Assistant Commissioner Wilson v Chapman and Anor; Chapman v Assistant Commissioner Wilson and Anor [2012] QCATA 110

CITATION: Assistant Commissioner Wilson v Chapman and Anor; Chapman v Assistant Commissioner Wilson and Anor [2012] QCATA 110 PARTIES: Assistant Commissioner Paul Wilson (Applicant/Appellant) v Stephen Wayne Chapman (First Respondent) Crime and Misconduct Commission (Second Respondent) Stephen Wayne Chapman (Applicant/Appellant) v Assistant Commissioner Paul Wilson (First Respondent) Crime and Misconduct Commission (Second Respondent) APPLICATION NUMBER: APL315-11 / APL339-11 MATTER TYPE: Appeals HEARING DATE: 6 February 2011 HEARD AT: Brisbane DECISION OF: Justice Alan Wilson, President Dr B Cullen, Member DELIVERED ON: 27 June 2012 DELIVERED AT: Brisbane ORDERS MADE: 1. Appeal allowed in both matters; and 2. The orders of the Tribunal of 24 August 2011 joining the Crime and Misconduct Commission to disciplinary review proceedings in both matters are set aside. CATCHWORDS: APPEAL – LEAVE TO APPEAL – INTERIM APPEAL – QUESTION OF LAW – APPLICATION FOR INTERVENTION OR JOINDER – REVIEW PROCEEDINGS – PROFESSIONAL DISCIPLINE – POLICE -- 1 of 10 -- 2 MISCONDUCT – where the applicant was the subject of police disciplinary proceedings – where the applicant sought review of the police disciplinary proceedings – where the QCAT Member allowed the second respondent to be joined as a party to the review proceedings pursuant to s 42 of the QCAT Act – whether the second respondent can intervene or be joined as a party to the review proceedings pursuant to ss 41 and 41 of the QCAT Act Crime and Misconduct Act 2001, ss 5, 219G Queensland Civil and Administrative Tribunal Act 2009, ss 32, 40, 41, 42, 142 Body Corporate for London Woolstores Apartments & Ors v Queensland Building Services Authority [2011] QCAT 086 Chapman v Wilson and Anor [2011] QCAT 400 Chapman v Assistant Commissioner Wilson and Anor [2011] QCAT 529 Crime and Misconduct Commission v Chapman and Anor [2011] QCAT 530 Crime and Misconduct Commission v Assistant Commissioner O’Regan and Anor [2012] QCAT 238 National Australia Bank Ltd v Hokit Pty Ltd (1996) 39 NSWLR 377 APPEARANCES and REPRESENTATION (if any): APPLICANT/FIRST RESPONDENT: Assistant Commissioner Wilson represented by S McLeod of Counsel FIRST RESPONDENT/APPLICANT: Mr Stephen Chapman represented by P Smith of Counsel SECOND RESPONDENT/SECOND RESPONDENT: Crime and Misconduct Commission represented by T Gardiner of Counsel REASONS FOR DECISION JUSTICE ALAN WILSON [1] I have had the advantage of reading the draft Reasons prepared by Dr Cullen. I agree with them, and with the orders she proposes. -- 2 of 10 -- 3 [2] The decision at first instance involves, it seems to me, a decision by a QCAT Member of immense experience who was not afforded the full benefit of the carefully reasoned arguments and submissions about the provisions of the two operative statutes affecting the question to be decided, which have only been articulated before the Appeal Tribunal and have, in the result, persuaded it to a different conclusion. DR BRIDGET CULLEN Preliminary [3] APL315-11 and APL339-11 are two related appeals, each of which requires the QCAT Appeal Tribunal to determine whether the Crime and Misconduct Commission can intervene or be joined as a party, pursuant to ss 41 and 42 of the Queensland Civil and Administrative Tribunal Act 2009 (“QCAT Act”), to an application to review a police disciplinary decision before QCAT. [4] For reasons that shall be elaborated, the answer to that question involves matters of significance for the extant regime for the maintenance of police discipline and accountability in Queensland. [5] At present, there is a difference of opinion as to whether the Crime and Misconduct Commission (“CMC”) can avail itself of s 42 of the QCAT Act. [6] On the one hand, the Queensland Police Service (“QPS”), as well as the individual police officer who is the subject of these disciplinary proceedings, submit that the CMC is only entitled to involve itself in QCAT proceedings in the manner provided for by the Crime and Misconduct Act 2001 (“CM Act”). [7] On the other hand the CMC takes a broader view, and argues that it is entitled to participate in an application to review a police disciplinary decision before QCAT either by means of the CM Act, or by means of the QCAT Act. [8] Although the decision under appeal allowed for the joinder of the CMC pursuant to s 42(1) of the QCAT Act, there are as yet still unresolved questions regarding the possibility of the CMC