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Young v Assistant Commissioner Dawson[2020] QCATA 160

Young v Assistant Commissioner Dawson[2020] QCATA 160

QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL

CITATION:

Young v Assistant Commissioner Dawson [2020] QCATA 160

160PARTIES:

lucas young

(applicant/appellant)

v

assistant commissioner dawson

(respondent)

APPLICATION NO:

APL044-19

ORIGINATING APPLICATION NO:

OCR285-17

MATTER TYPE:

Appeals

DELIVERED ON:

27 November 2020

HEARING DATE:

31 March 2020

HEARD AT:

Brisbane

DECISION OF:

Senior Member Howard, Presiding Member

Member Browne

ORDERS:

  1. Leave to appeal granted on Grounds 2 and 4.
  2. Appeal allowed on Grounds 1, 2, 3 and 4.
  3. Order 1 of the Tribunal’s decision of 24 January 2019 that Matters 1(iii) and 1(vii) is confirmed is set aside and the following decision is substituted:

That part of the decision made by Assistant Commissioner Alastair Dawson on 1 December 2017 to substantiate a finding of misconduct in Matters 1(iii) and 1(vii) is set aside on the basis that the allegations are not proven to the required standard.

CATCHWORDS:

APPEAL AND NEW TRIAL – APPEAL – GENERAL PRINCIPLES – INTERFERENCE WITH DISCRETION OF COURT BELOW – IN GENERAL – WRONG PRINCIPLE – GENERALLY – where proceeding is a review of disciplinary charges – whether wrong principle applied – whether tribunal misdirected itself as to the tribunal’s function in a review proceeding – whether tribunal misdirected itself by addressing wrong question or failing to address submission – whether tribunal acted upon a wrong principle or allowed an irrelevant matter to guide or affect decision – where allegation or charge relates to a pattern of conduct – whether allegation or charge is vague, insufficiently particularised or bad at law – obligation of disciplinary authority to give sufficient particulars

APPEAL AND NEW TRIAL – APPEAL – GENERAL PRINCIPLES – INTERFERENCE WITH JUDGE’S FINDINGS OF FACT – PROOF AND EVIDENCE – where error of law in applying wrong principle – where decision made against uncontradicted evidence – whether decision made contrary to weight of evidence – whether tribunal failed to make required finding of fact– where evidence is vague and indefinite or contains broad assertions or is limited or lacks particulars – whether charge or allegation which relates to a pattern of conduct is established on the evidence – whether evidence of a pattern of conduct fails to meet Briginshaw standard – whether evidence of a pattern of conduct comprises inexact proofs, indefinite testimony, or indirect inferences – where different judgement to be given on rehearing

Queensland Civil and Administrative Tribunal Act 2009 (Qld) 147(3)(b)

Berenyi v Maynard [215] QSC 370

Briginshaw v Briginshaw (1938) 60 CLR 336

Glenwood Properties Pty Ltd v Delmoss Pty Ltd [1986] 2 Qd R 388

House v The King (1936) 55 CLR 499

Kirk v Industrial Court (NSW) (2010) 239 CLR 531

McIver Bulk Liquid Haulage Pty Ltd v Fruehauf Australia Pty Ltd [1989] 2 Qd R 577

Pickering v McArthur [2005] QCA 294

Quilter v Mapleson (1882) 9 QBD 672

Victorian Stevedoring & General Contracting Co Pty Ltd v Dignan (1931) 46 CLR 73

Young v Assistant Commissioner of Police Dawson [2019] QCAT 8

APPEARANCES &

REPRESENTATION:

Applicant:

Black M, counsel instructed by Gilshenan and Luton Practice

Respondent:

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

REASONS FOR DECISION

 

