Disley v Queensland Police Service [2010] QCAT 530

CITATION: Disley v Queensland Police Service [2010] QCAT 530 PARTIES: Stephen Disley v Queensland Police Service APPLICATION NUMBER: OCR179-10 MATTER TYPE: Occupational regulation matters HEARING DATE: 28 October 2010 HEARD AT: Brisbane DECISION OF: M Howard, Member DELIVERED ON: 28 October 2010 DELIVERED AT: Brisbane ORDERS MADE: 1. That the respondent must provide to the Tribunal, and serve on the applicant, written submissions before the applicant is required to do so. CATCHWORDS : Disciplinary review proceedings- procedure on review-procedural directions regarding the order of submissions-Queensland Civil and Administrative Tribunal Act 2009 ss 17-20, 62; Crime and Misconduct Act 2001 ss 219G,219H. APPEARANCES and REPRESENTATION (if any): This hearing was conducted on the papers in the absence of the parties. -- 1 of 6 -- OCR179-10 / Page 2 of 6 REASONS FOR DECISION Background 1. Mr Disley (the applicant) has sought review by the Queensland Civil and Administrative Tribunal (QCAT or the Tribunal) of a decision made by an Assistant Commissioner of Police that the applicant failed to meet the standard of conduct the community reasonably expects of a police officer and to impose a penalty. 2. Each party has made submissions that the other party should be directed to address the tribunal first in relation to oral and written submissions. 3. QCAT has jurisdiction to review the substantive decision, arising principally under sections 219G and 219H the Crime and Misconduct Act 2001 (the Act) and sections 17-20 of the Queensland Civil and Administrative Tribunal Act 2009 (the QCAT Act). On review, the Tribunal must hear and decide the matter by way of fresh hearing on the merits, 1 and the review is by way of rehearing on the original evidence before the original decision-maker unless the tribunal gives leave for new evidence to be adduced. 2 The purpose of the review is to produce the correct and preferable decision. 3 The decision- maker must use his or her best endeavours to assist the Tribunal so that it can make its decision on the review. 4 4. Under section 62(1) of the QCAT Act, the Tribunal may give directions at any time in a proceeding as necessary for the speedy and fair conduct of the proceeding. Under section 28(1) of the QCAT Act, the procedure for a proceeding is at the discretion of the tribunal, subject to that Act, an enabling Act and the rules. Submissions of the Parties 5. Both parties made submissions about the effect of and relying upon Aldrich v Ross 5 (Aldrich) and Compton v Deputy Commissioner Ian Stewart Queensland Police Service6 (Compton). 6. The applicant submits that as the review proceeding is a rehearing rather than an appeal in the strict sense, the respondent bears the onus of substantiating the disciplinary matter. Therefore, the applicant argues that the respondent should make its submissions first, as it would if the Tribunal was exercising its original jurisdiction to hear matters of official misconduct. The applicant suggests that he is entitled to know precisely what the case is against him. Further, he submits that the standard of proof to be applied is reasonable satisfaction on the balance of probabilities as referred to in Briginshaw v Briginshaw. 7 Further, consistent with the proceeding being a 1 QCAT Act s20(2). 2 Crime and Misconduct Act 2001 s219H. 3 QCAT Act s20(1). 4 QCAT Act s21(1). 5 [2000] QCA 501. 6 [2010] QCAT 384. 7 (1938) 60 CLR 336, per Dixon J. -- 2 of 6 -- OCR179-10 / Page 3 of 6 rehearing, on the hearing of the review, the onus remains on the respondent to prove the disciplinary matter to the requisite standard. 7. Additionally, the applicant seems to argue that whereas Aldrich suggests that as regards sanction, considerable respect should be paid to the original decision-maker’s views, this does not apply to the determination of facts. This is argued to support the position that, other than the regard to be paid to the decision-maker’s views regarding sanction, the proceeding must operate as if there had been no earlier decision. 8. Applications for review of bail are suggested as closely analogous, such applications being conducted as hearings de novo, in which the Crown is obliged to address first as it bears the onus of proving the accused is not a fit and proper person to be granted bail. 9. The respondent submits that different judicial views have been expressed regarding whether an onus of proof exists in administrative proceedings. 