SUPREME COURT OF QUEENSLAND
CITATION:
Flanagan v Stewart & Anor [2016] QSC 155
PARTIES:
STEPHEN FLANAGAN
(applicant)
v
IAN STEWART (COMMISSIONER OF POLICE)(first respondent)
and
ASSISTANT COMMISSIONER CLEM O’REGAN
(second respondent)FILE NO:
1315 of 2016
DIVISION:
Trial Division
PROCEEDING:
Originating Application
ORIGINATING COURT:
Supreme Court of Queensland at Brisbane
DELIVERED ON:
15 July 2016
DELIVERED AT:
Brisbane
HEARING DATE:
5 May 2016
JUDGE:
Boddice J
ORDER:
The application for review is dismissed.
CATCHWORDS:
ADMINISTRATIVE LAW – JUDICIAL REVIEW – GROUNDS OF REVIEW – UNREASONABLENESS – where the applicant is a police officer in the Queensland Police Service – where a complaint was made against the applicant arising out his conduct during a traffic intercept – where the complainant was speeding and the applicant mistakenly believed the complaint was driving a stolen vehicle – where, during the course of that traffic intercept, the applicant directed his firearm towards the complaint and handcuffed him – where the second respondent stood down the applicant from the QPS, pending the resolution of the investigation of that complaint – where the applicant was subsequently charged with offences of deprivation of liberty and common assault, arising out of his conduct during the traffic intercept – where the second respondent suspended the applicant from the QPS and invited the applicant to show cause as to why that suspension ought not to be without salary and allowances – where the second respondent subsequently suspended the applicant without salary and allowances pending the resolution of the criminal charges, and any resultant disciplinary proceedings – where the second respondent had regard to numerous factors, including the financial impact on the applicant of any decision to suspend him without salary and allowances – where the applicant argues the decisions to suspend the applicant and to suspend him without pay and allowances were each an improper exercise of power in that they were so unreasonable that no reasonable decision maker could so exercise the powers – whether the decisions were so unreasonable that no reasonable person could so exercise the power to make either decision
ADMINISTRATIVE LAW – JUDICIAL REVIEW – GROUNDS OF REVIEW – PROCEDURAL FAIRNESS – EXCLUSION OF PROCEDURAL FAIRNESS – GENERALLY – where the applicant was previously the subject of a complaint in 2013 – where the second respondent determined the present complaint and the 2013 incident had significant similarities – where the applicant alleges the second respondent had regard to the 2013 incident in reaching the decision to suspend the applicant without salary and allowances – where the applicant alleges that he was given no prior notice of the second respondent’s intention to have regard to the 2013 incident – where the applicant alleges that the second respondent’s conduct therefore breached the rules of natural justice and denied the applicant procedural fairness – whether the second respondent breached the rules of natural justice in reaching the decision to suspend the applicant without salary and allowances
Applicant VEAL of 2002 v Minister for Immigration and
Multicultural and…
Keep reading for free
Create a free CaseChat account to read Flanagan v Stewart and more:
- Read every judgment in full
- Ask AI and get answers linked to paragraphs
- See how each paragraph was cited in later cases
- Download judgments as PDF or Word
One click creates your free account or signs you in.
By continuing you agree to the Terms and Privacy Policy.
Details
- Case
- [2016] QSC 155
- Decision Date
CaseChat Overview and Summary
The case of Flanagan v Stewart involves a police officer who sought judicial review of decisions made by the second respondent, an Assistant Commissioner of Police, to suspend the applicant without salary and allowances. The applicant argued that the decisions were unreasonable and a breach of natural justice. The court had to determine whether the decisions were legally unreasonable and whether the rules of natural justice were breached.
The court found that the decision to suspend the applicant was reasonable given the nature of the alleged conduct, which included directing a firearm and handcuffing a driver during a traffic intercept. The court noted that the applicant's conduct, if proven, was of such a serious nature that it justified suspension without salary and allowances to maintain public confidence in the Queensland Police Service. The court also found that the decision to suspend the applicant without salary and allowances was reasonable, considering the potential risk of the officer’s conduct affecting the emotional well-being of any employee or clients of the Queensland Police Service and the need to maintain public confidence.
Regarding the alleged breach of natural justice, the court found that the applicant was not denied procedural fairness. The second respondent had considered the applicant’s submissions and provided an opportunity for the applicant to show cause as to why he should not be suspended without salary and allowances. The court concluded that there was no procedural unfairness in the decision-making process.
The application for review was dismissed, and the decisions of the second respondent were upheld.
The court found that the decision to suspend the applicant was reasonable given the nature of the alleged conduct, which included directing a firearm and handcuffing a driver during a traffic intercept. The court noted that the applicant's conduct, if proven, was of such a serious nature that it justified suspension without salary and allowances to maintain public confidence in the Queensland Police Service. The court also found that the decision to suspend the applicant without salary and allowances was reasonable, considering the potential risk of the officer’s conduct affecting the emotional well-being of any employee or clients of the Queensland Police Service and the need to maintain public confidence.
