Court of Appeal Judgment Summary Notes

  CIVIL APPEALS   

Meijer & Anor (Executors, Estate of Hendrik van Leeuwen Dec’d) v Zabusky & Anor [2014] QCA 040 Fraser and Gotterson JJA and Mullins J 07/03/2014

General Civil Appeal — Consent Orders — where there was a substantial dispute in the principal proceeding between the interests of Mr van Leeuwen (as the applicants) and the interests of Mr Zabusky (as the respondents) — where the respondents were ordered to pay certain costs of the applicants in the principal proceeding — where the costs were assessed and the subject of costs orders made by the registrar — where the applicants obtained an enforcement warrant for the costs orders — where Mr Zabusky commenced another proceeding to obtain an injunction to restrain Mr van Leeuwen and his solicitors acting on behalf of the applicants in the principal proceeding — where Mr Zabusky paid the amount due under the costs orders to his solicitors’ trust account (the trust funds) to be held pending the determination of the retainer issues in the principal proceeding or further order of the court — where the solicitors for the applicants in the principal proceeding undertook in the injunction proceeding to stop the enforcement of the costs orders — where consent orders were made in the injunction proceeding with the consent of Mr Zabusky and the solicitors for the applicants in the principal proceeding — where the undertakings and consent orders formed a contract between the parties — where Mr van Leeuwen’s subsequent application that the trust funds be paid out to him was dismissed by the primary judge — where there had been a change in circumstances since the making of the consent orders — whether there was an error by the primary judge in balancing the relevant factors to conclude there should be no change to the regime set up by the consent orders — where in the circumstances that prevailed between Mr Zabusky and Mr van Leeuwen at the time the consent orders were made, the undertakings and the consent orders reflected a contract between the parties to the consent orders — where despite the brevity with which Daubney J expressed his ultimate analysis, in the context of a number of factors being advanced on behalf of Mr van Leeuwen since the making of the consent orders to warrant the trust funds being paid out to him (or Virgtel and Global) instead of being held until the determination of the retainer issues in the principal proceeding, Daubney J’s balancing of those various factors resulted in the conclusion that the regime set up by the consent orders should remain — where it is clear from the reasons as a whole that Daubney J considered whether the developments between the parties since the making of the consent orders warranted altering that regime — where Daubney J did not treat the consent orders as immutable, but was entitled to give the underlying agreement the significant weight which he attached to it — where it was a matter for Daubney J to balance the relevant factors in deciding whether or not the events that had transpired since the making of the consent orders should result in a change to the regime set up by the consent orders which reflected an underlying agreement between the principal parties. Appeal dismissed with costs.

Application for Leave Queensland Civil and Administrative Tribunal Act — Further Order — Disciplinary Proceedings — where the applicant sought to appeal the decision of the appeal tribunal of QCAT — where the Court granted and allowed the appeal — where the Court exercised its power under s 153(2)(c) of the QCAT Act to set aside the decision and substitute its own decision — whether the decision of the senior member was reasonably made — where the discretionary power to suspend a disciplinary sanction is a broad one conditioned upon the agreement of the officer being disciplined to perform voluntary community service or, as occurred here, to undergo voluntary counselling, treatment or some other program designed to correct or rehabilitate — where a suspended sanction is a sanction — where it was open to the senior member to have regard to the mitigating factors to which he did is not put in question by the ground of appeal — where the circumstance that the charge against the appellant particularised conduct on his part over a time span beginning at 7.40 pm on 14 October 2005 — where the information about the Malu Sara sinking was not given to him until almost seven hours into that period of time — where in assessing the appellant’s conduct until that point at least, it was not irrelevant that he reasonably believed that the vessel was seaworthy — where reference is specifically made to the fatigue that the appellant was suffering having worked a full shift on 14 October and having been recalled to duty from 7.40 pm that day; and also to his being overtasked in coordinating the search and rescue on his own and without support. Appeal dismissed.

Browning & Anor v Australia and New Zealand Banking Group Limited [2014] QCA 043 Margaret McMurdo P and Muir JA and Daubney J 11/03/2014

