Application for Leave s 118 DCA (Civil) – where applicant sustained a workplace injury in June 2003 – where applicant did not lodge an application for compensation under the Workers' Compensation and Rehabilitation Act 2003 (Qld) until July 2006 – where applicant sought an extension of the relevant limitation period – where applicant submitted that she was unaware of the seriousness of the injury until 2006 and that this accounted for the delay – where respondent did not receive notice of injury prior to 15 August 2006 – where trial judge found prejudice had been suffered by the respondent – whether trial judge misapplied the law to the facts – whether reasonable steps were taken to ascertain the facts – whether leave should be granted – HELD: application for leave to appeal dismissed with costs

General Civil Appeal – where appellant and respondent were in a de facto relationship for a period of three years and nine months – where prior to the commencement of the relationship, the respondent had entered contracts to purchase two adjacent properties – where parties jointly purchased another property – where appellant purchased a property in her own name, for which the respondent went guarantor – where prior to the commencement of the relationship the appellant had no savings and some debts – where respondent had some savings – where parties both contributed to improvement of the properties – where living expenses shared – where appellant worked throughout the duration of the relationship – where respondent did not work in paid employment for the 16 months prior to the end of the relationship but did some works on the properties and managed the tenanting – where trial judge apportioned the net property pool 30 per cent to the appellant and 70 per cent to the respondent – whether learned judge erred in finding that neither party significantly contributed to the earning capacity of the other as a result of the relationship – whether the judge placed too much weight on the initial contributions of the parties – whether the distribution was "just and equitable" – whether the discretion of the learned trial judge should be interfered with – HELD: appeal dismissed – the appellant to pay the respondent's costs of and incidental to the appeal to be assessed – the respondent shall take all necessary steps to cause the appellant to be discharged from any and all liability in respect of the debt secured by mortgages over the real property situated at 18 Surrey Ct, Deception Bay, 5 Crowley St and 9 Crowley St, Zillmere within 60 days – the costs of an incidental to the trial be remitted to the trial judge

General Civil Appeal – where respondents had funds invested with Arafura – where respondent's solicitors issued a statutory demand for the amount said to be owing – where respondent entered a deed of release with Arafura for an amount less than the full amount owing – where appellants sought a declaration that the payment was voidable as an insolvent transaction under the Corporations Act 2001 (Cth) – where respondent raised a defence under s 588FG(2) claiming that they did not suspect, and that a reasonable person would not have suspected, that Arafura was insolvent at the time of the payment – whether the respondent had discharged the onus with respect to establishing the relevant defence – circumstances where the defence would be difficult to establish – HELD: allow the appeal and set aside the judgment of the District Court – declare that a payment of $83,000 to the respondent on or about 29 August 2005 is an insolvent transaction within the meaning of s 588FC of the Corporations Act 2001 (Cth) – declare that the payment of $83,000 is an unfair preference pursuant to s 588FA of the Act – declare that the payment of $83,000 is voidable pursuant to s 588FE of the Act – the respondent pay to the appellant the sum of $83,000 pursuant to s 588FF of the Act – the respondent pay interest on the sum of $83,000 pursuant to s 47 of the Supreme Court Act 1995 (Qld) from the commencement of the winding up until the date of judgment – the respondent pay the appellant's costs of and incidental to the proceedings in the District Court and of this appeal to be assessed

Application for Leave s 118 DCA (Civil) – where costs assessed in the Magistrates Court under Ch 17 Pt 2 UCPR – where costs assessed on an indemnity basis – whether magistrate had power to make assessment of costs under r 681(2) UCPR – whether any other statute gave the Magistrates Court power to award costs – whether concept of reasonableness in r 704(3) UCPR involves a consideration of proportionality – whether Ch 17 UCPR provides a sufficient basis for the award of costs in the Magistrates Court – HELD: application for leave to appeal granted but limited to the applicant's first two contentions set out in para [6] of these reasons – appeal dismissed with costs to be assessed

General Civil Appeal – where respondent sought costs against the person who prepared the application and appeal – where the application and appeal were pointless – whether appropriate to exercise the discretion to make a costs order – circumstances where costs orders may be made against non-parties – HELD: application dismissed

