Crime and Misconduct Commission v. McLennan & Ors - [2008] QSC 23

SUPREME COURT OF QUEENSLAND

CITATION:

Crime and Misconduct Commission v McLennan & Ors [2008] QSC 23

PARTIES:

CRIME AND MISCONDUCT COMMISSION
(applicant)
v
MARGARET McLENNAN
(first respondent)
and
ACTING COMMISSIONER RICHARD P CONDER
(second respondent)
and
CONSTABLE SONIA MARICE THOMSEN
(third respondent)

FILE NO:

2593/07

DIVISION:

Trial Division

PROCEEDING:

Application for Judicial Review

ORIGINATING COURT:

Supreme Court of Queensland

DELIVERED ON:

22/2/08

DELIVERED AT:

Brisbane

HEARING DATE:

5/10/07

JUDGE:

Daubney J

ORDER:

1. Application dismissed;

2. That the applicant pay the respondent’s costs of and incidental to the application, to be assessed on the standard basis.

CATCHWORDS:

ADMINISTRATIVE LAW – JUDICIAL REVIEW – GROUNDS OF REVIEW – ERROR OF LAW – whether the first respondent acted erroneously in the application of comparable judgments – whether the second respondent acted ultra vires in suspending a sanction of dismissal

ADMINISTRATIVE LAW – JUDICIAL REVIEW – GROUNDS OF REVIEW – IRRELEVANT CONSIDERATIONS - whether the first respondent erred in considering the third respondent’s length of service in determining the penalty to be imposed

ADMINISTRATIVE LAW – JUDICIAL REVIEW – GROUNDS OF REVIEW – UNREASONABLENESS – whether the weight given by the first respondent to factors of mitigation and dishonesty was so disproportionate as to render the decision manifestly unreasonable

Aldrich v Ross [2001] 2 Qd R 235, considered
Attorney-General (NSW) v Quin (1989-1990) 170 CLR 1, considered
Collector of Customs v Pozzolanic (1993) 43 FCR 280, applied
Garland v Chief Executive Department of Corrective Services [2006] QSC 245, applied
House v The King (1936) 55 CLR 499, cited
Minister for Aboriginal Affairs v Peko-Wallsend (1985-1986) 162 CLR 24, applied
Minister for Immigration and Ethnic Affairs v Liang (1996) 185 CLR 259, cited
Police Service Board v Morris (1985) 156 CLR 397, cited
Queensland Law Society v Bax [1998] QCA 89, considered

Judicial Review Act 1991(Qld)
Misconduct Tribunal Act 1999 (Qld)
Police Service Administration Act 1990 (Qld)
Police Service (Discipline) Regulations 1990 (Qld)

COUNSEL:

J C Dwyer for the applicant
PE Smith for the third respondent

SOLICITORS:

Deputy Official Solicitor Crime and Misconduct Commission for the applicant
Queensland Police Service Solicitor for the first and second respondents
Gilshenan & Luton for the third respondents

On 8 May 2006, the second respondent, who is a Deputy Commissioner of the Queensland Police Service, brought the following disciplinary charges against the third respondent:

‘Matter 1:
That on the 10^th day of November 2003 at Brisbane your conduct was improper in that you:
(a)drove your motor vehicle on Quarry Road near the intersection with Primrose Street, Sherwood, without due care and attention.
[Sections 1.4 and 7.4 Police Service Administration Act 1990,
Section 9(1)(f) Police Service (Discipline) Regulations 1990]

Matter 2:
That on or about the 10^th day of November 2003 at Brisbane your conduct was improper in that you:
(a)failed to stop at the scene of the traffic accident you were involved in at the intersection of Quarry Road and Primrose Street, Sherwood.
(b)failed…

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: [2008] QSC 23
Decision Date: 22 February 2008

CaseChat Overview and Summary

The Crime and Misconduct Commission sought judicial review of decisions made by the disciplinary tribunals of the Queensland Police Service regarding the penalties imposed on three police officers, McLennan, Hughes, and McDonald. The tribunals had imposed penalties on the officers following a misconduct investigation, and the CMC was dissatisfied with the outcomes. The primary legal issues before the court were whether the first respondent tribunal had erred in the application of comparable judgments, whether the second respondent tribunal had acted beyond its powers in imposing a sanction of dismissal, whether the first respondent tribunal had erred by considering irrelevant considerations, specifically the length of service of the third respondent, and whether the weight given to factors of mitigation and dishonesty by the first respondent tribunal was so disproportionate as to render the decision manifestly unreasonable.

