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Willmott v Carless[2021] QCATA 132

QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL

CITATION:

Willmott v Carless [2021] QCATA 132

PARTIES:

paul john willmott

(applicant/appellant)

v

Assistant commissioner maurice carless

crime and corruption commission

(respondents)

APPLICATION NO/S:

APL162-21

ORIGINATING

APPLICATION NO/S:

OCR083-21

MATTER TYPE:

Appeals

DELIVERED ON:

5 November 2021

HEARING DATE:

On the papers

HEARD AT:

Brisbane

DECISION OF:

Judicial Member D J McGill SC

ORDERS:

  1. Leave to appeal is granted.
  2. The appeal is allowed.
  3. The decision of the Tribunal of 17 May 2021 is set aside. 
  4. In lieu thereof, it is ordered that the part of the decision of the first respondent of 1 March 2021 the subject of the review proceeding OCR083-21 which provided that the applicant was subject to a local transfer to a general duties position, be stayed on condition that he not return to the particular location at which he worked at the time of the events giving rise to the disciplinary action, but remain within that Unit of the Police Service. 
  5. The application for a stay is otherwise refused. 
  6. Any party seeking an order for costs is to file and serve on the other parties submissions in writing setting out the order sought, and the arguments in support of that order, within fourteen days from the date of this decision.  If such submissions are filed, I will give further directions; otherwise, there be no order as to costs.  

CATCHWORDS:

POLICE – INTERNAL ADMINISTRATION – DISCIPLINE AND DISMISSAL – QUEENSLAND – review of decision – stay of sanction pending determination of the review – significance of public interest – whether factual error affected discretion – discretion re-exercised – part of sanction stayed

ADMINISTRATIVE LAW – ADMINISTRATIVE TRIBUNALS – QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL – stay of decision pending review – whether stay desirable – police disciplinary matter – significance of public interest – test applied – whether error of fact – discretion re-exercised – part of sanction stayed

Queensland Civil and Administrative Tribunal Act 2009 (Qld) s 22

Aldrich v Boulton [2001] 2 Qd R 235

Deputy Commission Stewart v Kennedy [2011] QCATA 254

Jones v Acting Assistant Commissioner Horton [2020] QCAT 304

Legal Services Commissioner v Baker (No 1) [2006] 2 Qd R 107

Applicant:

M Black instructed by Gilshenan & Luton Legal Practice

Respondent:

Queensland Police Service Legal Unit for the first respondent.

K Donovan Principal Lawyer for the second respondent.

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. [1]
    The applicant is a serving police officer.  On 20 November 2020 and 1 March 2021 the first respondent made decisions in disciplinary proceedings against him.  The applicant has applied to the Tribunal to review those decisions, and applied to the Tribunal to stay the sanctions imposed by the first respondent pending the hearing and determination of that review.  On 17 May 2021 a Member dismissed the application for stay.  The applicant now seeks leave to appeal from that decision. 
  2. [2]
    The applicant requires leave to appeal against the decision of the Member under the Queensland Civil and Administrative Tribunal Act 2009 (Qld) (“the QCAT Act”) s 142(3)(a)(ii).   As a general proposition, when leave to appeal to the Appeal Tribunal is required, it will be granted only where there is a reasonable argument that the decision was attended by error, and an appeal is necessary to correct a substantial injustice caused by that error, or where the appeal raises a question of general importance upon which further argument and a decision of the Appeal Tribunal would be to the public advantage.[1]  It is well established that appeal courts are reluctant to interfere in decisions involving interlocutory or procedural matters.[2]
  3. [3]
    Under the QCAT Act s 22(3) the Tribunal may stay the operation of all or part of a reviewable decision if a review proceeding has started.  A stay may be ordered only if the Tribunal considers it desirable, having regard to the matters set out in s 22(4).  The order may be conditional, or subject to an undertaking by the applicant, or may provide for the stay to be lifted in certain circumstances: s 22(6). 

