Braunberger v Assistant Commissioner Les Hopkins [2014] QCATA 320

CITATION: Braunberger v Assistant Commissioner Les Hopkins [2014] QCATA 320 PARTIES: Liam Braunberger (Applicant/Appellant) v Assistant Commissioner Les Hopkins (Respondent) APPLICATION NUMBER: APL104-14 MATTER TYPE: Appeals HEARING DATE: On the papers HEARD AT: Brisbane DECISION OF: Hon J B Thomas AM QC, Judicial Member DELIVERED ON: 3 October 2014 DELIVERED AT: Brisbane ORDERS MADE: 1. Leave to appeal is granted. 2. The decision of 28 January 2014 is set aside. 3. In its place it is ordered that the application for extension of time to file the application to review the respondent’s decision is granted, and time is extended to 27 February 2014. CATCHWORDS: PRACTICE AND PROCEDURE – EXTENSION OF TIME – principles on which granted – whether relevant “prejudice” by reason of delay – whether extension should be allowed APPEALS – LEAVE TO APPEAL – INTERLOCUTORY DECISION – whether leave should be granted – principles on appeal against the exercise of discretion DISCIPLINARY PROCEEDINGS – POLICE – PARITY PRINCIPLE – LEVELS OF SANCTION Crime and Corruption Act 2001 (Qld), s 219G Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 61, s 142 -- 1 of 15 -- 2 Brisbane South Regional Health Authority v Taylor (1996) 139 ALR 1 Crime and Misconduct Commission v Chapman and Anor [2011] QCAT 229 Garth v Queensland Police Service (Unreported, QCATA, C Brabazon QC, Judicial Member and K O ’Callaghan, Senior Member, 2 21 June 2013) Gronow v Gronow (1979) (144) CLR 513 House v The King (1936) 55 CLR 499 Lowe v R [1994] 154 CLR 606 610; Mitchamy Developments Pty Ltd v Morrison [2010] QCATA 51 Murray v Deputy Commissioner Stewart [2011] QCAT 583 Norbis v Norbis 1986 161 CLR 513 O’Brien v Gollschewski [2014] QCATA 148 R v Boggs [2014] QCA 31 R v William [2001] VSCA 130 Staples v Deputy Commissioner Stewart [2011] QCAT 582 APPEARANCES and REPRESENTATION (if any): APPLICANT: Mr M Black of counsel, instructed by Gilshenan and Luton Solicitors RESPONDENT: Mr S McLeod, instructed by Queensland Police Service Solicitors office. REASONS FOR DECISION Jurisdiction and principles [1] On 28 January 2014 a QCAT Tribunal Member rejected an application by a police officer to extend time for commencing a review of a disciplinary decision. [2] This is the police officer’s application for leave to appeal against that rejection. Leave to appeal is necessary as this is an appeal against an interlocutory decision (s 142(3)(a)(ii) of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) (“the QCAT Act”)). [3] The original decision in the disciplinary proceeding was made on 20 October 2010. It was conducted by means of an “administrative consensual disciplinary process” in which the police officer accepted both the allegations made against him and the “nominated sanction” of reduction in paypoint from 1.3 to 1.1, with no advancement to 1.2 for 12 months from the imposition of the sanction”. -- 2 of 15 -- 3 [4] The time allowed for filing a notice seeking a review in QCAT of that decision was 14 days.1 [5] A review was not sought in QCAT until 31 October 2013. The delay in seeking review was therefore substantial, amounting to almost 3 years. [6] QCAT however has jurisdiction under s 61 of the QCAT Act to extend the time for commencement of review of such a decision. [7] The power to extend time under s 61 is very broad. The only relevant statutory requirement regulating its exercise is s 61(3) which states: The Tribunal cannot extend or shorten the time limit or waive compliance with another procedural requirement if to do so would cause prejudice or detriment, not able to be remedied by an appropriate order for costs or damages, to a party or potential party to a proceeding. [8] It is desirable that, subject to necessary obedience to s 61(3), the power be exercised so far as possible in accordance with principles developed by the Courts in like situations. [9] The following factors, in combination, have been found to be relevant in the exercise of the discretion to extend time for the commencement of a proceeding or the bringing of an appeal – (a) Whether a satisfactory explanation (or “good reason”) is show to account for the delay (b) The strength of the case the applicant wishes to bring (assuming it is possible for some view on this to be formed upon the preliminary material) (c) Prejudice to adverse parties (d) Length of the delay, noting that a short delay is usually easier to excuse than a lengthy one (e) Overall, whether it is in the interests of justice to grant the extension. [10] As indicated in Crime and Misconduct Commission v Chapman and Anor2 the above statement does not purport to be exclusive or comprehensive. It is simply a list of factors that are usually found to be the most important. [11] The principles are not in doubt in the present application; the