Current Legal Issues Seminar Series: Jury Directions, the Struggle for Simplicity and Clarity

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1 14 September 2018 [2018] 36 QLR News and Events 2 Current Legal Issues Seminar Series: Jury Directions, the Struggle for Simplicity and Clarity Australian Academy of Law Queensland Lecture Litigation Funding: Access and Ethics 2018 Clayton Utz Alexander Christy Freeleagus Oration CIARB Event: Independence, bias and conflicts in International Commercial Arbitration Book Reviews Editors Selection of New Queensland Cases 5 Whether the trial judge had placed undue weight on the impact of the defendant s incarceration upon her children in ordering a wholly suspended sentence: R v Hannan; Ex parte Attorney-General (Qld) [2018] QCA 201 Whether a company that carries out building work wholly in another State falls within s 56AC of the QBCC Act: Midson Construction (Qld) Pty Ltd v Queensland Building and Construction Commission [2018] QSC 199 Whether a testator having delusions had testamentary capacity; application of the test for testamentary capacity in Banks v Goodfellow to capacity to instruct a solicitor to unilaterally sever a joint tenancy: Hamill v Wright [2018] QSC 197 Whether the Attorney General had satisfied the test in s 13 of the DPSOA of demonstrating reasonable grounds for thinking that the defendant is a serious danger to the community in the absence of a further supervision order: Attorney-General v Fardon [2018] QSC 193 Whether the trial judge had erred by failing to take into account contemporaneous documents when assessing the credibility of witnesses: Kelly v Slade [2018] QCA 197 Whether an appeal from a decision of QCAT which reconsidered the Commissioner s decision involved a question of law: Commissioner for Liquor and Gaming v Farquhar Corporation [2018] QCA 202 Whether a party can effectively issue a notice of intention to proceed under r 389(1) one year and 11 months after the last step in the proceeding: Way v Primo Rossi Pty Ltd [2018] QCA 203 Appeals 14 New Counsel in Practice 15 Public Notices 17 Notice of intention to apply for Grant of Probate or Letters of Administration Notice of intention to apply for Admission to the Legal Profession Notice of Missing Will General Information 98 The Queensland Law Reporter is published by the Incorporated Council of Law Reporting for the State of Queensland ABN , Queen Elizabeth II Courts of Law, 415 George Street, Brisbane, Queensland 4000 Australia. enquiries@queenslandreports.com.au

2 NEWS AND EVENTS Sarah Holland of Counsel (Editor) Bianca Kabel of Counsel (Sub-Editor) CURRENT LEGAL ISSUES SEMINAR SERIES: JURY DIRECTIONS, THE STRUGGLE FOR SIMPLICITY AND CLARITY Date: Thursday, 20 September 2018 Time: Venue: Presenter: Commentator: Chair: 5 pm to 6.45 pm Banco Court, Queen Elizabeth II Courts of Law The Honourable Justice Virginia Bell AC, High Court of Australia Professor Johnathan Clough, Monash University The Honourable Justice Roslyn Atkinson AO, Supreme Court of Queensland In the past decade, the Law Reform Commissions of Queensland, New South Wales and Victoria have addressed references on the content of jury directions in criminal trials. The impetus for these references was the perception that directions that judges are required to give are often excessively long and complex, making it doubtful that they are understood by the intended audience. Allied to this perception, was the concern that the intended audience has ceased to be the jury and has become the appellate court. There is consensus on the desirability of directions that are short and readily comprehensible but there are differing views about how that goal is achieved consistently with ensuring the fair trial of the accused. Victoria alone has addressed the problem by legislation (the Jury Directions Act 2013 since repealed and replaced by the Jury Directions Act 2015 as recently amended). Whether legislative prescription is the answer remains to be seen. Legislative moulding of the substantive criminal law not uncommonly adds complexity as the directions on consent necessitated under amendments to the Crimes Act 1958 (Vic) discussed in R v Getachew (2012) 286 ALR 196 illustrate. On the other hand, the High Court s endeavour to frame simple, clear directions in Clayton v The Queen (2006) 81 ALJR 439 has been criticised as a trap for young players (Eames, Tackling the Complexity of Criminal Trial Directions: What Role for Appellate Courts, (2007) 29 No 2 Aust Bar Review 161). AUSTRALIAN ACADEMY OF LAW QUEENSLAND LECTURE LITIGATION FUNDING: ACCESS AND ETHICS Date: Thursday, 4 October 2018 Time: Venue: Presenter: Commentator: 5.15 pm to 6.30 pm Banco Court, Queen Elizabeth II Courts of Law The Honourable Philip Cummins AM The Honourable Justice Sarah Derrington The Hon Phillip Cummins AM will deliver a lecture on "Litigation Funding: Access and Ethics". Mr Cummins is the Chair of the Victorian Law Reform Commission which has published its Discussion Paper on "Access to Justice: Litigation Funding and Group Proceedings". The Hon Justice Sarah Derrington has agreed to give a commentary. The Australian Law Reform Commission, of which her Honour is the President, is conducting an inquiry into class action proceedings and third party litigation funders. Queensland Law Reporter 14 September 2018 [2018] 36 QLR 2

