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  • Unreported Judgment

Wallis v Acting Deputy Commissioner

 

[2019] QCAT 342

QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL

CITATION:

Acting Senior Constable Christopher Lee Wallis v Acting Deputy Commissioner D A (Tony) Wright & Anor [2019] QCAT 342

PARTIES:

acting senior constable CHRISTOPHER LEE WALLIS

(applicant)

v

acting Deputy Commissioner D A (tony) wright

and

crime and corruption commission

(respondents)

APPLICATION NO/S:

OCR192-18

MATTER TYPE:

General administrative review matters

DELIVERED ON:

11 November 2019

HEARING DATE:

26 February 2019

 

31 July 2019

HEARD AT:

Brisbane

DECISION OF:

Member Browne

ORDERS:

IT IS THE DECISION OF THE TRIBUNAL THAT:

  1. The application for miscellaneous matters filed by the applicant on 8 July 2019 is dismissed.

THE TRIBUNAL DIRECTS THAT:

  1. Acting Senior Constable Christopher Lee Wallis must file in the Tribunal two (2) copies and give one (1) copy to Acting Deputy Commissioner D A (Tony) Wright and Crime and Corruption Commission any written submissions to be relied upon in the review proceeding (OCR192-18), by:

4:00pm on 2 December 2019

  1. Acting Deputy Commissioner D A (Tony) Wright and Crime and Corruption Commission must file in the Tribunal two (2) copies and give one (1) copy to Acting Senior Constable Christopher Lee Wallis any written submissions in response, by:

4:00pm on 23 December 2019

  1. Acting Senior Constable Christopher Lee Wallis must file in the Tribunal two (2) copies and give one (1) copy to Acting Deputy Commissioner D A (Tony) Wright and Crime and Corruption Commission any written submissions in reply, by:

4:00pm on 20 January 2020

  1. Unless otherwise ordered, the proceeding (OCR192-18) is listed for a further oral hearing in Brisbane on a date and time to be advised by the Tribunal not before 4:00pm on 28 January 2020

CATCHWORDS:

POLICE – INTERNAL ADMINISTRATION – DISCIPLINE AND DISMISSAL FOR MISCONDUCT – QUEENSLAND – GENERAL ADMINISTRATIVE REVIEW – where disciplinary notice issued against applicant – where applicant afforded an opportunity to make submissions on substantiation – where first substantiation decision made together with sanction decision – where applicant not afforded an opportunity to make submissions on sanction – where decision-maker sought to repeal the first decision under s 24AA of the Acts Interpretation Act 1954 (Qld) – where applicant invited to make submissions on sanction – where second substantiation decision made together with sanction decision – where applicant and the Crime and Corruption Commission applied for a review of the substantiation and sanction decision – where second substantiation decision substantially different to first substantiation decision –  where applicant applied for declarations under s 60(1) of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) and other orders – whether the tribunal can make a declaration before the review proceeding is finally decided – where applicant seeks a declaration that the first substantiation decision is a ‘reviewable decision’ for the purposes of s 219G of the Crime and Corruption Act 2001 (Qld) – where applicant seeks a declaration that the second substantiation decision is legally invalid – where applicant seeks further orders under the Queensland Civil and Administrative Tribunal Act 2009 (Qld) to amend the application to review and to extend time for filing the application or to strike out the second substantiation decision

Acts Interpretation Act 1954 (Qld), s 4, s 24AA

Crime and Corruption Act 2001 (Qld), s 219G, s 219H

Police Service Administration Act 1990 (Qld), s 7.4, s 7A.5

Police Service Administration (Discipline Reform) and Other Legislation Amendment Act 2019 (Qld), s 11.20, s 11.21

Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 6, s 9, s 17, s 18, s 19, s 20, s 24, s 47, s 60(1), s 64(1), s 157

Ainsworth v Criminal Justice Commission (1992) 175 CLR 564

Aldrich v Ross [2001] 2 Qd R 235

Church of Scientology Inc v Woodward (1982) 154 CLR 25

Collector of Customs (NSW) v Brian Lawlor Automotive Pty Ltd (1979) 41 FLR 328

Connolly v Director of Public Prosecution [1964] AC 1254

DMW v CGW (1982) 151 CLR 491

Firearm Distributors Pty Ltd v Carson [2001] 2 Qd R 26

Forster v Jododex Australia Pty Limited (1972) 127 CLR 421

JM Kelly (Project Builders) Pty Ltd v Queensland Building Services Authority [2013] QCAT 502

John Fairfax & Sons Ltd v Police Tribunal of New South Wales & Anor (1986) 5 NSWLR 465

Kinsella v Gold Coast City Council [2014] QSC 65

Lee v Crime and Corruption Commission & Anor [2014] QCATA 326

McNab Constructions Australia P/L v Queensland Building Services Authority [2013] QSC 057

