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- Unreported Judgment
Officer Carey v Assistant Commissioner Mickelson QCAT 109
QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL
Officer Carey v Assistant Commissioner Mickelson  QCAT 109
ASSISTANT COMMISSIONER MARTY MICKELSON
Occupational regulation matters
29 March 2019
12 February 2019
Senior Member Howard
PROCEDURE – CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS – JOINDER OF CAUSES OF ACTION AND OF PARTIES – PARTIES – GENERALLY – where application to be joined as party to police disciplinary review proceeding – where applicant does not oppose joinder – where there is question of whether Crime and Corruption Commission should be joined as second respondent to the proceedings – – whether the Tribunal may make directions about conduct of Crime and Corruption Commission if joined as second respondent
Crime and Corruption Act 2001 (Qld) s 47, s 48
Crime and Misconduct Act 2001 (Qld) s 219G(3)
Queensland Civil and Administrative Tribunal Act 2009 (Qld) s 3, s 4, s 28(1), s 28 (3)(a), s 42(1)(b), s 62(1)
Queensland Civil and Administrative Tribunal Rules 2009 (Qld)
Chapman v Wilson & Anor  QCAT 400
Crime and Misconduct Commission v Wilson & Anor  QCA 314
O'Brien v Assistant Commissioner Paul Taylor & Anor  QCAT 373
O'Keefe v Deputy Commissioner Pointing  QCAT 312
APPEARANCES & REPRESENTATION:
C Gnech, Solicitor of the Queensland Police Service Union Legal Group
Crime & Corruption Commission:
M J Robinson of the Queensland Police Service Legal Division
J L Gorry, Principal Legal Officer of the Crime and Corruption Commission
REASONS FOR DECISION
- This proceeding was initiated by Christopher Carey, a sergeant in the Queensland Police Service (‘QPS’) who was disciplined for misconduct by Assistant Commissioner Mickelson. Mr Carey reviews only the sanction imposed upon him by the Assistant Commissioner (that is, he does not review substantiation of the misconduct charges against him). The Crime and Corruption Commission (‘CCC’) applied to be joined as a party to the disciplinary review proceeding.
- Although Mr Carey does not oppose the application for joinder, he seeks a direction to the effect that the CCC not take active steps in the proceeding without the Tribunal’s leave for it to actively participate. Primarily, Mr Carey relies upon the decision of the Tribunal (as constituted by the Hon. former Justice James Thomas) in Chapman v Wilson & Anor (‘Wilson’), (the Tribunal’s decision in Wilson) and the subsequent Court of Appeal decision upholding it, in Crime and Misconduct Commission v Wilson & Anor, (the Court of Appeals’s decision in Wilson). The CCC relies upon the Tribunal’s recent decision in O'Brien v Assistant Commissioner Paul Taylor & Anor (‘O'Brien’s case’).
The CCC’s intended role if joined as a party
- The CCC submits that it does not intend to actively participate in the proceeding at this stage. However, it submits, relying upon O'Brien’s case, and the model litigant principles by which it is bound, that no direction as sought is necessary or appropriate, to ensure the orderly and proper conduct of the proceedings.
- Mr Carey argues that the approach of the CCC leaves him in an uncertain position as to who is, in effect, his prosecutor in the disciplinary review at any given time. He submits that this uncertainty is overcome if the Tribunal directs the CCC to seek leave before actively participating.
- The Assistant Commissioner adopted a neutral position in relation to the application for joinder, but acknowledged the CCC’s special role in monitoring police misconduct and consequent interest in the outcome of the proceedings.
The joinder application
- Section 42 of the QCAT Act confers discretion on the tribunal to join a person as a party to a proceeding if, amongst other factors, the person’s interests may be affected by the proceeding.
- It is uncontroversial as between the parties that the CCC, because of its monitoring role in police discipline, has a proper interest in the proceeding.
