University of Queensland Law, Science and Technology Seminar Series: Emerging Issues in Expert Evidence

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1 10 August 2018 [2018] 31 QLR News and Events 2 Seminar: Rule of Law or Ruled by Law? TC Beirne School of Law s Australian Centre for Private Law and Griffith University s Law Futures Centre Seminar Series: Organisational Vicarious Liability University of Queensland Law, Science and Technology Seminar Series: Emerging Issues in Expert Evidence The Sir Harry Gibbs Law Dinner Domestic Violence and the Law: Achievements and Future Directions Selden Society Lecture Series: The Irish Convict Doctor who delivered Dick Atkin Dr O Doherty Book Review Editors Selection of New Queensland Cases 5 Whether claims of charge under the Subcontractors Charges Act 1974 should be cancelled on the basis that the subcontractors did not hold any form of licence to perform building work under the Queensland Building and Construction Commission Act 1991: St Hilliers Property Pty Ltd v Pronto Solar Innovations Pty Ltd [2018] QSC 164 Whether the applicants were necessary parties due to the effect which the declaration and orders made in their absence may have on the commercial value of their security interests: China First Pty Ltd v Mount Isa Mines Ltd [2018] QSC 163 Whether remedy for nuisance available where construction of culverts by a proprietor of land that concentrates the flow of surface waters onto the adjacent lower land causes damage to the lower proprietor s land by erosion: State of Queensland v Baker Superannuation Fund Pty Ltd; Aurizon Operations Limited v Baker Superannuation Fund Pty Ltd [2018] QCA 168 Whether a prisoner was entitled to reasons pursuant to s 38 of the Judicial Review Act 1991 regarding a decision by an officer of the Department of Communities and Child Safety to refuse him contact with the 15 year old daughter of his former de facto wife, where he was not the biological father of the child: GAB v Kan [2018] QSC 161 Whether the trial judge s failure to clearly distinguish between the foreseeability of the appellant harming a man whom he was physically confronting and harming an intervener amounted to a miscarriage of justice in respect of a conviction of having unlawfully wounded the intervener: R v Woods [2018] QCA 167 Appeals 13 New Counsel in Practice 14 Public Notices 16 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 84 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) SEMINAR: RULE OF LAW OR RULED BY LAW? Date: 13 August 2018 Time: Venue: Speakers: 6.00 pm for 6.30 pm start Level 12, Queen Elizabeth II Courts of Law Salwa Duaibis and Gerard Horton This event is hosted by the TC Beirne School of Law, and the Australian Palestine Advocacy Network and features the Directors and Co-Founders of Military Court Watch (MCW). MCW is a registered non-profit established in 2013 and is guided by two basic principles. First, all children detained by the Israeli military authorities are entitled to all the rights and protections guaranteed under international law. Secondly, that there can be no legal justification for treating Palestinian and Israeli children differently under Israel s military and civilian legal systems. In pursuit of these principles, MCW monitors, advocates and educates in the region and beyond. Salwa Duaibis is a Palestinian citizen of Israel currently based in Jerusalem. She is a co-founder of MCW. Prior to that, she worked with a number of human rights organisations focusing on Palestinian economic and women s rights. Gerard Horton is an Australian lawyer and co-founder of MCW. Gerard has worked on the issue of children detained by the Israeli military and prosecuted in military courts for the past 10 years prior to which he practised as a barrister at the Sydney Bar. For more information and to register for this interesting event, please see here. TC BEIRNE SCHOOL OF LAW S AUSTRALIAN CENTRE FOR PRIVATE LAW AND GRIFFITH UNIVERSITY S LAW FUTURES CENTRE SEMINAR SERIES: ORGANISATIONAL VICARIOUS LIABILITY Date: 23 August 2018 Time: Venue: Speaker: 5.30 pm for 6 pm start Level 12, Queen Elizabeth II Courts of Law Professor Christian Witting, Professor of Private Law at Queen Mary University of London and Visiting Professor at the National University of Singapore The Law Futures Centre at Griffith University and the Australian Centre for Private Law at TC Beirne School of Law, University of Queensland invite you to a special guest seminar presented by Professor Christian Witting titled 'Organisational Vicarious Liability'. This paper argues that the rules of vicarious liability are practical rules designed to achieve ordinary tort goals of compensation and deterrence, but that they have evolved differently according to the type of defendant in question. In the crucible years of the formation of the rules on vicarious liability, the central concept tying liability to the defendant was a liberal notion of agency. It is still the case that, where there are personal relations between the vicariously liable party and the wrongdoer, the best explanation for liability is a quasi-agency explanation. The defendant who appoints someone to do something for him or her has a particular relationship to ensuing wrongs. However, in most cases Queensland Law Reporter 10 August 2018 [2018] 31 QLR 2

