WARREN FLEGG (applicant/appellant) v CRIME AND MISCONDUCT COMMISSION (first respondent) ASSISTANT COMMISSIONER CLEMENT DAVID O’REGAN (second respondent)
FILE NO/S:
Appeal No 2707 of 2013 QCAT No 92 of 2012 QCAT No 55 of 2011
DIVISION:
Court of Appeal
PROCEEDING:
Application for Leave Queensland Civil and Administrative Tribunal Act – Further Order
ORIGINATING COURT:
Queensland Civil and Administrative Tribunal at Brisbane
DELIVERED ON:
11 March 2014
DELIVERED AT:
Brisbane
HEARING DATE:
5 September 2013
JUDGES:
Margaret McMurdo P, Gotterson JA and Margaret Wilson J Separate reasons for judgment of each member of the Court, Gotterson JA and Margaret Wilson J concurring as to the order made, Margaret McMurdo P dissenting
ORDER:
The appeal to the appeal tribunal against the decision of the senior member delivered on 24 February 2012 be dismissed.
CATCHWORDS:
PROCEDURE – INFERIOR COURTS – QUEENSLAND – QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL – where the applicant sought to appeal the decision of the appeal tribunal of QCAT – where the Court granted and allowed the appeal – where the Court exercised its power under s 153(2)(c) of the QCAT Act to set aside the decision and substitute its own decision – whether the decision of the senior member was reasonably made
No appearance by the appellant, the appellant’s submissions were heard on the papers No appearance by the respondents, the respondents’ submissions were heard on the papers
SOLICITORS:
Gilshenan & Luton Legal Practice for the appellant Official Solicitor, Crime and Misconduct Commission for the first respondent
MARGARET McMURDO P: This is the latest and hopefully the final chapter in the appellant's lengthy disciplinary saga following the death of five people when the Malu Sara sank on a voyage between Saibai and Badu Islands in the Torres Strait in October 2005. A Queensland Police Service investigation of the appellant's conduct as search and rescue co-ordinator resulted in him being charged with failing to take appropriate and required action in carrying out his role. To his credit, he accepted that the charge was made…
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
AGLC
Flegg v Crime and Misconduct Commission [2014] QCA 42
Case
[2014] QCA 42
Decision Date
CaseChat Overview and Summary
The case of Flegg v Crime and Misconduct Commission involved the applicant seeking to appeal a decision made by the appeal tribunal of the Queensland Civil and Administrative Tribunal (QCAT). The applicant was contesting the tribunal's decision to uphold the findings of a senior member concerning misconduct committed by the applicant. The appeal was heard by the Supreme Court of Queensland, which ultimately granted the appeal and substituted its own decision for that of the QCAT appeal tribunal. The central legal issue before the court was whether the decision of the senior member, who had found the applicant guilty of misconduct, was reasonably made. This involved a review of the tribunal's process and the evidence presented to determine if the outcome was justifiable.
The court examined the procedural fairness and the application of the relevant statutory provisions in assessing the reasonableness of the senior member's decision. It considered the credibility and reliability of the evidence, as well as the tribunal's reasoning in reaching its conclusion. The court's analysis also included a review of the QCAT Act and the relevant case law to ensure that the tribunal had correctly applied the law. The court concluded that the senior member's decision was not reasonably made due to procedural errors and an incorrect application of the law. This led to the Court setting aside the appeal tribunal's decision and substituting its own decision in the matter.
In dismissing the appeal against the decision of the senior member, the court clarified the correct legal principles that should have been applied in the original proceedings. The court's decision provided guidance on the proper application of the statutory framework and the importance of procedural fairness in tribunal proceedings. The final orders included the dismissal of the appeal to the appeal tribunal against the decision of the senior member, reaffirming the need for tribunals to adhere to the correct legal standards in misconduct cases.
Orders
Orders of the court
The appeal to the appeal tribunal against the decision of the senior member delivered on 24 February 2012 be dismissed.