Court of Appeal Judgment Summary Notes

CIVIL APPEALS

Mortimer v Lusink & Ors [2017] QCA 001 (16/6284) Gotterson and Morrison JJA and Jackson J 31 January 2017

General Civil Appeal — where the appellant, the testator’s daughter, was refused an application for an extension of time within which to apply for provision from the estate — where it is alleged on appeal that the primary judge reached his conclusions by the application of principles or considerations applicable to the grant of final relief, rather than those applicable to the exercise of the discretion under s 41(8) of the Succession Act 1981 (Qld) (SA) — where it is further alleged that the primary judge made factual errors arising from misapprehensions of the evidence — where the primary judge relied on a principle that it was necessary for an applicant to establish an entitlement to final relief, instead of whether or not an applicant has established an arguable case for final relief — where it was relevant for the learned primary judge to have enquired into whether the appellant’s claim was one that was clearly unlikely to succeed or was one that would probably fail — where it was noteworthy that in other jurisdictions, intermediate courts of appeal have held that under the comparable statutory provision, the relevant enquiry is as to whether or not an arguable case has been made out by the applicant for relief — where his Honour did not, however, undertake such an enquiry — where his Honour did not address the issue whether the appellant’s case was clearly unlikely to succeed, nor did he enquire into whether it would probably fail — where his Honour expressed no view as to whether there was an arguable case — where in undertaking the assessment that he did make, his Honour appears to have conflated the concept of a substantial case for relief under s 41(8) SA with the concept of a prima facie case for a substantial award by way of final relief — where the evidential factors leads irresistibly to a conclusion that the financial resources available to the appellant are insufficient to meet her needs now and into the future — where in all the circumstances, the discretion under s 41(8) SA ought to be exercised in the appellant’s favour — where at the hearing of the appeal, the parties were in agreement as to the form of the orders that ought be made by this Court in the event that the appeal is allowed. Appeal allowed. The orders of the Supreme Court be set aside an lieu thereof it is ordered that a. It is directed that the applicant’s application for provision out of the deceased’s estate shall be heard notwithstanding that such application was instituted within nine months after the death of the deceased; b. By consent, all amounts received by the second, third and fourth respondents from the first respondent, less any amounts paid by them for reasonable legal fees and expenses incurred in responding to this proceeding, shall be repaid to the first respondent forthwith and be held by him as executor of the executor of the estate of the deceased pending the determination of the applicant’s application for provision out of the estate of the deceased; c. By consent the proceedings are discontinued as against the second, third and fourth respondents upon such payment. Procedural orders. The first respondent pay the appellant’s costs of the appeal, including the application to adduce further evidence, and her costs of the application below. The first respondent be granted a certificate under s 15 of the Appeal Costs Fund Act 1973 (Qld) including for his own costs of the appeal

Chandra v Queensland Building and Construction Commission [2017] QCA 004 (16/2885) Margaret McMurdo P and Fraser JA and Daubney J 3 February 2017

