Court of Appeal Judgment Summary Notes

CIVIL APPEALS

Chief Executive, Department Tourism, Fair Trading and Wine Industry Development v 4 Play (Oz) P/L [2008] QCA 267 Fraser JA Mackenzie AJA Dutney J 5/09/2008

Application for Leave to Appeal from the District Court — Licensing Authority — Respondent held a general licence under the Liquor Act 1992 (Qld) and an “adult entertainment permit” under which it was authorised to provide entertainment of an explicit sexual nature — Permit expired in July 2007 and the respondent applied for a new permit with its nominee a Mr Johnson, the respondent’s sole shareholder and director — Appellant refused the respondent’s application on the grounds that the respondent was not a suitable person — Respondent appealed to the Commercial and Consumer Tribunal which found that the applicant had erred in taking into account irrelevant criteria involving the manner in which the respondent had conducted its financial and taxation affairs and found the respondent was a suitable person — Appeal to the District Court was dismissed — On Appeal — Material that revealed whether or not an applicant has a responsible attitude to the management and discharge of its financial obligations may bear upon the suitability of a person to hold an adult entertainment permit, as such material would demonstrate that a substantial risk that the applicant would not remain viable for the period of the permit sought by that applicant, and in addition it otherwise concerns an applicant’s character integrity, honesty or reputation — Matters of the kind such as whether Mr Johnson’s (the respondent’s sole shareholder and director) companies were responsible corporate citizens or not or whether there Mr Johnson could be characterised fairly as a “serial liquidator of companies”, or whether there was a real risk that a company associated with Mr Johnson “may also inevitably fail to be financially viable” were capable of bearing upon the question whether the applicant is a suitable person to provide adult entertainment in the context of the regulatory scheme — HELD: Leave to appeal granted, appeal allowed, matter remitted tot he Commercial and Consumer Tribunal to be heard and determined in accordance with law.

McIntosh & Anor as T’ees of the Estate of Camm (A Bankrupt) v Linke Nominees P/L & Anor [2008] QCA 275 Muir JA Cullinane J Douglas J 12/09/2008

Appeal from the Supreme Court — Contracts — Appellant was the holder of the majority of shares and a director of the company Linke Nominees Pty Ltd — Respondents were the trustees in bankruptcy of one Gary Camm — Deed had been negotiated between the bankrupt and the Company under which the former had purported to sell a parcel of land to the latter — Deed had been executed by the appellant on his own behalf and purportedly on behalf of the company — Deed required the appellant to hold “the Trustees harmless against any failure by the Company to pay the settlement sum” which had been defined in the Deed as “…the sum equal to 50% of the value of the property as determined by the registered valuer.” — The respondents succeeded in the Supreme Court in their claim against the appellant for the sum of $500,000 (plus interest) owing under the deed and for breach of warranty of authority — On Appeal — Not in dispute that the appellant was in breach of the warranty of authority — No evidence before the primary judge and no evidence before the Court of Appeal which would enable the respondent’s prospects of success or the value of the land to be determined — Absent a determination of the value of the property by the registered valuer there could be no “settlement sum” — The obligation of the appellant depended on the existence of a primary obligation on the part of the Company which was not enforceable — The indemnity did not operate as the Company had no obligation to pay the “settlement sum” and there was thus no “failure” to pay it – HELD: Appeal allowed, orders set aside with costs.

Fitzgerald v Hill & Ors [2008] QCA 283 McMurdo P Holmes JA Mackenzie AJA 16/09/2008

Appeal from the Supreme Court — Torts — Negligence — Fitzgerald was injured in 1989 when struck by a vehicle while running with the members of a Rhee Tae Kwon Do class – Ivanov (the applicant/appellant) admitted in his pleadings to owning and operating the academy — At trial the judge found that Fitzgerald was entitled to rely on Ivanov’s breach of a non-delegable duty as the person responsible for the conduct of the class in which Sean was enrolled — On Appeal — Ivanov sought an extension of time in which to appeal an interlocutory order of the trial judge dismissing an application for the withdrawal of the admission — Only explanation for substantial delay in seeking to appeal the order was that the matter was an interlocutory one — Does not justify the delay of almost nine months — Non-delegable duty of care is a special duty to ensure that reasonable care is taken for the safety of those to whom it is owed — It is not vicarious but is a personal duty, breach of which requires fault — Fitzgerald was an eight year old boy — His relationship with Ivanov as owner of the academy was one of vulnerability on Fitzgerald’s part — Ivanov undertook Fitzgerald’s care, supervision or control whilst at the academy and particpating in the academy’s activities — Relationship between the student and the owner/operator of the academy gave rise to a non-delegable duty of care — Duty was breached by failing to ensure that reasonable care was taken in the performance of activities involved in the tae kwon do classes — HELD: Application and Appeal dismissed.

Jansen v Frexbury P/L [2008] QCA 286 McMurdo P Cullinane J Jones J 19/09/2008

Appeal from the Supreme Court — Contract — Frexbury (the appellant) agreed to sell to Jansen a residential unit it was building on Hamilton Island — Assignment was conditional on a new sublease being registered under the Land Act 1994 (Qld) within 36 months from the date of the agreement, that is by 17 August 2007 — Ministerial consent for the sublease was received on or about 15 August 2007 with the sublease being lodged for registration on 16 August 2007 — Sublease was not entered on the Department of Natural Resources & Mines register until 27 August 2007 — On 17 August 2007 Frexbury purported to terminate the agreement for non-compliance by facsimile — At trial the primary judge found that the new sublease was registered on the date it was lodged, 16 August 2007 — On Appeal — The legislation expressly provides in s 299 that a document is registered when the particulars are recorded in the relevant register — HELD: Appeal allowed; judgment below set aside, declare that the appellant by notice of 20 August 2007 had lawfully terminated the agreement entered into plus costs.

