Crime and Corruption Commission v Horton & Didsman [No. 2] [2022] QCAT 311

QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL CITATION: Crime and Corruption Commission v Horton & Didsman [No. 2] [2022] QCAT 311 PARTIES: CRIME AND CORRUPTION COMMISSION (applicant) v ACTING ASSISTANT COMMISSIONER GLENN HORTON APM (first respondent) And SENIOR CONSTABLE DAVID DIDSMAN (second respondent) APPLICATION NO: OCR100-20 MATTER TYPE: Occupational regulation matters DELIVERED ON: 16 August 2022 HEARING DATES: Decision made on the papers HEARD AT: Brisbane DECISION OF: A/Member Sammon ORDERS: Leave is granted to amend the Application for miscellaneous matters filed on 2 February 2022 to include an application under s 135 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) for the Tribunal to correct its decision. Paragraph 2(b) of the Tribunal’s decision dated 28 January 2022 is amended by deleting the date ‘1 March 2022’ and replacing it with the date ‘19 June 2021’. CATCHWORDS: COURTS AND TRIBUNALS PRACTICE AND PROCEDURE – application for reopening of decision under s 138 Queensland Civil and Administrative Tribunal Act 2009 (Qld) – requirement for ‘reopening ground’ to be established – the definition of that term in the Dictionary (schedule 3) of the Act – whether a reopening ground has been established – application for leave to amend Application for miscellaneous matters – grant to amend under s 64 of the Act - power of the Tribunal to amend decision under s 135 - application under s 135 granted -- 1 of 6 -- 2 Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 64, s 135, s 138, s 140, schedule 3. Crime and Corruption Commission v Horton & Didsman [2022] QCAT 35. APPEARANCES & REPRESENTATION: Decision made on the papers REASONS FOR DECISION Background [1] On 2 February 2022, the parties filed an Application for miscellaneous matters to reopen a decision I made on 28 January 20221 to set aside a disciplinary sanction to be imposed by the first respondent, Acting Assistant Commissioner Horton APM (AAC Horton) on the second respondent, Senior Constable Didsman (SC Didsman). [2] Instead, I decided that the correct and preferable decision was that SC Didsman should be subject to a disciplinary sanction that (in summary) he: (a) be demoted, suspended for a period of 12 months; and (b) be temporarily locally transferred commencing 1 March 2022, for a period of 12 months to a position other than with a Road Policing Unit; and (c) mentor with a more senior officer; and (d) not perform higher duties for a period of 12 months; and (e) complete training relating to urgent duty driving. [3] Except for the commencement date of element (b), the disciplinary sanction was one that had been agreed between all of the parties. However, it was necessary that in the exercise of the Tribunal’s review jurisdiction, I exercise my discretion on the correct and preferable sanction. [4] The consent position reached by the parties was that the temporary local transfer commence on 19 June 2021. Due to the effect of the COVID virus on the Tribunal’s hearing arrangements, it was not possible for the Tribunal’s decision to be made until 28 January 2022. By that time, of course, the commencement date of the sanction on which the parties had agreed had passed. To allow the parties to exercise their rights under the Queensland Civil and Administrative Tribunal Act 2009 (Qld) (the QCAT Act), I ordered that element (b) commence 1 March 2022. 1 Crime and Corruption Commission v Horton & Didsman [2022] QCAT 35. -- 2 of 6 -- 3 Application for reopening and submissions in support [5] The Application for miscellaneous matters to reopen the decision was made jointly on behalf of all the parties. The relevant order sought from the Tribunal was that the local transfer component of my decision be amended to take effect from 19 June 2021. The brief joint submissions accompanying the Application for miscellaneous matters submitted that the reason for the order sought was that SC Didsman, with the consent and assistance from the applicant (the CCC) and AAC Horton undertook a secondment in duties away from Road Policing Unit position commencing on 19 June 2021. [6] The submissions continued that the secondment was undertaken by SC Didsman was voluntary and that secondment could properly be taken into account by the Tribunal as ‘time already served’ under the jointly proposed sanction requiring his 12 month temporary transfer from Road Policing Unit duties. [7] The parties then sought an order that the order made on 28 January 2022 be amended pursuant to s 140(4)(a) of the QCAT Act which allows the Tribunal to amend its previous final decision if, under s 139, the Tribunal decides that a proceeding should be reopened. Prior to the decision made on 28 January 2022, the parties had not informed the Tribunal that SC Didsman had undertaken a secondment away from a Road Policing Unit commencing on 19 June 2021. Provisions of the QCAT Act on an application to reopen a decision [8] Section 138 of the QCAT Act allows a party to a proceeding to apply to the Tribunal for the proceeding to be reopened if the party considers a ‘reopening ground’ exists for the party. Consequently, s 139(4) provides that the Tribunal may grant the application for reopening only if the Tribunal considers a ‘reopening ground’ exists for the applicant party and the ground could be effectively or conveniently dealt with by reopening the proceeding whether or not an appeal under