case — Importantly, he pleaded guilty at time — A sentence of 12 years imprisonment best balances the gravity of the offences and the need for general deterrence and denunciation on the one hand, with the mitigating factors and the desirability for and prospects of rehabilitation on the other — HELD: Appeal allowed, Sentence imposed in the District Court set aside and instead the following orders are made: The respondent is sentenced to 12 years imprisonment on each count, Declared to be convicted of a serious violent offence on each count, 520 days pre-sentence custody is declared to be time already served under the sentence.

R v CAU [2010] QCA 046 McMurdo P Fraser JA Douglas J 12/03/2010

Appeal Against Conviction & Sentence from the District Court — Verdict Unreasonable or Insupportable Having Regard to the Evidence — Objections of Points Not Raised in Court Below — Misdirection or Non-Direction — The appellant pleaded not guilty to three counts of indecent treatment of a child under 16 (counts 1 to 3); three counts of incest (counts 4, 9 and 11) and five counts of sexual assault (counts 5 to 8 and 10) in the District Court — The complainant was the appellant’s younger sister — The trial continued over nine days — The jury found him guilty of two counts of indecent treatment of a child under 16 (counts 1 and 3) and two counts of incest (counts 9 and 11) — The jury found him not guilty in respect of the remaining counts — The appellant was sentenced to terms of imprisonment — The prosecution case turned on the evidence of the complainant — The alleged offences were charged as occurring on various occasions between October 1998 and September 2007 when the complainant was aged between 13 and a half and 22 years — The complainant was cross-examined over three days — The transcript of that cross-examination is often confusing, and it is sometimes difficult to comprehend which questions and answers relate to which counts — When questioned about counts 6, 7 and 8 she said that she had “gone a blank on that one at this present time” — The complainant was excused from giving further evidence — In the absence of the jury defence counsel then pointed out in cross-examination, the complainant had no recollection of counts 6, 7 and 8 — This meant that he was effectively deprived of the opportunity to cross-examine her on those counts — The judge discharge the appellant on those counts — He gave the jury no direction as to how to treat the evidence they heard about those counts — On Appeal — Defence counsel and the prosecutor at trial told the judge, in the absence of the jury, that it was unnecessary in this case to direct the jury about the limited use to be made of evidence of the uncharged acts — Counsel for the respondent concedes that trial counsel misled the judge on this issue — That concession is correct for two reasons — First, the jury were given no guidance as to how to deal with the evidence they had heard about counts 6, 7 and 8 which the Crown abandoned at the close of its case — The jury should have been directed to disregard the evidence in respect of those counts — In the absence of such a direction, the judge’s general jury directions as to what was evidence in the case may have suggested that the evidence about counts 6, 7 and 8 was relevant to their verdicts — Second, there was evidence before the jury from the complainant that, since she was 13 and a half years old, the appellant had “tried to feel her boob” probably 20 to 25 times — The judge should have warned the jury against propensity reasoning in respect of that evidence: HML v The Queen (2008) 235 CLR 334 — There is a real danger that these two errors may have caused a miscarriage of justice — This is not a case despite these errors, the convictions can stand as no substantial miscarriage has occurred – It follows that the appeal against convictions on all counts must be allowed and a re-trial ordered — Necessary to say something briefly about a number of other grounds of appeal — A Dr Walsh, a clinical psychologist, gave evidence and the complainant’s academic record was tendered — Dr Walsh’s evidence was not admissible at trial — Once the complainant gave evidence it was a matter for the jury whether she was a credible witness — Dr Walsh also gave evidence in re-examination that the complainant told him of threats made against her by the appellant — This was an improper question in re-examination and the answer was inadmissible — Evidence of sexual abuse of the complainant by her father was led without objection — If there is a new trial, defence counsel must decide on instructions whether to investigate the relationship between the complainant and her father — HELD: Appeal allowed, Convictions on counts 1, 3, 9 and 11 are set aside and a re-trial on these counts is ordered.

Hayes v Surfers Paradise Rock and Roll Cafe P/L & Anor [2010] QCA 048 McMurdo P Fraser JA Chesterman JA 12/03/2010