3 For more information, please see here CLAYTON UTZ ALEXANDER CHRISTY FREELEAGUS ORATION Date: Friday, 19 October 2018 Time: Venue: Speaker: Commencing at 5.30 pm and followed by drinks and canapés until 8.00 pm Banco Court, Level 3, QEII Courts of Law, 415 George Street, Brisbane The Honourable Justice Walter Sofronoff, President of the Queensland Court of Appeal The Queensland Chapter of the Hellenic Australian Lawyers Association (HAL) will hold the 2018 Clayton Utz Alexander Christy Freeleagus Oration on Friday 19 October. The Association is delighted to announce that the Oration will be delivered by the Hon Justice Walter Sofronoff, President of the Queensland Court of Appeal, on the topic "The Influence on Hellenistic Philosophy upon Christianity. It is free for HAL members, $25.00 for students, and $50.00 for non-members. To book and pay online visit hal.asn.au/qldoration2018. For further information please contact Mal Varitimos QC at CIARB EVENT: INDEPENDENCE, BIAS AND CONFLICTS IN INTERNATIONAL COMMERCIAL ARBITRATION Date: Tuesday, 25 September 2018 Time: Venue: Chair: 5.15pm to 6.15pm Court 1, Federal Court of Australia The Hon Justice Stephen Burley, Judge of the Federal Court of Australia This is the third event in 2018 of the International Arbitration Series, a joint initiative of the CIArb Australia and Federal Court of Australia. To be held in Sydney, the seminar will be broadcast across Australia via the Federal Court network. Addressed by a distinguished chair and panel, the topics of the seminar will focus on Independence, Bias and Conflicts in International Commercial Arbitration. This will be followed by a Q & A session. The topics to be covered include: recent approaches to the test to challenge arbitrators for lack of independence or impartiality Angus Stewart SC, NSW Bar; issue conflicts arising in international arbitrations Max Bonnell, Partner, White & Case; and approach of the courts to challenges relating to bias, conflicts and the conduct of arbitral tribunals Jo Delaney, Partner, Baker McKenzie. For further information and to RSVP for this event (by 21 September 2018), please see here. Queensland Law Reporter 14 September 2018 [2018] 36 QLR 3

4 BOOK REVIEWS Troy Anderson, Commonwealth Criminal Law, (The Federation Press, Second Edition, 208) This is the second edition of a work which, in 2014, became a first point of reference for those researching Commonwealth offences. In this edition, the author builds on his works, including more detailed analysis of child exploitation by way of online pornography and abuse, and counter-terrorism (in the chapter now titled Security of the Commonwealth ). The key subject areas for Commonwealth offences are delineated in separate chapters offences against the Commonwealth, offences under the Corporations Act 2001 (Cth), money laundering and proceeds of crime, the security of the commonwealth, serious drug and precursor offences, and child exploitation. The areas covered make full reference to the Criminal Code and include recent and relevant authorities. In addition, the chapter on Sentencing, Imprisonment and Release analyses the sentencing regime for offences committed under Commonwealth legislation. This chapter also provides an overview of the matters a sentencing court is required to consider as well as useful procedure and practical guidelines. The book is succinctly written and would be a useful reference tool for practitioners and students. The author should be commended on his research and assistance to the profession in preparing this useful summary of the law. A R Hellewell of Counsel Peter Butt, Legal Usage: A Modern Style Guide (LexisNexis Butterworths, 2018) Lawyers have two main failings. One is that they do not write well. The other is that they think they do. This aphorism is, according to Peter Butt, increasingly true today. Legal usage and writing is often taught poorly in universities. Thus, when students emerge into the profession, they mimic their role models - academics, text writers, judges and their colleagues - many of whom also never systematically studied the elements of good legal writing. This leads to a perpetuation of poor legal usage and writing within the profession. In his new book, Legal Usage: A Modern Style Guide, Peter Butt sets out to disrupt this cycle. The book has two aims: first, to catalogue existing legal usage and second, to scrutinise each usage to determine whether it should endure. The book is not divided into chapters, but rather, catalogues terms alphabetically. Three areas are covered: practical usage; legal concepts; and words and phrases. Entries in the first category guide practitioners through the grammar and techniques of legal writing. For example, under the entry document design, the author steps the reader through the optimal line spacing and layout for a legal document. The next entry is document organisation, which provides a guide on the best way to order material in legal documents. Entries in the other two categories are often explained by reference to examples derived from case law. The author adopts two criteria: 1) whether it is effective in achieving its legal purpose and 2) whether it is comprehensible by a moderately motivated reader. If the author considers a term to be deficient, he suggests alternatives. The text advances some controversial suggestions as it attempts to guide the reader away from the arcane, and toward a method of legal communication that is accessible to all. For example, under the entry: LATIN, the author asserts that a Latin phrase should only be used where it has become accepted in English usage (e.g. ad hoc ). However, where the Latin phrase would need translation by a modern reader, it should be replaced with the equivalent English term. This assertion arises from the Queensland Law Reporter 14 September 2018 [2018] 36 QLR 4

5 author s conviction that lawyers should communicate through plain English and with power, precision and panache. Their written products should be engaging and be accessible to the ordinary reader. Use of the text will ensure a product free from legalese, rendering it an invaluable resource for practitioners and, more importantly, their clients. Editors note: This title is available in the Supreme Court Library Queensland T Boardman B Cowley and S Knight, Duties of Board and Committee Members, (Thomson Reuters, Sydney, 2018) Cowley and Knight s Duties of Board and Committee Members is truly the first of its kind. Despite the ready availability of literature on the statutory and general law duties of company directors and board members, few texts boast the detail necessary for one to comprehensively grasp the complexities of the area. The text begins with a broad overview of the historical developments of directors duties and the current state of the law. The reader is then progressed through the duties and liabilities of directors and board members in more specific capacities, for instance, nominee directors, financial services companies, statutory bodies, university council members and body corporate committee members. The authors are skilled at presenting succinct, jargon-free information. Frequent use of dot point summaries makes for accessible and speedy edification, a practical approach perhaps reflective of the authors extensive experience in practice. This pragmatism is a recurring characteristic; the authors are adept at not only outlining the state of the law, but processing it so as to draw the reader s attention to why it is important, and the likely impact on the behaviour of directors or board members. Consideration of the rationale behind certain duties and liabilities assists in contextualising these conclusions. A recommended, practical text for those seeking a comprehensive guide to the laws applying to directors and board members engaging in corporate activity. Editors note: This title is available in the Supreme Court Library Queensland H Hall-Pearce EDITORS SELECTION OF NEW QUEENSLAND CASES selected for reporting not selected for reporting, but otherwise noteworthy CRIMINAL LAW APPEAL AGAINST SENTENCE OFFENCE OF MONEY LAUNDERING WHERE THE HEAD SENTENCE OF THREE YEARS WAS WHOLLY SUSPENDED CONSIDERATION OF EFFECT OF INCARCERATION ON CHILDREN WHERE THE TRIAL JUDGE ALLOWED THIS CONSIDERATION TO OVERWHELM OTHER CONSIDERATIONS WHETHER SENTENCE MANIFESTLY INADEQUATE R v Hannan; Ex parte Attorney-General (Qld) [2018] QCA 201 Queensland Law Reporter 14 September 2018 [2018] 36 QLR 5

