ABC v Assistant Commissioner Maurice Carless [2024] QCATA 75

QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL CITATION: ABC v Assistant Commissioner Maurice Carless [2024] QCATA 75 PARTIES: ABC (appellant) v ASSISTANT COMMISSIONER MAURICE CARLESS (respondent) APPLICATION NO: No APL 96 of 2023 ORIGINATING APPLICATION NO: No OCR 87 of 2021 MATTER TYPE: Appeals DELIVERED ON: 1 August 2024 HEARING DATE: 21 June 2024 Further written submissions provided 2 July 2024 and 16 July 2024 HEARD AT: Brisbane DECISION OF: Judicial Member Rinaudo AM ORDERS: Pursuant to s 146(c) of the Queensland Civil and Administrative Tribunal Act 2009 (Qld), the decision in proceeding number OCR 87 of 2021 made 8 March 2023 is set aside and the proceeding is remitted to the Tribunal for reconsideration. CATCHWORDS: POLICE — INTERNAL ADMINISTRATION — DISCIPLINE AND DISMISSAL FOR MISCONDUCT — where the appellant was dismissed from the police service for misconduct — where the appellant sought review of the decision — where the appellant now appeals the review decision — jurisdiction of the Appeal Tribunal to hear the appeal — matter remitted for reconsideration ADMINISTRATIVE LAW — ADMINISTRATIVE TRIBUNALS — QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL — effect of Willmott v Carless on review and appeal proceedings — where decision below rendered not according to law — where the matter must be remitted Crime and Corruption Act 2001 (Qld) -- 1 of 5 -- 2 Queensland Civil and Administrative Tribunal Act 2009 (Qld) ABC v Assistant Commissioner Maurice Carless [2023] QCAT 85 Aldrich v Ross [2001] 2 Qd R 235 Gunter v Assistant Commissioner Wilkins [2021] QCA 274 Willmott v Carless [2024] QCA 115 APPEARANCES & REPRESENTATION: Applicant: C R Gnech, solicitor of Gnech & Associates Respondent: M R Wilkinson instructed by QPS Legal REASONS FOR DECISION History [1] On 8 March 2023, a Tribunal published reasons in an appeal by the appellant, of a decision made by the respondent to dismiss the appellant from the Queensland Police Service. [2] The Tribunal, although not agreeing entirely with the original decision, affirmed the dismissal order. [3] The appeal before me was listed for hearing on 21 June 2024. On 14 June 2024 the Court of Appeal published a decision on a referral on a question of law from a Tribunal member as follows: On the proper construction of s 20 of the Queensland Civil and Administrative [Tribunal] Act 2009 (Qld) and s 219Q of the Crime and Corruption Act 2001, on the Tribunal’s review of the First Respondent’s decisions is the Tribunal bound to make its own decision based on the evidence then before it, whether or not new evidence is received, or is its power to review predicated on there being first shown legal, factual or discretionary error in the decision below?”1 [4] The Court of Appeal in Willmott, went on to describe the review in the following way: 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: Willmott v Carless (unreported, OCR 083-21, 19 August 2022) at [26]. The two Court of Appeal decisions that were considered by the Tribunal member were Aldrich v Ross [2001] 2 Qd R 235 and Gunter v Assistant Commissioner Wilkins [2021] QCA 274.2 [5] The Court of Appeal in Willmott answered the question referred as follows: 1 Willmott v Carless [2024] QCA 115 (‘Willmott’), [2]. 2 Ibid, [3]. -- 2 of 5 -- 3 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.3 [6] The Court noted that: the nature of the review under s 219Q is not a fresh hearing on the merits as provided in s 20 of the QCAT Act. Section 219Q therefore prevails over s 20 of the QCAT Act.4 [7] On the basis of the decision in Willmott, the respondent sought an adjournment of the hearing, for written submissions to be made on the effect of the Willmott decision on the appeal decision before me. [8] Initially the adjournment was granted, but on request from the appellant the Appeal Tribunal maintained its original listing for oral submissions. [9] Ultimately, I heard the appeal primarily because of the time that has elapsed since the original decision, which was made on 14 September 2020, such that if I determined that Willmott was not fatal to the appeal, I could then proceed to determine the appeal without further delay. At the end of submissions on the appeal, I made orders for the filing of submissions in respect of the impact of Willmott. Submissions [10] The Respondent filed submissions on dated 2 July 2024. The respondent submitted that “the matter should be remitted for proper exercise of the Tribunal’s review function”.5 [11] The respondent submitted that as: the Appeal Tribunal determines appeals from Tribunal decisions, not the respondent’s decision, the Tribunal’s decision in the present matter is affected by legal error going to the heart of its review function.6 [12] The respondent went on to submit that if the Appeal Tribunal was to substitute its own decision in the circumstances, it would not be a case of correcting a particular error. It would instead be a case of the Appeal Tribunal conducting a substantive review of the respondent’s decision to discharge the Tribunal’s review function.7 [13] The appellant filed submissions in accordance with directions and submitted that Willmott was not an impediment to the proceedings being ruled upon by the Appeal Tribunal. The appellant relies on s 146 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) (QCAT Act). It submits that accepting an error of law, the Appeal Tribunal can, pursuant to s 146(b), set aside the decision and substitute its own decision.8 3 Ibid, [43]. 