Court of Appeal Judgment Summary Notes – Civil

CIVIL APPEALS

Queensland Bulk Water Supply Authority t/a Seqwater v McDonald Keen Group P/L (in liq) & Anor [2010] QCA 007 Holmes JA Fraser JA Fryberg J 5/02/2010

General Civil Appeal from the Supreme Court, Trial Division — Contracts — Building, Engineering and Related Contracts — Remuneration — Statutory Regulation of Entitlement to and Recovery of Progress Payments — The respondent McDonald Keen Group (MKG) was the successful tenderer for construction of a water pipeline — It made a payment claim under the Building and Construction Industry Payments Act 2004 (Qld) (BCIPA) in respect of excavation of rock which it claimed was a “latent condition” within the contract — The claim was adjudicated with an amount determined of $11 million as the amount of the progress payment to be made by the appellant, Queensland Bulk Water Supply Authority (QBWSA) to MKG — Under s 31 of the Act MKG filed the adjudication certificate as a judgment — The learned judge at first instance dismissed QBWSA’s application seeking a declaration that the adjudication decision was void and an order setting aside the judgment — On Appeal — MKG had quoted a rate of $250 (presumably per cubic metre), with a total of $25,000 — By facsimile (a document which QBWSA says the adjudicator impermissibly treated as a contractual document), QBWSA, through its project manager, advised that the tender was non-conforming because of its inclusion of the provisional sum, with the facsimile continuing “Adequate information has been provided in the documentation to allow this activity to be priced as a lump sum.” — MKG responded by letter with QBWSA accepting the tender — The adjudicator did not characterise the facsimile as resulting in a new contract on different terms from those of the construction contract, but as an invitation to re-tender containing a relevant representation — The learned judge considered that the adjudicator had referred to the facsimile as a matter relevant to the application of the latent condition test for the purposes of the relevant clause — The adjudicator regarded the facsimile, and its representation to the adequacy of the geotechnical report as a basis for pricing, as relevant to what a reasonable and competent operator should have anticipated and thus relevant to the application of the contract — As the learned primary judge, correctly, with some respect observed, it was not to the point to ask whether a court would have come to the same conclusion as the adjudicator; the question was whether he had arrived at his conclusion by a process which failed to consider the matters set out in s 26(2) of the Act — The evidence which he had relied on was within the range of the considerations identified in that section — HELD: Appeal dismissed with costs.

Bradshaw v Henderson & Anor [2010] QCA 008 Holmes JA Atkinson J Fryberg J 5/02/2010

Application for Extension of Time from the District Court — Practice and Procedure — Time for Appeal — The claim at first instance was for specific performance of a contract for the sale by Winstanley to the first respondent, Bradshaw, of his interest in a sub-lease of a marina berth, with an alternative claim for damages for breach of contract — On 5 February 2009 damages were awarded for Bradshaw for the sum of $14,000 with $6,800 interest with an associated order for costs of 27 February 2009 that Winstanley pay the costs of both Bradshaw and Henderson (the second respondent) — The learned trial judge accepted that Henderson had acted as agent for Winstanley, who was the sub-lessee of the marina berth — Bradshaw had responded to an advertisement for sale of the berth which Henderson had placed at the marina — Bradshaw and Henderson met and agreed on a purchase price of $30,000, with Henderson providing Bradshaw a receipt for the sum of $1,000 which was expressed to be for: “Deposit…Marina Berth…” — The receipt was dated 3 January 2003 — The trial judge accepted Bradshaw’s evidence on the point that he had made repeated unsuccessful attempts to contact Mr Winstanley to complete a settlement date — In April 2003 Winstanley informed Henderson to give up on the transaction and send the deposit back — On 21 April Henderson wrote a letter to Bradshaw enclosing a cheque in the amount of the deposit with a note with the following explanation “The sale of the berth cannot be completed, as the owner is unavailable…” — On Appeal — Bradshaw suffers from some unspecified medical conditions — On 24 February 2009 Winstanley telephoned a solicitor who had acted for him previously who advised him of the procedure for appealing the decision — Winstanley found for himself the relevant provisions under the Uniform Civil Procedure Rules 1999 (Qld) — The application for leave was filed on 9 April 2009 — On 11 March 2009 Bradshaw’s solicitors obtained an injunction restraining Winstanley from dealing with the sub-lease — That course of events explains the delay on Winstanley’s part between 24 February 2009 and 10 March 2009 — The inference to be drawn was that Winstanley had decided an appeal after considering the UCPR provisions, and changed that decision when it became apparent that he was not going to be able to dispose of the marina berth — Winstanley could not demonstrate any error in the learned judge’s conclusion that the circumstances fell within the second of the three categories in Masters v Cameron (1954) 91 CLR 353, the parties having agreed the necessary terms, but having made their performance conditional upon the execution of a formal document — Winstanley sought to argue that if there were any interest in land the contract was one for its sale or disposition that would attract s 59 of the Property Law Act 1974 (Qld) — The difficulty for Winstanley was the paucity of evidence about the berth — The sub-lease itself was ambivalent as to what the berth consisted of, whether it was the pontoon or the adjacent water or both — HELD: Application dismissed with costs.

