Flori v Winter [No 3][2023] QCA 229

SUPREME COURT OF QUEENSLAND

1. [1]
   MORRISON JA:  I agree with the reasons of Dalton JA and the order proposed by her Honour.
2. [2]
   DALTON JA:  Although this was filed as a civil appeal, counsel for Mr Flori accepted at the hearing that he needed leave to appeal pursuant to s 118(3) of the District Court of Queensland Act 1967 (Qld).  In my view the application ought to be dismissed with costs because the proposed appeal is unmeritorious.
3. [3]
   In the District Court Mr Flori ran a trial seeking damages for the statutory tort of reprisal against two senior officers in the Queensland Police Service (QPS) Ethical Standards Command.  His claim was dismissed and he seeks to bring an appeal which overturns the decision and upholds his claim.
4. [4]
   The factual background to the matters in issue is quite complicated.  In 2012 confidential QPS CCTV footage was impermissibly given to the media.  It showed the arrest of an individual by certain Gold Coast police officers.  The QPS investigated the disclosure of this material to the media and formed a suspicion that it was Mr Flori who had released it.  In train of that investigation, in March 2021 they executed a search warrant on Mr Flori’s home.  On Mr Flori’s computer was a letter which had nothing to do with the circumstances of the arrest shown in the leaked footage.  The letter was as follows:

“21/2/10

CMC

GPO Box 3123

Brisbane Qld 4001

This is something that I know about a supervisor on the Gold Coast it refers to Senior Sergeant [A] and Constable [B]. I have spoken to [A] but he denies everything.

In late 2009 [A] was seen at Red Rooster at Robina by Sgt Sean Miles and Sen Const Bec Lee with [B] in the Gold Coast District Duty Officer police car. It was obvious that [B] had her head in [A]’s lap giving him a head job.

In the last month in the early hours of the morning Const Sam Walsh and Sgt Gillies from Coomera found a car parked in the carpark of the shops in Cottonwood plaza at Oxenford by itself in the early hours of the morning. They checked and it was [B]’s car. A very short time later the Gold Coast District Duty Officer police car speed out from behind the shopping centre and left. [B] was in that car. [A] was spotted at Burleigh heads in plain clothes with Constable [B], both got out of the Gold Coast District Duty Officer police car. He was seen by an officer that was at the academy with him and knew him personally.

On nightwork [A] meets up with [B] to have coffee at the BP at Oxenford outside his district on a regular basis. He is working at the time and sometimes she comes with him, or just meets him there.

[B] is the officer involved in the stupid prank at Coomera some time ago where it was swept under the carpet by a District Duty Officer Greg Break. [B] has been seen in the Gold Coast District Duty Officer car on multiple other occasions off duty.

Southport Police believe that special attention is given to [B] by the Gold Coast District Duty Officers and we feel this is wrong by a person who is supposed to be supervising. I can see the headline. Senior police officer receives fellatio in police car.

Craig Mcgrath”

5. [5]
   Craig McGrath was another serving police officer.  He worked with A and B.  In 2010 he was interviewed by the CMC on the (not unreasonable) assumption that he had written the February 2010 letter.
6. [6]
   In April 2012 the first respondent interviewed Mr Flori as part of the disciplinary investigation which concerned the CCTV footage.  Mr Flori was asked questions about the release of the CCTV footage of arrest and also about the February 2010 letter.  When shown the letter, Mr Flori at first said, “First time I’ve seen it” and “Nothing to say about that”.  On further questioning he admitted that he “probably” wrote the 2010 letter and then said, “Well yeah I did write it”.
7. [7]
   The day after this disciplinary interview, 20 April 2012, the first respondent prepared a briefing note which was circulated by him to a number of senior police officers involved in the disciplinary investigation.  In the briefing note he referred to the February 2010 letter as having “been dishonestly and falsely signed” by Mr Flori in the name of Craig McGrath in order to conceal Mr Flori’s identity.  The briefing note also referred to other actions by Mr Flori against Mr McGrath, Senior Sergeant A and other Gold Coast policemen and concluded that, “Investigators are satisfied the actions of Sergeant Flori are malicious towards the Gold Coast District Duty Officers who were promoted over Sergeant Flori”.  The briefing note went on to say:

“As a result of investigations ESC intend pursuing disciplinary action for official misconduct encompassing failure to comply with statutory obligations, misuse of equipment, misappropriation of official property, inappropriate access for personal gain, disclosing information to cause a detriment to Senior Sergeant Joachim, failure to adequately safeguard property and being untruthful to officers investigating disciplinary allegations.”

