General Civil Appeal – where appellant was a former equity partner of the respondent – where appellant commenced working for another company after retiring from his position with the respondent – where such work was in alleged contravention of a restraint of trade clause contained in the partnership agreement – where learned Chief Justice made various findings and granted limited interlocutory relief in the respondent's favour – whether evidence led on appeal cast doubt on these findings – whether learned Chief Justice erred in the exercise of his discretion – HELD: appeal dismissed with costs

General Civil Appeal – where respondents successful on appeal – where respondents applied for costs on an indemnity basis – where lower court judge awarded costs on an indemnity basis – where judgment sum of the lower court exceeded offer to settle made prior to the hearing of the appeal – where counter-offers made and rejected – whether appeal was unreasonably instituted – whether Court should depart from ordinary practice of awarding costs on the standard basis – where appellant changed business name prior to the claim and appeal being instituted – where respondent applied for amendment of proceedings to reflect change – whether amendment should be made – HELD: appellants pay the respondents' costs of and incidental to the appeal on the standard basis – coversheet and reasons for judgment delivered 23 March 2007 be amended by deleting Rare Import Co Pty Ltd and inserting in lieu thereof, wherever it appears, Keenfilly Pty Ltd

Application for Leave Integrated Planning Act – where respondent co-owned residential property – where property in question was previously exempt development under the former town planning scheme – where amendment to HRPS Policy included the property on the Heritage Register – where amendment to policy created a superseded planning scheme – where amendment, if valid, would make partial or total demolition impact assessable development – whether words of s 2.1.23(4) refer to regulation by a planning scheme policy in isolation, or as part of a network of planning instruments applicable to the premises in question – relationship between planning scheme and planning scheme policy – whether the HRPS Policy affected the regulation of development or use of premises – whether trial judge erred in concluding the HRPS policy was invalid pursuant to s 2.1.23(4) – where respondent and co-owner made "development application (superseded planning scheme)" ("DASPS") – where Council declined to accept DASPS – where DASPS was within two years from date of effect of amendment, but outside two years from date of adoption – whether application was out of time – where definition of DASPS was later amended providing for a time limit for DASPS being within two years from when planning scheme "took effect", as opposed to from date of adoption – whether amendment was declaratory and/or retrospective – where trial judge would have exercised discretion to extend time to enable DASPS to be made had his Honour not found the listing invalid – where operation of s 4.1.5A requires the identification of a "requirement of the Act" with which there has been non-compliance – where Act does not require the making of a DASPS – whether respondent could invoke s 4.1.5A to excuse the delay – whether failure to make application within two years amounted to a failure to comply with a requirement of the Act – whether leave to appeal should be granted – HELD: application for leave granted – appeal allowed – application to the P&E Court dismissed – the respondent (Lamb) to pay the Council's costs of the application for the leave to appeal and of the appeal

General Civil Appeal – where Gympie Eldorado Mines Pty Ltd (GEGM) was granted an exploration permit (EPM) under the Mineral Resources Act 1989 (Qld) – where GEGM entered into a "farm-out agreement" with the appellant – where the agreement was registered under s 158 of the Act – where GEGM assigned their interest under the EPM to the respondent under s 151 of the Act – whether the appellant's interest under the farm-out agreement took priority over the assignment – proper construction of s 158(4) of the Act – HELD: appeal dismissed with costs

Application for Leave Integrated Planning Act – where applicants owned certain land – where residential development of the land would lead to an increased risk of flooding – where council passed two resolutions amending City Plan 2000, with the effect of reclassifying properties owned by the applicants from Emerging Community to Environmental Protection – whether classification as Emerging Community gave sufficient control to enable the council to address perceived flood mitigation issues – whether reclassification solely for flood mitigation purposes was an improper use of power – whether reclassification decision had a real connection with the purposes and objects of the power to make and amend planning schemes – whether the reclassification was so unreasonable that no reasonable local authority could have come to it – whether resolutions were contrary to the IPA and ultra vires – whether trial judge gave adequate reasons – application of Wednesbury principle given policy considerations involved with planning schemes – breadth of declaratory power under s 4.1.21 IPA to review legality of council decisions – whether leave to appeal should be granted – HELD: application dismissed – applicants to pay the respondent's costs of the appeal assessed on the standard basis

