Rucker v Stewart & Ors [2014] QCA 32

SUPREME COURT OF QUEENSLAND

CITATION: Rucker v Stewart & Ors [2014] QCA 32

PARTIES: LAURENCE RAY RUCKER (appellant) v IAN STEWART (first respondent) COMMISSIONER OF THE QUEENSLAND POLICE FORCE (second respondent) PAT MULLINS (third respondent)

FILE NO/S: Appeal No 7667 of 2013 / SC No 8163 of 2012

DIVISION: Court of Appeal

PROCEEDING: General Civil Appeal

ORIGINATING COURT: Supreme Court at Brisbane

DELIVERED ON: 28 February 2014

DELIVERED AT: Brisbane

HEARING DATE: 20 February 2014

JUDGES: Chief Justice and Fraser and Morrison JJA / Separate reasons for judgment of each member of the Court, each concurring as to the orders made

ORDERS: **Appeal dismissed.**The appellant pay the respondents’ costs of and incidental to the appeal to be assessed on the standard basis.

CATCHWORDS: ADMINISTRATIVE LAW – JUDICIAL REVIEW – GROUNDS OF REVIEW – PROCEDURAL FAIRNESS – EXCLUSION OF PROCEDURAL FAIRNESS – PROCEDURES PROVIDED BY STATUTE – the appellant is a serving senior sergeant of police in Queensland Police Service – the appellant was stood down from duty by the deputy commissioner pursuant to s 6.1 of the Police Service Administration Act 1990 (Qld) without being afforded an opportunity to present his case – the stand down decision was based on a number of disciplinary allegations – on application by the appellant, the Commissioner for Police Service Reviews reviewed the decision and recommended the decision be affirmed – the police commissioner considered the review recommendation and confirmed the stand down decision – whether procedural fairness was excluded at the time of the original stand down decision – whether the original stand down decision was part of a multi-stage statutory decision making process / ADMINISTRATIVE LAW – JUDICIAL REVIEW – GROUNDS OF REVIEW – PROCEDURAL FAIRNESS – EXISTENCE OF OBLIGATION – RIGHTS AND INTERESTS AFFECTED BY DECISION – the appellant is a serving senior sergeant of police in Queensland Police Service – the appellant was stood down from duty by the deputy commissioner pursuant to s 6.1 of the Police Service Administration Act 1990 (Qld) without being afforded an opportunity to present his case – the stand down decision was on full pay – the appellant lost the ability to earn additional income through overtime and special duties – the appellant was relieved of his powers and duties and was to be supervised – whether the loss of additional income and loss of policing powers and duties required the appellant be afforded procedural fairness prior to the initial stand down decision being made / ADMINISTRATIVE LAW – JUDICIAL REVIEW – GROUNDS OF REVIEW – PROCEDURAL FAIRNESS – HEARING – NATURE OF HEARING – OPPORTUNITY TO PRESENT CASE – the appellant is a serving senior sergeant of police in Queensland Police Service – the appellant was stood down from duty by the deputy commissioner pursuant to s 6.1 of the Police Service Administration Act 1990 (Qld) without being afforded an opportunity to present his case – the stand down decision was based on a number of disciplinary allegations – on application by the appellant, the Commissioner for Police Service Reviews reviewed the decision and recommended the decision be affirmed – the police commissioner considered the review recommendation and confirmed the stand down decision – whether the appellant was required to be given an opportunity to be heard by the deputy commissioner / ADMINISTRATIVE LAW – JUDICIAL REVIEW – GROUNDS OF REVIEW – PROCEDURAL FAIRNESS – GENERALLY – the appellant is a serving senior sergeant of police in Queensland Police Service – the appellant was stood down from duty by the deputy commissioner pursuant to s 6.1 of the Police Service Administration Act 1990 (Qld) without being afforded an opportunity to present his case – the stand down decision was based on a number of disciplinary allegations – on application by the appellant, the Commissioner for Police Service Reviews reviewed the decision and recommended the decision be affirmed – the police commissioner considered the review recommendation and confirmed the stand down decision – whether the review commissioner was to conduct the review hearing de novo – whether the review commissioner impermissibly confined the review as to whether the initial stand down decision complied with legislation and policy / Police Service Administration Act 1990 (Qld), s 2.3(f), s 6.1, s 7.4, s 9.3 / Police Service Administration (Review of Decisions) Regulation 1990 (Qld), reg 8 / Annetts v McCann (1990) 170 CLR 596; [1990] HCA 57, cited / Box v Director-General, Department of Transport [1994] 2 Qd R 463, considered / Foster v Secretary, Department of Education and Early Childhood Development (2008) 30 VAR 243; [2008] VSC 504, distinguished / Kioa v West (1985) 159 CLR 550; [1985] HCA 81, cited / Lewis v Heffer [1978] 1 WLR 1061, applied / Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259; [1996] HCA 6, followed / Phan v Kelly (2007) 158 FCR 75; [2007] FCA 269, cited / South Australia v O'Shea (1987) 163 CLR 378; [1987] HCA 39, cited / SBZEL v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 228 CLR 152; [2006] HCA 63, followed

