THE BAR ASSOCIATION OF QUEENSLAND
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Issue 98: December 2024
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This month’s Hearsay has Levels 16 and 17 of Quay Central as the featured chambers. The group comprises some of the most talented members of our Bar and we here at Hearsay are grateful to have their leading contributions by articles within this month’s edition.

Contributions of articles about substantive law and practice are sought for Hearsay, from the editor’s point of view, for two reasons. Firstly, it provides for the members of the Bar Association and the other readers of Hearsay, including many judges and solicitors, practical updates on relevant matters of law pertaining to our day to day work which help us maintain high standards.

Secondly, hopefully, for the contributors, it provides an opportunity for them to demonstrate how clever they are. In turn, we all come to appreciate the value of their intellectual prowess and can aspire to emulate them by penning our own articles for future editions of Hearsay.

As a matter of editorial policy then we aim to provide editions of Hearsay that gather this intellectual prowess in clusters. So we will have editions where the contributions substantially come from a set of chambers, including sets of chambers in particular in regional areas, as well as editions where the clusters may represent the most junior members of the Bar, women at the Bar and in turn, silks.

It is intended that each of the next few issues of Hearsay will contain articles respectively from each of these groups. In the meantime it is hoped that you enjoy and benefit from the contributions made by Levels 16 and 17 Quay Central in this issue.

Geoffrey Diehm S.C.

Editor   

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Nearly 20 years ago Justice McPherson suspected that there is only one question that occupies the minds of new members of the Bar: Will I succeed at least in making a living at the Bar?1 McPherson J recalled asking that question in September 1965 when he came to the Bar, daunted by being the most junior of 72 barristers in private practice in Brisbane.

There are now more than 800 barristers in private practice in Queensland, and the question posed by McPherson J is no doubt considered by all who have been recently called. This article contains some observations and suggestions directed to those who are new at the Bar, or are considering commencing practice. The author’s background is in commercial law, but the content should be generally relevant, particularly to those who seek to develop a practice in civil litigation.

It is fundamental to establish a budget against which income can be measured. Your budget must take into account your personal expenses (i.e. what it costs to feed, clothe and care for yourself and your dependants), as well as the expenses of maintaining a practice. If a new barrister is able to secure a room to squat in for a period, or which is available at a subsidised rental, then a significant proportion of the practice expense is minimised. Some expenses are unavoidable: robes are required, and it is difficult to imagine practice without a laptop or desktop computer. Subscriptions to commercially published services and reports may be postponed — statutes, rules and forms are readily available online. The Supreme Court Library is freely available, at least to those in Brisbane and contains the largest collection of legal resources in the State. Whatever form of accommodation is taken up, it is likely that colleagues will have copies of or access to reports and textbooks which can be borrowed — the collegiate aspect of practice at the Bar seems undiminished in this regard.

Getting briefs is the thing. Devilling may provide some help with cashflow, but it is the opportunity to appear, or produce sound paperwork in one’s own name, which is treasured by a new barrister. Some of that work will come through flicks and referrals from colleagues. When such an opportunity arrives it should be seized. The singular advantage which a new barrister usually has over more experience colleagues is the ability to devote more time to preparing, researching and undertaking the relevant paperwork, or in preparation for the appearance. This will often mean that the new barrister will have a deeper knowledge of the brief. It also provides the new barrister with the opportunity to conduct more wide-ranging reading of relevant authorities, and in cases where oral evidence is to be given, to spend more time in preparation of evidence in chief and cross-examination. Use these advantages to your benefit. It is not surprising that briefing solicitors are particularly impressed by seeing a new barrister perform well against a more senior colleague, or provide a well-drawn advice or pleading. As to the latter, a quick turn-around of paperwork will leave a favourable impression and, if the work is good, almost certainly garner further briefs.

Ultimately survival at the Bar depends upon being briefed by a sufficient number of solicitors to ensure a relatively steady income. Aside from flicks and referrals, a new barrister should consider submitting papers for publication. Proctor, the monthly journal of the Queensland Law Society, which is widely read and circulated in Queensland, is an obvious publication to which papers might be submitted. But consider carefully the nature and scope of your paper. A topic which is highly specialised, or otherwise unlikely to arise in the day to day practice of solicitors, is unlikely to lead to enquiries as to whether the barrister is available to take a brief. On the other hand, articles which are directed to practical or commonly occurring aspects of practice are likely to be read by many solicitors — and if the article is useful and well-written it is likely that a solicitor who is confronted with such a problem may consider inquiring of the author as to whether he or she is available to take a brief in that area. Consider what are issues of practical application for solicitors involved in, for example conveyancing or succession matters. An article which addresses a current issue in relation to PAMDA forms and their preparation, or their treatment in recent decisions, is likely to be of significant interest to Queensland solicitors. Equally, an article which deals with practical aspects of family provision applications is likely to be interesting to a solicitor in general practice or specialising in that field. The important point is to consider the relevance of the proposed paper to the practice of solicitors. A detailed exposition on some aspect of public international law may well be of interest to those who practice in that field, but is unlikely to generate a flurry of briefs.

A new barrister may wish to join an organisation which is devoted to a particular area of practice (e.g. insurance law, mining law etc.), or a group such as the Queensland Young Lawyers Association. Such organisations provide the opportunity to meet other practitioners, including solicitors, and are devoted to disseminating specialist knowledge and providing opportunities to create contacts between practitioners.

Many such organisations publish newsletters and circulars which also provide an opportunity for a new barrister to submit items for publication.

It is axiomatic that there is no one path to developing a sustainable practice at the Bar. Some barristers will develop a relationship with only a handful of solicitors, even one or two, sources of work which will provide an income sufficient to sustain a practice. Others will develop a broad practice involving intermittent briefs from many firms. Many smaller firms, particularly in suburban and regional areas, are only called upon to brief counsel from time to time. Some barristers will specialise in areas such as industrial law or planning law, where the source of work tends to be concentrated among a smaller pool of firms and solicitors. What is important, when considering the question posed by McPherson J, is developing a sufficient flow of work to sustain the practice. What comprises that sustainable level will, as stated earlier, depend upon the individual’s requirements to meet personal needs and practice expenses.

Not all who commence practice will remain. Putting to one side those who decide that the life of a barrister is not suitable because of the hours involved, or the stress which can attend practice, it is likely that the majority of barristers who do not continue beyond their first year or two cease to do so because they are unable to sustain themselves financially.

McPherson J was called to the Bar in Brisbane at the same time as Ian Callinan, one of the most distinguished barristers to practice in Queensland before his appointment to the High Court. There is reassurance for all new barristers in knowing that every barrister, however senior they may presently be, was once a new junior waiting anxiously for the phone to ring or for a new brief to arrive.

