Crime & Misconduct Commission v Assistant Commissioner J P Swindells (No 2)

[2009] QSC 411

[2009] QSC 411

SUPREME COURT OF QUEENSLAND

CIVIL JURISDICTION

APPLEGARTH J

No 9405 of 2009

CRIME AND MISCONDUCT COMMISSION	Applicant
and
ASSISTANT COMMISSIONER J P SWINDELLS	First Respondent

and

CONSTABLE PATRICK BRIAN GARDINER       Second Respondent

and

PETER J BYRNES, MEMBER,               Third Respondent
MISCONDUCT TRIBUNAL

BRISBANE

..DATE 15/12/2009

JUDGMENT

HIS HONOUR:  In this matter, the orders of the Court will be:

1.  The decision of the Misconduct Tribunal made on 31 July

2009 to dismiss the applicant's appeal in respect of matters 1

and 2 is set aside;

2.  The matter is referred to the Queensland Civil and

Administrative Tribunal.

I publish my reasons.

...

HIS HONOUR:  In this matter, an issue as to costs arises.  C

Costs are in the discretion of the Court.  The ordinary rule is that costs should follow the event, and the fact that a successful party has not succeeded on all of the grounds relied upon by it is not ordinarily a reason to deprive it of costs.

In this matter, the applicant raised numerous grounds upon

which to challenge the decision under review and has succeeded

on only a few, although I found it unnecessary to consider

some matters.  However, substantial grounds of attack failed.

That does not ordinarily deprive a successful applicant of its

entitlement to costs.  However, here one basis upon which the

applicant succeeded was what I found to be inadequate reasons,

and those inadequacies should not necessarily be visited upon

the second respondent, although the second respondent sought

to uphold the adequacy of the reasons.  That is an

understandable response in the circumstances.

The matter also involves some broader issues concerning the

approach of the Misconduct Tribunal, or its successor, the

Queensland Civil and Administrative Tribunal, in dealing with

such matters, and that public interest consideration also is a

factor that I take into account.

Having regard to the relevant factors that I have identified,

I consider that an appropriate order in the circumstances is

that there be no order as to costs.

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