Tyler v Tullipan

Case [2001] QSC 379

SUPREME COURT OF QUEENSLAND

CITATION: Tyler v Tullipan & Ors [2001] QSC 379
PARTIES: PHILLIP ALEXANDER TYLER
(applicant)
AND
MARGARET TULLIPAN
(first respondent)
QUEENSLAND COMMUNITY CORRECTIONS BOARD
(second respondent)
SOUTH QUEENSLAND REGIONAL COMMUNITY CORRECTIONS BOARD
(third respondent)
THE CHIEF EXECUTIVE OFFICER OF THE QUEENSLAND CORRECTIVE SERVICES BOARD
(fourth respondent)
FILE NO/S: S5787 of 2001
DIVISION: Trial
PROCEEDING: Application
ORIGINATING COURT:

Supreme Court at Brisbane
DELIVERED ON: 10 October 2001
DELIVERED AT: Brisbane
HEARING DATE: 20 September 2001
JUDGES: Atkinson J
ORDER: Application allowed
CATCHWORDS:

STATUTES – ACTS OF PARLIAMENT – REPEAL – Application for statutory order of review of Board’s failure to process application – where application made for release on home detention under an Act – where Act repealed before determination – whether right for application to be determined under repealed Act had accrued

Acts Interpretation Act 1954, s 4, s 20(2)(b), s 20(2)(c), s 20(2)(d), s 20(2)(e), s.20(3), s 20C(3)
Corrective Services Act 1988, s 86, s 139(1), s 139(2),
Corrective Services Act 2000, s 134(1)(a), s 135(2)(e), s141, s 142, s 143, s 144, s 268, s 273, s 275, s 276
Legislative Standards Act 1992, s 4, s 4(3)(g)
Penalties and Sentences Act 1992, s 157, s 157(2)

Abbott v Minister for Lands [1895] AC 425, referred to

Australian Coal and Shale Employees Federation v Aberfield Coal Mining Co Ltd (1942) 66 CLR 161, referred to
Benson & Ors v Chief Executive, Department of Corrective Services [2001] QSC 159, SC No 734 of 2001, 14 May 2001, referred to
Benson & Ors v Chief Executive, Department of Corrective Services [2001] QCA 303, CA No 5208 of 2001, 27 July 2001, referred to
Continental Liqueurs Pty Ltd v G.F. Heublein and Bro Inc (1960) 103 CLR 422, referred to
Colonial Sugar Refinery Co v Irving [1905] AC 369, referred to
Director of Public Works v Ho Po Sang [1961] AC 901, referred to
Esber v The Commonwealth (1992) 174 CLR 430, considered
Free Lanka Insurance Co Ltd v Ranasinghe [1964] AC 541, referred to
In re Athlumney; Ex parte Wilson [1898] 2 QB 547, considered
Mathieson v Burton (1971) 124 CLR 1, referred to

Maxwell v Murphy (1957) 96 CLR 261, considered

McCasker v Queensland Corrective Services Commission [1998] 2 Qd R 261, referred to
Newell v The King (1936) 55 CLR 707, referred to
R v Mason and Saunders [1997] QCA 421, referred to
R v Staines [1999] QCA 311, CA No 462 of 1998, 10 August 1999, referred to
Repatriation Commission v Keeley [2000] FCA 532, 28 April 2000, referred to

Robertson v City of Nunawading [1973] VR 819, referred to

Williams v Qld Community Corrections Brd [2000] QCA 75, CA No 6237 of 1999, 17 March 2000, considered
COUNSEL: SA Lynch for the applicant
JA Logan SC for the first and fourth respondents
DP O’Gorman for the third respondent
SOLICITORS: Jacobson Mahony Lawyers for the applicant
Crown…

Continue reading Tyler v Tullipan

Sign in free to access the full text

Details
AGLC
Tyler v Tullipan [2001] QSC 379
Case
[2001] QSC 379
Decision Date

CaseChat Overview and Summary

In Tyler v Tullipan, the applicant, Mr Tyler, sought a statutory order of review against the Board's failure to process his application for release on home detention. The application was made under an Act, which was subsequently repealed before the Board determined the matter. The primary issue for the court was whether the right for the application to be determined under the repealed Act had accrued at the time of repeal. The court had to determine whether the applicant had a vested right to have his application processed under the old Act, even though it was repealed.

The court examined the principles of statutory interpretation and vested rights in relation to the repeal of legislation. It considered whether the applicant's application had reached a stage where it could be considered a substantive right that could not be affected by subsequent legislative changes. The court also looked at relevant case law and statutory provisions to ascertain whether the applicant had a vested right to have his application determined under the repealed Act.

After considering the arguments and authorities, the court concluded that the applicant had indeed acquired a vested right to have his application processed under the repealed Act. The court found that the applicant's application had progressed to a stage where it was no longer contingent on the continued existence of the Act, and therefore, the applicant had a substantive right that could not be extinguished by the repeal of the Act. Consequently, the court allowed the application for a statutory order of review, directing the Board to process the applicant's application for release on home detention under the repealed Act.

Orders

Orders of the court

Application allowed

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.