  1. [1]
    On 1 August 2016, Senior Sergeant Lucas Young was directed to attend a disciplinary hearing concerning four matters of alleged misconduct.
  2. [2]
    At the time of the alleged conduct Mr Young had served as a police officer with the Queensland Police Service (‘QPS’) since 10 April 1987 and was the Senior Sergeant in charge of the Gold Coast Water Police Station (‘GCWPS’).
  3. [3]
    Assistant Commissioner Dawson (the ‘respondent’) found four of the matters of misconduct presented against Mr Young to be proven and demoted Mr Young in rank from Senior Sergeant paypoint 4.52 to Sergeant paypoint 3.1. The respondent also directed Mr Young to participate in a Management Action Plan.[1]
  4. [4]
    Mr Young applied to the Tribunal to review the respondent’s decision and contested the findings of substantiation for particulars (iii), (vii) and (ix) of Matter 1. Relevantly, Matter 1 concerned alleged improper conduct occurring between 1 June 2010 and 6February 2015, inclusive at the Gold Coast in that Mr Young engaged in negative workplace behaviour with members of the Gold Coast Water Police.[2]
  5. [5]
    Particular (iii) of Matter 1 alleged that when an officer confronted Mr Young concerning him calling the relevant officer ‘puss nuts’, Mr Young retaliated by having the gym (that was being used by QPS members) dismantled. Particular (vii) of Matter1 alleged that Mr Young spoke to staff in a manner which was threatening, intimidating, demeaning and demoralising, such as threatening to move staff out of the GCWPS.[3]
  6. [6]
    On 24 January 2019, the Tribunal exercising its review jurisdiction found particulars (iii) and (vii) of Matter 1 to be substantiated and made final orders to confirm the respondent’s decision of 1 December 2017.[4]
  7. [7]
    The Tribunal below also found that part of the respondent’s decision to substantiate a finding of misconduct for particular (ix) of Matter 1 is not substantiated and ordered that that part of the respondent’s decision is set aside.
  8. [8]
    Mr Young wants to appeal the Tribunal’s decision and its findings in so far as particulars (iii) and (vii) of Matter 1 are substantiated.[5] Mr Young seeks final orders in allowing the appeal that the decision of the Tribunal to confirm the respondent’s decision made on 1 December 2017 to substantiate a finding of misconduct in Matter1(iii) and Matter 1(vii) be set aside and there be a substituted decision that the relevant particulars of Matter 1 are not substantiated.[6]
  9. [9]
    Mr Young’s application for leave to appeal or appeal falls into two parts.[7] There are two primary grounds of appeal that raise questions of law about the Tribunal’s findings for each of the particulars (iii) and (vii) of Matter 1 (Grounds 1 and 3, respectively). In the alternative, two further grounds of appeal are identified in respect of the Tribunal’s findings for each of the particulars (iii) and (vii) of Matter 1 that raise questions of mixed law and fact for which leave to appeal is required (Grounds 2 and 4, respectively).
  10. [10]
    Leave to appeal will usually be granted where there is a reasonable argument that the decision is attended by error, and an appeal is necessary to correct a substantial injustice to the applicant caused by that error.[8] The question of whether there is an issue of general importance, upon which further argument and a decision of the appellate court or tribunal would be to the public advantage, is also relevant.[9]
  11. [11]
    We are satisfied that leave to appeal should be granted for Grounds 2 and 4. For reasons discussed below, the Tribunal below made findings, in being satisfied that the relevant particulars of Matter 1 are proven, against the weight of evidence and in doing so overlooked important evidence. There is also a question of general importance that arises in Grounds 2 and 4 as to the Tribunal’s role in a review disciplinary proceeding and the findings that the Tribunal on review may make on the evidence before it. The sole task of the Tribunal on review is to arrive at the correct and preferable decision and, in assessing the evidence and determining whether the allegation is proven, the Tribunal on review must be satisfied on the balance of probabilities that the allegation is proven to the required civil standard commonly referred to as the Briginshaw standard.[10] Leave to appeal is granted.
  12. [12]
    Turning to Grounds 1 and 3, it is settled law that it is an error of law to act upon a wrong principle.[11] We are satisfied that Grounds 1 and 3 properly framed raise questions of law about the Tribunal’s function on review in assessing the evidence before it and finding the alleged misconduct proven. The Tribunal below in conducting a fresh hearing on the merits and in assessing the evidence must be satisfied that the allegations of misconduct concerning Mr Young are substantiated. This requires the Tribunal in a review proceeding to apply the common law standard of proof, being ‘on the balance of probabilities’, in being satisfied that the allegations are proven and that the conduct is misconduct upon the proper construction of that term.[12] The evidence before the Tribunal below in a police disciplinary review proceeding, subject to leave being granted to adduce fresh evidence, is the evidence that was before the respondent decision-maker. In the present matter, Grounds 1 and 3 identify errors in the learned Member’s findings made about Mr Young’s alleged conduct contrary to the weight of the evidence before him and the proper construction of the term misconduct. This raises questions of law.
  13. [13]
    In considering Mr Young’s application for leave to appeal and appeal it is convenient for us to firstly address and dispose of Grounds 1 and 2 of the appeal that relate to particular (iii) of Matter 1 and then proceed to consider Grounds 3 and 4 that relate to particular (vii) of Matter 1.

Grounds 1 and 2 - Appeal on questions of law and mixed fact and law for particular (iii) of Matter 1

  1. [14]
    In addressing Ground 1, Mr Young identifies two errors of law in the Tribunal’s finding that particular (iii) is substantiated, now set out below as follows:[13]
    1. (a)
      The Tribunal failed to consider the possibility that the QPS witnesses had an honest but mistaken perception or belief of the reason why the gym was dismantled, which was a submission seriously advanced by [Mr Young] and worthy of serious consideration.
    2. (b)
      The Tribunal misdirected itself in law by effectively asking itself whether it was ‘satisfied that collusion has been shown by the officers’ whose evidence was adverse to the applicant.
  2. [15]
    In addressing Ground 2, Mr Young identifies three errors of mixed fact and law in the Tribunal’s finding that particular (iii) is substantiated, now set out below as follows:[14]
    1. (a)
      The finding was against the weight of evidence.
    2. (b)
      The finding overlooked important evidence and gave undue weight to other evidence.
    3. (c)
      The Tribunal ought to have been satisfied, having regard to the Briginshaw standard, that the allegation was not substantiated.
  3. [16]
    At the oral hearing before the Appeal Tribunal, Mr Black appearing for Mr Young submitted that the Tribunal below misdirected itself in assessing the evidence. MrBlack submitted that the error lies in the learned Member’s approach to the evidence before him such as the QPS officers’ evidence about Mr Young’s conduct. Mr Black referred us to the Tribunal’s findings contained in the written Reasons for its decision (at paragraph [53]) in which the learned Member raised two propositions for the consistency of the officers’ evidence, that there has been collusion by the officers or the officers are independently truthful recalling events. As we understand MrBlack’s submission, the Tribunal below has fallen into error by misdirecting itself as to the task required on review; that is, to determine whether the allegations are substantiated on the required civil standard.

