ABC v Assistant Commissioner Maurice Carless - [2024] QCATA 75

QUEENSLAND CIVIL AND
ADMINISTRATIVE TRIBUNAL

CITATION:

ABC v Assistant Commissioner Maurice Carless [2024] QCATA 75

PARTIES:

ABC

(appellant)

v

ASSISTANT COMMISSIONER MAURICE CARLESS

(respondent)

APPLICATION NO:

No APL 96 of 2023

ORIGINATING APPLICATION NO:

No OCR 87 of 2021

MATTER TYPE:

Appeals

DELIVERED ON:

1 August 2024

HEARING DATE:

21 June 2024

Further written submissions provided 2 July 2024 and 16 July 2024

HEARD AT:

Brisbane

DECISION OF:

Judicial Member Rinaudo AM

ORDERS:

1. Pursuant to s 146(c) of the Queensland Civil and Administrative Tribunal Act 2009 (Qld), the decision in proceeding number OCR 87 of 2021 made 8 March 2023 is set aside and the proceeding is remitted to the Tribunal for reconsideration.

CATCHWORDS:

POLICE — INTERNAL ADMINISTRATION — DISCIPLINE AND DISMISSAL FOR MISCONDUCT — where the appellant was dismissed from the police service for misconduct — where the appellant sought review of the decision — where the appellant now appeals the review decision — jurisdiction of the Appeal Tribunal to hear the appeal — matter remitted for reconsideration

ADMINISTRATIVE LAW — ADMINISTRATIVE TRIBUNALS — QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL — effect of Willmott v Carless on review and appeal proceedings — where decision below rendered not according to law — where the matter must be remitted

Crime and Corruption Act 2001 (Qld)

Queensland Civil and Administrative Tribunal Act 2009 (Qld)

ABC v Assistant Commissioner Maurice Carless [2023] QCAT 85

Aldrich v Ross [2001] 2 Qd R 235
Gunter v Assistant Commissioner Wilkins [2021] QCA 274

Willmott v Carless [2024] QCA 115

APPEARANCES & REPRESENTATION:

Applicant:

C R Gnech, solicitor of Gnech & Associates

Respondent:

M R Wilkinson instructed by QPS Legal

REASONS FOR DECISION

History

On 8 March 2023, a Tribunal published reasons in an appeal by the appellant, of a decision made by the respondent to dismiss the appellant from the Queensland Police Service.
The Tribunal, although not agreeing entirely with the original decision, affirmed the dismissal order.
The appeal before me was listed for hearing on 21 June 2024. On 14 June 2024 the Court of Appeal published a decision on a referral on a question of law from a Tribunal member as follows:
On the proper construction of s 20 of the Queensland Civil and Administrative [Tribunal] Act 2009 (Qld) and s 219Q of the Crime and Corruption Act 2001, on the Tribunal’s review of the First Respondent’s decisions is the Tribunal bound to make its own decision based on the evidence then before it, whether or not new evidence is received, or is its power to review predicated on there being first shown legal, factual or discretionary error in the decision below?”[1]
[1]Willmott v Carless [2024] QCA 115 (‘Willmott’), [2].
The Court of Appeal in Willmott, went on to describe the review in the following way:
The Tribunal member made the referral order because there appeared to be inconsistent decisions of the Court of Appeal on the nature of the Tribunal’s review of a decision on a police disciplinary…

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.

Continue reading ABC v Assistant Commissioner Maurice Carless

Details

AGLC: ABC v Assistant Commissioner Maurice Carless [2024] QCATA 75
Case: [2024] QCATA 75
Decision Date: 1 August 2024

CaseChat Overview and Summary

In the matter of ABC v Assistant Commissioner Maurice Carless, the appellant, a former police officer, contested the decision to dismiss him from the police service for misconduct. The Queensland Civil and Administrative Tribunal (QCAT) was tasked with reviewing the original decision to dismiss the appellant, and subsequently, the appellant appealed the QCAT’s review decision. The central issue before the court was whether the QCAT had the jurisdiction to hear the appeal and whether the QCAT's decision was rendered according to law, particularly in light of the case of Willmott v Carless. The court was also required to determine if the QCAT's review was conducted correctly and if the tribunal had misapplied the legal standards in assessing the original decision.

