Wellington v Carless[2022] QCATA 143

QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL

REASONS FOR DECISION

1. [1]
   The appellant is a police officer.^[1]  On 17 May 2015 while on duty he took part in an attempt to apprehend two suspects in a motor vehicle.  As a result of what he did that day, he was charged with criminal offences.  These ended in his favour, but took time.  He was then charged with a disciplinary offence, with three particulars.  On 11 June 2020 the offence was found by the first respondent to be proved, and a sanction was imposed.  The second respondent applied to the Tribunal to review that sanction, and on 8 June 2021 the Tribunal set aside the sanction imposed by the first respondent, and imposed a different sanction, involving temporary demotion. 
2. [2]
   On 30 June 2021 the appellant filed an application for leave to appeal or appeal against that decision.  The appellant also filed an application for a stay of the decision, but that application was rejected after a hearing on the papers on 3 September 2021.  The grounds of appeal relied on were two raising a question of law, and one raising a question of fact, or mixed fact and law.  The appellant is entitled to appeal to the Appeal Tribunal on a question of law, but requires the leave of the Appeal Tribunal to appeal on a question of fact, or of mixed fact and law.^[2] 
3. [3]
   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.^[3]  An Appeal Tribunal will not usually disturb findings of fact on appeal if the evidence is capable of supporting the finding, and it is not contrary to compelling inferences.^[4]  If leave to appeal is granted, the appeal is by way of rehearing so far as it is against a decision on a question of fact, or of mixed fact and law: the QCAT Act s 147. Otherwise it is an appeal which will only correct an error of law: the QCAT Act s 146. 

The grounds of appeal

4. [4]
   In the Application for Leave to Appeal or Appeal filed on 30 June 2021 the appellant relied on three grounds, but in submissions in writing filed on 13 September 2021 the first ground was abandoned, and need not be considered further.  The remaining grounds were:

   1. (a)
      Ground 2: the decision of the Tribunal was legally unreasonable, an error of law.
   2. (b)
      Ground 3: the decision of the Tribunal overlooked or gave inadequate weight to factors and evidence favouring the decision of the first respondent, and gave undue weight to other factors and evidence.  This would be an error of fact, and the appellant sought leave in respect of this ground. 

Background

5. [5]
   I should say a little more about the background circumstances, which are set out in detail in the reasons of the Member.  The appellant was with another, more junior officer in a police van on 17 May 2015 when they and other police began pursuing a stolen vehicle believed to contain suspects in various offences, including armed robbery.  He directed the more junior officer, who was driving their van, to drive it into the rear of the vehicle to attempt to stop it.  A tyre deflation device was deployed, and succeeded in slowing the vehicle, but did not stop it, and it evaded a roadblock by mounting a footpath.  The officer in charge ordered police to break off pursuit, but the order was ignored, including by another officer senior to the appellant, who forced the vehicle off the road.  The appellant joined him and other police in attempting to apprehend the occupants. 
6. [6]
   The vehicle then drove at the more senior officer who drew his pistol and fired at the vehicle, once as it came towards him, and again after he had evaded it, as it was driving away.  The appellant fired two shots from his pistol at the vehicle as it drove away.  The vehicle was tracked by a police helicopter until it crashed into bushland and the occupants fled.  One was apprehended soon after, and the other two days later. 
7. [7]
   The appellant was stood down from duty on 20 May 2015, working at a desk until 5 November 2015 when he was suspended (with pay) until 6 January 2020.  He returned to a desk job, was seconded to the Covid Task Force until July 2020 when he attended the Police Academy for six weeks, doing the operational skills training for recruits.  While the appellant was suspended from duty, on 10 May 2016 he was charged with a criminal offence which came before a Magistrates Court on 7 September 2016, when it was dismissed after the prosecution offered no evidence.  An order for costs was made in his favour.
8. [8]
   On 12 October 2016 the appellant was charged with two indictable offences.  Following a “hand up” committal, an indictment was presented in the District Court on 14 September 2017.  That proceeding was permanently stayed on 11 May 2018, on the ground that it was an abuse of process.  Almost ten months later, on 7 March 2019 a “prescribed officer” commenced a disciplinary proceeding against the appellant, but that was discontinued when that “prescribed officer” retired.  On 9 April 2020 another disciplinary proceeding was commenced against the appellant, which led to the decision of 9 July 2020 which was set aside by the Tribunal.^[5]  On 18 August 2020 the appellant commenced operational duties, under an intensive mentoring programme, and close supervision from superiors. 

