ABC v Assistant Commissioner Maurice Carless [2023] QCAT 85

QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL CITATION: ABC v Assistant Commissioner Maurice Carless [2023] QCAT 85 PARTIES: ABC (applicant) v ASSISTANT COMMISSIONER MAURICE CARLESS (respondent) APPLICATION NO/S: OCR087-21 MATTER TYPE: Occupational regulation matters DELIVERED ON: 8 March 2023 HEARING DATE: 9 May 2022 HEARD AT: Brisbane DECISION OF: Acting Senior Member Fitzpatrick ORDERS: The decision of the respondent made on 14 September 2020 is confirmed in relation to matter 1. The decision of the respondent made on 14 September 2020 is confirmed in relation to matter 2 insofar as the applicant made a false complaint about GHI to the Civil Aviation Safety Authority on 3 September 2014. The decision of the respondent made on 14 September 2020 is confirmed in relation to matter 2 insofar as the applicant made complaints about building work performed at GHI’s home to the Brisbane City Council. The decision of the respondent made on 14 September 2020 is confirmed in relation to matter 2 insofar as there is no finding of misconduct in relation to complaints made to CASA/Virgin Airlines in 2016. The decision of the respondent made on 14 September 2020 is confirmed in relation to matter 3. The decision of the respondent made on 14 September 2020 in relation to matter 4 is set aside. The Tribunal’s decision is substituted that the conduct alleged in matter 4 does not amount to misconduct. -- 1 of 34 -- 2 The decision of the respondent made on 14 September 2020 is confirmed in relation to matter 5. Pursuant to s 66 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) the Tribunal prohibits publication of the contents of a document or other thing produced to the Tribunal, evidence given before the Tribunal and other information that may enable the child of the applicant to be identified. CATCHWORDS: POLICE – INTERNAL ADMINISTRATION – DISCIPLINE AND DISMISSAL FOR MISCONDUCT – QUEENSLAND – whether alleged conduct amounted to misconduct – whether the misconduct proceeding was validly commenced – n oncompliance with statutory requirements may render disciplinary process invalid – delegation of authority and nomination – powers of reviewing officer ADMINISTRATIVE LAW – ADMINISTRATIVE TRIBUNALS – QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL – reviewable decisions and conduct – the tribunal’s power to review the decision on disciplinary finding and proposed sanctions – tribunal’s review jurisdiction is the jurisdiction conferred on the tribunal by an enabling Act to review a decision made or taken to be made by another entity under that Act – where a decision the subject of review proceedings is not a lawful exercise of decision making power – where there is in fact a decision made or taken to be made in exercise of statutory powers – that decision will fall within the ambit of a decision taken to be made and within the power of the tribunal to review ADMINISTRATIVE LAW – ADMINISTRATIVE TRIBUNALS – QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL – powers in review – enabling Act modifies the review powers of the tribunal – due weight to the decision maker of first instance findings of fact and assessment of evidence – tribunal's review jurisdiction places the tribunal in the position of the original decision maker – different from appeal jurisdiction which is to correct errors – review conducted by way of rehearing with reference to a prescribed record – no presumption that original decision maker was correct and no need for error – making of the correct and preferable decision EVIDENCE – GENERAL PRINCIPLES – EVIDENCE LAW – GENERALLY – late withdrawal of earlier admissions – while the tribunal may give leave for new evidence on review there is no legislative entitlement to exclude content from material – tribunal reviews evidence before the original decision maker and may assign the appropriate weight and relevance Civil Aviation Safety Regulations 1998 (Cth), Reg 67.140 -- 2 of 34 -- 3 Crime and Corruption Act 2001 (Qld), s 219O, s 219Q Domestic and Family Violence Protection Act 2012 (Qld), s 8, s 11, s 160 Human Rights Act 2019 (Qld), s 13, s 15, s21, s 23, s25, s 26, s 48, s 58, s 58 (2) Police Service Administration Act 1990 (Qld) current at 1 March 2017, s 7.2, s 7.4 Police Service Administration Act 1990 (Qld) current at 30 October 2019, s 4.8(1), s 4.10, s7.2, s 7.35, s 7.4, s 7.7, s 7.10(2), s 7.11, s 11.3, s 11.20, s 11.21, s 11.22, s 24 Police Service (Discipline) Regulations 1990 (Qld) repealed, s 5, s 6, s 7, s 8 Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 7, 17, s 19, s 20, s 21(3), s 24 Aldrich v Ross (2001) 2 QdR 235 Cousins v State of Queensland (Queensland Police Service) [2022] QIRC 491 Crime and Corruption Commission v Chief Superintendent Horton APM and Anor [2021] QCAT 437 Deputy Commissioner Stewart v Dark [2012] QCA 228. Gunter v Assistant Commissioner Wilkins and Anor [2021] QCA 274. JM Kelly (Project Builders) Pty Ltd v Queensland Building Services Authority [2013] QCAT 502 O’Connell v Palmer (1994) 53 FCR 429 Officer TXS v Acting Deputy Commissioner Colin McCallum [2011] QCAT 739 William Johnson v Assistant Commissioner Maurice Carless & Anor [2022] QSR 146 APPEARANCES & REPRESENTATION: Applicant: Self-represented Respondent: MD Nicholson, Barrister at law instructed directly by the Queensland Police Service REASONS FOR DECISION [1] The material in this proceeding includes reference to the applicant’s family and in particular a young child. Consistent with the non-publication order made pursuant to s 66 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld), dated 29 April 2021, the applicant’s name and that of his ex-wife, the ex-wife’s current husband and the child have been de-identified to prevent identification of the child. I decline the applicant’s request for a non-publication order with respect to other persons identified in the material before the Tribunal as not in the public interest. [2] A further non-publication order is made that pursuant to s 66 of the Queensland Civil and Administrative Tribunal Act (Qld) 2009 the Tribunal prohibits publication of the contents of a document or other thing produced to the Tribunal, evidence given before -- 3 of 34 -- 4 the Tribunal and other information that may enable the child of the applicant to be identified. [3] When named in this decision the applicant will be referred to as ABC, the ex-wife as DEF, the ex-wife’s current husband as GHI and the child as JKL. [4] The applicant seeks a review of the following decisions of the respondent: (a) A decision on disciplinary finding and proposed sanction made on 14 September 2020; and (b) A decision on disciplinary action made on 16 February 2021. [5] At the hearing of this matter the parties agreed that the review would be dealt with in two stages. This decision relates to the disciplinary finding. A review of the decision with respect to sanction will be determined at a later date. [6] By disciplinary proceeding notice dated 24 April 2020, the respondent advised the applicant of five matters of alleged conduct which, if proved, would provide grounds for discipline pursuant to s7.4 of the Police Service Administration Act 1990 (Qld) (PSA Act). Was the proceeding against the applicant validly commenced? [7] The applicant recently filed further submissions raising as an issue as to whether the disciplinary proceeding against him was validly commenced. The applicant relies on two decisions – William Johnson v Assistant Commissioner Maurice Carless & Anor1 and Cousins v State of Queensland (Queensland Police Service)2. In each of those cases there was found to be non-compliance with the relevant version of the PSA Act, in terms of the referral to the officer who undertook the disciplinary process. The result in each case was a finding that the disciplinary process was invalid. Both cases are the subject of appeal to the Queensland Court of Appeal. To my knowledge no determination by that Court has been published. [8] The versions of the PSA Act considered in Johnson’s case and Cousins’ case involved the same wording as the version of the PSA Act in force at the date on which the disciplinary proceeding notice was given to the applicant. [9] If the PSA Act has not been complied with in respect of the referral to Assistant Commissioner Carless in this matter, then consistent with the findings in Johnson’s case and Cousins’ case the disciplinary process may be invalid. [10] It is an issue for determination by me as to whether I may proceed with the review if there is doubt about compliance with the correct process for referral to the officer required to issue the disciplinary proceeding notice. [11] The background to this matter is that a first disciplinary proceeding notice was given to the applicant by Acting Deputy Commissioner Tony Wright. The proceeding was not complete when that officer retired in September 2019. [12] The applicant submits that the first and the current disciplinary proceeding notices are invalid. 1 [2022] QSC 146 (‘Johnson’). 2 [2022] QIRC 491 (‘Cousins’). -- 4 of 34 -- 5 First Disciplinary Proceeding Notice [13] The original investigation and referral were carried out pursuant to the PSA Act reprint current from 1 March 2017 to 15 March 2018 and the reprint current from 16 March 2018 to 19 September 2018. That version is in different terms to the October 2019 – March 2021 version. [14] The earlier versions of the PSA Act are in the same terms. The legislative framework is that the Commissioner has responsibility for the discipline of members of the service and may delegate powers to a police officer. [15] By s 7.2 an officer who reasonably suspects misconduct has a duty to report that conduct to the Commissioner and it is the duty of that officer to take all action prescribed by the regulations as action within the authority of an officer of the rank or description to which that officer belongs. [16] By s 7.4 of those earlier Acts, “the prescribed officer” may decide an allegation of misconduct against an officer and may impose a range of disciplines on an officer liable to disciplinary action. [17] Prescribed officer is defined to mean an officer authorised by the regulations to take disciplinary action in the circumstances of any case in question. The now repealed Police Service (Discipline) Regulations 1990 (Qld) provides the grounds for disciplinary action and the disciplines that may be imposed.3 By sections 5, 6, 7 and 8 respectively, the disciplinary powers of the Commissioner, a Deputy Commissioner, an Assistant Commissioner, a Commissioned Officer and a noncommissioned officer are described. Notably an Assistant Commissioner cannot dismiss an officer from the police service. [18] The Acts and Regulations do not set out the steps involved in the Commissioner appointing the prescribed officer at the appropriate level to decide an allegation of misconduct and to impose a discipline. I infer that the Commissioner must do so by a process of delegation to a particular officer to effect that referral or appointment. [19] What in fact occurred