Acreman v Deputy Commissioner Brett Pointing No 2 [2022] QCATA 147

QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL CITATION: Acreman v Deputy Commissioner Brett Pointing No 2 [2022] QCATA 147 PARTIES: GEOFFREY OWEN ACREMAN (applicant\appellant) v DEPUTY COMMISSIONER BRETT POINTING (respondent) APPLICATION NO/S: APL109-19 and APL148-19 MATTER TYPE: Appeals DELIVERED ON: 20 September 2022 HEARING DATE: On the papers HEARD AT: Brisbane DECISION OF: Member Richard Oliver ORDERS: The respondent pay the applicant costs in the sum of $15,354.00 by 30 November 2022 CATCHWORDS: POLICE – INTERNAL ADMINISTRATION – DISCIPLINE AND SANCTION FOR MISCONDUCT – QUEENSLAND – PROCEDURE – COSTS – where applicant sought review of the respondent’s decision to take disciplinary action – where the tribunal found the applicant engaged in misconduct – where the appeal tribunal set aside the finding of misconduct in respect of Matter 3 on the grounds the conduct constituted a public interest disclosure – where the applicant was afforded the statutory immunity from disciplinary charge – where applicant applies for costs of the review application and the appeal – where the applicant was unsuccessful in the appeal on Matter 2 – where the appeal tribunal sought further submissions after the hearing on whether the applicant’s conduct constituted a public interest disclosure – whether in the interests of justice the applicant should be awarded costs – whether costs should be awarded when the public interest disclosure and the statutory immunity was not raised or considered in primary hearing -- 1 of 8 -- 2 Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 20, s 100, s 102 Police Service Administration Act 1990 (Qld), s 7.26 Acreman v Deputy Commissioner Pointing [2021] QCATA 133 Acreman v Deputy Commissioner Brett Pointing [2019] QCAT 95 Ralacom Pty Ltd v Body Corporate for Paradise Island Apartments (No 2) [2020] QCAT 412 Cowan v Building and Construction Commission [2002] QCATA 103 Marzini v Health Ombudsman (No 4) [2020] QCAT 365 Nine Network Australia Pty Ltd & Ors v Wagner & Ors [2020] QCA 221 APPEARANCES AND REPRESENTATION: Applicant: Self-represented Respondent: Mr Fraser, senior legal officer, QPS Legal Unit REASONS FOR DECISION Background [1] On 24 September 2021 the Appeal Tribunal made orders partly setting aside a decision of the Tribunal at first instance that Mr Acreman had engaged in official misconduct. The conduct complained of related to accessing confidential information on the Queensland Police Service computer system without an official purpose. Particulars of the misconduct charge were as follows: Matter 3 That between 11 January 2016 and 16 January 2016 at Brisbane your conduct was improper in that you: (a) accessed official and confidential information contained within the Queensland Police Service computer system without an official purpose related to the performance of your duties as a member of the Queensland Police Service. (b) emailed the official and confidential information to his private email address without authority or official purpose related to the performance of his duties as a member of the Queensland Police Service. [2] The Appeal Tribunal found that Mr Acreman, in accessing the computer system and his reporting of it, was a public interest disclosure and therefore he was afforded statutory -- 2 of 8 -- 3 immunity for his conduct under the Public Interest Disclosure Act 2010 (Qld)1 (‘PID Act’). [3] Mr Acreman has now applied for his costs of the primary review proceeding and the costs of the appeal. In his application filed on 18 February 2022 he sets out the reasons for his application which include, in summary: bringing the charge against him when the QPS knew or ought to have known he had the protection of s 36 of the PID Act; failing to comply with the Tribunal’s directions; having to comply with sanctions imposed by the Tribunal while waiting for the appeal to be finalised; withholding evidence from the disciplinary hearing; denying him the right of personal appearance before the disciplinary hearing; and the need to engage legal representation due to the seriousness of the charges against him.2 [4] In support of his application, Mr Acreman has also filed written submissions addressing the above matters. Although s 100 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) (‘QCAT Act’) provides that parties should bear their own costs, Mr Acreman relies on s 100(1) of the QCAT Act to contend that the interest of justice require the Tribunal to make a costs order in his favour. [5] The Deputy Commissioner opposes the application. In the alternative, submits that if there is to be an order for costs it should fixed and be limited to a specific sum. Costs in QCAT [6] The usual position with respect to cost in the Tribunal is that each party must bear the party’s own costs.3 Despite that mandate there are exceptions ‘if the tribunal considers the interest of justice require it to make the order”.4 To provide assistance, various matters can be taken into account when determining