Frazer v Assistant Commissioner Rydners, Queensland Police Service

[2012] QCAT 295

CITATION: Frazer v Assistant Commissioner Rynders, Queensland Police Service [2012] QCAT 295

PARTIES:	Jeffrey Robert Frazer (Applicant)
v
Assistant Commissioner Graham Rynders, Queensland Police Service (Respondent)

APPLICATION NUMBER:   OCR301-11

MATTER TYPE: Occupational regulation matters

HEARING DATE: On the papers

HEARD AT: Brisbane

DECISION OF: Joanne Browne, Member

DELIVERED ON: 11 July 2012

DELIVERED AT: Brisbane

ORDERS MADE:     

1.   The Applicant’s application to extend time for filing the application to review is dismissed.

2.   The Respondent’s application to strike out proceedings is granted.

3.   The Applicant’s application to review the Respondent’s decision is otherwise dismissed.

CATCHWORDS:

Extension of time – where Applicant sought an extension of time to review the Respondent’s decision – where explanation for the delay provided – where Applicant failed to address issue of prejudice – where Applicant failed to address merits of the review application – where the Respondent sought an order to strike out proceedings

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

Compton v Deputy Commissioner Ian Stewart Queensland Police Service [2010] QCAT 384, cited
Crime and Misconduct Commission v Chapman & Anor [2011] QCAT 229, cited
Crime and Misconduct Commissioner v Assistant Commissioner Barnett and Anor [2011] QCAT 161, cited
Crime and Misconduct Commission v Assistant Commissioner O’Regan and Anor [2012] QCAT 238, cited
Re Hunter Valley Developments Pty Ltd (1984) 3 FCR 344, cited
McClintock v Queensland Building Services Authority [2010] QCAT 340, cited
McClintock v Queensland Building Services Authority [2010] QCATA 068, cited
McKenzie v Acting Assistant Commissioner Wright [2011] QCATA 309, 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, Senior Constable Jeffrey Frazer and from Ms Christina Heffner, Acting Principal Legal Officer from the Queensland Police Service, on behalf of the Respondent.

REASONS FOR DECISION

1. Senior Constable Frazer (also referred to as the Applicant in these proceedings) was charged with improper conduct (found to be misconduct) because (on 6 October 2010) he was absent from his rostered duty without reasonable cause or permission; and he failed to provide appropriate supervision as a shift supervisor to officers under his control.

2. On 15 March 2011 Assistant Commissioner Rynders (the Respondent decision maker) of the Queensland Police Service (the QPS) in the Administrative Consensual Disciplinary Process (ACDP) found that misconduct was substantiated against Senior Constable Frazer and imposed a sanction – a reduction in Senior Constable Frazer’s salary from paypoint 2.7 to paypoint 2.6 for a period of 12 months.

3. Senior Constable Frazer consented to the disciplinary proceedings and elected to have the matter dealt with by the QPS – having issued a notice to undertake an administrative disciplinary process and indicating that he accepts the allegations and submits mitigating circumstances regarding sanction.

1. The Respondent decision maker has provided reasons for the sanction imposed in the Form C notice of determination of the ACDP process, to be referred to as the QPS notice dated 15 March 2011.

1. Senior Constable Frazer filed in QCAT an application for a review of the Respondent decision maker’s decision (made on 15 March 2011) on 6 December 2011, a further application on 16 January 2012 as the initial application filed was incomplete, and an amended application on 16 April 2012.  No fault is to be attributed to Senior Constable Frazer for filing an incomplete application (on 6 December 2011) – it was an administrative oversight.

1. There are effectively two applications before the Tribunal.  Senior Constable Frazer seeks an extension of time in which to file his application for a review of the Respondent’s decision.  The QPS has applied to strike out Senior Constable Frazer’s application because (as contended) QCAT does not have jurisdiction as the decision is not a “reviewable decision”; and the application is otherwise misconceived.

1. The issues raised by the QPS insofar as they relate to QCAT’s jurisdiction (to review the decision) and whether Senior Constable Frazer’s application is misconceived are relevant considerations, to be considered by QCAT, in determining the application for an extension of time.  If Senior Constable Frazer is unsuccessful in his application (for an extension of time), the application of the QPS (to strike out) must be granted – QCAT has the power to strike out the proceeding if it considers the proceeding is frivolous, vexatious or misconceived; or lacking in substance; or otherwise an abuse of process.[1]

   [1] QCAT Act, s 47.

