Borhani v Legal Practitioners Admissions Board [2013] QCA 014 Chief Justice and Fraser JA and Dalton J 12/02/2013
Application for Admission — where the applicant began his legal studies at the James Cook University in 1999 — where between 2001 and 2004 Mr Borhani was enrolled as a student of QUT studying towards the dual degrees of Bachelor of Business and Bachelor of Laws — where Mr Borhani enrolled in 34 subjects of which he failed nine with a grade point average of 3.563 — where between 2004 and 2009 Mr Borhani undertook no legal studies — where QUT introduced a new Bachelor of Laws in 2009 — where Mr Borhani resumed his studies in 2009 and was granted advanced standing for previous legal studies by the Queensland University of Technology — where the applicant completed four subjects for which he was awarded grades of 5, 7, 6 and 6 — where QUT accorded him with a grade point average of 6 — where Mr Borhani’s enrolment was cancelled due to him not having paid a required fee — where upon paying fee and re-enrolling, Mr Borhani found that his GPA was listed as 4.73 — where in the middle of March 2010 Mr Borhani complained to the ombudsman at QUT as part of a formal student grievance procedure to achieve his aim of reinstating his academic record as it appeared prior to January 2010 — where pursuit of this grievance procedure was, surprisingly and disconcertingly given the true facts of the matter, successful, and his academic record was returned to its pre-January 2010 state so that it showed “Course GPA: 6.000” — where it is undoubtedly the case that QUT did issue a degree with First Class Honours to Mr Borhani — where the evidence was that with a grade point average of 4.73 Mr Borhani was not entitled to a degree with honours of any kind from the QUT, much less a degree with First Class Honours — where it was remarkable that QUT was prepared to issue the academic transcript in the form which was exhibited to Mr Borhani’s affidavit of 2 December 2011, and to award Mr Borhani a law degree with First Class Honours — where it cannot be imagined that a student in Mr Borhani’s position could reasonably have understood that he or she was entitled to a degree with First Class Honours, or had a grade point average of 6 over the entirety of their law degree — where Mr Borhani correctly recognises in his affidavit that his reliance upon the degree showing an award of First Class Honours, and a transcript showing a course GPA of 6, without explanation, was misleading — where it is apparent from the correspondence that Mr Borhani was aware of the significance of his grade point average to his employment prospects, and aware that untruthfulness in relation to his academic results would be regarded in the legal profession as a very serious matter — where it is relevant in assessing whether Mr Borhani is a fit or proper person for admission that he was nearly 30 when he made his application for admission and was therefore some years older than the average applicant — where it is also relevant that between 2004 and 2010 he worked as a land developer and as a consultant to land developers so that he had more commercial and business experience in the real world than the average university graduate at the time of the events in question. Application refused.
Attorney-General for the State of Queensland v Fardon [2013] QCA 016 Muir JA 14/02/2013 (delivered ex tempore)
Application for Stay of Execution — where the respondent had a history of sexual offending — where the respondent was detained in custody for an indefinite term for care, control or treatment — where the respondent sought a periodic review of the continuing detention order — where the primary judge ordered that the continuing detention order be rescinded and that the respondent be released from prison by 4.00 pm on 14 February 2013 — where the applicant seeks a stay pending appeal of the orders of the primary judge — where the respondent placed reliance on a number of press reports, or comments, made by the Corrective Services Commissioner, and the Police and Community Safety Minister — where relevant considerations on stay applications include: the principle that judgments are not to be regarded as merely provisional; whether the applicant may suffer irretrievable harm if successful on the appeal; and whether the applicant has an arguable case — where the applicant has the onus of proof — where the ordering of the stay will deprive the respondent of the personal liberty to which the order under consideration would entitle him at 4 pm today — where a countervailing consideration is the risk to the community arising from the possibility of the respondent committing a sexual offence, if released — where having regard to the fact that this Court is able to hear the appeal on 27 February, and that the parties are able to proceed on that day, it is concluded that the balance of convenience favours the grant of a stay — where it would not be in the respondent’s best interests that he be released into the community and at the same time exposed to the risk of being returned to prison within a very short period should the appeal succeed — whether a stay should be granted. Orders of 13 February 2013 be stayed, pending determination of the appeal, respondent be detained in custody until 4 pm on 27 February 2013 pursuant to the Dangerous Prisoners (Sexual Offenders) Act 2003 (Qld).
