Exit Distraction Free Reading Mode
- Unreported Judgment
QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL
Schafer v Acting Deputy Commissioner Tony Wright  QCAT 108
ACTING DEPUTY COMMISSIONER TONY WRIGHT
Occupational regulation matters
23 January 2020
On the papers
Senior Member Aughterson
The Crime and Corruption Commission is joined as the second respondent in the proceeding.
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 of Crime and Corruption Commission as passive respondent – where applicant seeks direction to be joined as passive second respondent only - whether the Tribunal may make directions limiting right of second respondent to be heard
Crime and Corruption Act 2001 (Qld), s 15, s 47, s 48, Schedule 2
Police Service Administration (Discipline Reform) and Other Legislation Amendment Act 2019 (Qld),
Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 22(3), s 32(2), s 40(1)(d), s 41, s 42(1), s 47(3),
Queensland Civil and Administrative Tribunal Practice Direction No 3 of 2013
State Administrative Tribunal Act 2004 (WA), s 32(1), s 34(1)
Aldrich v Ross  2 Qd R 235
Annetts and Another v McCann and Others (1990) 170 CLR 596
Boral Resources (Vic) Pty Ltd & Ors v CFMEU  VSC 572
Chapman v Wilson and Anor  QCAT 400
Crime and Misconduct Commission v Wilson & Anor  QCA 314
Croton v Healy  QCAT 547
Fardon v Attorney-General (Qld)  223 CLR 575
Gandini v Legal Profession Complaints Committee  WASC 428
Groufsky v Crime and Misconduct Commission and Anor  QCATA 188
HD & BHW v Department of Communities, Child Safety and Disability Services  QCAT 17
Hotrod Mobile Welding Services v Suncity Holdings Qld Pty Ltd  QCATA 170
Kioa v West (1985) 159 CLR 550
Laing & Anor v Kokkinos & Anor (No 2)  QCATA 247
Lee v Crime and Corruption Commission & Anor (2016) 259 A Crim R 96
O’Brien v Assistant Commissioner Paul Taylor  QCAT 373
Officer Carey v Assistant Commissioner Mickelson  QCAT 109
Page v Jobbins  QCATA 147
Re Nolan; Ex parte Young (1991) 172 CLR 460
Strickland (a pseudonym) v DPP (Cth)  HCA 53
Zaoui v Attorney-General (No 2)  NZCA 244
The 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
- The Crime and Corruption Commission (‘the Commission’) has applied to be joined as a respondent in proceedings to review a disciplinary decision made in relation to the applicant by the respondent. The applicant does not object to the joinder, providing that the Commission adopts a passive rather than active role in the proceeding. The applicant seeks directions to that effect; that is, that the Commission not produce evidence, examine witnesses or make submissions in the proceeding. In written submissions filed in response to directions issued by the Tribunal, the Commission submits that ‘the Tribunal’s powers do not extend so far as to direct how a party to proceedings can exercise their rights or interests’. The applicant has filed submissions in reply, taking a contrary position. The respondent has advised the Tribunal that he does not wish to be heard on this issue.
- The questions to be considered are whether the Commission should be joined and, if so, whether the Tribunal may issue a direction requiring the Commission to adopt a passive rather than active role in the proceeding.
Whether should be joined as party
- By s 40(1)(d) of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) (the QCAT Act), parties to the Tribunal’s review jurisdiction include a party joined under s 42 of the QCAT Act.
- Section 42(1) provides that the Tribunal may make an order joining a person as a party to a proceeding if the Tribunal considers that:
- (a)the person should be bound by or have the benefit of a decision of the tribunal in the proceeding; or
- (b)the person’s interests may be affected by the proceeding; or
- (c)for another reason, it is desirable that the person be joined as a party to the proceeding.
- The Court of Appeal in Crime and Misconduct Commission v Wilson & Anor, held that the right of the Commission to, itself, initiate review proceedings pursuant to s 219G of the Crime and Corruption Act 2001 (Qld) (‘the CCA’) did not exclude the Commission from making application to be joined as a party pursuant to s 42 of the QCAT Act.