Application for Leave s 118 DCA (Civil) – where applicant unsuccessfully challenged the validity of various resolutions passed by the body corporate in a proceeding in the Office of the Commissioner for Body Corporate and Community Management – where applicant has fully utilised the mechanism established under the Act for challenging the resolutions, and also her right of appeal to the District Court – where District Court partially allowed appeal against the decision of the adjudicator, but otherwise dismissed the appeal – where genesis of matter was a $1,000 costs order in the Magistrates Court – where disputation between parties had already consumed considerable time and resources – whether application for leave to appeal should be granted – what the applicant would need to demonstrate to obtain leave to proceed to a third level of adjudication – whether costs should be awarded on an indemnity basis – whether a body corporate may validly resolve to ratify past irregular conduct – HELD: application for leave to appeal refused – applicant to pay respondent's costs of and incidental to the application, fixed in the amount of $20,000

General Civil Appeal – where appellants contend that the respondent solicitors breached their duty of care in acting for the appellants in the purchase of a property – where appellants entered into possession of the property on 13 August 1992 but contend settlement occurred on 29 August 1992 – where appellants claim that between these dates they told the respondent to "stop" the contract and that the failure of the respondent to do so caused the appellants damage – where there was an absence of evidence supporting the appellants' contentions – where the jury was not asked directly to determine the actual date of settlement – where the damages claimed by the plaintiff were not properly established – where the appellants' case was under-prepared and hopeless – whether the settlement date was 13 August 1992 – whether the respondent solicitors were negligent – where trial judge treated the appellants unfairly – where the judge held the female appellant in contempt of court but did not identify the part of s 129 DCA under which she was taken into custody – where judge failed to give appellant the opportunity to answer the charge – where appeal against contempt charge can only occur by application for order of certiorari under the Judicial Review Act 1991 (Qld) – where judge made other threats of perjury and contempt – where judge's conduct of the trial fell below the standard expected – whether the conduct of the trial occasioned a miscarriage of justice – HELD: appeal dismissed – appellants to pay the respondent's costs of the appeal assessed on the standard basis

Application for Stay of Execution – where Smits and Blue Coast lodged caveats with respect to land claiming to have equitable interests – where Tabone successfully applied to the Supreme Court for removal of the caveats – whether the applicants demonstrated sufficient prospects of success on appeals against the orders of the Supreme Court removing the caveats justifying the grant of a stay of those orders – HELD: applications for a stay dismissed – the stay ordered 25 May 2007 be discharged – application of Blue Coast and Tabone be consolidated with and heard with that of Tabone and Smits – applicants pay the respondent's costs of this application assessed on the standard basis

General Civil Appeal – where appellants claimed judges had made wrong orders for costs – where no valid reason given as to why the costs orders should be altered – where no evidence adduced supporting the grounds of appeal – where primary judge making costs orders must give leave to appeal those orders – where leave not sought or obtained by the appellants – whether the case fell under s 253 Supreme Court Act 1995 (Qld) – whether appeal, even if regularly made, is without merit – whether appeal incompetent – HELD: appeal dismissed with costs to be assessed

General Civil Appeal (Further Order) – where application made for an indemnity certificate under s 15(1) Appeal Costs Fund Act 1973 (Qld) two years after the appeal hearing – where Practice Direction No 1 of 2005 (para 37) requires application to be made orally at appeal hearing or by written submissions within seven days – where appeal successful on a point of law giving the Court an unfettered discretion to grant an indemnity certificate – whether an indemnity certificate should be granted – HELD: leave granted to apply for an indemnity certificate under s 15 despite non-compliance with practice direction – the orders of this Court in Kumer v Suncorp Metway Insurance Ltd & Ors [2005] QCA 254 be amended by adding the following further order: "4. The respondent is granted an indemnity certificate under s 15(1) Appeal Costs Fund Act 1973 (Qld)"