6 This case involved an appeal against sentence brought by the Attorney-General. It was contended that the wholly suspended sentence imposed for money laundering was manifestly inadequate. The Court of Appeal agreed, concluding that the trial judge had erred by allowing the effect of a period of imprisonment upon dependent children to overwhelm the sentencing discretion. The court imposed a new sentence that included five months of actual incarceration. Fraser and Morrison and Philippides JJA 31 August 2018 Background Sarah Hannan was convicted of the offence of money laundering. She was sentenced to three years imprisonment, which was wholly suspended. [2]. The money laundering offence arose out of the operation of a drug syndicate. The syndicate involved growing wholesale quantities of cannabis hydroponically at two properties in Willow Vale. [5]. Sarah Hannan s role in this operation was attempting to legitimise the money by creating a total of 45 false invoices, totalling $649,189, over a period of just under two and a half years. [15], [25]-[26]. The Attorney-General ( AG ) appealed against the sentence on the ground that it was inadequate. It was argued that the seriousness of the offence required a further period of actual incarceration. In particular, the AG contended that the sentencing discretion had miscarried because the trial judge had placed too much weight on the hardship that would be caused to Ms Hannan s three children if she were to be incarcerated. [38]. The approach to sentencing of the trial judge In sentencing Ms Hannan, the trial judge (Lyons SJA) outlined a number of factors that were taken into account. The mitigating factors included that Ms Hannan had pleaded guilty, had lost most of her assets, had previous good character, and indicated genuine remorse. [30]-[33]. Her Honour also placed particular weight on the impact that a period of further incarceration would have on Ms Hannan s children three daughters aged five, three and a half, and 21 months at the time of sentencing. [34], [55]. Her Honour said that hardship to children may be taken into account in exceptional circumstances. Her Honour concluded that there are some exceptional circumstances here. [34]. The approach of the Court of Appeal Morrison JA gave reasons with which Fraser and Philippides JJA agreed. [1], [74]. His Honour began by outlining the principles applicable when considering the impact of a sentence upon dependent children, as stated in R v Chong [2008] QCA 22. That decision states that the preponderance of authority is to the effect that this consideration may be brought to account only in exceptional or extreme circumstances and that if it is to be a relevant consideration it must not overwhelm others such as the need for deterrence, denunciation and punishment. [45]. His Honour proceeded to analyse the facts of Chong, and of a number of other decisions in which it was applied. [46]-[49]. The key thread running through these cases was that the effect on children would be severe if the parent was incarcerated. In Chong for example, the mother was the responsible mother of seven children, including a child she was still breast feeding, and her incarceration would require her removal to the mainland (from Mornington Island) and would result in the children being without any practical means of personal contact or visits with her. [46]. His Honour then turned to consider the facts of this case. His Honour noted that the sheer size of the drug operation, Ms Hannan s knowledge of the criminal activity, and the extent of her money laundering, were all factors pointing to a need for denunciation, deterrence and punishment. [53]. His Honour then compared the likely effect on the children of Ms Hannan being incarcerated, compared to Chong and the other authorities discussed. His Honour concluded that [u]nlike Chong, this is not a Queensland Law Reporter 14 September 2018 [2018] 36 QLR 6

7 case where the children will be left without proper care. [56]. The mother of Ms Hannan, and to some extent her parents-in-law, were able and willing to care for the children. [59]. Further, in general the children were happy and healthy and speech treatment for one of the children was progressing well. [60], [61]. Conclusion of the Court of Appeal Morrison JA concluded that this case was well removed from the sort of circumstances evident in Chong and the other cases referred to. [63]. The effect on the children in this case was not exceptional. Accordingly, the trial judge had fallen into error by permitting the hardship to the children to overwhelm the punishment which would otherwise have been appropriate. [63]. His Honour proceeded to resentence Ms Hannan. There was no challenge to the appropriateness of the head sentence of three years. [65]. However, his Honour considered that the circumstances required a sentence which includes a period of actual custody. [67]. Taking account of the mitigating circumstances, his Honour concluded that the period of five months imprisonment should be imposed. [69]. His Honour refused to exercise the residual discretion to dismiss the appeal because doing so would send entirely the wrong message to the community if offending of this kind were not to attract the appropriate penalty. [72]. Accordingly, the appeal was allowed and Ms Hannan was resentenced to a period that would include five months of actual incarceration. [73]. W Isdale STATUTES INTERPRETATION PARTICULAR WORDS AND PHRASES GENERALLY WHERE COMMISSION PROPOSED TO CANCEL COMPANY S LICENCE WHETHER A COMPANY CARRYING OUT WORK WHOLLY OUTSIDE OF QUEENSLAND WAS A CONSTRUCTION COMPANY WITHIN THE MEANING OF S 56AC QUEENSLAND BUILDING AND CONSTRUCTION COMMISSION ACT 1991 APPLIES TO COMPANY Midson Construction (Qld) Pty Ltd v Queensland Building and Construction Commission [2018] QSC 199 In this matter, Crow J considered whether the definition of a construction company in Part 3A of the Queensland Building and Construction Commission Act 1991, and in particular the reference in that definition to a company that carries out building work services in this or another State, extended to a company that had at all material times carried out building work wholly in another State. Crow J gave the words in this or another State their plain and ordinary meaning and held that the definition did so extend. His Honour also rejected an argument that the relevant provisions were constitutionally invalid for infringing the rule against extra-territorial regulation of conduct in another State. Crow J 31 August 2018 In January 2018, Midson Construction (NSW) Pty Ltd ( Midson NSW ) was placed into liquidation. [1]. Midson NSW had not, at any relevant time, carried out building work, or building work services in Queensland. [1]. The first applicant, Midson Construction (Qld) Pty Ltd ( Midson QLD ) shared a common director with Midson NSW. [2]. As a consequence of Midson NSW being placed into liquidation, the Queensland Building and Construction Commission proposed, among other things, to cancel the applicants (including Midson QLD s) licence. [2]. The applicants filed an originating application in the Supreme Court of Queensland seeking various declarations, injunctive relief, and judicial review. [3]. Queensland Law Reporter 14 September 2018 [2018] 36 QLR 7