becoming a party to review proceedings by means of an alternate route, namely that of s 41(2) of the QCAT Act, in circumstances in which it has not invoked the review rights inured in it by s 219G of its parent statute, the CM Act. Chronology [9] As indicated at the commencement of these reasons, the two matters that are the subject of this appeal are closely related, arising out of the same set of primary facts that are alleged to comprise an instance of police misconduct. [10] APL315-11 is an appeal by QPS Assistant Commissioner Paul Wilson against the 24 August 2011 decision of a QCAT Member, the Honourable -- 3 of 10 -- 4 James Thomas AM QC, that the CMC be joined1 as a respondent to a QCAT review application2. The CMC’s interest in the matter before QCAT relates to the adequacy of the penalty that had been imposed at first instance after a finding of police misconduct. [11] APL339-11 is an appeal commenced by Senior Constable Chapman against the 24 August 2011 decision of the same QCAT Member to join the CMC as a party to review proceedings that he had commenced in QCAT, seeking to review the primary findings of police misconduct that had given rise to the imposition of that penalty. [12] As a result of the matters being closely related, the Tribunal ordered that appeals APL315-11 and APL339-11 be heard and decided together.3 [13] The disciplinary proceedings against Senior Constable Chapman that were at the heart of the application to review before QCAT arose from the aftermath of Senior Constable Chapman’s involvement in a high speed police pursuit of a group of motorcyclists. Unfortunately, that pursuit ended in the death of one of the motorcyclists, as well as serious injuries to that cyclist’s pillion passenger. [14] Subsequently there was a police investigation and Senior Constable Chapman’s conduct – both during the high speed pursuit and then subsequently, before the investigation officers – was called into question. Two allegations were directed at Senior Constable Chapman. Matter 1 alleged: “That between the 16th day of June 2006 and the 23rd day of January 2010 at Nerang and Brisbane, your conduct was improper in that you were untruthful during a disciplinary interview.”4 [15] Matter 2 alleged: “That on the 16th day of June 2006 at Nerang your conduct was improper in that you failed to comply with the QPS policy regarding pursuits.”5 [16] Whilst Senior Constable Chapman admitted Matter 2, he contested the first allegation in relation to his untruthfulness. On 2 February 2011, Assistant Commissioner Wilson decided that both Matters 1 and 2 were substantiated, and then fined Senior Constable Chapman $200.00 in relation to each such matter. [17] Senior Constable Chapman then sought review of the 2 February 2011 decision before QCAT, at least insofar as it related to Matter 1 (ie the 1 That is, joined pursuant to s 42 of the QCAT Act. 2 Chapman v Wilson and Anor [2011] QCAT 400. 3 QCAT Direction made in relation to matters APL315-11 and APL339-11 dated 24 November 2011. 4 Disciplinary Hearing Senior Constable Stephen Chapman – Findings and Reasons of Assistant Commissioner Wilson, 2 February 2011 at page 2. 5 Ibid at page 2. -- 4 of 10 -- 5 allegation of untruthfulness), but not in relation to Matter 2, which he admitted.6 [18] On 20 October 2011, QCAT delivered its decision in relation to this matter. The Tribunal set aside the original finding by Assistant Commissioner Wilson that Matter 1 was substantiated, instead finding that Matter 1 was not substantiated. The Tribunal also set aside the $200.00 penalty in relation to Matter 1. At the same time, the Tribunal determined that Matter 2 (improper conduct in failing to comply with QPS policy regarding pursuits) was substantiated, on the basis of Senior Constable Chapman’s admissions. [19] In parallel, the CMC sought review of the sanctions that had been originally imposed on Senior Constable Chapman by Assistant Commissioner Wilson.7 As a preliminary matter, the learned QCAT Member allowed the CMC to be joined as a party pursuant to s 42(1) of the QCAT Act, notwithstanding that it had not commenced review proceedings of its own motion pursuant to s 219G of the CM Act.8 [20] As the Tribunal had found that Matter 1 (untruthfulness) was not substantiated, the only live issue for the Tribunal in the CMC’s review was in relation to Matter 2. The Tribunal held that the original sanction of $200.00 was manifestly inadequate, and instead substituted a determination that Senior Constable Chapman’s salary entitlements should be