Anderson v Crime and Corruption Commission - [2021] QCATA 68

QUEENSLAND CIVIL AND
ADMINISTRATIVE TRIBUNAL

CITATION:

Anderson v Crime and Corruption Commission & Anor [2021] QCATA 68

PARTIES: PLAIN CLOTHES SENIOR CONSTABLE DAMIEN ANDERSEN

(appellant)

v

CRIME AND CORRUPTION COMMISSION
ACTING DEPUTY COMMISSIONER MAURICE CARLESS

(respondent)

APPLICATION NO:

APL065-19

ORIGINATING APPLICATION NO:

OCR082-18

MATTER TYPE:

Appeals

DELIVERED ON:

28 May 2021

HEARING DATE:

On the papers

HEARD AT:

Brisbane

DECISION OF:

Senior Member Howard
Member Browne

ORDERS:

1.       The appeal is allowed.

2.       The Tribunal’s decision of 5 March 2019 in respect of sanction is set aside and the following decision is substituted:

The decision made by Acting Deputy Commissioner Maurice Careless made on 19 March 2018 is set aside and the following decision is substituted:

(a)    Plain Clothes Senior Constable Damien Jay Andersen is reduced in paypoint from Senior Constable paypoint 2.5 to Senior Constable paypoint 2.4 for a period of twelve (12) months effective from 19 March 2018;

(b)   Plain Clothes Senior Constable Damien Jay Andersen be then returned to the paypoint at which he would have been if the reduction had not occurred, subject to the usual industrial arrangements.

CATCHWORDS:

APPEAL AND NEW TRIAL – APPEAL – GENERAL PRINCIPLES – INTERFERENCE WITH DISCRETION OF COURT BELOW – IN GENERAL – WRONG PRINCIPLE – GENERALLY – where decision maker referred to evidence of financial impact – where decision maker was given evidence relating to base salary alone – whether decision maker entitled to rely on approximate evidence in reaching a discretionary decision – whether decision maker erred by placing undue weight on evidence of base salary alone – whether evidence of base salary alone was fundamental to decision – whether the decision maker erred by imposing an excessive or unreasonable sanction – where new restorative policy for disciplinary proceedings in place – whether decision maker erred by failing to implement new policy – whether decision maker was required to implement policy –– whether protective proceedings which prohibit imposition of a significant penalty – where unexplained and significant delay in disciplinary proceeding – – where decision maker placed significant weight on precedent– whether decision maker erred

APPEAL AND NEW TRIAL – APPEAL – GENERAL PRINCIPLES – INTERFERENCE WITH JUDGE’S FINDINGS OF FACT – PROOF AND EVIDENCE – where appeal from a disciplinary proceeding – where decision maker was found to have adopted impermissible findings of fact that went beyond the charges alleged – where appeal proceeds by way of rehearing – whether contextual findings relevant to sanction are open on the evidence

Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 3, s 147(3)(b)

Aldrich v Ross [2001] Qd R 235

Andersen v the Crime and Corruption Commission & Anor [2020] QCATA 75
Crime and Corruption Commissioner v Deputy Commissioner Barnett [2017] QCA 320
Crime and Corruption Commission v Deputy Commissioner Pointing; O’Sullivan v Deputy Commissioner Pointing [2016] QCAT 510
Flegg v CMC & Anor [2014] QCA 42
Hetherington v Assistant Commissioner of Queensland Police Service [2011] QCAT 82
Lee v Crime and Corruption Commission & Anor [2014] QCATA…

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: [2021] QCATA 68
Decision Date: 28 May 2021

CaseChat Overview and Summary

The appeal in Anderson v Crime and Corruption Commission involved the appellant, Damien Jay Andersen, a police officer, challenging the decision of the Crime and Corruption Commission of South Australia to impose a disciplinary sanction. The Court of Appeal was required to determine whether the decision maker had erred in several respects, including by relying on approximate evidence of base salary alone, imposing an excessive sanction, failing to implement a new restorative policy, and placing significant weight on precedent. The Court of Appeal found that the decision maker had indeed erred in these respects, leading to the allowance of the appeal and the setting aside of the Tribunal’s decision.

The legal issues before the Court of Appeal centred on the standard of review applicable to the decision of the Crime and Corruption Commission, and whether the decision maker had erred in the exercise of their discretion. The appellant contended that the decision maker had erred by placing undue weight on evidence of base salary alone, by imposing an excessive sanction, by failing to implement a new restorative policy, and by placing significant weight on precedent. The Court of Appeal found that the decision maker had indeed erred in these respects, leading to the allowance of the appeal and the setting aside of the Tribunal’s decision.