Minister for Immigration and Multicultural Affairs v Bhardwaj (2002) 209 CLR 597

Murray v Deputy Commissioner Stewart [2011] QCAT 583

New South Wales v Kable (2013) 252 CLR 118

Owen v Menzies [2013] 2 QD R 327

Randall v Body Corporate for Runaway Cove Bayside CTS 25498 [2011] QCATA 10

Skaines v Kovac Enterprises Pty Ltd [2007] 1 Qd R 98

APPEARANCES & REPRESENTATION:

 

Applicant:

J Hunter QC with M Black, instructed by Gnech and Associates

Respondents:

S A McLeod QC, instructed by Queensland Police Service Legal Unit

M G Docwra, Corporate Legal for the Crime and Corruption Commission

REASONS FOR DECISION

  1. [1]
    In this matter I am required to answer two preliminary issues:
    1. (a)
      Whether there is a ‘reviewable decision’ before the Tribunal for the purposes of s 17 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) (‘QCAT Act’) and, if so, whether the Tribunal should exercise its review jurisdiction under s 18 to review the decision; and
    2. (b)
      Whether s 60(1) of the QCAT Act permits the Tribunal to make a stand alone declaration before the review proceeding is finally decided.

Background to proceedings

  1. [2]
    This matter has a protracted history. Starting from the beginning, the first respondent found two disciplinary charges of misconduct to be proven against the applicant (‘the substantiation’) and determined sanction without affording the applicant an opportunity to make submissions (‘the decision of 20 March 2018’). Relevantly, the first respondent provided the applicant with findings or reasons for both the substantiation and sanction decision of 20 March 2018.
  2. [3]
    The first respondent purported to repeal the decision of 20 March 2018 pursuant to s 24AA of the Acts Interpretation Act 1954 (Qld) (‘AI Act’) and invited the applicant to forward his written submissions in regard to sanction.
  3. [4]
    The first respondent made a further decision on the substantiation and sanction together with findings and reasons (‘the decision of 2 July 2018’). The findings on substantiation were substantially different to the findings contained in the decision of 20 March 2018.
  4. [5]
    Review proceedings followed whereby the applicant challenged on review the substantiation and sanction decision.[1] The second respondent applied for a review of the sanction decision.[2]
  5. [6]
    At the review hearing it became apparent that the applicant had prepared his review application and supporting submissions based on the first respondent’s findings for the substantiation in the decision of 20 March 2018 and the findings on sanction in the decision of 2 July 2018. More importantly, the applicant was not aware that the substantiation findings in the decision of 2 July 2019 were substantially different to the substantiation findings in the decision of 20 March 2018.
  6. [7]
    The review hearing was adjourned to allow the parties an opportunity to address the Tribunal in relation to an issue identified as ‘the jurisdiction issue’, that is, which decision is the ‘reviewable decision’ for the purposes of s 219G of the Crime and Corruption Act 2001 (Qld) (‘the CC Act’).[3] It is important to note that after the further oral hearing of the applicant’s application for miscellaneous matters, the CC Act and the Police Service Administration Act 1990 (Qld) (‘the PSA Act’) were amended by the Police Service Administration (Discipline Reform) and Other Legislation Amendment Act 2019 (Qld) (‘PSA Amendment Act’). Relevantly, s 7.4 of the PS Act continues to apply for the completion of the disciplinary proceeding as the proceeding against the applicant was started before the commencement of the PSA Amendment Act.[4]

The applicant’s application for a declaration or other order (‘the jurisdiction issue’)

