Willmott v Carless

Case [2024] QCA 115

SUPREME COURT OF QUEENSLAND

CITATION:

Willmott v Carless [2024] QCA 115

PARTIES:

PAUL JOHN WILLMOTT
(appellant)
v
ASSISTANT COMMISSIONER MAURICE CARLESS
(first respondent)
CRIME AND CORRUPTION COMMISSION
(second respondent)

FILE NO/S:

Appeal No 11079 of 2023
QCATA No 83 of 2021

DIVISION:

Court of Appeal

PROCEEDING:

Reference under Queensland Civil and Administrative Tribunal Act

ORIGINATING COURT:

Queensland Civil and Administrative Tribunal – Unreported, OCR083-21, 19 August 2022 (McMeekin KC)

DELIVERED ON:

14 June 2024

DELIVERED AT:

Brisbane

HEARING DATE:

23 November 2023

JUDGES:

Mullins P and Flanagan and Boddice JJA

ORDER:

The question of law referred should be answered as follows:

The Tribunal’s review power under s 219Q(1) of the Crime and Corruption Act 2001 (Qld) is predicated on there being first shown legal, factual or discretionary error in the decision below.

CATCHWORDS:

APPEAL AND NEW TRIAL – PROCEDURE – QUEENSLAND – OTHER MATTERS – CASES STATED AND REFERENCE OF QUESTION OF LAW – where the appellant was a sergeant of the Queensland Police Service – where the Assistant Commissioner made a decision under the Police Service Administration Act 1990 (Qld) in a disciplinary proceeding finding the charge against the appellant was substantiated and imposed a disciplinary sanction – where the appellant applied for review of those decisions to the Queensland Civil and Administrative Tribunal (the Tribunal) – where the Crime and Corruption Commission elected to become a party to the review pursuant to the Crime and Corruption Act 2001 (Qld) (CC Act) – where the Tribunal member made the referral order because there appeared to be inconsistent decisions of the Court of Appeal on the nature of the Tribunal’s review of a decision on a police disciplinary matter – where the reference involved a question of statutory construction concerning whether there was inconsistency between the nature of the hearing under s 219Q of the CC Act and under s 20 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) – whether the Tribunal’s review under s 219Q(1) of the CC Act is predicted on there being first shown legal, factual or discretionary error in the decision below

Crime and Corruption Act 2001 (Qld), s 219H, s 219O, s 219P, s 219Q, s 219R, s 219S, s 219U
Police Service Administration Act 1990 (Qld), s 7.4, s 7.8, s 7.25, s 7.26, s 7.27, s 7.28, s 7.29, s 7.30, s 7.31, s 7.32
Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 6, s 7, s 9, s 17, s 20, s 24, s 118, s 157, s 182

Aldrich v Ross [2001] 2 Qd R 235; [2000] QCA 501, considered
Builders Licensing Board v Sperway Constructions (Syd) Pty Ltd (1976) 135 CLR 616; [1976] HCA 62, cited
Coal & Allied Operations Pty Ltd v Australian Industrial Relations Commission (2000) 203 CLR 194; [2000] HCA 47, cited
Gunter v Assistant Commissioner Wilkins [2021] QCA 274, considered

COUNSEL:

M Black for the appellant
M D Nicholson for the first respondent
A C Freeman…

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AGLC
Willmott v Carless [2024] QCA 115
Case
[2024] QCA 115
Decision Date

CaseChat Overview and Summary

In Willmott v Carless, the appellant, a former sergeant of the Queensland Police Service, challenged the Queensland Civil and Administrative Tribunal's (QCAT) review of a disciplinary decision against him. The Tribunal had reviewed the Assistant Commissioner's decision to substantiate a disciplinary charge against the appellant and impose a sanction, under the Crime and Corruption Act 2001 (Qld) (CC Act). The appellant's application for review was contested by the Crime and Corruption Commission, which elected to participate in the review process. The Tribunal member referred a question of statutory construction to the court, seeking clarification on the nature of the Tribunal's review power under s 219Q of the CC Act and its compatibility with the Tribunal's review jurisdiction under s 20 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld).

The central legal issue was whether the Tribunal's review of a disciplinary decision under s 219Q(1) of the CC Act was predicated on the existence of legal, factual, or discretionary error in the decision being reviewed. The court needed to interpret the statutory provisions to determine whether the Tribunal could review the decision without first identifying such errors. This interpretation was crucial as it affected the scope and limits of QCAT's review jurisdiction in police disciplinary matters.

The court held that the Tribunal's review power under s 219Q(1) of the CC Act was indeed predicated on the identification of legal, factual, or discretionary error in the decision below. This interpretation aligned with the Tribunal's general review jurisdiction under the QCAT Act, which typically requires a demonstration of such errors to initiate a review. The court emphasised that the enabling nature of the CC Act did not alter this fundamental requirement, maintaining consistency in the application of review jurisdiction across different statutes. Consequently, the court answered the referred question of law in the affirmative, clarifying that the Tribunal's review power under the CC Act is contingent upon identifying errors in the original decision.

Orders

Orders of the court

The question of law referred should be answered as follows:

The Tribunal’s review power under s 219Q(1) of the Crime and Corruption Act 2001 (Qld) is predicated on there being first shown legal, factual or discretionary error in the decision below.