Chris Wilson

1. Queensland Bar News No. 44 June 1993

Wilfrid Prest is Professor Emeritus in history and law at the University of Adelaide. His is a most distinguished career as an historian of the law. His biography of William Blackstone, William Blackstone: Law And Letters In The Eighteenth Century, published in 2009, added to Professor Prest’s distinction. Blackstone biography, as a number of chapter authors in the present text, Blackstone and his Commentaries, make clear, has been one of the more poorly executed aspects of Blackstone scholarship. The Prest monograph and a shorter, self-published piece by English scholar, Ian Doolittle, published in 2001 stand out brightly among the few lack lustre alternatives that exist.

Blackstone and his Commentaries2 is the post production result of a seminar held in December 2007 in Adelaide. Although the Prest biography had not seen the light of day at that point, it is not surprising that Professor Prest was able to attract to mid-summer Adelaide a collection of the leading Blackstone scholars across a variety of specialist areas.

The authors include both biographers, Ian Doolittle and Professor Prest, himself. One of Prest’s colleagues at University of Adelaide, Carol Matthews, provides a fascinating chapter looking closely at Blackstone’s interest in and writing upon the subject of architecture and the way in which that subject influenced Blackstone’s legal writing.

Ian Doolittle’s chapter looks at Blackstone’s unlikely fascination with the radical Puritan politician and lawyer of a hundred years earlier, William Prynne, who had been involved in many disputes before, during and after the Civil War and again after the restoration of Charles II. Prynne was famous, inter alia, for having been imprisoned on numerous occasions and for having his ears clipped by shears in the pillory as a result of his dispute with powerful Anglican Archbishop Laud. Doolittle’s chapter explores the reasons for Blackstone having been an admirer and assiduous collector of Prynne’s writings. Doolittle explains that, despite their apparent religious and political differences (Blackstone was very much an Anglican) and a Tory conservative, Prynne and Blackstone also had much in common including their interest in antiquarian research and in championing the common law’s concern to protect the rights of English citizens. He also points out that Prynne’s politics in the latter part of his life veered towards a conservatism that was not dissimilar to Blackstone’s own political views.

Another Australian scholar, Thalia Anthony, of the University of Sydney [3] considers Blackstone’s famous passages from the Commentaries on the way in which British law considered suitable to local conditions becomes the law of settled colonies. Her essay points out the way in which decisions of colonial and Australian courts had ignored Blackstone’s qualifier that a settled colony must be unoccupied for the doctrine to apply. She also discusses the restoration of the qualifier, most famously, in Sir Gerard Brennan’s judgment in Mabo v Queensland (no. 2).4 Ms. Anthony, interestingly, challenges the High Court’s defence in Mabo of non-Indigenous Australian sovereignty which contrasted with the court’s sweeping away of the terra nullius fiction. Ms. Anthony argues that the sovereignty issue is equally unsupported by Blackstone’s discussion of the law of colonisation and argues that an ex-post treaty should still be sought to establish the Australian polity on a sound legal footing.

There are fifteen separate chapters in Blackstone and his Commentaries. Distinguished American contributors include Morris Cohen,5 Professor Emeritus, Professorial Lecturer in Law and former librarian at the Yale Law School. As one might expect of a librarian, his chapter focuses on the Blackstone bibliographies which are available and how they changed with more recent scholarship. Another American scholar, John V Orth, is a Professor of Law at the University of North Carolina. Professor Orth’s chapter discusses Blackstone’s views upon statutory construction as they emerge in the Commentaries.

The worth of Blackstone and his Commentaries, as a collection of essays, is not to be measured by the distinction of the authors of its various chapters although, in this case, it is difficult to imagine a more impressive collection of scholars covering such a broad range of expertise upon a single person’s life and work. Happily, the quality of the writing, in this case, matches the outstanding reputations of its respective authors.

Postscript

In my review of Professor Prest’s biography of Blackstone, I pointed out that my generation of lawyers, despite our now advancing age, post-dated those who had read and studied the Commentaries as part of their undergraduate courses. I admitted to not reading a single word of the great man’s writing outside of references in decisions such as Mabo.

I have happy to advise that, due to a combination of the Gutenberg Project and being in possession of an iPhone 4, I have downloaded the Commentaries and have read a small number of pages of Blackstone’s introduction to the work. Equally happily, I can say that his writing style is indeed elegant and I may yet devour the whole work.

In the meantime, I happily recommend Blackstone and his Commentaries as a collection of essays each of which is full of interest and which, taken together, provide an important guide to Blackstone’s historic contribution and his continuing relevance for the development of the law.

Stephen Keim

1. Hart describes itself as the largest independent legal publisher in the United Kingdom. It was established in 1996. Its website may be found here.

2. The publisher’s web page for the book may be found here.

3. Ms. Anthony is now a senior lecturer at the University of Technology Sydney.

4. (1992) 175 CLR 1, 26

5. Professor Cohen passed away on 10 December 2010.

By Bradbrook and Neave

Published by Lexis Nexis Butterworths

Reviewed by Dominic Katter

Bradbrook and Neave’s Easements and Restrictive Covenants is the leading Australian text in this area of the law. The first edition of this pre-eminent work was published in 1981. This 2011 third edition accommodates an updated discussion of cases decided since the second edition was published in 2000.

The first and second editions of this important work were co-authored by Professor Adrian J. Bradbrook and Professor Marcia A. Neave. Professor Neave, well-known as the co-author of Sackville and Neave’s Property Law Cases and Materials, was in 2006 appointed as a Justice of Appeal of the Supreme Court of Victoria. The co-author of the text for the third edition, with Professor Bradbrook, is former Associate Professor Susan V. MacCallum of Monash University. Associate Professor MacCallum is also a co-author with Professor Bradbrook of Australian Real Property Law and Australian Property Law: Cases and Materials. Professor Bradbrook is the Bonython Professor of Law at the University of Adelaide and has a Doctor of Laws from the University of Melbourne as well as PhDs from the Universities of Melbourne and Cambridge.

The monograph is well-structured into 19 chapters, with each chapter including sub-headings and paragraph headings. The text is generously supported by appropriate footnote referencing throughout, and the work includes a table of cases, table of statutes and index. Of further assistance to the reader, the substantive text incorporates paragraph numbering as the basis for the index.

This is a practitioners’ text and is therefore a valuable addition to any firm or chambers library. Despite the important detail, the work is written in a clear and concise way, allowing it to be of benefit to all seeking detail in this area. The third edition identifies recent statutory and case law developments, with a further development of the examination of statutory enactments impacting upon the rights of the user in respect of land. Further detail is also added as to the Torrens system. This edition, unfortunately, pre-dates the enactment of the Competition and Consumer Act 2010 (Cth), but includes other applicable recent statutory amendments, such as the Civil Law (Property) Act 2006 (ACT).

This work has justifiably received considerable recognition since its first publication in 1981. The third edition continues the development of this now ‘mature’ resource text, further establishing it as an outstanding reference as to easements and other restrictive covenants. The publisher is LexisNexis Butterworths.1 The hard cover retails for $229.

