Belz v Assistant Commissioner Wilson - [2012] QCATA 185

CITATION:

Belz v Assistant Commissioner Wilson [2012] QCATA 185

PARTIES:	Damien Anthony Belz (Applicant)
v
Assistant Commissioner Paul Wilson (Respondent)

APPLICATION NUMBER:

APL486-11

MATTER TYPE:

Appeals

HEARING DATE:

On the papers

HEARD AT:

Brisbane

DECISION OF:

Hon J Thomas AM QC, Member

DELIVERED ON:

21 June 2012

DELIVERED AT:

Brisbane

ORDERS MADE:

1. The applicant's application for leave to reopen a review of the respondent’s finding of substantiation of misconduct is dismissed.

2. The applicant's application for an order declaring the tribunal’s order of 4 April 2011 to be null and void is refused.

3. The applicant's application for leave to appeal against sanction is refused.

4. The applicant’s application for leave to appeal or appeal is dismissed.

CATCHWORDS:

APPEAL – Applicant sought review of substantiation and sanction – Applicant abandoned review of substantiation and by consent Tribunal ordered that review struck out – application to review the sanction dismissed – Applicant sought reopening and that previous Tribunal orders be declared void – relevance of Applicant’s psychological condition – relevance of advice about effect of cooperation, remorse and early plea of guilty – relevance of circumstance where Applicant’s actions exposed police service to public criticism

APPEARANCES and REPRESENTATION (if any):

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

REASONS FOR DECISION

I have been appointed to determine the present application on the papers.
It is an application by the respondent that certain claims for relief by the applicant be struck out under section 47 of the Queensland Civil and Administrative Tribunal Act 2009 (“the QCAT Act”), and that the applicant's application for leave to appeal be dismissed.
Earlier proceedings included a disciplinary proceeding in which the respondent found a charge of misconduct substantiated against the applicant and imposed a sanction demoting the applicant from Sergeant 3.3 to Senior Constable 2.9. The applicant (who will be referred to as "Mr Belz”) sought a review of both decisions, but in March 2011 instructed his legal representatives to abandon the review against substantiation and to proceed only with the review of sanction.
They acted accordingly, and consequently on 4 April 2011 the Tribunal ordered by consent that the application for review of the respondent’s decision to substantiate the matter be struck out.
Review of the sanction duly proceeded before Mr Richards, QCAT Member, in September 2011. His decision, given on 28 October 2011 was that the application to review the sanction be dismissed.
Mr Belz now seeks to appeal against that dismissal. He has changed his mind about abandoning review of the substantiation finding, and now seeks orders from this Tribunal as follows:
(a)to allow me to reopen this matter and contest the substantiation of the charges; and
(b)an order from the Tribunal that the previous orders made by the Tribunal are null and void.
The present application before me is the respondent’s application to strike out all items of relief sought by the…

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 Belz v Assistant Commissioner Wilson

Details

AGLC: Belz v Assistant Commissioner Wilson [2012] QCATA 185
Case: [2012] QCATA 185
Decision Date: 21 June 2012

CaseChat Overview and Summary

In Belz v Assistant Commissioner Wilson, the applicant sought to challenge the substantiation and subsequent sanction of a disciplinary finding against them. The case was before the tribunal which had earlier dismissed the applicant's review of the substantiation and sanction, and the applicant then sought to reopen the review and challenge the validity of the tribunal's previous orders. The tribunal had to determine whether the applicant's psychological condition, advice about the effects of cooperation, remorse and an early plea of guilty, and the public criticism faced by the police service due to the applicant's actions were relevant factors to consider in reopening the review.

The central legal issues involved whether the tribunal had jurisdiction to reopen a review that had already been dismissed, and if the circumstances presented by the applicant warranted such a reopening. Additionally, the court had to assess the relevance of the applicant's psychological condition and the impact of their actions on the police service to the reconsideration of the previous orders. The tribunal needed to examine whether these factors constituted exceptional circumstances that justified reopening the review and whether the applicant had a valid basis to challenge the tribunal's earlier orders.

The tribunal found that the applicant had not presented exceptional circumstances warranting the reopening of the review of the substantiation of misconduct. It was determined that the psychological condition of the applicant and the advice regarding cooperation, remorse, and an early plea of guilty did not constitute grounds for reopening the review. Furthermore, the public criticism faced by the police service due to the applicant's actions was not deemed a sufficient factor to warrant reconsideration. Consequently, the tribunal dismissed the applicant's application to reopen the review, refused the application to declare the previous tribunal orders null and void, and dismissed the application for leave to appeal against the sanction.

The tribunal's orders reflected its decision to uphold the previous findings and sanctions. The applicant's request for leave to reopen the review of the substantiation of misconduct was dismissed, and the application to declare the previous tribunal orders null and void was refused. Additionally, the application for leave to appeal against the sanction was denied, and the overall application for leave to appeal or appeal was dismissed. These orders finalized the tribunal's stance on the applicant's attempts to challenge the disciplinary findings and sanctions.

Orders

Orders of the court

1. The applicant's application for leave to reopen a review of the respondent’s finding of substantiation of misconduct is dismissed.

2. The applicant's application for an order declaring the tribunal’s order of 4 April 2011 to be null and void is refused.

3. The applicant's application for leave to appeal against sanction is refused.

4. The applicant’s application for leave to appeal or appeal is dismissed.

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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