General Civil Appeal – where parties executed a contract to purchase a site for development – where appellant was to purchase the land and make it available for development and provide finance – where respondent was responsible for the construction and administration of the project – where appellant purported to terminate the agreement – where development fee not payable if agreement validly terminated – where cl 13 provided for calculation of the development fee payable by the appellant to the respondent – where cl 13.1 applied if the "buildings" were "fully leased" by the completion date – where cl 13.2 applied if the buildings were not fully leased – where "buildings" defined as "compris[ing] a fast food store, a restaurant and a shop" – where learned trial judge construed this in the singular as consisting only of those three tenancies, and concluded that the "buildings" were "fully leased" – where judge therefore calculated the development fee on the basis of cl 13.1 – where cl 22 contained a dispute resolution mechanism – where cl 28 contained a requirement for "full faith" – where cl 13.2 was uncertain as part C of the calculation was "a proportion of the profit as agreed" – where parties had not reached an agreement as to how to apportion profit – whether the operation of clauses 13.2, 22 and 28 entitled the respondent to ask the court to fix a fair and reasonable percentage profit as the proportion agreed upon by the parties – where learned judge made an assessment of reasonable development costs in calculating the development fee – where actual amount paid to the builder for development costs exceeded the contract price – where respondent submitted that pursuant to an agreement between the parties the appellant was responsible for all building costs over the tender prices obtained by the respondent – where this alleged agreement was not pleaded by the respondent – where appellant does not challenge the accuracy or validity of the calculations made by the learned judge – whether it was proper for the learned judge to have undertaken the task of calculating reasonable construction costs – whether a liability was imposed on the appellant for damages not pleaded by the respondent – whether agreement validly terminated in accordance with cl 16.6 – whether the right of termination was a continuing one – whether the appellant had, by its conduct, irrevocably elected to not exercise its right of termination – conduct or words constituting election – whether the "buildings" were "fully leased" as at the date of completion of the project – whether buildings could be considered fully leased where final lease not executed with one tenant prior to completion date – whether learned judge erred in failing to consider respondent's claim for damages under s 51AC and s 82 TPA where this claim was not pursued at trial – whether damages ordered to be paid by way of quantum meruit should be set aside – HELD: dismiss the appeal – appellant pay the first respondent's costs

Sentence Application – where applicant pleaded guilty to 22 counts of offences of dishonesty – where applicant was arrested and charged for the first 10 counts and released on bail – where remaining 12 offences were committed while the applicant was on bail – where applicant sentenced to three years imprisonment on each of those 22 offences, to be served concurrently, with a parole release date of 26 March 2008 (equivalent to serving 12 months) – where applicant assisted by juvenile co-offenders in the commission of the offences – where trial judge considered the applicant's youth (aged 20 years at time of committing the offences), his cooperation with police and his limited criminal history – where applicant showed improvement after his arrest and had lived a more stable and law abiding life – whether learned judge properly considered mitigating circumstances – whether learned judge placed too much emphasis on general deterrence – whether head sentence was manifestly excessive – HELD: application allowed – appeal allowed – set aside the sentences imposed on 26 March 2007 – order instead that in respect of the 10 counts on indictment 266 of 2006, the appellant be sentenced to two years imprisonment, suspended after serving eight months of that term for an operational period of three years – in respect of the 12 counts on indictment 265 of 2006, the appellant be sentenced on each count to two years imprisonment, with a parole release date fixed at 26 November 2007

Appeal against Conviction & Sentence – where appellant convicted of one count of GBH and two counts of assault occasioning bodily harm while armed – where appellant drove his vehicle at the complainants, struck and injured them – where there was competing evidence as to the surrounding circumstances of the collision – where appellant gave varying accounts of how the events unfolded – where appellant failed to give an account consistent with the physical marks at the accident scene – where defence of accident under s 23 Criminal Code (Qld) required consideration of whether the appellant's driving at the time of the accident occurred independently of the exercise of his will – whether the learned trial judge gave adequate directions on s 23 – whether the circumstances of the case required a direction on s 23 – what constitutes an "act" for the purposes of s 23(1)(a) – whether a substantial miscarriage of justice was occasioned by the failure of the trial judge to properly explain s 23 (refer s 668E(1A)) – HELD: appeal dismissed