Submissions of applicant

  1. [4]
    The applicant advanced two particular grounds of challenge to the decision to refuse the stay:
    1. (a)
      The Tribunal adopted a wrong principle of law by requiring that cogent reasons be demonstrated before a stay would be ordered under the QCAT Act s 22.
    2. (b)
      The Tribunal’s finding that a stay was against the public interest because it would not be conducive to workplace harmony was contrary to the evidence. 
  2. [5]
    As to the first point, it was submitted that this was based on what was said by the Hon J B Thomas QC in Deputy Commission Stewart v Kennedy [2011] QCATA 254 at [35], and that that proposition was obiter and should not be followed, or in the alternative, should be confined to cases involving dismissal from the Police Service.  That decision had been influenced by the decision in Legal Services Commissioner v Baker (No 1) [2006] 2 Qd R 107, which was regarded as authority for the proposition that a stay of a recommendation that a practitioner’s name be removed from the roll would be granted only if cogent reasons were shown, and that merely showing that there would be in inability to practice was insufficient.  But the situation was different here, because there was no finding that the applicant was unfit to be an officer, and the applicant had a right to have a review of the decision by the Tribunal which involving a hearing de novo[3] with the onus on the respondent Deputy Commissioner.[4]  It was necessary to treat the legislative scheme under which the action against the applicant was taken as a fundamental element in weighing the competing considerations.[5] 
  3. [6]
    It was submitted that the decision in Kennedy (supra) involved an appeal against the stay of a disciplinary decision imposing dismissal of the officer, which was allowed on the ground that no consideration had been given to the question of whether there was an arguable case for the applicant.  The stay decision had considered only the factors in s 22(4) and that was held to be an error, as its effect was to add to the considerations which would otherwise have been applicable anyway on an applicant for a stay pending appeal.[6]  The Judicial Member went on to conclude that there was no arguable case of error, and on that basis refused the stay.  In those circumstances, it was submitted that the question of the strength of the reasons necessary to support the stay of the disciplinary decision pending review did not arise. 
  4. [7]
    It was further submitted that Baker (supra) was also distinguishable, because there are powers available under the Police Service Administration Act 1990 (Qld) to deal with a situation where there is a serious challenge to the fitness of an officer which allow some measure of flexibility pending the completion of the review of the decision, and that this decision did not involve a case where there had been a finding that the applicant was unfit to be a Police Officer.  Reference was made in particular to the passage in Baker (supra) from the judgment of Chesterman J at [28], including: “The additional factors which would justify a stay must be such as outweigh the public interest in having unfit practitioners debarred from practice.” 
  5. [8]
    As to the second point, the behaviour the subject of the disciplinary charge occurred within part of a particular operational unit located at a particular place, and while the disciplinary proceedings were underway the applicant had been moved to a different office in the same operational unit.  It was submitted that there was no evidence that it would not be conducive to workplace harmony or the smooth operation of the unit for him to continue to work at that place pending the review, and there was evidence from other officers, including the officer in charge of the unit at that place, which was favourable to the applicant.  In these circumstances, it was submitted that the finding to the contrary of the Tribunal at first instance was contrary to the evidence and was unjustified, and that it had led the Tribunal into error.  

Submissions of respondents

  1. [9]
    As to the first point, the first respondent submitted that the decision in Kennedy (supra) was correct, and that it was correctly applied by the Tribunal in the present case.[7]  It was submitted that the maintenance of public confidence in the Police Service was a very important factor in determining the public interest, because of the important role of police officers in the maintenance of law and order, and the special powers vested in them.  It was submitted that public confidence in the Police Service would be eroded if the disciplinary action taken against the applicant were stayed.  In those circumstances, it was submitted that the applicant did need to show cogent reasons for the grant of a stay, and that he had failed to do so. 
  2. [10]
    As to the second point, it was submitted that the Tribunal had correctly identified the importance on public interest grounds of a disciplinary sanction being implemented, and that the matters raised by the applicant were not sufficient to outweigh those public interest considerations.  This was a matter of discretion for the Tribunal, and it had not been shown that the exercise of discretion by the Tribunal had miscarried.  As well, the first respondent challenged the finding by the Tribunal that an arguable ground of appeal had been shown. 
  3. [11]
    The second respondent largely adopted the position of the first respondent.  Reference was made to a recent statement of the general grounds of a stay pending appeal by the Court of Appeal,[8] and submitted that the Tribunal had given proper weight to the negative effects on members of the Police Service, and on the public confidence in the Police Service, of the substantiated conduct, in the absence of any immediate consequences of the disciplinary decision.  It was submitted that confidence in the Police Services requires confidence in the effectiveness of the Police disciplinary system, and that would be undermined by not giving effect to the sanction imposed under it.  It was submitted that there was no reason to disagree with the finding that the applicant’s personal circumstances do not outweigh the need to preserve public confidence in the Police disciplinary process.  If the decision is read as a whole, and without an over-critical analysis of the wording adopted, this was just an example of a case where an applicant for review had failed to show that in all the circumstances a stay was desirable. 