Legal Services Commissioner v Voll [2008] QCA 293 Keane JA Wilson J Dutney J 26/09/2008

Appeal from the Legal Practice Tribunal — Professions and Trades — Lawyers — Appellant (LSC) had taken disciplinary action against the respondent (Voll) in the Legal Practice Tribunal (LPT) which found him guilty of professional misconduct and ordered him publicly reprimanded, imposed a penalty of $20,000 plus costs — The complaint had arisen out of a hearing before the Queensland Building Tribunal — LSC brought an appeal against this decision seeking to have the practitioner’s name removed from the local roll — LPT observed that the practitioner did not willingly co-operate with the investigation and the investigator had to resort to statutory notices — LPT found that the respondent dishonestly misled the QBT but that there was no potential benefit to him personally in doing so — LPT found the charges proved and the respondent’s conduct amounted to professional misconduct — On Appeal — The respondent’s dereliction did not approach the seriousness of the misconduct which led to the striking off in Wright (four counts of deliberately misleading the court and one count of attempting to suborn a witness into swearing a false affidavit) and Wakeling (knowingly misleading the court) — The LPT’s rejection of an aspect of the respondent’s evidence and the respondent’s conduct in relation to this appeal may warrant further investigation by the appellant – There may be grounds for charges based on deliberately lying to the LPT, lack of the irreducible minimum of competence to be held out as an officer of the Court, and deliberately lying to this Court — HELD: Appeal dismissed with costs.

CRIMINAL APPEALS

R v JO [2008] QCA 260 Holmes JA Mackenzie AJA Douglas J 5/09/2008

Application from the Childrens Court — Applicant sought leave to appeal against sentence — Proceeded as a plea of guilty for sexual assault while armed — Offence was against his 17 year old sister who woke to find the applicant with a knife in his right hand, making threats against her — Applicant was 13 years of age at the time of offending and 14 at sentencing — Ordered to undergo three years probation with additional conditions and a conviction was recorded — Crown did not make any argument for the recording of the conviction — Sentencing judge observed that the present offence was both of a serious kind, and a serious example of such an offence; it was deliberate, pre-planned and involved a weapon — On Appeal — Evidence of pre-planning was limited to the applicant’s having taken up of the knife — The assault lay in the threat, not the carrying out, of a sexual act; G was touched only on the shoulders and was not physically harmed — Importance of rehabilitation was a strong consideration in the applicant’s favour and he indicated his willingness to engage in therapeutic counselling — HELD: Leave granted, allow the appeal and set aside the order recording the conviction.

R v SBH [2008] QCA 264 Holmes JA Fraser JA Daubney J 5/09/2008

Appeal from the District Court — Appellant convicted of one count of maintaining a sexual relationship with a child, and three counts of rape (E, his daughter born in 1996) — Conviction depended on acceptance of E;s evidence since the evidence of J (her brother) was very unreliable — Crucial that the evidence of E and J be thoroughly tested — On Appeal — Appellant’s solicitors did not at any time sit down and go through the witness statements with him — The appellant was not provided with the children’s allegations and could not give instructions in any detail — Failure to provide a brief of evidence to the appellant or in any other way to take instructions on the specific allegations made against him by his children has resulted in a miscarriage of justice — Observation that given the inadequacy of the transcripts, that the appellant should personally be given access to the tapes of the s 93A interviews and the pre-recorded evidence — HELD: Appeal against conviction allowed, convictions and verdicts set aside and a new trial ordered.

R v PAH [2008] QCA 265 Fraser JA Mackenzie AJA Douglas J 5/09/2008

Appeal from the District Court — Appellant convicted of one count of rape of her daughter during the months of November 2005 to February 2006 — On Appeal — Where the complainant child gave contradictory accounts of when the offence occurred and what it consisted of — Concessions in cross-examination of the child in the pre-recorded evidence that she could have been dreaming and that she could not be sure it was her mother who came into the room — Matters taken together raise a not insubstantial concern about the sufficiency and quality of the evidence to support a conviction — HELD: Appeal against sentence allowed, conviction quashed and verdict of acquittal entered.

R v Beattie [2008] QCA 299 Holmes JA Wilson J Dutney J 30/09/2008

Appeal from the District Court — Appeal against conviction — Appellant was convicted of attempted indecent dealing with an intellectually impaired person (S) — S’s mother, Ms T, pleaded guilty to six charges based on the same events and gave evidence at the appellant’s trial — Juror made comments in court that “we will pay the favour back” — Trial judge did not give the jury any instruction as to what constituted attempt for count 1 (attempted indecent dealing) — Evidence in the form of reference to drug use was inadvertently placed before the jury — The trial judge advised the jury to take particular care with S’s evidence in light of her intellectual impairment and reminded the jury of counsel’s submissions – On Appeal — Trial judge right to regard the juror’s comment at trivial — Was not a comment which could have caused a fair-minded observer a reasonable apprehension that the juror would not discharge his task impartially — Direction as to the elements of attempt was a necessary one; in light of the omission to give it, the conviction on count 1 cannot stand — Evidence of drug use was prejudicial, suggesting that the appellant not only took drugs but offered them to an intellectually impaired minor — The learned judge ought to have brought the specific matters of concern to the jury’s attention in warning them about the need closely to scrutinise S’s testimony before relying on it to convict — The placing of inadmissable and prejudicial material before the jury and the failure to give a warning to the jury of the need to scrutinise S’s evidence with great care resulted in a miscarriage of justice — HELD: Convictions set aside and new trial ordered.