General Civil Appeal — Loans — where the appellants entered into two loan agreements with the respondent — where the respondent alleged in a statement of claim that a “Default Event” occurred in that the term of both loan facilities expired and the appellants failed to make repayments — where the respondent claimed $6,879,097.40 in payment of a debt alleged to be owing by the appellants to the respondent, recovery of possession of two parcels of land, recovery of possession of livestock, interest and costs — where the respondent filed a request for default judgment — where default judgment given by a deputy registrar ordered that the respondent recover possession of the subject land and livestock and that the appellants pay the respondent $7,036,157.66, including interest and costs — where the appellants’ application to have the default judgment set aside was refused — where the appellants’ application for an order staying proceedings on an enforcement order pending appeal was refused — where the default judgment bore the notation “Form 26 Rule 283” — where the primary judge concluded that the judgment should have been made under r 287 of the Uniform Civil Procedure Rules 1999 (Qld) (the UCPR) — where the appellants submit that the default judgment was irregular — whether the exercise by the primary judge of his discretion miscarried as he failed to have regard to the non-compliance with r 283 to r 288 of the UCPR — whether the primary judge should have set aside the default judgement — where the respondent sought to rely on r 287 UCPR, arguing that the respondent’s claims for relief included two or more of the claims for relief mentioned in rr 283 to 286 — where the respondent’s difficulty is that its claim for relief contains an additional claim, the claim for recovery of possession of the livestock — where under r 290 of the UCPR, a “court may set aside or amend a judgment by default” on such terms as it considers appropriate — where the entering of judgments pursuant to rules such as those in Division 2 of Part 1 of Chapter 9 of the UCPR is a very serious matter that has obvious impact on the rights of a defendant — where the interests of justice favour the setting aside of the irregularly entered judgment — where the statement of claim served on the appellants is a sketchy and rather unsatisfactory document — where there are matters in the statement of claim that are likely to give rise to confusion — where the transactions the subject of the litigation have a degree of complexity — where having regard to the pleading and the material placed before the deputy registrar, the deputy registrar would not have been in a position to determine precisely what judgment should have been given even if the deputy registrar had power to embark on such a determination. Appeal allowed. Orders of primary judge set aside with costs.

General Civil Appeal — Costs — where the appellant appeals against an order of the primary judge — where the primary judge ordered the appellant to pay to the respondent $168,067.84, the sum certified by a costs assessor as being his assessment of the costs payable by the appellant to the respondent pursuant to an itemised tax invoice — where the appellant engaged the respondent to carry out legal services in relation to a matrimonial dispute — where the respondent claimed $202,843.44 for legal services provided to the appellant pursuant to a costs agreement — where the appellant objected to the respondent’s statement of costs — where the appellant requested that a costs assessor assess the costs statement — where the appellant applied to the Court to review the decision in the costs assessor’s certificate of assessment of costs — where the review of the costs assessor’s assessment was dismissed — where the respondent filed an application in the proceedings seeking judgment in its favour for the sum of $168,067.84 and a lifting of a stay on the respondent’s obtaining judgment — where the appellant was unable to attend the hearing of the application — where the primary judge ordered that the stay be lifted and that the respondent be entitled to judgment on the cost assessor’s certificate — where the appellant did not receive two days notice of the application filed in the proceeding as required by r 31 of the Uniform Civil Procedure Rules 1999 (Qld) — whether the primary judge erred in not affording the appellant an opportunity to be heard in respect to the respondent’s application — whether the appellant was denied natural justice — where the primary judge observed that the appellant had emailed the registry and “said she won’t be here” — where neither the transcript of the hearing on 17 May nor the outline of submissions provided by the respondent’s counsel to the primary judge contains any reference to the material, if any, relied on by the respondent in support of its application — where, in particular, there was no reference to an affidavit of service — where proceeding with the hearing in the absence of the appellant and before the time for service prescribed in the rules had elapsed constituted a denial of natural justice — where the appellant relied on breaches of s 316 of the Act in her notice of objection in a number of ways where in respect of each such objection, the costs assessor’s response was, “I have considered all of this which I took into account during the course of the assessment” — where the extent and manner to which the objections were taken into account is nowhere revealed except in as much as no reduction in the costs appears to have been thought warranted. Appeal allowed. Orders of primary judge set aside with costs.