The court meticulously examined the QCAT’s reasoning and its reliance on precedent, particularly the decisions in Gunter v Assistant Commissioner Wilkins and Aldrich v Ross. The court found that the QCAT erred in its approach by not strictly adhering to the principles set out in Willmott v Carless, which delineate the boundaries of the tribunal's review powers. The QCAT had incorrectly framed its task as one of conducting a review rather than an appeal, thereby misapplying the relevant legal standards. The court concluded that the QCAT had not correctly identified whether there was an error in the original decision-making process. Instead, it had substituted its judgment for that of the original decision maker, which is not the function of a reviewing tribunal.

Consequently, the court held that the QCAT’s decision was not according to law and set aside the QCAT's determination. The matter was remitted back to the QCAT for reconsideration in accordance with the correct legal principles. This decision underscored the importance of tribunals strictly adhering to their jurisdictional boundaries and correctly applying the relevant legal standards when conducting reviews of administrative decisions.

ORDERS:
1. Pursuant to s 146(c) of the Queensland Civil and Administrative Tribunal Act 2009 (Qld), the decision in proceeding number OCR 87 of 2021 made 8 March 2023 is set aside and the proceeding is remitted to the Tribunal for reconsideration.

Orders

Orders of the court

1. Pursuant to s 146(c) of the Queensland Civil and Administrative Tribunal Act 2009 (Qld), the decision in proceeding number OCR 87 of 2021 made 8 March 2023 is set aside and the proceeding is remitted to the Tribunal for reconsideration.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

The Tribunal undertook an extensive consideration of the correct approach on review in that part of the Tribunal’s decision headed “Jurisdiction of the Tribunal”,[11] and in particular the decisions of Gunter v Assistant Commissioner Wilkins[12] and Aldrich v Ross.[13] As a result of which the Tribunal stated that:I intend to follow the authorities I have referred to, including Aldrich v Ross, which I do not consider has been overruled by the Court of Appeal in Gunter’s case.[14][11]ABC v Assistant Commissioner Maurice Carless [2023] QCAT 85 (Tribunal Decision), [60]–[89].[12][2021] QCA 274.[13][2001] 2 Qd R 235.[14]Tribunal Decision (n 8), [85]. The Tribunal, rejecting a submission by the respondent that error in the decision below must be found before a different finding can be made, said:The troubling aspect of the respondent’s analysis is that the Tribunal is charged with conducting a review, not an appeal. The authorities relied on by the respondent related to the function of an Appeal Court. The Tribunal stands in the shoes of the original decisionmaker and may perform the functions conferred on the Tribunal by the enabling Act. The Tribunal is not charged with correcting error.The task to be undertaken by the Tribunal is a review conducted by way of a rehearing with reference to a prescribed record. The authorities on which the Tribunal relies establishes that it is not necessary to identify error in the process or the reasoning that led to the decision being made. There is no presumption that the original decision is correct. Where submissions appear to suggest oversights and errors by the original decision maker in his decision making, those submissions are only relevant and accepted on the basis that they draw the attention of the Tribunal to matters of relevance and appropriate weight in a determination of what the correct and preferable decision is, not what the original decision maker got wrong.[15][15]Ibid, [82]–[83] (citations omitted). Having regard to Willmott, the Tribunal’s reliance on Aldrich was an error of law. The question the Tribunal member should have asked was not, “do I think the decision was right based on the evidence before me?” But rather, “did the original decision maker make a factual, legal or discretionary error on the evidence before the original decision maker empowering my jurisdiction to interfere? If so, what is my decision based on that evidence so constrained?” It is my view, that I cannot now go back and address the point on which the appellant is entitled to a decision, that is that there was an error below, nor can I be satisfied that the decision was made on the evidence available to the original decision maker. In my view the member’s approach does not amount to an initial decision according to law. According, the matter must be sent back for a rehearing in accordance with the law. I order that in in accordance with s 146(c) of the QCAT Act, I set aside the decision and return the matter to the tribunal for reconsideration according to law.

Ratio Decidendi

Legal Principle Established

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