3 liability falls not upon individuals but upon organisations. A second strand of vicarious liability has become more apparent in recent times. This is imposed upon organisations because, typically, they are deterrable parties, vicarious liability being a means of inducing from them the development of proper standards of conduct in all of their operations undertaken by employees and quasi-employees. This paper focuses upon an explanation of organisational vicarious liability. For more information and to register, please see here. UNIVERSITY OF QUEENSLAND LAW, SCIENCE AND TECHNOLOGY SEMINAR SERIES: EMERGING ISSUES IN EXPERT EVIDENCE Date: 30 August 2018 Time: Venue: Session 1: pm, Session 2: pm (followed by drinks and canapés) Level 12, Queen Elizabeth II Courts of Law Invalid or misleading expert evidence has been implicated in many wrongful convictions around the world. Forensic scientific expertise, in particular, is widely misunderstood. Despite being portrayed as highly certain and objective on television shows like CSI, many forensic scientific practices are errorprone. Importantly, current research suggests that legal doctrinal changes alone have not prevented invalid expert evidence from impacting legal decisions. As a result, this colloquium takes an interdisciplinary approach, presenting emerging issues from the perspective of barristers, academics, forensic scientists, and psychologists. The speakers will discuss findings on topics such as: the psychology of expertise, cognitive bias, forensic scientific practices, and legal safeguards (e.g., cross-examination, judicial directions, exclusionary rules). The speakers for this event include the Honourable Justice Peter Applegarth, Supreme Court of Queensland; Dr Kaye Ballantyne, Forensic Services Centre, Victoria Police; Benjamin Dighton, 8 Petrie Terrace Chambers; Professor David Hamer, The University of Sydney; Kathryn McMillan QC, Quay 11 Chambers; Mehera San Roque, University of New South Wales; and Dr Rachel Searston, University of Adelaide. The event will be hosted by Dr Caitlin Goss & Dr Jason Chin. For more information and to register, please see here. THE SIR HARRY GIBBS LAW DINNER DOMESTIC VIOLENCE AND THE LAW: ACHIEVEMENTS AND FUTURE DIRECTIONS Date: 30 August 2018 Time: Venue: Speaker: Pre-dinner drinks at 6.30 pm, Dinner served at 7.30 pm Emmanuel College, Sir William MacGregor Drive, St Lucia, Qld Professor Heather Douglas, TC Beirne school of Law The Sir Harry Gibbs Law Dinner is hosted each year, in honour of distinguished Emmanuel College alumnus Sir Harry Gibbs, Chief Justice of the High Court of Australia This year, the address will be given by Professor Heather Douglas. Professor Douglas researches and has published widely in the areas of criminal justice and domestic violence. She was awarded an Australian Research Council Future Fellowship to research the way in which women who have experienced domestic violence use the legal system to help them leave violence. She was the lead researcher and project co-ordinator with the Australasian Institute of Judicial Administration on the development of the National Domestic and Family Violence Bench Book, a project funded by the Australian Commonwealth Government. Heather was the lead chief investigator on the Australian Feminist Judgments Project funded by the Australian Research Council. In 2016 Heather was Queensland Law Reporter 10 August 2018 [2018] 31 QLR 3

4 appointed as a Member to the Australian Research Council s College of Experts. In 2018 Heather was a fellow at the Humboldt University Faculty of Law and Center for Transdisciplinary Gender Studies in Berlin. The cost for this event is $100 per person, or $750 per named table of 8 people. For further information or to register, please see here. THE SECOND ANNUAL LORD ATKIN DINNER: THE IRISH CONVICT DOCTOR WHO DELIVERED LORD ATKIN DR O DOHERTY Date: 30 August 2018 Time: Venue: Speaker: 5.15 pm for 5.30 pm The Banco Court, Queen Elizabeth II Courts of Law The Honourable Justice Patrick Keane AC Lord Atkin was heavily involved in medico-legal issues. His first encounter with a doctor was with Dr Kevin O'Doherty, who attended his birth in Dr O'Doherty was a friend of Robert Atkin and an advocate of liberal democracy. He was a leading surgeon in Brisbane, and one of the first presidents of the Queensland Medical Society. As a member of Queensland Parliament he introduced Queensland s first Public Health Act, championed the improvement of public health, and as an opponent of the traffic in Kanakas sponsored the Bill to stop their recruitment. In his lecture, Justice Keane will chart O Doherty s extraordinary life. Registrations close 23 August, to register please see here. BOOK REVIEW P J Richardson QC (ed), Archbold: Criminal Pleading, Evidence and Practice, (Sweet & Maxwell, 2018). Since 1822, Archbold: Criminal Pleading, Evidence and Practice has been the most commonly used work of reference in the criminal courts of England and Wales. However, in July 2016, the Judicial Executive Board of the United Kingdom declared that Blackstone s Criminal Practice would replace Archbold as the standard book for judicial use in the courtroom. That decision caused quite a stir, and ultimately gave rise to the Archbold v Blackstone debate, playfully termed the Game of Tomes. Despite the recent controversy, Archbold remains a venerable yet modern guide for the criminal practitioner. The 2018 edition comprises some 3,500 pages, but the material does not end there. As part of the service, readers receive: cumulative annual supplements, including Sentencing Guidelines; the Archbold Review, published ten times a year, which includes case notes and early warnings of the effect of new statutes; and, free and unlimited access to the Archbold e-update, a constantly evolving service that contains the latest and most relevant updates for criminal practice. The main volume consists of thirty-three chapters. Despite its size, the editors have gone to pains to ensure that the tome retains a high level of accessibility. Possessing a detailed table of contents and a cleaner and clearer index, Archbold is relatively straightforward to use. This iteration features all significant developments in legislation and case law from the past year. These include the Investigatory Powers Act 2016 and the Policing and Crime Act 2017, which covers topics such as bail after arrest but before charge, and increases in maximum sentences of imprisonment for offences of putting people in fear of violence. The Criminal Finances Act 2017 has made a series of amendments to the Proceeds of Crime Act 2002 and makes provision in relation to terrorist property and corporate offences. There is also an exposition of the series of amendments to the Criminal Procedure Rules 2015 and the Criminal Practice Directions The edition also Queensland Law Reporter 10 August 2018 [2018] 31 QLR 4

