FEATURE ARTICLE -
Case Notes, Issue 54: March 2012
CIVIL APPEALS
Williamson & McGillivray & Ors v JIA Holdings & Anor [2011] QCA 346 Fraser and Chesterman JJA, and Margaret Wilson AJA 2/12/2011
General Civil Appeals — Contracts — where the appellants signed contracts with the first respondent, a property developer, to buy apartments “off the plan” — where the first respondent advised that it had been unable to obtain satisfactory approval of construction finance required for development to proceed and proposed that the contract be terminated by mutual agreement — where the appellants then commenced proceedings for damages for breach of contract — where the trial judge found there had been no breach of contract — where the appellants argued the trial judge addressed incorrect issues and failed to consider the relevant clauses requiring the first respondent to build the residential apartment building — whether the trial judge erred in failing to consider the clauses in the contracts which unconditionally and expressly obliged the first respondent to build the residential apartment building — where the appellants claimed that the first respondent transferred property to the second respondent with the aim of defrauding the first respondent’s creditors, in particular, the appellants — where the appellants sought orders against both respondents setting aside Deeds of Loan and Mortgages between them on the basis that the transactions were alienations of property made with intent to defraud creditors — whether the transfer was made with the intent to defraud creditors — where the appellants claimed damages calculated as the difference between the market value of the units as at 31 December 2005 and the respective contract prices plus outlays incurred by each appellant — where the appellants adduced evidence of the value of the units at that date but the respondents did not — where the trial judge held that if it had been necessary to determine the appellants’ damages, his Honour would not have been satisfied that the appellants suffered any loss — whether the trial judge erred in failing to give reasons for preferring one expert opinion over another with respect to the market values in the area — whether the trial judge erred in the assessment of damages and, if so, what is the correct measure — Appeals allowed, judgments dismissing the appellants’ actions set aside, judgments for the appellants in their respective actions, Deeds of Loan and Mortgage between the first and second respondent be set aside with costs.
Hart v Commonwealth Director of Public Prosecutions [2011] QCA 351 Margaret McMurdo P, Muir and White JJA 6/12/2011
General Civil Appeal — Confiscation of Proceeds of Crime — where the appellant was a registered tax agent and principal of an accounting practice — where clients of the practice lodged income tax returns falsely claiming for moneys expended in the purchase of insurance bonds — where the appellant knew that the participants were not entitled to claim these expenses as a tax deduction — where the appellant was convicted of nine indictable offences of defrauding the Commonwealth — where the respondent CDPP made an application for pecuniary penalty orders to deprive the appellant of benefits derived by him from the commission of offences against the Commonwealth — where the appellant was found to have committed further offences against the Commonwealth involving unlawful activities — where the primary judge deducted the agreed refunds made by the appellant from the total benefits derived — where the appellant submitted that the primary judge relied on findings of fact not part of the prosecution’s pleaded case in concluding that the appellant had committed the further offences — where the appellant submitted that the primary judge incorrectly assumed that tax deductibility turned on whether the documentation had been signed before or after the payment of interest — where the appellant submitted that the primary judge’s ultimate conclusion depended upon the use of promissory notes in the schemes rather than cash — where the appellant submitted that the primary judge erred in assessing the benefits derived by the appellant from the offences — whether the scheme payments were tax deductible — whether tax deductibility was a prerequisite for an application for a pecuniary penalty order — whether the primary judge erred in finding that the appellant had committed the further offences — whether the primary judge erred in ordering that the appellant pay the respondent the penalty amount — whether the primary judge erred in calculating the benefits derived by the appellant — where the appellant submitted that the respondent CDPP had departed from its pleaded case — where the respondent argued in its closing address at first instance that the appellant knew that the purpose of the scheme was not to provide a benefit to his clients’ employees — where the appellant submitted that the respondent’s original contention did not relate to the purpose of the payments — whether the primary judge erred in finding that there was no departure from the respondent’s pleaded case — where the respondent sought to rely at first instance on some 40,000 documents obtained from the execution of search warrants overseas — where the appellant submitted that the documents were inadmissible or irrelevant — where no objection was raised at first instance to documents being tendered — whether the appellant was denied natural justice in preparing for trial — whether the admission of the subject documents gave rise to a miscarriage of justice — where the appellant was self represented at first instance — where counsel for the appellant submitted on appeal that the primary judge erred in treating submissions by the appellant as evidence admissible against him — where the appellant submitted that the respondent was under a duty to call a number of material witnesses at first instance — whether the primary judge’s failure to warn the appellant of the right against self incrimination amounted to procedural unfairness — whether the primary judge erred in finding that it was unnecessary for the respondent to call additional witnesses — whether the appellant was denied natural justice — where the plaintiff submitted that the finding that he had committed indictable offences and was liable to pay a penalty amount could not be made except by jury verdict — where the appellant submitted that Pt 2-4 of the Proceeds of Crime Act 2002 (Cth) was inconsistent with s 80 of the Constitution (Cth) — whether the pecuniary penalty proceedings constituted a trial on indictment — whether Pt 2-4 of the Proceeds of Crime Act 2002 (Cth) was invalid. Appeal dismissed with costs.