whether to make a costs order, although the list is not exhaustive.5 The Tribunal can consider anything else that is relevant to the making of the order.6 [7] There have been a number of decisions of the Tribunal as to how these sections should be applied.7 However it is accepted that each case must be considered on its own merits. For the reasons set out below we consider that in the circumstances of this case the interests of justice require the Tribunal to make a costs order in favour of Mr Acreman. It is unnecessary to embark on any further consideration of the application of s 100 of the QCAT Act. Protection afforded by the PID Act [8] The charges brought against Mr Acreman for accessing the QPS computer system, and the sanctions imposed were very serious. This is particularly so in respect of an officer who was nearing the end of his long career as a police officer, with an unblemished 1 Acreman v Deputy Commissioner Pointing [2021] QCATA 133, at [11] – [15] “Appeal Reasons” 2 Application (Form 40) filed 18.02.2022 paragraph 9. 3 QCAT Act s 100. 4 Ibid s 102(1). 5 Ibid s 100(3) 6 Ibid s 102(3)(f). 7 Ralacom Pty Ltd v Body Corporate for Paradise Island Apartments (No 2) [2020] QCAT 412; Cowan v Building and Construction Commission [2021] QCATA 103; Marzini v Health Ombudsman (No 4) [2020] QCAT 365 -- 3 of 8 -- 4 record. He believed his actions after he found the confidential documents, and the Appeal Tribunal found, were consistent with ensuring that the existence of the documents on L:drive were preserved and brought to the attention of Superintendent S at the earliest opportunity,8 despite some delay which was explained. [9] He did not in any way try to cover up his actions and was forthright and frank about his conduct when interviewed during the investigation process. Also, the fact that he emailed the documents to his private email account to secure their integrity was explained and accepted by the Appeal Tribunal. He deleted the documents from his personal computer after he informed Superintendent S of their existence. Again, Mr Acreman was forthright in his explanation about this to those who interviewed him. All of this was before the Deputy Commissioner at the disciplinary hearing. It was also explained in the documents filed in the appeal and at the hearing before the Appeal Tribunal. [10] The Appeal Tribunal found that the whole of his conduct in relation to accessing the L:Drive was consistent with a public interest disclosure particularly in light of the concession by the Deputy Commissioner that the existence of the documents on the L:Drive amounted to maladministration.9 In those circumstances, rather than charge Mr Acreman with misconduct, the prudent course would have been for the Deputy Commissioner to act on the information and investigate as to how Mr Acreman’s privacy was comprised and take steps to remedy that situation. [11] Instead he was charged with, and found to have engaged in, misconduct. This was upheld in the review proceeding. As a consequence of the Deputy Commissioner finding the charge was substantiated Mr Acreman secondment to the Crime and Corruption Commission was terminated, although this occurred before a final determination. He was initially demoted in rank from Inspector (paypoint 5.6) to senior sergeant (paypoint 4.1) which was then limited to a period of 12 months on review.10 He was required to undertake professional development and did so with a Business Ethics and Corporate Governance course at Griffith University at personal cost. [12] He submits in support of the costs application that had it not been for Matter 3 he would not have sought a review of Matter 2 alone because the sanction imposed was a reprimand. [13] Therefore, all of the time and cost involved with the review proceeding in the Tribunal and the Appeal, he submits, was essentially because of the charge in Matter 3. Despite that submission, Mr Acreman did go to some lengths in reviewing and appealing Matter 2. Considerable consideration was given to that issue by the Appeal Tribunal in the reasons.11 That ground of appeal was dismissed. If follows that there is no basis upon which there could be an order for the costs associated with the appeal in relation to Matter 2. [14] In respect of Matter 3, the Deputy Commissioner argues that the PID issue was only first raised in the appeal: “The Applicant’s success in Matter 3 rested on the Appeal Tribunal identifying the PID issue on its own initiative”. To a degree this is true. It was not specifically raised in the Tribunal below nor was any consideration given to the 8 Appeal Reasons [123]. 9 Appeal Reasons [142]. 10 Acreman v Deputy Commissioner Brett Pointing [2019] QCAT 95. 