Court of Appeal Judgment Summary Notes

CIVIL APPEALS

Application Queensland Building and Construction Commission v Lifetime Securities (Australia) Pty Ltd & Anor [2014] QCA 161 Margaret McMurdo P, Gotterson JA and Ann Lyons J 18/07/2014

for Leave s 118 DCA (Civil) – where the respondent was contracted to build a residential property – where the property owner made claims against the respondent under the statutory insurance scheme, pursuant to the Queensland Building and Construction Commission Act 1991 (“the Act”) – where the applicant’s inspection of the property confirmed the defects – where the applicant provided written notice giving the respondent 28 days to rectify the defects – where the respondent did not respond to the written notices – where the applicant invited tenders to carry out the rectification works – where the applicant filed a claim in the District Court seeking costs of the rectification work from the respondent – where the respondent filed an application seeking dismissal of the applicant’s claim in light of McNab Constructions Australia Pty Ltd v QBSA – where the learned District Court judge entered judgment against the applicant on the basis that their case as pleaded had no real prospects of success – whether the applicant’s right to recovery was conditioned by compliance with the Act – where QBCC in summary, submitted that the right to recover conferred on it by s 71(1) is exercisable upon the happening of events to which it is expressly referenced, that is to say, the making of a payment of a claim under the insurance scheme – where the argument maintains that that right is not qualified or conditioned by reference to compliance by it with provisions in Part 6 – where in support of its argument, QBCC relied upon the decision of this Court in Mahony v Queensland Building Services Authority [2013] QCA 323 – where the principles expressed in those reasons are adhered to – where in Mahony special leave was refused to the High Court of Australia – where the decision in Mahony supports the view that the right to recover conferred by s 71(1) is not conditioned upon the legal quality of any step that QBCC may have taken antecedent to a decision to make payments under the scheme – where the learned primary judge acted upon an erroneous proposition of law and further erred in holding that QBCC’s claim was bound to fail – where sufficient facts were set out in specified paragraphs of the statement of claim to plead a claim for recovery under s 71(1) – where several judgments of relevance to the legal issues raised in both the summary judgment application and the appeal were published after the summary judgment application had been determined and the application for leave to appeal to this Court had been filed. Grant leave to appeal. Appeal allowed. Specified orders below set aside. Dismiss the application for summary judgment. Direct the appellant to file and serve an amended statement of claim within 28 days of the publication of these orders. Procedural costs orders.

Queensland Heritage Council v The Corporation of the Sisters of Mercy of the Diocese of Townsville [2014] QCA 165 Margaret McMurdo P and Gotterson JA and Douglas J 22/07/2014

Application for Leave Sustainable Planning Act – where the Queensland Heritage Council entered a convent into the Heritage Register – where St Patrick’s Convent on the Strand in Townsville was built in 1873 for the Sisters of St Joseph but by 1879 was taken over for the respondent, Corporation of the Sisters of Mercy of the Diocese of Townsville, (“the Sisters of Mercy”) – where the convent is owned by the respondent, the Sisters of Mercy – where the respondent appealed to the Planning and Environment Court from the Council’s decision to enter the convent in the Register – where the grounds available in that appeal were contested – where the Sisters of Mercy contended that the physical condition and structural integrity of the convent could form a ground of appeal in the Planning and Environment Court – where the Council contended that the appeal must be limited to the cultural heritage criteria as set out in s 35(1) of the Queensland Heritage Act 1992 (Qld) – where, under the Sustainable Planning Act 2009 (Qld), an appeal is by way of hearing anew – whether the powers of the Planning and Environment Court extend to other matters if at least one of the grounds of appeal related to the cultural heritage criteria is made out – where history suggests that the legislature intended to separate the consideration of whether a place satisfied the cultural heritage criteria from an examination of the physical condition or structural integrity of the place – where the effect of the physical condition or structural integrity of the place is dealt with separately under s 51(2)(b) and s 51(3) and the Council submitted that issues related to the physical condition or structural integrity of the place properly were to be considered, not on an appeal but if a development application for the place were to be made pursuant to s 68 of the Act – where if such a ground of appeal asserting the place the subject of the appeal did not satisfy the cultural heritage criteria referred to in s 162(1) of the Queensland Heritage Act is made out, however, it then seems to be appropriate to permit the court, in exercising its powers, to hear the matter anew pursuant to s 495(1) and, for example, to set aside the decision appealed against and make a decision replacing it under s 496(2)(c), to examine the issues which the Council itself had to examine under s 51(3) of the Queensland Heritage Act, namely whether the physical condition or structural integrity of the place may prevent its cultural heritage significance from being preserved – where if success of a ground of appeal may throw quite a different light on the particular issues related to the physical condition or structural integrity of the place justifying the Council, were it considering the matter anew, in reaching a different decision – where if it is the case that error can be shown in the Council’s assessment of the cultural heritage criteria relevant to the place then that is also likely to throw doubt on the decision generally, justifying a reconsideration of the issues, including those related to physical condition or structural integrity – where it would be wrong to preclude a litigant from arguing that the court should make a decision replacing the decision set aside without reference to all the issues actually considered by the Council itself. Leave granted. Appeal allowed by ordering that paragraph 2 be set aside. Submissions invited on costs.