8. [8]
   The briefing note recommended that Mr Flori be stood down.
9. [9]
   Mr Flori’s District Court action relied upon the production and distribution of the briefing note as an act of reprisal.  It will be noted that the briefing note nowhere recommends actions on the basis that the information in the February 2010 letter was sent to the CMC.  So far as the letter of February 2010 is concerned, it recommends action in relation to it being dishonestly signed, and as to Mr Flori being untruthful about it during the disciplinary investigation.
10. [10]
    On 31 August 2012 the first respondent prepared an investigation report after having finalised the disciplinary investigation into Mr Flori’s behaviour.  The report raised five allegations against Mr Flori including:

“Allegation 4 – Untruthfulness other

This complaint relates to Sergeant Flori creating a letter on his home computer, concerning misconduct by Senior Sergeant [A], and then dishonestly sending that letter under the assumed identity of Senior Sergeant Craig McGrath to the Crime and Misconduct Commission (CMC)”.

11. [11]
    The investigation report concluded that each of the allegations against Mr Flori, including allegation 4 (above), was considered by the investigators to be official misconduct, which was capable of being substantiated.  The report recommended that there be disciplinary proceedings against Mr Flori.  The report was circulated to a number of high-ranking police officers whose jobs included reviewing and acting on such reports.  Mr Flori relied upon the production and circulation of the investigation report as another act of reprisal in his proceeding in the District Court.
12. [12]
    In September 2012 the second respondent, then the Assistant Commissioner of the Ethical Standards Command in the QPS, wrote to the CMC supporting the first respondent’s recommendation regarding allegation 4.  He described that as, “The complaint alleged the subject member submitted a complaint to the CMC falsely using the name of another police officer”.  That letter attached a copy of the investigation report and recommended that the matter be referred for the commencement of disciplinary proceedings.  This was the third act of reprisal alleged by Mr Flori in his District Court proceeding.
13. [13]
    Both allegation 4 itself, and the second respondent’s description of it, focus on the fact that the February 2010 letter was dishonestly put forward as coming from another serving police officer, rather than being based upon a complaint about the substance of the letter to the CMC, or that sending information about officers A and B was in some way wrongful.
14. [14]
    In July 2013 a disciplinary notice was issued to Mr Flori in relation to the release of the CCTV footage and in relation to his having written:

“A letter purporting to be written by Craig McGrath [to] … the Crime and Misconduct Commission on 22 February 2010 alleging misconduct by a number of police officers in particular, Senior Sergeant [A].”

15. [15]
    Subsequently to this, the disciplinary notice against Mr Flori was withdrawn.  Criminal charges were instituted against him, but their prosecution was unsuccessful.  He was transferred to a new station without request.  At the end of 2015 he took leave without pay, and he resigned from the QPS at the end of 2017.  His case was that the actions of the first and second respondents caused him distress and reputational harm, which resulted in him choosing to leave the QPS.

Statutory Framework

16. [16]
    The factual matters relevant to Mr Flori’s proceeding straddled the replacement of the Whistleblowers Protection Act 1994 (Qld) with the Public Interest Disclosure Act 2010 (Qld).  At the time Mr Flori sent the February 2010 letter to the CMC, the former Act was in effect.  By the time the February 2010 letter was discovered, the second Act had come into effect.^[1]  The trial judge correctly recognised that the effect of this was that s 40(1)(a) of the Public Interest Disclosure Act defined the statutory tort upon which Mr Flori sued.  The relevant parts of s 40 provide:

“40 Reprisal and grounds for reprisal

1. A person must not cause, … detriment to another person because, or in the belief that—

1. the other person or someone else has made, … a public interest disclosure; or

…

…

3. A contravention of subsection (1) is a reprisal or the taking of a reprisal.

…

5. For the contravention mentioned in subsection (3) to happen, it is sufficient if the unlawful ground is a substantial ground for the act or omission that is the reprisal, even if there is another ground for the act or omission.”

