Assistant Commissioner Maurice Carless & Anor v HTI; HTI v Assistant Commissioner Maurice Carless & Anor [2026] QCATA 29

QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL CITATION: Assistant Commissioner Maurice Carless & Anor v HTI; HTI v Assistant Commissioner Maurice Carless & Anor [2026] QCATA 29 PARTIES: In APL050-25: ASSISTANT COMMISSIONER MAURICE CARLESS (applicant/appellant) v HTI (first respondent) CRIME AND CORRUPTION COMMISSION (second respondent) In APL052-25: HTI (applicant/appellant) v ASSISTANT COMMISSIONER MAURICE CARLESS (first respondent) CRIME AND CORRUPTION COMMISSION (second respondent) APPLICATION NO/S: APL050-25; APL052-25 ORIGINATING APPLICATION NO/S: OCR394-20 MATTER TYPE: Appeals DELIVERED ON: 23 January 2026 HEARING DATE: On the papers HEARD AT: Brisbane DECISION OF: Senior Member Fitzpatrick ORDERS: The appeal in matter number APL050-25 is allowed. The appeal in matter number APL052-25 is allowed. The decision and orders made on 14 January 2025 in OCR394-20 are set aside. -- 1 of 8 -- 2 The matter is remitted to be re-heard by a differently constituted Tribunal to be dealt with according to law. There is no order as to costs. CATCHWORDS: APPEAL AND NEW TRIAL – APPEAL - GENERAL PRINCIPLES – RIGHT OF APPEAL – WHEN APPEAL LIES – ERROR OF LAW – where Detective Sergeant was served with a Disciplinary Proceeding Notice which alleged that she had engaged in various acts of misconduct – where Tribunal reviewed a decision that the Detective Sergeant had engaged in misconduct – where appeal filed by the original decision maker and the Detective Sergeant – where consent position reached and proposed orders submitted – where parties say the Tribunal failed to make orders determining the entirety of the matters in dispute on review in respect to certain matters – where parties say the Tribunal erred in law by considering the individual particulars alleged rather than the whole of the particulars collectively – whether error of law – whether to limit the remittal of the matter Police Service Administration Act 1990 (Qld), s 7.4, s 7.25, s 7.27, s 7.8, sch 2 Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 146 Board of Professional Engineers v Krogh, N.P [2005] QCCTE 3 Fox v Percy (2003) 214 CLR 118 Goldsmith v Sandilands (2002) 190 ALR 320 Kovalev v Minister for Immigration and Multicultural Affairs [1999] FCA 557 Lee v Lee (2019) 266 CLR 129 Mackey v CIC Allianz Australia Insurance Limited [2015] NSWSC 505 Minister for Immigration and Multicultural Affairs v Wang (2003) 215 CLR 518 Officer JGB v Deputy Commissioner Gollschewski and Anor [2016] QCAT 348 Robinson Helicopter Company Inc v McDermott (2016) 90 ALJR 679 Warren v Combes (1979) 142 CLR 531 APPEARANCES & REPRESENTATION: This matter was heard and determined on the papers pursuant to s 32 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) -- 2 of 8 -- 3 REASONS FOR DECISION Proposed Order [1] On 14 January 2025 the Tribunal reviewed a decision of Assistant Commissioner Maurice Carless (‘Assistant Commissioner’) that HTI had engaged in misconduct. No review of the decision to dismiss HTI from the Queensland Police Force has yet occurred. [2] HTI and the Assistant Commissioner have each appealed the decision. Both applications for leave to appeal or appeal are being dealt with together. [3] HTI, the Assistant Commissioner and the Crime and Corruption Commission are agreed on proposed orders they seek from the Appeal Tribunal, being: (a) The appeal in case number APL050-25 be allowed. (b) The appeal in case number APL052-25 be allowed. (c) The decision and orders made on 14 January 2025 are set aside. (d) The decision of Assistant Commissioner Carless dated 4 August 2020 in respect of the substantiation of Matters 1(a), 2, 3 and 5 on the Disciplinary Proceedings Notice is confirmed. (e) The Review Application in relation to substantiation of the disputed allegations in the Disciplinary Proceedings Notice, namely Matter 1 (b) and (c), and particular (x) and Matter 4 particulars (ii), (iv), (v), (vi), (viii), (ix), (x), (xi), (xii), (xiii), (xvi), (xvii), (xxiii), (xxiv), (xxviii), (xxxi), (xxix), (xxxi), (xxxii), (xxxiii) and (xxxiv) is remitted to the Tribunal (differently constituted) to be dealt with according to law. (f) No order as to costs. Has there been an error of law? [4] Even where there is agreement as to the outcome sought by the parties, it is still necessary for