Court of Appeal Judgments – Summary Notes

CIVIL APPEALS

Duff v Blinco & Anor [2006] QCA 497, Appeal No 5121 of 2006, 1 December 2006

Application for Leave s 118 DCA (Civil) — whether a reference in a clause is a sufficient note or memorandum to satisfy the requirements of s 59 Property Law Act 1974 (Qld) — whether the primary judge erred in giving the clause contractual effect — whether the agreement is a contract for the sale or other disposition of the interest in land within the meaning of s 59 Property Law Act 1974 (Qld) — Held: application for leave to appeal allowed, appeal dismissed.

Charlton v WorkCover Qld & Ors [2006] QCA 498, Appeal Nos 5834 & 5835 of 2006, 1 December 2006

Application for Extension of Time/General Civil Appeal — the appellant either developed or aggravated a hernia during his employment with each of the first respondents — this injury required surgical intervention and the appellant’s capacity to work was significantly affected as a result — whether the appellant sustained an ‘injury’ within the meaning of s 34 WorkCover Queensland Act 1996 (Qld) — whether the appellant should have been granted an extension of time in which to bring an action against the first respondents — whether the appellant is now entitled to commence proceedings claiming damages for personal injury — Held: In 5834/06, appeal dismissed, no order as to costs. In 5835/06, appeal allowed, no order as to costs.

MGM Containers P/L v Wockner [2006] QCA 502, Appeal No 9554 of 2006, 1 December 2006

General Civil Appeal — the respondent issued proceedings against the appellant (its former solicitor) for damages for breach of contract and negligence arising out of the respondent’s purchase of a shopping centre — the appellant sought leave to file and serve third party proceedings against additional advisors retained by the respondent to advise it in the transaction — whether the primary judge’s discretion miscarried in refusing leave to issue third party proceedings — Held: appeal dismissed with costs.

Goodwin v Goodwin [2006] QCA 503, Appeal No 7645 of 2006, 1 December 2006

General Civil Appeal — District Court Judge appointed trustees under s 38 of the Property Law Act 1974 (Qld) for the sale of land — the appellant and his wife co-owned with the respondent as tenants in common — the appellant attempted to transfer the property to his son — transfer was registered — Supreme Court Judge considered transfer was void and made order to rectify the register — register was corrected pursuant to order — appellant then sought stay of order — stay refused — appeal against the refusal to stay the order rather than appealing the order itself — whether there was any evidence before the court which enlivened the discretion not to appoint trustees — whether there was a binding contract for the respondent to sell her share of the land to the appellant — whether any merit in application for extension of time or the application for a stay — Held: appeal dismissed.

A-G (Qld) v Fardon [2006] QCA 512, Appeal No 9605 of 2006, 4 December 2006

General Civil Appeal — where the respondent has an extensive criminal history for serious offences of rape and sexual assault — the respondent has been detained indefinitely, with that order subject to annual review — where a Supreme Court Judge ordered the respondent’s release subject to 32 conditions relating to intensive supervision — where Attorney-General (Qld) appeals against this supervised release order — whether the respondent is an unacceptable danger to the community if released from custody subject to supervision conditions — Held: appeal dismissed.

SOS Community Action Group Inc & Anor v Reef Cove Resort Ltd & Anor [2006] QCA 519, Appeal No 5430 of 2006, 8 December 2006

Application for Leave Integrated Planning Act — the local authority issued a negotiated decision notice approving the reconfiguration of land — an application was made to the Planning and Environment Court seeking orders declaring the local authority’s decision invalid — the first respondent succeeded in having certain grounds of the application struck out — whether the primary judge erred in granting the strike out — Held: application for leave to appeal dismissed, applicant to pay the respondents’ costs of the appeal.

Owen v Edwards [2006] QCA 526, CA No 106 of 2006, 8 December 2006

Application for leave s 118 DCA (Criminal) — appeal from a decision of the District Court which overturned a Magistrate’s ruling to permanently stay summary proceedings against the applicant — there was lengthy delay in having the matter heard — whether that delay constitutes an abuse of process — whether proceedings should be permanently stayed — Held: application for leave to appeal allowed, appeal dismissed.

BLM v RWS [2006] QCA 528, Appeal No 5759 of 2006, 8 December 2006

General Civil Appeal — the appellant and respondent lived in a de facto relationship for approximately four years and had two children together — the respondent applied for a property adjustment under Part 19 of the Property Law Act 1974 (Qld) — dispute arose over the trial judge’s assessment of the value of business and associated assets, as well as post-separation loan repayments made by the appellant — disagreement also existed over the value of the appellant’s initial financial contribution to the asset pool — Held: appeal allowed, but only to the extent that the orders made by learned trial judge are varied by reducing the amount remaining to be paid by the appellant to the respondent from $119,802.03 to $65,802.03.

