CIVIL APPEALS
Rosen v Legal Services Commissioner [2016] QCA 190 (15/9813) Margaret McMurdo P and Gotterson JA and Burns J 22 July 2016
General Civil Appeal — where on 3 August 2015 the Queensland Civil and Administrative Tribunal found the appellant, Warren Rosen, guilty of unsatisfactory professional conduct by breaching Rule 4 of the Legal Profession (Solicitors) Rule 2007 (Qld) — where it also made orders concerning a complaint against Mr Rosen brought by Ms Dawn Holling for compensation, which was to be heard on the papers — where on 3 September 2015 the Tribunal ordered Mr Rosen to repay Ms Holling $9,170.17 in legal services fees, and to pay $7,500 in compensation — where by the time the matter was heard in this Court, it was clear that Mr Rosen had appealed as of right under s 468 Legal Profession Act 2007 (Qld) from the order of 3 September and was seeking an extension of time to appeal from the order of 3 August — where in effect, this Court treated his misconceived application as one for an extension of time to appeal from the order of 3 August — where between 1 October 2006 and 30 June 2007, he acted for Mr McKee in relation to a property settlement between Mr McKee and his first wife — where on or about 16 April 2011, he accepted instructions from Ms Holling, who had become Mr McKee’s second wife, to represent her in an application for a property settlement against Mr McKee — where the former client obtained an injunction preventing the appellant from acting for the complainant — where the appellant alleges there was no confidential information the complainant did not already know, the former client waived confidentiality, and the complainant instructed him to contest the application for an injunction — where in light of Mr McKee’s evidence, he might reasonably conclude that there was a real possibility the confidential information gained by Mr Rosen when he acted for Mr McKee could be used to Mr McKee’s detriment if Mr Rosen continued to act for Ms Holling in the current litigation (Rule 4.2) — where so much was rightly identified by the federal magistrate in granting the injunction and in the Tribunal’s reasons — where Mr Rosen accepted instructions from Ms Holling on 16 April 2011 to represent her in the dispute over property with Mr McKee — where he soon after advised Mr McKee that he was acting for her, explaining that he did not believe he was in possession of confidential information as Mr McKee would have to disclose it in the property settlement proceedings in any event — where Mr McKee was self-represented — where in circumstances where Mr McKee was self-represented, was told by Mr Rosen that confidentiality was not a problem, and as soon as he obtained independent legal advice to the contrary objected to Mr Rosen appearing for Ms Holling, all within about two months, there has been no waiver of confidentiality by Mr McKee through delay — where in continuing to act for Ms Holling he breached Rule 4 — where his conduct fell short of the standard of competence and diligence that a member of the public is entitled to expect from a reasonably competent Australian legal practitioner — where the proceedings before the federal magistrate, the Tribunal and this Court unfortunately suggest he lacked insight in the past and still lacks insight into his professional shortcomings in this regard — where the appellant was ordered to repay the complainant’s legal service fees as well as pay compensation for an adverse costs order made against her in the application for an injunction — where the complainant was the appellant’s client and entitled to make a complaint under s 429 Legal Profession Act — whether the complainant was entitled to a compensation order under Part 4.10 Legal Profession Act — where these provisions make clear that Ms Holling was entitled as a complainant to apply for compensation for the fees she paid to Mr Rosen up to and including the determination of the injunction application — where she suffered pecuniary loss from Mr Rosen’s conduct, both in paying him legal fees he was not entitled to as he could not then ethically act for her, and in paying Mr McKee’s costs of his successful application for an injunction which he should never had to bring. Application for an extension of time to appeal is refused with costs. The appeal is dismissed with costs.