Application for Leave from the District Court — General Principles — Points and Objections Not Taken Below — When Allowed to be Raised on Appeal — Hayes is an investigator employed by the Liquor Licensing Division — The first respondent company (SPRRC) conducts an “adult entertainment” business within its Gold Coast “Crazy Horse” nightclub under a permit issued under the Liquor Act 1992 (Qld) — The second respondent (Mick Pickos) is SPRRC’s nominee under that permit — A Ms Smith, an employee of SPRRC, gave cards to passers-by on Orchid Avenue some distance from the Nightclub — Ms Smith was respectably dressed and she appears to have behaved politely throughout — She stood on the footpath and did not walk towards any person to hand out the cards — When she spoke to passers-by she did not shout or talk loudly — Under s 29(d) of the Liquor Regulation 2002 (Qld) (the Regulation) the “permittee must ensure that spruiking or touting for business…occurs only on the permittee’s premises…” — On Appeal — All persons conducting “adult entertainment” businesses in the State may be affected by these regulatory provisions and those provisions are designed to serve the public interest — The construction questions are of sufficient substance and public importance to justify the grant of leave to appeal — The question for the Magistrate was whether Ms Smith’s conduct constituted “spruiking or touting for business involving adult entertainment” — The words “spruiking” “touting” are not defined in the Act, the Regulation or the permit — The entry in the Macquarie Dictionary for spruiking includes “to harangue prospective customers to entice them into a show, strip joint…” — The word “tout” is defined in the Macquarie Dictionary and in some senses the definition does not necessarily connote discreditable conduct though they do suggest at least potentially irritating or annoying behaviour for those who have no interest in buying what is touted — On the facts found by the Magistrate, Ms Smith behaved passively, perhaps surprisingly so for one engaged to solicit custom for such a business — It could not be said that she behaved importunately, and her conduct lacked persistence — Had it been intended to ban all public soliciting for what the legislature has sanctioned as a lawful business one would expect the Regulation to say so — The word “touting” does not comprehend all direct soliciting for business — It requires also something additional, some persistence, repetition, pestering or other importunate behaviour — The prosecution case was that SPRRC published an advertisement for adult entertainment by employing Ms Smith to hand out the cards advertising “Continuous Striptease” and “Private Lap Dancing” in contravention of s 168A(1) of the Act — Whilst the terms “striptease” and “lap dancing” describe the general nature of two aspects of the “adult entertainment” performed at the nightclub, the better view is that they do not themselves describe the sexually explicit nature of the acts involved in the “adult entertainment” — This advertisement is borderline, nevertheless s 168A(1) is not expressed in sufficiently broad or specific terms so as to render it a criminal offence to publish such general descriptions of behaviour which the legislature has provided may lawfully be conducted by the holder of an adult entertainment permit — HELD: Grant the application for leave, Allow the appeal, Set aside the order remitting the matter and order instead that SPRRC be acquitted of count 2 and that the complaint against it be dismissed, and costs.

R v McCosker [2010] QCA 052 Keane JA Holmes JA Chesterman JA 19/03/2010

Appeal Against Conviction & Sentence from the District Court — Particular Grounds of Appeal — Irregularities in Relation to Jury — Partiality — Appellant and co-accused were convicted of stealing grain valued at $159,418 from their employer — The appellant was sentenced to four years’ imprisonment with parole eligibility fixed at 11 September 2010 — The appellant and his wife had separated some weeks, or perhaps months, prior to the commencement of the trial but had remained on reasonably cordial terms — After his separation, and during the trial, the appellant lived with his sister — The appellant was tried in the District Court of Goondiwindi — Goondiwindi is a small town and the appellant had lived there for many years — He was known to many of its inhabitants — That fact gave rise to some difficulty in selecting a jury — During the jury selection process the trial judge twice asked the members of the jury whether, having considered things, any of them thought they might not have the necessary appearance of impartiality — A number of jurors were discharged — One juror, whom it is convenient to describe as H, who was known to and known by the appellant, did not respond to the judge’s invitation and did not indicate any concerns about her capacity to be and to appear impartial — On Appeal — In an affidavit a Ms Eglington (the former partner of the appellant) deposed having a conversation with H whilst the appellant was in hospital before the trial and stating to H “something like ‘He’s guilty of something but I don’t know what’” — During the trial the appellant talked to Ms Eglinton and in an affidavit stated that he “can’t remember speaking to her about H” — The affidavits of the appellant and Ms Eglington were ambiguous about the terms of the conversation between them on the Courthouse verandah during the trial — The affidavits did not address the point directly, leaving open the possibility that Ms Eglington had revealed to the appellant the damaging statement she made to H in February at the hospital — The two deponents were cross-examined on appeal — In cross-examination Ms Eglington blurted out a different story of her conversation with H and telling H allegations of the appellant stealing from the Royal Hotel and his “having a gambling problem” — Neither of these aspects appear in her affidavit — In addition it emerged unexpectedly in the testimony that the appellant’s sister was present during the conversation — Both the appellant and Ms Eglington were unsatisfactory witnesses and the appellant’s testimony was rejected as false — The evidence of Eglington has all the hallmarks of invention — It is accepted that when speaking to H about her unhappy and unsatisfactory domestic relationship she mentioned her belief that the appellant to be guilty of “something” — This was told to the appellant on the second or third day of the trial, however the appellant did not inform his solicitor or counsel of what Ms Eglington had told H, and sought no advice with respect to it — It should be remembered that the appellant took no objection to H’s selection despite his knowledge of her friendship with Ms Eglington, and himself — The fair minded observer aware of the facts who saw the accused waive his right to object to the juror would not doubt the integrity of the trial process — The person with most at stake and full knowledge of the facts chose to accept the adjudication of the tribunal, including the juror — There are strong pragmatic reasons for holding an accused to his initial choice, particularly in a small town with a limited pool of jurors — The appellant was convicted after a trial, showed no remorse for his very substantial theft from his employer and maintained he had been wrongly convicted — HELD: Appeal against conviction dismissed, application for leave to appeal against sentence refused.

