Queensland Law Society

December 2019

Court of Appeal judgments

1–31 October 2019

Civil appeals

Queensland Quarry Group Pty Ltd (in liq) & Anor v Cosgrove [2019] QCA 220, 18 October 2019
Application for Leave s118 District Court of Queensland Act 1967 (Qld) (Civil) – where the first applicant operated a quarry on land owned by the respondent – where the relationship between the first applicant and the respondent broke down and a dispute arose – where following a mediation, a compromise was reached which resulted in a sales contract being entered into by the first applicant and the respondent – where the first respondent subsequently requested an extension for the completion date of the sales contract – where the first applicant offered to pay the respondent $45,000 in consideration of the extension – where the first respondent did not complete the contract or pay the $45,000 or other agreed amounts – where the respondent filed an application to wind up the first applicant – where the respondent was assuming that the first applicant was insolvent – where three debts, $45,000; $16,250 and $50,000, were paid by the first applicant to the respondent – where the second applicant sought in the first instance to recover the three debts as voidable transactions under s588FF(1) of the Corporations Act 2001 (Cth) (CA) – where the respondent admitted that the payments were voidable transactions but successfully raised a defence under s588FG(2) of the CA – where the trial judge dismissed the proceedings and ordered the second applicant to pay costs – where factors plainly supported a reasonable suspicion that Queensland Quarry was actually insolvent as at 14 October 2014 – whereas against that consideration must be given to the factors, identified by the trial judge and known to Mrs Cosgrove, that might dispel the reasonable suspicion of insolvency – where in considering this aspect it must be borne in mind that under
s588FG(2)(b)(i) CA the grounds for suspecting insolvency must be determined objectively to be ‘reasonable grounds’, and under s588FG(2)(b)(ii) CA the test is a negative one, namely whether, objectively determined, a reasonable person in Mrs Cosgrove’s circumstances had no grounds for suspecting insolvency – where under neither test can the creditor’s idiosyncratic views and beliefs as to the known circumstances overcome the objective signs of insolvency unless they are also reasonable and a reasonable person in that creditor’s position would hold them – where her Honour rejected the service of the statutory demand and the winding up application as “necessitating an inference of insolvency” – where there are considerable difficulties confronting that conclusion – where this was the first time Mrs Cosgrove had issued a statutory demand – where there was no pattern of her use of that procedure as a debt-collecting tool – where there is no ‘pattern’ involving statutory demand or winding up applications that would water down the fact that on 3 October 2014 she applied to wind up Queensland Quarry on the ground of insolvency – where the trial judge discounted the history of delayed payment on the basis that it had “commenced some 12 months before [Queensland Quarry] was insolvent” – where her Honour held that the 12-month period was such that delay as a factor “was not as relevant a factor as it may be in other cases”, referring to Re Ermayne Pty Ltd (1999) ACSR 330 – where in that case it was held that delayed payments for a time may become equivocal where the pattern remains the same – where there is, however, no real pattern here – where the delay varied, not only as to the type of breach, but also the reason and the response, and it increased over time – where the delay was, therefore, a highly relevant factor, which added apparent delinquency to mere failure to pay or delayed payment – where the trial judge placed weight on the fact that from Mrs Cosgrove’s perspective the quarry operations appeared to be thriving – where thus an uneducated and subjective perspective was given weight – where the onus under s588FG(2)(b)(ii) CA is on the creditor – where it is for the creditor to exclude other rational hypotheses as to the failure to pay debts as and when they fall due – where if insolvency remains as one rational hypothesis, the onus has not been discharged – where a reasonable person in Mrs Cosgrove’s circumstances cannot be found to have had no reasonable grounds for suspecting that Queensland Quarry was insolvent at the time of the October 2014 deed and the payments pursuant to it. Application granted.
Appeal allowed. Set aside the orders made on 13 March 2019. Pursuant to s588FF(1)(a), or alternatively s588FF(1)(c), the respondent pay $95,000 to Queensland Quarry Group Pty Ltd ACN 160 549 388 (In Liquidation), plus interest thereon pursuant to s58 of the Civil Proceedings Act 2001 (Qld), from 21 March 2017. Costs. (Brief)