Footnote

1. The publisher’s web page is here.   

By Lisa Young & Geoff Monahan

Published by Lexis Nexis Butterworths

Reviewed by James McNab

This comprehensive 7th edition text is current as at August 2009.  The book has 16 chapters which relate to all areas of family law practice in Australia such as marriage and de facto relationships, financial support of children, and the manner of dealing with violence and abuse.

The text quite rightly alludes to the fact that Family Law and its legislation is a dynamic, fluid and constantly evolving area.

Family Law in Australia looks at the development of Australian family law and analyses many of the reforms that have been made, particularly, since the introduction of the Family Law Act 1975.  It also goes further back in time and looks at the Matrimonial Causes Act 1959 and examines past, present and future reforms and trends.

Importantly, the text evaluates more recent reforms such as the de facto relationship provisions and the statutory recognition of shared parental responsibilities and looks at possible future directions concerning those types of reforms.  It also looks at and analyses some major cases which impact upon the practice of family law such as Goode v Goode [2006] Fam CA 1346, which discusses the correct principles to be applied in interim parenting orders or decisions.

Another case that Family Law in Australia considers is Magill v Magill (2006) 231 ALR 277 wherein the High Court rejected the use of the tort of deceit to recover money paid for the support of children.

Of particular note in the text is its in-depth analysis of the major changes to the child support scheme.  The authors’ detailed consideration of the history of this often referred to as “controversial” scheme provides a balanced analysis of all the facets of child support.

Of increasing relevance to our modern society, Family Law in Australia covers the often controversial and emotive subjects of research using human genetic and reproductive technology material.  Until recent years, this area of dynamic medical science and research has been relatively unregulated.  The book looks at several cases considering what may be termed “the status” of genetic material.  It also discusses some of the legislation that has been passed at a State and Commonwealth level in this regard.

The text is written in a way to make it a relatively easy read and has been able to analyse some quite difficult and extensive cases quite simply.

The book in the writer’s opinion is an authoritative text comprising of some 826 pages and would be of value to any practitioner’s or student’s library.  The publisher’s price of $148.00 represents excellent value for money for this invaluable, scholarly resource.

Footnotes

  1. Lisa Young is a solicitor of the Supreme Court of Western Australia and the High Court of Australia and is also an Associate Professor of the School of Law of Murdoch University in Perth.
  2. Geoff Monahan is a Federal Magistrate.
  3. The publisher’s web page for the book may be found here.

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law.jpgCIVIL APPEALS

Griffiths v State of Queensland [2011] QCA 057 Muir, Chesterman and White JJA 1/04/2011 

General Civil Appeal from the Supreme Court, Trial Division — Statutes — Liability — Breach of Statutory Duty — The appellant was injured when, in the course of her employment by the respondent as a nursing assistant at the Nambour General Hospital, she twisted her back lifting a canister out of a plastic tub sitting on the top shelf of a steel trolley — Quantum was agreed between the parties to be $600,000 — It was common ground between the parties, and the primary judge held, that the appellant, by proving that she had been injured at work, established prima facie that the respondent employer had breached its duty to ensure the appellant’s “workplace health and safety” — In order to escape liability, the respondent relied on s 26(3) of the Workplace Health and Safety Act 1995 (Qld) — It was also common ground at the trial and on appeal that the Manual Tasks Code of Practice 2000 was a “code of practice” within the meaning of s 26(3) and that it applied in the circumstances under consideration — The primary judge held that the respondent had discharged its duties under the Act — On Appeal — The appellant had handled the canister on only two or so occasions prior to the accident — She found it awkward to handle — Another nurse in the sterilising department, Ms Currey, gave evidence that she had handled the canister over a lengthy period — She said that she complained about it and “just used to comment that it was awkward” — Ms Ricardi was the nurse unit manager of the sterilising department — Ms Ricardi was aware that staff in the department had voiced concerns to the effect that the canister was awkward to handle because of its uneven weight distributions — Other evidence of Ms Ricardi reveals a robust disposition to “get on with the job” and cope with any difficulties rather than reflecting on how they arose or whether they could be minimised — The evidence established that the Task was “a problem task” and that the respondent failed to employ a risk management process to determine whether the Task was a “problem task” — The respondent failed to adopt and follow the way stated in the Code for identifying the Task as a “problem task” and thus failed to come within s 26(3)(a) — An issue which loomed large on the trial and on the appeal was whether consultation within the meaning of s 2.1 of the Code had taken place and whether training had been given to the appellant “in sufficient depth to do [her] jobs safely” — Workplace discussions about the awkwardness involved in handling the canister do not amount to a relevant consultation — The significance of the lack of consultations for present purposes is that it is a further illustration of the respondent’s failure to comprehend and apply the Code’s requirements — The rudimentary training given to the appellant about the lifting and handling of objects had little, if any, bearing on the handling of the canister — Consideration could also have been given to whether it was desirable that it be handled by shorter than average or weaker than average persons — The respondent failed to escape the liability imposed on it by operation of s 28 of the Act — In particular, it failed to establish that it adopted and followed the “way” stated in the Code for managing exposure to the relevant risk — It also failed to prove that it had satisfied the requirements of s 26(3)(b) of the Act — HELD: Appeal allowed, Order of the primary judge be set aside, Respondent to pay the appellant the sum of $639,435.91 and costs.

broken_glasses_250.jpgLusk & Anor v Sapwell [2011] QCA 059 Muir JA, Margaret Wilson AJA and Ann Lyons J 1/04/2011

General Civil Appeal from the Supreme Court, Trial Division — Torts — Negligence —Employer and Employee — Damages — In January 2005, whilst employed in an optometry practice owned and operated by the appellants the respondent was sexually molested by an elderly male customer (“the offender”) — After a three day trial, the primary judge found that the appellants were in breach of their duty to protect the respondent, “an employee in a vulnerable position” — Damages were assessed at $390,558.82 and it was ordered that judgment be entered for the respondent in that sum — On Appeal — The offender entered the shop unaccompanied — He requested the respondent, who, as usual, was attending the shop by herself, to fit his glasses — The respondent, who had been behind the reception desk, came around into the body of the shop and fitted them on his face — She then took the spectacles and walked to the back of the shop past the reception desk and turned into the workroom — The respondent was then sexually molested by the offender — There was no view into the workroom from the street, footpath or reception area — Mr Richard Jennings, a “consultant safety and security risk analyst” made reports which were tendered — Mr Jennings conceded in cross-examination that the subject business was not one that “incurred any special security or safety risks which would be the case in a retail shop where the product sold was of substantial value” — There was no evidence of any assault on a female employee having taken place in an optometry shop and no evidence which might warrant the conclusion that such an attack might occur except by way of an entirely fortuitous random act of violence which might occur regardless of location — The appellants were entitled to regard the magnitude of the risk of assault and the probability of its eventuating as singularly slight — The evidence did not suggest that Mr Jennings had any expertise in the workings of an optometry business and his opinion that employees in a business of the type in question should always be within the public gaze may be thought problematic — In cross-examination, Mr Jennings accepted that providing a lockable door “would simply increase the likelihood or the duration or the ferocity of an assault” if an attacker got into the backroom undetected — Having regard to the magnitude of the risk of a female employee being assaulted and the absence of persuasive evidence that one or more of the precautions identified by the primary judge or advocated by counsel for the respondent was or were practical or likely to afford an employee an appreciable degree of protection from assault, it was not established that it was unreasonable of the appellants not to have taken any such precaution — It is necessary to consider the appeal against quantum in case the above findings on liability do not survive an appeal — It is accepted that the evidence of the respondent needed to be treated with considerable caution — The respondent attended an interview for prospective employment at Franz Felfer Optometry days before the commencement of the trial — The respondent provided Ms Crilly, the interviewer with a resume at the time of her job interview — This rather damaging document was not disclosed, although the evidence was that the respondent’s solicitors explained to the respondent her duty of disclosure — The respondent was less than frank when on oath about a matter which she must have realised had a substantial bearing on the outcome of her damages claim — When this blatant dissembling is coupled with her failure to disclose her resume, and the difficulties with her evidence concerning her mental history it is impossible to regard the respondent as a witness of credit — The evidence does not support the award of $200,000 for future economic loss, the calculation of which was based on the premise that the respondent would be able to work only five hours per week — It is reasonable to assess future economic loss on the basis that the respondent had the capacity to work up to 16 hours per week — HELD: Appeal allowed with costs, Judgment at first instance be set aside.

