Court of Appeal Judgment Summary Notes

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CIVIL APPEALS

Agripay Pty Limited v Byrne [2011] QCA 085 Margaret McMurdo P, White JA and McMeekin J 3/05/2011

General Civil Appeal from the Supreme Court, Trial Division — Equity — General Principles — Undue Influence and Duress — Presumption from Relationship of Parties — Husband and Wife — The appellant, who carried on a business of providing loans to investors in approved managed investment schemes, lent money to the late Dr Murray Byrne in June 2006 to assist in the purchase of units in a number of agricultural managed investment schemes, essentially as a vehicle for the minimisation of his tax indebtedness — At the same time, his wife, the respondent, Dr Joan Byrne (“Dr Byrne”), guaranteed the due performance of her husband’s obligation under the loan agreement by a contract of guarantee and indemnity — Dr Murray Byrne died between 9 and 11 February 2007 aged 38 years — His estate defaulted in the payment of interest due under the loan which triggered an obligation to repay the outstanding amount of the loan and interest — The Chief Justice, who was the primary judge, concluded that Dr Byrne fell within the second class of case discussed in Garcia v National Australia Bank Ltd (1998) 194 CLR 395 finding that she did not understand the purport and effect of the primary transaction; that she should be regarded as a volunteer; that the lender knew of the marriage relationship; and that no explanation about the transaction was given to her — His Honour set aside the contract of guarantee and indemnity with costs — On Appeal — Dr Byrne told the court that her husband had a serious tax problem in 2002 and had become “fairly aggressive” — At the beginning of the week of 3 June 2006 Dr Murray Byrne told his wife that Peter Cooke was coming to Toowoomba to assist him in taking out investments to help with his tax problem — A statement of advice had been prepared for him by Mr Cooke, a certified financial planner through his company Planwealth Pty Ltd, an authorised representative of Hillross Financial Services Ltd — Hillross was a wholly owned subsidiary of AMP Life Ltd — The investments were all in the agribusiness field — There was no suggestion that Dr Byrne was shown a copy of that statement of advice by her husband or Mr Cooke at any time prior to her signing the application for loan or the guarantee proper — The learned primary judge accepted Dr Byrne’s evidence as “honest and reliable” — The dispute between the parties to the appeal is the degree of want of understanding of the transaction which Dr Byrne must demonstrate — Ultimately, cases where a wife seeks to be relieved of the burden of her contract of suretyship will depend on a close analysis of the particular facts — The learned primary judge’s acceptance of Dr Byrne’s limited involvement in the running of her husband’s medical practice was open on the facts — No matter how intelligent she might have been, the emotional pressure that she felt at the time the transactions were entered into was of a kind for which in part the rule had been developed and in respect of which the appellant could relatively easily have dealt — This was a very complex transaction with many features which ought to have been drawn to Dr Byrne’s attention, particularly the illiquid nature of the investment — The learned primary judge did not fall into error in his analysis of the evidence or the application of legal principles — HELD: Appeal dismissed with costs.

Hussey & Anor v Bauer & Ors [2011] QCA 091 Fraser and Chesterman JJA and Martin J 10/05/2011

