Heery v Criminal Justice Commission - [2000] QCA 511

SUPREME COURT OF QUEENSLAND

CITATION: Heery v CJC [2000] QCA 511

PARTIES: MATTHEW PHILLIP HEERY
(plaintiff/appellant/cross-respondent)
v
CRIMINAL JUSTICE COMMISSION
(defendant/respondent/cross-appellant)

FILE NO/S: Appeal No 3594 of 2000
Appeal No 3939 of 2000
SC No 9636 of 1997
OS No 11002 of 1997

DIVISION: Court of Appeal

PROCEEDING: General Civil Appeal
Application for Extension of Time

ORIGINATING COURT:
Supreme Court at Brisbane

DELIVERED ON: 15 December 2000

DELIVERED AT: Brisbane

HEARING DATE: 22 November 2000

JUDGES: Davies and Thomas JJA, Douglas J
Separate reasons for judgment of each member of the Court, each concurring as to the orders made

ORDER: Mr Heery's appeal is allowed and the order of the Supreme Court for destruction of material by the Criminal Justice Commission is set aside. The cross-appeal of the Criminal Justice Commission is dismissed. The Criminal Justice Commission is to pay one-half of Mr Heery's costs of the appeal and cross-appeal to be assessed.

CATCHWORDS:
POST AND TELECOMMUNICATIONS – TELEPHONIC AND RELATED SERVICES – INTERCEPTION OF COMMUNICATIONS – IN GENERAL

PROCEDURE – MISCELLANEOUS PROCEDURAL MATTERS – DECLARATIONS – JURISDICTION

PROCEDURE – MISCELLANEOUS PROCEDURAL MATTERS – DECLARATIONS – APPROPRIATE FORM OF RELIEF – DISCRETION OF COURT – OTHER CASES

PROCEDURE – JUDGMENTS AND ORDERS – AMENDING, VARYING AND SETTING ASIDE – CORRECTION UNDER “SLIP” RULE

CRIMINAL LAW – FEDERAL AND STATE INVESTIGATIVE AUTHORITIES – QUEENSLAND - Criminal Justice Commission obtained an approval pursuant to s 82 of the Criminal Justice Act 1989 to use listening devices at the respondent’s premises – listening devices used to record private conversations – declarations and orders made in the Supreme Court that listening devices were used without authority, that their use amounted to a breach of confidence and that recordings and transcripts be destroyed – order failing to specify “particular matter” in relation to which approval given – fundamental requirement – whether approval valid – whether s 101 of the Criminal Justice Act 1989 ousted the Supreme Court’s power to make a declaration in relation to the conduct of CJC or officer – whether discretionary factors justified a refusal to make the declarations – where subsequent to the hearing the respondent commenced separate proceedings seeking damages for breach of confidence – whether administrative order may be amended under the rules of court – effect of s 119 of the Criminal Justice Act 1989 - criteria for application of the “slip rule” not made out

Criminal Justice Act 1989 (Qld) s 82, s 101, s 119, s 123

Invasion of Privacy Act 1971 (Qld), s 43(1)

Rules of the Supreme Court (Qld), O 32 r 12

Ainsworth v Criminal Justice Commission (1992) 175 CLR 564, referred to
Ancart Pty Ltd v Snowy River Council (1995) 39 NSWLR 78, cited
Attorney-General v Observer Limited [1990] 1 AC 109, cited
Australian Broadcasting Corporation v Samual Jacobs QC (1991) 56 SASR 274, cited
Bateman's Bay Local Aboriginal Land Council v Aboriginal Community Benefit Fund Pty Ltd (1998) 194 CLR 247, cited
Carruthers v Connolly [1998]…

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: [2000] QCA 511
Decision Date: 15 December 2000

CaseChat Overview and Summary

In the case of Heery v Criminal Justice Commission, the Court addressed a dispute concerning the use of listening devices by the Criminal Justice Commission (CJC) to record private conversations at the respondent's premises. The CJC had obtained an approval under section 82 of the Criminal Justice Act 1989 to use such devices. The Supreme Court made declarations and orders, finding that the devices were used without authority, which constituted a breach of confidence, and ordered the destruction of the recordings and transcripts. The appeal and cross-appeal centred on several key legal issues, including the validity of the approval given by the Supreme Court, the scope of the Court's power to make declarations about the conduct of the CJC or its officers, and the discretionary factors that might justify a refusal to make such declarations.

