CIVIL APPEALS
- Rich v BDO Kendalls [2007] QCA 147
- Wright & Anor v Keenfilly P/L & Anor [2007] QCA 148
- Lamb v Brisbane CC & Anor [2007] QCA 149
- D’Aguilar Gold Ltd v Gympie Eldorado Mining P/L [2007] QCA 158
- Massie & Ors v Brisbane City Council [2007] QCA 159
- Warren v Body Corporate for Buon Vista CTS 14325 [2007] QCA 160
- ChongHerr Investments Ltd v Titan Sandstone P/L [2007] QCA 167
- Barmettler & Anor v Greer & Timms [2007] QCA 170
- Smits v Tabone and Blue Coast Yeppoon P/L v Tabone [2007] QCA 172
- Averono & Anor v Mbuzi & Anor [2007] QCA 174
- Kumer v Suncorp Metway Insurance Ltd & Ors [2007] QCA 175
CRIMINAL APPEALS
- R v Matthews [2007] QCA 144
- R v Manning [2007] QCA 145
- R v Armstrong [2007] QCA 146
- R v Dunn [2007] QCA 153
- R v Cosh [2007] QCA 156
- R v Brown [2007] QCA 161
- R v Nguyen; R v Le [2007] QCA 162
- R v Keong [2007] QCA 163
- R v Harris-Davies [2007] QCA 164
- R v Saunders [2007] QCA 165
- RZ (by his litigation guardian) v PAE [2007] QCA 166
- R v Clark [2007] QCA 168
- R v TP; R v SBA [2007] QCA 169
CIVIL APPEALS
Rich v BDO Kendalls [2007] QCA 147; Appeal No 9301 of 2006, 4 May 2007
General Civil Appeal — where appellant was a former equity partner of the respondent — where appellant commenced working for another company after retiring from his position with the respondent — where such work was in alleged contravention of a restraint of trade clause contained in the partnership agreement — where learned Chief Justice made various findings and granted limited interlocutory relief in the respondent’s favour — whether evidence led on appeal cast doubt on these findings — whether learned Chief Justice erred in the exercise of his discretion — HELD: appeal dismissed with costs.
Wright & Anor v Keenfilly P/L & Anor [2007] QCA 148; Appeal No 9031 of 2006, 4 May 2007
General Civil Appeal — where respondents successful on appeal — where respondents applied for costs on an indemnity basis — where lower court judge awarded costs on an indemnity basis — where judgment sum of the lower court exceeded offer to settle made prior to the hearing of the appeal — where counter-offers made and rejected — whether appeal was unreasonably instituted — whether Court should depart from ordinary practice of awarding costs on the standard basis — where appellant changed business name prior to the claim and appeal being instituted — where respondent applied for amendment of proceedings to reflect change — whether amendment should be made — HELD: appellants pay the respondents’ costs of and incidental to the appeal on the standard basis — coversheet and reasons for judgment delivered 23 March 2007 be amended by deleting Rare Import Co Pty Ltd and inserting in lieu thereof, wherever it appears, Keenfilly Pty Ltd.
Lamb v Brisbane CC & Anor [2007] QCA 149; Appeal No 664 of 2007, 11 May 2007
Application for Leave Integrated Planning Act — where respondent co-owned residential property — where property in question was previously exempt development under the former town planning scheme — where amendment to HRPS Policy included the property on the Heritage Register — where amendment to policy created a superseded planning scheme — where amendment, if valid, would make partial or total demolition impact assessable development — whether words of s 2.1.23(4) refer to regulation by a planning scheme policy in isolation, or as part of a network of planning instruments applicable to the premises in question — relationship between planning scheme and planning scheme policy — whether the HRPS Policy affected the regulation of development or use of premises — whether trial judge erred in concluding the HRPS policy was invalid pursuant to s 2.1.23(4) — where respondent and co-owner made “development application (superseded planning scheme)” (“DASPS”) — where Council declined to accept DASPS — where DASPS was within two years from date of effect of amendment, but outside two years from date of adoption — whether application was out of time — where definition of DASPS was later amended providing for a time limit for DASPS being within two years from when planning scheme “took effect”, as opposed to from date of adoption — whether amendment was declaratory and/or retrospective — where trial judge would have exercised discretion to extend time to enable DASPS to be made had his Honour not found the listing invalid — where operation of s 4.1.5A requires the identification of a “requirement of the Act” with which there has been non-compliance — where Act does not require the making of a DASPS — whether respondent could invoke s 4.1.5A to excuse the delay — whether failure to make application within two years amounted to a failure to comply with a requirement of the Act — whether leave to appeal should be granted — HELD: application for leave granted — appeal allowed — application to the P&E Court dismissed — the respondent (Lamb) to pay the Council’s costs of the application for the leave to appeal and of the appeal.
