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FEATURE ARTICLE - Case Notes, Issue 55: April 2012

Court of Appeal Judgment Summary Notes

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CIVIL APPEALS

The Reserve Vault P/L v Barrier Reef Arts P/L & Ors [2012] QCA 035 Muir and Fraser JJA and Daubney J 2/03/2012

General Civil Appeal — where the respondents’ successfully applied for summary judgment against the appellant in the District Court pursuant to r 292 UCPR — where the appellant did not attend that hearing — where the appellant applied to have the summary judgment set aside pursuant to r 302 UCPR — where that application was denied — where the appellant was not legally represented — whether the primary judge erroneously instructed the appellant that it must provide a reasonable explanation for its failure to attend and show a sufficient basis for the judgment not to be maintained — whether the primary judge failed to inform the appellant of the need to show an arguable defence. Appeal allowed, judgments and orders of the District Court be set aside except in so far as they relate to costs, security for costs given by the appellant be discharged, appellant to file and serve an amended defence and counterclaim, if any, within 14 days of today’s date.

Martens v Stokes & Anor [2012] QCA 036 Margaret McMurdo P and White JA and Margaret Wilson AJA 2/03/2012

General Civil Appeal — where the appellant contended that his claim was outside the scope of the Personal Injuries Proceedings Act 2002 (Qld) — where the appellant contended that his injuries did not arise out of “an incident” within the meaning of s 6 PIPA — where appellant contended that his claim for malicious prosecution could not be described as “a claim” under the Act — where appellant failed to comply with necessary procedure — whether statement of claim was so unsatisfactory that it was unclear whether certain claims were beyond the scope of the Act — where the claim was within the jurisdictional competence of the Supreme Court of Queensland pursuant to s 56(1)(b) of the Judiciary Act 1903 (Cth) — where the Personal Injuries Proceedings Act 2002 (Qld) applied by virtue of s 64 Judiciary Act 1903 (Cth) — where Personal Injuries Proceedings Act 2002 (Qld) applied to appellant’s claims by virtue of s 79 Judiciary Act 1903 (Cth) — where the appellant claimed inconsistency between State and Commonwealth laws — where the state law was found to apply to both the appellant and Commonwealth alike — whether the appellant’s submission on inconsistency was rejected — where the appellant claimed that the Commonwealth is jointly liable for torts committed by one of its officers — where the appellant alleged conspiracy to pervert the course of justice, malicious prosecution, misfeasance in public office, breach of statutory duty, defamation, breach of international obligations to the sovereign state of Papua New Guinea, negligence and perjury — where the appellant submitted that the lex loci delicti was the common law of Australia — where this submission was not accepted — where, in the case of an intranational tort, the locus delicti is the State or Territory where the tort occurred — where in so far as torts occurred in Australia, they occurred in Queensland — where lex loci delicti is Queensland law — where Personal Injuries Proceedings Act 2002 (Qld) applicable in claims for personal injuries. Appeal allowed, order set aside striking out the claim and statement of claim, instead order that the statement of claim be struck out, appellant have leave to file and serve a further statement of claim, parties to make written submissions as to costs.

King v King & Ors [2012] QCA 039 Chesterman and White JJA, and Margaret Wilson AJA 6/03/2012

Application for Leave s 118 DCA (Civil) — where applicant and respondents parties to a residential tenancy agreement — where respondents commenced proceedings for an order that the agreement be terminated — where order made — where execution of order stayed pending proceedings commenced by applicant — where applicant sought declaration that respondents are bound by an agreement for life, an order for specific performance of the agreement and an injunction restraining the respondents from evicting the applicant — where applicant a bankrupt — where judge below ordered claim be struck out — where no reasons were given for the order but apparent from the transcript of argument that his Honour was convinced by the respondents’ counsel’s argument that, as a matter of law, the right the applicant sought to enforce in his action was not his but had vested in his trustees in bankruptcy — where the applicant was not legally represented in the District Court — where applicant appeals order striking out his action — where the applicant’s pleading is capable of claiming a bare licence to occupy the unit for the duration of the applicant’s life or for as long as he wishes to remain in occupation — where applicant submits he has an arguable claim — whether the applicant has a distinctly arguable claim that his right to occupy the unit was a personal right or privilege, not a right of property, and that he is the only person (subject to his former wife’s conjoint right) who may enjoy the right by occupying the premises — whether the application should have been struck out. Applicant has leave to appeal, appeal allowed, orders of the District Court be set aside and order dismissed, parties to file a consent order in the District Court in the agreed directions annexed to this order.