Regarding the alleged breach of natural justice, the court found that the applicant was not denied procedural fairness. The second respondent had considered the applicant’s submissions and provided an opportunity for the applicant to show cause as to why he should not be suspended without salary and allowances. The court concluded that there was no procedural unfairness in the decision-making process.
The application for review was dismissed, and the decisions of the second respondent were upheld.
Orders
Orders of the court
The application for review is dismissed.
Background
Background to the litigation
By application, filed 5 February 2016, the applicant seeks a statutory order of review and order of review in respect of each decision. There are two grounds of review advanced by the applicant. First, the decisions were so unreasonable that no reasonable person exercising the power could so decide. Second, that in making the decision on 4 February 2016, there was a breach of the rules of natural justice.Background The applicant has been a member of the Queensland Police Service for many years, having joined it aged 19 years. His most recent position was as officer in charge of the Ilfracombe police station in the Longreach patrol group. He possesses no other qualifications or skills to assist in gaining employment outside the Queensland Police Service. The applicant is married with two dependent teenage children. He is the primary money earner in the family unit. His wife has recently started her own business but it presently has a very low annual turnover. He has significant personal financial commitments, including responsibility for repayment of a personal loan. The first respondent is the Commissioner of Police. The second respondent is an Assistant Commissioner of Police, responsible for management of the Ethical Standards Command. That command has responsibility for the investigation of complaints of misconduct and corruption, including disciplinary matters. On 22 May 2015, the second respondent issued a stand down notice in respect of the applicant. That notice was issued following information, provided to the second respondent in an Executive Briefing Note, of an investigation into a traffic intercept on 5 May 2015. During that traffic intercept, the applicant is alleged to have used excessive force and failed to treat the driver of the vehicle with appropriate dignity and respect. On 14 January 2016, the second respondent received an updated Executive Briefing Note, containing further information. Relevantly, it advised the applicant had been served with a notice to appear in relation to criminal charges of deprivation of liberty and assault, arising out of the incident on 5 May 2015. On 15 January 2016, the second respondent made the decision to suspend the applicant. On that same day, the second respondent gave the applicant a notice informing him of his suspension and asking him to show cause as to why that suspension ought not to be without salary and allowances. On 29 January 2016, the applicant, through his legal representatives, supplied written submissions in response to the show cause notice. On 4 February 2016, the second respondent determined to suspend the applicant without salary and allowances. The applicant was served with a notice to that effect shortly thereafter.Relevant statutory provisions“6.1 Power to stand down and suspend (1) If—(a)it appears to the commissioner, on reasonable grounds that—(i)an officer is liable to be dealt with for corrupt conduct; or(ii)an officer is liable to disciplinary action under section 7.4; or(iii)the efficient and proper discharge of the prescribed responsibility might be prejudiced, if the officer’s employment is continued; or(b)an officer is charged with an indictable offence; or(c)an officer is unfit for reasons of health to such an extent that the officer should not be subject to the duties of a constable;the commissioner may—(d)stand down the officer from duty as an officer and direct the person stood down to perform such duties as the commissioner thinks fit; or(e)suspend the officer from duty.(2) The commissioner may at any time revoke a standing down or suspension imposed under subsection (1).6.2 Salary entitlement if stood downAn officer who is stood down from duty under section 6.1 is entitled to be paid salary and allowances at the rate at which the officer would have received salary and allowances had the standing down not occurred.6.3 Salary entitlement if suspended(1) An officer suspended from duty under section 6.1 is entitled to be paid salary and allowances at the rate at which the officer would have received salary and allowances had the suspension not occurred, unless the commissioner otherwise determines in a particular case.(1A) Except that an officer suspended under section 6.1(1)(c) is to be entitled to the salary and allowances to which that officer was previously entitled.(2) An officer suspended from duty who is not entitled to be paid salary during the suspension—(a)may receive and retain salary, wages, fees or other remuneration from any lawful source during the suspension, unless the commissioner otherwise determines in a particular case; and(b)if the officer resumes duty as an officer on the revocation of the suspension—is entitled to receive a sum equivalent to the amount of salary and allowances the officer would have received had the suspension not occurred, reduced by a sum equivalent to the amount of salary, wages, fees and other remuneration to which the officer became entitled from any other source during the suspension, unless the commissioner otherwise determines in a particular case.(3) An officer suspended from duty without salary who enters into employment whereby the officer will become entitled to salary, wages, fees or other remuneration is to inform the commissioner immediately of the particulars of the employment.(4) An officer suspended from duty who during the suspension becomes entitled to salary, wages, fees or other remuneration from a source incompatible with assessment of the officer as a fit and proper person to be an officer and who fails to satisfy the commissioner that there are reasonable grounds for not dismissing the officer, may be dismissed from the service.”The decisions
Evidence
Evidence Before The Court
