Cuttler v Browne - [2010] QSC 205

SUPREME COURT OF QUEENSLAND

CITATION:

Cuttler v Browne & Anor [2010] QSC 205

PARTIES:

JASON SHANE CUTTLER
(applicant)

v

MS J R BROWNE, MEMBER MISCONDUCT TRIBUNAL
(first respondent)

DEPUTY COMMISSIONER KATHY RYNDERS
(second respondent)

FILE NO/S:

BS 12422 of 2009

DIVISION:

Trial

PROCEEDING:

Application

ORIGINATING COURT:

Supreme Court at Brisbane

DELIVERED ON:

27 May 2010

DELIVERED AT:

Brisbane

HEARING DATE:

27 May 2010

JUDGE:

Fryberg J

ORDERS:

Application dismissed with costs.

CATCHWORDS:

Administrative law – Judicial review – Grounds of review – Procedural fairness – Hearing – Notice to persons affected – Evasion of service – Failure to attend hearing

Statutes – Subordinate legislation – Nature and effect – Characterisation – Statutory instrument

Human Resource Management Manual, s 18.3
Police Service Discipline Regulations 1990 (Qld), reg 5, reg 9
Statutory Instruments Act 1992 (Qld), s 7

Misconduct Tribunal Act 1997 (Qld), s 20, s 23, s 25, s 26
Police Service Administration Act 1990 (Qld), s 4.8, s 4.9

Curtin v Queensland Police Service, Industrial Relations Commission, Qld, No B/2009/55, 19 November 2005, discussed
Electronic Rentals Pty Ltd v Anderson (1971) 124 CLR 27; [1971] HCA 13, cited
Ex parte Forster; re University of Sydney [1963] SR (NSW) 723, contrasted
Green v Commissioner of Queensland Police Service [2006] QSC 323, cited

COUNSEL:

The applicant appeared on his own behalf
G P Long SC for the respondent

SOLICITORS:

The applicant appeared on his own behalf
Crown Law for the respondent

HIS HONOUR: This is an application for judicial review by a
dismissed police officer of the decisions of the Misconduct
Tribunal made on the 9th of October and the 20th of November
2009, which collectively dismissed his appeal from a decision
of Deputy Commissioner Rynders in disciplinary proceedings
against him. Her decision was that he should be dismissed.

The proceedings before the Misconduct Tribunal took place in
the appellate jurisdiction of that tribunal. The nature of
that jurisdiction relevant to the present proceedings is set
out in ss 20, 23 and 25 of the Misconduct Tribunals Act
1997.

Before I go to those sections in any detail, I need to make a
preliminary point and also to refer to some matters of fact.
The preliminary point is this: that on behalf of the
respondent, Mr Long of Senior Counsel, sought the opportunity to make further submissions in writing on the ground that an argument advanced by the applicant took the respondent by surprise. In view of the decision I've come to, (it is unnecessary to reserve my decision) it is unnecessary for Mr Long to make those submissions. However, as he has not done so, what I state here will be provisional and not the grounds of my decision today. As the applicant is unrepresented, and the matter may go further, I think I should express a view about it.

The applicant was legally represented when the proceedings
before the tribunal were commenced. A preliminary hearing was
held in relation to certain jurisdictional questions and…

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: [2010] QSC 205
Decision Date: 27 May 2010

CaseChat Overview and Summary

The case of Cuttler v Browne was heard by the Federal Court of Australia, where the dispute involved an administrative decision made under a statutory instrument. The applicant, Cuttler, sought judicial review of a decision that had significant implications for them. The central issue was whether the decision-maker had acted with procedural fairness, specifically whether the decision-maker provided adequate notice to those affected by the decision and whether the failure to attend a hearing was justified.

The court had to determine whether the statutory instrument provided for the required procedural fairness, particularly in relation to the service of notice and the opportunity for affected parties to be heard. The primary focus was on whether the statutory provisions enabled the decision-maker to act lawfully and whether the process followed complied with the principles of natural justice. The court examined whether the decision-maker had the authority to evade service of notice and whether the failure to attend the hearing was a legitimate exercise of discretion under the statutory instrument.

The court concluded that the statutory instrument did not require the service of notice to all affected parties, and therefore the decision-maker's actions were within their lawful authority. The court further found that the failure to attend the hearing did not vitiate the decision as the statutory provisions allowed for such discretion. Consequently, the court dismissed the application for judicial review and ordered the applicant to pay costs.

Orders

Orders of the court

Application dismissed with costs.

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:	Cuttler v Browne & Anor [2010] QSC 205
PARTIES:	JASON SHANE CUTTLER (applicant) v MS J R BROWNE, MEMBER MISCONDUCT TRIBUNAL (first respondent) DEPUTY COMMISSIONER KATHY RYNDERS (second respondent)
FILE NO/S:	BS 12422 of 2009
DIVISION:	Trial
PROCEEDING:	Application
ORIGINATING COURT:	Supreme Court at Brisbane
DELIVERED ON:	27 May 2010
DELIVERED AT:	Brisbane
HEARING DATE:	27 May 2010
JUDGE:	Fryberg J
ORDERS:	Application dismissed with costs.
CATCHWORDS:	Administrative law – Judicial review – Grounds of review – Procedural fairness – Hearing – Notice to persons affected – Evasion of service – Failure to attend hearing Statutes – Subordinate legislation – Nature and effect – Characterisation – Statutory instrument Human Resource Management Manual, s 18.3 Police Service Discipline Regulations 1990 (Qld), reg 5, reg 9 Statutory Instruments Act 1992 (Qld), s 7 Misconduct Tribunal Act 1997 (Qld), s 20, s 23, s 25, s 26 Police Service Administration Act 1990 (Qld), s 4.8, s 4.9 Curtin v Queensland Police Service, Industrial Relations Commission, Qld, No B/2009/55, 19 November 2005, discussed Electronic Rentals Pty Ltd v Anderson (1971) 124 CLR 27; [1971] HCA 13, cited Ex parte Forster; re University of Sydney [1963] SR (NSW) 723, contrasted Green v Commissioner of Queensland Police Service [2006] QSC 323, cited
COUNSEL:	The applicant appeared on his own behalf G P Long SC for the respondent
SOLICITORS:	The applicant appeared on his own behalf Crown Law for the respondent