Lockyer Valley Regional Council v Westlink Pty Ltd & Ors [2011] QCA 358 Fraser and White JJA and Douglas J 9/12/2011
Application for Leave Sustainable Planning Act — where the first respondent applied to the applicant council for development permits to develop an electricity station — where the applicant council refused the application for development permits — where an appeal to the Planning and Environment Court was successful on the basis that use proposed by the first respondent did not conflict with the planning scheme — where the applicant council argued that the primary judge misconstrued the planning scheme and did not apply the proper test to determine conflict with the planning scheme — where, in particular, the applicant argued that the primary judge overlooked a requirement that the rural character and landscape values of the Shire should be enhanced, incorrectly held that the rural general zone code contained inconsistencies, and failed to apply the plain meaning of a provision which showed the proposed use to be in conflict with the planning scheme — whether the primary judge erred in construing the planning scheme — whether the proposed use is in conflict with the planning scheme. Application for leave to appeal granted, appeal allowed, order of Planning and Environment Court set aside, decision of the Council remitted to the Planning and Environment Court to be determined according to law, costs.
Keswick Developments Pty Ltd & Anor v Keswick Island Pty Ltd & Ors [2011] QCA 379 Muir, Fraser and Chesterman JJA 20/12/2011
General Civil Appeal — Contracts — where there was a sublease of Crown land between the first appellant as sub-lessor and the fourth respondent as sub-lessee — where the sublease was for a term of over 90 years with a nominal rent — where the sublease provided strong protection for the sub-lessee upon default — whether the first appellant was entitled to terminate the sublease for repudiation by the fourth respondent — where the respondents submitted that subleases under the Land Act 1994 (Qld) are statutory interests and are not governed by common law doctrines — where the respondents argued on appeal that a clause in the sublease excluded the application of the common law doctrine of repudiation — where the arguments were not raised or were raised and abandoned at first instance — whether the respondents should be permitted to rely on arguments not relied on at first instance — whether the common law doctrine of repudiation is applicable to subleases of Crown land under the Land Act 1994 (Qld). Appeal dismissed with costs.
Hammercall Pty Ltd v Robertson & Anor; Hammercall Pty Ltd v Robertson & Ors [2011] QCA 380 Chesterman and White JJA, and Boddice J 20/12/2011
Miscellaneous Application — Civil — Environment and Planning — where the applicant owns several parcels of land which it intends to develop for residential purposes — where the second respondent proposed to construct a power line through parts of the applicant’s lands — where the applicant commenced proceedings in the P & E Court seeking declarations that the second respondent’s proposal to have the land designated for community infrastructure was unauthorised — where the primary judge made directions in relation to resolving the dispute by way of filing affidavits — where the applicant sought to have those orders set aside — where the applicant filed a separate originating application in the Court of Appeal regarding the designation of the land — where the second respondent subsequently suspended the designation process — where the applications came on for hearing on 11 August 2011 — where the Court of Appeal dismissed the application for leave to appeal and the originating application — where the Court ordered the applicant to pay the Ministers’ costs and refused to order ENERGEX to pay the applicant’s costs on 30 August 2011 — where the applicant then filed a further application on 5 September 2011 seeking the judgment of the Court of 30 August 2011 to be reconsidered in the inherent jurisdiction, for the judgment to be set aside, for errors in the judgment to be corrected pursuant to UCPR 388(2), for the applicant to have leave to appeal under s 253 of the Supreme Court Act 1995, for the application for costs to be heard by a differently constituted court, and costs — whether the Court has power to set aside its orders of 30 August 2011 — whether, if the power exists, it should be exercised in accordance with the applicant’s wishes — where the respondents sought indemnity costs of the applications on the ground that they were frivolous, vexatious and an abuse of process — whether an order for costs on the indemnity basis should be made — where the applicant filed an application on 14 November 2011 requesting Chesterman JA to recuse himself from hearing the application filed 5 September 2011 on the grounds of his Honour’s apprehended bias — whether the application for recusal should be granted. Applications dismissed with costs to be assessed on the indemnity basis.
