Court of Appeal Judgment Summary Notes

CIVIL APPEALS

Palmer v The Chief Executive, Queensland Corrective Services Commission & Anor [2009] QCA 296 Keane JA Muir JA Chesterman JA 8/10/2009 (delivered ex tempore)

Application for Extension of Time/ General Civil Appeal from the Supreme Court, Trial Division — Mental Health — Legal Proceedings by and Against Mentally Ill and other Protected Persons — Where the appellant, Mr Palmer, is in the custody of the Corrective Services Commission — Palmer purported to institute proceedings for damages for personal injury suffered by him in a motor vehicle accident — Palmer appears to be aggrieved by decisions over what he regards as limiting his access to material which he regards as relevant to the formulation and prosecution of his proposed claim — Palmer commenced proceedings under the Judicial Review Act 1991 (Qld) to have these decisions reviewed — Palmer’s application for judicial review was dismissed on the basis that her Honour was unable to identify a decision made under an enactment amenable to review under the Act — On Appeal — Palmer filed and served voluminous material — His arguments are very difficult to understand and exhibit a degree of incoherence which is not explicable simply by reason of the circumstance that he represents himself — Raises a concern that he is under a legal incapacity by reason of which he may start proceedings only by a litigation guardian — The means by which the court will determine whether a guardian should be appointed can vary from case to case — Court not prepared to exercise a discretion to allow Palmer’s present appeal to proceed until the question attending his capacity has been determined — Order the appeal be adjourned to a date to be fixed at which time if Palmer is not then represented by a litigation guardian the question of his capacity to litigate on his own behalf should be determined on the evidence then available, before the issues which Palmer seeks to agitate proceed — HELD: Appeal adjourned to a date to be fixed, Costs to be costs in the cause.

Barro Group Pty Ltd v Redland Shire Council & Ors [2009] QCA 310 McMurdo P Keane JA Wilson J 16/10/2009

Application for Leave to Appeal from the P & E Court — Environment and Planning — Environmental Planning — Development Control — Form and Contents of Application — Applicant (Barro) lodged a development application with the Council which involved land owned by the State — The application was not supported by the evidence of the attitude of the State government to the involvement of land owned by the State — By reason of this omission, the application was not a “properly made application” within the meaning of s 3.2.1 of the Integrated Planning Act 1997 (Qld) — Nevertheless the application proceeded to a decision by the Council which ultimately refused the application — This was appealed to the P & E Court that determined no properly made application was before the Council and struck out the appeal — On Appeal — Barro’s non-compliance with s 3.2.1(5) was not such as to enable one to say that the provision had been “substantially observed” — In truth, the terms of s 3.2.1(5) had not been observed at all — One must regard Barro’s mistake as an honest mistake; but it was a serious mistake apt to conceal the fact that a State resource was to be deployed by Barro in it proposed expansion of its quarrying activities — In summary an application which is not a “properly made application” by reason of s 3.2.1(10) should not proceed to subsequent stages of the Integrated Development Assessment System process — This Court’s primary obligation is to give effect to the intention of the legislature as expressed in statute rather than to a judicial interpretation of the statute — The declaration made by his Honour did no more than declare what the legal position is for the benefit of the parties — Whether Barro wishes not to afford itself of the opportunity to cure the lacuna in its application provided by s 3.2.9 of the IPA is a matter for Barro — HELD: Application for leave to appeal granted, Appeal dismissed with costs.

Spain v Dipompo Jacs Constructions P/L & Anor [2009] QCA 323 McMurdo P Keane JA Holmes JA 23/10/2009

General Civil Appeal from the Supreme Court, Trial Division — Limitation of Actions — Extension or Postponement of Limitation Periods — Extension of Time in Personal Injuries Matters — Knowledge of Material Facts of Decisive Character — The respondent (Mr Spain) claimed that he had injured his back in November 2002 during his employment as a construction form worker with the second respondent (Dipompo) — He successfully brought an action in the Trial Division of this Court under s 31 of the Limitation of Actions Act 1974 (Qld) to extend the limitation period — In 2006-2007 financial year Spain, tired of working in pain as a construction worker, decided to change his career and became an apprentice plumber — The company employing him as an apprentice was placed in liquidation — Spain returned to construction form work until he could no longer do so because of the pain — In July 2008 Spain became aware that the injury “was more serious and involved [his] spine” and that it meant that he should not resume his employment as a form work labourer — The trial judge did not deal specifically with Spain’s statement to his sister, recorded in her notes for Dr Ratnam, his general practitioner — On Appeal — Spain’s account recorded by his sister of his career change in 2006 included that he “was forced to look for a new career path — The learned primary judge did not advert to the significance of this account or explain how it might be reconciled with the proposition that Spain did not appreciate the adverse implications for his earning capacity of his back condition until mid-2008 — Spain was cross-examined on these notes and agreed that they were an accurate account of what had occurred in mid-2006 — The account rendered by his sister is undeniably an acknowledgment of a firm appreciation on his part that his back problems were such as limit the range of work open to him and to place him in a situation of real risk in the labour market — A reasonable person in Spain’s position would have appreciated that he was in a situation of vulnerability in the labour market — Reasonable advice in mid 2006 would have been that a successful action would result in an award of substantial damages sufficient to justify commencing proceedings at that time — HELD: Appeal allowed, Orders of the learned primary judge set aside with costs.