Hayes & Ors v State of Queensland [2016] QCA 191 (15/4063) Margaret McMurdo P and Mullins and Dalton JJ 29 July 2016
General Civil Appeals — where the appellants each worked as managers in a government department — where a large number of workers, together with their union, made complaints against the appellants — where the complaints were investigated by the department and later rejected — where the appellants allege there was a lack of support in the workplace after the complaints were made — where the appellants each suffered psychiatric injury — where the trial judge concluded that no duty of care was owed to the appellants because the basis for their complaints was an investigation by their employer — whether the trial judge erred in concluding that no duty of care arose in the circumstances — whether or not a duty of care did arise in any of the four cases with which this Court is concerned is a question of fact to be determined in accordance with the tests outlined by Koehler v Cerebos (Australia) Ltd (2005) 222 CLR 44 — where of the difficulties both with the statements of claim below, and the judgment below, is that they do not recognise that, in cases of this nature, whether or not there is a duty owed, and what the content of that duty is, can only be determined after a detailed factual enquiry separate from, and preliminary to, an enquiry as to breach — where in 2006 or 2007 Julie Johnson became a casual residential care officer — where the force of Ms Johnson’s personality can be gauged from the fact that she was apparently the moving force behind the 2009 complaints — where these seemed very significant and were found to be groundless — where in early January 2009 Ms Johnson and other RCOs made allegations against Ms Hayes and others in the management team at Maryborough — where the complaints involved 26 complainants who made over 200 allegations against nine managers of bullying and harassment — where Ms Johnson was very active in making and prosecuting the 2009 complaints and was described as a ringleader, which was appropriate — where from early January 2009 the Department was aware of the complaints at the highest level — where it must have been obvious to the respondent from the number of detailed complaints made that this investigation process would take some time – months – to complete — where it was the evidence of Ms Kill, the Acting Director-General and Ms Pamela Steele-Wareham, the Regional Executive Director and stationed at the Maryborough office, that the subject matter of the complaints seemed significant and serious – that is the complaints did not appear to be vexatious — where on 13 January 2009 the Deputy Director-General of Disability Services Queensland sent a memo to many staff, including Ms Hayes — where this email informed staff that he had requested Ms Wareham provide direct support to all staff and monitor workplace practices and decision-making, “including the behaviour and conduct of managers and staff” — where the memo went on to say, “It is important to reinforce for all managers and staff that behaviour in the workplace, including all interactions with others, is consistent with the Departmental Code of Conduct.” — where in a context where there had been complaints about the managers’ treatment of RCOs, the admonition to managers and staff to comply with the Departmental Code of Conduct was most obviously interpreted as an admonition to the managers — where the general flavour of the memo was not even-handed, but one which contained a significant element of presumption that there was something in the complaints made — where the memo did not indicate support for the managers but, to the contrary, involved this element of implied criticism — where Ms Wareham sent an email to all the appellants except Ms Harris — where the email concerned Ms Wareham’s attendance at an Industrial Relations Commission conference and included: “Each of you is requested not to discuss these current matters with any RCO or other staff… Should staff wish to meet as a group via Union or other meetings to discuss these matters you are requested not to participate.” — where these were remarkable directions which had the effect of isolating the appellants within the workplace and taking away obvious sources of support to them through the difficult times which lay ahead — where there was no justification for the requirements advanced during the trial — where the managers could not discuss matters openly, and were well aware of the injustice of the restriction, and the lack of support and confidence in them that it indicated on the part of the respondent — where Ms Wareham met with members of the AWU and some large number of RCOs at a hotel on 16 January 2009 — where Ms Hayes was aware of this and aware that Ms Wareham had organised the meeting — where Ms Hayes was told that when she returned from the meeting Ms Wareham said, of the complaints made against the management team, “there’s got to be something in it because there’s so many complaints” — where it cannot be seen that any duty arose towards Ms Hayes before the 2009 complaints were made — where, however, once the 2009 complaints were made, the Department was well aware that there would be a substantial, serious and protracted dispute and investigation — where