CIVIL PROCEDURE – APPLICATION – DEFAULT JUDGMENT – Where the applicant seeks to issue a Third Party Statement of Claim to the third party- Second defendant applies for court ordered mediation – Negligence for damages – 192 Uniform Civil Procedure Rules 1999 (Qld)

CRIMINAL LAW – SENTENCE – SENTENCING ORDERS – ORDERS AND DECLARATIONS RELATING TO SERIOUS OR VIOLENT OFFENDERS OR DANGEROUS SEXUAL OFFENDERS – DANGEROUS SEXUAL OFFENDER – GENERALLY – where the respondent was subject to a supervision order pursuant to Division 3 of the Dangerous Prisoners (Sexual Offenders) Act 2003 – where the respondent contravened a condition of that supervision order – where the original supervision order was amended to include further conditions – where the respondent was made subject to a further supervision order subject to Division 4A of the Act and subject to requirements until 2022 – where the respondent has contravened a condition of that order by having contact with two males under 16 – where the respondent has been assessed by psychiatrists – whether the adequate protection of the community can be ensured by the existing supervision order – whether the duration of the existing supervision order should be extended

INTERPRETATION – GENERAL RULES OF CONSTRUCTION OF INSTRUMENTS – COMMERCIAL AND BUSINESS TRANSACTIONS – PARTICULAR TRANSACTIONS – where the amount payable was in dispute – where there were two alternative interest rates applicable to the deed – where the deed was varied by subsequent agreement – where the later deed was silent as to whether simple or compound interest applied – where it was disputed the proper construction of the later deed was that interest was to capitalise monthly – where a rebate scheme to incentivise payment was introduced in the later deed – whether the amount payable on the loan at the time of sale had been correctly calculatedREAL PROPERTY – VALUATION OF LAND – METHODS OF VALUATION – HYPOTHETICAL SALE CONCEPT – where the two expert valuers diverged significantly in their valuation of the subject land – where the experts disagreed on the potential development of the land – where one expert had made errors in methodology which affected the credibility of their evidence – whether the land was sold at an undervalue

CONTRACTS – GENERAL CONTRACTUAL PRINCIPLES – PARTICULAR PARTIES – VENDOR AND PURCHASER – where the plaintiff purchased a swim school from the defendant – where the contract stipulated that the defendant would offer the plaintiff training and support for six months after the sale – where training was offered but not provided – whether the defendant’s failure to provide training and support constituted a breach of the contract – whether the plaintiff’s business failed as a consequence of the defendant not providing training and support

CRIMINAL LAW – SENTENCE – SENTENCING ORDERS – ORDERS AND DECLARATIONS RELATING TO SERIOUS OR VIOLENT OFFENDERS OR DANGEROUS SEXUAL OFFENDERS – DANGEROUS SEXUAL OFFENDER – GENERALLY – where the respondent was subject to examination by psychiatrists for the purposes of the application – where the respondent breached conditions of past supervision order – whether the respondent should be released into the community under a new supervision order

EQUITY – EQUITABLE REMEDIES – INJUNCTIONS – INTERLOCUTORY INJUNCTIONS – EX PARTE APPLICATIONS – NON-DISCLOSURE OR MISREPRESENTATION – where search order granted ex parte – where defendants apply for discharge of search order on the basis of material non-disclosure – whether plaintiff failed to make full and frank disclosure – whether search order should be discharged on the basis of material non-disclosure – whether documents produced from execution of search order are a sufficient reason to refuse the application to set aside search order on the ground of material non-disclosure

https://www.sclqld.org.au/caselaw/QMHC/2018/14

Costs – where the plaintiff’s claim not properly articulated by her legal advisers – whether to award costs on an indemnity basis