question is whether error occurred in their application by the learned Member. Proceedings to Date 1 Crime and Corruption Act 2001(Qld) s 219G. 2 [2011] QCAT 229. -- 3 of 15 -- 4 [12] Constable Braunberger is one of at least five police officers against whom proceedings were brought for misconduct during and following an incident in Fortitude Valley on 12 September 2010. [13] The five police officers whose conduct is here relevant were: (a) Constable Braunberger (the present applicant) (b) Senior Sergeant Byles (c) Senior Constable Swenson (d) Constable Garth (e) First year Constable Perks [14] The basis of the present review is an alleged lack of parity in the disciplinary sanctions imposed upon the officers one of the four officers, and a legitimate sense of grievance that is said to have arisen following the eventual determination of the case of Constable Garth3 whose sanction was very considerably reduced after protracted litigation. [15] Braunberger, Byles and Swenson, each of whom was subjected to a severe financial penalty, all now seek similar extensions of time for a review of the severity of their sanctions. The applications are based on substantially similar reasons and events. [16] First Year Constable Perks, whose sanction was merely a fine of $200, has not sought any review. Facts and Circumstances [17] The relevant incident giving rise to all proceedings occurred in the early hours of 12 September 2010. Constable Garth, Constable Braunberger and First Year Constable Perks were patrolling the valley precinct. Garth was the senior officer of the three. In a dance area, an attractive woman who was dancing with a female companion observed the police, stopped dancing, and told Garth that she recently had “a boob job”. She asked if he wanted to see, and he assented. The girl, her female friend and three officers went out into Constance Street where she twice pulled her dress down to her waist. Garth pretended to handcuff her and the other Constables used mobile phones to take photographs, as did the girlfriend. The event was jocular, and Garth and Braunberger allowed her to wear Braunberger’s police baseball cap. [18] Two people walked past. It is possible, but not certain, that they saw what happened. 3 Garth v Queensland Police Service APL329-12 and APL352-12, 13 March 2013, (Judgment of Appeal Tribunal, Mr C Brabazon QC and Ms O'Callaghan). -- 4 of 15 -- 5 [19] Sergeant Byles, the senior officer for the team in that area, discovered what had happened a short time later and told Garth to delete the photographs from his phone. Byles was present in a police vehicle when Garth was still showing the photos to other officers. Byles did not take further action or report the incident. [20] First year Constable Perks later showed his photographs to his superior officer (Constable Swenson) at Indooroopilly police station. Swenson took no further action and made no report about Perks' conduct. [21] Of the five persons charged, three were participants in the inappropriate behaviour, and two were disciplined for failing to report and take other action when informed of it. [22] The individual acts of each of best described from the “summary of facts” portion of the disciplinary notices that they in due course accepted. [23] In Constable Braunberger’s case – You took a number of photographs of a semi naked unknown female outside the Fringe Bar, Fortitude Valley, on Constable Garth’s mobile phone at his request.... you allowed the semi naked female to wear your official police baseball cap while the photographs of her were being taken, whilst she was standing next to a police officer in uniform.... you permitted a first year Constable to be present when the photographs of the semi naked female had been taken and did not prevent the first year Constable taking photographs of the semi naked female with his mobile phone.... you admitted to showing the photograph on a mobile phone of the semi naked female to a number of police officers at the Indooroopilly police station. [24] In Senior Sergeant Byles’ case – You were the senior officer of a team of police present in the vicinity of the Fringe Bar, Fortitude Valley, when a number of police officers took photographs of a semi naked unknown female during which time you were situationally unaware of what was happening. When you were made aware of the actions of police under your supervision and viewed the photographs taken, your only action was to ask Constable Garth to delete the photographs off his mobile telephone. Further you were present when Constable Garth showed the photographs taken on his mobile telephone to other police officers travelling in a police vehicle. At no time did you .... report the misconduct of your fellow police officers. [25] In Senior Constable Swenson’s case – You were the shift supervisor and senior officer at the