General Civil Appeal from the Supreme Court, Trial Division — Succession — Wills, Probate and Administration — The Making of a Will — Testamentary Instruments — Joint and Mutual Wills — Thelma Bauer married Walter Bauer in 1967 — In December 1973 Thelma Bauer became the sole registered proprietor of two lots of land in Gilbert Street in Buderim (“the Buderim property”) — In 1984 Walter Bauer became the sole registered proprietor of a unit in a complex at Mooloolaba (“the Mooloolaba unit”) — Shortly after Walter Bauer became registered as the sole proprietor of the Mooloolaba unit he and Thelma Bauer executed wills — At that time they had no assets of substantial value, other than the Buderim property registered in Thelma Bauer’s name and the Mooloolaba unit registered in Walter Bauer’s name — The two wills were: (a) apart from the identity of the executors and trustees, identical; (b) prepared by the same firm of solicitors; (c) executed at the same time; and (d) executed in the same place, namely, the firm of solicitors who had drawn the wills — In December 1992 Walter Bauer died — He had not revoked his 1984 will, nor had he dealt with the Mooloolaba unit — In January 1997 Thelma Bauer executed a further will in which she revoked all previous wills, appointed Caroleann Hussey and George Paul (the only children of her first marriage) as her executors, and left the Mooloolaba unit to the appellants with the residue of her estate to the respondents — Thelma Bauer died in April 2007 without having executed any further wills — The learned trial judge found that Walter and Thelma Bauer had agreed to make mutual wills — The characteristics of mutual wills and the means of proving their existence have been the subject of consideration in many courts — While it can be accepted that the burden of those who propound the existence of mutual wills is heavy, such a burden must not be converted into something other than the ordinary civil burden of proof — The question of whether an agreement to make mutual wills exists is to be answered by looking at all the circumstances and the content of the wills is just one of those circumstances — This is a case in which the circumstances surrounding the making of the wills and the conduct of the testators dictate the conclusion reached by the learned trial judge — There was uncontested evidence that in or around 1989 Walter Bauer and Thelma Bauer visited each of the respondents and spoke to them about the fact that wills had recently been made by them — It is well established that an appellate court will not interfere with a trial judge’s findings based on credit, unless the trial judge failed to use or palpably misused his or her advantage — There was ample evidence to support the learned trial judge’s findings as set out above — The applicants have not demonstrated that the learned trial judge erred in either stating the appropriate test, or in the proper application of that test — HELD: Appeal dismissed with costs.

Project Company No 2 Pty Ltd v Cushway Blackford & Associates Pty Ltd & Anor [2011] QCA 102 Muir and White JJA and Peter Lyons J 17/05/2011

General Civil Appeal from the Supreme Court, Trial Division — Procedure — Supreme Court Procedure — Procedure Under Rules of Court — Parties — Joinder and Addition of Parties — The appellant/plaintiff, Project Company No 2 Pty Ltd (“DDF”) applied for leave to join Project Company No 1 Pty Ltd (“KRC”) as a plaintiff in the proceedings pursuant to r 69(1)(b) of the Uniform Civil Procedure Rules 1999 (Qld) and for leave for DDF and KRC to amend the consolidated statement of claim pursuant to r 377 of the Uniform Civil Procedure Rules in accordance with a particular draft — For the purposes of this appeal, specific facts extracted from DDF’s outline of argument were agreed — DDF entered into a contract with Bovis Lend Lease (BLL — not a party to the appeal) for the construction of an abbatoir and asociated facilities at Toowoomba — In December 2003, KRC purchased 100% of the shares in DDF — In June 2004, DDF granted a licence to KRC for it to operate the abattoir — DDF continued to own the land, plant and equipment — On 17 June 2005, there was a fire in the main switchboard which caused extensive damage to it — Significant losses were incurred as a result of the interruption to the business conducted from the facility DDF alleges that the respondents were negligent in failing to provide proper protection on the switchboard against over currents — During the course of 2010, it became apparent to the parties that it was KRC that had suffered certain of the losses claimed in the proceeding, rather than DDF — On Appeal — It is clear from the High Court decision in Woolcock (2004) 216 CLR 515 that Bryan v Maloney (1995) 182 CLR 609 is a decision of doubtful authority which cannot be taken as excluding claims against builders of commercial premises for economic loss suffered by subsequent owners of the premises — In holding, in effect, that the principles stated in Fangrove [1999] 2 Qd R 236 prevented a subsequent purchaser of commercial premises recovering from the builder damages arising from the faulty construction of the building, the primary judge exercised his discretion on an erroneous basis — It is apparent that liability in this case falls to be determined by reference to facts which depart significantly from those considered in Woolcock and it is far from obvious how the concept of vulnerability is to operate in the present circumstances — It is one thing to expect a purchaser of valuable commercial premises at arms length from the vendor to take steps to protect itself against economic loss should the acquired property prove to be defective and for it to bear the loss if it fails to do so — But what is reasonable for parties at arms length in a transaction of sale and purchase may not be reasonable or even appropriate for dealings between companies in the same group engaged in a quite different transaction — It is apparent that whether the relationship between KRC and the respondents is of such a kind as to prevent KRC recovering damages on the basis of indeterminancy is very much a question of fact — KRC could bring its own claim against the respondents — The claim is not statute barred — It is surely desirable though that it become a plaintiff together with its subsidiary DDF in the existing proceedings which have been on foot for some time — KRC appears to meet comfortably the description in r 69(1)(b)(ii) — The area of law involved in KRC’s and DDF’s claims is evolving — That is a good reason why the appropriateness of the joinder should be determined more by reference to general principles than by a detailed analysis of the pleaded allegations — it is preferable for leave to be given for KRC to be joined as a plaintiff and for an order be made that an amended statement of claim be delivered — If, having regard to these reasons and other considerations, the respondents wish to seek to have all or part of the amended statement of claim struck out, they can bring an application in the trial division in the usual way — HELD: Appeal allowed with costs, Project Company No 1 Pty Ltd be added as a plaintiff in the proceedings, with procedural orders put in place.

