Gunter v Assistant Commissioner Wilkins - [2021] QCA 274

SUPREME COURT OF QUEENSLAND

CITATION:

Gunter v Assistant Commissioner Wilkins & Anor [2021] QCA 274

PARTIES:

JOSHUA GUNTER
(applicant)
v
ASSISTANT COMMISSIONER BRIAN WILKINS
(first respondent)
CRIME AND CORRUPTION COMISSION
(second respondent)

FILE NO/S:

Appeal No 5458 of 2021
QCATA No 305 of 2019

DIVISION:

Court of Appeal

PROCEEDING:

Application for Leave Queensland Civil and Administrative Tribunal Act

ORIGINATING COURT:

Queensland Civil and Administrative Tribunal at Brisbane – [2021] QCATA 42 (Deputy President Judge Allen QC and Member Browne)

DELIVERED ON:

10 December 2021

DELIVERED AT:

Brisbane

HEARING DATE:

6 September 2021

JUDGES:

Sofronoff P and Morrison JA and Boddice J

ORDER:

The application be refused with costs.

CATCHWORDS:

ADMINISTRATIVE LAW – ADMINISTRATIVE TRIBUNALS – QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL – where the applicant was charged under Part 7 of the Police Service Administration Act 1990 (Qld) with having committed misconduct by accessing confidential information in the Queensland Police Service computer system without having an official purpose related to the performance of his duties – where the Assistant Commissioner found that the applicant had accessed the information “without an official purpose related to the performance of [his] duties as a member of the Queensland Police Service” and concluded that conduct was “improper” – where the applicant applied to the Queensland Civil and Administrative Tribunal for a review and the decision of the Assistant Commissioner was set aside – where the applicant appealed to the QCAT appeal tribunal which set aside the member’s decision and confirmed the Assistant Commissioner’s original decision – whether the appeal tribunal erred in its appreciation of the scope of a police officer’s duty to investigate – whether there are reasonable prospects of establishing that there has been an error of law

Crime and Corruption Act 2001 (Qld), s 219BA, s 219G, s 219H
Police Service Administration Act 1990 (Qld), Pt 7, s 1.4, s 7.4, s 7A.4
Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 17, s 18, s 20

Coulton v Holcombe (1986) 162 CLR 1; [1986] HCA 33, cited
Fox v Percy (2003) 214 CLR 118; [2003] HCA 22, cited
Paterson v Paterson (1953) 89 CLR 212; [1953] HCA 74, cited
Police Service Board v Morris (1985) 156 CLR 397; [1985] HCA 9, cited
Prestige & Rich Pty Ltd & Anor v Chief Executive, Department of Justice and Attorney General, Office of Fair Trading & Anor[2021] QCA 58, cited
Warren v Coombes (1979) 142 CLR 531; [1979] HCA 9, cited

COUNSEL:

M Black and T Schmidt for the applicant
S A McLeod QC for the first respondent
J L Gorry for the second respondent

SOLICITORS:

Gnech and Associates for the applicant
Queensland Police Service Legal Unit for the first respondent
Crime and Corruption Commission for the second respondent

SOFRONOFF P: The applicant is a Sergeant of Queensland Police who accessed confidential information in the Queensland Police Service computer system on three separate occasions between November 2016 and February 2017. He was…

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: [2021] QCA 274
Decision Date: 10 December 2021

CaseChat Overview and Summary

Gunter, a police officer, appealed against a decision of the Queensland Civil and Administrative Tribunal (QCAT) that confirmed a finding of misconduct against him. The misconduct finding arose from his access of confidential information from the Queensland Police Service computer system without a proper official purpose. The Assistant Commissioner found this conduct to be improper, and Gunter sought a review by QCAT. Initially, QCAT set aside the Assistant Commissioner's decision, but this was later overturned by the QCAT appeal tribunal, reinstating the original finding of misconduct. Gunter's contention was that the appeal tribunal had erred in its understanding of the scope of a police officer's duty to investigate, and that there were reasonable prospects of establishing an error of law.

