Conder v. Baulch & Anor - [2008] QSC 110

SUPREME COURT OF QUEENSLAND

CITATION:

Conder v Baulch & Anor [2008] QSC 110

PARTIES:

RICHARD PHILIP CONDER
(applicant)
v
JOHN RICHARD BAULCH
(first respondent)
GARRY EDWIN HARLAND
(second respondent)

FILE NO:

SC No 11899 of 2007

DIVISION:

Civil

PROCEEDING:

Application

ORIGINATING COURT:

Supreme Court

DELIVERED ON:

29 July 2008

DELIVERED AT:

Brisbane

HEARING DATE:

28 July 2008

JUDGE:

Fryberg J

ORDER:

1) The decision of the Misconduct Tribunal made on 19 December 2007 is quashed with effect from that date.
2) The matter be referred to the Misconduct Tribunal for further consideration in accordance with the reasons of this judgment.
3) Direct that the Tribunal consider whether the matter should be reheard by a differently constituted Tribunal.

CATCHWORDS:

Police – Tribunals and other authorities – Misconduct Tribunal – Error of law – Failure to take into account relevant considerations

Misconduct Tribunals Act 1997 (Qld)
Police Service Administration Act 1990 (Qld) s 7.4(3)
Police Service (Discipline Regulations 1990 (Qld) s 10, s 12

Aldrich v Ross [2001] 2 Qd R 235, followed

COUNSEL:

Applicant: G Long SC with S McLeod
First Respondent: No appearance
Second Respondent: M Hinson SC

SOLICITORS:

Applicant: Queensland Police Service Solicitor
First Respondent: No appearance
Second Respondent: Byrne Legal Group

FRYBERG J: I have before me an application under the Judicial Review Act 1991 (“the JRA”) to review a decision of Mr Baulch SC made when sitting as a Misconduct Tribunal under the Misconduct Tribunals Act 1997 (“the MTA”). The applicant, Mr Conder, is the Deputy Commissioner of Police. The respondent, Mr Harland, is a Superintendent of Police. The proceedings relate to disciplinary action taken by Mr Conder against Mr Harland.

History of proceedings under review

By a letter dated 30 May 2007 Mr Conder directed Mr Harland to appear before him for consideration of what action in relation to the interests of the discipline of the police service, if any, should be taken under the provisions of s 7.4(3) of the Police Service Administration Act 1990 and s 10 of the Police Service (Discipline) Regulations 1990 upon a consideration of two matters particularised in the letter. The second of those matters is no longer relevant: Mr Conder found it was not substantiated. The first matter asserted four instances of sexual harassment of a female sergeant by making remarks with sexual connotations with reference to her breasts in front of other police officers. The evidence in support of that matter, consisting largely of transcripts of interviews by police officers with witnesses, was provided to Mr Harland and on 11 July he appeared before Mr Conder with his solicitor, pleaded not guilty and presented a comprehensive written submission in his own defence. The hearing was adjourned to a date to be fixed to allow Mr Conder time to consider that submission.

The hearing resumed on 31 August 2007. Before the resumption Mr Conder's findings were reduced to writing (62 pages) and a copy provided to Mr Harland. In them Mr Conder found the four instances in…

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 Conder v. Baulch & Anor

Details

AGLC: Conder v Baulch [2008] QSC 110
Case: [2008] QSC 110
Decision Date: 29 July 2008

CaseChat Overview and Summary

In the case of Conder v. Baulch & Anor, the plaintiff, Conder, a police officer, sought judicial review of a decision made by the Misconduct Tribunal. The dispute centred on the Tribunal's handling of an investigation into Conder's conduct, particularly regarding allegations of misconduct. The Federal Court of Australia was tasked with examining the Tribunal's decision-making process and the extent to which it complied with legal requirements.

The court had to determine whether the Tribunal erred in law by failing to take into account relevant considerations when making its decision. This involved assessing whether the Tribunal correctly applied the principles of natural justice and procedural fairness, and whether it appropriately considered all the evidence and submissions presented during the proceedings. The court also had to consider whether the Tribunal's decision was so flawed as to render it unjustifiable.

The court found that the Misconduct Tribunal had indeed made an error of law by not considering all relevant factors. The Tribunal had failed to give adequate weight to certain evidence and had not followed the correct legal framework. As a result, the court quashed the Tribunal's decision and ordered the matter to be referred back for further consideration. The court also suggested that the Tribunal might consider whether the matter should be reheard by a differently constituted Tribunal to ensure impartiality and fairness.

The court's final orders were that the decision of the Misconduct Tribunal made on 19 December 2007 be quashed with effect from that date. The matter was to be referred back to the Tribunal for reconsideration in light of the court's reasons. Additionally, the court directed that the Tribunal consider whether the matter should be reheard by a differently constituted Tribunal.

Orders

Orders of the court

1) The decision of the Misconduct Tribunal made on 19 December 2007 is quashed with effect from that date.

2) The matter be referred to the Misconduct Tribunal for further consideration in accordance with the reasons of this judgment.

3) Direct that the Tribunal consider whether the matter should be reheard by a differently constituted Tribunal.

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:	Conder v Baulch & Anor [2008] QSC 110
PARTIES:	RICHARD PHILIP CONDER (applicant) v JOHN RICHARD BAULCH (first respondent) GARRY EDWIN HARLAND (second respondent)
FILE NO:	SC No 11899 of 2007
DIVISION:	Civil
PROCEEDING:	Application
ORIGINATING COURT:	Supreme Court
DELIVERED ON:	29 July 2008
DELIVERED AT:	Brisbane
HEARING DATE:	28 July 2008
JUDGE:	Fryberg J
ORDER:	1) The decision of the Misconduct Tribunal made on 19 December 2007 is quashed with effect from that date. 2) The matter be referred to the Misconduct Tribunal for further consideration in accordance with the reasons of this judgment. 3) Direct that the Tribunal consider whether the matter should be reheard by a differently constituted Tribunal.
CATCHWORDS:	Police – Tribunals and other authorities – Misconduct Tribunal – Error of law – Failure to take into account relevant considerations Misconduct Tribunals Act 1997 (Qld) Police Service Administration Act 1990 (Qld) s 7.4(3) Police Service (Discipline Regulations 1990 (Qld) s 10, s 12 Aldrich v Ross [2001] 2 Qd R 235, followed
COUNSEL:	Applicant: G Long SC with S McLeod First Respondent: No appearance Second Respondent: M Hinson SC
SOLICITORS:	Applicant: Queensland Police Service Solicitor First Respondent: No appearance Second Respondent: Byrne Legal Group