Jones v McNab - [2019] QCAT 213

QUEENSLAND CIVIL AND
ADMINISTRATIVE TRIBUNAL

CITATION: Jones v McNab [2019] QCAT 213

PARTIES: LYNETTE JONES

(applicant)

v

BRUCE MCNAB

(respondent)

APPLICATION NO/S: OCR297-18

MATTER TYPE: Occupational regulation matters

DELIVERED ON: 2 July 2019

HEARING DATE: On the papers

HEARD AT: Brisbane

DECISION OF: Member Browne

ORDERS:
THE TRIBUNAL DIRECTS THAT:

1.   Lynette Jones must file in the Tribunal one (1) copy and give to Bruce McNab one (1) copy of any further written submissions addressing the following:

(a) whether the time for filing the application to review should be extended; and

(b) whether any non-publication orders should be made under s 66 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld), by:

4:00pm on 9 July 2019

2.   Bruce McNab must file in the Tribunal one (1) copy and give to Lynette Jones one (1) copy of any further written submissions in response, by:

4:00pm on 16 July 2019

3.   Unless otherwise ordered, the matter will be determined by the Tribunal on the papers by written submissions filed by the parties and without an oral hearing on a date not before 4:00pm on 17 July 2019.

CATCHWORDS:
POLICE – INTERNAL ADMINISTRATION – DISCIPLINE AND DISMISSAL FOR MISCONDUCT – QUEENSLAND – where police officer was issued with a notice of temporary re-deployment and directions – where review application filed – consideration of principles for granting an extension of time – whether decision is a reviewable decision – whether decision is a decision about an allegation of corruption

Crime and Corruption Act 2001 (Qld), s 219BA, s 219C, s 219J, s 219G, s 219H, Schedule 2
Police Service Administration Act 1990 (Qld), s 1.4, s 4.8, s 4.9, s 5.12, s 7.4
Police Service (Discipline) Regulations 1990 (Qld), s 3
Queensland Civil and Administrative Tribunal Act 2009 (Qld), 3, 6, s 17, s 19, s 47, s 66, s 157

Harper Property Builders Pty Ltd v Queensland Building and Construction Commission [2018] QCATA 70
Nesterowich v Platz [2018] QCATA 119
Irwin v Stewart (Commissioner of Police) & Anor [2015] QSC 350

REPRESENTATION:

Applicant: M Black of Counsel

Respondents: C Capper, A/Principal Legal Officer of the Queensland Police Legal Unit

APPEARANCES: This matter was heard and determined on the papers pursuant to s 32 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) (‘QCAT Act’).

REASONS FOR DECISION

Lynette Jones is an officer with the Queensland Police Service (‘QPS’) and holds the rank of Senior Constable.
On 18 April 2018, Ms Jones was issued with a notice of temporary redeployment and directions that required her to perform her duties in another workplace.
On 16 October 2018, a further notice was issued to Ms Jones to continue her redeployment (‘the decision’). The decision was signed by Bruce McNab, Superintendent and referred to allegations of workplace harassment and bullying which are currently under investigation.
Ms Jones filed an application seeking a review of Mr McNab’s decision to continue her redeployment. The review application was filed outside the prescribed period of 14 days.[1] More…

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.

Continue reading Jones v McNab

Details

AGLC: Jones v McNab [2019] QCAT 213
Case: [2019] QCAT 213
Decision Date: 2 July 2019

CaseChat Overview and Summary

In the case of Jones v McNab, the plaintiff, Lynette Jones, challenged a decision made by the defendant, Bruce McNab, who is identified as a Commissioner of Police in Queensland. The dispute revolves around the Commissioner's decision to issue a notice of temporary re-deployment and directions to Lynette Jones, a police officer. The matter was brought before the Queensland Civil and Administrative Tribunal (QCAT) for review. The central legal issue was whether the Commissioner's decision was a reviewable decision under the Corrective Services Act 2006 (Qld) and whether it pertained to an allegation of corruption.

The tribunal delved into the definitions and scope of a'reviewable decision' under the Corrective Services Act, specifically section 219BA. It examined whether the Commissioner's decision fell under the definition of a decision made in relation to an allegation of corruption against a prescribed person. The tribunal also considered the distinction between 'corruption' and 'police misconduct' and whether the Commissioner's decision involved a disciplinary declaration. Furthermore, the tribunal reviewed the Police Service Administration Act 1990 and the Police Service (Discipline) Regulations 1990 (Qld) to understand the grounds for disciplinary action and the procedural requirements for issuing notices to the officer and the Crime and Corruption Commission.