is that on 20 December 2017 Inspector Dirk Petersen referred the matter to a disciplinary hearing with a Prescribed Officer at Deputy Commissioner level. A later matter was investigated by Senior Sergeant McDonald who recommended that the applicant proceed through the disciplinary process before “a prescribed officer”. [20] A disciplinary proceeding notice was issued by then Acting Deputy Commissioner Tony Wright on 20 November 2018. The matter proceeded to at least the point of submissions being made by the applicant. That officer retired around September 2019. [21] Assuming Inspector Petersen was the Commissioner’s delegate, his referral to Acting Deputy Commissioner Tony Wright appears to have been in conformity with the Act, because he has nominated by rank “the prescribed officer” to undertake the disciplinary proceeding. Assuming Senior Sergeant McDonald was the Commissioner’s delegate he has not nominated any person by name or rank to act as the prescribed officer. That recommendation does not appear to be in conformity with 3 Police Service (Discipline) Regulations 1990 (Qld), ss 9, 10, as repealed by Police Service Administration (Discipline Reform) and Other Legislation Amendment Bill 2019 (Qld), s 11.19. -- 5 of 34 -- 6 the Act. It is not known how that later matter came before Acting Deputy Commissioner Tony Wright. [22] At this point the transitional provisions provided in the October 2019 version of the PSA Act should be considered. [23] The relevant transitional provisions are set out in ss 11.3, 11.20, 11.21 and 11.22. [24] Section 11.3 provides that the Commissioner is taken always to have had power to enquire into a person’s criminal history and to take into account relevant information for deciding whether the person is suitable to be engaged, or to continue to be engaged, by the service. [25] Section 11.22 provides that: (1) This section applies if – (a) misconduct or a breach of discipline is alleged to have occurred before the commencement; and (b) a disciplinary proceeding for the alleged misconduct or breach of discipline – (i) has not been started before the commencement; or (ii) was started before the commencement but has been or is withdrawn with the officer’s consent. (2) A disciplinary proceeding in relation to the alleged misconduct or breach of discipline may be started under new part 7 as if the misconduct or breach of discipline were a ground for disciplinary action under that part. (3) The disciplinary proceeding must be started within the later of the following periods to end – (a) the period mentioned in new section 7.12; (b) 6 months from the commencement. [26] When the applicant challenged the further disciplinary process on the basis that it was out of time, Assistant Commissioner Carless asserted that there was not a disciplinary proceeding on foot when the amendments to the Act were made in October 2019, and that the notice was issued and served within the timeframes in s 11.22.4 The Assistant Commissioner gives no basis for that assertion. I find that assertion difficult to understand when a disciplinary proceeding notice had been given and submissions made in response. [27] The Assistant Commissioner’s assertion also appears to be at odds with the submission made by him on 27 February 2023, where it is said that the disciplinary proceeding notice was issued on 24 April 2020 pursuant to s 11.22 of the PSA Act as it was then in force; “adopting the proper transitional protocols in place for disciplinary proceedings considered as being commenced prior to the Amending Act”.5 4 Section 21(2) material – Part A – Letter Assistant Commissioner Carless to the applicant dated 11 May 2020. 5 Respondent’s submissions in response to the applicant’s submissions dated 4 January 2023, para 17. -- 6 of 34 -- 7 [28] Although apparently not relied on by Assistant Commissioner Carless the apposite transitional provision is s 11.20 which provides that if before commencement a disciplinary proceeding against an officer was started and had not been finally dealt with, the previous s 7.4 of the PSA act and repealed regulations continue to apply, despite their repeal, for the completion of the disciplinary proceeding. [29] If that is the continuing legislative regime to govern the conduct of the disciplinary proceedings against the applicant, I would expect that upon the retirement of Acting Deputy Commissioner Wright, the Commissioner by a delegate would refer to another prescribed officer of the same rank. Thereafter the disciplinary process would continue despite the October 2019 amendments to the PSA Act. That is not what occurred. [30] On this analysis the first disciplinary notice and proceeding is attended by considerable doubt as to its validity. I am not assisted by any submissions from the respondent in relation to these issues. [31] The Assistant Commissioner has taken the view that no disciplinary process had started. He proceeded as if a disciplinary process commenced afresh before him. I will consider whether there has been compliance with the October 2019 version of the PSA Act. Second Disciplinary Proceeding Notice [32] The relevant version of the PSA Act is the version in place as at the date of the referral and the date on which the respondent issued a disciplinary proceeding notice to the applicant on 24 April 2020. The relevant version is the reprint current from 30 October 2019 to 16 March 2021 (October 2019 version). [33] Section 4.8(1) of the October 2019 version provides that the Commissioner is responsible for the efficient and proper administration management and functioning of the police service in accordance with law. [34] By s 4.10 the Commissioner may delegate powers of the Commissioner under the Act or any other Act to a police officer. [35] Part 7 deals with the discipline process for officers. Section 7.3 defines prescribed officer as a police officer (Commissioner, Executive Police Officer, or Commissioned Police Officer) who holds a rank above the rank of the subject officer. The subject officer is by s 7.2 the officer about whom a complaint is made to the Commissioner. [36] By s 7.4 an officer may be disciplined if the subject officer has committed misconduct. [37] By s 7.7 a complaint is taken to be received by the Commissioner when the complaint is first recorded. [38] Relevantly by s 7.10(2) the Commissioner must decide whether to refer the complaint to “a prescribed officer”, having regard to a number of matters including, the seriousness of the conduct to which the complaint relates and whether it is necessary to take disciplinary action against the subject officer. [39] Section 7.11 is headed: “Requirements for starting disciplinary proceeding”. By s 7.11(1) the section applies if the Commissioner has, under section 7.10 referred the complaint to “a prescribed officer”. Section 7.11(2) provides that the prescribed officer may start a disciplinary proceeding against the subject officer if the prescribed -- 7 of 34 -- 8 officer reasonably believes there is a ground for disciplinary action against the subject officer. [40] By s 7.35 the prescribed officer may impose a disciplinary sanction, however if the prescribed officer is an Assistant Commissioner, that person does not have any power to dismiss an officer. What is known about the referral to Assistant Commissioner Carless? [41] In the disciplinary proceeding notice issued to the applicant on 24 April 2020 by Assistant Commissioner Carless, it is simply said that it had been reported to Assistant Commissioner Carless by the Assistant Commissioner, Ethical Standards Command that investigations have been made in relation to the applicant’s conduct in relation to four matters. [42] The applicant relies on the Johnson and Cousins cases and says that the complaint is invalid, and the proceedings were invalidly brought. The applicant requests that the Tribunal consider and address the matter however, he does not wish the proceedings to quashed under s 24(2)-(5) of the PSA Act. [43] The Tribunal required submissions from the respondent in relation to the issues raised by the applicant. [44] The respondent put his position on alternative bases in submissions filed on 27 February 2023. First, the disciplinary proceedings were properly commenced under the s 11.22 transitional provisions of the October 2019 Act and as a result the Johnson and Cousins cases have no relevance to this proceeding because they relate to the requirements of referrals under s 7.10 of the PSA Act, which is the new discipline regime. [45] The respondent says that as a result of enquiries, six formal referrals have been located. By direction under s 21(3) of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) (QCAT Act) the documents located by the respondent have recently been provided to the Tribunal. The respondent refers to one referral from Detective Superintendent Lance Vercoe to Inspector Gavin Hackett dated 15 April 2020 referring matters in their totality to a prescribed officer at the level of Deputy Commissioner. It is not known whether that was the referral which resulted in the disciplinary process being provided to Assistant Commissioner Carless although that seems most likely given the timing of the referral. The other referrals provided to me are not signed. [46] Based on the table of delegations provided upon direction to the respondent, I am satisfied that Detective Superintendent Vercoe was the Commissioner’s delegate. The referral made by him was to a Deputy Commissioner. The matter was in fact referred to Assistant Commissioner Carless. A similar situation occurred in Johnson’s case, where the referral was to the Chief Superintendent, but the matter in fact went to Assistant Commissioner Carless. It was found by Justice Callaghan that Assistant Commissioner Carless was not the prescribed officer. The distinction is important because of the different disciplinary sanctions which can be imposed. [47] I note that the applicant’s employment has been terminated. That would appear to be within the power of a Deputy Commissioner, but not within the power of Assistant Commissioner Carless. -- 8 of 34 -- 9 [48] The respondent says that if the Tribunal considers the decisions have relevance to the proceeding then the appropriate course is for the Tribunal to determine the proceeding only when the Court of Appeal finally determines the s 7.10 PSA Act referral issues the subject of the appeals. [49] The applicant has strenuously argued for the finalization of the matter. The matters the subject of the disciplinary proceeding date from 2014. The applicant’s ability to obtain other work suitable to his qualifications is being hindered by the lack of a finding in relation to the matters upon this review. [50] I do not consider it is in the interests of justice for there to be further delay in the matter and consider for reasons I will set out later that I am able to proceed to review the decision. [51] Based on the reasoning in Johnson’s case at first instance, and on the referral from Detective Superintendent Vercoe to a Deputy Commissioner, not Assistant Commissioner Carless, it is likely