Court of Appeal Judgment Summary Notes

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CIVIL APPEALS

Robson & Anor v Robson [2012] QCA 119 Muir, Fraser and White JJA 4/05/2012

General Civil Appeal — where the appellants and respondent had entered into trust declaration requiring appellants to hold 50 per cent of shares in company on account of respondent — where appellants were the directors of the company — where first appellant and respondent are brothers — where brothers had falling out — where appellants argued that a separation agreement existed — where appellants argued that trust declaration was superseded by separation agreement — where appellants argued that trust declarations were shams — where appellants argued that the trust declarations were revoked — whether the trust declarations were shams — whether the trust declarations were revoked — whether the trust declarations were superseded by a separation agreement — where the respondent had previously denied in other proceedings that he held an interest in the shares of the company — where the respondent is alleged to have done so to put the shares beyond the reach of his former spouse upon the termination of their marriage — where the subject matter of the trust was not the result of, or augmented by, the alleged misconduct — where the appellants argued that the alleged misconduct disentitled the respondent to equitable relief — whether the alleged misconduct disentitled the respondent to equitable relief. Appeal dismissed with costs.

Putland v Nowak [2012] QCA 121 Holmes and Muir JJA and Mullins J 11/05/2012

General Civil Appeal — where the respondent claimed damages against the appellant — where the respondent alleged the appellant defamed him at a Surf Club by calling him a paedophile, inter alia, in the presence of other patrons — where the respondent claimed that there were subsequent instances of conflict in which the appellant and others called him a paedophile and other derogatory terms — where the respondent alleged these instances amounted to a “hate campaign” — where the primary judge accepted the evidence of the respondent with respect to the Surf Club and other incidents — where the primary judge concluded the evidence of the respondent was corroborated by other witnesses — where the primary judge doubted the credibility of the appellant and his witness — where the respondent was successful in his claim — where the primary judge ordered that the appellant pay the respondent $150,000 plus costs — whether the primary judge’s reasons for judgment were deficient — whether the primary judge misapplied the rules in Jones v Dunkel with respect to the failure to call witnesses — whether the primary judge took an unbalanced approach — whether the primary judge failed to use, or misused, the advantage of a trial judge — whether the primary judge failed to properly regard the evidence of witnesses. Appeal allowed with costs, Matter remitted for retrial before another judge.

Commonwealth Director of Public Prosecutions v Groves [2012] QCA 122 Holmes JA 11/05/2012 (delivered ex tempore)

Application for Stay of Execution — where the applicant applied for a stay of an order made by the primary judge — where the order varied the conditions of the respondent’s bail on one count of aiding another in the commission of an offence under s 184(2)(b) Corporations Act 2001 — where the effect of the variation deleted conditions requiring the holding of the respondent’s Canadian passport by the Australian Securities and Investments Commission — where the conditions were altered by insertion of a requirement for the respondent to provide an undertaking not to depart Australia without providing the applicant with seven days notice, along with other conditions — whether the primary judge erred in granting the order varying the conditions of bail of the respondent. Application refused.

Citypoint (Hotels) Pty Ltd v AIB Pty Limited [2012] QCA 126 Holmes and Fraser JJA and Martin J 15/05/2012

General Civil Appeal — where appellant filed claim against respondent and served it one day short of one year time limitation, unless renewed — where respondent requested, and was granted, extension of 30 days to file defence — where respondent’s director died prior to claim being filed by appellant — where primary judge accepted that respondent had strong argument that most of claim was statute barred —where primary judge found appellant responsible for excessive and undue delay — where appellant argued that primary judge erred in not accepting explanation for delay — where appellant argued primary judge attributed insufficient weight to respondent’s delay and failure to file defence — where appellant argued primary judge attributed insufficient weight to prejudice suffered by appellant by striking-out claim — where appellant argued primary judge attributed too much weight to death of respondent’s director — whether primary judge erred in striking-out appellant’s claim. Appeal dismissed with costs.

Queensland Timber Wholesalers (Production) Pty Ltd v Hatton & Anor [2012] QCA 128 Margaret McMurdo P and Fraser JA and Mullins J 18/05/2012

Application for Leave s 118 DCA (Civil) — where the self-represented respondents appeared by telephone to receive judgment — where primary judge gave judgment for the applicant and then invited submissions on costs — where the applicant’s counsel submitted that as an offer to settle had previously been made it was entitled to costs on an indemnity basis pursuant to UCPR, r 360 — where costs were awarded on the standard basis — whether the offer to settle complied with the UCPR — whether leave should be granted — where both parties sought to adduce affidavit evidence regarding whether the offer to settle was sent and received — whether leave should be granted to adduce further evidence on appeal. Applications to adduce further evidence granted, Application for leave to appeal refused.