justice-scales-sepia.jpgCreswick v Creswick & Ors; Tabtill Pty Ltd & Ors v Creswick [2011] QCA 066 Fraser JA 14/04/2011

Application for Stay of Execution from the Supreme Court, Trial Division — Practice and Procedure — Stay of Proceedings — Time for Appeal — Extension of Time — When Granted — On 13 September 2010 a judge of the trial division decreed specific performance of an agreement made on 26 May 2007 (“the May agreement”) between the first plaintiff (John Creswick), the second plaintiff, the third plaintiff, the fourth plaintiff, and the defendant (Felix Creswick, who is John Creswick’s father) — One effect of the order which otherwise dismissed the plaintiffs’ claim was to dismiss a claim brought by the fifth plaintiff (“Tabtill”) against the defendant in relation to the “Crump Street properties” — The Court is empowered to extend the time for appealing by UCPR r 748, under which a notice of appeal must, unless the Court of Appeal orders otherwise, be filed within 28 days after the date of the decision appealed from — The defendant had earlier foreshadowed an appeal in correspondence, but the filing and service of his notice of cross appeal made his position unmistakeably clear — The notice of cross appeal was filed just over a fortnight after the expiry of the time for filing a notice of appeal — The cross-respondents contended that the defendant should be refused the extension of time he requires for appealing because, so the cross respondents argued, they were prejudiced by the defendant’s delay in appealing — The evidence of prejudice remains unpersuasive — The cross-respondents contend that the defendant’s prospects of success in the proposed appeal are so poor that an extension of time should be refused — The parties’ submissions about prospects were said to be preliminary and likely to be expanded if the defendant’s appeal is permitted to proceed, but those preliminary arguments were themselves detailed and extensive — That reflected the length of the trial (some four and a half weeks), the detailed analysis in the trial judge’s 117 page reasons for judgment, and perhaps also the strength of the parties’ desires vigorously to pursue their dispute — It is difficult to make any very reliable assessment of their merits without an extensive analysis of the evidence at trial and the trial judge’s reasons, a task which is impracticable to carry out on the limited record in this interlocutory application, but I have concluded that the proposed appeal appears to be arguable — Contrary to one of the defendant’s arguments, the importance of not treating the specific performance decree as being merely provisional is not lessened by the fact that in this matter the trial judge is yet to decide upon the appropriate costs orders — However, it is immediately apparent that if the defendant is required to transfer his interests in 35 Sentinel Court and 905 Logan Road there is a risk that those plaintiffs to whom the interests are transferred may sell or mortgage the properties so as to put it beyond the Court’s power to require a re-transfer in the event of a successful appeal by the defendant — The plaintiffs have not offered any undertaking in place of the land presently registered in the defendant’s name which the plaintiffs threaten to alienate if the specific performance decree is not stayed, and the plaintiffs have also not provided evidence of assets which might be available for execution on the defendant’s application if he succeeds in his appeal — There is more substance in the plaintiffs’ contention that a stay would work injustice because, although performance of the May agreement would be stayed, the plaintiffs would be required to continue to pay the rates and outgoings for 35 Sentinel Court and 905 Logan Road, and for the properties known as 8 and 10 Crump Street, Holland Park, and Office Lane, Wanora, and to make weekly payments to the defendant of $1,250 — Those obligations were imposed by paragraphs 3(b) and (c) of an order made by White J (as her Honour then was) on 28 February 2008 as conditions of permitting the retention over 35 Sentinel Court of a caveat lodged by William and Jane Creswick — It does strike me as unjust that the defendant should be granted a stay of the decree for specific performance whilst the plaintiffs continue to be required, as a condition of maintaining a caveat which merely secures land the subject of the decree, to comply with conditions 3(b) and (c) of the 28 February 2008 order — For the reasons given, I am prepared to grant a stay only upon the condition that the retention of the plaintiffs’ caveat over 35 Sentinel Court is not subject to the conditions expressed in paragraphs 3(b) and (c) of the 28 February 2008 order — The defendant also sought a stay of the trial judge’s direction that the parties’ counsel bring in such orders as may be required to give effect to the decree of specific performance of the May agreement — Those arguments may more appropriately be made before the trial judge for the purpose of finalising the orders necessary to give effect to the decree of specific performance — Whether or not that is so, the defendant did not point to any disadvantage resulting from refusal of a stay of the procedural order as would justify the imposition of such an unusual stay — HELD: Extension of time for appealing allowed, Upon undertakings there be a stay of order number 1 of Daubney J on 13 September 2010, Stay of order number 2 of Daubney J on 13 September 2010 be refused, Costs.

