COAL MINING SAFETY AND HEALTH – REVIEW OF DIRECTIVE – INTERLOCUTORY APPLICATION – APPLICATION FOR STAY OF OPERATION OF DIRECTIVE – whether jurisdiction to order stay pursuant to s 178 of the Coal Mining Safety and Health Act 1999 – whether stay should be ordered – whether the applicant has an arguable case – whether the balance of convenience is in favour of the application – whether there is a risk of the review being abortive without the stay

PROCEDURE – CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS – ENDING PROCEEDINGS EARLY – OFFER OF COMPROMISE, PAYMENT INTO COURT AND SETTLEMENT – where the appellant was dismissed from his employment with the respondent – where the appellant applied to the Queensland Industrial Relations Commission (QIRC) for reinstatement – where the parties attended a conciliation conference at the QIRC and signed a deed of settlement – where, after the parties signed the deed and the respondent complied with the deed, the appellant sought to proceed with his application for reinstatement before the QIRC – where the Industrial Commissioner dismissed the appellant’s application for reinstatement on the basis that there was an enforceable deed of settlement between the parties – where the appellant appeals from that decision – whether there is any basis to set aside the decision of the Industrial Commissioner

https://www.sclqld.org.au/caselaw/QSC/2020/392

PROCEDURE – COSTS – GENERAL RULE – COSTS FOLLOW THE EVENT – COSTS OF QUESTIONS – where the plaintiffs were successful on two out of three events or questions – whether the court should exercise discretion – whether fraction of costs should be ordered

REAL PROPERTY – VALUATION OF LAND – OBJECTIONS AND APPEALS – QUEENSLAND – where appellant objects to valuation – where the site value is the basis of valuation – where there was agreement between the parties the appeal should be allowed – where the Court was asked to decide the correct valuation – where no maintenance valuation was issued by the valuer general and where the valuation was agreed to be incorrect – where the onus was on the appellant to prove on the balance of probabilities that the valuation was in errorREAL PROPERTY – VALUATION OF LAND –
OBJECTIONS AND APPEALS – QUEENSLAND – selection of sales – whether sales closer in location with different uses are to be preferred over sales with similar uses – whether market and buyer profile sales were to be preferred – whether adjustments were to be made to adjust for market movement over time – whether upper and lower parameters were to be established in the absence of sales evidence – where preferred approach is that with reduced scope for error – where sales with similar use were preferred – where large format retail (LFR) accepted as asset class – where the approach of the appellant’s valuer was preferredREAL PROPERTY – VALUATION OF LAND –
OBJECTIONS AND APPEALS – QUEENSLAND – whether assumptions made by the quantity surveyors are assumed facts – whether the appellant’s valuer could rely on the quantity surveying evidence without investigating the actual site conditions – where evidence of purchaser to be preferred – whether preliminaries, margins, contingencies and professional fees ought to be taken into account – where they should depending on the circumstances of the sale.

CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – APPEALS BY CROWN – EXERCISE OF DISCRETION – GENERALLY – where the respondent was sentenced in respect of eight offences, all concerned with child pornography or child exploitation material – where a plea of guilty was entered to each of the counts – where the learned sentencing judge selected Count 1 as the offence upon which to impose a sentence that reflected the overall criminality of the offending – where no complaint was made about that approach, either below or before this Court – where the sentence imposed on Count 1 was 12 years’ imprisonment (to commence on 18 February 2020) – where in respect of counts 1 to 7, pursuant to s 19AB(1) of the Crimes Act 1914 (Cth), a non-parole period of six years’ imprisonment was fixed – where in respect of count 8, the five years’ imprisonment was to be suspended after serving 20 months’ imprisonment, operational for a period of five years – where the Commonwealth Director of Public Prosecutions appeals against the sentences imposed on the basis that both the head sentence of 12 years’ imprisonment and the non-parole period of six years are manifestly inadequate – where the Crown submitted that the overall sentence imposed and the length of the non-parole period were manifestly inadequate and, having regard to all the relevant sentencing factors, this Court would be driven to conclude that there must have been some misapplication of principle in the exercise of the sentencing discretion – whether the overall sentence imposed and the length of the non-parole period were manifestly inadequate