reduced by two pay points, for a period of two years.9 [21] This appeal now traverses the legitimacy of the decision to allow the CMC to be joined to those review proceedings. Leave to appeal is not required [22] Leave is required to appeal to the QCAT Appeal Tribunal on a question of fact or mixed law and fact, but not to appeal on a question of law.10 The issues now before the Tribunal in relation to intervention under s 41 of the QCAT Act and joinder under s 42 of the QCAT Act, and the CMC’s rights of review pursuant to s 219G of the CM Act, are purely legal in nature. On this basis, leave to appeal is not required by either Senior Constable Chapman or Assistant Commissioner Wilson. Legislative framework [23] The resolution of the question whether the CMC may become a party to QCAT proceedings by means of a joinder under s 42 of the QCAT Act requires consideration of both s 219G of the CM Act and, also, ss 41 and 42 of the QCAT Act. 6 Chapman v Assistant Commissioner Wilson and Anor [2011] QCAT 529. 7 Crime and Misconduct Commission v Chapman and Anor [2011] QCAT 530. 8 Chapman v Wilson and Anor [2011] QCAT 400. 9 Crime and Misconduct Commission v Chapman and Anor [2011] QCAT 530. 10 Queensland Civil and Administrative Tribunal Act 2009, ss 146, 147. -- 5 of 10 -- 6 [24] Section 219G of the CM Act provides: (1) The commission or a prescribed person against whom a reviewable decision has been made may apply, within the period mentioned in subsection (2) and otherwise as provided under the QCAT Act, to QCAT for a review of the reviewable decision. (2) The application must be made- (a) if the reviewable decision relates to a decision or finding mentioned in the Police Service Administration Act 1990, section 7.4(2A), 7A.4 or 7A.5 – within 14 days after the day on which notice of the decision or finding was given; or (b) otherwise – within 14 days after the day on which the reviewable decision was announced. (3) The parties to a proceeding are– (a) the prescribed person; and (b) the person who made the reviewable decision; and (c) if the application is made by the commission- the commission. [25] Section 41(2) of the QCAT Act provides: The tribunal may, at any time, give leave for a person to intervene in a proceeding, subject to the conditions the tribunal considers appropriate. [26] Next, section 42 of the QCAT Act provides: (1) The tribunal may make an order joining a person as a party to a proceeding if the tribunal considers that– (a) the person should be bound by or have the benefit of a decision of the tribunal in the proceeding; or (b) the person's interests may be affected by the proceeding; or (c) for another reason, it is desirable that the person be joined as a party to the proceeding. (2) The tribunal may make an order under subsection (1) on the application of a person or on its own initiative. Submissions by the QPS and Senior Constable Chapman [27] When distilled, the QPS and Senior Constable Chapman each submit that the only legitimate “pathway” by which the CMC may become a party to the review of a reviewable decision under the CM Act is by means of s 219G(1) of that Act, which affords the CMC with specific review rights going to matters within the CM Act. -- 6 of 10 -- 7 [28] They observe that s 219G of the CM Act then synchronises with s 40(1)(e) of the QCAT Act, which defines “a party” to QCAT proceedings, including one specified by a provision in an “enabling Act”, of which s 219G of the CM Act affords just such an instance. [29] Next, they submit that s 42 of the QCAT Act cannot be used to join a party to an application under s 219G of the CM Act, on the basis that the specific provision in the enabling act (s 219G) should be seen as displacing the more general provision in s 42 of the QCAT Act. [30] In short, in circumstances in which the CMC has failed to avail itself of specific review rights afforded to it within the (in practical terms, admittedly tight) 14 day window of opportunity afforded by s 219G of the CM Act, it ought not then be allowed to “go round the buoy” and approach the opportunity to become a party to the review by means of s 42 in the QCAT Act. The CMC’s interests as an independent monitoring body [31] In his reasons11, the learned QCAT Member concluded that: (a) the power to join the CMC as a party to review proceedings existed under s 42 of the QCAT Act; (b) the statutory functions of the CMC pursuant to the CM Act afforded sufficient interest to justify the CMC’s joinder under s 42(1)(b); and (c) s 219G did not negate the possibility of joinder