Flori v Winter

Case [2023] QDC 110

DISTRICT COURT OF QUEENSLAND

CITATION:

Flori v Winter & Ors [2023] QDC 110

PARTIES:

RICKY ANTHONY FLORI

(plaintiff)

v
DAVID BRETT WINTER

(first defendant)

PAUL DOYLE

(seventh defendant)

STATE OF QUEENSLAND
(ninth defendant)

FILE NO/S:

BD1775/20

DIVISION:

Civil

PROCEEDING:

Trial

ORIGINATING COURT:

Brisbane

DELIVERED ON:

21 June 2023

DELIVERED AT:

Townsville

HEARING DATES:

20 and 21 February and 13 March 2023

JUDGE:

Jarro DCJ

ORDER:

1.   The plaintiff’s claim is dismissed.

2.   I will hear from the parties as to costs.

CATCHWORDS:

TORTS – STATUTORY REPRISAL – where the plaintiff claims damages for damage suffered from the reprisals by the first and seventh defendants – where the plaintiff claims protection under the Whistleblowers Protection Act 1994 (Qld) (repealed) for a public interest disclosure – where the plaintiff claims that the actions that constitute the acts of reprisal by the first and seventh defendants caused, or attempted to cause, the plaintiff detriment.

COMMUNICATIONS LAW – WHISTLEBLOWER PROTECTION AND PUBLIC INTEREST DISCLOSURE LEGISLATION – 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contends the letter was a public interest disclosure under s 15 of the Whistleblowers Protection Act 1994 (Qld) (repealed) and therefore the Public Interest Disclosure Act 2010 (Qld) – whether the letter contained information about conduct which amounts to “official misconduct”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).

Public Interest Disclosure Act 2010 (Qld) s 40, s 42, s 74
Whistleblowers Protection Act 1994 (Qld) (repealed) s 14, s 15, Sch 6

Crime and Misconduct Act 2001 (Qld) s 14, s 15

Cerutti v Crestside Pty Ltd [2016] 1 Qd R 89
Enzed Holdings Limited v Wynthea Pty Limited (1984) 4 FCR 450
Flori v Winter [2019] QSC 106
Flori v Winter (2019) 3 QR 22

George v Rocket (1990) 170 CLR 104

COUNSEL:

M Black for the plaintiff

SA McLeod KC and MA Wilkinson for the first, seventh and ninth defendants

SOLICITORS:

Gnech and Associates for the plaintiff

The Crown Solicitor for the first, seventh and ninth defendants

  1. Mr Flori, a former police officer, is seeking damages for the statutory tort of reprisal against two higher ranked police officers and their employer under s 42 of the Public Interest Disclosure Act 2010 (Qld) (“PID Act”).  The genesis of the tort has arisen because on 21 February 2010, Mr Flori penned a letter under someone else’s name and sent it to the then Crime and Misconduct Commission (“the February 2010 letter”).  The letter, among other things, made allegations that a senior male police officer (“Senior Sergeant [A]”) and a junior female police officer (“Constable [B]”) had engaged in improper sexual conduct in a police car in the carpark of a fast-food premises at the Gold Coast.[1]  The February 2010 letter ended with the name “Craig Mcgrath” and did not identify Mr Flori.  Mr Flori later admitted that he wrote and sent the February 2010 letter to the Crime…

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Details
AGLC
Flori v Winter [2023] QDC 110
Case
[2023] QDC 110
Decision Date

CaseChat Overview and Summary

The case of Flori v Winter involved a claim for statutory reprisal by the plaintiff, Flori, against the first and seventh defendants, who were police officers, and the State of Queensland. Flori alleged that he suffered detriment from reprisals by the defendants for making a public interest disclosure (PID) under the repealed Whistleblowers Protection Act 1994 (Qld). The dispute centred on whether the letter Flori sent to the Crime and Misconduct Commission (CMC) in February 2010 constituted a PID under the Act and whether the actions of the defendants caused or attempted to cause Flori detriment.

The court had to determine whether the letter sent by Flori to the CMC contained information about conduct amounting to "official misconduct" under section 15 of the Crime and Misconduct Act 2001 (Qld), and therefore constituted a PID under the repealed Whistleblowers Protection Act 1994 (Qld). The court also needed to decide if the actions of the defendants caused or attempted to cause Flori detriment. The evidence presented by Flori included his own testimony about the sources of his information and the reasons for submitting the letter to the CMC. The defendants provided counter-evidence denying or not recalling discussions with Flori about the matters in the letter.

The court concluded that the February 2010 letter did not constitute a PID because it did not contain information about conduct amounting to "official misconduct." The court found that Flori's actions were not protected under the repealed Whistleblowers Protection Act 1994 (Qld). Additionally, the court was not satisfied that the defendants caused or attempted to cause Flori detriment. Therefore, the claim for statutory reprisal was dismissed. The court did not find sufficient evidence of impropriety or unjustified actions by the defendants to warrant an award of exemplary or aggravated damages.