Indooroopilly police station when first year Constable Perks showed other police officers a photograph of a semi naked unknown female... you admitted viewing the photographs of the semi naked female and being made aware of the circumstances under which the photographs were obtained. At that time you told Constable Perks to ensure the photograph does not get sent to anyone else, does not end up on Facebook and to delete the photograph. You further admitted that on your next shift at the Indooroopilly police station you became aware that first year Constable Perks was showing -- 5 of 15 -- 6 other police officers the photo of the semi naked unknown female. At no time did you... report the misconduct of your fellow police officers. [26] In Constable Garth’s case, the facts are summarised in the reasons for judgment delivered by Mr C Brabazon QC and Ms K O’Callaghan in Garth's case, especially paras [2]–[9]. Garth appears to have been the senior officer and leading participant in the events which have been described. Later at the police station he said to others “I’ve just had the best night ever” before showing them the photos. [27] All three applicants (Braunberger, Byles and Swenson) submitted to the Administrative Consensual Disciplinary Process ("ACDP"). [28] The ACDP is a process by which disciplinary charges may be determined "on the papers." It is described in S 18 of the Discipline and Complaint Management section of the Human Resources Management Manual and has the status of a Direction issued by the Commissioner for Police under the Police Services Administration Act 1990 (Qld)(s 4.9(1) which prescribes the manner of conduct of discipline investigations and hearings against members of the Queensland Police Service. [29] All three applicants ticked the box applicable to “I accept the allegations”. Braunberger also ticked a box “I accept the nominated sanction and make no submission”. Byles and Swenson both submitted mitigating circumstances regarding the nominated sanction, but it was imposed unchanged. [30] The sanctions imposed were as follows: Braunberger – reduction in pay point from 1.3 to 1.1, with no advancement to 1.2 for 12 months from the imposition of the sanction. Byles – reduction from Sergeant 3.5 to Sergeant 3.1 with no advancement to 3.2 for 12 months from the imposition of the sanction. Swenson – reduction in paypoint from 2.6 to 2.4, with no advancement to 2.5 for 12 months from the imposition of the sanction. [31] In Perks' case a fine was imposed of $200. [32] The disciplinary proceedings against Constable Garth followed a far more tortuous route. [33] He was initially interviewed a few days after the incident, but no action was taken for 9 months.4 He was offered an ACDP but declined. Eventually he was dealt with by standard disciplinary proceedings in July 2011. He was found guilty of misconduct and his rank was reduced from Constable paypoint 1.5 to Constable paypoint 1.2 and his advancement to paypoint 1.3 was deferred for 12 months. 4 Further details are contained in the Reasons for Judgment in Garth's case per Brabazon QC in paragraphs [9] – [17]. -- 6 of 15 -- 7 [34] He then sought a review in QCAT. It is unnecessary to describe the complications which ensued over whether he had been guilty of a mere “breach of discipline” or “misconduct” and the separate issue of level of the sanction. The initial decision on review reduced the sanction. On appeal, both members of the QCAT Appeal Tribunal indicated that the reduced sanction was still too high. The members of that Tribunal were however at variance on the final level of sanction, Mr Brabazon QC indicating that a loss of salary set at $6000 would be "appropriate"5, and Ms O'Callaghan, indicating that "a reduction of one pay point for 12 months effective from 6 July 2011 would achieve the outcome I consider appropriate".6 [35] This gave the parties the opportunity of framing an order within the limits of the views there expressed. [36] In the event, no final decision was made concerning if the sanction until a consent order was finally made on 7 August 2013. [37] The consent order was in the following terms: (a) Mr Garth’s advancement from Constable pay level 1.5 to Senior Constable pay level 2.1. Is to be deferred from 14 August 2011 until 14 August 2012; (b) Any further paypoint progression is to be administered in accordance with Queensland Police Service police and procedures. [38] It was agreed that Garth would be treated as having returned to pay level Constable 1.5 as at July 2011 and entitled to all back pay following such adjustment . Broadly speaking the eventual sanction was a delay of 12 months in Constable Garth’s progression to his next level. Its financial impact was considerably less onerous than the original sanction. [39] The eventual consent order in Garth's case was based on a considerably