Grounds 1 and 2 - error in the Tribunal’s finding that the conduct in particular (iii) of Matter 1 is substantiated

  1. [17]
    In addressing Ground 1 of the appeal, Mr Young submits that whilst it was contended before the Tribunal in the proceeding below that there had been collusion between the officers it was also submitted in the proceeding below that there is a more compelling explanation for the perception held by the officers as to the reason why the gym was dismantled. Mr Young refers us to the following submission made to the Tribunal below in the review proceeding at first instance:[15]

Finally, a perception or belief amongst [the officers] of the reason why the gym was dismantled even if accepted as honest, does not support the serious allegation that Mr Young was motivated by ‘bad faith’ in the making the decision. Further, Mr Young submitted in the proceeding below that there is a more compelling explanation for that perception: namely the culture of ‘feelings of distrust and victimisation within the unit’ and the ‘mindset’ of a ‘persecution mentality’.[16]

  1. [18]
    In addressing Ground 2 of the appeal, Mr Young submits that findings were made against the weight of the evidence and involved the Tribunal overlooking important evidence or giving undue weight to other evidence.[17] Mr Young refers us to the Tribunal’s findings relevant to the removal of the gym and submitted that although the Tribunal referred to Mr Young’s evidence about disuse of the gym, it made no express findings about that issue. Mr Young refers us to the following evidence that he says was advanced by him in the Tribunal proceeding below:[18]
    1. (a)
      When the Applicant took up the role of OIC and GCWP in June 2010, there was an existing (but informal) gym set up in the station. It had been set up in the ‘equipment shed’ by some of the GCWP officers.
    2. (b)
      Upon taking up the OIC role, the Applicant encouraged staff to use the gym and suggested that Sergeant Kolka should formulate a fitness regime for staff.
    3. (c)
      Eventually, it was clear that ‘the gym was very rarely used’ and ‘[o]ver time it gathered dust and simply took up floor space’.
    4. (d)
      Officers began storing personal items in the shed and it became difficult to safely access police equipment stored in the shed.
    5. (e)
      Some of the GCWP officers applied to the QPS Sports and Recreational Association for gym equipment. However, that application was rejected, and the gym was declared to be an unapproved and unauthorised gym.
    6. (f)
      The GCWP staff had access to a nearby (about 2 km away) approved gym facility.
  2. [19]
    Mr Young submits that the Tribunal below erred in failing to make the factual findings (as set out by us in paragraph [18] above) either by overlooking the evidence or giving it insufficient weight. Mr Young submits that the Tribunal below erred in overlooking significant weaknesses with the officers’ evidence that was relied upon to support particular (iii) such as, amongst other things, the passage of time producing ‘incurable prejudice’ to Mr Young in terms of the officers’ evidence relevant to why the gym was dismantled. Mr Young says that there was a period of time from when the gym was dismantled in 2011 to when the complaint was made in 2014 and that it was impossible to know what potentially supportive evidence might have been lost.[19]
  3. [20]
    We have carefully considered the Tribunal’s findings relevant to particular (iii) of Matter 1 contained in the written Reasons in paragraphs [38] to [60], inclusive.
  4. [21]
    In paragraph [50] of the Reasons, the learned Member found that the removal of the gym equipment led to significant consternation amongst officers at the base and that there is no indication that there had been any consultation as to the removal of the gym equipment, or any organised procedure for the orderly removal of it.[20]
  5. [22]
    In paragraph [51], the learned Member found that Mr Young did abruptly and arbitrarily order the removal of the gym equipment and that the evidence of other officers is that Mr Young had voiced his unhappiness with Senior Constable McInnes.
  6. [23]
    In paragraph [52], the learned Member found that the evidence of the various officers contained in the statements of interviews which formed part of the material before the respondent (the section 21 material) is generally consistent both in theme and particulars.[21]
  7. [24]
    Critical to the Tribunal’s findings that particular (iii) of Matter 1 is proven, the learned Member identified two possibilities for the consistency of the officers’ evidence such that there has been collusion as part of a movement against Mr Young. On the other hand, the learned Member considered that the officers are independently truthfully recalling events. The relevant paragraph [53] of the Tribunal’s Reasons is now set out as follows:

One possibility for the consistency of the officers’ evidence is that there has been collusion as part of a concerted movement against Mr Young. The other possibility is that the officers are independently truthfully recalling events.[22]

