CIVIL APPEALS
Hill-Mac Pty Ltd v Chief Executive, Office of Liquor and Gaming Regulation [2014] QCA 019 Fraser and Morrison JJA and Philip McMurdo J 18/02/2014
General Civil Appeal — QCAT — where the appellant is the owner and licensee of a hotel — where the respondent took disciplinary action against the appellant under the Liquor Act 1992 in the form of fines and the addition to the appellant’s liquor licence of various conditions — where the appellant applied in the Queensland Civil and Administrative Tribunal for review of the respondent’s decision — where the Tribunal set down five preliminary questions of law arising in the application for review — where the appellant filed a notice of appeal in the Court of Appeal against the Tribunal Member’s answers to the preliminary questions — where s 35 of the Liquor Act 1992 appears to grant a right of appeal to the Court of Appeal on a question of law against a decision of the Tribunal — whether s 35 of the Liquor Act 1992 contemplated an interlocutory decision or a final decision — where those provisions use the word “decision” in a way which comprehends both a final decision and a decision that is not a final decision — whether the Tribunal Member’s determination of preliminary questions of law constituted a “decision” affording the appellant a right to appeal — where it should be accepted that s 35 conferred upon the appellant the right to appeal on questions of law from the Tribunal Member’s determinations of the preliminary questions — where the respondent relied on the grounds for disciplinary action in s 136(1)(a)(i) and s 136(1)(h)(ii) of the Liquor Act 1992 insofar as it invokes non compliance with s 148A(4) of the Liquor Act 1992 — where the notice described numerous incidents alleged to have occurred at the licensed premises as the basis for the respondent having taken action — where the appellant sought review of the decision pursuant to s 21 of the Liquor Act 1992 in the Queensland Civil and Administrative Tribunal — where the appellant argued that it had taken all reasonable steps to comply with the Liquor Act 1992 and that it was insufficient for the respondent to rely on a series of alleged incidents without identifying an act or omission made by the appellant — whether the identification of an act or omission of the licensee is a requirement for taking disciplinary action upon the ground in s 136(1)(h)(ii) of the Liquor Act 1992 — whether it is necessary to identify an act or omission of the licensee in order to establish a contravention of s 148A(4) of the Liquor Act 1992 — where the respondent here was obliged by s 137 to give the licensee a written notice which stated, amongst other things, “the grounds for the proposed action [and] an outline of the facts and circumstances forming the basis for the grounds” — where the respondent’s notice did no more than identify the particular obligation, being that under s 148A(4), and provide particulars of the various incidents — where the notice did not identify any act of the licensee or any measure which should have been taken by it — where s 148A(4) is contravened only where a licensee does or omits to do an act (or acts) in the conduct of business on the licensed premises which results in a safe environment in or around the premises … not being provided or maintained for patrons and staff (and, arguably, also for all other persons, having regard to the purpose stated in s 148A(1)(b)) — where the stated purposes of the Liquor Act 1992 to regulate the liquor industry and the sale and supply of liquor are achieved by imposing obligations and restrictions on the licensee conducting the business at licensed premises — where it must follow that the behaviour referred to in s 136(1)(h) is causally related to the business of sale and supply of liquor under the relevant licence and thus potentially amenable to control by some action of the licensee. Appeal allowed. Set aside the Tribunal’s answers to preliminary questions 1 — 4. Matter remitted to the Tribunal to proceed according to law.
Gillion Pty Ltd v Scenic Rim Regional Council & Ors [2014] QCA 021 Margaret McMurdo P and Fraser and Morrison JJA 21/02/2014
Application for Leave Sustainable Planning Act — where the applicant applied to the first respondent Council for a development permit for a material change of use of land for the purpose of Commercial Groundwater Extraction — where the proposed use of land conflicted with the local government Planning Scheme — where Council’s refusal to approve the application was upheld by the Planning and Environment Court — whether the primary judge erred in law in holding that a stated precinct intent applied across the Shire instead of merely to the relevant zone — whether that error diminished the importance of a deficiency in the planning scheme — whether that error influenced the primary judge’s decision that the proposed development’s conflict with the planning scheme was significant — where the primary judge’s reasons for rejecting the applicant’s argument that the conflict was merely “mechanical or technical” make it plain that his Honour appreciated that the relevant Planning Scheme provisions related to the Tamborine Mountain Zone rather than any other Zone within the Shire — where in the context of the primary judge’s repeated references to the Village Residential Precinct being in the Tamborine Mountain Zone and the focus upon that Zone in the essential passages in the primary judge’s reasons, it is difficult to attribute any particular significance to the primary judge’s reference to “Shire” rather than “Zone” in paragraph 171 of his Honour’s reasons — where it is apparent that the primary judge’s analysis of the deficiency in the statement of precinct intent set out in OO46 did not contribute to any error in the primary judge’s conclusion that the exclusion of Commercial Groundwater Extraction from the consistent table of uses in the Tamborine Mountain Zone was significant because it was the result of a deliberate policy decision — where that conclusion was available upon the face of the Planning Scheme and the applicant’s own planner (Lyons) agreed in cross-examination that the specification of consistent development in the relevant Zone could be regarded as deliberate rather than a “mechanical expression” — where the finding was therefore open on the evidence and unaffected by the error of law for which the applicant contended. Application refused with costs.