PROCEDURE – CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS – COSTS – OFFERS OF COMPROMISE, PAYMENTS INTO COURT AND SETTLEMENTS – PARTICULAR CASES – where proceedings between the appellant and respondent were settled pursuant to a deed of settlement, which provided that the respondent be paid its costs on an indemnity basis – where a costs statement was served on the appellant – where the appellant did not serve a notice of objection within time – where a default costs assessment was made, which was given effect by the order of the Registrar – where no application under r 740 UCPR was made by the appellant – where the appellant made an application to have the default costs assessment and order of the Registrar set aside – where the application was refused – whether the learned primary judge erred in refusing the application – whether the default costs assessment and order of the Registrar should be set aside

CRIMINAL LAW – JUDGMENT AND PUNISHMENT – SENTENCE – appeal – whether sentence manifestly excessive – cumulative sentence – totality principle

SUCCESSION – FAMILY PROVISION – JURISDICTION – GENERALLY – where claim made for provision from estate of deceased – where parties reached an agreement as to distribution – where the total amount to be paid to the three applicants is $930,000, exceeding the District Court limit – where proceeding involves three separate claims within the monetary limit of the District Court – whether the District Court has the jurisdiction to make the orders soughtSUCCESSION – FAMILY PROVISION – where claim made for provision from estate of deceased – where parties reached an agreement as to distribution – whether the applicants have been left with adequate provision for proper maintenance and support

INDUSTRIAL LAW – QUEENSLAND – DISMISSALS – UNFAIR DISMISSAL – WHAT CONSTITUTES – where the appellant was dismissed from her employment with the respondent – where the appellant applied to the Queensland Industrial Relations Commission for reinstatement – where the basis for the dismissal was a number of incidents – where the respondent did not give the appellant a warning before the relevant incidents occurred – where the Industrial Commissioner found that the dismissal was not harsh, unjust or unreasonable and dismissed the appellant’s application for reinstatement – whether the Commissioner erred in concluding that the reprimand which was received by the appellant after she allegedly committed the conduct which led to her dismissal, was a “warning” for the purposes of s 320(c)(i) of the Industrial Relations Act 2016

PROCEDURE – CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS – ENDING PROCEEDINGS EARLY – SUMMARY DISPOSAL – SUMMARY JUDGMENT FOR PLAINTIFF OR APPLICANT – WHEN GRANTED OR REFUSED AND CONDITIONS – plaintiff sues defendant for alleged breach of fiduciary duties as director in acquiring land below market value – plaintiff seeks summary judgment on the basis that the defendant has no real prospect of successfully defending the claim – whether there is a real prospect that the defendant will be able to demonstrate that the plaintiff was fully informed in giving its consent to the defendant to acquire the lots – whether summary judgment should be grantedPROCEDURE – STATE AND TERRITORY COURTS: JURISDICTION, POWERS AND GENERALLY – JURISDICTION – plaintiff’s claim is based, in part, upon a claim for compensation for breach of statutory duties under the Corporations Act 2001 – compensation order for a contravention of a civil penalty provision can only be made a “Court” – whether the District Court is a “Court” for the purposes of the Corporations Act – whether District Court has jurisdiction to determine the proceeding

APPEAL AND NEW TRIAL – PROCEDURE – QUEENSLAND – FROM MAGISTRATES COURT – BY LEAVE OF COURT – amount claimed in the Magistrates Court was less than the minor civil dispute limit – whether interest accrued since the commencement of the proceeding is included in the “amount involved” in the proceeding – whether leave to appeal is requiredAPPEAL AND NEW TRIAL – PROCEDURE – QUEENSLAND – FROM MAGISTRATES COURT – BY LEAVE OF COURT – applicant seeks to appeal a decision to award indemnity costs in favour of the respondent – whether there are important questions of law or justice which merit the granting of leave to appeal – whether leave to appeal should be grantedPROCEDURE – CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS – COSTS – INDEMNITY COSTS – PARTICULAR CASES – UNREASONABLE CONDUCT OR DELINQUENCY RELATING TO PROCEEDINGS – respondent seeks costs on the indemnity basis – respondent submits that the appellant was responsible for delays in the progress of the matter – respondent submits that the costs of bringing the application exceed the difference between the amount over which the application for leave to appeal was brought – whether bringing the application for leave to appeal was justified – whether indemnity costs should be ordered