it was a large Government Department and had, or ought to have had, enough sophistication to reasonably foresee by 5 January 2009 that if support were not offered to Ms Hayes in the difficult circumstances which lay ahead, she might suffer more than just distress, but psychiatric harm — where the Department breached the duty it owed Ms Hayes — where there was no support offered to her except to offer the free Departmental counselling service — where the emails of 13 and 14 January 2009 were unsympathetic to the position of the managers and the email of 14 January, in particular, imposed restrictions which were unreasonable and likely to cause the managers to be isolated from, and unsupported by, their workmates and professional organisation — where it is clear from the comment of Ms Wareham which was repeated to Ms Hayes – so many people would not complain if there were not something in the complaints – that Ms Wareham was not impartial as to the veracity of the complaints — where she took the view that the managers must have behaved wrongly — where it cannot be seen that there was any safe basis to conclude on the evidence below that the matters which were in breach of the respondent’s duty to Ms Hayes caused her injury — where the factual case which Dr Byth considered as causing injury was so different and so much more extensive than the matters which constitute the breach of duty in this case that it would be unsafe to conclude that the breaches were even a substantial cause of the injury suffered or that, to look at it in another way, Ms Hayes would not have suffered the injury she did had those matters which constitute a breach of the respondent’s duty not occurred — where Ms Palmer was transferred to Maryborough in 2007 and was put in charge of rostering the RCOs for which she had particular expertise — where speaking of her entire relationship with Ms Wareham in 2009, Ms Palmer said that Ms Wareham did not once ask how she was, or how she was coping — where she inferred she did not care — where this does not seem an unreasonable inference on the evidence in all four cases — where although the respondent was aware through 2008 that Ms Johnson’s behaviour was a source of stress to Ms Palmer in the workplace, it was not reasonably foreseeable before January 2009 that Ms Palmer might suffer psychiatric illness (as opposed to stress or upset) because of this continued unhappiness — where however shortly after the 2009 complaints were made a duty did arise — where Ms Palmer proved breach — where central was Ms Palmer’s removal from her substantive position without any of the explanation or support which Ms Kill regarded as necessary — where perhaps even more damaging was the humiliating circumstances which then ensued in the workplace: Ms Palmer had no substantive work to perform, or after February 2009 some substantive work, but nothing like a proper workload — where it is not possible to say that the matters which amounted to a breach of the respondent’s duty caused the appellant’s psychiatric injury — where there was simply no attempt to put the case established by Ms Palmer to Dr Byth — where Ms Harris held the same position as Ms Johnson — where the respondent breached its duty to Ms Harris — where the respondent took no steps to identify that she was the subject of complaints by the RCOs, notwithstanding she brought her fears to Ms Wareham’s attention on numerous occasions — where the decision not to tell Ms Harris that a complaint had been made against her was not something that was done deliberately as a strategic part of the investigation, or for some other reason, it was simply carelessness on the part of the respondent — where once Ms Wareham did discover that Ms Harris was the subject of complaints she did not remove her from her position so that she could be protected from working with the RCOs every day — where there was no attempt during evidence at the trial to address with Dr Byth whether or not the matters which were proved as breaches, and which were justiciable between these parties, were sufficient to have caused, or have significantly contributed to, Ms Harris’ psychiatric condition — where Dr Byth’s evidence as to the effect of more support (whatever he understood by that) in the workplace does not inspire confidence that, had support been provided to Ms Harris in the workplace, she would not have suffered the injury she suffered — where Ms Greenhalgh began work in the Department as an RCO in 1994 — where it is difficult to see that in all the circumstances it was reasonably foreseeable that Ms Greenhalgh would suffer psychiatric illness, rather than just unhappiness, a sense of injustice and stress in the workplace if support were not provided to her — where the significant distinction between her case and the cases of Ms Hayes and Ms Palmer is that she did not lose her substantive position while the investigation was carried out — where in fact she was moved to a new role which she had sought and was thus somewhat insulated from the workplace conflict — where in that respect her case also contrasts with that of Ms Harris who, because she was not moved, spent a considerable time working in stressful circumstances with those who had lodged serious complaints against her. Each appeal dismissed with costs.
