Application for Leave s 118 DCA (Civil) – Miscellaneous Application - Civil –Application for Stay of Execution – where respondent notified on several occasions of applicant’s failure to properly care for her child – where an application for a child protection order filed in the Childrens Court constituted by a magistrate was made pursuant to s 54 of the Child Protection Act 1999 (Qld) in December 2006 – where the applicant was served pursuant to s 56 of the Act by leaving it at the applicant’s last known address – where the application for a child protection order was adjourned in January 2007 and an interim order for temporary custody of the child and limiting access of the applicant to the child, was made pursuant to s 67 of the Act – where a solicitor on behalf of the applicant claimed the Childrens Court had no jurisdiction to make the orders it did as the applicant and the child were in New South Wales at the time – where no evidence was placed before the Childrens Court in that regard – where the applicant appealed to the Childrens Court constituted by a judge of the District Court on the basis of the Court not having jurisdiction as the applicant and child were out of the State and the applicant not being personally served – where the appeal was partially successful in that the interim order for temporary custody of the child was removed – where the applicant appealed out of time to this Court on the same basis – where the applicant sought an extension of time – whether an appeal lies to this Court – whether the proposed appeal possesses utility – whether there are sufficient prospects of success – whether the Childrens Court had jurisdiction to make orders – HELD: application for leave to appeal refused

Appeal from the Land Appeal Court – where the applicant’s land was compulsorily resumed for road purposes by the respondent under the Acquisition of Land Act 2000 (Qld) – where the applicant lodged a claim for compensation which was not determined – where provisional payments were made to the applicant to the amount of $180,000 as advances in respect of compensation payable pursuant to s 23 of the Act – where there was a revocation of the resumption of land – where the respondent wrote to the applicant offering the land back for $180,000 and sought an acceptance in writing from the applicant for the revesting of the land for that amount – where the respondent agreed – where the Land Appeal Court concluded no agreement had been reached between the parties which would satisfy s 17 – where the applicant claimed under s 17, the power to revoke a resumption becomes an obligation when conditions for its exercise have arisen – whether under the proper construction of s 17 such an obligation arises – whether s 17 was properly invoked – whether the Anshun principle stands bar to arguing issues of construction which should have been litigated in the first proceeding – HELD: application dismissed; the applicant is to pay the respondent’s costs

Application for Leave s 118 DCA (Civil) – where the respondent suffered personal injuries in the course of his employment with the applicant – where the respondent was an apprentice motor mechanic – where the respondent resumed full work duties one month after the incident – where the injury had not fully resolved – where the medical reports in 2005 were not conclusive as to the respondent’s prognosis in relation to his capacity to work as a motor mechanic – where the 2006 medical report provided a definitive statement about the restrictions on the respondent’s work and career options in that his future as a mechanic was permanently at risk – where the respondent subsequently sought an extension of the limitation period for an action for damages to negligence – where the limitation period was extended on the basis that the 2006 medical report enlivened the discretion under s 31(2)(a) Limitation of Actions Act 1974 (Qld) – whether the trial judge erred in concluding that the 2006 medical report was a material fact of a decisive character relating to the right of action – HELD: application for leave to appeal refused; applicants to pay respondent's costs of the application for leave to appeal on the standard basi

General Civil Appeal – Further Order – where the Court allowed the appeal and ordered the respondent pay the appellant’s costs to be assessed on the standard basis –where the respondent was granted leave to apply for an Indemnity Certificate pursuant to s 15 of the Appeal Costs Fund Act 1973 (Qld) – whether Indemnity Certificate should be granted – HELD: an Indemnity Certificate be granted to the respondent

