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Francis v Crime and Corruption Commission

Francis v Crime and Corruption Commission

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Case Copied 6 November 2015 34 min read

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SUPREME COURT OF QUEENSLAND

CITATION:

Francis v Crime and Corruption Commission & Anor [2015] QCA 218

PARTIES:

ANTHONY RICHARD FRANCIS

(applicant)v
CRIME AND CORRUPTION COMMISSION

DEPUTY COMMISSIONER ROSS BARNETT
(first respondent)(second respondent)

FILE NO/S:

Appeal No 2450 of 2015
QCAT No 412 of 2013

DIVISION:

Court of Appeal

PROCEEDING:

Application for Leave Queensland Civil and Administrative Tribunal Act

ORIGINATING COURT:

Queensland Civil and Administrative Tribunal – [2015] QCATA 15

DELIVERED ON:

6 November 2015

DELIVERED AT:

Brisbane

HEARING DATE:

17 August 2015

JUDGES:

Fraser and Morrison JJA and Mullins J
Separate reasons for judgment of each member of the Court, each concurring as to the order made

ORDER:

Refuse the application for leave to appeal with costs.

CATCHWORDS:

JUDICIAL REVIEW – GROUNDS OF REVIEW – UNREASONABLENESS – where the applicant seeks to appeal the decision of the appeal tribunal of the Queensland Civil and Administrative Tribunal (“QCAT”) dismissing him from the Queensland Police Service – where the appeal tribunal held that no reasonable tribunal could have concluded that the sanction of dismissal should be suspended – where the applicant contends that the appeal tribunal misconstrued the QCAT member’s reasons – where the applicant contends that the appeal tribunal failed to take into account the applicant’s conduct and post-suspension performance – whether the QCAT member’s decision was so unreasonable that it lacked an evident and intelligible justification

POLICE – INTERNAL ADMINISTRATION – DISCIPLINE AND DISMISSAL FOR MISCONDUCT – QUEENSLAND – where the applicant was formerly a member of the Queensland Police Service – where the applicant had engaged in improper conduct on multiple occasions – where the second respondent imposed the sanction of reduction in salary for Matters 1 and 3 and suspension from the Police Service for 12 months with no entitlement to salary, entitlement or accumulation of leave for Matter 2 – where the first respondent applied to the Queensland Civil and Administrative Tribunal (“QCAT”) for a review of this decision – where a QCAT member confirmed the sanction in relation to Matters 1 and 3, but set aside the sanction imposed for Matter 2, and instead imposed a 12 month suspension, reduction in rank and dismissal suspended for a period of three years – where the first respondent appealed to the QCAT appeal tribunal – where the appeal tribunal concluded that as a matter of law, the QCAT member’s decision was unreasonable – where the appeal tribunal confirmed the sanction in relation to Matters 1 and 3, but set aside the sanction imposed for Matter 2 and instead imposed the sanction of dismissal – whether the purposes of police discipline would be defeated by a decision to allow the applicant to remain in the police force

Crime and Misconduct Act 2001 (Qld), s 50, s 219B, s 219BA, s 219G, s 219J, s 219L
Police Service Administration Act 1990 (Qld), s 1.4, s 7.4
Police Service (Discipline) Regulations 1990 (Qld), reg 3, reg 10, reg 12
Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 142, s…

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: [2015] QCA 218
Decision Date: 6 November 2015

CaseChat Overview and Summary

The case of Francis v Crime and Corruption Commission involves a former member of the Queensland Police Service who was dismissed following a disciplinary process. The applicant sought to appeal the decision of the Queensland Civil and Administrative Tribunal (QCAT) Appeal Tribunal, which dismissed his appeal against the sanction of dismissal imposed by the QCAT. The applicant argued that the QCAT Appeal Tribunal misconstrued the QCAT member's reasons and failed to consider his conduct and post-suspension performance. The central legal issue before the court was whether the QCAT Appeal Tribunal erred in concluding that the QCAT member's decision to suspend the dismissal was unreasonable and lacked an evident and intelligible justification.

In addressing the legal issue, the court examined the test for unreasonableness in judicial review, emphasizing that it is a stringent test that requires the decision to be so unreasonable that it lacks an evident and intelligible justification when all relevant matters are considered. The court also noted that the test does not permit a review on the merits or a disagreement with the evaluative decision or the weight attributed to factors. The court found that the QCAT Appeal Tribunal applied the correct test and correctly determined that the QCAT member's decision to suspend the dismissal was open on the facts found, as it would defeat the purposes of police discipline given the seriousness, variety, and persistence of the applicant's misconduct.

The court concluded that the QCAT Appeal Tribunal did not err in its application of the test for unreasonableness, and the applicant failed to demonstrate any errors of law in the tribunal's decision. Therefore, the application for leave to appeal was refused.

ORDERS:
Refuse the application for leave to appeal with costs.