AAD Design Pty Ltd v Brisbane City Council [2012] QCA 044 Chesterman JA, Margaret Wilson AJA, Philippides J 9/03/2012

Application for Leave Sustainable Planning Act — where applicant applied for three development permits — where each application sought permission to make a material change of use of the land to “residence not complying with house code” — where respondent would not proceed with applications — where applicant appealed to Building and Development dispute Resolution Committee — where Committee dismissed the appeal on basis application was not properly made — where applicant appealed to the Planning and Environment Court — where Planning and Environment Court dismissed appeal — where applicant seeks leave to appeal — whether student accommodation falls within the definition of house or multi-unit development under the Brisbane City Plan 2000 (as amended). Leave to appeal granted, appeal dismissed, parties to provide written submissions as to costs.

McLindon & Anor v Electoral Commission of Queensland [2012] QCA 048 Margaret McMurdo P and Muir JA and Applegarth J 14/03/2012

Reference by a Judge — Civil — where an officer of Katter’s Australian Party applied to the Australian Electoral Commission (“the AEC”) for registration of Katter’s Australian Party as a political party with the abbreviation “The Australian Party” under the Commonwealth Electoral Act 1918 (Cth) — where the AEC refused this application because of the proposed abbreviation — where later an officer of the Party applied to the Electoral Commission of Queensland (“the QEC”) to register the abbreviation of the Party’s name, “The Australian Party”, under the Electoral Act 1992 (Qld) (“the State Act”) — where the QEC informed the Party that it had amended its register to include the abbreviation “The Australian Party” for Katter’s Australian Party (Qld Division) — where the primary judge referred the constitutional questions raised by the applicants for the consideration of the Court of Appeal under s 251 Supreme Court Act 1995 (Qld) — where the applicants contend that s 102 of the Electoral Act 1992 (Qld) (“the State Act”) is inoperative under s 109 of the Constitution insofar as it purports to authorise the abbreviation “The Australian Party” in circumstances in which that abbreviation has been considered and rejected under Part XI of the Commonwealth Electoral Act 1918 (Cth) (“the Commonwealth Act”) and/or insofar as it purports to authorise an abbreviation contrary to Part XI of the Commonwealth Act — where the provisions of the State Act operate in respect of State elections and the provisions of the Commonwealth Act operate in respect of federal elections — where there is no “direct inconsistency” between the two laws — where the Commonwealth Act does not confer a power with respect to the same subject matter as the State Act, such that a conflict was created when the AEC exercised its powers with respect to the registration of a political party that wished to use the abbreviation “The Australian Party” as an abbreviation of its name for the purposes of the Commonwealth Act — whether there is an inconsistency between the Commonwealth and State electoral laws — where the applicants submit that the law, or at least “the purported abbreviation”, stifles, obscures and impedes the elector identifying on the ballot paper the entity by whom the candidate is endorsed — where registered abbreviations may be altered or abandoned, provided that this is attended to in a timely way and not during an “election period” — whether the provisions are reasonably appropriate and adapted to serve fair and informed democratic choice at an orderly conducted election. Application for declarations refused with costs.

Bradshaw & Anor v Secure Funding Pty Ltd [2012] QCA 052 Margaret McMurdo P, Chesterman JA and Margaret Wilson AJA 16/03/2012

General Civil Appeal — where the appellant appealed an order granting summary judgment — where the appellant claimed damages for malicious prosecution, trespass, unconscionable conduct and breach of contract — where the appellant claimed punitive damages for maliciously instituting civil process — where the appellant’s payments were incorrectly recorded and the respondent attempted to enforce the loan and the security — where the appellant successfully defended two Supreme Court proceedings brought by the respondent to recover possession of the appellants’ home and the loan — where the respondent rectified errors in the loan account — where the appellant failed to demonstrate any relevant error in the primary judge’s analysis — whether the appellants have any real prospect of success — whether a trial of the appellants’ claims is necessary. Appeal dismissed with costs.

Coronis v Jilt Pty Ltd & Anor [2012] QCA 066 Margaret McMurdo P and Chesterman JA and Margaret Wilson AJA 23/03/2012

General Civil Appeal — where appellant elected trial by jury but did not pay prescribed fees — where respondents sought order pursuant Uniform Civil Procedure Rules 1999 (Qld) r 474 that trial proceed without jury — whether primary judge erred in ordering trial proceed without jury — where the appellant was an unrepresented litigant — where she had difficulties pleading her claims — where pleadings were amended seven times — whether judge was obliged to invite or direct the appellant to further amend the pleadings to properly identify claims. Appeal dismissed with costs.

