Falconer v Commissioner of Police

[2022] WASCA 157

JURISDICTION     :   SUPREME COURT OF WESTERN AUSTRALIA

TITLE OF COURT  :   THE COURT OF APPEAL (WA)

CITATION:   FALCONER -v- COMMISSIONER OF POLICE [2022] WASCA 157

CORAM:   MURPHY JA

MITCHELL JA

HEARD:   28 NOVEMBER 2022

DELIVERED          :   28 NOVEMBER 2022

PUBLISHED           :   29 NOVEMBER 2022

FILE NO/S:   CACV 85 of 2022

BETWEEN:   BEN WILLIAM FALCONER

Appellant

AND

COMMISSIONER OF POLICE

Respondent

ON APPEAL FROM:

Jurisdiction              :   SUPREME COURT OF WESTERN AUSTRALIA

Coram:   ALLANSON J

Citation: FALCONER -v- COMMISSIONER OF POLICE [No 4] [2022] WASC 271

File Number            :   CIV 2308 of 2021

Catchwords:

Appeal - Practice and procedure - Where police constable charged with offence against the discipline of the Police Force by disobeying a lawful order to get vaccinated against COVID-19 - Where constable unsuccessfully sought declaratory relief in the primary proceedings that the direction was not authorised by the Police Act 1892 (WA) or regulations made under that Act - Whether an interlocutory injunction should be granted restraining the Commissioner of Police from dismissing the appellant from the Police Force in reliance upon the direction until the determination of the appeal

Legislation:

Police Act 1892 (WA), s 5, s 7, s 23, s 33B, s 33E, s 33F, s 33H, s 33I
Police Force Regulations 1979 (WA), reg 603, reg 1601

Result:

Interlocutory injunction granted

Category:    B

Representation:

Counsel:

Appellant	:	B J Tomasi
Respondent	:	K M Pettit SC & J F Bennett

Solicitors:

Appellant	:	Lawfield Legal Practice
Respondent	:	State Solicitor's Office

Case(s) referred to in decision(s):

Eastland Technology Australia Pty Ltd v Whisson [2003] WASCA 307; (2003) 28 WAR 308

Mercanti v Mercanti [2015] WASCA 206

REASONS OF THE COURT:

1. At the conclusion of the hearing of the appellant's application for an interlocutory injunction, we granted the application, for reasons to be published.  These are our reasons for granting an interlocutory injunction pending the determination of this appeal.

Background

1. On 24 November 2021, the Commissioner of Police issued a direction to 'all Western Australia Police Force employees' requiring them to be vaccinated against COVID-19 and provide evidence of vaccination before 1 December 2021 (Direction).[1]

   [1] Appellant's affidavit sworn in the appeal on 23 November 2022, annexure BWF-2.

2. Regulation 603 of the Police Force Regulations 1979 (WA) provides that:

   A member shall not disobey a lawful order and shall not, without good and sufficient cause, fail to carry out a lawful order.

3. Regulation 1601 of the Police Force Regulations provides:

   A member who fails to comply with or who contravenes any of the provisions of these regulations commits an offence against the discipline of the Force.

4. The appellant is a member of the Western Australia Police Force.  On 1 September 2022, he was charged that, on 1 December 2021, he disobeyed a lawful order and, without good and sufficient cause, failed to carry out that lawful order, by not complying with the Direction.[2]  This charge is the subject of disciplinary proceedings.

   [2] Appellant's affidavit sworn in the appeal on 23 November 2022, annexure BWF-4.

5. There was no issue in the primary proceedings, or on appeal, as to the fact that the Commissioner issued the Direction or that the appellant did not comply with the direction in that he did not get vaccinated by 1 December 2021.  In the primary proceedings, the appellant deposed:[3]

   I have carefully considered the arguments for and against being administered the [COVID-19] vaccination.  Having done so, I have decided that I do not at this time want to be administered with the vaccine.  I would generally describe myself as 'pro-choice' when it comes to vaccination and indeed I have had both childhood and adult vaccinations.  I cannot in good conscience agree to be vaccinated, particularly in circumstances where it is being mandated that I do so.

