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Flori v Winter

Flori v Winter

Case [2019] QSC 106 3 May 2019

Whistleblower Protection

Public Interest Disclosure

Statutory Interpretation

Administrative Law

Constitutional Law

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SUPREME COURT OF QUEENSLAND

CITATION:

Flori v Winter & Ors [2019] QSC 106

PARTIES:

RICKY ANTHONY FLORI

(Plaintiff)

v
DAVID BRETT WINTER

(First Defendant)

PETER DOYLE

(Seventh Defendant)

DIRK PETERSEN

(Eighth Defendant)

STATE OF QUEENSLAND

(Ninth Defendant)

FILE NO/S:

BS No 4178 of 2017

DIVISION:

Trial Division

PROCEEDING:

Determination of a separate question

DELIVERED ON:

3 May 2019

DELIVERED AT:

Brisbane

HEARING DATE:

28 February 2019

JUDGE:

Bowskill J

ORDER:

The answer to the question posed for separate determination by the court is no, the letter dated 21 February 2010 is not capable of being a “public interest disclosure” under s 15 of the Whistleblowers Protection Act 1994, as it does not contain information about conduct that is “official misconduct” within the meaning of ss 14 and 15 of the Crime and Misconduct Act 2001.

I will hear from the parties about any consequential orders, and as to costs.

CATCHWORDS:

COMMUNICATIONS LAW – WHISTLEBLOWER PROTECTION AND PUBLIC INTEREST DISCLOSURE LEGISLATION – determination of a separate question under r 483 of the Uniform Civil Procedure Rules 1999 (Qld) – where the plaintiff sent a letter to the Crime and Misconduct Commission alleging conduct engaged in by two police officers – where the plaintiff contends the letter was a public interest disclosure under s 15 of the Whistleblowers Protection Act 1994 (Qld) (repealed) and therefore the Public Interest Disclosure Act 2010 (Qld) – whether the letter contained information about conduct which amounts to “official misconduct” under s 15 of the Crime and Misconduct Act 2001 (Qld) – whether the alleged conduct is “conduct” within the meaning of s 14 of the Crime and Misconduct Act – if so, whether the alleged conduct could, if proved, be a criminal offence and/or a disciplinary breach providing reasonable grounds for termination of a police officer’s services under s 15 of the Crime and Misconduct Act

STATUTES – ACTS OF PARLIAMENT – INTERPRETATION – PARTICULAR WORDS AND PHRASES – GENERALLY – consideration of the meaning of the phrases “breach of the trust placed in the person” and “misuse of information or material acquired” in s 14 of the Crime and Misconduct Act – consideration of the meaning of “a place to which the public are permitted to have access” for the purposes of s 227 of the Criminal Code – consideration of the meaning of “use” of a motor vehicle in s 408A(1)(a) of the Criminal Code

Acts Interpretation Act 1954 (Qld) s 35C
Crime and Misconduct Act 2001 (Qld) (Reprint No. 5) (now the Crime and Corruption Act 2001 (Qld)) s 14, s 15, s 20, s 21
Criminal Code Act 1899 (Qld) s 227(1)(a), s 408A(1)(a)
Police Service Administration Act 1990 (Qld) s 1.4, s 7.4(2), s 7.4(3)
Public Interest Disclosure Act 2010 (Qld) s 42, s 74
Transport Operations (Road Use Management) Act 1995 s 135(1)(a)
Uniform Civil Procedure Rules 1999 (Qld) r 483
Whistleblowers Protection Act 1994 (Qld) (Reprint No. 5D) (repealed) s 3, s 7(2), s 7(3), s 14, s 15,…

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.

Continue reading Flori v Winter

Details

AGLC: Flori v Winter [2019] QSC 106
Case: [2019] QSC 106
Decision Date: 3 May 2019

CaseChat Overview and Summary

Flori commenced proceedings against Winter in the District Court of Queensland. Flori, the plaintiff, sought a declaration that a letter sent to the Crime and Misconduct Commission constituted a public interest disclosure under the repealed Whistleblowers Protection Act 1994 (Qld). Flori further sought a declaration that the disclosure was protected under the Public Interest Disclosure Act 2010 (Qld). The letter in question was written by Flori and sent to the Crime and Misconduct Commission, alleging conduct engaged in by two police officers. The defendants, Winter and the Crime and Misconduct Commission, opposed the claims. The central legal issues before the court were whether the letter contained information about conduct that amounted to "official misconduct" under section 15 of the Crime and Misconduct Act 2001 (Qld), and whether such conduct was within the meaning of section 14 of the same act. Additionally, the court needed to determine if the alleged conduct, if proven, could constitute a criminal offence and/or a disciplinary breach providing reasonable grounds for termination of a police officer’s services.