Edwards v Bray & Anor [2011] QCA 072 White JA, Margaret Wilson AJA and Ann Lyons J 15/04/2011

Application for Leave from the District Court — Professions and Trade — Lawyers — Remuneration — The applicant was a solicitor retained by the respondents — His retainer was terminated in late 1999 — On or about 28 April 2004 the applicant delivered an itemised account for $31,647.02 to the respondents — On 19 January 2005 the respondents applied to the Solicitors Complaints Tribunal for the appointment of a costs assessor to assess the account — The clerk of the Tribunal appointed a costs assessor, who issued a costs assessment in the sum of $26,696.07 on 9 May 2006 — On 6 July 2006 the applicant filed a claim in a Magistrates Court for “Professional costs and outlays as specified in the Statement of Claim” together with interest and costs — So far as presently relevant, he claimed this relief in his pleading — “a) the sum of $26,696.07 being monies owing pursuant to the Written Assessment …. dated 9 May, 2006.” — On Appeal — The relationship between a solicitor and his or her client was contractual, and on the termination of the retainer, the solicitor had a cause of action for moneys owing pursuant to the contract — The solicitor’s cause of action accrued when he or she completed the work, rather than upon the expiration of one month from the delivery of the account — The applicable limitation period was six years from the accrual of the cause of action — Section 6ZE(2) of the Queensland Law Society Act 1952 (Qld) provided that “a binding costs assessment” might be “enforced as a debt for the assessed amount” — The provisions of Part 2A division 6A of the QLS Act were intended to provide a procedure for the resolution of quantum that was alternative to and less formal and expensive than Court proceedings — In short, these provisions were not intended to provide an alternative source of the solicitor’s entitlement to fees or costs; nor were they intended to alter or provide an alternative limitation period applicable to the solicitor’s claim — Section 10(1)(d) of the Limitation of Actions Act applies where the claimant has a right of recovery sourced in a statute and a cause of action (that is, a factual situation which would support his or her right to judgment ) has arisen — Section 6ZE(2) of the QLS Act was not a source of the applicant’s right of recovery — It merely provided an appropriate procedural mechanism for the enforcement of the right to recover the fees or costs (a right that had been conferred by contract and that had arisen on the termination of the retainer) in circumstances where the only issue was quantum and that was now resolved in a way that was binding on the parties — HELD: Application dismissed with costs.

surgury2.jpg Hertess v Adams [2011] QCA 073 Muir JA, Margaret Wilson AJA and Martin J 15/04/2011

Application for Leave from the District Court — Limitation of Actions — Extension of Period — Cause of Action in Respect of Personal Injuries — The applicant seeks leave to appeal pursuant to s 118(3) of the District Court of Queensland Act 1967 against an order of a judge of the District Court on 6 October 2010 allowing the respondent’s application, by originating application for an order, that the time for commencing proceedings claiming damages for personal injuries by the respondent be extended to 11 March 2010 pursuant to s 31(2) of the Limitation of Actions Act 1974 (Qld) — The applicant plastic surgeon carried out breast augmentation surgery on the respondent on 13 June 2003 — A claim, some three years and nine months outside the limitation period, and statement of claim were filed in the District Court on 11 March 2010 — The most substantial, if not the only, allegation remaining against the applicant after a concession made by the respondent’s counsel at first instance was that the applicant failed to provide the respondent with adequate information as to the risks associated with the surgery — At first instance the applicant identified the most substantial source of prejudice to the applicant arising from delay as being that: (a) the nurse who assisted the applicant with the procedure and who had contact with the respondent “no longer works for [the applicant] and has indicated that she will not assist” in the defence; and (b) the disadvantage suffered by the applicant in having to rely on evidence of her usual practice rather than “on personal recollection of events” — In dismissing the first ground, the primary judge said: “I cannot recall being directed to any material to indicate that that situation might be different had the action been commenced within the time limits prescribed by the Act …” — When discussing the second ground his Honour said that the inference which the applicant sought to have him draw was that, without delay, the applicant may have been able to rely on a personal recollection of events — On Appeal — In respect of both grounds then the primary judge looked, impermissibly, to the comparison of the prejudice which was likely at the time of application to that which would have existed in any event had the application been made within the limitation period — Although the prejudice created by the delay in commencing proceedings is relevant and may be a very significant consideration, Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541 makes it plain that the existence and extent of any prejudice to the applicant must be assessed as at the date of the application — The primary judge did not make this assessment — He thereby failed to give due weight to the prejudice suffered by the applicant, both presumptive and actual, and to the fact that an extension of time would operate to deprive the applicant of the protection of the Act — In considering prejudice, the primary judge examined the arguments advanced on behalf of the applicant, which centred around evidentiary problems the applicant would face resulting, at least in part, from the passage of time — The approach of the primary judge was to assume that the applicant, having brought herself within s 31(1), was entitled to an extension of time unless the respondent to the application for an extension of time established “some matter justifying the exercise of a discretion against the granting of an extension” — That reversed the onus of proof — The applicant had adduced sufficient evidence to satisfy the evidentiary onus on it to show “that prejudice would be occasioned” — It remained for the respondent to persuade the court that the prejudice to the applicant was not such as to warrant the exercise of the discretion against the granting of the application to extend time — The lengthy delay in commencing proceedings has given rise to presumptive prejudice of the type discussed in Brisbane South at 555 — There was also significant actual prejudice to the applicant existing at the date of the application to extend time and the respondent has failed to show that delay has not made the chances of a fair trial unlikely — HELD: Application for leave granted, Appeal allowed, Orders at first instance be set aside, The Application filed on 10 June 2010 be dismissed with costs.

Elsafty Enterprises Pty Ltd & Anor v Gold Coast City Council [2011] QCA 084 Chesterman and White JJA and Martin J 29/04/2011  

Application for Leave Sustainable Planning Act — Administrative Law — Judicial Review — Procedural Fairness — Bias — Apprehension of Bias — Environmental Planning — Planning Scheme and Instruments — On 15 December 2010 Robin DCJ sitting in the Planning and Environment Court ordered that the applicants until further order, desist from undertaking any activity involving use by the public for the consumption of food and beverages, including such uses as comprise a material change of use as a Café, Tavern, Restaurant, Reception Room or any other undefined use which is assessable under the Gold Coast City Plan 2003, on the roof top of the building known as the ‘Burleigh Beach House’ — The applicants, whom it is convenient to refer to by name rather than status in the proceedings, are Elsafty Enterprises Pty Ltd, the lessee of the land, represented by its director Mr El Safty, and Sustainable International Property Pty Ltd, represented by its director Mr Youssef, the proposed operator of the roof top facility — The applicants had contended below, in response to an application by the GCCC for an enforcement order to restrain the proposed use of the roof top for the consumption of food and drink in premises which Elsafty Enterprises operates a restaurant, that a permit to do so was not required because such a use was encompassed in the existing permit to operate a restaurant — On 7 March 1986 Row DCJ made formal orders subject to certain conditions — Relevant, for this application, are the following as issued by the GCCC: “the Council of the City of Gold Coast hereby approves an application to erect a Restaurant on land described as … subject to the following conditions: (28) Restaurant to accommodate no more than 200 people. … (36) The approval is only for a restaurant and any discotheque type activity would be subject to consent for indoor recreation and would require a Town Planning Application” — At the hearing below and on this application the position of the GCCC was that there was no absolute opposition to the use proposed, merely that the applicants were required to go through the usual planning processes as had occurred in the past, for example, for extended restaurant facilities around the swimming pool — After the hearing had concluded on 14 December 2010 the primary judge gave ex tempore reasons the following morning mindful that both sides were concerned for an early decision — There is no complaint that his Honour overlooked any relevant fact in his careful recital of the history and of the issues — The primary judge considered the relevant provisions in the legislation and concluded that the proposed use was not a minor change in the scale or intensity of an existing use and the restraint order should be made — On Appeal — It was abundantly clear that the judge had not reached any conclusion on the construction point when he adjourned proceedings on the evening of 14 December 2010 — He said so several times and recognised the analysis to be difficult — With one or two exceptions, towards the end of the hearing where some mild exasperation at lengthy and unfocussed cross-examination is discernible from the primary judge, the interventions were directed to exposing the issues which had to be decided — There can be no doubt, after reading the whole transcript of the proceedings, that Mr El Safty had detailed knowledge of the relevant planning scheme and supporting legislation as well as of the long history of this site — Mr Youssef’s self-proclaimed expertise in property matters at the commencement would have conveyed to a fair minded observer that he did not think that he required legal assistance — These men were tertiary educated, commercially astute and experienced developers who, no doubt, from a past course of dealings with local authorities, thought that a satisfactory outcome could be negotiated rather than retaining lawyers when the application was served on them — The earnest attention to the issues by the primary judge set out very fully in a lengthy ex tempore judgment given the following morning after a late sitting demonstrates appropriate even handedness — The definition of a “Restaurant” in the 1982 Town Planning Scheme for City of Gold Coast is not materially different in the 2003 Planning Scheme except the meals served are no longer to be “substantial” and the patrons need not be seated — There is nothing about the proposal for upwards of 250 people on the roof engaging in the consumption of food and liquor purposes with music which is incidental to the operation of the restaurant — Nor is it necessarily associated with the restaurant — What is proposed is a separate facility, not the stroll up to the roof with a glass of wine (with or without the plates of tapas) to look at the view between courses from the restaurant below mentioned by Mr Cooke — The applicants contend that on a proper construction of the Planning Scheme and its definitions the flat roof of the building would not be included in the calculation of the Total Use Area — I would conclude that the applicants are correct in arguing that the roof area does not exceed the allowable margin of total use area — But that is not the true issue — What is proposed is the start of a new use of the premises — The plan to have the restaurant provide the food and, in the interim, liquor for reward would involve a change in the scale of the existing restaurant use that exceeded “the limits expressed in the approved Plan of Development” — HELD: Application for leave to appeal refused with costs.