1. The Crime and Misconduct Act 2001 confers power on QCAT to review a decision made by the QPS in relation to an allegation or finding of misconduct and/or disciplinary action (sanction) brought against a police officer.[2]  An application to review a disciplinary finding and/or sanction imposed (by the QPS) must be made within 14 days after receipt of notice of the decision or finding.[3]

   [2]        Crime and Misconduct Act 2001, s 219G.

   [3]        Crime and Misconduct Act 2001, s 219G(2).

1. Senior Constable Frazer’s application is clearly out of time: the decision made by the Respondent decision maker in relation to the finding of misconduct and the sanction imposed through the ACDP process was made on 15 March 2011.  Senior Constable Frazer filed his application (initially) on 6 December 2011, approximately 9 months later.

1. The Tribunal has the power under s 61(1)(a) of the QCAT Act to “extend a time limit fixed for the start of a proceeding by [the QCAT Act] or an enabling Act”.

1. In exercising its discretionary power to extend time under s 61(1)(a) of the QCAT Act the Tribunal must also consider the extent to which the extension of time would “cause prejudice or detriment, not able to be remedied by an appropriate order for costs or damages, to a party or potential party to a proceeding”.[4]

   [4] QCAT Act, s 61(3).

1. It was previously determined by QCAT that there are a number of relevant factors to be considered by the Tribunal when exercising its discretion to extend time: whether a satisfactory explanation (or “good reason”) has been provided to account for the delay; the strength of the case the Applicant wishes to bring (also known as the “merits” of the application); prejudice (if any) to adverse parties; the length of delay – a short delay is easier to excuse than a lengthy one; and whether the interests of justice otherwise justify the granting of the extension.[5]  These relevant factors to be considered by the Tribunal are not (however) exclusive and in exercising its discretion (to extend time) the Tribunal must have regard to the particular circumstances of the case.

   [5]See Crime and Misconduct Commission v Chapman & Anor [2011] QCAT 229 and Crime and Misconduct Commission v Assistant Commissioner O’Regan and Anor [2012] QCAT 238.

1. Senior Constable Frazer has provided an explanation for his delay in filing his application.  He submits that he attempted to resolve the matter (referred to as his “grievance”) through the QPS (internally) and was only advised by the QPS of the “procedure or avenue of appeal” to QCAT in late November 2011.[6]

   [6]Application to extend a time limit dated 24 November 2011 (filed by Senior Constable Frazer).

1. Senior Constable Frazer has provided a copy of various documents (attached to his application for review) in support of his submission that attempts were made to resolve his grievance through the QPS. Some of the material, for the purposes of a review before QCAT, would be considered “fresh” or “additional” evidence as provided under s 219H(2) of the Crime and Misconduct Act 2001 and Senior Constable Frazer would (therefore) be required to make an application seeking leave to adduce the further material (at the review hearing).  The material is (however) relevant to Senior Constable Frazer’s application to extend time and the material should therefore be considered by the Tribunal in relation to Senior Constable Frazer’s explanation for a delay in filing his application (for review).  The material supports Senior Constable Frazer’s submission that he made attempts to resolve his grievance with the QPS prior to filing his application for a review in QCAT – Senior Constable Frazer sent emails to the QPS (in June 2011), lodged a grievance with the QPS on 19 August 2011 and lodged an application to review (internally to police service reviews) under the Police Service Administration Act 1990 on 3 November 2011.

1. Notwithstanding the attempts made by Senior Constable Frazer to resolve his “grievance” through the QPS prior to filing his application (in QCAT), the Tribunal is not satisfied that Senior Constable Frazer was only notified of his right of review (to QCAT) in November 2011 – the QPS notice dated 15 March 2011 clearly states that Senior Constable Frazer has a right of review to QCAT.  In the absence of any other explanation (for the delay), the delay is considerable and it is necessary (in any event) for the Tribunal to consider other relevant factors such as prejudice to adverse parties and the merits of Senior Constable Frazer’s application (or the strength of his case) in determining whether the discretion to extend time should be exercised.

Does QCAT have jurisdiction to review the QPS decision; and is the application for review otherwise misconceived?

1. Senior Constable Frazer consented to the disciplinary proceedings through the ACDP process and does not dispute the imposition of a sanction, namely a reduction of his salary by one paypoint for a period of 12 months.  Senior Constable Frazer’s dispute relates only to the way in which the paypoints were deducted by the QPS; and on that basis he seeks to challenge the sanction imposed on the basis that it was manifestly excessive.

2. QCAT has jurisdiction to review a sanction or discipline imposed by the QPS in disciplinary proceedings. The sanction imposed against Senior Constable Frazer is for the purposes of s 7.4 of the Police Service Administration Act 1990 a discipline that may be imposed, the Respondent decision maker having made a finding of misconduct. The sanction or discipline imposed is therefore a “reviewable decision” as prescribed under s 219G of the Crime and Misconduct Act 2001;[7] and the Tribunal has jurisdiction to review the decision upon application (for review) being made within 14 days after the decision was made.