- I accept that the CCC has a legitimate interest in the proceeding as a consequence of it’s oversight responsibilities for police discipline under the Crime and Corruption Act 2001 (Qld) (‘CC Act’). In the performance of its statutory functions, CCC’s interests may be affected by the tribunal’s decision on the review. I am satisfied that it is appropriate to exercise the discretion to make an order for joinder. As the Court of Appeal said in Wilson, its interest in monitoring may be affected irrespective whether the CCC actively participates in the proceeding, for purposes of preserving its appeal rights.
The decisions relied upon by the parties
- Until the decision in O'Brien’s case, it appeared settled that in such circumstances, a direction may be made requiring that CCC apply to the tribunal before taking steps to actively participate. In making an order joining the CCC, His Honour, former Member Thomas said as follows:
In my view it is desirable that the CMC be joined as a party to the proceeding, and unless the Tribunal directs otherwise, that the CMC should remain a passive party during the review.
- Subsequently, including in O'Keefe v Deputy Commissioner Pointing, when making orders joining the CCC as a respondent, the Tribunal made directions to that effect.
- Then, in O'Brien’s case, where an order had previously been made by a differently constituted Tribunal in a police disciplinary review proceeding to join the CCC as a respondent, the Tribunal declined to do so. The reasons for decision suggest the Tribunal considered an application made by the CCC to change its status from being a passive party to an active party in the proceeding on the basis that it was no longer confident that its position was identical to the Assistant Commissioner’s. The Tribunal made orders/directions in the following terms:
- (1)Direction 2 made by the Tribunal on 12 June 2018 joining the Crime and Corruption Commission as a respondent to the preview proceedings is confirmed.
- (2)For purposes of certainty, by this decision no limitation is placed on the Crime and Corruption Commission in relation to the exercise of rights conferred on a party to the proceedings under the Queensland Civil and Administrative Tribunal Act 2009 (Qld).
- In that case, the Tribunal considered s 42 of the QCAT Act, noting that nothing in the QCAT Act expressly provided for the Tribunal to limit the status of a party, saying:
…it is evident that no qualifications or conditions in terms or rendering a party either active or passive can be mandated. Significantly, the provision allowing the Tribunal to impose conditions when giving leave to a person to intervene in proceedings under s 41 of the QCAT Act is not replicated under s 42 of the QCAT Act”… Also, subject to specified qualifications, s 95 of the QCAT Act provides that the Tribunal must allow a party to a proceeding a reasonable opportunity to call or give evidence, examine witnesses or make submissions to the Tribunal. That runs counter to any notion that the Tribunal can mandate that a party have only a passive role. There are numerous other provisions allowing parties to the proceedings to make specified applications or to take specified steps or which place obligations on the parties. Any demarcation between active and passive participation would beg the question of which of those provisions apply to a passive party.
- In O'Brien’s case, the Tribunal considered that the Court of Appeal’s decision in Wilson, accepted that the CCC might adopt either an active or passive role in review proceedings, but did not state that the Tribunal could mandate the role. The Tribunal said that:
Subject to compliance with the requirements for applicable legislation and principles governing the conduct of proceedings, including the obligation of state parties to act as model litigants, the manner in which a party participates in the review proceedings is a matter for that party. It follows that the joinder direction made by the Tribunal on 12 June 2018 enables the Second Respondent to fully participate as a party to the present proceedings.
- In any event, the issue for determination by the Court of Appeal in Wilson, concerned whether the operation of s 42 of the QCAT Act was implicitly excluded due to the operation of s 219G(3) of the then Crime and Misconduct Act 2001 (Qld) , which identified the parties to a proceeding for a review of a reviewable decision. The Court of Appeal rejected the argument that the operation of s 42 was ousted.  I observe that the CC Act in s 219G(3) similarly provides that the parties to a review are the officer; the person who made the reviewable decision and in circumstances when the CCC makes an application, the CCC.
- As discussed earlier, in Wilson, the Court of Appeal accepted that the CCC’s interests may be affected within the meaning of s 42 of the QCAT Act, whether or not it intended to take a passive role or an active role in the proceeding, for the purpose of preserving its appeal rights. Its decision did not consider whether the QCAT Act (or CC Act) provided for active or passive parties. The Court of Appeal appears to have used the terms in their ordinary sense to describe whether or not the CCC actively participated if joined as a party, accepting, as it did, that the CCC might legitimately be joined as a party but not actively participate in the proceeding. That is, it might play a passive role.
