Crime and Misconduct Commission v Rynders & Chapman [2010] QCAT 187

CITATION: Crime and Misconduct Commission v Rynders & Anor [2010] QCAT 187 PARTIES: Crime and Misconduct Commission - applicant v Deputy Commissioner Kathy RYNDERS – first respondent and Sergeant Damien CHAPMAN – second respondent APPLICATION NUMBER: OCR015-10 MATTER TYPE: Occupational regulation matters HEARING DATE: 28 April 2010 HEARD AT: Brisbane DECISION OF: C Endicott, senior member DELIVERED ON: 28 April 2010 DELIVERED AT: Brisbane ORDERS MADE: The time limit for the start of this proceeding is extended to 19 January 2010. CATCHWORDS : Extension of time – sections 6(4), 6(7), 7(2) and 61 Queensland Civil and Administrative Act 2009 – section 219G of Crime and Misconduct Act 2001 APPEARANCES and REPRESENTATION (if any): The hearing took place on the papers in the absence of the parties. -- 1 of 6 -- REASONS FOR DECISION 1. On 24 December 2009 the Crime and Misconduct Commission (CMC) received a letter from the Assistant Commissioner of Police, Ethical Standards Command, containing information that disciplinary proceedings against Sergeant Damien Chapman had been finalised on 18 December 2009 by Deputy Commissioner Rynders with a finding that the allegations of misconduct were unsubstantiated. 2. Due to on duty staff within the CMC being rostered to deal with urgent complaints over the Christmas holiday period when the majority of staff were on holidays, it was not until 4 January 2010 that the CMC determined that the decision to finalise the disciplinary proceedings against Sergeant Chapman warranted further examination. 3. On 19 January 2010 the CMC filed an application in the Queensland Civil and Administrative Tribunal (QCAT) to seek a review of the decision made by Deputy Commissioner Rynders in the disciplinary proceedings against Sergeant Chapman. On 12 February 2010 the CMC filed an application with the Tribunal seeking an extension of time in which to start the review proceedings. 4. Submissions on the extension of time application have been lodged with the Tribunal by the applicant and both respondents in accordance with directions of the Tribunal and the application is to be determined on the papers. THE LEGISLATION 5. From 1 December 2009 QCAT has power to review decisions made in relation to an allegation of misconduct under the Crime and Misconduct Act 2001. Section 219G (1) of the Crime and Misconduct Act 2001 provides as follows: 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. 6. In this case, section 219G (2) of the Crime and Misconduct Act 2001 provides that the application for review must be made within 14 days of the day when notice of the decision was given. 7. Under section 33(3) of the Queensland Civil and Administrative Tribunal Act 2009 (the QCAT Act), an application for review must be filed in QCAT within 28 days after the applicant is notified of the decision sought to be reviewed. 8. Section 6(4) of the QCAT Act provides that an enabling Act conferring review jurisdiction on QCAT may state the Tribunal’s functions in the jurisdiction which may add to, otherwise vary, or exclude functions stated in the QCAT Act. Section 6(7) of the QCAT Act provides that an enabling Act may vary provisions in the QCAT Act as to requirements about applications and an example given in that subsection identifies one such requirement as the period within which an application must be made to QCAT. -- 2 of 6 -- 9. Section 7(2) of the QCAT Act provides that an enabling Act containing provisions that modify the provisions in the QCAT Act prevails over the QCAT Act. 10. Section 61(1) of the QCAT Act provides that QCAT may extend a time limit fixed for the start of a proceeding by the QCAT Act or an enabling Act. Section 61(2) of the QCAT Act provides that an extension of time may be given even if the time for complying with the requirement has passed. 11. Section 61(3) of the QCAT Act provides as follows: The tribunal can not extend or shorten a time limit or waive compliance with another procedural requirement if to do so would cause prejudice or detriment, not able to be remedied by an appropriate order for costs or damages, to a party or potential party to a proceeding. SUBMISSIONS 12. The review application was made by the CMC more than 14 days after it received notice of the decision that is being sought to be reviewed. Submissions by the CMC stated that it had not been provided with an information notice about the right to seek review of the decision made by Deputy Commissioner Rynders and which would have set out the period within which the review could be commenced. 13. It was submitted that the written findings of Deputy Commissioner Rynders incorrectly stated that a review to QCAT could be made within 28 days of the date of her decision. Legal advice given to the CMC had stated that the review to QCAT could be commenced within 28 days of receipt of the decision. Doubts about a 28 day period within which to commence a review were only identified on 19 January 2010. 