part 8 of the Act relating to the ground may also be started. [9] The key to whether an application for a reopening may be granted, therefore depends on the meaning of the term ‘reopening ground’. That term is defined in the Dictionary (schedule 3) to the QCAT Act as follows: reopening ground, for a party to a proceeding, means— (a) the party did not appear at the hearing of the proceeding and had a reasonable excuse for not attending the hearing; or (b) the party would suffer a substantial injustice if the proceeding was not reopened because significant new evidence has arisen and that evidence was not reasonably available when the proceeding was first heard and decided. [10] There is also a power in the Tribunal to correct a decision made by it under s 135, but only if the decision contains: (a) a clerical mistake; or (b) an error arising from an accidental slip or omission; or (c) a material miscalculation of figures or a material mistake in the description of a matter, person or thing mentioned in the decision; or -- 3 of 6 -- 4 (d) a defect of form. [11] Section 135 can be seen to be based on the common law ‘slip rule’ which allows a court to correct an error appearing in a decision. Further submissions made on whether a ‘reopening ground’ had been established and consideration of same [12] Following the Application for miscellaneous matters seeking a reopening, on 4 July 2022, I issued directions focusing on whether a ‘reopening ground’ as defined above existed for the decision of the Tribunal dated 28 January 2022. Accordingly, I issued directions: (a) allowing each party to file and serve on the others, a written submission on the nature of the ‘reopening ground’ the party submits exists; and (b) if any party submitted that the reopening ground which did exist was that significant new evidence had arisen, or that the significant new evidence was that the temporary local transfer which SC Didsman had performed, was a consequence of an anticipated disciplinary sanction instead of allocation of duties otherwise in the usual course, the party was directed to file and serve on the other parties, evidence in the form of a statutory declaration or affidavit; and (c) any party may file and serve on the other parties, a written submission in response to the submissions or evidence by another party referred to in (a) or (b) above. [13] On 16 July 2022, an affidavit by Inspector Anne Vogler of the Queensland Police Service affirmed on 15 July 2022 was filed in the Tribunal on behalf of AAC Horton. Inspector Vogler affirmed that she was the line control manager of the Bundaberg Highway Patrol Unit. She said that on 19 June 2021, she received advice pertaining to a sanction order from the Tribunal concerning SC Didsman. That cannot be a reference to the Tribunal’s final decision, which only existed as of 28 January 2022. Her evidence may be a reference to the consent position arrived at between the parties to the appropriate sanction that should be made by the Tribunal, which was arrived at in June 2021.2 [14] Regardless, Inspector Vogler’s affidavit continued that on 19 June 2021, as a result of the advice she received, and at her direction, SC Didsman was temporarily transferred and commenced duty at the Bundaberg Crime Prevention Unit. As at the date of her affidavit, SC Didsman was still attached to the Bundaberg Crime Prevention unit. Given that her affidavit was affirmed on 15 July 2022, the effect of Inspector Vogler’s evidence was that SC Didsman had fulfilled that part of the requirement under paragraph 2(b) of the Tribunal’s decision that SC Didsman be subject to a temporary local transfer for the period of 12 months, albeit that the Tribunal’s order was that the temporary local transfer only commence on 1 March 2022. [15] On 13 July 2022, the legal representative for SC Didsman filed a written submission. It is headed ‘joint submissions on re-opening’, but that appears to me to be an error, since that written submission was made on behalf of SC Didsman, albeit that the other parties adopted those written submissions.3 2 See [7] of the reasons for decision made on 28 January 2022. 3 By the CCC in its written submission filed 15 July 2022, and by AAC Horton in a written submission filed on 18 July 2022. -- 4 of 6 -- 5 [16] SC Didsman submitted that the definition of a ‘reopening ground’ is composed of two alternative limbs (firstly, that a party did not appear at the hearing of a proceeding and had a reasonable excuse for not doing so, and the second being that a party would suffer a substantial injustice if the proceeding was not opened because significant new evidence had arisen and that evidence was not reasonably available when the proceeding was first heard and decided). [17] The submission continued that if either limb was satisfied, then the Tribunal has jurisdiction to reopen the proceeding. I agree with that submission, because of the word ‘or’ between the two limbs. [18] It was then submitted on behalf of SC Didsman that he would suffer a substantial injustice in the event the Tribunal’s order regarding temporary transfer was not amended, because the substance of the order was that he be temporarily transferred from Road Policing Duties for a period of 12 months, and that he had served that temporary transfer since he commenced it on 19 June 2021. If he had to serve the temporary transfer from 1 March 2022, that would amount to him serving an additional nine months of temporary transfer