- While there is no automatic right on the part of the Commission to be so joined, it does have a special role to play in monitoring the sort of conduct that is the subject of these proceedings. As appears from s 47 of the CCA, the Commission has a monitoring role in relation to police misconduct. Section 47(1) of the CCA provides:
The commission may, having regard to the principles stated in section 34—
- (a)issue advisory guidelines for the conduct of investigations by the commissioner of police into police misconduct; or
- (b)review or audit the way the commissioner of police has dealt with police misconduct, in relation to either a particular complaint or a class of complaint; or
- (c)assume responsibility for and complete an investigation by the commissioner of police into police misconduct.
- Similar powers are set out in s 48, giving the Commission a monitoring role in relation to ‘corrupt conduct’. Also, by s 33(1)(b) of the CCA, the Commission has the function of ensuring that ‘a complaint about, or information or matter involving, corruption is dealt with in an appropriate way, having regard to the principles set out in section 34’.
- As noted by Thomas JA in Aldrich v Ross, the ‘protection of the public, the maintenance of public confidence in the Service and the maintenance of integrity in the performance of police duties are the primary purpose’ of misconduct and discipline proceedings within the police force.
- In Crime and Misconduct Commission v Wilson & Anor, Muir JA, with whom Gotterson JA and Daubney J agreed, referred to the role of the Commission and stated that that role ‘amply provides a sufficient interest for the purposes of s 42 of the QCAT Act. His Honour then referred with evident approval to the following observation of the Tribunal Member at first instance:
The police disciplinary system is largely administered within the police force itself, and the [Commission] is the independent watchdog to prevent any perception of favouritism or laxness within the police department in the prosecution of errant police.
It was further stated that the interest of the Commission in the proceedings is not affected by whether it is to be an active or passive participant, as that affects only ‘the manner in which the Commission intended to protect or advance its interests’.
- In Lee v Crime and Corruption Commission & Anor, with reference to the role of the Commission under s 47 and 48 of the CCA, Philip McMurdo JA, with whom Douglas and Bond JJ agreed, observed: ‘It is inherent in the role of monitoring that, on occasion, the Commission will disagree with the Commissioner in his dealings with a complaint’. Where that divergence might arise, it is consistent with the responsibility and monitoring role conferred on the Commission that it seeks to be joined as a party to police disciplinary review proceedings and to actively participate in those proceedings.
- Further, access to external perspectives will assist the Tribunal in producing the correct and preferable decision. Where the matter is one of public interest, arguably that outcome will be facilitated by allowing external input. I am not satisfied that the issues raised by the applicant, and referred to below, are such as to warrant refusal of the application of the Commission to be joined as a respondent.
- Accordingly, an order should be made joining the Commission as a second respondent to the proceeding.
Whether power to limit role of a party
- In O’Brien v Assistant Commissioner Paul Taylor, it was held that the Tribunal could not mandate that a party adopt a passive role in a proceeding and that, subject to compliance with the requirements of applicable legislation and principles governing the conduct of proceedings, the manner in which a party participates in review proceedings is a matter for that party.
- A different view was taken in Officer Carey v Assistant Commissioner Mickelson. It was there held that the Tribunal did have power to direct that the Commission not take any active step in the proceeding and a direction was so made. However, that case proceeded on the basis of a concession by the Commission that the Tribunal did have power to make directions to that effect.
- In O’Brien, it was stated that there is nothing in the QCAT Act expressly allowing for any directed limitations to the status of a party to a proceeding. It was also noted that 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 in s 42 of the QCAT Act.
- Reference was also made to s 95 of the QCAT Act. Subject to specified qualifications, that section provides that the Tribunal must allow a party to a proceeding a reasonable opportunity to call or give evidence, examine witnesses and make submissions to the Tribunal. It was added that that runs counter to any notion that the Tribunal can mandate that a party have only a passive role. Also, by s 28(3)(a) of the QCAT Act, in conducting a proceeding the tribunal ‘must observe the rules of natural justice’.