The Proprietors – Rosebank GTP 3033 v Locke & Anor [2016] QCA 192 (15/5294) Philippides and Philip McMurdo JJA and Bond J 29 July 2016
General Civil Appeal — where it appropriate to deal first with an issue raised by the Bench as to this Court’s jurisdiction to hear an appeal from the Tribunal pursuant to s 108(1) of the Building Units and Group Titles Act 1980 (Qld) (BUGTA)— where that provision confers a right of appeal to “the Court” from an order made by a tribunal under s 107 on a question of law — where the term “Court” is defined by s 7 of BUGTA to mean “the Supreme Court”, with no further definition being provided as to that term — where there is no reason to read the Supreme Court of Queensland Act 1991 (Qld) as meaning anything other than the Court as constituted and defined by the 1991 Act, including the Court of Appeal — where the appellant was a residential body corporate governed by the Building Units and Group Titles Act 1980 (Qld) within the Hope Island Resort — where the appellant passed a by-law which permitted the expenditure of body corporate funds on Primary or Secondary Thoroughfare assets adjacent to the body corporate’s common property — where the appellant subsequently passed a motion approving expenditure from its sinking funds on an upgrade of land located on the Primary Thoroughfare — where a Tribunal under the Act determined the by-law and motion to be invalid — where the appellant submitted that the Tribunal erred in failing to apprehend that the appellant’s by-law making power was a valid source of the body corporate’s powers, authorities, duties and functions under the Act — where the appellant submitted that a by-law could be made under s 30(2) of the Act authorising improvements to the Primary Thoroughfare if it promoted the use or enjoyment of the lots and common property of the appellant — whether the s 30(2) by-law making power authorises the making of a by-law that is inconsistent with the Act — whether the by-law and motion are valid — where the by-law making power conferred by s 30(2) is of a broad nature, as opposed to the power conferred by s 38 which is specifically concerned with a body corporate’s power of disbursement of moneys from its funds — where s 38 is the sole source of the disbursement power under BUGTA — where as a matter of statutory construction, the general must yield to the specific — where the s 30(2) by-law making power is to be construed having regard to the disbursement power under s 38(3) in respect of administrative funds and s 38(6) in respect of sinking funds and the limitations imposed by those provisions — where the general by-law making power to make a by-law for “use and enjoyment of a lot or common property” cannot be used to confer a power on a body corporate which is broader than or contradicts the disbursement power in s 38 of BUGTA and is thereby inconsistent with s 38 of BUGTA — where it is clear that the power to effect improvements under s 37(2)(g) of BUGTA is conferred in respect of “common property” — where in its outline, the appellant frankly identifies by-law 15 as authorising the appellant to “make improvements on land adjacent to, but not part of, its common property” — where it is also apparent from the terms of the by law that the “use and enjoyment” “promoted” by the expenditure contemplated by the by law is that arising from improvements to the assets of another body corporate located “adjacent to lots of common property within the Scheme or immediately outside but adjacent to the Scheme Land” — where by-law 15 is in effect a by-law authorising expenditure on “improvements” to assets of another body corporate — where given the power to disburse money for improvements to a body corporate’s own common property is constrained by s 37 (in that either the cost of improvements may not exceed the prescribed amount, or the resolution to make improvements must be unanimous or be considered in general meeting to be essential for the health safety or security of users of the common property and approved by a referee), it is difficult to see that a wider power to expend money on improvements was contemplated for property that is not common property — where it could hardly have been the legislature’s intention that a body corporate would be conferred with a power to effect improvements to the assets of another body corporate which was broader than that conferred on it under s 37(2)(g) — where a by-law under under s 30(2) cannot extend the disbursement power beyond the limitations in s 38(3) and s 38(6) nor be inconsistent with it. Appeal dismissed with costs.
CRIMINAL APPEALS
R v Cruz [2016] QCA 183 (15/275) Margaret McMurdo P and Fraser JA and Douglas J 15 July 2016
Sentence Application — where the applicant pleaded guilty to importing a marketable quantity of a border controlled drug, cocaine, and possessing a dangerous drug, cannabis — where the applicant was a Brazilian citizen with poor English skills — where the applicant encountered difficulty communicating with his lawyers due to a language barrier — where the applicant signed an agreed statement of facts without understanding the entirety of the document — where the prosecution tendered a statement of facts at the sentencing proceeding — where it explained that, as a result of information received, Queensland police executed a warrant at the Surfers Paradise apartment of the applicant’s co-offender, SDB, in the presence of SDB and the applicant — where cocaine was located with potential street value in excess of $2.6 million — where SDB was sentenced under s 13A Penalties and Sentences Act 1992 (Qld) — where, had the applicant understood the statement of facts, he would have contested important factual matters — where the applicant’s solicitors failed to take instructions as to his role in the offending and explain how this differed from the prosecution case with the assistance of an interpreter — whether there was a miscarriage of justice — where the applicant’s contention that he thought he was bringing in a modest quantity of drugs for the use only of SDB, the applicant, and SDB’s Australian friends, seems unlikely, given that, even on his version, he was bringing in two substantial suitcases provided by SDB — where even on his version, his role in the importation warranted a stern penalty by way of general deterrence, involving a substantial period of imprisonment — where the sentencing judge particularly referred in his sentencing reasons to the fact that, according to SDB, the applicant was to be paid $50,000 for his role and moved the cocaine internally within Brazil — where the judge also found that the applicant took the suitcases to SDB’s Gold Coast apartment after importing the drugs — where it can be inferred that his Honour accepted the prosecution submission that the applicant was more than a courier — where the applicant strongly denies those matters and maintains he was no more than a courier — where his lawyers did not provide this Court with any statement of facts taken from him by way of instructions, covering highly relevant matters such as his role in Brazil before the importation and at the Gold Coast after the importation — where it was incumbent on his lawyers to carefully take instructions as to his role in the offending and to explain to him of and how that differed from the prosecution case, with the assistance of a competent Portuguese interpreter — where this did not happen — where his lawyers did not directly inform the Court of his significant physical disability arising from scoliosis — where they did not provide any medical report to support his mother’s claims or investigate how the scoliosis might impact on his time in prison — where had the judge accepted the applicant’s version of the offending which he gave to this Court he would have been sentenced to a slightly lesser term of imprisonment — where there is a real prospect that there has been a miscarriage of justice in that the applicant has been denied an opportunity to put his version of the offending before the sentencing court because of his difficulty in effectively communicating in English with his lawyers — where the matter should be remitted to the Trial Division so that these issues can be fully explored at a new sentence hearing. Application to adduce evidence granted. Application for leave to appeal against sentence is granted. Appeal allowed. Sentence imposed is set aside and the matter is remitted to the Trial Division for sentence.