Sentence Application – where applicant sentenced on a plea of guilty to 10 years imprisonment for manslaughter – where applicant also pleaded guilty to lesser charges – where applicant had strangled deceased in an amphetamine induced rage – where trial judge employed a notional head sentence of 12 to 13 years when sentencing – where various relevant mitigating factors present – whether learned sentencing judge erred in exercising his sentencing discretion – whether sentence imposed manifestly excessive – whether features of case required the imposition of a serious violent offence declaration – HELD: application for leave granted – appeal allowed – sentenced varied by substituting a sentence of nine years imprisonment and setting aside the serious violent offence declaration – declaration of a pre-sentence custody period of 366 days maintained

Sentence Application – where applicant pleaded guilty to 10 counts involving contraventions of the Drugs Misuse Act 1986 (Qld) – where evidence given during sentencing suggested that she was the dominant party in the trafficking arrangement with her then partner – where former counsel made submissions that the applicant's involvement as wrongdoer had been overstated – where former counsel failed to adduce evidence to support that contention – where there was no evidence before the sentencing judge about the partner's violence towards the applicant – where applicant sought to adduce new evidence on appeal – whether new evidence should be admitted – whether factual basis of sentence was incorrect – whether sentencing was manifestly excessive in light of new evidence – HELD: application allowed – appeal allowed – set aside sentence of seven years imprisonment on count 1 and substitute instead a sentence of five years imprisonment – declare period of 261 days pre-sentence custody before 12 May 2006 as time already served under the sentence of five years – fix appellant's parole eligibility date as 24 July 2007

Sentence Application – where applicant pleaded guilty to dangerous operation of a motor vehicle causing death whilst adversely affected by an intoxicating substance and to other summary offences – where applicant sentenced to five years imprisonment suspended after two years and two months (no operational period specified) with lesser concurrent sentences for summary offences – where applicant entered a timely plea of guilty prior to trial and showed remorse – whether learned sentencing judge gave proper consideration to the mitigating features of the case – whether suspension after 20 months would have been more appropriate – HELD: application for leave to appeal against sentence granted – appeal allowed – set aside the part of the sentence suspending the five year term of imprisonment after serving a period of two years and two months and instead order that it be suspended after serving a period of 20 months, with an operational period of five years – original sentence otherwise confirmed

Sentence Application – where applicant pleaded guilty to one count of grievous bodily harm with intent to do grievous bodily harm, and one count of manslaughter – where applicant sentenced to six years imprisonment on the first count and eight years imprisonment on the second – where both sentences attracted serious violent offence declarations – where applicant had been involved in a "street brawl" – where applicant inflicted multiple stab wounds on first victim and a fatal wound on the second victim who was unarmed and retreating – where conduct appeared retaliatory rather than spontaneous – where applicant's conduct contributed to the escalation of violence – whether SVO declarations should have been made – HELD: application dismissed

Sentence Application – where applicant convicted by jury of three counts of rape, one count of deprivation of liberty, and one count of assault occasioning bodily harm – where primary judge ordered pre-sentence report be prepared to include a psychological and/or psychiatric assessment and adjourned the sentence, remanding the applicant in custody – where applicant sentenced to 12 years imprisonment for the rapes, with lesser concurrent sentences for the remaining offences – where pre-sentence custody declared as time served – where judge made non-contact order under s 43C Penalties and Sentences Act 1992 (Qld) – where Pt 9A Penalties and Sentences Act had effect that rapes constituted serious violent offences – where evidence demonstrated the viciousness of the physical attack on the complainant – where pre-sentence report suggested likelihood of recidivism, lack of insight into his own offending and lack of remorse – whether sentence manifestly excessive – HELD: application for leave to appeal against sentence refused

