Wellington v Assistant Commissioner Carless - [2021] QCATA 111

QUEENSLAND CIVIL AND
ADMINISTRATIVE TRIBUNAL

CITATION:

Wellington v Assistant Commissioner Carless & Anor [2021] QCATA 111

PARTIES: BARRY WELLINGTON

(applicant/appellant)

v

ASSISTANT COMMISSIONER MAURICE CARLESS

(first respondent)

CRIME AND CORRUPTION COMMISSION

(second respondent)

APPLICATION NO/S:

APL184-21

ORIGINATING APPLICATION NO/S:

OCR235-20

MATTER TYPE:

Appeals

DELIVERED ON:

3 September 2021

HEARING DATE:

On the papers

HEARD AT:

Brisbane

DECISION OF:

Senior Member Aughterson

ORDERS:

The application to stay a decision filed on 30 June 2021 is refused.

CATCHWORDS:
APPEALS AND NEW TRIAL – PROCEDURE – QUEENSLAND – STAY OF PROCEEDINGS – GENERAL PRINCIPLES AS TO GRANT OR REFUSAL – Where application to stay decision pending outcome of appeal – Whether stay should be allowed

Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 145

Bryant v Commonwealth Bank of Australia [1996] HCA 3

Cellante and Ors v G Kallis Industries Pty Ltd [1991] 2 VR 653

Crime and Corruption Commission v Carless & Anor [2021] QCAT 216

Crinis v Ray White Paradise Group [2016] QCATA 90

Deputy Commissioner Stewart v Kennedy [2011] QCATA 254

Legal Services Commissioner v Baker [2005] QCA 482

Maher v Commonwealth Bank of Australia [2008] VSCA 122

Maund v Racing Victoria Ltd [2015] VSCA 276

Robb v The Law Society of the Australian Capital Territory (ACT G34 of 1996, 21 June 1996)

Re Middle Harbour Investments Ltd (in liq) [1977] 2 NSWLR 652

Waltisbuhl v Queensland Racing Integrity Commission [2021] QCATA 94

REPRESENTATION:

Applicant/Appellant:

First respondent:

Second respondent:

APPEARANCES:

M Black of Counsel, instructed by Gnech and Associates

M O’Brien, Senior Legal Officer

K Donovan, Principal Lawyer CCC

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

REASONS FOR DECISION

The present application is an application to stay a decision of the Tribunal in matter OCR235-20, pending a determination of the application for leave to appeal or appeal that decision.[1]
[1]As to the power to grant a stay, see Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 145(2).
The decision in OCR235-20 was made on 8 June 2021 and the application for leave to appeal or appeal was filed on 30 June 2021. The application to stay a decision was filed on the same day as the appeal. On 12 July 2021, directions were issued for the filing of submissions, with further directions on 13 August 2021 granting extensions of time for filing. Submissions have now been filed by all parties.
In the underlying disciplinary proceedings, the applicant was charged with one matter of misconduct, alleging that:[2]
(a) During a pursuit he instructed a junior constable to drive in a manner which posed an unacceptable risk to himself, other road users and members of the public;
(b) He failed to comply with operational procedures and directions to abandon the pursuit;
(c) He discharged his service issue firearm without justification.
[2]Crime and Corruption Commission v Carless & Anor [2021] QCAT 216, [17]-[19].
The first respondent found the matter substantiated in in all…

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 Wellington v Assistant Commissioner Carless

Details

AGLC: Wellington v Assistant Commissioner Carless [2021] QCATA 111
Case: [2021] QCATA 111
Decision Date: 3 September 2021

CaseChat Overview and Summary

In the matter of Wellington versus Assistant Commissioner Carless, the appellant, Mr. Wellington, sought to stay a decision made by the respondent, pending the outcome of an appeal. The matter was heard by the court, which was tasked with determining whether the application for a stay should be granted or refused. The court was required to consider the general principles applicable to granting or refusing a stay of proceedings, and the specific circumstances of this case. The appellant argued that a stay was necessary to prevent irreparable harm, while the respondent contended that a stay was not warranted as the appeal was unlikely to succeed and the decision could be implemented without significant prejudice.

The court examined the relevant legal principles governing the grant of a stay of proceedings. It noted that a stay is an extraordinary remedy, which should only be granted in exceptional circumstances. The court considered whether the appellant had demonstrated that the decision in question would result in significant harm if implemented before the appeal was determined. Additionally, the court assessed whether the appellant had shown that the appeal had a reasonable prospect of success. After considering the evidence and arguments presented by both parties, the court concluded that the application for a stay should be refused. The court found that the appellant had not demonstrated that the decision would cause irreparable harm if implemented, nor had he shown that the appeal had a reasonable prospect of success.

Based on the court's reasoning, the application to stay the decision filed on 30 June 2021 was refused. The court held that the appellant had not met the threshold for granting a stay of proceedings, and therefore, the decision could be implemented without a stay. This decision highlights the high threshold that must be met for an applicant to successfully seek a stay of proceedings in such circumstances. The court's ruling ensures that the principles governing the grant of a stay are applied consistently, and that the remedy is reserved for truly exceptional cases.

Orders

Orders of the court

The application to stay a decision filed on 30 June 2021 is refused.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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