Background

Background to the litigation

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Evidence

Evidence Before The Court

Section 219Q of the CC Act which has the heading “QCAT to decide review on evidence before decision maker” provides:“(1)A review of a reviewable decision is by way of rehearing on the evidence (original evidence) given in the proceeding before the original decision-maker (original proceeding).(2)However, QCAT may give leave to adduce fresh, additional or substituted evidence (new evidence) if satisfied—(a)the person seeking to adduce the new evidence did not know, or could not reasonably be expected to have known, of its existence at the original proceeding; or(b)in the special circumstances of the case, it would be unfair not to allow the person to adduce the new evidence.(3)If QCAT gives leave under subsection (2), the review is—(a)by way of rehearing on the original evidence; and(b)on the new evidence adduced.” The parties to a review are specified in s 219R of the CC Act. Section 219S of the CC Act confers additional power on the Tribunal where, on the review, the Tribunal finds a ground for disciplinary action has been proved against the subject officer, sets aside the decision and substitutes another decision:“(1)This section applies if, after reviewing the reviewable decision, QCAT—(a)finds a ground for disciplinary action has been proved against the subject officer; and(b)sets aside the decision and substitutes another decision.(2)QCAT—(a)has the same powers as the commissioner of police under the Police Service Administration Act 1990, part 7, division 5; and(b)may impose any disciplinary sanction on the subject officer under that part, even if the person who made the reviewable decision would not be authorised under that part to impose the disciplinary sanction.” Under s 219U of the CC Act, the Tribunal may, by order, refer the matter before it to the CCC or the Commissioner of Police for investigation, or further investigation, with a view to the taking of a criminal proceeding or for another purpose. Under s 9(1) of the QCAT Act the Tribunal has jurisdiction to deal with matters it is empowered to deal with under the QCAT Act or an enabling Act. Section 9(2) provides that the jurisdiction conferred on the Tribunal is either original, review or appeal jurisdiction. The review jurisdiction is dealt with in Division 3 of Part 1 of Chapter 2 of the QCAT Act. Under s 17(1) of the QCAT Act, the Tribunal’s review jurisdiction is the jurisdiction conferred on the Tribunal by an enabling Act to review a decision made or taken to have been made by another entity under that Act. The definition of an enabling Act is found in s 6(2) of the QCAT Act and includes an Act that confers review jurisdiction on the Tribunal. The CC Act is an enabling Act for the purpose of the application of the QCAT Act to a reviewable decision as defined in s 219O of the CC Act. Section 6(4) relevantly provides:“An enabling Act that is an Act conferring review jurisdiction on the tribunal may state the tribunal’s functions in the jurisdiction, which may add to, otherwise vary, or exclude functions stated in this Act.”

Decision

Reasons for decision

The CC Act makes provision for the review of specified decisions under the Police Service Act. Section 219O of the CC Act deals with reviewable decisions and provides:“(1)A reviewable decision is a decision made under the Police Service Administration Act 1990 that is mentioned in schedule 1, column 1.(2)However, a decision under part 7, division 4 of that Act that a disciplinary charge, or another ground for disciplinary action, has been proved in relation to an officer is a reviewable decision only if the officer is entitled to be given a QCAT information notice for the decision under section 7.27(4) or 7.31(1) of that Act.(3)In this section—disciplinary charge see the Police Service Administration Act 1990, section 7.25(a).” Section 219P of the CC Act deals with the process for making the application to the Tribunal for the review of the reviewable decision, including the time period for making the application. Section 219Q of the CC Act which has the heading “QCAT to decide review on evidence before decision maker” provides:“(1)A review of a reviewable decision is by way of rehearing on the evidence (original evidence) given in the proceeding before the original decision-maker (original proceeding).(2)However, QCAT may give leave to adduce fresh, additional or substituted evidence (new evidence) if satisfied—(a)the person seeking to adduce the new evidence did not know, or could not reasonably be expected to have known, of its existence at the original proceeding; or(b)in the special circumstances of the case, it would be unfair not to allow the person to adduce the new evidence.(3)If QCAT gives leave under subsection (2), the review is—(a)by way of rehearing on the original evidence; and(b)on the new evidence adduced.” The parties to a review are specified in s 219R of the CC Act. Section 219S of the CC Act confers additional power on the Tribunal where, on the review, the Tribunal finds a ground for disciplinary action has been proved against the subject officer, sets aside the decision and substitutes another decision:“(1)This section applies if, after reviewing the reviewable decision, QCAT—(a)finds a ground for disciplinary action has been proved against the subject officer; and(b)sets aside the decision and substitutes another decision.(2)QCAT—(a)has the same powers as the commissioner of police under the Police Service Administration Act 1990, part 7, division 5; and(b)may impose any disciplinary sanction on the subject officer under that part, even if the person who made the reviewable decision would not be authorised under that part to impose the disciplinary sanction.” Under s 219U of the CC Act, the Tribunal may, by order, refer the matter before it to the CCC or the Commissioner of Police for investigation, or further investigation, with a view to the taking of a criminal proceeding or for another purpose. Under s 9(1) of the QCAT Act the Tribunal has jurisdiction to deal with matters it is empowered to deal with under the QCAT Act or an enabling Act. Section 9(2) provides that the jurisdiction conferred on the Tribunal is either original, review or appeal jurisdiction. The review jurisdiction is dealt with in Division 3 of Part 1 of Chapter 2 of the QCAT Act. Under s 17(1) of the QCAT Act, the Tribunal’s review jurisdiction is the jurisdiction conferred on the Tribunal by an enabling Act to review a decision made or taken to have been made by another entity under that Act. The definition of an enabling Act is found in s 6(2) of the QCAT Act and includes an Act that confers review jurisdiction on the Tribunal. The CC Act is an enabling Act for the purpose of the application of the QCAT Act to a reviewable decision as defined in s 219O of the CC Act.

Ratio Decidendi

Legal Principle Established

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