Braunberger v Assistant Commissioner Les Hopkins

[2014] QCAT 34

CITATION: Braunberger v Assistant Commissioner Les Hopkins [2014] QCAT 34

PARTIES:	Liam Braunberger (Applicant)
v
Assistant Commissioner Les Hopkins (Respondent)

APPLICATION NUMBER: OCR280-13

MATTER TYPE: Occupational regulation matters

HEARING DATE: On the papers

HEARD AT: Brisbane

DECISION OF: Member Browne,

DELIVERED ON: 28 January 2014

DELIVERED AT: Brisbane

ORDERS MADE:

1.    The application for extension of time to file the application to review the respondent’s decision is refused.

2.    The application to review the respondent’s decision is dismissed.

CATCHWORDS:

Extension of time – where applicant seeks an extension of time to file application – whether satisfactory explanation for delay provided – whether prejudice to respondent if application proceeds – whether grounds to dismiss application on the Tribunal’s own initiative

Crime and Misconduct Act 2001 ss 219G, 219A
Queensland Civil and Administrative Tribunal Act 2009 ss 61, 47

Benson v Ware [2012] QCATA 024, cited
Crime and Misconduct Commissioner v Assistant Commissioner Barnett and Anor [2011] QCAT 161, cited
Crime and Misconduct Commission v Chapman & Anor [2011] QCAT 229, cited
Crime and Misconduct Commission v Assistant Commissioner O’Regan and Anor [2012] QCAT 238, cited
Frazer v Assistant Commissioner Rynders, Queensland Police Service [2012] QCAT 295, cited
Garth v Queensland Police Service, (Unreported, Queensland Civil and Administrative Tribunal, Hon C Brabazon QC, 7 August 2013)
Hunter Valley Developments Pty Ltd v The Honourable Barry Cowan, Minister for Home Affairs Environment [1984] 3 FCR 344, cited

APPEARANCES and REPRESENTATION (if any):

This matter was heard and determined on the papers pursuant to s 32 of the Queensland Civil and Administrative Tribunal Act 2009 (QCAT Act). Written submissions were received from the applicant’s legal representative, Mr G Cranny, Solicitor, Gilshenan and Luton Legal Practice and from the respondent’s legal representative, Mr S McLeod of Counsel instructed by the Officer of the Queensland Police Service.

REASONS FOR DECISION

1. Mr Braunberger seeks an extension of time to file an application to review a decision made by the respondent decision maker on 20 October 2010.

2. The decision sought to be reviewed relates to sanction imposed by the respondent for conduct that took place on 12 September 2010. Mr Braunberger was the field training officer and supervising officer of a first year constable working in Fortitude Valley, Brisbane. Mr Braunberger took a number of photographs of a semi-naked woman in public while allowing her to wear his official police baseball cap. Mr Braunberger also allowed the first year constable under his supervision at the time to take photographs of the woman with his mobile phone.

3. Mr Braunberger admits that he showed the photographs taken on a mobile phone to a number of police officers at the Indooroopilly Police Station.[1]

   [1]Form A, Notice to undertake an administrative consensual disciplinary process dated 20 October 2010.

4. The respondent determined that Mr Braunberger’s conduct amounted to police misconduct in that his conduct “did not meet the standard of conduct the community reasonably expects of a police officer”.[2]

   [2]Crime and Misconduct Act 2001 Schedule 2.

5. Mr Braunberger accepted the allegation of misconduct and elected to resolve the disciplinary proceedings through the Administrative Consensual Disciplinary process (ACDP). Mr Braunberger was informed during the ACDP process of his right to review the respondent’s decision in the Queensland Civil and Administrative Tribunal. The respondent’s notice of determination referred to section 219G of the Crime and Misconduct Act 2001 that confers power on the Tribunal to review a reviewable decision within 14 days from receiving the decision.

6. The ACDP process was finalised by the respondent without a hearing and the sanction imposed was a reduction in paypoint from 1.3 to 1.1, with no advancement to 1.2 for 12 months effective from 4 November 2010.

7. Mr Braunberger filed an application to review the respondent’s decision on 31 October 2013. The application is clearly out of time.

Application to extend time

1. The Tribunal has the power under s 61 of the Queensland Civil and Administrative Tribunal Act 2009 to extend the time in which to file the application. The Tribunal must consider whether “the interests of justice are served by granting or refusing the extension sought”.[3]

   [3]Benson v Ware [2012] QCATA 24 at [9].

2. There are earlier decisions of the Tribunal and the Appeal Tribunal that have identified some of the relevant factors to be considered in exercising the discretionary power to extend time. Relevant factors, although not exclusive, include the length of the delay and whether a satisfactory explanation has been provided for the delay; the merits of the application; and the degree of prejudice, if any, to the other party if the application to extend time is granted.[4]

   [4]Ibid. See also Crime and Misconduct Commission v Chapman & Anor [2011] QCAT 229, Crime and Misconduct Commission v Assistant Commissioner O’Regan and Anor [2012] QCAT 238 and Frazer v Assistant Commissioner Rydners, Queensland Police Service [2012] QCAT 295.