Jomal P/L v Commercial and Consumer Tribunal & Ors [2009] QCA 326 McMurdo P Keane JA Applegarth J 27/10/2009

General Civil Appeal from the Supreme Court, Trial Division — Statutes — Interpretation Acts and Clauses — The appellants were residents of a retirement village — The appellants reside in the village under a “retirement village scheme” within the meaning of the Retirement Villages Act 1999 (Qld) — The relationship between the parties is governed by the terms of the RVA and the standard form resident contracts between the scheme operator and individual residents — A dispute arose between the parties as to whether the appellants were obliged to meet the cost of replacing the sacrificial anodes of water heaters located within the accommodation unit occupied by each appellant in the village — The water heaters were owned by the first respondent (Jomal) but were fixtures within the units — The learned primary judge — declared that upon its proper construction, the RVA does not preclude the parties from agreeing that the resident is liable to maintain, repair and replace items owned by the scheme operator and which were within or affixed to an accommodation unit — On Appeal — Section 3(1)(b) RVA provides that one of the main objects of Act is “to encourage the continued growth and viability of the retirement village in the State” — This objective will not be advanced by an interpretation of the legislation which denies to scheme operators the possibility of agreeing with residents that the latter will bear expenses of maintenance, repair and replacement items affixed to their accommodation units — It is now accepted that the resident contracts purport to provide that residents must bear the cost of the repair of items such as those in question — Residents who agree to maintain, repair and replace appliances in their accommodation units are able to be aware that the repair of items within their accommodation units is to be their individual responsibility and to budget accordingly — It is an assumption to the fundamental law of contract that residents are able to understand the terms of their residence contracts and the ramifications of those terms for the costs to them associated with residing in the village — HELD: Appeal dismissed.

De Ross v General Medical Assessment Tribunal & Anor [2009] QCA 327 Keane JA Holmes JA Fraser JA 27/10/2009

General Civil Appeal from the Supreme Court, Trial Division — Workers’ Compensation — Proceedings to Obtain Compensation — Evidence — Disclosure of Documents and Privilege — The first respondent (de Ross) was employed as a process worker with Toowoomba Metal Technologies from 11 March 1992 until 1 April 2006 — de Ross alleges that during the period of his employment he was required to work in a dusty atmosphere without protective breathing apparatus in consequence which he ingested various types of dust — He was subsequently diagnosed with silicosis, pneumoconiosis and sarcoidosis. — WorkCover (the appellant) did not accept that his employment was a contributing factor to his sarcoidosis, and did not accept that it was an injury for which de Ross might seek damages — The question of whether his employment contributed to his sarcoidosis was then referred to the Tribunal (the second respondent) who upheld the view that de Ross’ sarcoidosis was not an “injury” because it “has developed independently of work exposures and has not been aggravated by work exposures” — The Tribunal stated that it was “not aware of any other evidence that might suggest that work exposures similar to those of Mr de Ross have led to an increased incidence of Sarcoidosis…” — de Ross’ legal representatives had initially provided to WorkCover a number of articles which supported the contention that there is a causal nexus between occupational exposures to dust and sarcoidosis — WorkCover concedes that it did not provide copies of these articles to the Tribunal when it referred the matter to the Tribunal — The learned primary judge determined that WorkCover’s omission invalidated the Tribunal’s decision — On Appeal — It was common ground that the four articles in question were in WorkCover’s possession, that these articles were “relevant articles” within s 499 of the Workers’ Compensation and Rehabilitation Act 2003 (Qld), that WorkCover did not give the Tribunal a copy of the articles and that WorkCover accepted that it had not complied with s 500A(1)(b) of the Act — The process of exchange contemplated by s 510C(3) and (4) of the Act was adversely affected by WorkCover’s non-compliance with s 500A(1)(b) of the Act — The decision made by the Tribunal was not authorised by the Act because all relevant documents were not placed before the Tribunal — Accordingly the Tribunal’s decision was apt to be set aside under s 20(2)(d) of the Judicial Review Act 1991 (Qld) — HELD: Appeal dismissed with costs.

