Supreme Court Act 1995 (Qld) s 253 – whether refusal to stay execution of costs is an order “as to costs only”

In Virgtel Ltd v Zabusky [2009] QCA 92 the Queensland Court of Appeal considered the scope of an order “as to costs only” within the meaning of s 253 of the Supreme Court Act 1995 (Qld) (‘the Act”). The Court also declined to accept submissions from one of the parties after oral hearing, and made some useful comments which serve as a reminder to practitioners of their obligations in that regard.

Disclosure obligations on ex parte application for freezing order - duty of practitioners to the court - failure to comply with duty - serious dereliction of duty to court - supplemental order for costs against solicitors personally

The decision of Applegarth J in Heartwood Architectural & Joinery Pty Ltd v Redchip Lawyers [2009] QSC 195 (27 July 2009) involved a costs order against solicitors personally. This decision is but one of several recent decisions in which the court has been persuaded that the circumstances justified costs orders against legal practitioners on the indemnity basis. These decisions serve as a reminder to practitioners of their disclosure obligations when seeking any interlocutory relief in an ex parte application. These obligations are now clearly set out in r 14.4 of the Legal Profession (Solicitors) Rule 2007 and r 25 of 2007 Barristers Rule. Inexperience or ignorance will not excuse breaches of the duties owed to the court.

Supreme Court Act 1995 (Qld) s 253 - leave to appeal costs orders - appeal against substantive judgment insufficient - must be arguable case that discretion will be overturned on appeal

The recent decision of the Court of Appeal in AGL Sales (Qld) Pty Ltd v Dawson Sales Pty Ltd [2009] QCA 262 provides clear direction on the Court’s expectations of a party seeking leave to appeal a costs order.This decision is likely to impact upon common practice in relation to appeals against costs orders. It sends a clear message to trial judges that they should not give leave as of course when giving a judgment in relation to costs, and that parties seeking leave under s 253 of the Supreme Court Act 1995 (Qld) should make a separate application. The application should be supported by material presenting an arguable case that the trial judge made an error in the exercise of the discretion of the kind described in House v King (1936) 55 CLR 499. A different, and interesting, aspect of this appeal is that it was the first wholly electronic civil appeal. The court-provided technology had been adopted at trial, and the Court of Appeal dispensed with any requirement for hard copy appeal record books.

Court-provided trial presentation technology : the way of the future?

The trial in Covecorp Constructions Pty Ltd v Indigo Projects Pty Ltd (File no BS 10157 of 2001; BS 2763 of 2002) commenced on 8 October 2007 before Fryberg J, but the matter settled on 6 November 2007 before the conclusion of the trial. This case was conducted as an “electronic trial” with the use of technology developed within the court. This was the first case in Queensland to employ this technology at trial level. The Court’s aim was to find a means to capture the key benefits which are offered by the more sophisticated trial presentation software of commercial service providers, in a way that was inexpensive for the parties and would facilitate the adoption of technology at trial much more broadly than has been the case to date.

Insights into special costs orders : WA court examines compliance and retrospectivity

In Walter v Buckeridge [No.5] [2012] WASC 495 Le Miere J considered an application by the defendants for special costs orders under the applicable legislation in Western Australia. Aspects of the decision may be of persuasive value in dealing with similar issues under Queensland legislation.

A Bayesian approach to the determination of ignition delay

A novel in-cylinder pressure method for determining ignition delay has been proposed and demonstrated. This method proposes a new Bayesian statistical model to resolve the start of combustion, defined as being the point at which the band-pass in-cylinder pressure deviates from background noise and the combustion resonance begins. Further, it is demonstrated that this method is still accurate in situations where there is noise present. The start of combustion can be resolved for each cycle without the need for ad hoc methods such as cycle averaging. Therefore, this method allows for analysis of consecutive cycles and inter-cycle variability studies. Ignition delay obtained by this method and by the net rate of heat release have been shown to give good agreement. However, the use of combustion resonance to determine the start of combustion is preferable over the net rate of heat release method because it does not rely on knowledge of heat losses and will still function accurately in the presence of noise. Results for a six-cylinder turbo-charged common-rail diesel engine run with neat diesel fuel at full, three quarters and half load have been presented. Under these conditions the ignition delay was shown to increase as the load was decreased with a significant increase in ignition delay at half load, when compared with three quarter and full loads.