under s 42 of the QCAT Act. [32] It is important here to further record that the CMC sought to join these review proceedings on the basis that it would then take no active part in them; rather, the CMC sought to join these proceedings solely in order to preserve appeal rights that would not exist if it were not a party to the review. [33] Whilst the CMC may have had a concern about the appropriateness of the initial penalty imposed in this matter, in my view, that, together with the statutory functions of the CMC, does not, ipso facto, translate to become an “interest” in these proceedings sufficient to justify its joinder as a party under the QCAT Act. [34] That interest is a broad public interest, and not one specific to the CMC. In order to draw that nexus the learned Member who allowed the joinder observed that the CMC has, “… the important function of independent monitoring and review in relation to police misconduct.”12 11 Chapman v Wilson and Anor [2011] QCAT 400. -- 7 of 10 -- 8 [35] This, I think, is the crux of the issue now before this Appeal Tribunal: if the CMC is “independent,” then how can it be said to have sufficient interests to justify joinder in these circumstances? As the CMC is established pursuant to an Act of Parliament13, it cannot be said that the CMC has any legal interests in these proceedings – its status as the independent monitoring body will remain unaffected by the outcome in Senior Constable Chapman’s disciplinary review. Time constraints for reviews under s 219G of the Crime and Misconduct Act 2001 [36] In arguing that its interests may be affected as a result of Senior Constable Chapman’s disciplinary review proceedings, the CMC submits that it falls within the purview of s 42(1)(b) of the QCAT Act. It is plain that, in its role as an independent watchdog, the legislature intended to afford the CMC the ability to review certain decisions made in relation to police misconduct as provided for in s 219G of the CM Act. There is a time constraint of 14 days imposed on the Commission to make a decision about whether to proceed with a review under s 219G of the CM Act. [37] This short 14 day time constraint is no doubt in part because the public interest in having an independent body such as the CMC is best effectuated by the CMC taking quick action in response to policy concerns about the integrity of police discipline when officer conduct falls short of legitimate public expectations; or when the penalty imposed by the Commissioner is seen as too lenient. I am compelled to the view that s 219G of the parent statute has a purpose, and there should not be an avenue to side-step it. [38] Section 42 of the QCAT Act, in contrast, imposes no timeframe on the joinder of a party. It strikes me as wholly inadequate, as a matter of public policy, to facilitate the joinder of an independent CMC at any point other than at an early juncture. To allow joinder at any stage of disciplinary review proceedings interferes with the functioning of the employer/employee relationship that exists between the Police Service and the officer being disciplined. It must be remembered that despite its important and valuable public safety role, the Police Service must also be able to manage its officers like any other employer, without interference from the CMC at whatever point it decides to involve itself. Prejudice to Senior Constable Chapman if joinder is permitted [39] I think it fair to also say that officers (herein Senior Constable Chapman) should not perpetually be exposed to the stress and uncertainty in relation to their employment status that would flow from allowing the Commission to interject itself in disciplinary proceedings at any juncture. 12 Chapman v Wilson and Anor [2011] QCAT 400 at [8]. 13 Crime and Misconduct Act 2001, s 5. -- 8 of 10 -- 9 [40] A similar view in relation to the obvious stress and prejudice to the officer, in circumstances where the CMC sought an extension of time to commence review proceedings pursuant to s 219G of the CM Act, has been taken by a QCAT Senior Member in Crime and Misconduct Commission v Assistant Commissioner O’Regan and Anor14. In that matter, the CMC sought an extension of some three days, which the Tribunal did not allow in the circumstances. [41] The 14 day timeframe provided in s 219G of the CM Act for the CMC to consider taking part in disciplinary proceedings strikes a balance between the public interest in ensuring police integrity, and the rights of the employer and the officer. [42] Assistant Commissioner Wilson submits