  1. [8]
    The applicant now applies for declarations or orders.[5] The applicant argues that the Tribunal has jurisdiction to review the first respondent’s substantiation decision of 20 March 2018 because it is a ‘reviewable decision’ for the purposes of s 219G of the CC Act. Further, the applicant argues that the Tribunal has no jurisdiction to review the first respondent’s purported substantiation decision of 2 July 2018 because it is legally invalid and thus not a ‘reviewable decision’ under s 219G of the CC Act. The applicant seeks declarations or orders that would give effect to those conclusions as follows:[6]
    1. (a)
      A declaration under s 60(1) of the QCAT Act that the first respondent’s decision of 20 March 2018, by which he determined that Matter One and Matter Two as alleged against the applicant were substantiated as misconduct is a ‘reviewable decision’ for the purposes of s 219G of the CC Act;
    2. (b)
      A declaration under s 60(1) of the QCAT Act that the first respondent’s purported decision of 2 July 2018, to the extent to which he purported to determine that Matter One and Matter Two alleged in the Direction to Attend a Discipline Hearing issued on 14 June 2017 were substantiated as misconduct, is legally invalid;
    3. (c)
      An order under s 64(1) of the QCAT Act that the Form 23 “Application to review a decision” filed on 6 July 2018 be amended at Part B to identify the reviewable decisions as the substantiation decision made on 20 March 2018 and the sanction decision made on 2 July 2018; and
    4. (d)
      An order under s 61(1)(a) of the QCAT Act that the time limit for applying for review of the first respondent’s substantiation decision dated 20 March 2018 be extended to 6 July 2018.
  2. [9]
    The applicant argues that the substantiation decision of 20 March 2018 remains the operative decision as there is no express power in the PSA Act for a prescribed officer (here the first respondent) to revoke either a substantiation decision or a sanction decision.[7] Further, the applicant contends that the power to revoke the substantiation decision under s 24AA of the AI Act is displaced (by s 4 of the AI Act) by a contrary intention in the PSA Act as the nature of the disciplinary power, once exercised under s 7.4, is adjudicative in nature.[8]
  3. [10]
    The applicant relies on the principle in Firearm Distributors Pty Ltd v Carson[9] and the observations of Chesterman J who concluded that ‘where a power is adjudicative in nature, affecting rights or liabilities, it can only be exercised once’.[10] The applicant contends that even if the first respondent had the power to revoke the substantiation decision of 20 March 2018, the first respondent did not specify whether he was repealing the substantiation decision, the sanction decision or both decisions. The applicant submits that on a fair reading of the repeal notice the first respondent did not in fact repeal the substantiation decision of 20 March 2018. Further, the applicant submits that even if the first respondent was purporting to repeal the substantiation decision of 20 March 2018, the purported repeal was ineffective for non-compliance with s 24AA(b) of the AI Act on the basis that the applicant was not given procedural fairness, in particular any notice of the repeal. The applicant submits that s 24AA(b) of the AI Act was not complied with and any purported repeal of the substantiation decision of 20 March 2018 was invalid.[11]
  4. [11]
    In the oral hearing, Mr Hunter QC for the applicant submitted that there is presently no sanction decision before the Tribunal. Mr Hunter relies on Minister for Immigration and Multicultural Affairs v Bhardwaj[12] in which the High Court held that an administrative decision that is affected by jurisdictional error is ‘no decision at all’.[13]
  5. [12]
    Mr Hunter QC submitted that the decision of 20 March 2018 on sanction, in so far as the applicant was denied procedural fairness in the decision making process is infected by jurisdictional error and ceases to exist. Mr Hunter QC submitted that whilst the sanction decision of 2 July 2018 was not valid and in the event that the findings of misconduct are on review found to be substantiated, the applicant accepts that the sanction imposed in the decision of 2 July 2018 is otherwise appropriate.

The tribunal’s power to review a decision made or ‘taken to have been made’ under s 17 of the QCAT Act

  1. [13]
    It is trite law that the tribunal has the power to deal with matters it is empowered to deal with under the QCAT Act or an enabling Act.[14] Relevantly, the tribunal has both original and review jurisdiction and its own appeal jurisdiction, as conferred on the tribunal.[15]
  2. [14]
    Section 17 of the QCAT Act provides that the tribunal’s review jurisdiction is the jurisdiction conferred on the tribunal by an enabling Act to review a decision made or taken to have been made by another entity under that Act (emphasis added). A decision mentioned in s 17(1) of the QCAT Act is a ‘reviewable decision’ and the entity that made or is taken to have made the decision is the ‘decision-maker’ for the reviewable decision.[16]
  3. [15]
    The QCAT Act does not define the meaning of ‘decision’ for the purposes of s 17. In JM Kelly (Project Builders) Pty Ltd v Queensland Building Services Authority[17] the Tribunal interpreted the expression ‘made or taken to have been made’ under s 17 of the QCAT Act more broadly as to deem a decision to have been made in circumstances in which no decision has in fact been made.[18]
  4. [16]
    In JM Kelly the Deputy President said that in a review proceeding the Tribunal only need satisfy itself as to the existence of a decision of a kind the Tribunal has the power to review.[19] Further, whether there is a reviewable decision involves a consideration of the relevant statutes which confer the review jurisdiction on the Tribunal. The Deputy President said:

Where, in contrast, the Tribunal is exercising review jurisdiction, the only matter, the only jurisdictional fact, of which the Tribunal need satisfy itself is the existence of a decision of a kind the Tribunal has power to review. Whether there is such a decision which falls within the Tribunal’s review jurisdiction is governed by the relevant statutes which confer the review jurisdiction on the Tribunal. It is a construction of those statutes which determines whether it is necessary that there be a valid decision made in a lawful exercise of the decision making power in order for the decision to be reviewable.[20]

