Officer Carey v Assistant Commissioner Mickelson - [2019] QCAT 109

QUEENSLAND CIVIL AND
ADMINISTRATIVE TRIBUNAL

CITATION:

Officer Carey v Assistant Commissioner Mickelson [2019] QCAT 109

PARTIES:

CHRISTOPHER CAREY
(applicant)

v

ASSISTANT COMMISSIONER MARTY MICKELSON

(respondent)

APPLICATION NO/S:

OCR247-18

MATTER TYPE:

Occupational regulation matters

DELIVERED ON:

29 March 2019

HEARING DATE:

12 February 2019

HEARD AT:

Brisbane

DECISION OF:

Senior Member Howard

ORDERS:

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

2. Unless otherwise directed, the Crime and Corruption Commission must not take any step in the proceeding.

CATCHWORDS:

PROCEDURE – CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS – JOINDER OF CAUSES OF ACTION AND OF PARTIES – PARTIES – GENERALLY – where application to be joined as party to police disciplinary review proceeding – where applicant does not oppose joinder – where there is question of whether Crime and Corruption Commission should be joined as second respondent to the proceedings – – whether the Tribunal may make directions about conduct of Crime and Corruption Commission if joined as second respondent

Crime and Corruption Act 2001 (Qld) s 47, s 48

Crime and Misconduct Act 2001 (Qld) s 219G(3)

Queensland Civil and Administrative Tribunal Act 2009 (Qld) s 3, s 4, s 28(1), s 28 (3)(a), s 42(1)(b), s 62(1)

Queensland Civil and Administrative Tribunal Rules 2009 (Qld)

Chapman v Wilson & Anor [2011] QCAT 400
Crime and Misconduct Commission v Wilson & Anor [2012] QCA 314
O’Brien v Assistant Commissioner Paul Taylor & Anor [2018] QCAT 373

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

APPEARANCES & REPRESENTATION:

Applicant:

C Gnech, Solicitor of the Queensland Police Service Union Legal Group

Respondent:

Crime & Corruption Commission:

M J Robinson of the Queensland Police Service Legal Division

J L Gorry, Principal Legal Officer of the Crime and Corruption Commission

REASONS FOR DECISION

This proceeding was initiated by Christopher Carey, a sergeant in the Queensland Police Service (‘QPS’) who was disciplined for misconduct by Assistant Commissioner Mickelson. Mr Carey reviews only the sanction imposed upon him by the Assistant Commissioner (that is, he does not review substantiation of the misconduct charges against him). The Crime and Corruption Commission (‘CCC’) applied to be joined as a party to the disciplinary review proceeding.
Although Mr Carey does not oppose the application for joinder, he seeks a direction to the effect that the CCC not take active steps in the proceeding without the Tribunal’s leave for it to actively participate. Primarily, Mr Carey relies upon the decision of the Tribunal (as constituted by the Hon. former Justice James Thomas) in Chapman v Wilson & Anor (‘Wilson’),[1] (the Tribunal’s decision in Wilson) and the subsequent Court of Appeal decision upholding it, in Crime and Misconduct Commission v Wilson & Anor,[2] (the Court of Appeals’s decision in Wilson). The CCC relies upon the Tribunal’s recent decision in O’Brien v Assistant Commissioner Paul Taylor & Anor (‘O’Brien’s case’).[3]
[1][2011] QCAT 400.
[2][2012] QCA 314.
[3][2018] QCAT 373.

The CCC’s…

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: [2019] QCAT 109
Decision Date: 29 March 2019

CaseChat Overview and Summary

In the matter of Officer Carey v Assistant Commissioner Mickelson, the court was presented with a procedural issue regarding the joinder of parties in a police disciplinary review proceeding. The primary applicant, Officer Carey, had initiated disciplinary review proceedings against the Assistant Commissioner Mickelson. The applicant did not oppose the joinder of another party to the proceedings. The central question before the court was whether the Crime and Corruption Commission should be included as a second respondent in the proceeding and if the Tribunal had the authority to issue directives regarding the conduct of the Crime and Corruption Commission if it were to be joined.

The court considered the relevant statutory provisions and case law to determine the appropriateness of the Crime and Corruption Commission's inclusion as a second respondent. The court also examined whether it had the power to impose conditions on the conduct of the Crime and Corruption Commission if it were to be joined. The court concluded that the Crime and Corruption Commission should indeed be joined as a second respondent, as its role and potential involvement in the disciplinary proceedings warranted its inclusion. Furthermore, the court found that it had the authority to direct the Crime and Corruption Commission's conduct in the proceedings to ensure fairness and proper procedure.

Accordingly, the court made an order that the Crime and Corruption Commission be joined as the second respondent in the disciplinary review proceeding. The court also directed that, unless otherwise specified, the Crime and Corruption Commission must not take any action in the proceeding. This decision ensures that all relevant parties are included in the disciplinary review process while maintaining procedural fairness and integrity.

Orders

Orders of the court

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

2. Unless otherwise directed, the Crime and Corruption Commission must not take any step in the proceeding.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

CITATION:	Officer Carey v Assistant Commissioner Mickelson [2019] QCAT 109
PARTIES:	CHRISTOPHER CAREY (applicant)
v
ASSISTANT COMMISSIONER MARTY MICKELSON (respondent)
APPLICATION NO/S:	OCR247-18
MATTER TYPE:	Occupational regulation matters
DELIVERED ON:	29 March 2019
HEARING DATE:	12 February 2019
HEARD AT:	Brisbane
DECISION OF:	Senior Member Howard
ORDERS:	1. The Crime and Corruption Commission are joined as second respondent in the proceeding; and 2. Unless otherwise directed, the Crime and Corruption Commission must not take any step in the proceeding.
CATCHWORDS:	PROCEDURE – CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS – JOINDER OF CAUSES OF ACTION AND OF PARTIES – PARTIES – GENERALLY – where application to be joined as party to police disciplinary review proceeding – where applicant does not oppose joinder – where there is question of whether Crime and Corruption Commission should be joined as second respondent to the proceedings – – whether the Tribunal may make directions about conduct of Crime and Corruption Commission if joined as second respondent Crime and Corruption Act 2001 (Qld) s 47, s 48 Crime and Misconduct Act 2001 (Qld) s 219G(3) Queensland Civil and Administrative Tribunal Act 2009 (Qld) s 3, s 4, s 28(1), s 28 (3)(a), s 42(1)(b), s 62(1) Queensland Civil and Administrative Tribunal Rules 2009 (Qld) Chapman v Wilson & Anor [2011] QCAT 400 Crime and Misconduct Commission v Wilson & Anor [2012] QCA 314 O’Brien v Assistant Commissioner Paul Taylor & Anor [2018] QCAT 373 O’Keefe v Deputy Commissioner Pointing [2016] QCAT 312
APPEARANCES & REPRESENTATION:
Applicant:	C Gnech, Solicitor of the Queensland Police Service Union Legal Group
Respondent: Crime & Corruption Commission:	M J Robinson of the Queensland Police Service Legal Division J L Gorry, Principal Legal Officer of the Crime and Corruption Commission