the Appeal Tribunal to be satisfied that there was error, and to identify the error which affected the decision below.1 [5] The parties were directed to make joint submissions. I have considered the parties’ joint submissions together with the submissions they have each filed in the appeal proceeding. The parties’ submissions [6] The parties contend that the Tribunal below made errors of law in respect of the charges referred to as Matter 1 and Matter 4 in the Disciplinary Proceeding Notice served on HTI under s 7.8 of the Police Service Administration Act 1990 (Qld) (PSA Act). The charges are that HTI engaged in improper conduct. [7] Broadly, Matter 1 relates to allegedly allowing a youth offender to handle a magazine from HTI’s service pistol and the Oleoresin Capsicum spray cannister and allegedly 1 Kovalev v Minister for Immigration and Multicultural Affairs [1999] FCA 557, [8]–[13]; Mackey v CIC Allianz Australia Insurance Limited [2015] NSWSC 505, [3]. -- 3 of 8 -- 4 entering a restricted area with the youth. Matter 4 relates to various instances of allegedly negative workplace behaviour over an 8-year period. [8] The errors of law set out in the joint submission are said to be: First ground (a) Failing to make orders determining the entirety of the matters in dispute on review in respect to Matter 1 and Matter 4. The basis on which the error is said to arise is a failure to determine, by the Tribunal’s orders, whether disputed allegations in Matter 1(b) and (c) and particular (x) were substantiated. Further, a failure to make orders determining the entirety of the 20 particulars in Matter 4 that were in dispute. On the face of the orders made by the Tribunal the orders did not deal with all of the disputed allegations in Matter 4 so that it is unclear from the orders which of the disputed allegations in Matter 4 were dealt with. Second ground (b) The Tribunal erred in law by asking itself the wrong question on review, namely, whether each of the disputed allegations constituted official misconduct. The basis on which the error is said to arise is that the Tribunal considered the individual particulars alleged in Matter 4 and considered whether each particular is misconduct rather than considering the whole of the particulars collectively as to whether the collective conduct amounts to misconduct or not. It is also submitted that the Tribunal erred in finding the individual particulars accepted in Matter 4 (not disputed), did not amount to misconduct and therefore made an error of law. [9] I accept the submissions of the parties that an error of law has occurred with respect to the first ground. [10] As to the second ground I have referred to the submissions filed in the appeal proceedings by each party which set out in more detail the basis for the asserted error of law. [11] In submissions dated 30 June 2025 the Assistant Commissioner makes the following submissions: (a) The proper approach on a re-hearing is to identify which particular is factually accepted in a disciplinary charge and then make an assessment on the whole of the accepted particulars and consider whether they amount to misconduct under the particular matter or charge. (b) Support for this approach is said to come from ss 7.4 and 7.27(2) of the PSA Act which provide for disciplinary action if a disciplinary charge is proved. The Assistant Commissioner says that by s 7.25 of the PSA Act the particulars comprise the disciplinary charge and the particulars as a whole are the factual basis to prove the disciplinary charge alleged. It is useful to set out the provisions: 7.4 Grounds for disciplinary action -- 4 of 8 -- 5 (1) The subject officer may be disciplined under this part if the subject officer has–– (a) committed misconduct;2 … 7.25 How disciplinary proceeding is started A prescribed officer may start a disciplinary proceeding under this division by giving the subject officer a notice (a disciplinary proceeding notice) stating–– (a) particulars of the alleged ground for disciplinary action (the disciplinary charge); … 7.27 Decision about whether disciplinary charge is proved (1) … (2) The prescribed officer must decide whether the disciplinary charge, or another ground for disciplinary action, is proved. (c) The Assistant Commissioner says that as a result of amendments to the PSA in 2019 the words ‘misconduct’ and ‘breach of discipline’ were replaced with the term ‘a ground for