The court found that the letter did not contain information about conduct that was "official misconduct" within the meaning of sections 14 and 15 of the Crime and Misconduct Act 2001. The court held that the letter did not meet the threshold for a public interest disclosure as it lacked the necessary elements of "official misconduct." The court examined the definitions of "breach of the trust placed in the person" and "misuse of information or material acquired" under section 14 of the Crime and Misconduct Act, concluding that the conduct alleged in the letter did not satisfy these criteria. The court also considered the meaning of "a place to which the public are permitted to have access" for the purposes of section 227 of the Criminal Code and the meaning of "use" of a motor vehicle in section 408A(1)(a) of the Criminal Code, but found these considerations did not alter the conclusion regarding the letter's contents.

The court dismissed Flori's claims and found that the letter dated 21 February 2010 was not capable of being a "public interest disclosure" under section 15 of the Whistleblowers Protection Act 1994. The court will hear from the parties about any consequential orders and the allocation of costs.

Orders

Orders of the court

The answer to the question posed for separate determination by the court is no, the letter dated 21 February 2010 is not capable of being a “public interest disclosure” under s 15 of the Whistleblowers Protection Act 1994, as it does not contain information about conduct that is “official misconduct” within the meaning of ss 14 and 15 of the Crime and Misconduct Act 2001.

I will hear from the parties about any consequential orders, and as to costs.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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Citations

Flori v Winter [2019] QSC 106

Most Recent Citation

Flori v Winter [2019] QCA 281

Cases Citing This Decision

QUESTION OF LAW RESERVED (NO 1 OF 2024) [2025] SASCA 107
Citation 1 (Para 16)

…danger presented by a loaded firearm, rather than any fear that it might engender in members of the public.[37] [37] See, for example, Flori v Winter [2019] QSC 106 at [54]-[59] (Bowskill J), relying upon these different underlying purposes in holding that sexual activity in a police vehicle on a public road was…
Flori v Winter [No 3] [2023] QCA 229
Citation 2

…and Further Education v Barclay (2012) 248 CLR 500; [2012] HCA 32, considered Flori v Winter & Ors [2023] QDC 110, related Flori v Winter (2019) 3 QR 22; [2019] QCA 281, related Howard v State of Queensland [2001] 2 Qd R 154; [2000] QCA 223, considered COUNSEL: M Black for the appellant S A McLeod KC, with M R Wilkinso…
Flori v Winter [2023] QDC 110
Citation 3 (Para 7)

…so from the admission given on the defendants’ behalf in the pleadings, as well as the observations of the learned primary judge in Flori v Winter [2019] QSC 106, together with Fraser JA (with whom Buss AJ and Henry J agreed) in the appeal decision of Flori. That is because it was an indecent act in a place to w…
Trinity Park Investments Pty Ltd v Cairns Regional Council & Ors; Dexus Funds Management Limited v Fabcot Pty Ltd & Ors [2021] QCA 95
Citation 4

…18] QCA 84, cited CIC Insurance Ltd v Bankstown Football Club Ltd (1997) 187 CLR 384; [1997] HCA 2, cited Flori v Winter (2019) 3 QR 22; [2019] QCA 281, cited Gerhardt v Brisbane City Council (2017) 226 LGERA 257; [2017] QCA 285, cited Gold Coast City Council v K & K (GC) Pty Ltd [2020] QPELR 631; [2019] QCA 132, cited…
Flori v Winter [2020] QCA 115
Citation 5

…019 SC No 4178 of 2017 DIVISION: Court of Appeal PROCEEDING: General Civil Appeal – Further Orders ORIGINATING COURT: Supreme Court at Brisbane – [2019] QSC 106 (Bowskill J) DELIVERED ON: 29 May 2020 DELIVERED AT: Brisbane HEARING DATE: Heard on the papers JUDGES: Fraser JA and Buss AJA and Henry J ORDERS: 1. The…
Flori v Winter [2019] QCA 281
Citation 6 (Para 2)

…m in that reprint as they were in the Bill for the Act and in the Act passed by Parliament on 1 December 1994. [2] Flori v Winter & Ors [2019] QSC 106 (“Reasons”) at [24].…

See all citing cases →

Cases Cited

Gardem v Edmistone [2018] QDC 118
Citation 1 (Para 20)

…conduct”, “or could, if proved” fall within s 15(a) or (b), if more information was known or disclosed.[8] [8] Gardem v Edmistone [2018] QDC 118 at [202] and [206] per Andrews SC DCJ. (Official mis) Conduct…
Cunneen v Independent Commission Against Corruption [2014] NSWCA 421
Citation 2 (Para 2)

…eving for them a political advantage”.[12] [12] Referred to with approval by Basten JA in Cunneen v Independent Commission Against Corruption [2014] NSWCA 421 at [76]-[78].…
O'Brien v Assistant Commissioner Stephen Gollschewski, Queensland Police Service [2014] QCATA 148
Citation 3 (Para 9)