Sica v Director of Public Prosecutions (Qld) [2010] QCA 018 Chief Justice Keane JA Chesterman JA 16/02/2010

Appeal from Bail Application from the Supreme Court, Trial Division — Jurisdiction, Practice and Procedure — Bail — Before Trial — From Second Bail Application — The appellant was arrested and charged with the murder of three siblings — On 2 January 2009 the applicant applied for bail which was dismissed — On 19 November 2009 the appellant made a second bail application which was dismissed — On Appeal — Delay is, obviously, of considerable importance in cases of this kind — It is possible to in this case to conclude that the reason for the delay and the length of the committal hearing is the responsibility of the appellant — The prosecution case is a circumstantial case and the circumstances are few in number and small in content — How the appellant and his lawyers conduct the preliminary hearing is a matter for them, but if they choose, as they appear to have done, to use it for the appellant to identify other possible suspects for the murders, and in a manner so extravagant of time, thereby prolonging proceedings, any complaint of delay loses most of its force — The appellant has a relevant criminal history — In 1993 he was convicted in the District Court of numerous charges including arson of a building and attempted arson and was sentenced to nine years’ imprisonment with parole recommended after three years — He was released on parole in 1996 but in 1998 he was again dealt with in the District Court on a charge of attempted arson and sentenced to a further term of imprisonment — In relation to the 1993 offences the appellant and others sought to destroy evidence which might implicate them in an earlier offence by setting fire to the Ashgrove police station and destroying it — The attempted arson in 1997 had its origin in some enmity between the appellant, his co-accused and a man they both encountered in prison — Weeks prior to the murders the appellant and Mr Singh (the father of the three siblings) were engaged in a bitter physical confrontation in which the appellant made threats against Singh’s life and assaulted him, though not seriously — A listening device was concealed in the appellant’s home in 2006 which recorded a conversation between the appellant and his parents in which they discussed the possibility that he leave the state to avoid being served with a summons in connection with the murders — He did not in fact leave the jurisdiction — The appellant is 40 years of age and has lived in Queensland since he was 14 — He is married, has a daughter and has two teenage children from a previous relationship — His parents have offered a surety for the appellant’s appearance at trial, if granted bail, in the sum of $900,000 — There is a legislative presumption against the granting of bail in cases of murder — If the risk that the appellant might not appear is sufficient to justify his continued detention then he should be detained — The matter is incapable of precise expression or definition — As the primary judge pointed out a number of the appellant’s previous convictions, for serious offences, involved the destruction of buildings in an attempt to destroy incriminating evidence against him, and retaliation against persons whom he disliked or who had participated in the investigation of his criminal activity — His Honour’s concern for this aspect of the case appears entirely justified — HELD: Appeal dismissed.

CAR & Anor v Department of Child Safety [2010] QCA 027 Muir JA Fraser JA Chesterman JA 23/02/2010