8 The two key issues were whether Midson NSW was a construction company within the meaning of s 56AC of the Queensland Building and Construction Commission Act 1991 ( QBCC Act ) and, if it were, whether s 56AC of the QBCC Act was constitutionally invalid. [6]. A third ground regarding an ineffective delegation of power was raised, but ultimately rejected. [6], [45]-[61]. Section 56AC is the key definitional provision in Part 3A of the QBCC Act. [33]. The definitional provisions are machinery provisions which allow the Commission to cancel a builder s licence. [33]. Section 56AC, broadly speaking, applies to individuals who have been directors, secretaries, or influential persons of a construction company that is wound up or ordered to be wound up. [7]. It also applies to other construction companies that are not wound up if an individual who was a director, secretary or influential person of a construction company that has been wound up is also a director, secretary, or influential person of the other company. [7]. Pursuant to s 56AC(7), a construction company : (a) means a company that directly or indirectly carries out building work or building work services in this or another State; and (b) includes a company that, within 2 years immediately before a relevant company event for the company, directly or indirectly carries out building work or building work services in this or another State. [7]. (emphasis added) The applicants argued that this definition did not apply to a construction company, like Midson NSW, which carries out building work, or building work services, wholly in another State. [8]. In other words, the applicants argued that the definition was confined to a company which undertakes activities with respect to buildings constructed on land in Queensland. [8]. Crow J ultimately rejected this argument. His Honour considered that meaning needed to be given to every word, including the words or another in s 56AC(7). [27]. His Honour stated: The ordinary literal meaning of the words or another in s 56AC(7)(a) and (b) means that the definition of construction company is extended not only to a company that directly or indirectly carries out building work in Queensland, but also to a company that directly or indirectly carries out building work or building work services in another State, such as, in this case, New South Wales. [27]. His Honour also considered that this literal construction was supported by the purpose of the QBCC Act. [33]. His Honour said: It would seem plain that in order to fulfil its purpose in protecting consumers of building work or building work services in Queensland, Parliament considered it important to protect Queensland consumers from interstate individuals who go bankrupt, and interstate companies which are placed in liquidation. [33]. The applicants also argued that if the construction ultimately adopted by Crow J were correct, then 56AC would be constitutionally invalid for purporting to regulate conduct in another State, offending the rule against the extraterritorial regulation of another jurisdiction. [35]. However, the difficulty with the applicants submission was that the QBCC Act did not purport to regulate the conduct of building work in any other State, rather the QBCC Act attempted to control, for the benefit of Queensland consumers, building work services within the State of Queensland. [36]. Crow J explained that [t]here is no novelty in the legislator selecting whatever factum as a trigger of a particular legislative consequence. [44]. In the result, his Honour concluded that s 56C of the QBCC Act was constitutionally valid. [44]. The application was dismissed. [62]. J English Queensland Law Reporter 14 September 2018 [2018] 36 QLR 8

9 SUCCESSION TESTAMENTARY CAPACITY WHERE TESTATOR SUFFERED FROM DELUSIONS WHETHER DELUSIONS WERE MATERIAL TO TESTATOR S DECISIONS Hamill v Wright [2018] QSC 197 In this matter, a testator had made three successive wills. The first reflected his expressed wish that the first plaintiff, who had cared for her parents for a prolonged period, be favoured over her siblings. Subsequent to the making of that first will the testator suffered from delusions, thereafter making two further wills which in effect disinherited the first plaintiff and severed a joint tenancy with her. The principal issue was whether the testator possessed the testamentary capacity to make the second will and the final will; and the capacity to sever the joint tenancy. Applegarth J 31 August 2018 Given the substantive issues in dispute, the judgment provides a good summary of the law in relation to testamentary capacity and delusions together with what test ought to be applied in ascertaining capacity to determine a joint tenancy. In adopting the test in Banks v Goodfellow (1870) LR 5 QB 549, his Honour stressed that in order for testamentary capacity to be present, it is necessary that no disorder of the mind should poison his or her affections or pervert his or her sense of right, nor any insane delusion influence his or her will, nor anything else prevent the exercise of his or her natural faculties. In short, the test requires proof of the absence of delusions that are material to the testator s decision to make a testamentary disposition see Re Estate of Griffith (1995) 217 ALR 284, [140]. He also noted the following relevant matters: 1. Notwithstanding delusional beliefs, a testator may still, in other respects, live a seemingly unremarkable life: see Bull v Fulton (1942) 66 CLR 295; 2. The burden of proof rests with the party who seeks to query the will; 3. A doubt as to a testator s competency requires a vigilant examination of the whole of the evidence which the parties place before the Court : see Worth v Clasohm (1952) 86 CLR 434, 453; and residual doubt will not suffice unless it is considerable enough to counteract an assessment that the document propounded is the will of a testatrix with capacity at the time it was executed; 4. A decisive factor is whether the delusion/s altered the capacity to make the will which is being propounded; 5. Whilst a general presumption arises that a testator was mentally competent where a will is rational on its face and was properly executed, that may be superseded where the circumstances suggest doubt as to the existence of testamentary capacity: see Tobin v Ezekiel (2012) 83 NSWLR 757, ; 6. A testator who suffers from delusions is capable of making a valid will during a lucid interval: see Timbury v Coffee (1941) 66 CLR 277. [139]-[152]. It was not disputed that the issue of whether the testator had the capacity to instruct his solicitor to sever the joint tenancy (and to unilaterally do so), raised essentially the same issues as those that arose for consideration in relation to the question of testamentary capacity. [153]. Given the testator was acting in a testamentary context in purporting to determine the joint tenancy, his Honour held that it was appropriate to apply, with certain modifications, the testamentary capacity test established by Banks v Goodfellow. [161]. Sadly in this case, the reality was that it was apparent that the testator suffered from delusions which detrimentally affected his powers of evaluation and recall and meant that he lacked the capacity both to sever the joint tenancy and to discriminate between the various claims upon his testamentary bounty. [196]-[202]. Having regard to all the evidence, his Honour found in favour of the first plaintiff, Queensland Law Reporter 14 September 2018 [2018] 36 QLR 9