D’Aguilar Gold Ltd v Gympie Eldorado Mining P/L [2007] QCA 158; Appeal No 10412 of 2006, 18 May 2007
General Civil Appeal — where Gympie Eldorado Mines Pty Ltd (GEGM) was granted an exploration permit (EPM) under the Mineral Resources Act 1989 (Qld) — where GEGM entered into a “farm-out agreement” with the appellant — where the agreement was registered under s 158 of the Act — where GEGM assigned their interest under the EPM to the respondent under s 151 of the Act — whether the appellant’s interest under the farm-out agreement took priority over the assignment — proper construction of s 158(4) of the Act — HELD: appeal dismissed with costs.
Massie & Ors v Brisbane City Council [2007] QCA 159; Appeal No 833 of 2007, 18 May 2007
Application for Leave Integrated Planning Act — where applicants owned certain land — where residential development of the land would lead to an increased risk of flooding — where council passed two resolutions amending City Plan 2000, with the effect of reclassifying properties owned by the applicants from Emerging Community to Environmental Protection — whether classification as Emerging Community gave sufficient control to enable the council to address perceived flood mitigation issues — whether reclassification solely for flood mitigation purposes was an improper use of power — whether reclassification decision had a real connection with the purposes and objects of the power to make and amend planning schemes — whether the reclassification was so unreasonable that no reasonable local authority could have come to it — whether resolutions were contrary to the IPA and ultra vires — whether trial judge gave adequate reasons — application of Wednesbury principle given policy considerations involved with planning schemes — breadth of declaratory power under s 4.1.21 IPA to review legality of council decisions — whether leave to appeal should be granted — HELD: application dismissed — applicants to pay the respondent’s costs of the appeal assessed on the standard basis.
Warren v Body Corporate for Buon Vista CTS 14325 [2007] QCA 160; Appeal No 49 of 2007, 18 May 2007
Application for Leave s 118 DCA (Civil) — where applicant unsuccessfully challenged the validity of various resolutions passed by the body corporate in a proceeding in the Office of the Commissioner for Body Corporate and Community Management — where applicant has fully utilised the mechanism established under the Act for challenging the resolutions, and also her right of appeal to the District Court — where District Court partially allowed appeal against the decision of the adjudicator, but otherwise dismissed the appeal — where genesis of matter was a $1,000 costs order in the Magistrates Court — where disputation between parties had already consumed considerable time and resources — whether application for leave to appeal should be granted — what the applicant would need to demonstrate to obtain leave to proceed to a third level of adjudication — whether costs should be awarded on an indemnity basis — whether a body corporate may validly resolve to ratify past irregular conduct — HELD: application for leave to appeal refused — applicant to pay respondent’s costs of and incidental to the application, fixed in the amount of $20,000.
ChongHerr Investments Ltd v Titan Sandstone P/L [2007] QCA 167; Appeal No 10600 of 2006, 25 May 2007
General Civil Appeal — where appellant had a mining lease over certain land under the Mineral Resources Act 1989 (Qld) — where respondent was in possession of the land pursuant to a sub-lease agreement made with the appellant in 2004 — where sub-lease contained option to renew sub-lease each year for five years — where appellant contends that the tenancy was validly terminated prior to the formal notice purporting to exercise the option in November 2006 — where learned trial judge found the option had been validly exercised prior to the notice to quit — whether respondent validly exercised the option for renewal of its tenancy prior to the notice to quit — whether the option remained exercisable after the notice to quit — whether the respondent remaining in possession of the land amounted to an exercise of the option — construction of the sub-lease agreement — interpretation of the option clause — HELD: appeal allowed — judgment below set aside — appellant to recover possession of the land — respondent to pay the appellant’s costs of the application and appeal.
