Nesterowich v Acting Assistant Commissioner Deborah Platz - [2017] QCAT 139

CITATION:	Nesterowich v Acting Assistant Commissioner Deborah Platz [2017] QCAT 139
PARTIES:	Kurt Alexander Nesterowich (Applicant)
v
Acting Assistant Commissioner Deborah Platz (Respondent)
APPLICATION NUMBER:	OCR190-16
MATTER TYPE:	Occupational regulation matters
HEARING DATE:	16 March 2017
HEARD AT:	Brisbane
DECISION OF:	Member Howard
DELIVERED ON:	3 May 2017
DELIVERED AT:	Brisbane
ORDERS MADE:	1. The review application of Kurt Alexander Nesterowich is struck out.
CATCHWORDS:	POLICE – INTERNAL ADMINISTRATION – DISCIPLINE AND DISMISSAL FOR MISCONDUCT – QUEENSLAND – Review of Disciplinary Decision – Jurisdiction to Review – where decision made to terminate employment during initial probation of police officer – where application for strike out – whether decision is a reviewable decision – whether decision is a decision about an allegation of corruption Crime and Corruption Commission Act 2001 (Qld), s 219BA, Schedule 2 Police Service Administration Act 1990 (Qld), s 1.4, s 5.12, s 7.4 Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 47 Arndt v Crime and Misconduct Commission [2013] QCATA 340 Crime and Corruption Commission v Dawes and Anor [2017] QCAT 66 Police Service Board v Morris (1985) 156 CLR 397 Saraswati v The Queen (1991) 172 CLR 1
REPRESENTATIVES:
APPLICANT:	Mr T Schmidt, of Counsel, instructed by Potts Lawyers, represented Kurt Alexander Nesterowich
RESPONDENT:	Mr S McLeod, of Counsel, instructed by Queensland Police Service Legal Unit, represented the Acting Assistant Commissioner

REASONS FOR DECISION

Mr Kurt Nesterowich filed an application for review of a decision of Acting Assistant Commissioner Deborah Platz to terminate his employment purportedly under s 5.12(4) of the Police Service Administration Act 1990 (Qld) (PSA Act). The Acting Assistant Commissioner subsequently filed an application to strike out the review application on the basis that her decision is not a reviewable decision.
Mr Nesterowich submits that the decision made is in reality a decision taken in disciplinary action for alleged misconduct which should properly have been brought pursuant to s 7.4 of the PSA Act. Therefore, he says the decision is a reviewable decision under the Crime and Corruption Act 2001 (Qld) (CCC Act), because it is a ‘decision made in relation to an allegation of corruption’ against him.[1] The extended definition of ‘corruption’ in the CCC Act includes police misconduct.[2]
[1]CCC Act, s 219BA(1)(a).
[2]CCC Act, Schedule 2, definition of ‘corruption’.
I have concluded that the Commissioner’s power in s 5.12(4) to terminate the employment of an officer on probation is separate and distinct from disciplinary action that may be taken under s 7.4 of the PSA Act. The Acting Assistant Commissioner was entitled to terminate Mr Nesterowich’s employment under s 5.12(4), and she did so. It follows that the decision is not a reviewable decision and that the application for review should be struck out, pursuant to the Queensland Civil and Administrative Tribunal Act 2009 (Qld) (QCAT Act).[3]
[3]QCAT Act, s 47.

The decision made by the Acting Assistant Commissioner

On the face of it, the Acting Assistant Commissioner made a decision, exercising 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: [2017] QCAT 139
Decision Date: 3 May 2017

CaseChat Overview and Summary

Nesterowich v Acting Assistant Commissioner Deborah Platz was a case involving a police officer, Kurt Alexander Nesterowich, challenging the decision to terminate his employment during his probationary period. The dispute centred on whether the decision to terminate Nesterowich's employment constituted a reviewable decision under the Crime and Corruption Commission Act 2001 (Qld). The court was required to determine whether the decision to terminate Nesterowich's employment was a reviewable decision and whether it was a decision about an allegation of corruption. The definition of a reviewable decision under the Act includes a decision made in relation to an allegation of corruption against a prescribed person, or a finding that corruption is proved against an officer. The Act also defines a prescribed person as someone against whom a disciplinary declaration has been made or, in relation to an appeal, someone who should have been made the subject of a disciplinary declaration.

The court examined the statutory framework and found that the decision to terminate Nesterowich's employment during his probationary period did not constitute a reviewable decision under the Act. The court concluded that the decision to terminate employment during probation did not involve an allegation of corruption or a finding that corruption was proved. Instead, it was a decision made under the Police Service Administration Act 1990, which deals with probationary appointments and the grounds for termination of such appointments. Therefore, the court held that the decision was not a reviewable decision and dismissed the application. The court struck out Nesterowich's review application, confirming that the decision to terminate his employment was not subject to review under the Crime and Corruption Commission Act 2001 (Qld).