3. Mr Braunberger contends that he was “reluctant” to commence proceedings because he was waiting for the Tribunal to finalise the review proceedings relating to sanction for another police officer involved in the conduct, Constable Garth.

4. Constable Garth was also involved in the incident which led to the taking of the photographs of the semi-naked woman.[5] Other officers involved in the incident elected to finalise their disciplinary proceedings through the ACDP process.

   [5]See Garth v Queensland Police Service, (Unreported, Queensland Civil and Administrative Tribunal, Hon C Brabazon QC, 7 August 2013).

5. Constable Garth’s matter was finalised by the Appeal Tribunal on 7 August 2013,[6] an appeal having been filed from the Tribunal’s decision made at first instance on 20 April 2012.

   [6]Garth v Queensland Police Service, (Unreported, Queensland Civil and Administrative Tribunal, Hon C Brabazon QC, 7 August 2013).

   Is the explanation for the delay satisfactory?

6. I am not satisfied that Mr Braunberger has provided a satisfactory explanation for the delay in filing the application for the following reasons:

   a)     Mr Braunberger fails to address how Constable Garth’s conduct was “directly relevant” to his conduct. Mr Braunberger was performing a supervisory role of a first year constable at the time of the incident and allowed the first year constable to take photographs of the woman. Mr Braunberger also took a number of photographs, allowed the woman to wear his official police baseball cap and participated in showing the photographs to other police officers. I am not satisfied that Constable Garth’s conduct is “directly relevant” to Mr Braunberger’ conduct.

   b)     Mr Braunberger fails to address why he did not otherwise file the application within the prescribed time in circumstances where he had been advised of the 14 day time limit and he knew the Tribunal had the power to review sanction based on his own contention that Constable Garth had elected to review his sanction before the Tribunal.

   c)     Mr Braunberger fails to address why he waited nearly 3 years to exercise his review rights in circumstances where he now contends that it “became apparent” after receiving the sanction that he would not be entitled to return to the “position” he would have held in the Queensland Police Service (QPS) after 12 months, the period of the sanction imposed. I am not otherwise satisfied that Mr Braunberger’s progression of paypoints and position held in the QPS is related to Constable Garth’s review proceedings that Mr Braunberger contends he was waiting to be finalised in the Tribunal before filing the application.

   What is the length of delay?

7. The delay in relation to filing the application for review is considerable. It has been previously determined by the Tribunal that a short delay is easier to excuse than a lengthy one. In the decision of Crime and Misconduct Commission v Chapman & Anor[7] the Honourable James Thomas AM QC said that:

   In cases of a relatively short and properly explained delay, when there is no real prejudice or disadvantage to other parties, it is difficult to conceive an extension being refused. But as mentioned above the discretion is not to be trammelled, and exercises of this nature must be determined case by case according to recognised principles including those stated above.[8]

   [7][2011] QCAT 229.

   [8]Ibid, [12].

8. Mr Braunberger also contends that he filed the application in the Tribunal shortly after receiving correspondence from the QPS that his matter would not be reopened. The respondent argues, however, that Mr Braunberger was advised by the QPS on 11 October 2013 through his solicitors that his matter would not be reopened. Mr Braunberger did not file his application for review until 31 October 2013. I accept the respondent’s submission that Mr Braunberger has not otherwise provided an explanation for the delay of approximately 20 days in filing the application after receiving correspondence dated 11 October 2013 from the QPS.

9. Notwithstanding the absence of a further explanation for the 20 days delay in filing the application, Mr Braunberger’s submission that he was seeking a reopening of the matter with the QPS and that this is a further explanation for the delay, is without substance. Mr Braunberger has made submissions about Constable Garth’s review of sanction proceedings in the Tribunal and contends that he was waiting for Constable Garth’s matter to be finalised. It is therefore reasonable to presume that Mr Braunberger was aware, at the time of receiving the sanction, that the Tribunal was the appropriate forum to review the respondent’s decision and not the QPS having sought a reopening of the disciplinary proceedings.

   What are the merits of the application?

10. Mr Braunberger contends that the sanction imposed has resulted in substantial financial loss to him and that there are good prospects that the Tribunal, on review, will determine that the penalty was manifestly excessive.