Barmettler & Anor v Greer & Timms [2007] QCA 170; Appeal No 10043 of 2006, 25 May 2007
General Civil Appeal — where appellants contend that the respondent solicitors breached their duty of care in acting for the appellants in the purchase of a property — where appellants entered into possession of the property on 13 August 1992 but contend settlement occurred on 29 August 1992 — where appellants claim that between these dates they told the respondent to “stop” the contract and that the failure of the respondent to do so caused the appellants damage — where there was an absence of evidence supporting the appellants’ contentions — where the jury was not asked directly to determine the actual date of settlement — where the damages claimed by the plaintiff were not properly established — where the appellants’ case was under-prepared and hopeless — whether the settlement date was 13 August 1992 — whether the respondent solicitors were negligent — where trial judge treated the appellants unfairly — where the judge held the female appellant in contempt of court but did not identify the part of s 129 DCA under which she was taken into custody — where judge failed to give appellant the opportunity to answer the charge — where appeal against contempt charge can only occur by application for order of certiorari under the Judicial Review Act 1991 (Qld) — where judge made other threats of perjury and contempt — where judge’s conduct of the trial fell below the standard expected — whether the conduct of the trial occasioned a miscarriage of justice — HELD: appeal dismissed — appellants to pay the respondent’s costs of the appeal assessed on the standard basis.
Smits v Tabone and Blue Coast Yeppoon P/L v Tabone [2007] QCA 172; Appeal Nos 2651 and 4208 of 2007, 30 May 2007
Application for Stay of Execution — where Smits and Blue Coast lodged caveats with respect to land claiming to have equitable interests — where Tabone successfully applied to the Supreme Court for removal of the caveats — whether the applicants demonstrated sufficient prospects of success on appeals against the orders of the Supreme Court removing the caveats justifying the grant of a stay of those orders — HELD: applications for a stay dismissed — the stay ordered 25 May 2007 be discharged — application of Blue Coast and Tabone be consolidated with and heard with that of Tabone and Smits — applicants pay the respondent’s costs of this application assessed on the standard basis.
Averono & Anor v Mbuzi & Anor [2007] QCA 174; Appeal No 359 of 2007, 29 May 2007
General Civil Appeal — where appellants claimed judges had made wrong orders for costs — where no valid reason given as to why the costs orders should be altered — where no evidence adduced supporting the grounds of appeal — where primary judge making costs orders must give leave to appeal those orders — where leave not sought or obtained by the appellants — whether the case fell under s 253 Supreme Court Act 1995 (Qld) — whether appeal, even if regularly made, is without merit — whether appeal incompetent — HELD: appeal dismissed with costs to be assessed.
Kumer v Suncorp Metway Insurance Ltd & Ors [2007] QCA 175; Appeal No 10269 of 2004, 29 May 2007 (Judgment delivered 22 July 2005)
General Civil Appeal (Further Order) — where application made for an indemnity certificate under s 15(1) Appeal Costs Fund Act 1973 (Qld) two years after the appeal hearing — where Practice Direction No 1 of 2005 (para 37) requires application to be made orally at appeal hearing or by written submissions within seven days — where appeal successful on a point of law giving the Court an unfettered discretion to grant an indemnity certificate — whether an indemnity certificate should be granted — HELD: leave granted to apply for an indemnity certificate under s 15 despite non-compliance with practice direction — the orders of this Court in Kumer v Suncorp Metway Insurance Ltd & Ors [2005] QCA 254 be amended by adding the following further order: “4. The respondent is granted an indemnity certificate under s 15(1) Appeal Costs Fund Act 1973 (Qld)”.
CRIMINAL APPEALS
R v Matthews [2007] QCA 144; CA No 21 of 2007, 4 May 2007
Sentence Application — where applicant sentenced on a plea of guilty to 10 years imprisonment for manslaughter — where applicant also pleaded guilty to lesser charges — where applicant had strangled deceased in an amphetamine induced rage — where trial judge employed a notional head sentence of 12 to 13 years when sentencing — where various relevant mitigating factors present — whether learned sentencing judge erred in exercising his sentencing discretion — whether sentence imposed manifestly excessive — whether features of case required the imposition of a serious violent offence declaration — HELD: application for leave granted — appeal allowed — sentenced varied by substituting a sentence of nine years imprisonment and setting aside the serious violent offence declaration — declaration of a pre-sentence custody period of 366 days maintained.