fingerprint.jpgCRIMINAL APPEALS

R v RAI [2011] QCA 064 White JA, Margaret Wilson AJA, Ann Lyons J 12/04/2011

Appeal against Conviction from the District Court — Miscarriage of Justice — Particular Circumstances Amounting to Miscarriage — On 13 January 2010 after a three day trial before a jury in the District Court Maroochydore, the appellant was convicted of two counts of rape, two counts of unlawful carnal knowledge and one count of attempting to procure an intellectually impaired person to commit an indecent act — Mr RAI is 49 years of age and has borderline intellectual functioning and behavioural difficulties probably as a result of brain damage which he sustained in an accident when he was 13 years old — The complainant was the appellant’s biological daughter, R who was aged between 16 and 17 during that time period — She also has an intellectual impairment — The complainant’s evidence was pre-recorded before Dodds DCJ on 22 November 2006 on the basis that she was declared a ‘special witness’ for the purposes of s 21A of the Evidence Act 1977 (Qld) — On Appeal — This matter has an extensive history of delay including a significant period of delay on the part of the appellant — It is important to remember at the outset that there is a presumption of sanity and of capacity for a matter — It must be determined whether when Mr RAI was re-arraigned and the trial commenced on 11 January 2010 the trial judge was satisfied that he was both fit to plead and to stand trial — In this case the learned trial judge had seen Mr RAI on a number of occasions and particularly had seen him in interactions with his mother — Of particular significance was the lengthy cross-examination of a number of witnesses on 1 December 2009 — A perusal of the transcript of that date clearly indicates that Mr RAI was closely involved in instructing his mother on that occasion — There are numerous instances in the transcript where it is clear that Mr RAI is querying particular issues — It is readily apparent from a reading of the transcript that Mr RAI was clearly following the exchanges which were going on in the Court — It is also clear that he is giving very firm instructions to his mother on a number of occasions — Furthermore as Mr RAI had essentially refused to undertake any examinations there was no evidence before the learned judge that he would not be able to understand the proceedings or the nature of the trial — A reading of the transcript of the trial as a whole similarly does not reveal anything to indicate that Mr RAI was not able to understand the nature of the evidence against him, give instructions about his response to the charges and have his version of events put to the witnesses — At the close of the prosecution case, Mr RAI made it very clear that he did not wish to give evidence — The transcript indicates that they were his very clear instructions — Whilst Mr RAI had none of the safeguards which come with having a competent counsel engaged on one’s behalf there is no doubt that his mother capably conducted a defence on his behalf — There is no doubt that Mr RAI knew what he wanted to rely on and he communicated his version of the facts to his mother — Mr RAI and his mother were not, of course, conversant with court procedure, but the learned trial judge patiently and consistently gave appropriate guidance at crucial times — It cannot be the case that s 613 must be engaged whenever there is any level of intellectual impairment — Furthermore, the section cannot be automatically engaged and remain engaged when the accused wilfully refuses to submit to an examination to clarify the issue — HELD: Appeal dismissed.

car_crash.jpgR v TX [2011] QCA 068 Muir JA, Margaret Wilson AJA and Peter Lyons J 15/04/2011

Sentence Application from the Childrens Court — Sentencing Orders — Discretion to Record Conviction — Relevant Considerations — On 29 October 2010, the applicant was sentenced on his plea of guilty on one count of dangerously operating a motor vehicle — The offences occurred after the applicant took his mother’s car, without her permission, and picked up three young girls (one at least of whom was previously known to him) — He drove at times at speed, and on a number of occasions in a way described as doing “burnouts”, ultimately losing control of the vehicle and crashing into a power pole — The circumstance of aggravation referred to in the indictment relates to one of the girls, who suffered an injury to her leg — After the accident, the applicant helped another of the passengers, who was unable to release her seatbelt, to get out of the car — The applicant went and sat in another car, and asked the driver of that car to take him to his home — When she did not do so, he got out of the car, and ran off — The applicant participated in a Youth Justice Conference (YJC), which resulted in a YJC Agreement — This recorded the applicant’s apology to the complainant, and that his three passengers wished the applicant well — Having imposed the sentence, the learned sentencing Judge turned to the question of recording a conviction — She observed that ordinarily a conviction would not be recorded for a juvenile first offender, even for a serious offence, if based on criminal negligence — She then said, “Added to that is the fact that you ran away before the police arrived defeating any hope of testing you for alcohol” — She observed that a conviction was less likely to have an impact on the applicant’s employment, which has been in the area of labouring and as a factory hand — Her Honour decided to record a conviction — On Appeal — It is clear that the learned sentencing Judge relied upon one matter which could have been included in the indictment, namely, that the applicant left the scene of the incident, before a police officer arrived, in circumstances where there was evidence to establish that he knew, or ought reasonably to have known, that another person had been injured — Her Honour relied on the applicant’s intoxicated condition — She did this as the explanation for his departure, and undoubtedly regarded it as a circumstance which made more serious his conduct in leaving the scene of the incident — While her Honour expressly recognised in her sentencing remarks that the applicant could not be sentenced on the basis of his intoxicated state, it is clear that she acted on this basis when deciding the conviction should be recorded — The principle established in The Queen v De Simoni (1981) 147 CLR 383 applies also to a decision whether or not to record a conviction — It would follow that a decision to record a conviction was in this case wrongly made — It is now well established that the prima facie position under provisions such as ss 183 and 184 of the YJ Act is that a conviction is not to be recorded against a child — Even without reference to such provisions, reluctance has been expressed to record a conviction against a child in the case of a serious offence which is substantially the product of criminal negligence, rather than of malice or conscious wrongdoing — The fact remains that the offence was a serious offence — Nevertheless, the complainant’s injury is clearly at the lower end of the range of injuries which would qualify as grievous bodily harm — Bearing in mind the prima facie position previously referred to, and notwithstanding the seriousness of the offence, the circumstances of this case on balance would justify an order that no conviction be recorded — HELD: Application for leave to appeal be granted, Appeal allowed, The order at first instance recording a conviction be set aside.