- In his submissions, the applicant refers to s 28(1) and 62(1) of the QCAT Act as a source of power to make directions limiting the role of a party in the proceedings. Section 28(1) provides:
The procedure for a proceeding is at the discretion of the tribunal, subject to this Act, an enabling Act and the rules.
Section 62(1) provides:
The tribunal may give a direction at any time in a proceeding and do whatever is necessary for the speedy and fair conduct of the proceeding.
- The case law suggests that while s 62(1) does provide power to the Tribunal to regulate the conduct of proceedings, it does not allow the negation of rights or requirements mandated by the QCAT Act or an enabling Act.
- The power under s 62(1) was considered by Member Hon James Thomas AM QC in Groufsky v Crime and Misconduct Commission and Anor. In issue was the requirement under s 219H of the CCA Act that QCAT have available to it all of the evidence that was before the original decision-maker. It was submitted that a direction for the removal of such evidence could be made under s 62 of the QCAT Act. However, the learned Member stated that s 62(1) ‘would seem to generally permit orders to settle a record, and even (subject to earlier comments) to make preliminary rulings on the admissibility of evidence, but it does not confer power to act inconsistently with s 219H(1) of the Crime and Misconduct Act 2001’.
- The power to give directions pursuant to s 62(1) of the QCAT Act was also considered by Justice Alan Wilson in Hotrod Mobile Welding Services v Suncity Holdings Qld Pty Ltd. In that case it was argued that the appellant had been denied natural justice by not being afforded more time to prepare its case. In upholding that submission, Wilson J stated:
 Under s 3(b) of the QCAT Act the Tribunal must deal with matters in a way that is ‘accessible, fair, just, economical, informal and quick’.’ It must ensure proceedings are ‘conducted in an informal way that minimises costs to the parties, and is as quick as is consistent with achieving justice’. It is not bound by the rules of evidence or the practices or procedures of courts, and must act with as little formality and technicality and with as much speed as it can; and, it can do ‘whatever is necessary for the speedy and fair conduct of the proceeding’.
 This emphasis on expedition and informality does not, however, allow the Tribunal to pursue speedy resolution at all costs. In all proceedings it must ‘act fairly and according to the substantial merits of the case’ and ‘observe the rules of natural justice’.
- Consistent with that qualification to the scope of s 62(1) of the QCAT Act, and in particular the need to observe the rules of natural justice, in my view s 62(1) does not allow for directions that effectively remove the right of a party to be heard. Procedural fairness, including the right to be heard, is an essential characteristic of the judicial process. The right to be heard is given statutory effect by s 28(3)(a) and s 95 of the QCAT Act. As stated in Annetts and Another v McCann and Others, ‘plain words of necessary intendment’ are required for the exclusion of the rules of procedural fairness and it is not to be assumed from ‘indirect references, uncertain inferences or equivocal considerations’. Further: ‘Nor is such an intention to be inferred from the presence in the statute of rights which are commensurate with some of the rules of natural justice’.
- On the other hand, in Officer Carey, the learned Senior Member stated:
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, even where the Commission has a present intention not to be actively involved it might be that there is a later change of mind, as was the case in O’Brien. Where there is a direction that the Commission take a passive role in the proceeding, it remains that the choice as to whether or not to be actively involved is removed from the Commission and is at the discretion of the Tribunal. On that approach, the right to be heard is converted to a possible or conditional right to be heard; conditional on a positive exercise of a discretion to that effect by the Tribunal.
- A distinction should be drawn between removal of the right to be heard and directions which regulate that right, as with s 95(2) of the QCAT Act. In Gandini v Legal Profession Complaints Committee, it was argued that the tribunal had erred in failing to abide by the rules of natural justice as required by the State Administrative Tribunal Act 2004 (WA) (‘the SAT Act’). There had been a refusal, by the tribunal, of leave to file written submissions in lieu of earlier oral submissions. The Supreme Court, while recognising the right to be heard, held that the right had been “amply complied with”. While reference was made to s 34(1) of the SAT Act, which is in the same terms as s 62(1) of the QCAT Act, there was no suggestion that that power could be used to abrogate the right to be heard. Rather, it was noted that the s 34(1) discretion ‘would be guided’ by the main objectives of the Act and by the terms of s 32(1) of the SAT Act, which provides that the ‘Tribunal is bound by the rules of natural justice’.