Plante & Anor v James [2011] QCA 109 Margaret McMurdo P, Muir and White JJA 31/05/2011

Miscellaneous Civil Application from the District Court — Procedure — Costs — Jurisdiction — Persons Not Parties to Proceedings — The applicants, Jeffrey Plante and Damien Ferguson, appeal against an order made in the District Court between the plaintiff, Planpac International Pty Ltd, and the respondent/defendant, Bruce James, ordering that they were jointly and severally liable with the plaintiff to pay to the respondent “his costs of and incidental to the whole of the proceedings including this application on the indemnity basis” — The plaintiff carried on business as a provider of architectural and design services — Its directors, from the time of its incorporation on 7 April 2003 were the applicants and the respondent, until the removal of the respondent as a director on 14 August 2006 — The respondent was also employed by the plaintiff under a contract which was made on or about 1 July 2003 — The contract was terminated by the plaintiff without prior notice on 28 June 2006 — The judge’s findings on liability were not challenged in the applicants’ grounds of appeal but the merits of the plaintiff’s claims are relevant for present purposes having regard to the primary judge’s findings that the applicants acted in bad faith in some respects — On Appeal — It was not contended that the primary judge lacked the power to make an order against a non-party, nor that the above statements of principle were in any way erroneous — There are a number of aspects of the primary judge’s approach to the costs award which give rise to concern — The primary judge made no finding that the claims made by the plaintiff were made or pursued in bad faith or that the claims were unarguable — The most substantial of the claims appeared to have substance — Accordingly, an order making the applicants jointly and severally liable with the plaintiff for the costs of the claim would appear to lack justification — The claim for lost superannuation was dependent on the length of notice to which the respondent was entitled and the plaintiff succeeded in having the amount claimed reduced by approximately two-thirds — Plainly, the plaintiff was justified in defending this claim and the finding that the plaintiff had no arguable case in this regard was erroneous — Implicit in the primary judge’s findings was a finding that the applicants had deliberately acted to deprive the respondent, the holder of a third of the plaintiff’s shares, of his rights and entitlements as shareholder — The primary judge’s reasons displayed an impermissible readiness to ignore the separate legal personalities of the plaintiff, and its shareholders — Although there is a general reluctance to interfere with costs orders on appeal having regard to the principle of finality in litigation and the unfettered nature of the discretion exercised in making a costs order, this is an appropriate case in which to grant leave to appeal — HELD: Application granted, Appeal allowed, The order of 18 November 2010 be varied so that it provide: “The plaintiff pay the defendant’s costs of and incidental to the proceedings at first instance on the indemnity basis” with costs.

CRIMINAL APPEALS

R v Price; ex parte A-G (Qld) [2011] QCA 087 Muir JA and Atkinson and Peter Lyons JJ 6/05/2011