…] 2 Qd R 235 at [43] and [45]. [32] Police Service Board v Morris (1985) 156 CLR 397 at 412. [33] O’Brien v Assistant Commissioner Gollschewski [2014] QCATA 148 at [48]; and McKenzie v Acting Assistant Commissioner Wright [2011] QCATA 309 at [52] and [55].…
Dodd v Brown [2012] NTSC 102
Citation 4 (Para 1)

…in the vehicle (as opposed to travelling in it) may also be a “use” of a vehicle). See, for example, Dodd v Brown [2012] NTSC 102 at [38]-[39] per Barr J, in relation to a person found sleeping in a stolen car.…
Wright v McMurchy [2012] WASCA 257
Citation 5 (Para 31)

…outside observers”.[23] [23] At 745. See also Wright v McMurchy [2011] WASC 219 at [23]-[24] per Commissioner Sleight and, on appeal, [2012] WASCA 257 at [36]-[37], noting that in this case the taxi in which the indecent act took place was itself found to be a “public place”.…
Deputy Commissioner Stewart v Dark [2012] QCA 228
Citation 6 (Para 4)

…ds for termination of the person’s services in the unit of public administration”. [29] See also Deputy Commissioner Stewart v Dark [2012] QCA 228 at [33].…
McKenzie v Acting Assistant Commissioner Wright [2011] QCATA 309
Citation 7 (Para 9)

…LR 397 at 412. [33] O’Brien v Assistant Commissioner Gollschewski [2014] QCATA 148 at [48]; and McKenzie v Acting Assistant Commissioner Wright [2011] QCATA 309 at [52] and [55].…
Wright v McMurchy [2011] WASC 219
Citation 8 (Para 31)

…e category as a caravan or tent. Its occupants are readily visible to outside observers”.[23] [23] At 745. See also Wright v McMurchy [2011] WASC 219 at [23]-[24] per Commissioner Sleight and, on appeal, [2012] WASCA 257 at [36]-[37], noting that in this case the taxi in which the indecent act took place was itsel…
Hardman v Minehan [2003] NSWCA 130
Citation 9 (Para 32)

…, the ability to observe the conduct in question is not inhibited by the illusory interposition of a windscreen. [24] Hardman v Minehan (2003) 57 NSWLR 390 at [17] per Tobias JA and at [94], [96], [103] and [126] per McColl JA, Meagher JA dissenting (referring, inter alia, to Forte v Sweeney, ex parte Forte [1982] Qd…
Ainsworth v Criminal Justice Commission [1992] HCA 10
Citation 10 (Para 2)

…In Greiner v Independent Commission Against Corruption (1992) 28 NSWLR 125 at 165, Mahoney JA observed that the similar, but not identical phrase, “breach of public trust” includes the misuse of an office or of the powers of an office for a purpose for which it was not given. In that case it had been found that “Mr Gr…
Dickinson v Motor Vehicle Insurance Trust [1987] HCA 49
Citation 11 (Para 1)

…rate “use” of the car, such as to amount to a criminal offence under s 408A(1)(a). [27] See Dickinson v Motor Vehicle Insurance Trust (1987) 163 CLR 500 at 505 (in the context of insurance); see also Bollmeyer v Daly [1933] SASR 295 at 297 (in relation to an offence of “driving or using” a motor vehicle without the c…
Police Service Board v Morris [1985] HCA 9
Citation 12 (Para 9)

…oportionate, and endeavour to achieve consistency.[33] [31] Aldrich v Ross [2001] 2 Qd R 235 at [43] and [45]. [32] Police Service Board v Morris (1985) 156 CLR 397 at 412. [33] O’Brien v Assistant Commissioner Gollschewski [2014] QCATA 148 at [48]; and McKenzie v Acting Assistant Commissioner Wright [2011] QCATA 309…
May v O'Sullivan [1955] HCA 38
Citation 13 (Para 22)

…A 421 at [7] per Bathurst CJ (in relation to s 8(2) of the Independent Commission Against Corruption Act 1988 (NSW)). [20] May v O’Sullivan (1955) 92 CLR 654 at 658.…
[1924] NZLR 93 [1924] NZLR 93
Citation 14 (Para 29)

…The observations of Sim J, made in Walker v Crawshaw [1924] NZLR 93, in relation to an equivalent offence[22] remain apt in relation to the offence under s 227: “The object of the legislation contained in s 41 is to prevent not immorality, but indecency; and the gist of the crime created by that section is the of…
[1966] 2 QB 214 [1966] 2 QB 214
Citation 15 (Para 36)