Harbour Radio Pty Limited & Ors v Wagner & Ors [2019] QCA 221, 18 October 2019
General Civil Appeal – where the trial judge found the appellants liable for a total of 80 defamatory imputations made by the second appellant in 29 separate matters broadcast by the first and third appellants – where the trial judge’s findings included that the imputations were of the gravest kind and that publication of the matters complained of constituted part of a campaign of vilification against each of the respondents – where the trial judge found that the second appellant had gratuitously repeated a number of the defamatory assertions in the course of his evidence at trial – where the appellants contend that the second appellant’s answers in the course of evidence were responsive to the questions asked of him, albeit in an expansive manner on some occasions – whether the trial judge erred in finding that the second appellant had gratuitously repeated the defamatory assertions in the course of his evidence – whilst Mr Jones usually gave responsive answers in cross-examination, in nine of the 10 examples identified in the trial judge’s reasons it seems clear on the face of the transcript that Mr Jones went on to attack the respondents’ reputations by repeating defamatory assertions that were not responsive to the questions – where it is difficult to explain those assertions as merely part of unduly expansive responses to the questions – where the trial judge ordered that the appellants be permanently restrained from publishing the defamatory matter or any defamatory imputation that does not differ in substance from the defamatory imputations conveyed by the publications – where the appellants contend that the trial judge gave insufficient reasons for granting the injunctions – whether the trial judge gave adequate reasons for permanently restraining the appellants – where contrary to the appellants’ argument, the trial judge’s reasons explain why the only issue raised by the parties’ submissions upon this topic was resolved in favour of the respondents: the injunctions were appropriate to meet the risk of the gravely serious defamatory imputations upon which the respondents sued being repeated on air after judgment, such a risk being inferred from Mr Jones’ conduct in continuing his original attacks upon the respondents’ reputations, including attacks motivated by his desire to injure the respondents’ reputations, by the gratuitous repetition of the defamatory assertions in evidence, often in answers that bore no connection with the questions he was asked – where the trial judge found that the second appellant had gratuitously repeated a number of the defamatory assertions in the course of his evidence at trial – where the trial judge ordered that the appellants be permanently restrained from publishing the defamatory matter or any defamatory imputation that does not differ in substance from the defamatory imputations conveyed by the publications – where the appellants contend that the evidence and conduct of the appellants did not justify the imposition of permanent injunctions and that there were otherwise no grounds for the making of those orders – whether the trial judge erred in ordering that the appellants be permanently restrained – where the combination of the findings and evidence supports the conclusion that, despite the judgment and the very large award of damages, there is a real risk that Mr Jones may repeat gravely serious and very hurtful defamatory matter in programs broadcast by the first and third appellants – where in the circumstances described by the trial judge such a risk is to be inferred from the apparent strength of Mr Jones’ motive to injure the respondents’ reputations, the endurance of which is evidenced by Mr Jones’ conduct when giving evidence – where the injunctions against the first and third appellant operate against each of those appellants by itself and/or its servants or agents – where the appellants contend that the injunctions granted unduly restrain them – whether the trial judge erred in formulating orders that impermissibly or unreasonably restrain the first and third appellants – where the appellants’ argument suggested that the injunctions also create incidental restrictions upon their capacity to publish associated matters – where the argument is incorrect in so far as it conveys that the injunctions prevent them from criticising the trial judge’s reasons – where it does of course prevent them from criticising the reasons in terms that would convey the defamatory matter or the defamatory imputations – where if there is an incidental restriction of that kind it would not appear to carry much weight against the grant of the injunctions in the circumstances described by the trial judge and where the appellants did not appeal against the award of damages or challenge the findings against them in this appeal – where in the absence of any other identification of the incidental restriction for which the appellants contend they have not identified a factor of any significance that is opposed to the grant of the injunctions – where the injunctions require each of the appellants to take steps to ensure that they do not breach the injunctions, including ensuring that the appellants’ employees and agents are familiar with the injunctions – where the fact that some cost and inconvenience may be involved in that respect is not a ground for setting aside the injunctions – where as to issues associated with the perpetual existence of the corporate appellants, the respondents correctly point out that they, like Mr Jones, are entitled to apply to discharge the injunctions if changes in circumstances indicate that they cease to remain appropriate.
Appeal dismissed with costs.