Legal Services Commissioner v CBD [2012] QCA 069 Muir JA and Margaret Wilson AJA and Applegarth J 27/03/2012

General Civil Appeal — where the respondent pleaded guilty to possession of child exploitation material — where the respondent was sentenced to 12 months imprisonment wholly suspended with an operational period of two years — where the respondent was a solicitor with no previous criminal history — where the respondent had been deprived of his practising certificate as a result of the offence — where the appellant made application to QCAT seeking disciplinary orders against the respondent — where the Tribunal declined to impose further sanctions — whether the respondents conduct constituted unsatisfactory professional conduct and/or professional misconduct — whether the respondent was a fit and proper person to practice law — whether the Tribunal should have imposed further sanction on the respondent. Appeal dismissed with costs.

CRIMINAL APPEALS

R v DAZ [2012] QCA 031 Margaret McMurdo P and White JA and Atkinson J 2/03/2012

Sentence Application — where applicant pleaded guilty to entering premises and stealing; entering premises and attempted stealing; burglary, while armed, by breaking, in the night, with violence, in company, with property damage; attempted robbery, while armed, in company; robbery, in company, with personal violence; and fraud — where applicant was sentenced to 18 months detention for each of the burglary, the attempted armed robbery, and the robbery with personal violence; and three months detention for each of the entering premises and stealing, entering premises and attempted stealing, and fraud — where the applicant was therefore required to serve 50 per cent of an 18 month sentence under the Youth Justice Act 1992 (Qld), s 227(2) — where no conviction was recorded — where the applicant contended that the learned sentencing judge erred in failing to make a conditional release order pursuant to the Youth Justice Act 1992 (Qld), s 220 — where the applicant contended that the learned sentencing judge had given insufficient consideration to other factors including the applicant’s co-operation — where the applicant had refrained from the commission of further serious offences for 11 months — where the applicant came from “an horrific background” — whether the sentence was manifestly excessive in the circumstances. Application granted, appeal allowed, set aside the orders imposed below, sentence of 12 months detention to be suspended immediately subject to a conditional release order, convictions not recorded (brief).

R v Stoian [2012] QCA 041 Margaret McMurdo P and White JA and Douglas J 9/03/2012

Appeal against Conviction & Sentence — where appellant contends that Markuleski and Robinson directions ought to have been given by the trial judge — where evidence of the appellant’s flight should have been excluded or was too equivocal to form a foundation for a consciousness of guilt direction — where counsel at trial failed to seek the exclusion of evidence — where appellant contends that the guilty verdict was unreasonable, could not be supported having regard to the evidence, or was unsafe or unsatisfactory — whether these circumstances amounted to a miscarriage of justice — whether the conviction was therefore unsafe and unsatisfactory and not according to law, and should therefore be overturned — where appellant was sentenced to 12 years imprisonment for rape — where appellant contended that the judge gave insufficient weight to the brevity of the offence; that the complainant was not physically harmed nor did she have physical pain inflicted upon her; and that the appellant was not in a position of trust — where the appellant further contended that insufficient weight was given to the appellant’s mental condition and that imprisonment was more of a burden for him than those without his illness — where the comparable cases referred to by the appellant involved guilty pleas by the offenders — where the appellant had not pleaded guilty — whether the sentence was manifestly excessive given all the circumstances. Conviction dismissed, sentence refused.

R v Lovell [2012] QCA 043 Margaret McMurdo P, Chesterman JA and Atkinson J 9/03/2012

Sentence Application — where applicant pleaded guilty to three charges of fraud, two charges of forgery and two of uttering — where the applicant was sentenced to 10 years’ imprisonment on count one, 12 years’ imprisonment on count two, three years’ imprisonment on each of counts three, four, six and seven and 12 months’ imprisonment on count five — where the terms of imprisonment imposed with respect to counts one, two, three, four, six and seven were to be served concurrently — where 12 months’ imprisonment imposed on count five was to be served cumulatively on the others — where a parole eligibility date was fixed at 30 November 2015 which required the applicant to spend four and a half years in prison before becoming eligible for parole — whether the sentence imposed was manifestly excessive. Sentence application granted, allowed, set aside 12 years imprisonment on count 2 and substitute a sentence of 10 years with parole eligibility date of 30 May 2015.

R v Karabi [2012] QCA 047 Muir, Fraser and Chesterman JJA 14/03/2012

Sentence Application — where the applicant pleaded guilty to the offence of facilitating the bringing to Australia a group of five or more people who were non-citizens and did not have visas in effect — where the applicant was sentenced to six and a half years imprisonment with a non-parole period of four years — whether the sentencing judge placed too much weight on the commercial aspects of the applicant’s conduct, the applicant’s involvement of his son, the applicant’s pre-departure actions, and deterrence — whether the sentence imposed was manifestly excessive. Leave refused.