5 summarises recent case law relating to core criminal matters including, for example, R v Mitchel [2017] A.C. 571 which considered what the prosecution must prove where several non-conviction incidents are relied on to establish propensity. Archbold boasts a publishing degree dating from 1822 and has been considered indispensable by practitioners for almost two centuries. The 2018 edition gives no reason for that opinion to change. This book is available at the Supreme Court Library: ISBN (hbk), 3,492 L Browne EDITORS SELECTION OF NEW QUEENSLAND CASES selected for reporting not selected for reporting, but otherwise noteworthy BUILDING ENGINEERING AND RELATED CONTRACTS REMUNERATION SUBCONTRACTORS CHARGES ACT WHERE CLAIMS OF CHARGE MADE TO SECURE AMOUNTS UNDER SUBCONTRACT WHERE SUBCONTRACTOR UNLICENSED WHERE EFFECT OF S 42 OF QBCC ACT 1991 THAT PAYMENT CLAIMS INVALID WHETHER ESTOPPEL CAN BE RAISED S 42 QBCC ACT 1991 St Hilliers Property Pty Ltd v Pronto Solar Innovations Pty Ltd [2018] QSC 164 In this matter, Daubney J dealt with an application to cancel claims of charge made under the Subcontractors Charges Act The claims of charge were made to secure amounts alleged to be payable under construction contracts. However, the subcontractor respondents did not hold any form of licence to perform building work under the Queensland Building and Construction Commission Act 1991 which meant that, pursuant to s 42, they were not entitled to monetary or other consideration for the work. Daubney J held that the effect of this was that there were no payments due under the subcontracts which could be secured by a charge. His Honour also held that the respondents could not raise an estoppel to prevent the applicant from relying on s 42. Daubney J 27 July 2018 The applicant, St Hilliers Property Pty Ltd, was the lead contractor for the construction of certain solar farms in central Queensland. [1]. The respondents, Pronto Solar Innovations Pty Ltd and Pronto Projects Pty Ltd, were subcontractors with St Hilliers, contracted to do piling works. [2]. Neither of the respondents had a licence to perform any building work under the Queensland Building and Construction Commission Act 1991 ( QBCCA ). [4]. In December 2017, the respondents served payment claims purportedly made under s 17 of the Building and Construction Industry Payments Act 2004 ( BCIPA ) on St Hilliers. [5]. The respondents subsequently served on St Hilliers a Form 1 Notice of Claim of Charge and a Form 2 Notice to Contractor under the Subcontractors Charges Act [6]. The respondents commenced proceedings by way of claim and statement of claim seeking orders for the payments of the claims. [10]. St Hilliers subsequently commenced the applications the subject of these proceedings, seeking the cancellation of the claims of charge under s 21 of the Subcontractors Charges Act and declarations that the claims under the BCIPA were invalid. [11]. Daubney J observed that as neither respondent held a licence under the QBCCA, if the work which was the subject of their claims was building work for the purposes of the QBCCA then s 42 was Queensland Law Reporter 10 August 2018 [2018] 31 QLR 5

