Court of Appeal Judgment Summary Notes

CIVIL APPEALS

The Thistle Company of Australia Pty Ltd v Bretz [2018] QCA 006; [2018] 7 QLR (17/4532) Gotterson and Philippides JJA and Bond J 9 February 2018

Application for Leave s 118 DCA (Civil) – where the first respondent sustained injuries at a petrol station owned and operated by the applicant – where the first respondent had filled his car with petrol and tripped over the plinth of a petrol bowser as he was walking to the pay stations – where the plinth of the bowser was constructed at right angles and was painted the same colour black as the surrounding tarmac – where the trial judge made findings that management had identified that the camouflaged plinth was an obvious tripping hazard – where the trial judge held that the risk was not an obvious one – whether the trial judge’s findings as to whether the risk was obvious were inconsistent – when regard is had to the entirety of the paragraphs, it is evident that, contrary to the applicant’s contention, there is no inconsistency in the trial judge’s reasoning – whether the trial judge erred in introducing an impermissibly subjective test as to whether the risk was obvious to a person in the position of the first respondent – whether the plinth was a risk that would have been obvious to a reasonable person in the first respondent’s position such that there was no duty on the part to warn the first respondent of the risk – where the relevant inquiry was whether the risk “in the circumstances, would have been obvious to a reasonable person”, being the test in s 13 of the Civil Liability Act 2003 (Qld) – where her Honour’s finding that the risk was not “obvious” to a reasonable person in the position of Mr Bretz, was made in the context of findings as to the shallow nature of the plinth’s protrusion (some 37 to 39 millimetres) which extended beyond the body of the bowser, that it was an unusual feature of the site and that it had been painted black from its original colour of yellow, the same colour as the adjacent tarmac, resulting in a “colour homogeneity of the stepped levels” – where her Honour concluded that, in those circumstances, the repainting “camouflaged” the plinth and, given Mr Bretz’s limited experience of the site, the plinth was not an obvious risk “for him” – where the use of the words “for him” read in context does not indicate the introduction of an impermissible element of subjectivity into the test under s 13 of the Act – where the trial judge found that the risk of tripping on the petrol bowser plinth when it was painted black was not insignificant on the basis of inferences that other patrons had stumbled or tripped on it – where there was a lack of incident reports detailing prior tripping incidents – where there were observable marks caused to the plinth and pedestrians were likely to inadvertently interact with the plinth when it was painted black – where the occupier had knowledge of the situation and considered that there was a need to report and discuss it – where the applicant submitted that the trial judge erred by failing to consider that the nature of the risk prospectively rather than with the benefit of hindsight – whether the risk of tripping was not insignificant such that there was a breach of the applicant’s duty – where although not determinative, an occupier’s knowledge of a situation sufficiently risky to warrant a need to report and discuss it, is a persuasive factor in concluding that the risk was not insignificant – where the trial judge’s inferential finding that, once the plinth was painted black, other patrons had stumbled or tripped on it, was open on the evidence that was considered by her Honour – where the applicant contended that the first respondent was contributorily negligent in failing to watch where he was walking when he tripped on the plinth – where the first respondent stated in cross-examination that he was not watching where he was walking – whether the trial judge erred in finding that the first respondent had not been negligent – whether the conduct of the first respondent amounted to mere inadvertence, inattention or misjudgement or to negligence on his part – where the trial judge referred to the evidence of Mr Bretz of looking at his feet as he moved towards the shop and, as observed in Astley v Austrust Ltd (1999) 197 CLR 1, the question for the trial judge was whether Mr Bretz did not, in his own interest, take reasonable care of himself and contributed, by his want of care, to his own injury – where that involved a consideration of whether his conduct “amounted to mere inadvertence, inattention or misjudgment, or to negligence rendering him responsible in part for the damage”: Bankstown Foundry Pty Ltd v Braistina (1986) 160 CLR 301 – where the trial judge’s finding that Mr Bretz’s inattention fell into the former category was entirely open on her Honour’s consideration of the evidence, which included the location of the bowser, hoses and vehicle and the necessary navigation of those elements and the plinth – where the primary judge awarded the first respondent general damages, special damages and an additional sum for past and future gratuitous care – where the special damages and damages for past and future gratuitous care related to the first respondent’s shoulder surgery – where the first respondent had suffered from a degenerative shoulder injury but had previously decided not to undergo surgery because of the attendant risks – where the applicant submitted that the trial judge erred in finding that the first respondent’s decision to undergo the surgery was causally related to his fall at the applicant’s petrol station – whether the first respondent would have pursued the surgery but for the fall – whether the first respondent was entitled to special damages or damages for past and future gratuitous care in relation to his shoulder surgery – where the uncontested medical records, together with the evidence of Mr Bretz and Dr Shaw, were capable of supporting the trial judge’s finding that there was a worsening of the state of Mr Bretz’s shoulder after his fall that was causally linked to Mr Bretz’s decision to undergo the surgery – where in particular, there was evidence that, while Mr Bretz chose not to have surgery before the accident given the attendant associated risk, the increased pain experienced after the incident meant, as the trial judge found, that the risk was worth taking to alleviate the pain – where the trial judge was entitled to consider that the test for causation set out in s 11(1)(a) of the Act had been met – where at first instance the applicant made a third party claim against the second respondent – where the second respondent had provided design, engineering and construction supervision to the applicant during the renovation – where each of the contracts between the applicant and the second respondent contained an exclusion clause that stated that the second respondent would be discharged from liability after the expiration of one year from the date of the final invoice – where the applicant contended that the exclusion clause was inapplicable as there was no evidence that a final invoice had been issued – where the invoice of 31 January 2010 referred to “final” certificates being held pending finalisation and completion of outstanding accounts, provided abundant evidence for her Honour’s finding that the invoice of 31 January 2010 was the invoice in respect of the final amount claimed – where there is no basis for the impeaching of the trial judge’s process of reasoning in inferring that the final invoice was issued “some years ago” – where the applicant contended that the contractual exemption of liability did not occur because the work required to be performed was carried out other than under the contract – whether the trial judge was correct to dismiss the third party claim against the second respondent on the basis that the exclusion clause was effective in excluding liability – where there is no substance in this argument – where in the present case, whether framed as a breach of contract or as tortious negligence, the applicant’s complaint was clearly “in respect of the services” that had been contracted. Application for leave to appeal refused with costs.

