ADMINISTRATIVE LAW – JUDICIAL REVIEW – REVIEWABLE DECISIONS AND CONDUCT – DECISIONS TO WHICH JUDICIAL REVIEW LEGISLATION APPLIES – EXCLUDED DECISIONS – OTHER DECISIONS – where the appellant became a PhD candidate at the Queensland University of Technology – where the appellant’s PhD candidature was terminated – where the appellant issued proceedings as plaintiff seeking judicial review of the decision – where the respondent University applied for summary judgment – where the learned primary judge dismissed the claim pursuant to s 48 of the Judicial Review Act 1991 (Qld) – where the appellant submits on this appeal that he also seeks “judicial review under common law” – where the appellant submits that the learned primary judge did not consider evidence that showed “strong materials” concerning the merits of his case – where the appellant submits that there is a contract between himself and the University – whether the University’s termination of the appellant’s PhD candidature is amenable to judicial review – whether the learned primary judge erred in dismissing the claim

https://www.sclqld.org.au/caselaw/QCA/2020/279

APPEAL AND NEW TRIAL – PROCEDURE – QUEENSLAND – TIME FOR APPEAL – EXTENSION OF TIME – where the respondents, carrying on business as money lenders, loaned $500,000 to a corporation – where a loan agreement was executed and the appellants entered into a deed of guarantee and indemnity, under which they jointly and severally guaranteed the performance of repayment under the loan agreement – where a demand was made on the appellants pursuant to the guarantee on 8 April 2016 – where the lender commenced proceedings against the appellants on 29 April 2016 – where defences were filed by both appellants on 16 June 2016 – where Mr Gray filed an amended defence on 11 April 2017, and a pleading in substantially the same terms as Mr Gray’s amended defence was served on behalf of Mrs Stevenson – where on 14 March 2019 Flanagan J ordered that the amended defences be struck out – where in Appeal No 5644 of 2020 the appellants seek to challenge those orders – where the application seeking an extension of time within which to appeal was filed more than 13 months out of time – whether an extension should be grantedAPPEAL AND NEW TRIAL – PROCEDURE – QUEENSLAND – TIME FOR APPEAL – EXTENSION OF TIME – where on 14 November 2016 the lender filed an application for summary judgment – where it was adjourned by agreement – where on 20 February 2019 the respondents filed a further application for summary judgment or, alternatively, an order striking out the amended defences – where that application was heard by Flanagan J – where on 3 May 2019 an application for summary judgment was filed – where the application came on for hearing by Burns J on 31 May 2019 – where Burns J gave summary judgment on 16 July 2019 – where in Appeal No 13895 of 2019 the appellants seek to challenge those orders – where the application seeking an extension of time within which to appeal was filed four months out of time – whether an extension should be granted

APPEAL AND NEW TRIAL – APPEAL – GENERAL PRINCIPLES – RIGHT OF APPEAL – WHEN APPEAL LIES – ERROR OF LAW – WHAT IS – DISTINCTION BETWEEN QUESTION OF LAW AND QUESTION OF FACT – where the owner of two townhouses lodged statutory insurance policy claims for defective residential construction work before selling the townhouses – where the respondent refused the claims – where the Queensland Civil and Administrative Tribunal (QCAT) dismissed the application to review the decisions of the respondent – where the Tribunal’s decision was upheld on appeal by the appeal tribunal of QCAT – where the appeal tribunal found that the Tribunal’s failure to make findings in relation to category 1 defects was an error, but there was no consequence of that failure – where the appeal tribunal concluded that the claims were made out of time and there was no evidence to base an exercise of discretion under the policy to allow an extension of time – where the appeal tribunal found it was open to the Tribunal to exercise the discretion to refuse a claim under the policy for rectification work undertaken without approval by the respondent – whether the appeal tribunal made an error of law

PROCEDURE – CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS – ENDING PROCEEDINGS EARLY – SUMMARY DISPOSAL – SUMMARY JUDGMENT FOR DEFENDANT OR RESPONDENT: STAY OR DISMISSAL OF PROCEEDINGS – where the appellants are the holders of taxi service licences issued under s 69 of the Transport Operations (Passenger Transport) Act 1994 (Qld) – where the appellants brought a claim against the State of Queensland, the respondent to this appeal, for damages for breach of contract, equitable compensation and for damages under the Australian Consumer Law – where these claims were pleaded to arise from legislative amendments to the Transport Operations (Passenger Transport) Act which introduced a new form of public passenger service called the “booked hire service” – where the respondent sought, and was granted, summary judgment for the parts of the claim based on breach of contract and on equitable grounds – where the appellants were given leave to amend their claim based on the Australian Consumer Law – where the appellants now appeal against summary judgment – whether the learned primary judge erred in granting summary judgment