AAI Limited & Anor v Miles [2014] QCA 022 Fraser JA and Gotterson JJA and Boddice J 21/02/2014
General Civil Appeal — Torts — where the respondent was struck by a motor vehicle in the carpark of a tavern after he had been drinking alcohol at the tavern — whether the respondent’s intoxication contributed to the injury suffered by him — whether by standing near the motor vehicle the respondent failed to take precautions against the risk of being struck by the motor vehicle when it moved from a stationary position — where it is significant to note the appellants do not challenge the trial judge’s findings of a breach of duty on the part of the second appellant — where the findings of the trial judge as to the position of the respondent prior to the motor vehicle moving forward were critical to any finding of contributory negligence — where a review of the evidence given at trial supports the trial judge’s findings on these crucial issues — where the trial judge’s reasons reveal a careful consideration of the evidence of each of the witnesses who were able to give a version as to the circumstances leading up to the incident, and of the incident itself. Appeal dismissed with costs.
State of Queensland v Kelly [2014] QCA 027 Fraser JA and Philippides and Henry JJ 25/02/2014
General Civil Appeal — Torts — Negligence — Contributory Negligence — where the respondent suffered injuries when he ran down a sand dune and fell into Lake Wabby on Fraser Island — where the respondent was shown an orientation video about Fraser Island by his tour company — where serious injuries had occurred at the lake in the past — where the respondent passed two signs warning of dangers associated with the lake and sand dunes — where the trial judge found the appellant negligent — where the appellant argued the risk of injury was an “obvious risk” within the meaning of s 13 of the Civil Liability Act 2003 (Qld) — whether the risk of serious injury which materialised was an “obvious risk” — whether and in what way the warning signs should be considered in determining whether the risk was an obvious risk — where the question relating to the signs is not whether they warned of the relevant risk in a way which fulfilled any duty of care owed by the appellant to the respondent — where the question is whether, taking into account the effect of the signs in the context of other relevant circumstances, the risk which materialised was an “obvious risk” within the meaning of s 13 of the Act — where the significant question then is whether, in all of the circumstances, the signs effectively communicated the risk which materialised so as to make that risk obvious to a reasonable person in the respondent’s position — where the signs conveyed that serious injury or death might result from “running and diving” rather than from “running or diving” — where to put that another way, in all of the circumstances the signs did not effectively communicate that running down the dune into the lake involved the risk of serious injury which materialised — where the message in the signs that running into the lake would likely cause serious injury or death because the lake was often shallower than it looked was likely to be lost in the mind of a reasonable person by the discovery that the depth of the lake was in truth readily ascertainable — where there was no apparent danger in running and jumping into the water in the way in which the respondent had done on about 10 occasions without incident — where this might have been reinforced in the mind of a reasonable person by the circumstance that the video shown to the respondent included warnings about other dangers and activities on the Island but did not include any warning about running down the sand dunes into Lake Wabby — where it is also necessary to take into account the evidence that the magnitude of the risk involved in the respondent’s activity was unusually high — where the signs did not clearly communicate that the risk was so high — where the cumulative effect of the circumstances militate against a conclusion that this risk was so clear that it would have been “obvious” to a reasonable person in the respondent’s position: the message in the pictograms that the real danger was diving into water of uncertain depth; the fact that the explanation for the risk that the lake was often shallower than it looked was falsified by the ease of ascertaining the true depth of the water; the presence of numerous persons repeatedly running down the sand dune into the lake in apparent safety; the respondent’s own experience in running into the lake without mishap on nine or ten occasions; the absence of any warning of that activity in the video which warned of different dangers on the Island; and the unusually high degree of the risk of very serious injury involved in running down the sand dunes into the lake — where these circumstances justified the trial judge in finding that the risk of serious injury which was inherent in the respondent’s activity was not an “obvious risk” within the meaning of s 13 of the Civil Liability Act 2003 — where the trial judge accepted that the respondent could be criticised for his “failure to study the signs closely”, that it “was incumbent on him to read the signs”, and that the signs alerted him to a danger and expressly warned against running down dunes — where the finding of contributory negligence is not in conflict with the finding that the risk which materialised was not an “obvious risk” within the meaning of s 13. Appeal dismissed with costs.
