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Deputy Commissioner Stewart v Dark

Deputy Commissioner Stewart v Dark

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Case Copied 24 August 2012 23 min read

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SUPREME COURT OF QUEENSLAND

CITATION:

Deputy Commissioner Stewart v Dark [2012] QCA 228

PARTIES:

DEPUTY COMMISSIONER IAN STEWART
(applicant)
v
ANTHONY DARK
(respondent)

FILE NO/S:

Appeal No 475 of 2012
QCAT No 47 of 2011

DIVISION:

Court of Appeal

PROCEEDING:

Application for Leave Queensland Civil and Administrative Tribunal Act

ORIGINATING COURT:

Queensland Civil and Administrative Tribunal at Brisbane

DELIVERED ON:

24 August 2012

DELIVERED AT:

Brisbane

HEARING DATE:

27 July 2012

JUDGES:

Muir and Gotterson JJA and Mullins J
Separate reasons for judgment of each member of the Court, each concurring as to the orders made

ORDERS:

1.   Leave to appeal be granted.

2.   The appeal be allowed.

3.   The decision of the Appeal Tribunal contained in paragraphs 3(iv) and 3(viii) be set aside.

4.   The matter be remitted to the Appeal Tribunal to determine the sanction to be imposed on the respondent.

CATCHWORDS:

POLICE – INTERNAL ADMINISTRATION – DISCIPLINE AND DISMISSAL FOR MISCONDUCT – QUEENSLAND – where respondent was a Queensland Police Service constable – where respondent directed to attend a disciplinary hearing involving nine matters of alleged misconduct that occurred in the course of a bitter marriage breakdown with his wife – where applicant found six matters were substantiated and amounted to misconduct – where sanction of dismissal from QPS imposed – where respondent applied to QCAT to review applicant’s decision – where QCAT member confirmed five of the matters and the sanction – where the member set one matter aside – where respondent then appealed to the QCAT Appeal Tribunal – where Appeal Tribunal confirmed two matters (1 and 2), set aside remaining four matters, quashed the sanction dismissing the respondent from QPS and imposed a six month suspension – where applicant submits Appeal Tribunal erred in finding that respondent’s behaviour in two of the unsubstantiated matters (3 and 4) did not amount to misconduct – where applicant submits sanction imposed with respect to matters 1 and 2 was manifestly inadequate – where respondent submits that even if it was found Appeal Tribunal erred in determining that matters 3 and 4 did not amount to misconduct, this Court should remit the matter back to the Appeal Tribunal to determine the appropriate sanction along with matters 1 and 2 – whether matters 3 and/or 4 amounted to misconduct – whether sanction imposed manifestly inadequate – whether matter should be remitted to the Appeal Tribunal to determine sanction

Oaths Act 1867 (Qld)
Police Service Administration Act 1990 (Qld), s 1.4
Police Service (Discipline) Regulations 1990 (Qld), s 5, s 9(1)(f), s 10(f)

Aldrich v Ross [2001] 2 Qd R 235; [2000] QCA 501, considered
Clyne v NSW Bar Association (1960) 104 CLR 186; [1960] HCA 40, cited
Henry v Ryan [1963] Tas SR 90, cited
McKenzie v Acting Assistant Commissioner Wright [2011] QCATA 309, cited
New South Wales Bar Association v Evatt (1968) 117 CLR 177; [1968] HCA 20, cited
Police Service Board v Morris (1985) 156 CLR 397; [1985] HCA 9

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: [2012] QCA 228
Decision Date: 24 August 2012

CaseChat Overview and Summary

The applicant, the Deputy Commissioner of the Queensland Police Service, appealed against the decision of the QCAT Appeal Tribunal, which reviewed the disciplinary action taken against the respondent, a former QPS constable. The applicant's original decision to dismiss the respondent on the basis of six substantiated matters of misconduct, which arose from a tumultuous period in the respondent’s personal life, was challenged by the respondent. The QCAT member upheld the applicant’s findings on five of the six matters, confirming the dismissal sanction. However, the QCAT Appeal Tribunal later reviewed the matter, confirming only two of the original substantiated matters, setting aside the remaining four, and quashing the dismissal sanction, instead imposing a six-month suspension.

The legal issues in this case centred around whether the QCAT Appeal Tribunal correctly identified the misconduct and the appropriate sanction. The applicant argued that the Tribunal erred in concluding that two of the unsubstantiated matters did not constitute misconduct, and that the sanction imposed for the two confirmed matters was manifestly inadequate. The respondent, on the other hand, contended that even if the Tribunal’s determination on the misconduct was incorrect, the matter should be remitted back to the Appeal Tribunal to reconsider the sanction. The central question was whether the matters in dispute constituted misconduct and, if so, what the appropriate disciplinary action should be.