Appeal against Conviction – where appellant pleaded not guilty to murdering the deceased (count 1) and to robbing him with personal violence in company while armed with a dangerous weapon and with an offensive instrument (count 2) – where appellant aided but was not the principal offender – where jury found appellant not guilty of murder but convicted him of manslaughter and robbery in company with personal violence, but without the alleged circumstances of aggravation – where accomplice gave evidence against the appellant, receiving the benefit of s 13A Penalties and Sentences Act 1992 (Qld) – where trial judge directed the jury as to s 7(1)(c) – where trial judge gave directions as to the meaning of "probable consequence" contained in s 8 Criminal Code – whether evidence could support the verdicts delivered – whether appellant must have subjectively seen death as a possible outcome of the assault which he was aiding – whether knowledge of the principal offender's intention to assault the deceased was sufficient for a conviction of manslaughter – whether trial judge's directions in relation to s 7 and s 8 responsibility were sufficient – whether trial judge erred in not directing the jury about the inter-relationship between s 7 and s 23 – whether, even if the trial judge erred, the appeal should be dismissed under s 668E(1A) Criminal Code – HELD: appeal dismissed

Appeal against Conviction – where appellants pleaded not guilty on one count of trafficking heroin and 15 counts of supplying heroin – where supply charges constituted particulars of trafficking charge – where prosecution later withdrew five of the supply counts – where appellants convicted of trafficking and six of the supply counts and acquitted of remaining four supply counts – where surveillance evidence and evidence of various witnesses was led by the prosecution in support of their case – where circumstantial evidence established a strong suspicion of conducting an illegal business – where appellants put forward competing innocent explanation not excluded by the prosecution – whether the evidence showed beyond reasonable doubt that the appellants were involved in trafficking and supply of heroin – whether verdicts were unsafe and unsatisfactory and could not be supported having regard to the evidence – HELD: appeal allowed – convictions and verdicts set aside on counts 1, 2, 5, 8, 9, 11 and 12 and instead verdicts of acquittal entered on those counts

Sentence Application – where applicant pleaded guilty to one count of aggravated unlawful stalking and one count of common assault – where applicant sentenced to two years imprisonment on the first count and 12 months imprisonment on the second to be served concurrently – whether sentence imposed properly reflected the applicant's plea of guilty, his intellectual disability and the unlikelihood of the applicant being granted parole on the proposed date – whether sentence manifestly excessive – HELD: set aside sentence of two years imprisonment on the first count and substitute a sentence of 18 months imprisonment – set aside sentence of 12 months imprisonment on the second count and substitute a sentence of six months imprisonment – otherwise uphold the orders of the District Court

Application for Extension (Sentence) – where appellant pleaded guilty to the commission of 19 indictable offences (one of which was arson) and to other summary offences – where sentencing judge imposed a period of imprisonment totalling five years and three months, consisting of a sentence of three years imprisonment for the arson count, a cumulative sentence of two years (made up of concurrent sentences of 2 years or less) for the remaining 18 indictable offences and a further three months imprisonment to be served cumulatively for offences against the Bail Act 1980 (Qld) – where time in pre-sentence custody deducted from all the terms of imprisonment imposed – where sentencing judge intended to declare time already served be deducted from the total period of imprisonment – where s 159A Penalties and Sentences Act 1992 (Qld) refers to a term, not period, of imprisonment – whether extension should be granted – whether sentence should be altered – whether sentencing judge erred in not fixing a parole eligibility date – HELD: extension to seek leave appeal against sentences granted – hearing of application adjourned to date to be fixed

Sentence Application – where applicant pleaded guilty to assault occasioning bodily harm – where applicant sentenced to probation and community service and ordered to pay a fine – where a conviction was recorded – where applicant and co-accused were high school students – where complainant was a fellow student – where complainant sustained significant injuries – where assault was premeditated – where applicant admitted assault and admitted that it was "disgraceful" – where applicant, at time of assault, suffered from untreated attention deficit disorder, but was subsequently placed on medication and responded favourably to treatment – where applicant has taken significant steps towards rehabilitation – where sentencing judge did not permit the tendering of a letter of remorse – where judge misstated complainant child's age in sentencing remarks – whether sentencing discretion of judge miscarried as a result – whether a conviction should have been recorded given these mitigating factors, particularly the applicant's youth – whether the sentence was manifestly excessive – principles applicable to exercise of discretion under s 12 Penalties and Sentences Act 1992 (Qld) – HELD: application for leave to appeal granted – appeal allowed – sentence varied by deleting the order that a conviction be recorded and in lieu ordering that a conviction not be recorded

