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Flegg v Crime and Misconduct Commission

Flegg v Crime and Misconduct Commission

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Case Copied 13 December 2013 28 min read

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SUPREME COURT OF QUEENSLAND

CITATION:

Flegg v Crime and Misconduct Commission and Anor [2013] QCA 376

PARTIES:

WARREN FLEGG
(applicant)
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

ORIGINATING COURT:

Queensland Civil and Administrative Tribunal at Brisbane

DELIVERED ON:

13 December 2013

DELIVERED AT:

Brisbane

HEARING DATE:

5 September 2013

JUDGES:

Margaret McMurdo P and Gotterson JA and Margaret Wilson J
Separate reasons for judgment of each member of the Court, each concurring as to the orders made

ORDERS:

Grant leave to appeal.1.

Allow the appeal.2.

Set aside the decisions of the appeal tribunal of the Queensland on 20 February and 1 May 2013. Civil and Administrative Tribunal delivered3.

Direct that the applicant and the first respondent file written submissions conformably with paragraph 48 of these reasons and not to exceed five pages, on or before 7 February 2014.4.

First respondent to pay the applicant’s costs of the basis.application for leave and of the appeal on the standard5.

CATCHWORDS:

PROCEDURE – INFERIOR COURTS – QUEENSLAND – QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL – where the applicant 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 the applicant – where the second respondent conducted disciplinary proceedings and determined sanction – where applicant was demoted from Sergeant 3.5 to Senior Constable 2.9 – where second respondent ordered that the sanction be suspended subject to the applicant completing training programs on proper professional practice – where the first respondent filed an application for review in Queensland Civil and Administrative Tribunal of the reviewable decision and the second respondent’s decision was upheld – where the first respondent successfully appealed that decision to the QCAT appellate tribunal on a question of law only on the basis that the sanction was unreasonably or plainly unjust – where the applicant contends that the appellate tribunal contradicted the findings of fact made by QCAT at first instance – whether the applicant has demonstrated an error of law which may have tainted the QCAT appellate tribunal's ultimate conclusion that no reasonable tribunal could have upheld the Assistant Commissioner's sanction

Crime and Misconduct Act 2001 (Qld), s 153(2), s 219
Police Service Administration Act 1990 (Qld), s 7.4(2)
Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 142(1), s 150, s 153(2)(c)

Aldrich v Ross [2001] 2 Qd R 235; [2000] QCA 501, cited
Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1948] 1 KB 223; [1947] EWCA Civ 1, cited
Attorney-General (NSW) v Quin (1990) 170 CLR 1; [1990] HCA 21, cited
B & L Linings Pty Ltd v Chief Commissioner of State Revenue (2008) 74 NSWLR 481; [2008]…

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: [2013] QCA 376
Decision Date: 13 December 2013

CaseChat Overview and Summary

The case of Flegg v Crime and Misconduct Commission involved the applicant, Flegg, who was demoted following disciplinary proceedings initiated by the Crime and Misconduct Commission. Flegg, who was in a supervisory role during a search and rescue mission that resulted in a vessel sinking, was found to have failed in his duties. As a consequence, he was demoted and required to complete specific training programs. The Queensland Civil and Administrative Tribunal (QCAT) initially upheld the decision of the Commission, but Flegg appealed to the QCAT appellate tribunal, which reversed the decision, finding the sanction to be unreasonably or plainly unjust. Flegg subsequently sought leave to appeal to a higher court, arguing that the appellate tribunal had erred in its interpretation of the facts as determined by QCAT at first instance.

The central legal issue before the court was whether the appellate tribunal had made an error of law that could have affected its conclusion that the sanction imposed by the Commission was not something a reasonable tribunal could have upheld. Specifically, the court needed to determine if the appellate tribunal correctly assessed the findings of fact made by QCAT and whether it was appropriate to set aside the appellate tribunal's decision based on an alleged error in the application of the law. The court had to consider the scope of review available to it and the extent to which it could interfere with the findings and conclusions of the appellate tribunal.

