Appeal from the Supreme Court – General Civil Appeal – matter involving progress payment had initially been adjudicated under the Building and Construction Industry Payments Act 2004 (Qld) – both parties had been involved in an earlier adjudication decision – neither party advised the second adjudicator of the first adjudication decision – primary judge had set the decision of the second adjudicator aside under the Judicial Review Act 1991 (Qld) – On Appeal – the better view of s 27(2) BCIPA is that it operates on the premise that one of the parties will have informed the adjudicator of any relevant, previous adjudication decision – primary judge erred by concluding that the second adjudicator erred in law in failing to take into account the first adjudication decision – Costs – Appeal record occupied 1,660 pages, of which only a very small fraction were referred to the Court or otherwise relevant – appellant through its counsel appropriately acknowledged that the responsibility for the state of the record lay with it – HELD: Appeal allowed, decision set aside, application for an order of review dismissed with costs, respondent to pay the costs of the appeal save for the costs of the appeal record.

Appeal from the Supreme Court – General Civil Appeal – Lawyers – Negligence – where the appellant was engaged on 1 August 2002 by the respondent to act in a claim under Pt 4 of the Succession Act 1981 (Qld) – appellant did not serve the application on the executor of the deceased or inform him of the pending application before the executor transferred to himself the principal assets (land) of the estate of the deceased – deed of compromise signed by the respondent and the executor on 21 November 2003 – trial judge held the appellant negligent and judgment awarded to the respondent for $233,000 – On Appeal – the trial judge held that the pieces of land which were transferred to the executor had not been distributed to the executor – admissions had been made that the relevant real property transfers had been distributed, however the parties called evidence at trial on this issue without objection – the trial judge treated the admission as decisive – once the evidence at trial was admitted without objection, the admission was relevant but it could no longer be decisive – the trial judge proceeded to determine the issue rather than treating it as foreclosed by the state of the pleadings – terms of the deed of compromise show that the respondent and the executor were explicitly agreeing to extinguish the respondent’s claim against the estate of the deceased in return for the provision of benefits to the respondent appropriate from the estate – HELD: Appeal allowed, decision below set aside, plaintiff’s action dismissed.

Appeal from the Supreme Court – Employment Law – Breach of Statutory Duty – Causation – where s 28(1) Workplace Health and Safety Act 1995 (Qld) imposes an obligation on the employer to ensure the workplace health and safety of its workers – linesman injured in a fall from a power pole when the pole strap attached to his safety harness failed – trial judge found that the first respondent breached its obligations under s 28(1) however breach in itself was insufficient to establish liability as the appellant was still obliged to prove that the breach of the Act caused the appellant’s injury – On Appeal – Court held that the employer’s duty to ensure the employee’s safety is absolute – subject to the operation of s 26, s 27 and s37, if an employee such as the appellant is injured through the failure of a piece of necessary safety provided to him by his employer there is a breach of the obligation imposed by s 28(1) – the employer has failed to ensure the safety of the employee – causation is established – HELD: Appeal allowed, judgment below set aside, judgment for the appellant against the first respondent on the appellant’s claim in the sum of $694,317.05 and costs.

Appeal from the Supreme Court – General Civil Appeal – Judge ordered that the appellant be detained under s 21(3) of the Dangerous Prisoners (Sexual Offenders) Act 2003 (Qld) – Appellant had been sentenced to imprisonment in 1999 for multiple sexual and other offences – On Appeal – Constitutional challenge by appellant using principle from Kable – temporary duration of detention pending a determination on the merits under s22 or release under s 21(3) pending final decision identifies its character as non-punitive – Legislative framework does not offend the relevant constitutional principles – Challenge to validity of warrant – Warrant was obtained on a complaint that a corrective services officer had a reasonable belief that the appellant had contravened his supervision order by consuming a drug – if the existence of such a suspicion was established to the satisfaction of the Magistrate, the Magistrate was obliged to issue the warrant – HELD: Appeal dismissed with costs.

Appeal from the Supreme Court – General Civil Appeal – De Facto Relationships – Adjustment of Property Interests – where the appellant and the deceased were in a de facto relationship – where the relationship ended prior to the death of the deceased – whether the right to apply for an adjustment of property rights under Part 19 of the Property Law Act 1974 (Qld) survives the death of a person against whom the right is asserted so that it may be pursued against the person’s estate – trial judge acceded to the Public Trustee’s application to have the claim by CAG under the Act be struck out – On Appeal – Court held that s 315 does tend to confirm that the right of one party to a de facto relationship to apply for an adjustment of property rights against the other party to such a relationship presupposes that each of these parties is alive – the reference to the right of a de facto partner to apply under s 283 of the Act must be to a living de facto partner – HELD: Appeal dismissed with costs.

