Crime & Misconduct Commission v Assistant Commissioner J P Swindells & Ors (No 2) [2009] QSC 411

1-1 4th Floor, The Law Courts, George Street, Brisbane, Q. 4000 Telephone: (07) 3247 4360 Fax: (07) 3247 5532 WARNING: The publication of information or details likely to lead to the identification of persons in some proceedings is a criminal offence. This is so particularly in relation to the identification of children who are involved in criminal proceedings or proceedings for their protection under the Child Protection Act 1999, and complainants in criminal sexual offences, but is not limited to those categories. You may wish to seek legal advice before giving others access to the details of any person named in these proceedings. [2009] QSC 411 SUPREME COURT OF QUEENSLAND CIVIL JURISDICTION APPLEGARTH J No 9405 of 2009 CRIME AND MISCONDUCT COMMISSION Applicant and ASSISTANT COMMISSIONER J P SWINDELLS First Respondent and CONSTABLE PATRICK BRIAN GARDINER Second Respondent and PETER J BYRNES, MEMBER, Third Respondent MISCONDUCT TRIBUNAL BRISBANE ..DATE 15/12/2009 JUDGMENT -- 1 of 3 -- 15122009 D.1 T(1)1/LU (BNE) M/T BRIS10 (Applegarth J) 1-2 JUDGMENT 1 10 20 30 40 50 60 HIS HONOUR: In this matter, the orders of the Court will be: 1. The decision of the Misconduct Tribunal made on 31 July 2009 to dismiss the applicant's appeal in respect of matters 1 and 2 is set aside; 2. The matter is referred to the Queensland Civil and Administrative Tribunal. I publish my reasons. ... HIS HONOUR: In this matter, an issue as to costs arises. Costs are in the discretion of the Court. The ordinary rule is that costs should follow the event, and the fact that a successful party has not succeeded on all of the grounds relied upon by it is not ordinarily a reason to deprive it of costs. In this matter, the applicant raised numerous grounds upon which to challenge the decision under review and has succeeded on only a few, although I found it unnecessary to consider some matters. However, substantial grounds of attack failed. That does not ordinarily deprive a successful applicant of its entitlement to costs. However, here one basis upon which the applicant succeeded was what I found to be inadequate reasons, and those inadequacies should not necessarily be visited upon the second respondent, although the second respondent sought -- 2 of 3 -- 15122009 D.1 T(1)1/LU (BNE) M/T BRIS10 (Applegarth J) 1-3 JUDGMENT 1 10 20 30 40 50 60 to uphold the adequacy of the reasons. That is an understandable response in the circumstances. The matter also involves some broader issues concerning the approach of the Misconduct Tribunal, or its successor, the Queensland Civil and Administrative Tribunal, in dealing with such matters, and that public interest consideration also is a factor that I take into account. Having regard to the relevant factors that I have identified, I consider that an appropriate order in the circumstances is that there be no order as to costs. ----- -- 3 of 3 --