Full Court Matters

 (Other than Applications for

Special Leave to Appeal)

 

GREY v. THE QUEEN (S2/2001)

Court appealed from:  New South Wales Court of Criminal Appeal

Date of judgment:  3 March 2000

Date of grant of special leave:  15 December 2000

On 26 August 1998 following a trial by jury in the District Court, the appellant was convicted on five counts of disposing of stolen motor vehicles.  The Crown case was that the appellant was involved in the re-birthing of motor vehicles and their subsequent re-sale.  The appellant did not dispute having had possession of, or having disposed of, the vehicles in their converted state.  He denied stealing them, converting them, or knowing that they had been stolen.

He claimed that he had received four of the vehicles from one Leon Reynolds and had purchased the fifth vehicle and given it to Leon Reynolds to repair. Leon Reynolds was a critical Crown witness.   His credibility was a serious and important issue.  He had pleaded guilty in 1993 to a series of charges of a similar nature and had been sentenced to periodic detention.  What was not known to the appellant’s legal advisers at trial was that in Leon Reynolds’ sentencing proceedings, Detective Bandouvakis (the informant in the case against the appellant) had provided to the court a letter of comfort, outlining assistance that Leon Reynolds had given, both in admitting his own guilt, but also, importantly, in relation to police inquiries into car re-birthing in the central west of the State.  It was apparent that Leon Reynolds had received a very significant benefit resulting from the information that he gave Detective Bandouvakis.

The appellant’s appeal to the Court of Criminal Appeal was essentially based upon the contention that the failure to disclose information about the letter of comfort, irrespective of where the fault lay for that state of affairs, caused a miscarriage of justice.  A consideration was whether that evidence was evidence that could have been, with reasonable diligence, available at the trial.  (It was not challenged that had the Crown Prosecutor at the appellant’s trial been aware of the content of the letter of comfort he would have disclosed it to the defence.)

The majority of the Court of Criminal Appeal found that there had been no miscarriage of justice and made reference to the strength of the Crown case on other aspects and dismissed the appeal.  Simpson J would have allowed the appeal, finding that “[t]he existence of the letter and the advantage derived by Reynolds as a result were important relevant matters affecting Reynolds’

credibility which should have been known to the appellant’s counsel at trial ….. I am of the view that ….. a miscarriage [of justice] occurred”.

The grounds of appeal are:

·       The majority of the Court of Criminal Appeal erred in concluding that in the circumstances that existed the obligation fell upon the appellant to discover, rather than upon the Crown to disclose, evidence relating to the personal circumstances of a prosecution witness who was a police informer;

·       The majority of the Court of Criminal Appeal erred in concluding that the unavailability of evidence discovered after the trial did not cause the appellant to lose a fair chance of acquittal; and

·       The majority of the Court of Criminal Appeal erred in dealing with the issue raised on the appeal by reference to the principles of “fresh evidence” rather than as a case of lack of disclosure by the Crown, and in failing to have regard to or to determine the question whether the failure of the Crown to disclose relevant information in its possession caused the trial proceedings to be unfair and therefore to miscarry.

 

BAXTER v. OBACELO PTY LTD & ANOR (S10/2001)

Court appealed from:  New South Wales Court of Appeal

Date of judgment:  31 March 2000

Date of grant of special leave:  15 December 2000

Mr Phillip Whitehead carried on a solicitor’s practice.  The appellant was an employed solicitor within the practice.  The respondents retained Mr Whitehead to act on a conveyancing transaction.  The appellant had the conduct of that conveyancing work.

In May 1987 the respondents commenced proceedings, claiming that the appellant and Mr Whitehead were negligent in their conduct of the conveyancing.

After commencement of the action, the claim between the respondents and Mr Whitehead was settled.  A Deed of Release was entered into between the respondents and Mr Whitehead and Terms of Settlement were filed.  The Terms provided for judgment in favour of the respondents for $250,000.  The Terms further noted that Mr Whitehead undertook to the respondents “to take no further part in [the] proceedings except as he may be required by law”.  The $250,000 has been paid.

On 10 July 1998 the appellant sought summary dismissal of the proceedings against him pursuant to Part 13 r5 of the Supreme Court Rules.  That rule provides that proceedings may be dismissed, inter alia, if no reasonable cause of action is shown.  The appellant claimed that the proceedings against him should be dismissed because the settlement with Mr Whitehead and the payment of $250,000 in satisfaction of the judgment entered against him meant that the proceedings against the appellant were futile.  Master Harrison refused the application.  Hulme J dismissed an appeal from the Master’s decision.

The appellant appealed, raising three separate arguments:  (1) That the satisfied judgment against Mr Whitehead precluded recovery of any judgment sum from the appellant; (2) That the satisfied judgment against Mr Whitehead barred further proceedings against the appellant; and (3) That the settlement with Mr Whitehead and payment of the settlement amount barred the respondents from continuing the proceedings against the appellant because the respondents had received full satisfaction for their loss.  The Court of Appeal unanimously dismissed the appeal.

