William Johnson v Assistant Commissioner Maurice Carless

SUPREME COURT OF QUEENSLAND

CITATION:

William Johnson v Assistant Commissioner Maurice Carless & Anor [2022] QSC 146

PARTIES:

WILLIAM JOHNSON

(applicant)

v
ASSISTANT COMMISSIONER MAURICE CARLESS

(first respondent)

AND

COMMISSIONER OF THE QUEENSLAND POLICE SERVICE
(second respondent)

FILE NO/S:

BS 7674 of 2021

DIVISION:

Trial Division

PROCEEDING:

Hearing

ORIGINATING COURT:

Supreme Court of Queensland

DELIVERED ON:

13 July 2022

DELIVERED AT:

Brisbane

HEARING DATE:

2 June 2022

JUDGE:

Callaghan J

ORDERS:

1.   The disciplinary proceeding purportedly commenced by the disciplinary hearing notice being issued by the first respondent on 22 April 2021 is invalid.

2.   The respondents are to pay the applicant’s costs.

CATCHWORDS:

ADMINISTRATIVE LAW – JUDICIAL REVIEW – GROUNDS OF REVIEW – JURISDICTIONAL MATTERS – where a delegate of the second respondent referred a complaint against the applicant to a prescribed officer – where the rank of the prescribed officer was specified by the second respondent’s delegate as chief superintendent at the Office of State Discipline – where a disciplinary proceeding notice was instead issued by the first respondent – whether the first respondent had jurisdiction to commence disciplinary proceedings against the applicant – whether “a prescribed officer” under s 7.11(1) of the Police Service Administration Act 1990 (Qld) must be the same as “the prescribed officer” under s 7.11(2) of that Act

Police Service Administration Act 1990 (Qld) ss 2.2, 7.10, 7.11, 7.35, 7.43
Judicial Review Act 1991 (Qld) ss 20(2)(c), 20(2)(d), 21(2)(c), 21(2)(d)

COUNSEL:

M Black with J Liddle for the applicant
M R Wilkinson for the respondents

SOLICITORS:

Gnech & Associates for the applicant

QPS Legal Unit for the respondents

1. The applicant is a Sergeant of the Queensland Police Service.  It is alleged that on 9 October 2019 he used unnecessary force against civilians.  As a result, he faces disciplinary proceedings.

2. Disciplinary proceedings against police officers are regulated by the provisions of the Police Service Administration Act 1990 (Qld) (the Act).  The process begins when a complaint is received by the Commissioner.[1] The steps which might then in fact lead to commencement of disciplinary proceedings are prescribed in ss 7.10 and 7.11 of the Act, which read:

   [1]Police Service Administration Act 1990 (Qld) s 7.10(1)(a) (Act).

   “7.10 Referral of complaint to prescribed officer

   (1) This section applies if—

   (a) the complaint mentioned in section 7.2 has been received by the commissioner; and

   (b) the commissioner has considered under section 7.9 whether to impose a professional development strategy.

   (2) The commissioner must decide whether to refer the complaint to a prescribed officer, having regard to the following matters—

   (a) any professional development strategy, or other management action, that has been implemented in relation to the subject officer;

   (b) whether implementation of any other professional development strategy would be sufficient to achieve the purposes mentioned in section 7.1(b);

   (c) the subject officer’s disciplinary history and service history;

   (d) the seriousness of the conduct to which the complaint relates;

   (e) whether it is necessary to take disciplinary action against the subject officer…