10 pronouncing against the force and validity of the two later wills and ordering that pursuant to s 114 of the Land Title Act 1994, she be registered as proprietor of the Lot. [204]. A de Jersey CRIMINAL LAW POST-CUSTODIAL ORDERS DANGEROUS PRISONERS (SEXUAL OFFENDERS) ACT 2003 WHERE APPLICATION FOR FURTHER SUPERVISION ORDER WHETHER REASONABLE GROUNDS THAT RELEASED PRISONER IS A SERIOUS DANGER TO COMMUNITY IN THE ABSENCE OF A FURTHER SUPERVISION ORDER Attorney-General v Fardon [2018] QSC 193 This was an a typical application for the court to set a date for the hearing of an application for a further supervision order under Division 4A of Part 2 of the Dangerous Prisoners (Sexual Offenders) Act Whilst acknowledging that the respondent s name is almost synonymous with the Act, ultimately his Honour was not satisfied that the applicant had demonstrated that there were reasonable grounds for believing that the respondent was a serious danger to the community in the absence of a further supervision order. Jackson J 27 August 2018 At the outset of his consideration of the matter, his Honour deemed the application unusual, even in the context of the extraordinary regime provided for under the Act [4], given: 1. the identity of the respondent [5]-[37] 2. the evidence tendered in support of the application revealed a low risk of his possibly committing a further serious sexual offence, even in the absence of a further supervision order [48], [53]; 3. the applicant s substantive argument in support of the conclusion that the court ought be satisfied that reasonable grounds existed for believing that the respondent represented a serious danger to the community in the absence of a further supervision order was that the circumstances of the existing supervision order provide him with support that, if removed, would increase the risk that he might commit a serious sexual offence, since he has no current accommodation proposal; will no longer be eligible for the counselling he has been receiving from a psychologist; and will not have the benefit of the sanctuary of the precinct to return to should he encounter stress. The judgment is instructive in that it clarifies what must be satisfied in order to ascertain that reasonable grounds exist that a released prisoner is a serious danger to the community under s 8 of the DPSOA. In addressing whether the respondent presented a serious danger to the community in the absence of a [further supervision] order, his Honour stressed that the statutory context is fundamental and what must be proved to satisfy that [there are reasonable grounds] is informed by what will be required before the court is able to make the ultimate critical finding under s 13(1) as altered. [62]. Ultimately, whilst acknowledging that the applicant submitted that the offences that the respondent could commit, if he reoffends, would be horrendous, if they involved a repetition of his earlier offending, [66] it was held that there were not reasonable grounds for believing the respondent was a serious danger to the community and the application was dismissed. In so ordering, his Honour cited the lack of evidence identified on the hearing of the application, by way of demonstrating that the respondent had failed to cooperate in some relevant way that suggested there was merit in the reasonable grounds argument. [78]. In addition, he observed, in respect of an unacceptable risk that the respondent would commit a serious sexual offence in s 13(2): Queensland Law Reporter 14 September 2018 [2018] 36 QLR 10

11 unacceptable must always involve a value judgment by the court, that the court can never be satisfied that there is no risk where a respondent has committed a serious sexual offence in the past, and the need to protect members of the community from the risk of another serious sexual offence, as matters that inform whether the applicant has shown reasonable grounds for believing that the respondent is a serious danger to the community. [74]. A de Jersey APPEAL AND NEW TRIAL INTERFERENCE WITH JUDGE S FINDINGS OF FACT WHERE FINDINGS BASED ON CREDIBILITY OF WITNESSES WHERE THE TRIAL JUDGE FAILED TO TAKE INTO ACCOUNT TWO CONTEMPORANEOUS DOCUMENTS WHEN CONSIDERING THE RELIABILITY OF THE WITNESSES Kelly v Slade [2018] QCA 197 This case is an example of the category of case where the appellate court will intervene against the trial judge s findings of fact because the errors were such that the trial judge had acted on evidence that was inconsistent with facts incontrovertibly established by the evidence. The trial judge found that the relevant witnesses were all unreliable in one way or another, before ultimately concluding that the plaintiffs had not established their case. Two contemporaneous documents appeared to provide support for the plaintiffs case, but the trial judge did not use those documents to test the reliability of the witnesses. The Court of Appeal allowed the appeal, holding that it is a necessity to test the veracity of a witnesses evidence against objective facts and in particular by reference to documents such as these. Sofronoff P and Morrison JA and Atkinson J 28 August 2018 Background The appellants, Gordon Kelly and Kathleen Kelly, commenced proceedings in the District Court to recover monies said to be agreed as consideration for the transfer of their interests in farm land. [2]. The relief sought only concerned payment to Gordon Kelly. [5]. He had received a payment of $20,000 for his interest, but had not received an amount he said had been agreed to be paid later being an amount of $220,000. [4], [6]. The respondents, Mr and Mrs Slade, disputed that the latter amount was ever agreed. [4]. The trial judge concluded that he was not persuaded that there was an agreement for the payment of the additional $220,000. [43]. The appellants appealed on the ground that the trial judge had erred in assessing the evidence; in particular, in failing to properly consider two contemporaneous documents. [7]. One of those documents was written by Mrs Slade, signed by all of the parties, and sent to her bank. It indicated that agreement had been reached to pay Gordon Kelly $240,000, but with $20,000 to be paid on settlement date. [31]. The second document a letter from the Slades lawyers to the bank corroborated this understanding of the agreement. [33]. Both documents appeared to provide support for the plaintiffs case. The Court of Appeal s reasoning Morrison JA gave the reasons of the Court, with which Sofronoff P and Atkinson J agreed. His Honour began by noting that this was a case in which the trial judge had found that all of the witnesses who were centrally involved were unreliable in one way or another. [51]. In that context, his Honour said that one would expect that the contemporaneous documents would assume particular significance in the assessment of the credibility and reliability of the competing versions. However, that had not been the case. [52]. Queensland Law Reporter 14 September 2018 [2018] 36 QLR 11