  1. [17]
    I agree with the approach taken by the Deputy President in JM Kelly in construing s 17 of the QCAT Act. I find JM Kelly is relevant to the issues that arise in this matter in particular the applicant’s contention that the Tribunal does not have the jurisdiction to review the decision of 2 July 2018 because it is legally invalid. In JM Kelly the Tribunal cited a number of authorities relevant to the Tribunal’s power to review a decision which was said to be affected by jurisdictional error. In JM Kelly the Tribunal found that s 17 of the QCAT Act should not be construed so as to limit reviewable decisions under the QCAT Act to only those made validly under an enabling act. In JM Kelly the Deputy President said:

In my view, a construction of s 17 which required a determination of whether any decision which a party applied to have reviewed in the Tribunal was affected by jurisdictional error would not be consistent with the purpose of the legislation as revealed in its objects.

I am also of the view that the extension of the Tribunal’s jurisdiction to review decisions not in fact made, but taken to be made, strongly suggests that the intention of Parliament was to confer broad review jurisdiction upon the Tribunal. It would seem quite inconsistent, and an odd result, that the Tribunal could exercise its review jurisdiction in certain cases in which there was no decision at all, but where there was a decision made in fact, could only review that decision if it was made in valid exercise of the powers under the enabling act.[21]

  1. [18]
    Here, the Tribunal’s review jurisdiction is enlivened because the applicant and the second respondent filed an application to review the first respondent’s decision in relation to the substantiation and sanction. Relevantly, s 219G of the CC Act provides that the commission or a prescribed person against whom a reviewable decision has been made may apply to QCAT for a review of the reviewable decision. A ‘reviewable decision’ means, amongst other things, a decision made in relation to an allegation of corruption against a prescribed person, other than a decision made by a court or QCAT; or made by a prescribed officer under the PSA Act, part 7.[22] ‘Corruption’ under schedule 2 of the CC Act means ‘corrupt conduct or police misconduct’.
  2. [19]
    Section 7.4(2A) of the PSA Act relevantly provides, amongst other things, that if the prescribed officer decides an allegation of misconduct brought against the officer, the commissioner must give a QCAT information notice to the officer and the Crime and Corruption Commission for the decision or finding. A ‘QCAT information notice’ means a notice complying with s 157(2) of the QCAT Act. Section 157 of the QCAT is the relevant section that requires the decision-maker for a reviewable decision to give ‘written notice’ of the decision to each person who may apply to the tribunal for a review of the decision and sets out relevant information that must be provided in the notice. A failure to comply with s 157 of the QCAT Act does not affect the validity of the reviewable decision.[23]
  3. [20]
    In this matter, the ‘reviewable decision’ identified by the applicant in the application to review filed on 6 July 2019 is the decision of 2 July 2018. Further, the second respondent seeks to review the sanction decision made on 2 July 2018. Indeed, at the oral hearing the second respondent submitted that the only notice received (for the purposes of s 157(2) of the QCAT Act) of a reviewable decision was the decision of 2 July 2018.
  4. [21]
    It is open for me to find that there is, for the purposes of s 17 of the QCAT Act, a decision made or ‘taken to have been made’ by the first respondent. More importantly, the first respondent purported to make a decision on 2 July 2018 using the power under s 7.4 of the PSA Act to decide two matters of misconduct and having found the charges concerning the conduct to be substantiated imposed a sanction on the applicant. I find that the purported decision of 2 July 2018 is for the purposes of s 219G of the CC Act a ‘reviewable decision’ the applicant and the second respondent having applied to the Tribunal to review a decision made ‘in relation to an allegation of corruption’[24] that means police misconduct.[25]
  5. [22]
    Having found that there is a decision made or ‘taken to have been made’ for the purposes of s 17, the Tribunal may exercise its review jurisdiction under s 18 of the QCAT Act to review the decision. As observed in JM Kelly, the use of the word ‘may’ as it appears in s 18 of the QCAT Act requires the Tribunal to exercise its discretion as to whether to exercise its jurisdiction to review the decision made or ‘taken to have been made’.[26]
  6. [23]
    In proceeding under s 18 of the QCAT Act, the Tribunal must conduct the review in accordance with the QCAT Act and the enabling Act and, amongst other things, may perform the functions conferred on the tribunal by the QCAT Act or the enabling Act under which the reviewable decision being reviewed was made; and has all of the functions of the decision-maker.[27] The Tribunal is required to review the matter by way of a fresh hearing on the merits.[28] The Tribunal’s role on review is to produce the correct and preferable decision.[29]
  7. [24]
    The orders that may be made by the Tribunal on review, as provided under s 24 of the QCAT Act, is to confirm or amend the decision; set aside the decision and substitute its own decision; or set aside the decision and return the matter for reconsideration to the decision-maker for the decision, with the directions the Tribunal considers appropriate.