McCracken v Phoenix Constructions (Qld) Pty Ltd [2012] QCA 129 Fraser and White JJA and Applegarth J 18/05/2012

General Civil Appeal — where respondent is creditor of corporation of which appellant is director — where trial judge found appellant in contravention of s 182(1) Corporations Act 2001 (Cth) and awarded damages to respondent pursuant to s 1324(10) — where appellant argued s 1324(10) does not confer right of damages upon creditor for contravention of s 182 — where appellant argued award of damages under s 1324(10) would amount to preference over other unsecured creditors — where respondent argued damages available under s 1324(10) — where respondent argued jurisdiction for granting injunction sufficient to enliven award of damages under s 1324(10) — whether trial judge erred in awarding damages under s 1324(10) — where the appellant sought to rely on affidavit at trial as evidence of understanding or agreement between appellant and his wife in relation to proper construction of joint venture agreement — where trial judge concluded that the affidavit evidence was not admissible — where appellant argued evidence admissible on different ground that it showed appellant’s purpose of entering into deed of amendment — where respondent argued that affidavit not tendered as evidence of appellant’s purpose, but evidence of conduct — whether the trial judge erred in not admitting the affidavit evidence — where trial judge awarded damages equal to respondent’s contractual claim against appellant for contravention of s 182(1) Corporations Act 2001 (Cth) — where appellant argued respondent failed to prove alleged loss due to existence of unsecured creditors and no evidence of financial position — where respondent argued contention should not be considered because not pleaded, not subject of any disclosure, not subject of evidence, and because appellant was only person capable of doing so — whether appellant not giving evidence could justify drawing adverse inference — whether respondent failed to prove claimed loss. Appeal allowed, Orders set aside, Claim against McCracken dismissed. (Brief)

Chapman v State of Queensland [2012] QCA 134 Muir and Fraser JJA and Martin J 22/05/2012

Application for Leave Queensland Civil and Administrative Tribunal Act — where applicant and her daughter resided in an apartment building — where respondent applied for an order to terminate the applicant’s tenancy — where such order was made — where various residents gave evidence that the applicant and her daughter were continually disruptive and abusive — where residents feared for their safety — where respondent sought an urgent determination of the matter —where applicant was self-represented — where applicant was given a short adjournment to seek legal representation — where representation was not obtained — where applicant then applied for a further adjournment — where further adjournment not granted — where applicant was illiterate — where the applicant applied for leave to appeal to QCAT — where leave was refused — where applicant seeks leave to appeal to the Court of Appeal — where applicant submitted an appeal would have utility because it would allow the Court of Appeal to review the circumstances in which a disadvantaged litigant should be granted leave to be legally represented in QCAT and provide guidance as to how leave is to be practically implemented so as to afford procedural fairness to disadvantaged litigants — where applicant sought to rely on further evidence in the form of two affidavits — where respondent sought leave to read an affidavit in response — whether further affidavit evidence should be allowed — whether the applicant was denied procedural fairness — whether appeal has utility — whether applicant’s submissions with respect to utility amounted to hypothetical questions that were inconsistent with the role of a court. Application refused (brief).

Buchan v Nominal Defendant [2012] QCA 136 Holmes and Fraser JJA and Fryberg J 25/05/2012

General Civil Appeal — where s 60 of the Motor Accident Insurance Act 1994 (Qld) entitles the respondent to recover from the owner or driver of an uninsured vehicle any costs it reasonably incurs on a personal injury claim arising out of a motor vehicle accident involving the uninsured vehicle — where the respondent made a claim against the appellant in respect of its costs of settling a dependency action — where the deceased in question had been thrown from a bridge as a result of a motor cycle accident and his body not recovered — where the appellant was the owner of the motor cycle involved in the motor vehicle accident that resulted in the death of the deceased — where there was a question as to whether the appellant or the deceased was the driver of the motor cycle at the time of the accident — where the appellant was also injured in the accident and had no recollection of the accident and associated circumstances — where the trial judge determined that it was reasonable for the appellant to compromise the dependency claim on the basis of a likely finding, were the matter to go to trial, that the appellant was the driver of the motor cycle — whether the trial judge erred in making that finding. Appeal dismissed with costs.

