Court of Appeal Judgment Summary Notes

CIVIL APPEALS

Waratah Coal P/L v Mitchell & Anor [2010] QCA 264 McMurdo P, Fraser and Chesterman JJA 1/10/2010

General Civil Appeal from the Supreme Court, Trial Division — Administrative Law — Judicial Review — Grounds of Review — Applying Policy and Merits of Case — Waratah (the appellant) and Vale Coal Exploration Pty Ltd (the second respondent) lodged competing applications for exploration permits over the same blocks of land on the same day — The Minister had to determine which application took priority pursuant to s 134A Mineral Resources Act 1989 (Qld) (MRA) — The Minister delegated the duty of determining which permit should be given priority to the first respondent, a senior employee of the department — In accordance with departmental policy, a Technical Panel of three geoscientists employed by the department was appointed to consider the merits of the competing applications and advised the second respondent of their opinion that they favoured Swanbank’s (now Vale) application — The second respondent agreed, having made her own assessment of the application and of the Panel’s recommendation — Waratah was dissatisfied with the decision and sought an order for review pursuant to the Judicial Review Act 1991 (Qld) — The application was dismissed — On Appeal — On 7 March 2007 the Chief Executive Officer of Waratah, Mr Peter Lynch, emailed an officer of the department additional information that was germane to Waratah’s application — The Panel did not take this additional information into account and signed the recommendation on 1 March and 7 March 2007 — The question to be answered is whether the assessment of relative merits in s 134A(2) limits the inquiry to the material lodged by the applicants on the same day, or whether it extends to supplementary materials either delivered gratuitously by an applicant or in response to a request from departmental officers — Under s 133(1)(f) and s 134A(2) of the MRA the Minister is to decide the relative merits of applications for exploration permits lodged on the same day and at a prescribed office — Section 134(2) read in conjunction with s 133, plainly indicates that the subject matter of the comparison is the information in the application documents — There is no scope for including additional information in the application documents, with the possible exception of that requested by the Minister pursuant to a departmental policy — The plain meaning of s 134A(2) is that the Minister is to make a comparison of like with like — What is to be compared are the applications, as described by s 133, lodged on the same day — The information emailed by Mr Lynch on 7 March 2007 did not form part of Waratah’s application lodged on 1 November 2006 — The first respondent correctly ignored it, as did the Technical Panel — HELD: Appeal dismissed with costs.

Arc Holdings (Aust) P/L v Riana P/L & Anor [2010] QCA 269 Fraser and Chesterman and White JJA 8/10/2010

McClelland & Anor v Perpetual Trustee Co. Ltd [2010] QCA 281 Holmes and White JJA and Mullins J 15/10/2010

