Hamdan v Callanan; Younan v Callanan - [2013] QCA 104

SUPREME COURT OF QUEENSLAND

CITATION:

Hamdan v Callanan; Younan v Callanan [2013] QCA 104

PARTIES:

HAYSAM HAMDAN
(first appellant)
PAUL YOUNAN
(second appellant)
v
JOHN DAVID CALLANAN
(respondent)

FILE NO/S:

Appeal No 8111 of 2012
Appeal No 8112 of 2012
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:

10 May 2013

DELIVERED AT:

Brisbane

HEARING DATE:

18 March 2013

JUDGES:

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

ORDERS:

1. The appeals of Hamdan and Younan are dismissed.

2. The appellants are to pay the respondent’s costs of and incidental to the appeal.

CATCHWORDS:

PROCEDURE – DISCOVERY AND INTERROGATORIES – DISCOVERY AND INSPECTION OF DOCUMENTS – PRODUCTION AND INSPECTION – GROUNDS FOR RESISTING PRODUCTION – PUBLIC INTEREST IMMUNITY – GENERALLY – where the appellants challenge the finding that certain documents were privileged from disclosure on the basis of public interest immunity – whether the primary judge erred in not properly identifying and weighing the strength of the public interest in disclosure of the documents or specific parts of them – whether any unfairness to the applicants is outweighed by the public interest in non-disclosure of the documents – whether redaction of parts of the documents would sufficiently address the public interest in protecting the identities of informers

Crime and Misconduct Act 2001 (Qld), s 82

Hammond v The Commonwealth (1982) 152 CLR 188; [1982] HCA 42, considered
National Companies and Securities Commission v News Corporation Ltd (1984) 156 CLR 296; [1984] HCA 29, applied
Sankey v Whitlam (1978) 142 CLR 1; [1978] HCA 43, considered
Spargos Mining NL v Standard Chartered Aust Ltd (No 1) (1989) 1 ACSR 311, considered

COUNSEL:

A Boe with T Pincus for the appellants
M J Burns SC, with D Coughlin, for the respondent

SOLICITORS:

Nyman Gibson Stewart for the appellants
Official Solicitor to the Crime and Misconduct Commission for the respondent

MUIR JA: I agree that the appeal should be dismissed with costs for the reasons given by Douglas J.

FRASER JA: I have had the advantage of reading the reasons for judgment of Douglas J. I agree with those reasons and with the orders proposed by his Honour.

DOUGLAS J: The appellants were issued with attendance notices requiring them to attend hearings of the Crime and Misconduct Commission (“the CMC”) into an alleged murder at Burleigh Heads in 2009 and to give evidence relating to their knowledge of the circumstances surrounding the death. They were regarded as suspects in the commission of the crime but no charges have yet been laid against them or any other person. It happened after an incident of “road rage” where the deceased was shot through the window of the car he was driving by a pistol used by a passenger in another vehicle which stopped…

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: [2013] QCA 104
Decision Date: 10 May 2013

CaseChat Overview and Summary

The case of Hamdan v Callanan; Younan v Callanan involved an appeal by the appellants, seeking a review of a decision that certain documents were privileged from disclosure under the principle of public interest immunity. The respondents, who were law enforcement officers, had argued that the documents in question contained sensitive information that should be withheld from the appellants. The appeal was heard in the High Court of Australia.

The legal issues before the court were whether the primary judge had correctly identified and weighed the public interest in the disclosure of the documents or specific parts of them, and whether any unfairness to the appellants was outweighed by the public interest in non-disclosure. Additionally, the court considered whether redaction of parts of the documents would sufficiently address the public interest in protecting the identities of informers.

The court found that the primary judge had not erred in his assessment of the public interest immunity claim. The judges held that the primary judge had properly identified and weighed the relevant public interests and that the public interest in non-disclosure of the documents outweighed any unfairness to the appellants. The court further found that redaction of parts of the documents would not adequately address the public interest in protecting the identities of informers. Consequently, the appeals were dismissed, and the appellants were ordered to pay the respondents' costs of and incidental to the appeal.

Orders

Orders of the court

1. The appeals of Hamdan and Younan are dismissed.

2. The appellants are to pay the respondent’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:	Hamdan v Callanan; Younan v Callanan [2013] QCA 104
PARTIES:	HAYSAM HAMDAN (first appellant) PAUL YOUNAN (second appellant) v JOHN DAVID CALLANAN (respondent)
FILE NO/S:	Appeal No 8111 of 2012 Appeal No 8112 of 2012 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:	10 May 2013
DELIVERED AT:	Brisbane
HEARING DATE:	18 March 2013
JUDGES:	Muir and Fraser JJA and Douglas J Separate reasons for judgment of each member of the Court, each concurring as to the orders made
ORDERS:	1. The appeals of Hamdan and Younan are dismissed. 2. The appellants are to pay the respondent’s costs of and incidental to the appeal.
CATCHWORDS:	PROCEDURE – DISCOVERY AND INTERROGATORIES – DISCOVERY AND INSPECTION OF DOCUMENTS – PRODUCTION AND INSPECTION – GROUNDS FOR RESISTING PRODUCTION – PUBLIC INTEREST IMMUNITY – GENERALLY – where the appellants challenge the finding that certain documents were privileged from disclosure on the basis of public interest immunity – whether the primary judge erred in not properly identifying and weighing the strength of the public interest in disclosure of the documents or specific parts of them – whether any unfairness to the applicants is outweighed by the public interest in non-disclosure of the documents – whether redaction of parts of the documents would sufficiently address the public interest in protecting the identities of informers Crime and Misconduct Act 2001 (Qld), s 82 Hammond v The Commonwealth (1982) 152 CLR 188; [1982] HCA 42, considered National Companies and Securities Commission v News Corporation Ltd (1984) 156 CLR 296; [1984] HCA 29, applied Sankey v Whitlam (1978) 142 CLR 1; [1978] HCA 43, considered Spargos Mining NL v Standard Chartered Aust Ltd (No 1) (1989) 1 ACSR 311, considered
COUNSEL:	A Boe with T Pincus for the appellants M J Burns SC, with D Coughlin, for the respondent
SOLICITORS:	Nyman Gibson Stewart for the appellants Official Solicitor to the Crime and Misconduct Commission for the respondent