   [7]Senior Constable Frazer is a person who may apply to QCAT for a review of the Respondent decision maker’s decision for the purposes of s 219G of the Crime and Misconduct Act 2001.

1. The contention raised by the QPS that QCAT does not have jurisdiction as the decision is not a “reviewable decision” is not entirely without merit.  Senior Constable Frazer’s amended application is (with respect) confusing – Senior Constable Frazer states (in the application) that the date the decision was made is 13 May 2011[8] and that he received the decision on 14 June 2011.[9]  Senior Constable Frazer’s reasons why he thinks the decision is wrong raise issues which do not appear to directly relate to the decision and the reasons why (as contended) the sanction is manifestly excessive – Senior Constable Frazer refers to being “misled” by the Respondent decision maker and the professional practice manager (of the QPS) and that he was (essentially) not informed as to the effect of the sanction, prior to consenting to the ACDP process.

   [8]The date “13 May 2011” is the date Mr Frazer states his paypoints should have been reinstated from – it is 12 months from 13 May 2010 (an earlier unrelated disciplinary proceeding concerning Senior Constable Frazer).

   [9]The date “14 June 2011” is the date Senior Constable Frazer claims he became aware of the deduction of paypoints issue and raised the “grievance” (internally) with the QPS.

1. Senior Constable Frazer’s inability to clearly articulate the particulars of the decision to be reviewed may be explained by the fact that he (Senior Constable Frazer) is self-represented in these proceedings. The Tribunal is able to waive any non-compliance with another procedural requirement under the QCAT Act in respect of the application for review and the inadequate or wrong particulars of the decision to be reviewed (as provided in the application). Senior Constable Frazer (in any event) provides further particulars of his application in written submissions including the basis upon which he seeks a review of the Respondent decision maker’s decision.

1. Senior Constable Frazer’s primary issue with the discipline imposed (sanction) is effectively the way in which the QPS has applied the sanction or more importantly reduced his salary by way of paypoint deduction.  This issue is relevant to an earlier (unrelated) disciplinary ACDP process concerning Senior Constable Frazer.

1. By way of background, on 13 May 2010 Senior Constable Frazer faced disciplinary charges and agreed to the finding and sanction (imposed) through the ACDP process.  The decision (sanction imposed) was however reviewed at QCAT, an application for review having been filed by the Crime and Misconduct Commission.  QCAT published its reasons and orders were made on 2 September 2010.  The incident giving rise to the charges (and finding of misconduct) concerned Senior Constable Frazer allowing a number of people (some of whom he knew personally) into the Caloundra Police Station (on 14 November 2009) without authorisation to consume alcohol in the social club area of the police station.  Some of the people had “questionable backgrounds” and the security of the station was compromised.  The sanction imposed (on review at QCAT) was demotion in paypoint from paypoint 2.9 to 2.7 for 12 months (effective from 13 May 2010).

1. Senior Constable Frazer submits that it was his understanding from the outcome of the disciplinary proceedings on 13 May 2010 and a “discussion” with the Respondent decision maker prior to agreeing to the proposed charges and sanction in respect of these proceedings (on 15 March 2011), that his paypoint would be reinstated (from 2.7 to 2.9) at the conclusion of the sanction term for the previous ACDP process.  Senior Constable Frazer submits that his salary should have been reinstated from paypoint 2.7 to 2.8 effective from 13 May 2011.  Senior Constable Frazer also submits that he is aggrieved by the decision (sanction imposed on 15 March 2011) in that he has suffered financial detriment in the amount of salary received due to the deduction of paypoints.

1. Senior Constable Frazer submits that in the event the sanction is to be applied as indicated by the QPS, the sanction is clearly manifestly excessive and he therefore seeks a review of the “whole matter encompassing all of the issues”.

1. The QPS refers the Tribunal to the QPS notice dated 15 March 2011 and argues that the Respondent decision maker clearly states the sanction to be imposed (in the notice) and that the Respondent decision maker was cognisant of Senior Constable Frazer’s previous misconduct (and its continuing effect) at the time the sanction was imposed (on 15 March 2011).

