Crime and Corruption Commission v Deputy Commissioner Stephan Gollschewski [2014] QCAT 359

CITATION: Crime and Corruption Commission v Deputy Commissioner Stephan Gollschewski & Anor [2014] QCAT 359 PARTIES: Crime and Corruption Commission (Applicant) v Deputy Commissioner Stephan Gollschewski Robert Majewski (Respondents) APPLICATION NUMBER: REO006-14 MATTER TYPE: Occupational regulation matters HEARING DATE: 21 July 2014 HEARD AT: Brisbane DECISION OF: Member Howard DELIVERED ON: 28 July 2014 DELIVERED AT: Brisbane ORDERS MADE: 1. That the proceeding be reopened in respect of all issues between the parties. 2. That the orders made in OCR306-13 on 4 March 2014 be set aside. 3. That the parties attend a compulsory conference on a date to be fixed. 4. That the Crime and Corruption Commission pay the respondents’ costs thrown away of the compulsory conference on 4 March 2014. CATCHWORDS: REOPENING – where applicant failed to attend a compulsory conference – where administrative error concerning the diarising of the conference – where telephone call between the registry and the applicant during the conference – where applicant intended to attend at conference – where subsequent telephone call from registry advising conference to be adjourned and relisted – where Tribunal then proceeded to decide the proceeding on a final basis under s 72 of the Queensland Civil and Administrative Tribunal Act 2009 – whether reopening ground exists – whether matter could -- 1 of 8 -- 2 conveniently be dealt with by way of reopening Queensland Civil and Administrative Tribunal Act 2009 (Qld) s 137, s 139, s 140 Breezeway Developments Pty Ltd v ADG Hydraulics Pty Ltd [2010] QCATA 69 Celona v Lillas & Loel Pty Ltd [2012] VCAT 403 Lillas & Loel Lawyers Pty Ltd v Celona & Ors [2014] VSCA 19 APPEARANCES and REPRESENTATION (if any): APPLICANT: Mr E Mac Giolla Ri of Counsel, instructed by the Official Solicitor of the Crime and Corruption Commission, represented the Crime and Corruption Commission FIRST RESPONDENT: Ms S A McLeod of Counsel, instructed by the Queensland Police Service Solicitor, represented Assistant Commissioner Stephan Gollschewski SECOND RESPONDENT: Mr M Black of Counsel, instructed by Gilshenan and Luton Lawyers, represented Mr Majewski REASONS FOR DECISION [1] A compulsory conference was held on 4 March 2014 in this review proceeding which was initiated by the Crime and Corruption Commission (CCC). The decision reviewed was the sanction imposed on Senior Constable Majewski in a police disciplinary matter. The conference was scheduled to commence at 9.30am. Representatives of the decision- maker, as well as Senior Constable Majewski and his representatives attended the compulsory conference. The CCC did not attend. [2] It is uncontroversial that the tribunal registry notified the CCC in writing of the conference date and time. The notice of the compulsory conference was received by the CCC on 12 March 2014. The notice was physically handled by a new administrative officer (Ms Lloyd), who had commenced work only the day before the notice was received. Although she did take some steps to deal with it, the conference date was not entered into the CCC’s diary system in the usual way. Nor had she taken steps to file the notice on the CCC hard copy file by 4 March 2014. [3] The CCC file is allocated to the Deputy Official Solicitor. Ms Younger holds the position of Deputy Official Solicitor. However, from 16 December 2013 until 14 February 2014, she was in a different role. Ms Vass acted as Deputy Official Solicitor during that period. As events unfolded on 4 March, Ms Vass located an email from the tribunal registry dated 11 February, which advised her that the conference was scheduled for 4 March and that notices for the conference would be sent that day. -- 2 of 8 -- 3 Although it is the role of the administrative assistant to receive and process a notice of a compulsory conference, and enter it in the diary, she says that her usual practice is to immediately (or at least, as soon as possible) enter court (and by inference, tribunal) dates into the electronic diary. However, on this occasion she did not do so, a failure which she puts down to being very busy at the time. [4] At about 9.40am on 4 March, a tribunal registry officer telephoned the CCC. During this call (the first call) she spoke initially with Ms Lloyd, administrative officer. She asked Ms Lloyd where the CCC representatives were, indicating that the conference was underway. Ms Lloyd transferred the call to Ms Younger between 9.46 and 9.50am. [5] Ms Younger says that the tribunal registry officer queried whether the CCC would be attending. Ms Younger explained that she personally had not seen a notice about the conference and had been unaware of the conference. She asked whether she could attend by telephone. The tribunal registry officer informed her that this was not suitable. Ms Younger said that she could be at the tribunal’s premises within about 20 minutes, which, she was told, was suitable to the parties. [6] Ms Younger was familiar with the file and the preparation carried out on it. She says, inter alia, that she had prepared the initial advice on prospects recommending the application for review be