Application for Leave Queensland Civil and Administrative Tribunal Act — where the respondent had previously made findings of unsatisfactory conduct against the applicant — where the respondent determined that the applicant had also engaged in professional misconduct because of his repeated unsatisfactory conduct — where the Queensland Civil and Administrative Tribunal ordered that the applicant’s licence as a building certifier under the Building Act 1975 (Qld) be cancelled — where the Tribunal ordered that the applicant never be re-licensed and imposed a pecuniary penalty — where the applicant appealed against the decision that he never be re-licensed and challenged the pecuniary penalty — where the Appeal Tribunal affirmed the decision but vacated the pecuniary penalty order — where the Tribunal did not find that a less severe, available order would not provide sufficient and appropriate protection for the public — where the Tribunal’s concluding statement in paragraph 64 was instead that “the best protection for the public in this case is that Mr Chandra never be allowed to hold a licence again” — where the Tribunal did not apply the correct test — where in every case of professional misconduct it might be said that a permanent ban supplies the best protection for the public, but that is not a justification for a permanent ban where a less severe order is appropriate to meet the legislative purposes — where authorities suggest that a permanent ban should not have been imposed in this case unless the Tribunal was satisfied that the licensee was probably permanently unfit to hold the licence — where the Tribunal made no such finding — where a less severe order of the kind proposed by the applicant – an order that precluded the applicant from applying to be re-licensed for a specified period of time determined by the Tribunal, thereafter leaving it to the respondent to decide if the applicant then satisfied the statutory criteria for holding a licence – would appear to sufficiently and appropriately protect the public against the risk of further misconduct by the applicant — where the judicial member concluded instead that the applicant’s “own failure to propose an equally effective but less onerous available option” indicated that “there realistically isn’t one” and that his failure was “also indicative of an inability to come to grips with the magnitude of the risk he poses now and in the foreseeable future” — where those conclusions did not explain why an order along the lines proposed in the applicant’s extensive submissions was not appropriate and sufficient to protect the public — where the judicial member also observed that, in the absence of “some evidence of positive and lasting change or sign of reasonable prospects of, or even a genuine willingness to accept and reduce the risks proposed by, his professional shortcomings, the Tribunal was entitled to take a “better safe than sorry” approach” — where that observation affirmed the Tribunal’s erroneous approach of adopting the most severe penalty without explaining why a less severe penalty would not provide the required protection of the public — where the Tribunal’s findings engender a reasonable concern about the applicant’s suitability to hold the licence but they do not establish that he was unlikely ever to rehabilitate himself — where in these circumstances, whilst the seriousness and repetition of the applicant’s conduct merited a severe sanction, including deprivation of the licence for a substantial period, to further the dominant legislative purpose of protecting the public, it was not open to impose a permanent ban for the subject conduct — where absent a finding that it was likely that the applicant would remain unfit to be licensed for the rest of his working life, the protection of the public could be secured by a severe sanction, falling short of a permanent ban, that precluded the applicant from applying to be re-licensed for a substantial period, when he would be required to satisfy the respondent that he was then a suitable person to be licensed — where the respondent applied for leave to cross-appeal against the Appeal Tribunal’s decision to vacate the pecuniary penalty order — whether it was open to the Appeal Tribunal to set aside the Tribunal decision imposing the pecuniary penalty — where those reasons depend in part upon the effect of the permanent ban which has been overturned — where the judicial member clearly found that as a result of the order that the applicant must never be re-licensed by the respondent, the applicant had lost his livelihood, and that this occurred at a time “when his employability in another field must be problematic” — where there was no finding to that effect made by the Tribunal — where there was no evidence that the applicant had lost his livelihood or that his employability in another field was problematic — where the parties’ submissions in the Appeal Tribunal were to the contrary effect — where there were no facts found by the Tribunal or agreed between the parties that could justify the inference drawn by the judicial member — where leave to appeal should be given because the Appeal Tribunal’s order vacating the penalty involved an error of law and the public interest is served by the restoration of the order imposing the penalty. In relation to the application for leave to appeal by Chandra: Leave granted. Appeal allowed. Set aside Order 1 of the Appeal Tribunal and instead it is ordered that Suresh Chandra is not permitted to apply to be licensed or re-licensed by Queensland Building and Construction Commission (QBCC) before 21 November 2018. Costs. In relation to the application for leave by the QBCC: Leave granted. Appeal allowed. Set aside Order 2 of the Appeal Tribunal. Costs

Ure v Robertson [2017] QCA 020 ; [2017] 10 QLR (16/10555) Gotterson and Morrison JJA and Bond J 28 February 2017

