Deputy Commissioner Stewart v Kennedy [2011] QCATA 254

CITATION: Deputy Commissioner Stewart v Kennedy [2011] QCATA 254 PARTIES: Deputy Commissioner Ian Stewart (Applicant/Appellant) V Mr Brian George Kennedy (Respondent) APPLICATION NUMBER: APL135-11 MATTER TYPE: Appeals HEARING DATE: On the papers HEARD AT: Brisbane DECISION OF: Hon James Thomas AM QC, Member DELIVERED ON: 31 August 2011 DELIVERED AT: Brisbane ORDERS MADE: (a) Leave to appeal granted; (b) Appeal allowed; (c) The order granting the stay is set aside; (d) The application for stay is dismissed. CATCHWORDS: Police discipline – stay of order of dismissal – appeal against stay order – error of law on fundamental point – leave granted – need for applicant to show arguable ground for review – observations on balance of convenience in disciplinary matters Queensland Civil and Administrative Tribunal Act 2009, ss 22,143, 145, 152 APPEARANCES and REPRESENTATION (if any): This matter was heard and determined on the papers, pursuant to section 32 of the Queensland Civil and Administrative Tribunal Act 2009 (QCAT Act). REASONS FOR DECISION [1] This is an appeal against a stay granted by a Member of this Tribunal. -- 1 of 7 -- 2 [2] The stay was an interlocutory (non-final) order, and leave to appeal is necessary under section 142(3)(a)(ii) of the Queensland Civil and Administrative Tribunal Act 2009 (“the QCAT Act”). [3] By consent the present application for leave to appeal, and if leave is granted, the appeal, are to be determined on the papers. [4] The original proceedings involved the dismissal of a Police Officer, Senior Sergeant Kennedy, as the result of disciplinary charges against him. Following his dismissal he commenced proceedings for a review in this tribunal and also brought an application for a stay pending the hearing of the review. The stay application was heard by a Tribunal Member who on 31 March 2011 determined that a stay should be granted. The practical consequence of the order is the reinstatement of Senior Sergeant Kennedy until the final determination of the review. [5] The present appeal is against that order. [6] The application for leave to appeal raises an alleged error of law on a matter fundamental to the granting of a stay, and it is appropriate that leave be granted. It should not be thought that leave will always be granted in the respect of interlocutory appeals merely because a question of law is raised; it is granted here because the alleged error of law raises a question fundamental to the determination of applications for stay under section 22 of the QCAT Act, and it is desirable that certain misunderstandings be dispelled. [7] The appellant is the decision maker, Deputy Commissioner Stewart, who will be referred to as “the appellant”. The respondent is Senior Sergeant Kennedy, and he will be referred to as “the respondent Police Officer”. Legal background [8] There are three sections in the QCAT Act which confer jurisdiction to grant a stay of proceedings, namely s 22, s 145 and s 152. [9] Relevantly s 22 provides: … (3) The tribunal may, on application of a party or on its own initiative, make an order staying the operation of a reviewable decision if a proceeding for the review of the decision has started under this Act. (4) The tribunal may make an order under subsection (3) only if it considers the order is desirable after having regard to the following— (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. -- 2 of 7 -- 3 … [10] Section 145 is concerned with the situation when an appeal is brought against a tribunal decision. It simply provides that “the Tribunal may make an order staying the operation of the decision being appealed against until the appeal is finally decided”. [11] Similarly section 152 which deals with the question of the grant of stays by the Appeal Tribunal or by a Court of Appeal, confers jurisdiction in virtually the same broad terms. No special criteria are laid down as governing the exercise of the discretion, and clearly these sections anticipate that standard curial principles and procedures will apply. [12] This has been accepted in Tribunal decisions including Queensland Health v Information Commissioner and Crutcher [2011] QCATA 066, Sweeney v Magnay [2011] QCATA 104 and Carrie v Department of Communities (Housing and Homelessness Services) [2010] QCATA 15 (per the President, Wilson J). I respectfully agree with that approach, and indeed cannot see that any other approach could be open. [13] The relevant curial principles concerning the grant of stays are well recognised. [14] In Asia Pacific International Pty Ltd v Peel Valley Mushrooms Ltd (1999) 2 Qd R 458 it was considered necessary for an applicant who seeks a stay of an interlocutory judgment pending an appeal to show that there is a good arguable case on appeal; that the applicant will suffer a disadvantage if the stay is refused; and that the balance of advantage and disadvantage favours the grant of a stay. Similar tests were stated in Cook’s Construction Pty Ltd v Stork Food Systems Australasia Pty Ltd (2008) 2 Qd R 453 at 455. So too in Legal Services Commissioner v Baker [2005] QCA 482 at para [30] Chesterman