Queensland Building and Construction Commission v Watkins [2014] QCA 172 Margaret McMurdo P and Morrison JA and Douglas J 25/07/2014

General Civil Appeal – where the appellant sought summary judgment against the respondent in relation to a sum of money said to be payable under the Queensland Building Services Authority Act 1991 (Qld) – where the respondent then applied to the Queensland Civil and Administrative Tribunal challenging the appellant’s approval of an insurance claim against the respondent – where this application was brought outside of the statutory time limit – whether QCAT has the power to extend the time in which to make such an application – whether summary judgment should have been granted – where QCAT’s power to review such a claim about the scope of works was not available if 28 days had elapsed from the date of service of a decision to direct rectification or completion of work or since a decision about the scope of works to be undertaken had been served on the building contractor – where the respondent said in an affidavit before the learned District Court judge that he had not received a completed scope of works statement from the appellant “although they keep telling me that I have” – where the respondent was clearly on notice of the intention to take proceedings against him and did not seek then to initiate proceedings in QCAT – where the learned primary judge refused the application for summary judgment at that stage because he was persuaded that QCAT should have the opportunity to consider the application before it for an extension of time – where his reason for that was that there was an argument available that QCAT could extend the time, which he regarded as an issue fundamental to the appellant’s right of action – where the language of the section, in prescribing that QCAT must not review decisions of the nature described in the section if 28 days have elapsed since the relevant decision or direction, makes it correct to conclude that it is a mandatory provision having substantive rather than procedural effect – where the compelling inference from the structure of the Act is that applications for review of such matters should be made expeditiously to avoid further delay in the completion or execution of rectification work – where applying the principles from Mahony v Queensland Building Services Authority [2013] QCA 323, leads to the conclusion that, on the evidentiary material raised before the learned primary judge, no substantive defence existed to this statutory claim. Appeal allowed. Orders below set aside and instead judgment is given for the appellant against the respondent for its claim of $153,917.95 with interest. Procedural orders in relation to costs.

Studorp Limited v Robinson [2014] QCA 174 Gotterson and Morrison JJA and Applegarth J 25/07/2014

General Civil Appeal – where the respondent had contact with the appellant’s asbestos products as an child in New Zealand – where the respondent was later diagnosed with asbestos related pleural disease – where the respondent claimed damages for personal injuries – where the respondent was a resident of and had previously brought similar proceedings in New South Wales – where the appellant applied for a stay of the proceedings on the basis that Queensland was a “clearly inappropriate forum” – where the application was dismissed – where it remains to remains to note briefly that the remaining issues dealt with by the learned primary judge concern the applicability of New Zealand limitations legislation to the proceedings and to the application in the alternative for a stay pending payment of the costs which his Honour also refused – where no error on the part of the learned primary judge in stating forum non conveniens principles is alleged – where the submission for Studorp is to the effect that the learned primary judge ought to have concluded from the expert evidence that there was uncertainty in the New Zealand law that would apply to the Queensland proceedings; that the uncertainty was complicated by policy considerations which might inform the resolution of the uncertainty by New Zealand courts; and that the impact of those features was not taken into account by the learned primary judge –where the submission went so far as to propose that a proper taking into account of the impact would compel a conclusion that the Supreme Court of Queensland is a clearly inappropriate forum for Mr Robinson’s proceedings – where to illustrate which policy considerations might apply, reference was made to the utility of asbestos cement as a building product in the post-war period, its relative affordability, the employment that asbestos mining created, and the adverse impact on employment that would have followed had Studorp closed its plant once the dangers to health of asbestos were known – where it must be said at once that these are factual matters – where for Studorp , reliance was placed on the obiter dicta of Lawrence Collins J in Konamaneni v Rolls Royce Industrial Power (India) Ltd that where a case involves developing and controversial areas of law, it would be better for them to be decided by the court which can authoritatively rule on them, and whose judgments are subject to appeal, and upon the citation of it by the learned authors of Nygh’s Conflict of Laws in Australia, 8th ed – where the applicability of this dicta to the current proceedings is unsupported by cogent evidence that the New Zealand law, particularly with respect to the existence of a duty of care on the part of a manufacturer/supplier of building products is apt to be described as controversial, just as it is by the adjacent comment of the learned authors that “New Zealand law barely seems foreign at all” – whether Queensland was a “clearly inappropriate forum.” Appeal dismissed with costs.