  1. [25]
    The learned Member ultimately found that the statements of the officers is logically supported by the timing of events and he was not satisfied that collusion of the officers has been shown.[23] The learned Member found that the removal of the gym was ordered by Mr Young in retaliation against Senior Constable McIness. Further, the ordering of the removal of all of the gym equipment which belonged to several of the officers can properly be seen as collective punishment. The relevant paragraphs of the Tribunal’s Reasons are set out below as follows:
  1. [56]The combination of the short period of time between the confrontation between Mr Young and Officer A; Mr Young’s reportedly course descriptions of officers in his charge, notably Officer A; and the abrupt order for removal of the gym equipment (which was known to be identified with Officer A) strongly indicate that the removal was ordered by Mr Young in retaliation against Officer A.
  2. [57]In making an impulsive and retaliatory order for removal of the gym equipment, which would have the effect of upsetting and destabilising the work environment, Mr Young was not acting appropriately as would be expected of an Officer in Charge.
  3. [58]The deliberate and inappropriate acts by Mr Young in ordering removal of the gym equipment in reprisal against one of his officers, is a vindictive act which goes beyond responsible management.
  4. [59]It is also concerning that the action by Mr Young in ordering the removal of all of the gym equipment, which belonged to several of the officers, can properly be seen as collective punishment. The effect of collective punishment is that persons who have committed no breach, or acted wrongly in any way, are unfairly penalised without any form of due process. If there was a need to take management action against an individual officer, and an action in response was in order, such action by an Officer in Charge should only taken against the individual concerned and in a proper way.
  5. [60]I am satisfied to the Briginshaw standard that this particular of improper conduct, that Mr Young retaliated against Officer A by having the gym in the Gold Coast Water Police station dismantled, is substantiated as misconduct.
  1. [26]
    We accept Mr Young’s submission relevant to Ground 1 of the appeal that the Tribunal below in determining whether particular (iii) is proven wrongly confined itself to considering the two possibilities that it identified in paragraph [53] of the Reasons thereby failing to consider or resolve an important part of Mr Young’s case.[24] Further to that, we accept Mr Young’s submission that the Tribunal below failed to consider whether the so-called consistency of the officers evidence reflected no more than a ‘perception or belief amongst [officers] of the reason why the gym was dismantled’.[25]
  2. [27]
    We also accept Mr Young’s submission relevant to Ground 2 of the appeal that the Tribunal below overlooked important evidence or gave undue weight to other evidence about the reasons why the gym was dismantled such as, amongst other things, the gym was declared to be an unapproved and unauthorised gym.[26] MrYoung’s unchallenged evidence contained in the transcripts of interview that were before the Tribunal below was relevant to the issue of why the gym was dismantled. The Tribunal below summarised Mr Young’s evidence in paragraph [48] of its Reasons but did not make any finding about Mr Young’s evidence that was relevant to particular (iii) and the allegation of retaliation.
  3. [28]
    It was non-contentious in the Tribunal proceeding below that Mr Young had caused the gym to be dismantled and removed.[27] Mr Young accepted in the proceeding below that he had used the nickname ‘puss nuts’ in reference to the relevant officer at various times and that it was a ‘bad habit’.[28] Further to that, Mr Young denied in the proceeding below that he ‘retaliated’ by having the gym dismantled when the relevant officer raised the issue with him.[29]
  4. [29]
    Mr Young’s submission advanced in the proceeding below was to the effect that the gym was dismantled because it was not being used and the space was required for official purposes and that it was not removed as an act of retaliation.[30] There was evidence before the Tribunal below relevant to the reasons why the gym was dismantled contrary to the Tribunal’s finding, at paragraph [50] of its Reasons, that the gym equipment was removed without any obvious lead up. As set out by us in paragraph [18] above there was evidence before the Tribunal below relevant to MrYoung’s submission that he did not dismantle the gym in bad faith.
  5. [30]
    On a fair reading of the Tribunal’s Reasons, the learned Member did not consider the possibility that the officers’ had an honest but mistaken perception or belief of the reason why the gym was dismantled, a question that was clearly submitted by MrYoung in the Tribunal proceeding below.
  6. [31]
    The Tribunal below misdirected itself in law in addressing the question identified in paragraph [53] of the Reasons as to whether it was satisfied that collusion has been shown by the officers and failed to consider any other explanation including whether the consistency of the officers’ evidence reflected no more than a perception or belief held as to the reason why the gym was dismantled. The Tribunal below also failed to consider the weight of evidence relevant to the reasons why the gym may have been dismantled, such as that the gym was declared to be an unapproved and unauthorised gym and the staff had access to nearby approved gym facility.
  7. [32]
    The task required of the Tribunal below was to consider the evidence before it to determine whether the relevant particulars of the charge are proven to the required standard. The Tribunal below proceeded to address the propositions of collusion, and in doing so acted upon a wrong principal or allowed irrelevant maters to guide or affect its decision.[31] Further to that, the Tribunal below failed to consider the weight of evidence and overlooked important evidence, such as Mr Young’s evidence about disuse of the gym, in being satisfied to the required standard that particular (iii) is proven. Grounds 1 and 2 of the appeal are allowed.
  1. [33]
    In proceeding to rehear the matter it is open for us to find on the evidence before the Tribunal in the proceeding below that there was more than one reason for the dismantling of the gym by Mr Young.[32] The evidence of the officers such as SeniorConstable Finlay, summarised by the Tribunal below in paragraph [46] of the Reasons, should be considered carefully as it is not based on the officer’s own first‑hand knowledge or observations. Further to that, each of the officers’ evidence relevant to the removal of the gym and the reasons why the gym was removed should be considered together with other relevant evidence, including Mr Young’s evidence. MrYoung’s evidence in the disciplinary proceeding at first instance is that, amongst other things, the gym was not being used and the gym was not approved.[33] MrYoung’s evidence about the disuse of the gym was not challenged in the proceeding below.
  2. [34]
    It is established law that ‘judgment may be given as ought to be given if the case came at that time before the court of first instance’.[34] We find that in June 2010 there was an existing gym set up in the station and, upon Mr Young commencing in his role, he encouraged staff to use the gym. Further to that, we find that the gym was rarely used, was difficult to safely access and had been declared unapproved and unauthorised. The evidence from other officers, that Mr Young removed the gym as found by the Tribunal below as ‘collective punishment’, must be weighed against the unchallenged evidence that the gym was not approved and was not being used. As against MrYoung’s evidence, the officers may have been mistaken as to the reason why MrYoung removed the gym. The correct and preferable decision is that the allegation contained in particular (iii) of Matter 1 is not substantiated.
  3. [35]
    In proceeding under s 147(3)(b) of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) (‘QCAT Act’), Order 1 of the Tribunal’s decision of 24 January 2019, that Matter 1(iii) is confirmed, is set aside and the following decision is substituted:

