Crime and Misconduct Commission v Assistant Commissioner O'Regan and Anor [2012] QCAT 238

CITATION: Crime and Misconduct Commission v Assistant Commissioner O’Regan and Anor [2012] QCAT 238 PARTIES: Crime and Misconduct Commission (Applicant/Appellant) v Assistant Commissioner Clement David O’Regan (First Respondent) Gilbert Napper (Second Respondent APPLICATION NUMBER: OCR118-12 MATTER TYPE: Occupational regulation matters HEARING DATE: On the papers HEARD AT: Brisbane DECISION OF: Mr Richard Oliver, Senior Member DELIVERED ON: 15 June 2012 DELIVERED AT: Brisbane ORDERS MADE: The application to extend the time for filing the application to review dated 2 April 2012 is dismissed. CATCHWORDS: Extension of time – where applicant filed an application to review the first respondent’s decision three days out of time – where no proper explanation of delay – where applicant failed to address issues of prejudice and the merits of the review application – where the granting of an extension of time is an exercise of discretion Queensland Civil and Administrative Tribunal Act 2009, s 61 Crime and Misconduct Act 2001, s 219G(2) Crime and Misconduct Commission v Chapman [2011] QCAT 229 APPEARANCES and REPRESENTATION (if any): -- 1 of 4 -- 2 This matter was heard on the papers, pursuant to section 32 of the Queensland Civil and Administrative Tribunal Act 2009 (QCAT Act). REASONS FOR DECISION [1] Sergeant Napper was charged with official misconduct because he inappropriately used a Queensland Police Citizens Youth Welfare Association Corporate credit card for personal expense. The expenses charged to the card were repaid by him promptly but, as he knew or ought to have known at the time, this conduct was not permitted. [2] Sergeant Napper pleaded guilty to the charge and on 16 March 2012 Assistant Commissioner O’Regan imposed a sanction that he be demoted from rank of Sergeant 3.1 to the rank of Senior Constable 2.1 for a period of 3 years with him being eligible to apply for the position of Sergeant upon being of good conduct and completing three Performance Planning and Appraisal period to at least the ‘met’ level. The sanction was suspended subject to him completing certain training programs. [3] The decision of the Assistant Commissioner was published to the applicant on 16 March 2012. On 2 April 2012 the applicant filed an application to review the Assistant Commissioner’s decision. The application to review is out of time1 as it was not made within 14 days of the decision being given. [4] As a consequence of being out of time the applicant has applied to the Tribunal for time to be extended under s 61 of the Queensland Civil and Administrative Tribunal Act 2009. The application is opposed by Mr Napper. The Assistant Commissioner is content to abide by the decision of the Tribunal. [5] The granting of an extension of time is an exercise of discretion. The usual factors to be taken into account are: the extent of the delay; an explanation for the delay; and merits of the application and prejudice to the party affected by the extension of time.2 [6] Here the delay is minimal, some three days. However that must be considered in the context of time allowed to a party to review a decision which is only 14 days, as opposed to the usual time of 28 days under the QCAT Act. The legislature’s imposition of such a tight timeframe imposes an obligation on the applicant if it is contemplating reviewing a decision, to act with diligence once the decision is received. The mere fact that it is out of time by only three days, is not of itself a reason for extending time. [7] Delay: The applicant has filed an affidavit by Darren Brooks which sets out the circumstances of the commencement of the application. The excuse for not filing in time is as a result of a change in personal and 1 Crime and Misconduct Act 2001, s 219G(2). 2 Crime and Misconduct Commission v Chapman [2011] QCAT 229 -- 2 of 4 -- 3 relieving arrangements within the organisation. The applicant has not provided any particulars of these matters. There is no detail as to what, if any, assessment took place after the decision was received or when it was decided to review the decision. Again there is no detail of when the review documents were prepared or what instructions, if any, were given to staff members about the filing of the application. [8] The content of the application, in a very general way, contends there is no prejudice. The applicant has not directed its attention to the actual prejudice that might be occasioned to the respondents by having to respond to the substantive application. [9] Prejudice: Obviously there is prejudice. Mr Napper has already been through the disciplinary process and the uncertainty and stress associated with that process. Prejudice to Mr Napper by this review application has not been addressed by the applicant. The applicant again relies on a general statement of the important role it plays in improving integrity and reducing the incidence of misconduct in the public sector. There is no submission going to the relationship between this role and to the specifics of the case it seeks to review so that the Tribunal might be satisfied that the applicant’s role here outweighs any prejudice that would be caused to Mr Napper. That comment is also relevant to the strength of the applicant’s case. [10] Merits: The applicant has not addressed the merits of the review application. Because Mr Napper accepted the charge made against him, the only issue in the review proceeding is the sanction imposed. The applicant contends in the application that the sanction imposed did not properly reflect the seriousness of the conduct, but does not provide any basis upon which the assertion is made. The applicant simply contends that Mr Napper was allowed to stay in the same position and have the same level of responsibility he had at the time he engaged in the offending conduct. There is no reason or basis proffered as to why this is inappropriate in the circumstances of this case. The applicant does not point to any specific matter or issue that was or was not considered by the decision maker which, on a further hearing on the merits, would be likely to produce a different outcome. The submission does not establish that the review application has merit or prospects of success other than again relying on the overriding obligation of the applicant to improve integrity and reduce the incidence of misconduct in the public sector. There is nothing put forward that is specific to this particular matter. [11] Although reliance is not specifically placed on the matters contained in the substantive application, I have had regard to those, similarly the contentions there are of a general nature. No doubt the applicant will address these contentions in a more detailed way in its submissions in the review however, there is insufficient detail there for the purposes of this application. [12] The applicant has filed a reply to Mr Napper’s submission opposing the extension of time. Those submissions do not address the critical matters -- 3 of 4 -- 4 necessary to warrant an extension of time. They are mainly concerned with a critique of Mr Napper’s submissions and refer to authorities which are of assistance. In particular I am conscious of what was said in Chapman and the strict time limit imposed by the legislation but this does not relieve the applicant of the necessity to address in some way the critical matters referred to above. It seems, from the material filed, the applicant is simply asking this Tribunal to revisit afresh, the matters that were before the Assistant Commissioner without any real attempt to show that a different outcome is likely. [13] It follows from what I have said that I accept and agree with the submissions from Mr Napper. The result is that the application for an extension of time is dismissed. -- 4 of 4 --