- That said, that the Court of Appeal’s decision refers on seven occasions to the intention of the Crime and Misconduct Commission to play a passive role in that proceeding. Mr Carey argues that although the distinction between passive and active participation was not the central point for determination before the Court of Appeal, it was clearly cognisant of it and if troubled by it would have said so. He submits that it is significant that it did not do so.
- In O'Keefe v Deputy Commissioner Pointing, the CCC again sought joinder in a disciplinary review between a police officer and a deputy commissioner. The Deputy Commissioner did not oppose the application, noting the CCC’s intention not to take an active role in the proceeding. Mr O'Keefe noted additionally that he would not consent to being prosecuted by two parties simultaneously. For that reason, he opposed joinder for any purposes inconsistent with the Court of Appeal’s decision in Wilson.  In determining that matter, the Tribunal made orders joining the CCC, together with directions, saying:
- …….Consistent with its submissions that it seeks joinder to reserve its appeal rights, I direct that unless otherwise ordered, the CCC must not take active steps to participate in the proceedings.
- If the CCC applies to the Tribunal to take active steps, Mr O'Keefe’s concern in being prosecuted by two parties can be further considered at that time.
Is the Tribunal empowered to make directions for the conduct of the proceeding sought by Mr Carey? If so, what directions should be made?
- I must decide whether the Tribunal may make directions to the effect of those sought by Mr Carey, and if so, whether I should do so and in what terms.
- Although the CCC relied upon O'Brien’s case, it conceded that the Tribunal has power to make the directions sought. I agree, for the reasons explained below.
- Mr Carey submits that under the QCAT Act, the tribunal must act fairly and justly, and cases of like nature should be treated the same. He says that if there are no directions as sought in place, it would place him in the difficult position that he does not know who is in effect his prosecutor, observing that model litigant principles are not enshrined in legislation. Although the decision in O'Brien’s case, was not appealed, Mr Carey submits that the Tribunal was in error in determining that matter.
- As discussed earlier, in O'Brien’s case, the Tribunal’s reasons for decision refer, amongst other provisions, to s 95 of the QCAT Act which mandates that a party be given reasonable opportunity to call and give evidence; examine, cross-examine and re-examine witnesses as well as make submissions. As Mr Carey submits, this general provision in the QCAT has been modified  for police disciplinary reviews by s 219H of the CC Act.
- Also, the Tribunal in O'Brien’s case also refers to various other provisions in the QCAT Act allowing parties to make applications or take specified steps or place obligations on parties. The CCC submitted that the making of the direction sought by Mr Carey would curtail its rights to make these applications, take the steps and exercise the rights afforded to every party. It argued that it would open the floodgates to multiple interlocutory applications if the CCC was required to apply to the Tribunal before exercising any of its rights as a party.
- The QCAT Act, subject to any modifying provision in the relevant enabling Act (here the CC Act), provides for steps that may be taken by parties in proceedings and obligations on the tribunal in conducting proceedings. A modifying provision in the relevant enabling Act prevails over the general provision in the QCAT Act.
- Further, subject to the QCAT Act, an enabling Act, and the Queensland Civil and Administrative Tribunal Rules 2009 (Qld) (‘QCAT Rules’), the procedure for a proceeding is at the discretion of the tribunal. It is a fundamental requirement that all parties to a proceeding be accorded natural justice. The tribunal may give a direction at any time in a proceeding and do whatever is necessary for the fair conduct of the proceeding.
- That is, the tribunal is empowered to regulate the conduct of proceedings before it, by making the directions as may be necessary for the fair conduct of proceedings. This includes the making of directions to ensure the orderly and fair conduct of proceedings. I am satisfied that the making of directions to the effect sought by Mr Carey to regulate the steps to be taken by the CCC, in circumstances that it seeks to be joined to preserve its appeal rights but not intending to actively participate as the proceeding advances to determination, are directions for the speedy and fair conduct of the proceeding.