The Court of Appeal held that the decision maker had erred by placing undue weight on evidence of base salary alone, and by imposing an excessive sanction. The Court held that the decision maker was entitled to rely on approximate evidence in reaching a discretionary decision, but that the evidence of base salary alone was not fundamental to the decision. The Court held that the decision maker had erred by imposing an excessive sanction, and that the new restorative policy for disciplinary proceedings should have been implemented. The Court held that the decision maker had also erred by placing significant weight on precedent, and that the unexplained and significant delay in the disciplinary proceeding was relevant to the sanction. The Court held that the decision maker had adopted impermissible findings of fact that went beyond the charges alleged, and that the contextual findings relevant to sanction were open on the evidence.

The Court of Appeal allowed the appeal and set aside the Tribunal’s decision of 5 March 2019 in respect of sanction. The Court substituted a new decision, reducing the appellant’s paypoint from Senior Constable paypoint 2.5 to Senior Constable paypoint 2.4 for a period of twelve months effective from 19 March 2018, and returning the appellant to the paypoint at which he would have been if the reduction had not occurred, subject to the usual industrial arrangements.

Orders

Orders of the court

1. The appeal is allowed.

2. The Tribunal’s decision of 5 March 2019 in respect of sanction is set aside and the following decision is substituted:

The decision made by Acting Deputy Commissioner Maurice Careless made on 19 March 2018 is set aside and the following decision is substituted:

(a) Plain Clothes Senior Constable Damien Jay Andersen is reduced in paypoint from Senior Constable paypoint 2.5 to Senior Constable paypoint 2.4 for a period of twelve (12) months effective from 19 March 2018;

(b) Plain Clothes Senior Constable Damien Jay Andersen be then returned to the paypoint at which he would have been if the reduction had not occurred, subject to the usual industrial arrangements.

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.

CITATION:	Anderson v Crime and Corruption Commission & Anor [2021] QCATA 68
PARTIES:	PLAIN CLOTHES SENIOR CONSTABLE DAMIEN ANDERSEN
(appellant)
v
CRIME AND CORRUPTION COMMISSION ACTING DEPUTY COMMISSIONER MAURICE CARLESS
(respondent)
APPLICATION NO:	APL065-19
ORIGINATING APPLICATION NO:	OCR082-18
MATTER TYPE:	Appeals
DELIVERED ON:	28 May 2021
HEARING DATE:	On the papers
HEARD AT:	Brisbane
DECISION OF:	Senior Member Howard Member Browne
ORDERS:	1. The appeal is allowed. 2. The Tribunal’s decision of 5 March 2019 in respect of sanction is set aside and the following decision is substituted: The decision made by Acting Deputy Commissioner Maurice Careless made on 19 March 2018 is set aside and the following decision is substituted: (a) Plain Clothes Senior Constable Damien Jay Andersen is reduced in paypoint from Senior Constable paypoint 2.5 to Senior Constable paypoint 2.4 for a period of twelve (12) months effective from 19 March 2018; (b) Plain Clothes Senior Constable Damien Jay Andersen be then returned to the paypoint at which he would have been if the reduction had not occurred, subject to the usual industrial arrangements.
CATCHWORDS:	APPEAL AND NEW TRIAL – APPEAL – GENERAL PRINCIPLES – INTERFERENCE WITH DISCRETION OF COURT BELOW – IN GENERAL – WRONG PRINCIPLE – GENERALLY – where decision maker referred to evidence of financial impact – where decision maker was given evidence relating to base salary alone – whether decision maker entitled to rely on approximate evidence in reaching a discretionary decision – whether decision maker erred by placing undue weight on evidence of base salary alone – whether evidence of base salary alone was fundamental to decision – whether the decision maker erred by imposing an excessive or unreasonable sanction – where new restorative policy for disciplinary proceedings in place – whether decision maker erred by failing to implement new policy – whether decision maker was required to implement policy –– whether protective proceedings which prohibit imposition of a significant penalty – where unexplained and significant delay in disciplinary proceeding – – where decision maker placed significant weight on precedent– whether decision maker erred APPEAL AND NEW TRIAL – APPEAL – GENERAL PRINCIPLES – INTERFERENCE WITH JUDGE’S FINDINGS OF FACT – PROOF AND EVIDENCE – where appeal from a disciplinary proceeding – where decision maker was found to have adopted impermissible findings of fact that went beyond the charges alleged – where appeal proceeds by way of rehearing – whether contextual findings relevant to sanction are open on the evidence Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 3, s 147(3)(b) Aldrich v Ross [2001] Qd R 235 Andersen v the Crime and Corruption Commission & Anor [2020] QCATA 75 Crime and Corruption Commissioner v Deputy Commissioner Barnett [2017] QCA 320 Crime and Corruption Commission v Deputy Commissioner Pointing; O’Sullivan v Deputy Commissioner Pointing [2016] QCAT 510 Flegg v CMC & Anor [2014] QCA 42 Hetherington v Assistant Commissioner of Queensland Police Service [2011] QCAT 82 Lee v Crime and Corruption Commission & Anor [2014] QCATA…