6 engaged. [15]. That section prohibits a person from carrying out building work unless the person holds an appropriate licence under the QBCCA. [15]. If work is undertaken in contravention of the section, then, by s 42(3), the person is not entitled to any monetary or other consideration for doing so. [15]. Although it was disputed whether the piling works were building works for the purposes of the Act, Daubney J concluded that the work under each subcontract was building work, and therefore that the prohibition in s 42(1) applied. [22] [23]. It was not in issue that each subcontract was a construction contract as that term is used in BCIPA. [24]. The respondents had sought to argue that where work was done and claimed for under a construction contract, s 42 of the QBCCA did not apply. [26]. However, quoting Williams JA in Cant Contracting Pty Ltd v Casella [2007] 2 Qd R 13, Daubney J stated: Because s 42(3) provides that an unlicensed contractor is not entitled to any monetary or other consideration for doing work pursuant to the contract, such a contractor cannot be said to have an entitlement to progress payments pursuant to ss 7, 12 and 17 of the [BCIPA]. [26]. As for the subcontractors charges, Daubney J noted that s 5(2) of the Subcontractors Charges Act provides for a charge that secures payment in accordance with the subcontract of all money that is payable for work done by the subcontractor under the subcontract. [28]. However, as his Honour explained: The ambit of the security provided by a charge under the SCA is delineated by s 5(2). By the operation of s 42(3) of the QBCCA, both Solar and Projects are disentitled from being paid monetary or other consideration for work done under the subcontracts. In those circumstances, there could be no payment in accordance with each subcontract which a charge under the [Subcontractors Charges Act] could secure. [33]. The final argument advanced by the respondents was that the applicant was estopped from relying on s 42 of the QBCCA on the basis that it had represented that the respondents would not need a QBCC licence and that the applicant would be signing off on the finished works under its licence. [34] [35]. Daubney J, however, held that the potential estoppels were not available to oust the operation of s 42, relying on Multiplex Constructions Pty Ltd v Rapid Contracting Pty Ltd (in liq) [1999] QCA 306. [38]. First, because s 42(3) precluded such a claim; and secondly, because such a claim would not fall within s 5(2) of the Subcontractors Charges Act which, in terms, appears to be limited to securing payment of monies payable in accordance with a contract for work done under it; in other words a contractual claim. [38]. In the result, his Honour made orders cancelling the charges and declared that the payment claims were invalid. [44]. J English PROCEDURE AMENDING, VARYING AND SETTING ASIDE JUDGMENTS AND ORDERS ACTIONS TO REVIEW OR SET ASIDE JUDGMENT OR ORDERS WHERE THE APPLICANT COMPANIES HAD SECURITY INTERESTS IN PROPERTY THE SUBJECT OF DECLARATIONS AND ORDERS WHETHER THE APPLICANT COMPANIES WERE NECESSARY PARTIES TO THE PROCEEDING BECAUSE THEIR RIGHTS OR LIABILITIES WERE DIRECTLY AFFECTED China First Pty Ltd v Mount Isa Mines Ltd [2018] QSC 163 This case involved an application to set aside a declaration and orders made in the absence of the applicant companies. The applicants contended they were necessary parties due to the effect the declaration and orders may have on the value of their security interests. Brown J considered a submission that the materiality of the effect of any orders, or a sufficient commercial interest, could render a non-party a necessary party. Her Honour rejected that submission and emphasised that the correct test, as settled by the High Court, is that a non- Queensland Law Reporter 10 August 2018 [2018] 31 QLR 6

7 party is only a necessary party if their rights or liabilities are directly affected. Here, any effect on the commercial value of the applicants security was only indirect or consequential. Brown J 15 June 2018 Background Mount Isa Mines were the long-term lessees of a wharf in Townsville. Pursuant to a licence agreement, Mount Isa Mines granted Queensland Nickel Pty Ltd non-exclusive access to the wharf. Queensland Nickel used the wharf to transport ore to its refinery. [4] [5]. However, in March 2016 Mount Isa Mines terminated the agreement, following a failure by Queensland Nickel to pay harbour dues in late [9]. In an earlier proceeding, Mount Isa Mines had sought a declaration (and related orders) that it was entitled to remove equipment owned by the Queensland Nickel companies from the wharf. [1] [2]. The equipment was used for unloading and moving ore. [6]. On 20 November 2017, Atkinson J made that declaration and orders. [1] This application In this application, China First Pty Ltd and Waratah Coal Pty Ltd ( the applicants ) sought to set aside the declaration and orders made by Atkinson J, and to be joined as parties to that proceeding. The applicants contended that they were necessary parties because they were directly affected by Atkinson J s orders. [2], [15]. The basis for the contention that they were directly affected by the orders was that they were the holders of registered charges over all of the property owned by companies in the Queensland Nickel group. [13] [14]. They therefore had an interest in the equipment on the wharf, and an interest in the Queensland Nickel companies having a viable refinery business. [30]. The applicants produced affidavit evidence indicating that the equipment may be damaged if removed, because it was welded onto the wharf rather than bolted. Its removal could result in a reduction of its value. Further, the evidence suggested that there may be no alternative port available to the Queensland Nickel companies, which was necessary for the viable operation of the refinery business. It was contended that removal of the equipment would therefore effectively destroy the business and destroy the value of the applicants security. [7], [30] [31]. Who is a necessary party? Brown J noted that after final orders have been made in a proceeding (as here), the enquiry of whether a party was a necessary party must be directed to the orders actually made. As to who is a necessary party, her Honour summarised the effect of the High Court s decision in John Alexander s Clubs Pty Ltd v White City Tennis Clubs Ltd (2010) 241 CLR 1 as being that: where a court is invited to make or proposes to make orders directly affecting the rights or liabilities of a non-party, the nonparty is a necessary party and ought to be joined. (Emphasis added.) [22]. The applicants contended that a commercial interest alone may be sufficiently affected to render a non-party a necessary party. [19], [24]. In this regard, reference was made to a decision of the Full Federal Court, where it was said that the direct affect test involves matters of degree, and ultimately judgment, having regard to the practical realities of the case, and the nature and value of the rights and liabilities of the third party which might be directly affected. [26]. The applicants contended that this suggested that the court must have regard to the materiality of the effect of any orders, and not just their direct effect per se. [27]. Brown J rejected these arguments, emphasising that the correct test as set out by the High Court in John Alexander is whether the non-party s rights and liabilities are directly affected. Her Honour said (at [28]): Queensland Law Reporter 10 August 2018 [2018] 31 QLR 7