Sentence Appeal by the Attorney-General (Qld) and Sentence Application from the District Court — Appeal Against Sentence — Grounds for Interference — Sentence Manifestly Excessive or Inadequate — The respondent, Benjamin Price, was sentenced in the District Court on 11 October 2010 after pleading guilty to four offences against three complainants — Price was a Senior Constable in the Queensland Police Service — A head sentence of 27 months imprisonment was imposed to reflect the overall criminality of the respondent’s conduct — The sentencing judge found amongst other things that the respondent used “inappropriate and grossly excessive force in each of the offences” and that the conduct concerning Counts 2, 3 and 4 involved gratuitous violence — The primary judge considered that general deterrence was an important sentencing consideration to reflect community expectations that police officers would uphold the law — On Appeal — Appellate courts have been reluctant, traditionally, to allow appeals by prosecuting authorities or Attorneys-General against sentences which lie within the range of sentence contended for by the prosecution at first instance — It was not held in Lacey [2011] HCA 10 or Everett (1994) 181 CLR 295 that an appellate court could never increase a sentence on an Attorney’s appeal beyond the range of sentences contended for by the Prosecution on sentencing — I readily accept the submission that the abuse by a police officer of his or her powers and responsibilities to the material harm of a member of the community calls for condign punishment which denounces the offending conduct and provides a general deterrent against the perpetration of such conduct by others — This, of course, is not a corruption case, but public confidence in the administration of justice and, in particular, the role of the police force in that regard, may be undermined in different ways — I accept that, at least as a general proposition, the fact that an unlawful assault has been perpetrated by a police officer in the performance of his duties is a circumstance which greatly elevates the criminality of the subject conduct and plainly distinguishes it from that of an offender who does not hold similar office — The appellant was not able to point to any comparable sentences which supported the contention that the sentences imposed were manifestly inadequate — Even taking into account the absence of evidence of lasting injury to any of the victims, I have experienced some doubt as to whether the sentence imposed was within the range that which could be arrived at through the proper exercise of the sentencing discretion — Ultimately, however, I am not persuaded the sentence was manifestly inadequate — The issue, I think, is a borderline one and had I reached a contrary conclusion, the principles favouring finality in litigation and against double jeopardy, would have led me to decide that the appellant’s appeal should be dismissed — As for the respondent’s appeal on the grounds that the sentences imposed were manifestly excessive, it is apparent from the foregoing that, in my view, the sentences imposed, and in particular the sentence for Count 3, were light — The appellant’s notice of appeal under the heading “Grounds of Appeal” stated, “[t]he sentences imposed are inadequate and accordingly not the proper sentences for the following reasons …” — Early in the hearing, the Solicitor General’s attention was drawn by a member of the Bench to paragraph 64 of the reasons in Lacey — It was there noted that the appellant had submitted, in the alternative, that if the appellant were to succeed, the notice of appeal should be dismissed as incompetent — The Solicitor General submitted, in effect, that the fact that a notice of appeal contained only grounds, which, if established, would not enable the appeal to succeed did not necessitate the conclusion that the notice of appeal was invalid and that the jurisdiction of the court had not been invoked — There is no authority of which I am aware for the proposition that a document initiating a proceeding, whether it be a writ, claim, application or notice of appeal, which fails to disclose a cause of action or ground which would enable the initiator to succeed in the proceeding is invalid, as opposed to being vulnerable to dismissal — However, the point was not fully argued and it is unnecessary to decide it — HELD: (brief) — The appeal by the Attorney-General be dismissed, The application for leave to appeal by the applicant, Benjamin Price, be refused.