Southern Cross Mine Management PL v Ensham Resources & Ors [2006] QCA 531, Appeal No 1768 of 1006, 8 December 2006

General Civil Appeal — the trial judge gave judgment in favour of the respondent and made an order for damages for $2,460,000 against the appellant — the appellant then became bankrupt on presentation of own petition — the trial judge gave leave to apply for costs as required under r 72(1) UCPR — the trial judge considered that a costs order made after the bankruptcy would not be a provable debt — trial judge considered s 58(3) Bankruptcy Act 1966 (Cth) inapplicable (provision requires the leave of the Federal Court where an application for costs was either a legal proceeding or a fresh step in legal proceedings if it were “in respect of a provable debt”) — whether a costs order made after his bankruptcy was a provable debt — Held: appeal dismissed, leave granted to make submissions on costs.

White v Calstores P/L [2006] QCA 535, Appeal No 5418 of 2006, 12 December 2006

General Civil Appeal — the appellant employed the respondent as a console operator at a service station and convenience store — armed robbers held up the shop while the respondent was working — the respondent suffered psychiatric illness as a result of the robbery — respondent brought action for damages for negligence and breach of statutory duty — the trial judge found a need for a permanent security guard – whether the learned trial judge’s judgment in favour of the respondent can be sustained — Held: appeal allowed, judgment in favour of the respondent set aside, respondent’s action against the appellant dismissed.

Cant Contracting P/L v Casella & Anor [2006] QCA 538, Appeal No 8063 of 2006, 15 December 2006

General Civil Appeal — the respondent agreed to construct poultry sheds for the appellants — substantial work had been carried out before the Laidley Shire Council issued a stop work order — pursuant to the Building and Construction Industry Payment Act 2004 (Qld) the respondent sought progress payments by way of a payment claim — the appellants did not serve a corresponding payment schedule on the respondent — summary judgment was awarded against the appellants — the appellants had filed a defence and counter-claim against summary judgment arguing that the respondent did not hold an appropriate licence at the time construction was carried out — whether the respondent was entitled to summary judgment, regardless of the fact that he may not have held an appropriate construction licence in contravention of s 42(1) Queensland Building Services Authority Act 1991 (Qld) — Held: appeal allowed, judgment of 1 September 2006 set aside, application for summary judgment dismissed with costs, respondent to pay the appellants’ costs of the appeal.

ASIC v Atlantic 3 Financial (Aust) Pty Ltd [2006] QCA 540, Appeal No 5732 of 2006, 15 December 2006

General Civil Appeal — the appellants were initially ordered to pay the respondents’ costs to be assessed on a standard basis until a specified date and thereafter on an indemnity basis — the respondents applied for an assessment of costs statement — the appellants objected to the validity of an agreement between the respondents and their solicitors — the Senior Deputy Registrar held the agreement was “void” under s 48F Queensland Law Society Act 1952 (Qld) — on appeal a Supreme Court Trial Division judge declared the client agreement complied with s 48 — Held: appeal dismissed, appellants to pay the costs of the appeal to be assessed on a standard basis.

Cannon Street P/L & Ors v Karedis & Ors [2006] QCA 541, Appeal No 3889 of 2006, 15 December 2006

General Civil Appeal — at first instance the respondents were entitled to claim (pursuant to s 55B(4) Judiciary Act 1903 (Cth)) for work done in the Queensland Supreme Court by solicitors who were not admitted to practice in Queensland — whether the trial judge erred in allowing the respondents to recover for work done by New South Wales solicitors who were not the holders of a practising certificate in Queensland — Held: appeal dismissed with costs.

FO v HAF [2006] QCA 555, Appeal No 4280 of 2006, 19 December 2006

General Civil Appeal — the appellant and respondent had lived in a de facto relationship — dispute over date at which the relationship became a “de facto relationship” under the Property Law Act 1974 (Qld) — dispute over the value of property which each party brought to the joint property pool at the commencement of the relationship — dispute over allocation of capital appreciation — whether the trial judge erred — Held: appeal allowed, orders varied, costs ordered against respondent.

