Queensland Police Service v Compton

[2011] QCATA 112

CITATION: Queensland Police Service v Compton [2011] QCATA 112

PARTIES:	Queensland Police Service (Appellant)
v
Joshua Douglas Compton (Respondent)

APPLICATION NUMBER:   APL207-10

MATTER TYPE: Appeals

HEARING DATE: On the papers

HEARD AT: Brisbane

DECISION OF: Justice Alan Wilson, President

DELIVERED ON: 18 May 2011

DELIVERED AT: Brisbane

ORDERS MADE:     Declare that the appellant does not require leave to appeal in this matter.

CATCHWORDS: 

APPEAL – INTERIM APPLICATION – OCCUPATIONAL REGULATION – POLICE OFFICER – where appellant did not seek nor obtain leave to appeal – where respondent argued appeal incompetent – whether appeal raised questions of law or questions of fact or mixed questions of fact and law – whether leave required

Queensland Civil and Administrative Tribunal Act 2009, ss 142(1), (3)(b)

House v R (1936) 55 CLR 499

Perry v Comcare (2006) 150 FCR 319

APPEARANCES and REPRESENTATION (if any):

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

REASONS FOR DECISION

1. Mr Compton is a police officer who was convicted of drink driving in 2009 and, later, found guilty of misconduct by the Queensland Police Service and dismissed from the force.

2. He applied to QCAT to review that decision. 

3. The matter was heard by QCAT Member the Honourable James Thomas QC who, on 17 August 2010, set aside the QPS decision and ordered, instead, that Mr Compton’s dismissal be suspended for a period of two years during which he must perform community service, and undergo voluntary counselling and treatment.  If he commits any act of misconduct or contravenes these conditions in that two years, the suspension is revoked and the decision to dismiss will take immediate effect.  His salary was also reduced for that two year period.

4. The Deputy Commissioner has appealed against that decision.  At a directions hearing in the appeal Mr Compton’s representatives argued that the appeal was incompetent because the appellant had not sought or obtained leave.  By direction of the Appeal Tribunal that issue has been addressed in written submissions and is to be determined on the papers.[1]

   [1]Directions Order of the Deputy President, her Honour Judge Fleur Kingham 1 April 2011.

5. Under s 142(1) of the QCAT Act an appeal may be brought to the Appeal Tribunal but, under s 142(3)(b) an appeal on a question of fact, or a question of mixed law and fact, can only be made if the party has obtained the Tribunal’s leave to appeal.

6. It is asserted for Mr Compton that the grounds set out in Deputy Commissioner Stewart’s appeal involve nothing more than ‘dissatisfaction’ with the decision of the learned Member, and leave is necessary.  For the Deputy Commissioner it is contended that the grounds of appeal involve questions of law, and leave is not required.

7. The stated grounds of appeal are that the learned Member placed disproportionate weight upon Mr Compton’s personal mitigating circumstances, and failed to give appropriate weight to the purpose of disciplinary proceedings including protection of the public and upholding the ethical standards of, and public confidence in, the Queensland Police Service; and, failed to give sufficient weight to the alleged seriousness of Mr Compton’s misconduct and other relevant matters, like principles of general deterrence.

8. On their face the grounds set out in the QCAT appeal application form[2] do not in terms raise questions of law but a cursory examination of them shows that questions of that kind are inherent in them.

   [2]        QCAT Form No 39.

9. An appeal which challenges the legal consequences of proven facts is usually said to raise ‘pure’ questions of law.  That is because, in the ordinary course of that kind of appeal, some obvious questions will arise: Did the decision maker act upon a wrong principle?  Did the tribunal allow extraneous or irrelevant matters to guide or affect it?  Did it take into account some immaterial considerations?  On their face, these questions have the obvious flavour of questions of law, not fact or a mixture of fact and law.[3]

   [3]        House v R (1936) 55 CLR 499, 504–5.

[10]  When, as here, the question is whether or not there was any error in the exercise of a discretion by a tribunal, the courts have often accepted that the question involves matters of law.  As Greenwood J explained in Perry v Comcare,[4] if the questions inherent in the grounds of appeal include questions like, for example, whether or not the Tribunal failed to take into account material considerations in the exercise of its discretion and it is possible that the consideration of those questions might reveal an error of law, then the appeal obviously raises questions of law.  

[4]        Perry v Comcare (2006) 150 FCR 319, 330–1.

[11]  It is questions of that very kind which inhere in the grounds of appeal here.  For that reason, leave to appeal was not necessary.  It is appropriate to declare that that is the case.