Cerutti & Anor v Crestside Pty Ltd & Anor [2014] QCA 033 Margaret McMurdo P and Gotterson JA and Applegarth J 28/02/2014
Application for Leave s 118 DCA (Civil) — Defamation — General Damages — Assessment — where Mr Turnour wrote a letter on behalf of one of his companies, Crestside Pty Ltd, headed “Customer Complaint. Persistent Double Invoicing” — where the defendants published serious defamatory imputations about an accountant and his firm to three entities — where each letter was found to have been published with malice — where damages were assessed by the trial judge at $7,000 for the accountant (Mr Cerutti) and $5,000 for the firm (Coscer) — whether the amounts were manifestly inadequate — whether the trial judge erred in applying a 50 per cent discount for imputations shown to be true — whether there was an error in principle in refusing to award interest — where an award of general damages for the defamation of Cerutti had to provide reparation for the harm done to his personal and business reputation, give consolation for the personal hurt and distress caused by the publications and vindicate his reputation — where Cerutti was entitled to damages which compensated him for the distress and upset which he had suffered as a result of the publication of the unjustified imputations, and the upset caused by his perception that each publication was malicious — where in the case of Cerutti, an appropriate starting point for an award of general damages, prior to discounting that amount by reason of the two imputations which were found to be true, would have been between $15,000 and $30,000 — where the trial judge erred in discounting his provisional award by 50 per cent to take account of the two imputations which the jury found to be substantially true — where those imputations were far less serious than the other imputations — where publication was made to two professional bodies and the building society with which the applicants had a commercial relationship — where the judge erred in his provisional assessment of damages to Cerutti, which was far too low, and erred in applying a 50 per cent discount — where these errors led to an award to Cerutti that was manifestly inadequate in the circumstances to compensate him for injury to reputation and hurt feelings and “to nail the falsity of the imputations” — where it is unnecessary to address again the purposes of an award of damages for defamation for Coscer — where the ultimate award to Coscer of $5,000 was inadequate in the circumstances and the result of an error in applying a 50 per cent discount — where each case in which interest is awarded on defamation damages depends on its facts, but interest is conventionally awarded at a rate of around three per cent from the date of publication — where having regard to the nature of the defamation, the respondents’ failure to apologise, and their persistence in alleging dishonesty against the plaintiffs, this is not a case in which the injury to reputation may have greatly diminished over time — where in all the circumstances, it is appropriate to award interest at the rate of three per cent per annum. Leave granted. Appeal allowed. Judgment in favour of Cerutti increased from $7,000 to $20,000; Coscer from $5,000 to $10,000 with interest plus costs for each.
R v Baker [2014] QCA 005 Gotterson and Morrison JJA and North J 07/02/2014
Appeal against Conviction & Sentence — where the appellant was convicted after trial of attempted murder — where the appellant and the complainant had been in a relationship — where at the time of the offence they had become estranged — where the appellant stabbed the complainant a number of times below the abdomen — where the injuries to the complainant’s heart were life threatening — where the appellant was charged with attempted murder or alternatively a malicious act with intent — where it was not in issue that the appellant stabbed the complainant causing her grievous bodily harm — where the appellant submitted that what “was in dispute included the sequence of events surrounding these acts, including when the appellant said certain things relevant to intention and motive” — where it was submitted that the learned trial judge had not complied with the obligation upon a trial judge imposed by s 620 of the Criminal Code — whether the failure to independently identify the evidence that might be relevant to consideration of the intent to kill as opposed to the intent to cause grievous bodily harm deprived the jury of judicial guidance on important matters — where the extent of the obligation on a trial judge to identify and summarise the evidence applicable in the case will vary depending upon the length and complexity of the trial — where notwithstanding that the trial was relatively straight forward; that at the outset of the trial intent had been identified as the issue and that the defence admitted from the beginning a stabbing and the infliction of grievous bodily harm, more than the instruction upon the law relating to intent in attempted murder and malicious act with intent was required — where otherwise the jury might, without specific instruction, not appreciate that proof to the requisite standard required them to deliberate and with care upon the evidence — where the failure to independently identify the evidence that might be relevant to consideration of the intent to kill as opposed to the intent to cause grievous bodily harm deprived the jury of judicial guidance upon important matters — whether there has been a miscarriage of justice — Appeal allowed. Conviction set aside and a re-trial ordered.