Chief Executive Officer of Customs v Labrador Liquor Wholesale Pty Ltd & Others [2006] QCA 558, Appeal No 1812 of 2006 & Appeal No 2938 of 2006, 22 December 2006

General Civil Appeal — the appellants were each convicted of offences against the Customs Act 1901 (Cth) and the Excise Act 1901 (Cth) — the appellants devised a scheme to deliver dutiable and customable goods into home consumption without paying duty — there was no direct evidence that the goods were delivered into home consumption — the respondent averred that appellants delivered customable and excisable goods into home consumption — whether the trial judge was justified in drawing the inference that the goods were delivered for home consumption — whether the trial judge erred in convicting the appellants pursuant to s 33 of the Customs Act — whether there was insufficient evidence to support the finding of offences against s 234(1)(d) of the Customs Act — Held: appeal against first appellant dismissed, appeal against second and third appellants allowed to extent of setting aside convictions for offences against s 120(1)(iv) Excise Act, appeals against sentence dismissed.

Donaldson & Donaldson v Bexton & Bexton [2006] QCA 559, Appeal No 4703 of 2006, 22 December 2006

General Civil Appeal — the respondent vendor and appellant purchaser entered into a written contract — a special condition made the contract subject to the appellants selling other land owned by them within 30 days, “failing which this contract will be at an end” — respondents asserted that contract was at an end by reason of failure of special condition — appellants adduced evidence that they had waived benefit of special condition — appellants commenced action for specific performance — whether right of termination which arose in the respondents favour upon non-fulfilment of the special condition was lost because the appellants wished to complete the contract before the respondents purported to terminate the contract — Held: appeal dismissed, appellants to pay the respondents’ costs of the appeal.

Vlug v Carrasco [2006] QCA 561, Appeal No 8030 of 2006, 22 December 2006

Miscellaneous Application — Civil — the appellant was awarded $19,500 in criminal compensation after the respondent was convicted of two counts of assault occasioning bodily harm and one count of rape — application of s 20 Criminal Offence Victims Act 1995 (Qld) and s 1A Criminal Offence Victims Regulation 1995 (Qld) — relevance of pre-existing traits or vulnerabilities — whether the nature of the injury was relevant to the assessment of compensation for sexual offences — whether the learned judge made an inadequate assessment — Held: application for leave to appeal allowed, appeal dismissed with no order as to costs.

DPP v Bakir [2006] QCA 562, Appeal No 10888 of 2006, 22 December 2006

General Civil Appeal —a Supreme Court Judge granted bail to the respondent on certain conditions — another Supreme Court Judge temporarily stayed the execution of that order — whether the stay should be extended or discharged — whether the risk that the respondent might interfere with witnesses if he were to be released on bail was an acceptable risk that justified the granting of bail — Held: Appeal dismissed.

Colbran & Ors v State of Queensland [2006] QCA 565, Appeal Nos 9306 of 2006, 9414 of 2006, 9413 of 2006, 22 December 2006

General Civil Appeal — the Department of Primary Industrial sprayed the respondents’ coffee trees with chemicals as part of its papaya fruit fly eradication program — the respondent crop owners had consented to the spraying —the respondents alleged that the spraying was performed negligently with damage resulting to trees and production — the appellant purported to rely, in its amended defence , on an immunity under s 28(1)(a) Plant Protection Act 1989 (Qld ) — the appellant did not plead that the spraying was authorized by the Act — the trial judge struck out the amending paragraphs purporting to raise the immunity — whether the immunity contained in s 28(1)(a), applying to acts or omissions done pursuant to the Act, extends to acts or omissions in the course of consensual dealings between the parties where actions do not require special statutory authority — whether the trial judge erred in not permitting the appellant to plead s 28(1)(a) — Held: appeal dismissed.

Garland v Chief Executive, Department of Corrective Services [2006] QCA 568, Appeal No 8379 of 2006, 22 December 2006

General Civil Appeal — the appellant was imprisoned indefinitely — the appellant had been subject to successive maximum security orders over eight years — the appellant argued that continued orders were contrary to s 3 Corrective Services Act 2000 (Qld) — whether the order made pursuant to s 47(2) was inhumane containment — the appellant alleged failure to comply with departmental policy in relation to the making of maximum security orders — whether such a failure would invalidate the order — whether there were reasonable grounds for the respondent to exercise her power to make a maximum security order — Held: appeal dismissed with costs.

Foxworth P/L & Ors v Polwood P/L & Ors [2006] QCA 570, Appeal No 7268 of 2006, 22 December 2006

General Civil Appeal — the appellants allege the respondents made representations inducing the entry into the Deed — whether relief would be available under Trade Practices Act 1974 (Cth) — trial judge found representations were an inducing cause of entry into the Deed — trial judge found that the representations were not an inducing cause of entry into the subsequent contract — trial judge found that appellants failed to prove loss consequential upon the representation — whether the trial judge erred in so finding — Held: appeal dismissed with costs.