General Civil Appeal from the District Court — Family Law and Child Welfare — Children in Need of Protection — Proceedings Related to Care and Protection — Parent’s and Children’s Right to be Heard — The Chief Executive of the respondent Department was granted custody of the applicant’s child KVS under a temporary assessment order made on 22 December 2009, the day the child was born — On 8 January 2010 a Magistrate constituting the Childrens Court adjourned until 26 February 2010 the Department’s application for a child protection order seeking that long term guardianship of the child be granted to the Chief Executive — The Magistrate refused the Department’s application for an interim order under the Child Protection Act 1999 (Qld) granting the Chief Executive temporary custody of the applicant’s child for the period of the adjournment — Later on 8 January the Department made an oral, ex parte application by way of appeal to the Children’s Court — The application was heard over the telephone during the evening, so the Department’s solicitor informed this Court, Martin DCJ considered that it was appropriate to proceed ex parte, he heard and determined the matter, and allowed the Department’s appeal and made the orders that the Department sought for temporary custody of the child, and directing that the child’s father not have any contact with the child, and directing that the child’s mother not have any contact with the child other than when accompanied by a person authorised by the Department — Those interim orders were to remain in effect until the hearing in the Childrens Court on 26 February 2010 — On Appeal — The effect of those orders is significant, as they might remain in force for a lengthy period with the Department’s solicitor informing the Court that this matter will be mentioned on 26 February 2010 but that the final hearing will likely not occur for some considerable time after mention — The principle “audi alteram partem”, that a person against whom a claim or charge is made should be given a reasonable opportunity of appearing and presenting that person’s case in opposition to the claim or charge, has been described as a “fundamental” and “deep-rooted” principle of natural justice which is applicable to all courts: whilst that principle may be displaced by legislation, it will be displaced only by clear words — Section 118 of the Act provides that an appeal is started by filing a written notice of appeal with the registrar of the appellate court and that the appellant must serve a copy of the notice on the other persons entitled to appeal — The Department was unable to identify any source of power in the judge to overlook the apparently mandatory requirements — The judge erred in determining the appeal without notice to the applicants, however the evidence certainly justified the judge’s concern that the best interests of the child were served by an interim order — Affidavit evidence filed on behalf of the Department before the Magistrate, a copy of which was said by the District Court judge to have been given to him at the ex parte hearing of the appeal, identified in very considerable detail the numerous bases for the concerns which had provoked the Department’s application — This material included that the three older children of the applicants had been placed in care; the applicant mother suffered a long standing mental illness; the applicant father has a very extensive criminal record which includes violent offences, including violent sexual offences; and at one stage the applicant mother took one of their children to another state, where the applicants were found with the child only when there was a report to authorities of an alleged domestic violence incident — The Department appears not to have conducted a thorough assessment of the suitability of the applicants for a very long time — It may be that it was justified in that approach by perceived non-cooperation by the applicants, but that topic seems not to have been fully explored in the evidence — HELD: (briefly) Allow the appeal, Set aside those orders of the Childrens Court constituted by a judge of the District Court and instead order: Grant the Department an extension of time to 26 February 2010 to file a notice of appeal in the Childrens Court constituted by a judge of the District Court from the orders made by the Childrens Court constituted by a Magistrate on 8 January 2010; Order that the order made by Childrens Court constituted by the Magistrate be stayed, Temporary custody be granted to the Chief Executive, (with relevant contact and non-contact orders) that the orders above remain in force until 4 pm on Friday 26 February 2010 or until such other time as may be ordered by the Childrens Court, being a time no later than the determination of the Department’s appeal to the Childrens Court constituted by a judge of the District Court.

Aurukun Shire Council & Anor v CEO Office of Liquor Gaming and Racing in the Department of Treasury [2010] QCA 037 McMurdo P Keane JA Philippides J 1/03/2010 General Civil Appeals from the Supreme Court, Trial Division — Human Rights — Racial Discrimination — On Appeal — The issue which arises for consideration in these appeals is whether s 10 of the Racial Discrimination Act 1975 (Cth) (RDA) denies legal effect to amendments made in 2008 to the Liquor Act 1992 (Qld) — By those amendments, the general liquor licence held by each of the appellants was brought to an end on 1 July 2008, and the appellants, together with all other local government authorities in Queensland, were barred from applying for or holding such a licence — Each of the appellants is a local government authority — The RDA is intended to give effect to Australia’s obligations under the United Nations International Convention on the Elimination of All Forms of Racial Discrimination (CERD) — It may be accepted that the legislative removal of the supply of alcohol from the functions of local government in Queensland will have the effect of restricting the local availability of alcohol in the appellants’ communities, at least for so long as other licensed suppliers of alcohol do not seek to meet local demand for alcohol — The effect of the amending Act is that no-one in Queensland has a right to obtain alcohol from one’s local government — The amending Act simply does not engage s 10 of the RDA — The application of s 10 of the RDA requires the identification of a right enumerated in Article 5 of CERD or a right of that kind as expressly contemplated by s 10(2) of the RDA — A licence to sell alcohol and the opportunity to have access to and use a local supplier of alcohol is simply not a human right or fundamental freedom of the kind described in CERD — Gerhardy v Brown (1985) 159 CLR 70 obliges a court to seek to determine whether domestic laws said to attract the operation of s 10 of the RDA are concerned with human rights of the kind referred to in CERD — Bropho v Western Australia (2008) 169 FCR 59 confirmed that where human rights and fundamental freedoms of the kind referred to in CERD are in tension it is for the local legislature to give expression to the appropriate balance — It may be said that the Queensland legislature was entitled, if not obliged, to address the claims of women and children in Aurukun and Kowanyama under Article 5(b) of CERD — It is difficult to accept that the opportunity to buy alcohol from a licensed local government authority can rationally be placed on the same level of importance in any frame of reference with the right of women and children to live free of alcohol-fuelled violence — The Court should recognise that its ability to set aside the political judgment of the legislature is necessarily confined to cases where the balance struck by the legislature is demonstrably unreasonable in the sense that no reasonable legislature could have struck that balance — Section 10 of the RDA is concerned to ensure that the rights and duties created by legislation apply generally, without distinction on the ground of race — The amending Act simply provides that the licensed supply of alcohol shall no longer be a function of local government and applies in the same terms throughout the State — Whether or not the residents of Aurukun and Kowanyama have access to a local licensed supplier of alcohol to the same extent as other Queenslanders depends on the forces of supply and demand — Section 10(1) of the RDA is concerned with the effect of laws upon persons of a particular race — It can only be concerned with natural persons, with the appellants being outside the scope of s 10(1) of the RDA — The amending Act can be seen as a special measure within the meaning of s 8 of the RDA — The amending Act was introduced after extensive consultations with the affected parties — A political judgment that if the local government authorities such as the appellants are to be part of the solution, they must not continue to be part of the problem is one which could reasonably be made by the Queensland legislature — HELD: Appeals dismissed.