more lenient view of the conduct in question than had hither to been taken by the police authorities. During the proceedings the Police Department understandably sought to rely on the high penalties that had been imposed on the other police officers (except Perks) as justifying an even higher sanction for Constable Garth. However the Appeals Tribunal took the view that those sanctions were out of step with any reasonable disciplinary response, and preferred a series of decisions in QCAT Tribunals, including Staples v Deputy Commissioner Stewart7 and Murray v Deputy Commissioner Stewart8 as more helpful in indicating an appropriate level of sanction. [40] Significantly the Appeal Tribunal observed: 5 At [30] of Garth's case. 6 Ibid at [113]. 7 [2011] QCAT 582. 8 [2011] QCAT 583. -- 7 of 15 -- 8 It might be noted that the sanctions imposed on the other officers connected with Constable Garth’s conduct, are more severe. It is inappropriate here for the QPS to seek a penalty in line with those decisions. Some of them are surprisingly harsh. They were penalties that seem to have been intended to impose punishment, rather than reinforce the need for discipline.9 Discussion [41] In determining whether leave to appeal should be granted, and if so, whether the appeal should be allowed, it will be convenient to address the same questions as those posed by the learned Member namely: (a) The length of the delay (b) Whether the explanation for the delay was satisfactory (c) Strength of the case the applicant seeks to bring (d) Prejudice to the respondent (e) Interests of justice overall. Length of the delay [42] Nearly 3 years elapsed before seeking a review. The time allowed by the Crime and Corruption Act is 14 days. The delay is therefore a substantial one. Whether the explanation for the delay was satisfactory [43] The main explanation offered is that the applicant was awaiting the determination of Constable Garth’s case, he being the only officer who tested his rights by full legal process. His level of sanction was not able to be known until 7 August 2013. [44] The respondent contends that the applicant was dilatory even after that date, as the applicant did not file a review application until 31 October 2013, approximately 12 weeks later. That delay is however explained by the fact that the applicant’s solicitors forwarded submissions to the QPS on 10 September 2013 requesting a reopening of the disciplinary process, and the reimposition of a sanction in the light of the decision in Garth’s case. They were not advised until 11 October 2013 that the disciplinary matter would not be reopened. They then prepared their application and filed it on 31 October 2013. [45] Although that particular conduct was somewhat casual, it was not unreasonable overall, and it did not add substantially to the overall delay. Standing alone, I do not think that the applicant’s conduct during that 9 Garth v Queensland Police Service above para 29. -- 8 of 15 -- 9 period should be regarded as conduct that is not satisfactorily explained, or as weighing heavily against the applicant. [46] Of more concern is the question whether “waiting for a decision in Garth’s case” is a reasonable explanation for holding back. The applicant did not file any affidavit or provide any primary material to support this explanation, which appears merely by way of submission attached to the extension of time application. The explanation is dubious in light of the fact that no arrangement or notification appears to have been made between the solicitors that Garth’s case would be regarded as a “test case”. I do not doubt that he was or was interested in what would happen to Constable Garth, but there is no objective evidence supporting any intention at that time to seek a review, or of deliberate postponement for the stated reason. [47] On the explanation offered, it seems that the applicant consented to the sanction in the belief that at the end of 12 months he would be entitled to return to the position he would have held but for the sanction. That turned out not to be the case, and of course it did not become apparent to him until 12 months had expired. From then on, it is credible that he awaited with interest the result of the Garth proceedings, and that upon eventually learning their result, felt aggrieved by the considerable disparity in the results. [48] Overall, so far as explanation for the delay is concerned, the applicant is in a weak position. It is poorly explained and the main excuse is not convincing. The Strength of the Case the Applicant Seeks to Bring [49] Leaving aside for the moment any question of excessiveness, the original sanctions imposed by the various Police Decision-makers on Braunberger, Byles, Swenson, Garth & Perks were overall consistent. The very light treatment of Perks can be understood as leniency to a