R v Scott [2011] QCA 097 Muir, Fraser and Chesterman JJA 13/05/2011

Appeal against Conviction from the District Court — Particular Grounds of Appeal — Verdict Unreasonable or Insupportable Having Regard to Evidence — The appellant was convicted after a trial in the District Court of maintaining a sexual relationship with a child and sentenced to four years imprisonment — In her evidence-in-chief, the complainant, who was then nine years of age, affirmed as true the content of a DVD recording of an interview of her by a police officer on 11 September 2009 — In cross-examination, the complainant admitted that her brother told “big whoppers sometimes” — She said that the first sexual incident occurred when she was six, turning seven, and on that occasion she “had to touch his doodle” — She said that “a doodle” was “a long stick that is very, very soft…it’s his skin colour… [a]nd inside it’s really red” — Asked, “[a]nd how do you get to see the red part?”, she responded, “He opens the skin and he shows me…[b]y pulling it back.” — The complainant’s father, who had separated from her mother around the time her brother was born, gave evidence of an occasion on which, in January 2009, the two children had come to stay with him — In cross-examination, the complainant’s father agreed that her brother had told him in the complainant’s presence that he (the brother) had looked through the bedroom window and seen the appellant and the complainant “doing rude things” — The complainant’s mother gave evidence that the appellant was circumcised and that her son was not — On Appeal — There were aspects of the evidence of the complainant’s brother which suggested that his evidence needed to be approached with considerable caution — As the primary judge informed the jury in his summing up, the prosecution case depended heavily on the evidence of the complainant and there was little other evidence which tended to provide support for her account — Of much more concern, are the descriptions given by the complainant of the appellant’s penis — Although the appellant was circumcised, the complainant described an uncircumcised penis — The complainant described in detail and at some length acts which could only have been performed if the appellant was uncircumcised: the pulling back of a foreskin to reveal “the pink part or the red part inside” covered by the skin — The substance of the evidence was that the complainant had seen and handled the appellant’s penis more than ten times — It is obviously highly unlikely that the complainant could have formed a memory of an uncircumcised penis with a foreskin which she handled to reveal a red or pink part inside, solely from the alleged offending conduct — It is more likely, I think, that the complainant’s understanding of the appearance and general anatomy of a penis was derived from observing her brother’s penis on occasions — She admitted seeing his foreskin pulled back — Her description of the appellant’s penis, which has just been discussed, plainly owes nothing to observations of the appellant’s penis — Yet, if her account of the appellant’s misbehaviour was generally correct, it would be reasonable to conclude that she would have been more familiar with the appearance of the appellant’s penis than that of her brother — The complainant’s brother was plainly untruthful in his evidence in a number of significant respects — The complainant’s brother admitted that he had wanted to get his father back to live with his mother — He made the initial allegation of misconduct by the appellant to his father and the complainant’s first complaint, also to her father, was made after she had spoken to her brother in her father’s absence — In my view, these matters, coupled with the complainant’s evidence discussed earlier, cast considerable doubt on the accuracy of the complainant’s account of relevant events — Having had regard to the whole of the evidence, and after allowing for the jury’s advantage in seeing and hearing the evidence, I have concluded that it was not open to the jury to be satisfied beyond reasonable doubt that the appellant was guilty — It would not be appropriate to order a retrial — The difficulties arising from the evidence of the complainant and her brother identified above would also arise on any retrial — HELD: Appeal allowed, Conviction set aside, Verdict of acquittal entered.

R v Harold [2011] QCA 099 Chesterman and White JJA and Martin J 17/05/2011

Sentence Application from the Supreme Court, Trial Division — Appeal Against Sentence — Grounds for Interference — Sentence Manifestly Excessive or Inadequate — On 27 March 2007 the applicant was convicted by a jury of the manslaughter of his de facto partner — On 19 April 2007 he was sentenced to a term of 14 years imprisonment — The sentence took into account, among other things, nine summary offences and two charges of assault occasioning bodily harm to which he had pleaded guilty — The learned sentencing judge took into account the applicant’s criminal history — Apart from minor property offences the applicant’s previous convictions were for offences of violence which he committed upon the deceased over a period of about 10 years — When the applicant was being dealt with for the manslaughter conviction, he also pleaded guilty to a number of summary offences mostly concerning breaches of bail conditions — An ex officio indictment was also presented in which he was charged with two counts of assault occasioning bodily harm relating to the deceased — The applicant’s counsel at trial did not argue that that sentence was outside the range — On Appeal — Manslaughter is an offence which, perhaps more than any other in the Criminal Code, is susceptible to a very wide range of sentences because of the infinitely various sets of circumstances which can give rise to the offence (Mooka [2007] QCA 36) — The applicant for leave was not remorseful, he did not plead guilty, nor did he offer to plead guilty in a timely way — He was not a young man and he had a considerable history of violence towards the deceased — The learned sentencing judge did not, in arriving at a sentence of 12 years on the manslaughter charge, take into account the other matters to which the applicant had pleaded guilty during the sentencing hearing — The learned sentencing judge clearly distinguished between the criminal history of the applicant for which punishments had earlier been imposed and the extra charges to which he pleaded guilty on the day — A sentence of 14 years properly reflected the seriousness of the manslaughter and of the assaults and was an appropriate overall sentence — It would not have been appropriate to have made the two years sentence for the charges of assault occasioning bodily harm concurrent because they were clearly separate offences committed at different times even though they were offences in a 10 year course of conduct — The learned sentencing judge imposed a sentence which was within the appropriate range — HELD: Leave refused.