Crime and Misconduct Commission v Wilson - [2012] QCA 314

SUPREME COURT OF QUEENSLAND

CITATION:

Crime and Misconduct Commission v Wilson & Anor [2012] QCA 314

PARTIES:

CRIME AND MISCONDUCT COMMISSION
(applicant/appellant)
v
ASSISTANT COMMISSIONER PAUL WILSON
(first respondent)
STEPHEN WAYNE CHAPMAN
(second respondent)

FILE NO/S:

Appeal No 6566 of 2012
QCAT No 315 of 2011
QCAT No 339 of 2011

DIVISION:

Court of Appeal

PROCEEDING:

Application for Leave Queensland Civil and Administrative Tribunal Act

ORIGINATING COURT:

Queensland Civil and Administrative Tribunal at Brisbane

DELIVERED ON:

16 November 2012

DELIVERED AT:

Brisbane

HEARING DATE:

2 November 2012

JUDGES:

Muir and Gotterson JJA and Daubney J
Separate reasons for judgment of each member of the Court, each concurring as to the orders made

ORDERS:

1. Leave to appeal be granted.

2. The appeal be allowed.

3. The order of the Queensland Civil and Administrative Tribunal Appeals Tribunal of 27 June 2012 allowing the appeal against the order of the Tribunal of 24 August 2011 joining the Crime and Misconduct Commission to disciplinary review proceedings be set aside.

4. The first and second respondents pay the applicant’s costs of and incidental to the appeal.

CATCHWORDS:

STATUTES – ACTS OF PARLIAMENT – OPERATION AND EFFECT OF ACTS – INTERACTION OF ACTS – where first respondent found two allegations of improper conduct against second respondent – where a fine of $200 was imposed with respect to each charge – where second respondent admitted guilt on one of the matters but applied to QCAT for review of the decision on the other matter – where applicant applied for review of both sanction determinations – where QCAT ordered that applicant be joined in the second respondent’s application – where the first and second respondent appealed against the joinder of applicant – where Appeal Tribunal set aside joinder order – where second respondent submitted that the identification in s 219G(3) of the Crime and Misconduct Act (“CMC Act”) of applicant as a party to a review proceeding only when applicant made the application for review manifests an intention that applicant could only be a party to a relevant review proceeding if such proceeding was commenced on applicant’s application – where second respondent argued there was an inconsistency between s 219G(3) and the intervention and joinder provisions, ss 41(2) and 42, of the Queensland Civil and Administrative Tribunal Act (“QCAT Act”) in which the former prevailed by virtue of s 7 of the QCAT Act – where second respondent submitted ss 41(2) and 42 are incompatible with the strict time limits of s 219G – where first respondent put forward similar arguments – whether s 219G(3) of the CMC Act implicitly excludes the operation of ss 41(2) and 42 of the QCAT Act

Crime and Misconduct Act 2001 (Qld), s 33, s 219G(3), s 219H
Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 6, s 7, s 33, s 34, s 40, s 41, s 42

Electric Light and Power Supply Corporation Ltd v Electricity Commission (NSW) (1956) 94 CLR 554; [1956]…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2012] QCA 314
Decision Date: 16 November 2012

CaseChat Overview and Summary

The Crime and Misconduct Commission (CMC) sought review of two disciplinary determinations made against an individual, Wilson, by the Queensland Civil and Administrative Tribunal (QCAT). Wilson was found to have engaged in improper conduct and was fined $200 for each of two charges. He admitted guilt on one matter but applied to QCAT for review of the decision on the other. The CMC also sought review of both determinations. QCAT ordered that the CMC be joined in Wilson’s application, which was appealed by both Wilson and the CMC. The Appeal Tribunal set aside the joinder order, leading to the current appeal.

The central legal issue was whether section 219G(3) of the Crime and Misconduct Act (CMC Act) implicitly excludes the operation of sections 41(2) and 42 of the Queensland Civil and Administrative Tribunal Act (QCAT Act). Wilson and the CMC argued that the CMC could only be a party to a review proceeding if the proceeding was commenced on the CMC's application. They submitted that there was an inconsistency between section 219G(3) of the CMC Act and the intervention and joinder provisions in the QCAT Act, which should be resolved in favour of section 219G(3) due to section 7 of the QCAT Act. They further argued that sections 41(2) and 42 of the QCAT Act are incompatible with the strict time limits of section 219G of the CMC Act.

