Assistant Police Commissioner Wright v Garth [2012] QCAT 488

1 CITATION: Assistant Police Commissioner Wright v Garth [2012] QCAT 488 PARTIES: Assistant Police Commissioner Tony Wright (Applicant) v Travis Michael Garth (Respondent) APPLICATION NUMBER: REO011-12 MATTER TYPE: Occupational regulation matters HEARING DATE: On the papers HEARD AT: Brisbane DECISION OF: Richard Oliver, Senior Member DELIVERED ON: 6 September 2012 DELIVERED AT: Brisbane ORDERS MADE: The application to reopen is dismissed. CATCHWORDS: Reopening – whether reopening ground established – whether new evidence – whether reasons for a decision constitute evidence Queensland Civil and Administrative Tribunal Act 2009, ss 137, 138 Crime and Misconduct Act 2001, s 219(H) APPEARANCES and REPRESENTATION (if any): APPLICANT: Mr Garth represented by Mr Gnech, solicitor RESPONDENT: Queensland Police Service represtened by Mr Nicholson of counsel instructed by the Queensland Police Service Solicitor REASONS FOR DECISION [1] On 29 June 2012 I made a decision in OCR149-11 in which I varied the sanction imposed on Mr Garth as a result of his conduct, as a police officer, on the morning of 13 September 2010. The circumstances about his conduct are set out in the reasons for that decision. -- 1 of 4 -- 2 [2] In my reasons I made a finding that Mr Garth’s conduct amounted to a breach of discipline rather than misconduct as defined in section 1.4 of the Police Service Administration Act 1990. The applicant now contends that as the respondent accepted that the charge of misconduct was substantiated in his application it was not open to me to make that finding. [3] On 12 July 2012 the Assistant Commissioner filed an application to reopen OCR149-11 and sought an order that paragraphs 27-32 should be removed from my reasons. Section 138 of the QCAT Act allows the Tribunal to reopen a proceeding but only if a reopening ground exists. The definition of a reopening ground is set out in section 137 and are as follows: (a) the party did not appear at the hearing of the proceeding and had a reasonable excuse for not attending the hearing; or (b) the party would suffer a substantial injustice if the proceeding was not reopened because significant new evidence has arisen and that evidence was not reasonably available when the proceeding was first heard and decided. [4] It is immediately apparent that subsection (a) is not applicable to this application. [5] The Assistant Commissioner submits that there would be a substantial injustice if the proceeding was not reopened. He relies on new evidence that is now available which he says warrants a reopening. The new evidence relied upon is firstly; my reasons for decision in the substantive proceeding and secondly; that Mr Garth’s submissions on whether his conduct amounted to misconduct were in fact inaccurate. He relied on tables setting out examples of both misconduct and breach of discipline in his submission, which are referred to in my reasons. It has now been ascertained that the tables were out of date and were not in use at the time of the events the subject of the disciplinary action. An example is that an offence of drink driving whilst “off duty” is now considered misconduct by the Ethical Standards Command as opposed to a breach of discipline. The applicant refers to the tables generally and how they are used in internal courses for officers to distinguish between misconduct and breach of discipline. [6] I have difficulty with this submission. It is drawing a very long bow indeed to say my decision and reasons are “evidence” for the purposes of the section, clearly the reasons cannot be regarded as “evidence”. [7] In respect of the inaccurate tables, Mr Garth’s reliance on the tables in support of his contention about misconduct were contained in his submission filed in the Tribunal in February 2012 and had been with the applicant since that time. Although the applicant filed his submissions in response a little over a month later, there was still ample time to -- 2 of 4 -- 3 consider the accuracy of Mr Garth’s submission and address it either in the submissions in response or in supplementary submissions or at the hearing. This was not done. It is now very late in the day to say that this is new evidence, and was not available when the proceeding was heard and decided, to establish a reopening ground. Even if this is to be regarded as new evidence, it can only be admitted with the Tribunal’s leave.1 I am not satisfied this constitutes a reopening ground. [8] In opposing the application Mr Garth says the categorisation of the charge against him was always in contention