Application for Leave Integrated Planning Act – where the appellant has been the registered proprietor of land at Little Mountain near Caloundra since 1996 – where, since 1984, the relevant land has been subject to a series of planning schemes and changes of legislation under which the planning schemes have been made – where an Order-in-Council was published in 1984 which permitted the development of townhouses on the relevant land – where a new planning scheme for the shire was made under the Local Government Act 1936 (Qld) in 1987 which prohibited the building of multiple dwellings due to the rural residential zoning – where the zoning did not preclude the Council from approving an application for the construction of 10 townhouses in 1988; but which were never built – where in 1991 the LGA was repealed and replaced by the Local Government (Planning and Environment) Act 1990 (Qld) – where another scheme was made under the LGPAEA in 1996 – where again that planning scheme prohibited the building of multiple dwellings due to the rural residential zoning – where the LGPAEA was repealed and replaced by the Integrated Planning Act 1997 (Qld) – whether the 1984 Order-in-Council survived the various legislative schemes – whether the transitional provisions in IPA were inconsistent with the survival of accrued rights under the 1984 Order-in-Council – whether the provisions of IPA displaced the operation of s 20 of the Acts Interpretation Act 1954 (Qld) – HELD: Grant leave to appeal; dismiss the appeal; order the appellant pay the respondent’s costs of the appeal, agreed or assessed on the standard basis

General Civil Appeal – where the respondent had been convicted and sentenced for a number of offences of a sexual nature against children – where the respondent pleaded guilty in 1997 of 43 counts of sexual offences including maintaining an unlawful sexual relationship with a child under the age of 16 – where the respondent was sentenced to 10 years imprisonment for the maintaining offence and concurrent terms for the various other offences – where the respondent was refused parole and nearly served the 10 year sentence – where the respondent withdrew from a sexual offenders treatment program in 2002 – where the respondent briefly saw a psychiatrist in 2006 but declined to be interviewed – where the psychiatrist considered that the respondent fit the criteria for paedophilia and had a moderate to high risk of re-offending – where a second psychiatrist concluded that the respondent was likely to pose a moderately high risk – where a third psychiatrist who interviewed the respondent concluded that the respondent was a moderate risk of re-offending and would benefit from continued probationary supervision, physical limitations and suitable accommodation – where the trial judge noted that in the case of the respondent there was an appreciable risk of re-offending – where the trial judge concluded the risk of re-offending without the imposition of suitable conditions was substantial – where the trial judge made an order under s 13(5)(b) of the Dangerous Prisoners (Sexual Offences) Act 2003 (Qld) releasing the appellant from custody subject to conditions until 1 February 2017, or until further order – where thirty three conditions were specified – where the Attorney General sought to overturn those orders and ask for a continuing detention order – where the imposition of such an order involves an exercise of discretion – whether the trial judge fell into error in exercising the discretion – HELD: Dismiss the appeal; order the appellant to pay the respondent’s costs agreed or assessed on the standard basis; the conditions imposed on the respondent by order No 2 made on 21 February 2007 be varied to include the further condition (xxxiv) that the respondent comply with any reasonable direction given by an authorised Corrective Services officer to establish the nature of any usage of any computer by the respondent

Application for costs – where the appellants each lodged a caveat on the same parcel of land; the appellant Smits on 9 February 2007, and the appellant Blue Coast Yeppoon Pty Ltd on 2 March 2007 – where each caveat was ordered to be removed – where each appealed against the removal orders – where one week before the matters were to be heard, the appellants gave notice to the respondent of their intention to not pursue the appeals and offered to pay the respondent’s costs of the appeal on a standard basis – where the respondent rejected the appellants’ offer in favour of receiving costs of the appeals on an indemnity basis – where the two appeals were heard together and dismissed by consent – whether costs on an indemnity basis should be ordered – whether the appellants’ case was wholly without arguable merit – HELD: the appeals are dismissed; the respondent’s costs of both appeals are to be paid by the appellant, Leonardus Gerardus Smits on an indemnity basis

