Hamdan v Callanan; Younan v Callanan - [2014] QCA 304

SUPREME COURT OF QUEENSLAND

CITATION:

Hamdan v Callanan; Younan v Callanan [2014] QCA 304

PARTIES:

In Appeal No 3266 of 2014:

HAYSAM HAMDAN
(appellant)
v
JOHN DAVID CALLANAN
(respondent)

In Appeal No 3267 of 2014:

PAUL YOUNAN
(appellant)
v
JOHN DAVID CALLANAN
(respondent)

FILE NO/S:

Appeal No 3266 of 2014
Appeal No 3267 of 2014
SC No 10192 of 2011
SC No 10190 of 2011

DIVISION:

Court of Appeal

PROCEEDING:

General Civil Appeal

ORIGINATING COURT:

Supreme Court at Brisbane

DELIVERED ON:

28 November 2014

DELIVERED AT:

Brisbane

HEARING DATE:

15 October 2014

JUDGES:

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

ORDER:

The appeal be dismissed with costs.

CATCHWORDS:

APPEAL AND NEW TRIAL – APPEAL – GENERAL PRINCIPLES – RIGHT OF APPEAL – WHEN APPEAL LIES – ERROR OF LAW – WHAT IS – GENERALLY – where each of these appeals, which were heard together, is an appeal from orders made by the primary judge dismissing the appellants’ application for a statutory order of review of the decision of the respondent, as delegate of the Chairperson of the Crime and Misconduct Commission to issue an attendance notice to the appellants – where the appellants are suspects in a murder investigation – where the appellants contend that statute should not be interpreted to curtail common law rights and freedoms unless expressly authorised or permitted as a matter of necessary implication by the text, context, and purpose of the statute – where the appellants contend that the privilege against self-incrimination should not be abrogated by statute in respect of an uncharged suspect – whether the primary judge erred in finding that the respondent’s decision to issue an attendance notice on the appellants, made in purported reliance on s 82 of the Crime and Misconduct Act 2001 (Qld) was authorised by the Act – whether the primary judge erred in finding that the respondent’s decision did not involve an error of law

Crime and Misconduct Act 2001 (Qld), s 5(2), s 27, s 28, s 74, s 82, s 177(2), s 181, s 183, s 185(2), s 274, s 275(a), Sch 2
Royal Commissions Act 1902 (Cth), s 6A(2)

Bropho v Western Australia (1990) 171 CLR 1; [1990] HCA 24, cited
Corporate Affairs Commission (NSW) v Yuill (1991) 172 CLR 319; [1991] HCA 28, cited
Environment Protection Authority v Caltex Refining Co Pty Ltd (1993) 178 CLR 477; [1993] HCA 74, cited
Hamilton v Oades (1989) 166 CLR 486; [1989] HCA 21, cited
Hammond v The Commonwealth (1982) 152 CLR 188; [1982] HCA 42, considered
Huddart, Parker & Co Pty Ltd v Moorehead (1909) 8 CLR 330; [1909] HCA 36, considered
Lee v New South Wales Crime Commission (2013) 251 CLR 196; (2013) 87 ALJR 1082; [2013] HCA 39, considered
Lee v The Queen (2014) 88 ALJR 656; [2014] HCA 20

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.

Keep reading for free

Create a free CaseChat account to read Hamdan v Callanan; Younan v Callanan and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2014] QCA 304
Decision Date: 28 November 2014

CaseChat Overview and Summary

The appeals in Hamdan v Callanan and Younan v Callanan involved the applicants seeking a statutory order of review against the respondent's decision to issue attendance notices under the Crime and Misconduct Act 2001 (Qld). The applicants, who were suspects in a murder investigation, argued that the statute should not curtail common law rights unless expressly authorised. They also contended that the privilege against self-incrimination should not be abrogated for uncharged suspects. The primary judge dismissed the applicants' application, holding that the respondent's decision was authorised by the Act and did not involve an error of law.