made; obtained initial instructions about the range of sanction; drafted the application; and been consulted and informed on progress (although not as to the date allocated for the compulsory conference) by Ms Vass between 16 December 2013 and 14 February 2014. Counsel had been briefed on 7 February by Ms Vass to give advice prior to the compulsory conference. [7] After the first call was terminated, Ms Younger telephoned Counsel and was in the process of obtaining his advice to submit to relevant officers, so that she could obtain instructions for the conference. She believes that she would have been able to obtain instructions from the person entitled to give them, Ms Wood, who is the Official Solicitor. She had already spoken with Ms Wood to alert her. [8] The tribunal registry officer then telephoned the CCC again (the second call). Ms Lloyd says the second call was received by her at about 9.53am. The tribunal registry officer told Ms Lloyd that the parties had agreed to adjourn the conference until a later date and to ‘try to catch whoever is coming before they leave’. The tribunal registry officer then asked to speak with Ms Younger again. [9] Ms Younger deposes to taking the second call within ‘a few minutes’ of the first call terminating. The tribunal registry officer asked Ms Younger whether the CCC would have instructions at the conference. Ms Younger said she was in the process of seeking instructions. The tribunal registry officer told Ms Younger that the other parties were agreeable to an adjournment so that the CCC could obtain instructions. She understood that her attendance was no longer necessary and that the conference was to be re-listed on a later date. -- 3 of 8 -- 4 [10] At 10.36am, Ms Younger e-mailed the registry and the other parties confirming that her enquiries since the registry’s telephone call revealed that the tribunal’s notice about the conference had been located, but that with a change of administrative assistants, the date was missed. She apologised, requested advice about the relisting of the conference, and gave information about her availability. [11] At about 2.50pm, Ms Younger was verbally advised by Senior Constable Majewski’s representative that the conference had not been adjourned, and that the presiding Member had made orders pursuant to s 72 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) (QCAT Act) dismissing the CCC’s review application. The Tribunal’s orders of 4 March 2014 confirmed the reviewable decision and ordered that the CCC pay the costs of the proceeding of both respondents. [12] The CCC requested reasons for the Tribunal’s decision. The reasons confirm that the decision was made pursuant to s 72(1)(b) of the QCAT Act. The reasons suggest that the conference was held on 5 March. Also, despite the Tribunal’s orders being dated 4 March, the reasons suggest that the orders were made on 14 March. These are apparently typographical errors. The orders were made on 4 March, the day on which the conference occurred and logically the reasons are for the orders made on that day. [13] It is apparent from the reasons for decision that the Tribunal Member was aware of that there were discussions between a tribunal registry officer and CCC representatives.1 There is no evidence about what transpired between the Tribunal Member and the tribunal registry officer. However, it is reasonable to infer that the learned Tribunal Member asked the tribunal registry officer to make telephone calls to the CCC. There is no other mechanism by which the lack of attendance by the CCC would otherwise have come to the attention of the tribunal registry officer during the conference and no calls would otherwise have been made. Consistently with the evidence presented, the reasons for decision tend to suggest that the Tribunal proceeded under s 72(1)(b) after the telephone calls occurred.2 [14] The CCC seeks orders reopening the proceeding,3 on the two reopening grounds provided for in the QCAT Act. The Assistant Commissioner concedes that, on the evidence, a reopening ground appears to exist. Senior Constable Majewski opposes the application. [15] The CCC filed affidavits of Ms Younger (which attaches two file notes made by Ms Lloyd) and Ms Vass, both of whom are legal practitioners. No other party filed evidence. Ms Younger was cross-examined at the hearing. There is no challenge to the evidence of Ms Younger and Ms Vass. 1 Crime and Misconduct Commission v Deputy Commissioner Stephan Gollschewski [2014] QCAT 101 at [3]. 2 [2014] QCAT 101 especially at [1] – [6]. 