General Civil Appeal – where the appellant made an originating application to the Supreme Court seeking an order that the respondent veterinary surgeon hand over to him her records of treatment for his greyhounds – where primary judge in dismissing the application could find no legal basis for order sought – where the appellant merely argued he had a right to the records – where no other litigation was on foot giving rise to a right of disclosure – where proceeding also incorrectly started by application – whether the appellant had a legal right of access to the veterinary records – HELD: appeal dismissed

General Civil Appeal – where the appellant was the de facto husband of the deceased – where the deceased made some provision for the appellant in her will – where the appellant brought an application for further provision – where determination of adequacy of provision is a jurisdictional question of objective fact but involves a value judgment – where the primary judge dismissed the application holding that adequate provision was made for the appellant’s maintenance and support – where the primary judge took into account a deed signed by the appellant and deceased in relation to the appellant’s claim to the deceased’s property upon her death – whether the deed should have been disregarded – where it was open to conclude that inadequate provision was made for the appellant – whether, in exercising the relevant discretion, the primary judge fell into error in a way expressed in House v The King – HELD: that the appeal be dismissed; that the appellant pay the respondents’ costs of and incidental to the appeal to be assessed on the standard basis

Application for Leave s 118 DCA (Civil) – where the applicants were two of some 49 original shareholders in a company which had, with the consent of the relevant Minister, received a transfer of a special purpose lease granted over land in the Lockhart River area for a term of 30 years – where as shareholders the applicants received the benefit of lawful occupation of the land – where the relevant company actually transferred its special lease on 19 February 1990; and on 19 February 1993 the special lease was again transferred – where the lease expired on 30 June 1994 with no subsequent assignment, sublease or grant to right of occupancy or tenancy – where land became unallocated State land – where the applicants continued occupation in spite of transfers and the expiration of the special purpose lease – where the applicants were served with a notice under s 406 of the Land Act 1994 (Qld) for unlawful occupation – where applicants claimed that through certain correspondence, the State Government created an expectation of an entitlement to remain on the property – whether the communication gave rise to such an expectation – HELD: application refused; applicants pay the respondent’s costs

Application for leave Integrated Planning Act – where the respondent made a reconfiguration of a lot application to the applicant for subdivision – where the applicant approved the reconfiguration with a number of conditions regarding infrastructure – where the respondent appealed to the Planning and Environment Court, firstly, against condition number 65, which required supplying costs towards providing infrastructure, claiming it was irrelevant or unreasonable, and secondly, that the applicant’s transitional planning scheme, which allowed approval with conditions, commenced after the start of the decision stage for the application and should, therefore, have no weight or be disregarded by that court – where the latter appeal point was determined by that court as a preliminary legal point – where that court ordered that no regard or weight be given to the transitional planning scheme – where the applicant appealed against that finding – where s 4.1.52 of the Integrated Planning Act 1997 (Qld) gives a court discretion with regard to the weight it gives to new policies – whether there were identifiable reasons to restrict the scope of that discretion – where the remainder of the Planning and Environment Court appeal was on foot – where on appeal from that court the parties agreed that chapter 6 of the Integrated Planning Act applied to the applicant’s transitional planning scheme – where the primary judge construed s 3.5.3 and s 3.5.6 as precluding the applicant from imposing conditions in spite of s 6.1.31 – whether the primary judge erred in that construction – whether that construction was inconsistent with s 4.1.52 – whether s 6.1.31 empowered the Council to impose condition number 65 – HELD: application for leave to appeal granted; appeal allowed; set aside the declaration of the Planning and Environment Court made herein on 13 October 2006; remit the proceedings to that court to hear and determine according to law; order that the respondent pay the applicant’s costs of the application to be assessed