Noonan v MacLennan & Anor [2010] QCA 050 Keane JA Holmes JA Chesterman JA 12/03/2010 Application for Leave from the District Court — Limitation of Actions — Extension or Postponement of Limitation Periods — Noonan is the plaintiff in an action for damages for defamation arising out of the publication of an article in “The Australian” newspaper on 11 April 2007 — The defendants were at all material times staff members of the Queensland University of Technology (QUT) — The article in “The Australian” repeated the defendants’ criticisms of Noonan’s PhD thesis — These criticisms are alleged to be defamatory — On 21 August 2009 the learned primary judge granted Noonan’s application to extend the date for bringing an action until 18 June 2009, and his Honour dismissed the defendants’ cross-application for judgment in the action based on the limitation defence pleaded by them — Section 10AA of the Limitation of Actions Act 2005 (Qld) provides that an action on a cause of action must not be brought after the end of one year from the date of publication of the matter complained of, however s 32A of the Act provides that the Court may order an extension of time if it was not reasonable to commence an action during that period — On Appeal — The burden is on a plaintiff to point to circumstances which make it not reasonable to seek to enforce his or her legal rights in the way required by law — On the reading of s 32A(2) which was favoured by Dutney J in Robertson v Hollings (unreported) there was no evidence by which Noonan could have satisfied the court that the commencement of proceedings before the end of the year after 11 April 2007 was not reasonable — The test posed by s 32A(2) is an objective one — When s 32A(2) refers to “the circumstances”, it means the circumstances as they appear objectively to the court and not “the circumstances which the plaintiff believed, however unreasonably, to exist” — Mere ignorance of the strict time limits fixed by the Act cannot afford a reasonable basis for not complying with them — Noonan was under no disadvantage which might have impeded his ability to ascertain, and comply with, the applicable time limit in this case — The grievance procedure through QUT concluded at the end of October 2007 — Noonan was informed at that time he was entitled to pursue an action for defamation against the defendants — Noonan decided to commence an action in February 2008 — Objectively speaking, he had ample opportunity to do so before 11 April 2008 — Noonan’s evident assumption that he did not need to seek legal advice about the action was not a reasonable one, at least in the absence of any attempt on his part to inform himself of the law relating to his proposed action — HELD: Leave to appeal granted, Appeal allowed, Decision below set aside with judgment given for the defendants against the plaintiff and costs.