R v Pham [2010] QCA 088 Holmes JA Chesterman JA Atkinson J 20/04/2010

Sentence Application from the Supreme Court, Trial Division — Grounds for Interference — Parity between Co-offenders — Whether Sentence Manifestly Excessive — Pham was convicted after pleading guilty to one count of supplying a dangerous drug and one count of producing a dangerous drug — The drug involved was methylamphetamine — Pham was sentenced to three years imprisonment with an order the date on which he was eligible for release on parole was fixed at 24 September 2011 — Pham was sentenced at the same time as a co-accused Obradovic, who pleaded guilty to one count of producing the dangerous drug methylamphetamine and was sentenced to three years imprisonment suspended after he had served six months with an operational period of four years — Pham and Obradovic were employed by Ace Waste Pty Ltd, a private company contracted by other private companies and government agencies for the destruction of medical waste, out of date pharmaceutical drugs and quarantine items by Australian customs service, the Queensland police service and Queensland Health — Pham was approached by a man Uprichard and agreed to participate in a scheme whereby pseudoephedrine based tablets were to be stolen and provided to Uprichard so he could manufacture methylamphetamine — On Appeal — This was a very serious example of this offence — It was an organised operation involving a serious breach of trust as an employee — Pham’s conduct bore a higher degree of criminality than other participants in the scheme — Pham’s personal circumstances were unremarkable — Pham’s offending was for profit, although part of that was used to fund his own drug use — He had a criminal history and continued to offend whilst on bail for these offences — The learned sentencing judge observed, correctly, that Pham’s criminality was at a higher level than Obradovic; but there is no obvious explanation for the extent of the disparity in sentencing for the count of production — Such disparity between co-offenders leads to a justifiable sense of grievance — The respondent conceded on the hearing of the appeal that parity between the offenders required a reduction of the penalties imposed upon Pham — There was also, as the respondent conceded, a sentencing error when the sentences imposed on Count 1 and Count 2 are read together — Section 160F(2) of the Penalties and Sentences Act 1992 (Qld) provides that when fixing a date as the date an offender is to be released on parole, the date fixed by the court must be a date relating to the offender’s period of imprisonment as opposed to a particular term of imprisonment — Pham’s period of imprisonment was six years, as such the sentencing judge could impose a parole eligibility date but not a parole release date — As there were errors in the sentencing process, it falls to this court to exercise the sentencing discretion anew — HELD: Application for leave granted, Appeal allowed, Set aside the sentences imposed and instead sentence the applicant to imprisonment on Count 1 for 18 months, for Count 2 for 4 1/2 years with the applicant’s parole eligibility date being 24 March 2011.

R v Cruz; ex parte Cth DPP [2010] QCA 090 Holmes JA Muir JA Chesterman JA 23/04/2010

Sentence Appeal by Cth DPP from the District Court — Cruz was convicted on his own plea of guilty, on an ex officio indictment, of one count of importing child pornography material contrary to s 233BAB(5) of the Customs Act 1901 (Cth) — He was sentenced to three years imprisonment to be released after serving 12 months upon giving security by recognizance in the sum of $1,000 to be of good behaviour for three years — Cruz, a Filipino citizen, worked as a chief engineer on commercial shipping — In April 2009, he arrived at Brisbane international airport intending to sign on to a merchant vessel at Gladstone — Customs officers searching his bag found child pornography material on a number of different forms of electronic storage device, including camera memory cards, a laptop and two computer hard drives — On Appeal — It was not unreasonable for the learned judge to infer that having a limited command of English would affect the respondent’s ability to engage in leisure activities; reading and watching television are obvious examples — The learned judge in this instance was entitled to give weight to the respondent’s isolation and separation from his family and to reflect those circumstances by reduction of the custodial component of the sentence — In addition, s 16A of the Crimes Act 1914 (Cth) obliged her Honour to take into account the effect of the sentence on the respondent’s family — This respondent was not charged with an offence of producing pornography or of importing it for commercial distribution — It may be, indeed, that he faces further charges in the Philippines in light of the contents of the videos, but he did not stand to be sentenced in this country in respect of offences committed by or in their making — The importation of the material occurred as an incident of his transit through Australia — It was not done with any intent to disseminate it, or even to retain it, in this country — The applicant’s co-operations as manifested by an ex officio plea, his apparent remorse, the difficulties he faced in separation from his family in an unfamiliar environment, his good work record and lack of previous convictions warranted a reduction of the time to be served to one third of the head sentence — HELD: Appeal dismissed.