14. Although a submission was made by the CMC that the wording “and otherwise as provided under the QCAT Act” in section 219G(1) of the Crime and Misconduct Act 2001 could be argued as incorporating the longer 28 day time limit provided by section 33 of the QCAT Act into the time limit for starting a review under section 219G, it was conceded that such a conclusion was unattractive. The CMC submitted that the better interpretation of section 219G was that a review must be commenced within 14 days. 15. The CMC submitted that QCAT had a discretion to extend time under section 61 of the QCAT Act and that discretion was only constrained by the provisions in section 61(3) of the QCAT Act. It was submitted that neither respondent would be caused relevant prejudice or detriment by an extension of time being granted. 16. It was submitted by the CMC that there had been a satisfactory explanation given for the delay in starting the review and that there is an important public interest issue in permitting the CMC to carry out the purposes of the Crime and Misconduct Act 2001 including the purpose of continuously improving the integrity of, and reducing the incidence of misconduct in, the public sector. 17. Submissions lodged on behalf of Deputy Commissioner Rynders supported the contention that the review had been started out of time and that QCAT could extend time within which the review could be -- 3 of 6 -- started by exercising a discretion provided in section 61 of the QCAT Act. It was submitted that QCAT will only be authorised to exercise the discretion when it is affirmatively satisfied that an order extending time should be made. To do so, QCAT must examine that reason for non compliance with the statutory time limit and the apparent merits of the application. The factors to be taken into account must be properly relevant to determining whether it is in the interests of justice to extend time. 18. Submissions lodged on behalf of Sergeant Chapman accepted and relied on the submissions made by the first respondent as to the factors to be taken into account when QCAT exercised discretion to extend time under section 61 of the QCAT Act. It was submitted that time limits are imposed by statute to give finality to proceedings and the discretion to extend time should not be lightly exercised. 19. It was submitted that the incident that is the subject of the disciplinary proceedings is alleged to have occurred on 18 May 2007. Sergeant Chapman potentially stands to suffer having the disciplinary proceedings re-litigated through no fault of his own after he believed the time limit for review had lapsed. 20. It was submitted that the findings made by Deputy Commissioner Rynders in the disciplinary proceedings were legally sound and in accordance with the evidence. It was submitted that it was unlikely that the decision would be set aside after a re-hearing. As the role of the CMC in over viewing police misconduct is of high public interest, it was submitted that an extension of time should only be granted where the decision sought to be reviewed is not defensible or is against the weight of the evidence. 21. There was considerable argument by the applicant and the respondents in the submissions about the information notice required to have been given by the decision maker under section 157 of the QCAT Act. As the applicant is not contending that the failure to give the notice should result in a finding that the applicant did not receive notice of the decision on 24 December 2009, it has not been necessary to take those parts of the submissions into account when considering the issue of extending time under section 61 of the QCAT Act. CONCLUSION 22. An application for review of the decision of Deputy Commissioner Rynders should have been made to QCAT under section 219G (2) of the Crime and Misconduct Act 2001 within 14 days of 24 December 2009 when the decision was given to the CMC. The application for review was lodged out of time on 19 January 2010. 23. The parties have all submitted that QCAT has the power to extend time for the start of the review proceedings under section 61(1) of the QCAT Act. The applicant has urged the Tribunal to do so, the second respondent has argued against the Tribunal doing so while the first respondent did not seek to submit one way or the other. 24. The CMC has provided an explanation for its non compliance with the time limit in section 219G (2) of the Crime and Misconduct Act 2001. -- 4 of 6 -- The Tribunal finds that the decision of Deputy Commissioner Rynders was received by the CMC on 24 December 2009 and was not given consideration until 4 January 2010 due to the majority of staff being on holidays and on duty staff being allocated to urgent complaints over the Christmas holiday period. 