Crime and Misconduct Commission v Deputy Commissioner Stephen Gollschewski [2014] QCAT 101

CITATION: Crime and Misconduct Commission v Deputy Commissioner Stephen Gollschewski [2014] QCAT 101 PARTIES: Crime and Misconduct Commission (Applicant) v Deputy Commissioner Stephan Gollschewski (First Respondent) Robert Majewski (Second Respondent) APPLICATION NUMBER: OCR306-13 MATTER TYPE: Occupational regulation matters HEARING DATE: On the papers HEARD AT: Brisbane DECISION OF: Dr Cullen, Member DELIVERED ON: 14 March 2014 DELIVERED AT: Brisbane ORDERS MADE: 1. The reviewable decision is confirmed. 2. The Applicant to pay the First and Second Respondents’ costs of the proceedings as agreed, or as assessed. CATCHWORDS: POLICE DISCIPLINARY PROCEEDINGS - PROCEDURE – COMPULSORY CONFERENCE – where Applicant failed to attend – Respondents seek that in absence of Applicant‘s attendance, the decision under review be confirmed. Costs of the proceedings awarded to respondents. 72(1)(b) of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) APPEARANCES and REPRESENTATION (if any): APPLICANT: Crime and Misconduct Commission No appearance FIRST RESPONDENT: Ms Belinda Wadley, Solicitor, Office of the -- 1 of 4 -- 2 Queensland Police Service Solicitor, Queensland Police Service SECOND RESPONDENT: Mr M Black, Counsel, instructed by Gilshenan and Luton REASONS FOR DECISION [1] On 5 March 2014, the Tribunal conducted a Compulsory Conference in this matter. The compulsory conference commenced at 9:30am, with only the Respondents, Deputy Commissioner Gollschewski and Mr Robert Majewski, and their legal representatives in attendance. The Crime and Misconduct Commission ―CMC‖ did not attend the Compulsory Conference. [2] The Tribunal is satisfied that the CMC had notice of the compulsory conference. The file indicates that the Tribunal‘s case manager emailed the compulsory conference notice to the CMC, as well as mailing it to the street address nominated on the CMC‘s Application for Review. There is also correspondence on the file, between the case manager and all of the parties, including the CMC, in relation to suitable and unsuitable dates for the scheduling of the compulsory conference. [3] At approximately 10.00am, the CMC had still not arrived at the compulsory conference and the Tribunal‘s case manager called to enquire about the matter. The Tribunal‘s case manager was then advised by the Deputy Official Solicitor of the CMC that (1) this matter was no longer being handled by her; and (2) the solicitor with carriage of the file was not in the office. The Deputy Official Solicitor then advised that, if the Tribunal wished, she could appear by telephone, or travel from her office in Fortitude Valley to attend the compulsory conference that was, by then, already underway. The Tribunal‘s case manager was also advised that although the Deputy Official Solicitor did not have any instructions, she would try to obtain instructions on the drive to the Tribunal. [4] It is necessary for parties to have instructions in advance of a compulsory conference in order to ensure that the process is meaningful. As the Tribunal could not be confident that any instructions would be obtained, and as the conference was already underway, the conference was then conducted and concluded in the absence of the CMC. [5] It should be noted that paragraph 4 of the Tribunal‘s ―Notice of Compulsory Conference‖ reads as follows: 4. If a party does not attend at the compulsory conference, the conference may proceed in their absence. The person presiding over the conference may make a decision against the interests of the party who does not attend, including: -- 2 of 4 -- 3 a. a decision which finally decides all matters the subject of the proceeding; b. a decision that the absent party be removed from the proceeding; or c. a decision that the absent party pay costs. [6] The Respondents jointly applied for dismissal of the CMC‘s Application for Review pursuant to s 72(1)(b) of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) (‗QCAT Act‘), and sought that the Tribunal confirm the Deputy Commissioner‘s decision of 26 November 2013. [7] Section 72(1)(b) of the QCAT Act provides as follows: (b) if the person presiding is a member or an adjudicator, and all the parties present agree, the person may— (i) make a decision adverse to the absent party and make any appropriate orders, including orders about costs; or (ii) order that the absent party be removed from the proceeding, and pay another party‘s costs reasonably incurred by the other party as a result of the absent party‘s involvement in the proceeding. [8] The CMC‘s originating application is scant with detail as to what precisely it seeks in its review. The application asserts that the CMC seeks a sanction for the matter that ‗properly reflects the purpose of disciplinary proceedings‘. However, the application does not indicate the penalty parameters that the CMC believes would be appropriate, in having commenced the review. In circumstances where the CMC is also absent from the compulsory conference, the Application for Review also fails to shed any light upon the arguments that might be raised by the CMC in support of the review. [9] In such circumstances, the Tribunal considers it appropriate to dismiss the Application for Review. Mr Majewski has had these disciplinary proceedings, and the corresponding stress associated with same, lingering over him for some four years now. Parties to disciplinary processes are entitled to finality after a reasonable period. Such an approach is consistent with the objects of the QCAT Act, which require that the Tribunal deal with matters in a way that is not only fair, just, and quick, but which also enhances the accountability of public administration. No doubt, the CMC will carefully examine the circumstances that led to its non-attendance at the compulsory conference in these proceedings, which may have the benefit of enhancing its administration of future matters before the Tribunal. Costs of the Proceedings [10] When a party, for whatever reason, fails to attend a compulsory conference, there are cost implications for the parties that do attend, particularly where they have instructed solicitors and counsel as is the case here. -- 3 of 4 -- 4 [11] It would be manifestly unfair to expect the respondents to bear the costs of proceedings that have now been dismissed by the Tribunal, in accordance with s72(1)(b) of the QCAT Act. The Tribunal has now confirmed the decision that was under review, rendering the proceedings commenced a nullity, but only after the respondents incurred potentially significant costs. [12] As the Tribunal does not have information before it sufficient to permit the fixing of the costs to be paid by the CMC to the respondents, the order will be that the costs of the proceedings be agreed or, failing agreement, as assessed. -- 4 of 4 --