R v Manning [2007] QCA 145; CA No 148 of 2006, 4 May 2007
Sentence Application — where applicant pleaded guilty to 10 counts involving contraventions of the Drugs Misuse Act 1986 (Qld) — where evidence given during sentencing suggested that she was the dominant party in the trafficking arrangement with her then partner — where former counsel made submissions that the applicant’s involvement as wrongdoer had been overstated — where former counsel failed to adduce evidence to support that contention — where there was no evidence before the sentencing judge about the partner’s violence towards the applicant — where applicant sought to adduce new evidence on appeal — whether new evidence should be admitted — whether factual basis of sentence was incorrect — whether sentencing was manifestly excessive in light of new evidence — HELD: application allowed — appeal allowed — set aside sentence of seven years imprisonment on count 1 and substitute instead a sentence of five years imprisonment — declare period of 261 days pre-sentence custody before 12 May 2006 as time already served under the sentence of five years — fix appellant’s parole eligibility date as 24 July 2007.
R v Armstrong [2007] QCA 146; CA No 32 of 2007, 4 May 2007
Sentence Application — where applicant pleaded guilty to dangerous operation of a motor vehicle causing death whilst adversely affected by an intoxicating substance and to other summary offences — where applicant sentenced to five years imprisonment suspended after two years and two months (no operational period specified) with lesser concurrent sentences for summary offences — where applicant entered a timely plea of guilty prior to trial and showed remorse — whether learned sentencing judge gave proper consideration to the mitigating features of the case — whether suspension after 20 months would have been more appropriate — HELD: application for leave to appeal against sentence granted — appeal allowed — set aside the part of the sentence suspending the five year term of imprisonment after serving a period of two years and two months and instead order that it be suspended after serving a period of 20 months, with an operational period of five years — original sentence otherwise confirmed.
R v Dunn [2007] QCA 153; CA 45 of 2007, 16 May 2007
Sentence Application — where applicant pleaded guilty to one count of grievous bodily harm with intent to do grievous bodily harm, and one count of manslaughter — where applicant sentenced to six years imprisonment on the first count and eight years imprisonment on the second — where both sentences attracted serious violent offence declarations — where applicant had been involved in a “street brawl” — where applicant inflicted multiple stab wounds on first victim and a fatal wound on the second victim who was unarmed and retreating — where conduct appeared retaliatory rather than spontaneous — where applicant’s conduct contributed to the escalation of violence — whether SVO declarations should have been made — HELD: application dismissed.
R v Cosh [2007] QCA 156; CA No 83 of 2007, 17 May 2007
Sentence Application — where applicant convicted by jury of three counts of rape, one count of deprivation of liberty, and one count of assault occasioning bodily harm — where primary judge ordered pre-sentence report be prepared to include a psychological and/or psychiatric assessment and adjourned the sentence, remanding the applicant in custody — where applicant sentenced to 12 years imprisonment for the rapes, with lesser concurrent sentences for the remaining offences — where pre-sentence custody declared as time served — where judge made non-contact order under s 43C Penalties and Sentences Act 1992 (Qld) — where Pt 9A Penalties and Sentences Act had effect that rapes constituted serious violent offences — where evidence demonstrated the viciousness of the physical attack on the complainant — where pre-sentence report suggested likelihood of recidivism, lack of insight into his own offending and lack of remorse — whether sentence manifestly excessive — HELD: application for leave to appeal against sentence refused.