CRIMINAL LAW – APPEAL AND NEW TRIAL – PROCEDURE – NOTICES OF APPEAL – ABANDONMENT OF APPEAL – where, after a two week trial, the applicant was found guilty of five drug offences – where the applicant previously appealed against her convictions and also sought leave to appeal against her sentences – where at the hearing of her application for leave to appeal against sentence in 2019, the applicant’s counsel abandoned the appeal against conviction – where the applicant’s sentence application was refused – where the applicant now applies to reinstate her abandoned conviction appeal – where the applicant led evidence in support of her application – whether the appeal would have any prospects of success – whether the interests of justice make it necessary to reinstate the applicant’s conviction appeal

CRIMINAL LAW – APPEAL AND NEW TRIAL – VERDICT UNREASONABLE OR INSUPPORTABLE HAVING REGARD TO EVIDENCE – APPEAL DISMISSED – where the appellant was found guilty of an offence of rape – where it is argued that the complainant’s evidence was so affected by a number of inconsistencies, both with the evidence of other witnesses and with previous statements by the complainant, that the jury should have been left in doubt about the appellant’s guilt – whether the jury’s verdict should be set aside

CRIMINAL LAW – APPEAL – s 222 Justices Act 1886 (Qld) – where the appellant was convicted after a trial of 13 counts of fraud – where the appellant was sentenced to 6 months imprisonment wholly suspended for 18 months – where appeal against conviction for fraud charges – whether the property was applied to the use of the appellant – whether property deflected from the purpose of the ownerCRIMINAL LAW – APPEAL – s 222 Justices Act 1886 (Qld) – where the appellant was convicted after a trial of 13 counts of fraud – where the appellant was sentenced to 6 months imprisonment wholly suspended for 18 months – where appeal against conviction for fraud charges – whether the application of property by the appellant was dishonest – whether the knowledge, belief or intent of the appellant shows the conduct was dishonest according to the standards of ordinary honest peopleCRIMINAL LAW – APPEAL – s 222 Justices Act 1886 (Qld) – where the appellant was convicted after a trial of 13 counts of fraud – where the appellant was sentenced to 6 months imprisonment wholly suspended for 18 months – where appeal against conviction for fraud charges –whether honest claim of right under section 22(2) of the Criminal Code available – whether consideration of that defence necessary where dishonesty not provedCRIMINAL LAW – APPEAL AGAINST SENTENCE – where convictions for fraud offences set aside and acquittals entered – where conviction recorded for offence of breach of bail – whether recording of conviction should be set aside

PLANNING AND ENVIRONMENT – APPEAL – appeal against refusal of code assessable development application for a material change of use and reconfiguration of a lot – food and drink outletASSESSMENT – COMPLIANCE WITH THE PLANNING SCHEME – Redland City Plan 2018 – district centre zone code – landscape code – whether compliance can be achieved by imposing development conditions – exercise of discretion pursuant to s 60(2) of the Planning Act 2016 (Qld)

SUCCESSION – MAKING OF A WILL – EXECUTION – INFORMAL DOCUMENT INTENDED TO BE WILL – OTHER CASES – where the applicant succeeded on the issue that was in dispute on the application – where following the primary decision, both parties applied for orders for costs – where the respondent submits that the applicant or the applicant’s solicitor should be ordered to pay the respondent’s costs to be assessed on the indemnity basis – where alternatively, the respondent submits that the applicant pay the respondent’s costs of the proceeding and the applicant be entitled to seek an indemnity for those costs and her own costs from the estate – where the applicant submits that the respondent or the respondent’s solicitor should pay the applicant’s costs of the proceeding to be assessed on the indemnity basis – whether the respondent should be ordered to pay the applicant’s costs of the proceeding based on the outcome that the applicant succeeded on the question in dispute on the application