The grounds of appeal are:

·       Their Honours erred in failing to find that by force of s5(1)(b) of the Law Reform (Miscellaneous Provisions) Act 1946, a judgment against one tortfeasor, which is satisfied, precludes further proceedings against another joint tortfeasor or, alternatively, precludes any recovery of any judgment against that tortfeasor;

·       Their Honours erred in failing to hold that s5(1)(b) of the Law Reform (Miscellaneous Provisions) Act 1946 applies to the situation where two tortfeasors are sued in the one proceedings; and

·       Their Honours erred in failing to hold that a consent judgment which is satisfied against one joint tortfeasor for an agreed settlement amount, bars a plaintiff from proceeding to recovery on any judgment against the other joint tortfeasor.

 

PALMER BRUYN & PARKER PTY LIMITED v. PARSONS (S8/2001)

Court appealed from:  New South Wales Court of Appeal

Date of judgment:  29 March 2000

Date of grant of special leave:  15 December 2000

The appellant company, which carried on a surveying business, sued the respondent for injurious falsehood.  One aspect of the appellant’s business was to conduct negotiations with councils on behalf of persons submitting development applications to those councils.  In mid 1995 McDonald’s Australia Pty Ltd engaged the appellant to act for it in relation to a proposal to establish a McDonald’s outlet at Wallsend.

The first step in the process was a rezoning application which was to come before Newcastle City Council on 26 March 1996.  The respondent, a councillor of the Newcastle City Council representing the ALP, had been lobbied for support by a Mr Christopher McNaughton, an employee of the appellant.  The conduct of Mr McNaughton had irritated the respondent.

On 24 March 1996 the respondent forwarded a letter by facsimile to another ALP councillor, Mr John Manning.  The letter was composed in the following way. The respondent took a letter which had been sent by Mr McNaughton in relation to the rezoning.  He cut off the letterhead and signature block containing the signature of Mr McNaughton.  He wrote the words complained of and the signature block as a composite document.  The letter which was addressed to the councillors representing the ALP purported to offer McDonald’s items for support of the application.  Mr Manning sent copies by fax to the three other Labor caucus members (including the respondent), the three Green Councillors, the General Manager of the Council and to the appellant.  The Council rejected the rezoning application.  The appellant put the matter in the hands of the police.

On 11 May 1996 an article appeared in the Newcastle Herald referring to the hoax letter.  Mrs Robyn Richards, the NSW Real Estate Manager for McDonald’s, was sent a copy of the newspaper article.  Once McDonald’s became aware of the assertions, it terminated its business relationship with the appellant.  The appellant sued the respondent for injurious falsehood, claiming an actual loss of $38,000 as a result of losing the McDonald’s contract, together with a sum for punitive damages.

The trial judge found that the material complained of was false in that it attributed to Mr McNaughton statements that he had never made.  He found that it was likely to injure the appellant in its business.  He found that it was published maliciously.  The trial judge found that it was not the natural and probable result of the respondent sending the facsimile to Mr Manning that it

would be republished in the Newcastle Herald.  The trial judge found that the appellant lost its contract with McDonald’s as a result of Mrs Richards, a responsible executive, learning of the 24 March 1996 letter through the newspaper article.  The trial judge found that the claimed loss of $38,000, though not evidenced wholly satisfactorily, was reasonable actual compensation for the loss of the McDonald’s contract.  But he found that the respondent was not liable for that loss because of his findings as to the lack of nexus between the respondent’s letter and the newspaper article.

The Court of Appeal found that the decision of the trial judge was correct.

The grounds of appeal include:

·       The Court of Appeal should have found as harm was intentionally caused by the respondent, there would be no difficulty about the problem of legal causation, since all intended consequences are legal or proximate;

·       In view of the trial judge’s findings the respondent’s fake letter was calculated to and likely to injure the appellant in its business the Court of Appeal should have found the respondent must be taken to have foreseen the result of such intentions being the loss of the McDonald’s contract which said loss was caused by the respondent’s letter; and

·       The Court of Appeal erred in finding that although the trial judge concluded the impugned letter was calculated to injure the appellant in the sense it was likely to do so this did not mean the respondent necessarily intended that result.

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Full Court Matters

 (Other than Applications for

Special Leave to Appeal)

BRISBANE CIRCUIT SITTINGS

COMMENCING 25 JUNE 2001

 

 

MAGGBURY PTY LTD & ANOR v. HAFELE AUSTRALIA PTY LTD & ANOR (B36/2001)

Court Appealed from:  Court of Appeal of the Supreme Court of Queensland

Date of Judgment:  12 May 2000

These proceedings concern the appellants’ wall mounted fold-a-way ironing board and assembly, which can be attached directly to a wall without other support, folded against a wall for storage, folded in half for compactness and rotated through 180 degrees so as to allow any ironing position within that range.

