Wellington v Assistant Commissioner Carless
[2021] QCATA 111
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- Unreported Judgment
- Wellington v Assistant Commissioner Carless[2021] QCATA 111
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Wellington v Assistant Commissioner Carless[2021] QCATA 111
Wellington v Assistant Commissioner Carless[2021] QCATA 111
QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL
CITATION: | Wellington v Assistant Commissioner Carless & Anor [2021] QCATA 111 |
PARTIES: | Barry Wellington (applicant/appellant) v Assistant Commissioner maurice carless (first respondent) CRIME AND CORRUPTION COMMISSION (second respondent) |
APPLICATION NO/S: | APL184-21 |
ORIGINATING APPLICATION NO/S: | OCR235-20 |
MATTER TYPE: | Appeals |
DELIVERED ON: | 3 September 2021 |
HEARING DATE: | On the papers |
HEARD AT: | Brisbane |
DECISION OF: | Senior Member Aughterson |
ORDERS: | The application to stay a decision filed on 30 June 2021 is refused. |
CATCHWORDS: | APPEALS AND NEW TRIAL – PROCEDURE – QUEENSLAND – STAY OF PROCEEDINGS – GENERAL PRINCIPLES AS TO GRANT OR REFUSAL – Where application to stay decision pending outcome of appeal – Whether stay should be allowed Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 145 Bryant v Commonwealth Bank of Australia [1996] HCA 3 Cellante and Ors v G Kallis Industries Pty Ltd [1991] 2 VR 653 Crime and Corruption Commission v Carless & Anor [2021] QCAT 216 Crinis v Ray White Paradise Group [2016] QCATA 90 Deputy Commissioner Stewart v Kennedy [2011] QCATA 254 Legal Services Commissioner v Baker [2005] QCA 482 Maher v Commonwealth Bank of Australia [2008] VSCA 122 Maund v Racing Victoria Ltd [2015] VSCA 276 Robb v The Law Society of the Australian Capital Territory (ACT G34 of 1996, 21 June 1996) Re Middle Harbour Investments Ltd (in liq) [1977] 2 NSWLR 652 Waltisbuhl v Queensland Racing Integrity Commission [2021] QCATA 94 |
REPRESENTATION: | |
Applicant/Appellant: | M Black of Counsel, instructed by Gnech and Associates |
First respondent: | M O'Brien, Senior Legal Officer |
Second respondent: | K Donovan, Principal Lawyer CCC |
APPEARANCES: | This matter was heard and determined on the papers pursuant to s 32 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) |
REASONS FOR DECISION
- [1]The present application is an application to stay a decision of the Tribunal in matter OCR235-20, pending a determination of the application for leave to appeal or appeal that decision.[1]
- [2]The decision in OCR235-20 was made on 8 June 2021 and the application for leave to appeal or appeal was filed on 30 June 2021. The application to stay a decision was filed on the same day as the appeal. On 12 July 2021, directions were issued for the filing of submissions, with further directions on 13 August 2021 granting extensions of time for filing. Submissions have now been filed by all parties.
- [3]In the underlying disciplinary proceedings, the applicant was charged with one matter of misconduct, alleging that:[2]
- (a)During a pursuit he instructed a junior constable to drive in a manner which posed an unacceptable risk to himself, other road users and members of the public;
- (b)He failed to comply with operational procedures and directions to abandon the pursuit;
- (c)He discharged his service issue firearm without justification.
- [4]The first respondent found the matter substantiated in in all respects. He imposed a sanction of reprimand and, in addition, though not as part of the sanction, directed the applicant to undertake specified professional development training.[3]
- [5]On review of that decision, the Tribunal at first instance set aside the first respondent’s decision and, in lieu, made orders that the applicant be demoted from Senior Constable level 2.10 to Constable level 1.6 for twelve months. It was further ordered that the applicant not be permitted to relieve in a higher position for a period of six months.
- [6]The principles governing the power to grant a stay pending an appeal were considered in Crinis v Ray White Paradise Group,[4] where Carmody J stated:
[37] A successful party is entitled to the fruits of its litigation. The orders of the Tribunal, exercising its original decision, are final, and not merely provisional subject to the initiation of appellate proceedings. The original jurisdiction of the Tribunal is not to be converted into a forum for the testing or refinement of arguments to be properly ventilated on appeal.
[38] Therefore, the applicant must present compelling reasons for the Appeal Tribunal to exercise its discretion to grant a stay of the operation of the original decision. This must be supported by sufficient evidence to establish the necessary facts relied on by the applicant in support of the stay.
[39] The applicant must satisfy the following criteria to obtain a stay of the original decision:
- the applicant must present a reasonably arguable case for obtaining effective relief in the substantive proceedings;
- the applicant must establish that a refusal of the stay would cause a material detriment to the applicant; and
- the applicant must demonstrate that the balance of convenience favours the granting of a stay of the operation of the original decision.