General Civil Appeal from the Supreme Court, Trial Division — Procedure — Costs — Appeals as to Costs — Wrong Exercise of Discretion — The respondent (Perpetual) was the mortgagee of the defendants’ (the Cowleys) property located at Helensvale — In the first half of 2009, Perpetual obtained default judgments against them for recovery of possession of the property on the basis that they had failed to make loan repayments, and, subsequently, an enforcement warrant for possession of the property — The appellants (Douglas Laing McClelland and Platinum Lawyers) were retained by the defendants — In June 2009 Mrs Cowley instructed Mr McLelland that payments had in fact been made and provided bank statements purportedly from Westpac and New England Credit Union to support her claim — A close examination of the statements, however, would have revealed that eight of the eleven entries purporting to show payments in that period could not be genuine, because the difference between the balance before each debit and that after it did not equal the debit’s amount — On 9 July 2009, the day that the Cowleys’ application to set aside the default judgment and enforcement warrant was set down for hearing, McClelland swore an affidavit exhibiting a proposed defence, in which he deposed, “I have been shown the bank statements of the Defendants…and say that all of those repayments have been made” — The default judgment and enforcement warrant were set aside — About a week later Mrs Cowley gave McClelland documents which she said were bank traces from Westpac, confirming that monthly payments had been credited to Perpetual’s account and a similar document from New England Credit Union — The Credit Union trace bore the signature “Sue Young” — McClelland queried Young and was informed that it was not her signature and the letterhead did not resemble the Credit Union’s — McClelland questioned Mrs Cowley about Ms Young’s response to which she informed him that Sue Young was a family friend who had provided the trace contrary to the Credit Union’s policies — Mrs Cowley had assured him that she had not been engaged in any fraudulent activity and (he subsequently deposed) he believed his instructions — At this point, McClelland, whose capacity for belief brings to mind the White Queen in Through the Looking Glass, reached the conclusion that his clients had been the victims of identity theft — On 26 October, Perpetual Trustee’s application proceeded before the primary judge — The Cowleys did not appear — The orders of 9 July 2009 were set aside on the basis of fraud and McClelland was directed to file an affidavit setting out in full the circumstances relating to the application — The learned judge held that McClelland and the firm, Platinum Lawyers, were responsible for the costs incurred by Perpetual Trustee from 7 September 2009 and ordered them to pay those costs on an indemnity basis “because of Mr McClelland’s obstinate and egregious refusal to comply with his duties to the court” — On Appeal — The power to order costs may be exercised against a practitioner where the Court is satisfied that there has been a serious dereliction in the performance of the practitioner’s duty to the court — McClelland did not apply any rational judgment to the information that he had, or take the necessary steps to remedy the results of his credulity and carelessness — Although the Cowleys had surrendered the property on 30 September 2009, Perpetual nonetheless sought the setting aside of the July 2009 orders and the consequent reinstatement of the order for possession and the enforcement warrant as a matter of prudence — To do so it had to make the application — An earlier withdrawal of Platinum Lawyers as solicitors would not have made it any easier for Perpetual Trustee to get the orders set aside, nor made the costs it incurred any less — HELD: Appeal allowed, Order for indemnity costs set aside and the respondent to pay the costs of the appeal.

  Johnson v Triple C Furniture & Electrical P/L [2010] QCA 282 Holmes, Chesterman and White JJA 15/10/2010

General Civil Appeal from the Supreme Court, Trial Division — Appeal and New Trial — Interference with Judge’s Findings of Fact — Functions of Appellate Court — Where Inferences of Fact Involved — Where Facts Not in Dispute — Insurance — Claims Generally — Refusal — Statutory Restrictions On — In October 1999 a Cessna carrying a pilot and two passengers, crashed on takeoff from a grazing property — The pilot, Peter Johnson, was killed instantly — The two passengers, one of whom was the pilot’s wife, were seriously injured — The aircraft was owned by the respondent (Triple C), whose only directors and shareholders were Mr and Mrs Johnson, both of whom were employed by the company — There was overwhelming evidence that the pilot was grossly careless in his control of the aircraft — The respondent (Triple C) did not dispute its liability to Mrs Johnson who was awarded $846,030 against it — The respondent had effected a policy of aviation insurance with the appellant (Rural & General Insurance Ltd) to protect it from claims such as Mrs Johnson — The appellant (Rural) declined to indemnify the respondent under the policy claiming that the circumstances of the crash fell within one of its exclusions — The primary judge gave judgment for the respondent against the appellant for the whole of Mr Johnson’s judgment against it, together with costs — On Appeal — Regulation 5.81 of the Civil Aviation Regulations 1988 made under the Civil Aviation Act 1988 (Cth) provided that “Private (aeroplane) pilot: regular flight reviews required…pilot must not fly an aeroplane as pilot in command if the pilot has not, within the period of 2 years immediately before the day of the proposed flight, satisfactorily completed an aeroplane flight review…the person conducting the review must make an entry in the pilot’s personal log book” — Regulation 5.51 provides for the keeping of log books by those licensed to fly aeroplanes — At the trial counsel for the respondent conceded that the respondent did not “know if (Mr Johnson) did the flight review within two years…” — The appellant was put to proof on the issue — There was no record of Mr Johnson having undertaking a flight review, in the relevant period, in his personal log book found in the Cessna — That there was no such record was not contested, but it must be said that the parties’ representatives at trial were alarmingly casual in their treatment of the rules of evidence and, in particular, the best evidence rule — The log book was not produced at trial — Photocopies of what were described as the “relevant entries” were retained by the Australian Transport Safety Bureau, but a desultory attempt to procure the photocopies was not persisted in — A Mr Ellis, who examined the log book at the crash site, gave evidence of the documents contents — No point was taken about this objectionable and wholly unsatisfactory manner of what was critical to the third party proceedings — The log book found in the aircraft contained records of flights flown by Mr Johnson between 12 December 1997 and 13 November 1998 — There was a record of a satisfactory flight review on 14 December 1996, but none after that date — Given that proof of a successful review be noted in the pilot’s personal log book and signed by the person conducting the review, the absence from the log book of such a notation was cogent evidence there had been no such review — It was in the respondent’s and Mrs Johnson’s interest to adduce evidence that there had been such a review — The only sensible inference from the available facts is that the log book found in Mr Johnson’s possession on the day of the crash was his current log book which he had had since December 1996 — The lack of an entry by an instructor who conducted a review in the period October 1997 and October 1999 is strongly inconsistent with having completed a review — Held that the appellant had shown that Mr Johnson flew the aircraft on 20 October 1999 without having in the two years immediately beforehand satisfactorily completed an aeroplane flight review — The policy did not offer indemnity in circumstances where the aircraft was flown by a pilot who had not satisfactorily completed a flight review within two years previous to the loss — Because Mr Johnson had not satisfactorily completed the flight review, the respondent’s claim for indemnity under the policy was excluded — The omission not to undergo the review could reasonably be regarded as being capable of contributing to the loss, because the loss was caused by pilot error, Mr Johnson had many faults as a pilot, the purpose of the flight review is to check for pilot faults and correct them and prevent an unskilful pilot from flying, and an astute instructor will detect faults even where the candidate tries to conceal them — Section 54 does not assist the respondent — HELD: Appeal allowed, Orders where the appellant was to indemnify the respondent against the plaintiff’s claim set aside and Costs.