8 The practical reality of the case and the nature and value of the rights of a non-party which may be directly affected are matters to which the Court must have regard in determining whether those rights are directly affected but those matters are not a substitute test. Whether the applicants were necessary parties The declaration made by Atkinson J was simply that Mount Isa Mines was entitled to remove the equipment. That declaration, and the associated orders, did not create any new rights, declare any proprietary interests, or compel any course of conduct. [42]. Further, the entitlement of the applicants to exercise any of their rights under the charges was unaffected. [47]. Although the commercial value of the applicants security may be affected by the declaration and orders, that can only be regarded as an indirect or a consequential effect. [43]. In summary, the applicants did not establish that they were necessary parties to the previous proceeding. Accordingly, their application to set aside the previous declaration and orders and be joined was dismissed. [56] [59]. W Isdale TORTS NUISANCE REMEDIES SURFACE WATER RIGHTS OF PROPRIETORS OF ADJOINING LAND WHERE NUISANCE CAUSED BY WORKS ASSOCIATED WITH RAILWAY WHETHER STATUTORY SCHEME FOR CONSTRUCTION OF RAILWAY PREVENTED CLAIM IN NUISANCE State of Queensland v Baker Superannuation Fund Pty Ltd; Aurizon Operations Limited v Baker Superannuation Fund Pty Ltd [2018] QCA 168 In this decision, the Court of Appeal considered the rights and liabilities of a higher proprietor of land who concentrates the flow of surface waters coming naturally onto their land onto the adjacent land of a lower proprietor where the concentrated flow damages the lower proprietor's land by erosion. The judgments contain a useful overview of the applicable principles and the law of nuisance more generally. Morrison and McMurdo JJA and Jackson J 27 July 2018 Facts The State of Queensland ("the State") owns land which is now used as a public facility for recreational cyclists, horse riders and walkers. [189]. It is known as the "Brisbane Valley Rail Trail". [189]. Until 1993 the land had been the Brisbane Valley rail line. [189]. In about 1884, during the construction of the rail line, a particular embankment was formed to provide a level surface for the track. [190]. Two culverts were also installed through that embankment, so that surface water could pass underneath the track and follow the line of a pre-existing channel. [190]. In about 1956, those culverts were replaced by substantially identical concrete box culverts. [190]. The land was previously owned by Aurizon Operations Limited ("Aurizon") (which was called Queensland Rail until 2010). [204]. It was transferred to the State in April [204]. Baker Superannuation Fund Pty Ltd ("Baker") owns a grazing property which adjoins some of the former rail line, including at the site of this embankment. [191]. From about 1999, Baker's land at that point had been "badly eroded by the passage of surface water flowing towards the rail line from its other side, and then being effectively funnelled through these culverts". [191]. Before 1999, there had been no significant damage caused to what is now Baker's land from the presence of these structures. [191]. What changed was an increase in the volume of water flowing towards the embankment, as a result of the actions of other owners in clearing and developing their lands on the uphill side of the rail line. [191]. The principal of Baker first wrote to Aurizon (then called Queensland Rail) to complain about the erosion in February [206]. There was no suggestion that Queensland Rail ought to Queensland Law Reporter 10 August 2018 [2018] 31 QLR 8

9 have been aware of the damage to Baker's land, or to have foreseen it, so as to become liable to abate a nuisance before the complaint was made. [206]. Decision at First Instance Baker sued the State and Aurizon in the Supreme Court, claiming that "by not preventing the flow of water through the culverts during the period of each [of the State and Aurizon's] ownership of the rail line, it committed an actionable nuisance". [192]. The trial judge (Mullins J) found for the respondent. [192]. Her Honour ordered that the State and Aurizon each pay damages in an amount of $75,000, and that the State seal up the two culverts to prevent the discharge of water from them in the direction of Baker's land. [192]. The State and Aurizon appealed to the Court of Appeal. Court of Appeal The leading judgment was given by McMurdo JA. His Honour referred to the judgment of Windeyer J in Hargrave v Goldman (1963) 110 CLR 40 and noted that in general, an unlawful interference with a person's use or enjoyment of land is an unreasonable interference. [193]. His Honour also referred to Gartner v Kidman (1962) 108 CLR 12, where Windeyer J held that a higher proprietor of land will not be liable simply because surface water flows naturally from his land onto lower land, or as a result of his natural use of his land. [199]. On the other hand, he may be liable if he causes surface water to flow onto the lower proprietor's land in a more concentrated form than it naturally would. [199]. Many arguments were raised by the State and Aurizon. This summary necessarily addresses only the main points. Statutory Scheme McMurdo JA noted that the common law position might be affected by statute. [203]. He summarised the following principles from Marcic v Thames Water Utilities Ltd [2002] QB 929, which had been endorsed in Bankstown City Council v Alamdo Holdings Pty Ltd (2005) 223 CLR 660: "(a) in the absence of negligence, a body is not liable for a nuisance which is attributable to the exercise by it of a duty imposed upon it by statute, even if by statute it is expressly made liable, or not exempted from liability, for nuisance; (b) in the absence of negligence, a body is not liable for a nuisance which is attributable to the exercise by it of a power conferred by statute, if by statute, it is not expressly either made liable, or not exempted from liability, for nuisance; (c) a body is liable for a nuisance which is attributable to the exercise by it of a power conferred by statute if by statute it is expressly made liable, or not exempted from liability, for nuisance; (d) the condition that a statutory duty or power be exercised without negligence means that, as a condition of obtaining immunity from action, the body is required to carry out the work and conduct the operation with all reasonable regard and care for the interests of other persons." [203]. Aurizon traced the history of legislation which provided for the construction and maintenance of railways, and submitted that the statutes established a statutory scheme within the principles of Marcic. [204] [205]. It submitted that the scheme was inconsistent with the existence of a "parallel common law right, whereby an individual might complain about the statute of the railway land or some structure within it". [205]. McMurdo JA concluded that as at February 2000 (when the initial complaint was made) no relevant legislative provisions applied to provide a statutory immunity from liability. [206] [210], [214]. His Honour also rejected another argument that the State and Aurizon were immune from liability because of compensation paid to a predecessor in title of Baker in [211] [214]. Claim against Aurizon Queensland Law Reporter 10 August 2018 [2018] 31 QLR 9