Sentence Application – where applicant pleaded guilty to producing the dangerous drug methylamphetamine – where applicant sentenced to three years imprisonment with parole fixed at 21 July 2008 (equivalent to serving 16 months imprisonment) – where co-offenders received lesser sentences – where applicant's counsel contends that the learned sentencing judge erred in considering the use of the applicant's premises in producing the drug and in finding that the applicant procured others to purchase drugs containing pseudoephedrine – where lesser sentences imposed on other offenders – whether sentence imposed manifestly disparate to sentences imposed on other offenders – HELD: application for leave to appeal against sentence dismissed

Sentence Application – where applicant pleaded guilty to importing a marketable quantity of a border controlled drug contrary to s 307.2 Criminal Code (Cth) – where applicant sentenced to 15 years imprisonment with a non-parole period fixed at seven years – where maximum penalty for the offence is 25 years – where applicant was a courier with no prior criminal history – where applicant made full admissions during a record of interview with federal police – where applicant pleaded guilty to an ex-officio indictment – where applicant married with young children and had a good work history – whether learned sentencing judge properly took into account mitigating factors – whether sentences inconsistent with sentences imposed in Queensland and other Australian jurisdictions for similar offending – HELD: application for leave to appeal granted – appeal allowed – set aside the sentence imposed below – substitute a sentence of 10 years imprisonment with a fixed non-parole period of 5 years

Sentence Application – where applicant, while in gaol serving a sentence of life imprisonment for murder, assaulted another inmate and was convicted of assault occasioning bodily harm – where sentencing judge imposed a sentence of nine months imprisonment to be served concurrently with the life sentence – where judge fixed a parole eligibility date six months later than that imposed under the life term – whether learned judge had a discretion or obligation under s 160C Penalties and Sentences Act 1992 (Qld) to fix a new date for parole eligibility – whether variation of the eligibility date amounted to a impermissible variation to the life sentence contrary to s 305 Criminal Code (Qld) – whether the legislature has effectively ensured that courts can penalise life prisoners who re-offend while in custody – whether Court should exercise discretion to extend the parole eligibility date and adopt the date set by learned sentencing judge – HELD: grant leave to appeal – allow the appeal – order that the applicant be imprisoned for nine months, to be served concurrently with the term of life imprisonment imposed on 5 March 2002, and that under s 160C(5) Penalties and Sentences Act 1992 (Qld), the applicant's parole eligibility date be fixed as 4 October 2015

Appeal against Conviction – where appellant pleaded not guilty to a charge of dangerous driving of a motor vehicle causing death whilst adversely affected by alcohol – where jury of 12 persons empanelled – where on the third day of trial, the learned judge discharged an ill juror under s 56 Jury Act 1995 (Qld) – where learned judge heard submissions about the appropriate course of action – where learned judge then directed, under s 57, that the trial continue with 11 jurors – where jury retired on day five and returned a guilty verdict that same day – whether learned judge's exercise of discretion under s 57 miscarried – whether learned judge should have discharged the jury – nature of discretion under s 57 and relevant considerations – HELD: appeal dismissed

Appeal against Conviction & Sentence – where appellant convicted of rape and assault occasioning bodily harm but acquitted of one count of assault – where appellant sentenced to seven years imprisonment, with a serious violent offence declaration being made – where during the course of the trial, the appellant revoked instructions to his first counsel – where first counsel had cross-examined the complainant about the prior sexual relationship with the appellant – where learned judge was critical of counsel's approach – where second counsel applied for a discharge of the jury – where judge refused application – whether the approach of the first counsel was a "rational tactical decision" – whether the conduct of the first counsel gave rise to a miscarriage of justice – whether any inconsistency between convictions and acquittal – whether learned judge erred in failing to discharge jury – whether convictions unsafe, unsatisfactory or unreasonable – whether imposition of an SVO declaration rendered the sentence manifestly excessive – HELD: appeal against conviction dismissed – granted leave to appeal against sentence – appeal allowed – set aside the SVO declaration – otherwise confirm the sentences imposed

