Court of Appeal Judgment Summary Notes

CIVIL APPEALS

Tarong Energy Corporation Limited v South Burnett Regional Council (formerly Nanango Shire Council) [2009] QCA 265 Muir JA Fraser JA White J 8/09/2009

General Civil Appeal from the Supreme Court, Trial Division — Procedure — Discovery and Interrogatories — Production and Inspection of Documents — Client Legal Privilege — What Constitutes — The appellant (“the Council) received an opinion from a barrister in relation to litigation brought against it by the respondent (Tarong) regarding rates — The Council gave this opinion to an external management and financial consultant for the purpose of obtaining advice about appropriate budget and rating resolutions — The consultant provided this advice to the Council in a report with this report summarising the barrister’s opinion received by the Council — Tarong sought production of the consultant’s report in relation to rates litigation — The primary judge found that the Council was not entitled to legal professional privilege in the consultant’s report and ordered that the Council deliver a copy of it to Tarong — On Appeal — Council conceded that the argument about privilege which it advanced on appeal was “traversed only briefly and peripherally in oral submissions” before the primary judge — Tarong did not contend that it was prejudiced by this new approach —A party to litigation who is entitled to legal professional privilege in confidential legal advice about that litigation is entitled to invoke that privilege as a ground for resisting disclosure to the party’s opponent of any subsequent communication of that legal advice, including by way of a copy or summary of it, unless the party has waived its privilege by making that communication or by other conduct — Council was entitled to assert legal professional privilege in the barrister’s opinion and in the parts of the consultant’s report which summarised that opinion as a ground for resisting disclosure to Tarong, unless the Council had waived its right to do so — Council did not waive privilege in the barrister’s opinion or in the summary of it — HELD: Appeal allowed, orders below set aside, application dimissed and costs.

Aqwell P/L v BJC Drilling Services P/L & Ors [2009] QCA 281 Muir JA Chesterman JA White J 18/09/2009

General Civil Appeal from the Supreme Court, Trial Division — Procedure — Judgment and Orders — Effect of Judgments — The respondents (BJC) sought an order dismissing the appellant’s action pursuant to r 374 of the Uniform Civil Procedure Rules 1999 (Qld) for failure to comply with the earlier orders of a Supreme Court judge — The earlier orders prescribed steps to be taken by the parties, and times within which those steps were to be taken — The orders imposed the sanction of dismissal of proceeding in the event of default by the appellant (Aqwell) — The primary judge found that the fees so estimated for a jointly appointed expert accountant’s costs should have been paid by 6 November 2008 as “both estimates provided by BDO [came] within the order relating to payment.” — The primary judge dismissed the appellant’s action and ordered that there be judgment for the respondents — On Appeal — In order to render intelligible the contentions of the parties it is necessary to set out (briefly) two separate orders — Order of 14 May 2008: “2. The Directions, materials…in this proceeding be supplied to BDO (the appointed accountant) by the plaintiff on or before 4.00 pm on 22 May 2008 together with a request that BDO provide an estimate of its fees for acting as expert…within seven days of the request;…” — Order of 30 October 2008: “2. Upon lodgement of the said guarantee, the defendants’ application for security for costs will stand dismissed…” — BDO provided an estimate of fees of $44,000 on 27 May 2008, with the appellant paying its half share of that estimate on 3 June 2008 — BDO wrote to the solicitors for the parties on 30 October 2008 advising that it would “require until 12 December” to complete its report and enclosed an invoice for $16,500 – The purpose of the May Order was twofold: to prescribe the steps to be taken by the parties, and the times by or within which those steps were to be taken with a view to readying the matter for trial and to impose the sanction of the dismissal of the proceeding in the event of default by the appellant — The May Order did not contemplate that the timetable could be reset by any conduct on the part of BDO — The paragraphs of the May Order refers to “estimate of fees” — There is no reference to the giving of fee estimates from time to time — The material discloses that the appellant has been responsible for gross delays — The proceeding must be taken in hand and promptly brought to an end — HELD: Appeal allowed, Orders below set aside, Costs, Appellant apply within seven days for directions as to the future expeditious progress of the proceeding.

