ASSISTANT COMMISSIONER MAURICE CARLESS CRIME AND CORRUPTION COMMISSION
(respondents)
APPLICATION NO/S:
APL162-21
ORIGINATING APPLICATION NO/S:
OCR083-21
MATTER TYPE:
Appeals
DELIVERED ON:
5 November 2021
HEARING DATE:
On the papers
HEARD AT:
Brisbane
DECISION OF:
Judicial Member D J McGill SC
ORDERS:
1. Leave to appeal is granted.
2. The appeal is allowed.
3. The decision of the Tribunal of 17 May 2021 is set aside.
4. In lieu thereof, it is ordered that the part of the decision of the first respondent of 1 March 2021 the subject of the review proceeding OCR083-21 which provided that the applicant was subject to a local transfer to a general duties position, be stayed on condition that he not return to the particular location at which he worked at the time of the events giving rise to the disciplinary action, but remain within that Unit of the Police Service.
5. The application for a stay is otherwise refused.
6. Any party seeking an order for costs is to file and serve on the other parties submissions in writing setting out the order sought, and the arguments in support of that order, within fourteen days from the date of this decision. If such submissions are filed, I will give further directions; otherwise, there be no order as to costs.
CATCHWORDS:
POLICE – INTERNAL ADMINISTRATION – DISCIPLINE AND DISMISSAL – QUEENSLAND – review of decision – stay of sanction pending determination of the review – significance of public interest – whether factual error affected discretion – discretion re-exercised – part of sanction stayed
ADMINISTRATIVE LAW – ADMINISTRATIVE TRIBUNALS – QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL - stay of decision pending review – whether stay desirable – police disciplinary matter – significance of public interest – test applied – whether error of fact – discretion re-exercised – part of sanction stayed
The applicant is a serving police officer. On 20 November 2020 and 1 March 2021 the first respondent made decisions in disciplinary proceedings against him. The applicant has applied to the Tribunal to review those decisions, and applied to the Tribunal to stay the sanctions imposed by the first respondent pending the hearing and determination of that review. On 17 May 2021 a Member dismissed the application for stay. The applicant now seeks leave to appeal from…
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
AGLC
Willmott v Carless [2021] QCATA 132
Case
[2021] QCATA 132
Decision Date
CaseChat Overview and Summary
Willmott v Carless was a case before the Queensland Civil and Administrative Tribunal, where the applicant, a police officer, sought review of a disciplinary decision that resulted in his dismissal. The key issue before the court was whether the Tribunal should stay the disciplinary sanction pending the outcome of the review, and if so, what part of the sanction should be stayed. The applicant argued that a stay was necessary due to the significant public interest in maintaining police discipline and the possibility that an error of fact might have influenced the original decision.
The court considered the principles governing the stay of administrative decisions, particularly in disciplinary matters involving public servants. It was necessary to weigh the public interest in maintaining discipline against the applicant's right to a fair review process. The court found that the Tribunal had exercised its discretion to stay part of the sanction, specifically the requirement for a local transfer to a general duties position, but did not stay the dismissal itself. The applicant was permitted to remain within the same unit but was prohibited from returning to the location where the events leading to the disciplinary action occurred.
The court determined that the Tribunal had correctly identified an error of fact that might have influenced the original decision. However, despite this error, the court found that the overall decision to dismiss the applicant was justified. Consequently, the court allowed the appeal, set aside the Tribunal's decision, and ordered a stay of the local transfer sanction under specific conditions. The court also outlined the process for any party seeking an order for costs, requiring written submissions to be filed within fourteen days.
Orders
Orders of the court
1. Leave to appeal is granted.
2. The appeal is allowed.
3. The decision of the Tribunal of 17 May 2021 is set aside.
4. In lieu thereof, it is ordered that the part of the decision of the first respondent of 1 March 2021 the subject of the review proceeding OCR083-21 which provided that the applicant was subject to a local transfer to a general duties position, be stayed on condition that he not return to the particular location at which he worked at the time of the events giving rise to the disciplinary action, but remain within that Unit of the Police Service.
5. The application for a stay is otherwise refused.
6. Any party seeking an order for costs is to file and serve on the other parties submissions in writing setting out the order sought, and the arguments in support of that order, within fourteen days from the date of this decision. If such submissions are filed, I will give further directions; otherwise, there be no order as to costs.