That part of the decision made by Assistant Alastair Dawson on 1 December 2017 to substantiate a finding of misconduct in Matter 1(iii) is set aside on the basis that the allegation is not proven to the required standard.

  1. [36]
    We order accordingly.

Grounds 3 and 4 - Appeal on questions of law and mixed fact and law for particular (vii) of Matter 1

  1. [37]
    In addressing Ground 3, Mr Young identifies three errors in the Tribunal’s finding that particular (vii) is substantiated, now set out below as follows:[35]
    1. (a)
      The allegation in Matter 1 (vii) was bad at law because it was vague and insufficiently particularised.
    2. (b)
      The Tribunal limited itself to considering whether the witnesses adverse to the applicant had colluded or whether their evidence was truthful, thereby posing a false dichotomy and failing to consider whether those witnesses were merely unreliable.
    3. (c)
      On the findings of fact made by the Tribunal, it was not open to the Tribunal to conclude that Matter 1 (vii) was substantiated as ‘misconduct’ upon the proper construction of the term.
  2. [38]
    In addressing Ground 4, Mr Young identifies three errors of mixed fact and law in the Tribunal’s finding that particular (vii) is substantiated, now set out below as follows:[36]
    1. (a)
      The finding was against the weight of evidence.
    2. (b)
      The finding overlooked important evidence and gave undue weight to other evidence.
    3. (c)
      The Tribunal ought not have been satisfied, having regard to the Briginshaw standard, that the allegation was substantiated.
  3. [39]
    At the oral hearing before the Appeal Tribunal, Mr Black appearing for Mr Young submitted that the particulars of the allegation are vague and insufficiently particularised. As we understand Mr Black’s submission, it simply was not open to the Tribunal below, on the facts as found, to conclude that particular (vii) was substantiated as misconduct. At its highest, the conduct may have been a breach of discipline, but the Tribunal below only had jurisdiction to determine matters of misconduct.

Grounds 3 and 4 - errors in the Tribunal’s finding that the conduct in particular (vii) of Matter 1 is substantiated