Consideration

  1. [12]
    The Member referred at [6] to the relevant provision of the QCAT Act, and correctly noted that it was relevant to consider whether the applicant has an arguable case on the review, and whether the balance of convenience favours a stay, as well as the s 22(4) factors.  The Member was well aware of the applicable provision of the Act, and the test it laid down.  The Member then considered the position in relation to an arguable case on review, and concluded that the applicant may have an arguable case on review, noting that issues raised included whether the evidence is sufficient to substantiate the findings, whether the findings amount to misconduct, and the appropriateness of the sanction. 

Arguable case on the review

  1. [13]
    Given the respondents’ challenge to this finding by the Member, I should say a little about this aspect.  The applicant was charged with one matter, improper conduct, in that he demonstrated unacceptable workplace behaviour towards officers attached to a particular Unit.  Eight paragraphs of particulars were provided, the eighth having six sub-paragraphs, although the first was uncontroversial and the second was in the nature of a summary.  The first respondent found particulars 3, 4, 5, 6 and 8 (a), (b), (d) and (f) proved; particular 7 was regarded as not supporting the matter charged.  The effect of the proved particulars was regarded, when taken together, as establishing particular 2 and hence improper conduct for the purposes of the Police Service Administration Act 1990 (Qld).  The relevant conduct was, in summary, conduct to denigrate and undermine the officer in charge of the office where he worked at the time.  The application to review the decision said it was on the grounds that the decision was wrong in fact and law; that the first respondent ought to have found that the allegations were not proved or did not amount to misconduct; and the sanction imposed ought not to have been imposed.  Since the decision at first instance, an outline of submissions in the substantive review has been filed, but the Member had to rely on the submissions on the stay. 
  2. [14]
    Given the decision in Kennedy (supra), it would be wrong to say that an applicant for a stay does not need to show an arguable case on the review, but when considering the application of this requirement, it is important to bear in mind that the applicant has a right to a review by the Tribunal of the decision of the first respondent, and on that review the first respondent has the onus, and there is no presumption that the decision under review is correct.  The requirement for an arguable case arose in the context of an appeal to an appellate court.  Whether this is an appeal in the strict sense, or an appeal by way of rehearing, it is always necessary for the appellant to show error of some kind in the decision under appeal; but that is not the case with a review. 
  3. [15]
    There remain the facts that there is available a decision of a decision maker, and it is open to the Tribunal, in considering an application for a stay, to have regard to that decision for any obvious deficiencies, and to consider, at least briefly, what the applicant for the review has to say about it, and why there might be reason to think that a review might produce a different result.[9]  If the decision under review looks reasonable enough, and the applicant’s case appears to boil down to little more than the proposition that reasonable minds may differ about the matter, this consideration will not support an application for a stay. 
  4. [16]
    There is also the consideration that the QCAT Act s 22 needs to be considered as a whole.  The starting point is that the start of a proceeding for review does not affect the operation of the decision under review, or prevent its implementation: s 22(1).[10]  A review may be a rehearing de novo, but on an application for a stay, the applicant has the onus of showing that a stay is desirable.  The effect of the decision in Kennedy is that an essential part of that process is showing that there is some good reason to think that the outcome on review may well be different from that reached by the decision maker.  I do not consider that that decision was in error in requiring that this step be taken, although the content needs to be understood in the context of the nature of the review provided for by the QCAT Act.[11] 
  5. [17]
    There is also the consideration that, if it is possible to show that there is a very good reason to think that the decision under review is wrong, that may not just satisfy a necessary requirement for a stay, but provide powerful support for one.  This consideration is a requirement for an applicant for a stay, but it can, depending on the circumstances, provide useful support for the desirability of a stay.[12]  In the present case, the applicant’s submissions are to the effect that some of the particulars are supported by only limited evidence, or relate to the same incident as other particulars, and that the relevant conduct did not amount to misconduct.  There is no reason to differ from the finding of the Member; there is nothing which suggests that the applicant’s prospects on a review are good enough to provide particular support for a stay.  