Weis Restaurant Toowoomba v Gillogly [2013] QCA 021 Margaret McMurdo P and Fraser JA and Daubney J 15/02/2013
Application for Leave s 118 DCA (Civil) — where the respondent suffered personal injury at Weis Restaurant after his chair collapsed under him, thus leading him to fall to the floor — where limitation period for personal injuries action extended pursuant to order under s 31 Limitation of Actions Act 1974 (Qld) — where the respondent had resolved to pursue his claim against Weis Restaurant for personal injuries — where appellant contended that identity of defendant was not material fact of decisive character — where the proceeding the respondent had decided to pursue could have simply been instituted against the ‘Weis Restaurant’ business name, regardless of whether it was a registered business or unregistered business name — where importantly, for present purposes, the respondent expressly agreed in evidence that by the middle of 2009, when he first consulted with Mr Booby, his then solicitor, the respondent “had decided to pursue a claim against Weis’s Restaurant” for his injury — where a discretion to extend the limitation period for a personal injuries action when, relevantly, it appears to the Court, inter alia, “that a material fact of a decisive character relating to the right of action was not within the means of knowledge of the applicant” until the date specified in s 31(2)(a) — where the central finding below that the actual identity of the company operating the restaurant was a material fact of a decisive character because it was “critically important to know against whom an action might succeed” cannot be sustained — where on his own evidence, the respondent had, by mid-2009, resolved to pursue his claim against Weis Restaurant for the personal injuries he had suffered as a consequence of the incident on 14 January 2009 — where it is clear that the respondent not only knew of all of the facts which showed (from his perspective) that he had an action with reasonable prospects of success, he had in fact decided to pursue that action — where it was not necessary for him to know the precise legal identity of the owner of the restaurant in order to pursue the action — where on his own evidence, he knew its business name, i.e. “Weis Restaurant” — where the proceeding he had decided to pursue could have simply been instituted against that business name, regardless of whether it was a registered or unregistered business name. Application for leave granted. Appeal allowed, order below set aside, and in lieu thereof, the originating application be dismissed, costs.
MSI (Holdings) Pty Ltd v Mainstreet International Group Ltd [2013] QCA 027 White and Gotterson JJA and Applegarth J 26/02/2013
General Civil Appeal — where the appellant sought to recover as a debt an overdue loan repayment, interest thereon and costs — where the appellant commenced proceedings without leave of the Supreme Court — where a submission was made by counsel on behalf of Mainstreet that the proceeding itself was invalid because, as his Honour summarised, it was a proceeding “purporting to be brought by a receiver without authority from the Supreme Court pursuant to section 471B of the Corporations Act” — where the learned judge accepted the submission and that day made an order striking out the proceeding, with costs reserved — whether leave of the Supreme Court was required in order for the appellant to commence proceedings for the recovery of a debt — where by virtue of s 471C, the prohibition of the commencement or continuation of legal proceedings in the circumstances which it addresses, except with the leave of the Court, does not affect the right to realise or otherwise deal with a security interest of a secured creditor — where plainly the charge created by the Deed in favour of the Chargor was a security interest as defined — where at the time of commencement of the District Court proceeding, Central Coast, as Chargor under the Deed, was a secured creditor of MSI: there was a debt owed by MSI to Central Coast under the Loan Agreement which was secured by the charge — where the commencement and continuation of the District Court proceeding is apt to be characterised as a realisation of Central Coast’s security interest for the purposes of s 471C — where it was submitted that it is only when a debt is uncontested, that it is capable of being realised for the purposes of the section — where no authority was cited for the submission — where this is plainly wrong — where legal proceedings to recover a charged debt which, by the course of pleadings, require the making of a judicial determination of whether or not the debt exists are no less a process of realisation of the security interest than are legal proceedings in which the existence of the debt is not contested — where the Court’s attention was drawn to the newly enacted s 118B of the District Court of Queensland Act which, if applicable to this application, would have required that leave to appeal the costs order be obtained from a District Court judge and not from this Court under s 118(3) — where to determine how this section operates transitionally is regulated by the Civil Proceedings (Transitional) Regulation 2012, s 22 of which provides that s 118B does not apply if, immediately before commencement of it, a person having, under the pre-amended s 118, a right to appeal to this Court has started the appeal but it has not been determined — where its character as a right to appeal was not diminished by reason of its being exercisable only with the leave of this Court — where s 118(3) therefore continues to govern this application. Appeal allowed, orders below set aside, matter remitted to the District Court for further consideration and determination, costs.
CRIMINAL APPEALS
R v Jobsz [2013] QCA 005 Chief Justice, White and Gotterson JJA 5/02/2013
Sentence Application — where the the applicant pleaded guilty to five drug-related offences of varying severity — where the applicant was sentenced to four and a half years imprisonment to be suspended after 16 months with other lesser concurrent sentences — where the judge did not impose a separate sentence in respect of each offence — where the sentence imposed would be excessive for the less serious offences committed — whether the failure to impose separate sentences in respect of each offence requires that the applicant be re-sentenced — whether addiction is a mitigating circumstance for a drug offence in light of positive rehabilitation prospects — where the need for general deterrence in sentencing for this sort of crime must be given appropriate weight: this was, as said, a case of not insubstantial trafficking in two schedule 1 drugs, albeit carried on over a shortish period — where the applicant did not participate in a record of interview, and save for his pleas of guilty, did not subsequently cooperate with the authorities — where notwithstanding the seriousness of the trafficking, bearing in mind the comparatively short timeframe and the applicant’s personal circumstances, it was not a case calling for a salutorily high sentence. Application granted, appeal allowed, sentence set aside and replaced with imprisonment for four years imprisonment to be suspended after 12 months with other lesser concurrent sentences.