General Civil Appeal – where the respondent successfully applied to the Land and Resources Tribunal under s 275 Mineral Resources Act 1989 (Qld) for the grant of an additional surface area to a mining lease – where the appellant objected to the mine expansion being approved without conditions requiring a 100 per cent offset of greenhouse gas emissions from the mining, transport and use of the coal – where the appellant’s application to amend its particulars to reduce the amount of offsets required for emissions from 100 per cent to 10 per cent was refused on the basis that the amendment would substantially change the case the first respondent had to meet – where expert witnesses gave evidence to the Tribunal viz climate change – where the hearing concluded and the judgment was reserved – where the Tribunal wrote to the parties seeking submissions on two further documents not in evidence during the hearing to which the President of the Tribunal became aware of and to which the President may find “relevant to his decision” – where the documents concerned whether climate change is occurring and whether greenhouse gas emissions contribute to that climate change through global warming – where both parties submitted the documents were not directly relevant to the proceedings and related to facts undisputed – where the Tribunal relied on the new documents with regard to reaching its decision – where the Tribunal had not indicated the extent of its reliance before delivering its reasons – whether the parties were afforded procedural fairness viz presenting an argument on the new material – whether the appellant was denied natural justice viz being accorded the opportunity to respond – whether the appellant can amend its particulars as first indicated in its unsuccessful application to the Tribunal – HELD: appeal allowed with costs to be paid by the first respondent; the orders of the Land and Resources Tribunal of 8 May 2007 are set aside; the matter is remitted to the Land Court for determination according to law; the appellant is given leave to amend its particulars of the conditions it seeks to have imposed on the respondents' applications in accordance with the appellant's application filed in the Land and Resources Tribunal on 24 January 2007

Application for Leave Integrated Planning Act – where the applicant was both unsuccessful in its application to the respondent for a material change of use of land and its appeal of this refusal to the Planning & Environment Court – where the lot in question occupied most of Precinct 7 of Planning Area 11 under the Maroochy Plan 2000 – where the applicant intended to develop a number of showrooms, the occupant of one to be the Bunnings Group Ltd – where the judge at first instance concluded that the Statements of Intent and Preferred and Acceptable Uses for Precinct 7 had to be contextualised with the statements of intent for the whole of the planning area – where it followed that an acceptable use for showrooms in Precinct 7 was a smaller scale development than that proposed by the applicant – whether the general provisions of the planning scheme prevailed over the specific provisions – whether the proposed development conflicted with the planning scheme – whether it was relevant to consider need in a planning scheme – whether an error or law occurred – HELD: Application dismissed with costs

Application for Leave s118 DCA (Criminal) – where applicant was convicted on one count of stalking in the Magistrates Court – where the applicant’s appeal to the District Court was dismissed – where the elements establishing stalking were not seriously in dispute – where the applicant contended that the element of fear was not made out – where the Magistrate accepted the evidence of the complainant including his evidence of actual fear – whether the complainant’s fears were reasonable in all the circumstances – HELD: application dismissed

General Civil Appeal – where the deceased, by Will, left her estate to her daughters – where the appellant claimed to be the de facto partner of the deceased as defined by s 5AA of the Succession Act 1981 (Qld) – where the appellant applied under s 41 of the Succession Act 1981 (Qld) for proper maintenance and support out of the estate of the deceased against the deceased’s daughters who were the respondents – where the application was dismissed and no appeal was pursued on this point – where the appellant in the same proceedings sought a declaration, commenced by claim, that the respondents held their interest in the property on a constructive or resulting trust for the appellant – where the primary judge did not accept that representations concerning the appellant’s right or interest to reside in the deceased’s house were made by the deceased let alone relied upon by the appellant to her detriment – where the primary judge did not find any significant financial contribution by the appellant in relation to the property nor contribution by way of domestic tasks – where the appellant claims that the finding by the primary judge as to the expenditure of money and work done justify a finding of a constructive trust – whether the evidence would support the claim of whether a constructive or resulting trust arose – whether allegations in the defence were deemed admissions – HELD: Appeal dismissed with costs

Miscellaneous Application - Civil – where the plaintiff worked for the defendant as a machine operator – where the plaintiff made an application to WorkCover for compensation for bilateral carpal tunnel syndrome – where the applicant first applied in 2004 for an extension of the limitation period pursuant to s 31 Limitation of Actions Act 1974 (Qld) – where the first application was refused on the basis that at the relevant date the plaintiff had sufficient knowledge of material facts of decisive character to conclude that he had a worthwhile cause of action – where the applicant again applied for an extension in 2007 – where the second application was successful on the basis that there was previously undisclosed documentation which was not available at the time of the first application and that the judge in the first application erred in concluding that the plaintiff had the means of knowing he had a worthwhile action against the defendant prior to November 2001 – whether the second application should have been granted – whether the evidence supported against the finding of fact in the first application viz sufficient knowledge – whether determination on first application created an issue estoppel – whether second application should not have been entertained – HELD: application for leave to appeal granted; appeal allowed; judgment below set aside; plaintiff to pay defendant's costs of appeal to be assessed on the standard basis