3 An application for reopening may be made by a party: QCAT Act s138. -- 4 of 8 -- 5 [16] For completeness I note that Senior Constable Majewski submits, in effect, that I should draw an inference that because Ms Wood did not give evidence that no instructions were likely to have been provided for the conference on 4 March. Both the CCC and the Assistant Commissioner submit that given that Ms Younger was not cross-examined about this issue, that her evidence to the effect that she believed she could get instructions should be accepted. [17] I do not draw the inference Senior Constable Majewski argues for. Ms Younger’s evidence makes it apparent that she was well-advanced within a very short period, with the process of obtaining Counsel’s advice, and intended then to proceed to the next step of obtaining instructions from Ms Wood, who was available and had been alerted to the situation. [18] I accept the evidence of Ms Younger and Ms Wood. The basis for reopening of proceedings [19] The Tribunal may grant a reopening on the application of a party only if it considers a reopening ground exists4 and that it can be effectively and conveniently dealt with by reopening.5 Reopening grounds are defined.6 The first reopening ground is that the party did not appear at the hearing of the proceeding and had a reasonable excuse for not attending.7 The second reopening ground is that the party would suffer substantial injustice if reopening was refused because of significant new evidence which was not available when the proceeding was first heard and decided.8 [20] For the purposes of a reopening application, ‘hearing’ is defined to include a compulsory conference if (as was the case here) the presiding Member decides the proceeding under s 72(1)(b) of the QCAT Act.9 Does a reopening ground exist: s139(4)(a)? Does the CCC have a reasonable excuse for not attending the hearing? [21] The CCC’s representatives did not attend the compulsory conference at 9.30am or subsequently during the course of the conference. [22] The CCC acknowledges that administrative error led to the situation that it was not in attendance at the compulsory conference on 4 March 2014 at 9.30am. Ms Lloyd did not enter it into the relevant diary system. Ms Vass who had acted in the position of Deputy Official Solicitor until 17 February did not tell Ms Younger about it. Ms Younger, who had the conduct of the file, was not aware of it. 4 QCAT Act s 139(4)(a). 5 QCAT Act s 139(4)(b). 6 QCAT Act Schedule 3, reopening ground. 7 QCAT Act Schedule 3, reopening ground (a). 8 QCAT Act Schedule 3, reopening ground (b). 9 QCAT Act s 137. -- 5 of 8 -- 6 [23] However, the CCC says, that having received the first call from a tribunal registry officer, its representative, Ms Younger, immediately took steps to obtain the necessary instructions and attend the Tribunal. The CCC did not ultimately attend at the compulsory conference as it progressed on 4 March only because Ms Younger understood from the second call from a tribunal registry officer that an appearance was no longer required, because the conference was to be adjourned and re-scheduled. [24] The CCC submits that, Ms Younger having been told at 9.53am that the conference was to be adjourned and rescheduled, that it must then have had a reasonable excuse for its non-attendance at that stage. It submits, in essence, that until a Member proceeds under s 72(1)(b), that a conference was being held, not a hearing for the purposes of s 139. [25] Senior Constable Majewski says the CCC does not have a reasonable excuse for not attending. He argues that for the purposes of the reopening application, the hearing (as defined in s 137) commenced at 9.30am. He submits that the CCC was obliged to have someone in attendance by 9.30. It did not. Therefore, the Tribunal was entitled under s 72 to proceed in its absence to finally determine the matter. Therefore, he argues that the events which occurred after 9.30am are irrelevant. He suggests that the force of the CCC’s argument should be tested by asking what the outcome would be if the CCC lawyer had been told during the conversations with the tribunal registry officer that the Member intended to proceed with the conference and make a decision under s 72. That, however, is not what occurred on 4 March. [26] There were submissions from the parties about relevant authorities. The CCC argues that obiter comments10 by the learned then President of the Tribunal to the effect that it can not be a reasonable excuse to make an error in misreading a notice and attending at the Tribunal on the wrong day (two days later), are not binding on me. In that case, a party failed to attend on the day that its minor civil dispute was listed for mediation, and unless it resolved, hearing. The observations were made by the learned then President were not part of the ratio of the decision since the application did not concern a reopening application. Senior Constable Majewski submits that the President’s comments should be followed because they deal with the QCAT legislation. [27] The CCC submits that authority from the Victorian Court of Appeal11 involving an appeal from a Victorian Civil and Administrative Tribunal VCAT) decision12 is apposite and compelling. It submits that the Court held that ‘I forgot’, may be a reasonable excuse for failure to attend in appropriate circumstances.13 Senior Constable Majewski points out that the original decision-maker had not considered it to be a case of simply 10 Breezeway Developments Pty Ltd v ADG Hydraulics Pty Ltd [2010] QCATA 69, [13]. 11 Lillas & Loel Lawyers Pty Ltd v Celona & Ors [2014] VSCA 19. 12 The decision appealed to the Supreme Court was Celona v Lillas & Loel Pty Ltd [2012] VCAT 403. 