Tabtill Pty Ltd v Creswick; Creswick v Creswick & Ors [2011] QCA 381 Fraser and White JJA and Boddice J 23/12/2011
General Civil Appeals — where Felix Creswick claimed that his son, John Creswick, had forged his signature on a large number of documents — where two handwriting experts had agreed that the disputed signatures were all written by the same author and bore no resemblance to Felix Creswick’s undisputed signature, but disagreed as to whether it was possible to say who had written the disputed signatures — where a number of witnesses to the disputed signatures were called to give evidence — where the effect of John Creswick’s argument was that Felix Creswick continued to use the disputed form of signature after he had falsely accused John Creswick of forgery — where the trial judge found that Felix Creswick had not proven the alleged forgery to the Briginshaw standard — where Felix Creswick argued on appeal that the trial judge failed to properly analyse the evidence and contemporaneous documentation, and failed to consider the consequences of the respective findings of credit made — whether the allegations of forgery were proven to the requisite standard — where the trial judge’s findings in relation to Felix Creswick’s forgery case were made on the basis of general findings as to each of the witness’s honesty and credibility — where the trial judge declined to make a finding as to the identity of the writer of the disputed signatures — whether it is appropriate for the Court of Appeal to make specific findings as to who wrote the disputed signatures from an analysis of the evidence — where the parties entered into an agreement to resolve all matters in dispute between them — where Felix Creswick sought to resile from that agreement shortly after signing it — where the agreement was brokered by a real estate agent who had known John Creswick for many years — where Felix Creswick, in the agent’s presence, consulted with a lawyer about the draft agreement — where the agent communicated to Felix Creswick and the lawyer that the agreement had to be concluded the same day — where the lawyer advised Felix Creswick not to sign the agreement, and not to deliver it to John Creswick’s solicitors — where changes were made to the agreement and Felix Creswick signed it and returned it — where the lawyer later expressed his opinion to Felix Creswick and John Creswick’s solicitor that the agreement was signed under duress and would not be enforceable — where the trial judge found that Felix Creswick initiated the signing of the agreement, and that no false sense of crisisâ had been created — whether the trial judge erred in finding that the agreement ought not to be set aside as an unconscientious dealing given by witnesses found to be honest by the trial judge — where, in addition to the alleged false sense of crisisâ, Felix Creswick, to John Creswick’s knowledge, was suffering from ill health and impecuniosity — where the trial judge found that Felix Creswick was capable of dealing robustly with John Creswick, and the nature of their relationship was not such as to give rise to undue influence — whether the trial judge erred in finding that the agreement ought not to be set aside on the basis of undue influence or duress — where Felix Creswick made handwritten changes to the draft agreement provided to him before signing the agreement — where Felix Creswick communicated his intention to resile from the agreement before it had been executed by the respondents — where, on appeal, Felix Creswick argued that his signing of the agreement amounted to a counter-offer which was withdrawn before acceptance by the respondents and there was therefore no concluded agreement — where that argument was not raised on the pleadings or argued below — whether, in the circumstances, Felix Creswick should be entitled to raise that argument for the first time on appeal — where Tabtill Pty Ltd and John Creswick argued that a number of the properties registered in Felix Creswick’s name were held on resulting trusts for Tabtill Pty Ltd and/or John Creswick — where the basis of the alleged resulting trusts was the presumption of resulting trust arising from the payment of acquisition costsâ, rates, land tax, and other outgoings with respect to the properties — where the trial judge made adverse findings with respect to the credibility and reliability of both Felix Creswick and John Creswick — where the trial judge did not decide the issue of resulting trusts on the basis that the May agreement was upheld — whether the presumption of resulting trust is raised in the circumstances — whether resulting trusts ought to be ordered. Dismiss Tabtill’s appeal, allow the appeal of Felix Creswick, allow the cross-appeal, set aside the orders made below, declare that the purported signature of Felix Antonio Creswick on each of those 105 documents listed in Annexure D to Exhibit 22 to the trial exhibits was affixed by John Francis Creswick without the authority of Felix Antonio Creswick, with subsequential orders.