Effect on applicant

  1. [18]
    When considering the balance of convenience, and the factor in s 22(4)(a), it is necessary to consider the sanction imposed.  This was a reduction in rank from Sergeant to Senior Constable with a related reduction in pay level, a prohibition on promotion for a particular period, whether temporary or permanent, a move away from the particular Unit in which the applicant had worked for some years, and a requirement to undertake certain professional development.  The applicant submitted that the transfer to other duties would mean a loss in overtime which would not be made up if the review succeeded,[13] although the loss in salary would, and that he would suffer reputational harm within the Police Service regardless of the outcome of the review.  It was also said that a move to other duties would make it more difficult for the applicant to return to his previous position if ultimately cleared of the charge. 
  2. [19]
    The Member also referred to the loss of a chance for the applicant to progress his career.  He said that most of the adverse effects could be rectified if the review were successful, and that they did not outweigh the public interest factors.  The decision of the Member focused on these factors, which he described as the public aspect of staying orders in police disciplinary proceedings.  He went on to explain why there was a strong public interest in the decisions in police disciplinary matters being implemented notwithstanding a pending review, with reference to things that had been said in a number of earlier decisions. 

Previous decisions

  1. [20]
    In Aldrich v Boulton [2001] 2 Qd R 235 the purpose of Police disciplinary and misconduct proceedings was said at [42], by reference to authority, to be “the protection of the public, the maintenance of public confidence in the Service and the maintenance of integrity in the performance of police duties … .  The provision of some outside surveillance is hardly surprising in such a context.”  At that time, this occurred by an appeal to a Misconduct Tribunal.  The case does not deal with any issue of a stay pending an appeal.
  2. [21]
    In Kennedy (supra) the Hon J B Thomas QC did comment on the balance of convenience, although deciding the appeal on the ground of the absence of any arguable ground of error in the decision under review.  In relation to the balance of convenience, he said at [29] that “of far greater significance is the public aspect of staying a dismissal in police disciplinary proceedings.”  He said that such a proceeding is different from ordinary civil litigation, and cited some remarks of Kirby J about laws to protect the public.[14]  He referred to decisions involving the disbarring of a lawyer,[15] and said that the principles were relevant to all professional disciplinary proceedings, and had some relevance in proceedings involving the maintenance of public confidence in the police force: [31]. 
  3. [22]
    He went on to say at [32] that “In such circumstances a stay should not be lightly granted.”  He referred to other statements in Baker (supra) and said at [34] that while there were obvious distinctions between professionals and members of the police force, “there is a common thread in the disciplinary systems of groups who aspire to serve the public and have special powers or privileges” and that the statements quoted were “useful when considering whether or not a stay ought to be granted in cases of this kind.”  He then said at [35]: “In my view cogent reasons are needed before staying an order of dismissal of a police officer following a regular investigation and determination.”[16] 
  4. [23]
    It is true that that statement was strictly speaking dicta, but as the dicta of a former Justice of Appeal, it was dicta deserving of weight.  But there are a number of things about it which should be noticed. 
    1. (a)
      The decision of the Court of Appeal in Baker (supra) involved a stay pending appeal after the relevant authority had found that the legal practitioner was unfit to practice, and the Court was identifying why the maintenance of confidence in the profession meant that it was inappropriate to stay such a decision pending an appeal. 
    2. (b)
      It was not said that the position of a police officer dismissed from the force was the same, but that that approach had some relevance.
    3. (c)
      There was another factor identified as a reason not to stay the decision, that if the review were unsuccessful the officer would have been paid a salary for a period which he really ought not to have obtained, and which ought to be repaid: [28].  
    4. (d)
      It was in this context, with these considerations opposed to a stay, that it was said that “In such circumstances a stay should not be lightly granted” [32] and that “cogent reasons are needed before staying an order of dismissal of a police officer following a regular investigation and determination.” [35]. 
    5. (e)
      The qualification that there be a regular investigation and determination should not be ignored.  If there is good reason to identify an irregularity in that process, such as a breach of natural justice, the position would be different. 
    6. (f)
      The comment was made expressly in respect of a sanction of dismissal. 
  5. [24]
    The decision in Kennedy (supra) has often been cited by the Tribunal in relation to applications for a stay in review matters.  Applications to stay decisions preventing legal practitioners from practising have usually been unable to overcome the public interest consideration,[17] although not inevitably.[18]  But the approach in Kennedy to the significance of the public interest and the need for compelling reasons to overcome it has also been applied in applications to stay pending review of decisions involving weapons licences,[19] child care centre approvals,[20] builder’s licences,[21] and private investigator’s licences.[22]  A closely related approach has been followed in the case of a stay of conditions imposed on the registration of a medical practitioner.[23]  In some of these matters, it might have been better to have approached the issue by reference to an analysis of the significance of the public interest under s 22(4)(c).[24] 
  6. [25]
    In police disciplinary matters, the Kennedy approach has been routinely cited, not only in a matter involving dismissal,[25] but in matters involving demotion or other sanctions.[26]  In some of these cases, it appears to be treated as a universal factor in applications for stays pending reviews of police disciplinary decisions, which will dominate other considerations.  The approach in matters involving legal professionals is instructive.  There, if anywhere, the statements in Baker (supra) would apply with full force, yet there have been cases where those factors have been overcome, when due regard has been had to all the circumstances of the case.  There may be a countervailing public interest consideration, in one case, that of the availability of legal services in a country town;[27] in another, the insolvency of the practitioner, whose creditors would be worse of if he were unable to earn income.[28] In a case involving a deficiency in trust account records, which had not harmed the clients, there was a stay where substantial steps had been put in place to overcome the issue and to distance the applicant from control of the practice, which catered to a very specialised field of law.[29]  The principles in Baker have been applied in a nuanced way. 
  7. [26]
    In this case, the relevant conduct found by the first respondent did not impact directly on the public, and there was no misuse of police powers.  It did involve the maintenance of proper internal discipline, which is important for the proper functioning of the police service, but it may be that that aspect of police discipline does not carry the same impact in terms of the importance of maintaining public confidence.  It is important that the various factors be considered in context, and that it not be assumed that they always apply in the same way or carry the same weight. 

