FEDERAL COURT OF AUSTRALIA
Coutts v Close [2014] FCA 19
Citation: Coutts v Close [2014] FCA 19 Parties: BRETT COUTTS v LEANNE CLOSE, ASSISTANT COMMISSIONER OF THE AUSTRALIAN FEDERAL POLICE and COMMISSIONER OF THE AUSTRALIAN FEDERAL POLICE File number: ACD 72 of 2013 Judge: GRIFFITHS J Date of judgment: 3 February 2014 Catchwords: ADMINISTRATIVE LAW – application by police officer for judicial review of the decision to terminate his employment with the Australian Federal Police (AFP) and of conduct related to that decision – termination decision made by the first respondent as part of a multi-stage process which included the conduct of interviews, production of an investigation report and production of an adjudication report – whether any procedural unfairness in the termination decision or related conduct – whether any apprehended bias on the part of the first respondent or the investigator – whether any claim of bias on the part of the first respondent waived by applicant – whether applicant granted a fair hearing during the multi-stage decision making process including allegation that non-redacted material should have been provided – Minister for Immigration and Citizenship v Maman [2012] FCAFC 13 – whether hearing unfair because the evidence was not capable of supporting the decision – Minister for Immigration and Ethnic Affairs v Pochi (1980) 44 FLR 41 – alleged failure to follow procedures required by law – whether power to terminate employment improperly exercised – whether any relevant considerations not considered in exercise of power – whether any irrelevant matters taken into account in exercise of power – whether power exercised in bad faith – whether decision was so unreasonable that no reasonable person could have made it – Minister for Immigrationand Citizenship v Li (2013) 297 ALR 225 – whether decision was an abuse of power – whether multi-stage decision making process was otherwise conducted contrary to law
Continue reading Coutts v Close
Sign in free to access the full text
Details
- AGLC
- Coutts v Close [2014] FCA 19
- Case
- [2014] FCA 19
- Decision Date
CaseChat Overview and Summary
The matter of Coutts v Close was heard by the Federal Court of Australia, where the applicant, a former police officer employed by the Australian Federal Police (AFP), sought judicial review of the decision to terminate his employment. The applicant contended that the decision was flawed due to procedural unfairness, apprehended bias, and the failure to consider relevant factors, among other grounds. The court was required to determine whether the decision to terminate the applicant's employment was lawful, whether the process was fair, and if any relevant considerations were overlooked.
The court considered whether the decision-making process was conducted in accordance with the principles of procedural fairness, whether there was any apprehended bias or actual bias on the part of the decision-makers, and if the power to terminate employment was exercised properly. The court also examined whether any irrelevant considerations were taken into account, and if the decision was so unreasonable that no reasonable person could have made it. The court referred to relevant authorities, including Minister for Immigration and Citizenship v Maman and Minister for Immigration and Ethnic Affairs v Pochi, to assess the fairness and legality of the decision-making process.
The court found that the decision to terminate the applicant's employment was made in accordance with the relevant legislative provisions and internal policies. The court determined that there was no procedural unfairness, no apprehended bias, and no evidence of bad faith or irrelevant considerations being taken into account. The court also found that the decision was not so unreasonable that no reasonable person could have made it. The court held that the applicant had not demonstrated that the decision-making process was unlawful or unfair, and dismissed the application. The applicant was ordered to pay the respondents' costs.
In summary, the Federal Court dismissed the applicant's challenge to the decision to terminate his employment with the AFP, finding that the decision was lawful and the process was fair. The court held that the applicant had not shown that the decision-makers acted unfairly, took into account irrelevant considerations, or exercised their power improperly. The applicant's application for judicial review was therefore unsuccessful, and he was ordered to pay the respondents' costs.
The court considered whether the decision-making process was conducted in accordance with the principles of procedural fairness, whether there was any apprehended bias or actual bias on the part of the decision-makers, and if the power to terminate employment was exercised properly. The court also examined whether any irrelevant considerations were taken into account, and if the decision was so unreasonable that no reasonable person could have made it. The court referred to relevant authorities, including Minister for Immigration and Citizenship v Maman and Minister for Immigration and Ethnic Affairs v Pochi, to assess the fairness and legality of the decision-making process.
The court found that the decision to terminate the applicant's employment was made in accordance with the relevant legislative provisions and internal policies. The court determined that there was no procedural unfairness, no apprehended bias, and no evidence of bad faith or irrelevant considerations being taken into account. The court also found that the decision was not so unreasonable that no reasonable person could have made it. The court held that the applicant had not demonstrated that the decision-making process was unlawful or unfair, and dismissed the application. The applicant was ordered to pay the respondents' costs.
In summary, the Federal Court dismissed the applicant's challenge to the decision to terminate his employment with the AFP, finding that the decision was lawful and the process was fair. The court held that the applicant had not shown that the decision-makers acted unfairly, took into account irrelevant considerations, or exercised their power improperly. The applicant's application for judicial review was therefore unsuccessful, and he was ordered to pay the respondents' costs.