10 His Honour then considered the claim against Aurizon. He concluded that Aurizon was not acting unreasonably in not doing what was necessary to abate the nuisance because to do so would have required substantial engineering works costing in the order of several hundred thousand dollars at a time when a categorisation process was underway which could result in the land becoming vested in the State. [227] [234]. Accordingly, the claim against Aurizon should have been dismissed. [234]. Claim against the State His Honour next considered the claim against the State. His Honour agreed with the trial judge that there was an actionable nuisance committed by the State for the following reasons: "There was no evidence... that the works on the former railway corridor, which the respondent claimed were required to abate the nuisance, would have compromised the use of this land as the public recreational facility which it had become. The embankment and the culverts were changes which had been made to the landscape so that the land could be used for a railway. There was no justification for retaining them apart from saving costs to the State, once the nature of the ongoing use of the land had become clear, and where that use would not be compromised by their removal. In short, the use of the culverts within this embankment no longer constituted a use of the State s land in a reasonable and proper manner, having regard to the damage which they continued to cause to the respondent s land." [236]. Failure to mitigate Finally, his Honour considered whether Baker had failed to mitigate its own loss. [238]. He held that "there was little which [Baker] could have done to mitigate the effect of the discharge of this water from the culverts absent work being done also on [Aurizon and the State's] land". [241]. His Honour also rejected a submission that Baker should have sought Aurizon's consent to undertake works on its land, on the basis that "the argument appears to have been that [Baker] might have mitigated its loss from the nuisance by itself taking the steps which, by law, ought to have been taken by the tortfeasor". [241]. Conclusion In the result, his Honour would have allowed the appeal by Aurizon and dismissed the appeal by the State. [245]. Morrison JA delivered a concurring judgment, and agreed with the orders proposed by McMurdo JA. [1] [188]. Jackson J dissented. [246] [291]. M J Hafeez-Baig of Counsel JUDICIAL REVIEW REVIEWABLE DECISIONS AND CONDUCT WHERE APPLICANT SOUGHT A STATEMENT OF REASONS OF OFFICER OF DEPARTMENT OF COMMUNITIES AND CHILD SAFETY WHERE DECISION DECISION TO REFUSE HIM CONTACT WITH THE DAUGHTER OF HIS FORMER DE FACTO PARTNER WHERE APPLICANT WAS NOT HER BIOLOGICAL FATHER WHETHER APPLICANT ENTITLED TO STATEMENT OF REASONS GAB v Kan [2018] QSC 161 In this recent matter the Chief Justice considered the merits of an application made by a prisoner pursuant to s 38 of the Judicial Review Act 1991 for a statement of reasons by an officer of the Department of Communities and Child Safety regarding a decision to refuse him contact with the 15 year old daughter of his former de facto partner. He was not the biological father of the child. As the decision did not alter or affect any legal right of the applicant the application was dismissed. Holmes CJ 20 July 2018 Queensland Law Reporter 10 August 2018 [2018] 31 QLR 10