13 Lillas & Loel Lawyers Pty Ltd v Celona & Ors [2014] VSCA 19, relying on [116]. -- 6 of 8 -- 7 forgetting and that in any event, the majority of the Court14 did not decide the question. That is so, although as far as they discussed it, the majority do not appear to criticise the proposition that (as VCAT had observed) in some circumstances simply forgetting may be a reasonable excuse.15 [28] Although these decisions are of persuasive value, they are not binding on me. That aside, they are not helpful because this is not a simple case of forgetting or misreading the notice about the conference. [29] I have considered the arguments about the time at which the CCC must have ‘a reasonable excuse for not attending’ if it is to demonstrate a reopening ground, as defined in Schedule 3 reopening ground (a). Section 137 provides that a hearing includes a conference if the person presiding at the conference decides the proceeding under s 72(1)(b). There is only one process, one listing of the conference at 9.30am. [30] However, the conference is only a hearing as provided for in s 137 ‘if the person presiding over the conference decides the proceeding under s 72(1)(b)’. At some point after the conference had started, the learned Member proceeded under s 72(1)(b) to decide the proceeding and made final orders confirming the reviewable decision. [31] Whether the CCC had reasonable excuse for failing to attend must necessarily be determined in the context of the events which occurred on 4 March. Although it was not incumbent on the Tribunal registry to contact the CCC before proceeding with or during the conference, it did so. Accordingly, whether the CCC had a reasonable excuse, must be determined in light of that contact. That being so, I do not accept Senior Constable Majewski’s argument that what happened after 9.30am is irrelevant. That decision was not made at 9.30am. It is apparent from the evidence given in support of the reopening application and the reasons for decision of the learned Member that it occurred after the telephone contact with the CCC. [32] There are two parts to the CCC’s failure to attend on 4 March 2014. Firstly, as a result of administrative error, the conference was not diarised resulting in its representative not being present at 9.30am on 4 March. Secondly, the tribunal registry officer having contacted it to ascertain if the CCC was to appear and its representative having indicated it would do so, was in the process of taking steps to obtain the necessary instructions and attend the conference. At this point, a tribunal registry representative indicated to the CCC’s representative that the conference was to be adjourned to another date. Therefore, Ms Younger did not take further steps to either immediately seek instructions or attend at the conference on behalf of the CCC. [33] It is reasonable to draw the inference that when the tribunal registry officer made the first and second calls to the CCC, the Tribunal had not 14 Lillas & Loel Lawyers Pty Ltd v Celona & Ors [2014] VSCA 19, at [1] – [2] and [44] – [49]. 15 Ibid. -- 7 of 8 -- 8 proceeded under s 72(1)(b) to make orders adverse to the CCC. If it had already done so, the calls would not have been made. This is consistent with the evidence of Ms Younger about the events of the morning and the contents of Tribunal’s reasons for decision. The CCC then, reasonably in the circumstances, relied upon the tribunal registry officer’s statements to Ms Younger that the matter was to be adjourned and relisted on another date, inferring that its attendance that morning was no longer necessary. [34] In those circumstances, I am satisfied that when the Member proceeded to make the decision pursuant to s 72(1)(b), the CCC had a reasonable excuse for its failure to attend, namely, the reasonable and mistaken belief that the conference was to be adjourned to another date. [35] I do not need to decide whether, (if the tribunal registry had not telephoned the CCC on the two occasions when it did so), the CCC could or would succeed on a reopening application relying on administrative error alone for its non-attendance. That is not the case here. Would the CCC suffer a substantial injustice because of significant new evidence? [36] The CCC also submits that it would suffer a substantial injustice if the proceeding is not reopened because of the significant new evidence of Ms Younger and Ms Vass. [37] In light of my findings set out earlier, I do not need to consider this submission further. The issue of convenience: s 139(4)(b) [38] It is uncontroversial between the parties (and I am satisfied in any event) that the ground can effectively and conveniently be dealt with by reopening. Conclusions and Orders [39] Accordingly, I am satisfied that a reopening ground exists in that the CCC did not attend the conference and had a reasonable excuse for not doing so. I am also satisfied that the ground can conveniently be dealt with by reopening the proceeding. I exercise my discretion to grant the application for reopening. [40] I make orders in the terms submitted by all parties as appropriate if the application succeeds. I reopen the proceeding in respect of all issues; set aside the orders made on 4 March 2014; list the proceeding for a further compulsory conference; and order that the CCC pay the respondents’ costs thrown away of the compulsory conference on 4 March 2014. -- 8 of 8 --