   [3] Appellant's affidavit sworn in the primary proceedings on 15 December 2021, par 8.

6. In the primary proceedings, which were concluded prior to the commencement of the disciplinary proceedings, the appellant sought a declaration that the Direction was invalid and other consequential relief.  The grounds on which that declaration was sought included that the Direction was not within the scope of authority conferred on the Commissioner by the Police Act 1892 (WA) or regulations made under that Act (ground 3(e)).

7. On 23 August 2022, the primary judge dismissed the appellant's application for declaratory relief and discharged an interlocutory injunction, which had been in place pending the determination of the primary proceedings.  The current appeal is against the order dismissing the application.

8. It is common ground between the parties that, as a senior constable, the appellant is a 'member who is not an officer' for the purposes of s 23(5) of the Police Act. Section 7(1) of the Police Act authorises the appointment of 'non-commissioned officers and constables of different grades'.  It is common ground that a constable is not a non-commissioned officer for these purposes.

9. On that basis, the disciplinary process under the Police Act in this case is as follows:

   1.An officer appointed by the Commissioner for the purpose may examine on oath the appellant upon the charged offence against the discipline of the Police Force (s 23(1)).  Deputy Commissioner Allan Adams has been appointed for this purpose.[4]  Deputy Commissioner Adams proposed to undertake the examination of the appellant upon the charged offence against the discipline of the Police Force on 29 November 2022 (the day after the hearing of the current application).

   [4] Affidavit of Peter Michael Foley sworn 25 November 2022, par 12.

   2.After conducting the examination, Deputy Commissioner Adams may determine, as a result of the examination, that the appellant has committed the charged offence against the discipline of the Police Force.  If Deputy Commissioner Adams makes that determination, he shall record it in writing (s 23(4)).

   3.If Deputy Commissioner Adams determines that the appellant has committed the charged offence against the discipline of the Police Force, he may, by order in writing, impose one or more of the following punishments on the appellant under s 23(4):

   (a)a reprimand;

   (b)a fine of not more than 3% of the annual base rate of pay of the member …

   (c)demotion;

   (d)reduction in salary to a specified rate within the limits of salary fixed in relation to the office held by him;

   (e)suspension from duty;

   (f)discharge or dismissal from the Force[.]

   4.Any order made by Deputy Commissioner Adams against the appellant under s 23(4)(c) - s 23(4)(f) shall not have effect unless or until it is confirmed by the Commissioner (s 23(5)(a)).

   5.If the appellant were punished for the charged offence against the discipline of the Police Force other than by reprimand or reduction in salary, he could appeal against the punishment, and the decision or finding on which the punishment was based, under s 33E of the Police Act.  The appeal may be commenced within 14 days 'from the date the punishment, decision or finding is given' (s 33F(1)).  The appeal would be to the Police Appeal Board, which is constituted by a magistrate, a person appointed by the Commissioner and a member of the Police Force elected by the members of the Police Force (s 33B).

   6.If the appellant appeals against the punishment, decision or finding, the Police Appeal Board is required to hear the appeal within 30 days from the date on which the notice of appeal is lodged with the secretary of the Board (s 33F(1)).  The punishment, decision or finding appealed against is rescinded by force of the Act if the hearing of the appeal is not commenced within that 30‑day period.  However, if the hearing of the appeal is commenced within 30 days, the Board may allow any adjournment as it thinks fit (s 33F(3)).

   7.Upon an appeal, the Police Appeal Board may confirm, modify or reverse any decision, finding or punishment appealed against or make such other order thereon which the Board deems just.  The decision of the Board is final (s 33H(1A)).  A certified copy of the Board's decision is to be forwarded to the Commissioner, who shall give effect to the decision (s 33I).