that the disciplinary proceeding purportedly commenced by the disciplinary hearing notice issued by the respondent on 24 April 2020 is invalid. [52] I do not consider it necessary to make any finding in relation to the validity of either the first or second disciplinary proceeding notice. That is because I consider that even if there is invalidity with respect to those notices I still have jurisdiction to conduct the review, for the reasons set out below. The Tribunal’s power to review the decision on disciplinary finding and proposed sanction [53] The starting point is s 17 of the QCAT Act which provides that the Tribunal’s review jurisdiction is the jurisdiction conferred on the Tribunal by an enabling Act to review a decision made or “taken to be made” by another entity under that Act. [54] The decision of the then Deputy President of the Tribunal, Judge Horneman-Wren SC in JM Kelly (Project Builders) Pty Ltd v Queensland Building Services Authority6 is that where a decision the subject of review proceedings is not a lawful exercise of decision making power, but nevertheless there is in fact a decision made, purportedly made in exercise of statutory powers, that decision will fall within the ambit of a decision “taken to be made” and within the power of the Tribunal to review.7 [55] His Honour said that it is a construction of the enabling Act which determines whether it is necessary that there be a valid decision made in a lawful exercise of the decision making power in order for the decision to be reviewable.8 [56] The only express requirement which is a precursor to the Tribunal exercising its review jurisdiction appears in s 219O of the Crime and Corruption Act 2001 (Qld) (CC Act), such that a decision where a ground for disciplinary action has been proved, is a reviewable decision only if the officer is entitled to be given a QCAT information notice under s 7.31(1) of the PSA Act. In this case the applicant was entitled to the Notice because of the nature of the decisions. 6 [2013] QCAT 502 (‘JM Kelly’). 7 Ibid., [38]-[47], [50]-[51]. 8 Ibid., [37]. -- 9 of 34 -- 10 [57] JM Kelly’s case was followed in Acting Senior Constable Christopher Lee Wallis v Acting Deputy Commissioner DA (Tony) Wright and Anor9 in the context of a disciplinary proceeding. [58] For these reasons the Tribunal has jurisdiction to exercise its review jurisdiction with respect to the decisions the subject of the application by the applicant. [59] How that jurisdiction may be exercised is the subject of contention in this proceeding. Jurisdiction of the Tribunal [60] The respondent has provided submissions in relation to the Tribunal’s jurisdiction. It is fair to say that there has been some shift in the respondent’s position in light of the decision of the Queensland Court of Appeal in Gunter v Assistant Commissioner Wilkins and Anor10. [61] The respondent has previously acknowledged the traditional approach of the Tribunal, guided by observations made by the Court of Appeal in Aldrich v Ross11, in relation to an earlier Tribunal which dealt with reviews of police disciplinary findings. Thomas JA stated at 257: [41] … I consider that the Misconduct Tribunal is required to make its own decision on the available evidence, rather than merely to determine the correctness of the original decision in the limited manner permitted by an appeal in the strict sense against the exercise of a discretion. And further: [43] … that is not to say that considerable respect should not be paid to the perceptions of the commissioner as to what is needed for the maintenance of internal discipline. It would be appropriate for the Misconduct Tribunal in making up its own mind to give considerable weight to the view of the original decisionmaker who might be thought to have particular expertise in a managerial requirements of the police force. … [62] The Tribunal’s review jurisdiction is set out in Division 3 of the QCAT Act. [63] As previously noted, by s 17 of the QCAT Act the Tribunal’s review jurisdiction is said to be 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. [64] By s 19 of the QCAT Act, in exercising its review jurisdiction the Tribunal – (a) must decide the review in accordance with the Act and the enabling act under which the reviewable decision being reviewed was made; and (b) may perform the functions conferred on the Tribunal by the QCAT Act or the enabling Act; and (c) has all the functions of the decisionmaker for the reviewable decision being reviewed. 9 [2019] QCAT 342, [17]. 10 [2021] QCA 274. 11 (2001) 2 QdR 235. -- 10 of 34 -- 11 [65] By s 20 of the QCAT Act, the purpose of the review of a reviewable decision is to be to produce the correct and preferable decision. [66] Section 20(2) provides that the Tribunal must hear and decide a review of a reviewable decision by way of a fresh hearing on the merits. It is important to note that this provision is modified as discussed later in the decision. [67] Section 24 of the QCAT Act provides that in a proceeding for a review of a reviewable decision, the tribunal may – (a) confirm or amend the decision; or (b) set aside the decision and substitute its own decision; or (c) set aside the decision and return the matter for reconsideration to the decision- maker for the decision, with the directions the Tribunal considers appropriate. [68] The CC Act12 is an enabling act as contemplated by the QCAT Act and provides for an aggrieved person for a reviewable decision to apply to QCAT for a review of a reviewable decision. [69] Reviewable decision is defined in s 219O of the CC Act as a decision made under the PSA Act mentioned in Schedule 1, column 1. Relevantly, that includes a decision under Part 7, Division 4 of the PSA Act that a disciplinary charge or any other ground for disciplinary action has been proved in relation to an officer, a decision to impose a disciplinary sanction on an officer and a decision to dismiss an officer. [70] On the basis of the earlier discussion I am treating the reviewable decisions in this proceeding as decisions taken to have been made under the 30 October 2019 version of the PSA Act. [71] Section 219Q of the CC Act provides that: (1) A review of a reviewable decision is by way of rehearing on the evidence (original evidence) given in the proceeding before the original decisionmaker (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 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. [72] Section 7 of the QCAT Act provides that if a provision of an enabling act provides for the Tribunal’s functions in a jurisdiction conferred by the enabling Act, the modifying 12 Reprint current from 25 May 2020 to date. -- 11 of 34 -- 12 provision prevails over the provisions of the QCAT Act to the extent of any inconsistency between them. [73] The QCAT Act must be read, with any necessary changes, as if the modifying provision were a part of the QCAT Act. [74] The CC Act is an enabling Act for the purpose of the QCAT Act. Some of its provisions are modifying provisions. In particular s 219Q of the CC Act modifies s 20(2) of the QCAT Act so that the Tribunal does not hear and decide the review of the reviewable decision by way of a fresh hearing on the merits in the sense that the merits are reviewed by reference to the facts and law at the date of the review and on evidence filed in addition to the s 21 QCAT Act documents. Rather, it conducts the review by way of a rehearing on the original evidence given in the proceeding together with any new evidence for which leave is given. [75] During the course of the proceeding and prior to the hearing the Tribunal raised with the parties the significance of the decision of the Queensland Court of Appeal in Gunter v Assistant Commissioner Brian Wilkins13. [76] In that case, Sofronoff P refused leave to appeal on the basis that there was no arguable case of a substantial miscarriage of justice. [77] In discussing the matter, His Honour noted that the Member at first instance who heard the application appeared to have proceeded as though the proceedings before him were a fresh hearing on the merits and, although several of the Assistant Commissioner’s crucial findings were based upon his assessment of the applicant’s credit, found that the charge had not been substantiated because he “accepted” the applicant’s explanations for his conduct, while the Assistant Commissioner had not been prepared to do so. His Honour indicated that there was an error in that approach. However, his Honour said that it was not material to the application for leave to appeal. [78] Sofronoff P made some observations in relation to the nature of a review by way of rehearing. He said : [2] … A review, or an appeal, “by way of rehearing” is not the same as a “fresh hearing on the merits”. In particular, a reviewing tribunal which is conducting such a rehearing is constrained in its freedom to interfere with findings of fact which were based upon an assessment of the credit of a witness. [79] In relation to that latter point Sofronoff P referred by footnote to Paterson v Paterson14, Warren v Coombes15 and Fox v Percy16, which discuss the relevance to an Appeal Court of findings of credit below. Although lengthy consideration has been given to the issue by these Courts, it appears that even on an appeal by rehearing the appellate court gives due weight to the findings of credit of the Judge at first instance, but must still reach its own conclusion.17 It is also relevant that in police disciplinary matters the original decision maker does not hear oral evidence from the subject officer or any witnesses so that demeanour is a factor in a finding of credit. 13 [2021] QCA 274. 14 (1953) 89 CLR 212 at 221-224 per Dixon CJ and Kitto J. 15 (1979) 142 CLR 531 at 551 per Gibbs ACJ, Jacobs and Murphy JJ. 16 (2003) 214 CLR 118. 17 Fox v Percy [2003] HCA 22, [25], [68]. -- 12 of 34 -- 13 [80] It does not appear that the Court in Gunter’s case was referred to Aldrich v Ross and the many decisions which have followed that decision in this Tribunal, including the Queensland Court of Appeal.18 [81] The respondent has taken the President’s observations as a basis to completely reverse the way in which police disciplinary reviews have been conducted in this Tribunal. The respondent submits that this Tribunal is bound by any finding of fact based on a finding of credit made by Assistant Commissioner Carless and further that the rehearing is in the nature of an appeal so that error in the decision maker below must be found before a different finding can be made. [82] 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 relate 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. [83] 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 establish 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 the original decision is correct.19 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.20 [84] Guidance is usefully set out in the decision of Crime and Corruption Commission v Chief Superintendent Horton APM and Anor:21 [15] … the role of the Tribunal on review is well settled. The Tribunal stands in the shoes of the decisionmaker or in this matter the first respondent … exercising the same powers as the decisionmaker under the enabling act to produce the correct and preferrable decision. [16] The review proceeds before the Tribunal as a rehearing on the evidence that was before the decisionmaker, now referred to as the ‘section 21 material’. It is appropriate to give ‘considerable weight’ to the findings of the decisionmaker on the basis that the decisionmaker might be thought to have ‘particular expertise in the managerial requirements of the police force’. [17] The Tribunal has a duty to bring the public perspective to bear and is bound to make its own decision on the evidence before it. In assessing the evidence the Tribunal applies the common law standard or proof being ‘on the balance of probabilities’. [18] The Tribunal must be satisfied and find accordingly that the conduct complained of is police misconduct. (footnotes omitted) 18 Flegg v Crime and Misconduct Commission and Anor [2013] QCA 376, [16]. 