Orders
Orders of the court
1. The third further amended originating application be dismissed.
2. The applicant is to pay the respondents’ costs.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
Background
Background to the litigation
In broad terms, the applicant complains that the decision terminating his employment was made in breach of the rules of procedural fairness (he contends that he was not given a fair hearing and that there was also apprehended bias), breach of other mandatory relevant procedures, failed to take into account relevant considerations, took into account irrelevant considerations, involved the exercise of power in bad faith and was so unreasonable that no reasonable person could have so exercised the power. The applicant also challenges the decision on the basis that it constitutes an abuse of power and is otherwise contrary to law. The applicant further claims that certain conduct leading up to the making of the decision was unlawful and, in support, he relies on some but not all of the heads of review directed to the ultimate decision. As will emerge below, these various heads of review were raised in respect of multiple aspects of the decision-making process, which created an impression that the applicant adopted what could fairly be described as a scattergun attack in calling into question the validity of virtually every aspect of this process. Such an approach carries a grave risk that the challenge is seen to be an impermissible attack on the merits and beyond the legitimate province of judicial review.Broad outline of the background facts Prior to the termination of his employment, the applicant was employed as a sergeant (band level 6.3) with the AFP. In the early hours of 26 May 2012, the applicant, together with many other AFP officers, were present outside a nightclub in Manuka called “The Cabinet”. I will return below to deal at greater length with the incident which occurred there which gave rise to the complaint that the applicant had used excessive force. At this introductory level, it is sufficient to describe the incident in the following terms. An allegation was made that a male person (whom I will refer to as “Adam”) had indecently assaulted a woman inside the nightclub. Adam was heavily intoxicated and may also have been affected by drugs. Adam was ejected from the nightclub and was then detained by police on the footpath outside and questioned. The victim ultimately told police that she did not want to press charges. The applicant says that he apprehended that Adam was potentially violent. His concerns were based on such matters as Adam’s level of intoxication, physical stature and overall demeanour, which he perceived to be threatening, particularly towards the applicant himself. After Adam had been detained for several minutes and spoken to by several policemen, Constable Robert Raue issued him with a formal move on direction and indicated the direction which he should take to remove himself from the area. As Adam moved away, he walked close to the applicant, was glaring at him and flinched. The applicant claims that he became concerned that he was about to be assaulted by Adam and he used Oleoresin Capsicum Spray (capsicum spray) from a distance of approximately 30 cms to the right side of Adam’s face, also accidentally spraying a female member of the public who was nearby. The applicant then held Adam’s head in a headlock before taking him into custody and, with the assistance of other police officers, placed him in the back of a caged police vehicle. These events outside the nightclub were captured on CCTV, about which I will say more shortly.
Evidence
Evidence Before The Court
Clause 15 deals with adjudication of category 3 conduct issues. It refers to CO1 as delegating the authority to ensure appropriate action is taken in relation to category 3 conduct issues. It further provides that MPRS may allocate investigation reports to adjudication panel members to adjudicate. It also provides as follows:All Adjudication Panel members must determine whether the matter is established or not established based on consideration of all relevant material collated as part of the investigation…Summary of evidence in the judicial review proceeding The applicant swore an affidavit in support of his judicial review application and was cross-examined. He described his employment with the AFP after he joined in November 2001. He said that in March 2003, a complaint against him for use of excessive force (category 3 complaint) was established which led to him being counselled. The incident occurred when he was arresting a member of the public for being intoxicated and displaying disorderly behaviour in a public place and the applicant used some force to take the person into custody. The applicant was transferred to the Territory Investigations Group (TIG) in November 2003. He gave evidence of an incident which occurred in 2004 in which it was alleged that the applicant had falsely sworn an affidavit in support of an application for a search warrant by stating that the information had been received from a registered informant when in fact the informant was unregistered. The applicant said that around that time the first respondent was involved in a meeting with him and others regarding the allegation. He said that he and the first respondent had a loud and assertive conversation in which he disagreed with what she said. He says that the first respondent appeared to be upset with him because he challenged her. In late 2004 or early 2005, the first respondent was transferred to TIG and became the applicant’s superintendent. He gave evidence of a separate incident which took place in July 2005 in which he says, in the course of a conversation he was having with another police officer, he made a joke in a manner which could be overheard by a receptionist and he wanted to see if she reported him to the first respondent. He also gave evidence of another incident in May 2006 in which he claims that another AFP officer told him that the first respondent had said that he “can get out of TIG”. This evidence was disallowed as hearsay, but the incident was still pressed by the applicant. In July 2008 the applicant was appointed acting sergeant within ACT police operations and was formally promoted to sergeant on 18 December 2008. In June 2009 he was transferred to the City Beat Team within the City Police Station. That team specialised in dealing with alcohol related crime in the city precinct. The applicant was appointed team leader and managed a team of four other AFP officers. He says that there were no complaints against himself or any member of the team during the first six months of their work.
