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McKenzie v Deputy Commissioner Tracey Linford

 

[2020] QCAT 234

QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL

CITATION:

McKenzie v Deputy Commissioner Tracey Linford [2020] QCAT 234

PARTIES:

WILLIAM MCKENZIE

(applicant)

v

DEPUTY COMMISSIONER TRACEY LINFORD

(first respondent)

CRIME AND CORRUPTION COMMISSION

(second respondent)

APPLICATION NO/S:

OCR064-20

MATTER TYPE:

Occupational regulation matters

DELIVERED ON:

26 June 2020

HEARING DATE:

On the papers

HEARD AT:

Brisbane

DECISION OF:

Senior Member Aughterson

ORDERS:

The Crime and Corruption Commission is joined as a party to the proceeding pursuant to s 219R(2) of the Crime and Corruption Act 2001 (Qld).

CATCHWORDS:

PROCEDURE – CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS – JOINDER OF CAUSES OF ACTION AND OF PARTIES – PARTIES – GENERALLY – where election to be joined as party to police disciplinary review proceeding – where amendment to legislation in relation to parties to the proceeding

Acts Interpretation Act 1954 (Qld), s 15A

Crime and Corruption Act 2001 (Qld), s 219G, s 219O, s 219P, s 219R, s 452, Schedules 1 and 2

Police Service Administration (Discipline Reform) and Other Legislation Amendment Act 2019 (Qld)

Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 19(c), s 20(2), s 36, s 37(2), s 122(2).

Queensland Civil and Administrative Tribunal Rules, r 19(2)(c)

Chapman v Wilson and Anor [2011] QCAT 400

Crime and Misconduct Commission v Wilson & Anor [2012] QCA 314

APPEARANCES:

This matter was heard and determined on the papers pursuant to s 32 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld)

REASONS FOR DECISION

  1. [1]
    On 5 May 2020, the second respondent was joined as a party to the present proceeding. Subsequently, the applicant sought reasons for that decision pursuant to s 122(2) of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) (‘the QCAT Act’). These are the reasons.
  2. [2]
    Prior to the amendments to the Crime and Corruption Act 2001 (Qld) (‘the CC Act’) by the Police Service Administration (Discipline Reform) and Other Legislation Amendment Act 2019 (Qld), it was required that the Crime and Corruption Commission apply for leave to be joined as a party to police disciplinary proceedings, other than where it initiated the review proceedings itself pursuant to s 219G of the CC Act.[1] There was no automatic right to be joined.[2]
  3. [3]
    In relation to the review of particular police disciplinary decisions,[3] the 2019 Amendment Act introduced a new s 219R in Chapter 5 Part 3 of the CC Act, which provides:
  1. (1)
     The parties to a review are—
  1. (a)
     the applicant for the review; and
  1. (b)
     the person who made the reviewable decision; and
  1. (c)
     if the commission is the applicant for the review—the subject officer to whom the decision relates.
  1. (2)
     If the applicant for the review is the subject officer, the commission may elect to become a party to the review.
  1. (3)
     Notice of an election under subsection (2) must be given—
  1. (a)
     to QCAT, the subject officer and the person who made the reviewable decision; and
  1. (b)
     within the later of the following periods to end—
  1. (i)
     the period mentioned in section 219P(2)(a);
  1. (ii)
     14 days after the commission is given notice of the application for review under section 219P(3).
  1. [4]
    By Schedule 2 to the CC Act, the ‘commission’ means the Crime and Conduct Commission (‘the Commission’). By s 219R(2), the Commission may elect to become a party to the review. Section 219R(3) provides for the giving of notice of that election. Section 219R(3)(b)(ii) allows for the giving of the notice of election ‘14 days after the commission is given notice of the application for review under s 219P(3)’. Section 219P allows for the filing of an application for review, while s 219P(3) provides that where the applicant for review is the subject officer, the officer must, within the period mentioned in s 37(2) of the QCAT Act, give the Commission a copy of the application. In turn, s 37(2) of the QCAT Act prescribes the period stated in the QCAT Rules. Rule 19(2)(c) prescribes a period of 7 days. In any event, the notice of election was given on 11 March 2020, while the application to review was filed on 2 March 2020. In its notice of election, the Commission states that it awaited the expiration of that 7 day period to file its notice and that it had not at that time received a copy of the application to review. In terms of s 219R(3) it was also stated that the notice of election will be copied to the applicant’s and the first respondent’s solicitors.
  2. [5]
    The amendments to the CC Act arising under the Police Service Administration (Discipline Reform) and Other Legislation Amendment Act 2019 (Qld) commenced on 30 October 2019.[4] Saving provisions are provided for in s 452 of the CC Act, which is headed ‘Saving of previous ch 5, pt 2’. Previous chapter 5 part 2 incorporated sections 219A through to s 219M. Section 452 provides:
  1. (1)
    This section applies in relation to a previous ch 5, pt 2 decision if—
  1. (a)
     a disciplinary proceeding under previous section 219G for the decision was started, but not finally dealt with, before the commencement; or
  1. (b)
    the period for applying for a review of the decision under previous section 219G had not ended immediately before the commencement.
  1. (2)
    Also, this section applies in relation to a finding mentioned in the Police Service Administration Act 1990, previous section 7.4(2A)(b) or 7A.5(1)(b), as applied by part 11, division 10 of that Act, about an allegation of corruption, except if section 11.21 applies in relation to the finding.
  1. (3)
    Previous chapter 5, part 2 applies for the review of the decision or finding as if the Police Service Administration (Discipline Reform) and Other Legislation Amendment Act 2019 had not commenced.
  1. (4)
    In this section—