CONTRACT — BREACH OF CONTRACT — PERFORMANCE OF CONTRACT – claim in debt under a loan agreement – where the plaintiff entered into a loan agreement with the defendant – where the loan agreement provided that the plaintiff was to advance $100,000 to the defendant to purchase a “franchise from REFUND home loans” – where the loan agreement purported to give the defendant “full discretion as to how Loan funds are dispersed in order to achieve mutually beneficial objectives and provide ongoing employment opportunities for both parties” – where the loan was fixed for three years at which point the capital and interest was due and payable to the plaintiff – where the loan agreement required the defendant to pay the plaintiff 15% interest per annum – where it is uncontentious that the plaintiff advanced $100,000 to the defendant by way of bank cheque – where the defendant subsequently disbursed those funds to third parties – whether this on proper construction of the loan agreement comprised repayment of the debt – whether the plaintiff repudiated the contract by demanding repayment of the principal before its due date – whether the defendant is in breach of the terms of the loan agreement – whether the claim is statute barredCONTRACT – FRAUDULENT MISREPRESENTATION – claim in deceit – where the plaintiff alleges the defendant induced the plaintiff to enter into the loan agreement and to lend the principal to the defendant by fraudulent misrepresentation as to how the defendant she intended to use the advance – where the plaintiff alleges that at the time of obtaining and bank cheque and entering into the loan agreement, the defendant never had the intention of applying the money for the purpose according to the loan agreement – – whether the plaintiff relied on the alleged misrepresentation – where the plaintiff does not give direct evidence of reliance – where the defendant contends that the loss was caused not by fraudulent misrepresentation but either the plaintiff’s repudiation of the contract or failure to pursue relevant person/s – whether the deceit claim is in any event statute barredEQUITY — EQUITABLE REMEDIES — MISREPRESEN TATIONS — INDUCEMENT – claim for breach of trust – where the plaintiff claims a constructive trust arose over money advanced under a loan agreement induced by fraudulent misrepresentation – where the plaintiff contends the constructive trust was breached by payment out of the money other than for the plaintiff’s benefit – where the loan agreement was not rescinded for fraudulent misrepresentation – whether the principle articulated in Black v S Freedman is applicable to taking money paid under a loan agreement induced by fraudulent misrepresentation as to the intended use of the advance – where the contract itself is an instrument of fraud – whether a constructive trust therefore arose upon receipt of the advance – whether the trust was breached by paying the money away once obtainedLIMITATION OF ACTIONS — STATUTES — DEFENCE – where the defendant relies on limitation defences to the contract and deceit claims – where, under the contract, distinct causes of action accrue at several dates on the proper construction of the loan agreement – where those causes of action accrue at dates which separate interest and principal payments are due – where each of those dates are less than six years before the proceeding was commenced – where, under the deceit claim, the plaintiff first suffered loss by the defendant’s deceit on delivery of the bank cheque – where the plaintiff commenced action after the six year period from suffering loss – whether the plaintiff can rely on statutory extensions – whether s. 38 Limitations of Actions Act (LAA) is applicable – whether the plaintiff did not discover the fraud until within the relevant six year period – what was the plaintiff’s state of mind at certain dates – what constitutes “the fraud” under s. 38 – where states of mind must be inferred – where, under the trust claim, s 27(1) LAA provides that there is no limitation period for fraudulent breach of trust – where s 43 LAA in effect provides that nothing in the LAA affects equitable defences – whether and to what extent is there an interaction between the LAA and equitable defences in relation to claims for fraudulent breach of trust

PROCEDURE – CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS – COSTS – GENERAL MATTERS – POWER TO AWARD GENERALLY – STATUTORY BASIS GENERALLY – where the plaintiff was awarded $41,560.00 in damages after a trial arising out of a motor vehicle accident – where the parties were heard as to costs – where the judgment amount was less than the lower limit of $44,070.00 pursuant to s 27 of the Motor Accident Insurance Regulation 2018, less than the plaintiff’s mandatory final offer but more than the insurer’s mandatory final offer – where the judgment amount was more than the defendant’s formal offer under the Uniform Civil Procedure Rules 1999 – whether the court should award indemnity costs to the plaintiff from the date of the formal offer – whether the court should order that no costs be awarded, because the judgment is less than the lower offer limit of $44,070.00 pursuant to s 27 of the Motor Accident Insurance Regulation 2018, and is less than the claimant’s mandatory final offer but more than the insurer’s mandatory final offer (thus, s 55F(2)(a) of the Act is engaged).

CRIMINAL LAW – APPEAL AND NEW TRIAL – PROCEDURE – POWERS OF COURT ON APPEAL – TO CONSIDER FRESH EVIDENCE – where the appellants were found guilty of an offence under s 88(2) of the Nature Conservation Act 1992 and fined $2,000 – where the men are from the Torres Strait Island – where the men had been fishing and took a turtle for a wedding in accordance with traditional and customary methods of hunting – where the men do not have Native Title over the area – where the appellants seek to agitate whether they had an honest claim of right – where the appellants seek to adduce fresh evidence to establish an honest claim of right – whether the justice of the case calls for the admission of fresh evidence – where the appellants were unable to present evidence properly due to being unrepresented at the initial hearing – whether an application to adduce fresh evidence should be allowed