instead of the intended 12 month period. [19] I also agree with that submission. The purpose of paragraph 2(b) of the disciplinary sanction was that SC Didsman serve a temporary local transfer away from the Road Policing Unit for 12 months. I ordered that the temporary local transfer commence on 1 March 2022, to allow time for implementation of that part of the orders.4 The Tribunal had not been informed that SC Didsman had actually started to commence the 12 months temporary transfer on 19 June 2021. [20] The written submissions on behalf of SC Didsman then continued that evidence of him commencing his temporary transfer from 19 June 2021 was available at the time of the Tribunal’s decision made on 28 January 2022. Accordingly, SC Didsman accepted that a reopening pursuant to the second limb of the definition of ‘reopening ground’ is not available. [21] However, the written submissions contended that the first limb of the definition would apply. The submissions continued that although joint submissions had been made, none of the parties were present at the hearing as the matter proceeded ‘on the papers’, or in other words, on the basis of the written submissions filed with the Tribunal. [22] I do not accept that submission. The purpose of the first limb of the definition of a ‘reopening ground’ is that a party did not appear at the hearing of a proceeding and had a reasonable excuse for not doing so. That ground can only apply where a matter had been listed for an oral hearing, and a party simply did not attend, but had a reasonable excuse for not doing so (for example, sudden illness which prevented the party from attending the hearing). This limb of the definition is premised on the basis that by not attending the hearing, a decision was made adversely to the party, which would not have been made had the party been able to attend the hearing. This limb has no application when a matter had been determined by the Tribunal ’on the papers’, on the basis of written submissions made by the parties. In such a case, no appearance is required by any party to the proceeding. 4 [68] of the reasons for decision for the orders made on 28 January 2022. -- 5 of 6 -- 6 Alternative submission- application of s 135 of the QCAT Act [23] An alternative submission was made on behalf of SC Didsman (which, as I have identified above, was also adopted by the other parties) that should the Tribunal find that a reopening ground does not exist, then leave was sought to amend the Application for miscellaneous matters, to correct a mistake pursuant to s 135(1) of the QCAT Act. I grant leave to amend the Application for miscellaneous matters filed on 2 February 2022 under s 64 of the QCAT Act. [24] The submissions were that the parties’ original joint submissions identified that the temporary transfer should take effect from 19 June 2021, although it is accepted that the parties did not expressly inform the Tribunal the basis for such a date was that the parties had facilitated SC Didsman’s temporary transfer to commence pending the decision of the Tribunal. SC Didsman submitted that an amendment to change the effective date for the temporary transfer from 1 March 2022 to 19 June 2021 is necessary to ensure such transfer was only for a period of 12 months. [25] I accept that submission. For s 135(1) to apply, the decision of the Tribunal must contain one of the factors described in paragraphs (a)-(d). Of the paragraphs contained in s 135(1) of the QCAT Act, on the facts of this case, the applicable ground is contained in paragraph (b) which refers to: an error arising from an accidental slip or omission. [26] I accept that the failure of the parties to inform the Tribunal that SC Didsman had commenced to serve the 12 months local transfer was an accidental slip or omission on the part of the parties. The language of paragraph (b) does not confine the relevant accidental slip or omission to the part of the Tribunal, but may extend to an accidental slip or omission on the part of the parties to the proceeding (which causes an error in the Tribunal’s decision). [27] In this case, that accidental slip or omission led to an error in the Tribunal’s decision made on 28 January 2022, that the temporary local transfer should commence on 1 March 2022, where SC Didsman had in fact already commenced serving the temporary local transfer on 19 June 2021. The intention of the Tribunal’s decision was that SC Didsman should only be required to serve a total of 12 months temporary local transfer. [28] A decision of the Tribunal to correct a decision made by it under s 135(1) is discretionary, even if the grounds to make a decision contained in paragraphs (a)-(d) of s 135(1) are established. The discretion is connoted by use of the word ‘may’. Exercise of the discretion necessarily depends upon the facts of each case. In this case, I am satisfied that I should exercise the discretion to correct the decision made on 28 January 2022 because of an injustice that SC Didsman would otherwise suffer, of having to carry out an additional period of the temporary local transfer, from 1 March 2022, instead of 19 June 2021. The intention of my decision was that SC Didsman only be required to undertake a total of 12 months of a temporary local transfer. [29] I will therefore order that the decision of the Tribunal made on 28 January 2022 be amended, in paragraph 2(b), by ordering that the temporary local transfer commence on 19 June 2021. -- 6 of 6 --