The court dismissed the plaintiff's claim and directed the parties to provide submissions on the issue of costs. The final orders included dismissing the plaintiff's claim and requesting submissions from the parties regarding costs.

Orders

Orders of the court

1. The plaintiff’s claim is dismissed.

2. I will hear from the parties as to costs.

Background

Background to the litigation

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Evidence

Evidence Before The Court

Mr Flori’s sole witness at trial was himself. Relevantly, Mr Flori gave evidence as to the sources of his information when writing the February 2010 letter and his reasons for submitting that letter to the CMC, including that he had grounds to consider the information he received was credible and reliable. On the other hand, the defendants called a number of witnesses who denied or could not recall having any discussions with Mr Flori or others about the matters which were contained in the February 2010 letter. Mr Flori also gave evidence that shortly after the disciplinary interview in 2012, he promptly requested whistle-blower protection on 26 April 2012. The defendants called Inspector Mick Stenner, who gave evidence as to the circumstances for Mr Flori’s request for whistle-blower protection. I will refer to that evidence later. In addition, Mr Flori gave evidence as to the detriment he experienced arising out of the actions of Messrs Winter and Doyle, including the distress and reputational harm which resulted in his eventual departure from the QPS.Mr Flori’s Evidence Although Mr Flori wrote the February 2010 letter, he did not identify himself in it. He attributed the author of that letter to “Craig Mcgrath” because, according to Mr Flori, Mr McGrath “was a relevant witness and [Mr Flori] thought he was pertinent because he’d actually spoken to [A] about it” Mr Flori considered Mr McGrath “had a good level of integrity”.[13] Mr Flori did not put his name forward because he thought it was of no value because he did not witness the allegations. He said “[he] couldn’t add anything” and he feared adverse consequences for reporting the conduct.[14] Immediately to me, that begs the question as to why he would proffer someone else’s name, but that is not a material factor to the determination of the principal issues. [13]T1-14, lines 18-26.[14]T1-14, lines 30-32 and 36-40. When asked by his counsel what information he received from Craig McGrath, Mr Flori said: “I spoke to him at Surfers Paradise [indistinct] on the fifth floor and asked him – asked him about what he knew about [A] and [B]. He knew – he said that he knew that they’d been meeting in both Gold Coast and Coomera, and he further went on to say that he was seeing her on The Esplanade at Burleigh getting out of the marked police vehicle in plain clothes and with some sort of picnic, and they wandered off and had a picnic. And I asked if he was sure, and he said yeah, Toby Wilkinson had seen him and Toby went through with [A] through the academy. He was quite confident. …He – he also said that he’d – he’d confronted [A] and – and he said that he told him to eff off and it was none of his business.”[15][15]T1-13, line 44 to T1-14, line 7. Regarding the other sources of information aside from Mr McGrath, Mr Flori said:“So I overheard Bruce Pearce in Surfers Paradise Station in the charging area. He was holding court, for a better term, talking to constables, boasting about the goings on, the misconduct, really, that [A] was – was doing in terms of rendezvousing with [B], getting sexual favours from her… Do you recall specifically what he said in terms of sexual favours?---Head – head jobs behind – actually, I think he might have mentioned the – behind – he used to meet at the BP as well, I think, and behind a shopping centre of Coomera. He didn’t provide, like, witness names or anything, though.”[16][16]T1-10, line 45 to T1-11, line 7.

Decision

Reasons for decision

I am not inclined, despite what has been sought by Mr Flori, to award aggravated damages, because I am not satisfied that the actions taken by each of the defendants, including the State of Queensland as the relevant employer, were improper or unjustified in the circumstances. Nor am I satisfied that an award for exemplary damages should be made. Mr Flori’s grounds for exemplary damages were essentially that the defendants are police officers with important functions of upholding the law, the QPS failed to establish reasonable procedures for PIDs, and the need for deterrence. There was no sufficient evidence upon which to act about the alleged failure of the QPS to establish reasonable procedures for PIDs, let alone any failure by Mr Winter or anyone else to follow them. Reasonable and legitimate processes were undertaken with respect to disciplining Mr Flori with respect to his actions, only one of which related to the production of the February 2010 letter. I am not satisfied any level of reprehensibility has been demonstrated on the evidence. Therefore, neither exemplary nor aggravated damages should be awarded. Conclusion and Orders Having not found that the February 2010 letter constituted a PID and that Mr Winter and Mr Doyle caused, or attempted to cause, Mr Flori detriment in their actions, the claim is dismissed. I will hear from the parties as to costs.

Ratio Decidendi

Legal Principle Established

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