12 The necessity to consider documents for this purpose was recently reaffirmed by the Court of Appeal in Guirguis Pty Ltd v Michel s Patisserie Systems Pty Ltd [2017] QCA 83. That decision quoted Goff LJ as saying that it is essential (at [60]): when considering the credibility of witnesses, always to test their veracity by reference to the objective facts proved independently of their testimony, in particular by reference to the documents. His Honour considered that the trial judge s failure to do so constituted an appealable error. There were also six other ways identified in which the trial judge had incorrectly characterised or reasoned about the documents. [63]-[68]. Although appellate courts are reluctant to interfere with decisions of a trial judge that involve findings of credit, his Honour concluded that the errors were such that the trial judge had acted on evidence that was inconsistent with facts incontrovertibly established by the evidence (and so falling within a category of case recognised in Fox v Percy (2003) 214 CLR 118). In conclusion, the findings below could not be sustained and so the judgment was set aside. [73]. His Honour ordered that there be a retrial. [78]. W Isdale GAMING AND LIQUOR LICENSING TRIBUNALS GENERALLY WHERE COMMISSIONER REFUSED APPLICATION TO ALTER ID SCANNING COMMENCEMENT TIME ON CERTAIN DAYS WHERE QCAT SET ASIDE COMMISSIONER S DECISION WHERE QCAT FAILED TO EXPRESSLY REFER TO SECTIONS OF THE ACT THAT CONTAIN MANDATORY CONSIDERATIONS WHETHER ERROR OF LAW WHETHER QCAT ERRED IN LAW BY FAILING TO REFER TO THE COMMISSIONER S REASONS Commissioner for Liquor and Gaming v Farquhar Corporation [2018] QCA 202 This decision concerns the relatively new ID scanning scheme that requires licensed venues to scan the ID of patrons prior to entry. The Caxton Hotel had successfully appealed to QCAT against the Commissioner s decision refusing to vary the conditions of its licence to alter the regulated ID scanning commencement time on certain major event days at Suncorp Stadium. The Commissioner appealed to the Court of Appeal. The Court of Appeal dismissed the appeal finding no error of law in the QCAT reasons. Gotterson JA and Boddice and Jackson JJ 31 August 2018 Here, the Commissioner appealed from a decision of QCAT, which set aside a decision made by the Commissioner and, in lieu of it, adjusted the ID scanning times of the respondent, trading as the Caxton Hotel. The respondent had applied to alter the regulated ID scanning hours on three specific dates when events were being held at Suncorp Stadium, including State of Origin games. It was accepted that after a major event, patrons seeking to enter the Caxton Hotel would form a line across the footpath and road that was in conflict with the pedestrian traffic leaving Suncorp Stadium. The Commissioner s original decision was made pursuant to s 111 of the Liquor Act 1992, which provides a licensee may apply to vary a licence condition. Section 111 also requires the consideration of a number of matters when deciding whether or not to vary a licence condition, including s 121. That provision requires the Commissioner have regard to the impact on the amenity of the community concerned. There are also a number of discretionary matters to which the Commissioner may have regard. QCAT may review such a decision by way of a reconsideration of the evidence before the Commissioner and according to the same laws in force. Either party may appeal from QCAT to the QCA on a question of law. Queensland Law Reporter 14 September 2018 [2018] 36 QLR 12