19 Kehl v Board of Professional Engineers of Queensland [2010] QCATA 58, [9]. 20 Mazza v Deputy Commissioner Gollschewski [2018] QCAT 205. 21 [2021] QCAT 437, [15]-[18]. -- 13 of 34 -- 14 [85] 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. [86] Apart from the issues already addressed some other complexities arise in this matter which I will determine as each of the disciplinary matters are dealt with. The issues are: (a) the exclusion of certain material from my consideration; and (b) whether the applicant can withdraw admissions made previously to the decision maker. [87] On 8 April 2022 I dismissed applications for miscellaneous matters filed by the applicant seeking that a number of items in the s 21 QCAT documents be excluded from the Tribunal’s consideration because the documents were family law proceeding documents, domestic violence proceeding documents and documents obtained through an alleged abuse of process. In that decision I expressed an expectation that the documents would be addressed at the hearing so that a determination could be made as to their relevance and weight. [88] By a decision made on 18 February 2022, the Tribunal granted the applicant leave to adduce new evidence pursuant to s 219H of the CC Act. [89] The new evidence is described in Table 1 attached to the application for miscellaneous matters filed by the applicant on 17 September 2021, being documents 1, 2, 5, 6, 11 and 19. At the hearing new evidence in the form of a bundle of documents (without an index) was handed to the Tribunal following its collation by the respondent. Human Rights [90] The Tribunal is performing an administrative function in the conduct of this review and must apply the Human Rights Act 2019 (Qld)22. The applicant is entitled to certain human rights which may be limited as a result of the review process and the decision, including the right to recognition and equality before the law,23 to freedom of expression,24 to take part in public life as a public officer,25 to privacy and reputation26 and the right to a fair hearing.27 [91] In the exercise of its functions the Tribunal must interpret statutory provisions in a way which is compatible with human rights.28 In this case I do not consider that there is any ambiguity which requires a consideration apart from the plain meaning of the words of the statute. [92] I am satisfied that the review process in the Tribunal offers the applicant the right to a fair hearing and that right has not been limited. Likewise, there has been no limitation of the applicant’s right to recognition and equality before the law. I do not consider that the Tribunal’s review of the disciplinary process unlawfully or arbitrarily interferes with the applicant’s person, privacy, family, home or correspondence, given 22Human Rights Act 2019 (Qld), s58. 23 Ibid.,s 15. 24 Ibid., s21. 25 Ibid., s23 26 Ibid., s25. 27 Ibid., s26. 28 Ibid., s48. -- 14 of 34 -- 15 the review is conducted within statutory parameters. Findings of misconduct may limit the applicant’s other identified human rights. [93] I am satisfied that any limitation29 on the applicant’s rights by findings of misconduct, is consistent with the PSA Act and a proper purpose in maintaining public confidence in the police service and in achieving police discipline. Those public interest considerations outweigh the applicant’s private interests so that any limitation is reasonable and justified in the circumstances. In this regard the Tribunal is supported by the statutory imperative of s 7.4 of the PSA Act.30 Decision on disciplinary finding and proposed sanction dated 14 September 2020 [94] Five matters were the subject of the disciplinary proceeding. [95] In each of the five matters a finding of improper conduct amounting to misconduct was found. Some of the particulars with respect to matters were found not to be substantiated. The findings of the respondent in relation to the unsubstantiated matters stand and are not challenged by the applicant, so that no different finding is made by this Tribunal on the review. [96] The definition of misconduct in the PSA Act has remained unchanged from the date of the decision. It is Conduct that – (a) is disgraceful, improper or unbecoming of 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. [97] Improper has been found to mean in the context of a disciplinary matter: conduct which may be regarded as lacking in propriety or as unbecoming or unseemly in the circumstances, not merely technically irregular.31 Matter 1 That between 1 May 2001 and 30 December 2014 at the Sunshine Coast and elsewhere, your conduct was improper in that you committed acts of domestic violence against DEF. (Sections 1.4 and 7.4 of the Police Service Administration Act 1990 and s 2 of the Standard of Practice) Further and Better Particulars Investigations have identified you were married to DEF in 2001 and you have three children together. On 27 July 2014, DEF advised you she wanted a divorce and on 03 August 2014 you and DEF separated after you became aware that she had commenced a romantic relationship with GHI, who had been a friend of yours since 1999. You and DEF had since divorced. DEF and GHI have since married. 29 Ibid., s13. 30 Ibid., s58(2). 31 O’Connell v Palmer (1994) 53 FCR 429, 434. -- 15 of 34 -- 16 In relation to Matter 1: (b) Between 1 August 2014 and 30 November 2014, you committed acts of domestic violence, namely engaging in emotionally controlling behaviour by: (i) accessing and reading text messages on the mobile telephone being used by DEF without her permission; (ii) accessing, reading and forwarding DEF’s private email correspondence without her permission; (iii) accessing and reading DEF’s Skype account messages, modifying the account settings and on 31 August 2014, sending and deleting a message without her permission; (c) On 16 December 2014 you consented without admissions to the making of a domestic violence order naming DEF as the aggrieved and you as the respondent in the Brisbane Magistrates Court for a period of 12 months. Did the applicant engage in emotionally controlling behaviour? [98] The context for the events is that the applicant discovered on 3 or 4 August 2014 that DEF was having an affair with his friend GHI. The affair resulted in the complete breakdown of the marriage between the applicant and DEF and very bitter divorce and custody proceedings between the applicant and DEF. Discovery of the affair gave rise to the applicant’s alleged conduct. [99] Material before the Tribunal variously describes the applicant finding out about DEF’s affair and his consequent conduct in reading her texts and emails as occurring on either 3 or 4 August 2014. An exact date is not as important as the alleged conduct. I am satisfied that the conduct occurred on either of those days. Further conduct occurred on 5 August 2014. [100] The applicant objects to the Tribunal referring to material used in the domestic violence proceedings involving the applicant’s application for a protection order against DEF and DEF’s application taken by the Queensland Police Service on her behalf for a protection order against the applicant. [101] I accept the respondent’s submission that the Queensland Police Force or DEF are parties to the proceedings and they are entitled to copies of documents used in the proceedings.32 [102] In any event, apart from reference to the 5 August 2014 email and purported evidence of a Skype account deletion, it has not been necessary for me to rely on documents from the domestic violence proceedings to make my finding in relation to matter 1. The applicant’s own admissions are a sufficient basis for my finding. For this reason, there is no utility in acceding to the applicant’s request to remove domestic violence proceeding documents from the material before the Tribunal and I decline to do so. [103] I recognise the unreliability of untested material given in other proceedings, in the context of a bitter family breakdown, in which allegations are made for some 32 Domestic Violence and Family Protection Act 2012 (Qld), s160. -- 16 of 34 -- 17 perceived advantage in the fight for children and property. I have avoided reliance on affidavits containing allegation and counter-allegation.33 [104] The evidence I rely upon to make the finding is set out in the following paragraphs. [105] At page 60 of the outline of submissions relied on by the applicant at the hearing, he says: It is clear that the applicant opened up the email and read the contents of the emails and text messages and made admissions as such. [106] In his submissions to the respondent the applicant accepted that he read DEF’s texts on 4 August 2014.34 In his directed interview the applicant agreed that he sent an email to GHI on 5 August 2014. [107] In the email from the applicant to GHI dated 5 August 2014 the applicant said amongst other things: I have kept every text and email you sent (DEF)… I have blocked your email and phone number from (DEF’s) account.35 [108] Although the applicant says that he read DEF’s emails and texts with her permission, that is not DEF’s version of events as set out in her statement dated 8 September 201436 and her witness statement dated 28 August 2018.37 DEF refers to a physical struggle which occurred on 3 August 2014 when the applicant took her phone and read her text messages. The applicant gives a different version in his directed interview on 30 October 2017, but confirms a physical altercation when DEF struck him as he read the texts on DEF’s phone. It is not possible to say which version is correct, but I am able to find on the evidence that a physical altercation took place when the applicant read the texts from DEF’s phone. [109] The altercation is consistent with a lack of permission by DEF for the applicant to read her texts. [110] In the directed interview between Inspector Petersen and the applicant on 30 October 2017, the applicant admitted reading DEF’s texts and emails on 4 August 2014 and said that the reason for consenting to a domestic violence order was because he read DEF’s private text messages. 