COUNSEL: M Black for the appellant / S A McLeod for the first and second respondents / No appearance for the third respondent

SOLICITORS: Think Legal for the appellant / Queensland Police Service Solicitor for the first and second respondents / No appearance for the third respondent

1. CHIEF JUSTICE: The appellant is a serving senior sergeant of police within the Queensland Police Service.

2. He was on 5 October 2011 issued with a notice dated 4 October 2011 under the hand of the Deputy Commissioner (Regional Operations) (the first respondent) standing him down from duty. The Deputy Commissioner made that decision under s 6.1 of the Police Service Administration Act 1990 (Qld).

3. That section relevantly provides:

“6.1****Power to stand down and suspend

(1)If—

(a)it appears to the commissioner, on reasonable grounds that—

(i)an officer is liable to be dealt with for official misconduct; or

(ii)an officer is liable to disciplinary action under section 7.4; …

the commissioner may—

(d)stand down the officer from duty as an officer and direct the person stood down to perform such duties as the commissioner thinks fit; or

(e)suspend the officer from duty.”

4. Section 7.4 provides for the substantive hearing of a disciplinary proceeding for “misconduct or a breach of discipline on such grounds as are prescribed by the regulations”. Those grounds are set out in Regulation 9 of the Police Service (Discipline) Regulations 1990 (Qld). Section 7.4 of the Police Service Administration Act 1990 (Qld) is in these terms:

“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; or

(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 Misconduct 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—

(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.”

5. The stand down notice addressed to the appellant listed these allegations against him:

“(i)on 13 September 2011 you accessed QPRIME information relating to fifty-four current members of the Queensland Police Service, one a former member and ten members of the community without an official purpose relating to the performance of your duties as a police officer;

(ii)on 15 September 2011 your conduct toward Inspector O'Dowd during a discipline interview did not meet the professional standards expected of an officer in charge in that your responses were evasive and belligerent, and you refused to answer some questions until re-directed;

(iii)that you breached Regional police relating to special service duty concerning wide load escorts;

(iv)that you breached a direction from then Deputy Commissioner McGibbon issued in January 2000, by listing the police establishment at 31 Station Road Indooroopilly as your residential address on your driver’s licence.”

6. The first respondent set out, in the stand down notice, this information about the process he followed before determining that the appellant should be stood down:

“I am further advised by the Assistant Commissioner that:

(i)In March 2010 you were given managerial guidance for breaching Regional policy in relation to special service duty concerning wide load escorts; and

(ii)In October 2010 you were given managerial guidance for circulating an email containing insulting and disparaging remarks about senior officers.

Having considered the advice from the Assistant Commissioner that included an Executive Briefing Note dated 4th October 2011, the serious nature of the alleged conduct and the apparent strength of the evidence, in the context of your senior rank, and your position as an officer in charge, it appears to me on reasonable grounds that you are liable for disciplinary action under section 7.4 of the Police Service Administration Act 1990 (the Act).

After considering those matters in conjunction with the apparent limited affect of the managerial guidance administered in 2010, I, Ian Duncan Stewart, Deputy Commissioner (Regional Operations), under sections 4.10 and 6.1 of the Act and Delegation Number D1.1 dated 3 April 2008, stand you down from duty. This stand down action will continue until it is revoked.”

7. The appellant applied to the learned primary Judge for judicial review of the stand down decision. One of the grounds agitated before the Judge was the first respondent’s failure to afford the appellant an opportunity to be heard before the decision was made. The Judge rejected the contention that the appellant was entitled to be heard at that stage. To reach that view, he surveyed a number of relevant provisions of the Act. They were, as taken from his reasons for judgment:

“(a)the relevant officer is stood down from such duties as the commissioner thinks fit: s 6.1(1)(d);

(b)the officer is entitled to be paid salary and allowances at the rate as if the standing down had not occurred: s 6.2;

(c)the officer is relieved of the powers and duties of a constable at common law or under any Act or law: s 6.4(a);