R v RAO & BCR & BCS; Ex parte Attorney-General (Qld) [2014] QCA 007 Holmes, Fraser and Gotterson JJA 11/02/2014
Sentence Appeal by Attorney-General (Qld) — where the 16 year old first respondent entered a stolen vehicle — where the first respondent acted as a lookout for the other respondents’ robberies — where the first respondent evaded police by driving dangerously — where the 15 year old second respondent entered a stolen vehicle — where the second respondent armed with a small axe robbed a woman — where the second respondent put petrol into the vehicle at a service station but did not pay — where the 16 year old third respondent broke in to a school tuck shop and stole food items — where the third respondent entered a stolen vehicle — where the second and third respondents concealed their faces and armed with knives and batons robbed a woman and her 12 year old daughter — where the second and third respondents concealed their faces and armed with knives confronted two women — where the respondents were cannabis users — where the respondents had no criminal history prior to this offending — where the respondents pleaded guilty — where the first respondent was sentenced under the Youth Justice Act 1992 (Queensland) (“YJA”) to probation for 18 months and must comply with s 193 of the YJA — where the first respondent was disqualified from driving for six months — where the second and third respondents were sentenced under the YJA to probation for two years and must comply with s 193 of the and were sentenced to 40 hours community service — where no convictions were recorded — where in each case, the sole ground of appeal is that the sentence is manifestly inadequate — where the appellant contends that the sentence is plainly unreasonable because the trial judge failed to impose a period of detention for the very serious offences — where the appellant contends the sentence is plainly unreasonable because the trial judge failed to record convictions — where the appellant contends that the circumstances of serious offending makes it unreasonable not to find that detention was appropriate — where the appellant contends that the trial judge failed to have any or sufficient regard to the nature of the offences and how it outweighed the fact that it was the first respondent’s first appearance — whether the sentences imposed were manifestly inadequate — where none of the respondents had a criminal history prior to this offending — where six decisions referred to by the appellant do not provide a firm foundation for asserting that the offending by the respondents necessitated a sentence of detention — where it is not a demonstration that the sentences of probation for substantial periods without conviction that the judge did impose are manifestly inadequate. Each appeal against sentence dismissed.
R v Dibble; Ex parte Attorney-General (Qld) [2014] QCA 008 Fraser and Gotterson JJA and Boddice J 11/02/2014
Appeal Against Stay of Prosecution by Attorney-General (Qld) — Double Jeopardy — Availability of Defence — where the respondent was observed by police swinging punches at the complainant — where the police intervened and charged the respondent with committing public nuisance — where the complainant wished to make a formal complaint against respondent — where the respondent in the Magistrates Court pleaded guilty to public nuisance and fined — where the offending behaviour was not particularised in a way which excluded any punch thrown by the respondent that landed on the complainant — where prosecutor stated that the respondent was throwing haymaker style punches towards the complainant’s face; that the complainant was attempting to cover his head from being further assaulted; and that the complainant was on the ground bleeding — where afterwards the police charged the respondent with causing grievous bodily harm — where the respondent sought a permanent stay of grievous bodily harm proceedings based on s 16 Criminal Code 1899 (Qld) (“Code”) — where the District Court judge ordered a permanent stay — where the appellant appealed against the stay pursuant to s 669A(1A) Code — whether the “same punishable acts or omissions” test was satisfied — whether the defendant’s punishment for the public nuisance offence was a bar to prosecution for grievous bodily harm — where the punishable acts for which the respondent was convicted in the Magistrates Court included the punches thrown by him which landed on the complainant and caused the latter harm — where to punish the respondent a second time for those acts would offend s 16. Appeal dismissed.
