Bowley v Deputy Commissioner Martin [2018] QCAT 111

CITATION: Bowley v Deputy Commissioner Martin [2018] QCAT 111 PARTIES: Collin Robert Bowley (Applicant) v Deputy Commissioner Peter Martin (Respondent) APPLICATION NUMBER: OCR273-17 MATTER TYPE: Occupational regulation matters HEARING DATE: On the papers HEARD AT: Brisbane DECISION OF: Member Cranwell DELIVERED ON: 20 April 2018 DELIVERED AT: Brisbane ORDERS MADE: The application for a stay is refused. CATCHWORDS: POLICE – INTERNAL ADMINISTRATION – DISCIPLINE AND DISMISSAL FOR MISCONDUCT – QUEENSLAND – where applicant resigned as police officer – where Deputy Commissioner declared applicant would have been dismissed if he had remained employed – whether applicant may have an arguable case on review ADMINISTRATIVE LAW – ADMINISTRATIVE TRIBUNALS – QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL – whether balance of convenience favours a stay Police Service Administration Act 1990 (Qld), Part 7A Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 24 Aldrich v Boulton & Anor [2000] QCA 501 Deputy Commissioner Stewart v Kennedy [2011] QCATA 254 Erathnage v Medical Board of Australia [2016] QCAT 418 -- 1 of 6 -- 2 APPEARANCES: This matter was heard and determined on the papers pursuant to s 32 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) (QCAT Act). REASONS FOR DECISION [1] Mr Bowley resigned as a police officer effective from 30 June 2017. [2] On 7 November 2017, Deputy Commissioner Martin decided to take disciplinary action against Mr Bowley as a former officer under Part 7A of the Police Service Administration Act 1990 (Qld). The Deputy Commissioner declared that if Mr Bowley had remained employed with the Queensland Police Service, he would have been dismissed. [3] The Deputy Commissioner found that the following disciplinary ground was substantiated: Ground 1: That between 1 December 2016 and 13 January 2017 at Atherton your conduct was improper in that you: a) accessed Queensland Police Service computer records relating to motor vehicles and their owners without an official purpose; b) drove an unregistered motor vehicle; and c) inappropriately acquired a motor vehicle and a campervan. … Further and better particulars: Investigations have identified that: In relation to Ground one (a):  whilst on duty you conducted a number of computer checks on a white Hyundai Getz registration number 189SJW, Mr Patrick Powell (former owner), a campervan registration number AM6528 and Mr John Barrett (former owner);  on 2 December 2016, you conducted computer checks in relation to the White Hyundai Getz motor vehicle;  on 4 December 2016 you conducted computer checks in relation to Mr Patrick Powell (former owner of the White Hyundai Getz);  on 5 December 2016, you conducted computer checks in relation to the White Hyundai Getz motor vehicle; -- 2 of 6 -- 3  on 13 December 2016, you conducted computer checks in relation to a campervan registration number AM6528 and the former owner Mr John Barrett;  on 13 December 2016, you conducted computer checks in relation to the White Hyundai Getz motor vehicle; and  on 20 December 2016, you conducted computer checks in relation to the White Hyundai Getz motor vehicle. In relation to Ground one (b):  on or about 16 December 2016, 19 December 2016 and 3 January 2017 you drove a White Hyundai Getz motor vehicle on roads within Atherton, whilst the vehicle was not registered. In relation to Ground one (c):  on 9 November 2016 whilst on duty, you attended at 98 East Barron Road, Atherton in regards to a child protection matter and came into contact with Mr Bruce Weare and the White Hyundai Getz registration number 189SJW;  on 19 November 2016 whilst on duty you attended at 98 East Barron Road, Atherton in regards to a child protection matter you spoke to Mr Bruce Weare in relation to the White Hyundai Getz registration number 189SJW;  on an unknown date you attended at 98 East Barron Road, Atherton and took possession of the White Hyundai Getz registration number 189SJW;  on 6 November 2016 whilst on duty, you attended at 12 McPherson Road Tolga in regards to a sudden death and came into contact with Mr Peter Barrett and a campervan registration number AM6528; and  on 6 November 2016, whilst off duty, you attended at 98 East Barron Road, Atherton and took possession of the campervan registration number AM6528. [4] Mr Bowley wants the Tribunal to stay the Deputy Commissioner’s decision pending the outcome of his application for review of the decision. Power to grant a stay [5] The Tribunal’s power to grant a stay is contained in s 22(3) of the QCAT Act. Under s 22(4), the Tribunal can only grant a stay if it considers that the order is ‘desirable’ having regard to certain matters. Section 22(4) provides as follows: The tribunal may make an order under subsection (3) only if it considers the order is desirable after having regard to the following – -- 3 of 6 -- 4 (a) the interests of any person whose interests may be affected by the making of the order or the order not being made; (b) any