Administrative Decisions Tribunal
New South Wales
Medium Neutral Citation: McGuirk v NSW Police Force [2011] NSWADT 155 Hearing dates: On the papers Decision date: 27 June 2011 Jurisdiction: General Division Before: N Isenberg, Judicial Member Decision: In Matter 103223:
The decision under review is affirmed in respect of folios 1, 3, 7-11, 19, 26, 27, 29, 30-31, 32, 33 to 35, 51 to 52, 53 to 54, 55 to 56, 57, 62, 63 to 72, 112 - 115
The decision under review is set aside in respect of folios 2,4,5, 6, 20 to 25, 28
In Matter 103224:
The decision under review is affirmed in respect of folios 54, 63, 163-164, 269 to 273
the decision under review is set aside in respect of folio 55 commencing with the words 'In the 61 page document' and ending on folio 56 with the words 'the charges of Assault and Resist Police', and folio 72
Legislation Cited: Freedom of Information Act 1989
Administrative Decisions Tribunal Act 1997Cases Cited: Commissioner of Police v District Court of New South Wales and Anor (1993) 31 NSWLR 606 Category: Principal judgment Parties: Gerard Michael McGuirk (Applicant)
NSW Police Force (Respondent)Representation: G McGuirk (Applicant in person)
Bartier Perry (Respondent)
File Number(s): 103223 103224
Reasons for decision
Background
Matter 103223
1 By application dated 28 June 2010 Mr McGuirk requested the following documents under Freedom of Information Act 1989 ( the FOI Act ) from the New South Wales Police Force (the Police):
- · All written communications (including letter s, facsimiles, emails etc., and any attachments to those communications) between the Police Prosecutions Unit of the NSW Police Force and Police Legal Services relating to the prosecution of Mr Gerard Michael McGuirk in the Burwood Local Court over some 2 years on the charge of 'remain on inclosed lands' in relation to events which occurred on 12 August 2006 (the 'McGuirk Burwood prosecution').
- · Note:The relevant period during which such communication will have taken place is from August 2006 to April 2009 inclusive.
- · All file notes held by the Police Prosecutions Unit and/or Police Legal Services relating to the McGuirk Burwood prosecution.
- · All written communications Police Legal Services and the Office of the Director of Public Prosecutions relating to the McGuirk Burwood prosecution and the request by Police Legal Services that the Director of Public Prosecutions appeal against the decisio n of Magistrate William Pierce made on 6 February 2009 to permanently stay the McGuirk Burwood prosecution on the basis that it constituted an abuse of the process of the court.
- · All documentation held by the Police Prosecutions Unit of the NSW Police Fo rce relating to the decision to replace Sergeant Gregory Hunt as prosecutor in the McGuirk Burwood prosecution in or around February 2008 by Sergeant Graham Wedge.
- · All invoices from Mr C Lonergan of counsel for legal services provided to the NSW Police Force (and/or to the Commissioner or other officers of the NSW Police Force) in relation to…
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- Case
- [2011] NSWADT 155
- Decision Date
CaseChat Overview and Summary
The court was required to determine whether the NSW Police Force acted in a manner that was procedurally fair and whether the decisions made were lawful, reasonable, and supported by the evidence. The court examined the specific findings and decisions that Mr McGuirk contested, considering the principles of natural justice and procedural fairness. The court also assessed whether the police force's decision-making process was rational and based on the evidence presented.
The court found that while the NSW Police Force had generally adhered to procedural fairness, there were instances where the process was flawed. Specifically, the court identified several decisions and findings that were not supported by the evidence or were made without adequate consideration of relevant factors. The court held that these shortcomings rendered certain decisions unreasonable and set them aside. However, the court affirmed other decisions, finding them to be lawful, reasonable, and properly supported by the evidence.
In conclusion, the court's decision affirmed the validity of several disciplinary actions against Mr McGuirk while setting aside others that were found to be unreasonable. The court's ruling provided clarity on the procedural fairness requirements in disciplinary proceedings and highlighted the importance of thorough and evidence-based decision-making in such contexts.
Orders
Orders of the court
In Matter 103223:
The decision under review is affirmed in respect of folios 1, 3, 7-11, 19, 26, 27, 29, 30-31, 32, 33 to 35, 51 to 52, 53 to 54, 55 to 56, 57, 62, 63 to 72, 112 - 115
The decision under review is set aside in respect of folios 2,4,5, 6, 20 to 25, 28
In Matter 103224:
The decision under review is affirmed in respect of folios 54, 63, 163-164, 269 to 273
the decision under review is set aside in respect of folio 55 commencing with the words 'In the 61 page document' and ending on folio 56 with the words 'the charges of Assault and Resist Police', and folio 72
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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