R v SBR [2010] QCA 094 McMurdo P Holmes JA Muir JA 30/04/2010

Sentence Application from the District Court — Grounds for Interference — Sentence Manifestly Excessive or Inadequate — SBR was sentenced after pleading guilty to three counts of indecent treatment of a child under 12 and one count of rape, to two years probation for the indecent treatment offences, and to four months detention and twelve months probation for the offence of rape — A conviction was recorded only for the offence of rape — The complainant , who was the applicant’s sister, was between seven and ten years of age at the time of the offences — On Appeal — From s 183 and s 184 of the Penalties and Sentences Act 1992 (Qld) it can be seen that the “primary position” in relation to the recording of the conviction was that conviction was not to be recorded — The primary judge’s decision to record a conviction seems to have been motivated principally by his conclusion that the rape was “a most serious offence” and by his understanding that there was a “principle” which applied “even where the offender is a juvenile”, namely that “serious sexual offences against children almost inevitably result in a custodial sentence” — It is impossible to resist the conclusion that his Honour’s focus on these considerations led him to give insufficient weight to “all the circumstances of the case: and the other matters which s 184(1) required to be considered — Amongst the matters required to be considered by s 184(1) was the applicant’s youth — He was no older than 15 and his social, emotional and moral development appears to have been impeded by his home environment — The pre-sentence report hold out good prospects of rehabilitation — It is in the interests of the applicant and of the community that the applicant’s good prospects of rehabilitation and of “finding and retaining employment” not be impeded unnecessarily — A review of recent decisions provides examples of convictions not being recorded where the offending conduct has been at least as serious as that of the applicant — HELD: Application allowed for leave to appeal allowed, Appeal against sentence allowed but only to the extent that the order recording the conviction be set aside.

R v Hayes [2010] QCA 096 Holmes JA Chesterman JA Ann Lyons J 30/04/2010 Sentence Application from the District Court — Grounds for Interference — Sentence Manifestly Excessive or Inadequate — Hayes pleaded guilty to 10 offences each involving a form of dishonesty — Nine offences were offences against various sections of the Criminal Code 1899 (Qld) with one other offence charging Hayes with dishonestly obtaining a financial advantage from the Commonwealth — Hayes was sentenced to four and a half years’ imprisonment for the offence set out in count 7 of the state indictment and would be eligible for parole after having served 18 months — On each of the other counts in the state indictment and on the one count on the commonwealth indictment she was sentenced to 18 months’ imprisonment, with all counts to be served concurrently — Counts 1 and 2 on the state indictment related to obtaining $390 from Cash Converters using some of her sister’s means of identification which she had stolen — Counts 3, 4, 5 and 6 relate to the defrauding of an electrical retailing goods retailer using identification she had stolen from a friend — Counts 7 and 8 relate to an elaborate, sophisticated and determined fraud which paid Hayes over $340,000 — She made false claims upon an insurance company with which she had taken out a personal accident policy covering her and her husband against injury and lost income following an injury — On 30 March 2007 Hayes informed the insurer that she had accidentally fractured her left ankle and a bone in her foot and broken her collar bone — Further deterioration occurred and in September 2007 she informed her insurer that the whole of her left foot required amputation — Copious documentation was supplied containing forged signatures from the doctor and surgeon setting out details of the amputation and her hospitalisation — The applicant is sound of limb — Her left foot, with all five toes, remains attached to her leg — In January 2008 Hayes claimed that her husband had suffered a debilitating injury to his right eye — The claim, which was quite false, was supported by a forged report from an eye specialist in Brisbane — The insurer paid out $110,000 — In March 2008 she made a further claim that the husband’s right eye had become damaged and would require removal — This claim was eventually investigated which led to the detection of the applicant’s fraud — Count 9 involved the passing of a valueless cheque with count 10 involving deceptions involving Newstart Allowance — On Appeal — The applicant is married but has no children — A largely unhelpful report from Dr Ian Curtis diagnoses Hayes with a borderline personality disorder which he thought was likely to make her “reckless and dangerously impulsive” and to act “without thinking first about the consequences — The applicant’s offending was rightly described as “systematic and persistent” — It showed a considerable degree of sophistication — The offending was cynical and calculated – The only appropriate penalty was a substantial term of imprisonment — The sentence ultimately imposed was modest given the scale of offending and the manner in which the frauds were perpetrated — HELD: Applications refused.