Orders

Orders of the court

Refuse the application for leave to appeal 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

As is apparent from that statement, and as the appeal tribunal noted,[50] the purposes of disciplinary proceedings in the Police Service encompass the need to maintain the confidence of the community in the Police Service. Taking into account the limitations upon the weight capable of being given to the mitigating factors for which the applicant contended, the conclusion was open, upon the facts found by the member, that the purposes of police discipline would be defeated by the member’s decision to allow the applicant to remain in the police force despite the seriousness, variety and persistence of his misconduct during some four years.[50]Aldrich v Ross [2001] 2 Qd R 235 at 247, referred by the appeal tribunal at [2015] QCATA 15, [27].Conclusion and proposed order The ground of appeal that no reasonable tribunal would have suspended the dismissal involved a stringent test.[51] It is rarely established. It does not sanction a review on the merits.[52] It is not made out merely if an appeal court disagrees with an evaluative decision or with the weight attributed to a factor taken into account in the decision.[53] The appeal tribunal nevertheless concluded that the ground was established in this case. The appeal tribunal accurately observed that in Flegg v Crime and Misconduct Commission[54] the President expressed the test, with reference to Minister for Immigration and Citizenship v Li,[55] as being “whether the … decision was so unreasonable that it lacked an evident and intelligible justification when all relevant matters were considered” and Gotterson JA (Margaret Wilson J agreeing) noted that the Wednesbury principles did not allow a challenge to a decision “on the basis that the decision-maker has given insufficient or excessive consideration to some matters or has made an evaluative judgment with which the [appellate tribunal] disagrees”. As the appeal tribunal also observed, the case on appeal must be “overwhelming”.[56] The appeal tribunal correctly stated its task as being “to examine the learned member’s reasoning to determine whether it was a decision that can be justified even though ‘…reasonable minds could reasonably differ’ or whether the decision was so unreasonable that it lacked an evident and intelligible justification”.[57][51]Minister for Immigration and Citizenship v Li (2013) 249 CLR 332 at 376 [108] (Gageler J).[52]Minister for Immigration and Citizenship v Li (2013) 249 CLR 332 at 363 [66] (Hayne, Kiefel and Bell JJ).[53]Minister for Immigration and Citizenship v Li (2013) 249 CLR 332 at 351 [30] (French CJ).[54][2014] QCA 42 at [3] and [16].[55](2013) 249 CLR 332.[56][2015] QCATA 15 at [8].[57][2015] QCATA 15 at [12], quoting Gummow J in Minister for Immigration and Multicultural Affairs v Eshetu (1999) 197 CLR 611 at 654 [137]. There was no error in the test which the appeal tribunal applied in upholding the appeal to it from the member’s decision and the applicant has not established any of the errors of law in the appeal tribunal’s decision for which he contended. Accordingly the proposed appeal could not succeed.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

CITATION:	Francis v Crime and Corruption Commission & Anor [2015] QCA 218
PARTIES:	ANTHONY RICHARD FRANCIS (applicant)v CRIME AND CORRUPTION COMMISSION DEPUTY COMMISSIONER ROSS BARNETT (first respondent)(second respondent)
FILE NO/S:	Appeal No 2450 of 2015 QCAT No 412 of 2013
DIVISION:	Court of Appeal
PROCEEDING:	Application for Leave Queensland Civil and Administrative Tribunal Act
ORIGINATING COURT:	Queensland Civil and Administrative Tribunal – [2015] QCATA 15
DELIVERED ON:	6 November 2015
DELIVERED AT:	Brisbane
HEARING DATE:	17 August 2015
JUDGES:	Fraser and Morrison JJA and Mullins J Separate reasons for judgment of each member of the Court, each concurring as to the order made
ORDER:	Refuse the application for leave to appeal with costs.
CATCHWORDS:	JUDICIAL REVIEW – GROUNDS OF REVIEW – UNREASONABLENESS – where the applicant seeks to appeal the decision of the appeal tribunal of the Queensland Civil and Administrative Tribunal (“QCAT”) dismissing him from the Queensland Police Service – where the appeal tribunal held that no reasonable tribunal could have concluded that the sanction of dismissal should be suspended – where the applicant contends that the appeal tribunal misconstrued the QCAT member’s reasons – where the applicant contends that the appeal tribunal failed to take into account the applicant’s conduct and post-suspension performance – whether the QCAT member’s decision was so unreasonable that it lacked an evident and intelligible justification POLICE – INTERNAL ADMINISTRATION – DISCIPLINE AND DISMISSAL FOR MISCONDUCT – QUEENSLAND – where the applicant was formerly a member of the Queensland Police Service – where the applicant had engaged in improper conduct on multiple occasions – where the second respondent imposed the sanction of reduction in salary for Matters 1 and 3 and suspension from the Police Service for 12 months with no entitlement to salary, entitlement or accumulation of leave for Matter 2 – where the first respondent applied to the Queensland Civil and Administrative Tribunal (“QCAT”) for a review of this decision – where a QCAT member confirmed the sanction in relation to Matters 1 and 3, but set aside the sanction imposed for Matter 2, and instead imposed a 12 month suspension, reduction in rank and dismissal suspended for a period of three years – where the first respondent appealed to the QCAT appeal tribunal – where the appeal tribunal concluded that as a matter of law, the QCAT member’s decision was unreasonable – where the appeal tribunal confirmed the sanction in relation to Matters 1 and 3, but set aside the sanction imposed for Matter 2 and instead imposed the sanction of dismissal – whether the purposes of police discipline would be defeated by a decision to allow the applicant to remain in the police force Crime and Misconduct Act 2001 (Qld), s 50, s 219B, s 219BA, s 219G, s 219J, s 219L Police Service Administration Act 1990 (Qld), s 1.4, s 7.4 Police Service (Discipline) Regulations 1990 (Qld), reg 3, reg 10, reg 12 Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 142, s…