Should the Tribunal exercise its power to review under s 18 of the QCAT Act?

  1. [25]
    In this matter it is appropriate in all of the circumstances for the Tribunal to exercise its discretion under s 18 of the QCAT to review the decision of 2 July 2018. In reviewing the decision of 2 July 2018 the Tribunal has a statutory function to perform, that is, to arrive at the correct and preferable decision.
  2. [26]
    Although consistent with Aldrich v Ross,[30] it may be appropriate for the Tribunal ‘in making up its own mind to give considerable weight’[31] to the first respondent’s findings on the basis that the decision-maker might be thought to have ‘particular expertise in the managerial requirements of the police force’,[32] I am not bound by the first respondent’s findings if I reach a different view.[33] In conducting the review I am duty bound to bring the public perspective to bear.[34] As observed by the Tribunal in Murray v Deputy Commissioner Stewart:[35]

Considerable respect is paid in this Tribunal to the views of the original decision maker (cf Aldrich v Ross [2001] 2 Qd R 235), but when the Tribunal clearly reaches a different view its duty is to act in accordance with its own views. Aldrich v Ross (at p 257) recognises that the independent review tribunal is the only vehicle by which a public perspective is brought to bear in police disciplinary matters, and accordingly there will be cases where it will be appropriate and necessary to depart from the views of the original decision maker.[36]

  1. [27]
    In reviewing the decision I am required to consider the evidence that was before the decision-maker and the Tribunal may, in certain circumstances, give leave to a party to adduce fresh, additional or substituted evidence.[37]
  2. [28]
    Here, it is non-contentious that the first respondent should have given the applicant an opportunity to make submissions on sanction after the substantiation finding. Indeed, the disciplinary process ordinarily involves a two-step process in that the decision-maker will determine the substantiation and then after inviting the subject officer to provide submissions, will determine sanction and make necessary findings. As observed by the Appeal Tribunal in Lee v Crime and Corruption Commission & Anor[38] the determination of substantiation and sanction consists of two reviewable decisions.[39]
  3. [29]
    Although the applicant identified the reviewable decision (in his application to review) as the decision of 2 July 2018, the applicant was seeking to review the findings or reasons on the substantiation contained in the 20 March 2018 decision. The second respondent and indeed the first respondent were however proceeding on the basis that the substantiation and sanction decision of 2 July 2018 is the ‘reviewable decision’. As discussed above, I am not bound by the decision-maker’s findings in relation to the substantiation and sanction decision. In exercising the Tribunal’s review jurisdiction, the applicant will be afforded procedural fairness and will have the opportunity to make submissions about the alleged misconduct. Further, the Tribunal on review has the power to grant leave in certain circumstances to a party upon application, to rely upon new evidence.
  4. [30]
    In so far as the decision of sanction and whether in fact the applicant was properly afforded procedural fairness to the extent that reasons for the substantiation decision was given together with the sanction decision and without the applicant being invited to make further submissions (on sanction), the Tribunal in arriving at the correct and preferable decision must consider the matter afresh and the applicant will be given an opportunity to make submissions about the appropriateness of any sanction to be imposed if the matters of misconduct are found to be proven on review. As held in JM Kelly, in citing Collector of Customs (NSW) v Brian Lawlor Automotive Pty Ltd[40] the Tribunal will be able to determine ‘whether the decision was properly made in fact and law’.[41]

The Tribunal’s power to make a declaration

  1. [31]
    It is important to note that the CC Act does not confer jurisdiction on the Tribunal to make a declaration. The Tribunal does, however, have the power under s 60(1) of the QCAT Act to make a declaration about a matter in a proceeding.
  2. [32]
    Relevantly, section 60(1) provides as follows (emphasis added):