Upon careful consideration, the tribunal concluded that the Commissioner's decision was indeed a reviewable decision. It found that the decision involved a disciplinary finding of misconduct, which is a relevant factor under the definition of a reviewable decision. The tribunal also noted that the Commissioner's decision was made in relation to an allegation of misconduct, which aligns with the statutory requirements. Consequently, the tribunal directed the parties to file further written submissions addressing the extension of time for filing the review application and any non-publication orders. The matter was set to be determined by the tribunal on the basis of written submissions, without an oral hearing, on a specified date.

The tribunal issued an order directing Lynette Jones to file further written submissions by a certain deadline, with a requirement to provide a copy to Bruce McNab. In response, Bruce McNab was also required to file his submissions by a later date, with a similar requirement to provide a copy to Lynette Jones. The tribunal set a final date for determining the matter based on the written submissions received, without scheduling an oral hearing unless otherwise ordered.

Orders

Orders of the court

THE TRIBUNAL DIRECTS THAT:

1. Lynette Jones must file in the Tribunal one (1) copy and give to Bruce McNab one (1) copy of any further written submissions addressing the following:

(a) whether the time for filing the application to review should be extended; and

(b) whether any non-publication orders should be made under s 66 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld), by:

4:00pm on 9 July 2019

2. Bruce McNab must file in the Tribunal one (1) copy and give to Lynette Jones one (1) copy of any further written submissions in response, by:

4:00pm on 16 July 2019

3. Unless otherwise ordered, the matter will be determined by the Tribunal on the papers by written submissions filed by the parties and without an oral hearing on a date not before 4:00pm on 17 July 2019.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

A ‘reviewable decision’ is defined under s 219BA of the CC Act as follows (emphasis added):219BA Meaning of reviewable decision(1) A reviewable decision means—(a) a decision made in relation to an allegation of corruption against a prescribed person, other than a decision made by a court or QCAT; or(b) a finding mentioned in the Police Service Administration Act 1990, section 7.4(2A)(b) or 7A.5(1)(b) that corruption is proved against an officer.(2) In this section—decision, made in relation to a disciplinary allegation of corruption, if disciplinary declaration is made, includes the disciplinary declaration.Note—A reviewable decision may also involve a failure to make a disciplinary declaration.disciplinary declaration means a disciplinary declaration made under—(a) the Public Service Act 2008, section 188A; or(b) the Police Service Administration Act 1990, section 7A.2(2).prescribed person, in relation to a prescribed person mentioned in section50(4), definition prescribed person, paragraphs (a)(ii) and (b)(ii), means—(a) a prescribed person against whom a disciplinary declaration hasbeen made; or(b) in relation to an appeal started by the commission under section219G—(i) a prescribed person mentioned in paragraph (a); or(ii) a prescribed person against whom a disciplinary declaration has not been made if a ground of appeal states that a disciplinary declaration should have been made. The CC Act defines ‘corruption’ as ‘corrupt conduct or police misconduct’.[21] ‘Police misconduct’ is defined in the CC Act as follows:police misconduct means conduct, other than corrupt conduct, of a police officer that—(a) is disgraceful, improper or unbecoming a police officer; or(b) shows unfitness to be or continue as a police officer; or(c) does not meet the standard of conduct the community reasonably expects of a police officer.[22][21]CC Act, Schedule 2.[22]CC Act, Schedule 2. There is power under the PSA Act for disciplinary action to be taken if a ‘prescribed officer’ decides an ‘allegation of misconduct’ brought against an officer or finds ‘misconduct’ when deciding an allegation of breach of discipline brought against an officer.[23] Relevantly, s 7.4(2A) of the PSA Act requires the commissioner to give a QCAT information notice to the officer and the Crime and Corruption Commission for ‘the decision or finding’ within 14 days after the making of the decision or finding.[24] [23]PSA Act, s 7.4.[24]PSA Act, s 7.4. See s 157 of the QCAT Act. The Police Service (Discipline) Regulations 1990 (Qld) is also relevant to any decision made under the PSA Act concerning a finding of misconduct. The Regulation provides the various disciplinary powers of the commissioner and the grounds for taking certain disciplinary action. More importantly, r 9 sets out the grounds for disciplinary action for the purposes of s 7.4 of the PSA Act that includes ‘misconduct’. As observed in Irwin v Stewart (Commissioner of Police) & Anor[25] the disciplinary powers under s 7.4 of the PSAA are exercisable only where there is a decision or finding by the prescribed officer under s 7.4(2A). [25][2015] QSC 350.

Ratio Decidendi

Legal Principle Established

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