submission made to the tribunal by the decision-maker for the reviewable decision; (c) the public interest. [6] In Erathnage v Medical Board of Australia,1 the Deputy President of the Tribunal stated: The words of the subsection give to the tribunal a broad discretion, taking into account those matters therein referred to. These are the matters to which any application for a stay should address. It may be that in addressing those matters, questions of the utility of any application and whether there is an arguable case must also be considered. They are matters which one would expect to be encompassed by the requirement that the tribunal consider the submissions made by the decision-maker for the reviewable decision and the public interest.2 [7] In Erathnage’s case, the Tribunal referred to Deputy Commissioner Stewart v Kennedy.3 In Kennedy’s case, the Appeal Tribunal said that the ordinary principles that apply to the granting of stays include the ‘fundamental questions’ of whether the applicant has an arguable case and whether the balance of convenience favours the granting of a stay.4 Arguable case [8] In his written submissions, Mr Bowley asserted that he did not knowingly engage in any unlawful activities in relation to the purchase of second-hand vehicles. He asserted that the checks performed by him whilst on duty were within the boundaries of his official duties. Mr Bowley admitted that he drove the White Hyundai Getz vehicle while it was unregistered, but stated that it was an honest and reasonable mistake. [9] Without making any conclusive findings on these issues, I note that sanction is a matter of discretion. For the purposes of the stay application, I accept that Mr Bowley may have an arguable case on review. Balance of convenience [10] Although Mr Bowley may have an arguable case on review, this is not in itself a sufficiently cogent reason to grant a stay. Kennedy’s case is authority for the proposition that of far greater significance is the public interest aspect of staying orders in police disciplinary proceedings:5 1 [2016] QCAT 418. 2 Ibid [23]. 3 [2011] QCATA 254. 4 Ibid [17]-[23]. 5 Ibid [29]. -- 4 of 6 -- 5 This is not ordinary civil litigation in which the contest is between two parties where a major consideration is whether it is reasonable to hold a successful party out from the benefit of a judgment. In Bryant v Commonwealth Bank of Australia [1996] HCA 3; (1996) 70 ALJR 306, 309 Kirby J observed that stays of the operation of decisions made under laws designed to protect the public “are in a class different from cases involving no more than the suspension of the operation of orders affecting to private litigants only”. The example given by His Honour was of the deregistration of a professional lawyer, but his observation was general in relation to the disciplinary process under laws designed to protect the public. [11] I consider that public confidence would be eroded if the disciplinary action taken against Mr Bowley, having regard to the grounds set out above, was stayed. This is because the protection of the public, the maintenance of public confidence in the Queensland Police Service and the maintenance of integrity in the performance of police duties are the primary purpose of police disciplinary proceedings.6 [12] As previously noted, Mr Bowley resigned from the Queensland Police Service before the sanction was imposed. In those circumstances, the granting of a stay would have no effect on his employment as a police officer. [13] Mr Bowley raised the following matters in his written submissions The Applicant would suffer severe disadvantage and detriment to future employment opportunities as well affecting with his ongoing service to the Australian Army Reserve should his employment record retain its current terminated for unlawful conduct classification. [14] An undated letter was provided from Corporal Benjamin Herbert. This letter indicates that Mr Bowley would be the subject of a defence force investigation, and would be subjected to a disciplinary process. Notwithstanding this letter, there is no evidence before me as to what stage any such investigation or disciplinary process are at, and what impact a stay (as opposed to the decision ultimately being set aside) might have on those investigations. Nor is there any evidence relating to any specific difficulties Mr Bowley has had in obtaining employment since his resignation as a police officer. [15] In these circumstances, the factors raised by Mr Bowley do not outweigh the public interest factors showing that he does not have a cogent reason for a stay. This means that the balance of convenience very strongly favours a refusal of the stay. 6 Aldrich v Boulton & Anor [2000] QCA 501, [42]. -- 5 of 6 -- 6 Conclusion [16] Mr Bowley has not shown sufficiently cogent reasons for staying the disciplinary declaration made by the Deputy Commissioner.7 The appropriate order is that the application for a stay is refused. 7 See Deputy Commissioner Stewart v Kennedy [2011] QCATA 254, [35]. -- 6 of 6 --