PROCEDURE – CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS – RECOVERY OF COSTS – REPAYMENT – where the plaintiff won a substantial sum of money – where the plaintiff advanced money to the first defendant for the repayment of the second defendants mortgage – where the plaintiff requests repayment of the money advanced to the first defendant on the basis the money was a loan – where the first defendant contends the payment of money from the plaintiff was a giftEQUITY – PRINCIPLES – UNJUST ENRICHMENT – whether there is a case of unjust enrichment in relation to the second defendant – where the second defendant did not request the loan be advanced from the plaintiff – where the payment of the money was a benefit that was provided to the second defendant in a personal capacity – where the plaintiff paid the money to the first defendant to assist the second defendant on the promise that it would be repaid – where the money advanced by the plaintiff allowed the first defendant to receive an interest free loan minus establishment fees – where the money advanced by the plaintiff allowed the second defendant to retain her home in circumstances where she would have otherwise been evicted

PROCEDURE – CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS – where judgment was delivered in a family provision application – where the effect of the judgment was to order further provision for the applicants, inclusive of costs – where the consequence of the judgment was to order the sale of property which the respondent by election resides in – whether the Court has power to order possession as an incident of the power to order provision – whether any such power should be exercised the Court – whether the Court has power to order payment of a debt due by the residuary beneficiary to the applicants as an incident of the power to order provision

COSTS – COSTS ASSESSMENT ORDER – ambit of the orderCOSTS – COSTS REASSESSMENT CERTIFICATE – calculation of the refund – whether the solicitors have an entitlement to retain moneys outside of the assessment

CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE – where the applicant was sentenced for numerous fraud type offences – where the offending occurred over a period of five years – where the applicant had a relevant prior criminal history and history of offending against the Fair Trading Act 1989 (Qld) – where the applicant suffers from health complaints including cardiomyopathy, sleep apnoea, injuries from a motorcycle accident, seizures and fractured teeth – where the effective sentence was seven years’ imprisonment with all sentences to be served concurrently – where the sentencing judge expressly took the applicant’s medical issues into account by fixing the date of eligibility for parole after the applicant had served a little less than two years in custody – whether the sentence is manifestly excessive

CRIMINAL LAW – APPEAL AGAINST SENTENCE – SENTENCING JUVENILES – where the applicant seeks an extension of time for sentence review – where the sentence review application was made out of timeCRIMINAL LAW – APPEAL AGAINST SENTENCE – SENTENCING JUVENILES – where the child was sentenced to various offences – where the child was sentenced to 100 hours community service and 12 months’ probation – where no convictions were recorded – where the child had spent 35 days in custody – where the probation order imposed included a number of extra conditions – where a pre-sentence report was before the court in relation to the child – where the child had a prejudicial upbringing – where the child had an acceptable level of empathy for the victims – where the child was taking constructive steps to disassociate from anti-social behaviour – where s 193(2) of the Youth Justice Act 1992 (Qld) sets out circumstances in which the court may impose additional probation conditions – whether the Magistrate complied with s 193(2) of the Youth Justice Act 1992 (Qld) when imposing extra probation conditions – whether the sentence imposed by the learned Magistrate was manifestly excessive due to the child previously serving 35 days in custody

CRIMINAL LAW – SENTENCE – SENTENCING ORDERS – ORDERS AND DECLARATIONS RELATING TO SERIOUS VIOLENT OFFENDERS OR DANGEROUS SEXUAL OFFENDERS – DANGEROUS SEXUAL OFFENDER – GENERALLY – where the 31 year old respondent is serving a period of imprisonment for sexual offences committed upon three girls – where his full time release date is 19 December 2020 – where the applicant seeks an order under Division 3 of the Dangerous Prisoners (Sexual Offenders) Act 2003 – where there is expert psychiatric opinion to the effect that, to address the risk posed by the respondent, he ought to complete a sexual offenders treatment program in custody prior to his release – where the respondent wishes to complete such a program prior to his release – whether adequate protection of the community can only be achieved by an order for the respondent’s continuing detention

PLANNING AND ENVIRONMENT – APPEAL AGAINST DECISION OF DEVELOPMENT TRIBUNAL – where the Council refused a development application for a development permit for a material change of use for a dwelling house – where the owner of the land appealed to the Development Tribunal – whether the Development Tribunal erred in lawPLANNING AND ENVIRONMENT – APPEAL AGAINST DECISION OF DEVELOPMENT TRIBUNAL – NATURE OF THE APPEAL – where the Council refused a development application for a development permit for a material change of use for a dwelling house – where the owner of the land appealed to the Development Tribunal – whether the nature of the appeal to the Planning and Environment Court permits the Court to make findings of fact inconsistent with undisturbed findings of the Development Tribunal