The court found in favour of Wilson and the CMC, setting aside the order of the Appeal Tribunal. It held that section 219G(3) of the CMC Act implicitly excludes the operation of sections 41(2) and 42 of the QCAT Act. The court reasoned that the CMC could only be a party to a review proceeding if the proceeding was commenced on the CMC's application, and that the time limits in section 219G of the CMC Act were incompatible with the intervention and joinder provisions in the QCAT Act.

The appeal was allowed, the order of the Appeal Tribunal was set aside, and the first and second respondents were ordered to pay the CMC’s costs of and incidental to the appeal.

Orders

Orders of the court

1. Leave to appeal be granted.

2. The appeal be allowed.

3. The order of the Queensland Civil and Administrative Tribunal Appeals Tribunal of 27 June 2012 allowing the appeal against the order of the Tribunal of 24 August 2011 joining the Crime and Misconduct Commission to disciplinary review proceedings be set aside.

4. The first and second respondents pay the applicant’s costs of and incidental to the appeal.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

CITATION:	Crime and Misconduct Commission v Wilson & Anor [2012] QCA 314
PARTIES:	CRIME AND MISCONDUCT COMMISSION (applicant/appellant) v ASSISTANT COMMISSIONER PAUL WILSON (first respondent) STEPHEN WAYNE CHAPMAN (second respondent)
FILE NO/S:	Appeal No 6566 of 2012 QCAT No 315 of 2011 QCAT No 339 of 2011
DIVISION:	Court of Appeal
PROCEEDING:	Application for Leave Queensland Civil and Administrative Tribunal Act
ORIGINATING COURT:	Queensland Civil and Administrative Tribunal at Brisbane
DELIVERED ON:	16 November 2012
DELIVERED AT:	Brisbane
HEARING DATE:	2 November 2012
JUDGES:	Muir and Gotterson JJA and Daubney J Separate reasons for judgment of each member of the Court, each concurring as to the orders made
ORDERS:	1. Leave to appeal be granted. 2. The appeal be allowed. 3. The order of the Queensland Civil and Administrative Tribunal Appeals Tribunal of 27 June 2012 allowing the appeal against the order of the Tribunal of 24 August 2011 joining the Crime and Misconduct Commission to disciplinary review proceedings be set aside. 4. The first and second respondents pay the applicant’s costs of and incidental to the appeal.
CATCHWORDS:	STATUTES – ACTS OF PARLIAMENT – OPERATION AND EFFECT OF ACTS – INTERACTION OF ACTS – where first respondent found two allegations of improper conduct against second respondent – where a fine of $200 was imposed with respect to each charge – where second respondent admitted guilt on one of the matters but applied to QCAT for review of the decision on the other matter – where applicant applied for review of both sanction determinations – where QCAT ordered that applicant be joined in the second respondent’s application – where the first and second respondent appealed against the joinder of applicant – where Appeal Tribunal set aside joinder order – where second respondent submitted that the identification in s 219G(3) of the Crime and Misconduct Act (“CMC Act”) of applicant as a party to a review proceeding only when applicant made the application for review manifests an intention that applicant could only be a party to a relevant review proceeding if such proceeding was commenced on applicant’s application – where second respondent argued there was an inconsistency between s 219G(3) and the intervention and joinder provisions, ss 41(2) and 42, of the Queensland Civil and Administrative Tribunal Act (“QCAT Act”) in which the former prevailed by virtue of s 7 of the QCAT Act – where second respondent submitted ss 41(2) and 42 are incompatible with the strict time limits of s 219G – where first respondent put forward similar arguments – whether s 219G(3) of the CMC Act implicitly excludes the operation of ss 41(2) and 42 of the QCAT Act Crime and Misconduct Act 2001 (Qld), s 33, s 219G(3), s 219H Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 6, s 7, s 33, s 34, s 40, s 41, s 42 Electric Light and Power Supply Corporation Ltd v Electricity Commission (NSW) (1956) 94 CLR 554; [1956]…