General Civil Appeal – where the appellants were purchasers of apartments bought subject to a lease granted by the respondent to a related company – where contracts guaranteed an apartment owner entitlement to rent of seven to eight per cent of the price of the apartment in the first four years of the term – where owners had acquired ownership of their apartments – where the rent payable was clearly less than the appellants expected – where the appellants and other apartment owners sought to rescind their contracts in writing on 8 September 2003 under the then repealed s 1073 of the Corporations Law – where the respondent claimed the notices were not validity given pursuant to s 1073 and the notices were ineffective to avoid the contracts – where the appellants counter-claimed that notices of avoidance were effective and they should be restored to their pre-contractual positions – where trial judge found the contracts created “prescribed interests;” that the appellants had a right to take advantage of an enactment, but which was not intended to be exercisable after the repeal – where appellants claim their right of avoidance survived until the date of its purported exercise – whether the appellants had an acquired or accrued right of avoidance under s 1073 Corporations Law within the meaning of s 8 of the Acts Interpretation Act 1901 (Cth) which survived the repeal – whether the right conferred by s 1073 and if preserved by s 8 was a contingent right to be restored – whether an effective choice was made at the relevant time to restore the parties to their pre-contractual positions – whether repealing legislation revealed intention contrary to s 8 Acts Interpretation Act – HELD: appeal dismissed; appellants to pay the respondent's costs of the appeal

General Civil Appeal – where the appellant served the respondents with a statutory demand for payment of a tax debt under the Corporations Act 2001 (Cth) – where the debt for Broadbeach Properties Pty Ltd entailed a demand for income tax debt and for Neutral Bay Pty Ltd and MA Howard Racing Pty Ltd for the non-payment in each case of their goods and services tax debt – where the respondents were pursuing proceedings under Part IVC of the Taxation Administration Act 1953 (Cth) challenging the indebtedness which was claimed by the statutory demand – where the appellant before the trial judge had conceded that each respondent had an arguable case – where the respondents sought an order that the demands be set aside pursuant to s 459H and s 459J of the Corporations Act – where the primary judge held that Neutral Bay Pty Ltd and MA Howard Racing Pty Ltd partly demonstrated a genuine dispute under s 459H but Broadbeach Properties Pty Ltd had not made out the ground under s 459H – where s 459J provides that a court can set aside a statutory if “…there is some other reason why the demand should be set aside” – where the primary judge found that the discretion in s 459J was broad enough to set aside the statutory demands and was warranted in each case – whether the discretion conferred by s 459J supported setting aside the demands – HELD: appeals dismissed; appellant to pay respondents' costs to be assessed on the standard basis

General Civil Appeal – where the appellant had guaranteed a loan made to a company owned and controlled by him – where the appellant, upon his company’s default, had failed to meet the demand by the respondent for immediate repayment of the loan sum with interest – where the respondent obtained a judgment in default for damages from the appellant based on his liability under the guarantee; the amount assessed included default interest at 30 per cent and then 40 per cent – where the appellant applied to the Supreme Court to set aside the default judgment on the basis that he was entitled to rescind the guarantee because it was induced by the respondent’s misrepresentations and that the default interest at 40 per cent constituted a penalty – where before the primary judge it was accepted that the claims of misrepresentation were without substance – where it was accepted that reliance on the penalty argument meant that the judgment would stand but for a reduced amount – where the respondent also accepted that the default judgment should be amended to give effect to the calculation of interest at the non penalty rate and submitted that there was power under rule 290 of the Uniform Civil Procedure Rules to amend the amount – where the trial judge dismissed the application and varied the default judgment – whether rule 290 permits a default judgment to be amended – whether the judgment was irregularly entered – HELD: appeal dismissed with costs

General Civil Appeal – where the respondent and two companies entered an agreement – where the most important rights arsing from the agreement related to two licences to participate in a car championship – where each licence permitted the respondent one car entry into the race – where the agreement carried certain consequences for failure to enter – where the respondent suffered substantial loses in his endeavour – where the requirement for funding lead to dealings with the appellant – where the respondent obtained a loan from the appellant and the parties entered into licence agreements – where the licences were transferred – where it was in dispute as to whether the licence agreements transferred the respondent’s interest to the appellant by way of security or transfer by way of sale – where the trial judge found the transactions were by way of mortgage – whether the trial judge considered the totality of the agreements between the parties and the rights which arose from these agreements in characterising the dealings between the parties – whether the rights of the respondent were transferable and subject to a mortgage – whether a mortgage arose – whether the transactions met the requirements of a mortgage – HELD: appeal dismissed with costs to be assessed

