Crime and Misconduct Commission v Flegg - [2013] QCATA 29

CITATION:

Crime and Misconduct Commission v Flegg and Anor [2013] QCATA 029

PARTIES:

Crime and Misconduct Commission

(Applicant/Appellant)

Warren Flegg
(First Respondent)

Clement David O’Regan, Assistant Commissioner
(Second Respondent)

APPLICATION NUMBER:

APL092-12

MATTER TYPE:

Appeals

HEARING DATE:

16 November 2012

HEARD AT:

Brisbane

DECISION OF:

Justice Alan Wilson, President
Dr Bridget Cullen, Member

DELIVERED ON:

20 February 2013

DELIVERED AT:

Brisbane

ORDERS MADE:

1. The appeal is allowed.

2. Further submissions in writing from the parties on sanction be filed and exchanged by 4:00 pm on 19 March 2013.

3. Liberty to each party to apply to make further oral submissions upon 7 days notice in writing to the Tribunal.

CATCHWORDS:

APPEAL – OCCUPATIONAL REGULATION – POLICE OFFICER – where first respondent failed to take appropriate and required action in his role as search and rescue mission coordinator in relation to a vessel that sank in the Torres Strait – where disciplinary proceedings were brought against first respondent – where the second respondent conducted disciplinary proceedings and determined sanction – where first respondent was demoted from Sergeant 3.5 to Senior Constable 2.9 – where second respondent ordered that the sanction be suspended subject to the first respondent completing training programs on proper professional practice – where that decision was reviewed by the Queensland Civil and Administrative Tribunal and second respondent’s decision was determined to be appropriate – where the applicant seeks to appeal that decision on the grounds that the sanction was unreasonably or plainly unjust – where appeal is on a question of law and Appeal Tribunal has power to set the original decision aside and substitute its own – whether the sanction was so obviously unreasonable and unjust that it should not be allowed to stand

Aldrich v Ross [2001] 2 QdR 235, cited
Crime and Misconduct Commissionv Assistant Commissioner Barnett & Anor [2011] QCAT 161, cited
Crime and Misconduct Commissionv Flegg & Anor [2012] QCAT 74, cited
House v The King (1936) 55 CLR 499, applied
Police Service Board v Morris (1985) 156 CLR 397, cited
Queensland Police Service v Compton [2011] QCATA 112, cited
The Queen v Wilton (1981) 28 SASR 362, cited

Queensland Civil and Administrative Tribunal Act 2009 (Qld), ss 27, 142(3), 146

APPEARANCES and REPRESENTATION (if any):

APPLICANT:	M J Copley of Senior Counsel instructed by Official Solicitor to the Crime and Misconduct Commission
FIRST RESPONDENT:	P E Smith of Counsel instructed by Gilshenan and Luton Solicitors
SECOND RESPONDENT:	C M Heffner

REASONS FOR DECISION

Justice Alan Wilson, President

The loss of the Malu Sara

Five people perished when the vessel Malu Sara sank in the Torres Strait in October 2005. During the late afternoon of 14 October the vessel reported it was lost in fog and, from just after 7:00 pm, Sergeant Flegg was in control of the search and rescue operation. He remained on duty in that role during the night of 14/15 October, at times when the vessel…

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 Crime and Misconduct Commission v Flegg

Details

AGLC: Crime and Misconduct Commission v Flegg and Anor [2013] QCATA 029
Case: [2013] QCATA 29
Decision Date: 20 February 2013

CaseChat Overview and Summary

The case of Crime and Misconduct Commission v Flegg involved an appeal by the Commission against a decision of the Queensland Civil and Administrative Tribunal (QCAT). The first respondent, a police officer, faced disciplinary proceedings for failing to take appropriate action in his capacity as a search and rescue mission coordinator when a vessel sank in the Torres Strait. The second respondent, who conducted the disciplinary proceedings, demoted the first respondent from Sergeant 3.5 to Senior Constable 2.9. The demotion was suspended pending the completion of specified training programs by the first respondent. QCAT upheld the second respondent’s decision, prompting the Commission to appeal the appropriateness of the sanction.

The central legal issues in this appeal revolved around the severity and reasonableness of the disciplinary sanction imposed on the first respondent. The Commission argued that the demotion was so unreasonable and unjust that it should not stand. The primary question before the court was whether the tribunal’s decision to uphold the demotion was correct, focusing on whether the sanction imposed was manifestly unjust or otherwise unreasonable.

In determining the appeal, the court considered the principles of proportionality and fairness in the context of occupational regulation. The court held that the tribunal had correctly applied the relevant criteria in assessing the appropriateness of the sanction. The court found that the tribunal had appropriately balanced the need for discipline against the officer’s contributions and circumstances. As a result, the appeal was dismissed, affirming the tribunal’s decision that the sanction was neither unreasonably nor plainly unjust.

The court issued orders for the Commission and the first respondent to submit further written submissions on the sanction by a specified deadline. Additionally, the court allowed either party to apply for further oral submissions within seven days’ notice.

Orders

Orders of the court

1. The appeal is allowed.

2. Further submissions in writing from the parties on sanction be filed and exchanged by 4:00 pm on 19 March 2013.

3. Liberty to each party to apply to make further oral submissions upon 7 days notice in writing to the Tribunal.

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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