60 Declarations

  1. (1)
    The tribunal may make a declaration about a matter in a proceeding-
    1. instead of making an order it could make about the matter; or
    2. in addition to an order it could make about the matter.
  1. [33]
    Section 60(2) of the QCAT Act provides that the tribunal may make an order it considers necessary or desirable to give effect to a declaration under subsection (1).[42] A declaration made under s 60(1) is binding on the parties to the proceeding mentioned in the declaration;[43] and the power to make a declaration under s 60(1) is in addition to, and does not limit, any power of the tribunal under an enabling Act to make a declaration.[44]
  1. [34]
    The applicant submits and I accept that a declaration is, in its nature, a final order.[45] The consideration of whether to grant a declaration involves the exercise of a broad discretionary power.[46] A declaration may be made in circumstances where no other relief is available[47] and it is appropriate to grant the relief depending upon the requirements of justice in the particular case.[48]
  2. [35]
    The applicant, in relying on Kinsella v Gold Coast City Council,[49] submits that a declaration may nevertheless be an appropriate order for the purposes of resolving a separate or preliminary question that arises in a proceeding. In Kinsella, McMurdo J considered the circumstances in which a declaration can be made before a final hearing and after citing a number of authorities said that a declaration must not be granted until the court is in a position to make a final declaration.[50] Further, the applicant submits that s 60 of the QCAT Act grants the Tribunal a similar ‘broad discretionary power to grant declaratory relief’ as resides in the Courts.[51]
  3. [36]
    The applicant goes on to say that the substantiation decision of 20 March 2018 as a ‘reviewable decision’ is a ‘matter’ for the purposes of s 60(1) of the QCAT Act that arises in the proceeding before the Tribunal.
  4. [37]
    I accept that, to the extent that there is now an issue before me as to whether there is a reviewable decision (i.e. the substantiation decision of 20 March 2018 or the substantiation decision of 2 July 2018), is a ‘matter’ that arises in the review proceeding for the purposes of s 60(1) of the QCAT Act. I also accept, as contended by the applicant, that a declaration that the substantiation decision of 20 March 2018 is a ‘reviewable decision’ would be a ‘declaration about a matter’ in the proceeding.
  5. [38]
    I find that the proceeding before me for the purposes of s 60(1) of the QCAT Act is the review proceeding (OCR192-18), the applicant and the second respondent having filed an application to review a decision.[52] As discussed above, I have found that there is a decision made or taken to have been made for the purposes of s 17 of the QCAT Act and I have decided to exercise my discretion to review the decision of 2 July 2018. The Tribunal is therefore seized of the matter for the purposes of s 18 of the QCAT Act.
  6. [39]
    In my view, the Tribunal only has the power to make a declaration about a matter in a proceeding as provided under s 60(1) of the QCAT Act, that is ‘instead of making an order’ it could make about the matter; or in addition to an order ‘it could make about the matter’. That said, because the Tribunal is seized of the matter for the purposes of s 18 of the QCAT Act in exercising its review powers, the Tribunal can only make orders as provided under s 24 of the QCAT Act (i.e. to confirm or set aside and substitute or set aside and remit the matter back).
  7. [40]
    I do not accept the applicant’s contention that there is nothing in s 60 of the QCAT Act that would require the Tribunal to only make a declaration at the same time as another order that it might make about the matter.[53] This would have s 60(1) of the QCAT Act to be construed in a way that permits the Tribunal to make a declaration before the review proceeding is finally determined. This would require the Tribunal to make a declaration outside of its power under s 60(1) of the QCAT Act.
  8. [41]
    In my view, in the absence of an express power to grant a declaration under the enabling act, here, the CC Act, the Tribunal does not have power to make a declaration before the review proceeding is finally determined.[54] Put simply, the declaration cannot stand alone and can only be made under s 60(1) of the QCAT Act ‘instead of’ or ‘in addition to’ an order the Tribunal can make about the matter in the review proceeding as provided under s 24.
  9. [42]
    Further, I do not accept, as contended by the applicant, that s 60 of the QCAT Act grants the Tribunal a similar ‘broad discretionary power to grant declaratory relief’ as resides in the Courts.[55]
  10. [43]
    The Tribunal, as a court of record, ‘albeit an inferior court of summary jurisdiction’,[56] only has the jurisdiction or power as granted by the QCAT Act or other enabling Act.[57] Unlike the Supreme Court that is a superior court of general jurisdiction, there is no presumption that the Tribunal has ‘acted within jurisdiction’.[58] The Tribunal as an inferior court of record created by statute has ‘no powers, jurisdictions or authorities other than those authorised by the Act’.[59] It is a matter for the Tribunal to determine its own jurisdiction.[60]
  11. [44]
    I find that, in the absence of any express power conferred upon the Tribunal by the CC Act, to grant a declaration, the Tribunal only has the power to grant a declaration as provided under s 60(1) of the QCAT Act. The Tribunal does not have a broad discretionary power or ‘general jurisdiction’ as resides in the Supreme Court to make a declaration.[61]
  12. [45]
    There is a further issue concerning the Tribunal’s jurisdiction that arises in this matter. The applicant says that the first respondent exercised an adjudicative power in determining the substantiation decision and that the PSA Act does not allow for the repeated exercise of the statutory power. The applicant says that there has been an improper use of the power under s 7.4 of the PSA Act. Further the applicant says that there is no sanction decision, the decision being infected by jurisdictional error.
  13. [46]
    On the other hand, the first respondent submits that there has been a proper use of the power under the AI Act to repeal the 20 March 2018 decision and the reviewable decision is the decision of 2 July 2018.
  14. [47]
    The contentions discussed above require me to, amongst other things, make findings about the legality of the decision of 2 July 2018 before the review proceeding is finally decided. Only the Supreme Court is vested with the jurisdiction to grant declaratory relief about the legality of a decision that is usually challenged by way of judicial review.
  15. [48]
    Here, there is no declaration I can make nor mischief to remedy because as discussed above I have found that the Tribunal does not have general jurisdiction to make a declaration before the review proceeding is finally determined. The Tribunal only has the power to make a declaration as provided under s 60(1) of the QCAT Act. Further, I have determined that the first respondent’s decision of 2 July 2018 is a ‘decision’ before me for the purposes of s 17 of the QCAT Act and that the Tribunal should exercise its discretion under s 18 to review the decision of 2 July 2018.