11 The applicant sought reasons for decision in relation to two interrelated decisions made by the first respondent (an officer of the second respondent the Department of Communities and Child Safety): firstly, a decision refuse a prisoner s application to have the phone number of the child added to those available to him to telephone from the prison, and a decision that information about a departmental investigation by the Department of Child Safety into the risk of harm to the child would not be disclosed to him. [2]. The critical issue was whether those decisions were of an administrative character made under an enactment within the meaning of s 4(a) of the Judicial Review Act The respondents pressed the view that the application ought be dismissed, citing Griffith University v Tang (2005) 221 CLR 99 as authority for the proposition that neither decision was made under an enactment for the purposes of the Judicial Review Act, on the two criteria identified therein. [9]. It was further argued that, properly construed, the making of calls from prison was to be considered a privilege rather than a right: see s 18 of the Corrective Services Regulation Lastly, the respondents submitted that the applicant had nil entitlement to information concerning the child s welfare in circumstances where he was not her biological father, was not declared or presumed to be her parent under the Status of Children Act 1978, and had no parental responsibility for her. [9]. Whilst acknowledging that the applicant was of the opposite view, and felt aggrieved by the decisions, her Honour pertinently noted that: 1. Even if the applicant could show that he was the child s parent within the meaning of s 11 of the Child Protection Act, it would not follow that he had a right under s 15 or s 20 of the Act to be supplied with details concerning her welfare; [11] 2. Her biological father was still alive, and notwithstanding his apparent neglect, remained by definition her parent ; [11] 3. The decision could not be regarded as altering or affecting any legal right of the applicant; [12] 4. Occasional acts by an individual as a parent do not necessarily amount to an exercise of parental responsibility; it is a question of fact and degree; [15] 5. As a prisoner, the applicant was constrained as to his means of practically contributing to the child s basic needs and instead his role in decision-making was at the will of her mother; [16] 6. Although the applicant may well have played a valuable role in the child s upbringing, albeit to the degree permitted by his incarceration, it was no more than any significant adult in the child s life living at a distance from her might do ; [17] 7. Making and receiving phone calls from prison was a privilege. [20]. Due to the foregoing, her Honour concluded that the respondents decisions not to give the applicant information and to inform Corrective Services that access should not be granted to BZ s telephone number were not decisions made under an enactment because they did not alter or otherwise affect any legal right of the applicant and could not, however made, have conferred any right on him. Her Honour dismissed the application. A de Jersey CRIMINAL LAW APPEAL AGAINST SENTENCE WHERE APPELLANT CONVICTED OF DOING GRIEVOUS BODILY HARM TO ONE VICTIM DURING AN ALTERCATION AND ALSO CONVICTED OF UNLAWFULLY WOUNDING ANOTHER VICTIM WHO INTERVENED WHERE THE TRIAL JUDGE S DIRECTIONS DID NOT DISTINGUISH THE FACTUAL DIFFERENCES AND FORESEEABILTY OF EACH OFFENCE WHETHER FAILURE TO EXPLAIN DISTINCTION CONSTITUTED A MISCARRIAGE OF JUSTICE APPEAL AGAINST CONVICTION ALLOWED R v Woods [2018] QCA 167 Queensland Law Reporter 10 August 2018 [2018] 31 QLR 11

12 In this case the appellant was convicted of one count of grievous bodily harm and one count of unlawful wounding. He appealed the conviction and sentence. Several errors were alleged, including that the directions on the law as applicable to the facts of count 2 were inadequate in failing to distinguish the factual differences and foreseeability of each offence. In particular, the foreseeability of the appellant harming a man he was physically confronting was plainly more obvious than him wounding an intervener. Therefore, there was a fundamental difference in the strength of the prosecution s case as to the foreseeability of count 1 as to count 2. The failure to direct in that regard amounted to a miscarriage of justice and the appeal against the conviction on count 2 was allowed. Morrison JA and North and Henry JJ 27 July 2018 Here, the appellant, was convicted of one count of grievous bodily harm (count 1) and one count of unlawful wounding (count 2). The prosecution s case was that the appellant was involved in an altercation with Mr Robinson; the appellant armed himself with a knife; did grievous bodily harm to Mr Robinson; and, wounded Ms Hansen, who intervened in the altercation. At trial the judge gave comprehensive directions to the jury about the exculpatory operation of s 23 of the Code, in relation to count 1, and s 289, in relation to count 2, which the prosecution needed to disprove. The directions merely noted s 23 was also required to be considered in relation to count 2. The relevant issue on appeal arose because of conflicting and limited versions of the how the injuries were inflicted. [30]. One witness saw the appellant move a knife in a deliberate thrusting manner toward Mr Robinson [27], while the appellant said Mr Robinson fell on the knife. [21]. It was necessary, therefore, to consider s 23 of the Code and its exculpatory effect. The trial judge outlined to the jury that s 23(1) needed to be excluded in order to establish the element of unlawfulness. The trial judge said the Crown must prove that that wielding of the knife was a willed act and that the prosecution may prove that the grievous bodily harm was not an accident by proving either that the accused intended to do [it] or the [it] was reasonably foreseeable. [38]. In relation to count 2, no one saw Ms Hansen sustain an injury and it was not suggested the knife was deliberately wielded in her direction. It was necessary to consider ss 23 and 289 as it was possible she was inadvertently injured. [33]. There was limited evidence for the drawing of inferences as to what an ordinary person would have foreseen. [63]. For the prosecution to prove the wounding of Ms Hansen was neither an unwilled act, nor an accident, it had to establish that an ordinary person in the appellant s position would have reasonably foreseen wounding Ms Hansen as a possible consequence. To prove criminal negligence, the prosecution had to prove the appellant was aware of, or should have reasonably foreseen, the risk to life, safety and health. On this count, the trial judge gave comprehensive directions in relation to criminal negligence, which was an element unique to count 2. As to accident and unwilled act, the trial judge did not develop how the facts of count 2 related to them. Those defences had as their focus foreseeability. [57]. The learned trial judge did not distinguish the factual differences between the defence of accident as it related to count 1 from how that defence related to count 2. [59] [61]. There was a fundamental factual difference. [61]. The appellant was already engaged in a physical confrontation with Mr Robinson when Ms Hansen moved into the fray and no witness saw Ms Hansen move into that same area. [62]. The directions given by the trial judge, in relation to ss 23 and 289, did not alert the jury to the possibility that Ms Hansen s injuries may have been inflicted before the appellant was conscious of her presence. [67]. The failure to direct in this regard constituted a miscarriage of justice. [72]. The court unanimously allowed the appeal against conviction in relation to count 2. It was also noted that the successful appeal against conviction impacted the appeal against sentence. The parties were invited to make further submissions in relation to that part of the appeal. Z Walker Queensland Law Reporter 10 August 2018 [2018] 31 QLR 12