- The applicant also submits that without a direction limiting the role of the Commission he would not know who ‘the prosecutor to the proceeding is’. Reference was made to the decision in Strickland (a pseudonym) v DPP (Cth), where observations were made in relation to potential prejudice where there is an intervener, in that case in the context of criminal proceedings.
- However, in relation to the present proceedings there is not more than one ‘prosecutor’ in the relevant sense. This is a merits review and, by s 20(1) and s 21(1) of the QCAT Act, the respondent, as the decision-maker, must use his best endeavours to help the Tribunal to make the correct and preferable decision. Accordingly, the decision-maker’s role is not adversarial. In addition, both the decision-maker and the Commission are obliged to act as model litigants in the proceeding. Also, the proceedings are circumscribed by s 219H of the CCA, in that the review is by way of rehearing on the evidence given before the original decision-maker. While the Tribunal may give leave to adduce fresh evidence, matters of fairness can be taken into account by the Tribunal in deciding whether or not leave should be granted.
- Accordingly, in my view, the Tribunal does not have power to order that the Commission adopt a passive role in the proceeding. On the other hand, as recognised in Crime and Misconduct Commission v Wilson and Anor, the Commission may elect to take a passive role should it form the view that that approach would protect or advance its interests.
 In relation to disciplinary proceedings that started after the commencement of the Police Service Administration (Discipline Reform) and Other Legislation Amendment Act 2019 (Qld), on 30 October 2019, the Commission may elect to be joined as a party to the proceeding: see Crime and Corruption Act 2001 (Qld), s 219R, and the saving provision at s 452 of that Act.
 See QCAT Act, s 95(1).
 Submissions of the Commission, .
  QCA 314
 See the observation of Member Hon James Thomas AM QC in Chapman v Wilson and Anor  QCAT 400, .
 As to the term ‘corrupt conduct’, see s 15 CCA. The term ‘corruption’, as defined in Schedule 2 of the CCA, means corrupt conduct or police misconduct.
 Section 34 of the CCA includes, at (a), the principle that ‘the commission and units of public administration should work cooperatively to deal with corruption’ and, at (d), the principle that ‘the commission has an overriding responsibility to promote public confidence – in the integrity of units of public administration’. A further principle appears at s 34(c): ‘subject to the cooperation and public interest principles and the capacity of the unit of public administration, action to prevent and deal with corruption in a unit of public administration should generally happen within the unit’.
  2 Qd R 235, 257, .
  QCA 314, .
 Ibid, .
 Ibid, .
 (2016) 259 A Crim R 96, 112 .
 See also submissions of the Commission, .
 QCAT Act, s 20(1).
  QCAT 373.
  QCAT 109.
 Ibid, .
 See submissions of the Commission, .
 Submissions in response to application, filed11 November 2018, -; Submissions in reply filed 13 December 2019, . See also Officer Carey v Assistant Commissioner Mickelson  QCAT 109, -.
  QCATA 188.
 Ibid, . In the earlier decision in Chapman v Wilson and Anor  QCAT 400,  in relation to an application for joinder of the Crime and Misconduct Commission, Member Hon James Thomas AM QC stated: ‘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’. However, it seems that the learned Member was expressing a view as to what is ‘desirable’. Certainly, no order or direction to that effect was issued. It was simply ordered that the CMC be joined as a respondent to the application.
  QCATA 170. See also Laing & Anor v Kokkinos & Anor (No 2)  QCATA 247, -; Page v Jobbins  QCATA 147, ; Croton v Healy  QCAT 547.
 QCAT Act, s 4(c).
 Ibid, s 28(3)(b).
 Ibid, s 28(3)(d).
 Ibid, s 62(1).
 Ibid, s 28(2).
 Ibid, s 28(3)(a).
