Nesterowich v Platz

Case [2018] QCATA 119

QUEENSLAND CIVIL AND
ADMINISTRATIVE TRIBUNAL


CITATION:

Nesterowich v Platz [2018] QCATA 119

PARTIES:

KURT ALEXANDER NESTEROWICH
(applicant/appellant)
v

ACTING ASSISTANT COMMISSIONER DEBORAH PLATZ

(respondent)

APPLICATION NO/S:

APL171-17

ORIGINATING APPLICATION NO/S:

OCR190-16

MATTER TYPE:

Appeals

DELIVERED ON:

3 September 2018

HEARING DATE:

12 December 2017

HEARD AT:

Brisbane

DECISION OF:

Judge Sheridan, Deputy President
Member McLennan

ORDERS:

The decision to strike out the review application of Kurt Alexander Nesterowich is confirmed.

CATCHWORDS:

APPEAL – LEAVE TO APPEAL – OCCUPATIONAL REGULATION – POLICE OFFICER – where decision made to terminate employment during initial probation of police officer – where applicant originally sought review of the decision through QCAT – where the appeal was struck out on the basis that the decision was not a reviewable decision – where appeal on a question of law – whether the only power available to the Acting Assistant Commissioner to terminate employment upon a finding of misconduct arises under s 7.4 of the Police Service Administration Act 1990 (Qld) – whether a finding of misconduct made under s 5.12 of the Police Service Administration Act 1990 (Qld), resulting in a decision to terminate employment, is a decision made in relation to an allegation of corruption and therefore reviewable under the Crime and Corruption Act 2001 (Qld)

Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 142(3)(b), s 143, s 146(a), s 157
Police Service Administration Act 1990 (Qld), s 1.4, s 4.8, s 5.2(5), s 5.2(6), s 5.11, s 5.12, s 7.4,
Police Service (Discipline) Regulations 1990 (Qld), reg 4, reg 5, reg 6, reg 7, reg 8, reg 9, reg 10 
Summary Offences Act 2005 (Qld), s 6
Crime and Corruption Act 2001 (Qld), s 50(4), s 219B, s 219BA, s 219C, s 219G, s 219H, s 219J, Schedule 2

Arndt v Crime and Misconduct Commission & Anor [2013] QCATA 340
Commissioner of Police v Eaton [2013] HCA 2
Crime & Corruption Commission v Dawes & Anor [2017] QCAT 066
Crime and Corruption Commission v Deputy Commissioner Barnett & Anor [2017] QCA 320
Ex parte Wurth; Re Tully (1954) 55 SR (NSW) 47
Irwin v Stewart (Commissioner of Police) & Anor [2015] QSC 350
Nesterowich v Acting Assistant Commissioner Deborah Platz [2017] QCAT 139
O'Rourke v Miller (1985) 156 CLR 342
Police Service Board v Morris (1985) 156 CLR 397
R v Police Commissioner; Ex parte Boe (1987) 2 Qd R 76
Ridge v Baldwin (1964) AC 40

APPEARANCES & REPRESENTATION:

Applicant:

S W Zillman, with T E Schmidt, instructed by the Queensland Police Union Legal Group

Respondent:

S A McLeod instructed by the Queensland Police Service Legal Group

REASONS FOR DECISION   

  1. The appellant was a probationary constable in the Queensland Police Service (QPS).  This is an appeal by him against the decision of the tribunal to strike out the application to review the decision made by the respondent in her position of Acting Assistant Commissioner[1] to terminate his employment as a probationary officer under s 5.12(4) of the Police Service Administration Act

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Details
AGLC
Nesterowich v Platz [2018] QCATA 119
Case
[2018] QCATA 119
Decision Date

CaseChat Overview and Summary

Nesterowich v Platz is an appeal against a decision to terminate the employment of the appellant, Kurt Nesterowich, during his probationary period as a police officer with the Queensland Police Service. Nesterowich had been employed as a probationary constable and was due to be confirmed in his role upon the successful completion of a First Year Constable Program. However, he was issued a Notice to Show Cause and Make Submissions regarding allegations of improper conduct while off duty, which led to a decision to terminate his employment. Nesterowich initially sought review of the termination decision through the Queensland Civil and Administrative Tribunal (QCAT), but his application was struck out as the decision was not considered reviewable. Nesterowich now appeals on a question of law, specifically whether the only power available to the Acting Assistant Commissioner to terminate employment upon a finding of misconduct arises under section 7.4 of the Police Service Administration Act 1990 (Qld), or whether a finding of misconduct made under section 5.12 of the same Act, resulting in a decision to terminate employment, is a decision made in relation to an allegation of corruption and therefore reviewable under the Crime and Corruption Act 2001 (Qld).