[40] These requirements are cumulative. If the applicant fails to discharge any one of the three requirements, the applicant must fail. (footnotes omitted)
- [7]Also, in Maher v Commonwealth Bank of Australia, Dodds-Stretton JA, with whom Redlich JA agreed, stated:[5]
[19] The principles governing a stay of execution of judgment pending the hearing and determination of an appeal are well established.
[20] Prima facie, a successful party is entitled to the benefit of the judgment obtained below and the presumption that the judgment is correct. The applicant for a stay therefore bears the onus of demonstrating that a stay is justified.
[21] In Cellante and Ors v G Kallis Industries Pty Ltd (‘Cellante’), Young CJ (with whom Brooking J agreed), cited with approval the observation of Mahoney JA (with whom Moffit P and Glass JA agreed) in Re Middle Harbour Investments Ltd (in liq) that:
…where an applicant for a stay has not demonstrated an appropriate case but has left the situation in the state of speculation or of mere argument, weight must be given to the fact that the judgment below has been in favour of the other party.
[22] Young CJ concluded that an applicant for a stay under Rule 66.16 must show special or exceptional circumstances to take the case out of the general rule that an appeal does not operate as a stay.[6]
[23] The Court has a wide discretion, which is not circumscribed by rigid rules. It should take into account all the circumstances of the case.
[24] In Scarborough’s v Lew’s Junction Stores Pty Ltd (approved in Cellante), Adam J recognized that special circumstances might exist where a successful appellant would be deprived of the fruits of the appeal if a stay of execution were not granted. In such a case, the appeal might be rendered nugatory.
[25] In Cellante, Young CJ stated that special circumstances would ‘exist where for whatever reason, there is a real risk that it will not be possible for a successful appellant to be restored substantially to his former position if the judgment against him is executed’.
[27] The prospect that the appeal may be rendered nugatory must be balanced against the principle that the successful party is entitled to the fruits of the judgment. A stay should not be granted unless there is at least an arguable ground of appeal, although otherwise speculation as to the ultimate prospects of success is usually inappropriate. (footnotes omitted)
- [8]
[29] … This is not ordinary civil litigation in which the contest is between two parties where a major consideration is whether it is reasonable to hold a successful party out from the benefit of a judgment. In Bryant v Commonwealth Bank of Australia [1996] HCA 3; (1996) 70 ALJR 306, 309 Kirby J observed that stays of the operation of decisions made under laws designed to protect the public “are in a class different from cases involving no more than the suspension of the operation of orders affecting to private litigants only”. The example given by His Honour was of the deregistration of a professional lawyer, but his observation was general in relation to the disciplinary process under laws designed to protect the public.
[30] In considering the principles upon which a stay should be granted of an order disbarring a lawyer, it has been observed that
.. This is not the usual instance of civil litigation in which the question is whether a reason is there to hold a successful party out of the benefit of the judgment … “reason” must be considered, not in the context of the judgment giving a benefit to a litigant, but rather as one designedly made to protect both the public and the reputation of the profession.
That is a statement of Finn J in Robb v The Law Society of the Australian Capital Territory in the Federal Court (ACT G34 of 1996, 21 June 1996) which was expressly approved by the Queensland Court of Appeal in Legal Services Commissioner v Baker [2005] QCA 482.
[31] Robb’s Case and Baker’s Case were decided in the context of the disbarment of solicitors, but the principles mentioned therein have relevance in all professional disciplinary proceedings, and in my view they have at least some relevance to proceedings of the present kind which involve the maintenance of public confidence in the police force which is of course a basic unit in the maintenance of law and order.
[32] In such circumstances a stay should not lightly be granted. When there is a need to maintain public confidence
[s]uch confidence is likely to be undermined if a practitioner whose right to practice is the subject of serious challenge is able to successfully call upon the court to exercise a discretion in his.. favour permitting him.. to continue in practice pending the ultimate determination.
[33] Considerations of this kind led to the following statement in para [28] of Baker’s Case, in which it had been conceded that the applicant had an arguable case on appeal. Notwithstanding this concession the stay was set aside.
In particular it should be accepted that an applicant for a stay of a recommendation that his name be removed from the role of Legal Practitioners should show a cogent reason for the stay, and he will not do so merely by showing that he will be unable to practise his profession until his appeal is heard and allowed.
[34] There are obvious distinctions between the disciplinary systems concerning lawyers, medical practitioners, other professional practitioners, and members of the police force. However there is a common thread in the disciplinary systems of groups who aspire to serve the public and have special powers or privileges, and the above statements, by analogy, are useful when considering whether or not a stay ought to be granted in cases of this kind.