trainee substantially under the guidance and control of Garth and Braunberger. [50] Leaving Perks aside, the active participants were Garth and Braunberger while Byles and Swenson were disciplined for subsequent inaction concerning the misconduct of others, including failure to report it. Although Byles’ and Swenson’s conduct was subsequent to that of the principal offenders, and involves some different considerations, it is sufficiently related to it to engender an expectation of some proportionality in the sanctions when compared with those of the principal offenders. I do not under-rate the disciplinary duties of senior police officers, but their acts, which may be seen as involving a form of inappropriate condonation after the fact of the primary offenders’ actions, at first glance would seem unlikely to justify more serious sanctions than those received by the principal offenders. Those issues may of course be further pursued if the appeal succeeds and the review proceeds [51] When the incident is looked at as a whole and his seniority at relevant times is taken into account, the most culpable offender was Garth. -- 9 of 15 -- 10 [52] He was initially deprived of pay benefits that amount to a present value loss of at least $25,000.00 over 5 years, and more likely around $30,000- $35,000. 10 After his successful appeal, the effect of the 12 months “freeze” was a loss that may be inferred to be around $6,000.00. [53] The effect of the present sanction imposed against Braunberger has been estimated to be in excess of $25,000.00. [54] There is therefore presently a considerable disparity in the manner in which Garth and Braunberger have been treated. [55] It was submitted on Braunberger’s behalf that the learned Member failed to properly consider the case advanced in respect of the “parity” principle, and that she erred in failing to be satisfied that constable Garth's conduct was "directly relevant" to Braunberger's conduct.11 [56] However the question whether Garth’s conduct is directly relevant to Braunberger’s conduct depends on the purpose of the comparison. Of course there are distinctions between what each man did, but for the purposes of the parity principle both of them were participants in the same incident, and what they respectively did is very directly relevant to the necessary comparison that needs to be made. [57] In dealing with the “merits" of the present application12 the learned Member in the end accepted that there was a disparity in the two sanctions. [58] The remark that she was not satisfied that Garth's conduct was directly relevant to Braunberger's conduct was made in the course of considering whether the explanation for delay was satisfactory. As it was not made in the context of consideration of the parity issue I am not prepared to say that it reveals any material error. [59] What is clear however is that there is now a very obvious disparity between the sanctions imposed against co-offenders. In simple terms Braunberger’s sanction is now more than four times more severe than that of his more serious co-offender. [60] Further, when one stands back and looks at a sanction of $25,000.00 or more upon Braunberger for the conduct in question, it is not objectively supportable. I agree entirely with the observations of Mr Brabazon QC at [29] of the reasons for judgment in Garth's case which had been cited at [40] of these reasons. That sanction bespeaks punishment rather than discipline. [61] In short, the obvious disparity between sanctions on co-offenders is the key feature of the present case. 10 Garth v Queensland Police Service above paras [22], [23], [30], [106]. 11 Member's Reasons for Judgment [13(a)]. 12 Ibid [13]-[23]. -- 10 of 15 -- 11 [62] In the criminal law special consideration has been given to the need for parity between co-offenders.13 As between co-offenders, the sanction imposed on one becomes an important part of the circumstances relevant to imposing a sanction on the other.14 [63] It has been acknowledged that there is a valid analogy between the concern of the criminal law in these respects and that which should be observed by Tribunals in the disciplinary process.15 The need for comparability and proportionality has also been recognised in cases in this jurisdiction.16 [64] Financial disadvantage is not as pressing a factor as loss of liberty, but the present sanctions are so out of balance when levels of seriousness are considered that they cry out for correction. [65] On this point then, the merits of any appeal that the applicant is permitted to bring must be rated as very strong, and as a dominant consideration. Prejudice to the respondent [66] The learned Member rejected the applicant’s contention that it is unlikely that the respondent would suffer any direct prejudice as a result of the late filing of the application. She considered that