The court found that the QCAT Appeal Tribunal had indeed erred in its determination regarding the misconduct of matters 3 and 4. The court held that these matters did constitute misconduct. Additionally, the court agreed that the sanction imposed for matters 1 and 2 was manifestly inadequate. The court concluded that the matter should be remitted to the QCAT Appeal Tribunal to determine the appropriate sanction in light of the confirmed misconduct and the inadequacy of the original penalty.

The court granted leave to appeal, allowed the appeal, set aside the relevant parts of the Appeal Tribunal's decision, and remitted the matter back to the QCAT Appeal Tribunal for reconsideration of the sanction. This decision ensures that the tribunal has the opportunity to address the misconduct appropriately and impose a sanction that reflects the seriousness of the actions.

Orders

Orders of the court

1. Leave to appeal be granted.

2. The appeal be allowed.

3. The decision of the Appeal Tribunal contained in paragraphs 3(iv) and 3(viii) be set aside.

4. The matter be remitted to the Appeal Tribunal to determine the sanction to be imposed on the respondent.

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:	Deputy Commissioner Stewart v Dark [2012] QCA 228
PARTIES:	DEPUTY COMMISSIONER IAN STEWART (applicant) v ANTHONY DARK (respondent)
FILE NO/S:	Appeal No 475 of 2012 QCAT No 47 of 2011
DIVISION:	Court of Appeal
PROCEEDING:	Application for Leave Queensland Civil and Administrative Tribunal Act
ORIGINATING COURT:	Queensland Civil and Administrative Tribunal at Brisbane
DELIVERED ON:	24 August 2012
DELIVERED AT:	Brisbane
HEARING DATE:	27 July 2012
JUDGES:	Muir and Gotterson JJA and Mullins J Separate reasons for judgment of each member of the Court, each concurring as to the orders made
ORDERS:	1. Leave to appeal be granted. 2. The appeal be allowed. 3. The decision of the Appeal Tribunal contained in paragraphs 3(iv) and 3(viii) be set aside. 4. The matter be remitted to the Appeal Tribunal to determine the sanction to be imposed on the respondent.
CATCHWORDS:	POLICE – INTERNAL ADMINISTRATION – DISCIPLINE AND DISMISSAL FOR MISCONDUCT – QUEENSLAND – where respondent was a Queensland Police Service constable – where respondent directed to attend a disciplinary hearing involving nine matters of alleged misconduct that occurred in the course of a bitter marriage breakdown with his wife – where applicant found six matters were substantiated and amounted to misconduct – where sanction of dismissal from QPS imposed – where respondent applied to QCAT to review applicant’s decision – where QCAT member confirmed five of the matters and the sanction – where the member set one matter aside – where respondent then appealed to the QCAT Appeal Tribunal – where Appeal Tribunal confirmed two matters (1 and 2), set aside remaining four matters, quashed the sanction dismissing the respondent from QPS and imposed a six month suspension – where applicant submits Appeal Tribunal erred in finding that respondent’s behaviour in two of the unsubstantiated matters (3 and 4) did not amount to misconduct – where applicant submits sanction imposed with respect to matters 1 and 2 was manifestly inadequate – where respondent submits that even if it was found Appeal Tribunal erred in determining that matters 3 and 4 did not amount to misconduct, this Court should remit the matter back to the Appeal Tribunal to determine the appropriate sanction along with matters 1 and 2 – whether matters 3 and/or 4 amounted to misconduct – whether sanction imposed manifestly inadequate – whether matter should be remitted to the Appeal Tribunal to determine sanction Oaths Act 1867 (Qld) Police Service Administration Act 1990 (Qld), s 1.4 Police Service (Discipline) Regulations 1990 (Qld), s 5, s 9(1)(f), s 10(f) Aldrich v Ross [2001] 2 Qd R 235; [2000] QCA 501, considered Clyne v NSW Bar Association (1960) 104 CLR 186; [1960] HCA 40, cited Henry v Ryan [1963] Tas SR 90, cited McKenzie v Acting Assistant Commissioner Wright [2011] QCATA 309, cited New South Wales Bar Association v Evatt (1968) 117 CLR 177; [1968] HCA 20, cited Police Service Board v Morris (1985) 156 CLR 397; [1985] HCA 9