Ace Property Holdings P/L v Australian Postal Corporation [2010] QCA 055 Keane JA Fryberg J Douglas J 19/03/2010 General Civil Appeal from the Supreme Court, Trial Division — The appellant, Ace Property Holdings Pty Ltd (Ace), is the lessor, and the respondent, the Australian Postal Corporation (Australia Post), is the lessee, of the whole of the land and buildings at 100 Victoria Street, West End — In February 2003 Decipha Pty Ltd (Decipha) became involved in the occupation of the Premises — Since December 2003, Decipha has been a wholly-owned subsidiary of Australia Post — In August 2008 Ace gave Australia Post a notice to remedy breaches of covenant pursuant to s 124 of the Property Law Act 1974 (Qld) — The breaches of the lease asserted by the notice related to the use and occupation of the Premises by Decipha, the carrying out of renovations to the Premises without Ace’s approval and the non-payment of legal costs incurred by Ace in connection with the lease — In July 2009 the learned trial judge declared that Australia Post had not breached the lease save in relation to the carrying out of renovations without Ace’s approval, however Ace was estopped from asserting that Australia Post had breached the lease — On Appeal — In December 2003 Decipha became, and has since remained, a wholly owned subsidiary of Australia Post — Any employees of Australia Post who were working at the Premises were in a state of “transition” to employment by Decipha — Australia Post sought approval for renovations to the Premises — Commencement date for this work was 25 September 2006 — Decipha paid the builder for the renovations — No approval was forthcoming from Ace before Decipha proceeded with the renovations — It is difficult not to regard the conduct of Australia Post and Decipha as somewhat high-handed — He who deliberately chooses to give no quarter in business cannot fairly expect to receive it — It is sufficient to say that the fact that Australia Post has allowed Decipha to exercise physical control of the Premises and the operations conducted there by Decipha’s employees, invites the inference that Australia Post has parted with possession to Decipha — Decipha has such a degree of control over the Premises that they were used solely for Decipha’s operations conducted by it in its own right, it is accurate to say that it had obtained the premises from Australia Post — Mr John Miller has been the state operations manager for Decipha since February 2003 — His evidence was that Decipha was in sole occupation and control of the premises — Mr Vincent Rosano is the national operations manager of Decipha who swore an affidavit for Australia Post to which was exhibited a Decipha board paper — This paper provides support that the business conducted by Decipha was carried on by Decipha in its own right — In cross-examination Mr Rosano explained the reference in the board paper to Decipha operating its operations from the Premises under a lease from Australia Post as “a typing error” — Mr Rosano’s explanation as a typing mistake is inherently improbable and unworthy of belief — Unable to conclude that Mr Homewood, the director of Ace, knew that Decipha was, in fact, in sole possession of the Premises — Conclusion that Australia Post was, and remains, in breach of the lease — This breach is capable of being remedied — Ace was not estopped from relying upon the breaches to terminate the lease — Neither breach was the result of inadvertence on the part of Australia Post — Australia Post’s breach of cl 9.1 (the renovations) was deliberate — As to the ongoing breach of cl 7.1 of the lease, Australia Post has not proffered an undertaking to remedy that breach — The better view is to leave the parties to seek to complete the negotiation which Australia Post pre-empted — If the parties cannot reach agreement then further litigation may be necessary — As unattractive as that is, it is not as unpalatable as allowing Australia Post to secure to its subsidiary, Decipha, commercial advantages which it did not obtain, and might not be able to obtain, from a freely and fairly made bargain — HELD: Appeal allowed, Declaration and order made at first instance be set aside, and in lieu thereof, it be ordered that the application be dismissed with costs. Hartnett v Hynes [2010] QCA 065 Muir JA Daubney J P Lyons J 23/03/2010 General Civil Appeal from the Supreme Court, Trial Division — Civil Procedure — Pleadings and Amendment — Originating Process and Pleadings — The appellant appealed against an order refusing leave to the appellant to amend his statement of claim in certain respects — An original statement of claim was filed on 3 September 2007 — The appellant and respondent had carried on a partnership business of solicitors and migration agents which was dissolved on 3 September 2001 — Before the matter came before the primary judge the appellant had delivered a number of redrafts of the statement of claim to the respondent and there had been at least four interlocutory hearings, concerning, amongst other things, disclosure and the pleadings — On Appeal — Paragraph 7F of the Third Amended Statement of Claim provided that the defendant did not invoice certain clients of the Partnership for unbilled work in progress…and sought Particulars in this regard — The breaches of clause 2 in the dissolution agreement (unbilled work) and of the implied term in paragraph 6(a) have been alleged from the time of the original pleading — Reliance on those breaches could not have caused paragraph 7F to raise a new cause of action — The unqualified finding by the primary judge that paragraph 7F pleaded a new cause of action was erroneous — Paragraphs 7G (issuing credit notes) and 7H (writing off sums owing to the partnership) of the TASC are closely related to the allegation that the respondent failed to collect moneys — If the allegations are made out, they will show that the respondent took actions which ensured that relevant moneys could not be collected — Paragraphs 7G and 7H probably go beyond particularising or restating a pre-existing claim and thus contribute to the pleading of new causes of action — However, they are causes of action which arise out of the same facts or substantially the same facts, as the causes of action pleaded in the original statement of claim — Of considerable relevance to the exercise of the discretion is the fact that these paragraphs received, in effect, the imprimatur of a trial division judge at an earlier interlocutory hearing, less than a year after the commencement of the proceedings — It was wrong to describe the pleadings under consideration as “recently formulated” and the primary judge erred in this regard — The 73 page schedule provides very few particulars of the allegations in 7G and 7H and those particulars do not purport to be complete — This lack of particularity was justified by counsel for the appellant on the basis of the continuing disputes over disclosure — If the appellant does not comply with the Order and the particulars are inadequate, prompt application can be made by the respondent to strike out any allegations which are insufficiently particularised — No change to the costs order at first instance as the appellant obtained an indulgence from the Court — HELD: Appeal allowed, Paragraphs 1 and 9 of the orders and directions made on 10 September be set aside and that “machinery orders” be put in their place, costs of the appeal to be costs in the cause, the costs at first instance remain.