allowing the appeal to proceed would “[deny] the respondent the opportunity to effectively manage its disciplinary processes”17, and“... the respondent is denied the opportunity to proceed to finalisation of disciplinary matters particularly in the ACDP process which effectively expedites the process, when there is a possibility of a review being pursued in some indefinite time period”. [67] How the ACDP process would be impaired, or how the respondent would be denied the opportunity to proceed to finalisation of disciplinary matters is difficult to fathom. The respondent's submissions suggested that the notion is based on the respondent's submissions to the member that "if an extension of time were granted, it would effectively enable police officers 'to change their minds' about the decision to accept a sanction and await the outcome of another officer's proceedings (whether successful or not) before the tribunal". That however does not explain how the respondent's management of its disciplinary process would be thereby denied. The unexpressed premise in the respondent's argument seems to be that a bad precedent would be set which would open the floodgates. [68] I cannot accept this. The grant of an extension of time in an individual case may of course set a precedent which might threaten the system in relation to cases that are on all fours with it. But I cannot accept that an extension of time which permits a review on the merits following the 13 Lowe v R [1994] 154 CLR 606 610; R v Boggs [2014] QCA 31 para 21. 14 R v William [2001] VSCA 130 para 13. 15 Murray v Deputy Commissioner Stewart [2011] QCAT 583. 16 Murray v Deputy Commission Stewart [2011] QCAT 583; O’Brien v Assistant Commissioner Gollschewski [2014] QCATA 148. 17 Above at [25]. -- 11 of 15 -- 12 unusual sequence of events which exposed the present disparity can be regarded as a relevant prejudice or detriment to the system. [69] In my view this is not prejudice or detriment of the kind that should influence a decision of this kind. Nor do I accept that an extension of time for review of a particular case has any general effect capable of being regarded as prejudicial to the maintenance of the ACDP process and system. [70] So far as the individual case is concerned, the departmental annoyance and administrative inconvenience involved in undoing a particular result and readjusting the penalty if the appeal succeeds, is understandable, but does not constitute the kind of prejudice or detriment with which the cases in this area are concerned. [71] The prejudice identified by the Tribunal was not a relevant form of prejudice weighing against the grant of an extension of time. [72] The type of prejudice with which courts have been principally concerned in a wide range of cases concerning extensions of time, whether under Rules of Court or under Statutes of Limitation, is that which impairs the ability of a respondent to engage in a fair contest, or in which, by reason of the delay, a respondent will be prejudiced or will suffer detriment which cannot now fairly be countered. The overriding consideration is "can there be a fair trial?" [73] The applicant's solicitors' submissions referred to the following passage in Brisbane South Regional Health Authority v Taylor18 - The real question is whether the delay has made the chances of a fair trial unlikely. If it has not there is no reason my the discretion should not be exercised in favour of the respondent. [74] That statement (of Toohey and Gummow JJ) was made in the context of rejecting an argument that there needed to be a weighing of prejudice as between the applicant and the respondent in that case. It was focused on the circumstances of that particular case which concerned whether the three year limitation in a personal injuries action ought to be extended under the statutory exception. [75] Even so, the judgments in that case make a broad examination of the nature of limitation provisions in general and the way in which statutory exceptions ought to be viewed, and the central importance of the existence (or absence) of prejudice to the respondent is emphasised in all the judgments. [76] In particular, McHugh observed that "the final rationale for limitation periods is that the public interest requires that disputes be settled as quickly as possible",19 that extension provisions are the exception to it, 18 (1996) 139 ALR 1, 5. 