Amos v Brisbane City Council [2018] QCA 011; [2018] 9 QLR (16/7247) Fraser and Philippides JJA and Dalton J 20 February 2018

General Civil Appeal – where the respondent brought an action to recover overdue rates and charges – where the rates and charges were a charge on the land – whether the primary judge erred in holding that the 12 year limitation in s 26(1) Limitation of Actions Act 1974 (Qld) (LAA) applied to the exclusion of the six year limitation period in s 10(1)(d) and s 26(5) – where s 10 of the LAA provides that neither actions founded on simple contract, nor actions to recover sums recoverable by virtue of an enactment, may be brought after the expiration of six years from the date on which the cause of action arose – where then at s 26(1) of the Queensland limitation statute, it is provided that an action to recover “a principal sum of money secured by a mortgage or other charge on property” shall not be brought after the expiration of 12 years from the date on which the right to receive the money accrued – where reg 66(1) of the City of Brisbane (Finance, Plans and Reporting) Regulation 2010 provides that the respondent Council may recover overdue rates or charges by Court proceedings for debt – where the Council’s proceeding against Mr Amos clearly fell within this description, and also within the description at s 10(1)(d) of the LAA, that is, the proceeding was to recover sums (rates, charges and interest) recoverable by virtue of enactment – where no case has been found deciding the question of whether it is s 10 or s 26 (or their analogues in other jurisdictions) which applies when action is taken to recover a sum owing by virtue of a statute in circumstances where that sum is secured by a charge on real property – where there are however several cases and a well-established position in the textbooks dealing with the closely analogous situation of an action for monies secured by a mortgage – where such an action is based upon the mortgagor’s promise to repay – where this promise is contained in a deed, it is unlikely that any limitation question will arise, for the limitation period for actions based on a deed, is usually the same as the limitation period for actions brought to recover a principal sum of money secured by mortgage or charge – where there are cases where the promise to pay is not made by deed – where all the case authority, and all the textbooks that have been able to be found on this point, are to the effect that the limitation period is six years – the action is one treated as founded on simple contract or quasi-contract within an analogue to s 10(1)(a) of the LAA – where the point at issue is to be resolved by looking to the purpose of the limitation provisions in issue – where the provisions do not permit action within a certain time limit; they prohibit the bringing of an action after a certain time has passed – where at a point six years after the right to recover the statutory sum accrued, s 10(1)(d) gave the appellant a good defence to any action which the Council then began – where the service was provided to a structure – where the primary judge found the appellant implicitly asked for the service to be provided – whether the primary judge erred in finding the appellant liable for utility charges levied by the respondent on rateable land owned by the appellant – where the appellant has not established any basis for overturning the primary judge’s finding of fact that the appellant implicitly asked the Council to supply the relevant services – where no reason appears to construe s 59(1)(b) City of Brisbane (Finance, Plans and Reporting) Regulation 2010 as requiring a formal or express request to the exclusion of an implicit request. Allow the appeal. Set aside the orders made in the Queensland Supreme Court on 20 June 2016. Judgment for the respondent in accordance with minutes of judgment produced by the parties to the Registrar. The respondent is to pay the appellant’s costs of the appeal.

