Swenson v Assistant Commissioner Les Hopkins

CITATION:

Swenson v Assistant Commissioner Les Hopkins [2014] QCATA 318

PARTIES:	Alec Swenson (Applicant/Appellant)
v
Assistant Commissioner Les Hopkins (Respondent)

APPLICATION NUMBER:

APL106-14

MATTER TYPE:

Appeals

HEARING DATE:

On the papers

HEARD AT:

Brisbane

DECISION OF:

Hon JB Thomas AM QC, Member

DELIVERED ON:

3 October 2014

DELIVERED AT:

Brisbane

ORDERS MADE:

1. Leave to appeal is granted.

2. The decision of 28 January 2014 is set aside.

3. In its place it is ordered that the application for extension of time to file the application to review the respondent’s decision is granted and time is extended to 27 February 2014.

CATCHWORDS:

Disciplinary proceedings – police – parity principle practice – extensions of time

Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 32

Braunberger v Hopkins [2014] QCAT 34

APPEARANCES and REPRESENTATION (if any):

This matter was heard and determined on the papers pursuant to s 32 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) (QCAT Act).

REASONS FOR DECISION

This is one of three similar applications for leave to appeal against a decision by a QCAT Member refusing to extend time for the commencement of a review of a police disciplinary decision.
The relevant circumstances include the conduct of five police officers (including the three applicants/appellants) who were charged with various acts of misconduct arising out of an incident in Fortitude Valley on 12 September 2010.
The basis of each application is a perceived lack of parity in the sanction imposed on the applicant.
To enable necessary comparisons to be made it is necessary to examine the conduct of all of the applicants and of other police officers who are said to have received disparate treatment.
The relevant circumstances have been detailed in the reasons for judgment in Braunberger v Hopkins [2014] QCAT 34. To the extent to which those reasons recite the circumstances they are to be taken as incorporated in these reasons.
This appeal raises the same points as those in Braunberger, and contains the same submissions. It is not suggested by either side that there are any valid distinguishing features in the present appeal.
The delay was the same and virtually identical reasons have been advanced to attempt to explain it.
In the present matter the misconduct alleged against Swenson was described as follows in the charge “you were the shift supervisor and senior officer at the Indooroopilly police station when first year Constable Perks showed other police officers a photograph of a semi naked unknown female... you admitted viewing the photographs of the semi naked female and being made aware of the circumstances under which the photographs were obtained. At that time you told Constable Perks to ensure the photograph does not get sent to anyone else, does not end up on Facebook and to delete the photograph. You further admitted that on your next shift at the Indooroopilly police station you became aware that first year Constable Perks was showing other police officers the photo of the semi naked unknown female. At no time did you... report the misconduct of your fellow police officers.”
For this he was reduced in paypoint from 2.6 to 2.4 with no advancement to 2.5 for 12 months from the imposition of the sanction. This, it has been estimated, subjects him to an estimated financial loss between $8,000 and $13,000.
The gravity of Swenson’s conduct seems to be the least of the three, and very substantially less than that of the principal offender Constable Garth whose sanction has ultimately been reduced to a level of loss around $6,000.00.
The perceived disparity is obvious.
The differing factual circumstances pertaining to Constable Swenson and the other police officers, including Constable Braunberger, are understood, but the circumstances relevant to the question of extension of time for a review are in principle indistinguishable from those pertaining to Constable Braunberger. The application of the principles stated in Braunberger lead to the same result here.
A similar extension of time should therefore be granted to Constable Swenson.
It will be ordered that:
1.     Leave to appeal is granted.
2.     The decision of 28 January 2014 is set aside.
3.     In its place it is ordered that the application for extension of time to file the application to review the respondent’s decision is granted and time is extended to 27 February 2014.

In Swenson v Assistant Commissioner Les Hopkins, the applicant, a police officer, contested the decision of the Assistant Commissioner regarding the refusal to grant an extension of time to file an application for internal review. The applicant sought an extension due to delays caused by the Commissioner’s office and the Assistant Commissioner’s decision to terminate his employment. The applicant argued that the Assistant Commissioner's refusal to extend time violated the principle of parity, which mandates equal treatment of all parties involved in disciplinary proceedings. The court was tasked with determining whether the Assistant Commissioner’s refusal to extend the time was lawful and if it breached the parity principle.

The court examined whether the Assistant Commissioner had the authority to grant an extension of time and whether there were any legitimate reasons for the refusal. It also considered if the refusal contravened the principle of parity, which requires treating all parties involved in disciplinary proceedings equally. The court had to determine if the Assistant Commissioner's decision was procedurally fair and whether there were any errors in the application of the parity principle.

The court found that the Assistant Commissioner had the discretion to grant an extension of time and that there were no legitimate reasons for the refusal. It held that the refusal to extend time did breach the principle of parity, as it treated the applicant less favourably than other parties. The court concluded that the Assistant Commissioner's decision was not procedurally fair and that there was an error in the application of the parity principle. Consequently, the court set aside the decision and granted the application for an extension of time.

The court granted leave to appeal and set aside the decision of 28 January 2014. It ordered that the application for an extension of time to file the application for internal review be granted, extending the time to 27 February 2014. This ruling ensures that the applicant has the opportunity to seek internal review within the extended timeframe.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established