The court found that the tribunals had not erred in the application of comparable judgments, nor had they acted beyond their powers in imposing the sanction of dismissal. Regarding the consideration of the third respondent’s length of service, the court held that this was not an irrelevant consideration and did not constitute an error of law. Finally, the court determined that the weight given to factors of mitigation and dishonesty by the first respondent tribunal was not so disproportionate as to render the decision manifestly unreasonable.

The application for judicial review was dismissed. The court ordered that the CMC pay the respondents' costs of and incidental to the application, to be assessed on the standard basis.

Orders

Orders of the court

1. Application dismissed;

2. That the applicant pay the respondent’s costs of and incidental to the application, to be assessed on the standard basis.

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:	Crime and Misconduct Commission v McLennan & Ors [2008] QSC 23
PARTIES:	CRIME AND MISCONDUCT COMMISSION (applicant) v MARGARET McLENNAN (first respondent) and ACTING COMMISSIONER RICHARD P CONDER (second respondent) and CONSTABLE SONIA MARICE THOMSEN (third respondent)
FILE NO:	2593/07
DIVISION:	Trial Division
PROCEEDING:	Application for Judicial Review
ORIGINATING COURT:	Supreme Court of Queensland
DELIVERED ON:	22/2/08
DELIVERED AT:	Brisbane
HEARING DATE:	5/10/07
JUDGE:	Daubney J
ORDER:	1. Application dismissed; 2. That the applicant pay the respondent’s costs of and incidental to the application, to be assessed on the standard basis.
CATCHWORDS:	ADMINISTRATIVE LAW – JUDICIAL REVIEW – GROUNDS OF REVIEW – ERROR OF LAW – whether the first respondent acted erroneously in the application of comparable judgments – whether the second respondent acted ultra vires in suspending a sanction of dismissal ADMINISTRATIVE LAW – JUDICIAL REVIEW – GROUNDS OF REVIEW – IRRELEVANT CONSIDERATIONS - whether the first respondent erred in considering the third respondent’s length of service in determining the penalty to be imposed ADMINISTRATIVE LAW – JUDICIAL REVIEW – GROUNDS OF REVIEW – UNREASONABLENESS – whether the weight given by the first respondent to factors of mitigation and dishonesty was so disproportionate as to render the decision manifestly unreasonable Aldrich v Ross [2001] 2 Qd R 235, considered Attorney-General (NSW) v Quin (1989-1990) 170 CLR 1, considered Collector of Customs v Pozzolanic (1993) 43 FCR 280, applied Garland v Chief Executive Department of Corrective Services [2006] QSC 245, applied House v The King (1936) 55 CLR 499, cited Minister for Aboriginal Affairs v Peko-Wallsend (1985-1986) 162 CLR 24, applied Minister for Immigration and Ethnic Affairs v Liang (1996) 185 CLR 259, cited Police Service Board v Morris (1985) 156 CLR 397, cited Queensland Law Society v Bax [1998] QCA 89, considered Judicial Review Act 1991(Qld) Misconduct Tribunal Act 1999 (Qld) Police Service Administration Act 1990 (Qld) Police Service (Discipline) Regulations 1990 (Qld)
COUNSEL:	J C Dwyer for the applicant PE Smith for the third respondent
SOLICITORS:	Deputy Official Solicitor Crime and Misconduct Commission for the applicant Queensland Police Service Solicitor for the first and second respondents Gilshenan & Luton for the third respondents