A Preliminary Point

9. [9]
   The decision of the Tribunal was in the following terms:

1. 1.
   The decision of the first respondent … made 9 July 2020 is set aside.

1. 2.
   In lieu the Tribunal orders that [the appellant] be demoted from Senior Constable level 2.10 to Constable level 1.6 for twelve months.

1. 3.
   The Tribunal further orders that [the appellant] not be permitted to relieve in a higher position for a period of six months.”

10. [10]
    The proceeding in the Tribunal involved the review jurisdiction of the Tribunal.  The functions of the Tribunal for the review jurisdiction are dealt with by the QCAT Act s 24, which provided (and provides) relevantly as follows:

3. (1)
   In a proceeding for a review of a reviewable decision, the tribunal may—

1. (a)
   confirm or amend the decision; or

2. (b)
   set aside the decision and substitute its own decision; or

3. (c)
   set aside the decision and return the matter for reconsideration to the decision-maker for the decision, with the directions the tribunal considers appropriate.

3. (2)
   The tribunal’s decision under subsection (1)(a) or (b) for a reviewable decision—

1. (a)
   is taken to be a decision of the decision-maker for the reviewable decision except for the tribunal’s review jurisdiction or an appeal under Part 8; and

2. (b)
   subject to any contrary order of the tribunal, has effect from when the reviewable decision takes or took effect.

11. [11]
    On the face of it the terms of the QCAT Act s 24(2)(b) meant that the decision of the Tribunal took effect from 11 June 2020.  The second respondent in further written submissions did not concede that that was the correct interpretation of the decision, but no basis on which s 24(2)(b) did not apply has been suggested, and there is nothing in the decision which amounts to a contrary order for the purposes of that provision.  Most of the period of demotion had then already passed, and the demotion expired three days later.  The Queensland Police Service gave effect to s 24(2)(b) and adjusted the appellant’s salary, and recovered from him the relevant overpayment.  It is not clear when this occurred, but presumably after the stay application was dismissed.  There is nothing in the reasons for the decision on the stay application to suggest that the effect of the QCAT Act s 24(2)(b) was considered at that point. 
12. [12]
    Counsel for the appellant advised that he had become aware of what had happened only on the evening before the hearing before me.  He conceded that as a result the temporary demotion had taken effect in essence only as a monetary penalty.  He also conceded that the submissions of the parties had been formulated on the basis that the decision of the Tribunal took effect prospectively.  It occurs to me that, if the temporary demotion had taken effect prospectively, by now it would have been spent anyway, which would have meant that the only effect of a successful appeal which led to the reinstatement of the sanction imposed by the first respondent would have been to require the payment of a shortfall in salary. 
13. [13]
    At that point the question arose whether the second respondent, which had not been aware that the decision of the Tribunal had had this effect, would itself want to appeal against the decision, on the ground that the Tribunal had erred by failing to order otherwise under s 24(2)(b).^[6]  After an adjournment, the second respondent filed an application for leave to appeal or appeal, seeking to raise this ground, and seeking by way of relief that the matter be returned to the Tribunal.  The appeal was filed beyond the time limited by the QCAT Act s 143, but there is power under the QCAT Act s 61 to extend that time limit.  Counsel for the appellant advised that the extension of time was not opposed, and the appellant conceded that the Tribunal had erred in law, in failing to have regard to s 24(2)(b), and in failing to order otherwise. 
14. [14]
    At the hearing counsel for the appellant did dispute that the appropriate remedy was to return the matter to the Tribunal, although this strengthened the case for granting leave to appeal in a question of fact or of mixed fact and law.  Subsequently, however, both parties have submitted that it is appropriate for the matter to be returned to the Tribunal, in the particular circumstances of this matter, although the appellant maintains that the existence of an error or errors of law on the part of the Tribunal may be relevant to whether leave to appeal should be given.  I have previously given leave to appeal on grounds which included that there had been demonstrated errors in the decision of the Tribunal, but given the approach of the parties to the present matter it is unnecessary for me to decide in this case whether to grant leave to appeal, or whether any errors of law by the Tribunal support the granting of leave. 