10. The above process also applies to disciplinary proceedings against an officer, save that an order imposed under s 23(4)(c) - s 23(4)(f) does not take effect until it is confirmed by the Governor (s 23(5)(b)). Such an order is not to be submitted to the Governor for confirmation until the appeal period has elapsed without an appeal being instituted, or any appeal that is instituted has been determined by the Police Appeal Board (s 23(6)). There is no express prohibition against the Commissioner confirming an order against a member who is not an officer prior to the determination of an appeal to the Board, although the Commissioner would need to give effect to any order made by the Board to reinstate a dismissed member.

11. As things stand, a finding by Deputy Commissioner Adams that the appellant committed the charged offence against the discipline of the Police Force would appear inevitable. There is no contest that the Direction was given. The primary judge's determination, in effect, that the Direction was a lawful order binds the Commissioner and the appellant unless and until the orders made in the primary proceedings are set aside. As noted at [6] above, the appellant's own evidence is that he did not comply with the Direction. It may be difficult to contend that his reasons for not doing so constitute 'good and sufficient cause' for the purposes of reg 603 of the Police Force Regulations, if the Direction is a 'lawful order' within the meaning of reg 603 of the Police Force Regulations. 

12. It was common ground at the hearing of the application that there was at least a realistic prospect that Deputy Commissioner Adams would determine that the appellant should be dismissed from the Police Force if the charged offence against the discipline of the Police Force was established.

The appeal to this court

1. On 13 September 2022, the appellant appealed against the order dismissing the primary proceedings. An appellant's case filed on 4 November 2022 includes the ground of appeal that the primary judge erred in construing s 5 of the Police Act as conferring on the Commissioner a power to interfere with a right to bodily integrity of members of the Police Force (ground 2).

2. Ground 2 is expressed to relate to the following finding by the primary judge:[5]

   I am satisfied that the right to bodily integrity is curtailed, by necessary implication, where the effectiveness of the force is based on obedience to command, and where the nature of the office requires members to carry out duties which may expose them to harm.  In New South Wales v Fahy ([2007] HCA 20; (2007) 232 CLR 486 [27]), Gummow and Hayne JJ commented, 'Police officers are required to undertake tasks of a kind that few, if any, commercial employers could ask of their employees'. Could an officer required to apprehend a potentially violent offender; or to interact closely with members of the public who have, or are suspected to have, an infectious disease such as COVID‑19, say that an order to do so interferes with their bodily integrity. Whether a member might have reasonable cause for disobeying or failing to carry out a particular lawful order is a matter to be dealt with under s 23 and pt IIA of the Act. But the infringement of a common law right which is inconsistent with membership of a disciplined force is not, in itself, a sufficient reason to declare the order unlawful.

   [5] Primary decision [38].

3. On 23 November 2022, the appellant applied for an injunction restraining the Commissioner from dismissing the appellant from the Western Australia Police Force and staying the hearing of the disciplinary charge against the appellant pending the outcome of the appeal.  The appellant has also filed an undertaking in the usual terms dated 23 November 2022.

4. In conferral prior to the making of the injunction application, the appellant sought an undertaking from the Commissioner that, if the appellant was successful in the appeal and obtained orders in any way modifying or invalidating the Direction, the Commissioner would immediately reinstate the appellant to his same rank, status of seniority, entitlements and pay all monies the appellant that would have accrued had the appellant remained in employment until the date of the judgment.  The Commissioner declined to give this undertaking, although he offered to undertake not to object to the appellant's standing to bring the appeal on the basis of a potential dismissal.[6]  Subsequently, the Commissioner also declined to give an undertaking that, if the appellant succeeded, the Commissioner would support the appellant's submission to the Police Appeal Board for reinstatement and back payment of wages and entitlements.[7]

   [6] Appellant's affidavit sworn in the appeal on 23 November 2022, annexure BWF‑5.

   [7] Affidavit of Caleb Jonathon Simmons sworn 28 November 2022, annexure CJS‑1.