surgery.jpgR v Patel; ex parte A-G (Qld) [2011] QCA 081 Margaret McMurdo P, Muir and Fraser JJA 21/04/2011

Appeal against Conviction & Sentence, Sentence Appeal by A-G (Qld) from the Supreme Court, Trial Division — Interference with Discretion or Finding of Judge — Control of Proceedings — Improper Admission or Rejection of Evidence — Sentence Manifestly Excessive or Inadequate — On 29 June 2010, after a 58 day trial in the Supreme Court at Brisbane, a jury found the appellant Jayant Patel guilty of the manslaughter of three persons and of unlawfully doing grievous bodily harm to another person — The charges arose out of surgical operations which the appellant conducted upon those men whilst the appellant was employed as a surgeon at the Bundaberg Hospital between May 2003 and December 2004 — On 1 July 2010, the trial judge sentenced the appellant to concurrent terms of seven years imprisonment for each of the manslaughter offences and three years imprisonment for the grievous bodily harm offence — The trial judge directed the jury that the trial was “not about botched surgery” but was instead “about surgery performed competently enough”; that it was “not how the Accused performed surgery that matters in these four cases” and that what mattered was “his judgment in deciding to commend the surgery to a patient and, having obtained [the] patient’s consent, in taking the patient to theatre to perform it” — In that respect, the case put to the jury in relation to each patient was that the appellant should not have embarked upon the surgery notwithstanding that each patient had consented to it — The trial judge held that: under s 288 the relevant “act” was not the performance of surgery, but rather the administration of surgical treatment; whilst “surgical treatment” will typically be surgery, that expression may extend to diagnosis of a condition and advice about it; and the duty imposed by s 288 might oblige the surgeon not to commend surgery to a patient or not to perform it even with the consent of the patient — Section 288 creates consequences for any omission to observe or perform a duty in administering surgical or medical treatment — The relevant “omission” is an omission to observe or perform a duty, not an omission to perform an act. The duty might require the person bound by it either to perform an act or to refrain from performing an act — It follows that s 288 may be invoked in a prosecution for unlawful killing, or doing grievous bodily harm, where the death or harm is alleged to result either from a positive act of the accused or an omission by the accused in administering surgical or medical treatment — The appellant contended that the contrast between the language of s 288 (“do any other lawful act” and “in doing such act”) and the language of s 282 (“the performance of the operation is reasonable”) indicated that s 288 applied only in relation to carelessly performed surgery rather than surgery that should not have been performed at all — Section 282 fulfils the very different function of excusing criminal responsibility which otherwise would be imposed by a different provision — In this respect, we respectfully disagree with the trial judge’s conclusion, expressed in his reasons for Ruling No 3, that s 282 applies only where there is no effective consent to the surgical operation — In our respectful opinion s 282 is capable of application both where consent is present and where it is absent — We would respectfully endorse the trial judge’s conclusion that the text of s 288 conveys that it applies both in relation to surgery performed in a criminally negligent manner and in relation to surgery that should not have been performed at all so that undertaking to perform it was, in itself, criminally negligent — The thrust of the appellant’s case was that the change in “direction to an entirely new case after [the prosecution’s] case had closed” necessarily resulted in unfairness — On day 38 the trial judge informed counsel in the course of discussion about the management of the case that he remained concerned about the state of the particulars — On day 39, the trial judge again raised the state of the particulars — Revised particulars of all four charges (“final particulars”) were provided on day 43 — The trial judge observed that they were a “vast improvement” — The trial judge held that the case intended to be propounded by the prosecution on the final particulars was embraced by the old particulars — Grounds 3, 5, 8 and 9 are based on the false premise that the prosecution case changed from one concerned entirely with proving that the appellant had performed the actual surgery negligently, to one concerned only with proving that the appellant should not have operated — There was, in fact, little difference in the evidence admissible in each of the prosecution cases under the different sets of particulars — Defence counsel were content between day 10 and day 43 to proceed with the case as particularised by the prosecution — They were aware that the trial judge was not comfortable with the way the prosecution case had been particularised — The failure to press for further particulars, viewed objectively, is readily explicable as a tactical decision — It is often not in the interests of the defence to have the prosecution case stripped of unnecessary distractions and fully focused — There was no material irregularity or unfairness in the conduct of the trial — The maximum penalty for each of the three manslaughter offences is life imprisonment — The maximum penalty for the offence of doing grievous bodily harm is 14 years imprisonment — None of the offences involved an element of intention to harm — The appellant is elderly and is unlikely to achieve re-registration as a doctor in Queensland, even were he to seek it, so that personal deterrence is not a significant sentencing principle in this case — The effect of the appellant’s offending is broader than its impact on the immediate victims — It had the potential to undermine the Queensland public’s confidence in its hospital system — For these reasons, the primary judge was right to recognise that an important purpose in sentencing the appellant was to make it clear that the community, acting through the courts, denounced his conduct in committing the present offences — In our view, the sentence imposed properly balances the exacerbating and mitigating features of this unique case — It was not manifestly excessive — After careful consideration of the competing exacerbating and mitigating features, we are unpersuaded that the sentences were manifestly inadequate; failed to reflect adequately the gravity of the offending; failed to take sufficiently into account general deterrence; gave too much weight to mitigating factors; or that the judge erred in failing to declare the appellant to be convicted of serious violent offences — HELD: Appeal against conviction dismissed, Attorney-General’s appeal against sentence dismissed, Application for leave to appeal against sentence refused.

 

 

 

child_abuse_2.jpgSKA v The Queen [2011] HCA 13

SKA was convicted of five counts of sexual offences against a child committed when the child was staying at the house of SKA and his family. The offences were alleged to have been committed in two time periods. Three counts were alleged to have occurred in 2004. Counts four and five were alleged to have occurred between 1 December 2006 and 25 December 2006. In relation to counts four and five, the child was unable to specify a date on which the incidents took place but gave evidence that it was around Christmas 2006. The date on which these two offences were said to have occurred was critical because SKA led evidence at trial which provided an alibi for the period from the evening of 22 December 2006 up to and including Christmas Eve.