Morphett v Rivergate Marina & Shipyard Pty Ltd [2018] QCA 015 (17/6425) Sofronoff P, Morrison JA and Jackson J 23 February 2018

Application for Leave s 118 DCA (Civil) – where the respondent operates a marina and shipyard on the Brisbane River – where in late 2010, a wooden hulled motor cabin cruiser, the “C Princess” (“the boat”) came into the shipyard and work was done on it by various subcontractors for the respondent to perform work that was done by the respondent for the applicant under a written agreement – where not all of the work was paid for – where from September 2011, the respondent refused to release the boat from the marina until the unpaid amounts were paid – where the boat sank on 18 January 2014 – where the applicant was ordered by the District Court to pay the expenses of salvaging the applicant’s boat while bailed to respondent – where the contract between the applicant and the respondent provided that the applicant would indemnify the respondent against all expenses arising from the acts, omissions or negligence of the applicant that resulted in any economic loss to the respondent – where clause 10.1 provided under the heading “owner’s obligations” that “the owner must” ensure that the vessel is kept in a clean, sound, seaworthy and watertight condition, and free of any vermin, pests and insects” – where the applicant’s contention that the terms of the contract did not alter the content of the respondent’s obligation as bailee to take all reasonable care of the boat in the circumstances was unsustainable as a proposition of law, with no authority referred to or identified in support of it – where his Honour found that the duties of a bailee are subject to the terms of the contract and the duty to exercise reasonable care was modified in this case by the express terms of the contract, in clause 10.1, so that the obligation to maintain and keep the boat seaworthy was the applicant’s obligation, not the respondent’s obligation, including during the period of exercise of the lien for non-payment. Application dismissed. Applicant to pay the respondent’s costs of the application.

CRIMINAL APPEALS

R v Livingstone [2018] QCA 003 (17/93) Morrison JA McMurdo JA Mullins J 6 February 2018