Miscellaneous Application (Civil) – where respondent pleaded guilty to one charge of unlawfully attempting to procure the 13 year old applicant to commit an indecent act – where applicant applied for compensation under the Criminal Offence Victims Act 1995 (Qld) – where Act establishes scheme for compensation for an applicant's injury where a "personal offence" has been committed against the person – where judge did not consider that the attempt to procure could amount to a personal offence – where judge dismissed the application but notionally assessed compensation at $7,500 –whether the offence amounted to "an indictable offence committed against the person of someone" under s 21 of the Act – HELD: application for leave to appeal granted but limited to the question of whether the offence to which the respondent subjected the appellant was a "personal offence" under the Criminal Offence Victims Act 1995 (Qld) – appeal allowed with costs to be assessed – the order of the District Court of 27 November 2006 is set aside – instead the respondent is to pay the appellant $7,500 – grant the respondent an indemnity certificate under s 15 Appeal Costs Fund Act 1973 (Qld)

Appeal against Conviction & Sentence – where appellant was convicted by jury of unlawfully causing grievous bodily harm in contravention of s 320 Criminal Code – where the complainant suffered permanent and disabling injuries as a result of a 20 metre fall from a "flying fox" ride – where the appellant was as an employee of the company operating the ride – where crown alleged the appellant contravened the duty owed by virtue of s 289 Code by failing to secure the karabiner lock of the complainant's harness – where there was evidence that the appellant had said he was "hung over" as a result of alcohol and marijuana consumption on the previous night – where contravention of s 289 does not depend upon an intention to do harm but requires demonstration of a failure to take reasonable steps to avoid danger – whether a reasonable jury could be satisfied of the appellant's guilt beyond reasonable doubt – whether the learned trial judge's summing up was balanced and properly put the defence case before the jury – whether the judge made improper comments concerning the "hangover evidence" – whether the judge gave adequate directions concerning the gravity of the conduct required to find criminal negligence under s 289 – whether the level of "inadvertence" gave rise to culpable disregard essential to criminal negligence – whether the learned trial judge erred in failing to rule that the appellant had no case to answer – where appellant sentenced to two years and eight months imprisonment with a parole release date of 11 April 2008 – where level of injury to complainant considered relevant – whether the sentence imposed was manifestly excessive – HELD: appeal against conviction dismissed – application for leave to appeal against sentence refused

Appeal against conviction – where TP and SBA were convicted on one charge of indecent dealing of a child under 16 years and two counts of rape – where the complainant was TP's daughter – where SBA was the boyfriend of TP – where TP claims that evidence led in SBA's case was prejudicial and of little probative value – whether trial judge gave adequate directions with respect to that evidence – where separate trials were requested but not granted – whether this led to a miscarriage of justice – where complainant's husband was permitted to sit behind her during the giving of her evidence – where judge explained to jury that he was supporting her and "knew" what had happened – whether this constituted an inadmissible and irrelevant favourable opinion of the husband, bolstering the complainant's credibility – where learned judge commented on evidence during the summing up – where appellant claimed it lacked balance – where there was a subsequent redirection – whether redirection adequate – where evidence given about TP teaching the complainant to masturbate – whether this evidence was irrelevant and inadmissible – whether admitting this evidence led to a miscarriage of justice – where conflicting evidence was adduced at trial – where trial judge gave direction as to the resolution of conflict between the evidence – whether direction adequately conveyed the requirement that the jury could convict only if satisfied on guilt beyond reasonable doubt – HELD: appeal dismissed