SKA appealed to the Court of Criminal Appeal of New South Wales against conviction and sentence, including under s 6(1) of the Criminal Appeal Act 1912 (NSW) on the ground that the verdicts of the jury were perverse and not supported by the evidence. Section 6(1) states that the Court of Criminal Appeal “shall allow the appeal if it is of opinion that the verdict of the jury should be set aside on the ground that it is unreasonable, or cannot be supported, having regard to the evidence”. The Court of Criminal Appeal dismissed SKA’s appeals and allowed the Crown’s cross-appeal against sentence.

SKA’s application for special leave to appeal to the High Court from the Court of Criminal Appeal’s decision was referred to the Full Court. Today, the High Court granted special leave on three grounds of appeal, and a majority of the Court allowed the appeal, holding that the Court of Criminal Appeal had incorrectly concerned itself with whether, as a question of law, there was evidence to support the verdicts, rather than making its own assessment of the evidence. The High Court held that it was critical for the Court of Criminal Appeal to determine the date at which it was alleged, in the evidence, that SKA committed the offences the subject of counts four and five. The Court of Criminal Appeal’s failure to do so led the Court into error when considering the sufficiency of evidence to support the jury’s verdict.

The High Court also refused special leave to appeal on two grounds of appeal, holding that the Court of Criminal Appeal was not in error in not viewing a video recording of an interview between the child and the police, instead relying on a transcript of the recording.

The order of the Court of Criminal Appeal dismissing SKA’s appeal against conviction to that Court was set aside and the matter was remitted to the Court of Criminal Appeal for rehearing.

domestic_violence.jpgRoach v The Queen [2011] HCA 12

Mr Roach was convicted by a jury of assault occasioning bodily harm, arising out of an alleged incident with the complainant, a woman with whom he had been in an intermittent relationship for two and a half years. Mr Roach had telephoned the complainant asking if he could visit her. Shortly thereafter he arrived at the complainant’s house, and immediately went to get a drink from the refrigerator. When the complainant suggested that he ought not to help himself before being invited to do so, Mr Roach allegedly punched her face and arms, then pulled on her left arm, which he had previously injured. He then spoke aggressively to her, before punching her another eight times.

At Mr Roach’s trial in the District Court of Queensland, the trial judge admitted evidence of other assaults by Mr Roach upon the complainant in the course of their relationship. Section 132B of the Evidence Act 1977 (Qld) (“the Act”) applies, inter alia, to proceedings for assault occasioning bodily harm and states that “[r]elevant evidence of the history of the domestic relationship between the defendant and the person against whom the offence was committed is admissible in evidence in the proceeding.”

In the Court of Appeal Mr Roach argued that, in considering whether to admit such evidence under s 132B, the trial judge ought not to admit that evidence if, in the context of the prosecution case, there was a reasonable view of that evidence consistent with innocence (“the rule in Pfennig“). The rule in Pfennig recognises the prejudicial effect of evidence used to prove a propensity of the accused (“propensity evidence”), and applies at common law to propensity evidence as a measure of the probative force of that evidence. Mr Roach contended alternatively that if the evidence were admitted, the jury ought to have been directed that they could not rely upon it unless satisfied of its truth beyond reasonable doubt. The Court of Appeal rejected both arguments and dismissed the appeal. It held that the sole test for admissibility under s 132B of the Act is relevance, and that the rule in Pfennig had no application.

In the High Court, Mr Roach advanced the same arguments. He argued further, and in the alternative, that the rule in Pfennig ought to be considered and applied in connection with s 130 of the Act. Section 130 provides that nothing in the Act “derogates from the power of the court in a criminal proceeding to exclude evidence if the court is satisfied that it would be unfair to the person charged to admit that evidence.”

Today the High Court dismissed the appeal. It observed that s 132B has a potentially wide operation not restricted to similar fact evidence tendered to prove propensity on the part of the accused, and that the sole test of admissibility for evidence of domestic violence in the history of a relationship is relevance. The Court observed that, while the rule in Pfennig addressed the same factors as are relevant to a court’s discretion to exclude evidence on the basis of unfairness, the rule in Pfennig was of the nature of an exclusionary rule of law rather than a discretion. Therefore the rule could not be imported into the power referred to in s 130, which is discretionary in nature.

In relation to the adequacy of the directions to the jury, the High Court held that the directions explaining the limited use to which the evidence of the history of the relationship between Mr Roach and the complainant may be put were sufficient, and that it was neither necessary nor appropriate for any direction to be given about the standard of proof to be applied to that evidence. Contrary to the view taken in the Court of Appeal, the High Court observed that there was a dual purpose for which the evidence was tendered: evidence both of the alleged offence and as “relationship” evidence.

Kuhl v Zurich Financial Services Australia Ltd & Anor  [2011] HCA 11

Today the High Court allowed an appeal against a decision of the Court of Appeal of the Supreme Court of Western Australia and held that Zurich Financial Services Australia Ltd (“Zurich”) was liable in negligence to Mr Geoffrey Lawrence Kuhl.

In 1999 Mr Kuhl, an employee of Transfield Construction Pty Ltd, suffered injuries on a work site when his left arm was sucked into a vacuum hose after the hose was passed to him by another person. Mr Kuhl commenced an action in negligence against Zurich and QBE Insurance Services Australia Ltd (“QBE”) in the District Court of Western Australia. Mr Kuhl alleged that WOMA (Australia) Pty Ltd (“WOMA”) and Hydrosweep Pty Ltd (“Hydrosweep”) were liable in negligence for his injuries. Zurich and QBE were the respective insurers of these two companies.

The District Court held that neither Zurich nor QBE were liable to Mr Kuhl in negligence. Mr Kuhl appealed to the Court of Appeal. The Court of Appeal dismissed the appeal on the basis that neither Zurich nor QBE owed Mr Kuhl the duties of care contended for, and that there was no breach of duty in any event.

A majority of the High Court allowed the appeal, and made an order setting aside the orders of the Court of Appeal and the District Court in respect of Zurich and entering judgment against Zurich in the amount of $265,000. The High Court held that WOMA had a duty of care to users of the hose which extended to risks in relation to the passing of the hose. The Court further held that WOMA had breached that duty by failing to issue instructions not to pass the hose while the power was turned on and by failing to install a “break box” close to the head of the hose which could be employed to break the vacuum pressure, and that each of these breaches had caused Mr Kuhl’s injuries. The High Court also held that the trial judge erred in drawing an inference adverse to Mr Kuhl, on the basis of Mr Kuhl’s oral evidence, that some action by him subsequent to the passing of the hose caused his arm to be drawn in to the hose. The nature of this error was the trial judge’s failure to give reasons for his inference and his failure to give Mr Kuhl an opportunity to address the point.

The High Court upheld the orders of the District Court and the Court of Appeal in favour of QBE.