Appeal against Conviction – where the appellant was convicted of one count of murder, having been found to hold a specific intention to kill or cause grievous bodily harm to the deceased – where the appellant submits that the verdict is unreasonable having regard to the evidence in relation to causation – where an appeal of this kind requires the appellate court to conduct an examination of the evidence – where the exact cause and time of death was unknown – where the evidence from witnesses and the appellant was varied, including statements from the appellant that he did not intend to kill the deceased, wanted to “roll” the deceased for money, and eye witness accounts that he “lost it” and said “die” when attacking the deceased – where the jury was required to find that the appellant intended to kill the deceased or cause him grievous bodily harm from the beginning to the end of the assault – where the appellant submitted that the variations in the evidence meant such a conclusion could not be reached beyond reasonable doubt – where the respondent submitted that the inconsistencies were capable of being resolved and directions to the jury made clear that they had to be satisfied that the appellant held the requisite intention for the entirety of assault – where the jury had the advantage of seeing and hearing the witnesses give evidence – whether it was open to the jury to be satisfied beyond reasonable doubt of the appellant’s intention to cause grievous bodily harm (or death) to the deceased from the start to the end of the assault – where ultimately, the prosecution case against the appellant was unusual due to the evidence from the forensic pathologists who were not able to identify the cause of death from the possible causes that could have been operative during the appellant’s assault on Mr Quayle – where the statements of the appellant made soon after the assault as to his rage and anger, and his description of his initial assault as a “king hit” and that he “bashed him” in conjunction with his actions before and during the first phase of the altercation, evidenced a level of aggression that supported the inference beyond reasonable doubt that he intended to do grievous bodily harm to Mr Quayle – where it was not a question of whether the appellant thought it was likely he would cause permanent damage to Mr Quayle, but whether, at the time he commenced the assault, he meant to cause him grievous bodily harm (whether he did so or not) – where once the conclusion is reached that there was evidence on which it was open to the jury to be satisfied beyond reasonable doubt that the appellant meant to cause Mr Quayle grievous bodily harm, that displaced any other competing inference of an intent to cause less serious harm or no intent – where once satisfied that the appellant held that intent, the fact that he might also, at the same time, have had the lesser intent to rob, does not displace the conclusion that he held the requisite intent for the offence of murder – where the jury had the undoubted advantage over this Court of seeing and hearing the witnesses at the trial, and in particular Ms French and Mr Hansen who witnessed the event itself – where this Court must be careful not to substitute trial by appellate court for trial by jury: R v Baden-Clay (2016) 258 CLR 308 – where the appellant submitted that a miscarriage of justice was occasioned by the admission into evidence at trial that the appellant had been in jail and was on parole when the deceased was killed – where that evidence was a recording of a telephone conversation between the appellant and a friend who was in prison – where the prejudicial aspect of the evidence was the fact that the appellant was previously in jail and on parole when the offence occurred – where the appellant’s trial counsel brought a pre-trial application to have the recording excluded from evidence – where the application was refused and trial counsel chose to use the evidence to the effect that it was distasteful boasting by a callow youth – where the appellant’s counsel on appeal submitted that it was not suggested at the trial that the impugned statements themselves had probative value and the recording should have been edited or reduced to an admission – where the respondent submitted that the prejudicial effect was outweighed by the recording’s probative value and editing would deprive the evidence of its proper context – where directions were given to the jury as to how to deal with the evidence in a non-prejudicial way – whether the trial judge was correct to refuse the application to exclude the evidence – whether the decision to present the recording as evidence of the appellant’s immaturity was a tactical, forensic decision reasonably made by counsel – where there is no doubt that ordinarily it is prejudicial to have a jury know that the accused had just been released from jail, or on parole when the particular offence was committed – where the learned trial judge recognised as much – where defence counsel took a particular tactical step based on his assessment that those references could not be severed from the rest without causing the particular context to be lost – where he wished to exploit that context before the jury, to portray whatever was said to be the distasteful boasting of an immature youth, egged on to do so by the prison atmosphere – where that mattered because at the time felony murder was still on foot as an alternative basis for murder and the admissible part of the phone call admitted a central element of that offence – where it also mattered because of the effect the appellant’s laughter would likely have on the jury – where in terms of the language used in TKWJ v The Queen (2002) 212 CLR 124, an informed and deliberate decision was made to pursue or not to pursue a particular course at the trial, and the course taken is explicable on the basis that it could have resulted in a forensic advantage – where further, the learned trial judge, conscious of the risk of prejudice that would normally flow, considered that properly crafted directions could overcome that risk – where that was necessary because the unobjectionable part of the phone call was, in his Honour’s assessment, highly probative – when the phone call was played to the jury the learned trial judge gave an immediate direction, instructing that those prejudicial references could play no part in the jury’s analysis – where that direction was reiterated at the start of the summing up – where R v Hasler; Ex parte Attorney-General [1987] 1 Qd R 239 supports the decision to include the evidence but give appropriate directions – where the evidence that was probative was not of trifling weight and the interests of justice called for its admission – where it could not, in the view of defence counsel and the trial judge, be severed from the prejudicial part without distorting the remaining evidence – where it has not been demonstrated that the inclusion of those references in the phone call had the effect that the trial miscarried. Appeal dismissed.

