Hurley v Stewart - [2016] QSC 154

SUPREME COURT OF QUEENSLAND

CITATION:

Hurley v Stewart & Anor [2016] QSC 154

PARTIES:

CHRIS HURLEY

(applicant)

v
IAN STEWART COMMISSIONER OF POLICE, QUEENSLAND POLICE SERVICE

(first respondent)
ASSISTANT COMMISSION CLEM O’REGAN
(second respondent)

FILE NO/S:

SC No 1271 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 the applicant’s conduct during a pursuit is under investigation – where the second respondent stood down the applicant from the QPS, pending the resolution of that investigation – where the applicant is alleged to have subsequently breached the terms of a domestic violence order, while stood down – where criminal charges have been brought against the applicant, as a result of his alleged breach of the domestic violence order – 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 investigations and 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 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

Minister for Immigration and Border Protection v Stretton (2016) 237 FCR 1; [2016] FCAFC 11, cited

Minister for Immigration and Citizenship v Li (2013) 249 CLR 332; [2013] HCA 18, cited

Police Service Administration Act 1990 (Qld), ss 6.1, 6.2, 6.3

COUNSEL:

W Sofronoff QC, with A Scott, for the applicant

S Brown QC, with S McLeod, for the respondents

SOLICITORS:

QPU Legal Group for the applicant

PSBA Legal Division for the respondents

On 14 December 2015, the second respondent, as delegate of the first respondent, made a decision under s 6.1 of the Police Service Administration Act 1990 (Qld) (“the Act”) to suspend the applicant from duty as a member of the Queensland Police Service. The suspension was with salary and allowances.
On 3 February 2016, the second respondent, as delegate of the first respondent, made a decision under s 6.3 of the Act to suspend the applicant from duty without salary and allowances.
The applicant seeks to review each of those decisions pursuant to the Judicial Review Act 1991 (“the JR Act”). The…

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.

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Details

Case: [2016] QSC 154
Decision Date: 15 July 2016

CaseChat Overview and Summary

The case of Hurley v Stewart involves a police officer in the Queensland Police Service who is challenging decisions made by the Assistant Commissioner of Police in relation to his suspension. The applicant, a senior sergeant with almost 30 years of service, was initially stood down from duty pending an investigation into his conduct during a pursuit and allegations of misconduct. Subsequently, the applicant was suspended without salary and allowances following an alleged breach of a domestic violence order and the filing of criminal charges against him. The applicant sought judicial review of the decisions to suspend him and to suspend him without salary and allowances, arguing that these decisions were unreasonable and thus an improper exercise of power.

The legal issues before the court were whether the decisions to suspend the applicant and to suspend him without salary and allowances were so unreasonable that no reasonable person could have made such decisions. The applicant contended that the decisions were unreasonable because they did not adequately consider his private interests, including the financial impact on his family, and failed to properly balance these interests against the public interest and the reputation of the police service.

The court found that the decisions were not unreasonable. The Assistant Commissioner had considered the seriousness of the allegations against the applicant, the conflict of interest created by the allegations, and the public interest in maintaining community confidence in the police service. The court held that the Assistant Commissioner was not persuaded that the applicant’s private interests outweighed those of the public and that the decisions were reasonable in the context of the statutory responsibilities of the Commissioner. The court also noted that the applicant had not provided any convincing evidence that his loss could not be mitigated by reasonable adjustments.

In conclusion, the court dismissed the application for judicial review. The decisions to suspend the applicant and to suspend him without salary and allowances were found to be reasonable exercises of the power granted to the Assistant Commissioner under the Police Service Administration Act 1990.

Orders

Orders of the court

The application for review is dismissed.