R v Dowel; Ex parte Attorney-General (Qld) [2013] QCA 008 Muir and Fraser JJA and Dalton J 8/02/2013
Sentence Appeal by Attorney-General (Qld) — where the respondent pleaded guilty to one count of unlawful trafficking in Schedule 1 drugs — where the respondent was 19 at the time of offending — where the respondent had no prior criminal history — where the respondent made a considered decision to sell Schedule 1 drugs for profit — where the respondent voluntarily ended his involvement with drugs — where the respondent continued in full time employment and studied for his apprenticeship throughout the 21 months he was on bail for the subject offence — where on a Crown appeal, the Court is required to have regard to the circumstances existing at the time of hearing the appeal and there is a reluctance to disturb a situation in which a respondent has availed himself or herself of a non-custodial sentence to gain, or remain in, employment and pursue a life free from crime and criminal influences — where the respondent was sentenced to four years imprisonment, wholly suspended — whether the sentence was manifestly inadequate. Appeal dismissed
Constable S J Miers v Blewett [2013] QCA 023 Holmes and Fraser JJA and Atkinson J 22/02/2013
Application for Leave s 118 DCA (Criminal) — where the respondent was convicted in the Magistrates Court of two offences under s 80(1) of the Domestic and Family Violence Protection Act 1989 (Qld) — where the respondent had previously been convicted of two offences against s 80(1) of the Domestic and Family Violence Protection Act 1989 (Qld) — where prosecution sought to tender the whole of the respondent’s criminal history — where prosecution did not seek to rely on the criminal history to 
raise the maximum sentence, but to increase the penalty that could be imposed on the respondent — where no notice was served by the prosecution under s 47(5) of the Justices Act 1886 (Qld) in relation to the prosecution’s reliance on the respondent’s previous convictions — where Magistrate rejected the tendering of the whole of the respondent’s criminal history — where on appeal in the District Court the judge upheld the Magistrate’s decision — where none of the respondent’s criminal history was taken into account in determining the sentence — whether the lack of notice under s 47(5) of the Justices Act 1886 (Qld) had the effect of preventing the court from taking the two previous convictions against s 80(1) of the Domestic and Family Violence Protection Act 1989 (Qld) into account — whether evidence of the two previous convictions for offences against s 80(1) of the Domestic and Family Violence Protection Act should be admissible — whether other prior non-domestic violence offence convictions of the respondent should have been taken into account in determining the sentence — where at the heart of the proposed appeal is a challenge to the construction of s 47(5) of the Justices Act 1886 in Washband v Queensland Police Service [2009] QDC 243 — where in some cases, taking previous offences into account in obedience to those provisions will result in a more severe penalty than would otherwise be imposed, but a previous conviction which only has that potential effect is not caught by s 47(5) of the Justices Act 1886 — where s 47(5) treats a previous conviction as an example of a circumstance which, in terms of s 47(4) “…renders the defendant liable…to a greater penalty than that to which the defendant would otherwise have been liable” — where s 47(4), and thus s 47(5), refer to a circumstance which increases what otherwise would be a defendant’s potential liability for punishment for the offence — where s 47(5) refers to a circumstance, two previous convictions for the same offence, which results in a greater maximum penalty — where accordingly s 47(5) did not require notice to be given of any of the respondent’s previous convictions for offences which were not offences against s 80(1) of the Domestic and Family Violence Protection Act 1989 — where those previous convictions should have been taken into account by the Magistrate if and to the extent that they were material to the sentences to be imposed for the current offences — where the decision to the contrary in Washband should be overruled — where on the authority of The Queen v De Simoni (1981) 147 CLR 383, the inadmissibility of the two previous convictions could not be avoided merely by the prosecutor disclaiming reliance at the sentence hearing upon them as a circumstance rendering the respondent liable to the increased penalty of two years imprisonment — where the prosecutor asked the Magistrate to rely upon both convictions — where that was not open to the Magistrate — where the Magistrate was correct in holding that the evidence of the two previous convictions for offences against s 80(1) of the Domestic and Family Violence Protection Act 1989 should not be received but was in error in not taking into account the respondent’s other previous convictions — where the omission to take them into account may have had an effect upon the sentence, however it is not appropriate to reconsider the sentence or to grant leave for that purpose — where the respondent’s sentence was completed years before the application for leave to appeal was heard by this Court — whether the sentence was manifestly inadequate. Leave to appeal granted, appeal dismissed, applicant to pay the respondent’s costs.
CIVIL APPEALS