Crime and Misconduct Commission v Deputy Commissioner Queensland Police Service & Chapman [2010] QCAT 319

CITATION: Crime and Misconduct Commission v Deputy Commissioner Queensland Police Service & Chapman [2010] QCAT 319 PARTIES: Crime and Misconduct Commission - applicant v Deputy Commissioner Queensland Police Service – first respondent Mr Damien Chapman – second respondent APPLICATION NUMBER: OCR015-10 MATTER TYPE: Occupational regulation matters HEARING DATE: 9 July 2010 HEARD AT: Brisbane DECISION OF: S Booth DELIVERED ON: 9 July 2010 DELIVERED AT: Brisbane ORDERS MADE: The first respondent give a copy of the documents provided to the Tribunal under section 21(2) including indices and pagination, to the applicant and the second respondent by 9 August 2010. CATCHWORDS : Section 21 of Queensland Civil and Administrative Tribunal Act 2009 APPEARANCES and REPRESENTATION (if any): The hearing took place on the papers in the absence of the parties -- 1 of 6 -- OCR015-10 / Page 2 of 6 REASONS FOR DECISION Introduction 1. The applicant, the Crime and Misconduct Commission (CMC) has sought a direction under section 62 of the Queensland Civil and Administrative Tribunal Act 2009 (the QCAT Act) that the first respondent, Deputy Commissioner Kathy Rynders of the Queensland Police Service (the decision maker) provide the CMC and the second respondent (Sergeant Chapman) with a copy of all material provided by the decision maker to the Tribunal pursuant to section 21(2) of the QCAT Act. 2. The section 21 (2) material consists of 3 volumes of documents, paginated and indexed, totalling 855 pages. 3. In these proceedings, the CMC seeks a review of a disciplinary decision made by the decision maker. That decision concerned whether the second respondent, Sergeant Chapman, used excessive force when arresting a minor, and when questioned about that arrest, whether he engaged in improper conduct by being untruthful in his disciplinary interview. 4. At a directions hearing, written submissions were directed to be provided to the Tribunal and the present application is to be determined on the papers. The Legislation 5. Section 21 of the QCAT Act outlines the duties of a decision maker in relation to a review of a decision made by that decision maker. The section provides: (1) In a proceeding for the review of a reviewable decision, the decision-maker for the reviewable decision must use his or her best endeavours to help the tribunal so that it can make its decision on the review. (2) Without limiting subsection (1), the decision-maker must provide the following to the tribunal within a reasonable period of not more than 28 days after the decision-maker is given a copy of the application for the review under section 37— (a) a written statement of the reasons for the decision; (b) any document or thing in the decision-maker’s possession or control that may be relevant to the tribunal’s review of the decision. 6. Section 21(1) is novel within the Queensland context. It requires decision makers to use their best endeavours to assist the Tribunal in performing its review function. Further, the Explanatory notes to the Bill give explicit guidance to the purpose of the provision: “It is not the role of the decision-maker to act like a party in an adversary system”. 7. Section 21(2) details what is required of the decision maker once given a copy of an application for review. In particular, the decision maker must provide both a written statement of reasons for the decision and any document or thing in the possession or control of the decision maker that may be relevant to the Tribunal’s review of the decision. -- 2 of 6 -- OCR015-10 / Page 3 of 6 8. Of note, the decision maker’s duty to help the tribunal is not limited to providing these two types of documents. Section 21(2) is expressly drafted so as not to limit the best endeavours of the decision maker to merely providing those documents. 9. Section 62 of the QCAT Act enables the Tribunal to give directions that are necessary for the speedy and fair conduct of the matter. Subsection (3) provides: (3) Without limiting subsection (1), the tribunal may give a direction under this section requiring a party to the proceeding to produce a document or another thing, or provide information to— (a) the tribunal; or (b) another party to the proceeding. Submissions and discussion 10. The CMC seeks a Tribunal direction pursuant to section 62 of the QCAT Act that the decision maker provide the CMC and Sergeant Chapman with a copy of all material provided by the decision maker to the Tribunal pursuant to section 21(2) of the QCAT Act. 11. The CMC was not a party to the original disciplinary proceedings and submits that it does not know what material was before the decision maker and what submissions were made during the course of the disciplinary hearing process. The CMC’s submissions note that during the course of investigation of misconduct it necessarily comes into possession of some of the material ultimately considered by the decision maker in disciplinary proceedings. However, it submits that this is no substitute for a full copy of the material required to be supplied by the decision maker to the Tribunal under section 21(2), including indices and paginated documents. 12. The decision maker opposes directions to provide to other parties to this proceeding a complete copy of the record provided to the Tribunal under section 21(2). Further, the decision maker submits that the assistance she is obliged to provide to the tribunal under section 21(1) should not be confused with providing assistance to other parties. However, the decision maker acknowledges that the Tribunal has power to direct her to provide other parties with a copy of the record given to the Tribunal. 13. The decision maker further submits that it is unusual to expect a respondent to an appeal to bear the costs of preparation of the record of appeal and review, noting the obligation would be both onerous and expensive. 