Application for Leave s 118 DCA (Civil) – Further Order – where defendants’ application for leave dismissed – where plaintiff had offered not to seek costs of appeal if defendants withdrew appeal – where defendants failed to accept plaintiff's offer – whether costs after offer should be paid on the indemnity basis
– HELD: the costs order of 5 October 2007 be varied to provide that the costs incurred by the plaintiff before 27 June 2007 be paid on the standard basis and those incurred after 27 June 2007 be paid on the indemnity basis

General Civil Appeal – where the plaintiff worked as an operational ambulance officer for fifteen years at Emerald, Esk, Ayr and Gayndah – where in the course of that employment the plaintiff was exposed to numerous traumatic events – where the plaintiff left his employment in 1999 suffering from post traumatic stress disorder and obsessive compulsive disorder – where the plaintiff claimed the respondent was responsible for these conditions and commenced an action claiming damages for negligence, breach of contract and breach of statutory duty – where the plaintiff argued at trial that had his supervisors been appropriately trained to recognise signs of dysfunction, they would have recognised these signs in the plaintiff, recommended to him to seek professional assistance, to which he would have done, and that, he would either not have developed psychiatric injuries or would have suffered them to a lesser extent – where the trial judge concluded that the failure by the plaintiff’s superiors to identify signs of dysfunction in him, due to the absence of training, caused the plaintiff to lose the chance of “a better outcome” – whether the plaintiff presented with signs of dysfunction in 1996 – whether the plaintiff’s superiors were privy to the plaintiff’s “cluster of complaints” in total – whether the plaintiff’s cluster of complaints could reasonably have been construed as industrial issues and not signs of dysfunction – whether there was a breach of duty and causation – whether it could be satisfied, on the balance of probabilities that had training to recognise signs of dysfunction occurred, the dysfunction would have been recognised – whether breach of obligation to ensure workplace health and safety of plaintiff – HELD: appeal allowed; judgment below set aside; plaintiff’s action dismissed; plaintiff must pay defendant's costs of the action and of the appeal to this Court to be assessed on the standard basis

General Civil Appeal – where the respondent suffered injuries after his motorcycle struck a horse lying on the road – where the primary judge found that the horse was lying in the middle of the road as a result of a collision with an unidentified vehicle – where the horse was dead but still warm – where the collision was not proof of the negligence of the driver of the unidentified vehicle – where the driver of the unidentified vehicle had a duty to exercise reasonable care to prevent harm to road users which the presence of the horse may have caused – where failure to exercise such care resulted in the respondent’s injuries – where the trial judge therefore held that the nominal defendant was liable in respect of the injuries sustained by the respondent – whether the elements of 5(1) of the Motor Accident Insurance Act 1994 (Qld) were satisfied – whether construction of the Act should be restricted – whether there was sufficient evidence to establish that the driver of the unidentified vehicle knew or ought to have known that they had created an obstacle on the road – whether the duty of care involved staying and warning other drivers of the hazard – HELD: appeal dismissed with costs

Sentence Application – where applicants were jointly charged with, and pleaded guilty to, one count of assault occasioning bodily harm in company – where the assault was unprovoked – where Love was the instigator of the assault – where sentencing judge took into account early guilty pleas – where each was sentenced to 18 months imprisonment with a parole release date fixed after six months – where sentencing judge concluded custodial sentences were necessary for reasons of deterrence – whether weight placed on deterrence was excessive – whether insufficient recognition given to mitigating circumstances and prospect of rehabilitation of both applicants – whether the sentences imposed were manifestly excessive – whether basis for distinguishing between applicants in imposing sentences – HELD: in CA No 211 of 2007 application for leave to appeal against sentence allowed, a set aside the sentence imposed at first instance and substitute a sentence of nine months imprisonment with a parole release date fixed at 2 October 2007; in CA No 217 of 2007 application for leave to appeal against sentence allowed, set aside the sentence imposed at first instance and substitute a sentence of nine months imprisonment with a parole release date fixed at 8 November 2007