First ground

  1. [27]
    To some extent this is an argument about semantics.  On an application for a stay, the applicant carries the onus, and to obtain a stay must show that, taking into account all relevant considerations, overall it is desirable that a stay be granted.  That involves a positive finding in favour of a stay.  Once one or more relevant factors which support the refusal of a stay have been identified, there must be one or more factors in favour of a stay which together outweigh the factors pointing the other way.  Once it is recognised that a factor opposed to a stay deserves some weight, the factors favouring a stay must be deserving of more weight to produce satisfaction with the test, that the stay is desirable.  “Cogent” simply means convincing or persuasive; in this context, sufficient to overcome the combined weight of the factors pointing the other way. 
  2. [28]
    Viewed correctly, the proposition is almost a statement of the obvious.  How it plays out in a particular case depends on the identification of the relevant factors, and the weight attributed to each of them.  But that does not mean that there was any error in stating the proposition that cogent reasons are needed to stay a decision pending a review.  The first argument of the applicant on the appeal is not made out.

Second ground

  1. [29]
    This ground focuses on that part of the reasons of the Member at [20] where he said:

The effect of granting the stay would allow [the applicant] to continue his previous rank of Sergeant at the same pay-point – within the same operational unit (if not location) and with the same level of authority, responsibility and privilege.  This cannot be conducive to workplace harmony, or facilitate the smooth operating of a unit attuned to the needs of the community whom it serves.