…or she is working in, becomes a criminal (unlawful) use for the purposes of s 408A.[25] [25] See, by analogy, R v Wibberley [1965] 3 All ER 718; [1966] 2 QB 214 at 219-220, distinguishing a case in which the driver had finished work, and made a deviation for personal reasons, before returning the work vehicle as…

Legislation Cited

Acts Interpretation Act 1954 (Qld) 35C
2 mentions (from Para 14)
Police Service Administration Act 1990 (Qld) 1.4
2 mentions (from Para 6)
Public Interest Disclosure Act 2010 (Qld) 42
2 mentions (from Para 1)
Transport Operations (Road Use Management) Act 1995 (Qld) 135(1)(a)
2 mentions (from Para 19)
Uniform Civil Procedure Rules 1999 (Qld) 483
2 mentions (from Para 3)
Whistleblowers Protection Act 1994 (Qld) 3
2 mentions (from Para 2)
Crime and Corruption Act 2001 (Qld)
1 mention (from Para 12)
Crime and Misconduct Act 2001 (Qld)
1 mention (from Para 3)
Criminal Code Act 1899 (Qld) 227(1)(a)
1 mention
Criminal Justice Act 1989 (Qld)
1 mention (from Para 26)
Independent Commission Against Corruption Act 1988 (NSW)
1 mention (from Para 22)
Police Powers and Responsibilities Act 2000 (Qld)
1 mention (from Para 7)
Summary Offences Act 1966 (Vic)
1 mention (from Para 31)

CITATION:	Flori v Winter & Ors [2019] QSC 106
PARTIES:	RICKY ANTHONY FLORI (Plaintiff) v DAVID BRETT WINTER (First Defendant) PETER DOYLE (Seventh Defendant) DIRK PETERSEN (Eighth Defendant) STATE OF QUEENSLAND (Ninth Defendant)
FILE NO/S:	BS No 4178 of 2017
DIVISION:	Trial Division
PROCEEDING:	Determination of a separate question
DELIVERED ON:	3 May 2019
DELIVERED AT:	Brisbane
HEARING DATE:	28 February 2019
JUDGE:	Bowskill J
ORDER:	The answer to the question posed for separate determination by the court is no, the letter dated 21 February 2010 is not capable of being a “public interest disclosure” under s 15 of the *Whistleblowers Protection Act* 1994, as it does not contain information about conduct that is “official misconduct” within the meaning of ss 14 and 15 of the *Crime and Misconduct Act* 2001. I will hear from the parties about any consequential orders, and as to costs.
CATCHWORDS:	COMMUNICATIONS LAW – WHISTLEBLOWER PROTECTION AND PUBLIC INTEREST DISCLOSURE LEGISLATION – determination of a separate question under r 483 of the Uniform Civil Procedure Rules 1999 (Qld) – where the plaintiff sent a letter to the Crime and Misconduct Commission alleging conduct engaged in by two police officers – where the plaintiff contends the letter was a public interest disclosure under s 15 of the Whistleblowers Protection Act 1994 (Qld) (repealed) and therefore the Public Interest Disclosure Act 2010 (Qld) – whether the letter contained information about conduct which amounts to “official misconduct” under s 15 of the Crime and Misconduct Act 2001 (Qld) – whether the alleged conduct is “conduct” within the meaning of s 14 of the Crime and Misconduct Act – if so, whether the alleged conduct could, if proved, be a criminal offence and/or a disciplinary breach providing reasonable grounds for termination of a police officer’s services under s 15 of the Crime and Misconduct Act STATUTES – ACTS OF PARLIAMENT – INTERPRETATION – PARTICULAR WORDS AND PHRASES – GENERALLY – consideration of the meaning of the phrases “breach of the trust placed in the person” and “misuse of information or material acquired” in s 14 of the Crime and Misconduct Act – consideration of the meaning of “a place to which the public are permitted to have access” for the purposes of s 227 of the Criminal Code – consideration of the meaning of “use” of a motor vehicle in s 408A(1)(a) of the Criminal Code Acts Interpretation Act 1954 (Qld) s 35C Crime and Misconduct Act 2001 (Qld) (Reprint No. 5) (now the Crime and Corruption Act 2001 (Qld)) s 14, s 15, s 20, s 21 Criminal Code Act 1899 (Qld) s 227(1)(a), s 408A(1)(a) Police Service Administration Act 1990 (Qld) s 1.4, s 7.4(2), s 7.4(3) Public Interest Disclosure Act 2010 (Qld) s 42, s 74 Transport Operations (Road Use Management) Act 1995 s 135(1)(a) Uniform Civil Procedure Rules 1999 (Qld) r 483 Whistleblowers Protection Act 1994 (Qld) (Reprint No. 5D) (repealed) s 3, s 7(2), s 7(3), s 14, s 15,…