8 However, it acknowledges such a concept may be appropriate in disciplinary proceedings, referring to judicial comment that in disciplinary cases the onus of proving the breach falls to the accuser.9 10. The respondent argues that even so, the observations of the Full Court of the Supreme Court of Queensland (the Full Court) in Aldrich regarding the approach to be followed on a rehearing by the Misconduct Tribunal (a former tribunal which was abolished by the QCAT Act), suggest that the applicant should address the Tribunal first. The argument seems to be that in light of the Full Court’s observations in Aldrich, to the effect that it would be appropriate to give considerable weight to the original decision-maker’s views, the Tribunal should require the applicant to make his submissions first. Further, the respondent suggests that because the applicant has been through a disciplinary process resulting in the reviewable decision, he is aware of the allegations and the case made against him. 11. The General Practice Direction of the Administrative Appeals Tribunal (AAT) and Practice Note 3 of the State Administrative Tribunal (SAT), Western Australia are suggested by the respondent as providing some possible assistance. Each provides for an applicant to be required to lodge and serve his/her statement of facts and contentions first in the absence of a specific direction from the particular tribunal requiring otherwise. Discussion 12. Specifically, procedure is at the discretion of the Tribunal, subject to the rules and the enabling Act, in this case, the Crime and Misconduct Act 2001. The Act provides for the review to be by way of rehearing, QCAT having the discretion to grant leave for new evidence to be adduced. Under the QCAT Act, the Tribunal’s role is to make the correct and preferable decision and to hear and decide the review by way of fresh hearing on the merits. There is nothing implicit in the provisions regarding the conduct of proceedings in the 8 Minister for Health v Thomson (1985) 8 FCR 213, 216 (Fox J); contra 223-224 (Beaumont J). 9 Minister for Health v Thomson (1985) 8 FCR 213, 223-224 (Beaumont J). -- 3 of 6 -- OCR179-10 / Page 4 of 6 Tribunal’s review jurisdiction under the QCAT Act or the Act to suggest that the applicant in a disciplinary review must present his or her submissions or addresses first. 13. Practice Note 3 relates to matters in original jurisdiction of the SAT and accordingly is of questionable assistance. In any event, both Practice Note 3 of SAT and the General Practice Direction of the AAT are intended to apply unless the tribunal concerned otherwise orders. Neither document is specifically concerned with disciplinary proceedings. 14. Bail review hearings involve determining whether a person should have their liberty pending criminal charges being dealt with. This may arguably be more analogous to disciplinary proceedings, given that the determinations are of a highly serious nature, potentially impacting on a person’s ability to continue to work in their chosen field of employment or profession, and accordingly to earn their livelihood. 15. The Full Court in Aldrich concluded that the nature of the rehearing required the Misconduct Tribunal to make its own decision on the available evidence, rather than to determine the correctness of the original decision. 10 It considered that external public review of a disciplinary decision protected against an incorrect decision, and brought a public perspective to bear. 11 It considered that the first duty of the Misconduct Tribunal was to …make up its own mind as to the facts that are proved by the evidence and the inferences that should be drawn from those facts, giving appropriate weight to the opinion of the original decision- maker 12 . In relation to penalty, the Full Court further observed that if the Misconduct Tribunal had the same view of the facts and inferences as the original decision-maker, it would be appropriate to give respect to the views of the original decision-maker about sanction. However, once again the Misconduct Tibunal must make its own determination. 13 16. In Aldrich, the decision of the High Court of Australia (the High Court) in Builders Licensing Board v Sperway Constructions (Sydney) Pty Ltd 14 (Sperway) was considered in determining the nature of the rehearing. Although it was not an issue considered in Aldrich, the High Court in Sperway also made observations regarding the procedure on hearing de novo in a disciplinary proceeding, to the effect that there is an onus on the complainant entity which must start again and make out its case and call its witnesses.15 17. In Compton, QCAT accepted the nature of the proceeding was unchanged despite the abolition of the Misconduct Tribunal and the establishment of QCAT, and indeed, considered Aldrich’s interpretation of the nature, powers 10 [2000] QCA 501, [41]. 