Application to Strike Out – Further Order – where an appeal against the orders of the primary judge were struck out – where the Court ordered the appellant pay the respondents’ costs of the appeal and application assessed on an indemnity basis – whether the assessment of the costs recoverable by that order should be heard by the Registrar of the Supreme Court at Cairns – whether the Court should make orders as to costs by ordering that they be paid on the indemnity basis and fixed – HELD: assessment of costs pursuant to the orders of this Court of 5 April 2007 to proceed before the Registrar of the Supreme Court at Cairns; appellant to pay costs of application to be assessed by the Registrar of the Supreme Court at Cairns

Application for Extension of Time/General Civil Appeal – where the applicant brought an action for personal injuries allegedly inflicted by the respondents – where the action was tried and dismissed by entry of judgment on 16 June 2003 – where the applicant's application to the Court of Appeal was dismissed and the application for special leave to the High Court was not granted – where the applicant through two applications seeks permission to renew his claims against the respondents and, by virtue, reverse the outcome of litigation for events which occurred 14 years ago and, for which, more than two years ago, have prima facie been concluded in favour of the respondents – where the applicant located a CT scan on 27 January 2005 and sought more than a year later in reliance of that scan, for an extension of time to file a further notice of appeal to the Court against the decision of 16 June 2003 – where the applicant subsequently brought a new action in the Supreme Court to set aside the judgment of 16 June 2003 on the basis that that judgment was obtained by fraud – where the respondents brought an action to strike out the new action – where the applicant did not produce the CT scan to the respondents nor put the image before the Chief Justice in answer to the respondent’s strike out action – where the claim and statement of claim were struck out on 28 March 2007 – where the applicant filed a notice of appeal against that decision one day late due to an oversight by the applicant’s research assistant – whether an extension of time should be granted in each application – whether the CT scan should be tendered to the Court – given the fact that there is a public interest which requires an end to law suits, whether the litigation should be reopened – HELD: application for extension of time in Appeal No 1388 of 2006 refused; application for extension of time in Appeal No 3622 of 2007 refused; applicant to pay costs of the respondents in each application on the indemnity basis

Appeal against Conviction – where the appellant was charged with three counts of rape and one count of deprivation of liberty – where the complainant, an Aboriginal Australian, gave evidence with the aid of an interpreter – where the quality of the interpreting and some of the procedures adopted were criticised – where the Crown case depended on the jury accepting the complainant’s evidence – where the appellant was acquitted of two counts of rape and convicted of one count of rape and the count of deprivation of liberty – where the trial judge gave a misstatement of evidence with regards to the count of rape for which the appellant was convicted – whether the misstatement misled the jury and satisfied the setting aside of the conviction on that count – whether the complaint’s evidence was vague and inconsistent – whether cultural and linguistic issues affected the complainant’s evidence – whether upon the whole of the evidence it was open to the jury to be satisfied beyond reasonable doubt of the appellant’s guilt – whether the conviction verdicts were inconsistent with the two verdicts of acquittal – whether the guilty verdicts were unsafe and unsatisfactory – HELD: appeal allowed; set aside the convictions on counts 3 and 4; enter verdicts of acquittal on counts 3 and 4

Appeal against Conviction – where the appellant was charged with one count of maintaining a sexual relationship with a circumstance of aggravation; five counts of indecent treatment of a boy under 17 while under 14; and four counts of indecent treatment of a child under 16 – where the appellant was convicted of one count of indecent treatment of a boy under 14 years and found not guilty on the remaining charges – where the appellant contended that his conviction was unreasonable and could not be supported by the evidence pursuant to s 668E of the Criminal Code 1899 (Qld) – where this ground of appeal required a review of the evidence – whether the guilty verdict was unsafe or unsatisfactory – whether it was open to the jury to be satisfied beyond reasonable doubt that the appellant was guilty on that count – HELD: appeal against conviction dismissed