Orders

Orders of the court

1. The review application of Kurt Alexander Nesterowich is struck out.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

Reviewable decision is defined in the Crime and Corruption Commission Act 2001 (Qld) (CCC Act) in s 219BA as follows:219BA Meaning of reviewable decision(1) A reviewable decision means—(a)a decision made in relation to an allegation of corruption against a prescribed person, other than a decision made by a court or QCAT;[6] or(b)a finding mentioned in the Police Service Administration Act 1990, section 7.4(2A)(b) or 7A.5(1)(b) that corruption is proved against an officer.[6]Emphasis added.(2) In this section—decision, made in relation to a disciplinary allegation of corruption, [7] if a disciplinary declaration is made, includes the disciplinary declaration.[7]Emphasis added.Note—A reviewable decision may also involve a failure to make a disciplinary declaration.disciplinary declaration means a disciplinary declaration made under—(a)the Public Service Act 2008, section 188A; or(b)the Police Service Administration Act 1990, section 7A.2(2).prescribed person, in relation to a prescribed person mentioned in section 50(4), definition prescribed person, paragraphs (a)(ii) and (b)(ii), means—(a)a prescribed person against whom a disciplinary declaration has been made; or(b)in relation to an appeal started by the commission under section 219G—(i)a prescribed person mentioned in paragraph (a); or(ii)a prescribed person against whom a disciplinary declaration has not been made if a ground of appeal states that a disciplinary declaration should have been made. Corruption is defined in Schedule 2 of the CCC Act to mean:corruption means corrupt conduct or police misconduct.[8][8]Emphasis added. Police misconduct is defined in Schedule 2 to mean:police misconduct means conduct, other than corrupt conduct, of a police officer that—(a) is disgraceful, improper or unbecoming a police officer; or(b) shows unfitness to be or continue as a police officer;[9] or(c) does not meet the standard of conduct the community reasonably expects of a police officer.[9]Emphasis added. It is useful to set out in full sections 5.12 and 7.4 of PSA Act:5.12 Appointment on probation(1) This section does not apply in relation to an appointment as an officer made on a contract basis.(2) An appointment as an officer of a person who was not an officer immediately before the appointment is an appointment on probation—(a)for a period not less than 12 months determined by the commissioner; or(b)in the absence of such a determination, for a period of 12 months.[10][10]Emphasis added.(3) Unless the position as an officer is advertised in the Queensland Police Gazette as one to which appointment is to be made without a period of probation, an appointment of an officer to a position on promotion is an appointment on probation—(a)for a period not less than 6 months determined by the commissioner; or(b)in the absence of such a determination—for a period of 6 months.(4) The commissioner may—(a)in respect of an appointee referred to in subsection (2)—(i)at any time during the initial period of probation or during any extension of a period of probation, terminate the employment of the appointee; or(ii)at the end of any period of probation, confirm the appointment, extend or further extend the period of probation or terminate the employment of the appointee; [11] or[11]Emphasis added.(b)in respect of an appointee referred to in subsection (3) whose appointment is on probation—(i)at any time during the initial period of probation or during any extension of a period of probation, terminate that appointment; or(ii)at the end of any period of probation, confirm the appointment, extend or further extend the period of probation or terminate that appointment.(5) If an appointment is terminated under subsection (4)(b), the person who was the appointee is to be retained in employment as an officer at a level of salary not less than the level of salary of the person immediately before the appointment that is terminated until—(a)the person is appointed to another position in the service; or(b)the person is otherwise dealt with under this Act.7.4 Disciplinary action(1) In this section—officer, in relation to a person liable to disciplinary action, includes a police recruit.prescribed officer means an officer authorised by the regulations to take disciplinary action in the circumstances of any case in question.QCAT information notice means a notice complying with the QCAT Act, section 157(2).(2) An officer is liable to disciplinary action in respect of the officer’s conduct, which the prescribed officer considers to be misconduct or a breach of discipline on such grounds as are prescribed by the regulations.(2A) If the prescribed officer—(a)decides an allegation of misconduct brought against the officer;[12] or[12]Emphasis added.(b)when deciding an allegation of breach of discipline brought against the officer, finds that misconduct is proved against the officer;the commissioner must give a QCAT information notice to the officer and the Crime and Corruption Commission for the decision or finding within 14 days after the making of the decision or finding.(3) Without limiting the range of disciplines that may be imposed by the prescribed officer by way of disciplinary action, such disciplines may consist of the following—(a)dismissal;(b)demotion in rank;(c)reprimand;(d)reduction in an officer’s level of salary;(e)forfeiture or deferment of a salary increment or increase;(f)deduction from an officer’s salary payment of a sum equivalent to a fine of 2 penalty units.(4) Every order made by way of disciplinary action takes effect in law and is to be given effect.(5) To remove any doubt, it is declared that a reference in the QCAT Act, section 157(2) to a decision includes a reference to a finding.

Ratio Decidendi

Legal Principle Established

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