19 Ibid p 9. -- 12 of 15 -- 13 and that they are a legislative recognition "that general conceptions of what justice requires a particular categories of cases may sometimes be overridden by the facts of an individual case".20. He further observed "When actual prejudice of a significant kind is shown, it is hard to conclude that the legislature intended that the extension provision should trump the limitation period". With respect to that particular case he considered that "once the learned judge had made a finding of actual prejudice, his decision to dismiss the application was inevitable”. [77] Taylor was a case in which the delay adversely affected the capacity of a material witness to give evidence. In the present case prima facie the review would be on the material that was before the decision-maker, and the only material issue is the level of the sanction. In fairness to the respondent's counsel, he at no stage suggested that a "fair trial "could not be had. The relevance of the present discussion is that the absence of prejudice is a very important matter in these cases. [78] In my view the learned Member erred in finding that there would be prejudice to the respondent if the extension were allowed. The points raised by the respondent are not "prejudice" or "detriment" of the kind referred to in s 61(3) of the QCAT Act. Interests of Justice - Overall Assessment [79] Analysis of the relevant factors, summarised below, presents something of a mixed bag. [80] The delay was long (about 3 years). [81] The explanation for the delay was weak. [82] The merits of the case to be brought were very strong. They involved perceptions concerning the administration of justice about which Courts and Tribunals are very much concerned. In this case they involve a legitimate perception of grievance, and it is a dominant factor in the present matter. [83] There is no real prejudice to the respondent from permitting the ventilation of the matter at this time. [84] Where an injustice has occurred, and it can be corrected without any relevant prejudice to the adverse party, one would normally be inclined to allow it to be corrected out of time, unless of course other factors make it undesirable to do so. [85] The appellant police officer consented to the sanction at the time, and that is a factor which may well operate heavily against later overturning it. But it is not necessarily decisive. In the present matter the recognition of what may be regarded as a proportionate response to irresponsible behaviour by police officers as distinct from dishonest, criminal or other areas of 20 Ibid p 10. -- 13 of 15 -- 14 serious misconduct was slow to evolve, and did not become clear until some time after Braunberger, Byles and Swenson were dealt with.21 [86] In the present matter I do not think that the appellant’s original acquiescence with the procedure should stand in the way of later correction. Conclusions [87] Leave to appeal is necessary as the decision was interlocutory. The principles upon which such leave is granted are helpfully stated in Mitchamy Developments Pty Ltd v Morrison22 and need not be here restated. [88] The appeal, if leave is granted, is from a decision involving the exercise of a discretion. The original decision should be overturned only if the Appeal Tribunal reaches a clear conclusion that there has been some error of fact or law, or that the discretion has not been properly exercised.23The principles guiding such appeals have been variously stated, but it suffices to say for present purposes that it is usually necessary to show that the primary Tribunal acted on a wrong principle, or was guided by extraneous or irrelevant matters, or has mistaken the facts, or has failed to take into account some material consideration, or that some error is to be inferred because the result is plainly unjust or unreasonable.24 [89] The error of the learned Member mentioned above on the question of prejudice has been made out, and is sufficient to require a grant of leave to appeal, and the setting aside of the original decision. I also consider that error is apparent through failure to recognise the full strength of the disparity point and the excessive weight which seems to have been given to the "considerable delay" and the "absence of a satisfactory explanation for the delay".25 [90] In short, in the circumstances of the present case, the importance of correcting a clear legitimate grievance when there is no relevant prejudice to the respondent must outweigh the delay and the weak explanation for it. Orders [91] It will be ordered that: (a) Leave to appeal is granted; (b) The decision of 28 January 2014 is set aside; and 21 Murray v Deputy Commissioner Stewart [2011] QCAT 583; Staples v Deputy Commissioner Stewart [2011] QCAT 582; Garth v Queensland Police Service APL329- 12 and APL352-12, 13 March 2013; compare O’Brien v Gollschewski [2014] QCATA 148. 22 [2010] QCATA 51 at [19]. 23 Norbis v Norbis 1986 161 CLR 513, 518, 520. 24 House v The King (1936) 55 CLR 499; Gronow v Gronow (1979) (144) CLR 513, 534. 25 Member's Reasons [22]. -- 14 of 15 -- 15 (c) In its place it is ordered that the application for extension of time to file the application to review the respondent’s decision is granted, and time is extended to 27 February 2014. -- 15 of 15 --