ENVIRONMENT AND PLANNING – ENVIRONMENTAL PLANNING – PLANNING SCHEMES AND INSTRUMENTS – QUEENSLAND – OTHER MATTERS – where the landowner applied to clear vegetation to create firebreaks on each boundary of some land – where the primary judge allowed the clearing of firebreaks on some boundaries but not others – where the primary judge held that residential housing was infrastructure – where the primary judge held that the work was to protect infrastructure and was therefore essential management – where the landowner argues that fences were being maintained by a firebreak and that therefore the work was essential development – whether residential housing was infrastructure under the Sustainable Planning Act 2009 (Qld) – whether the maintenance of infrastructure under the Sustainable Planning Act 2009 (Qld) included the construction of a firebreak – whether the work was essential development or assessable developmentENVIRONMENT AND PLANNING – ENVIRONMENTAL PLANNING – PLANNING SCHEMES AND INSTRUMENTS – CONSISTENCY OF PLANNING SCHEMES WITH OTHER LEGISLATION – where the landowner applied to clear vegetation to create firebreaks on each boundary of some land – where the primary judge allowed the clearing of firebreaks on some boundaries but not others – where the relevant planning scheme designated the work to be assessable development but the relevant regulation did not – where the relevant regulation only prescribed certain development to be assessable development – where the primary judge held that the regulation and the planning scheme were inconsistent as to whether the work was assessable development – where the primary judge held that the relevant provision of the planning scheme was consequently of no effect – whether there was an inconsistency between the regulation and the planning scheme – whether the planning scheme was of effect

APPEAL AND NEW TRIAL – GENERAL PRINCIPLES – RIGHT OF APPEAL – WHEN APPEAL LIES – OTHER CASES – where the applicant applies for leave to the Court of Appeal to appeal a decision of the QCAT Appeal Tribunal – where the identification of an error of law is not sufficient, of itself, to warrant a grant of leave – where leave will be granted where a substantial injustice has been sustained or an important principle arises – where the applicant applies on the sole basis that the appeal raises issues of public importance – whether leave to appeal ought to be grantedTAXES AND DUTIES – LAND TAX – LIABILITY FOR LAND TAX – where the respondent and his wife have three adult children – where the respondent was the registered owner of three residential properties other than his own residence – where he was assessed as liable for land tax in each of the 2014 and 2015 years calculated on the aggregate value of the three properties – where the QCAT Appeal Tribunal found the value of the properties should not be aggregated for the purposes of land tax calculation – whether the Appeal Tribunal erredEQUITY – TRUSTS AND TRUSTEES – DISCRETIONARY TRUSTS – CREATION AND EFFECT GENERALLY – where the respondent contended that each property was held by him as trustee for one of his children – where the QCAT Appeal Tribunal found that each child had agreed to rent each property from their father on the basis that their parents would make mutual wills leaving each property to the relevant child – whether the Appeal Tribunal erred

MAGISTRATES – APPEAL AGAINST CONVICTION – s 222 JUSTICES ACT 1886 – where the appellant was sentenced on 31 charges after pleading guilty – where the appellant appeals on the basis that the head sentence and subsequent concurrent sentences were manifestly excessive – whether the learned Magistrate erred in their calculation of Pre-Sentence Custody – whether the learned Magistrate erred in exercising their sentencing discretion – s9(2); s13(1); Penalties and Sentence Act 1992 (Qld) – weather the learned Magistrate erred in their consideration of parity with the co-offender

https://www.sclqld.org.au/caselaw/QCA/2019/46

CRIMINAL LAW – APPEAL AND NEW TRIAL – VERDICT UNREASONABLE – APPEAL DISMISSED – PARTICULAR OFFENCES – OFFENCES AGAINST THE PERSON – SEXUAL OFFENCES – RAPE AND SEXUAL ASSAULT – EVIDENCE – where the appellant was convicted on one count of rape of the appellant’s stepdaughter – where the complainant gave evidence by way of two police interviews as well as pre-recorded oral evidence – where the complainant also made preliminary complaint evidence – where the complainant and the complainant’s sister gave evidence of the appellant’s sexual interest in the complainant – where the appellant takes issue with the evidence lead at trial – where the appellant argued on appeal that there was a lengthy delay between the time the alleged offence took place and the first complaint and the complainant was uncertain as to her age at the time of the alleged offence – where the appellant also argued that the sexual interest evidence was equivocal – whether it was open on the evidence for the jury to have been satisfied of the appellant’s guilt beyond reasonable doubtCRIMINAL LAW – APPEAL AND NEW TRIAL – VERDICT UNREASONABLE – APPEAL DISMISSED – PARTICULAR OFFENCES – OFFENCES AGAINST DECENCY AND MORALITY – OTHER OFFENCES – where the appellant was also convicted on one count of recording in breach of privacy – where a photograph was discovered on the family computer of the complainant showering which had been taken through a gap in the bathroom door frame – where the photograph did not have any attribute information – where the appellant argued on appeal that it was not open to the jury to have been satisfied beyond reasonable doubt of the appellant’s guilt of this offence – where the appellant argued that it was more likely that the photograph was taken after the appellant had ceased living at the house – whether it was open to the jury to have been satisfied beyond reasonable doubt that the appellant had taken the photograph

