Crime and Misconduct Commission v Bioletti

SUPREME COURT OF QUEENSLAND

CITATION:

Crime and Misconduct Commission v Bioletti [2006] QSC 159

PARTIES:

CRIME AND MISCONDUCT COMMISSION
(applicant)
v
MARK WILLIAM BIOLETTI
(respondent)

FILE NO/S:

S6144 of 2005

DIVISION:

Trial Division

PROCEEDING:

Application

ORIGINATING COURT:

Supreme Court at Brisbane

DELIVERED ON:

23 June 2006

DELIVERED AT:

Brisbane

HEARING DATE:

2 June 2006

JUDGE:

Muir J

ORDER:

1.    Application dismissed.

2.    Applicant to pay the respondent’s costs of the application to be assessed on the standard basis.

CATCHWORDS:

PROCEDURE – JUDGMENTS AND ORDERS – AMENDING, VARYING AND SETTING ASIDE – GENERAL RULES – where application for variation of order – where order sought to be amended stipulated rehearing of matter by initial decision-maker – where applicant alleges such would cause harm to complainant – whether freshly discovered facts permitting amendment of order

Uniform Civil Procedure Rules 1999 (Qld), r 667, r 668

Akins v National Australia Bank (1994) 34 NSWLR 155, cited
Breen v Lambert [1991] QSC 232, cited
Greater Wollongong City Council v Cowan (1955) 93 CLR 435, cited
IVI Pty Ltd v Baycrown Pty Ltd [2005] QSC 330, cited
Rankin v Agen Biomedical Ltd [1999] 2 Qd R 435, cited

COUNSEL:

M Daubney SC for the applicant
M J Byrne QC for the respondent

SOLICITORS:

Deputy Official Solicitor of the Crime and Misconduct Commission for the applicant
Gilshenan & Luton for the respondent

Introduction

1. The applicant Crime and Misconduct Commission applies, pursuant to rule 667 and/or r 668 of the Uniform Civil Procedure Rules 1999 (Qld) for an order that the order of a Judge of this Court made on 30 January 2005 (“the order”) be varied. That order set aside a decision of the Misconduct Tribunal, as constituted under the Misconduct Tribunals Act 1997 (Qld), made on 1 July 2005. The order remitted the matter to the Tribunal to be heard by a different member.

1. There were two complaints before the Tribunal. In both, the respondent police officer was alleged to have requested a sexual favour of the female complainant in consideration of an implicit offer to afford her favourable treatment. The Tribunal substantially accepted the evidence of one of the complainants, complainant A, but was not satisfied to the requisite standard of proof as to the truth of allegations made by the other complainant, complainant B.

The appeal

1. In the course of the hearing, the barrister constituting the Tribunal intimated that the matters had not been properly brought before him and that, in consequence, the Tribunal lacked jurisdiction. Nevertheless, the parties urged him to make the findings he would have made, had he found that the requisite jurisdiction existed. The Tribunal acted on the request and made the findings referred to earlier. The applicant appealed against the determinations, seeking orders that:

·the Tribunal’s orders be set aside;

·the respondent be found guilty of official misconduct in respect of complainant A; and

·that he be dismissed from the Queensland Police Service forthwith.

No order was sought in respect of complainant B other…