from when his submissions were filed. He says that although he accepts that the facts and circumstances about his conduct were substantiated he did not accept his admitted conduct amounted to misconduct. In fact in his submissions in support of the application identified as “Grounds for Review” the orders sought was that the “respondent’s decision of 6 July be set aside and in lieu there of that the matter be substantiated as a breach of discipline”.2 He made specific submissions as to why the conduct was a breach of discipline.3 [9] In response to Mr Garth’s submission the Assistant Commissioner also made submissions as to why the conduct should be categorised as “misconduct”4 as opposed to a “breach of discipline”. [10] My clear recollection, although not supported by the transcript, is that both parties made oral submissions on the point as well. I specifically recall counsel for the respondent referring to the table set out in Mr Garth’s submission as examples only. I discussed this with counsel at the directions hearing. The distinction between misconduct and breach of discipline was clearly an issue in contention at the hearing and the reasonable expectation of the parties at the conclusion of the hearing was that the Tribunal would be required to make a finding about that issue, which I did in my reasons. [11] Even if I were to accept all of the applicant’s submissions in support of the reopening, they still do not constitute a reopening ground within the meaning of s 137 of the QCAT Act. [12] Because of the way the proceeding was conducted a further complication has arisen as a result of my finding of breach of discipline. I made an order varying the sanction imposed from a reduction of 3 paypoints to 2 paypoints, despite Mr Garth urging for the imposition of a lesser sanction. I did not make any order or direction changing the categorisation of the conduct or in other words made a decision that misconduct was unsubstantiated. It seems to be correct that the Tribunal’s jurisdiction is limited to reviewing a sanction on a misconduct charge or alternatively whether misconduct has been substantiated. 1 Crime and Misconduct Act 2001, s 219H. 2 Respondent’s submissions filed on 3 February 2012 in OCR149-11. 3 Ibid paragraphs 50-61. 4 Applicant’s submissions filed on 19 March 2012 in OCR149-11. -- 3 of 4 -- 4 [13] The applicant submits that the thrust of the review application related to a review of the sanction imposed on Mr Garth, as is clear from his application. He now submits that the discussion about breach of discipline in the reasons was obiter and not relevant to the substantive decision. This, to a degree, is true although I did make the comment that Mr Garth’s conduct was a serious breach of discipline when deciding on sanction. However from the submissions of the parties it was always intended that my task was to review the sanction imposed on Mr Garth as well whether the conduct amounted to misconduct as opposed to a breach of discipline. [14] Mr Garth on the other hand makes a contrary submission that the substantiation of misconduct was always in issue as well as the imposition of the sanction. He did not present his case in the alternative, that is if I found misconduct I would then consider sanction or if I found breach of discipline I would refer it back to the Assistant Commissioner for further consideration. He now says, in view of my finding of breach of discipline, the record should be amended to substitute the decision with an order that the misconduct was unsubstantiated and refer the matter back to the Assistant Commissioner. [15] Unfortunately, even if I was minded to accede to either submission I am constrained by the QCAT Act about what I can do in these circumstances. They do not fall within s 135 (correcting mistakes) nor do they fall within s 133 (renewal). Neither party has established that a reopening ground exists within the definition under s 137. In the absence of a reopening ground the submission made about changing the decision in OCR149-11 can only have any relevance if that proceeding is reopened. I have no inherent powers to correct or change that decision. It is obvious that all of these matters should have been raised at the hearing and in the parties’ final submissions. Clearly I relied on the parties’ submissions, both orally and in writing in coming to my decision. If the parties are now dissatisfied with the result the proper course is to appeal the decision or alternatively the parties might agree to some consent orders in OCR149-11 for the Tribunal’s consideration. [16] The application for reopening is dismissed. -- 4 of 4 --