  1. [40]
    In addressing Ground 3 of the appeal, Mr Young submits that it was contended in the Tribunal proceeding below that particular (vii) should be unsubstantiated on the basis that the allegation was vague and insufficiently particularised.[37] Mr Young relies on Kirk v Industrial Court (NSW)[38] and the established common law principle that a defendant is entitled to be told not only of the legal nature of the offence with which he or she is charged, but also the particular act, matter or thing alleged as the foundation of the charge.[39]
  2. [41]
    Mr Young submits that the obligation of the disciplinary authority to give sufficient particulars is a well-recognised aspect of procedural fairness.[40] Mr Young refers us to relevant authority in Berenyi v Maynard.[41] In Berenyi, Philippedes JA said that the requirements of natural justice impose an obligation on a prosecuting authority to ‘furnish particulars as will fairly enable the accused person to understand and to meet the case being made against him’.[42]
  3. [42]
    Mr Young submits that the Tribunal below, in considering the evidence of the officers, failed to direct itself to the correct question of whether it was satisfied on the basis of the sufficiently cogent evidence that the allegation of misconduct made against the applicant was established.[43]
  4. [43]
    In addressing Ground 4, Mr Young submits that the Tribunal below erred by placing undue weight on the evidence that was vague and indefinite such as, for example, broad assertions, made about Mr Young in the disciplinary proceeding at first instance, that Mr Young says went towards his management style. Further to that, Mr Young submits that the Tribunal below failed to give sufficient weight to the evidence relevant to whether he engaged in negative workplace behaviour and gave undue weight to other evidence of the officers.[44]
  5. [44]
    We have carefully considered the Tribunal’s findings relevant to particular (vii) of Matter 1 contained in its written Reasons in paragraphs [61] to [80], inclusive.
  6. [45]
    In paragraph [72] of the Reasons, the learned Member found that the particulars of the matter are quite broad as they describe a general behaviour and identified Mr Young’s submissions advanced in the hearing below that the charge is vague and the particulars are insufficiently particularised.
  7. [46]
    In paragraph [73], the learned Member observed that a charge in relation to overall behaviour must be general, in contrast to an allegation as to a specific incident or a specific action. The Tribunal below said a general behaviour is demonstrated by a pattern of similar actions.
  8. [47]
    In paragraph [74], the learned Member found that there is a consistent body of evidence from a number of officers as to Mr Young exhibiting negative workplace behaviour in speaking to police in ways that can be described as ‘threatening, intimidating, demeaning and demoralising’.
  9. [48]
    In paragraph [75], the learned Member found that the consistency of the officers’ evidence demonstrates collusion by the officers or that it represents truthful evidence. Further to that, the learned Member found in paragraph [77] that the threats to move officers should be seen in the context of the branch as being seen as a desirable location. The learned Member found the behaviour being ‘over the line’ moves it from a breach of discipline to misconduct. Ultimately, the learned Member found at paragraph [80] as follows:

I am satisfied to the Briginshaw standard that this particular of negative workplace behaviour, by speaking to Gold Coast Water Police staff in a manner which was threatening, intimidating, demeaning and demoralising, is substantiated as misconduct.

  1. [49]
    In the present matter, we accept Mr Young’s submission that, consistent with established authority in Kirk, the applicant or person subject to allegations being proven in a disciplinary proceeding is entitled to know the case against him or her. In the present matter that is a police disciplinary review proceeding, the respondent decision-maker has a duty to formulate the allegation properly at first instance and to furnish all material relevant to the allegation to the applicant or person subject to allegations. In the review proceeding, the respondent decision-maker has a duty to assist the Tribunal to arrive at the correct and preferable decision, such as ensuring that all relevant evidence is before the Tribunal on review, in order to establish that the allegation is proven to the required standard.[45]
  2. [50]
    In our view, the evidence before the Tribunal below does not support a finding that the allegations of behaviour that involve ‘threatening, intimidating, demeaning and demoralising’ conduct towards staff during the period from 1 June 2010 and 6February2015, inclusive is substantiated. The task required of the Tribunal below was to decide whether it was satisfied based on the evidence before it that the allegation as particularised was proven to the required standard. There was no fresh evidence or oral evidence before the Tribunal below. The Tribunal below was required to make findings based on the evidence that was before the decision-maker that included the transcripts of interview of a number of officers who worked with Mr Young and MrYoung himself. There was also an investigation report containing a detailed executive summary and other relevant documents that detailed a number of complaints referred by Ethical Standards Command (‘ESC’) about Mr Young’s conduct as a manager of the GCWP.[46]
  3. [51]
    We accept Mr Young’s submission that the evidence relevant to Mr Young ‘threatening to move staff out of the water police’ was very limited.[47] In paragraph [67] of the Tribunal’s Reasons, the learned Member referred to SeniorConstable Banyari’s evidence that Mr Young made threats to staff that ‘[i]t’s my way or the highway…’. Further, in paragraph [70], Sergeant Kolkka gave evidence that MrYoung after an argument said, ‘I’m going to transfer you to the Railway Squad because you are not supporting me…’.[48]
  4. [52]
    There was, however, evidence before the Tribunal below relevant to particular (vii) about a number of conversations Mr Young had with staff about poor performance, relieving at other stations and performing other duties that was relevant to Mr Young’s conduct and management of staff during the alleged period of time that the conduct took place.[49] There was also evidence that a number of officers, including the officers who gave evidence in the disciplinary interviews at first instance, who reported complaints about Mr Young’s management of staff. More importantly, a number of officers signed an agreed statement about Mr Young’s conduct.[50]
  5. [53]
    On a fair reading of the Tribunal’s Reasons, the learned Member did not properly consider that the allegations contained in particular (vii) were vague and insufficiently particularised and did not consider the weight of the evidence relevant to workplace conduct.
  6. [54]
    The task required of the Tribunal below was to determine whether the charge is proven to the required standard. Although the Tribunal below proceeded to address MrYoung’s proposition of the charge being quite broad, the learned Member proceeded to consider the evidence in the context of, as found in paragraph [73] of the Tribunal’s Reasons, Mr Young’s general behaviour demonstrated by a pattern of similar actions. Further to that, the Tribunal below failed to consider the weight of evidence and overlooked important evidence, such as Mr Young’s evidence about staff and poor performance and that a number of the officers may have acted together in collusion and their evidence is therefore unreliable. In the investigation report detailing the complaints referred by ESC on 3 July 2015, a number of officers alleged long standing workplace harassment by Mr Young.[51] A number of officers co-signed a statement setting out an agreed position now set out below as follows:[52]

I wish to show support of my officers who have been harassed and I am willing to provide a statement in relation to any negative workplace behaviour including harassment, or sexual harassment where I have been a victim or witness.