  1. [30]
    The reference to “workplace harmony” was footnoted with a reference to Jones (supra) at [9] and [23].  At the former paragraph it was said that the respondent’s interests would be affected by a stay, because “there is a need to ensure that the disciplinary processes are seen to be transparent and effective in the administration of the QPS and there is a harmonious workplace.”  The latter paragraph said that the effect of a stay would be to return that applicant to the workplace, which would involve interaction with those who had made the complaints against her which led to the finding in the disciplinary proceedings of “negative workplace behaviour”.  The officer in charge of the relevant unit had described the situation with that applicant present as “a toxic workplace … having regard to the history of the complaints against her.”  Plainly returning that applicant to that workplace would not have been conducive to workplace harmony. 
  2. [31]
    The difficulty with that reasoning in the present case is that what was proposed in the application for the stay was that the applicant remain at the different location but still within the overall unit or branch of the Police Service.  It would not involve his returning to the particular office where the behaviour the subject of the disciplinary matter was found to have occurred.  To the extent that there was any substance to those findings, returning the applicant to that office would not have been conducive to workplace harmony, but it is not immediately obvious that the same consideration would apply if the applicant continued to work at the other office, where he had worked during the investigation and resulting disciplinary hearing. 
  3. [32]
    The applicant was able to present evidence, including from the officer in charge of the office where he was working during the investigation, that spoke positively of his work in that office.  There was therefore no reason to believe that there would be any reason to anticipate any workplace disharmony if he continues to work there pending the hearing and determination of the review.  There was no evidence relied on by the respondents to counter this evidence; there was no evidence, for example, that in the ordinary course of events it was necessary for the applicant, while working in that office, still to have contact with the people working in the other office where the disciplinary matter arose. 
  4. [33]
    In those circumstances, I cannot see how the finding, that a stay would not be conducive to workplace harmony, or facilitate the smooth operation of the unit, can be sustained on the material before the Tribunal.  The factual situation seems to be quite different from that in Jones (supra).  The Member treated this as a relevant consideration against a stay, even though the reference to the location indicated that the Member was aware that what was proposed was a continuation of work in that office.[30]  In my opinion, in arriving at that conclusion the Member erred. 
  5. [34]
    There is I think a related consideration.  The decision of the first respondent involved the applicant moving out of the unit or branch of the Police Service in which he had worked for over twenty years,[31] and into general duties.  It occurs to me that, since it has been a long time since the applicant worked in general duties, his skills in that area may well be a little rusty,[32] and general duties policing may well have changed since he did it last.  To the extent that that impacts adversely on his performance of general duties, that is a factor favouring a stay, as it would not be in the public interest for him, with the rank of senior constable, to be performing general duties unskilfully and unhappily.  The respondent submitted that this would be beneficial for him, as an opportunity to brush up on his skills in that area, but as someone who has been on the receiving end of a policy favouring multi-skilling,[33] I regard any theoretical advantages to the Police Service and to him personally as outweighed by the disadvantages to those with whom he will come into contact. 
  6. [35]
    There is also the consideration that leaving him in that unit would on the evidence reduce the adverse effect of the loss of overtime referred to above. 
  7. [36]
    The Member took into account as a factor against the grant of a stay something which should not have been treated in that way, and which may in fact have been really a factor which favoured a stay.  It follows that there was an error in the exercise of the discretion by the Member, and it is appropriate to exercise the discretion afresh.  It follows that there is good reason to grant leave to appeal, apart from the fact that the first ground raised a question of some general importance, worthy of consideration by the Appeal Tribunal.  There will therefore be leave to appeal. 

