Jarvis v Atkinson

[2013] QSC 349

SUPREME COURT OF QUEENSLAND

CITATION:

Jarvis v Atkinson [2013] QSC 349

PARTIES:

HANS JOHANN JARVIS
(applicant)
v
ROBERT ATKINSON

(respondent)

FILE NO/S:

BS 11791 of 2012

DIVISION:

Trial Division

PROCEEDING:

Originating Application

ORIGINATING COURT:

Supreme Court

DELIVERED ON:

20 December 2013

DELIVERED AT:

Brisbane

HEARING DATE:

13 September 2013

JUDGE:

Philip McMurdo J

ORDER:

The decision of the respondent, as set out in the memorandum signed by him dated 23 October 2012, be set aside and the matter to which the decision relates be referred to the Commissioner of the Police Service for consideration under s 9.5 of the Police Service Administration Act 1990 (Qld).

CATCHWORDS:

ADMINISTRATIVE LAW – JUDICIAL REVIEW – GROUNDS OF REVIEW – IMPROPER PURPOSES – where the applicant was a police officer – where the applicant suffered a spinal injury – where the applicant’s injury prevented him from performing all operational duties of a police officer – where the applicant expressed an unwillingness to move to take up a non-operation position and began the process of retiring on medical grounds, believing that he would be assessed as permanently and totally disabled – where the applicant was assessed as permanently and partially disabled and consequently no longer minded to retire – where it was decided the applicant should retire on medical grounds – where that decision was withdrawn and the applicant agreed to be employed by the Queensland Police Service as a staff member, but to cease being a police officer – where the applicant sought to review the decision that he be retired as a police officer – where the respondent made the decision to confirm the transition of the applicant to a staff member position – where the respondent’s decision was based on the factual assumption that the applicant was unwilling to transfer to another location – where the applicant was not given the opportunity to be heard on his preparedness to transfer – where the applicant seeks judicial review of the respondent’s decision pursuant to the Judicial Review Act 1991 (Qld) – whether the respondent’s decision was an improper exercise of power – whether the applicant was denied procedural fairness by the respondent

Judicial Review Act 1991 (Qld), s 20(2)(e), s 23(b), s 23(g)
Police Service Administration Act 1990 (Qld), s 8.3, s 9.3

Rucker v Stewart [2013] QSC 182, considered

COUNSEL:

D Williams for the applicant

S McLeod for the respondent

SOLICITORS:

McInnes Wilson Lawyers for the applicant

Solicitor for the QPS for the respondent

1. The applicant had been a police officer for approximately 20 years when, on 29 August 2009, he suffered a fracture to his cervical spine.  As a result of this injury, which was not caused by his work, he became permanently disabled from performing all of the duties of an operational police officer.

1. He was away from work until March 2010 when he returned to the Innisfail police station where he held the position of Senior Constable, General Duties.  He also held the positions of Senior Training Officer…