SBT v CAY & Anor [2010] QCA 289 Chief Justice, Fraser JA and Philippides J 22/10/2010

Miscellaneous Application from the District Court — Criminal Injuries Compensation — Amount and Conduct Affecting — The primary judge ordered the respondent to pay the Public Trustee of Queensland, on trust for the applicant who was then 10 years of age, the modest sum of $2,250 as compensation under s 24 of the Criminal Offence Victims Act 1995 (Qld) — It related to two counts of indecent dealing with the applicant when the applicant was five or six years old — The respondent touched the applicant’s penis and had the applicant touch the respondent’s penis, in the one incident — The respondent had pleaded guilty to those offences and also to sexual offences committed upon the applicant’s brother B, who at the time of the offending was two years older than the applicant — B also applied for compensation, and the judge awarded him $28,500 — The evidence before the judge comprised a five page memorandum from the applicant’s mother, setting out the effect of the offending on both her sons, a written report from Ms Boast, a psychologist, and oral evidence given by Ms Boast per telephone during the hearing — Her Honour was not satisfied that Ms Boast addressed in her report the relationship between the commission of the offences upon the applicant and the applicant’s subsequent condition — The judge was concerned that the adverse impacts on the applicant may have been referable to the treatment of him by B rather than the commission of the offences, such that the applicant was in the position of a “secondary victim” — On Appeal — One cannot ignore the psychologist’s acknowledgement in her oral evidence that she found it impossible to relate the impact on the applicant to the offending rather than the situation within the family, or the other way around — Because of that acknowledgement, it fell to the judge to do her best to examine the extent to which the applicant’s condition was brought about by the offending itself — Her Honour contrasted the limited albeit serious extent of the offending on the one hand, with the “greatly overshadowing” violence visited upon the applicant by his badly traumatised elder brother, leading to her Honour’s conclusion that “only a limited impact” on the applicant was attributable to the offending — Her Honour’s consequent factual conclusions were open, and she reached them by following a course which was plainly open to her — HELD: Application refused.

CRIMINAL APPEALS 

R v Williamson [2010] QCA 277 Fraser and Chesterman JJA and Cullinane J 15/10/2010