13 APPEALS No appeals have been brought in respect of cases previously noted in the Queensland Law Reporter. Queensland Law Reporter 10 August 2018 [2018] 31 QLR 13

14 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 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 Queensland Law Reporter 10 August 2018 [2018] 31 QLR 14

15 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 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 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 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 10 August 2018 [2018] 31 QLR 15

16 PUBLIC NOTICES Notice of intention to apply for Grant of Probate or Letters of Administration ADAMS, DAWN ADEANNA After 14 days from today an application for a grant of Probate of the will dated 13 November 2012 of DAWN ADEANNA ADAMS late of 20 Morton Mews, TriCare Retirement Village, 98 Bayview Street, Runaway Bay in the State of Queensland, deceased, will be made by LESLIE RAYMOND ADAMS to the Supreme Court of Queensland 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: BELL LEGAL GROUP, Level 4, 91 Upton Street, Bundall, Qld AITCHISON, VIOLET EVELYN After 14 days from today an application for a grant of Probate of the Will dated 13th October 2016 of VIOLET EVELYN AITCHISON Late of Unit 4 River Glen Haven Retirement Village 30 Beutel Street Waterford West in the State of Queensland deceased will be made by SHANE MAURICE JOHNSTON and LAUREN NICOLE JOHNSTON to the Supreme Court of Queensland 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 executors will proceed to distribute the assets of the testator amongst the persons entitled thereto having regard only to the claims of which the said executors shall then have had notice. Applicant s Solicitors: JEFF THOMAS & ASSOCIATES of Level 1, Unit 20 Market Town, 390 Kingston Road, Slacks Creek, Qld ANNING, VERA After 14 days from today an application for a grant of Probate of the Will dated 22 May 2014 of VERA ANNING late of 5/1 Rossiter Parade, Hamilton, Queensland, deceased will be made by MOLLY MABEL BEATRICE KELLY to the Supreme Court at Brisbane. notice. At the end of that period, the applicant will distribute the assets of the deceased among the applicant will have regard only to the claims which have been notified to her. Lodged by: INHERITANCE SOLUTIONS, Solicitors, 155 Varsity Parade (PO Box 514), Varsity Lakes, Qld Queensland Law Reporter 10 August 2018 [2018] 31 QLR 16

17 ANSCOMBE, PETER CYRIL After 14 days from today an application for a grant of Probate of the Will dated 24 January 2013 of PETER CYRIL ANSCOMBE late of Blue Care Lawnton Pine Woods Aged Care Facility, 260 Francis Road, Lawnton, Queensland deceased will be made by PAUL WILLIAM KELLER 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: PAUL WILLIAM KELLER, 5 Keswick Court, Burpengary East, Brisbane, Queensland 4505 (Applicant). APPLEBY, MERILYN GAIL After 14 days from today an application for a grant of probate of the will dated 26 March 2018 of MERILYN GAIL APPLEBY late of 10 Savanna Place, Eight Mile Plains, deceased, will be made by HANNAH CHRISTINE MACKENZIE to the Supreme Court at Brisbane. notice. At the end of that period, the applicant will distribute the assets of the deceased among the applicant will have regard only to the claims which have been notified to her. Lodged by: ELLIOTT & HARVEY LAWYERS, 4/1953 Logan Road, Upper Mount Gravatt, Qld ARCHER, LOIS ANNE After 14 days from today an application for a Grant of Probate of the Will dated 10 July 2018 of LOIS ANNE ARCHER late of 7 Mallett Street, Tin Can Bay, Queensland, deceased will be made by MY- ANNE MUIR to the Supreme Court at Brisbane. All creditors in the estate of the deceased are required to send particulars of their claim to the Applicant s Solicitors within 6 weeks from the date hereof, at the expiration of which time, pursuant to Section 67 of the Trusts Act 1973, the Applicant may proceed to distribute the assets of the deceased among the persons entitled thereto having regard only to the claims of which the Applicant shall then have had notice. Applicant s Solicitors: NEILSON STANTON & PARKINSON, Solicitors, 236 Mary Street, Gympie, Qld Queensland Law Reporter 10 August 2018 [2018] 31 QLR 17