Crime and Misconduct Commission v Chapman & Anor

[2011] QCAT 229

CITATION: Crime and Misconduct Commission v Chapman & Anor [2011] QCAT 229

PARTIES:	Crime and Misconduct Commission
v
Steven Chapman (First Respondent) Assistant Commissioner Paul Wilson (Second Respondent)

APPLICATION NUMBER:   OCR030-11

MATTER TYPE: Occupational regulation matters

HEARING DATE: On the papers

HEARD AT: Brisbane

DECISION OF: Mr James Thomas AM QC, Member

DELIVERED ON: 25 May 2011

DELIVERED AT: Brisbane

ORDERS MADE:    

It is ordered that the time for the making of the application in the present matter be extended to the date upon which the application was filed with QCAT.

CATCHWORDS:

PROCEDURE – EXTENSION OF TIME – where Applicant sought short extension of time – circumstances and reasons when appropriate to grant extension

Queensland Civil and Administrative Tribunal Act 2009, s 61
Crime and Misconduct Act 2001, s 219(G)

APPEARANCES and REPRESENTATION (if any):

The matter was heard and determined on the papers under section 32 of the Queensland Civil and Administrative Tribunal Act 2009. Written submissions were received from the Applicant, the Crime and Misconduct Commission; from Mr Calvin Grech, Solicitor, Queensland Police Union of Employees on behalf of the first Respondent and Ms Christina Heffner, Solicitor from the Office of Queensland Police Service Solicitor.

REASONS FOR DECISION

NATURE OF PROCEEDINGS

1. This is an application by the CMC for an extension of time for the making of an application to review the second Respondent’s decision in disciplinary proceedings against the first Respondent.

2. Under section 219(G) of the Crime and Misconduct Act 2001, which is the enabling Act for proceedings of the present kind, an application is required to be made within 14 days after the day on which notice of the decision or finding was given. However under section 61(1)(a) of the Queensland Civil and Administrative Tribunal Act 2009 the Tribunal has the power to “extend a time limit fixed for the start of a proceeding by this Act or and enabling Act”.

The present application was filed with QCAT on 17 February 2011 which was one day late.

CIRCUMSTANCES

1. This is one of four interconnected disciplinary matters arising out of an incident in the Nerang district on 16 June 2006 which involved a police pursuit of a motorcycle ending in a death.  The four officers against whom the proceedings were brought were Sergeant CP McLoughlin, Senior Constable Hilton Buckley, Constable Shayne Webley and the present Respondent Steven Chapman.  Various charges were brought, ranging from failure to observe police policy concerning pursuits to the giving of untruthful statements to investigators.

2. In the result, the decision maker Assistant Commissioner Paul 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.

3. On 2 February 2011 the CMC was given notice of all four decisions of which it now seeks review.  The CMC, upon examining the cases, decided to seek a review of all matters, in particular against the Assistant Commissioner’s failure to find the charges to have been substantiated, and in Constable Chapman’s case, against the inadequacy of the sanctions imposed.

4. The McLoughlin and Webley matters were date-stamped as received by the CMC on 2 February 2011, and applications for review were duly filed on 16 February 2011.  There is no problem with those matters.  The problem has arisen in relation to Chapman and Buckley through an administrative error which resulted in their matters not being date-stamped until 3 February 2011.  Those applications were not filed until 17 February 2011.  Hence the CMC needs an extension of time in order to validate those proceedings. 

PRINCIPLES           

1. The power to extend time under section 61 of the QCAT Act is substantially untrammelled. The only statutory requirement regulating the exercise of the tribunal's discretion is section 61(3) which states:

   “The Tribunal can not extend or shorten the time limit or waive compliance with another procedural requirement if to do so would cause prejudice or detriment, not able to be remedied by a appropriate order for costs or damages, to a party or potential party to a proceeding”. 

2. Apart from the necessary obedience to section 61(3), the power of extending time should be exercised so far as possible in accordance with principles developed by the courts in like situations. The former Misconduct Tribunal had no power to extend time, and I am informed that the present provision has only been interpreted once previously, in CMC v Rynders and Anor [2010] QCAT 187, in which the main factor considered was whether there was a “satisfactory explanation”.

3. The following factors, usually in combination with one another, have been found to be relevant in the exercise of the discretions to extend time for the commencement of a proceeding or to bring an appeal.

   a.    Whether a satisfactory explanation (or “good reason”) is shown to account for the delay.

   b.    The strength of the case the Applicant wishes to bring (assuming it is possible for some view on this to be formed upon the preliminary material).

   c.    Prejudice to adverse parties.

   d.    Length of the delay, noting that a short delay is usually easier to excuse than a lengthy one.

   e.    Overall, whether it is in the interests of justice to grant the extension.  This usually calls for some analysis of the above factors considered in combination.

4. The above statement does not purport to be an exclusive or even a comprehensive statement of principles that may influence such a determination.  They are simply the ones that in my experience are usually the most important.

5. I bear in mind that the legislature must have had good reason for fixing upon a fourteen day limitation period, but also note that it is a relatively short time for a body such as the CMC to make a proper assessment of complex cases, reach a decision as to what further action should be taken and prepare the necessary process.

6. No prejudice was occasioned to any adverse party, and the present case is an obvious one in which an extension should be granted.  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.

ORDER

1. It is ordered that the time for the making of the application in the present matter be extended to the date upon which the application was filed with QCAT.