1. Senior Constable Frazer’s submission that his paypoint should have been reinstated to paypoint 2.8 effective from 13 May 2011 is contrary to what is reflected in the QPS notice dated 15 March 2011 – the QPS notice dated 15 March 2011 sets out the Respondent decision maker’s findings.  It (the notice) specifies the sanction as a reduction of salary from paypoint 2.7 to paypoint 2.6 for a period of 12 months.  Notwithstanding the fact that QCAT has no jurisdiction to revisit any issues (by way of a review) in relation to the previous (unrelated) disciplinary proceedings (on 13 May 2010), the earlier sanction imposed was obviously in the Respondent decision maker’s contemplation at the relevant time.  The Respondent decision maker states in the QPS notice dated 15 March 2011:

I have also taken into consideration your length of service in both Queensland and New South Wales police and the fact that you were recently sanctioned for another unrelated incident of misconduct.  Notably, this matter occurred whilst you were still subject to the paypoint reduction imposed from the previous matter.

1. The issue of how Senior Constable Frazer’s paypoints were to be deducted (in imposing the sanction) is relevant to the merits of Senior Constable Frazer’s application (or strengths of his case) in determining whether the Tribunal should exercise its discretion to extend time (for filing the application for review).  Senior Constable Frazer’s submission that the paypoint deduction to his salary (as a result of the sanction imposed) was to be reinstated to paypoint 2.8 effective from 13 May 2011 is contrary to what is stipulated in the QPS notice dated 15 March 2011 – the notice clearly states a reduction in salary from paypoint 2.7 to paypoint 2.6 for 12 months.  Furthermore, the Respondent decision maker has considered (in the QPS notice dated 15 March 2011) the previous unrelated disciplinary proceedings – there is reference to the fact that the conduct relating to these disciplinary proceedings took place during the period of sanction relating to the previous disciplinary proceedings (on 13 May 2010).

Prejudice or disadvantage to a party to a proceeding

1. It is unlikely that the Respondent decision maker will suffer any direct prejudice as a result of the late proceedings and any application made (by Senior Constable Frazer) at the substantive hearing to adduce fresh or additional evidence.  Senior Constable Frazer has, however, failed to address the issue of the public interest – the public interest is “not served” by allowing an extension of time in the absence of a sufficient explanation for the delay.[10]

   [10]Re Hunter Valley Developments Pty Limited (1984) 3 FCR 344, see McClintock v Queensland Building Services Authority [2010] QCAT 340 and McClintock v Queensland Building Services Authority [2010] QCATA 068.

2. The purpose of disciplinary proceedings is clearly defined under s 219A of the Crime and Misconduct Act2001: to protect the public; and to uphold ethical standards within the police service; and to promote and maintain public confidence in the public sector.  The public interest is a relevant consideration in terms of maintaining public confidence in circumstances where there is a considerable delay in having the matter dealt with (proceedings to review the Respondent decision maker’s decision being filed out of time) to ensure the penalty or sanction imposed has “real effect”.[11]

   [11]See McClintock v Queensland Building Services Authority [2010] QCAT 340 and McClintock v Queensland Building Services Authority [2010] QCATA 068.

Should QCAT otherwise exercise its discretion to extend time

1. Senior Constable Frazer has also raised the issue of financial hardship due to a reduction in his salary.  The financial detriment is obviously attributed to the deduction in paypoints (from 2.7 to 2.6) – as stipulated in the QPS notice dated 15 March 2011.

2. The Tribunal has in previous proceedings involving a review of sanction by way of paypoint deduction considered the financial implications of a deduction in salary – it was determined (in those matters) that the information available (to the Tribunal) in determining “the practical effect” of paypoint deductions is unsatisfactory.[12]  This is because there is not only an immediate effect in terms of a reduction of salary but also an “overall” effect due to a loss in superannuation and the number of years (subject to the sanction period) it may take the applicant police officer to return to their initial paypoint level (of salary).

   [12]        See McKenzie v Acting Assistant Commissioner Wright [2011] QCATA 309.

1. The Respondent decision maker has not made any specific reference (in the QPS notice dated 15 March 2011) as to how Senior Constable Frazer’s paypoints are to progress following the period of sanction imposed (i.e. 12 months).  The QPS has (in its application to strike out proceedings) referred the Tribunal to the QPS Human Resource Management Manual (HRMM) which provides that the period between paypoint progressions is not less than 12 months.[13]  On that basis it would take Senior Constable Frazer two years (effective from 15 March 2011) to progress to paypoint 2.8 on the basis that the period of the sanction is 12 months.[14]  The advancement of paypoints annually is subject to Senior Constable Frazer receiving a satisfactory performance planning and assessment report.

   [13]        HRMM, s 8.1.3.7.

   [14]Section 8.1.5.1 of the HRMM provides that an authorised officer (of the QPS) may progress an officer reduced in paypoints to progress two paypoints after 12 months.