Wang v Commissioner of Police [2014] QCA 026 Margaret McMurdo P and Fraser and Gotterson JJA 25/02/2014
Application for Leave s 118 DCA (Criminal) — where the applicant was convicted of two charges of causing unauthorised damage to property on 29 March and 16 April 2013 — where the complainant gave evidence that on 29 March 2013 she heard a loud bang and saw that potting mix had been splattered on her balcony — where the complainant gave evidence that on 16 April 2013 she saw a person with a raised arm throw potting mix which landed on her outdoor furniture, walls and windows — where video footage of each incident was tendered — where the applicant gave evidence that his actions were the consequence of provocation and were in self-defence — where the magistrate found the applicant guilty and fined him $1,000, recorded convictions and ordered he pay $400 in restitution — where the applicant appealed to the District Court — where the District Court judge dismissed the appeal against conviction but allowed the appeal against sentence — where the magistrate’s sentence was set aside and instead the appellant was fined $500 in respect of each offence with a conviction recorded and ordered on each count to pay $200 compensation to the complainant — whether the applicant has demonstrated he has suffered a substantial injustice — whether the applicant has established any error on the part of the District Court judge warranting correction — where the evidence on each count was overwhelming that the applicant threw potting mix onto the complainant’s premises — where the Regulatory Offences Act prescribes a fine of $500 — whether the Penalties and Sentences Act applies to regulatory offences — whether the amount prescribed under the Regulatory Offences Act is a maximum fine which can be mitigated or varied — whether the maximum fine ought to have been imposed on the applicant in respect of each offence — where nothing in the terms of s 7 Regulatory Offences Act nor in the Minister’s statements suggests that the fine for a regulatory offence is anything other than a maximum fine which can be mitigated or varied — where s 47 Penalties and Sentences Act and s 41 Acts Interpretation Act 1954 (Qld) put that proposition beyond doubt — where a sentencing court may impose a lesser fine than the fine stated as the penalty for a regulatory offence or another sanction provided by the Penalties and Sentences Act, as long as it is no greater than the fine stated as the penalty for the regulatory offences — where the applicant was ordered to pay $200 restitution to the complainant in respect of each offence — where the complainant’s evidence did not establish that she spent $200 as a result of the applicant’s offending on 29 March 2013 — whether the applicant should have been ordered to pay $200 restitution in respect of the offence of 29 March 2013 — where the complainant’s evidence did not establish that she spent $200 as a result of the applicant’s offending on 29 March 2013 — where the only tendered receipt for $200 at this trial was dated 23 April 2013 and therefore referred to the third offence committed on 16 April 2013. Application for leave granted, but only against sentence. In CA 275 of 2013: Set aside part of the order and instead order the applicant is fined $350 otherwise the orders are confirmed. In CA No 276 of 2013: Set aside part of the orders and instead order that the applicant is fined $250 otherwise the orders are confirmed
R v GAR [2014] QCA 030 Muir and Fraser and Morrison JJA 28/02/2014
Sentence Application — where the applicant was convicted of two counts of attempted indecent treatment of a child under 16, one count of unlawfully exposing a child under 16 to an indecent act, one count of assault occasioning bodily harm and four counts of rape — where the applicant pleaded not guilty — where the applicant was sentenced to 12 years imprisonment for each of the rape offences and to five years imprisonment for each of the other offences — where a serious violent offence declaration was made — where the applicant was also sentenced for 20 summary offences — where all of the sentences imposed, other than a one month term of imprisonment imposed for a Bail Act 1980 (Qld) offence, were ordered to be served concurrently — where the applicant was 19 years of age at the time of offending — where the applicant had an extensive criminal history — where the applicant’s victim was his 15 year old aunty — where the applicant penetrated his victim’s vagina digitally before having vaginal and anal intercourse with her — where the assaults were accompanied by actual and threatened violence — where the applicant demonstrated no remorse — where the applicant had a troubled childhood — where the applicant was a heavy user of drugs and alcohol — whether in all the circumstances the sentence was manifestly excessive — where the sentences of 12 years imprisonment imposed on the applicant, carrying as they do the consequences of serious violent offence declarations, are very severe notwithstanding the age of the complainant and the other matters which added to the gravity of the offending — where analysis of precedents shows that sentences for rape do not tend to exceed 10 or 11 years unless accompanied by substantial violence — where analysis of the comparable authorities does not support the subject sentences when regard is had, in particular, to the matters just mentioned, the appellant’s age and the relatively limited degree of violence — Leave granted. Appeal allowed. Sentences imposed on four counts be set aside and that for each offence the applicant be sentenced to 10 years imprisonment with each offence declared a serious violent offence. Other sentences affirmed, all sentences to be served concurrently except for a summary offence the term of which remains cumulative.