Multi-Service Group Pty Ltd (in liq) & Anor v Osborne & Anor [2010] QCA 072 McMurdo P Muir JA Daubney J 26/03/2010 General Civil Appeal from the Supreme Court, Trial Division — Procedure — Supreme Court Procedure — Procedure Under Rules of Court — Judgments and Orders — The appellant company in liquidation and the appellant liquidator (the liquidator) appeal against the order by the primary judge in each of the proceedings that the appellants’ “application for reactivation” of the proceeding be refused — Two actions were commenced by the appellants seeking recovery of moneys with allegations of MSG being insolvent and failing to keep financial records correctly recording and explaining its transactions and financial position — Osborne had been the former managing director of Multi-Service Group Pty Ltd (MSG) and Gro Services Pty Ltd (GRO) was the corporate trustee of the Osborne Family Trust — The primary judge made an order dated 30 May 2008 containing comprehensive directions for the future progress of the action with specific dates as to when events were to occur — There was extensive non-compliance with the requirements of the Order and the appellants were not in a position to serve a request for trial date by 15 May 2009, as required by the Order — On 22 May 2009 a Deputy Registrar made an order in each proceeding that “The matter is deemed resolved” as provided for in the Order of 30 May 2008 (“16. By 22 May 2009…or the matter be deemed resolved.”) — The Deputy Registrar’s order was made before the expiration of the time stipulated by the Order — On Appeal — It is implicit in paragraph 5.4 of Practice Direction No 4 of 2002 that as long as a proceeding is “deemed resolved” no steps may be taken in it but that the proceeding nevertheless continues in existence and is susceptible to reactivation — A deemed resolution of a proceeding thus results in something akin to the placing of the proceeding on an abeyance list — The primary judge treated the application for reactivation as akin to an application for dismissal for want of prosecution or to an application for leave to proceed under r 389 of the Uniform Civil Procedure Rules 1999 (Qld) — There being no serious question that the appellants lacked an arguable case the focus of the primary judge on the application for reactivation should have been on the matters identified in paragraph 5.4 of the Practice Direction, namely whether the appellants had explained and justified the circumstances in which the proceeding was deemed resolved and prepared a plan to facilitate its timely determination — The primary judge erred in her implicit conclusion that the Liquidator did not face a complex and time consuming task in disentangling the financial affairs of MSG — The primary judge failed to consider the prospects of success of the appellants’ claims — The appellants’ evidence establish that: their claims were, at the very least, fairly arguable, a trial could take place in the reasonably near future, they had a plan to facilitate the timely determination of the proceedings and that they were in a position to prosecute their claim diligently and in accordance with the Rules — It is not ordered that the respondents pay the appellants’ costs at first instance, as the genesis of the applications before the primary judge was the extensive default and cavalier conduct of the appellants — HELD: Appeals allowed, Orders of the primary judge set aside, Proceedings be reactivated, costs.

Barkworth Olives Management Ltd v Deputy Commissioner of Taxation [2010] QCA 080 McMurdo P Fraser JA P Lyons J 9/04/2010