St Vincent de Paul Society Qld v Ozcare Ltd & Ors [2009] QCA 335 McMurdo P Muir JA Chesterman JA 30/10/2009

General Civil Appeal from the Supreme Court, Trial Division — Procedure — Supreme Court Procedure — Parties — Joinder and Addition of Parties — The appellant (the Society) alleged, inter alia, that parcels of the Society’s real property were transferred to the first respondent (Ozcare) without consideration in breach of trust — The respondent was registered as a company limited by guarantee on 11 January 1996 — From about February 1997 to February 1998 some 30 parcels of real property registered in the name of the Society were transferred to the Ozcare without consideration — The primary judge found that the interests of the Members in Ozcare could not be held on trust and that the proposed second defendants could not be justified in being joined in the proceedings — On Appeal — Ozcare’s approach to the construction of s 1070A(1) of the Corporations Act 2001 (Cth), with respect, did not owe a great deal to conventional canons of “statutory construction” — The articles of association of a company have the effect of a contract between the company and each member and between a member and each other member — The rights held by each member are substantial when considered in their entirety — The requirement in Ozcare’s articles that persons may become Members only if they accept the philisophy of the Society of St Vincent de Paul or the Catholic Ethos leaves membership open to millions of people in Australia — The primary judge erred in his implicit conclusion that it was not reasonably arguable that the interests of the Members as members of Ozcare were properly capable of being held on trust — The primary judge’s attention was not drawn to s 1070A — Having regard to the charitable purposes of the Society and Ozcare, it is more than usually desirable that the issues between them be resolved as efficiently, cost-effectively and expeditiously as possible — That end is best served by ordering the joinder now and making further orders with a view to ensuring that if the matter is not settled, it is brought on for trial as quickly as possible — HELD: Appeal allowed, Paragraphs 5 and 6 of order below set aside, Persons named in paragraph 1 of the application be joined as second defendants, Costs be costs in the proceedings and other procedural orders made.

CRIMINAL APPEALS

R v Cornwell [2009] QCA 294 Muir JA Fraser JA Jones J 6/10/2009

Appeal against Conviction & Sentence from the District Court — Appellant (Cornwell) convicted after trial on 24 April 2009 of unlawful assault causing bodily harm while in company — Cornwell and the complainant were acquaintances — The complainant’s wife, Mrs Morris, from time to time sought refuge with the appellant’s mother, Mrs Cornwell — After a telephone conversation, which the primary judge said he was reasonably confident was initiated by the complainant, the complainant went outside his residence to meet Cornwell and his half-sister — There is evidence that Cornwell and the complainant struck each other at the same time and that the complainant fell to the ground and was disarmed, punched and kicked by Cornwell — On Appeal — A victim impact statement was sworn by the complainant on 17 November 2008 — It was not provided to defence lawyers until after the jury had been deliberating for more than half a day — The letter which apparently accompanied it bore a Director of Public Prosecutions date stamp of 13 December 2008 — The covering letter referred to a raid on the complainant’s family home in Mareeba by a government SWAT team of some 13 men who aimed guns at the complainant in front of his two small children and also alleged that he had been wrongfully imprisoned — The primary judge described the statement as “…a grossly exaggerated document” and it was not tendered in the sentencing proceedings — An application to discharge the jury on the basis that the statement contained prior inconsistent statements was refused — There was an appreciable degree of uncertainty about the reliability of the evidence of the prosecution witnesses in relation to reports of multiple hammer blows, punching to the hand and body and vigorous kicking with boots — Cornwell was unarmed at all times — It is possible that the documents, with or without the aid of matters uncovered by further enquiry, may have caused the jury to take an adverse view of the complainant’s character and reliability — Cornwell was denied an opportunity to conduct his case in a way which “could have made a difference to the verdict” or which may have created a “significant possibility that the jury, acting reasonably, would have acquitted” him — HELD: Appeal allowed, Verdicts set aside, Retrial ordered.

R v GAI; ex parte A-G (Qld) [2009] QCA 298 Keane JA Holmes JA Chesterman JA 9/10/2009

