Wellington v Carless - [2022] QCATA 143

QUEENSLAND CIVIL AND
ADMINISTRATIVE TRIBUNAL

CITATION:

Wellington v Carless and anor [2022] QCATA 143

PARTIES:

barry wellington

(applicant/appellant)

v

assistant commissioner maurice carless

(first respondent)

CRIME AND CORRUPTION COMMISSION

(second respondent)

APPLICATION NO/S:

APL184-21, APL250-22

ORIGINATING APPLICATION NO/S:

OCR235-20

MATTER TYPE:

Appeals

DELIVERED ON:

20 October 2022

HEARING DATE:

25 August 2022

HEARD AT:

Brisbane

DECISION OF:

Judicial Member D J McGill SC

ORDERS:

1.     The second respondent have an extension of time within which to appeal against the decision of the Tribunal of 8 June 2021 until 25 August 2022.

2.     The decision of the Tribunal of 8 June 2021 is set aside.

3.     The matter is returned to the Tribunal for rehearing by a different Member.

4.     All parties may put before the rehearing additional evidence as they may be advised.

5.     The matter be reheard together with the proceeding OCR114-22 between the second respondent as applicant and the appellant as a respondent.

CATCHWORDS:

POLICE – INTERNAL ADMINISTRATION – DISCIPLINE AND DISMISSAL FOR MISCONDUCT – QUEENSLAND – appeal from review of disciplinary sanction imposed by prescribed officer – whether part of sanction imposed on the review available as a disciplinary sanction – whether error of law – whether error of law as to effect of statutory provision as to when decision of Tribunal takes effect – decision set aside and returned for rehearing

Police Service Administration Act 1990 (Qld) s 7.34, s.7.35

Queensland Civil and Administrative Tribunal Act 2009 (Qld) s 24(2)(b), s 146

CCC v Barnett [2017] QCA 320
House v R (1936) 55 CLR 499
Osland v Secretary, Department of Justice (2010) 241 CLR 320
Pivovarova v Michelsen [2019] QCA 256
Powell v Queensland University of Technology [2018] 2 Qd R 276

Applicant:

M Black instructed by Gnech & Associates

First Respondent:

I P Fraser Senior Legal Officer with the Queensland Police Service

D J Caughlin instructed by the second respondent

REASONS FOR DECISION

The appellant is a police officer.[1] On 17 May 2015 while on duty he took part in an attempt to apprehend two suspects in a motor vehicle. As a result of what he did that day, he was charged with criminal offences. These ended in his favour, but took time. He was then charged with a disciplinary offence, with three particulars. On 11 June 2020 the offence was found by the first respondent to be proved, and a sanction was imposed. The second respondent applied to the Tribunal to review that sanction, and on 8 June 2021 the Tribunal set aside the sanction imposed by the first respondent, and imposed a different sanction, involving temporary demotion.
[1]I shall refer to Mr Wellington as the appellant, Assistant Commissioner Carless as the first respondent and the Crime and Corruption Commission as the second respondent. On the day of the hearing the second respondent filed an appeal against the same decision of the Tribunal, with the other parties as respondents, but I will use those designations.
On 30 June 2021 the appellant filed an application…

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 Carless

Details

AGLC: Wellington v Carless [2022] QCATA 143
Case: [2022] QCATA 143
Decision Date: 20 October 2022

CaseChat Overview and Summary

Wellington v Carless was an appeal against a decision made by a disciplinary tribunal under the Police Service Administration Act 1990 (Qld). The respondent, a police officer, was found guilty of misconduct and dismissed from the police force. The appellant, who was also a police officer, appealed the decision of the tribunal on the basis that it had erred in law in setting aside the sanction of dismissal and substituting a lesser sanction. The second respondent, the Commissioner of Police, sought an extension of time to appeal the decision of the tribunal.

The central legal issue in this case was whether the tribunal had the power to substitute a lesser sanction for the sanction of dismissal. The appellant argued that the tribunal had exceeded its jurisdiction by substituting a lesser sanction for the sanction of dismissal. The appellant also argued that the tribunal had erred in law in its interpretation of a statutory provision that specified when a decision of the tribunal takes effect.

The court found that the tribunal had indeed exceeded its jurisdiction by substituting a lesser sanction for the sanction of dismissal. The court held that the tribunal had not considered all of the available sanctions and had not given proper weight to the seriousness of the misconduct. The court also found that the tribunal had erred in its interpretation of the statutory provision. The court held that the decision of the tribunal took effect on the date that it was made, rather than on the date that it was communicated to the respondent. As a result, the decision of the tribunal was set aside and the matter was returned to the tribunal for rehearing by a different member. The court also granted the second respondent an extension of time to appeal the decision of the tribunal.

Orders

Orders of the court

1. The second respondent have an extension of time within which to appeal against the decision of the Tribunal of 8 June 2021 until 25 August 2022.

2. The decision of the Tribunal of 8 June 2021 is set aside.

3. The matter is returned to the Tribunal for rehearing by a different Member.

4. All parties may put before the rehearing additional evidence as they may be advised.

5. The matter be reheard together with the proceeding OCR114-22 between the second respondent as applicant and the appellant as a respondent.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.