The court considered the statutory framework governing the employment of police officers in Queensland and examined the specific provisions of the Police Service Administration Act 1990 (Qld) and the Crime and Corruption Act 2001 (Qld). The court determined that the power to terminate employment upon a finding of misconduct during a probationary period arises under section 7.4 of the Police Service Administration Act 1990 (Qld), and that such a decision is not subject to review under the Crime and Corruption Act 2001 (Qld) as it is not a decision made in relation to an allegation of corruption. The court concluded that the QCAT did not have jurisdiction to review the decision to terminate Nesterowich's employment, and therefore the appeal was properly struck out.

ORDERS:
The appeal is dismissed, and the decision to strike out the review application of Kurt Alexander Nesterowich is confirmed.

Orders

Orders of the court

The decision to strike out the review application of Kurt Alexander Nesterowich is confirmed.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

The appellant commenced employment with the QPS as a police recruit on 22 September 2014 and was sworn in and commenced duty as a (probationary) constable on 9 April 2015.[3] He was due “to be confirmed on 9 April 2016 upon successful completion of the First Year Constable Program”.[4] [3]Decision of Show Cause and Subsequent Decision of Termination of Employment, dated 29 September 2016 (Termination Decision), 2.[4]Termination Decision, 2. The Notice to Show Cause and Make Submissions in relation to Probationary Appointment (Notice), issued to the appellant on 14 June 2016 pursuant to s 5.12(4) of the PSA Act,[5] alleged that on 4 December 2015 whilst off duty the appellant’s conduct was improper. The Notice informed the appellant that the conduct was being considered, as well as the appropriate action that ought to be taken in relation to his probation pursuant to s 5.12(4) of the PSA Act.[6] [5]The Notice is dated 14 June 2016.[6]Notice, 1. The appellant was advised that, in making a decision as to his probation, it was being considered whether he was a fit and proper person to have his appointment confirmed, and that, if not satisfied that he was a fit and proper person to be confirmed, his employment may be terminated or his period of probation extended. Specifically, it was alleged as follows:That on the 4th day of December 2015 at Fortitude Valley, Brisbane your conduct was improper in that you whilst you were off duty: (a) behaved in a manner towards other police officers that was unprofessional, argumentative and unwarranted;(b) failed to meet the standards expected of a First Year Constable in the Queensland Police Service;(c) failed to meet reasonable standards expected by the general public of Queensland when dealing with police officers.Further and better particulars:1. Your off duty behaviour is included under s4.9 of the Police Service Administration Act 1990.2. On 4th December 2015, you initiated contact with three police officers performing general duties at the top of the Brunswick Street Mall in Fortitude Valley, Brisbane.3. You approached Constable Hannah JANSON and stood very close to her which made her feel immediately uncomfortable.4. You touched the police radio fitted to Constable JANSON’s load bearing vest at chest level. (Constable JANSON is a female police officer)5. You offered unwanted operation advice to Constable JANSON in relation to the method of wearing official police equipment.6. Whilst waiting at the pedestrian crossing, you looked back at the three police officers, smirked and then extended your middle finger towards them.7. You referred to the three police officers whilst indicating to each one by pointing to them individually and then saying words to the effect “no cause he’s a cunt, she’s a cunt and he’s a cunt.”8. A strong smell of liquor was detected on your breath at the time of the incident. 9. You were continually rude, argumentative and belittling during the interaction with the three police officers.10. You have failed in your commitment to the highest ethical standards under the Queensland Public Service Code of Conduct. In particular, it has not been of the highest ethical standards. You have also failed in your commitment to demonstrating respect for all persons, whether fellow employees, clients or members of the public.11. You have failed to maintain appropriate standards of personal conduct by virtue of 2012/33 Standard of Practice, Professional Conduct. You have also failed to treat all persons with respect and dignity. You have also inappropriately distracted other members of the Queensland Police Service from carrying out their duties.12. You have failed to adhere to the Queensland Police Service member’s values as outlined in the Queensland Police Service Strategic Plan 2015-2019. In particular, you have failed to display courage by not doing the right thing, you have not been fair by not treating people with respect and you have failed to display pride by your behaviour as an off-duty Queensland Police Officer. [7] [7]Notice, 2-3.

Ratio Decidendi

Legal Principle Established

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