Re Octaviar Ltd (No 7) [2009] QCA 282 Holmes JA Muir JA White J 18/09/2009

General Civil Appeal from the Supreme Court, Trial Division — Contracts — General Contractual Principles — Construction and Interpretation of Contracts — The first respondent (Octaviar Limited) guaranteed a company’s liability to the appellant (Fortress) under a loan agreement (YVE Guarantee) — Octaviar (and a related company) guaranteed a subsidiary’s liability to Fortress under a loan facility agreement — Octaviar Limited charged its property as security for this latter liability — The deed of charge provided that the charge extended to any liability arising under a “Transaction Document” — The facility agreement defined “Transaction Document” as, inter alia, any document which Fortress and the borrower or Octaviar Limited agreed in writing was a “Transaction Document for the purposes of this Agreement” — Fortress, the borrower and Octaviar Limited agreed in writing that the YVE Guarantee was a Transaction Document “for the purposes of” the facility agreement — The learned primary judge declared that a charge on property of Octaviar Limited was void as a security on that property to the extent that it would secure Octaviar Limited’s liability under a guarantee, generally referred to as the YVE Guarantee, of a loan made by Fortress — On Appeal — This appeal primarily concerned the construction of s 268(2) of the Corporations Act 2001 (Cth) which requires lodgment of a notice with the Australian Securities and Investments Commission of a …variation in the terms of the charge — On 1 June 2007 Octaviar Limited and a related company, Octaviar Castle guaranteed another loan arrangement in which Fortress was lender — On 22 January 2008 a deed was executed by Fortress, Octaviar Limited and Octaviar Castle, by which these parties acknowledged that the YVE Guarantee was a Transaction Document for the purposes of the Octaviar Castle facility agreement — The learned primary judge rightly concluded that this deed was effective to bring the YVE Guarantee within the definition of “Transaction Documents” in the Octaviar Castle agreement — All that happened was that the application of the mechanism for which the terms of the charge provided, so as to identify a particular liability as falling within the category of liabilities which the charge in general terms, already secured — The 22 January 2008 deed did not entail any change to what the parties were entitled or obliged to do under the charge; there was no variation in its terms — Section 268(2) is directed at variations in the terms of the charge, not at charges imposed, in accordance with those terms, in the burden of liability under the charge — The deed of 22 January 2008 constituted neither a variation of the charge nor a new charge — HELD: Appeal allowed, Judgment at first instance set aside, Declaration that the deed of 22 January 2008 was not a variation for the purposes of the Act, did not require lodgment of notice pursuant to the Act and Costs.

Selected Seeds P/L v QBEMM P/L & Anor [2009] QCA 286 Holmes JA Fraser JA White J 22/09/2009

General Civil Appeal from the Supreme Court, Trial Division — Insurance — Policies of Insurance — Construction — The respondent (Selected Seeds) conducted the business of grain and seed merchants — Selected Seeds purchased liability insurance from the appellants (QBEMM) — The policy was described as a ‘broad form liability policy’ — Selected Seeds had contracted with a purchaser to supply Jarra grass seed but actually supplied Summer grass seed — The purchaser in turn supplied the seed to a third party and the seed was then supplied to further parties, eventually causing damage to property — Selected Seeds was sued by a party and paid $150,000 to settle the claims made against it — The trial judge declared that Selected Seeds was entitled to indemnity under the insurance policy issued by QBEMM for the sum paid by Selected Seeds to settle claims made against it in Federal Court proceedings; and, that Selected Seeds was entitled to payment of such costs and expenses as were reasonably incurred in its defence — On Appeal — The trial judge’s conclusion that the respondent’s liability was within the “insuring clause” was affirmed because Property Damage, which happened during the period of insurance, was caused by an Occurrence constituted by the planting of the seed on the Shrimp’s land (a purchaser of the seed) — The Efficacy Clause under the policy referred to the different causal relationship between Selected Seed’s liability (rather than Property Damage) and the failure of Selected Seed’s product to fulfil its intended function or represented quality — That the expression of the causal relationship in the Efficacy Clause should be given its broad, literal meaning is strongly suggested by the contrast between it and the different and more narrowly expressed causal relationship in the insuring clause (“Property Damage…caused by an Occurrence”) and in the definition of Occurrence (“event which results in…Property Damage”) — The Efficacy Clause was in the form of a separate endorsement which expressed a new agreement for an additional exclusion — The liability asserted clearly fell within the exclusion — HELD: Appeal allowed, Set aside the orders of the trial judge, Dismiss Selected Seed’s claim in the Trial Division and Costs.