Sentence Appeal by A-G (Qld) – where the respondent pleaded guilty to four counts of indecent treatment of a child under 12 years and one count of possessing child exploitation material – where the offences were committed during the operational period of two suspended sentences – where the respondent also committed two summary offences under the Child Protection (Offender Reporting) Act 2004 (Qld) – where the appellant contended that the sentence was manifestly inadequate – where the appellant and respondent on appeal both agreed that an imposition by the primary judge of an intensive correction order for the one count of possessing child exploitation material was unlawful given that the total period of imprisonment ordered for the respondent exceeded 12 months – where the error required the Court to allow the appeal and to re-sentence the respondent – whether the Court should take the approach of the primary judge – HELD: appeal allowed to the limited extent of setting aside the sentence imposed on count 7 and instead order; that the respondent be admitted to probation for three years on the terms and conditions set out in s 93 Penalties & Sentences Act 1992 (Qld) together with a special condition that he receive medical, psychiatric and psychological counselling and treatment as directed by his probation officer; he is to report to the probation office at Bundaberg within seven days of the delivery of these reasons for judgment; a conviction is recorded; in respect of the summary offences against the Child Protection (Offender Reporting) Act 2004 (Qld) the respondent is convicted but not further punished; the sentences imposed on 18 June 2007 are otherwise confirmed; the non-contact order and the orders relating to the photos and the computer made on 15 June 2007 are also confirmed

Sentence Application – where the applicant pleaded guilty to the dangerous operation of a motor vehicle with a circumstance of aggravation – where the offence was committed during the operational period of a suspended sentence – where the applicant had also defaulted on an order to pay compensation; default of which, according to the original sentence, would lead to an order of imprisonment for one year – where the sentencing judge activated the whole suspended period of imprisonment of two years, ordered that a sentence of 12 months imprisonment be imposed on the dangerous operation of a motor vehicle, to be served cumulatively, ordered that the 12 months of imprisonment previously ordered for default of payment of compensation be served concurrently and fixed a parole release date – where s 147 of the Penalties and Sentences Act 1992 (Qld) provides that, in dealing with an offender for suspended imprisonment, the offender be ordered to serve the whole of the suspended imprisonment unless it would be unjust to do so – where the applicant claims the order to serve the whole of the suspended period of imprisonment was unjust having regard to his rehabilitation and new family responsibilities – where s 147 provides non-exhaustive criteria when considering whether activation of the whole suspended period of imprisonment could be considered unjust – whether it was unjust – whether the discretion under s 147 miscarried – whether the sentence was manifestly excessive – HELD: application for leave to appeal granted; appeal allowed to the extent of: setting aside the order activating the whole of the two year suspended sentence, ordering that 12 months of the suspended sentence imposed on 17 September 1997 be activated, setting aside the parole release date of 4 June 2008, ordering that his parole release date be 4 December 2007

Appeal against conviction – where the appellant was convicted of three counts of indecent treatment of a child under 12 years whilst in his care – where the appellant contended that the complainant's evidence was unreasonable given the discrepancies and inadequacies of the complainant’s uncorroborated account and was unreasonable in that the evidence was such that no reasonable jury could find the element of indecency – where the grounds of appeal required a review of the evidence – whether the verdicts were unreasonable against the weight of the evidence – whether the evidence established the appellant’s guilt beyond reasonable doubt – HELD: appeal against conviction allowed; convictions on each count set aside; instead, on each count a verdict of acquittal is entered

Sentence Appeal by A-G (Qld) – where the respondent was sentenced to 12 months imprisonment wholly suspended for three years and convictions recorded for three counts of knowingly possessing child exploitation material – where the sentencing judge observed the respondent’s offences were serious and the material in question repulsive – where the sentencing judge accepted the material was downloaded for the respondent’s personal use – where in sentencing for this type of offence personal and general deterrence is of considerable importance – where the respondent had no prior convictions – where there was strong evidence of an intention to rehabilitate – where the respondent cooperated with the administration of justice, entered an early guilty plea and showed remorse – where the conviction, sentence and appeal were conducted in public – where suppression of the respondent’s name was not legally required – where the consequences of offending would lead to loss of career prospects – where the recording of convictions means that the respondent must report for a period of eight years to police in accordance with the Child Protection (Offender Reporting) Act 2004 (Qld) – whether the sentencing judge was bound to order actual imprisonment – whether the sentence reflects adequately the seriousness of the offences – whether general deterrence was sufficiently taken into account – whether too much weight was given to mitigating factors – HELD: appeal dismissed