CIVIL APPEALS

Queensland Bulk Water Supply Authority t/a Seqwater v McDonald Keen Group P/L (in liq) & Anor [2010] QCA 007 Holmes JA Fraser JA Fryberg J 5/02/2010

Bradshaw v Henderson & Anor [2010] QCA 008 Holmes JA Atkinson J Fryberg J 5/02/2010

Sica v Director of Public Prosecutions (Qld) [2010] QCA 018 Chief Justice Keane JA Chesterman JA 16/02/2010

CAR & Anor v Department of Child Safety [2010] QCA 027 Muir JA Fraser JA Chesterman JA 23/02/2010

Ace Property Holdings P/L v Australian Postal Corporation [2010] QCA 055 Keane JA Fryberg J Douglas J 19/03/2010 General Civil Appeal from the Supreme Court, Trial Division — The appellant, Ace Property Holdings Pty Ltd (Ace), is the lessor, and the respondent, the Australian Postal Corporation (Australia Post), is the lessee, of the whole of the land and buildings at 100 Victoria Street, West End — In February 2003 Decipha Pty Ltd (Decipha) became involved in the occupation of the Premises — Since December 2003, Decipha has been a wholly-owned subsidiary of Australia Post — In August 2008 Ace gave Australia Post a notice to remedy breaches of covenant pursuant to s 124 of the Property Law Act 1974 (Qld) — The breaches of the lease asserted by the notice related to the use and occupation of the Premises by Decipha, the carrying out of renovations to the Premises without Ace’s approval and the non-payment of legal costs incurred by Ace in connection with the lease — In July 2009 the learned trial judge declared that Australia Post had not breached the lease save in relation to the carrying out of renovations without Ace’s approval, however Ace was estopped from asserting that Australia Post had breached the lease — On Appeal — In December 2003 Decipha became, and has since remained, a wholly owned subsidiary of Australia Post — Any employees of Australia Post who were working at the Premises were in a state of “transition” to employment by Decipha — Australia Post sought approval for renovations to the Premises — Commencement date for this work was 25 September 2006 — Decipha paid the builder for the renovations — No approval was forthcoming from Ace before Decipha proceeded with the renovations — It is difficult not to regard the conduct of Australia Post and Decipha as somewhat high-handed — He who deliberately chooses to give no quarter in business cannot fairly expect to receive it — It is sufficient to say that the fact that Australia Post has allowed Decipha to exercise physical control of the Premises and the operations conducted there by Decipha’s employees, invites the inference that Australia Post has parted with possession to Decipha — Decipha has such a degree of control over the Premises that they were used solely for Decipha’s operations conducted by it in its own right, it is accurate to say that it had obtained the premises from Australia Post — Mr John Miller has been the state operations manager for Decipha since February 2003 — His evidence was that Decipha was in sole occupation and control of the premises — Mr Vincent Rosano is the national operations manager of Decipha who swore an affidavit for Australia Post to which was exhibited a Decipha board paper — This paper provides support that the business conducted by Decipha was carried on by Decipha in its own right — In cross-examination Mr Rosano explained the reference in the board paper to Decipha operating its operations from the Premises under a lease from Australia Post as “a typing error” — Mr Rosano’s explanation as a typing mistake is inherently improbable and unworthy of belief — Unable to conclude that Mr Homewood, the director of Ace, knew that Decipha was, in fact, in sole possession of the Premises — Conclusion that Australia Post was, and remains, in breach of the lease — This breach is capable of being remedied — Ace was not estopped from relying upon the breaches to terminate the lease — Neither breach was the result of inadvertence on the part of Australia Post — Australia Post’s breach of cl 9.1 (the renovations) was deliberate — As to the ongoing breach of cl 7.1 of the lease, Australia Post has not proffered an undertaking to remedy that breach — The better view is to leave the parties to seek to complete the negotiation which Australia Post pre-empted — If the parties cannot reach agreement then further litigation may be necessary — As unattractive as that is, it is not as unpalatable as allowing Australia Post to secure to its subsidiary, Decipha, commercial advantages which it did not obtain, and might not be able to obtain, from a freely and fairly made bargain — HELD: Appeal allowed, Declaration and order made at first instance be set aside, and in lieu thereof, it be ordered that the application be dismissed with costs. Hartnett v Hynes [2010] QCA 065 Muir JA Daubney J P Lyons J 23/03/2010 General Civil Appeal from the Supreme Court, Trial Division — Civil Procedure — Pleadings and Amendment — Originating Process and Pleadings — The appellant appealed against an order refusing leave to the appellant to amend his statement of claim in certain respects — An original statement of claim was filed on 3 September 2007 — The appellant and respondent had carried on a partnership business of solicitors and migration agents which was dissolved on 3 September 2001 — Before the matter came before the primary judge the appellant had delivered a number of redrafts of the statement of claim to the respondent and there had been at least four interlocutory hearings, concerning, amongst other things, disclosure and the pleadings — On Appeal — Paragraph 7F of the Third Amended Statement of Claim provided that the defendant did not invoice certain clients of the Partnership for unbilled work in progress…and sought Particulars in this regard — The breaches of clause 2 in the dissolution agreement (unbilled work) and of the implied term in paragraph 6(a) have been alleged from the time of the original pleading — Reliance on those breaches could not have caused paragraph 7F to raise a new cause of action — The unqualified finding by the primary judge that paragraph 7F pleaded a new cause of action was erroneous — Paragraphs 7G (issuing credit notes) and 7H (writing off sums owing to the partnership) of the TASC are closely related to the allegation that the respondent failed to collect moneys — If the allegations are made out, they will show that the respondent took actions which ensured that relevant moneys could not be collected — Paragraphs 7G and 7H probably go beyond particularising or restating a pre-existing claim and thus contribute to the pleading of new causes of action — However, they are causes of action which arise out of the same facts or substantially the same facts, as the causes of action pleaded in the original statement of claim — Of considerable relevance to the exercise of the discretion is the fact that these paragraphs received, in effect, the imprimatur of a trial division judge at an earlier interlocutory hearing, less than a year after the commencement of the proceedings — It was wrong to describe the pleadings under consideration as “recently formulated” and the primary judge erred in this regard — The 73 page schedule provides very few particulars of the allegations in 7G and 7H and those particulars do not purport to be complete — This lack of particularity was justified by counsel for the appellant on the basis of the continuing disputes over disclosure — If the appellant does not comply with the Order and the particulars are inadequate, prompt application can be made by the respondent to strike out any allegations which are insufficiently particularised — No change to the costs order at first instance as the appellant obtained an indulgence from the Court — HELD: Appeal allowed, Paragraphs 1 and 9 of the orders and directions made on 10 September be set aside and that “machinery orders” be put in their place, costs of the appeal to be costs in the cause, the costs at first instance remain.