In July 1995, the appellants lodged a patent application and the ironing board was ready for commercial exploitation.  Between July 1995 and June 1997, Mr Allen, on behalf of the appellants, negotiated exclusively with the respondents.  Mr Allen had prepared designs and prototypes of the ironing board.

In 1996 the first appellants assigned its rights to the invention to the second appellant. The second appellant subsequently filed a PCT international patent application in respect of that design. The specification was published on 6 February 1997.

Prior to the disclosure of the invention to them, the respondents signed Deeds of Confidentiality dated 25 July 1995 and 13 November 1995.  An optional agreement was also entered into which stated that Hafele Germany would carry out a market investigation before entering into any license agreement.  In the confidentiality agreements, the definition of “Information” was limited to “each and every record of information whatsoever disclosed, shown or provided to the respondents by Maggbury Pty Ltd in relation to the product”.  These included diagrams, drawings (including detailed production drawings), specifications for components, prototypes and photographs of prototypes.  The agreements acknowledged that the property in those items resided in and was to remain in the appellants.  The agreement prevented the use of the information without time limit, and applied irrespective of the confidentiality of the information even if the information was put in the public domain by or with the consent of the appellants.

The respondents, with the consent or acquiescence of the appellants, made disclosures of the invention at trade fairs in Sydney and Melbourne in July 1996 and in Germany in May 1997, for the purpose of carrying out a market investigation of the viability of the product.  The appellants also provided the respondents with photocopies of production drawings of various prototypes of the ironing board.

In June 1997, the respondents terminated discussions with the appellants.  In October 1997, the second respondent was manufacturing and selling and the first respondent was importing and selling a product which copied some features of the appellants’ invention and also copied engineering details contained in production drawings and evident from a close inspection of the latest prototype.

The trial judge found that features of the wall mounted board were designed using information supplied to the respondents by the appellants and that the respondents were in breach of the agreement by making wall mounted boards and by importing and distributing them.  Damages were awarded and an injunction granted.

The appeal to the Court of Appeal was allowed.  The Court found that the agreement not to use information was unenforceable, because it had no time limit and covered all information whether or not publicly disclosed.  The Court further found that no injunction should have been granted under the general law, because the information had been made public, so far as it is of significant value.  They upheld the award of damages, but reduced it to $5,000 to reflect the fact that the information used was, at least in large part, publicly available.

The grounds of appeal are:

·       The Court of Appeal erred in holding that the confidentiality agreements were invalid and/or unenforceable;

·       The Court of Appeal erred in holding that the restraint of trade doctrine applied to the agreements; that the reasonableness of those agreements had to be inquired into; and that the contracts afforded adequate protection to the interests of the appellants;

·       The Court of Appeal erred by failing to give reasons for its apparent conclusion that the confidentiality agreements operated as a restraint on the respondents’ trade;

·       To the extent that the Court of Appeal decided that the restraint of trade doctrine applied or that the confidentiality agreements were in unreasonable restraint of trade, it misconstrued the confidentiality agreements, the injunctions granted at first instance, took into account irrelevant considerations, failed to take into account relevant considerations and otherwise erred in law;

·       The Court of Appeal erred in holding that a contract preventing the use of materials embodying information whether or not publicly available without time limit is unenforceable, or unenforceable by injunction; and

·       The Court of Appeal failed to consider misconstrued or misapplied authorities to which they were referred.

PFEIFFER v. STEVENS (B40/2001)

Court Appealed from:  Court of Appeal of the Supreme Court of Queensland

Date of Judgment:  24 March 2000

The appellant is the director of Cable Ski World Pty Ltd, the occupier of certain land in Coombabah.  By a complaint made by the respondent on 11 September 1998, it was alleged that the appellant, on 4 September 1998, upon the subject land, had damaged protected vegetation contrary to s5(1) of the Gold Coast City Council Interim Law 6 (Vegetation Management).  That law was made in accordance with the provisions of the Local Government Act 1993 (Qld), by the Council of the Gold Coast by resolution dated 7 March 1997.

In accordance with s863(1) of the Local Government Act, a Notice of the Making of the Interim Local Law was published in the Gazette of 14 March 1997 and was expressed to operate until 14 September 1997 unless extended by the Minister for Local Government.  By a further notice published in the Gazette on 5 September 1997, the law was extended to 14 March 1998.  The second gazettal did not purport to reserve to the Minister any power to further extend that law.  However, on 13 March 1998, by a notice published in the Gazette, the operation of the law was extended to 14 September 1998.