25. The Tribunal finds that staff within the CMC had wrongly concluded that a review application could be filed within 28 days of receipt of the decision due to a combination of the QCAT legislation being relatively new in January 2010, an apparent lack of awareness that specific provisions in an enabling Act such as the Crime and Misconduct Act 2001 prevailed over the QCAT Act as to the commencement of proceedings and the apparent confirmation of a 28 day time limit in written documentation provided by the police service to the CMC. 26. The Tribunal finds that the CMC has provided a satisfactory explanation for non compliance with the time limit within which to start the review proceeding at QCAT. The Tribunal would be prepared to extend time to 19 January 2010 unless the interests of justice militate against the extension of time or unless the QCAT Act would otherwise prohibit an extension in this case. 27. The second respondent has argued that the Tribunal should not exercise discretion to extend time unless the interests of justice require the extension to be granted and it was contended that this is not a case where the interests of justice so require. It was submitted that the decision sought to be reviewed was legally sound and the Tribunal should not exercise discretion unless that decision was seen to be indefensible. The Tribunal is not persuaded by the submissions on these points made by the second respondent. 28. The CMC was established under the Crime and Misconduct Act 2001 and one of the stated purposes of that Act is to continuously improve the integrity of, and to reduce the incidence of misconduct in, the public sector. The CMC has an overriding statutory responsibility to promote public confidence in the integrity of public administration and in the way misconduct is dealt with within the public administration sector. 29. One of the ways that the CMC can achieve its statutory purpose and to discharge its responsibilities is to overview disciplinary proceedings of misconduct brought against members of the police service and to seek independent review of decisions that it considers do not enhance public confidence in the way in which alleged misconduct is dealt with by the police service as a unit of public administration. 30. The Tribunal finds that it is in the interests of justice for an independent review to take place of the decision made by Deputy Commissioner Rynders in the misconduct proceedings brought against Sergeant Chapman. The outcome of those proceedings has been impugned by the CMC on grounds that appear to have at least prima facie merit. 31. Section 20 of the QCAT Act provides that reviews of decisions are conducted by way of a fresh hearing on the merits in order for the correct and preferable decision to be made. It would be inconsistent with the provisions of the QCAT Act to restrict reviews only to cases where the original decision is seen from the outset to be plainly incorrect when the -- 5 of 6 -- Act anticipates reviews being able to substitute a decision for an original decision that may have been correct but which was not the preferable decision on the facts of the case. The Tribunal does not consider that the discretion to extend time and thereby to permit the review to proceed is dependent on being satisfied that the decision in question is indefensible at the very start of the review proceedings. 32. Given the original decision of Deputy Commissioner Rynders has been impugned, it is appropriate that there is an opportunity for Sergeant Chapman to seek to refute the misconduct allegations. If the review by QCAT is not permitted to proceed due to mere procedural reasons, Sergeant Chapman will not have that opportunity and public confidence in the way that misconduct is dealt with will not be enhanced. 33. It was not directly argued on behalf of Sergeant Chapman that he would be caused prejudice or detriment if the extension of time were to be granted by QCAT although it was submitted that he would have to suffer the allegations being re-litigated if the review were permitted to proceed. For the reasons set out in the preceding paragraph, the Tribunal is satisfied that Sergeant Chapman will not be caused prejudice or detriment in the event that an extension of time is granted but rather he will have an opportunity to seek to clear himself publicly of the allegations of misconduct. 34. The Tribunal has come to the conclusion that an extension of time until 19 January 2010 is to be granted for the commencement of the application to review the decision made by Deputy Commissioner Rynders on 18 December 2009 that the misconduct allegations made against Sergeant Chapman were unsubstantiated. -- 6 of 6 --