Willmott v Carless

Case [2021] QCATA 132


QUEENSLAND CIVIL AND
ADMINISTRATIVE TRIBUNAL


CITATION:

Willmott v Carless [2021] QCATA 132

PARTIES: PAUL JOHN WILLMOTT

(applicant/appellant)

v

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

Queensland Civil and Administrative Tribunal Act 2009 (Qld) s 22

Aldrich v Boulton [2001] 2 Qd R 235
Deputy Commission Stewart v Kennedy [2011] QCATA 254
Jones v Acting Assistant Commissioner Horton [2020] QCAT 304
Legal Services Commissioner v Baker (No 1) [2006] 2 Qd R 107

Applicant:

M Black instructed by Gilshenan & Luton Legal Practice

Respondent:

Queensland Police Service Legal Unit for the first respondent.

K Donovan Principal Lawyer for the second respondent.

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

  1. 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…

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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.

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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