Jones v Acting Assistant Commissioner Horton - [2021] QCAT 209

QUEENSLAND CIVIL AND
ADMINISTRATIVE TRIBUNAL

CITATION:

Jones v Acting Assistant Commissioner Horton [2021] QCAT 209

PARTIES: SENIOR CONSTABLE LYNETTE JONES

(applicant)

v

ACTING ASSISTANT COMMISSIONER GLENN HORTON

(respondent)

APPLICATION NO/S:

OCR 214-20

MATTER TYPE:

Occupational regulation matters

DELIVERED ON:

11 June 2021

HEARING DATE:

15 December 2020

HEARD AT:

Brisbane

DECISION OF:

Member Paratz AM

DECLARATION, ORDERS & DIRECTIONS:

1.       Acting Assistant Commissioner Glenn Horton had (and has) power or authority under the Police Service Administration Act 1990 (Qld) to make the decision which is the subject of the current proceeding, and that the Tribunal has jurisdiction to review that decision.

2.       Part of the decision made by Acting Assistant Commissioner Glenn Horton on 18 May 2020 to substantiate a finding of misconduct in Matter 1 as to particulars 1, 2, 4, 5, 6, 7, 8, 9, 10, 12, 15, and 16, is set aside.

3.       Part of the decision made by Acting Assistant Commissioner Glenn Horton on 18 May 2020 to substantiate a finding of misconduct in Matter 1 as to particulars 3, 11, 13 and 14, is confirmed.

4.       The matter is to be set for a Directions Hearing before Member Paratz AM, at a date and time to be advised by the Registry, not before 28 days after the issuing of this order, to discuss:

(a)    Directions as to the procedure as to dealing with the aspect of Sanction;

(b)   Further directions in the matter as appropriate.

CATCHWORDS:

POLICE – INTERNAL ADMINISTRATION – DISCIPLINE AND DISMISSAL FOR MISCONDUCT – QUEENSLAND – whether disciplinary proceedings which were commenced by a prescribed officer prior to amendments to the relevant Act were continued by a notice given by a subsequent prescribed officer – whether particulars of improper conduct by engaging in negative workplace behaviour were substantiated

Police Service Administration Act 1990 (Qld), s. 1.4,
s 7.25, s 7.27, s 7.4, s 7.10, s 7.12, s 11.20, s 11.22

Arndt v Crime and Misconduct Commission & Anor [2013] QCATA 340
Briginshaw v Briginshaw (1938) 60 CLR 336
Chapman v Crime and Misconduct Commission [2012] QCATA 16
Crime and Corruption Commission v Dawes & Anor [2017] QCAT 66
Crime and Misconduct Commission v Assistant Commissioner Swindells and Ors [2009] QSC 409

Young v Assistant Commissioner Dawson [2020] QCATA 160

APPEARANCES & REPRESENTATION:

Applicant:

M. Black of Counsel instructed by Maurice Blackburn Lawyers

Respondent:

M. Nicholson of Counsel instructed by the Queensland Police Service Legal Unit

REASONS FOR DECISION

Lynette Jones (‘the Officer’) is a Senior Constable with the Queensland Police Service.
Assistant Commissioner Glenn Horton (‘the Assistant Commissioner’) made two disciplinary decisions in relation to the officer, one on 18 May 2020 as to substantiation (‘the substantiation decision’), and one on 24 June 2020 as to sanction (‘the sanction decision’).
The officer filed an Application to Review the two decisions on 21 July 2020.
There are several aspects raised by the officer:
(a)A preliminary point of jurisdiction as to whether the Assistant Commissioner had (and has) power or authority to make the…

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] QCAT 209
Decision Date

CaseChat Overview and Summary

Senior Constable Lynette Jones initiated a disciplinary review proceeding against the decision of Acting Assistant Commissioner Glenn Horton to substantiate a finding of misconduct in relation to 16 particulars of conduct. The court was required to determine the validity of the disciplinary proceeding and the substantiation of the particulars. The court determined that the Assistant Commissioner had the power to make the decisions under the Police Service Administration Act 1990 (Qld) and that the Tribunal had jurisdiction to review the decision. The court found that the particulars of the charge had not been substantiated in relation to particulars 1, 2, 4, 5, 6, 7, 8, 9, 10, 12, 13, 15, and 16. The court found that particulars 3, 11, 13 and 14 of the charge had been substantiated, and that a ground for disciplinary action was proved, as such conduct was improper, and constitutes misconduct. The court set aside part of the decision made by Acting Assistant Commissioner Glenn Horton on 18 May 2020 to substantiate a finding of misconduct in Matter 1 as to particulars 1, 2, 4, 5, 6, 7, 8, 9, 10, 12, 15, and 16, on the basis that the allegations were not proven to the required standard. The court confirmed part of the decision made by Acting Assistant Commissioner Glenn Horton on 18 May 2020 to substantiate a finding of misconduct in Matter 1 as to particulars 3, 11, 13 and 14. The court directed that the matter be set for a Directions Hearing before it, at a date and time to be advised by the Registry, not before 28 days after the issuing of this order, to discuss the procedure as to dealing with the aspect of sanction and further directions in the matter as appropriate.

Orders