Tyler v Tullipan

[2001] QCA 447

[2001] QCA 447

COURT OF APPEAL

McPHERSON JA

No 9173 of 2001

PHILLIP ALEXANDER TYLER      First Respondent (Applicant)

and

MARGARET TULLIPAN     Third Respondent (First Respondent)

and

SOUTH QUEENSLAND COMMUNITY
CORRECTIONS BOARD     Second Respondent (Third Respondent)

CHIEF EXECUTIVE,
DEPARTMENT OF CORRECTIVE SERVICES
  Appellant (Fourth Respondent)

BRISBANE

..DATE 17/10/2001

JUDGMENT

McPHERSON JA:  This is an application for a stay pending an appeal in respect of an order for judicial review that was granted in the Supreme Court.  The question of law that it gives rise to proceeds from the introduction of the Corrective Services Act 2000, which came into force on
1 July 2001 and in doing so repealed the Corrective Services Act 1988.

The Act of 2000 introduced a different regime in some respects for dealing with prisoners who were looking forward to release on parole and home detention. Mr Tyler, who was the successful applicant, as I will continue to call him in these reasons, was a prisoner in that position. He claims that he is at common law or under s.20 of the ActsInterpretation Act 1954 entitled to retain the advantages he had under the repealed Act despite its repeal.

Under that Act he had what I will call an expectation that he would be released on home detention on or from 25 July.  However, under the new Act his release for home detention will be deferred to 25 November 2001.  Both eligibility dates, it will be noticed, fall after the introduction of the Act of 2000 on 1 July 2001. 

Needless to say the Act of 2000 failed expressly to provide for persons who were in the position of Mr Tyler. The question is therefore left to depend on general rules of interpretation at common law and under s.20. There are some provisions in the Act of 2000 that are arguably capable of applying, but at present I am not persuaded that they are capable of applying, or should be applied, to the state of affairs disclosed in this instance. The learned Judge in the Court below, Justice Atkinson, also took that view of the provisions in question.

Her Honour held that the applicant's rights were preserved at common law under the provisions of s.20 of the ActsInterpretation Act. It would be wrong for me to try to predict the likely outcome of the appeal beyond saying perhaps that there is authority that goes in support of either view of s.20 in this case.

At present, however, Mr Tyler has the advantage of having in his favour a decision to the effect that he has a right under the repealed Act that is preserved by the rules I have referred to.  The grounds put forward by the appellant for staying the order to review really come down to two.  One is that if the appeal succeeds Mr Tyler will have to surrender himself for a further period of imprisonment.

That, however, is a matter of which he is doubtless well aware and as to the risk of which he is quite able to make a mature decision of his own.  I would not grant the stay on the basis that he will have to be returned to the prison and reprocessed as a prisoner if the appeal succeeds.

The other ground that is relied on is that there are, or are estimated to be, some 59 other prisoners in the same or similar position to that of Mr Tyler.  If, as would not be surprising, they or many of them follow the applicant in making a similar application under the repealed Act, a degree of administrative chaos will ensue in the prison system.

I am not satisfied that it cannot, at least in part, be solved by providing more staff to deal with the problem that is said to be likely to arise; but plainly there will be the disadvantage of releasing and then, if the appeal succeeds, receiving and reprocessing a number of prisoners.

It is not, of course, the function of the judiciary to make the business of executive government more difficult or more complex than it is already.  It is, however, to my mind a novel proposition that a person may be deprived of a right that he has simply because others are likely to claim the same right and so cause administrative inconvenience.

Under our system of law courts do not deprive people of rights simply because others may, justifiably or not, lay claim to similar rights themselves.  The real vice in all this, if I may repeat myself in this particular, is the failure of the new legislation to provide expressly for the status or rights, or whatever they may be, that persons had under the repealed Act of 1998.  I would have thought that it would have been comparatively simple to incorporate an appropriate provision in the Act to determine whether the old rights or expectations survived beyond the repeal of the Act; but this, as in a number of other similar cases that have come before us, was not done here.

In all the circumstances I can see no proper basis for granting the stay in this case and I would consequently refuse it.  Two questions now follow.  One is the question of costs, which has, in part, been considered in argument; the other is the question of when a hearing of this appeal can be arranged.

So far as costs are concerned, Mr Logan, unless you have anything further to say, I will order that the respondent Mr Tyler's costs be paid by your client.  I will also order that the costs of the other parties be reserved to the Court that hears the appeal.  I turn now to the question of the timing of the hearing of this appeal.  Although I am not fully conversant with what has passed between the Registrar and one or more of the parties on this subject, my impression is that at present it is hoped that the matter can be heard in November.  I have a note from my Associate to the effect that the Registrar has advised that the only dates available for the hearing of this appeal in 2001 are 21, 22 and 23 November.
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McPHERSON JA:  I notify you that the date for hearing of the appeal will be 21 November this year.
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