Sentence Appeal by A-G (Qld) from the District Court — Particular Offences — Sexual Offences — Incest — In December 2008 GAI was convicted of his own plea of two counts of incest with his daughter and was convicted of two offences involving contravention of the Child Protection (Offender Reporting) Act 2004 (Qld) — In May 2009 GAI was sentenced to concurrent terms of nine years imprisonment in respect of the offences of incest and concurrent terms of three months imprisonment for the summary offences — Parole eligibility was fixed at 9 April 2012 — In 1979 GAI (the respondent) entered into a de facto relationship with EJ which lasted four years — After this relationship GAI entered into another de facto relationship with EJ’s then 17 year old daughter, NJ — The complainant SJ is the younger daughter of EJ and the respondent — SJ was 26 years old at the date of the offences which occurred in March 2008 — SJ has significant intellectual difficulties — GAI has a history of sexual abuse of NJ’s daughter, JJ — In February 1998 the respondent was convicted of rapes and other offences — The respondent was also convicted at this time of two counts of rape of another 16 year old girl who was the daughter of EJ’s sister — He was released on parole in March 2007 — The respondent was 56 years of age at the time he committed the offences of present concern — On Appeal — The respondent poses a real threat to women with whom he comes in contact in a domestic context — The question as to the respondent’s fitness for release back into the community will not arise as a matter of immediate concern until 9 April 2012 — The assessment of his fitness is better made in the light of the information then available about him — The issue of danger which the respondent might continue to pose to female members of the community can be addressed under the Dangerous Prisoners (Sexual Offenders) Act 2003 (Qld) — While the respondent’s conduct, in light of this criminal history, is truly appalling, the fact remains that the offences of present concern did not involve any allegation of non-consensual sexual abuse — The respondent was not charged or convicted of any offence of which the complainant’s intellectual impairment was an element — HELD: Appeal dismissed.

Gittos v Surfers Paradise Rock & Roll Café P/L & Anor [2009] QCA 306 McMurdo P Muir JA Chesterman JA 13/10/2009

Application for Leave s 118 DCA (Criminal) — Liquor Law — Penal Provisions — Offences Relating to Regulation and Conduct of Licensed Premises — The first respondent (Surfers) held an adult entertainment permit issued under the Liquor Act 1992 (Qld) — The second respondent, at material times, was the nominee in respect of the permit — The permit authorised Surfers to provide “adult entertainment” within an approved area subject to various conditions — Condition 114 provided the “approved area must be fully enclosed in a way that prevents a person outside the area from seeing inside the area” — Five investigators gave evidence with no evidence lead from the respondents — Evidence was given that some of the investigators saw “a naked woman from the arcade just outside the sliding door entrance…” and “could see through the lace curtain and the ladies were naked” — On Appeal — The Legislature considered it necessary to impose a requirement in order to shield minors and adults not voluntarily attending such premises, from exposure to conduct which many in the community regards as offensive, degrading and/or morally corrupting — To “hinder” a person from seeing into an area is to impede or obstruct that person’s vision within the area — The requirement could be met, for example, by a glass door or wall which, when looked through, distorted human forms, but enable the viewer to clearly appreciate the nature of the activities under observation — Ample evidence to justify the Magistrate’s implicit conclusion that the licensed area, at relevant times, was not “fully enclosed in a way that prevents a person outside the area seeing inside the area” — In many situations a simple free-standing screen will serve the purpose in arranging an entry to premises in such a way as to prevent a person outside the premises from viewing the interior — HELD: Leave to appeal allowed, Appeal allowed, Set aside the order of the District Court and in lieu order that the appeal to that Court be dismissed with costs.

White v Patterson [2009] QCA 320 McMurdo P Muir JA Chesterman JA 23/10/2009

Application for Leave s 118 DCA (Criminal) — Environment and Planning — Parks and Reserves — Restraint of Activities Within Parks and Reserves — Respondent (Patterson) was charged with an offence under s 38CA of the Great Barrier Reef Marine Park Act 1975 (Cth), namely fishing in a protected area — The initial conviction was quashed on appeal to the District Court with the judge questioning the interpretation of the Criminal Code 1975 (Cth) — On Appeal — The evidence clearly established, and findings were made, that at the relevant Patterson’s boat was within the boundaries of the Marine National Park Zone and that fishing was prohibited in this zone — It was also proved that Patterson was in waters of the zone for the purpose of fishing — The Magistrate stated that “[Patterson] said he was not a big person on navigation but he could catch fish” — An offender is negligent if his conduct falls short of the standard of care to be expected of a reasonable person in the circumstances, and a consequence of the falling short is a high risk that the physical element of the offence has come, or will come, about so that it can be seen that the conduct merits criminal sanction — Section 5.5 defines a compendium: it does not describe two (and certainly not three) elements — An overall assessment is called for, not a separate analysis of distinct elements though, of course, regard must be had to the whole description of negligence — From the term of the section, no universal norm of criminality was intended — The inquiry in each case is one of relativity — The inquiry is whether the conduct is such as to merit punishment for the particular offence — Patterson was a commercial fisherman, who, to ply his trade lawfully, needed properly functioning instruments of navigation and the skill to use them — He had neither — Patterson’s conduct merited criminal punishment for the summary offence — He conducted his business with complete disregard for the prohibition in the Act and put to sea incompetent to know whether he was, or was not, within the boundaries of a Marine Park Zone — HELD: Leave to appeal allowed, Appeal allowed, Set aside the judgment of the District Court and order the appeal against conviction to the court be dismissed, Remit the appeal against sentence to the District Court for determination and costs.