11. Mr Braunberger also contends that there is a disparity in the sanction imposed for Constable Garth’s conduct, who is referred to in written submissions as being the “principal offender,” when compared to the sanction imposed for Mr Braunberger’s conduct. I am referred to the findings of the Appeal Tribunal where the Honourable Charles Brabazon QC stated:

    It might be noted that the sanctions imposed on the other officers, connected with Constable Garth’s conduct, are more severe. It is inappropriate here for the QPS to seek penalty in line with those decisions. Some of them are surprisingly harsh. They are penalties that seem to have been intended to impose punishment, rather then reinforce the need to discipline.[9]

    [9]Garth v Queensland Police Service, (Unreported, Queensland Civil and Administrative Tribunal, Hon C Brabazon QC, 7 August 2013), [29].

12. The Tribunal’s power, on review, is to arrive at the correct and preferable decision based on the evidence that was before the original decision maker.[10] The Tribunal in exercising its review jurisdiction has the same powers as the original decision maker;[11] and can impose a different sanction in circumstances where it determines it is “more appropriate”.[12]

    [10]Queensland Civil and Administrative Tribunal Act 2009 s 20. See s 219H, Crime and Misconduct Act 2001.

    [11]Queensland Civil and Administrative Tribunal Act 2009 s 19.

    [12]Crime and Misconduct Commissioner v Assistant Commissioner Barnett and Anor [2011] QCAT 161.

13. In the absence of an application for leave to adduce new or fresh evidence, Mr Braunberger’s application for review would proceed before the Tribunal based on the evidence that was before the respondent decision maker. This would include the summary of facts and “favourable comments” relating to Mr Braunberger’s conduct as a serving police officer. Mr Braunberger did not make any written submissions relevant to mitigating circumstances but has accepted the allegations in full.

14. I accept that there is a disparity in the sanction imposed by the respondent decision maker when compared to Constable Garth’s sanction imposed by the Appeal Tribunal. I also accept that the Tribunal, on review, would take into consideration other matters involving similar conduct, such as Constable Garth’s matter, to ensure consistency in sanctions imposed.

15. I am not satisfied, however, that the merits of the application alone, in the absence of a satisfactory explanation for the delay, in circumstances where the length of the delay is considerable, are sufficient to justify the grant of an extension of time.

16. Notwithstanding the strengths of Mr Braunberger’s case, I am satisfied the respondent decision maker at the time of determining sanction considered all of the relevant facts and favourable comments. The respondent was cognisant of the purpose of disciplinary proceedings as prescribed under s 219A of the Crime and Misconduct Act 2001 and reflected in the notice of determination. The respondent clearly states in the notice of determination that he has taken into consideration the facts and favourable comments.

    Is there any prejudice to the respondent in allowing the extension?

17. I do not accept Mr Braunberger’s contention that it is unlikely the respondent will suffer any direct prejudice as a result of the late filing of the application.

18. To allow an application to proceed in the Tribunal in circumstances where a considerable period of time has elapsed, in the absence of a satisfactory explanation for the delay, denies the respondent the opportunity to effectively manage its disciplinary processes. That is, the respondent is denied the opportunity to proceed to finalisation of disciplinary matters particularly in the ACDP process which effectively expedites the process, when there is a possibility of a review being pursued in some indefinite time period.

    Do the interests of justice otherwise warrant the granting of an extension?

19. The relevant legislation, the Crime and Misconduct Act 2001, prescribes that the time for filing an application in the Tribunal is 14 days. Here the time that has elapsed since the respondent determined the sanction to the time of filing the application is approximately 3 years.

20. I am not satisfied that the interests of justice otherwise warrant the granting of an extension of time. Mr Braunberger was given an opportunity, having elected to proceed through the ACDP process, to submit any mitigating circumstances and to accept the allegations in full. The respondent has considered the uncontested allegations and favourable comments in determining sanction.

21. The finalisation of the disciplinary process by the QPS is not only important in maintaining standards in the QPS but also in maintaining the public confidence as reflected in s 219A of the Crime and Misconduct Act 2001: to protect the public; and to uphold ethical standards within the police service; and to promote and maintain public confidence in the public sector.

22. The public interest would not be served if an extension of time to file the application was allowed in circumstances where the delay is considerable and a satisfactory explanation for the delay has not been provided.[13] The appropriate order having considered all of the circumstances and the written submissions filed is that the application to extend time for filing the application for review is refused.

    [13]Hunter Valley Developments Pty Ltd v The Honourable Barry Cowan, Minister for Home Affairs Environment [1984] 3 FCR 344.

Application to dismiss the application for review on the Tribunal’s own initiative

1. The Tribunal has the power, on its own initiative, under s 47 of the Queensland Civil and Administrative Tribunal Act 2009 to dismiss the application on the basis that it is “frivolous, vexations or misconceived; or lacking in substance; or otherwise an abuse of process”.

2. The Tribunal has determined that Mr Braunberger's application to extend time for filing the application is refused. The application for review is clearly out of time and in the absence of an order allowing time to be extended, the Tribunal is not in a position to deal with the substantive application. The application to review the respondent’s decision is therefore dismissed.