R v Brown [2007] QCA 161; CA No 310 of 2006, 18 May 2007
Appeal against Conviction — where appellant pleaded not guilty to murdering the deceased (count 1) and to robbing him with personal violence in company while armed with a dangerous weapon and with an offensive instrument (count 2) — where appellant aided but was not the principal offender — where jury found appellant not guilty of murder but convicted him of manslaughter and robbery in company with personal violence, but without the alleged circumstances of aggravation — where accomplice gave evidence against the appellant, receiving the benefit of s 13A Penalties and Sentences Act 1992 (Qld) — where trial judge directed the jury as to s 7(1)(c) — where trial judge gave directions as to the meaning of “probable consequence” contained in s 8 Criminal Code — whether evidence could support the verdicts delivered — whether appellant must have subjectively seen death as a possible outcome of the assault which he was aiding — whether knowledge of the principal offender’s intention to assault the deceased was sufficient for a conviction of manslaughter — whether trial judge’s directions in relation to s 7 and s 8 responsibility were sufficient — whether trial judge erred in not directing the jury about the inter-relationship between s 7 and s 23 — whether, even if the trial judge erred, the appeal should be dismissed under s 668E(1A) Criminal Code — HELD: appeal dismissed.
R v Nguyen; R v Le [2007] QCA 162; CA No 43 of 2007, 25 May 2007
Appeal against Conviction — where appellants pleaded not guilty on one count of trafficking heroin and 15 counts of supplying heroin — where supply charges constituted particulars of trafficking charge — where prosecution later withdrew five of the supply counts — where appellants convicted of trafficking and six of the supply counts and acquitted of remaining four supply counts — where surveillance evidence and evidence of various witnesses was led by the prosecution in support of their case — where circumstantial evidence established a strong suspicion of conducting an illegal business — where appellants put forward competing innocent explanation not excluded by the prosecution — whether the evidence showed beyond reasonable doubt that the appellants were involved in trafficking and supply of heroin — whether verdicts were unsafe and unsatisfactory and could not be supported having regard to the evidence — HELD: appeal allowed — convictions and verdicts set aside on counts 1, 2, 5, 8, 9, 11 and 12 and instead verdicts of acquittal entered on those counts.
R v Keong [2007] QCA 163; CA No 30 of 2007, 25 May 2007
Sentence Application — where applicant pleaded guilty to one count of aggravated unlawful stalking and one count of common assault — where applicant sentenced to two years imprisonment on the first count and 12 months imprisonment on the second to be served concurrently — whether sentence imposed properly reflected the applicant’s plea of guilty, his intellectual disability and the unlikelihood of the applicant being granted parole on the proposed date — whether sentence manifestly excessive — HELD: set aside sentence of two years imprisonment on the first count and substitute a sentence of 18 months imprisonment — set aside sentence of 12 months imprisonment on the second count and substitute a sentence of six months imprisonment — otherwise uphold the orders of the District Court.
R v Harris-Davies [2007] QCA 164; CA No 18 of 2007, Orders delivered ex tempore on 11 May 2007, with reasons delivered 25 May 2007
Application for Extension (Sentence) — where appellant pleaded guilty to the commission of 19 indictable offences (one of which was arson) and to other summary offences — where sentencing judge imposed a period of imprisonment totalling five years and three months, consisting of a sentence of three years imprisonment for the arson count, a cumulative sentence of two years (made up of concurrent sentences of 2 years or less) for the remaining 18 indictable offences and a further three months imprisonment to be served cumulatively for offences against the Bail Act 1980 (Qld) — where time in pre-sentence custody deducted from all the terms of imprisonment imposed — where sentencing judge intended to declare time already served be deducted from the total period of imprisonment — where s 159A Penalties and Sentences Act 1992 (Qld) refers to a term, not period, of imprisonment — whether extension should be granted — whether sentence should be altered — whether sentencing judge erred in not fixing a parole eligibility date — HELD: extension to seek leave appeal against sentences granted — hearing of application adjourned to date to be fixed.
R v Sanders [2007] QCA 165; CA No 58 of 2007, 25 May 2007
Sentence Application — where applicant pleaded guilty to assault occasioning bodily harm — where applicant sentenced to probation and community service and ordered to pay a fine — where a conviction was recorded — where applicant and co-accused were high school students — where complainant was a fellow student — where complainant sustained significant injuries — where assault was premeditated — where applicant admitted assault and admitted that it was “disgraceful” — where applicant, at time of assault, suffered from untreated attention deficit disorder, but was subsequently placed on medication and responded favourably to treatment — where applicant has taken significant steps towards rehabilitation — where sentencing judge did not permit the tendering of a letter of remorse — where judge misstated complainant child’s age in sentencing remarks — whether sentencing discretion of judge miscarried as a result — whether a conviction should have been recorded given these mitigating factors, particularly the applicant’s youth — whether the sentence was manifestly excessive — principles applicable to exercise of discretion under s 12 Penalties and Sentences Act 1992 (Qld) — HELD: application for leave to appeal granted — appeal allowed — sentence varied by deleting the order that a conviction be recorded and in lieu ordering that a conviction not be recorded.