17. [17]
    Because the act relied upon by Mr Flori as a public interest disclosure occurred before the Public Interest Disclosure Act came into effect, s 74 of that Act provides that in deciding whether or not “a public interest disclosure” within the meaning of s 40(1)(a) has been made, the Court is to use the definitions of that term from the legislation in place at the time the disclosure was made.  That is, the Court is to use the definitions from the Whistleblowers Protection Act in order to decide whether or not a public interest disclosure was made.  Those provisions were correctly summarised by the judge below:

“[57]  … Schedule 6 of the WPA defined a PID as follows:

‘public interest disclosure means a disclosure of information specified in sections 15 to 20 of the Act made to an appropriate entity and includes all information and help given by the discloser to an appropriate entity’.

[58] The appropriate entity in this matter is the CMC.

[59] Mr Flori relies on having disclosed information as specified in s 15 of the WPA. Relevantly, s 15 of the WPA provides:

‘A public officer may make a public interest disclosure about someone else’s conduct if—

1. the officer has information about the conduct; and

2. the conduct is official misconduct.’

[60] A police officer is a ‘public officer’ for the purposes of the WPA. There is no dispute that Mr Flori was a ‘public officer’ as defined in the WPA.

[61] Section 14 of the WPA relevantly provided:

‘(2) A person has information about conduct or danger specified in sections 15 to 20 if the person honestly believes on reasonable grounds that the person has information that tends to show the conduct or danger.

…

5. The information need not be in a form that would make it admissible evidence in a court proceeding.

Example—

The information may take the form of hearsay.’”

18. [18]
    In interpreting ss 14 and 15 of the Whistleblowers Protection Act, an earlier decision of this Court, in this proceeding, is relevant.  In Flori v Winter^[2] this Court decided that, reading s 14(2) together with s 15(b), a public interest disclosure will be made if, “a public officer discloses what the public officer honestly believes on reasonable grounds is information that tends to show someone else’s ‘official misconduct’ …” – [34].  The judge below spent some little time analysing the statements in this case and then correctly stated this law.

Was the February 2010 Letter a Public Interest Disclosure?

19. [19]
    The primary judge found that the February 2010 letter was not a public interest disclosure as defined.  Grounds 1 and 2 of the proposed appeal sought to impugn this finding.  Ground 1 was abandoned at the hearing of the application.  By ground 2 it is sought to argue that the trial judge, having stated the correct test as just described, wrongly applied it.
20. [20]
    The trial judge’s conclusion on the ss 14(2) and 15(b) issue was succinctly stated as:

“I accept Mr Flori subjectively formed the belief that the information was suggestive of evidence of a matter falling within the realms of official misconduct. However, objectively, I am not persuaded that the belief was honestly held on reasonable grounds, nor would the conduct be demonstrative of official misconduct. …” – [68] (my underlining).

21. [21]
    No-one could quarrel with the first part of this passage.  The underlined part was explained by the judge below at [68]-[69] of his judgment.  He formed the view that the conduct described in the last four paragraphs of the February 2010 letter could not amount to official misconduct as defined in s 14(b) of the Crime and Misconduct Act 2001 (Qld).^[3]  Under that definition official misconduct was defined as conduct which could, if proved, be a criminal offence or a disciplinary breach which provided reasonable grounds for terminating the person’s services.
22. [22]
    The applicant submitted that the part of [68] which I have underlined showed that the trial judge mis-applied the test from the 2019 decision in this Court because he had regard to whether or not, as a matter of fact and law, the conduct described at paragraphs 3, 4, 5 and 6 of the February 2010 letter could amount to official misconduct, rather than making a determination about whether Mr Flori honestly believed on reasonable grounds that the conduct amounted to official misconduct.
23. [23]
    Looking at the underlined words in isolation might give that impression, however, when the trial judge’s reasons for his conclusion are examined, it is clear enough that the trial judge did not take an erroneous approach.
24. [24]
    Paragraph 8(b) of Mr Flori’s sixth amended statement of claim alleged, as a separate allegation, that the conduct he alleged in the February 2010 letter was a criminal offence.  At paragraph 8(c) of that document, the allegation was made that the conduct amounted to disciplinary breaches providing reasonable grounds for terminating employment with the QPS.  There is some difficulty in the applicant now asserting that the primary judge ought not to have determined issues which he raised in the case below.
25. [25]
    At [70] below the trial judge did determine the pleaded issue.  He concluded that the conduct described at paragraphs 3, 4, 5 and 6 of the February 2010 letter did not amount to official misconduct.  Critically, he then says, “This approach also informs my assessment as to whether, objectively, there was an honest belief that the information provided evidence of a matter falling within the recommended categories of a public interest disclosure”.  That is, the judge examined the question of whether or not, in law and in fact, the conduct at paragraphs 3, 4, 5 and 6 amounted to official misconduct because it bore upon whether or not Mr Flori could have formed an honest belief on reasonable grounds that it did.  This was a permissible and logical approach.
26. [26]
    It was not the only factor which the judge considered led to a conclusion that Mr Flori did not have an honest belief on reasonable grounds that the conduct was official misconduct.  The other factors which he considered were that:

• he took a sceptical view of Mr Flori’s credit – [70];
• Mr Flori did not seek whistleblower protection at the time he wrote the February 2010 letter – [71];
• Mr Flori did not put his name to the February 2010 letter, but dishonestly used Mr McGrath’s name to write the letter – [80]-[81];
• Mr Flori did not know of the matters alleged in the February 2010 letter himself and produced no witnesses at the trial who did know of the conduct and who had told him of the conduct – [70] and [75]-[77];
• Mr McGrath, and another officer particularised in Mr Flori’s pleading as a source of his information, were called by the respondents at trial and gave evidence^[4] which contradicted Mr Flori’s evidence that they were his sources of information – [75]-[79].  The trial judge preferred their evidence to that of Mr Flori.

27. [27]
    The applicant submitted that the judge’s consideration of these factors only related to his consideration of the conduct alleged at paragraph 2 of the February 2010 letter.  I do not think this is supported by the substance of the matters discussed at [70]-[84] below, and it is expressly contradicted by the words of [85] where, having considered all those matters the primary judge concluded:

“… I am therefore unable to conclude that Mr Flori had an honest belief, on reasonable grounds, of the conduct of [A] and [B] described in the second paragraph of the February 2010 letter was conduct that was official misconduct. The same applies for the other conduct described in the remaining paragraphs of the February 2010 letter. Indeed, even if that conduct could be conduct that is ‘official misconduct’, save for a smidgen that [A] and [B] were seen at Burleigh and wandering off to have a picnic, even if I accept that (but I am not prepared to do so), Mr Flori never gave evidence as to his basis for, or source of, information for the conduct alleged in third to sixth paragraphs of the February 2010 letter. In the end, I have decided that the February 2010 letter was not a PID.” – [85] (my underlining).

28. [28]
    For these reasons, the applicant could not establish his proposed appeal ground that the primary judge erred in law in applying ss 14 and 15 of the Whistleblowers Protection Act.

Was there Retribution?

29. [29]
    The trial judge based his judgment on the failure of Mr Flori to prove a public interest disclosure.  However, he went on to address a second aspect of the case argued before him.  He found that Mr Flori had failed to prove that the respondents caused him detriment because he had made a public interest disclosure.  The applicant sought to challenge that finding if leave to appeal were granted.
30. [30]
    Section 40 of the Public Interest Disclosure Act is set out above.  Relevantly here, the statutory tort of reprisal is made out when a person causes detriment to another because the other has made a public interest disclosure.  The language is very similar to s 41(1) of the repealed Whistleblowers Protection Act.  That section was considered by this Court in Howard v State of Queensland.^[5]  Thomas JA, with whom the other members of the Court agreed, said:

“… The requirement of s 41(1) is that someone causes detriment ‘because, or in the belief that … anybody has made … a public interest disclosure’.  …  the section seems to require that the offender’s actions be motivated by some state of knowledge or belief that the target person has acted in a certain way.”