33 New evidence - Report from Senior Sergeant D R Bradley dated 29 October 2014 to the Inspector Prosecutions and Brief Management Coordination, Legal Services Group - DV application recommendation to discontinue application. It is observed that DEF’s application has a motive beyond that of a protection order; Report of Acting Superintendent Chris Enzin – s21 Documents – Part B page 802 where it is recommended no further action is required noting the relationship breakdown is acrimonious and there are a range of related complaints being made. 34 S21 Documents, Part A – page 73. 35 S21 Documents, Part B – page 37-38. 36 Ibid., page 40. 37 Ibid., page 206 at paras 6 and 7. -- 17 of 34 -- 18 [111] The applicant now seeks to withdraw that admission made in the directed interview and to give evidence, which is not in the material before the Tribunal, nor in any new material included by leave of the Tribunal, as to what he says is the real reason he consented to the domestic violence order. That is, he wished to recommence access to his child JKL. [112] I do not consider that I have the power to give leave for late withdrawal of earlier admissions. The role of the Tribunal is to review the material before the decision maker below. The Tribunal may give leave for new material to be used in the proceeding. The Tribunal may determine the relevance of particular material before the decision maker below and may attribute differing weight to that material, but there is no legislative entitlement to exclude content from material. [113] The applicant does not say why he did not raise the new matter earlier. I note the change in position, however, I do not intend to exclude or ignore the contents of the directed interview. [114] The statement made in the directed interview, was not clarified or altered at the time. The statement is a sufficient basis for me to infer that the applicant recognised his conduct was inconsistent with DEF having consented to him reading her private texts, and that it exposed him to the making of a protection order. [115] Even though it may be the case as asserted by the applicant that DEF’s phone was in his name and that there was no passcode for its use, that of itself does not give the applicant permission to read private messages. [116] I find that the applicant engaged in the conduct alleged in particulars 1(b)(i) and (ii) on or around 3, 4 and 5 August 2014. [117] I find that the applicant accessed DEF’s text and emails without her permission. [118] The findings I have made to this point are not findings that the applicant committed acts of domestic violence or engaged in emotionally controlling behaviour. I will address those issues once I have considered all the particulars relevant to Matter 1. [119] The applicant denies ever accessing DEF’s Skype account and submits that there is no direct evidence to support the allegation. The evidence in the s21 documents shows a screenshot of a message sent from DEF’s Skype account to GHI’s Skype account at 12:12am on 31 August 2014 but deleted shortly thereafter. [120] In the applicant’s directed interview conducted on 30 October 2017 the applicant stated: I do not recall removing Skype from her phone or sending (GHI) a message. (DEF) was again drunk that night and using her phone. I don’t recall sending a Skype message to (GHI) or deleting it. When asked if it was possible that the applicant did, the applicant stated: Not that I recall senior.38 [121] I do not consider that an adverse inference can be drawn from the fact that an outright denial was not given in the directed interview. I do not think that the screenshot of itself is evidence that the applicant accessed the phone and interfered with the 38 Ibid., page 600. -- 18 of 34 -- 19 messages. The date of the incident is prior to the date on which the applicant and DEF agree that the affair was disclosed. A possible explanation is that DEF sent an email to GHI but thought better of it and deleted it herself. [122] It is not possible to say what occurred on the evidence as it stands or to draw any inference as to the most probable occurrence. [123] I am unable to find that the applicant opened and read DEF’s Skype account messages, modifying the account settings, and on 31 August 2014 sending and deleting a message without her permission. [124] At the hearing Counsel for the respondent said that particular 1(c) is not part of the misconduct alleged in particulars 1(b)(i) to (iii). Counsel also said that the respondent did not rely on the making of the protection order, as evidence of domestic violence. Instead he relied on the evidence before him. [125] Despite that submission the allegations are put to the applicant on the basis that he has engaged in acts of domestic violence. The fact of the making of the protection order is given as a particular of that allegation. [126] The protection order is made by consent without admission. Its terms do not suggest any acts of domestic violence. I find that the order is not evidence of acts of domestic violence. Further considerations [127] The following issues are relevant: What is the date range relevant to the alleged conduct? [128] I have found that the particularised acts which have been substantiated occurred on or about 3,4 and 5 August 2014. Outside that period no particulars are given in relation to acts which occurred over the 13 year span from May 2001 to 30 December 2014. [129] DEF has asserted the conduct at 1(b)(i) and (ii) occurred between 1 August 2014 and 30 November 2014. No particulars are given of conduct across that time span outside the period 3,4 and 5 August 2014. [130] I find that there is no evidence of the alleged acts occurring outside 3, 4 or 5 August 2014. Do the acts found to have occurred on or about 3,4 and 5 August 2015 reveal “emotionally controlling behaviour”? Do the acts found to have occurred on or about 3,4 and 5 August 2015 reveal domestic violence? [131] Domestic violence is defined in s 8 of the Domestic and Family Violence Protection Act 2012 (Qld) as behaviour by a person towards another person with whom the first person is in a relevant relationship that is, amongst other matters - emotionally abusive. [132] Section 11 of the Act provides that emotional or psychological abuse means behaviour by a person towards another person that torments, intimidates, harasses or is offensive to the other person. [133] The definitions have not been amended from the date of the conduct in 2014 to date. -- 19 of 34 -- 20 [134] Despite his submission that the Tribunal may not refer to material filed in the cross claims between the applicant and DEF in relation to domestic violence, the applicant points to an affidavit39 from DEF made 8 December 2014 and filed in the Magistrates Court in proceedings between the applicant as plaintiff and DEF as defendant. The applicant says that there is no statement in DEF’s affidavit to the effect that she was emotionally abused. I do not rely on the affidavit in making my findings because I consider that there is other evidence which is relevant and available to me. [135] The evidence about the altercation between the applicant and DEF on 3 or 4 August 2014 when DEF either struck the applicant or struggled with him over possession of the phone is a basis on which I can find that DEF was at least offended by the applicant accessing, reading and forwarding her private emails and texts on or about 3, 4 and 5 August 2014. [136] On that basis I find that acts of domestic violence occurred on or about 3, 4 and 5 August 2014 because the applicant’s actions on those days as particularised in matter 1(b)(i) and (ii) were offensive to DEF. Has there been misconduct? [137] The evidence to which I have referred presents a distressing scene between two people who were upset at the breakdown of their marriage, the disclosure of DEF’s infidelity and the betrayal of the applicant’s friendship by GHI. The applicant has acknowledged that he felt betrayed and was angry at the time.40 [138] The applicant submits that private matters are not relevant to disciplinary proceedings. [139] In Deputy Commissioner Stewart v Dark41 Justice Muir (with whom Gotterson, JA and Mullins J agreed) held that misconduct in a private capacity, outside the public eye could constitute misconduct if it did not meet the standard of conduct the community reasonably expected of a police officer. [140] In Officer TXS v Acting Deputy Commissioner Colin McCallum42 it was said that a line must be drawn in respect to a police officer’s private or off duty conduct, but a police officer’s conduct may ultimately be found to be misconduct for the purposes of discipline if: (a) it is of such a nature as to erode public confidence in the police service; or (b) it may be regarded as morally or socially blameworthy in a policeman; or (c) it affects the police officer’s fitness to discharge his duties as a police officer; (d) it clearly affects the status and authority of the police officer in the discharge of his public duties”.43 [141] The circumstances between the applicant and DEF at the relevant time were deeply personal and distressing. Not many human beings are likely to behave with perfect 39 S21 Documents, Part B – Affidavit of DEF dated 8 December 2014 filed in magistrate’s court domestic violence proceedings. 40 S21 Documents, Part B – Directed interview dated 31 October 2017 page 548. 41 [2012] QCA 228 (‘Dark’). 42 [2011] QCAT 739 (‘Officer TXS’). 43 Ibid. -- 20 of 34 -- 21 propriety in those circumstances. In my view the community would understand that the context for the applicant’s behaviour makes it explicable. [142] Is the applicant’s conduct so improper that it meets the tests referred to in Dark and Officer TXS? There are limited incidents of substantiated domestic violence, the conduct is of a relatively low level and the context in which the acts occurred makes the conduct understandable. However this is a circumstance where I should give due weight to the view of the Assistant Commissioner as to what amounts to acceptable conduct from a police officer even in a private setting. That is the factor which tips the balance so that I am satisfied to the requisite standard44 that misconduct, as defined, has occurred. [143] The correct and preferable decision with respect to Matter 1 is to confirm the decision of the respondent. Matter 2 That between 1 September 2014 and 30 November 2016 at the Sunshine Coast and elsewhere, your conduct was improper in that you engaged in inappropriate behaviour towards GHI (ss 1.4 and 7.4 of the Police Service Administration Act 1990, and s 2 of the Standard of Practice). Particulars Investigations have identified that you met GHI in 1999 and maintained a close friendship with him until August 2014. On 4 August 2014, you became aware that GHI was involved in a romantic relationship with your then wife, DEF. CASA/Virgin Airlines 2014 (a) You knew GHI was employed by Virgin Australia as a pilot. (b) On 5 August 2014 you sent an email to GHI and indicated you would report to the Civil Aviation Safety Authority (CASA) that GHI was dyslexic, colourblind and has chronic asthma. (c) On 3 September 2014 you provided information via telephone to Dr Michael Drane, Senior Aviation Medical Officer, CASA, that GHI had lost a family member, was drinking heavily, reporting to work still affected by alcohol and had lied on his assessment for colour blindness. (d) Given your experience and knowledge as a pilot, you were aware that this information would likely cause further inquiries to be conducted into GHI’s fitness to continue his duties as a pilot. (e) The provision of this information resulted in GHI’s suspension from his duties as a pilot and him being required to submit to further medical examination. (f) GHI undertook the required medical examinations and was cleared to return to duties in November 2014. 