Appeal against Conviction & Sentence – where the appellant was tried on one count of maintaining a sexual relationship with a child, 14 counts of indecent treatment of a child under 12 who was a lineal descendant, and seven counts of possession of a child abuse computer game – where Crown presented an indictment with all charges – where defence counsel unsuccessfully applied for a sever of charges – where the appellant was convicted on five of the counts, counts 1-5, of indecent treatment and all counts, counts 16-22, of possessing a child abuse computer game – whether counts 1 5 and counts 16-22 on the indictment were properly joined as a series of offences of the same or similar character – whether the evidence on the two sets of charges was cross-admissible – whether failure to sever prejudiced the appellant’s trial, leading to a miscarriage of justice – where appellant contended verdict was unreasonable because of discrepancies in the evidence – whether discrepancies amounted to an unreasonable verdict – HELD: appeal allowed; separate re-trials ordered of the remaining counts on which the appellant was convicted: the indecent treatment counts, 2, 4, 6, 8 and 15 in one trial, and counts 16-22 in another

Appeal against Conviction – Application for Extension (Conviction) – where the appellant was convicted of 3 counts of unlawful and indecent treatment of a child – where evidence was admitted in relation to uncharged acts without objection – where the trial judge directed the jury that the evidence of the incident of the uncharged acts was limited to providing a relevant context and to assisting in establishing the true relationship between the appellant and child – where there was no evidence distinguishing the charged and uncharged acts – where particulars were neither given nor sought to establish which of the separate offences were the offences charged on the indictment – whether, upon convicting, the jurors had the same occasion in mind for each count – whether the appellant’s defence was limited – whether the absence of particulars led to a miscarriage of justice – where the appellant was convicted of 5 counts of unlawful and indecent treatment of a child – where the evidence at trial included video evidence – where, during deliberation, the jury requested access to the video evidence – where the trial judge permitted viewing of part of the video evidence – whether the decision of the trial judge established an error of law capable of causing a miscarriage of justice – where the appellant entered guilty pleas in relation to unlawful and indecent dealing – where the appellant sought to later have the pleas set aside – where the appellant was refused leave – whether the appellant failed to understand pleading guilty was an admission of guilt – whether the guilty pleas were voluntarily entered – whether a miscarriage of justice occurred – HELD: allow the appeal in CA No 144 of 2006; set aside the convictions regarding KM; order a re-trial; dismiss appeal in CA No 6 of 2007; dismiss appeal in CA No 7 of 2007

Application for Leave s 118 DCA (Criminal) – where the applicants were committed for trial and the Crown did not present an indictment within six months – where an application for an extension of time to present an indictment was sought – where the primary judge was satisfied that “good cause” was established and granted the extension – where “good cause” is determined by reference to the facts and circumstances of each case as it arises – whether good reason had been shown – whether the primary judge took into account irrelevant considerations – whether the matter was considered on its merits – whether the discretion of the primary judge miscarried – HELD: leave to appeal granted; appeal dismissed

Sentence Application – where the applicant was sentenced to four and a half years imprisonment for one count of torture and lesser concurrent sentences for related offences – where the applicant had a history of domestic violence – where, in sentencing, the learned judge took into account the applicant’s guilty pleas, his adherence to stringent bail conditions, the fact that the applicant had no prior convictions and his efforts towards rehabilitation – where the applicant will become eligible for parole after serving half his sentence – where the applicant contends that the sentencing judge erred in failing to suspend his sentence after serving half the term – whether the sentencing judge failed to advert to the option of a suspended sentence – whether the applicant’s rehabilitation is such to safely return him to the community without further supervision – whether the sentence was affected by error – HELD: application refused