PROCEDURE – CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS – COSTS – OFFERS OF COMPROMISE, PAYMENTS INTO COURT AND SETTLEMENTS – INFORMAL OFFERS AND CALDERBANK LETTERS – UNREASONABLE REFUSAL OF OFFER – defendant seeks costs on the indemnity basis – plaintiff was successful on the majority of the principal issues in the proceeding, but was ultimately unsuccessful – whether the plaintiff’s rejection of a Calderbank offer was unreasonable in the circumstances prevailing at the time the offer was madeUNQUALIFIED PERSONS AND DISQUALIFIED PRACTITIONERS – ACTING FOR PARTY – leave granted for an unqualified person to act as the plaintiff’s McKenzie friend – McKenzie friend, in preparation for the trial, carried out tasks such as informing the plaintiff of trial processes, resources regarding civil procedure, legal research and editing and drafting of correspondence – McKenzie friend, during the trial, drafted oral submissions for the plaintiff to make, although the plaintiff did not understand the submissions made – whether the McKenzie friend’s conduct warrants investigation by the Legal Services Commission as a potential breach of s 24 of the Legal Profession Act

ENERGY AND RESOURCES – MINERALS – MINING FOR MINERALS – COMPENSATION – where the applicants own a mining claim on the respondents’ land – where the respondents use their land to operate a carbon abatement project under the Emissions Reduction Fund – whether and, if so, how much the applicants should compensate the respondents under s 85 of the Mineral Resources Act 1989 for deprivation of the surface of the land, diminution in the value of the land, time spent inspecting the claim, signage costs and the cost of preparing a valuation report

CRIMINAL LAW – APPEAL AND NEW TRIAL – VERDICT UNREASONABLE OR INSUPPORTABLE HAVING REGARD TO EVIDENCE – APPEAL DISMISSED – where the appellant was convicted of using electronic communication with intent to procure a person he believed to be under 16 to engage in a sexual act, under s 218A of the Criminal Code (Qld) – where the appellant challenges his conviction on the basis that his conduct, which was admitted at trial, was not sufficient to amount to an “intent to procure” as defined in the section – where the appellant submitted that “procure”, in the context of s 218A, requires something more positive than passive action, and it is not sufficient to merely agree or acquiesce in – where the appellant urged the adoption of the test of “procure” as referred to by Cullinane J in R v F; Ex parte Attorney-General (Qld) [2004] 1 Qd R 162 that is, inducing or persuading someone to do an act that they would not have embarked on spontaneously of their own volition – where the appellant pointed to several factors which, it was contended, showed the 14 year old girl was engaging voluntarily – where the respondent submitted that the appellant’s conduct extended beyond indicating a preparedness to engage in sexual acts with a child and he exhibited conduct that showed intent – whether the appellant intended to procure under s 218A of the Criminal Code

PROCEDURE – CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS – COSTS – OFFERS OF COMPROMISE, PAYMENTS INTO COURT AND SETTLEMENTS – INFORMAL OFFERS AND CALDERBANK LETTERS – UNREASONABLE REFUSAL OF OFFER – two informal offers were made by the plaintiffs – some parts of the plaintiffs’ claim were not pressed or not determined by the court – whether the defendants’ rejection of those offers, on either occasion, was unreasonable – whether costs should be ordered on the indemnity basisPROCEDURE – CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS – COSTS – GENERAL RULE: COSTS FOLLOW EVENT – PARTIAL SUCCESS – plaintiffs did not press part of their claim – substantial part of the trial was occupied by a claim that the court found it was unnecessary to consider – deemed admissions that were beneficial to the defendants were withdrawn by the plaintiffs during the trial – plaintiffs did not respond to a notice to admit facts, some of which were ultimately proven at trial – whether a global reduction on the plaintiffs’ entitlement to costs should be ordered