Barkworth Olives Management Ltd v Deputy Commissioner of Taxation [2010] QCA 080 McMurdo P Fraser JA P Lyons J 9/04/2010 General Civil Appeal from the Supreme Court, Trial Division — Taxes and Duties — Income Tax and Related Legislation — Ascertainment of Assessable Income — The respondent (Deputy Commissioner of Taxation) applied and obtained summary judgment against the appellant for over $80 million — That amount was the total of various amounts specified in notices of assessment and notices of amended assessment to income tax, general interest charges on those unpaid amounts, notices of assessment of penalty amounts payable in respect of tax shortfall, and further general interest charges, all of which had been issued against the appellant as the trustee for specified trusts — The appellant, a trustee, had argued that it was not personally liable for any of the amounts specified in the notices as it had not received any of the money which was the income the subject of the assessments — On Appeal — The substantial question in the appeal was whether s 254(1)(e) of the Income Tax Assessment Act 1936 (Cth) operated to qualify what otherwise would be the conclusive effect of the notices of assessment — In specified cases, instead of a beneficiary or beneficiaries being assessed and liable to pay the tax on the trust income the trustee must be assessed and is liable to pay the tax — The better construction of s 254(1)(e) appears to be that it imposes and qualifies personal liability only where the agent or trustee retains or fails to retain money which comes to the agent or trustee after the making of an assessment under s 254(1)(b) — Section 254(1)(e) would therefore ordinarily limit the liability of an agent or trustee to any amount of money received by the agent or trustee after the due date for lodging a return and thus after the derivation of income with reference to which the tax was assessed — The limitation of liability in the general provision of s 254(1)(e) must give way to those specific provisions in Div 6 of Pt III which impose liability to tax upon the trustee as an exception to the general rule that the beneficiaries are liable — High Court authorities concerned taxing provisions which imposed a liability to tax upon a person who was appointed as a representative after the relevant income had been derived and who therefore had no opportunity during the period when that income was derived to make provision for any tax liability — Section 254(1)(e) has no potential application to limit a trustee’s personal liability where the trustee is assessed to tax under a provision in Div 6 of Pt III, such as s 99A, which expressly provides for the liability of the trustee, that is so at least where the same person remains trustee during the whole of the period in which the relevant taxable income is derived and up to and including the date upon which the liability for tax accrues under s 204 — Decisions of the High Court establish that the potential for great hardship if a taxpayer’s objections are ultimately found to have merit provides no ground for denying the clear terms of the statutory provisions — HELD: Appeal dismissed with costs.

AG(CQ) P/L v A&T Promotions P/L & Anor [2010] QCA 083 McMurdo P Holmes JA McMeekin J 13/04/2010

AG(CQ) P/L v A&T Promotions P/L & Anor [2010] QCA 083 McMurdo P Holmes JA McMeekin J 13/04/2010 General Civil Appeal from the Supreme Court, Trial Division — Real Property — Torrens Title — Unregistered Interests — Equitable Estates and Interests — Priority Between Equitable Interests — The second respondent (Alan Leslie Ikin as trustee for the Mackay Trust) held equitable title in a parcel of land — The learned judge declared that A&T Promotions Pty Ltd (A&T), as equitable mortgagee in a lot at Mackay had priority over AG(CQ)’s interest, also as equitable mortgagee, in the same lot — The learned judge held that A&T interest, the first in time, should prevail, the competing interests being equal in merit and A&T having been guilty of no act or omission that would make that result unfair — On Appeal — Underlying the parties’ submissions was a divergence as to whether the rule of priority for the interest first created was one of first or last resort — Both approaches can be found in the authorities — The question is as to which is the better equity, and in determining that question, the conduct of both parties will be relevant — But one can also say that it is proper to look for both meritorious and unmeritorious (or disentitling) conduct as the learned judge did in this case; and it is legitimate to determine the worse of the equities in order to establish the better — Doubtful the argument of AG(CQ) that the mere fact of greater diligence on the part of the subsequent interest holder in protecting its interest should give it priority — Rejection of AG(CQ)’s actions in obtaining and retaining those documents necessary to complete a transfer once the lot issued, per se created an imbalance in the respective merits sufficient to give it the better equity — However AG(CQ) did what it could to secure its position — Ikin had twice defaulted on repayment of a loan — It was not reasonable for A&T to rely on its arrangements with Ikin — A&T could have asked AG(CQ) to provide it with a signed transfer of the lot to Ikin, and also have sought an assignment of Ikin’s rights under a Success Fee Deed — A&T’s failure to make its interest known to AG(CQ) in any way was a failure to act as a prudent lender and led directly to AG(CQ)’s position — Her Honour erred in her assessment of the relative merits of the respective interests, and erred in failing to find that AG(CQ) had the better equity — AG(CQ)’s interest should take priority — HELD: (Brief) Appeal allowed, Set aside certain orders and substitute that AG(CQ) has an interest as an equitable mortgagee, as does A&T, however AG(CQ)’s interest takes priority

Medical Board of Queensland v Freeman [2010] QCA 093 Holmes JA Muir JA Fraser JA 23/04/2010