CRIMINAL APPEALS

R v Robinson [2009] QCA 250 Keane JA Muir JA Fryberg J 1/09/2009

Appeal against Conviction from the District Court — Appeal and New Trial — Misdirection and Non-Direction — Consideration of Summing Up as a Whole — The appellant (Robinson) was convicted upon the verdict of a jury of two counts of contravening s 26(1) of the Commonwealth Authorities and Companies Act 1997 (Cth) — Each of the two charges against Robinson was based on a letter written by him to facilitate the sale of assets owned by entities associated with Robinson for the improper purpose of raising funds for his own legal expenses — On Appeal — Robinson was given leave to raise a new ground of appeal against his conviction — Section 26(1) creates an offence where there is a failure to exercise a power and discharge a duty the existence of which is assumed by the provision — Robinson was not charged with dishonest use of his position under s 26(2) of the Act — Section 26(1) in proscribing the failure of a defendant to exercise a power and discharge a duty attaching to his or her office, assumes the existence of powers and duties which attach to the office in question; it does not itself impose any duties just as it does not itself confer any powers on the office holder — The awkwardness which arises in the present case, by reason of the prosecution’s attempt to shoehorn the charges against Robinson into s 26(1) rather than s 26(2), arises because there is nothing in the ATSIC Act to suggest that Robinson had any power or duty in respect of the day to day operations of ATSIC, and no other legal or factual basis for concluding that Robinson was exercising a power or discharging a duty as a Commissioner of ATSIC was articulated as part of the prosecution’s case against Robinson — The directions given by the learned trial judge in this case were not apt to lay before the jury the real issues in the case against Robinson — The case against Robinson, as explained to the jury by the learned trial judge, did not identify the relevant power and duty which Robinson was alleged to have dishonestly failed to exercise and discharge — It is arguable that under the ATSIC Act, the powers and duties of ATSIC’s individual Commissioners extended to conserving ATSIC’s interests by raising matters affecting those interests with the Commission so that it could take the necessary and appropriate steps — The sales in question may fall within the scope of this argument, however this was not put to the jury for decision — HELD: Appeal allowed, Convictions and orders made below set aside, Retrial ordered.

R v Griffiths [2009] QCA 264 Keane JA Chesterman JA P Lyons J 8/09/2009

Sentence Application from the District Court — Appeal against Sentence — Sentence Manifestly Excessive or Inadequate — The applicant (Griffiths) pleaded guilty to a charge of wilfully and unlawfully setting fire to a motor vehicle — Griffiths was sentenced to a term of two years imprisonment to be suspended after six months for an operational period of three years — On Appeal — The offence had its origin in youthful immaturity and self-absorption — Griffiths had a girlfriend identified only by her Christian name in submissions as Alena — One of Alena’s friends, also identified only by her Christian name, Brooke had a younger 15 year old sister whom Brooke suspected Griffiths of taking an inappropriate interest in — Brooke rushed to tell Alena’s mother who then sought out Griffiths and there was a most unpleasant conversation — Griffiths was angered and deeply hurt — Brooke parked her father’s car, worth $3,200 and uninsured, outside the family home — At about 3 o’clock in the morning Griffiths decided to destroy the car, drove to Brooke’s home, poured petrol over the car and set it on fire — The car was completely destroyed — Two weeks after the offence Griffiths went voluntarily to the police and confessed fully to the crime — On the material put before the sentencing judge and on appeal the proper inference appears to be that the only evidence connecting him to the crime was his own confession — There seems to be basis for thinking that without it he would have been prosecuted — The confession was, it is clear, a manifestation of genuine remorse and a consciousness of wrongdoing — The identity of the offender was unknown until the confession — The sentencing judge appears not to have appreciated the significance of this aspect — More than two years passed between the offence, the applicant’s confession and prosecution — Although the exact cause of the delay is not clear it all appears to be attributable to the prosecuting authorities — Delay is important where during it an offender demonstrates genuine and substantial efforts at rehabilitation which are successful or appear likely to be so — Griffiths approached the police and advised them of his guilt, completed a trade qualification and had an excellent work record — Agreement had been made to pay for the amount of damage by weekly instalments of $50, however only one such payment was made for reasons which are obscure — He also provided police important information identifying a burglar who had broken into a Sunshine Coast newsagency, which is indicative of good character, but no more — The case was not one of premeditated revenge, but more an impulsive act borne of immaturity which subsequent events show are unlikely to recur — HELD: Application granted, Appeal allowed, Suspension of sentence to commence as of 27 August 2009 (date of the hearing) and the applicant to pay $3,150 restitution to the complainant.