Background

Background to the litigation

The applicant seeks to review each of those decisions pursuant to the Judicial Review Act 1991 (“the JR Act”). The sole ground of review is that each of the decisions was an improper exercise of the power. At issue is whether each of the decisions was so unreasonable that no reasonable person could so exercise the power. Background The applicant was born on 25 April 1968. He has two children. He has been a member of the Queensland Police Service for almost 30 years. He holds the rank of senior sergeant. He has no qualifications or experience in other occupations. The first respondent is the Commissioner of Police. The second respondent is the Assistant Commissioner of Police in charge of the Ethical Standards Command, with responsibility for its management. Ethical Standards Command is responsible for the investigation of complaints relating to police misconduct and corruption. On 17 May 2015, the applicant was performing duties as a police officer within the Gold Coast police district when he became engaged in the pursuit of a stolen vehicle said to contain suspects responsible for a number of violent robbery offences. The pursuit was tracked from the air. At some point, officers involved in the pursuit on the ground were directed to terminate the pursuit. The applicant’s conduct in the pursuit was the subject of investigation by the Queensland Police Service Ethical Standards Command. The allegations the subject of that investigation were that the applicant had engaged in an unauthorised pursuit, drove a motor vehicle in a manner likely to endanger other road users and recklessly discharged his firearm. It is alleged the applicant continued the pursuit of the vehicle, contrary to a general instruction for officers to terminate the pursuit. It is further alleged the applicant drove his vehicle in a manner which caused the allegedly stolen vehicle to leave the roadway and that whilst that vehicle was attempting to further flee the scene, the applicant discharged his firearm. On 20 May 2015, the second respondent made a decision to stand down the applicant from duty pending the outcome of that investigation. As a consequence of that decision the applicant was no longer able to perform the duties of a police officer. He was no longer allowed to wear police uniform or use police identification. The applicant was, however, allowed to continue to perform administrative duties. The applicant performed those administrative duties as a civilian within the Queensland Police Service, under the supervision of another officer. In or about October 2015, a complaint was made by the applicant’s former partner, also a member of the Queensland Police Service, that the applicant had engaged in domestic violence. The applicant’s relationship with his ex-partner had broken down in June 2013. On 29 October 2015, the applicant consented, without admissions, to the imposition of a domestic violence order for a period of six months. The aggrieved person was his ex-partner. One of the conditions of that order was that the applicant be of good behaviour towards his ex-partner and not commit domestic violence.

Evidence

Evidence Before The Court

Relevantly, the notice of the decision to suspend the applicant without salary and allowances on 3 February 2016 stated:“Having considered all the materials available to me and the circumstances of this matter, I am of the view the conduct you are accused of committing is serious and escalating in nature, and if proven, is incompatible with your official duties and responsibilities as a police officer. This incompatibility, has created a conflict of interest and regardless of it being actual or apparent, I have determined this conflict of interest must be resolved in favour of the Police Service and the public interest.I note your submissions as to the effect any decision to suspend you without salary and allowances might have on your private interests, particularly your children and elderly parents. I have considered your submissions and am not persuaded your private interests outweigh those of the Police Service and the public interest. Nothing in your submissions convinces me your loss can’t be mitigated by reasonable adjustment by you of your private interests. I make the observation that pursuant to section 4.8 of the Act, the Commissioner has the responsibility for the efficient and proper administration, management and functioning of the Police Service in accordance with law. Critical to the Commissioner’s responsibilities are the protection of the reputation of the Police Service and maintaining community confidence which are essential factors in our ability as an organisation to fulfil our statutory functions. In accordance with Section 6.3 of the Act, I have determined you are to be suspended from duty without salary and allowances until further advised. The suspension without salary and allowances shall take effect form midnight on 3 February 2016 and will remain in force until advised otherwise. The suspension with salary and allowances imposed by me on 14 December 2015 shall continue until that time and date.”Evidence Calvin Gnech, a solicitor with the Queensland Police Union Legal Group, provided an affidavit detailing the circumstances of the allegations against the applicant in relation to the police pursuit, the making of the domestic violence order and its alleged breach. In addition, Mr Gnech provided information as to the extreme delays in the determination of police disciplinary matters, the consequences generally for police officers charged with disciplinary breaches who are deprived of salary and allowances, and the specific effect on the applicant of any decision to suspend him without salary and allowances. That latter information was based on the applicant’s instructions. The respondent objected to the information in Mr Gnech’s affidavit that detailed the determination of police disciplinary matters on the basis it contained opinion or comment or was irrelevant. Whilst those statements are 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.