Sentence Application – where the applicant was convicted of knowingly possessing child exploitation material and was sentenced to six months’ imprisonment suspended after two months for an operational period of two years – where the number of images was relatively small but depicted abhorrent exploitation of children including images of very young children subject to serious sexual abuse – where images kept on a disk in a lasting form – where the applicant lacked remorse – where a guilty plea or cooperation with the administration of justice were absent – where the sentencing judge accepted the images were not for commercial use and gave regard to the applicant’s personal circumstances – where the sentencing judge, in imposing the sentence, regarded the need for personal deterrence from and community denunciation for such acts as requiring the applicant to serve actual imprisonment – whether the sentencing judge erred in the exercise of the sentencing discretion under s 9(2) of the Penalties and Sentences Act 1992 (Qld) – whether the sentence imposed was manifestly excessive – HELD: application for leave to appeal dismissed

Appeal against Conviction – where the appellant was convicted by a jury of the offence of attempted arson of a dwelling house and of motor vehicles – where the jury were directed as to the elements of attempt under s 4 of the Criminal Code – where no attention was drawn at trial nor was the trial judge asked to rule on whether the evidence was capable of establishing preparation and not attempt to commit – where the submission was only made on appeal – where it was contended that the trial judge should have directed the jury as to the difference between mere preparation and attempt to commit an offence – where such a direction is usually made at trial because the defence advances mere preparation – where the case against the appellant was a strong one – whether on the totality of the evidence the appellant was deprived of any possible chance of acquittal – whether such a direction was required – HELD: appeal dismissed

Sentence Appeal by A-G (Qld) – where the circumstances establishing the offences in question were horrific – where the 18 year old respondent was sentenced to life imprisonment with a non-parole period of 20 years for two counts of murder, 15 years imprisonment for one count of manslaughter, 10 years imprisonment for each count of four counts of rape and sentenced to concurrent sentences for other offences committed by him between the ages of 15 and 18 years – where the respondent showed no remorse apart from the pleas of guilty on the second day of the trial – where the Crown case was strong – where the respondent’s youth and guilty pleas were the main mitigating factors taken into account by the sentencing judge – where the sentencing judge found the respondent was a continuing danger to the community and was at real risk of re-offending – where the murders were in the worst category of that offence – where the Crown submitted that a non-parole period of 25 to 30 years should be fixed for each of the murders pursuant to s 305 of the Criminal Code – whether the sentence was manifestly inadequate – whether the sentencing judge erred by treating the disparity with the non-parole period of a juvenile co-offender (not in this appeal) as a relevant consideration – whether the sentence adequately protected the community and punished the offender – where the 15 year old respondent was sentenced to 10 years detention for one count of murder with an order for release after five years – where his involvement in the offences was substantially less than his co-offenders – where the respondent was compelled to act under threat of being killed – where the sentencing judge considered the fact that the respondent had acted under compulsion, the respondent’s youth, his low intelligence, his conduct in acting to protect a baby during the course of the offences, his cooperation with police, and his demonstration of remorse were relevant mitigating factors – where the sentencing judge considered the offence was not "particularly heinous" for the purposes of s 176 of the Juvenile Justice Act 1992 (Qld) – whether the sentence was manifestly inadequate – whether too much weight was accorded to acting under compulsion – whether the offence was a particularly heinous one – HELD: in CA No 65 of 2007 (in relation to Maygar): appeal allowed; non-parole period increased to 30 years in respect of each of the sentences of murder; in CA No 92 of 2007 (in relation to WT): appeal dismissed

Sentence application – where the applicant pleaded guilty to six counts of burglary and stealing, three counts of burglary by breaking, one count of burglary, and two counts of common assault – where most offences were committed after the applicant’s release from prison – where the offences in question were serious – where the applicant had a lengthy criminal history of similar offences as well as armed robbery in company – where the applicant was sentenced to concurrent terms of imprisonment of four and a half years for the property offences and 18 months for the assaults with parole eligibility after 13 months – whether sentence manifestly excessive – whether applicant should have been given a parole release date – HELD: application dismissed