Falconer v Commissioner of Police

Ben William Falconer, a member of the Western Australia Police Force, appealed against the dismissal of his application for a declaration that a direction requiring all Western Australia Police Force employees to be vaccinated against COVID-19 was invalid. The appeal was heard by the Court of Appeal of the Supreme Court of Western Australia. The primary judge had ruled that the direction was a lawful order under the Police Act 1892 (WA) and regulations made under that Act, and dismissed the appellant's application for declaratory relief. The appeal focused on the validity of the direction and the commissioner's power to mandate vaccinations.

The court was required to determine whether an interlocutory injunction should be granted to restrain the Commissioner from dismissing the appellant from the Police Force in reliance upon the direction until the determination of the appeal. The court also needed to decide whether the appeal had reasonable prospects of success and whether the balance of convenience favoured the grant of injunctive relief.

The Court of Appeal found that the appeal would be rendered nugatory if the appellant were dismissed from the Police Force before the appeal was determined. The court reasoned that if the appellant were dismissed and then reinstated, issues could arise concerning his entitlements, continuity of service, and seniority. The court also found that the appeal had reasonable prospects of succeeding, as it was arguable that the Police Act and regulations made under that Act did not authorise an order requiring a member of the Police Force to undertake a medical procedure to which that officer did not consent. The balance of convenience favoured the grant of injunctive relief, as the prejudice to the appellant if he were dismissed was significant, and there might be difficulties in reinstating him if the appeal were allowed after his dismissal.

For these reasons, the Court of Appeal granted the interlocutory injunction, restraining the Commissioner from dismissing the appellant from the Western Australia Police Force and conducting an examination under section 23 of the Police Act in relation to disciplinary charge no 88/2022 against the appellant, until the determination of the appeal or further order. The respondent was also ordered to pay the appellant's costs of the application to be assessed if not agreed.