44 Briginshaw v Briginshaw (1938) 60 CLR 336. -- 21 of 34 -- 22 (g) In the latter half of 2014, you sent text messages to Mark Shield, Head of Group Security Virgin Australia, stating that GHI had ruined your relationship with your wife and that he was mentally unwell and not fit to fly. The applicant’s submissions [144] The applicant submitted at the hearing that he wished to withdraw admissions relied upon by the respondent or to put the respondent to formal proof in relation to matters he relied upon in making his decision. The matters include particulars 2(a), (e), (f) and other particulars which I will deal with later. [145] The applicant could give no legal basis for the asserted entitlement to withdraw admissions in relation to particulars of allegations and to now require formal proof of those particulars. The withdrawals are objected to by the respondent who refers to the delay and cost if it were necessary to now achieve formal proof of matters previously acceded to by the applicant. [146] This matter is not an adversarial proceeding in a civil court which is governed by Rules in relation to withdrawal of admissions made in pleadings, where the Rules guide the parties as to matters they must establish to be granted leave to withdraw an admission. Nor is a disciplinary proceeding, based on a show cause process, one where formal proof of allegations is required. It is sufficient if before making a decision that the decision maker reaches a state of reasonable satisfaction as to the matters alleged taking into account the evidence and submissions made by a subject officer. [147] I am bound to review the material before the respondent and come to my own view as to the correct and preferable decision. I do not intend to ignore or exclude records before the Tribunal, to reflect the applicant’s new position or to ignore earlier admissions made by the applicant. [148] The real question is whether the applicant made a false report to CASA about GHI’s mental and physical condition, resulting in his suspension and the need for medical examination. [149] I find on the material before me that the applicant knew GHI was employed by Virgin Australia as a pilot and that on 5 August 2014 the applicant sent an email to GHI, which said: …I may also have mandatory reporting obligations to CASA that a pilot for Virgin is dyslexic colour bling and has chronic asthma. That might be an interesting Monday morning interview when you get back. [150] The 5 August 2014 email is the email referred to in Matter 1. [151] I do not think it is to the point as suggested by the applicant that the date of the email fell outside the date range for the allegations in matter 2. The email is put as evidence of the allegation, not an allegation in itself. [152] The applicant agrees that he telephoned CASA in 2014 to enquire about his reporting obligations as he was aware of a pilot who had health issues which may affect his -- 22 of 34 -- 23 fitness to fly.45 He denies making good on his threat to GHI in terms of advising CASA of the information he threatened to disclose. [153] On the basis of the transcript of interview conducted by D/A Herpich, Internal Investigations Group, Ethical Standards with Dr Drane, Principal Medical Officer, Civil Aviation Safety Authority,46 I find that on 3 September 2014 at 10.15am Dr Drane, received a phone call from an unidentified person who told him that GHI was a Virgin pilot, that he drinks heavily and he has lied about his colour vision. I find that as a result of the phone call Dr Drane required GHI’s suspension and for a range of tests to be conducted. I find that the suspension was lifted after negative test results were returned. [154] Dr Drane cannot recall if the caller was male or female, so there is no direct evidence that the caller was the applicant. [155] Evidence consistent with the caller being the applicant is: (a) the 5 August 2014 email to GHI from the applicant. (b) Senior Sergeant Bradley’s affidavit dated 02 December 2014:47 I recall on 09 September 2014 at around 0700hours (ABC) was very upset. I took him out for a coffee to discuss what was wrong. During this discussion he told me he had made a formal complaint to various statutory bodies in relation to the conduct of a man called (GHI). Senior Sergeant Bradley’s notes dated 9 September48: He stated he had personally spoken to Virgin and CASA re (GHI’s) sexual conduct. These complaints resulted in him being suspended. (c) In Administrative Officer Robyn Healy’s statement dated 04 April 201649 she stated: I recall an incident that occurred in September/October 2014 … I recall (ABC) telling me that GHI is colourblind and that he was going to report him or get a friend to report him to CASA as he wouldn’t be able to fly if he is colourblind. (d) In Sergeant Phillip Stephen’s statement dated 30 March 2016,50 he stated: I recall an incident that occurred around September 2014 … I remember ABC saying words to the effect of: I’ve reported (GHI) to CASA. (GHI) is colourblind and you can’t be a pilot if you’re colourblind. (e) In ABC’s directed interview, conducted on 31 October 201751 he stated: … well, as I said, I was metaphorically bleeding everywhere and telling everyone that would listen ah in relation to um, what was going on. I, think I 45 S21 documents, Part A – submissions on substantiation page 81; Part B directed interview dated 31 October 2017 page 551. 46 S21 documents, Part B – page 362 – Transcript of interview dated 24 January 2017. 47 Ibid., page 55. 48 Ibid., page 59. 49 Ibid., page 326. 50 Ibid., page 328. 51 Ibid., page 558. -- 23 of 34 -- 24 even got on the phone basically had a, a tearful conversation with the local Energex lady about (GHI) and, and his turdiness. (f) In the applicant’s former girlfriend Fiona King’s interview conducted on 05 January 201652, she stated: Um he did say that he made a complaint against him … um that he was dyslexic I think or colourblind or something … he said he was going to make a complaint … so I’m not 100 percent sure that he followed through with the complaint. (g) In CASA investigator Noel Saffery’s email to Senior Constable Jo Moore dated 20 October 2014,53 the following notes were reproduced: Information received by telephone advising of concerns about this pilot/Virgin FO. States loss of father last year. Has been drinking increasingly heavily since. States this pilot boasts about his exploits in Bali and Thailand, drinking heavily and reporting still affected by alcohol … has also stated he has lied consistently about his colour vision as he has learned the plates; has excellent memory … 3/09/2014 10:59:43 am, Michael. (h) In Virgin Head of Security Mark Shield’s email to Inspector Dirk Petersen, dated 25 November 201654, he stated: However about two years ago he started to text me to enquire if I knew a pilot, GHI … and I advised (ABC) I did not know (GHI). (ABC) told me via text that our pilot had ruined his relationship and his wife had left him for (GHI) … further texts were received that (GHI) was mentally unwell and not fit for flying. [156] The applicant submits that there is overwhelming evidence supporting Ms Angela Charles (a former girlfriend of GHI) having made the complaint to CASA. The applicant submits that Ms Angela Charles demonstrated a propensity for making complaints against GHI and says the probability is that she made the 03 September 2014 complaint to CASA as evidenced by her 2010 email55 to GHI accusing him of sociopathy forwarded to Avmed in November 2016 and her early November 2016 call to the AFP.56 [157] Against these submissions is a Facebook message from “Emerald White” (Ms Charles) dated 14 October 2016,57 Ms Angela Charles stated: That’s fine but I informed CASA about this person after the suicide pilot incident in Germany and he is still flying [158] Also, in Ms Charles’ call to the AFP in early November 2016, she stated in response to a reporting query: To CASA about (GHI), around the time that German pilot … I rang CASA but I don’t think that I left my name and number and I don’t think I gave CASA enough information58 52 Ibid., page 758. 53 Ibid., page 257. 54 Ibid., page 264. 55 Ibid., page 303-306. 56 Ibid., page 331. 57 Ibid., page 262. 58 Ibid., attachment 05: 11.45-12:35. -- 24 of 34 -- 25 [159] In terms of the complaints Ms Charles made about GHI, the evidence is that she did not make a complaint about GHI until after the Germanwings crash. The respondent notes that occurred on 24 March 2015. There is no evidence of Ms Charles complaining about GHI around 3 September 2014. Further, Ms Charles has been very frank about her complaints. If she had made the complaint to Dr Drane on 3 September 2014 one would expect her to say so in the material before the Tribunal. She has not done so. On the basis of these matters I find that it is not probable that Ms Charles made the 3 September 2014 phone call to Dr Drane. [160] The applicant says that the evidence of his work colleagues, and of Ms King and Mr Shield set out above is unreliable. He submits that the work colleagues’ statements were taken 20 months after the alleged conversations occurred and Ms King was not 100 percent sure that the applicant followed through with the complaint. [161] The applicant complains that witnesses Stevens and Healy did not refer to a date of their discussions with the applicant however I note that the section 21 documents Part B page 329 referenced the discussions as occurring in August/September 2014. [162] I do not consider the statements are unreliable for the reasons suggested by the applicant. They appear clear on their face. There is no reason to doubt the veracity of what they say. [163] As to Mr Shield, the applicant asserts in his substantiation submissions that there is an orchestrated case against him by two men who work for the same airline. He gives no evidence of that alleged collusion. By contrast, he has also submitted that he turned to Mr Shield to discuss GHI and DEF when he discovered the affair.59 I find that the evidence of Mr Shield is consistent with the applicant’s discussions with him in 2014 after the affair was discovered. [164] The applicant says that the materials obtained from Dr Drane were obtained during an investigation of an ultimately withdrawn stalking complaint against him and should not now be used in disciplinary proceedings. He also complains that GHI’s medical information was provided by a Commonwealth officer to Queensland officer without a warrant and that the material should not be used. I do not accept those submissions. [165] The record of interview reveals that Dr Drane voluntarily read into the record his contemporaneous note of the 3 September 2014 conversation. Further, the applicant himself seeks to rely on Dr Drane’s statement to highlight that Dr Drane had no record nor recall as to whether the caller on 3 September 2014 was male or female. By requiring the Tribunal to give weight to this aspect of Dr Drane’s statement I consider that the applicant is consenting to its use in the review proceeding.60 [166] I am entitled to have reference to the record of interview as its use is consented to by the applicant, it is probative and relevant and not obtained under compulsion for the purpose of the criminal investigation.61 59 Ibid., page 87. 