- Conducting this proceeding in a manner that is fair to Mr Carey requires that he know who is in effect his prosecutor at any given time. The requirement to afford natural justice, is not denied the CCC in circumstances that it does not currently intend to participate as an active manner, simply because it must apply to the Tribunal before taking steps in the proceeding. However, it may arguably be denied to Mr Carey if he does not know his opponent is. If the CCC must apply before changing its intended approach to the proceeding and taking any steps in it, the Tribunal may at the time of any such application make such directions as are then necessary, and appropriate, for the fair conduct of the proceeding, bearing in mind the legitimate concerns articulated by Mr Carey.
- If the CCC decides at some future time that it intends to be involved, the Tribunal may, having regard to Mr Carey’s articulated concerns, make such directions as are then determined to be necessary. The making of a direction as sought by Mr Carey does not, in my view, impinge upon the rights the CCC as a party under the QCAT Act or the enabling Act. It merely regulates speedy and fair procedure for the proceeding.
- Further, I do not accept the CCC’s submissions relying upon O'Brien’s case, to the effect that making a direction as sought would create excessive need for multiple interlocutory applications in order for the CCC to exercise its rights as a party as provided for in the CC Act and the QCAT Act. If such a direction is made, the CCC must make one application signifying its changed position. Whereas, taking the approach contended for by the CCC would involve the making of directions for steps to be taken by the CCC, which it (currently at least) has no intention of performing. It requires time must be built into any such directions for the taking of the steps by CCC, such as preparation of submissions. This complicates and protracts the course of the proceeding for the other parties: it does not promote a speedy and fair determination of the proceeding.
- In the meantime, the CCC, as a party, will be served with all material and submissions of the other parties to the proceeding; receive copies of all Tribunal directions and orders; and receive notice of Tribunal events including hearings. Further, although both the CCC and the Assistant Commissioner are both obliged to act as model litigants in the proceeding that does not relieve the Tribunal of the responsibility for making appropriate directions for the procedure to be adopted for the fair conduct of the particular matter.
- I do not need to decide whether the QCAT Act provides for passive and active parties, although plainly it does not use that terminology. It is enough that, and I am satisfied that, the CCC does not intend in these proceedings to take an active role in the proceeding at this time. I am satisfied that for the speedy and fair and orderly conduct of the proceeding, that it is necessary to direct that unless otherwise directed by the Tribunal, the CCC shall not take any step in the proceeding.
Orders and directions
- Accordingly, I make an order joining the CCC as second respondent in the proceeding. Further, unless otherwise directed by the Tribunal, the CCC must not take any step in the proceeding.
 QCAT 400.
 QCA 314.
 QCAT 373.
See Queensland Civil and Administrative Tribunal Act 2009 (Qld) (‘QCAT Act’) s 42(1)(b).
See Crime and Corruption Act 2001 (Qld) (‘CCA’) ss 46, 47.
 QCA 314 ,  (Muir JA).
 QCAT 373.
 QCAT 400 .
 QCAT 312.
 QCAT 373.
 QCA 314.
O'Brien v Assistant Commissioner Paul Taylor & Anor  QCAT 373  (‘O'Brien’s case’).
 QCA 314.
See, eg, Crime and Misconduct Commission v Wilson & Anor  QCA 314  (Muir JA) (‘Wilson’).
Ibid , , , , .
 QCAT 312.
 QCA 314.
QCAT Act ss 3, 4.
 QCAT 373.
 QCAT Act ss 6, 7 provides for the relationship between the QCAT Act and enabling Acts and for modifying provisions in an enabling Act to prevail over a provision of the QCAT Act to the extent
QCAT Act s 28(1).
QCAT Act s 28(3)(a).
Ibid s 62(1).
 QCAT 373.
- Published Case Name:
Officer Carey v Assistant Commissioner Mickelson
- Shortened Case Name:
Officer Carey v Assistant Commissioner Mickelson
 QCAT 109
Senior Member Howard
29 Mar 2019