13 Justice Jackson, with whom Gotterson JA and Boddice J agreed, determined the appeal was not grounded on questions of law and each ground was rejected. Ground 2 was that QCAT erred by applying a balancing test when considering several matters. One such matter was that QCAT did not consider the mandatory requirements under s 121(1). The Commissioner submitted that because QCAT did not expressly refer to s 121 in its reasons, there was an error of law. Justice Jackson rejected that submission because there is no requirement at law to expressly identify the section number that sets out relevant considerations to which a decision maker must have regard. [29]. Rather, Jackson J concluded that the true question is whether the decision maker did not have regard to a relevant mandatory consideration. [29]. The remainder of ground 2 challenges the test applied in other QCAT decisions that relate to applications for exemptions for areas from ID scanning [32]. It was held there was no difference between a discretionary decision to be made under s 111 in relation to conditions for ID scanning as between a) an application for exemption of an area; and b) an application to alter the regulated ID scanning times [34]. Ground 3 of the appeal included an argument that QCAT erred in law because the Commissioner s statement of reasons was a material document not considered on the face of QCAT s reasons. It was held that there was no requirement for QCAT to expressly refer to or consider the Commissioner s reasons [48]. The appeal was dismissed with costs. Z Walker PRACTICE AND PROCEDURE WHERE APPELLANTS ISSUED A NOTICE OF INTENTION TO PROCEED PURSUANT TO R 389(1) OF THE UCPR ONE YEAR AND 11 DAYS AFTER THE LAST STEP WAS TAKEN WHETHER NOTICE WAS EFFECTIVE WHETHER LEAVE TO PROCEED WAS REQUIRED Way v Primo Rossi Pty Ltd [2018] QCA 203 In this case, the appellant sought review of a decision of the District Court of Queensland. That decision was, relevantly, that leave to proceed pursuant to r 389(2) of the UCPR was required, notwithstanding the issue of a notice of intention to proceed roughly one year and 11 months after the last step. The Court held that the issuing of a notice does not obviate the requirement to seek leave if no step is taken after two years. While leave was required, the judge below dismissed the matter for want of prosecution. On appeal, it was held leave was required, but the appeal ought not to have been dismissed. It was also decided leave to appeal from the District Court was required and such leave was granted. Morrison and Philippides JJA and Brown J 31 August 2018 In this matter, the appellants commenced proceedings in November The last step taken in the proceedings was on 17 September Following a change of solicitors, the appellants issued a notice of intention to proceed pursuant to r 389(1) of the Uniform Civil Procedure Rules 1999 around 25 August Another nine months passed until another step was sought to be taken, on 31 May While the appellants applied for leave to proceed pursuant to r 389(2) of the UCPR, it submitted that they did not need such leave. The primary judge decided leave was required, but refused it for want of prosecution. Relevantly, r 389 of the UCPR provides: (1) If no step has been taken in a proceeding for 1 year from the time the last step was taken, a party who wants to proceed must, before taking nay step in the proceeding, give a month s notice to every other party of the party s intention to proceed. Queensland Law Reporter 14 September 2018 [2018] 36 QLR 13

14 (2) If no step has been taken in a proceeding for 2 years from the time the last step was taken, a new step may not be taken without the order of the court, which may be made either with or without notice. One of the principle questions to be decided was whether or not the appellants needed leave to proceed. The appellants submitted that the subsections operate exclusively such that if a party were to comply with r 389(1), compliance with r 389(2) is not required at least for a period of time no longer than one year after the r 389(1) delivery of the notice [7]. Alternatively, the appellants submitted the subsections are to be read independently and the delay period that engages r 389(1) is up to one year and 11 months and that there is no primacy of r 389(1) over other subsections [7]. The appellant conceded that a notice of intention to proceed is not a step in a proceeding [9]. The respondents submit that r 389 is unambiguous and where no step is taken for a period of two years then leave is required [8]. Justice Brown, with whom Morrison and Philippides JJA agreed, noted that a party cannot issue a notice of intention to proceed after one year and 11 months given that a month s notice is required. In those circumstances, leave under r 389(2) is needed [9]. On the appellants construction of the provision, a party could, multiple times and without limit, issue notices of intention to proceed a month before the expiry of the two year period and then not take any steps unless r 389(1) was qualified [10]. Justice Brown found there was no reason for the Court to do so. Rule 389 sought to ensure proceedings were conducted expeditiously and, where proceedings are unduly delayed, are brought to the Court s attention [11]. The Court also held that there is no conflict between r 389(1) and (2) because where a notice of intention to proceed is issued under r 389(1), the parties obligation to take steps in a proceeding prior to a two year period is not obviated [12]. So, where no steps are taken in a proceeding for two years, leave must be sought, even if a notice under r 389(1) has been issued [11]. Justice Brown determined that the primary judge made no error of law on that point [13]. A minor point on appeal was also whether or not leave to appeal to the Court of Appeal was required pursuant to s 118 of the District Court of Queensland Act 1967 [5]. The appellant submitted that leave was not required; the respondent made no submission on this point. Section 118(2) was inapplicable, however, under s 118(3) was engaged and Brown J determined leave was required [5]. Leave was granted and the appeal was allowed notwithstanding the appellants failure in respect of the requirement that leave to proceed be sought. Justice Brown found also the judge below ought not to have dismissed the proceedings for want of prosecution [44]-[45]. Z Walker APPEALS No appeals have been brought in respect of cases previously noted in the Queensland Law Reporter. Queensland Law Reporter 14 September 2018 [2018] 36 QLR 14

15 NEW COUNSEL IN PRACTICE The ICLRQ has been advised that the following Counsel have commenced private practice at the Queensland Bar during the last 12 months: Brooks, Megan Date Commenced Practice: 19 April 2018 Degrees: LLM (Juris Doctor) (Monash), GDLP (ANU), BAppSci, PhD Former Position: Lawyer, (Cth Workers Compensation), Moray & Agnew Lawyers (Brisbane) Practice Address: 31 West Chambers, level 31, Santos Place, 32 Turbot Street, Brisbane QLD 4000 Practice Connors, Rachel Date Commenced Practice: 23 October 2017 Degrees: LLM (Health & Medical Law) (Uni of Melb), LLB (Hons) (UQ), BA (UQ) Former Position: General Counsel, Fortitude Brewing Company and Casual Academic, T.C. Beirne School of Law, UQ Practice Address: Wilberforce Chambers, Level 19, 239 George Street, Brisbane Practice Donovan, Matthew Jon Date Commenced Practice: 16 April 2018 Degrees: LLM (ANU), LLB (CDU) Former Position: Solicitor, Paul Dent Lawyers Practice Address: Fullagar Chambers, Level 29, 239 George Street Brisbane QLD 4000 Practice Hii, Reimen Date Commenced Practice: 23 November 2017 Degrees: LLB (UQ), BA (UQ), GDLP (CoL) Former Position: Associate, Wotton + Kearney Practice Address: Level 15 Inns of Court, 107 North Quay, Brisbane QLD 4000 Practice rhii@qldbar.asn.au Grau, Tim Date Commenced Practice: 4 April 2018 Degrees: LLB (James Cook University), BA (UQ) Former Position: Associate, The Hon Justice James D Henry, Supreme Court of Queensland Practice Address: Level 4, Citi Central, Spence Street, Cairns QLD 4870 Practice tim.grau@qldbar.asn.au Queensland Law Reporter 14 September 2018 [2018] 36 QLR 15