(d)if aggrieved about the decision, the officer may apply to have the decision reviewed by a commissioner for police service reviews: s 9.4(1);

(e)the commissioner for police service reviews has the authority and duty to hear and consider the application for review if duly made and to make recommendations relating to any matter relevant to the review: s 9.4(3);

(f)the review is a non-adversarial administrative proceeding and proceedings should be informal and simple: s 9.2(2)(b);

(g)upon conclusion of the review the commissioner for police service reviews is to make such recommendations as he or she considers appropriate to the commissioner of the police service: s 9.5(1); and

(h)the commissioner of the police service, upon consideration of the matter reviewed and having regard to the recommendations made is to take such action as appears to him or her to be fair and just: s 9.5(2).”

8. His Honour then reasoned as follows:

“[48]The structure of these provisions discloses four important points as to whether there is any obligation to give an officer an opportunity to be heard before a stand down decision may be made. First, the decision relieves the officer of responsibilities and powers but does not reduce the salary or allowance entitlements. Secondly, the decision is subject to an independent review at which the officer has a right to be heard (although no right to legal representation). Thirdly, the review is one on the merits, so that the officer should be able to put material before the commissioner for police service reviews which rebuts or repels the material or evidence which tends to show that there are reasonable grounds on which it appears that the officer will be or may be liable to disciplinary action. Fourthly, following the review and recommendation of the commissioner for police service reviews, it is the commissioner of the police service who makes the substantive decision upon what action to take. Thus, the Act confers both the original power to stand down and the power to affirm or terminate a stand down decision after review upon the same repository.

[49]Having regard to the purpose of the stand down power and the structure of those provisions, it seems to me that the Act expressly provides for an appropriate opportunity for an officer to be heard as to why a stand down decision should be terminated. The review is not in the nature of an appeal to a higher repository of power. The commissioner for police service reviews ultimately makes a recommendation only, and is that recommendation to which the commissioner must have regard when considering the appropriate action following the review. The nature of a stand down decision is not final – it is a procedure to temporarily hold the position, while the substance of a disciplinary action matter is determined. It does not amount to a final decision of any kind as to whether the police officer has been guilty of misconduct or breach of discipline. As a matter of course, the question of whether to stand an officer down most likely will be decided at the outset of a disciplinary action matter, where the material or evidence will not be finalised. It is counter-intuitive to conclude that at that stage the commissioner would be ready to weigh up both sides of the matter to form a concluded or near concluded view of the strength of the allegation of misconduct or breach of discipline.

[50]These matters indicate to me that the Deputy Commissioner was not obliged to give Sgt Rucker an opportunity to be heard in answer to the contents of the briefing memorandum or the transcript before exercising the power to stand down under s 6.1.”

9. While acknowledging that “close consideration” must be given to the relevant legislation, Counsel for the appellant emphasized that, to exclude a right to be heard, that legislation must display a “strong manifestation of contrary statutory intention” (Kioa v West (1985) 159 CLR 550, 585); that the stipulation for natural justice may only be excluded by “plain words of necessary intendment” (Annetts v McCann (1990) 170 CLR 596, 598). That does not mean that the legislation need expressly, in terms, exclude a right to be heard. As said in SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 228 CLR 152, 160-161, “the statutory framework … is of critical importance”, and it is impossible to lay down “a universally valid test”.

10. Counsel for the appellant submitted that the learned Judge addressed the wrong issue when he asked “whether there is any obligation to give an officer an opportunity to be heard before a stand down decision may be made”. Counsel submitted that His Honour should have asked whether the legislation excluded a right to be heard. The submission draws a distinction without a difference. By focusing on the legislation as he did, the Judge was directing his mind to whether, on its proper construction, a right to be heard was or was not implicitly accorded, and that approach was correct.

11. Counsel raised these matters in response to the four points which influenced His Honour: that notwithstanding the stood-down appellant’s continuing entitlement to be paid his salary, the stand down meant that he could not earn income through overtime and special duties; that he was relieved of his powers and duties, akin to a ‘demotion’ (Foster v Secretary, Department of Education and Early Childhood Development [2008] VSC 504, para 46); that the right of review did not necessarily exclude a right to be heard at the earlier stage; that the first respondent was statutorily obliged to act in a “responsible, fair and efficient manner” (s 2.3(f) Police Service Administration Act 1990 (Qld)); and that the first respondent’s discretion in the matter should have been affected by consideration of the matters listed in cl 13.6 of the Human Resources Management Manual, which included matters such as financial hardship. Counsel also pointed out that in this case there was no consideration of urgency which meant that it would be impracticable to afford the appellant an opportunity to answer the allegations.