Appeal against Conviction & Sentence – where appellant convicted of dangerous operation of a motor vehicle causing death – where appellant sentenced to three years imprisonment with a parole release date of 2 February 2008 – where appellant disqualified from holding a driver's licence for a period of four years – where evidence suggested the vehicle driven by the deceased was unroadworthy and poorly illuminated – where collision occurred in the early hours of the morning – where road on which the appellant was driving was also poorly illuminated – where jury had to be satisfied that the driving of the appellant was dangerous and that there was fault on his part – whether evidence could support a guilty verdict – whether verdict unsafe and unsatisfactory – elements of which a jury must be satisfied to convict for dangerous operation of a motor vehicle – HELD: appeal allowed – conviction quashed – verdict of acquittal and not guilty entered – sentence set aside – application for leave to appeal against sentence dismissed

Appeal against Conviction – where appellant convicted of rape – where appellant claimed that the evidence of the complainant was unreliable – where evidence of complainant at trial broadly consistent with preliminary complaint, statements to police and evidence at committal – where inconsistencies canvassed before jury in extensive cross-examination of complainant – where evidence of pretext telephone call tendered – where medical evidence did not show signs of a struggle, but did not exclude the possibility of non-consensual intercourse – where complainant made a complaint to other people very soon after the incident – whether guilty verdict is unsafe and unsatisfactory and amounts to a miscarriage of justice – HELD: appeal against conviction dismissed

Sentence Application – where applicant convicted of armed robbery – where applicant sentenced to three years imprisonment with a parole release date after nine months – where offence had aggravating features of use of a knife and attempts of concealment of face – where applicant, after making admissions to a friend who informed the police, made admissions to the police and pleaded guilty to an ex-officio indictment – where applicant refunded the balance of the proceeds of the robbery, having used some to repay a credit card debt – where circumstances demonstrated remorse – where applicant suffered from ADHD and needed ongoing therapy and supervision to reduce risks of re-offending – where offence committed whilst applicant on probation for a wilful damage offence – whether sufficient weight was given to mitigating circumstances – whether sentence manifestly excessive – HELD: application refused

Appeal against Conviction – where applicant convicted of rape – where complainant had voluntarily gone to the appellant's residence – where complainant's evidence was that she fell asleep and awoke during the act of penetration and that no consent was given – where complainant's jeans and lace-up boots were allegedly removed by the appellant whilst the complainant slept – where phone call made prior to rape – where complainant's mobile phone was in appellant's bedroom – where complainant made complaints to others very soon after the rape – where appellant's case, as put through cross-examination, was that the complainant had consented to intercourse – where consent was the only issue at trial – where counsel for the appellant at trial disclaimed reliance on s 24 Criminal Code (Qld) – where evidence at trial did not raise the possibility that the appellant mistakenly believed that the complainant was awake when intercourse took place – whether learned trial judge gave adequate directions in relation to consent – whether learned trial judge erred in failing to direct on s 24 – whether learned trial judge erred in direction on preliminary complaint – whether verdict unreasonable – HELD: appeal dismissed

Appeal against Conviction – where appellant convicted of burglary with violence while in company, assault occasioning bodily harm in company, unlawful assault and dangerous operation of a motor vehicle – where appellant claimed he was committed to trial with a full hand-up committal without legal representation contrary to s 110A Justices Act 1886 (Qld) – where there was evidence that the appellant was in fact represented – where identification evidence led at committal later tested by cross-examination on voir dire and ruled admissible – where appellant claimed various irregularities during view, including that he not present for the entire duration, and that a new laneway constructed in the area since the time of the commission of the offence – where appellant claimed that various irregularities and inconsistencies in the evidence made the evidence unreliable – whether appellant represented at committal – whether view occurred contrary s 52 Jury Act 1995 (Qld) – whether appropriate directions given with respect to the constructed laneway – whether verdicts unsafe and unsatisfactory – HELD: appeal dismissed