- [9]The applicant submits that there is an arguable case, at least in relation to ground 2 of the appeal, and that the balance of convenience favours the granting of a stay.[9] Ground 2 of the appeal is that ‘the Tribunal’s decision is vitiated by error of law because the disciplinary sanction ordered by the Tribunal is legally unreasonable because it lacks an evident and intelligible justification when all relevant matters are considered’. Reference is made to the history of the matter, including the time taken to progress the disciplinary proceedings, failed criminal prosecutions, a period of over 4 years suspension, successful completion of proposed retraining, and that at the time of the Tribunal hearing the applicant had been performing duty for 14 months without negative incident.[10]
- [10]The applicant submits that there is an arguable case for two reasons. First, because there is illogicality in the Tribunal’s reasoning. It is submitted:
QCAT accepted that the Appellant had successfully completed all appropriate retraining and mentoring. It said that the order for a 12 month demotion was intended to be protective against the risk of the Appellant engaging in similar misconduct to that which occurred in 2015, but it did not identify what would be different in 12 months’ time. Nor is there any logical or evident basis for selecting 12 months from the date of the QCAT decision as being the point at which any such risk would no longer be a concern.
- [11]In fact, the observation as to the risk of the applicant engaging in similar misconduct was made in the broader context of the need to protect the public and to send a message to others. The learned Member stated:
[84] Given my conclusion that Wellington’s behaviour on 17 May 2015 was a matter of recklessness, probably borne of excitement, and that clouded his decision making despite his long training, leading to poor leadership, I find that there is reasonable prospect that Wellington may fall prey to the same behaviour again should a similar dynamic stressful situation arise like the incident of May 2015. Given his rank, he may find himself senior officer in charge supervising junior officers.
[85] Given that, and despite the fairly extensive retraining and supervision undertaken since his return to duty, I find his demotion to Constable pay point 1.6 for 12 months is the correct and preferable penalty, both as a protective measure and a message to others. He should not be permitted to relieve in a higher position for a period of six months
- [12]Another illogicality was said to be that in circumstances where he was demoted for 12 months he was permitted to relieve in a higher position after only 6 months. The applicant did not further develop this submission. In response to that submission, it might be said that any relieving position would be: at the discretion of the first respondent, in a specific and appropriate role, at an appropriate level, and subject to conditions in relation to supervision.
- [13]The second reason why it is said that there is an arguable case is because ‘when all relevant facts and circumstances are taken into account’ the demotion is excessive and unduly punitive. There is no reference to precedent as to sanction in analogous cases. The applicant simply refers to the facts that over 4 years of suspension has been served (albeit with pay), he has undertaken retraining and mentoring, and ‘has made a successful return to active policing duties’. Nothing is said of the need to protect the public and the reputation of and public confidence in the police force.
- [14]In relation to prejudice,[11] the applicant submits that if a stay is not granted there will be immediate income loss, even if it might later be recovered should the appeal be successful, his career ‘will be further stymied’, and his professional reputation will be significantly damaged. It is further submitted that if the decision is stayed ‘the status quo will remain without any compelling disadvantage to others’ and there is no ‘compelling disadvantage’ to the second respondent or to the public interest. It is said that the fact that a stay order ‘would simply enable the Appellant to continue to perform the duties he has been performing since August 2020 is a powerful factor’. This submission is not further developed, including, as a balancing exercise, by reference to the countervailing considerations of protection of the public and the reputation of and public confidence in the police force.[12]
- [15]In circumstances where not all relevant issues have been fully canvassed, the Tribunal should be cautious in drawing any definitive conclusions. However, as noted in Maher, it remains that the applicant has the onus of demonstrating that a stay is justified. Also, as noted in Crinis, not only must the applicant present a reasonably arguable case for obtaining effective relief in the substantive proceedings he must also demonstrate that the balance of convenience favours the granting of a stay of the operation of the original decision. In that regard, the applicant has simply asserted that there is no ‘compelling disadvantage’ to the second respondent or to the public interest, without reference to matters such as the maintenance of public confidence in the police force.
- [16]Given that the applicant, if successful, could make a claim for lost income arising from the demotion and that any damage to his professional reputation is likely to rest primarily on the ultimate outcome of the appeal, rather than on the outcome of the stay application, in my view the balance of convenience favours the refusal of a stay.
- [17]For the reasons outlined above, the application to stay a decision is refused.
Footnotes
[1]As to the power to grant a stay, see Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 145(2).
[2]Crime and Corruption Commission v Carless & Anor [2021] QCAT 216, [17]-[19].
[3]Ibid, [20].
[4][2016] QCATA 90, [37]-[40].
[5][2008] VSCA 122, [19]-[27]. See also Maund v Racing Victoria Ltd [2015] VSCA 276, [33]; Waltisbuhl v Queensland Racing Integrity Commission [2021] QCATA 94.
[6]As with s 145 of the Queensland Civil and Administrative Tribunal Act (QCAT Act), in effect, rule 64.25 of the Supreme Court (General Civil Procedure) Rules (Vic) provided that an appeal did not affect the operation of a decision, but, under rule 66.16, the court may make an order staying the operation of the decision. The rule itself did not require special or exceptional circumstances.
[7][2011] QCATA 254.
[8]Ibid, [29], per Hon James Thomas AM QC, Member.
[9]Appellant’s outline of submissions (re stay), 22, [28]-[31].
[10]Ibid, [23].
[11]Ibid, [28]-[31].
[12]See Submissions of the Crime and Corruption Commission in relation to the Applicant’s stay application, [12].