Singh v Hill & Anor [2019] QCA 227, 25 October 2019
General Civil Appeal – where the appellant seeks to commence proceedings in respect of personal injuries allegedly sustained in a car accident involving the first respondent – where the second respondent is the compulsory third party insurer – where the appellant complied with all pre-court steps except for attending to a compulsory conference and exchanging of mandatory final offers – where the appellant and second respondent agreed on seven occasions to extend the limitation period – where the appellant did not instruct her solicitors to make a settlement offer on the basis that her injuries were yet to resolve – where the appellant’s solicitors refused to proceed until they received instructions to make a settlement offer – where the limitation period has now expired – where the appellant applied under s57(2)(b) of the Motor Accident Insurance Act 1994 (Qld) for an extension to the limitation period – where the appellant argued below that she did not have capacity during the limitation period to give instructions – where the primary judge declined to exercise the discretion to extend time – where the primary judge found that the appellant had capacity – where instead, the primary judge found that the appellant had unreasonably failed to give her solicitors instructions, had no basis for believing an extension to the limitation period could be easily achieved, and had prioritised her own circumstances over her claim – where his Honour considered that the material supported a conclusion that she was not conscientious in her pursuit of her claim – where in support of this conclusion his Honour specifically referred to the former solicitors’ email to her of 14 December 2017 – where his Honour considered that this email “succinctly summarised what were the obvious difficulties occasioned to them in the applicant’s failure to provide them with instructions in respect of an offer to settle”. – where the email of 14 December 2017 is an unsatisfactory basis for concluding that the appellant was not conscientious in pursuing her claim – what the material reveals is that the appellant did not accept that the schedule of damages reflected her claim as her injuries, including her psychiatric injuries, had not stabilised or been assessed – where her concerns in this respect had been communicated to her former solicitors – where these concerns constitute an acceptable explanation as to why she had not completed the final two pre-court steps – where it may be accepted that the delay in progressing the claim “was due to the exigencies of the [MAIA] or associated matters, such as the need for the plaintiff’s injuries to stabilise before a compulsory conference could be appointed or an application made to the court to dispense with the need for a compulsory conference”: Winters v Doyle [2006] 2 Qd R 285 – where in reaching the conclusion that the appellant was not conscientious in her pursuit of her claim, the primary judge failed to have regard to relevant considerations – where these considerations were not contained in the former solicitors’ email of 14 December 2017 – where the conclusion was not open on the material and was neither supported by the email of 14 December 2017, nor by the former solicitors’ provision of an incomplete schedule of damages – where even if such a conclusion was open on the material, the fact that the appellant was not conscientious in her pursuit of her claim was not a precondition to a favourable exercise of discretion – where upon a proper analysis of the reasons, however, it is apparent that his Honour’s conclusion was central to an unfavourable exercise of discretion – where it is apparent that his Honour did not refer to the recommendation made to the appellant by her former solicitors in their letter of advice on 20 May 2013 that the case not be resolved until stabilisation of her injuries had occurred and such injuries been assessed – where the letter identified her role as keeping her former solicitors apprised as to her progress and the progress of her treatment – where this aspect of the advice was a relevant consideration which should have informed the exercise of discretion – where first, in giving effect to that advice, the appellant updated her former solicitors as to her emerging injuries, including psychiatric injuries, on a number of occasions – where this in turn led to the former solicitors communicating to the second respondent that the appellant had suffered psychiatric injuries arising from the motor vehicle collision – where, secondly, this aspect of the advice informed the appellant’s subsequent conduct in not accepting the schedule of damages and requesting her former solicitors to seek further extensions of time from the second respondent so as to allow her injuries to stabilise – where the appellant accepts that the loss of a limitation defence is a prejudice in itself and that the expiry of a limitation period brings about a presumption of prejudice – where in considering the issue of prejudice, his Honour considered that the delay had been extensive, being a period of over six years since the collision and almost two years since the expiry of the last extension of the limitation period – where, however, of the approximately six-year delay, 12 months of that delay from 25 August 2015 to 24 August 2016 may be attributed to the second respondent for the four extensions that it sought – where, thereafter, the second respondent agreed to three further extensions to 24 May 2017 – where in those circumstances the delay is perhaps more accurately described as lengthy rather than extensive.
Appeal allowed. Set aside any order of the primary judge, dismissing the originating application filed 13 February 2019. The originating application is granted. Order that the appellant may commence proceedings within 60 days of a compulsory conference. Second respondent to pay the appellant’s costs of the appeal.