Another error of law

15. [15]
    Another matter which arose during the hearing was that the part of the decision of the Tribunal in paragraph 3 of the decision above was not within the scope of the allowable sanctions in the Police Service Administration Act 1990 (Qld) (“the Act”) s. 7.30.^[7]  So much was conceded by the second respondent, in further written submissions provided after the appeal.  It follows that the Tribunal also erred in law, in purporting to impose as part of the sanction a restriction which was not a form of sanction authorised by the Act. 
16. [16]
    The Act was amended in late 2019 in ways which changed the terms of the provisions relevant to disciplinary proceedings.  Prior to the amendment, the range of sanctions available was set out in s 7.4(3) of the Act, in a way which did not limit the form of sanction which might be imposed by way of disciplinary action, although a list of specific forms was expressly provided.  That this did not confine the permissible sanctions to those provided expressly was confirmed by authority.^[8]  In 2019 that section was replaced by s 7.34, which provides “Each of the following sanctions is a disciplinary sanction”, followed by a list of specific sanctions.  Section 7.35 permits a “prescribed officer” to impose a “disciplinary sanction” on a “subject officer”, that is, an officer who is subject to discipline, and goes on to provide that, depending on the identity of the “prescribed officer”, there can be imposed either “any disciplinary sanction” or one or more from a specific list. 
17. [17]
    The second respondent in submissions said that there did not appear to have been any judicial consideration of whether this list was exhaustive, but in my opinion the terms of these sections are clearly different from those considered in Barnett (supra), and in terms confine the permissible disciplinary sanctions to those stated in s 7.34, except where the range of disciplinary sanctions has been further confined by s 7.35(2).  It was conceded that the effect of a transitional provision of the Act, s 11.21, was that the Act in its amended form applied to the decision of the first respondent of 9 July 2020, and it follows that it also applied to the decision of the Tribunal of 8 June 2021.  It was conceded that, if the list of sanctions in s 7.34 of the Act was exhaustive, paragraph 3 of the decision of the Tribunal purported to impose something which was not an available sanction. 
18. [18]
    This error was different from the error referred to earlier: the failure to have regard to s 24(2)(b) was an error in the form of the decision, but this error involved the process of determining an appropriate sanction overall.  This was a matter of discretion, and in those circumstances the error as to the availability of one part of the sanction determined by the Tribunal is an error of law which has the effect of invalidating the exercise of discretion as to sanction.^[9]  It was conceded by the second respondent that, in asking on the review for this sanction, it had led the Tribunal into error. 

Disposition of the Appeal

19. [19]
    The second respondent submitted, and it may be accepted, that the correction of these two errors of law would not result in a situation where as a matter of law only one outcome of the review was available, and accordingly the correct approach is to refer the matter back to the Tribunal.^[10]  The matter has been further complicated by the way in which the decision of the Tribunal was implemented, which has had the effect that the appellant has continued to function as a police officer, so that there is more information available now, and by the time any rehearing in the Tribunal occurs be even more available, about his performance as a police officer since the lifting of his suspension in early 2020.  The second respondent has foreshowed that it would seek to rely on further evidence on any such rehearing, and the appellant may also seek to do so. 
20. [20]
    The appellant no longer seeks to have the application for leave to appeal on a question of fact, or of mixed fact and law, considered, if the matter is referred back to the Tribunal.  The parties have also agreed to inform me that there is another proceeding in the Tribunal by which the second respondent is seeking to have reviewed the decision of a different prescribed officer to impose a disciplinary sanction in respect of certain conduct of the appellant on 30 August 2021.  The proposal is that the two matters be heard together.  There is some force in that submission, and it would be convenient to deal with both matters at once.  In additional, it would be appropriate to have additional evidence in the present matter, that is, evidence additional to that before the Tribunal on the last occasion.
21. [21]
    I agree that in those circumstances the appropriate course is for the present matter to be returned to the Tribunal for rehearing.  Given the history of this matter, it would not be appropriate for the two proceedings to be consolidated, but I agree that they should be heard together, and by a Member other than the Member who gave the decision currently under appeal.  The further submissions of the appellant spoke of this issue and the question of further evidence being decided on further applications to the Tribunal, but given that the active parties are before me^[11] and that there is power to give directions in respect of the rehearing,^[12] it is convenient and more efficient to deal with those issues now. 
22. [22]
    Accordingly the decision of the Appeal Tribunal is as follows:

1. The second respondent have an extension of time within which to appeal against the decision of the Tribunal of 8 June 2021 until 25 August 2022. 
2. The decision of the Tribunal of 8 June 2021 is set aside. 
3. The matter is returned to the Tribunal for rehearing by a different Member. 
4. All parties may put before the rehearing additional evidence as they may be advised. 
5. The matter be reheard together with the proceeding OCR114-22 between the second respondent as applicant and the appellant as a respondent.