ADMINISTRATIVE LAW – JUDICIAL REVIEW – REVIEWABLE DECISIONS – APPLICATION FOR A STATUTORY ORDER OF REVIEW – where the applicants faced committal proceedings – where the first respondent refused to make a direction that the prosecutor call certain witnesses to enable their cross-examination – where the second respondents committed the applicants for trial without considering the evidence, in the absence of their consent – where the applicants seek review of the decision to refuse the direction and the decision to commit – whether each decision involved error – whether as a matter of discretion relief should be granted

CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Forfeiture – respondent pleaded guilty to fraud and attempted fraud and was sentenced – Crown application for forfeiture of items seized pursuant to search warrants – whether electronic items seized should be forfeited to the State

PLANNING AND ENVIRONMENT – APPEAL – where appeal against the refusal of a development application seeking approval to realign boundaries of land and a material change of use for a dwelling house on a small lot – where land included in the Character residential zone – where minimum lot size in the zone is 450 square metres – where resulting lot size smaller than the prescribed minimum – whether new lots will maintain a block pattern that accommodates traditional backyards and large trees – whether the application should be approved in the exercise of the discretion

PLANNING AND ENVIRONMENT – APPEAL – COSTS – where approval granted for reconfiguring a lot – where appeal against conditions requiring the amalgamation and dedication of two lots for environmental conservation purposes – where respondent changed position to contend for alternative conditions – where appeal was successful – whether the proceeding frivolous or vexatious – whether respondent sought to introduce new material – whether respondent discharged its responsibilities in the proceeding – whether costs should be awarded under s.60(1) of the Planning & Environment Court Act 2016 – whether costs assessed on standard or indemnity basis

CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST CONVICTION – s 222 Justices Act – where the appellant was convicted of exceeding the speed limit – where the evidence against the appellant relied upon a video recording of the appellant riding his motorcycle – calculation of speed – opinion evidence – scientific and expert evidence – admissibility of evidence – reconstruction and experimentation – appeal by way of rehearing – sufficiency of evidence

PROCEDURE – CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS – COSTS – GENERAL RULE: COSTS FOLLOW THE EVENT – COSTS OF AND INCIDENTAL TO PROCEEDING – where an incompetent application for an extension of time in which to appeal and notice of appeal were struck out – where a self-represented litigant was given notice that the application and appeal must be struck out and that costs would be sought on an indemnity basis if proceedings were not withdrawn – whether costs should follow the event – whether any portion of costs should be awarded on an indemnity basis – whether costs should be paid out of the appeal costs fund

CRIMINAL LAW – APPEAL AND NEW TRIAL – PARTICULAR GROUNDS OF APPEAL – CONDUCT OF DEFENCE COUNSEL – where the appellant was convicted of six offences, namely, indecent treatment of a child under 16 and under 12 (counts 1, 2, 4 and 5) and rape (counts 3 and 6) – where the appellant contended on appeal that his barrister was incompetent – where he felt that his barrister would not let him give evidence – where he contended his barrister failed to bring particular evidence before the jury – whether the appellant’s barrister did not represent him in the way that he wishedCRIMINAL LAW – APPEAL AND NEW TRIAL – PARTICULAR GROUNDS OF APPEAL – CONDUCT OF DEFENCE COUNSEL – where the appellant contended that the complainant’s cross-examination by defence counsel gave rise to a miscarriage of justice – where the fact that the plaintiff lied from time to time was established at trial – where it was submitted by the appellant that the cross-examination effectively promoted the complainant as a witness of credit and resulted in an unfair trial for the appellant – where defence counsel did not suggest there was a possibility of collusion with the complainant’s friend who had made a similar complaint – whether the conduct of the trial by the appellant’s barrister was incompetent and in particular the cross-examination of the complainant gave rise to a miscarriage of justiceCRIMINAL LAW – APPEAL AND NEW TRIAL – VERDICT UNREASONABLE OR INSUPPORTABLE HAVING REGARD TO EVIDENCE – where the appellant was convicted of six offences, namely, indecent treatment of a child under 16 and under 12 (counts 1, 2, 4 and 5) and rape (counts 3 and 6) – where all counts concerned the nearly nine year old daughter of the appellant’s de facto partner – where the complainant admitted to lying – where there were many contradictions in her accounts – where there was no DNA evidence in support of the allegations – where her account was contradicted by her mother – whether the convictions are unsafe and unsatisfactory having regard to the whole of the evidence