Criminal appeals

R v CCI [2019] QCA 202, 4 October 2019
Appeal against Conviction – where the appellant was convicted of two counts of rape – where the appellant made statements the morning after the alleged offence denying the offending – where the statements could only be proved to be lies by proof of the charged offences – where the Crown prosecutor put to the jury that the statements of denial were lies and showed a consciousness of guilt – whether the trial judge erred by leaving to the jury the conduct and statements of the appellant the morning after the offence as post-offence conduct – where conduct by an accused after the commission of an offence may be probative of guilt – where lies told by an accused are a specific type of post-offence conduct – where post-offence lies by an accused may be relevant to a jury’s consideration in different ways – where the lies may do no more than impact upon the credit of an accused who has given a version consistent with innocence – where lies may be directly probative of guilt but only when the lie is post-offence conduct performed from a consciousness of guilt – where difficulties arise when proof of the falsity of what was stated by the accused can only be achieved by proof of the offence – where a denial of the offence may be a false denial, but it is not a confession – where these considerations arose in R v Zheng (1995) 83 A Crim R 572 – where Zheng has been consistently followed and followed recently – where the statements by the appellant to his daughter and son in law were denials of the complainant’s version – where proof of the falsity of those statements could only be found in acceptance of the complainant’s version – where upon acceptance by the jury of the complainant’s version, the counts on the indictment were proved – where the statements made by the appellant to the complainant’s mother and stepfather could not be left to the jury as lies told from a consciousness of guilt – where in other words, the statements could not be used in proof of the charges because proof of the charges was necessary to show the statements as lies – where if the statements were left for consideration by the jury as lies, then an error has occurred – where the Crown submitted both at trial and on appeal that the probative value of the evidence of the statements made on the Saturday morning was not dependent upon a finding by the jury of untruthfulness of the statements – where those submissions ought to be rejected – where the Crown Prosecutor put to the jury that the statements made to the complainant’s mother and stepfather were lies and showed a consciousness of guilt – where the jury could not have rationally understood the submissions in any other way – where defence counsel put to the jury that they were not lies – where that was the real contest concerning the evidence of the complainant’s mother and stepfather – where putting aside issues of the burden of proof, that was the ultimate contest in the trial; the appellant was guilty of the counts on the indictment if the complainant’s version was accepted or, his denials were true and he was not guilty – where the trial judge went to some trouble to ensure that he understood the Crown’s case concerning the evidence of the conversations on the deck so that he could draw the appropriate direction – where the Crown Prosecutor apparently did not understand that the submissions he intended to make were, no matter how he styled them, dependent upon the jury finding that the statements made by the appellant were untrue – where his Honour, by directing the jury to give consideration to statements of the appellant “complaining about [the complainant] being crazy”, and “[the complainant] not having any clothes on and screaming and…behaving in a crazy manner”, was inviting the jury to conclude a consciousness of guilt by the appellant telling untruths – where it follows then that the jury was invited to embark upon the circular reasoning criticised in Zheng – where the statements were not capable of being put as consciousness of guilt lies, were so put, and there has been a misdirection – where the complainant made preliminary complaint to her mother and sisters – where a direction was properly given by his Honour that the jury could consider those statements as bolstering her credit – where on the other hand, the direction on post-offence conduct wrongly invited the jury to consider the appellant’s statements (his denials) as statements indicating guilt – where the credibility and the reliability of the complainant’s version was very much in issue and there was evidence upon which the complainant’s evidence could be criticised – where the misdirection which effectively converted a denial to a potential admission by the appellant caused a miscarriage of justice – where the evidence of the complainant was capable of legally proving the two offences – where her evidence, if accepted, established each and every element of each of the two charges – where it is obvious that there was an incident during the night time involving the complainant and the appellant – where an assessment of the evidence as a whole and, having particular regard to the weaknesses in the complainant’s evidence identified by counsel for the appellant is that there is nothing which necessitated the jury having a reasonable doubt as to the appellant’s guilt – where it was open to the jury to be satisfied beyond reasonable doubt that the complainant was telling the truth – where it therefore follows that it was open to the jury to find the appellant guilty of the two counts on the indictment – where the trial has miscarried due to submissions made by counsel and directions made by the trial judge concerning the post-offence conduct and the convictions must be quashed – where given though that it was open to the jury to convict, had they been properly directed, a retrial ought to be ordered.
Appeal allowed. Quash the convictions. Order a retrial.