4 Ibid, [40]. 5 Respondent’s submissions in relation to Willmott v Carless [2024] QCA 115 filed 2 July 2024 (Respondent’s further submissions), [14]. 6 Ibid, [14]. 7 Ibid, [15]. 8 Submissions filed on behalf of the appellant in relation to Willmott v Carless [2024] QCA 115 filed 16 July 2024 (Appellant’s further submissions), [4]. -- 3 of 5 -- 4 [14] The appellant noted the extraordinary delay causing significant detriment to the appellant and the financial detriment caused to the appellant.9 [15] The appellant concluded that the most desirable outcome was for the Appeal Tribunal to determine the six grounds of appeal and determine which misconduct charges are substantiated. It is submitted that this approach would not be inconsistent with the Willmott ratio to avoid further delay. The review proceedings relating to sanction could proceed.10 Discussion and decision [16] The Tribunal undertook an extensive consideration of the correct approach on review in that part of the Tribunal’s decision headed “Jurisdiction of the Tribunal”,11 and in particular the decisions of Gunter v Assistant Commissioner Wilkins12 and Aldrich v Ross.13 As a result of which the Tribunal stated that: I intend to follow the authorities I have referred to, including Aldrich v Ross, which I do not consider has been overruled by the Court of Appeal in Gunter’s case.14 [17] The Tribunal, rejecting a submission by the respondent that error in the decision below must be found before a different finding can be made, said: The troubling aspect of the respondent’s analysis is that the Tribunal is charged with conducting a review, not an appeal. The authorities relied on by the respondent related to the function of an Appeal Court. The Tribunal stands in the shoes of the original decisionmaker and may perform the functions conferred on the Tribunal by the enabling Act. The Tribunal is not charged with correcting error. The task to be undertaken by the Tribunal is a review conducted by way of a rehearing with reference to a prescribed record. The authorities on which the Tribunal relies establishes that it is not necessary to identify error in the process or the reasoning that led to the decision being made. There is no presumption that the original decision is correct. Where submissions appear to suggest oversights and errors by the original decision maker in his decision making, those submissions are only relevant and accepted on the basis that they draw the attention of the Tribunal to matters of relevance and appropriate weight in a determination of what the correct and preferable decision is, not what the original decision maker got wrong.15 [18] Having regard to Willmott, the Tribunal’s reliance on Aldrich was an error of law. The question the Tribunal member should have asked was not, “do I think the decision was right based on the evidence before me?” But rather, “did the original decision maker make a factual, legal or discretionary error on the evidence before the original decision maker empowering my jurisdiction to interfere? If so, what is my decision based on that evidence so constrained?” 9 Ibid, [7]. 10 Ibid, [5]. 11 ABC v Assistant Commissioner Maurice Carless [2023] QCAT 85 (Tribunal Decision), [60]–[89]. 12 [2021] QCA 274. 13 [2001] 2 Qd R 235. 14 Tribunal Decision (n 11), [85]. 15 Ibid, [82]–[83] (citations omitted). -- 4 of 5 -- 5 [19] It is my view, that I cannot now go back and address the point on which the appellant is entitled to a decision, that is that there was an error below, nor can I be satisfied that the decision was made on the evidence available to the original decision maker. [20] In my view the member’s approach does not amount to an initial decision according to law. According, the matter must be sent back for a rehearing in accordance with the law. [21] I order that in in accordance with s 146(c) of the QCAT Act, I set aside the decision and return the matter to the tribunal for reconsideration according to law. Orders Pursuant to s 146(c) of the Queensland Civil and Administrative Tribunal Act 2009 (Qld), the decision in proceeding number OCR 87 of 2021 made 8 March 2023 is set aside and the proceeding is remitted to the Tribunal for reconsideration. -- 5 of 5 --