Barkworth Olives Management Ltd v Deputy Commissioner of Taxation [2010] QCA 080 McMurdo P Fraser JA P Lyons J 9/04/2010

Barkworth Olives Management Ltd v Deputy Commissioner of Taxation [2010] QCA 080 McMurdo P Fraser JA P Lyons J 9/04/2010 General Civil Appeal from the Supreme Court, Trial Division — Taxes and Duties — Income Tax and Related Legislation — Ascertainment of Assessable Income — The respondent (Deputy Commissioner of Taxation) applied and obtained summary judgment against the appellant for over $80 million — That amount was the total of various amounts specified in notices of assessment and notices of amended assessment to income tax, general interest charges on those unpaid amounts, notices of assessment of penalty amounts payable in respect of tax shortfall, and further general interest charges, all of which had been issued against the appellant as the trustee for specified trusts — The appellant, a trustee, had argued that it was not personally liable for any of the amounts specified in the notices as it had not received any of the money which was the income the subject of the assessments — On Appeal — The substantial question in the appeal was whether s 254(1)(e) of the Income Tax Assessment Act 1936 (Cth) operated to qualify what otherwise would be the conclusive effect of the notices of assessment — In specified cases, instead of a beneficiary or beneficiaries being assessed and liable to pay the tax on the trust income the trustee must be assessed and is liable to pay the tax — The better construction of s 254(1)(e) appears to be that it imposes and qualifies personal liability only where the agent or trustee retains or fails to retain money which comes to the agent or trustee after the making of an assessment under s 254(1)(b) — Section 254(1)(e) would therefore ordinarily limit the liability of an agent or trustee to any amount of money received by the agent or trustee after the due date for lodging a return and thus after the derivation of income with reference to which the tax was assessed — The limitation of liability in the general provision of s 254(1)(e) must give way to those specific provisions in Div 6 of Pt III which impose liability to tax upon the trustee as an exception to the general rule that the beneficiaries are liable — High Court authorities concerned taxing provisions which imposed a liability to tax upon a person who was appointed as a representative after the relevant income had been derived and who therefore had no opportunity during the period when that income was derived to make provision for any tax liability — Section 254(1)(e) has no potential application to limit a trustee’s personal liability where the trustee is assessed to tax under a provision in Div 6 of Pt III, such as s 99A, which expressly provides for the liability of the trustee, that is so at least where the same person remains trustee during the whole of the period in which the relevant taxable income is derived and up to and including the date upon which the liability for tax accrues under s 204 — Decisions of the High Court establish that the potential for great hardship if a taxpayer’s objections are ultimately found to have merit provides no ground for denying the clear terms of the statutory provisions — HELD: Appeal dismissed with costs.