RZ (by his litigation guardian) v PAE [2007] QCA 166; Appeal No 10997 of 2006, 25 May 2007
Miscellaneous Application (Civil) — where respondent pleaded guilty to one charge of unlawfully attempting to procure the 13 year old applicant to commit an indecent act — where applicant applied for compensation under the Criminal Offence Victims Act 1995 (Qld) — where Act establishes scheme for compensation for an applicant’s injury where a “personal offence” has been committed against the person — where judge did not consider that the attempt to procure could amount to a personal offence — where judge dismissed the application but notionally assessed compensation at $7,500 —whether the offence amounted to “an indictable offence committed against the person of someone” under s 21 of the Act — HELD: application for leave to appeal granted but limited to the question of whether the offence to which the respondent subjected the appellant was a “personal offence” under the Criminal Offence Victims Act 1995 (Qld) — appeal allowed with costs to be assessed — the order of the District Court of 27 November 2006 is set aside — instead the respondent is to pay the appellant $7,500 — grant the respondent an indemnity certificate under s 15 Appeal Costs Fund Act 1973 (Qld).
R v Clark [2007] QCA 168; CA No 9 of 2007, 25 May 2007
Appeal against Conviction & Sentence — where appellant was convicted by jury of unlawfully causing grievous bodily harm in contravention of s 320 Criminal Code —where the complainant suffered permanent and disabling injuries as a result of a 20 metre fall from a “flying fox” ride — where the appellant was as an employee of the company operating the ride — where crown alleged the appellant contravened the duty owed by virtue of s 289 Code by failing to secure the karabiner lock of the complainant’s harness — where there was evidence that the appellant had said he was “hung over” as a result of alcohol and marijuana consumption on the previous night — where contravention of s 289 does not depend upon an intention to do harm but requires demonstration of a failure to take reasonable steps to avoid danger — whether a reasonable jury could be satisfied of the appellant’s guilt beyond reasonable doubt — whether the learned trial judge’s summing up was balanced and properly put the defence case before the jury — whether the judge made improper comments concerning the “hangover evidence” — whether the judge gave adequate directions concerning the gravity of the conduct required to find criminal negligence under s 289 — whether the level of “inadvertence” gave rise to culpable disregard essential to criminal negligence — whether the learned trial judge erred in failing to rule that the appellant had no case to answer — where appellant sentenced to two years and eight months imprisonment with a parole release date of 11 April 2008 — where level of injury to complainant considered relevant — whether the sentence imposed was manifestly excessive — HELD: appeal against conviction dismissed — application for leave to appeal against sentence refused.
R v TP; R v SBA [2007] QCA 169; CA Nos 289 and 295 of 2006, 25 May 2007
Appeal against conviction — where TP and SBA were convicted on one charge of indecent dealing of a child under 16 years and two counts of rape — where the complainant was TP’s daughter — where SBA was the boyfriend of TP — where TP claims that evidence led in SBA’s case was prejudicial and of little probative value — whether trial judge gave adequate directions with respect to that evidence — where separate trials were requested but not granted — whether this led to a miscarriage of justice — where complainant’s husband was permitted to sit behind her during the giving of her evidence — where judge explained to jury that he was supporting her and “knew” what had happened — whether this constituted an inadmissible and irrelevant favourable opinion of the husband, bolstering the complainant’s credibility — where learned judge commented on evidence during the summing up — where appellant claimed it lacked balance — where there was a subsequent redirection — whether redirection adequate — where evidence given about TP teaching the complainant to masturbate — whether this evidence was irrelevant and inadmissible — whether admitting this evidence led to a miscarriage of justice — where conflicting evidence was adduced at trial — where trial judge gave direction as to the resolution of conflict between the evidence — whether direction adequately conveyed the requirement that the jury could convict only if satisfied on guilt beyond reasonable doubt — HELD: appeal dismissed.