that: “[the CMC’s] overseeing function is enlivened when, in this instance, the appellant [the Assistant Commissioner] made his decision. It does not arise nor does it continue when a police officer commences proceedings in this Tribunal and the CMC elects not to file its own proceedings under s.219G.”15 [43] The CMC raised concerns that if it was not joined to Chapman’s review proceedings, then it would not have the ability to appeal in circumstances where the Tribunal set aside a finding that the misconduct was substantiated. [44] I do not accept an argument by the CMC that the public interest is met by it being a “passive party” during a disciplinary review. It is the case that in circumstances where the Tribunal has allowed joinder of a party pursuant to s 42 of the QCAT Act, it has been contemplated that the joined party would take an active role in the proceedings.16 What would be the merits of allowing the CMC to intervene? [45] The learned Member allowed the CMC to be joined pursuant to s 42(1)(b) of the QCAT Act and adverted only briefly in his reasons to an alternative possibility: that of the CMC becoming a party17 to review proceedings “at any time” as an intervener, pursuant to s 41(2) of the QCAT Act. [46] In my view, s 41(2) of the QCAT Act preserves an important discretion that enables the Tribunal to permit another entity to join review proceedings wherever the circumstances warrant such an intervention, unrestrained by the usual time constraints for joinder arising under either the QCAT Act or an enabling Act; and without the strict need to establish interest criteria for a joining party under s 42(1) of the QCAT Act. 14 [2012] QCAT 238. 15 Submissions of Assistant Commissioner Wilson, dated 3 October 2011 at [8]. 16 Body Corporate for London Woolstores Apartments & Ors v Queensland Building Services Authority [2011] QCAT 086. 17 QCAT Act, s 40(1)(c). -- 9 of 10 -- 10 [47] Although not joined as a party, an intervener is nonetheless still a “party” and thus has appeal rights pursuant to s 142 of the QCAT Act. The discretion to allow an intervener is “at large”, and will be restrained only by regard to the overall objects of the QCAT Act. In the appropriate case, this may allow public interest advocacy by the CMC, even in circumstances in which the opportunity afforded the CMC by s 219G of the CM Act has already passed. [48] I would add that in the circumstances of this case my view is that there is no utility in allowing a party to intervene in circumstances in which that party expresses an intent to take a passive role, and this would be a factor that militates against exercise of the discretion in s 41(2) of the QCAT Act.18 [49] So, too, it is inappropriate that a party be permitted to join or intervene in disciplinary proceedings merely on the presumption that the decision in question may miscarry, or to create a right of appeal in case the decision- maker chooses not to appeal a decision that the CMC is not satisfied with. [50] To allow joinder in the manner proposed would place the CMC in a monitoring role with the Tribunal, permitting it to be passive unless the Tribunal makes a decision it deems unsatisfactory. This would place the independent role that the Tribunal holds in these matters in peril, in that applications for joinder or intervention might come to be seen as deserving a more heavy-handed approach by the Member, and such a result is surely not the intention of the legislature. Conclusion [51] For the reasons set out above, I do not consider that the CMC has demonstrated that it falls within the scope of one or more of the considerations relevant to joinder contained in s 42(1)(a), (b) (“interests may be affected”) or (c) (“desirable”) of the QCAT Act. [52] The appropriate ordinary mechanism by which the CMC becomes a party to disciplinary review proceedings is by virtue of s 219G of the CM Act, wherein the CMC files a review application in QCAT as an applicant. It is neither appropriate, nor in the public interest for the CMC to circumvent s 219G of the CM Act by seeking to be joined as a party under s 42(1) of the QCAT Act to secure a position whereby they may, if unsatisfied with the Tribunal’s decision, effectuate an appeal. In limited circumstances (of which this case is not an instance) the CMC may seek a role as an intervenor, pursuant to s 41(2) of the QCAT Act. [53] For these reasons the appeals in both matters should be allowed. 18 Consider, for example, National Australia Bank Ltd v Hokit Pty Ltd (1996) 39 NSWLR 377 at 381. -- 10 of 10 --