Assistant Commissioner Brian JA Wilkins v Gunter - [2020] QCATA 101

QUEENSLAND CIVIL AND
ADMINISTRATIVE TRIBUNAL

CITATION:

Assistant Commissioner Brian JA Wilkins & Anor v Gunter [2020] QCATA 101

PARTIES:
ASSISTANT COMMISSIONER BRIAN JA WILKINS

CRIME AND CORRUPTION COMMISSION

(applicants)

v

JOSHUA GUNTER

(respondent)

APPLICATION NO/S:

APL305-19

ORIGINATING APPLICATION NO/S:

OCR114-19

MATTER TYPE:

Appeals

DELIVERED ON:

30 June 2020

HEARING DATE:

On the papers

HEARD AT:

Brisbane

DECISION OF:

Deputy President Judge Allen QC
Member Browne

ORDERS:
The Crime and Corruption Commission is joined as an applicant in the proceeding APL305-19.

THE APPEAL TRIBUNAL DIRECTS THAT:

1. Unless otherwise directed, the Crime and Corruption Commission is limited to making submissions in respect of the grounds of appeal identified in the application for leave to appeal or appeal filed 11 November 2019 and the supporting submissions filed by Assistant Commissioner Brian JA Wilkins.

CATCHWORDS:
PROCEDURE – CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS – JOINDER OF CAUSES OF ACTION AND OF PARTIES – PARTIES – GENERALLY – where party seeks to be joined as applicant to appeal proceeding – whether statutory role provides an interest in the proceedings – whether there is power to limit a party’s role in the proceedings – whether a party’s role should be limited

Queensland Civil and Administrative Tribunal Act 2009 (Qld) s 3, s 28, s 42, s 62, schedule 3

Crime and Corruption Act 2001 (Qld) s 33, s 37, s 219H

Australian Securities Commission v Bell (1991) 32 FCR 517

Bhamjee v Forsdick (No 2) [2004] 1 WLR 88
Crime and Misconduct Commission v Wilson and Anor [2012] QCA 314
Cocker v Tempest (1841) 7 M & W 502
Commissioner of Police, New South Wales Police Force v Fine [2014] NSWCA 327
Cuttler v Browne & Anor [2010] QCA 346
Officer Carey v Assistant Commissioner Mickelson
[2019] QCAT 109
Shafer v Acting Deputy Commissioner Tony Wright [2020] QCAT 108
Kioa v West (1985) 159 CLR 550
Aon Risk Services Aust Ltd v Australian National University (2009) 239 CLR 175

APPEARANCES:

This matter was heard and determined on the papers pursuant to s 32 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld)

REASONS FOR DECISION

Assistant Commissioner Brian Wilkins (‘Assistant Commissioner’) seeks to appeal against the Tribunal’s decision made in its review jurisdiction setting aside the Assistant Commissioner’s finding that one matter of misconduct presented against Joshua Gunter is substantiated.[1] Relevantly, the Tribunal below conducted a fresh hearing on the merits and substituted its own decision in finding that Matter 1 set out in the disciplinary proceedings notice dated 23 November 2018 is not substantiated.
[1]Decision of the Tribunal dated 15 October 2019. See s 219H of the Crime and Corruption Commission Act 2001 (Qld) and s 18 and s 20 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld).
The parties to the review proceeding below were Mr Gunter as the applicant and the Assistant Commissioner as the respondent decision-maker. The review proceeding concerned Mr Gunter’s conduct as a police officer and allegations that between 9 November 2016 and 16 February…

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: [2020] QCATA 101
Decision Date: 30 June 2020

CaseChat Overview and Summary

The case of Assistant Commissioner Brian JA Wilkins v Gunter involves a dispute where the Crime and Corruption Commission sought to join the proceedings as an applicant. The matter was before the Administrative Appeals Tribunal, which had to decide if the Commission had an interest in the proceedings and if its role could be limited. This decision came about as the Commission aimed to participate in an appeal against a decision made by the NSW Police Commissioner. The primary legal issue was whether the Commission could join the appeal as an applicant and, if so, whether its involvement should be limited to specific grounds of appeal.

The Tribunal considered whether the Commission's statutory role provided it with an interest in the proceedings and if there was any authority to restrict its role. It examined the relevant legislative provisions and case law to determine the extent to which the Commission could participate. The Tribunal concluded that the Commission did have an interest in the proceedings because its statutory functions could be affected by the outcome of the appeal. However, the Tribunal found that it had the power to limit the Commission’s role in the proceedings. It reasoned that limiting the Commission's participation to the specific grounds of appeal mentioned in the initial application and supporting submissions would ensure that the appeal process remained focused and efficient.

As a result, the Tribunal decided to join the Crime and Corruption Commission as an applicant in the proceeding APL305-19 but directed that it could only make submissions in respect of the grounds of appeal identified in the application for leave to appeal or appeal filed on 11 November 2019, and the supporting submissions filed by Assistant Commissioner Brian JA Wilkins. This decision balances the Commission's interest in the proceedings with the need to maintain a streamlined and focused appeal process.

Orders

Orders of the court

The Crime and Corruption Commission is joined as an applicant in the proceeding APL305-19.

THE APPEAL TRIBUNAL DIRECTS THAT:

1. Unless otherwise directed, the Crime and Corruption Commission is limited to making submissions in respect of the grounds of appeal identified in the application for leave to appeal or appeal filed 11 November 2019 and the supporting submissions filed by Assistant Commissioner Brian JA Wilkins.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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