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Jones v McNab (No 2)[2019] QCAT 206

Jones v McNab (No 2)[2019] QCAT 206

QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL

CITATION:

Jones v McNab (No 2) [2019] QCAT 206

PARTIES:

LYNETTE JONES

(applicant)

v

BRUCE MCNAB

(respondent)

APPLICATION NO/S:

OCR297-18

MATTER TYPE:

Occupational regulation matters

DELIVERED ON:

31 July 2019

HEARING DATE:

On the papers

HEARD AT:

Brisbane

DECISION OF:

Member Browne

ORDERS:

  1. The application to review a decision filed 13 November 2018 is dismissed.
  2. The application for a non-publication order under s 66 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) is refused.

CATCHWORDS:

POLICE – INTERNAL ADMINISTRATION – DISCIPLINE AND DISMISSAL FOR MISCONDUCT – QUEENSLAND – where police officer was issued with a notice of temporary re-deployment and directions – where application to review a decision filed in the Tribunal –where Tribunal determined that the decision is not a ‘reviewable decision’ – whether application to review is lacking in substance

Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 3, s 47, s 66

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

Russell v Russell (1976) 134 CLR 495

REPRESENTATION:

Applicant:

M Black of Counsel

Respondent:

C Capper, Solicitor of the Queensland Police Legal Unit

APPEARANCES:

This matter was heard and determined on the papers pursuant to s 32 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) (‘QCAT Act’).

REASONS FOR DECISION

  1. [1]
    On 2 July 2019 I determined a question of jurisdiction about whether the respondent’s decision is a ‘reviewable decision’ for the purposes of s 219BA(1) of the Crime and Corruption Act 2001 (Qld) (‘CC Act’).
  2. [2]
    Further submissions have been received from the parties in compliance with directions made on 2 July 2019.
  3. [3]
    The issue before the Tribunal now is whether the application to review should be dismissed because I have determined that the Tribunal has no jurisdiction to review the respondent’s decision. Further, it is necessary to consider whether any non-publication orders should be made under s 66 of the QCAT Act.
  4. [4]
    The parties agree that, given the findings of the Tribunal about jurisdiction to review the respondent’s decision, it is no longer necessary for the Tribunal to consider whether the application to review was filed within time.[1] There is power under s 47 of the QCAT Act to dismiss a proceeding on the basis that the proceeding is ‘frivolous, vexatious or misconceived; or lacking in substance; or otherwise an abuse of process’.
  5. [5]
    I have determined that the Tribunal has no jurisdiction in respect of Ms Jones’ application. The application or proceeding is lacking in substance or is otherwise misconceived. The application to review a decision filed 13 November 2018 is dismissed and I order accordingly.
  6. [6]
    Turning to the question of whether it is necessary to make a non-publication order under s 66 of the QCAT Act in this matter, I have considered the written submissions filed. Relevantly, there is a broad discretionary power under s 66 of the QCAT Act to make an order prohibiting the publication of, amongst other things, information that may enable a person who has appeared before the tribunal, or is affected by a proceeding, to be identified. The Tribunal may make an order under s 66(1) of the QCAT only if it considers the order necessary to avoid interfering with the proper administration of justice; or to avoid endangering the physical or mental health or safety of a person; or to avoid offending public decency or morality; or to avoid the publication of confidential information or information which publication would be contrary to the public interest; or for any other reason in the interests of justice.
  7. [7]
    It is settled law that court proceedings are open and transparent to ensure integrity and independence of the courts. In Russell v Russell, Gibbs J held (footnotes omitted):

It is the ordinary rule of the Supreme Court, as of the other courts of the nation, that their proceedings shall be conducted "publicly and in open view" (Scott v. Scott). This rule has the virtue that the proceedings of every court are fully exposed to public and professional scrutiny and criticism, without which abuses may flourish undetected. Further, the public administration of justice tends to maintain confidence in the integrity and independence of the courts. The fact that courts of law are held openly and not in secret is an essential aspect of their character. It distinguishes their activities from those of administrative officials, for "publicity is the authentic hall-mark of judicial as distinct from administrative procedure". To require a court invariably to sit in closed court is to alter the nature of the court.[2]

 

  1. [8]
    Here, Ms Jones submits that a non-publication order under s 66 of the QCAT Act to the extent of de-identifying the parties would be appropriate. Ms Jones submits that  one of the directions given to her as part of the respondent’s decision is that she ‘keep the matter of this notice confidential’. Ms Jones further submits that although the reasons for the respondent’s confidentiality direction have not been set out, the decision stated that certain allegations were ‘currently under investigation’ and that the re-deployment was necessary ‘pending an outcome of this investigation’. Ms Jones says that she is not privy to the details of the continuing investigation, but she is nevertheless subject to the continuing direction of confidentiality.[3]
  2. [9]
    I am not satisfied that a non-publication order to the extent that the parties names should be de-identified, as submitted by Ms Jones, is appropriate in this matter. Although the respondent’s decision directs Ms Jones to, amongst other things, keep the matter of the notice confidential, Ms Jones has failed to convince me that a non-publication order ought to be made. Indeed the respondent, whilst noting the direction issued to Ms Jones to keep the notice confidential, submits that the purpose of the direction was to ‘ensure the integrity of the investigation’ and to ensure the investigation was not prejudiced and has no bearing on whether or not a non-publication order should be made in these proceedings,[4]
  3. [10]
    Further, the respondent submits and I accept that the Tribunal’s decision and its reasons do not contain any information which could be said to prejudice any ongoing investigation which would necessitate the making of a non-publication order. The common law requires that the administration of justice take place in open court.[5] Here, there is no basis for making an order prohibiting the publication of the names of the parties. The application for a non-publication order under s 66 of the QCAT Act is refused.

Footnotes

[1]Applicant’s outline of submissions filed 9 July 2019 and submissions on behalf of the respondent filed 17 July 2019.

[2]Russell v Russell (1976) 134 CLR 495, 520 (Gibbs J).

[3]Applicant’s outline of submissions filed 9 July 2019.

[4]Submissions on behalf of the respondent filed 17 July 2019.

[5]See John Fairfax & Sons Ltd v Police Tribunal of New South Wales (1986) 5 NSWLR 465, [476]-[477] (McHugh JA).

Close

Editorial Notes

  • Published Case Name:

    Jones v McNab (No 2)

  • Shortened Case Name:

    Jones v McNab (No 2)

  • MNC:

    [2019] QCAT 206

  • Court:

    QCAT

  • Judge(s):

    Member Browne

  • Date:

    31 Jul 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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