Ignition delay in an ethanol fumigated common rail diesel engine

A novel method for determining ignition delay is presented. This method utilises combustion resonance as a means of determining the onset of ignition. Results are shown from an ethanol fumigation study comprising of substitutions up to 50% at full, three-quarter and half load. It has been demonstrated that at full load there is a decrease in ignition delay with increasing ethanol substitutions, whereas at half load there is an increase in ignition delay with increasing ethanol substitutions. It is suggested that this conflicting result is a consequence of the auto ignition of ethanol.

Determining operations affected by delay in predictive train timetables

Constructing train schedules is vital in railways. This complex and time consuming task is however made more difficult by additional requirements to make train schedules robust to delays and other disruptions. For a timetable to be regarded as robust, it should be insensitive to delays of a specified level and its performance with respect to a given metric, should be within given tolerances. In other words the effect of delays should be identifiable and should be shown to be minimal. To this end, a sensitivity analysis is proposed that identifies affected operations. More specifically a sensitivity analysis for determining what operation delays cause each operation to be affected is proposed. The information provided by this analysis gives another measure of timetable robustness and also provides control information that can be used when delays occur in practice. Several algorithms are proposed to identify this information and they utilise a disjunctive graph model of train operations. Upon completion the sets of affected operations can also be used to define the impact of all delays without further disjunctive graph evaluations.

Court finds solicitor in breach of fiduciary duty owed to client but loss not caused by the breach

A solicitor owes fiduciary obligations to his or her client including the obligations of loyalty and disclosure. The Court of Appeal in Mantonella Pty Ltd v Thompson (2009) 255 ALR 367; [2009] QCA 80; BC200902311 recently considered when the fiduciary duty owed by a solicitor to a client is breached and the consequent liability of the solicitor...

Ignition delay of bio-fuels in a common-rail compression ignition engine

The utility of a novel technique for determining the ignition delay in a compression ignition engine has been shown. This method utilises statistical modelling in the Bayesian paradigm to accurately resolve the start of combustion from a band-pass in-cylinder pressure signal. Applied to neat diesel and six biofuels, including four fractionations of palm oil of varying carbon chain length and degree of unsaturation, the relationships between ignition delay, cetane number and oxygen content have been explored. It is noted that the expected negative relationship between ignition delay and cetane number held, as did the positive relationship between ignition delay and oxygen content. The degree of unsaturation was also identified as a potential factor influencing the ignition delay.

Child complainants and the court process in Australia

In recent years, it has been recognised that child complainants in the criminal justice system can experience difficulties over and above those of other complainants and that children can experience the court process as extremely traumatising. This can be exacerbated if children are complainants in child sexual offence matters and if they have to give evidence against a family member. This paper has three primary aims. First, it outlines the major factors that contribute to making court processes harrowing for child complainants. Second, it outlines some of the main initiatives that have been introduced to address these factors. Finally, it weighs up the evidence about initiatives designed to assist child complainants and concludes that such initiatives have had only limited practical impact for child complainants in the criminal justice system. The limited impact is attributed to the need to balance the rights of the accused with consideration for the complainant, a failure to translate legislative changes into practice, the impact of judicial discretion and/or a focus on protecting child complainants at the expense of increasing convictions.

The optimal duration and delay of first aid treatment for deep partial thickness burn injuries

Using our porcine model of deep dermal partial thickness burn injury, various durations (10min, 20min, 30min or 1h) and delays (immediate, 10min, 1h, 3h) of 15 degrees C running water first aid were applied to burns and compared to untreated controls. The subdermal temperatures were monitored during the treatment and wounds observed weekly for 6 weeks, for re-epithelialisation, wound surface area and cosmetic appearance. At 6 weeks after the burn, tissue biopsies were taken of the scar for histological analysis. Results showed that immediate application of cold running water for 20min duration is associated with an improvement in re-epithelialisation over the first 2 weeks post-burn and decreased scar tissue at 6 weeks. First aid application of cold water for as little as 10min duration or up to 1h delay still provides benefit.

Court finds negligent dental treatment not an intentional act intended to cause harm : Dean v Phung

NSW Supreme Court decision - claim resulting from alleged damaging dental treatment of healthy teeth - failure of plaintiff to prove dishonest and fraudulent behaviour - assessment of damages.