Appeal against Conviction – where the appellant was convicted of one count of maintaining an indecent relationship with a child under 16 who was his daughter, four counts of indecent treatment of a child under 16 who was his daughter and four counts of sodomy of his daughter – where the appellant was acquitted of three counts of indecent treatment but convicted on the remaining counts – where the appellant contended that the verdicts of guilty could not be reconciled with the verdicts of acquittal – where arrival, by the jury, of different verdicts on multiple counts involving the credibility of the complainant is not automatic evidence of unreasonableness – whether the different verdicts were irrational – where the evidence of the complainant’s brother was admitted at trial over counsel objection – whether the evidence admitted was relevant – whether adequate directions were given to the jury with respect to that evidence – where the appellant contended a Robinson warning was necessary – where the trial judge directed the jury that there was no direct support for the complainant’s evidence and stressed the “danger” of convicting on unsupported evidence – whether a Robinson direction requires use of the actual term “corroboration” – whether the directions to the jury prejudiced the appellant’s right to a fair trial – HELD: appeal dismissed

Appeal against Conviction & Sentence – where the appellant was convicted of and sentenced to concurrent terms of imprisonment for: six counts of rape, counts 4, 6, and 7 for 16 years imprisonment, counts 2, 3 and 5 for 10 years imprisonment; one count of burglary, count 1 for 10 years imprisonment; one count of deprivation of liberty, count 8 for two years imprisonment; and one count of stealing, count 9 for 12 months imprisonment – where the appellant's DNA established intercourse had occurred – where the appellant’s case at trial was that intercourse had occurred consensually – where forensic testing of the bedding where the last count of rape occurred revealed presence of unidentified semen – where the appellant’s counsel was informed of the results of the test on the first day of the trial after the complainant had given evidence – where the jury were informed of the results – where the appellant’s counsel did not recall the complainant – whether the Crown’s failure to make timely disclosure of the evidence prejudiced the appellant’s prospects of acquittal so as to give rise to a miscarriage of justice – whether the verdicts were unsafe and unsatisfactory – where the appellant contended that the sentence for the 3 counts of rape, counts 4, 6, and 7, was manifestly excessive – where the appellant had a bad criminal history, involving similar offending – where the appellant knew he suffered from Hepatitis C – where the sentence must afford real protection to the community – whether the sentence was manifestly excessive – HELD: appeal against conviction dismissed; application for leave to appeal against sentence refused

Sentence Application – Further Order – where the Court allowed an appeal against sentence – where the order varied the original sentence and fixed the appellant’s parole eligibility date – where it was submitted that that Order be amended to take into account the time spent in pre-sentence custody – where the Court can vary the Order pursuant to its inherent jurisdiction – whether the Order should be amended – HELD: amend paragraph 2(b) of the orders of this Court made on 24 August 2007 in R v Assurson [2007] QCA 273 by removing 14 September 2012 and inserting in lieu thereof 1 January 2011

Application for Extension (Sentence & Conviction) – where the applicant unsuccessfully appealed in 2004 against his convictions and the sentence of 10 years imprisonment imposed for the offences of four counts of indecent treatment of a girl under 14 years, one count of indecent treatment of a boy under 14 years, five counts of rape, and one count of unlawful carnal knowledge of a child – where the applicant’s grounds of appeal were essentially identical to the earlier grounds – where the applicant’s first appeal was already considered on its merits – whether the second appeal is a second attempt to appeal on the merits – whether the Court has jurisdiction to hear a second appeal – whether the applicant has shown any reason to overturn the earlier decision – HELD: application dismissed

Sentence Application – where the applicant pleaded guilty to unlawful possession of the dangerous drug cocaine, in a quantity exceeding 200 grams – where the applicant was sentenced to 11 and a half year’s imprisonment with a parole eligibility date fixed at four years and three months from the date of sentence – where it was accepted that the applicant had constructive, and not actual, possession of the cocaine for a commercial purpose – where counsel for the applicant contended the sentence was more appropriate for the offence of trafficking in cocaine than for possession of it albeit for a commercial purpose – whether the sentence was manifestly excessive – HELD: application allowed; set aside the sentence; substitute instead a sentence of nine years imprisonment, with a parole eligibility date of 15 June 2010, that is, after three years