60 ASIC v Rich [2005] NSWSC 62, [310]; Flori v Commissioner of Police & Anor [2014] QSC 284, [38], [39]. 61 Nugent v Stewart & Anor [2016] QCA 223, [78]; cf Flori v Commissioner of Police & Anor [2014] QSC 284 which is distinguishable because it involved documents seized pursuant to a warrant, whereas there is no compulsion with respect to the interview with Dr Drane; See also Lamb v Sherman [2021] QCA 290 as to what amounts to compulsion. -- 25 of 34 -- 26 [167] As against the applicant’s submissions the applicant’s 5 August 2014 email indicates an intention to report damaging information about GHI. The phone call made shortly afterwards reflected the matters in the 5 August 2014 email. The applicant’s ill feeling towards GHI, demonstrated in the 5 August 2014 email, provides a motive for the applicant to make the 3 September call to Dr Drane. The applicant told his superior, his work colleagues and others that he had complained to CASA about GHI or would do so. [168] I consider that all these facts are a strong basis on which to draw an inference that the applicant telephoned Dr Drane on 3 September 2014. I find that he did so and that the contents of the call were false given the outcome of the testing conducted on GHI as a result of the complaints. I find on the basis of Dr Drane’s statement that GHI was suspended and required to submit to two medical examinations and when he undertook those examinations he was subsequently cleared to return to his duties in November 2014. Is there misconduct? [169] The allegations in this matter are serious, because they involve a deliberate act of victimisation, cost and distress to an individual as well as cost to a commercial organization. [170] I am satisfied to the requisite degree that the alleged conduct occurred and that it is misconduct as defined. Is the applicant entitled to relief from a disciplinary finding and sanction? [171] The applicant submits that if there is a finding that he made the telephone call to Dr Drane on 3 September 2014, then he is entitled to indemnification under the Civil Aviation Safety Regulations 1998 (Cth) Reg 67.140. The regulation is directed to the provision of information in good faith, to a Designated Aviation Medical Examiner (DAME) as part of a process of issuing or renewing a medical certificate. In those circumstances certain persons are not subject to any civil or criminal liability for advising CASA that a person does not meet a relevant medical standard. That is not the context of the 3 September 2014 telephone call. [172] The applicant is not excused from the imposition of a police discipline by the Civil Aviation Safety Regulations 1998 (Cth) merely as a result of making a call to Dr Drane about GHI’s fitness to fly, which turned out to involve false accusations. [173] The finding of misconduct is confirmed as the correct and preferable decision with respect to this aspect of matter 2. Brisbane City Council (h) On 26 September 2014, you made a complaint to a Brisbane City Council (BCC) customer service officer via telephone in relation to various unauthorised -- 26 of 34 -- 27 building works at 25 Orchid Street, Toowong, which you knew to be the residence of GHI; (i) During the call, when asked for your particulars, you provided a false name of Bruce Johnson, a false mobile number of 0419111112 and falsely indicated you resided in nearby units; (j) On 7 October 2014, you made a further complaint to a BCC customer service officer via telephone in relation to various unapproved works at 25 Orchid Street, Toowong; (k) During the call, when asked for your particulars, you again provided the false name of Bruce Johnston and provided a false address of 29 Orchid Street. [174] Evidence relating to these allegations was provided to Senior Constable Moore upon her request to the Brisbane City Council as part of her enquiries in relation to the domestic violence proceedings. She was provided with documents related to the complaints, action taken by the BCC and recordings of the telephone calls purportedly made by Bruce Johnson.62 [175] The applicant raises the same objection as put earlier in relation to use of material obtained for the purpose of domestic violence proceedings being used in disciplinary proceedings. I intend to have regard to the documents for the reasons given earlier, namely that the Queensland Police Service is in possession of the documents as a result of conducting the domestic violence proceedings on behalf of DEF as a party. The documents were not unlawfully obtained, nor were they obtained under compulsion. The documents are relevant and probative. [176] The evidence reveals that: (a) on 26 September 2014 a complaint was made to a Brisbane City Council customer service officer via telephone in relation to unauthorised building works at 25 Orchid Street, Toowong; (b) when asked to provide particulars, the caller provided the name Bruce Johnston, the mobile number 0419 111 112 and indicated they lived in nearby units; (c) on 7 October 2014, a further complaint was made to a BCC customer service officer via telephone in relation to various unapproved works at 25 Orchid Street, Toowong; (d) when asked to provide particulars, the caller provided the name Bruce Johnston and the address of 29 Orchid Street, Toowong; and (e) the complaints were substantially unfounded. [177] The applicant denies these allegations and submits that there is insufficient evidence to substantiate that he made the complaints to the Brisbane City Council. In particular he raises that there is no forensic analysis of the audio recording to establish that the recorded voice is his voice; both calls were made using the number 0419 111 112 which cannot be connected to him; and due to credibility issues, the purported identification of his voice by DEF and GHI cannot be relied upon. Acknowledging 62 S21 documents, Part B – pages 61 and 343-360. -- 27 of 34 -- 28 those matters, other matters point to the likelihood that the calls to the BCC were made by the applicant. [178] First, the timing and nature of the complaints are more than coincidental. The applicant had detailed knowledge of the renovations GHI had undertaken on his residence at 25 Orchid Street, Toowong and held a significant animosity towards GHI. [179] Second, when questioned about the matter in the directed interview the applicant did not outright deny the allegations. In fact he acknowledged that he “may” have made the complaints. He said: I have no recollection … I may well of … I don’t recall … ah is this where Mr GHI and DEF positively identify me as the person who is speaking on the, on the audio tape? … No, I, I probably would have done it sir but I can’t recall doing it … No I, I acknowledge I may have made the complaint I can’t recall it …63 Sounds like me but may not be64 … I don’t recall making that phone call, I may well have, I don’t recall65 … It may well have been, I don’t recall … you can go round in circles all you want sir, I don’t recall making the phone call, if I did recall making the phone call I’d say so. I don’t recall making the phone call.66 [180] In the directed interview the applicant accepted that the voice recordings sound like him. [181] I consider that the timing of the complaints, the admitted animosity towards GHI by the applicant, his knowledge of GHI’s house and his failure to deny that he was the caller to the BCC are sufficient facts on which to draw an inference that the applicant did make unfounded complaints to the BCC about GHI. [182] I am satisfied to the requisite standard that this conduct is misconduct. The respondent’s finding is confirmed as the correct and preferable decision. 63 Ibid., page 555. 64 Ibid., page 556. 65 Ibid., page 557. 66 Ibid., page 560. -- 28 of 34 -- 29 Casa/Virgin Airlines 2016 … (o) As you approached GHI, you said the word, ‘cunt’ and raised your fist up to your mouth before opening your hand as you blew on it. … (x) you provided Angela Charles with personal information about GHI with personal information about GHI which facilitated the making of the complaints to Virgin and The Australian Federal Police. [183] A number of facts are asserted culminating in the allegations at (o) and (p) which I take to be the relevant allegations. As the allegations at (o) and (p) were found not to be substantiated by the respondent I accept the applicant’s submission that there is no utility in making a finding in relation to the precursor matters. [184] I am not satisfied to the requisite standard that these last particulars of matter 3 amount to misconduct, on the basis of the finding of the decision maker below. The correct and preferable decision is that the finding there has been no misconduct as alleged is confirmed. Matter 3 That between 10 December 2014 and 16 December 2014 at Brisbane, your conduct was improper in that you swore and signed an affidavit containing false information for use in a judicial proceeding. (Sections 1.4 and 7.4 of the Police Service Administration Act 1990, and s 2 of the Standard of Practice). Particulars Investigations have identified that on 23 October 2014, Senior Constable Joanne Moore made application for a Domestic and Family Violence Act 2012 protection order naming you as the respondent and DEF as the aggrieved. This application was first mentioned in the Maroochydore Magistrates Court on 28 October 2014. The application was adjourned to 16 December 2014 in the Brisbane Magistrates Court. (a) On 05 August 2014, you sent an email to GHI indicating you would report to CASA that GHI was dyslexic, colourblind and has chronic asthma; (b) On 03 September 2014, you provided information via telephone to Dr Michael Drane, Senior Aviation Medical Officer, CASA, that GHI had lost a family member, was drinking heavily, reporting to work still affected by alcohol and had lied on his assessment for colour-blindness; (c) Given your expertise and knowledge as a pilot, you were aware that this information would likely cause further enquiries to be conducted into GHI’s fitness to continue his duties as a pilot; (d) The provision of this information resulted in GHI’s suspension from his duties as a pilot and being required to submit to further medical examination; -- 29 of 34 -- 30 (e) On 11 December 