JA (with whom McMurdo P and Helman J agreed) observed It goes without saying that the demonstration of an arguable appeal is a condition precedent to obtaining a stay. No court or Tribunal would consider staying the operation of an order where it is clear that there is no realistic prospect of a successful appeal. [15] It is therefore necessary before granting a stay application that there be a preliminary assessment of the strength of the appellant’s case (Cook’s Construction case) above, per Keane JA at para [13]). However it is not incumbent on the Court or Tribunal that hears the stay application to undertake a detailed assessment of the prospects of success. In many cases, especially complex ones, it will be impossible to do so; but it should always be possible at least to discern whether the applicant has an arguable case. [16] This is usually done by the applicant’s representative identifying a point or points that are said to demonstrate error, with submissions on such points, -- 3 of 7 -- 4 following which the Court or Tribunal can at least tell whether or not they are fairly arguable. This is not to say that points arising in bulky or complex matters are more likely to be fairly arguable than those in succinct ones. It has been observed that a hopeless appeal will be no less hopeless because it is pursued with quixotic enthusiasm (Kostopaulos v GE Commercial Finance Australia Pty Ltd 2005 QCA 311 at para [69]). [17] It may be helpful to restate briefly two fundamental questions that must be addressed in such cases: does the applicant have an arguable case? Does the balance of convenience favour granting the stay? [18] Factors that may influence determination of the balance of convenience and desirability of granting a stay are legion, and include consideration of whether refusal of a stay would render the appeal nugatory, the impact of a stay on both parties, the public interest and many other factors. Whether an “arguable case” needs to be shown in s 22 applications [19] In the present matter the basic question of “arguable case” was not addressed at all, by appellant, respondent or the tribunal member. It was determined solely upon consideration of the balance of convenience. [20] This seems to be a fundamental error. However it was submitted on behalf of the respondent Police Officer that a different test has been laid down for applications under s 22 than for ss 145 and 152, and that consideration of the question of “good arguable case” has been rendered unnecessary in s 22 matters. [21] That is a surprising submission. In s 22(3), as in sections 145 and 152, the power to grant a stay is given in general terms. The only additional relevant provision in s 22 is that there is a prohibition in subsection (4) against granting a stay under subsection (3) unless the order is “desirable” having regard to three stated factors. Those are factors which one would think would be considered in any event, but the effect of section 22(4) is simply to spell out three particular factors that the tribunal must consider before granting a stay. It does not exclude the basic relevant tests. [22] Reference was made, both here and before the member, to previous Tribunal decisions which addressed the meaning of “desirable” in section 22(4), the end result of which was that the word was considered to denote “a positive aspiration or something worthy of achievement” (Elliott v Queensland Building Services Authority [2010] QCAT 180). With all respect I do not think that the use of dictionary definitions or the extrapolation of a broad word like “desirable” is of much assistance in applying the section. Section 24(4) is not the equivalent of a code that lays down the only relevant considerations for a stay, and it does not exclude other considerations. It would be absurd to read it as doing so. It would open the way to the grant of stays pending hopeless appeals whenever the three stated factors favoured the applicant. To the contrary, the effect of section 22(4) is to add a requirement to the ordinary principles that apply to the -- 4 of 7 -- 5 granting of stays. It simply ensures that the tribunal considers those factors before ordering a stay, and prohibits the grant of a stay unless it considers such an order desirable after having regard to those factors. [23] The determination of whether or not to grant a stay is a complex discretionary exercise, but common sense and authority both indicate that the usual questions to be addressed commence with those stated in paragraphs [17] and [18] above. In s 22 applications, additional specific regard as necessary to the factors mentioned in subsection (4). [24] On this appeal the respondent police officer made no attempt to demonstrate (as distinct from assert) that there was any good point or argument capable of showing that the original determination was wrong. No such argument or even ground of argument has yet been identified. [25] No specific error has ever been articulated or identified in document or submission, either before the member or in the present appeal. In the absence of particulars the mere assertion by the appellant Police Officer that he “disputes the findings of the [appellant]” and that “the [appellants] findings are fundamentally flawed, that the sanction imposed was grossly disproportionate to the misconduct found” is insufficient. Unless some point is identified, the tribunal can not begin to enter upon the question whether there is a good arguable appeal. The onus of showing this is upon the party that seeks the stay. It was not discharged here. [26] It is true that the representatives for both parties failed to make appropriate submissions to the member concerning the necessity to show an arguable case. However the appellant at least submitted that the findings and reasons “were extremely detailed and that he analysed the evidence in an orthodox manner which ultimately lead to a conclusion that (on the evidence) each charge had been substantiated and the said conduct amounted to misconduct”, and this was not met by any reasoned rebuttal beyond mere assertion of fundamental flaw and disproportionate sanction. [27] Plainly the proceeding in the tribunal miscarried and the order must be set aside. There is no point in sending it back for rehearing as it is possible for me to determine on the existing material whether or not a stay should be ordered. Balance of Convenience [28] This was the basis upon which the member opted to grant a stay. In addressing this aspect of the case no consideration was given to the question of repayment by the respondent police officer of the salary and entitlements he will receive subsequent to his dismissal by reason of the stay if his review proceedings fail. In that event the order of dismissal will be confirmed, and the dismissal will operate from the date of the original decision (see s 24(2) of the QCAT Act). This was a factor that needed to be thrown into the balance. -- 5 of 7 -- 6 [29] But of far greater significance is the public aspect of staying a dismissal in police disciplinary proceedings. 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. [30] In considering the principles upon which a stay should be granted of an order disbarring a lawyer, it has been observed that .. This is not the usual instance of civil litigation in which the question is whether a reason is there to hold a successful party out of the benefit of the judgment … “reason” must be considered, not in the context of the judgment giving a benefit to a litigant, but rather as one designedly made to protect both the public and the reputation of the profession. That is a statement of Finn J in Robb v The Law Society of the Australian Capital Territory in the Federal Court (ACT G34 of 1996, 21 June 1996) which was expressly approved by the Queensland Court of Appeal in Legal Services Commissioner v Baker [2005] QCA 482. [31] Robb’s Case and Baker’s Case were decided in the context of the disbarment of solicitors, but the principles mentioned therein have relevance in all professional disciplinary proceedings, and in my view they have at least some relevance to proceedings of the present kind which involve the maintenance of public confidence in the police force which is of course a basic unit in the maintenance of law and order. [32] In such circumstances a stay should not lightly be granted. When there is a need to maintain public confidence [s]uch confidence is likely to be undermined if a practitioner whose right to practice is the subject of serious challenge is able to successfully call upon the court to exercise a discretion in his.. favour permitting him.. to continue in practice pending the ultimate determination. [33] Considerations of this kind led to the following statement in para [28] of Baker’s Case, in which it had been conceded that the applicant had an arguable case on appeal. Notwithstanding this concession the stay was set aside. In particular it should be accepted that an applicant for a stay of a recommendation that his name be removed from the role of Legal Practitioners should show a cogent reason for the stay, and he will not -- 6 of 7 -- 7 do so merely by showing that he will be unable to practise his profession until his appeal is heard and allowed. [34] There are obvious distinctions between the disciplinary systems concerning lawyers, medical practitioners, other professional practitioners, and members of the police force. However there is a common thread in the disciplinary systems of groups who aspire to serve the public and have special powers or privileges, and the above statements, by analogy, are useful when considering whether or not a stay ought to be granted in cases of this kind. [35] In my view cogent reasons are needed before staying an order of dismissal of a police officer following a regular investigation and determination. [36] In my view the balance of convenience would favour a refusal of the stay. However in the present matter it is unnecessary to discuss the balance of convenience issue any further, because the respondent police officer failed to show any arguable ground of error in the primary determination. Orders [37] (a) Leave to appeal granted; (b) Appeal allowed; (c) The order granting the stay is set aside; (d) The application for stay is dismissed. -- 7 of 7 --