Exercise of discretion

  1. [37]
    I have already discussed the question of whether the applicant has shown an arguable case on the review.  The effects on the applicant of the sanction, in terms of loss of income and seniority, are largely reversible if the review produces a different outcome, apart from the loss of the opportunity for overtime which on the evidence is significant. That effect would be reduced by leaving him in the unit at the location where he was working before the decision. There is no evidence that leaving him at that location would produce adverse effects on the other people working there, or in the unit generally.  Most of his other arguments are matters for the review of the question of sanction.  To the extent that the applicant has suffered loss of reputation which would not be restored by success in the review, that loss has been suffered as a result of the decision, and would not be cured by a stay. 
  2. [38]
    In terms of adjusting his financial position, it would be easier to reduce his salary and pay the difference if the review succeeds than to maintain the former salary so that he is confronted by a large claim for repayment if the review fails.  In terms of the public interest, this was not a case where the actions of the applicant found by the first respondent impacted directly on the public, although they may have done so indirectly, by impairing the general efficiency of the office in which he was working.  On the other hand, maintenance of confidence in the police disciplinary system is a matter of importance, whatever the level of the sanction imposed, although it is most important in cases where there has been a finding of unfitness to be a police officer, which is not this case.  It is part of the process of maintaining public confidence in the Police Service generally, a matter of importance.  It is also important for the proper operation of the Police Service that there is respect within the Service for the disciplinary system, which is a factor opposing a stay.  Given the nature of the conduct, that is a matter of some significance in this case, and can be seen as an aspect of the public interest. 
  3. [39]
    One matter to bear in mind is that the sanction had various elements, so in this case (unlike a case of dismissal) it is not just a choice between two outcomes.  The reduction in rank and pay scale can be restored if he is successful on the review, but the part of the decision by which he was transferred to general duties does have aspects which would be unsatisfactory, both for him and for the public, and in view of the favourable comments about his work in the new office, it seems reasonable to let him stay there until the review has been concluded.  The public interest in maintaining confidence in the Police Service and its disciplinary procedures would be satisfied by the reduction in rank and pay.  In relation to the transfer, there are also public interest factors the other way.  The public will continue to receive the benefit of such expertise in that unit as he has built up over his years there. 
  4. [40]
    No particular reason was identified by the respondents as to why this arrangement was not suitable, other than that it involved maintaining a temporary redeployment which was not ideal for either party.  Given the detail of the decision of the first respondent, and the broad challenge to it by the applicant, this is also not a case where the outcome on the review will be either success or failure.  It is also possible that the outcome will be that there is still a sanction imposed, but not the sanction imposed by the first respondent.  Given the existence and nature of the review, in a sense whatever happens to the applicant is temporary until the review is over, even if it turns out that his position does not change as a result.  In view of this, I do not regard this as a significant consideration. 
  5. [41]
    The remaining factor is the requirement that the applicant undertake certain self-education courses.  It does not seem to me that there would be any significant detriment to the applicant in undertaking those courses, and I will not stay that part of the sanction. 
  6. [42]
    Overall, in all the circumstances of this case, I consider that a stay of part of the decision under review is desirable, but I am not persuaded to stay the balance of the decision.  Accordingly my decision on the application for leave to appeal is as follows:
  1. Leave to appeal is granted.
  2. The appeal is allowed.
  3. The decision of the Tribunal of 17 May 2021 is set aside. 
  4. In lieu thereof, it is ordered that the part of the decision of the first respondent of 1 March 2021 the subject of the review proceeding OCR083-21 which provided that the applicant was subject to a local transfer to a general duties position, be stayed on condition that he not return to the particular location at which he worked at the time of the events giving rise to the disciplinary action, but remain within that Unit of the Police Service. 
  5. The application for a stay is otherwise refused. 
  6. Any party seeking an order for costs is to file and serve on the other parties submissions in writing setting out the order sought, and the arguments in support of that order, within fourteen days from the date of this decision.  If such submissions are filed, I will give further directions; otherwise, there be no order as to costs.  

Footnotes

[1] Crime and Corruption Commission v Lee [2019] QCATA 38 at [12], citing appellate authority. See also Campbell v Queensland Building and Construction Commission [2021] QCATA 34 at [17].

[2] Pickering v McArthur [2005] QCA 294 at [3]. 

[3] Police Act (Qld) s 7.31; the QCAT Act s 20(2). 

[4] OJM v Deputy Commissioner Gollschewski [2018] QCAT 89 at [12]. 

[5] Citing Australian Securities and Investments Commission v Administrative Appeals Tribunal [2009] FCAFC 185 at [53]. 

[6] This has subsequently been generally accepted as the approach to a stay application, notably by A Wilson J, the then President of the Tribunal, in King v Queensland Law Society [2012] QCAT 489 at [12]; although not universally: Erathnage v Medical Board of Australia [2016] QCAT 418 at [22] per Sheridan DCJ, the then Deputy President of the Tribunal. 

[7] Reliance was also placed on the decision in Erathnage v Medical Board of Australia [2016] QCAT 418. 

[8] Cherwell Creek Coal Pty Ltd v BHP Queensland Coad Investments Pty Ltd [2019] QCA 276 at p 5, per Fraser AJ. 

[9] I agree that no detailed forensic examination of the merits is appropriate on the hearing of an application for a stay: Kennedy (supra) at [15].  