Disposition of the application for orders to amend and strike out

  1. [49]
    The applicant submits that it is appropriate to make the declarations sought so as to resolve the dispute between the parties as to whether the substantiation decision of 20 March 2018 is a ‘reviewable decision’ (and, thus, whether the Tribunal has jurisdiction to review that decision).[62] Further, the applicant submits that if the Tribunal forms the opinion that the decision of 20 March 2018 is a ‘reviewable decision’ but considers that s 60 of the QCAT Act is not appropriate, then it must ‘mould its conduct’ and proceed to amend the application to review so as to facilitate the review of the 20 March 2018 decision.[63]
  2. [50]
    On the other hand the applicant submits that if the Tribunal forms the opinion that the decision of 2 July 2018 is legally invalid and not a ‘reviewable decision’ under the CC Act, then the Tribunal must mould its conduct accordingly.[64] Alternatively, the applicant submits that if the Tribunal forms the opinion that it has no jurisdiction to hear a matter, it can dismiss the proceeding or the relevant part of the proceeding under s 47 of the QCAT Act.[65] The applicant contends that it is appropriate here to strike out that part of the proceeding relating to the decision of 2 July 2018.[66]
  3. [51]
    I have found that the Tribunal does not have any general jurisdiction to make a declaration before the review proceeding is finally determined and can only make a declaration under s 60(1) of the QCAT Act ‘instead of’ or ‘in addition to’ an order the Tribunal can make about the matter in the review proceeding as provided under s 24.
  4. [52]
    For reasons discussed above, I decline to exercise my discretion to amend the application to review to include the substantiation decision of 20 March 2018. Further, I also consider that it is not necessary in all of the circumstances to strike out the substantiation decision of 2 July 2018 in relation to the application to review under s 47 of the QCAT Act.
  5. [53]
    It is appropriate in this matter to dismiss the application for miscellaneous matters filed by the applicant on 8 July 2018 under s 47 of the QCAT Act on the basis that the application is ‘misconceived; or lacking in substance’. This is because I have found that the decision of 2 July 2018 is a decision for the purposes of s 17 of the QCAT Act and I have decided to exercise my discretion under s 18 to review the decision of 2 July 2018. Further I have found that the Tribunal does not have the power to make a declaration under s 60(1) of the QCAT Act before the review proceeding is finally decided. I order accordingly.
  6. [54]
    In reviewing the first respondent’s decision of 2 July 2019, the Tribunal in arriving at the correct and preferable decision is duty bound to consider the matter afresh. The applicant and the first and second respondents should be given an opportunity to file any further written submissions prior to the matter being listed for a further oral hearing. I make directions accordingly. 

Footnotes

[1] Application to review filed by the applicant on 6 July 2019 (OCR189-18).

[2] Application to review filed by the second respondent on 13 July 2018. See direction dated 12 September 2018 consolidating OCR189-18 and OCR192-18 and directing that the matter will proceed as OCR192-18.

[3] On 23 February 2019, the Tribunal made directions for the filing of an application together with submissions in respect of the jurisdiction issue. Following an oral hearing on 31 July 2019, further directions were made allowing the parties an opportunity to file further submissions and in the absence of a request for a further oral hearing, the matter would be determined on the papers.

[4] See s 11.20 and s 11.21 of the Amendment Act effective from 30 October 2019.

[5] Application for miscellaneous matters filed 8 July 2019 together with the applicant’s material, outline of written submissions dated 8 July 2019 and further submissions filed on 23 August 2019. See also first respondent’s outline of submissions filed on 24 July 2019, submissions on behalf of the first respondent filed on 20 September 2019, outline of submissions on behalf of the second respondent filed on 22 July 2019 and outline of further submissions on behalf of the second respondent filed on 9 September 2019.

[6] Applicant’s further submissions filed 23 August 2019.

[7] Applicant’s submissions filed 8 July 2019, [16]-[18].

[8] Ibid. See Firearm Distributors Pty Ltd v Carson [2001] 2 Qd R 26.

[9] [2001] 2 Qd R 26.