General principles

1. The principles on which the court exercises its discretion to grant or refuse an injunction, pending the determination of an appeal, are analogous to those relevant to the grant of a stay.[8]  The principles governing the grant of a stay were summarised in Eastland Technology Australia Pty Ltd v Whisson in the following terms:[9]

   •The successful litigant at first instance will ordinarily be entitled to enforce the judgment pending the determination of any appeal.

   •It is for the applicant for a stay to move the court to a favourable exercise of its discretion.

   •It will not do so unless special circumstances are shown justifying the departure from the ordinary rule.

   •The central issue will be whether the grant of a stay is perceived to be necessary to preserve the subject matter or the integrity of the litigation, or where refusal of a stay could create practical difficulties in respect of the relief which may be granted on appeal.  It is often put shortly that it will first and foremost be necessary to establish that without the grant of a stay, the right of appeal, whether upon the grant of leave or special leave or not, will be rendered nugatory. 

   •If that can be demonstrated, the stay will generally still be refused unless it can be established that the appeal process, whether upon the grant of leave or special leave or not, has ultimately reasonable prospects of success so as to result in the grant of relief to the appellant.

   •If that hurdle can be overcome, the stay may still be refused where it appears that the balance of convenience does not lie in favour of the applicant; where, for example, the grant of a stay will occasion hardship to the respondent which may not be alleviated by the terms upon which the stay may be granted.

   [8] Mercanti v Mercanti [2015] WASCA 206 [16].

   [9] Eastland Technology Australia Pty Ltd v Whisson [2003] WASCA 307; (2003) 28 WAR 308 [9].

Whether the appeal would be rendered nugatory

1. In our view, the current appeal would be rendered nugatory if the appellant were to be dismissed from the Police Force prior to the determination of the appeal, at least in the sense that it would create practical difficulties in respect of the relief which may be granted on appeal.  It is not clear whether the court would have power to order the appellant's reinstatement, and issues could arise as to the appellant's entitlements, continuity of service and seniority if he were dismissed and then reinstated as a member of the Police Force.

2. Senior counsel for the Commissioner submits that the only relief this court could grant if the appeal were to be allowed would be a declaration that the Direction is invalid.  He contends that the dismissal of the appellant from the Police Force prior to the determination of the appeal would not prevent the court from making the declaration.  However, such a declaration could have no utility if the appellant had already been dismissed from the Police Force for failure to comply with the Direction and if (as senior counsel contends) the court has no power to order the appellant's reinstatement if the appeal is allowed.  On that basis, the grant of an interlocutory injunction preventing the dismissal of the appellant from the Police Force is necessary to preserve the integrity of the appeal.

3. It is unnecessary for us to decide the scope of consequential relief which could be granted if the appeal were to be allowed.  Given the Commissioner's position as to this court's powers if the appeal were to be allowed, we are satisfied that there would at least be practical difficulties in respect of the relief that may be granted on appeal if the appellant were dismissed from the Police Force prior to the determination of the appeal.

Whether the appeal has reasonable prospects of succeeding

1. We are satisfied that the appeal has reasonable prospects of succeeding in the relevant sense (which is not to say that it will necessarily succeed). We would reach that conclusion by reference to ground 2 (referred to at [14] above).

2. There may be some issues as to how the ground is expressed. The ground appears to be premised on a finding by the primary judge that s 5 of the Police Act is the source of the Commissioner's power to give the Direction.  It is not clear to us that the judge made that finding. 

3. It might also be contended that the proposition that the Commissioner cannot make an order which interferes with the right to bodily integrity is too broadly stated.  Given the inherent nature of police work, it may be difficult to argue that a police officer cannot be ordered to do anything that places him or her at risk of physical harm. 

4. However, it is arguable that the Police Act, and regulations made under that Act, do not authorise an order requiring a member of the Police Force to undertake a medical procedure to which that officer does not consent.  At least that narrower question appears to be a question which is properly one for consideration by this court.  The outcome of that consideration cannot be predicted with certainty at this preliminary stage.