previous ch 5, pt 2 decision means—

  1. (a)
    a decision made before the commencement in relation to an allegation of corruption against a prescribed person who was an officer within the meaning of previous section 219B; or
  1. (b)
    a finding mentioned in the Police Service Administration Act 1990, previous section 7.4(2A)(b) made before the commencement.
  1. [6]
    It is evident that the reference in s 452(1)(a) to a disciplinary proceeding under former s 219G having started before the commencement refers to the disciplinary proceeding before the Tribunal and not the initial proceeding which is the subject of review.[5] Section 219G(1) provided:

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.

Section 452(1)(a) refers to a disciplinary proceeding ‘under’ previous section 219G. A disciplinary proceeding is made ‘under’ the section when it is filed in the Tribunal.[6] Section 452(1)(a) is not framed in terms of the start of the disciplinary proceedings giving rise to the reviewable decision. Also, if the latter were intended, subsection 452(1)(b) would be superfluous. As framed, the combined effect to s 452(1)(a) and (b) is that previous Chapter 5 Part 2 applied if the review application had been filed under s 219G or the time for filing had not ended prior to the commencement of the amending Act.

  1. [7]
    As noted above, the amending Act commenced on 30 October 2019 and the present application was filed on 2 March 2020. On that basis, pursuant to s 219R(2) of the CC Act, the Commission was entitled to elect to become a party to the review.

Footnotes

[1]   The application was made pursuant to s 42 of the QCAT Act. See Crime and Misconduct Commission v Wilson & Anor [2012] QCA 314

[2]   See the observation of Member Hon James Thomas AM QC in Chapman v Wilson and Anor [2011] QCAT 400, [23].

[3]   By s 219O, reviewable decisions for the purposes of Chapter 5 Part 3 of the CC Act are those set out in Schedule 1 Column 1 to that Act. They include the present decision, which was a relevant decision under Part 7 Division 4 of the Police Service Administration Act 1990 (Qld).

[4]   See Acts Interpretation Act 1954 (Qld), s 15A. The date of assent was 30 October 2019.

[5]   A proceeding in the Tribunal starts when the principal registrar accepts an application or referral: see QCAT Act s 36.

[6]   It is noted that by s 20(2) of the QCAT Act, the Tribunal must hear and decide a review of a reviewable decision by way of a fresh hearing on the merits and, by s 19(c), has all the functions of the decision-maker for the reviewable decision being reviewed.

Close

Editorial Notes

  • Published Case Name:

    McKenzie v Deputy Commissioner Tracey Linford

  • Shortened Case Name:

    McKenzie v Deputy Commissioner Tracey Linford

  • MNC:

    [2020] QCAT 234

  • Court:

    QCAT

  • Judge(s):

    Senior Member Aughterson

  • Date:

    26 Jun 2020

Appeal Status

Please note, appeal data is presently unavailable for this judgment. This judgment may have been the subject of an appeal.
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