CRIMINAL APPEALS

R v Naylor; ex parte A-G (Qld) [2012] QCA 116 Margaret McMurdo P and Holmes JA and Mullins J 4/05/2012

Reference under s 668A Criminal Code — where the Attorney-General has referred points arising out of a ruling on an application to exclude certain evidence — where the respondent was charged on indictment with the offence of murder — where the respondent made a confession in a police interview — where evidence of the confession was excluded on an application on the ground that it was not given voluntarily — where a threat or a promise was found to have been communicated to the respondent by a person in authority through the medium of the respondent’s lawyer — whether conduct constituting a threat or promise conveyed by the respondent’s lawyer acting in the ordinary course of his engagement engages the provisions of s 10 of the Criminal Law Amendment Act 1894 in relation to a threat or promise being communicated by a person in authority — whether reference involved points of law within the meaning of s 668A of the Criminal Code 1899 — where the reference identified three questions as the relevant points of law: “a) In circumstances where the only conduct said to amount to a threat or promise is conveyed to a suspect by the suspect’s lawyer acting in the ordinary course of their engagement, are the provisions of s 10 of the Criminal Law Amendment Act 1894 with respect to a threat or promise “by a person in authority” engaged?; b) Does the fact that the suspect has been provided with advice given by a lawyer in the ordinary course of their engagement serve, for the purposes of s 10 of the Criminal Law Amendment Act 1894, to displace the connection between something said earlier to the lawyer by a person in authority?; c) Having regard to the learned judge’s findings of fact at [43], [44], [55], [61] and [64] did the judge err in not finding that the confessional statements were not induced by a threat or promise by some person in authority?” Answers: a) Yes, if the threat or promise was made by a person in authority; (b) Unnecessary to answer; (c) Unnecessary to answer.

R v Nijamuddin [2012] QCA 124 Margaret McMurdo P and Fraser JA and Margaret Wilson AJA 15/05/2012

Appeal against Conviction — where appellant pleaded not guilty to two counts of indecent treatment of a 14 year old girl — where he was convicted of grabbing complainant’s right breast (count 1) but not touching her genital area (count 2) — whether the jury verdict was unreasonable or not supported by the evidence — whether the guilty verdict on count 1 was inconsistent with the not guilty verdict on count 2 — where a video recording of the complainant’s pre-trial evidence was marked as an exhibit — where the exhibit was allowed into the jury room during their deliberations — whether the provision of the exhibit to the jury was an irregularity and an error —where the prosecution alleged that the appellant had lied during a police interview out of a consciousness of guilt — where the trial judge directed the jury as to the lies — whether the direction constituted an error of law. Appeal against conviction allowed, Verdict of guilty on count 1 set aside, Retrial ordered.

R v Singh [2012] QCA 130 Margaret McMurdo P, Muir JA and Ann Lyons J 22/05/2012

Appeal against Conviction — where appellant was found guilty after trial of a charge of sexual assault and a charge of rape — whether the appellant was denied a fair trial because the trial judge did not direct the jury regarding the excuse of mistake of fact in s 24 of the Criminal Code 1899 (Qld) — where at the trial defence counsel agreed there was no evidence to leave s 24 open to the jury — where the appellant argues that he mistakenly but honestly and reasonably believed actual consent was given with cognition and that evidence supporting the fact was adduced at trial — whether there was any evidence before the Trial Court from which it could be ‘reasonably inferred’ that the issue of mistake of fact arose. Appeal dismissed.

R v Omid [2012] QCA 131 Margaret McMurdo P, Fraser JA and Margaret Wilson AJA 22/05/2012

Miscellaneous Application — Criminal — where applicant succeeded in appeal against his convictions and new trial was ordered — where applicant sought indemnity certificate pursuant to s 15 Appeal Costs Fund Act 1973 — where the words of s 15 unambiguously reveal, it empowers the Court to grant an indemnity certificate in respect of an appeal only to a respondent to the appeal — whether an indemnity certificate should be granted. Application refused.

R v Williamson [2012] QCA 139 Fraser and White JJA and Daubney J 29/05/2012

Appeal against Conviction & Sentence — where appellant convicted on own plea of one count of torture and sentenced to four and a half years imprisonment with parole fixed — where appellant argued plea of guilty and conviction should be set aside because plea of guilty not attributable to genuine consciousness of guilt, or that it was not informed and voluntarily made on the basis of competent legal advice — where appellant argued she did not understand nature of charge — where the evidence was compelling that neither Mr Bartels nor Mr Williamson explained to the appellant that, if she pleaded guilty to the offence of torture, she would admit that she inflicted severe psychological and emotional pain upon the complainant — whether there was a miscarriage of justice. Application for leave to appeal against sentence refused, Appeal allowed, Retrial ordered, Direct that a copy of these reasons be provided to the Legal Services Commissioner.