ABC v Assistant Commissioner Maurice Carless - [2023] QCAT 85

QUEENSLAND CIVIL AND
ADMINISTRATIVE TRIBUNAL

CITATION:

ABC v Assistant Commissioner Maurice Carless [2023] QCAT 85

PARTIES:

ABC

(applicant)

v

Assistant Commissioner Maurice Carless

(respondent)

APPLICATION NO/S:

OCR087-21

MATTER TYPE:

Occupational regulation matters

DELIVERED ON:

8 March 2023

HEARING DATE:

9 May 2022

HEARD AT:

Brisbane

DECISION OF:

Acting Senior Member Fitzpatrick

ORDERS:

1.     The decision of the respondent made on 14 September 2020 is confirmed in relation to matter 1.

2.     The decision of the respondent made on 14 September 2020 is confirmed in relation to matter 2 insofar as the applicant made a false complaint about GHI to the Civil Aviation Safety Authority on 3 September 2014.

3.     The decision of the respondent made on 14 September 2020 is confirmed in relation to matter 2 insofar as the applicant made complaints about building work performed at GHI’s home to the Brisbane City Council.

4.     The decision of the respondent made on 14 September 2020 is confirmed in relation to matter 2 insofar as there is no finding of misconduct in relation to complaints made to CASA/Virgin Airlines in 2016.

5.     The decision of the respondent made on 14 September 2020 is confirmed in relation to matter 3.

6.     The decision of the respondent made on 14 September 2020 in relation to matter 4 is set aside. The Tribunal’s decision is substituted that the conduct alleged in matter 4 does not amount to misconduct.

7.     The decision of the respondent made on 14 September 2020 is confirmed in relation to matter 5.

8. Pursuant to s 66 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) the Tribunal prohibits publication of the contents of a document or other thing produced to the Tribunal, evidence given before the Tribunal and other information that may enable the child of the applicant to be identified.

CATCHWORDS:

POLICE – INTERNAL ADMINISTRATION – DISCIPLINE AND DISMISSAL FOR MISCONDUCT – QUEENSLAND – whether alleged conduct amounted to misconduct – whether the misconduct proceeding was validly commenced – noncompliance with statutory requirements may render disciplinary process invalid – delegation of authority and nomination – powers of reviewing officer

ADMINISTRATIVE LAW – ADMINISTRATIVE TRIBUNALS – QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL – reviewable decisions and conduct – the tribunal’s power to review the decision on disciplinary finding and proposed sanctions – tribunal’s review jurisdiction is the jurisdiction conferred on the tribunal by an enabling Act to review a decision made or taken to be made by another entity under that Act – where a decision the subject of review proceedings is not a lawful exercise of decision making power – where there is in fact a decision made or taken to be made in exercise of statutory powers – that decision will fall within the ambit of a decision taken to be made and within the power of the tribunal to review

ADMINISTRATIVE LAW – ADMINISTRATIVE TRIBUNALS – QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL – powers in review – enabling Act modifies the review powers of the tribunal –…

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: [2023] QCAT 85
Decision Date

CaseChat Overview and Summary

ABC, a former police officer, sought a review of disciplinary decisions made against him by the respondent, Assistant Commissioner Maurice Carless. The Tribunal confirmed the findings of misconduct in relation to four of the five matters. In relation to the fifth matter, the Tribunal substituted its decision that the conduct did not amount to misconduct. The applicant sought to withdraw admissions he had made in earlier proceedings, but the Tribunal found it did not have the power to permit late withdrawal of admissions. The Tribunal also found that the respondent had jurisdiction to review the decision despite possible irregularities in the process that led to the disciplinary proceedings. The Tribunal found that the respondent was required to make its own decision based on the evidence before it. The Tribunal's review jurisdiction was to be exercised by way of a rehearing on the original evidence. The Tribunal found that the evidence substantiated findings of misconduct in relation to four of the five matters. The applicant had engaged in acts of domestic violence against his ex-wife DEF. He had also made false complaints to the Civil Aviation Safety Authority and to the Brisbane City Council about his ex-wife's new partner GHI. The Tribunal found that the applicant had also sworn a false affidavit in relation to the conduct of GHI. The Tribunal did not find that the applicant's conduct towards school staff amounted to misconduct.

Orders