AG(CQ) P/L v A&T Promotions P/L & Anor [2010] QCA 083 McMurdo P Holmes JA McMeekin J 13/04/2010

AG(CQ) P/L v A&T Promotions P/L & Anor [2010] QCA 083 McMurdo P Holmes JA McMeekin J 13/04/2010 General Civil Appeal from the Supreme Court, Trial Division — Real Property — Torrens Title — Unregistered Interests — Equitable Estates and Interests — Priority Between Equitable Interests — The second respondent (Alan Leslie Ikin as trustee for the Mackay Trust) held equitable title in a parcel of land — The learned judge declared that A&T Promotions Pty Ltd (A&T), as equitable mortgagee in a lot at Mackay had priority over AG(CQ)’s interest, also as equitable mortgagee, in the same lot — The learned judge held that A&T interest, the first in time, should prevail, the competing interests being equal in merit and A&T having been guilty of no act or omission that would make that result unfair — On Appeal — Underlying the parties’ submissions was a divergence as to whether the rule of priority for the interest first created was one of first or last resort — Both approaches can be found in the authorities — The question is as to which is the better equity, and in determining that question, the conduct of both parties will be relevant — But one can also say that it is proper to look for both meritorious and unmeritorious (or disentitling) conduct as the learned judge did in this case; and it is legitimate to determine the worse of the equities in order to establish the better — Doubtful the argument of AG(CQ) that the mere fact of greater diligence on the part of the subsequent interest holder in protecting its interest should give it priority — Rejection of AG(CQ)’s actions in obtaining and retaining those documents necessary to complete a transfer once the lot issued, per se created an imbalance in the respective merits sufficient to give it the better equity — However AG(CQ) did what it could to secure its position — Ikin had twice defaulted on repayment of a loan — It was not reasonable for A&T to rely on its arrangements with Ikin — A&T could have asked AG(CQ) to provide it with a signed transfer of the lot to Ikin, and also have sought an assignment of Ikin’s rights under a Success Fee Deed — A&T’s failure to make its interest known to AG(CQ) in any way was a failure to act as a prudent lender and led directly to AG(CQ)’s position — Her Honour erred in her assessment of the relative merits of the respective interests, and erred in failing to find that AG(CQ) had the better equity — AG(CQ)’s interest should take priority — HELD: (Brief) Appeal allowed, Set aside certain orders and substitute that AG(CQ) has an interest as an equitable mortgagee, as does A&T, however AG(CQ)’s interest takes priority

Medical Board of Queensland v Freeman [2010] QCA 093 Holmes JA Muir JA Fraser JA 23/04/2010

General Civil Appeal from the Health Practitioners Tribunal — Professions and Trades — Medical Practitioners — Disciplinary Proceedings — Professional Misconduct and Unprofessional Conduct — Departure from Accepted Standards — The Health Practitioners Tribunal found the appellant, an obstetrician and gynaecologist, had behaved in a way constituting unsatisfactory professional conduct and made orders suspending her registration for four months (that order in turn suspended for a period of two years), and imposing conditions on her registration — The appellant attended a patient who sought the termination of her pregnancy — An ultrasound showed the foetus was 19 weeks into gestation and the appellant formed the view that there was a risk that the patient would kill herself or harm her five year old daughter if she could not obtain a termination — The appellant administered a dose of misoprostol vaginally and sent the patient home with a number of misoprostol tablets and instructions as to how they were to be administered — On Appeal — The appellant gave evidence that she believed no hospital, including the Royal Brisbane and Women’s Hospital, would assist a patient seeking a mid-trimester termination — The finding of the Tribunal that the patient was eligible for admission to hospital for a termination procedure was open on the evidence, where the pregnancy constituted a risk to the mother’s psychiatric health — This finding gave context to the significant further finding, that the appellant had not even attempted to have the patient admitted — The appellant provided to the patient a copy of the Aberdeen Protocol, which was plainly not designed for comprehension by a lay person, handwritten instructions as to how to administer the misosprostol and a letter to a prospective admitting hospital — The handwritten instructions provided information on one limited aspect of the procedure and the letter to the prospective hospital was not intended for the patient’s information — The Tribunal was entitled to find that written information provided to the patient did not amount to “good quality, accurate, impartial, written information that is well presented and easy to understand” — Even on the appellant’s own evidence the explanation verbally given to the patient was in the most general terms — The instructions were not “…clear, concise and precise…” — One error was demonstrated in the Tribunal’s finding, however at the heart of its finding of unprofessional conduct was the carrying out of the procedure outside a hospital setting — There is no doubt that those findings alone could properly support a finding of unprofessional conduct — There was plainly cause for concern that the appellant would treat as out-patients other patients seeking a termination in similar circumstances — The conditions imposed on the appellant were, as the Tribunal described them, designed to ensure that did not occur and were within the objects of the Act — HELD: Appeals dismissed.