General Civil Appeal from the Health Practitioners Tribunal — Professions and Trades — Medical Practitioners — Disciplinary Proceedings — Professional Misconduct and Unprofessional Conduct — Departure from Accepted Standards — The Health Practitioners Tribunal found the appellant, an obstetrician and gynaecologist, had behaved in a way constituting unsatisfactory professional conduct and made orders suspending her registration for four months (that order in turn suspended for a period of two years), and imposing conditions on her registration — The appellant attended a patient who sought the termination of her pregnancy — An ultrasound showed the foetus was 19 weeks into gestation and the appellant formed the view that there was a risk that the patient would kill herself or harm her five year old daughter if she could not obtain a termination — The appellant administered a dose of misoprostol vaginally and sent the patient home with a number of misoprostol tablets and instructions as to how they were to be administered — On Appeal — The appellant gave evidence that she believed no hospital, including the Royal Brisbane and Women’s Hospital, would assist a patient seeking a mid-trimester termination — The finding of the Tribunal that the patient was eligible for admission to hospital for a termination procedure was open on the evidence, where the pregnancy constituted a risk to the mother’s psychiatric health — This finding gave context to the significant further finding, that the appellant had not even attempted to have the patient admitted — The appellant provided to the patient a copy of the Aberdeen Protocol, which was plainly not designed for comprehension by a lay person, handwritten instructions as to how to administer the misosprostol and a letter to a prospective admitting hospital — The handwritten instructions provided information on one limited aspect of the procedure and the letter to the prospective hospital was not intended for the patient’s information — The Tribunal was entitled to find that written information provided to the patient did not amount to “good quality, accurate, impartial, written information that is well presented and easy to understand” — Even on the appellant’s own evidence the explanation verbally given to the patient was in the most general terms — The instructions were not “…clear, concise and precise…” — One error was demonstrated in the Tribunal’s finding, however at the heart of its finding of unprofessional conduct was the carrying out of the procedure outside a hospital setting — There is no doubt that those findings alone could properly support a finding of unprofessional conduct — There was plainly cause for concern that the appellant would treat as out-patients other patients seeking a termination in similar circumstances — The conditions imposed on the appellant were, as the Tribunal described them, designed to ensure that did not occur and were within the objects of the Act — HELD: Appeals dismissed.

Jiona Investments Pty Ltd & Ors v Medihelp General Practice Pty Limited [2010] QCA 099 Muir JA Atkinson J Ann Lyons J 30/04/2010

General Civil Appeal from the Supreme Court, Trial Division — Contracts — General Contractual Principles — Construction and Interpretation of Contracts — A deed was made on or about 10 July 2002 between parties including the respondent, Medihelp and the appellant, Dr Clift — Clift agreed to indemnify Medihelp and others in relation to a claim then foreshadowed by the “Feros Group” against one of more of Medihelp, Clift and others, “for damages arising out of” an agreement identified in recital H to the Deed — The Feros claim eventuated — Medihelp filed and served on Clift a third party notice and statement of claim, claiming an indemnity “in relation to any sum ordered to be paid by [Medihelp] to the plaintiffs including interest and costs” — Clift did not at any time file a notice to defend the third party claim — Clift was advised by fax dated 19 November 2009 that the principal proceeding had been resolved and that Medihelp would seek to have judgment in the third party proceeding against him — On 23 November 2009 counsel for Medihelp and counsel for the appellant appeared before the primary judge — Counsel for Clift sought leave to appear but leave was refused pursuant to r 658 of the Uniform Civil Procedure Rules 1999 (Qld) and judgment was entered against Clift in favour of Medihelp for $1,200,000 (the settlement sum) and $407,378.47 (on account of Medihelp’s costs in the principal proceeding) — On Appeal — Any liability under clause 5 of the Deed was contingent until it settled with the plaintiffs — Clift could have filed and served a notice of intention to defend on the day of the hearing before the primary judge — If that had been done the appellant would have been able to rely on a defence; no leave would have been required — The primary judge erred in refusing the appellant leave without considering whether the appellant had an arguable case arising out of clause 6 of the Deed — The primary judge erred in finding, implicitly, that the appellant had been guilty of relevant delay in not filing a defence and that this failure was relevant to whether the appellant’s counsel should be heard on Medihelp’s application — This was not a case in which a party had been responsible for relevant delay or any failure to comply with obligations under the Rules — Once the fury, sound and dust of the engagement at first instance are penetrated, it may be seen that the appellant had a fairly arguable point on the merits which could have emerged only after the appellant became aware of the settlement, and that there were no disentitling factors such as delay or prejudice standing in the way of a trial on that point — The claims sought to be enforced by Medihelp’s application were arguably, at the very least, not within the relief expressly claimed in the claim and statement of claim — The compromise which provided the factual basis for the most substantial claim had just been made — The appellant should not have been deprived of the opportunity of resisting the new claims without compelling grounds — HELD: Appeal allowed, order of primary judge set aside, costs.