11 Appeal Reasons [43] – [109]. -- 4 of 8 -- 5 application of the PID Act as was done in the reasons of the Appeal Tribunal.12 But as was said in the reasons with respect to Mr Acreman’s application to adduce the fresh evidence about what he learned doing the course at Griffith with respect to ‘Whistleblowing’: While we accept that this evidence was not available to Mr Acreman at the time of the hearing, it is consistent with Mr Acreman’s evidence about the steps he took and his submissions before the Tribunal in the review. [15] Where an argument was not raised at first instance and then sought to be agitated on appeal, the general rule is that the new argument cannot be raised on appeal. The Court of Appeal recently considered the authorities on the point in Nine Network Australia Pty Ltd & Ors v Wagner & Ors:13 [72] The respondents relied upon a passage from University of Wollongong v Metwally (No 2), that it is contrary to principle for a party to raise a new argument that they failed to put during the hearing when they had an opportunity to do so. [73] That statement is important. And there are others to like effect. Argument as to the application of the relevant principles in this country often begins with Suttor v Gundowda Pty Ltd, where the High Court held that a point not taken below on which evidence could have been given that “by any possibility” could have prevented the point from succeeding cannot be raised on appeal, and also often refers to Coulton v Holcombe, where the High Court referred to Metwally (No 2), in reaffirming the Suttor principle. [74] However, similar statements in other cases show that, in the context of an appeal, the principle is not absolute where no further factual or evidentiary issue is raised. Then, it is a matter of discretion whether to permit the argument not raised below to be advanced on appeal. [16] In accordance with the directions of the Appeal Tribunal, the parties were given an opportunity to make further submissions on PID issue and the matter was listed for an oral hearing. There was no specific objection to the Appeal Tribunal considering the PID issue by the Deputy Commissioner. Even so, had there been I consider that as the primary proceeding was a review of the decision of the Deputy Commissioner on the evidence before him it fell within the discretion referred to in Wagner at [74]. At this point the Deputy Commissioner could have reconsidered his position but chose to press on and resist the appeal on the grounds the PID Act had no application. [17] The Deputy Commissioner acknowledges maladministration and accepts that Mr Acreman, and any other police officers should not have been able to access the documents located on the L:Drive. Mr Acreman brought that to the attention of a superior to address the problem. This, in the circumstances, should have alerted the QPS that Mr Acreman was exercising his rights as a whistle-blower and afforded him the protection of the PID Act. Once that conclusion is reached, his defence of the charge brought against him by way of review, and on appeal, was entirely reasonable. It was also reasonable for him to engage lawyers to assist with this complicated case even though the PID issue was not directly addressed in hearing below. 12 Ibid [136] – [141]. 13 [2020] QCA 221 (footnotes omitted). -- 5 of 8 -- 6 [18] It is in these circumstances and having regard to s 102(1) of the QCAT Act that the interests of justice would ‘require’ that the Deputy Commissioner should bear at least some of of Mr Acreman’s costs. However, to be fair and bear in mind the mandate of s 100 of the QCAT Act, and that Mr Acreman was unsuccessful in the appeal on Matter 1, not all of the costs claimed will be allowed. [19] Mr Acreman says he has been disadvantaged because of the withholding of evidence and being denied the right to attend the disciplinary hearing. Dealing with the last point first, I accept the Deputy Commissioner’s submission that there is no “right’ to attend a disciplinary hearing conferred under s 7.26 of the Police Service Administration Act 1990 (Qld), only that the subject officer may give a written submission and other materials to the prescribed officer investigating the subject officer. In the absence of any direct probation, this prescription does not mean that the subject officer cannot appear before the prescribed officer on a disciplinary hearing by agreement. That did not occur here but because of the fulsome and forthright evidence given by Mr Acreman to those officers that interviewed him, it is difficult to see that he was at any particular disadvantage by not personally attending the disciplinary hearing. [20] Similar considerations apply with respect to the new evidence of statements found when Mr Acreman accessed the L:drive. By the time of the disciplinary hearing he, and the Deputy Commissioner, were fully informed of the background to the investigation. The ultimate decisions were made on all of the evidence. I see no specific disadvantage which would warrant a departure from s 100 of the QCAT Act. [21] Mr Acreman claims he was further disadvantaged because of the Deputy Commissioner’s failure to comply with the Tribunal’s directions or 3 May 2018. This failure resulted in directions hearing on 23 August 2018 where the Deputy Commissioner legal representative readily admitted to the failure to comply with the directions. Mr Acreman submits that this