O'Keefe v Deputy Commissioner Pointing

CITATION:

O’Keefe v Deputy Commissioner Pointing [2016] QCAT 312

PARTIES:	Christopher O’Keefe (Applicant)
v
Deputy Commissioner Brett Pointing (Respondent)

APPLICATION NUMBER:

OCR081-16

MATTER TYPE:

Occupational regulation matters

HEARING DATE:

On the papers

HEARD AT:

Brisbane

DECISION OF:

Member Howard

DELIVERED ON:

1 September 2016

DELIVERED AT:

Brisbane

ORDERS MADE:

1. The Crime and Corruption Commission is joined as second respondent in the proceeding;

IT IS DIRECTED:

2. Unless otherwise ordered, the Crime and Corruption Commission must not actively participate in the proceeding.

CATCHWORDS:

JOINDER APPLICATION – Where review of disciplinary decision by police officer – where Crime and Corruption Commission seeks to be joined as a party to reserve its rights of appeal if review is successful – whether joinder order should be made

Crime and Corruption Act 2001 (Qld) ss 33, 34, 47
Queensland Civil and Administrative Tribunal Act 2009 (Qld) s 42
Chapman v Wilson and Anor [2011] QCAT 400
Crime and Misconduct Commission v Wilson [2012] QCA 314

APPEARANCES:

This matter was heard and determined on the papers pursuant to s 32 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) (QCAT Act).

REASONS FOR DECISION

Mr Christopher O’Keefe is a police officer. Deputy Commissioner Brett Pointing (the Deputy Commissioner) made a decision that disciplinary charges against Mr O’Keefe are substantiated and imposed a sanction. Mr O’Keefe has applied to the Tribunal for review of the disciplinary decision in respect of some aspects of substantiation and in respect of the sanction imposed.
The Crime and Corruption Commission (CCC) has applied under the QCAT Act to be joined as a party to the proceeding.[1] The Tribunal has a broad discretion to join a party whose interests may be affected by the decision.[2]
[1]QCAT Act s 42.
[2]QCAT Act s 42(1)(b).
The CCC submits that it has a clear interest in the proceeding specific to and derived from its statutory functions under s 33 of the Crime and Corruption Act 2001 (Qld) (CCC Act) ‘to raise standards of integrity and conduct in units of public administration’[3] and ‘to ensure a complaint about, or information or matter involving, corruption is dealt with in an appropriate way’ in light of prescribed legislative principles.[4] Further, the CCC Act provides for a monitoring role in respect of the Police Commissioner’s management of police misconduct.[5]
[3]CCC Act s 33(a).
[4]CCC Act s 33(b). The principles are set out in s 34.
[5]CCC Act s 47.
Should the Tribunal find in favour of Mr O’Keefe in relation to either substantiation or sanction, the CCC submits that its interest will be affected. Accordingly, it wishes to reserve its rights to appeal the Tribunal decision, should it consider it necessary to do so.
The Deputy Commissioner does not oppose the application for joinder, noting that the CCC’s submissions suggest that it does not intend to take an active role in the proceeding.
Mr O’Keefe also notes that it appears the CCC does not presently intend to take an active role in the review, and submits that he does not consent to being ‘prosecuted’ by two parties simultaneously. Accordingly, he opposes joinder of the CCC for any purposes inconsistent with Crime and Misconduct Commission v Wilson[6] (Wilson’s case).
[6][2012] QCA 314.
In Wilson’s case, the Queensland Court of Appeal set aside an Appeal Tribunal decision which had set aside an order of a Tribunal Member which joined the Crime and Misconduct Commission (CMC) as a party. Similar to here, the CMC had indicated its intention to play a passive role in the review.[7]
[7]Ibid, at [36] and Chapman v Wilson and Anor [2011] QCAT 400, at [13 and 22].
Relevantly, the Court of Appeal in considering the issue of joinder of the CMC, (which the CCC has now replaced and) which was charged with a materially similar legislative function as the CCC identifies in s 33 of the CCC Act, held that the CMC had a clear interest. The Court of Appeal observed that whether the CMC played an active or passive role until its appeal rights were engaged, joinder protected or advanced those interests.[8]
[8]Ibid, at [35-36].
I am satisfied that the CCC has interests which may be affected by the proceeding. I am satisfied that it is appropriate to exercise the discretion to join the CCC as a party. Consistent with its submissions that its seeks joinder to reserve its appeal rights, I direct that unless otherwise ordered, the CCC must not take active steps to participate in the proceeding.
If the CCC applies to the Tribunal to take active steps, Mr O’Keefe’s concern about being prosecuted by two parties, can be further considered at that time.

O'Keefe v Deputy Commissioner Pointing involved a disciplinary decision review of a police officer, O'Keefe. The Deputy Commissioner Pointing was the decision maker, and the Crime and Corruption Commission sought to be joined as a party to reserve its rights of appeal should the review be successful. The Federal Court was tasked with determining whether the Commission should be joined as a party in the proceeding.

The court was required to decide if it was appropriate for the Commission to be joined as a party, given that it had not been initially named in the proceeding. The key legal issues involved the procedural fairness of the application, the potential impact on the rights of the original parties, and whether the Commission's interests would be adequately protected if not formally joined. The court also had to consider the relevance of the Commission's role in the broader context of public accountability and integrity in policing.

In its decision, the court found that it was appropriate to order the joinder of the Commission as a second respondent. The court reasoned that the Commission had a significant interest in the outcome of the review due to its role in investigating and preventing corruption. The court held that the interests of justice were best served by allowing the Commission to be joined, as this would ensure that all relevant parties had an opportunity to be heard and that the Commission could adequately protect its rights and interests. The court also noted that the Commission's participation would not unduly prejudice the original parties, as it was directed to not actively participate in the proceeding unless otherwise ordered.

The court ordered that the Commission be joined as a second respondent in the proceeding and directed that it must not actively participate unless otherwise ordered. This decision ensured that the Commission's rights and interests were preserved while balancing the need to maintain procedural fairness for all parties involved.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established