2. Senior Constable Frazer states in his submissions that he is not “seeking a review of the policy regarding paypoint progression” but rather (he seeks) a review of the whole matter.  In particular Senior Constable Frazer argues that the paypoint reduction resulting in penalty (or reduction) to his salary is excessive when considering the circumstances of the substantiated conduct (ie misconduct).

3. The Tribunal does not accept Senior Constable Frazer’s submission that the issue of financial detriment (in reducing his salary to paypoint 2.6) was not considered by the Respondent decision maker; and that on reviewing the application (at QCAT) there is any prospect that a different outcome in terms of penalty (or sanction imposed) is likely.  The Respondent decision maker has clearly considered the circumstances of the conduct and the overall effect of any sanction imposed – the QPS notice dated 15 March 2011 specifies a reduction to paypoint 2.6 for 12 months and refers to the previous disciplinary proceedings.  The Respondent decision maker also considers (in the QPS notice dated 15 March 2011) on finding that the conduct does not meet the standard of conduct the community reasonably expects of a police officer (and is therefore misconduct), that there were aggravating circumstances – Senior Constable Frazer provided “false alibis” to otherwise cover or justify his period of absence from duty.  It was also during this “period of absence” from duty that Senior Constable Frazer was otherwise responsible for (as shift supervisor) the supervision of other officers.

4. The Respondent decision maker also refers to the purpose of discipline which is relevant to Senior Constable Frazer’s submission that the sanction imposed is an “excessive penalty”.  The Respondent decision maker (in the QPS notice dated 15 March 2011) determined that the sanction was to (effectively) act as a deterrent to other police officers; and the sanction was not punitive in nature.  The Respondent decision maker states:

   When imposing this sanction I am mindful of the deterrent effect on yourself and other officers who may be contemplating similar conduct.  There was no consideration of a purely punishment based sanction being imposed.

1. Senior Constable Frazer submits that this matter “warrants examination by [the] Tribunal to ensure transparency and fairness”. The Tribunal’s review jurisdiction is conferred by s 219G of the Crime and Misconduct Act 2001 – it requires a rehearing on the evidence that was before the original decision maker (the QPS)[15] and the Tribunal is to “make its own decision on the evidence before it” and arrive at the “correct and preferable decision”.[16]  The Tribunal has, in reviewing a decision made by the QPS including sanction imposed, the same powers as the original decision maker (the QPS).[17]

   [15]        Crime and Misconduct Act 2001, s 219H(1).

   [16]QCAT Act, s 20. See Compton v Deputy Commissioner Ian Stewart Queensland Police Service [2010] QCAT 384.

   [17] QCAT Act, s 19.

2. The Tribunal (in exercising its review jurisdiction) can take an entirely different perspective to that of the Respondent decision maker and impose a different sanction in circumstances where it determines that a different sanction may be “more appropriate”.[18]

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

3. The Tribunal, in considering Senior Constable Frazer’s submission that the application (for review) should otherwise be reviewed (and leave granted to extend time) in the interests of transparency and fairness should have regard to all of the factors relevant to an exercise of discretion (to extend time) such as the merits of Senior Constable Frazer’s application or strengths of his case, length of delay and the public interest.  The Tribunal is not persuaded by Senior Constable Frazer’s submission that the application (to extend time) should otherwise be allowed in the interests of transparency and fairness; and that such a consideration is outweighed by other relevant factors – that the outcome (on review) of Senior Constable Frazer’s application would be any different, the significant delay in bringing proceedings (in the absence of an explanation for the delay); and the prejudice to the public interest.

4. The Tribunal having considered the submissions made by Senior Constable Frazer and the QPS is not satisfied that proper grounds exist to exercise its discretion to extend the time for filing the application for a review of the Respondent decision maker’s decision.  Senior Constable Frazer has failed to address the merits of his application.  If time to file the application is extended and Senior Constable Frazer’s application proceeds to a hearing it is unlikely the Tribunal (in exercising its review jurisdiction) would produce a different outcome – Senior Constable Frazer accepted the charge made against him and was informed of his right to review (at QCAT) in the QPS notice dated 15 March 2011; and the paypoint deduction (from 2.7 to 2.6 for 12 months) is clearly specified in the notice.  The Tribunal has also considered the issue of prejudice insofar as it relates to the public interest – this is also a relevant consideration in the absence of a sufficient explanation for the delay in bringing proceedings.

1. The appropriate order is that Senior Constable Frazer’s application to extend time is dismissed and the application to strike out Senior Constable Frazer’s application is granted, Senior Constable Frazer’s application for review of the Respondent’s decision being otherwise dismissed.