The Court examined the requirement that an approval must specify the "particular matter" for which it was granted. Given that the approval in question failed to meet this fundamental criterion, the Court held that the approval was invalid. Furthermore, the Court found that section 101 of the Criminal Justice Act 1989 did not oust the Supreme Court's power to make a declaration concerning the conduct of the CJC or its officers. Regarding the discretionary factors, the Court concluded that they did not justify a refusal to make the declarations. The Court also considered the effect of section 119 of the Criminal Justice Act 1989, which pertains to the amendment of administrative orders under the rules of court, and found that the criteria for applying the "slip rule" had not been met. Consequently, the Court determined that the order for the destruction of material was not valid.

Mr Heery's appeal was allowed, and the order of the Supreme Court for the destruction of material by the CJC was set aside. The cross-appeal of the CJC was dismissed. Additionally, the CJC was ordered to pay one-half of Mr Heery's costs of the appeal and cross-appeal, to be assessed.

Orders

Orders of the court

Mr Heery's appeal is allowed and the order of the Supreme Court for destruction of material by the Criminal Justice Commission is set aside. The cross-appeal of the Criminal Justice Commission is dismissed. The Criminal Justice Commission is to pay one-half of Mr Heery's costs of the appeal and cross-appeal to be assessed.

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:	Heery v CJC [2000] QCA 511
PARTIES:	MATTHEW PHILLIP HEERY (plaintiff/appellant/cross-respondent) v CRIMINAL JUSTICE COMMISSION (defendant/respondent/cross-appellant)
FILE NO/S:	Appeal No 3594 of 2000 Appeal No 3939 of 2000 SC No 9636 of 1997 OS No 11002 of 1997
DIVISION:	Court of Appeal
PROCEEDING:	General Civil Appeal Application for Extension of Time
ORIGINATING COURT:	Supreme Court at Brisbane
DELIVERED ON:	15 December 2000
DELIVERED AT:	Brisbane
HEARING DATE:	22 November 2000
JUDGES:	Davies and Thomas JJA, Douglas J Separate reasons for judgment of each member of the Court, each concurring as to the orders made
ORDER:	Mr Heery's appeal is allowed and the order of the Supreme Court for destruction of material by the Criminal Justice Commission is set aside. The cross-appeal of the Criminal Justice Commission is dismissed. The Criminal Justice Commission is to pay one-half of Mr Heery's costs of the appeal and cross-appeal to be assessed.
CATCHWORDS:	POST AND TELECOMMUNICATIONS – TELEPHONIC AND RELATED SERVICES – INTERCEPTION OF COMMUNICATIONS – IN GENERAL PROCEDURE – MISCELLANEOUS PROCEDURAL MATTERS – DECLARATIONS – JURISDICTION PROCEDURE – MISCELLANEOUS PROCEDURAL MATTERS – DECLARATIONS – APPROPRIATE FORM OF RELIEF – DISCRETION OF COURT – OTHER CASES PROCEDURE – JUDGMENTS AND ORDERS – AMENDING, VARYING AND SETTING ASIDE – CORRECTION UNDER “SLIP” RULE CRIMINAL LAW – FEDERAL AND STATE INVESTIGATIVE AUTHORITIES – QUEENSLAND - Criminal Justice Commission obtained an approval pursuant to s 82 of the Criminal Justice Act 1989 to use listening devices at the respondent’s premises – listening devices used to record private conversations – declarations and orders made in the Supreme Court that listening devices were used without authority, that their use amounted to a breach of confidence and that recordings and transcripts be destroyed – order failing to specify “particular matter” in relation to which approval given – fundamental requirement – whether approval valid – whether s 101 of the Criminal Justice Act 1989 ousted the Supreme Court’s power to make a declaration in relation to the conduct of CJC or officer – whether discretionary factors justified a refusal to make the declarations – where subsequent to the hearing the respondent commenced separate proceedings seeking damages for breach of confidence – whether administrative order may be amended under the rules of court – effect of s 119 of the Criminal Justice Act 1989 - criteria for application of the “slip rule” not made out Criminal Justice Act 1989 (Qld) s 82, s 101, s 119, s 123 Invasion of Privacy Act 1971 (Qld), s 43(1) Rules of the Supreme Court (Qld), O 32 r 12 Ainsworth v Criminal Justice Commission (1992) 175 CLR 564, referred to Ancart Pty Ltd v Snowy River Council (1995) 39 NSWLR 78, cited Attorney-General v Observer Limited [1990] 1 AC 109, cited Australian Broadcasting Corporation v Samual Jacobs QC (1991) 56 SASR 274, cited Bateman's Bay Local Aboriginal Land Council v Aboriginal Community Benefit Fund Pty Ltd (1998) 194 CLR 247, cited Carruthers v Connolly [1998]…