CRIMINAL LAW – APPEAL AND NEW TRIAL – PARTICULAR GROUNDS OF APPEAL – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE – where the respondent pleaded guilty to one count of grievous bodily harm – where the respondent was sentenced to two and a half years’ imprisonment, with an immediate parole release date – where the Attorney-General appeals the sentence on the ground that it was manifestly inadequate given the respondent was not required to immediately serve actual imprisonment – whether the sentence imposed failed to address the relevant sentencing principles of deterrence, denunciation and the protection of the community – whether the sentence was manifestly excessive

PROCEDURE – COSTS – ASSESSMENT OF COSTS – ITEMISED BILL – where the applicant was in dispute and in related litigation with a bank – where applicant was obligated to pay the bank all costs, charges and expenses incurred in connection with enforcement of the bank’s rights – where the applicant seeks an order that the respondent produce an itemised bill of legal fees to enable a costs assessment to be undertaken – where the applicant submits that the respondent has not complied with the act in not providing an itemised bill within 28 days of the applicant’s request – where the respondent submits that first the respondent is not a law practice within the meaning of the act, that second the act did not give the applicant a right to the remedy of an order for the provision of an itemised bill as submitted by the applicant and that third the applicant would in any event be out of time to apply for the appropriate relief under the act and substantial delay in making a request remains unexplained – whether the applicant as a third party payer within the act was entitled to an itemised bill as requested from the respondent

CONTRACTS – GENERAL CONTRACTUAL PRINCIPLES – CONSTRUCTION AND INTERPRETATION OF CONTRACTS – INTERPRETATION OF MISCELLANEOUS CONTRACTS AND OTHER MATTERS – where the parties entered into a long term contract under which the first appellant (“the Supplier”) agreed to supply cement products to the first respondent (“the Purchaser”) – where the contract contained a price adjustment mechanism which allowed the Purchaser to serve a notice on the Supplier containing market pricing evidence – where such a notice would have the effect of reducing the price of products under the contract unless the Supplier elected to suspend supply for six months – where the Purchaser served a notice containing market pricing evidence that consisted of a quotation for supply commencing at a future date, rather than at the date of the notice – whether this was a valid and effective pricing notice under the clauseCONTRACTS – GENERAL CONTRACTUAL PRINCIPLES – CONSTRUCTION AND INTERPRETATION OF CONTRACTS – INTERPRETATION OF MISCELLANEOUS CONTRACTS AND OTHER MATTERS – where, in response to the purported pricing notice served by the Purchaser, the Supplier gave the Purchaser a notice stating that the notice was invalid and referring the matter to the dispute resolution process under the contract – where this notice also stated that if, as the Purchaser contended, the notice was valid, the Supplier elected to suspend supply under the contract – whether the Supplier waived any invalidity in the Purchaser’s notice by its notice electing to suspend supply – whether the Supplier’s notice was effective to suspend supply under the contractCONTRACTS – GENERAL CONTRACTUAL PRINCIPLES – CONSTRUCTION AND INTERPRETATION OF CONTRACTS – INTERPRETATION OF MISCELLANEOUS CONTRACTS AND OTHER MATTERS – where the price adjustment clause provided that if, during a suspension period, the Purchaser ceased to be able to or chose not to procure supply at the price specified in the pricing notice giving rise to the suspension, the Purchaser was obliged to resume purchasing cement products from the Supplier at the prevailing prices under the contract – whether “supply” in this clause referred to supply of the quantity of cement products the Purchaser was obliged to purchase from the Supplier under the Agreement or supply of a lesser quantity set out in the pricing notice – whether any suspension period was brought to an end pursuant to this clauseCONTRACTS – GENERAL CONTRACTUAL PRINCIPLES – CONSTRUCTION AND INTERPRETATION OF CONTRACTS – INTERPRETATION OF MISCELLANEOUS CONTRACTS AND OTHER MATTERS – where the Purchaser gave a further pricing notice during a later suspension period – whether, upon the proper construction of the clause, the Purchaser was permitted to serve a pricing notice during a suspension period – whether the pricing notice was effective to reduce the price under the contract

DAMAGES – GENERAL PRINCIPLES – GENERAL AND SPECIAL DAMAGES – where the plaintiff appears for himself in a claim for damages for personal injury – where the plaintiff’s pleadings are deficient in many respects – whether the plaintiff ought to be constrained in his evidence about loss and damage because of the inadequacy of his pleadings