failure was costly to him because he attended the hearing with his legal counsel. He applied for costs but they were reserved to the Tribunal to consider the matter at the conclusion of the hearing. There was no such consideration perhaps because the Deputy Commissioner’s decision was upheld. Also, there was no application for the reserved costs at the conclusion of the hearing by Mr Acreman’s legal advisors. [22] These costs do not relate to the appeal. As such it is unlike the situation in the courts under the Uniform Civil Procedure Rules where costs follow the event. Under those Rules Mr Acreman may well be entitled to any reserved costs not dealt with, but it was incumbent on him to apply for those reserved costs at the conclusion of the primary proceeding. Even so, although the proceeding was delayed because of the non- compliance, Mr Acreman was not put to any disadvantage in the preparation of his case. I see no basis to exercise the discretion because of the failure to comply with the directions. [23] Mr Acreman did incur costs for the self-funded ethics course as directed by the Tribunal. He submits that given the decision in the appeal he should be reimbursed those costs as they were unnecessarily incurred. The Deputy Commissioner submits that the self- funded course was not a sanction imposed by the QPS. Further, he could have completed a “in-house” course to satisfy this part of the sanction. Therefore, it should not be liable for any refund. Given that Mr Acreman chose to undertake this external course, and no doubt received some benefit from it, there is no justification for ordering the QPS pay for this course. -- 6 of 8 -- 7 What costs should be awarded [24] Mr Acreman’s total costs for the proceeding before the Tribunal amount to $32,519.60. Particulars of those costs are as follows: (a) Filing Fee – Review Application $ 326.00 (b) Legal Costs – Review $29,100.00 (c) Filing Fee – Substantiation $ 676.00 (d) Filing Fee – Sanction $ 676.00 (e) Filing Fee – Appeal on Sanction $ 676.00 (f) Cost of External Course $ 1,740.00 [25] As the Deputy Commissioner submits the legal costs claimed were for the review of both Matters 2 and 3. Mr Acreman was wholly unsuccessful in seeking to set aside the decision in Matters 2 and 3 at first instance and Matter 2 on appeal. Therefore it would not be in the interests of justice to burden the QPS with the total legal costs incurred, despite Mr Acreman’s submission that he would not have pursued a review of Matter 2 if Matter 3 had not been included in the disciplinary proceeding. Even so, Mr Acreman had a choice of whether to review Matter 2 both before the Tribunal and again in the Appeal Tribunal. For his own reasons he did so and must bear the costs consequences of that decision. [26] The other feature of the legal costs set out in the Trust Account statement from Gilshenan & Luton is that there is no itemisation of the account. It refers to ‘fees and outlays’ but no detail of outlays such as counsel’s fees, which is customary. Also, there is no assessment of costs as such on a standard costs basis, which is the usual impost when costs are awarded. What Mr Acreman appears to be asking for is his full indemnity costs to be paid in circumstances when he was only partially successful. [27] As already indicated I have concluded that Mr Acreman is entitled to reimbursement of some of his legal costs. Irrespective of the fact he was not successful in his review of Matter 2 he still had to file the review applications which included Matter 3. I therefore propose to allow the filing fees claimed in the sum of $2,354.00. I do not propose to allow reimbursement of the Griffith external course. [28] As for legal costs, there are no particulars of the breakdown of costs incurred with respect to the review applications. It is also relevant that Mr Acreman was self-represented in the appeal and therefore would not be entitled to any costs as a self-represented litigant other than his outlays. Therefore the legal costs relate only to the primary review application. [29] The Deputy Commissioner submits that if a costs order is to be made it should be on the basis that Mr Acreman was only partially successful in the appeal in setting aside the substantiation of Matter 3. The Deputy Commissioner also submits that cost should be fixed as required by s 107 of the QCAT Act. -- 7 of 8 -- 8 [30] As the total legal costs claimed seem to be on an indemnity basis rather than a standard costs basis, I propose to discount the total legal costs claimed to $26,000 to take this into account. There is no apparent basis to award indemnity costs in the circumstances of this appeal or the primary hearing. As Mr Acreman was only partially successful on appeal, I propose to fix his legal costs at $13,000.00. In addition to this I will add the filing fees of $2,354.00 which takes the total costs and outlays to $15,354.00. [31] In total, the order of the Appeal Tribunal will be that the Deputy Commissioner pay Mr Acreman the sum of $15,354.00 in cost by 30 November 2022. -- 8 of 8 --