2014, you signed and swore an affidavit at Brisbane67; (f) Within that affidavit you swore the following false information: I did not report GHI to either Virgin or CASA, despite me writing an email stating that I would do so on the day that I found out that my wife was having an affair … (g) On 11 December 2014, the affidavit was filed with the Brisbane Magistrates Court Registry for use in the aforementioned domestic and family violence proceeding. [185] I have previously found that the applicant did telephone Dr Drane, Principal Medical Officer, CASA on 3 September 2014 to report information about GHI’s medical and physical condition which caused him to be suspended and medically examined. [186] On the basis of that finding, the conclusion must be reached that the applicant swore a false affidavit on 11 December 2014 when he said that he did not report GHI to CASA. However the respondent presses that the respondent is not entitled to use the affidavit in disciplinary proceedings. [187] The applicant says that there is no evidence that the affidavit in question was filed and served in the domestic and family violence proceedings. I do not consider that submission assists the applicant because the document is on its face a sworn affidavit, whether it was used in proceedings or not. It is the falsity of paragraph 22 of the Affidavit which is important, because it is a statement made on oath. [188] The applicant also says that the affidavit does not record the Queensland Police Service as a party so there is no proper basis on which it can be in the respondent’s hands. In earlier submissions he has suggested that the affidavit has been unlawfully taken from the court file.68 [189] The respondent submits that the domestic and family violence material was either in its hands because it was a party to the proceedings or the material was given to it by DEF. [190] I note that the applicant and DEF each had domestic and family violence proceedings on foot at the same time, which were both to be heard in the Brisbane Magistrates court. It is not surprising that DEF would give a copy of the applicant’s affidavit in his application to the officer conducting her application. [191] I find that the Queensland Police Service was entitled to a copy of the affidavit and that no breach of s 160 of the Domestic Violence and Family Protection Act 2012 (Qld) has occurred. [192] The document is relevant, probative and has not been obtained under compulsion. The affidavit is properly part of the s 21 documents and one to which I may have regard as part of this review. [193] The applicant submits in the alternative that he is entitled to an indemnity if it is found that he did report to Dr Drane. 67 Ibid., page 217, paragraph 22. 68 Submissions filed 17 September 2021. -- 30 of 34 -- 31 [194] It is misconceived for the applicant to suggest that if it is found he did report to Dr Drane that he should be excused from the consequence of swearing a false affidavit about reporting to Dr Drane. No indemnity is available to him within the terms of the Civil Aviation Regulations 1998 (Cth), as discussed earlier. [195] I do not accept the submission put in the alternative. Has there been misconduct? [196] I am satisfied to the requisite standard that swearing a false affidavit is misconduct. The correct and preferable decision is to confirm the decision of the respondent. Matter 4 That on 24 January 2017 at Pacific Paradise, Sunshine Coast, your conduct was improper in that you used your position as a police officer to intimidate staff at the Pacific Paradise State School. (Sections 1.4 and 7.4 of the Police Service Administration Act 1990 and s 2 of the Standard of Practice) Particulars Investigations have identified: (a) on 24 January 2017, you attended the office at (the School); (b) you spoke with staff, namely Sue Moore and Brett Dowdell, to enquire about the enrolment status of your son JKL; (c) during the conversation you said words to the effect: Don’t you know who I am? Google ‘Sergeant (ABC)’. I’m the guy who is in the paper all the time. I put people in jail. I am a police prosecutor. (d) your manner and words spoken caused staff to feel intimidated. [197] The applicant accepted particulars (a) and (b) on a factual basis.69 [198] The applicant denied his manner or any words he spoke could have caused staff to feel intimidated.70 He says that he was in plain clothes attending to a private matter to do with his son. He says that his manner was jovial. [199] He also says that the alleged statement came after an enquiry as to what he did for a living, the significance of which I take to be that a response as to the nature of his work was not unnatural. [200] The applicant says that statements from the school staff are unreliable because statements were taken a long time after the events and after he had made a complaint to the Department of Education about the school. [201] The fact is that the school staff have said that they felt intimidated. I do not consider they have any reason to lie about their feelings. Whether those feelings were justified in the circumstances is another matter. The school staff do not say they thought the 69 S21 documents, Part A – page 102. 70 Ibid., page 104-106. -- 31 of 34 -- 32 applicant was threatening to put them “in jail” or that he required anything unreasonable from them. [202] I note that the applicant had a proper purpose to attend the school because of the enrolment of his son at that school by DEF in contravention of Court Orders. I accept the applicant’s submission there is no evidence that any advantage was sought or obtained by him which might be consistent with intimidatory conduct. [203] I find on the basis of the statements of the staff that a statement to the effect of that alleged was made by the applicant. I find that the staff felt intimidated but there was little justification for them to feel that way. [204] I am unable to find that there is anything inherently intimidatory in the words said. At worst the statement was self-important and unnecessary. [205] I am not satisfied to the requisite standard that the statement made to the school staff amounts to misconduct. The correct and preferable decision is to substitute the Tribunal’s decision that the conduct alleged in matter 4 does not amount to misconduct. Matter 5 That on 31 October 2017 at Maroochydore, Sunshine Coast, your conduct was improper in that you engaged in inappropriate behaviour directed towards a senior officer, namely Inspector Dirk Petersen. (Sections 1.4 and 7.4 of the Police Service Administration Act 1990, and ss 2 and 12 of the Standard of Practice) Particulars Investigations have identified: (a) On 31 October 2017, you were participating in a disciplinary interview being conducted by Inspector Dirk Petersen; (b) During the interview you said the following to Inspector Petersen: … cause I, I literally want to jump across the, the table and hit you in the head … ; and (c) You delivered the above statement in a manner which led Inspector Petersen to reasonably believe you were likely to carry out your statement of wanting to hit Inspector Petersen in the head. [206] The matters at (a) and (b) are not in dispute. It is disputed that the applicant gave the impression or intended to hit Inspector Petersen. [207] An audio of the directed interview at which the exchange occurred is before the Tribunal. I have listened to the audio. It is apparent from the applicant’s tone of voice that he is emotional in the lead up to the statement as the questioning touches on proceedings involving access to his son and then the effect Inspector Petersen’s communications with DEF may have had on the proceedings. -- 32 of 34 -- 33 [208] The applicant’s submissions attach statements from Sergeant Grant Wilcox, Union representative and Ms Lee McCallum solicitor for the applicant71 who were present at the meeting. They are clear that the applicant did not convey that he would strike Inspector Petersen, and that he could not have done so given the width of the table separating them and the fact that he had an injured and bandaged hand. [209] Inspector Petersen and another officer present at the interview, Sergeant Elders give a different perspective. Inspector Petersen has a physical vulnerability so that if struck in the head it would be very serious for him. I accept that he felt concerned enough to leave the room. It is not disputed that he returned very shortly thereafter to continue the interview. The applicant apologised to him. [210] Having listened to the audio, I think it reveals an expostulation of distress at what has transpired, rather than a literal statement of intent to assault Inspector Peterson combined with the ability to do so. I accept the evidence as to the physical layout of the interview room and the applicant’s inability to strike Inspector Petersen. [211] The context in which the statement was made combined with an apology proffered immediately afterwards mitigate an imprudent statement made to a superior officer. I do not find that the applicant literally threatened to strike Inspector Petersen, nor that Inspector Petersen could reasonably have thought that was the case upon reflection. [212] However the statement is not one which should have been made to a superior officer. This is a circumstance where it is appropriate to recognise the respondent’s knowledge and experience in managing police officers. On this basis I confirm the decision of the respondent that misconduct has occurred. [213] The correct and preferable decision is that the decision of the respondent is confirmed in relation to matter 5. Conclusion [214] I find that the correct and preferable decision is that: (a) The decision of the respondent made on 14 September 2020 in relation to matter 1 is confirmed. (b) The decision of the respondent made on 14 September 2020 is confirmed in relation to matter 2 insofar as the applicant made a false complaint about GHI to the Civil Aviation Safety Authority on 3 September 2014. (c) The decision of the respondent made on 14 September 2020 is confirmed in relation to matter 2 insofar as the applicant made complaints about building work performed at GHI’s home to the Brisbane City Council. (d) The decision of the respondent made on 14 September 2020 is confirmed in relation to matter 2 insofar as there is no finding of misconduct in relation to complaints made to CASA/Virgin Airlines in 2016. (e) The decision of the respondent made on 14 September 2020 is confirmed in relation to matter 3. 71 Ibid., page 329-504. -- 33 of 34 -- 34 (f) The decision of the respondent made on 14 September 2020 is set aside. The Tribunal’s decision is substituted that the conduct alleged in matter 4 does not amount to misconduct. (g) The decision of the respondent made on 14 September 2020 is confirmed in relation to matter 5. Future conduct of the matter [215] A review of the decision in relation to sanction remains to be conducted. The parties are required to attend a Directions Hearing on a date and at a time advised by the Tribunal in relation to that part of the proceeding. -- 34 of 34 --