[10] Ibid 32.

[11] Applicant’s submissions filed 8 July 2019, [36].

[12] (2002) 209 CLR 597.

[13] Ibid [53] (Gaudron and Gummow JJ), [63] (McHugh J). See also applicant’s submissions filed 8 July 2019, [23].

[14] QCAT Act, s 9.

[15] See s 9 and s 6 of the QCAT Act.

[16] QCAT Act, s 17(1).

[17] [2013] QCAT 502.

[18] Ibid [50].

[19] Ibid [37].

[20] Ibid [37].

[21] JM Kelly (Project Builders) Pty Ltd v Queensland Building Services Authority [2013] QCAT 502, [57], [58].

[22] CC Act, s 219BA.

[23] QCAT Act, s 157(4).

[24] As defined in s 219BA of the CC Act.

[25] As defined in schedule 2 of the CC Act.

[26] JM Kelly (Project Builders) Pty Ltd v Queensland Building Services Authority [2013] QCAT 502, [60].

[27] QCAT Act, 19.

[28] Ibid, s 20.

[29] Ibid s 20.

[30] [2001] 2 Qd R 235.

[31] Ibid 257 (Thomas J).

[32] Ibid.

[33] Murray v Deputy Commissioner Stewart [2011] QCAT 583.

[34] Ibid [40].

[35] [2011] QCAT 583, [40] (Hon JB Thomas).

[36] Ibid.

[37] CC Act, s 219H(2).

[38] [2014] QCATA 326.

[39] Lee v Crime and Corruption Commission [2014] QCATA 326, [60].

[40] (1979) 41 FLR 328.

[41] JM Kelly, [65] and see Lawlor at 344.

[42] QCAT Act, s 60(2).

[43] Ibid, s 60(3).

[44] Ibid s 60(4).

[45] Kinsella v Gold Coast City Council [2014] QSC 65, [66]. See applicant’s further submissions filed 23 August 2019, [8].

[46] Ainsworth v Criminal Justice Commission (1992) 175 CLR 564, [582].

[47] Church of Scientology Inc v Woodward (1982) 154 CLR 25, 70-71 (Brennan J). See John Fairfax & Sons Ltd v Police Tribunal of New South Wales & Anor (1986) NSWLR 465, [470].

[48] John Fairfax & Sons Ltd v Police Tribunal of New South Wales & Anor (1986) NSWLR 465, [470] citing Forster v Jododex Australia Pty Limited (1972) 127 CLR 421, 435.

[49] [2014] QSC 65, [6], [77].

[50] Kinsella v Gold Coast City Council [2014] QSC 65, [66].

[51] Applicant’s further submissions filed 23 August 2019, [9].

[52] Section 219G of the CC Act confers power on the Tribunal for the purposes of s 17 of the QCAT Act.

[53] Applicant’s further submissions filed 23 August 2019, [9].

[54] See McNab Constructions Australia P/L v Queensland Building Services Authority [2013] QSC 057, [19].

[55] Applicant’s further submissions filed 23 August 2019, [9].

[56] Owen v Menzies [2013] 2 QD R 327, [345] (McMurdo P).

[57] QCAT Act, s 164(1) and see Owen v Menzies [2013] 2 QD R 327, [345].

[58] DMW v CGW (1982) 151 CLR 491, 509.  See also New South Wales v Kable (2013) 252 CLR 118, 133.

[59] John Fairfax & Sons v Police Tribunal of New South Wales & Anor (1986) 5 NSWLR 465, 476 (McHugh JA).

[60] See JM Kelly, [35] citing Skaines v Kovac Enterprises Pty Ltd [2007] 1 Qd R 98, 100-101.

[61] John Fairfax & Sons v Police Tribunal of New South Wales & Anor (1986) 5 NSWLR 465, 470. See discussion in Randall v Body Corporate for Runaway Cove Bayside CTS 25498 [2011] QCATA 10, 32, although the Tribunal did not expressly consider the power to grant a declaration under s 60(1) of the QCAT Act.

[62] Applicant’s further submissions, [10].

[63] Ibid, [11].

[64] Ibid, [12].

[65] Ibid, [12]-[13].

[66] Ibid, [13].

Close

Editorial Notes

  • Published Case Name:

    Acting Senior Constable Christopher Lee Wallis v Acting Deputy Commissioner D A (Tony) Wright and Crime and Corruption Commission

  • Shortened Case Name:

    Wallis v Acting Deputy Commissioner

  • MNC:

    [2019] QCAT 342

  • Court:

    QCAT

  • Judge(s):

    Member Browne

  • Date:

    11 Nov 2019

Appeal Status

Please note, appeal data is presently unavailable for this judgment. This judgment may have been the subject of an appeal.
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