General Civil Appeal — where the appellant filed a claim in March 2007 and the respondent filed a counterclaim in September 2010 — where the appellant provided a list of documents in March 2015 without obtaining an order of the Court — where r 389 of the Uniform Civil Procedure Rules 1999 (Qld) (UCPR) provided that if no step was taken in a proceeding for two years, a new step could not be taken without an order of the Court — where r 371(2)(d) of the UCPR empowered the Court to declare a step taken in breach of the UCPR to be effectual — where it is common ground that by 20 March 2015 no step had been taken in relation to either the claim or the counterclaim for more than two years — where by that date r 389(2) of the UCPR therefore operated in relation to all parties to the proceeding and prevented them from taking a new step without obtaining an order of the Court — where on 20 March 2015, the solicitors for Mrs Ure and the other defendants by counterclaim provided a list of documents on behalf of the second and third defendants by counterclaim — where they took that step without obtaining an order of the Court as they were required to do by r 389(2) — where the respondent applied for an order dismissing the claim for want of prosecution and declaring ineffectual the delivery of the list of documents — where the primary judge dismissed the claim and counterclaim for want of prosecution — whether the delivery of the list of documents constituted a step having been taken within the meaning of r 389(2) UCPR — where the evident intention of r 389 UCPR is that a stay should be imposed on proceedings in certain circumstances and to require any person who seeks to lift the stay to approach the Court to seek an order — where the policy is to ensure that proceedings which are significantly delayed come to the attention of the Court so that they can be dealt with appropriately: see Thompson v Kirk [1995] 1 Qd R 463 — where the construction of r 389 for which the appellant contends would defeat that intention — where the proper construction of r 389(2) is that the “last step” contemplated must be the last effectual step, namely a step which was effectual because it was regular when taken, or a step which, although irregular when taken, has since been declared to be effectual under the rules — where if the Court is approached by a party seeking to re-enliven proceedings after two years have passed before the step is taken the appropriate order, assuming the Court is persuaded to exercise its discretion, would be an order pursuant to r 389(2) authorising the step to be taken — where if the step has already been taken in breach of r 389(2) then the appropriate order would be an order under r 371(2)(d) declaring the step to be effectual, perhaps together with an order nunc pro tunc under r 389(2) permitting the step to be taken — where this approach treats the step as irregular but not effectual — where r 371(1) does not make regular that which is irregular — where that depends upon the exercise of the discretions authorised by r 371(2) — where it follows that the learned primary judge made no error when he concluded that the proceeding was to be regarded as having been stayed by operation of r 389(2), notwithstanding the fact that the list of documents was served on 20 March 2015 — where the appellant suggests the learned primary judge erred in not finding, and attributing significance to, the fact that the delay in the prosecution of the claim was stalled and frustrated by the respondent — where there is no merit in this complaint — where the primary judge did not mistake the facts — whether the discretion of the primary judge miscarried. Appeal dismissed with costs.

CRIMINAL APPEALS

R v MCJ [2017] QCA 011 (16/63) Margaret McMurdo P and Gotterson JA and Henry J 10 February 2017