Hadgelias Holdings and Waight v Seirlis & Ors [2014] QCA 177 Holmes, Gotterson and Morrison JJA 29/07/2014

General Civil Appeal – where the appellants, Hadgelias Holdings Pty Ltd and Mr Phillip Waight, the latter an independent contractor engaged by Hadgelias Holdings to sell real estate, acted as agents on the second respondents’ sale of an apartment to the first respondent, Mrs Seirlis – where the first respondent was induced to enter into the contract by false representations made by the appellants on behalf of the vendors that there were three car parks allocated to the apartment – where at an inspection of the property, Mr Waight had told Mrs Seirlis that there were two parking spaces with a third area containing a plinth or platform on which a storage shed could be constructed; many apartment owners had removed the plinth and used the space for parking – where at a later meeting, Mr Waight had assured her that he would personally see to the removal of the plinth, paying for it himself, upon which she committed to the contract by initialling changes made by the vendors on a contract document – where, in fact, the apartment had only two car parks and one storage space which could not be converted into a car park – where Mr Waight’s undertaking to have the slab removed was given entirely of his own volition; it was not a promise which either the vendors or Hadgelias had authorised him to make where it was conduct with the same misleading effect as the representations for which they were responsible, and it contributed with those representations in inducing Mrs Seirlis to purchase the apartment; but it was conduct performed by Mr Waight, and Mr Waight only – where two representations made collectively by the appellants were misleading and deceptive conduct contravening s 52 of the Trade Practices Act 1974 (Cth) – where one further representation made by the appellant Waight contravened s 38 of the Fair Trading Act 1989 – where the appellants contended that the trial judge had erred in finding that the appellant Waight had made any different and distinct representation so as to attract the application of the Fair Trading Act to his conduct – whether the appellant Waight was separately responsible for misleading conduct so that his liability could not be limited – where the vendors directed the appellants to make the representation as to the availability of the third car park – whether the appellants and vendors performed a single set of acts which caused loss – whether the appellants and vendors were “concurrent wrongdoers” within the meaning of s 87CB of the Trade Practices Act so as to attract the application of s 87CD of the Trade Practices Act, allowing apportionment of liability between them – where Mrs Seirlis’ claim for damages was an apportionable claim, notwithstanding that it might equally have succeeded through the establishment of a contravention of s 53A – where the trial judge rejected the view of a valuer, a Mr Kendall, that the legal impediment to the use of the storage space for parking would be immaterial to a prospective purchaser and consequently would have no effect on the value of the apartment – where another valuer, Mr Hooper, gave his opinion on the valuation of another apartment but it was not known whether the buyer knew that use of the third space as a car space was illegal – where the point is that the valuation figures were not absolutes and the trial judge was entitled to decide which of them he would rely on, and to reach the conclusions which he did. Appeals dismissed. Procedural orders for cost submisssions.