R v CBK [2014] QCA 035 Margaret McMurdo P and Muir JA and Mullins J 07/03/2014

Appeal against Conviction & Sentence — Directions — where the appellant was convicted of four sexual offences after a three day trial — where the trial judge directed the jury as to the standard of proof in the trial by drawing an analogy with an LBW decision in cricket — where the direction was unhelpful and confusing — where the appellant contends this amounted to a misdirection warranting a retrial — where the respondent contends that the direction did not elaborate on the meaning of beyond reasonable doubt but rather on the effect of having a reasonable doubt — where to liken reaching a verdict in a jury trial on five serious charges involving the sexual abuse of a little girl to an umpire’s LBW decision in a cricket match is apt to trivialise the solemn role the community demands of jurors — where concerningly, it left open the real possibility that a juror who professed to be knowledgeable about umpiring LBW decisions might improperly influence jurors unfamiliar with cricket in determining whether they were satisfied of the appellant’s guilt beyond reasonable doubt — where the judge’s direction on reasonable doubt leaves open the real possibility that the jurors may have reached their verdicts in this case without a clear understanding of their obligation to be satisfied of the appellant’s guilt beyond reasonable doubt on each count before convicting — where it amounts to an error of law — where this was a matter so fundamental to the appellant’s procedural right to a fair trial according to law that it is not a case in which the proviso in s 668E(1A) Criminal Code can be applied — whether a retrial should be ordered — where the applicant was convicted of one count of rape involving a single episode of digital penetration and sentenced to five years imprisonment — where the complainant was very young and vulnerable — where the applicant was in a position of trust — where the applicant did not have the mitigating features of a timely plea, cooperation with the authorities, remorse or insight — where the applicant had previous convictions for sexual offences against children — whether the sentence was manifestly excessive — whether this Court should re-sentence the applicant — whether the sentence should be remitted to the District Court to be dealt with at the conclusion of the appellant’s retrial. Appeal allowed. Verdicts of guilty set aside. Retrial ordered. Application for leave to appeal against sentence granted and allowed. Sentence set aside. Question of sentence remitted to the District Court.

R v Lee [2014] QCA 036 Margaret McMurdo P, Gotterson JA and Mullins J 07/03/2014

Appeal against Conviction — Capacity — where the appellant was charged with rape — where the appellant suffered from bipolar affective disorder which was treated with medication — where the appellant stopped taking medication prior to trial — where before the arraignment the appellant’s counsel raised with the trial judge the concern that the appellant did not have sufficient mental capacity to proceed to trial — where the trial commenced — where during the first day of trial the appellant claimed to experience auditory hallucinations and paranoid delusions — where before the second day of trial a psychiatrist assessed the appellant as temporarily unfit to stand trial — where the psychiatrist on the voir dire expressed his opinion based on symptoms reported by the appellant and his previous examination of the appellant — where the threshold question for the trial judge was whether there was a real question as to the appellant’s soundness of mind for determination by the jury — where the trial judge decided the threshold question on the basis that the appellant was fabricating the hallucinations and delusions he reported to his lawyers and psychiatrist — whether the trial judge erred in not leaving the issue of the soundness of mind of the appellant to the jury to decide — where the question as to whether or not the appellant might be feigning symptoms was one properly for a jury charged with the task of determining fitness to consider — where on the basis of the material that was brought to the trial judge’s attention on the voir dire, a jury might reasonably have concluded that the appellant was not fit to be tried at that stage and therefore s 645 of the Code required the trial judge to charge the jury with the task of considering the soundness of mind of the appellant — where instead of deciding the threshold question of whether there was a real question about the appellant’s incapacity which should go to the jury, the trial judge decided the ultimate question by deciding a factual question about the appellant’s credit — where the issue of his incapacity should have been given to the jury as required by s 645 of the Code — where the error of the trial judge in deciding the question that should have gone to the jury under s 645 of the Code or failing to adjourn the trial in the circumstances resulted in a miscarriage of justice. Appeal against conviction allowed. Verdict of guilty set aside. Retrial ordered.

R v Wruck [2014] QCA 039 Holmes and Fraser JJA and Mullins J 07/03/2014

Sentence Application — where the applicant was convicted, on pleas of guilty, of two counts of indecent dealing — where the applicant was sentenced on each count to 18 months imprisonment, suspended after four months, with an operational period of 18 months — where the offences took place in 1982 and 1983 when the applicant was 25 years old — where the applicant was working as a teacher and a counsellor at the time of the offending — where the complainant was a 13 year old schoolboy who attended counselling with the applicant — whether the sentencing judge erred in sentencing on the premise that exceptional circumstances were a necessary condition for a non-custodial sentence to be imposed — whether a later practice to that effect should be taken to have retrospective application — whether the application for leave to appeal should be granted — whether the court’s re-exercise of the sentencing discretion should lead to a different result — where the applicant had compelling mitigating factors in his favour — where the offences involved a serious breach of trust and were not isolated incidents — where the offence had profound and continuing effects on the complainant — whether a sentence involving actual custody was warranted — where his Honour adopted “[It] is accepted that in such matters as this, without an extraordinary circumstance, the sentence should include a period of actual custody” — where the Court of Appeal having questioned whether the premise that exceptional circumstances were a necessary condition for a non-custodial order applied at all in the present case, the notice of appeal was amended and arguments were directed to whether the sentencing judge had erred in proceeding on that basis — where with the weight of authority the Court regards the Pham approach (R v Pham [1996] QCA 3) as having no application in the applicant’s case — where there is no doubt that there are compelling mitigating circumstances in the applicant’s favour: his relative youth and sexual immaturity at the time of the offending, his blameless life thereafter over a period of decades, his evident remorse and co-operation in the prosecution — where against that is the egregious breach of trust entailed in the offending: called on in a counselling role to provide the complainant with the male guidance he lacked because of his father’s departure, the applicant abused his position utterly, in what were not isolated incidents — where the other striking feature of the case, one which would not have been evident had the applicant been dealt with at the time of the offending, is the serious and lasting harm done to the complainant who, in middle age, remained deeply affected by what had occurred. Leave granted to appeal against sentence. Appeal dismissed.

