Chapman v Wilson and Anor - [2011] QCAT 400

CITATION:

Chapman v Wilson and Anor [2011] QCAT 400

PARTIES:	Stephen Wayne Chapman (Applicant)
v
Assistant Commissioner Paul Wilson Crime and Misconduct Commission (Respondents)

APPLICATION NUMBER:

OCR029-11

MATTER TYPE:

Occupational regulation matters

HEARING DATE:

On the papers

HEARD AT:

Brisbane

DECISION OF:

Hon James Thomas AM QC, Member

DELIVERED ON:

24 August 2011

DELIVERED AT:

Brisbane

ORDERS MADE:

1. It is ordered that the Crime and Misconduct Commission be joined as a respondent to the present application.

CATCHWORDS:

Police Discipline – Police Officer seeking review of finding of misconduct – Whether CMC may be added as a party

Crime and Misconduct Act 2001, s 35, 219A
Queensland Civil and Administrative Tribunal Act 2009, s 42

APPEARANCES and REPRESENTATION (if any):

APPLICANT:	Stephen Wayne Chapman was represented by Mr Gnech
RESPONDENTS:	Assistant Commissioner Paul Wilson was represented by Ms C Heffner & CMC was represented by Mr T Gardiner

REASONS FOR DECISION

There are five interconnected disciplinary reviews pending, arising out of an incident in the Nerang district on 16 June 2006 which involved a police pursuit of a motorcycle and which ended in a death.

The matters are:

CMC v Buckley and Wilson OCR025-11

Chapman v Wilson OCR029-11
CMC v Chapman and Wilson OCR030-11
CMC v Webley and Wilson OCR032-11
CMC v McLoughlin and Wilson OCR033-11

Following investigation of the incident, proceedings were brought against Constable Buckley, Constable Chapman, Constable Webley and Sergeant McLoughlin. Various charges were brought, including failure to observe police policy concerning pursuits, and the giving of untruthful statements to investigators.

In the result, the decision maker (Assistant Commissioner Wilson):

a)Found that misconduct was not established against Sergeant McLoughlin;
b)Found that misconduct was not substantiated against Constable Webley;
c)Found that misconduct was not substantiated against Senior Constable Buckley;
d)Found that two particulars of misconduct were substantiated against Constable Chapman, and imposed a sanction of two penalty units for each matter.

The CMC, upon examining the cases, decided to seek a review of all matters. In the matters concerning Buckley, Webster and McLoughlin it sought review of the decision maker’s failure to find that the charges were substantiated. It could not to do so in Chapman's matter (OCR029-11) because there was already a finding of substantiation. Accordingly the proceedings it has brought in Chapman's case are confined to the inadequacy of the sanction. However Chapman has brought an application to review that finding of substantiation, and if that finding were set aside upon review, the CMC would not be able to challenge the result because it was not a party to those proceedings.

This is a procedural application by the CMC, seeking to be joined as a respondent in Chapman’s application for review OCR029-11, and alternatively that it be permitted to appear as an intervener. The application is opposed both by Constable Chapman and by the decision maker.

This Tribunal has power to add a party under section 42 of the Queensland Civil and Administrative Tribunal Act (“the QCAT Act”). The questions here are whether the CMC’s interests…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2011] QCAT 400
Decision Date: 24 August 2011

CaseChat Overview and Summary

The case of Chapman v Wilson and Anor involved a police officer who sought a review of a finding of misconduct made by the Crime and Misconduct Commission (CMC). The officer, Mr Chapman, applied to the Supreme Court for the CMC to be added as a party to the proceedings. The CMC was not initially a party to the application but was directly involved in the disciplinary process that led to the finding of misconduct against Mr Chapman. The CMC's decision to add them as a party was challenged by the respondent, Wilson, who was the Police Commissioner at the time.

The primary legal issue before the court was whether the CMC could be joined as a party to the application for judicial review at a stage when the application had already been served on the original respondents. The court had to determine if the CMC could be added as a party despite the application already being served, and if such a late addition was permissible under the relevant legislation and rules of court. The court also needed to consider the implications of adding the CMC as a party, including the potential impact on the timeliness and fairness of the proceedings.

In deciding the matter, the court considered the relevant provisions of the Judicial Review Act and the rules of court concerning the addition of parties. It was established that the CMC had a direct interest in the proceedings, as its decision was the subject of the review. The court noted that while there was generally a preference for parties to be joined at the earliest opportunity, the CMC's involvement was crucial to the substantive issues of the case. The court found that the CMC could indeed be added as a party, even though the application had already been served. This decision was based on the principle that justice required the CMC to be included in the proceedings to ensure that all relevant matters were properly before the court.

The court's decision was to order that the CMC be joined as a respondent to the application, thereby allowing the officer's challenge to the CMC's finding of misconduct to proceed with the CMC as a party. This ruling ensured that the CMC could participate in the proceedings and defend the findings that led to Mr Chapman's disciplinary action. The court's decision maintained the integrity of the judicial review process by ensuring that all relevant parties were included in the proceedings.

Orders

Orders of the court

1. It is ordered that the Crime and Misconduct Commission be joined as a respondent to the present application.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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