Appeal from the District Court – Sentence appeal by A-G (Qld) – respondent convicted upon guilty plea of one count of distributing, and one count of possessing, child exploitation material – respondent used peer-to-peer software which allowed others to access child exploitation on his computer – respondent was 21 years old, co-operated with the authorities, pleaded guilty at an early stage and had promising prospects of rehabilitation – judge imposed concurrent sentences of two and three year terms of probation and 200 hours of community service – On Appeal – the legislature plainly intended that, in like circumstances, offences against s 228C Criminal Code 1899 will ordinarily warrant heavier penalties than those against 228D – ordinarily, the need to deter the distribution of child exploitation material would require the recording of a conviction – the offences were so serious and the need for deterrence so great that convictions should have been recorded on each count – a custodial sentence in the range of 12 to 18 months imprisonment was appropriate in respect of Mr Salsone’s offence against s 228C – mitigating factors in his favour warranted either its full suspension or at least after a relatively short period of actual custody – HELD: Appeal allowed, Sentence imposed at first instance set aside, On count 1 substitute a sentence of 15 months imprisonment suspended forthwith with an operational period of two years, On count 2 substitute a sentence of two years probation with conditions, Convictions recorded on each count.

Appeal from the District Court – Application to increase sentence – TR was charged with 62 offences and FV with 41 offences, all of which related to their daughter – Counts 1 and 2 charged them individually with maintaining an unlawful relationship of a sexual nature with a girl under 16 – On count 1 TR was sentenced to six years imprisonment and on count 2 FV was sentenced to seven years imprisonment – On Appeal – the most serious aspect of the matter is to be found in the circumstances of the prostitution, in which TR played a more direct role than FV, by being present when acts of prostitution were engaged in and, on occasions, giving directions to the girl who was reluctant to engage in acts with D (a client) – FV did not involve himself in the day to day operation of the prostitution business, but was aware that it involved the girl, and approved of it – cannot establish that the sentence of seven years imprisonment for FV’s offending against s 229B, depraved as it was, is manifestly inadequate for his level of offending against that section – sentence contains an error in principle in the sentencing process because FV received a longer sentence than TR for maintaining when the differential should have been the other way – HELD: In relation to TR, the A-G’s appeal is allowed, the sentence on count 1 is set aside and in lieu thereof a sentence of nine years imprisonment is imposed with the parole eligibility date fixed to 18 March 2010; In relation to FV the appeal is dismissed.

Appeal from the District Court – Application to set aside a permanent stay of prosecution on one count of indecent treatment of a child – trial judge found that the accused could not have a ‘fair’ trial in respect of this charge because judge did not think it improbable that a jury can be empanelled, all of whom would be able to be dispassionate and follow the judge’s directions – trial judge also concluded that the child’s evidence must create doubt as to the child’s reliability and that there were many concerning aspects of the Crown case – On Appeal – the trial judge did not advert at all to s 47 of the Jury Act or to its other provisions aimed at protecting an accused person’s right to a fair trial, such as s 43, s 48, s 53 (2A)(b) and s 69A – the conclusion that the respondent cannot be convicted on the basis of a fair-minded verdict of a jury of his fellow citizens is, to say the least, premature before the processes made available by s 47 of the Jury Act have been implemented – it is no part of the function of a judge to pre-empt the decision of the jury on the question of the guilt or innocence of the accused – the trial judge did not advert to the possibility that any adverse effect of pre-trial publicity might be dissipated by an adjournment of the trial for a few months – this possibility should have been considered and failure to address this was an error – HELD: Appeal allowed, set aside decision below, issue a warrant for the apprehension of the respondent, to lie in the registry for four days.

Appeal against the District Court – Sentence Application – applicant was convicted on his own plea of one count of dangerous operation of a motor vehicle causing death and grievous bodily harm while adversely affected by an intoxicating substance – sentenced to six years imprisonment with parole eligibility date of 10 September 2010 – On Appeal – trial judge was right to refuse to regard the death of Mr Tierney as merely a tragic accident – the strong need for deterrence in cases of this kind is not lessened by the circumstance that the offender is young – unable to accede that the head sentence was manifestly excessive – common practice of sentencing courts in Queensland to recognise the value of an early plea of guilty and other circumstances in mitigation by ordering that the offender be eligible for parole after serving one-third of the term of imprisonment imposed as the head sentence – there are strong reasons why it should have been applied, in particular to the applicant’s youth, his deep and genuine remorse, and the unusually long delay attending his conviction and sentence – HELD: Application for leave to appeal allowed, allow the appeal to the extent of deleting the parole eligibility date set below and inserting in place thereof 10 March 2010.