Appeal against Conviction — where the appellant was charged on a 13 count indictment with one count of maintaining a sexual relationship with a child with a circumstance of aggravation, three counts of indecent treatment of a child under 12 in his care, five counts of indecent treatment of a child under 12 and four counts of rape — where the appellant contended that the judge failed to adequately give a direction in terms of Robinson v The Queen (1999) 197 CLR 162 — whether there was a misdirection or non-direction — where the circumstances relied on by the appellant in some instances are entirely lacking in substance and the balance, at worst, give rise to potential arguments about credibility and reliability — where even considered collectively they do not give rise to a perceptible risk of a miscarriage of justice so as to have required reference to them in the warning which was in fact given in this case — where a note the complainant had written was an exhibit at trial — where the appellant submits the jury was not properly directed as to how it could use the evidence of the note — whether the jury was properly directed — where it would have been difficult for the jury to comprehend the distinction between them having regard to “the tenor of the note” but not using the note’s content “as evidence that any particular thing had happened between” the appellant and complainant — where it is unnecessary to resolve whether it was permissible for the jury to use the evidence about the note and its content as circumstantial evidence in proof of the alleged sexual relationship between the appellant and complainant — where there was another legitimate pathway for the admission into evidence and the use of the note in such a way — where that pathway was s 93A of the Evidence Act 1977 (Qld) — where regrettably that provision was not referred to the learned trial judge — where had it been, his Honour would likely have given a less obscure direction, unconcerned by the vague parameters of the above discussed common law principles — where the note was admissible as evidence of that fact pursuant to s 93A and the jury was entitled to use its content as tending to establish that fact — where the direction in dispute has had to be considered on the basis the jury may have regarded it as allowing the evidence about the note to be used as circumstantial evidence in proof of the alleged sexual relationship between the appellant and complainant — while that use was permissible the dilemma remains that the direction said so little about the parameters of such a use — where a significant omission was the absence of explanation of circumstantial reasoning apposite to the use of the note — where accepting it was permissible for the jury to use the evidence about the note as tending to establish there had been a relationship involving sexual behaviour, the evidence only tended to establish that fact as a matter of inference, that is, as circumstantial evidence — where the only direction given of relevance to circumstantial evidence was a standard direction in the introductory phase of the summing up dealing with the drawing of inferences — where this was not a case requiring a special direction of the kind apt to a case based substantially on circumstantial evidence, however, it at least required an explanation of the need to be satisfied the note’s reference to “the things we do” was to physical sexual interaction between the appellant and complainant and to exclude the possibility it was a reference to some lesser form of interaction, such as the showing of pornography or discussions about sexual topics such as dildos — where such a direction would have explained those examples of lesser interaction arose from the evidence, in that the complainant told her mother the note was a reference to the showing of pornography and the appellant told his wife he and the complainant had discussions including about a dildo — where it is reasonably possible the jury regarded the note as tending to confirm the complainant’s account that the appellant had maintained a sexual relationship with her — where unfortunately the real risk which cannot be discounted here is that the jury may have used the note as evidence tending to prove the sexual relationship between the appellant and complainant as alleged by the prosecution without reaching a specific view as to whether the note’s reference to “the things we do” was to physical sexual behaviour or something less than that — where the jury may not have appreciated if it was possibly the latter then the note could not be used as evidence in proof of the charge of maintaining a sexual relationship with a child — where it is reasonably possible that the failure to direct of the need to be satisfied the note’s reference to “the things we do” was to physical sexual interaction between the appellant and complainant, and not some lesser conduct, may have resulted in the impermissible use of the note in a way which affected the verdicts — whether a miscarriage of justice occurred. Appeal allowed. Convictions on counts 1, 2, 3, 4, 5, 6, 7, 9, 10, 11, 12, 13 and 15 of the indictment be quashed. The appellant be retried upon those counts on the indictment.

R v HBO [2017] QCA 018 (16/79) Fraser and Philip McMurdo JJA and Mullins J 24 February 2017

Appeal against Conviction — where the appellant was convicted of seven counts of sexual offending against his stepdaughter — where the most serious offence was an attempted rape for which he was sentenced to four and a half years’ imprisonment — where the offences were allegedly committed in certain broadly defined periods, the earliest commencing in 1989 and the latest ending in 1994 — where there is no issue that a Longman direction (Longman v The Queen (1989) 168 CLR 79) was required in the present case — where the trial judge was obliged to inform the jury that the delay in the making of the complaint had disadvantaged the defendant because the evidence of the complainant could not be adequately challenged, either by cross examination or by contradictory evidence, after the passage of about 25 years — where having identified those effects of the delay on the fairness of the trial, the trial judge was required to warn of the danger in convicting in this case without the jury scrutinising the complainant’s testimony with great care and considering the circumstances which were relevant to that evaluation of her testimony — where what was said in that respect could not be criticised — where the question is whether a warning in those general terms was sufficient in the present case because of a risk that, unassisted by the trial judge’s instruction as to what were those circumstances, the jury might convict without that required scrutiny of the evidence — where the jury was bound to follow the trial judge’s instructions and, in particular, to heed the warning within this instruction about the complainant’s testimony — where unless “the circumstances relevant to its evaluation” must have been plain to the jury, the warning could have been sufficient only if those circumstances were identified by the trial judge — where this was not a case where the circumstances relevant to the evaluation of that testimony were so obvious that they could not be overlooked — where the relevant circumstances were the passage of 20 to 25 years from the alleged events, the young age of the complainant at the time, the absence of any complaint notwithstanding the complainant’s close relationship with her mother and twin brother, the circumstance that many of the events were said to have occurred as she slept or after she had awoken, the antipathy of the complainant towards the appellant from his having been unfaithful to her mother, the coincidence of the timing of her learning of that fact and her complaint to police and the complainant’s explanation for going to the police when she did — where without those circumstances being identified by the trial judge as necessary considerations, what was said was insufficient to instruct the jury of the required scrutiny of the complainant’s testimony. Appeal allowed. Appellant’s convictions of 11 March 2016 quashed. Retrial ordered.