On 5 July 1999, a Stipendiary Magistrate at Southport dismissed the respondent’s complaint.  The Magistrate stated he was satisfied that the Interim Local Law ceased on 4 September 1997, and that there was no bona fide law under which the appellant could have been charged.  The Council appealed, pursuant to s222 of the Justices Act 1986 (Qld), to the District Court.

At the hearing of the appeal, the appellant argued that s860 of the Local Government Act, only authorised the Minister to grant one extension of the Interim Local Law 

Hanger DCJ found that the provision in question should not be interpreted in such a way as to permit only one extension.  His Honour found that, although there is a sunset clause which one must assume was intended to prevent local law continuing indefinitely, there was nothing in section 860(2)(b) limiting the period the Minister can allow for which the local law will expire.

The appellant also complained that the gazettal of 5 September 1997 did not contain a provision allowing the Minister to extend the operation of the law.  Hanger DCJ found that there was no significance in that omission and that the power to extend the period was provided by virtue of s860(2)(b) and was not acquired by publishing it in the gazette.  The appeal was allowed.

The appellant then sought leave to appeal the judgment of the District Court to the Court of Appeal and on 24 March 2000, the Court dismissed the application for leave to appeal.

The grounds of appeal are:

·       The Court of Appeal erred in finding that a ‘sunset provision’ permitted an interim local law to be extended for an indefinite period determinable only by the number and extent of multiple determinations by the Minister for Local Government;

·       The Court of Appeal erred in concluding that s863(2)(c) of the Local Government Act 1993 (Qld) conferred or was capable of conferring a statutory power to extend indefinitely the expiry date of an interim local law contrary to the mandatory provisions of s860(2) of the Act; and

·       The Court of Appeal erred in concluding that s863(2)(c) if it did confer a power to extend the expiry date of an interim local law, empowered the Minister to extend such a law indefinitely by force of s23(1) of the Acts Interpretation Act 1954 (Qld)

FESTA v. THE QUEEN (B39/2001)

Court Appealed from:  Court of Appeal of the Supreme Court of Queensland

Date of Judgment:  17 March 2000

At various dates between 8 May 1996 and 13 June 1996, there were three armed robberies of National Australia Banks in Morningside, Biggera Waters and Paradise Point.  The appellant was convicted of involvement in the armed robberies at Biggera Waters and Paradise Point but was not charged with respect to the robbery at Morningside.  Both robberies were alleged to have been committed by a male and a female.  The primary question at trial was whether the prosecution had established the identification of the appellant as the female robber.

On 25 April 1997 one Renton was convicted of the robberies of Biggera Waters and Paradise Point, but was acquitted of the robbery at Morningside.  The appellant was indicted and tried jointly with Renton.  The trial judge directed the jury that there was evidence of a close association between the appellant and Renton which might lead them to conclude that she helped Renton to commit the two robberies.

Renton had been released from prison on leave on 3 May 1996, and shortly thereafter phoned the appellant, to whom he had been writing whilst he was in jail, at her home.  On 19 May, some days after the Morningside robbery, Renton used a false name to rent an unfurnished unit for which he paid the landlord the sum of $1,160 in cash.  During covert surveillance, the appellant was seen to be a regular visitor to the unit, to which she had a set of keys.  Her fingerprints were found on a can of hair and wig sheen and a bottle of spirit gum remover found in the unit.  Two wig stands and a set of instructions on the use of disguises were also found in the unit.  Disguises were used by the participants in one or both of the robberies.  A search of the unit revealed substantial sums of cash including a large number of five dollar notes, items of new furniture and new electrical equipment.  The search also revealed firearms, ammunition, a sledge hammer and a radio scanner.  At the time of her arrest, the appellant was carrying $850 in cash including 25 five dollar notes.  There was further evidence of an association between the two. The stolen cars used in the robberies were seen to be driven by a man and a woman, property taken from two of the stolen cars was found in the car driven by the appellant, whilst items taken from one of the vehicles was found at the home of the appellant.

The Crown case also relied upon identification evidence of three witnesses to the Biggera Waters robbery (Fyffe, Ogilvie and James) and one witness (Hill) to the robbery at Paradise Point.  The identification evidence comprised photoboards and in court visual and aural identification.

The grounds of appeal are:

·       The failure to exclude the evidence of the witnesses James, Ogilvie, Fyffe and Hill who purported to directly identify the appellant has resulted in a miscarriage of justice;

·       The admission of the evidence, as circumstantial evidence, of those witnesses who purported to directly identify resulted in a miscarriage of justice;

·       The trial judge’s directions in relation to eyewitness identification and voice identification were inadequate;

·       The failure to exclude the evidence of the discovery of weapons and ammunition subsequent to the offences resulted in a miscarriage of justice;

·       The trial judge’s directions in relation to the discovery of weapons and ammunition were inadequate; and

·       The trial judge’s directions as to the association between the appellants and Renton resulted in a material misdirection.

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