  1. [55]
    The ESC complaint and investigation material includes a document that sets out (by one officer) a summary of evidence that he considered other officers should give against Mr Young.[53] The investigation report and supporting documents are relevant to the allegation in particular (vii) of Matter 1 and the question of whether the officers’ evidence about Mr Young’s behaviour more generally in the workplace is reliable. The task of the Tribunal below was to consider all of the evidence before it in being satisfied to the required standard that particular (vii) is proven. The Tribunal did not properly consider all of the evidence by not considering whether the officers’ evidence was unreliable. Grounds 3 and 4 of the appeal are allowed.
  1. [56]
    In proceeding to rehear the matter it is open for us to find on the evidence before the Tribunal in the proceeding below that the officers’ evidence was unreliable.[54] There was a complaint made by Senior Constable Campbell on 18 November 2014 alleging workplace harassment and on 29 November 2014, ten different officers from the unit signed a joint statement.[55] The joint statement shows that the officers had discussed the matters closely amongst themselves and that they were willing to assert that they were suffering ‘mentally and physically’.[56] There is also evidence in the form of a document that sets out a summary of evidence that a particular officer considered other officers should give against Mr Young.[57] It is open for us to draw the reasonable inference that a number of officers who signed an agreed statement had an agreed position about Mr Young’s workplace conduct and the officers’ evidence should be approached with caution.[58]
  2. [57]
    It is established law that ‘judgment may be given as ought to be given if the case came at that time before the court of first instance’.[59] We are not satisfied to the required standard that particular (vii) of Matter 1 is proven. The allegations are vague and insufficiently particularised. The allegation identifies a period of some 4 years during which Mr Young is alleged to have spoken to staff in a manner which was threatening, intimidating, demeaning and demoralising such as threatening to move staff out of the water police unit. There is evidence to suggest that, in the absence of any particulars as to specific dates and time of the alleged conduct, the evidence of officers, although consistent as to Mr Young’s conduct or management style over a period of time, may be unreliable. The evidence does not meet the standard required to establish a finding of misconduct and is no more than ‘inexact proofs, indefinite testimony, or indirect inferences’.[60] The correct and preferable decision is that the allegation contained in particular (vii) of Matter 1 is not substantiated.
  3. [58]
    In proceeding under s 147(3)(b) of the QCAT Act, the relevant part of Order 1 of the Tribunal’s decision of 24 January 2019, that Matter 1(vii) is confirmed, is set aside and the following decision is substituted:

That part of the decision made by Assistant Alastair Dawson on 1 December 2017 to substantiate a finding of misconduct in Matter 1(vii) is set aside on the basis that the allegation is not proven to the required standard.

We make orders accordingly.

Footnotes

[1] Appeal Book, p 112.

[2] Applicant’s outline of submissions filed 5 May 2019 and see Appeal Book, p 108.

[3] Ibid.

[4] Young v Assistant Commissioner of Police Dawson [2019] QCAT 8 (‘the Reasons’).

[5] Application for leave to appeal or appeal filed 15 February 2019.

[6] Application for leave to appeal or appeal filed 15 February 2019.

[7] Ibid.

[8] Pickering v McArthur [2005] QCA 294 at [3] (Keane JA).

[9] Glenwood Properties Pty Ltd v Delmoss Pty Ltd [1986] 2 Qd R 388, 389 (Carter J); McIver Bulk Liquid Haulage Pty Ltd v Fruehauf Australia Pty Ltd [1989] 2 Qd R 577, 578 (Macrossan CJ), 580 (McPherson J).

[10] See Briginshaw v Briginshaw (1938) 60 CLR 336 (‘Briginshaw’).

[11] House v The King (1936) 55 CLR 499 (‘House v The King’).

[12] See Briginshaw as to the standard of proof required.

[13] Application for leave to appeal or appeal filed 15 February 2019 and see applicant’s outline of submissions filed 5 May 2019.

[14] Ibid.

[15] Applicant’s outline of submissions filed 5 May 2019, [26].

[16] Ibid.

[17] Ibid, [65].

[18] Ibid, [67]. See Appeal Book vol 1, p 211 and transcript of interview (of Mr Young), vol 4, Tab 101, p 1556.

[19] Applicant’s outline of submissions filed 5May2019, [69].

[20] Reasons, [50].

[21] Ibid, [52].

[22] Ibid, [53].

[23] Ibid, [54] and [55].

[24] Applicant’s outline of submissions filed 5 May 2019, [29].

[25] Ibid.

[26] Ibid, [67].

[27] Ibid, [25].

[28] Ibid, [66].

[29] Ibid.

[30] Ibid, [25] and see respondent’s outline of submissions filed 20 June 2019, [5].

[31] House v The King, 504-5.

[32] Pursuant to s 147(3)(b) of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) (‘QCAT Act’).