R v CBZ [2018] QCA 016; [2018] 10 QLR (16/258) Fraser, Philippides and McMurdo JJA 27 February 2018

Appeal against Conviction – where the appellant was convicted by a jury of one count of sexual assault – where the appellant was married to the complainant’s daughter in 2004, and separated in 2013 – where in in about 2004 the complainant, the appellant, an office administrator (BM), and the appellant’s brother were at the warehouse – where the complainant was walking in the warehouse towards a door leading to outside, the appellant came up beside her, pulled the top of her dress down to expose her breasts, and said, “Great tits” – where both parties formally admitted that the complainant first complained to police about any of the charges in the indictment on 30 March 2014 – where a new witness (BR) claimed the complainant had deliberately sought the new witness to give perjured evidence – where BR had known the complainant since about 2005 to 2006 when he started an apprenticeship as a hairdresser for her company – where he knew the appellant in the same period because the appellant worked for the company in a managerial role – where after BR heard in 2014 that the appellant had been charged with a number of criminal offences the complainant contacted him – where BR deposed that the complainant said to him, “When you write your statement, make sure you over-exaggerate it” – where the complainant told BR that he had witnessed various things, including: the appellant grabbing the complainant by the wrist and dragging her out of the salon; the appellant pushing the complainant’s daughter against a cupboard and slamming the door; the appellant slapping the complainant on the arse when they left the salon to get a coffee; BR saw bruising on the complainant’s daughter’s body and a scar on her head; and the scar was caused by the appellant throwing a chair at the complainant’s daughter – where BR told the complainant that he had not witnessed those things – where so that the conversation would finish he agreed to sign a statement that the complainant told him she would email to him – where he did not intend to sign a false statement – where about 20 minutes after the conversation BR sent a text message to the complainant with words to the effect that he did not want to be involved – where it is not suggested BR witnessed any act relevant to the charges against the appellant and there is also no suggestion that he was mentioned in any of the police statements – where BR’s affidavit should be regarded as “fresh evidence”, being evidence which could not with reasonable diligence have been discovered at the time of the trial – where if a jury accepted BR’s evidence, the jury reasonably could conclude that, knowing that BM did not have any personal knowledge of the events discreditable to the appellant which the complainant suggested BR had witnessed, the complainant both sought to persuade BR to sign a statement testifying that he witnessed those events and asked him to “over-exaggerate” his statement against the interests of the appellant – where if a jury did accept that evidence, the jury reasonably could conclude that the complainant quite deliberately sought to persuade BR to give perjured evidence adverse to the appellant – where of course the evidence has not been tested and it would be a matter for the jury to decide whether it should be accepted – where the transcript of the complainant’s evidence at the trial makes it clear that she wasted few opportunities to make her strong dislike of the appellant clear – where if the jury accepted the fresh evidence and concluded that the complainant quite deliberately sought to persuade BR to give perjured evidence adverse to the appellant, the jury would be required to assess the credibility of the complainant and the reliability of her evidence in a very different context – where the jury then might much more readily discount the complainant’s evidence of the offence of which the appellant was convicted – where the fresh evidence might well have been enough for the jury to conclude that the prosecution had not excluded a reasonable doubt that the appellant was guilty of the offence of which he was convicted – where the fresh evidence satisfies the “significant possibility” test: Van Beelen v The Queen (2017) 91 ALJR 1244 – where particularly the nature and strength of the bias suggested by the fresh evidence and the fact that it is the complainant who is said to be biased justify the conclusion that the fresh evidence, when understood in the context of the evidence at the trial, reveals that there has been a miscarriage of justice such as to require that the conviction be set aside and a new trial ordered. Application for leave to adduce fresh evidence granted. Appeal allowed. Conviction on count 1 set aside and sentence on that count quashed. New trial ordered.