12. The circumstances listed by the learned Judge led compellingly to the conclusion that the legislature did not intend that at this initial stage of the process, an officer in the position of the appellant should have a right to be heard. I do not accept that the loss of additional income, and denial of powers during the stand down period tell heavily the other way, as was submitted for the appellant. The statutory framework in is distinguishable.

“Very often irregularities are disclosed in a government department or in a business house: and a man may be suspended on full pay pending inquiries. Suspicion may rest on him: and so he is suspended until he is cleared of it. No one, so far as I know, has ever questioned such a suspension on the ground that it could not be done unless he is given notice of the charge and an opportunity of defending himself and so forth. The suspension in such a case is merely done by way of good administration. A situation has arisen in which something must be done at once. The work of the department or the office is being affected by rumours and suspicions. The others will not trust the man. In order to get back to proper work, the man is suspended. At that stage the rules of natural justice do not apply: see Furnell v Whangarei Schools Board [1973] AC 660.”

and per Geoffrey Lane LJ (pp 1078-1079):

“In most types of investigation there is in the early stages a point at which action of some sort must be taken and must be taken firmly in order to set the wheels of investigation in motion. Natural justice will seldom if ever at that stage demand that the investigator should act judicially in the sense of having to hear both sides. No one’s livelihood or reputation at that stage is in danger. But the further the proceedings go and the nearer they get to the imposition of a penal sanction or to damaging someone’s reputation or to inflicting financial loss on someone the more necessary it becomes to act judicially, and the greater the importance of observing the maxim audi alteram partem. It seems to me in the present case, so far as anyone can judge on the facts before us, natural justice does not demand that anyone should be invited to provide an explanation or excuse before that suspension was imposed.”

14. The existence of the avenue for review, which the parties agree is a review “on the merits” at which the appellant had the opportunity to put new material before the reviewing Commissioner, and at which the appellant was entitled to be heard, tells strongly against the existence of an opportunity to be heard at the earlier preliminary stage. Counsel for the appellant rejected its being a “multi-stage process”, but that is a fair characterization, where the initial determination is followed by a merits based review, and thereafter a determination of the allegations prior to the Commissioner’s ultimate ruling. One should have regard to the process in its entirety when addressing this question. Compare the views expressed in South Australia v**O'Shea (1987) 163 CLR 378, 389 and Phan v Kelly (2007) 158 FCR 75 paras 39-43.

15. Also important is the circumstance that the stood-down officer retains his right to salary (notwithstanding the possible other losses identified by Counsel for the appellant, and the loss of his right to carry out certain duties). That the suspended applicant in Box v Director-General, Department of Transport [1994] 2 Qd R 463 lost his pay was in that case a critical factor. As Ryan J said (p 465): “… if the Director-General had suspended the applicant on full pay, there would have been no breach of the rules of natural justice”. But in any case, the legislation in Box in terms required observance of the terms of natural justice.

16. The challenge to His Honour’s finding on this aspect of the case must fail.

17. The second challenge to the judgment concerns the review application. The third respondent, a Commissioner for Police Service Reviews, carried out the review. The appellant submitted a 176 page set of submissions. In his review report dated 27 August 2012, the third respondent confirmed that he had read the submissions, most of which concerned the appellant’s “defence of his position” – that is, addressing the merits of the allegations. Otherwise, the appellant contended that the decision of the first respondent “did not comply with legislation and … did not comply with QPS police and procedures”.

18. The third respondent rightly rejected the appellant’s contention that the first respondent should have determined the allegations before directing a stand down. The third respondent observed:

“8.17It is not necessary that a prescribed officer has actually made a determination that an officer should be the subject of disciplinary action on the basis of misconduct or a breach of discipline prior to a Stand Down Notice being issued by a Deputy Commissioner. In considering whether a Stand Down Notice should issue, a Deputy Commissioner is required to determine whether the officer is liable to such disciplinary action.

8.18 The Deputy Commissioner might well come to the view that the facts known or presented to him or her are such that if they were to be considered by a prescribed officer, that that prescribed officer would be likely to consider that they constitute misconduct or a breach of discipline on such grounds as are prescribed in section 9 of the Regulation. In such circumstances the particular officer would be liable to disciplinary action. Accordingly the Applicant’s contentions in this respect are misconceived and there is no further need for me to consider them. The position is such as I have outlined it.”

19. The third respondent concluded that the first respondent, having read the briefing note, was “perfectly entitled to come to the view that the [appellant] was liable to disciplinary action in respect of one or all” of the four matters alleged, and that there were “reasonable grounds” for that view. The third respondent rejected the appellant’s contention that they were but minor matters, and he described them as “very serious”.