[33] Reasons, [48].

[34] Victorian Stevedoring & General Contracting Co Pty Ltd v Dignan (1931) 46 CLR 73, per Dixon J at 107 (‘Victorian Stevedoring & General Contracting Co v Dignan’), citing Quilter v Mapleson (1882) 9 QBD 672 (‘Quilter v Mapleson’).

[35] Ibid.

[36] Ibid.

[37] Applicant’s outline of submissions filed 5 May 2019, [34].

[38] (2010) 239 CLR 531 (‘Kirk’).

[39] Ibid, [26] and see Applicant’s outline of submissions filed 5 May 2019, [40].

[40] Applicant’s outline of submissions filed 5 May 2019, [76].

[41] [215] QSC 370 (‘Berenyi’); and see submissions, ibid, [41].

[42] Berenyi, [80]; and see Applicant’s outline of submissions filed 5 May 2019, [41].

[43] Applicant’s outline of submissions filed 5 May 2019, [49].

[44] Ibid, [78].

[45] See respondent’s outline of submissions filed 20 June 2019, [17] and see applicant’s submissions in reply filed 12 June 2019, [3].

[46] Appeal Book, Part B, p 319.

[47] Applicant’s outline of submissions filed 5 May 2019, [77].

[48] Ibid.

[49] Ibid, [78] and see Appeal Book, vol 1, p 216-8.

[50] Appeal Book, Part B, p 319.

[51] Ibid, p 319.

[52] Ibid, p 321.

[53] Ibid, p 464-470 and see applicant’s submissions filed 5 May 2019, [83].

[54] Pursuant to s 147(3)(b) of the QCAT Act.

[55] Applicant’s outline of submissions filed 5 May 2019, [83].

[56] Appeal Book, vol 1, p 471.

[57] Ibid, p 464-470.

[58] See Applicant’s outline of submissions filed 5 May 2019, [83].

[59] Victorian Stevedoring & General Contracting Co v Dignan, per Dixon J at 107, citing Quilter v Mapleson.

[60] Applicant’s outline of submissions filed 5 May 2019, [86] and see Briginshaw, 362.

Close

Editorial Notes

  • Published Case Name:

    Young v Assistant Commissioner Dawson

  • Shortened Case Name:

    Young v Assistant Commissioner Dawson

  • MNC:

    [2020] QCATA 160

  • Court:

    QCATA

  • Judge(s):

    Member Browne, Senior Member Howard, Presiding Member

  • Date:

    27 Nov 2020

Appeal Status

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

Cases Cited

Case NameFull CitationFrequency
Berenyi v Maynard [2015] QSC 370
3 citations
Jump To
Cite 1 - [2015] QSC 370
Cite 2 - [2015] QSC 370
Cite 3 - [2015] QSC 370
Briginshaw v Briginshaw (1938) 60 C.L.R 336
3 citations
Jump To
Cite 1 - (1938) 60 C.L.R 336
Cite 2 - (1938) 60 C.L.R 336
Cite 3 - (1938) 60 C.L.R 336
Glenwood Properties Pty Ltd v Delmoss Pty Ltd[1986] 2 Qd R 388; [1986] QSC 221
2 citations
Jump To
Cite 1 - [1986] 2 Qd R 388
Cite 2 - [1986] 2 Qd R 388
House v The King (1936) 55 CLR 499
2 citations
Jump To
Cite 1 - (1936) 55 CLR 499
Cite 2 - (1936) 55 CLR 499
Kirk v Industrial Court (NSW) (2010) 239 CLR 531
3 citations
Jump To
Cite 1 - (2010) 239 CLR 531
Cite 2 - (2010) 239 CLR 531
Cite 3 - (2010) 239 CLR 531
McIver Bulk Liquid Haulage Pty Ltd v Fruehauf Australia Pty Ltd[1989] 2 Qd R 577; [1989] QSCFC 53
2 citations
Jump To
Cite 1 - [1989] 2 Qd R 577
Cite 2 - [1989] 2 Qd R 577
Per Jessel Mr in Quilter v Mapleson (1882) 9 QBD 67/2
2 citations
Jump To
Cite 1 - (1882) 9 QBD 67/2
Cite 2 - (1882) 9 QBD 67/2
Pickering v McArthur [2005] QCA 294
2 citations
Jump To
Cite 1 - [2005] QCA 294
Cite 2 - [2005] QCA 294
Victorian Stevedoring and General Contracting Company Pty Ltd v Dignan (1931) 46 C.L.R., 73
3 citations
Jump To
Cite 1 - (1931) 46 C.L.R., 73
Cite 2 - (1931) 46 C.L.R., 73
Cite 3 - (1931) 46 C.L.R., 73
Young v Dawson [2019] QCAT 8
2 citations
Jump To
Cite 1 - [2019] QCAT 8
Cite 2 - [2019] QCAT 8

Cases Citing

Case NameFull CitationFrequency
Jones v Acting Assistant Commissioner Horton [2021] QCAT 2098 citations
Young v Dawson (No. 2) [2022] QCAT 482 citations
1

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