The legal issues before the court were whether the primary judge erred in finding that the respondent's decision to issue attendance notices was authorised by section 82 of the Crime and Misconduct Act 2001 (Qld) and whether the primary judge erred in finding that the respondent's decision did not involve an error of law. The applicants argued that the statute did not authorise the abrogation of the common law privilege against self-incrimination for uncharged suspects. The court needed to determine the extent to which the statutory powers authorised by section 82 of the Act could be exercised without contravening common law rights.

The court found that the primary judge did not err in his conclusions. The court held that the respondent's decision to issue the attendance notices was authorised by the Act and did not involve an error of law. The court held that the statutory powers under section 82 of the Crime and Misconduct Act 2001 (Qld) were broad and could be exercised in a manner that might otherwise infringe common law rights, provided it was done in accordance with the Act. The court further held that the applicants' arguments about the abrogation of the privilege against self-incrimination for uncharged suspects were not supported by the text, context, or purpose of the Act.

The appeal was dismissed with costs.

Orders

Orders of the court

The appeal be dismissed with costs.

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:	Hamdan v Callanan; Younan v Callanan [2014] QCA 304
PARTIES:	In Appeal No 3266 of 2014: HAYSAM HAMDAN (appellant) v JOHN DAVID CALLANAN (respondent) In Appeal No 3267 of 2014: PAUL YOUNAN (appellant) v JOHN DAVID CALLANAN (respondent)
FILE NO/S:	Appeal No 3266 of 2014 Appeal No 3267 of 2014 SC No 10192 of 2011 SC No 10190 of 2011
DIVISION:	Court of Appeal
PROCEEDING:	General Civil Appeal
ORIGINATING COURT:	Supreme Court at Brisbane
DELIVERED ON:	28 November 2014
DELIVERED AT:	Brisbane
HEARING DATE:	15 October 2014
JUDGES:	Muir and Gotterson JJA and Mullins J Separate reasons for judgment of each member of the Court, each concurring as to the order made
ORDER:	The appeal be dismissed with costs.
CATCHWORDS:	APPEAL AND NEW TRIAL – APPEAL – GENERAL PRINCIPLES – RIGHT OF APPEAL – WHEN APPEAL LIES – ERROR OF LAW – WHAT IS – GENERALLY – where each of these appeals, which were heard together, is an appeal from orders made by the primary judge dismissing the appellants’ application for a statutory order of review of the decision of the respondent, as delegate of the Chairperson of the Crime and Misconduct Commission to issue an attendance notice to the appellants – where the appellants are suspects in a murder investigation – where the appellants contend that statute should not be interpreted to curtail common law rights and freedoms unless expressly authorised or permitted as a matter of necessary implication by the text, context, and purpose of the statute – where the appellants contend that the privilege against self-incrimination should not be abrogated by statute in respect of an uncharged suspect – whether the primary judge erred in finding that the respondent’s decision to issue an attendance notice on the appellants, made in purported reliance on s 82 of the Crime and Misconduct Act 2001 (Qld) was authorised by the Act – whether the primary judge erred in finding that the respondent’s decision did not involve an error of law Crime and Misconduct Act 2001 (Qld), s 5(2), s 27, s 28, s 74, s 82, s 177(2), s 181, s 183, s 185(2), s 274, s 275(a), Sch 2 Royal Commissions Act 1902 (Cth), s 6A(2) Bropho v Western Australia (1990) 171 CLR 1; [1990] HCA 24, cited Corporate Affairs Commission (NSW) v Yuill (1991) 172 CLR 319; [1991] HCA 28, cited Environment Protection Authority v Caltex Refining Co Pty Ltd (1993) 178 CLR 477; [1993] HCA 74, cited Hamilton v Oades (1989) 166 CLR 486; [1989] HCA 21, cited Hammond v The Commonwealth (1982) 152 CLR 188; [1982] HCA 42, considered Huddart, Parker & Co Pty Ltd v Moorehead (1909) 8 CLR 330; [1909] HCA 36, considered Lee v New South Wales Crime Commission (2013) 251 CLR 196; (2013) 87 ALJR 1082; [2013] HCA 39, considered Lee v The Queen (2014) 88 ALJR 656; [2014] HCA 20