Garth v Queensland Police Service (No 2)
[2012] QCAT 490
•9 October 2012
| CITATION: | Garth v Queensland Police Service (No 2) [2012] QCAT 490 |
| PARTIES: | Travis Michael Garth (Applicant) |
| v | |
| Queensland Police Service (Respondent) |
| APPLICATION NUMBER: | OCR149-11 |
| MATTER TYPE: | Occupational regulation matters |
| HEARING DATE: | 20 April 2012 |
| HEARD AT: | Brisbane |
| DECISION OF: | Richard Oliver, Senior Member |
| DELIVERED ON: | 9 October 2012 |
| DELIVERED AT: | Brisbane |
| ORDERS MADE: | The applicant has leave to adduce fresh evidence. |
| CATCHWORDS: | New Evidence – where matters solely within the knowledge of the decision maker – where Tribunal assisted by the new evidence Queensland Civil and Administrative Tribunal Act 2009, s 20 |
APPEARANCES and REPRESENTATION (if any):
| APPLICANT: | Mr Garth represented by Mr Gnech, solicitor |
RESPONDENT: | Queensland Police Service represtened by Mr Nicholson of counsel instructed by the Queensland Police Service Solicitor |
REASONS FOR DECISION
On 20 April 2012 I commenced a hearing to review the respondent’s decision about the imposition of a sanction on Mr Garth concerning his conduct on the morning of 13 September 2010. I refer to my published decision of 29 June 2012.
At the commencement of the hearing the applicant made an application to adduce new evidence in the form of two affidavits, one sworn by Stephen Mahoney of the Queensland Police Union Industrial Relations which discussed the promotion system within the Queensland Police Service and another by Mr Garth. The application was opposed by the respondent. Mr Mahoney’s affidavit was withdrawn. I admitted parts of the affidavit of Mr Garth, but overlooked giving reasons in the final decision. These are those reasons.
The evidence sought to be led by Mr Garth in an affidavit sworn by him on 12 April 2012 related to the type of work he has been doing as a constable since 6 July 2011. He deposes to supervising first year constables at the Fortitude Valley Police Station as well as being tasked as field commander in charge of up to 10 staff. This evidence shows that the Service has continued to have confidence in him to perform his job.
The application to lead this evidence was opposed on the basis that it is not relevant to the basis upon which the sanction was imposed by the Assistant Commissioner. This of course is true because the sanction was imposed having regard to all of the circumstances that pertained at that time.
However, paragraphs 5 and 6 of his affidavit have relevance to my consideration of the sanction to be imposed on two bases. Firstly, in determining the financial loss to the applicant by the reduction of pay points, I have to consider the likelihood that had it not been for the incident he would have progressed to the next pay level or been promoted to senior constable. Secondly, to contradict the contention made in the respondent’s submission that Mr Garth’s conduct does not warrant advancement to a senior rank.[1] It is unclear whether the submission is referring to the time the sanction was imposed or now. If it is confined to the time the sanction is imposed then the relevance is marginal, but if it is at the time of the hearing afresh then it is more relevant.
[1] Respondent’s submissions paragraph 47 and 48.
In my view this evidence, although new, falls within s 219H(2)(b) of the Crime and Misconduct Act 2001. This case is about reviewing the severity of the sanction imposed upon the applicant. In arriving at his decision the respondent relied on his special knowledge of the internal operations of the QPS, which would include the likely progression of an officer to the next pay point level and promotion in rank. Also, the type of duties performed since the imposition of the sanction assists in this regard. The evidence about likely progression to the next pay level is not specifically referred to in the material and it is of importance when dealing with sanction. Therefore I considered that special circumstances exist resulting in its admission.
Also, as s 20 of the QCAT Act requires the Tribunal to decide the review of a reviewable decision by way of a fresh hearing, there will, depending on the particular matter, be times when new evidence will need to be submitted to inform the Tribunal of those matters which are within the special knowledge of the decision maker and perhaps taken for granted in arriving at the decision. This is one of those cases.
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