Decision

Reasons for decision

On 3 February 2016, the second respondent made the decision to suspend the applicant without salary and allowances. The applicant was served with a notice informing him of that decision. The decisions Relevantly, the notice of the decision to suspend the applicant on 14 December 2015 contained the following:“It has been brought to my notice by the Chief Superintendent, District Officer, Gold Coast District that investigations have commenced into allegations that you breached a domestic violence and family protection order issued on 29 October 2015.At the time of the breach you were also subject of a stand down notice issued on 20 May 2015 regarding allegations that you, engaged in an unauthorised pursuit, drove a motor vehicle in a manner likely to endanger other road users, and recklessly discharged your firearm.Having considered Executive Briefing Notes dated 20 May 2015 and 14 December 2015, and a witness statement dated 11 December 2015 (attached) it appears to me on reasonable grounds that you are liable for disciplinary action under section 7.4 of the Police Service Administration Act 1990 (the Act).After considering relevant factors, in particular the serious nature of the allegations and the direct conflict between the alleged conduct and your functions as a police officer, I have decided to take suspension action under the Act. Under section 6.1 of the Act and the Human Resource Delegations and Approval Authorities you are suspended from duty without the loss of salary and allowances.” Relevantly, the notice of the decision to suspend the applicant without salary and allowances on 3 February 2016 stated:“Having considered all the materials available to me and the circumstances of this matter, I am of the view the conduct you are accused of committing is serious and escalating in nature, and if proven, is incompatible with your official duties and responsibilities as a police officer. This incompatibility, has created a conflict of interest and regardless of it being actual or apparent, I have determined this conflict of interest must be resolved in favour of the Police Service and the public interest.I note your submissions as to the effect any decision to suspend you without salary and allowances might have on your private interests, particularly your children and elderly parents. I have considered your submissions and am not persuaded your private interests outweigh those of the Police Service and the public interest. Nothing in your submissions convinces me your loss can’t be mitigated by reasonable adjustment by you of your private interests. I make the observation that pursuant to section 4.8 of the Act, the Commissioner has the responsibility for the efficient and proper administration, management and functioning of the Police Service in accordance with law. Critical to the Commissioner’s responsibilities are the protection of the reputation of the Police Service and maintaining community confidence which are essential factors in our ability as an organisation to fulfil our statutory functions. In accordance with Section 6.3 of the Act, I have determined you are to be suspended from duty without salary and allowances until further advised. The suspension without salary and allowances shall take effect form midnight on 3 February 2016 and will remain in force until advised otherwise. The suspension with salary and allowances imposed by me on 14 December 2015 shall continue until that time and date.”Evidence

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

CITATION:	Hurley v Stewart & Anor [2016] QSC 154
PARTIES:	CHRIS HURLEY (applicant) v IAN STEWART COMMISSIONER OF POLICE, QUEENSLAND POLICE SERVICE (first respondent) ASSISTANT COMMISSION CLEM O’REGAN (second respondent)
FILE NO/S:	SC No 1271 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 the applicant’s conduct during a pursuit is under investigation – where the second respondent stood down the applicant from the QPS, pending the resolution of that investigation – where the applicant is alleged to have subsequently breached the terms of a domestic violence order, while stood down – where criminal charges have been brought against the applicant, as a result of his alleged breach of the domestic violence order – 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 investigations and 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 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 Minister for Immigration and Border Protection v Stretton (2016) 237 FCR 1; [2016] FCAFC 11, cited Minister for Immigration and Citizenship v Li (2013) 249 CLR 332; [2013] HCA 18, cited Police Service Administration Act 1990 (Qld), ss 6.1, 6.2, 6.3
COUNSEL:	W Sofronoff QC, with A Scott, for the applicant S Brown QC, with S McLeod, for the respondents
SOLICITORS:	QPU Legal Group for the applicant PSBA Legal Division for the respondents