R v Teichmann [2014] QCA 050 Holmes and Fraser JJA and Daubney J 21/03/2014

 Appeal against Conviction — Provocation — where the appellant was convicted of murder by a jury — where the appellant contended that the verdict was unreasonable because the evidence of two witnesses as admissions he had made was unreliable — where the jury was properly instructed as to how to approach the evidence, given its deficiencies — whether it was open for the jury to conclude beyond reasonable doubt that the appellant was guilty of murder — whether the verdict was unreasonable — where the appellant denied assaulting the deceased — where, on the version of events most favourable to the appellant, there was evidence of a physical attack by the deceased — where defence counsel accepted that provocation was not open — whether the trial judge erred in failing to leave the partial defence of provocation to the jury — whether there was a substantial miscarriage of justice — where defence counsel at trial raised during discussions with the trial judge whether provocation was available on the basis that, on Mr Kuiper’s (a friend of the appellant) account, Mr Manson (the victim) had said “I thought you could punch harder than that, Jamie” — where the trial judge expressed his view that it was doubtful that the statement could amount to provocation or that there could be “jury issues” in respect of the appellant’s response — where counsel said that he accepted the judge’s intimation and the question was not further discussed — where the essential question for this court (as it was for the trial judge) is: “whether, on the version of events most favourable to the accused which is suggested by material in the evidence, a jury acting reasonably might fail to be satisfied beyond reasonable doubt that the killing was unprovoked in the relevant sense.”: Stingel v The Queen (1990) 171 CLR 312 — where in the context of the hostility between the two men earlier on the night in question, the jury might have been prepared to accept as a possibility that Mr Manson had been the aggressor as the appellant described in his evidence, launching himself at him, while rejecting the balance of the appellant’s account as to what happened thereafter as self-serving — where there was a real issue in this case as to whether the jury, instructed on the issue, might not be satisfied that the prosecution had negated provocation — where counsel’s decision to disavow the partial defence did not remove the trial judge’s responsibility to direct on it. Appeal allowed. Set aside the verdict of guilty. Order a retrial.

Appeal against Conviction & Sentence — Expert Evidence — where the complainant, Mr Luke Vella, and nine friends took an annual trip as part of a punting club of which they were members — where between around 4 pm and 9.30 pm Mr Vella drank in the order of 12 full strength stubbies before going to Magnums nightclub where he drank a few spirits — where security officers, including the appellant, approached Mr Vella and Mr Green (a friend) and asked Mr Green to leave — where Mr Green was removed by two security officers and the appellant started to remove Mr Vella from the premises — where what happened after that is disputed and was the subject of conflicting evidence at the appellant’s trial upon a charge that he unlawfully did grievous bodily harm to Mr Vella — where evidence was given by a medical practitioner in an area outside of his expertise — where basis of opinion was not sufficiently explained — where evidence had not been previously disclosed — where evidence given was not encouraged or sought by the prosecution — where trial counsel did not object to evidence — whether there was a substantial miscarriage of justice — where the doctor’s evidence went beyond offering an opinion about the mechanism by which the lacerations were inflicted, namely by the traction and friction pressure on the skin causing it to tear — where he ventured into expressing other opinions, without it being established that: (a) he had the knowledge and experience sufficient to entitle him to be held out as an expert who could assist the court; or (b) the field about which he was expressing an opinion was a field of “specialised knowledge”, sufficiently recognised as credible by others capable of evaluating its theoretical and experiential foundations — where the critical opinion that the scenario given in the defendant’s record of interview (and which found some support in the evidence) that after Mr Vella was released from the headlock he fell forward, was described by Dr Holroyd as a “remote possibility” — where his evidence did not explain why he consigned this scenario to such a status — where in circumstances in which the relevant evidence was not previewed by way of disclosure or opening, and emerged in the form of opinions which were not necessarily responsive to the questions asked of the witness, the failure of trial counsel to object does not preclude a finding that a miscarriage of justice occurred — where had the evidence not been given then the jury may have been unable to agree or have not been satisfied of the appellant’s guilt beyond reasonable doubt. Appeal against conviction allowed. Conviction and verdict set aside. New trial ordered.