Jiona Investments Pty Ltd & Ors v Medihelp General Practice Pty Limited [2010] QCA 099 Muir JA Atkinson J Ann Lyons J 30/04/2010

General Civil Appeal from the Supreme Court, Trial Division — Contracts — General Contractual Principles — Construction and Interpretation of Contracts — A deed was made on or about 10 July 2002 between parties including the respondent, Medihelp and the appellant, Dr Clift — Clift agreed to indemnify Medihelp and others in relation to a claim then foreshadowed by the “Feros Group” against one of more of Medihelp, Clift and others, “for damages arising out of” an agreement identified in recital H to the Deed — The Feros claim eventuated — Medihelp filed and served on Clift a third party notice and statement of claim, claiming an indemnity “in relation to any sum ordered to be paid by [Medihelp] to the plaintiffs including interest and costs” — Clift did not at any time file a notice to defend the third party claim — Clift was advised by fax dated 19 November 2009 that the principal proceeding had been resolved and that Medihelp would seek to have judgment in the third party proceeding against him — On 23 November 2009 counsel for Medihelp and counsel for the appellant appeared before the primary judge — Counsel for Clift sought leave to appear but leave was refused pursuant to r 658 of the Uniform Civil Procedure Rules 1999 (Qld) and judgment was entered against Clift in favour of Medihelp for $1,200,000 (the settlement sum) and $407,378.47 (on account of Medihelp’s costs in the principal proceeding) — On Appeal — Any liability under clause 5 of the Deed was contingent until it settled with the plaintiffs — Clift could have filed and served a notice of intention to defend on the day of the hearing before the primary judge — If that had been done the appellant would have been able to rely on a defence; no leave would have been required — The primary judge erred in refusing the appellant leave without considering whether the appellant had an arguable case arising out of clause 6 of the Deed — The primary judge erred in finding, implicitly, that the appellant had been guilty of relevant delay in not filing a defence and that this failure was relevant to whether the appellant’s counsel should be heard on Medihelp’s application — This was not a case in which a party had been responsible for relevant delay or any failure to comply with obligations under the Rules — Once the fury, sound and dust of the engagement at first instance are penetrated, it may be seen that the appellant had a fairly arguable point on the merits which could have emerged only after the appellant became aware of the settlement, and that there were no disentitling factors such as delay or prejudice standing in the way of a trial on that point — The claims sought to be enforced by Medihelp’s application were arguably, at the very least, not within the relief expressly claimed in the claim and statement of claim — The compromise which provided the factual basis for the most substantial claim had just been made — The appellant should not have been deprived of the opportunity of resisting the new claims without compelling grounds — HELD: Appeal allowed, order of primary judge set aside, costs.

3rd Edition

By Terry Hutchinson1 Published by Thomson Reuters Reviewed by Matt Black

Dr Terry Hutchinson’s Researching and Writing in Law was first published in 2002 and is now in its third edition. The book consists of two parts. Part 1 is called Formulating and Writing Your Legal Research Project. Part 2 is called Checklists for Locating and Validating the Law.

As its name suggests, Part 1 of the book is primarily targeted at those undertaking academic research projects. Earlier editions of the book received good reviews. This edition retains the previously existing helpful material. However, it expands the material on the process of formulating a research proposal, on writing project abstracts and undertaking literature reviews. Dr Hutchinson’s discussion of both doctrinal research and social science research methodologies should be useful to those beginning or contemplating a research degree.

Those in practice might also find some aspects of Part 1 beneficial. For example, Chapter 4 provides a useful overview of electronic research techniques for those not already familiar with positional operators and Boolean logic. Chapter 8 deals with “legal writing basics” and, although it certainly addresses the “basics”, the chapter does have useful suggestions and reminders.

Part 2 of Dr Hutchinson’s book has a more practical orientation. It contains a series of 16 checklists setting out details of how to find particular types of legal material in the various Australian jurisdictions. It also addresses a number of selected international jurisdictions. The checklists focus on legal material that is available on the internet, noting freely available sources where possible.

The checklists are potentially useful to both students and practitioners. The Queensland checklist will no doubt be familiar but the checklists make it easy to find material quickly in the other States and Territories when the need arises. For example, the checklists provide a quick reference for finding interstate parliamentary documents, legislative histories, and legislative updates.

This book was originally developed out of a postgraduate research unit taught by Dr Hutchinson. It will be of primary interest to students, particularly those undertaking research projects or degrees, but also has some value for practitioners.

Dr Hutchinson’s Researching and Writing in Law retails for $92.00 directly from the publisher.

Matt Black

Footnote

1. Dr. Hutchinson’s QUT web page may be found here.