R v Liu [2016] QCA 186 (16/122) Fraser and Philippides JJA and Burns J 18 July 2016
Sentence Application — where the applicant was convicted on his own plea of one count of dangerous operation of a vehicle causing death — where the applicant was sentenced to two years imprisonment, suspended after three months, and with an operational period of three years — where the applicant contended that the sentencing judge erred in adopting, on a plea of guilty, a starting point of six to eight months actual imprisonment prior to consideration of mitigation — whether the exercise of the sentencing discretion miscarried — where it is to be noted that the applicant did not contend that the head sentence was outside the proper scope of a sound exercise of a discretion — where the respondent’s contention that the applicant’s reading of the sentencing Judge’s remarks is erroneous is accepted — where nowhere in his Honour’s remarks did he state that the exercise of the discretion began from any particular starting point — where his Honour’s reference to “ordinarily” may be understood, as the respondent submitted, as highlighting that the court had made a proper consideration of and made substantial allowance for, the relevant mitigating features, as well as the early plea of guilty, to explain the justification for a suspension after only a short period of custody, that is at one eighth of the head sentence. Application for leave refused.
R v GAX [2016] QCA 189 (16/37) Margaret McMurdo P and Morrison JA and Atkinson J 22 July 2016
Appeal against Conviction — where the appellant was convicted of one count of indecently dealing with a child under the age of 16 years who was his lineal descendant — where the complainant gave evidence that the appellant, her father, lay in bed with her and that his fingers were down near where her underwear was supposed to be — where the complainant’s mother and sister also gave evidence of finding the appellant in bed with the complainant — where the mother had made a notation on the calendar on the following day to mark the date on which the incident occurred — where there were some inconsistencies between the accounts of the complainant, the mother and the sister — whether, considering the whole of the evidence, it was open to the jury to conclude beyond reasonable doubt that the appellant was guilty of the offence — where the conviction on count three can be accounted for by the fact that the complainant’s mother and sister found the appellant in a compromising position with the complainant in bed, with the covers over them, and the complainant’s underpants down — where the relatively minor inconsistencies between their versions of events rather tends to suggest that they did not collude and that they were, nevertheless, describing the same occasion — where the evidence given by the mother that she had made an asterisk on the calendar on the following day to mark the date when she had caught the appellant sexually abusing their daughter was capable of acceptance by the jury and added credibility and reliability to the complainant’s evidence in relation to count three — where the appellant was acquitted of two similar charges — where the complainant’s evidence on these charges was vague and uncertain and not supported by any corroborating evidence of other witnesses — whether the verdict of guilty was inconsistent with the two verdicts of not guilty — where the difference in the strength of evidence on count three readily accounts for the difference in the verdicts — where the different verdicts tend to suggest that the jury faithfully followed the careful instructions given to them by the trial judge to consider each count separately — where the different quality of the evidence for count three and the support given by the evidence of two other witnesses provides a rational basis for convicting on count three notwithstanding the acquittal on the other two counts — where it also shows that the verdict of the jury should not be set aside on the ground that it was unreasonable or could not be supported having regard to the evidence. Appeal against conviction dismissed.