[10] Subject to the terms of the applicable enabling Act, not relevant here. 

[11] This point was made also in The Music Kafe Pty Ltd v Chief Executive, Office of Liquor and Gaming Regulation [2012] QCAT 217 at [18].

[12] Cassidy and Australian Securities and Investments Commission [2020] AATA 66 at [11]. 

[13] The applicant’s affidavit filed 15 April 2021 para 54 deposed to overtime payments of the order of $40,000 gross per year, involving upwards of 10 hours per week.  Before the Member the first respondent did not dispute that the sanction would have such an impact on the applicant’s finances. 

[14] Bryant v Commonwealth Bank of Australia (1996) 70 ALJR 306 at 309, a decision involving the deregistration of a lawyer, but said to be general in relation to disciplinary proceedings. 

[15] Robb v The Law Society of the ACT [1996] FCA 1571, approved in Legal Services Commissioner v Baker (No 1) [2006] 2 Qd R 107.   

[16] The term “cogent reason” had been used in Baker (supra) at [28] and in Robb (supra). 

[17] Quinn v Queensland Law Society [2012] QCAT 274 at [31]; King v Queensland Law Society [2012] QCAT 489 at [22], [27]; Munt v Queensland Law Society [2015] QCAT 451 at [51]; Bui v Queensland Law Society [2017] QCAT 441 at [9]; MaGill v Queensland Law Society [2019] QCAT 392 at [12]. 

[18] Legal Services Commissioner v Madden [2008] QCA 52, where the practitioner maintained only a tenuous connection with his practice in a rural area; Pope v Bar Association of Queensland [2015] QCAT 305, where the relevant conduct was insolvency, and the application for a stay was not opposed; Adamson v Queensland Law Society [2017] QCAT 1; McCormick v Queensland Law Society [2019] QCAT 380. 

[19] Casella v Queensland Police Service, Weapons Licencing Branch [ 2014] QCAT 255 at [34]; CFD v Queensland Police Service, Weapons Licencing Branch [2017] QCAT 372 at [35].  But contra Yatras v Queensland Police Service, Weapons Licencing Branch [2019] QCAT 6, where stay granted.

[20] Kuol v Department of Education [2018] QCAT 337 at [11]; Oakhaul v Department of Education [2020] QCAT 27 at [26]; Aufai v Department of Education [2020] QCAT 387 at [5]. 

[21] Uysal v Queensland Building and Construction Commission [2016] QCAT 367; My Home Builders Qld Pty Ltd v Queensland Building and Construction Commission [2018] QCAT 27.

[22] Featherstone v Department of Justice and Attorney-General [2015] QCAT 233; but contra: Burch v Office of Fair Trading [2015] QCAT 363, Burch v Office of Fair Trading (No 2) [2016] QCAT 435 at [31]. 

[23] Pluta v Medical Board of Australia [2021] QCAT 212 at [20], [21]. 

[24] Not all systems of occupational regulation give rise to the same level of significance of public interest: Maund v Racing Victoria Ltd [2015] VSCA 276 at [39], [40]. 

[25] Bowley v D.C. Martin [2018] QCAT 111.

[26] Tolsher v C. Stewart [2013] QCAT 47; Acreman v D.C. Pointing [2018] QCAT 63, esp at [23]; Jones v A.A.C. Horton [2020] QCAT 304 at [25]; Wellington v A.C. Carless [2021] QCATA 111 at [8], in the context of an application for stay pending appeal to the Appeal Tribunal. 

[27] Madden (supra). 

[28] Pope (supra). 

[29] McCormick (supra). 

[30] See also Transcript of hearing p 1-5. 

[31] Affidavit of applicant filed 15 April 2021 para 51. 

[32] This was apparently conceded by the first respondent in submissions at first instance, para 33. 

[33] In my previous career, it seemed that as soon as a Civil List Manager became really good at the job, he or she was moved to a different position. 

Close

Editorial Notes

  • Published Case Name:

    Willmott v Carless

  • Shortened Case Name:

    Willmott v Carless

  • MNC:

    [2021] QCATA 132

  • Court:

    QCATA

  • Judge(s):

    D J McGill SC

  • Date:

    05 Nov 2021

Appeal Status

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