In its reasoning, the court found that there was indeed an error of law in the appellate tribunal's approach to the facts. The appellate tribunal had misinterpreted the findings of fact made by QCAT, which had thoroughly assessed Flegg's conduct and the circumstances of the incident. The appellate tribunal's decision to set aside the original sanction without adequately considering the factual basis on which it was imposed was deemed to be an error. Consequently, the court granted leave to appeal, allowed the appeal, and set aside the appellate tribunal's decisions. The court directed the parties to file written submissions and ordered the first respondent to pay the applicant's costs of the appeal and the application for leave.

The final orders of the court included granting leave to appeal, allowing the appeal, setting aside the decisions of the appellate tribunal, and directing the parties to file written submissions on specific issues. Additionally, the court ordered the first respondent to pay the applicant's costs associated with the basis application and the appeal.

Orders

Orders of the court

Grant leave to appeal.1.

Allow the appeal.2.

Set aside the decisions of the appeal tribunal of the Queensland on 20 February and 1 May 2013. Civil and Administrative Tribunal delivered3.

Direct that the applicant and the first respondent file written submissions conformably with paragraph 48 of these reasons and not to exceed five pages, on or before 7 February 2014.4.

First respondent to pay the applicant’s costs of the basis.application for leave and of the appeal on the standard5.

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:	Flegg v Crime and Misconduct Commission and Anor [2013] QCA 376
PARTIES:	WARREN FLEGG (applicant) 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
ORIGINATING COURT:	Queensland Civil and Administrative Tribunal at Brisbane
DELIVERED ON:	13 December 2013
DELIVERED AT:	Brisbane
HEARING DATE:	5 September 2013
JUDGES:	Margaret McMurdo P and Gotterson JA and Margaret Wilson J Separate reasons for judgment of each member of the Court, each concurring as to the orders made
ORDERS:	Grant leave to appeal.1. Allow the appeal.2. Set aside the decisions of the appeal tribunal of the Queensland on 20 February and 1 May 2013. Civil and Administrative Tribunal delivered3. Direct that the applicant and the first respondent file written submissions conformably with paragraph 48 of these reasons and not to exceed five pages, on or before 7 February 2014.4. First respondent to pay the applicant’s costs of the basis.application for leave and of the appeal on the standard5.
CATCHWORDS:	PROCEDURE – INFERIOR COURTS – QUEENSLAND – QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL – where the applicant 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 the applicant – where the second respondent conducted disciplinary proceedings and determined sanction – where applicant was demoted from Sergeant 3.5 to Senior Constable 2.9 – where second respondent ordered that the sanction be suspended subject to the applicant completing training programs on proper professional practice – where the first respondent filed an application for review in Queensland Civil and Administrative Tribunal of the reviewable decision and the second respondent’s decision was upheld – where the first respondent successfully appealed that decision to the QCAT appellate tribunal on a question of law only on the basis that the sanction was unreasonably or plainly unjust – where the applicant contends that the appellate tribunal contradicted the findings of fact made by QCAT at first instance – whether the applicant has demonstrated an error of law which may have tainted the QCAT appellate tribunal's ultimate conclusion that no reasonable tribunal could have upheld the Assistant Commissioner's sanction Crime and Misconduct Act 2001 (Qld), s 153(2), s 219 Police Service Administration Act 1990 (Qld), s 7.4(2) Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 142(1), s 150, s 153(2)(c) Aldrich v Ross [2001] 2 Qd R 235; [2000] QCA 501, cited Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1948] 1 KB 223; [1947] EWCA Civ 1, cited Attorney-General (NSW) v Quin (1990) 170 CLR 1; [1990] HCA 21, cited B & L Linings Pty Ltd v Chief Commissioner of State Revenue (2008) 74 NSWLR 481; [2008]…