20. The third defendant expressed his ultimate conclusion as follows:

“8.30My view is that the Deputy Commissioner has properly and legitimately come to a decision on reasonable grounds that the Applicant was liable to disciplinary action. It is clear that the Stand Down Notice signed by the Deputy Commissioner on 4 October 2011 and issued to the Applicant was appropriately issued after a fair process in which the Deputy Commissioner considered matters relevant for his consideration. The Deputy Commissioner appears to have come (on reasonable grounds) to the appropriate decision.

8.31 I cannot detect any flaw in process and I recommend to the Commissioner that the decision reached by the Deputy Commissioner to issue the Stand Down Notice to the Applicant be affirmed.”

21. The form of a review emerges from s 9.3(3) of the Police Service Administration Act 1990 (Qld):

“(3)Authority is hereby conferred on a commissioner for police service reviews—

(a)to hear and consider all applications for review under this part duly made;

(b)to make recommendations relating to any matters relevant to a review under this part.”

and Regulation 8 of the Police Service Administration (Review of Decisions) Regulation 1990 (Qld):

“8****Functions of Review Commissioner

The functions of a Review Commissioner are to—

conduct a review of all material provided by the parties to the review and relevant to the case at the time the case was decided, whether or not it was submitted for the consideration of the person making the decision under review;

hear such submissions at such places as the Review Commissioner considers necessary;

make such recommendation to the commissioner as the Review Commissioner thinks fit in respect of the case.”

22. The learned primary Judge said this:

“[61]Thus, the review of a stand down decision made under s 6.1 based on an officer’s liability to disciplinary action under s 7.4 is not confined to the materials before the original decision maker. That said, the review of such a stand down decision is not one which must or ordinarily should proceed as a full-blown hearing into the allegations the subject of the stand down decision and liability to disciplinary action, whether or not the aggrieved officer wishes to follow that course.

[62]The review in such a case may be appropriately confined to the subject matter of whether the decision to stand down the aggrieved person should be affirmed, revoked or varied pending the determination of the liability to disciplinary action. Where disputed questions of conduct are involved, and where there are matters of judgment on which reasonable minds could reasonably differ, the commissioner for police service reviews is not required to form a preliminary view of the outcome of the aggrieved person’s liability to disciplinary action in order to make a decision on the review. The question for determination is more limited, namely, whether the decision to stand down made should be affirmed or revoked or varied.”

23. His Honour referred to Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259, 271-272 where the court cautioned against any over-zealous scrutiny of the reasons of an administrative decision-maker such as the third respondent in this situation, endorsing the view that “the reasons … are not to be construed minutely and finely with an eye keenly attuned to the perception of error”.

24. The appellant contends that the primary Judge erred in failing to find that the third respondent should have conducted a hearing “de novo”, and in failing to reject the third respondent’s approach, insofar as the third respondent confined his review to “whether the first respondent had complied with legislation and policy”, considering only whether it had been “open” to the first respondent to make the stand down decision. These matters may be addressed in a composite way.

25. The third respondent was required to “review” the determination of the first respondent. In conducting that review, the third respondent was to have to regard to all relevant material presented to him, whether or not presented at the earlier stage, and he was obliged to make a recommendation. But the process was nevertheless borne of the original stand down decision. The reviewing Commissioner’s task was to decide whether that was the correct decision, having regard to the material before the first respondent and any new material placed before him.

26. The problem attending the de novo characterization is that it may suggest that what has gone before is to be ignored. That is not the case. The reviewing Commissioner’s ultimate decision is to recommend whether or not the stand down decision should be upheld.

27. In this case, the third respondent’s reasons show that he comprehensively considered all of the material and endorsed the first respondent’s decision because he considered it to be the correct decision. The third respondent’s enquiry was not limited to the applicable legislation and policy: it explored the appellant’s more broadly based submissions, notwithstanding much of that material was largely irrelevant because it went to a final determination on the merit of the allegations.

28. Further, a fair reading of the third respondent’s reasons shows that he did not adopt a narrow jurisdictional type analysis limited to whether the stand down decision was an available option along with others. That emerges from his description of the first respondent’s stand down decision as “proper”, “legitimate”, based on “reasonable grounds”, and “the appropriate decision”. The third respondent is to be seen, thereby, as having adopted the first respondent’s decision as his own.

29. The ground of appeal against the learned Judge’s treatment of the challenge to the review conducted by the third respondent has therefore not been sustained.