The primary legal issues in the appeal centred on the interpretation of "official purpose" and the scope of a police officer's duty as defined by the Police Service Administration Act 1990 (Qld). The court had to determine whether the appeal tribunal's interpretation of these terms and the scope of the officer's duty was correct, and whether the tribunal had considered all relevant material in making its decision. Additionally, the court needed to assess whether there were reasonable prospects that the appeal tribunal had erred in law, warranting further review.

In assessing the appeal, the court found that the appeal tribunal had correctly interpreted the statutory provisions and correctly applied the law. The tribunal had carefully considered the evidence and the arguments presented, and had not erred in its appreciation of the scope of a police officer's duty to investigate. The court concluded that there were no reasonable prospects that the appeal tribunal had made an error of law, and therefore the appeal was without merit. Consequently, the application was refused, and Gunter was ordered to pay the costs of the appeal.

Orders

Orders of the court

The application be refused 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

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

CITATION:	Gunter v Assistant Commissioner Wilkins & Anor [2021] QCA 274
PARTIES:	JOSHUA GUNTER (applicant) v ASSISTANT COMMISSIONER BRIAN WILKINS (first respondent) CRIME AND CORRUPTION COMISSION (second respondent)
FILE NO/S:	Appeal No 5458 of 2021 QCATA No 305 of 2019
DIVISION:	Court of Appeal
PROCEEDING:	Application for Leave Queensland Civil and Administrative Tribunal Act
ORIGINATING COURT:	Queensland Civil and Administrative Tribunal at Brisbane – [2021] QCATA 42 (Deputy President Judge Allen QC and Member Browne)
DELIVERED ON:	10 December 2021
DELIVERED AT:	Brisbane
HEARING DATE:	6 September 2021
JUDGES:	Sofronoff P and Morrison JA and Boddice J
ORDER:	The application be refused with costs.
CATCHWORDS:	ADMINISTRATIVE LAW – ADMINISTRATIVE TRIBUNALS – QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL – where the applicant was charged under Part 7 of the Police Service Administration Act 1990 (Qld) with having committed misconduct by accessing confidential information in the Queensland Police Service computer system without having an official purpose related to the performance of his duties – where the Assistant Commissioner found that the applicant had accessed the information “without an official purpose related to the performance of [his] duties as a member of the Queensland Police Service” and concluded that conduct was “improper” – where the applicant applied to the Queensland Civil and Administrative Tribunal for a review and the decision of the Assistant Commissioner was set aside – where the applicant appealed to the QCAT appeal tribunal which set aside the member’s decision and confirmed the Assistant Commissioner’s original decision – whether the appeal tribunal erred in its appreciation of the scope of a police officer’s duty to investigate – whether there are reasonable prospects of establishing that there has been an error of law Crime and Corruption Act 2001 (Qld), s 219BA, s 219G, s 219H Police Service Administration Act 1990 (Qld), Pt 7, s 1.4, s 7.4, s 7A.4 Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 17, s 18, s 20 Coulton v Holcombe (1986) 162 CLR 1; [1986] HCA 33, cited Fox v Percy (2003) 214 CLR 118; [2003] HCA 22, cited Paterson v Paterson (1953) 89 CLR 212; [1953] HCA 74, cited Police Service Board v Morris (1985) 156 CLR 397; [1985] HCA 9, cited Prestige & Rich Pty Ltd & Anor v Chief Executive, Department of Justice and Attorney General, Office of Fair Trading & Anor[2021] QCA 58, cited Warren v Coombes (1979) 142 CLR 531; [1979] HCA 9, cited
COUNSEL:	M Black and T Schmidt for the applicant S A McLeod QC for the first respondent J L Gorry for the second respondent
SOLICITORS:	Gnech and Associates for the applicant Queensland Police Service Legal Unit for the first respondent Crime and Corruption Commission for the second respondent