CRIMINAL APPEALS
R v Huston; ex parte Cth DPP; R v Fox; ex parte Cth DPP; R v Henke; ex parte Cth DPP [2011] QCA 350 Muir and Chesterman JJA, and Margaret Wilson AJA 6/12/2011
Sentence Appeal by Cth DPP — where the appellant Huston was sentenced to four years’ imprisonment to be released on parole after serving 10 months — where the appellant Fox was sentenced to three years and nine months’ imprisonment, to be released on parole after serving nine months — where the appellant Henke was sentenced to four and a half years’ imprisonment to be released on parole after serving 12 months — where the Commonwealth Director of Public Prosecutions (CDPP) appealed against the sentences imposed — where the CDPP submitted that the sentences imposed were manifestly inadequate and that the sentencing judge did not give sufficient weight to the circumstances of the case and gave too much weight to mitigating factors — whether the sentences imposed were manifestly inadequate so as to demonstrate an error in the exercise of the sentencing discretion where Henke also purported to appeal against his sentence in submissions — where Henke did not apply for leave to appeal against sentence as required by s 668D(1)(c) of the Criminal Code 1899 (Qld) — whether the appeal against sentence should be allowed. All appeals against sentence by the Commonwealth Director of Public Prosecutions allowed, Huston and Henke sentenced to six years’ imprisonment with a non-parole period of three years, Fox sentenced to five years’ imprisonment with a non-parole period of two years and six months.
R v Shoesmith [2011] QCA 352 Fraser JA and Mullins and Douglas JJ 9/12/2011
Appeal against Conviction & Sentence — where the appellant was found guilty of the manslaughter of his girlfriend’s 14 week old baby — where the appellant’s version of events was that the baby slipped through his legs, hit her head on the edge of a coffee table and then fell onto the cement floor — where the baby suffered a severe fracture of the skull, retinal haemorrhages, a fold in the retina, a significant subdural haemorrhage, brain swelling, areas of contusion on the brain, and a torn fraenulum, and she had a linear bruise on her forehead — where experts called by the Crown gave evidence that those injuries were not consistent with being caused by an accident described by the appellant — where experts called by the defence gave evidence that such injuries were possible in short falls — where the Crown experts made concessions in cross examination — whether an absence of scientific certainty requires a jury to harbour a reasonable doubt — whether it was open to the jury to be satisfied beyond reasonable doubt that the appellant was guilty — where the baby had suffered a number of previous injuries — where the appellant had given varying accounts to different people of how those injuries had occurred — where a judge at a pre-trial hearing accepted that the evidence might establish that the appellant had told lies about the cause of the injuries, the jury might therefore conclude that the appellant had caused the previous injuries, and the evidence was therefore admissible for a number of reasons, including to exclude a defence of accident — where no directions were given in relation to impermissible propensity reasoning in the summing up — where the prosecutor did not clearly allege that the appellant was responsible for the previous injuries, but so much was clearly implicit in his closing address to the jury — where the trial judge did not direct the jury in relation to all of the lies alleged by the prosecution — whether the alleged nondirections resulted in a miscarriage of justice. Appeal allowed, conviction and sentence set aside, new trial is ordered.