16 Marckwald, Duncan Date Commenced Practice: 6 November 2017 Degrees: LLB (Hons) (UQ), BCOM (UQ), GDLP (CoL) Former Position: Senior Associate, (Litigation & Dispute Resolution), Corrs Chambers Westgarth (Brisbane) Practice Address: Level 16 Quay Central, 95 North Quay, Brisbane Practice dmarckwald@qldbar.asn.au Maconi, Francesco Date Commenced Practice: 27 March 2018 Degrees: LLM (Commercial) (QUT), LLB (Hons) (Griffith), BA (Griffith) Former Position: Consulting Principal, Nexus Lawyers Practice Address: French Quarter Chambers, Suite 15, Emerald Lakes, Carrara QLD 4211 Practice maconi@qldbar.asn.au McDermott, Matthew Date Commenced Practice: 2 July 2018 Degrees: LLM (UQ), LLB (Victoria University of Wellington), BA (Victoria University of Wellington) Former Position: Senior Associate, Thomson Geer Practice Address: Level 14 Quay Central, 95 North Quay Brisbane QLD 4000 Practice mcdermott@qldbar.asn.au Moxon, Jules Date Commenced Practice: 27 March 2018 Degrees: BEcon, LLB (Hons), LLM (UQ) Former Position: Ministerial Adviser, Commonwealth Government; Associate, Allens (Brisbane) Practice Address: Level 16 Quay Central, 95 North Quay, Brisbane QLD 4000 Practice jmoxon@qldbar.asn.au Psaltis, Alexander Date Commenced Practice: 17 October 2017 Degrees: LLM (Hons) (Cantab), LLB (Hons), BA (UQ), GDLP (QUT) Former Position: Lawyer, (Litigation and Dispute Resolution), Clayton Utz (Brisbane) Practice Address: Gerard Brennan Chambers, Level 29, Santos Place, 32 Turbot Street, Brisbane Practice apsaltis@qldbar.asn.au Please note: This information is based only upon materials supplied to the ICLRQ. This information has not been verified and may be subject to errors or omissions. The ICLRQ does not represent that this information is accurate or complete and does not express any opinion as to the suitability or qualifications of any legal practitioner. Queensland Law Reporter 14 September 2018 [2018] 36 QLR 16

17 PUBLIC NOTICES Notice of intention to apply for Grant of Probate or Letters of Administration ANDRADES, JOHN FRANCIS After 14 days from today an application for a grant of Probate of the Will dated 19th March 2018 of JOHN FRANCIS ANDRADES late of 41 Stoten Street Eagleby in the State of Queensland, deceased will be made by DENISE WENDY ANDRADES to the Supreme Court at Brisbane. Any person having any claim whether as creditor or beneficiary or otherwise must send particulars of the person s claim to the Applicant s Solicitors (identified below) not later than the date which is 6 weeks after the date of publication of this Notice, after which date, pursuant to s.67 of the Trusts Act 1973, the Applicant will distribute the Estate of the Deceased having regard only to the claims of which the Applicant has notice. Lodged by: BEENLEIGH LEGAL, 4-8 Kumalie Court, Chambers Flat, Q ARAKELIAN, LOUIS JOHN After 14 days from today an application for a grant of letters of administration of the will dated 8 December 1970 of LOUIS JOHN ARAKELIAN deceased late of 108 Pattison Street, Emu Park in the State of Queensland and formerly of 112 Liverpool Street, Paddington in the State of New South Wales by his children MELISSA GAI ARAKELIAN and PHILLIP JOHN ARAKELIAN as his Administrators to the Supreme Court at Brisbane. Any creditor and all other persons having a claim against the estate are required to send particulars of their claim to ANDREW MCNEIL SOLICITOR, PO Box 709 Runaway Bay Queensland 4216 on or before 30 October Lodged by: ANDREW MCNEIL SOLICITOR, PO Box 709, Runaway Bay, Queensland ARGENT, KEVIN ERIC After 14 days from today an application for a Grant of Probate of the Will dated 1 December 2005 of KEVIN ERIC ARGENT, late of 5 Colington Street, Mansfield in the State of Queensland, deceased, will be made by NOELA MARGARET ARGENT as executor to the Supreme Court at Brisbane. You may object to the Grant by lodging a Caveat in that Registry. All creditors in the estate of the deceased are hereby required to send in particulars of their claim to the undersigned within six (6) weeks from the date hereof, at the expiration of which time the said Executor will proceed to distribute the assets of the deceased among the persons entitled thereto having regard to section 67 of the Trusts Act 1973 and having regard only to the claims of which the said Executor shall have had notice. Applicant s Solicitors: MELVIN & CO, Solicitors, 34 Aminya Street, Mansfield, Qld ATTWOOD, JOHN DONALD DAVID (also known JOHN DONALD ATTWOOD) After 14 days from today an Application for a Grant of Probate of the Will dated 18 November 2009 of JOHN DONALD DAVID ATTWOOD also known JOHN DONALD ATTWOOD late of 61 Paul Harris Avenue Rotary Village, West Lane, Bowen of Queensland, deceased will be made by MARLON RODERICK MACDONALD to the Supreme Court at Townsville. Notice. At the end of that period, the applicants will distribute the assets of the deceased among the persons entitled to those assets. In doing so, and relying on Section 67 of the Trust Act 1973, the applicants will have regard only to the claims which have been notified to them. Lodged by: RUDDY, TOMLINS & BAXTER, Solicitors, 8 Gregory Street, Bowen, Qld Queensland Law Reporter 14 September 2018 [2018] 36 QLR 17