14. The material sought by the CMC is, in essence, a copy of the identical paginated material and index supplied to the Tribunal, not merely copies of the documents supplied. It submits that without the index and the means of proper reference through pagination, there is potential for a negative impact on the Tribunal’s review function. The CMC seeks this material in electronic form. 15. The matter to be decided in this application is what further documents, if any, should be provided to the CMC and how they should be provided? -- 3 of 6 -- OCR015-10 / Page 4 of 6 16. In answering this question the tribunal must ensure all parties are afforded procedural fairness but that the matter can proceed with as little formality and technicality as possible. That is, the challenge for the tribunal is to ensure that the requirements set out in section 28 of the QCAT Act, namely to act fairly and according to the substantial merits of each case, are met. 17. The decision maker resists because of cost and asserts that it is for each party to put itself in a position whereby it has a copy of the record for the proceeding and argues that requirement to help the tribunal stated in section 21(1) should not be confused with providing assistance to parties in the form of a complete and fresh copy of the record. 18. The CMC and the decision maker agree that the tribunal has the power under section 62 of the QCAT Act to direct the decision maker to provide other parties with a copy of the material given to the tribunal in compliance with section 21(2). The tribunal concurs that the power exists, and the issue to be decided is whether such a direction should be given in this case. 19. As this is the first such matter to be determined in this jurisdiction, this decision has the potential to influence the conduct of future matters. 20. The material provided to the tribunal by the decision maker in compliance with section 21(1) is composed of - • Part A – 110 pages including direction to attend the disciplinary hearing, transcript of disciplinary hearing, submissions of Sergeant Chapman, formal finding and findings and reasons. • Part B – 745 pages including discipline Investigation report, arrest information, medical report and files, transcript of interviews with the complainant and various witnesses and other relevant documents. 21. The decision maker noted that “the relevant evidence I have considered in this matter is contained between pages 1 to 745 inclusive on the record prepared for the purposes of these disciplinary proceedings. I have also considered the oral and written submissions made by you.” 22. In deciding whether such a direction should be given, the tribunal has taken into account the following factors. • The decision maker is required by law to use best endeavours to help the tribunal. • Section 21(2) requires the decision maker to provide a copy of the material to the tribunal but not to other parties. • Section 21(2) does not exclude material being provided to other parties whether of the decision maker’s volition or under a direction of the tribunal. • Section 62 requires that the tribunal to make directions as necessary to ensure the speedy and fair conduct of the proceeding. -- 4 of 6 -- OCR015-10 / Page 5 of 6 • The tribunal must act fairly according to the substantial merits of the case and observe the rules of natural justice (section 28). • The decision maker has stated that the material provided to the tribunal was relevant evidence in the disciplinary proceedings. • The tribunal’s review is conducted by way of rehearing (Crime and Misconduct Act 2001 section 219H). Conclusion 23. The QCAT Act places a duty on the decision maker to help the tribunal in proceedings: section 21(1). That help is not confined by the specific documents required to be provided to the Tribunal by decision maker by section 21(2). 24. In this case, the decision maker submits that all the material in the 745 pages was relevant and considered in making her decision. The material before the Tribunal is voluminous and its proper consideration by the tribunal will require all parties to be able to access the material efficiently. 25. Section 62(3) contemplates that the tribunal can make directions that a party provide documents of another party to a proceeding. 26. The tribunal concludes that the decision maker would assist the tribunal, and ensure the matter proceeds in a speedy and fair manner, if she provides all parties with copies of documents given to the tribunal under section 21(2), including indices and pagination. 27. This will assist the tribunal by ensuring that all parties have a full set of documents, identically referenced. It will allow proper consideration of key issues before the tribunal; it is consistent with the requirements of procedural fairness; and by providing the parties with the material that the decision maker considered was relevant when making her original decision, it is fair. 28. The tribunal notes the decision maker’s submissions about the additional effort and expense necessary to provide copies to the CMC and Sergeant Chapman. The tribunal considers that in the context of the review, providing the additional copies is not unduly onerous. The materials have already been prepared for the tribunal and no other entity is capable of producing the documents in the form that will assist the tribunal. Further, while the applicant is a government entity, the second respondent is not. It is inevitable that occupational regulation matters will involve individuals who may or may not have financial means or the support of an industrial organisation. Not having all parties referring to documentary evidence in the same way in submissions will reduce the efficiency and fairness of tribunal proceedings. Further, assisting the tribunal by way of way of full set of documents, identically referenced is particularly important in misconduct matters where the review is conducted by way of a rehearing. 29. The decision maker is not required to provide the documents in electronic form. -- 5 of 6 -- OCR015-10 / Page 6 of 6 30. The submissions from the decision maker additionally address the issue of a compulsory conference. This will be considered at a future directions hearing in the matter. 31. The Tribunal directs that the first respondent give a copy of the documents provided to the Tribunal under section 21(2) including indices and pagination, to the applicant and the second respondent by 9 August 2010. -- 6 of 6 --