R v Ortega-Farfan [2011] QCA 364 Fraser and Chesterman JJA and Mullins J 13/12/2011
Appeal against Conviction — where the appellant was convicted of one count of indecently dealing with a child under 16 years, with a circumstance of aggravation that the child was under 12 years — where the appellant took part in covertly recorded conversations with the complainant’s father — where, during these conversations, the appellant stated that he “can’t get involved with children or play with children” and that he was seeking psychological and psychiatric help — where portions of the conversations were omitted from the transcript read to the jury — where the portions excised provided important context to those statements — where the Crown relied on those statements as indicating a consciousness of guilt — where the trial judge directed the jury as to how the statements could be used — whether a miscarriage of justice occurred as a result of the jury receiving an incomplete picture of the conversations — where there were a number of inconsistencies between the accounts of the conduct given by the complainant at various times — where, during the prerecording of her evidence, the complainant agreed that her father had reminded her about a number of aspects of her evidence — where, during her police interview, the police officer misstated the complainant’s initial complaint back to her — where the complainant’s father’s evidence of early complaint was of doubtful reliability as a result of contradictions by other evidence, including the complainant’s own evidence, and evidence that the appellant continued to have unsupervised contact with the complainant after the alleged complaint — whether upon the whole of the evidence it was open to the jury to be satisfied beyond reasonable doubt that the appellant was guilty. Appeal allowed, conviction set aside, verdict and judgment of acquittal is entered.
R v Neilson [2011] QCA 369 Muir JA, Margaret Wilson AJA and Mullins J 16/12/2011
Sentence Application — where the applicant was convicted after trial of grievous bodily harm and armed robbery, in company, with personal violence — where the applicant was sentenced to four years’ imprisonment for each offence with the sentences to be served cumulatively — where the applicant was 17 years old at the time of the offences and showed no remorse — whether sentence was manifestly excessive due to weight placed on the need for deterrence. Application granted, appeal allowed, sentence varied by deleting the orders that the sentences are cumulative and fixing the parole eligibility date at 9 May 2015 to fixing the date of parole eligibility at 5 May 2013.
R v Winchester [2011] QCA 374 Muir and Chesterman JJA and Fryberg J 16/12/2011
Appeal against Conviction, Sentence Application — where the appellant was convicted of 21 sexual offences against a female complainant child including six counts of rape and one count of maintaining a sexual relationship with a child — where the appellant was acquitted of eight sexual offences against the complainant including one count of rape — where the primary judge attributed the jury’s differing verdicts to their exercising caution where there was some evidence capable of casting doubt on the complainant’s recollections — whether the verdicts of acquittal were inconsistent with the guilty verdicts — where the appellant raised additional matters on appeal which could have been, or were in fact, raised at trial — where the appellant argued that these additional matters established that the complainant’s evidence lacked credibility — whether having regard to all of the evidence the jury could be satisfied beyond reasonable doubt of the appellant’s guilt — where the appellant on a number of occasions allegedly promised the complainant a horse in return for sexual intercourse — where there was evidence that the appellant threatened the complainant with violence on other occasions prior to intercourse — where the primary judge in his summing up directed the jury on the relevance of the threats and promises to the issue of consent — whether the primary judge erred in directing the jury on consent — whether the complainant’s consent was freely and voluntarily given. Appeal against conviction allowed but only on the convictions for rape and attempted rape which are set aside, there be a retrial on those counts, the sentence on maintaining a sexual relationship with a child be set aside, with the re-sentencing of this count be remitted to the District Court to await the retrial of the other counts unless otherwise ordered.
R v Perini; ex parte A-G (Qld) (No 2) [2011] QCA 384 Margaret McMurdo P and Fraser and Chesterman JJA 23/12/2011
Sentence Appeal by A-G (Qld) — where the respondent pleaded guilty to manslaughter, two counts of burglary and two counts of interference with a corpse — where the respondent was sentenced to 13 years imprisonment for manslaughter and lesser concurrent terms of imprisonment on the remaining offences — where appellant’s original appeal to the Court of Appeal pre-dated the High Court’s decision in Lacey v Attorney General of Queensland (2011) 85 ALJR 508 — where the High Court remitted the matter to the Court of appeal for further consideration — where the appellant argues the sentence was manifestly inadequate and failed to adequately reflect the seriousness of the offences, properly punish and denounce the offences and failed to give sufficient weight to community protection — where the appellant further argued the sentence gave too much weight to matters of mitigation — whether the sentence was manifestly inadequate. Appeal allowed, set aside the sentence of 13 years imprisonment for manslaughter and substitute instead a sentence of 18 years imprisonment