R v Endicott [2019] QCA 204, Date of Orders: 17 April 2019; Date of Publication of Reasons: 4 October 2019
Appeal against Conviction & Sentence – where the appellant was convicted of three counts of indecent dealing in 2019 – where the conduct constituting the offences occurred between 1975 and 1981 – where the appellant was a teacher at the school where the complainant was a student – where offending involved the appellant taking photos of the naked complainant – where the appellant was charged under s210 of the Criminal Code (Qld) as at the time of the offences – where the provision made it an offence if a person “unlawfully and indecently deals with” a boy under 17 years – where the provision defined “deal with” as including an act which would constitute an assault – where there was no evidence that the appellant directly or indirectly touched the complainant – whether conduct that does not involve touching is sufficient to amount to “dealing with” – whether the evidence is capable of constituting the offence – where having regard to the origins of the offence in the concept of an indecent assault, it is better to conclude that an offence of indecent dealing under s210 must be constituted by a touching, whether initiated by the accused or by the complainant, and whether the touching constitutes an assault or not – where the inclusive definition and the use of the word ‘deal’ instead of ‘assault’ are thus explicable as ensuring against a result like that in Fairclough v Whipp (1951) 35 Cr App R 138 where the English Court of Criminal Appeal held that an indecent assault on a female could not be constituted by the female’s touching of the penis of the accused at his invitation – where Lord Goddard observed that, having regard to the need to prove an assault, it was immaterial that the girl’s touching of the accused was something that she did against her will for it could not be said that the appellant had assaulted her – where in light of this case, New South Wales enacted an offence constituted by ‘an act of indecency’ in which the relevant act does not have to be an assault – where in 1989 s210 was amended – where the original offence of ‘indecent dealing’ was retained but additional offences were created – where relevantly, s210(f) made it an offence to taken any indecent photograph of a child under the age of 16 years without legitimate reason – where in addition, it became an offence wilfully and unlawfully to expose such a child to an indecent act by the offender or another person.
Appeal against convictions allowed. Set aside the convictions entered in respect of counts 1, 2 and 7 on 8 March 2019. Set aside the sentences imposed on 11 March 2019.

R v Douglas [2019] QCA 215, 15 October 2019
Appeal against Conviction – where the appellant was convicted of eight counts of child sexual offences – where the appellant appeals his convictions on the ground that the trial judge failed to give an adequate Longman v The Queen (1989) 168 CLR 79 direction – where the offending conduct dated back to when the complainant was 10 years old – where the complaint was first made when the complainant was almost 17 – where the trial judge acknowledged the passing of time and directed the jury that they should “carefully scrutinise the complainant’s evidence before arriving at a conclusion of guilt” – where the trial judge did not use the words “dangerous to convict” in accordance with the Longman direction articulated in the Benchbook – whether the direction given by the trial judge was inadequate such that it caused a miscarriage of justice – while the Benchbook is not to be approached as a statute prescribing mandatory conditions, very careful consideration should be given before departing from the guideline directions so as to minimise appellable error and any departure or modification should be discussed with counsel, as occurred in this case, to ensure avoidance of a miscarriage of justice – where since its introduction in 2001, the Queensland Benchbook has provided succinct guidance to trial judges – where it is available online with relevant authorities able to be accessed directly – where, as with its Victorian counterpart, it can properly be said to be a ‘living document’ – where it is the product of sitting judges well experienced in criminal trials from the District and Supreme Courts and the Court of Appeal, and has been reviewed on an annual basis and more promptly when the circumstances require it – where it is available publicly and is the vital source of reference in every criminal trial in the state’s higher courts – where in the present case, the trial judge clearly had close regard to the Benchbook direction and raised and discussed with counsel the modification he intended to make – while the use of the words ‘dangerous to convict’ used in the Benchbook direction would have served to emphasise the seriousness and nature of the risk of which the jury were required to be appraised, the wording of the direction by the trial judge taken as a whole was, in the circumstances of this case, adequate and does not reveal appellable error.
Appeal dismissed.

Prepared by Bruce Godfrey, research officer, Queensland Court of Appeal. These notes provide a brief overview of each case and extended summaries can be found at sclqld.org.au/caselaw/QCA. For detailed information, please consult the reasons for judgment.