11 [2000] QCA 501, [41-43]. 12 [2000] QCA 501, [45]. 13 [2000] QCA 501, [45]. 14 (1976) 14 ALR 174 15 (1976) 14 ALR 174 at 177, 181. -- 4 of 6 -- OCR179-10 / Page 5 of 6 and functions of the Tribunal as fortified by section 20 of the QCAT Act. 16 The proceeding is not an appeal in the sense that an error or errors need not be demonstrated in the decision under review before an applicant can succeed. 17 Penalty was the only contested issue in the proceeding, 18 and the Tribunal considered the remarks in Aldrich regarding penalty of assistance as follows: …the question of appropriate penalty is in the end one for this tribunal to determine. In doing so it may be appropriate to pay considerable respect to the view of the original decision-maker, but it must be the tribunal’s decision. 19 Decision 18. In accordance with the principles established by Aldrich and acknowledged as applicable to QCAT in Compton, I accept that the Tribunal must decide the disciplinary review by way of fresh hearing or rehearing on its merits on the evidence before it. It must make its own decision about the matter, giving appropriate weight to the views of the original decision-maker. Under the QCAT Act, it must make the correct and preferable decision in the matter. The respondent has a duty to assist the tribunal to make its decision on the review. The Tribunal has broad powers to make directions as necessary and the discretion to control its procedure at hearing to achieve, in effect, a fair hearing for the parties. 19. Disciplinary proceedings have potentially serious consequences for the person accused of disciplinary charges. The outcome may have a serious impact on a person’s livelihood and future employment. It is appropriate to take into account the disciplinary nature of the proceeding, the role and function of the Tribunal and the onus of proof when considering the directions to be made regarding the presentation of the case. 20. The submissions made by both parties rely upon the nature of proceedings as supporting their arguments. The respondent relies upon the applicant’s existing knowledge of the internal decision-making process to argue that the applicant knows the case and can make his submissions first. However, this does not sit comfortably with the burden of proof which the respondent has in the disciplinary proceedings. 21. The respondent seems to suggest that allowing it to respond to the applicant’s submissions will enable the Tribunal to give appropriate weight to the original decision-maker’s views. However, it does not appear to me that the order of submissions affects the ability of the Tribunal to give the weight it considers appropriate to the respondent’s views in respect of either, the facts and inferences to be drawn from them, or penalty. 22. However, having regard to the respondent’s burden of proof, requiring the applicant to make his submissions and addresses before the respondent 16 [2010] QCAT 384 [28-29]. 17 [2010] QCAT 384, [29]. 18 [2010] QCAT 384 [2]. 19 [2010] QCAT 384 [31]. -- 5 of 6 -- OCR179-10 / Page 6 of 6 would be inconsistent with the Tribunal’s role to consider the disciplinary case against the applicant by way of fresh hearing on its merits and make its own determination. Also, in light of the disciplinary nature of the proceeding, I am satisfied that the respondent can better assist the Tribunal to discharge its function and reach the correct and preferable decision by making out its case against the applicant before he is required to make submissions. 23. Finally, given the nature of disciplinary proceedings and the nature of the review to be conducted by the Tribunal, I consider it is artificial and unhelpful to draw a distinction between disciplinary proceedings before the Tribunal in its original jurisdiction and those before it in its review jurisdiction. In both circumstances, the person accused of disciplinary charges is entitled to have the accusing body substantiate the disciplinary grounds or charges. 24. Accordingly, in my view, the Tribunal will be assisted to reach its own conclusions by having the respondent present its case first, and having the applicant respond. It follows that the respondent’s submissions should be given first. I make directions accordingly. The directions about the date by which the submissions of both parties are required to be filed can be determined at the conclusion of the compulsory conference listed for 15 November 2010. 25. The procedure at hearing is a matter for the Tribunal constituted for the hearing of the substantive application. Accordingly, I do not propose to make directions about the order of addresses at hearing. -- 6 of 6 --