Relevantly, the notice of suspension without salary and allowances stated:“On 15 January 2016, you were suspended from duty by virtue of Section 6.1 of the Police Service Administration Act 1990 (the Act) and invited to respond in writing to show cause why your salary and allowances should continue while you are suspended from duty. Your show cause submissions were received on 29 January 2016.Having considered your submissions and the video footage of the conduct in question, I have determined the allegations against you are, if proven, of such a serious nature to justify your disentitlement to salary and allowances during the period of your suspension from duty.”Evidence Calvin Gnech, the applicant’s solicitor, provided affidavits enclosing a transcript of the applicant’s disciplinary interview, together with details of an earlier incident in 2013 which had resulted in disciplinary action against the applicant. An earlier affidavit set out the consequences of a suspension without salary and allowances generally, and its effects on the applicant in particular. The applicant’s personal circumstances and financial responsibilities were detailed in this affidavit. Mr Gnech’s affidavit also contained statements detailing the police disciplinary process. The respondent objected to those statements on the basis they contained opinion or comment or were irrelevant. Whilst there are statements in that affidavit in the nature of opinion or comment and parts of the affidavit are of marginal relevance I am not satisfied those statements are inadmissible. However, I have afforded little weight to the opinions or comments of Mr Gnech. The applicant provided an affidavit confirming the accuracy of Mr Gnech’s affidavit as to the financial consequences for the applicant following his suspension without salary and allowances. In short, the family unit had difficulty meeting its living expenses due to the loss of its primary source of income. Those consequences impact not only upon the applicant and his wife’s ability to meet their financial circumstances, but also upon their accommodation and the choice of schools for their daughter. The second respondent provided an affidavit setting out the circumstances in which he made the respective decisions. The second respondent said the factors relevant to the decision whether or not to exercise a discretion to suspend an officer without pay included but were not necessarily limited to:· The possibility of suspending with salary and allowances;· The nature of the alleged conduct, including whether the alleged conduct could constitute criminal behaviour, and the conflict of the alleged conduct with the objectives of the Queensland Police Service;· The objective seriousness of the alleged misconduct or corrupt conduct, including a general assessment of the weight of evidence available and the likely sanctions available to the prescribed officer (if substantiated);· The relevant disciplinary history of the relevant officer, including whether the officer has been subject to discipline for similar conduct previously, or disciplined for unrelated matters which suggest the officer’s conduct is escalating or previous measures to address the conduct have failed to remedy the issues;· The potential risk of compromising the reputation of the Queensland Police Service, including the community’s expectation that misconduct or corrupt conduct by police officers will not be tolerated;· The potential risk of the officer’s conduct and presence in the workplace adversely affecting the emotional well-being of any employee or clients of the Queensland Police Service;· The potential impact on the effective operation of Departmental policies, and programs, of suspending the officer as opposed to standing the officer down or transferring the officer to alternate duties;· The likely period of time that will pass before any relevant criminal and/or disciplinary investigations or proceedings will conclude;· The personal interests for the officer maintaining their salary and allowances; and· The public interest.
Decision
Reasons for decision
Such a conclusion was reasonably open on the material, particularly having regard to the nature and circumstances of the applicant’s alleged criminal conduct. The maintenance of public confidence outweighed other factors. The decision does not lack any evidentiary basis and is neither illogical nor unintelligible. No legal unreasonableness has been shown in respect of that decision. Decision to suspend without salary and allowances Once it is determined the applicant could properly be suspended, a consideration of the factors identified by the second respondent as being relevant to a decision whether it was appropriate to suspend the applicant without salary and allowances also supports a conclusion that there was a logical and coherent basis for a conclusion that the incompatibility between the applicant’s conduct and the maintenance of confidence in the Queensland Police Service required that the applicant be suspended from duty without salary and allowances. The applicant had been charged with serious criminal offences as a consequence of aggressive and inappropriate behaviour towards a driver who had been intercepted for speeding. The applicant’s behaviour included directing his firearm towards the driver and handcuffing him. Having regard to the nature and circumstances of those allegations, as evidenced in the recording of the incident, it was open to the second respondent to conclude there was an incompatibility between the applicant continuing to receive salary and allowances while suspended, and the maintenance of public confidence in the administration of the Queensland Police Service and in its members. Public confidence in the administration of the Queensland Police Service includes members of the public being assured those administering that Service do not continue to allow officers charged with serious criminal conduct, allegedly committed whilst on duty, to continue to receive the salary and allowances of members of that Service. The applicant’s contention that even if the circumstances provided a basis to suspend, there was no basis to suspend without salary and allowances, misunderstands the process undertaken by the second respondent. The circumstances caused the second respondent to revise the decision to stand down the applicant. At that time, he formed a preliminary view there was sufficient cause to suspend the applicant without salary and allowances. Whilst a notice was initially issued, suspending the applicant with salary and allowances, that notice was not indicative of the second respondent’s ultimate decision. It was done to provide the applicant with an opportunity to show cause as to why he ought not be suspended without salary and allowances. The second respondent was unpersuaded by those submissions and affirmed his preliminary view by the notice issued on 4 February 2016. Whilst another decision maker may have reached a different conclusion, the decision reached by the second respondent is neither illogical nor unintelligible. It did not involve an obvious failure to have regard to relevant factors or having given undue weight to one factor over another such as to support a conclusion there was legal unreasonableness.
Ratio Decidendi
Legal Principle Established
Full text does not contain this section.