Decision
Reasons for decision
By letter dated 18 June 2013, the first respondent notified the applicant of her decision to terminate his employment effective 15 July 2013 pursuant to s 28 of the AFP Act (the decision). In taking that action, the first respondent was acting in accordance with a delegation set out in an attachment to the Commissioner’s Order on Administration (CO1). The Court was informed that, at the time of the hearing of the proceeding, as a result of an undertaking given by the second respondent, no action had been taken to implement the decision and he remained suspended on full pay.Summary of relevant provisions of the AFP Act, regulations and other instrumentsAFP Act The key relevant provisions of the AFP Act may be summarised as follows. The Commissioner is empowered by s 24 to engage persons as AFP employees. The Commissioner is also empowered by s 28 to terminate the employment of an AFP employee. Part V deals with national standards and AFP conduct and practice issues. The Commissioner is empowered by s 40RC to issue orders under s 38 determining the professional standards to be complied with by AFP appointees. It was under this provision that various relevant instruments or orders were issued, including CO1. Subdivision C of Division 1 of Part V imposes an obligation on the Commissioner to establish a unit within the AFP to undertake national standards functions. As noted above, the unit which has been established for this purpose is known as the PRSIU. Under s 40RF the Commissioner may assign a member of the AFP to that unit. The AFP relevantly defines “an AFP conduct issue” in s 40RH as an issue of whether an AFP appointee has engaged in conduct that contravenes the AFP professional standards. There are 4 categories of AFP conduct issues as set out in s 40RK: in ascending order of seriousness they are category 1, category 2, category 3 and conduct giving rise to a corruption issue. Notably, category 3 is the penultimate category in terms of seriousness. Sub-section 40RL(3) defines a category 3 conduct issue as “an issue of whether an AFP appointee has engaged in category 3 conduct”. The Adjudication Report found that the complaint against the applicant, which involved category 3 conduct, was established. Division 2 of Part V deals with how an AFP conduct issue may be raised. Under s 40SA any person may give information to the Commissioner or to AFP appointees which raises an AFP conduct issue. The Commissioner has a discretion under s 40SD as to whether or not an AFP conduct issue is to be dealt with under Part V of the AFP Act. The Commissioner also has a discretion under s 40TA to issue orders under s 38 in relation to how AFP conduct issues are to be dealt with by AFP appointees under Part V. Section 40TD deals with some of the different types of remedial action which can be taken in relation to an AFP appointee to remedy unsatisfactory performance. Section 40TE deals with termination action and defines such action in the case of an AFP employee as the Commissioner terminating the AFP employee’s employment under s 28. Section 40TF confers a discretion on the Commissioner to take no further action in relation to an AFP conduct issue if the Commissioner is satisfied of one of the matters there specified.
Ratio Decidendi
Legal Principle Established
In the third further amended originating application and reply, the applicant contends that FA Deller and the adjudicator were bound to take into account the following relevant considerations and failed to do so:(a)Supt Timson’s expert opinion on use of force;(b)the totality of the relevant evidence of all the police witnesses to the incident; (c)the totality of the relevant evidence provided by Supt Timson;(d)an accurate summary of Supt Timson’s evidence;(e)an accurately prepared “salient points” of Supt Timson’s evidence;(f)an accurate investigation report because FA Deller failed accurately to summarise or prepare “salient points” in respect of Supt Timson’s evidence; and(g)an accurate investigation report because FA Deller failed to prepare accurate summaries and “salient points” for any of the other witnesses who participated in directed interviews.(b) Taking into account irrelevant considerations The applicant alleges that the following irrelevant considerations were taken into account in the course of the investigation, the adjudication and the making of the termination decision:(a)the role of Alpha 8;(b)the applicant’s inability to understand the meaning of the use of move on directions and their treatment by the courts;(c)the applicant’s failure to support an unknown person and the alcohol targeting team as they worked to investigate the assault allegations;(d)the applicant’s failure to keep himself sufficiently apprised of key developments, in particular the alleged victim not wishing to make a formal complaint;(e)the assessment as to the proper use of capsicum spray was an analysis of two competing versions, namely that of the applicant and that of the complainant and the other police present;(f)the adjudication had regard to the applicant’s prior conduct in considering whether the complaint had been established;(g)the adjudication made recommendations beyond the scope of its inquiry; and(h)the alleged impropriety of the first respondent relying upon Mr Whowell’s findings in circumstances where she did make any independent findings as to whether the complaint was established.(c) Bad faith In support of his claim of bad faith, the applicant says that the first respondent should have disqualified herself from making the termination decision or, alternatively, have been disqualified by the second respondent. He further alleges that the first respondent was not honest about her prior dealings and incidents involving the applicant. He claims that the first respondent must have known of those prior dealings and incidents because she was involved in them, but even if she had forgotten them, they were brought to her attention and she should not have continued as decision-maker. He contends that the first respondent’s “failure to ameliorate or avoid any issue of bias was not consistent with a statutory duty and constituted the kind of recklessness that might be characterised as being not in good faith”, citing Applicant WAFT/2002 v Refugee Review Tribunal (2003) 145 FCR 351. Finally, in his reply, the applicant also relied upon the matters described in [80(f)] as constituting bad faith.(d) Unreasonableness