Re Nolan; Ex parte Young (1991) 172 CLR 460, 496 per Gaudron J; Fardon v Attorney-General (Qld)  223 CLR 575, - per Gummow J; Zaoui v Attorney-General (No 2)  NZCA 244, . Though its scope depends on the statutory context: Kioa v West (1985) 159 CLR 550, 584-585, per Mason J. See also submissions of the Commission, .
 Sub-section 95(2) of the QCAT Act limits the right to call evidence or cross-examine witnesses in specified circumstances, while s 95(3) allows time limits to be placed on the giving of evidence and the examination of witnesses. Also, by s 6 and 7 of the QCAT Act, the provisions of that Act may be modified by an enabling Act. In relation to matters falling under Chapter 5 Part 2 of the CCA, s 219H of the CCA provides that a review of a reviewable decision is by way of rehearing on the original evidence and that QCAT must give leave to adduce new evidence. However, contrary to the submission of the applicant (submissions in response to application, filed 11 November 2019, ; submissions in reply, -), these provisions do not remove the right to be heard and, in particular, the right to make submissions or the right to make an application to adduce new evidence. See also submissions of the Commission, . Compare the observations in Officer Carey,  QCT 109, . Nor do they remove the right to take certain other steps in the proceeding: in relation to those steps, see O’Brien  QCAT 373, fn. 2 and related text.
 (1990) 170 CLR 596,
 By s 219G(3) of the CCA, where the application for review is made by the Commission both the person who made the reviewable decision and the Commission are parties to the proceeding. There is no suggestion in the legislation that, in those circumstances, the rights accorded to parties under the QCAT Act might be curtailed. It is also noted that in relation to disciplinary proceedings that started after the commencement of the Police Service Administration (Discipline Reform) and Other Legislation Amendment Act 2019 (Qld), on 30 October 2019, the Commission may elect to be joined as a party to the proceeding: see Crime and Corruption Act 2001 (Qld), s 219R, and the saving provision at s 452 of that Act. Again, there is no suggestion in the legislation that the rights of the parties might be curtailed.
 Ibid, p 598. See also submission of the Commission, .
  QCAT 109, . See also submissions of the applicant in reply, filed 13 December 2019, .
 This potential was highlighted in the submissions of the Commission, . It was stated: ‘At this stage the views of the QPS and the Commission on substantiation are the same. However, the course of proceedings cannot be predicted. Issues could be raised through fresh, additional or substituted evidence or submissions or the introduction of a novel legal argument by the Applicant. Further, the QPS may alter its view on substantiation’.
  QCAT 373.
  WASC 428.
 The WA legislation had provisions equivalent to s 28(3)(a) and s 62(1) of the QCAT Act.
  WASC 428, .
 However, unlike the QCAT Act, s 32(1) of the SAT Act provides a qualification: ‘The Tribunal is bound by the rules of natural justice except to the extent that this Act or the enabling Act authorises, whether expressly or by implication, a departure from those rules’.
 Submissions in response to the application filed 11 November 2019, . The same submission was made in Officer Carey:  QCAT 109, , .
  HCA 53,  per Kiefel CJ, Bell and Nettle JJ; (2018) 93 ALJR 1; Applicant’s submissions in reply, ; submissions of the Commission, -. See also Officer Carey  QCAT 109, 
 See QCAT Practice Direction No 3 of 2013, .
 Following commencement of the Police Service Administration (Discipline Reform) and Other Legislation Amendment Act 2019 (Qld), see also s 219Q of the CCA: see, above, footnotes 1 and 31.
 More generally, as to the power to regulate proceedings to ensure that no oppression, prejudice or injustice arises where there is joinder, see Boral Resources (Vic) Pty Ltd & Ors v CFMEU  VSC 572, .
 Ibid, -. See also submissions of the Commission, -.
- Published Case Name:
Schafer v Acting Deputy Commissioner Tony Wright
- Shortened Case Name:
Schafer v Acting Deputy Commissioner Tony Wright
 QCAT 108
23 Jan 2020