R v Ball [2012] QCA 051 Muir and Chesterman JJA and Daubney J 16/03/2012

Sentence Application — where applicant convicted on own plea of guilty of assault occasioning bodily harm under s 339 of the Criminal Code 1899 (Qld) — where applicant sentenced to 18 months imprisonment with parole release date after serving 3 months — where assault occurred in public place in early hours of morning — where complainant was assaulted while being escorted from establishment — where learned sentencing judge described case as one of ‘gratuitous violence’ — whether the sentence imposed was manifestly excessive in all of the circumstances — whether sentencing judge erred in finding case of ‘gratuitous violence’ — whether applicant denied procedural fairness by learned sentencing judge finding case of ‘gratuitous violence’ being occasioned to the complainant but not giving applicant opportunity to provide evidence or submissions to contrary. Application refused, warrant to lie in the registry.

R v GAO [2012] QCA 054 Fraser and White JJA, and Daubney J 20/03/2012

Appeal against Conviction — where appellant convicted on two counts of indecent treatment of a child under 16 years — where child under 12 years — where appellant sentenced on one count to nine months imprisonment suspended after four months and operational for 12 months, and sentenced to three months on the other count — where primary judge included s 93A interviews in exhibits with jury during deliberations, under s 99 discretion — where primary judge did not discuss this with counsel, and counsel did not object — where primary judge did not specifically remind the jurors of what emerged in the relevant cross-examinations to the s 93A interviews — where the primary judge did not warn the jury against the risk of giving the s 93A evidence disproportionate weight — whether the jury might therefore have given that evidence disproportionate weight — whether a miscarriage of justice had occurred. Verdicts of guilty set aside, retrial ordered.

R v Wheatley [2012] QCA 055 Muir JA and Margaret Wilson AJA and Applegarth J 20/03/2012

Appeal against Conviction — where the appellant was convicted after a trial of 10 counts of supplying a dangerous drug with a circumstance of aggravation, seven counts of indecent treatment of a child under 16 and four counts of rape — where the complainant was a 15 year old child entrusted to the care of the appellant — where the complainant alleged that the appellant would commit sexual acts against her whilst she was greatly under the influence of cannabis — where the prosecution abandoned cognitive capacity as a ground for lack of consent — where the trial judge did not direct the jury with respect to that abandonment — where the prosecutor personally attacked defence counsel in his closing address and drew the jury’s attention to protecting the weak and vulnerable of society — where the trial judge did not specifically direct the jury with respect to these aspects of the prosecutor’s address — whether the trial judge’s directions with respect to the meaning of consent were inadequate — whether the prosecutor’s closing address exceeded the bounds of proper comment and submission — whether the verdicts are unreasonable and unsupported by the evidence. Convictions set aside, retrial ordered.

R v Murray [2012] QCA 068 Fraser JA, Margaret Wilson AJA and Applegarth J 27/03/2012

Sentence Application — where the applicant pleaded not guilty to one charge of murder — where the applicant was found guilty of manslaughter — where, although the applicant intended to kill the deceased, he was only criminally responsible for manslaughter because of provocation — where the applicant was sentenced to nine years imprisonment — where there was a declaration that the applicant had been convicted of a serious violent offence — where the applicant did not challenge the imposition of a term of nine years — whether the serious violent offence declaration made the sentence manifestly excessive — whether the sentence was manifestly excessive in all the circumstances — where the applicant did not challenge the imposition of a term of nine years imprisonment, but contended that the serious violent offence declaration made the sentence manifestly excessive — where the applicant contended that the sentencing judge placed too little weight on mitigating factors — whether the serious violent offence declaration was an improper exercise of the sentencing judge’s discretion — whether the sentencing judge gave proper consideration to mitigating factors. Leave refused.

R v Bull [2012] QCA 074 Chesterman and White JJA and Daubney J 30/03/2012

Appeal against Conviction & Sentence — where the appellant was convicted following a trial of one count of rape but was acquitted of two counts of rape — where prosecutor misstated evidence and error not corrected by defence counsel or the trial judge — where trial judge did not direct the jury in accordance with R v Markuleski — whether verdict unreasonable because of inconsistency with the acquittals — where the appellant was convicted following a trial of one count of rape but was acquitted of two counts of rape — where the appellant sentenced to five years’ imprisonment — where no parole eligibility date was set — whether the sentence imposed was manifestly excessive. Appeal dismissed, application granted and allowed, sentence set aside, sentence imposed of three years six months imprisonment, parole eligibility fixed at 14 April 2013.