R v Ritchie; ex parte A-G (Qld) [2009] QCA 270 McMurdo P Keane JA P Lyons J 11/09/2009

Sentence Appeal by A-G (Qld) from the District Court — Appeal against Sentence — Grounds for Interference — Sentence Manifestly Excessive or Inadequate — The respondent (Ritchie) pleaded guilty on 20 April 2009 to one count of unlawful carnal knowledge of a child under 16 years and two counts of indecent treatment of a child under 16 years — On 15 May 2009 he was sentenced to nine months imprisonment wholly suspended for 18 months for the count of unlawful carnal knowledge and 12 months for the counts of indecent treatment — Ritchie was 31 years old at the time of the offences — Ritchie had an extensive criminal history but no prior convictions for sexual offences — Ritchie had been committed for trial on 31 January 2001 but left Queensland for Victoria where he lived for almost nine years until he was arrested on the bench warrant which issued in respect of these charges in Queensland — It seemed to have been accepted at sentence that Ritchie mistakenly believed these charges were no longer outstanding — On Appeal — Ritchie, at the age of 31, committed three sexual offences against two girls aged 13 and 14 — The disparity in age between Ritchie and K, the 14 year old complainant with whom he had penile sexual intercourse means that ordinarily he would be sentenced to a period of actual custody — A period of actual custody is all the more warranted where, as here, Ritchie committed two further sexual offences against another young complainant — His conduct seemed predatory and equated to the grooming of both complainants for his sexual gratification — Ritchie made no admissions and professed to have no recollection of the offence against K because of his intoxication — It is to Ritchie’s great credit that in the nine years, and especially since 2006, he has made impressive efforts at rehabilitation — Ritchie’s rehabilitation is not the only factor that this Court must consider in sentencing — Impressionable young girls must be protected from the predatory conduct of considerably older men — Ritchie’s offending has had a dreadful impact on K’s life — The primary judge gave too much weight to Ritchie’s rehabilitation and the mitigating factors and insufficient weight to the principle, critical in cases like this, of general deterrence — HELD: Appeal against sentence for the offence of unlawful carnal knowledge allowed, The sentence is set aside and instead the respondent is sentenced to 12 months imprisonment to be suspended after serving two months with an operational period of three years, The appeal against the sentence imposed for the two counts of indecent treatment dismissed, A warrant is issued for the arrest of the respondent.

R v Lacey; ex parte A-G (Qld) [2009] QCA 274 Chief Justice McMurdo P Keane JA Muir JA Chesterman JA 11/09/2009

Sentence Appeal by the A-G (Qld) from the Supreme Court, Trial Division — Appeal Against Sentence — Appeals by Crown — Principles Applied by Appellate Court to Crown Appeals — On 6 May 2007 Dionne Lacey shot and killed another man, Palmer — After a 14 day trial Lacey was found not guilty of murder but guilty of manslaughter and sentenced to 10 years imprisonment — On Appeal — Not disputed that this Court may depart from its earlier decisions — In 1975 the Queensland Parliament amended s 669A Criminal Code 1899 (Qld) — There cannot be any real doubt that the intention of the legislature in amending s 669A to insert the word “unfettered” was to remove the “judicial fetter” upon the exercise of the discretion identified in R v Liekefett; ex parte Attorney-General [1973] Qd R 355 — The terms of s 669A leave no room for this Court to decline to exercise the discretion conferred on it simply because it has not been demonstrated that the decision below should be set aside as erroneous in the House v The King sense — The discretion conferred on the Court by s 669A is, in terms, a discretion to vary the sentence to impose such sentence as seems proper to this Court — This Court in exercising its discretion must have regard to the sentence imposed below, but come to its own view as to the proper sentence to be imposed — In doing so, this Court must act in conformity with the principles relevant to the exercise of judicial power — There are compelling reasons to reject the proposition that a sentence range varied under s 669A should presumptively be fixed at the lower end of the appropriate range — This Court’s decisions afford guidance for the community and sentencing judges as to the appropriate range of punishment for the diverse categories of offences and offenders who come before the courts in Queensland — It may not be accepted that there is an overarching rule which operates to require this Court to impose a sentence at the lower end of the available range — Here the combination of habitual gun carrying and the accompanying mindset created a substantial risk that the gun would be produced and used should Lacey find himself in circumstances in which he was under stress, felt threatened, or even in the brandishing of his gun was perceived by him as a deterrent to others or as promoting his interests — It should be clearly understood that the unlawful possession and use of handguns is not tolerated by society and that offences committed with them will result in exemplary punishment — The sentence imposed on Lacey was inadequate — The Court took into account the stance adopted by the prosecution before the learned sentencing judge, Lacey’s youth and relatively minor previous criminal record — HELD: Appeal allowed, Order that the sentence imposed at first instance be varied to the extent that a sentence of 11 years imprisonment be substituted for the original sentence of 10 years imprisonment.