disciplinary action’. It is submitted that the amendment changed the test to require that a disciplinary charge as a whole must be proven as misconduct. (d) The wrong legal test required by s 7.27(2) of the PSA Act was applied. The Tribunal was required to determine whether the disciplinary charge as a whole was substantiated as misconduct. Once the disciplinary charge was substantiated by way of particulars, it is then that the Tribunal makes an assessment about whether or not the particulars substantiated under the charge or matter amounts to misconduct. (e) Reliance is placed on Officer JGB v Deputy Commissioner Gollschewski and Anor3 (‘Officer JBG’) where the Member decided that an event would not be decided in isolation but in the context of the established particulars. [12] The Crime and Corruption Commission (‘the CCC’) in its submissions in the appeal proceeding dated 28 July 2025 framed the question of law arising in the proceeding as: whether the Tribunal erred in finding the particular of a disciplinary charge required a determination as to misconduct. [13] The CCC does not agree with the reasoning of the Assistant Commissioner that s 7.27(2) of the PSA Act requires the Tribunal to consider the disciplinary charge ‘as a whole’, nor that the approach in Officer JGB is apposite. 2 The Police Service Administration Act 1990 (Qld) provides that ‘misconduct’ ‘means conduct that – (a) is disgraceful, improper or unbecoming an officer; or (b) shows unfitness to be or continue as an officer; or (c) does not meet the standard of conduct the community reasonably expects of a police officer’: at sch 2 (definition of ‘misconduct’). 3 [2016] QCAT 348, [152]. -- 5 of 8 -- 6 [14] However, the CCC does agree that the amendments to s 7.4 in 2019 mean that a finding of misconduct is no longer required to be made in respect of each particular. [15] The CCC relies on Goldsmith v Sandilands4 description of particulars as filling in the picture with information sufficiently detailed to know what case has to be met. On this basis, given the nature of particulars it was incorrect for the Member to proceed on the basis that each particular required a finding as to misconduct. [16] HTI in her submissions agrees with the other parties that the Member adopted a wrong approach by determining first whether the particulars were substantiated and then whether each particular amounts to misconduct. Consideration [17] Respectfully I do not consider any of the submissions provide clear guidance as to how the Member should have proceeded in the conduct of the review. I note that no submissions were made to the Member in terms now put as to how he should deal with the particulars. [18] Obviously, the particulars are not the charge. Where the Member has found error on the part of the Assistant Commissioner and may then as part of a re-hearing make his own findings, the Member must make a finding as to whether the particulars evidence that the charge is met. Where one particular of a charge of misconduct is given a Member will determine whether the alleged facts occurred and then determine if the facts fall within the definition of misconduct under the PSA Act and as interpreted at common law. [19] The difficulty highlighted by the submissions of the parties, occurs where a number of particulars are given to evidence a charge. In the case of Matter 4, 34 particulars are given, 20 of which are contested. Is the Assistant Commissioner asserting a course of conduct so that viewed cumulatively the particulars meet the definition of misconduct? The answer to the question depends on how the disciplinary charge is framed.5 There is no impediment to a charge being framed by reference to a course of conduct, but it must be clear that is the case HTI is to meet. [20] In this case Matter 4 is framed as follows: That on diverse dates between 1 January 2011 and 14 February 2019 your conduct was improper in that you engaged in negative workplace behaviour. [21] Arguably the disciplinary charge is framed by reference to ‘diverse dates’, that is many discrete dates, suggesting that it is proper to consider whether each particular amounts to misconduct. [22] If the Assistant Commissioner intended an assessment to be made by reference to at least some or all of the particularised conduct he could have said words to the effect: “You have engaged in a course of conduct between 2011 and 2019 which viewed collectively is improper conduct…” [23] To adopt the parties’ submissions requires a finding that the particulars of the relevant disciplinary charge or ground for disciplinary action, in this case misconduct, are not 4 (2002) 190 ALR 320, 371. 