CRIMINAL APPEALS

R v Gould [2014] QCA 164 Muir and Fraser JJA and Peter Lyons J 22/07/2014

Appeal against Conviction – where the appellant was convicted after a trial of: unlawfully confining the complainant against her will; assaulting the complainant with intent to rape; and raping the complainant – where the complainant was driving home from a hotel at night when she pulled over to investigate a suspected flat tyre – where the driver of a van approached the complainant and asked if she needed help – where the driver seized the complainant and raped her in the van then pushed her out of the van and drove away – where the complainant saw her assailant for a short amount of time in low light – where the complainant assisted police to prepare a “com-fit” image of the attacker – where the police officer responsible for the preparation of the suspect’s image stated the suspect’s age as 50 years, his height 178 cm, his build as “fat/obese” and his complexion as “light fair” – where nine months after the incident the complainant selected a photo of the appellant from a photo board, stating “number 6 looks like him” – where the prosecution case was inherently weak – where only one other person in the photo board resembled the complainant’s description of the attacker – whether the identification made by the complainant, together with the other evidence in the case, could satisfy the jury beyond reasonable doubt that the person the complainant saw immediately prior to being attacked was in fact the appellant – where it was properly conceded that the verdict could not be sustained by reference to purely circumstantial evidence – where the question for the jury was not semantic or linguistic in nature or one of evidentiary categorisation: it was whether the identification made by the complainant, such as it was, together with the other evidence in the case, could satisfy them beyond reasonable doubt that the person the complainant saw immediately prior to being attacked was in fact the appellant – where the jury should have been warned that the identification by use of the photo board needed to be approached with particular caution as the composition of the photo board was capable of suggesting a particular identification – where it was possible that the com-fit image would have supplanted or interfered with the complainant’s originally recollected image – where the warning that the trial judge is required to give in circumstances such as those under consideration does not need to follow any particular formula but it must be “cogent and effective”, “appropriate to the circumstances of the case” and the jury’s “attention should be drawn to any weaknesses in the identification evidence” – where reference to counsel’s argument is insufficient – where in Evan, Keane JA, after discussing the principles established by Domican v The Queen and other authorities, concluded that the trial judge should “…isolate and identify, by way of direction on his authority for the benefit of the jury, and not merely by way of comment which the jury are at liberty to disregard, matters which might reasonably be regarded as undermining the reliability of the identification evidence” – where that was not done – where an even more fundamental problem for the respondent, however, is that the prosecution case was inherently weak – where it rested for the most part on the complainant’s identification of the appellant – where although the complainant did not need glasses to read, she used them for driving and other distance purposes – where she had not seen her assailant before the incident and was not called on to identify the appellant until more than nine months after the attack – where none of the DNA evidence implicated the appellant. Appeal allowed. Convictions quashed. Verdicts of acquittal entered.

R v Leighton [2014] QCA 169 Margaret McMurdo P, Gotterson JA and Henry J 25/07/2014

Sentence Application – where the applicant pleaded guilty to one count of armed robbery in company, one count of assault occasioning bodily harm while armed, one count of armed robbery, one count of being in premises with intent to commit an indictable offence and one count of robbery while pretending to be armed – where the applicant’s offending involved threatening vulnerable women with a syringe, telling them that she had Hepatitis C or AIDS and stealing from them – where in one case the applicant inflicted injury upon a complainant with a syringe – where the applicant had a significant criminal history including armed robbery with violence – where the applicant had an unhappy childhood including sexual abuse perpetrated when she was five years old – where the applicant suffered from a chronic post-traumatic stress disorder, a chronic depressive disorder and a heroin dependence disorder – where the applicant regretted and was ashamed of her actions – where the applicant was sentenced to eight years imprisonment – where counsel for the respondent concedes that the sentencing judge failed to properly take into account the fact that the applicant had been in custody for 11 months (completing her 2010 sentence) which could not be declared as time served under her present sentence – where none of the cases to which counsel referred support a sentence as high as eight years for offending of this kind after an early guilty plea and such a lengthy period of presentence custody – where it is true that the applicant was required to serve the 11 months because she re-offended on parole but that does not excuse a sentencing court from taking this factor into account with the myriad other factors to be considered in determining the appropriate sentence – where cases suggest that, after balancing the exacerbating and mitigating features, including the early guilty plea and the time in presentence custody, 11 months of which could not be declared as time served, a sentence of six years imprisonment is appropriate here. Application granted. Allow the appeal, vacate the sentence on count 2 and substitute the sentence of six years imprisonment and by vacating the date the offender is to be eligible for parole and substituting the date, 12 May 2015. Otherwise confirm the sentence imposed at first instance.

R v Voll [2014] QCA 170 Holmes and Gotterson JJA and Philip McMurdo J 25/07/2014

Sentence Application – where the applicant was a practising solicitor – where the applicant dishonestly applied to his own use a sum of money amounting to more than $30,000 – where the applicant pleaded guilty to one count of fraud – where the applicant was sentenced to two years and six months imprisonment, suspended after three months with an operational period of 30 months – where the applicant contends that the sentence should have been wholly suspended – whether the sentencing judge erred in the exercise of sentencing discretion by not giving appropriate weight to mitigating factors – where it was submitted for the for the applicant that his case is unique because of the combination of these mitigating circumstances: the full restitution of the misapplied moneys together with interest, the payment of the fine, the surrender of his practising certificate, the substantial loss of income to date and in the future amounting to millions of dollars, the losses from the forced sales of his properties, the extraordinary delay from his admission of the offending until his sentence, his early plea of guilty and his remorse as found by the sentencing judge – where it may be said that a higher head sentence in this case could have been imposed – where it was open to the sentencing judge to impose a term of imprisonment which was only partially suspended as he ordered, so that no error in the exercise of the sentencing discretion can be inferred. Application refused.