R v Watson; ex parte A-G (Qld) [2009] QCA 279 Chief Justice Muir JA Chesterman JA 18/09/2009

Sentence Appeal by A-G (Qld) from the Supreme Court, Trial Division — Appeal against Sentence — Appeals by the Crown — The respondent (Watson) was convicted on his own plea of guilty of manslaughter on the basis of criminal negligence pursuant to s 290 of the Criminal Code 1899 (Qld) — Watson married Christina Watson on 11 October 2003 — A diving trip near Townsville was part of their honeymoon — Watson had been charged with the murder of Christina Watson on 22 October 2003 whilst diving — The Crown Prosecutor informed the learned primary judge that the Crown accepted the plea to manslaughter in full discharge of the indictment — Watson was sentenced to four and a half years imprisonment, suspended after one year, for an operational period of four and a half years — On Appeal — Watson’s plea of guilty meant that he had undertaken to do an act, the omission of which was dangerous to his late wife’s life and that her death was caused by his omission — The prosecutor identified five omissions but it is readily apparent there were only two breaches, or omissions — Firstly, not ensuring that the deceased had oxygen to breathe and, secondly, Watson did not take his wife to the surface when it was apparent that she was in difficulty and not breathing — The first omission relied on by the prosecutor was not something Watson failed to do — The cause of death was asphyxiation — For some reason wholly unexplained in the materials provided, the deceased ceased to breathe — The decision for the learned primary judge was as difficult as it is for this Court — Watson himself promptly provided the information which proved the case against him and that for years he has borne the unjust charge, made very public, of murder — The reason to impose a longer period of imprisonment is that 12 months custody is an insufficient denunciation of Watson’s abandonment of his wife — He should have done something to effect a rescue and his failure in that regard deserves stronger censure — HELD: Appeal allowed, Sentence below effectively set aside, Watson to be imprisoned for four and a half years, suspended after 18 months for an operational period of four and a half years and the declaration in relation to time already served is to remain in place.

R v Davidson [2009] QCA 283 Keane JA Holmes JA Chesterman JA 18/09/2009 (delivered ex tempore)

Sentence Appeal by the A-G (Qld) from the District Court — Appeal against Sentence — Appeals by the Crown — The respondent (Davidson) was sentenced to nine months imprisonment to be served by way of an intensive correction order after pleading guilty to an ex officio indictment in respect of one count of indecent dealing with a child under the age of 12 -— According to an agreed schedule of facts, he had been watching football and drinking alcohol at the home of a friend one evening and entered the bedroom of his friend’s 10 year old son — He massaged the child’s penis under his clothing, waking him — He had a play arm wrestle with the child, offered him a small present and then said, “Show me how big your willy is and I’ll show you how big mine is” — The child refused and asked Davidson to go away because he was tired, which he did — Later that night, the child told his father what had happened —The father set upon Davidson, throwing him on the ground several times, causing him to strike his head on the concrete driveway — Continuing the assault, he kicked Davidson in the head a number of times, knocking him out and causing multiple facial fractures which required reconstructive surgery — A number of fixing devices, screws and plates, remain in Davidson’s face — A neurosurgeon, reporting six months after the incident, diagnosed a closed head injury resulting in cognitive deficits and chronic post-traumatic headaches — He said Davidson’s symptoms of headache, short term memory, fatigue and loss of concentration were unlikely to resolve — The offending was at the lower end of the range of offences of this type — The conviction and the head sentence imposed served as an appropriate denunciation of the conduct — Community protection did not loom large, given that this was a first offence — There were strong mitigating factors in the form of a plea to an ex officio indictment and Davidson’s absence of any criminal history; and there were undoubtedly exceptional circumstances, in the form of his suffering lasting disability and economic disadvantage from the attack by the child’s father — Had it not been for the last factor, the result might have been something in the order of a sentence of nine months’ imprisonment, with release after three months — Its significance as a punishment and its function by way of deterrence required acknowledgment; requiring service of the term by way of an intensive correction order as opposed to actual custody was an appropriate means of acknowledgment — HELD: Appeal dismissed.