5 See the discussion in Board of Professional Engineers v Krogh, N.P [2005] QCCTE 3 in relation to particulars being dealt with cumulatively or discretely. -- 6 of 8 -- 7 considered as discrete particulars but rather all substantiated particulars must be considered to determine if the charge of misconduct is met. [24] To my mind whether that is permissible depends on the way the disciplinary charge is framed, so that it is clear to the police officer that the Assistant Commissioner relies on a course of conduct rather than discrete instances of misconduct. [25] To some extent my concerns amount to an aside, because, despite the way the charge in Matter 4 is framed, HTI has proceeded on the basis that it is a course of conduct being alleged against her. She wishes to have the particulars viewed collectively in deciding if the charge is met. [26] In summary, the Assistant Commissioner submits (and the other parties do not disagree) the proper course for the Member was to: (a) Review the evidence in the sense described in Fox v Percy6, Warren v Combes7, Robinson Helicopter Company Inc v McDermott8, and Lee v Lee9. (b) Make any findings as to error. (c) Where error is found draw any necessary inferences and make the Member’s own findings of fact as to whether the particularised events occurred. (d) Lastly, look at all the facts as found collectively, and determine if the charge is made out. [27] Even though the parties are agreed and HTI has adopted a particular approach to defence of the charges against her, I am unable to draw a principle of law from the submissions which will apply more broadly to demonstrate error of law on the part of a Member conducting a review of a police disciplinary matter, if the process promulgated by the parties is not followed in other cases. [28] I note the difference in analysis undertaken by the Assistant Commissioner and the CCC as to the effect of s 7.27(2) of the PSA. I query whether the Assistant Commissioner is asserting that if not all the particulars which comprise the disciplinary charge are substantiated whether the charge is not met. That is an all or nothing approach. Conclusion [29] I am prepared to remit the matter to be re-heard by a different Member, on the basis of the error described in this decision as ground one. [30] I am prepared to set aside the decision and orders made on 14 January 2025, however, I am not prepared to limit the remittal in the ways proposed by the parties. I will not in the Appeal Tribunal’s order confirm the decision of Assistant Commissioner Carless dated 4 August 2020 in respect of the substantiation of Matters 1(a), 2, 3, and 5 on the Disciplinary Proceedings Notice. Nor will I limit the remittal to requiring substantiation of the disputed allegations in the Disciplinary Proceedings Notice to be dealt with according to law. 6 (2003) 214 CLR 118, [25]. 7 (1979) 142 CLR 531, [18]. 8 (2016) 90 ALJR 679, [43]. 9 (2019) 266 CLR 129, [55]. -- 7 of 8 -- 8 [31] A consequence of setting aside the decision and orders made on 14 January 2025 is that the scope of remittal is not limited unless expressly provided. The result is that the Tribunal must begin its statutory task again. All questions of fact and law are to be determined again.10 That is not to say however that the parties may not propose to the new Member an efficient mode of proceeding taking into account ground already traversed by the parties, and further, putting to the Member what they say is the proper mode of dealing with the disputed particulars. It will be a matter for the Member as to how the Member proceeds. [32] No leave to appeal is required. I conclude that an error of law has been shown with respect to the first ground. On that basis the appeal in matter number APL050-25 is allowed, and the appeal in matter number APL052-25 is allowed. [33] In accordance with my powers under s 146 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) the review application by HTI is remitted to a differently constituted Tribunal to be dealt with according to law. [34] There is no order as to costs. 10 Minister for Immigration and Multicultural Affairs v Wang (2003) 215 CLR 518, [7], [16], [45]. -- 8 of 8 --