Balance of convenience

1. In our view, the balance of convenience favours an order preventing the appellant's dismissal and the examination of the appellant on the charged offence against the discipline of the Police Force prior to the determination of this appeal.

2. The prejudice to the appellant if he is dismissed is obvious, and, as noted above, there may be difficulty in reinstating him to his former position if the appeal is allowed after he has been dismissed.  There may also be reputational damage if the appellant is dismissed, which cannot be fully remedied by orders made on appeal.

3. The Commissioner proposes an alternative course if an injunction were to be refused and Deputy Commissioner Adams determined that the appellant should be dismissed.  That would involve the appellant appealing against the order dismissing him to the Police Appeal Board and the parties agreeing to an adjournment of the hearing of the appeal to the Board pending the determination of the appeal to this court.[10]  This proposal contemplates that the Commissioner would confirm the decision to dismiss the appellant prior to the determination of the appeal to the Police Appeal Board.

   [10] Affidavit of Caleb Jonathon Simmons sworn 28 November 2022, annexure CJS‑2.

4. That approach is not without its difficulties. It relies on the Police Appeal Board (an independent statutory tribunal) exercising its functions in a certain way both before and after the determination of this appeal. There would be little to gain from the alternative proposed by the Commissioner unless the Commissioner did proceed to dismiss the appellant before either the appeal to the Board or the appeal to this court were determined. The Commissioner's proposal also does not address the position if some punishment other than dismissal were imposed. At the hearing of the application, there was some uncertainty expressed as to the effect of an order of the Board reinstating the appellant on matters such as the appellant's seniority, continuity of service and entitlement to backpay. That uncertainty is reflected in the Commissioner's refusal to give the undertakings sought by the appellant noted at [17] above.

1. The potential prejudice to the Commissioner if an injunction is granted is that the appellant, who has not been on active duty since December 2021, will still be paid until the appeal is determined, without performing duties as a police officer. This is so even if the outcome of the disciplinary process will be his dismissal or suspension without pay. That potential financial loss to the State is to be considered in the context of the appellant's undertaking as to damages. Counsel for the appellant confirmed that, subject to the matter referred to at [31] below, it would prima facie be open to this court to require the appellant to reimburse the State for salary paid to him between the grant of an injunction and the determination of the appeal, in the event that the appeal were dismissed and the disciplinary process were ultimately to lead to the appellant's dismissal from the Police Force.

2. Further, if the appellant continues to be paid from this point in time while not performing his duties, that would be a consequence of the Commissioner's decision to instruct the appellant to remain off-duty while the disciplinary process is underway. 

3. In any event, the financial prejudice to the State in making payments to the appellant if an injunction is granted and the appeal to this court is ultimately dismissed is evenly balanced by the prejudice to the appellant in not receiving a salary if an injunction is refused and the appeal to this court is ultimately allowed.

Disposition

1. For the above reasons, at the hearing of the application we were satisfied that the appellant's reasonably arguable appeal may be rendered nugatory if an injunction were not granted, and that the balance of convenience favoured the grant of injunctive relief.  We therefore made orders in the following terms:

   UPON the undertaking of the appellant to pay to any party restrained or affected by the restraints imposed by this interlocutory injunction, or of any interim continuation thereof, such compensation as the court may in its discretion consider in the circumstances to be just, such compensation to be assessed by the court or in accordance with such directions as the court may make and to be paid in such manner as the court may direct, IT IS ORDERED THAT:

   1.The respondent is restrained from dismissing the appellant from the Western Australia Police Force in reliance on the Direction issued by the respondent on 24 November 2021, including conducting an examination under s 23 of the Police Act 1892 (WA) in relation to disciplinary charge no 88/2022 against the appellant, until the determination of this appeal or further order.

   2.The respondent pay the appellant's costs of the application to be assessed if not agreed.

I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.

EM

Associate to the Honourable Justice Mitchell

29 NOVEMBER 2022