Heuston v Horton (No 2)

Case [2025] QCAT 10

QUEENSLAND CIVIL AND
ADMINISTRATIVE TRIBUNAL


CITATION:

Heuston v Horton (No 2) [2025] QCAT 10

PARTIES:
JARRED HEUSTON

(applicant)

v
GLENN HORTON

(respondent)

APPLICATION NO/S:

OCR232-21

MATTER TYPE:

Occupational regulation matters

DELIVERED ON:

31 January 2025

HEARING DATE:

3 December 2024

HEARD AT:

Brisbane

DECISION OF:

Judicial Member D J McGill SC

ORDERS:

1.     The decision of the respondent as to sanction dated 2 July 2021 is confirmed. 

2.     No order as to cost. 

CATCHWORDS:

POLICE — INTERNAL ADMINISTRATION — DISCIPLINE AND DISMISSAL FOR MISCONDUCT — QUEENSLAND – Review of decision by Tribunal – nature of review – whether sanction in the form of demotion from Senior Constable to Constable involved error in the exercise of discretion  

Crime and Corruption Act s 2001 (Qld) s 219Q(2)

Police Service Administration Act 1990 (Qld) s 7.34

Aldrich v Ross [2001] 2 Qd R 235
Hetherington v Assistant Commissioner [2011] QCAT 82
McKenzie v Wright [2011] QCATA 309
Willmott v Carless [2024] QCA 115

APPEARANCES & REPRESENTATION:

Applicant:

C R Gnech solicitor of Gnech & Associates

Respondent:

S A McLeod KC instructed by the Queensland Police Service Solicitor

REASONS FOR DECISION

  1. This is in form the second part of a review by the Tribunal of certain disciplinary action taken against the applicant, a serving police officer, by the respondent.[1] On 14 May 2021 the respondent, then Acting Assistant Commissioner, made two disciplinary findings against the applicant pursuant to Part 7 of the Police Service Administration Act 1990 (Qld). After receiving submissions as to sanction, on 2 July 2021 the respondent imposed the following sanctions on the applicant:

    (a)Demotion from Senior Constable pay point 2.10 to Constable pay point 1.6.

    (b)After twelve months to be eligible to return to Senior Constable pay point 2.10 upon the successful completion of one performance development agreement. 

    [1]For my convenience I shall refer to Senior Constable Heuston as the applicant and to Chief Superintendent Horton as the respondent. 

  2. The respondent also implemented a professional development strategy, in addition to the sanction, but not as part of it.  This was to ensure the applicant’s development of knowledge and skill, to prevent a reoccurrence of similar conduct, and involved a period of six months mentoring with close supervision during which he was not to perform higher duties, and was to complete two specified QPS learning products.  He was advised that the sanction and the strategy would form part of his disciplinary history and might be taken into account in the future, including when deciding his suitability to be or to continue to be a police officer, including one of a particular rank. 

  3. On 2 August 2021 the applicant filed in the Tribunal an application to review those decisions.  A police disciplinary decision is subject to review by the Tribunal under the Crime and Corruption Act 2001 (Qld) s 219Q. Although described as a review, this has been held by the Court of Appeal to be in substance an appeal by way of rehearing, on the evidence before the decision maker, and…

Continue reading Heuston v Horton (No 2)

Sign in free to access the full text

Details
AGLC
Heuston v Horton (No 2) [2025] QCAT 10
Case
[2025] QCAT 10
Decision Date

CaseChat Overview and Summary

In the matter of Heuston v Horton, the respondent sought judicial review of a disciplinary decision made by the respondent, the first appellant, concerning the demotion of the applicant from Senior Constable to Constable. The application for review was heard by the Queensland Civil and Administrative Tribunal (QCAT), which confirmed the original decision of the first appellant. The applicant then appealed the QCAT decision to the Queensland Court of Appeal. The central legal issue before the court was whether the QCAT had the authority to admit additional evidence that was not available at the time of the original disciplinary proceedings, and if so, whether this new evidence warranted a different outcome in the disciplinary matter. The court examined the statutory provisions under the Crime and Corruption Act 2001, particularly section 219Q, which allows for a rehearing on the original evidence or on new evidence if certain conditions are met.

The court determined that the new evidence, which pertained to events occurring after the original disciplinary decision, could be admitted as it was not known to the applicant at the time of the original proceedings. The court also noted the competing principles of finality of litigation and the need for courts to have all relevant information before them. The court found that the QCAT had the discretion to admit the new evidence and that there was no error in the QCAT’s decision to confirm the disciplinary sanction. The court concluded that the new evidence, even if considered, would not have altered the outcome of the disciplinary decision. As such, the appeal was dismissed, and the original sanction imposed by the first appellant was upheld.

The final orders of the court confirmed the decision of the respondent regarding the sanction dated 2 July 2021. The court made no order as to costs, reflecting the nature of the administrative and disciplinary context of the case.

Orders

Orders of the court

1. The decision of the respondent as to sanction dated 2 July 2021 is confirmed.

2. No order as to cost.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

The power to admit additional evidence on the review comes from the Crime and Corruption Act s 2001 s 219Q(2). Section 219Q provides:(1) A review of a reviewable decision is by way of rehearing on the evidence (original evidence) given in the proceeding before the original decision-maker (original proceeding).(2) However, QCAT may give leave to adduce fresh, additional or substituted evidence (new evidence) if satisfied—(a) the person seeking to adduce the new evidence did not know, or could not reasonably be expected to have known, of its existence at the original proceeding; or(b) in the special circumstances of the case, it would be unfair not to allow the person to adduce the new evidence.(3) If QCAT gives leave under subsection (2), the review is—(a) by way of rehearing on the original evidence; and(b) on the new evidence adduced. Since this evidence relates to events after the decision was made, it was not known to the applicant, nor could he be reasonably expected to have known of it. In those circumstances, it falls within s 219H(2)(a). It is not necessary for the applicant to show special circumstances, but it is still necessary for the Tribunal to give leave for the evidence to be received. When events occur relevant to punishment (or indeed, to the assessment of damages, after a trial but before an appeal by way of rehearing) there are two conflicting principles involved. One is the public interest in the finality of litigation.[6] The other is the principle that a court does not guess when it can know. This can produce some lack of clarity as to the approach. In the 11th Edition of Cairns, Australian Civil Procedure (2016) p 773[7] two successive sentences read:Of course the nature of an appeal by way of rehearing is that the appellate court is entitled to consider matters which occur after judgment. Evidence of matters that occur after the trial is admitted on appeal on only slightly more generous grounds [than for evidence of matters that occurred before the trial]. [6]See Doherty v Liverpool District Hospital (1991) 22 NSWLR 284 at 292,3, where the Court of Appeal refused to admit evidence in a personal injuries case that the plaintiff had died after the trial judgment. At p 296 it was said to be a matter of discretion and degree. This decision was followed in Ant Properties Pty Ltd v Brooks [2019] QCA 259 at [70]. [7]They still appear in the 12th Edition, 2020, p 870 para [19.330]. I note that in Willmott v Carless (supra) the Court said at [41]: One qualification to the rehearing under s 219Q being dependent on error in the decision of the original decision-maker is the circumstance where leave is given pursuant to s 219Q(2) to adduce fresh, additional or substituted evidence. Where there was otherwise no error asserted in the original decision, the review undertaken pursuant to s 219Q(3), where leave to adduce new evidence is given, is effectively on the basis of whether the new evidence would have altered the decision of the original decision-maker.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.