31. [31]
    The respondents referred us to Board of Bendigo Regional Institute of Technical and Further Education v Barclay.^[6]  There the High Court dealt with s 346 of the Fair Work Act 2009 (Cth) which prohibited one person taking adverse action against another, “because the other person engages … in industrial activity”.  Gummow and Hayne JJ focused on the word “because”.  They stated that it “invites attention to the reasons why the decision-maker so acted”.
32. [32]
    The word “because” in s 40(1) of the Public Interest Disclosure Act requires an enquiry into the motive or reasons for the action said to be retaliatory.  The respondents correctly conceded that, “read with s 40(5), it is sufficient if this reason was a ‘substantial ground’ for so acting”.^[7]
33. [33]
    As outlined above, Mr Flori alleged three separate reprisals.  The first was pleaded to be the first respondent causing, or attempting to cause, detriment to him by what he wrote in the briefing note.  He alleged that this reprisal caused or attempted to cause him disadvantage in his career, damage to his reputation, and was an attempt to induce disciplinary action against him.^[8]  This was pleaded to be because the briefing note said, as was the case, that the February 2010 letter had been “dishonestly and falsely signed” so as to appear that it had been written by Mr McGrath; that Mr Flori had submitted a formal review of the promotions of various Gold Coast police officers who were identified in the February 2010 letter, and offered to provide the media police CCTV footage of another such officer dealing with a member of the public.  The briefing note also referred to Mr Flori’s dishonesty to officers investigating disciplinary allegations against him and recommended that he be stood down.
34. [34]
    It was pleaded that the detriment or attempt to cause a detriment was because, or substantially because, Mr Flori made a public interest disclosure.^[9]  The particulars to that allegation do not reveal any reason for thinking that the first respondent had the required reason or motive.  There was no evidence led on Mr Flori’s behalf that the first respondent had such a reason or motive.  It was not put to the first respondent in cross-examination that he had such reason or motive.  The trial judge concluded:

“The February 2010 letter was not, as was submitted by Mr Flori, plainly a substantial ground for the recommendations in the [briefing note]. Rather, the February 2010 letter did not feature heavily or substantially at all for the [briefing note]. Therefore, I do not conclude that Mr Winter attempted to cause detriment, or in fact did cause detriment, by producing the [briefing note].” – [97].

35. [35]
    That paragraph deals somewhat telegraphically with two points: that the first respondent did not attempt to cause, or cause, detriment, and that he was not motivated to do so because of the public interest disclosure.  I think both points are correct on the evidence.  The first respondent was doing his job, investigating disciplinary proceedings against Mr Flori.  It was not pleaded or proved that anything he said, at all, or about the February 2010 letter, was inaccurate or inappropriate to be in his briefing note; he was simply doing his job.  Secondly, the first respondent was investigating the release of police CCTV to the media.  The February 2010 letter was something found incidental to that.  Comment was made on it because it reflected poorly upon Mr Flori’s honesty, but it was a subsidiary part of the disciplinary investigation.  There is no evidence which, directly or by way of inference, could possibly give rise to the idea that the reason or motivation for the briefing note was the substance of the matters disclosed in the February 2010 letter.
36. [36]
    Likewise, Mr Flori’s case in the District Court was that the first respondent’s report following the disciplinary investigation was retaliation, and that a substantial ground for making the report was that Mr Flori had made a public interest disclosure.  Once again, the particulars of that allegation do not address reasons or motivation, and again there was no evidence to support Mr Flori’s case as to this.  Once again, it was not put to the first respondent that he was motivated to write the investigation report because Mr Flori had made the disclosures about officers A and B in the February 2010 letter.  The comments which I have made at [35] apply here too.
37. [37]
    Thirdly, Mr Flori alleged that the second respondent’s sending the September 2012 letter to the CMC was retaliation.  A substantial ground for sending it was said to be that Mr Flori made the disclosures in the February 2010 letter.^[10]  Once again the particulars in the pleading do not go to any reason or motive the second respondent may have had, and there was no evidence at trial about reason or motive.
38. [38]
    I cannot see that the trial judge erred in finding that Mr Flori had not proved any action against him which was motivated, to any extent, by the substantive information contained in the February 2010 letter being sent to the CMC.  The respondents did not criticise, or recommend any adverse actions against, Mr Flori on the basis that he had given the CMC information about the conduct of A and B.  What the investigators were concerned about was that, quite independently of disclosure of information about A and B, Mr Flori had chosen a dishonest means of communicating with the CMC and then, when taxed with it in his disciplinary interview, lied to investigators.
39. [39]
    During oral argument on the appeal it became apparent that counsel for the applicant was relying on an interpretation of the relevant statutory provisions which I consider untenable.  His argument was that the February 2010 letter was a public interest disclosure as defined by the Whistleblowers Protection Act, so that every part of the February 2010 letter was a public interest disclosure, including the dishonest attribution of the letter to Mr McGrath.  It followed then that disciplinary action recommended against Mr Flori because he had dishonestly attributed the February 2010 letter to Mr McGrath could only be “because” Mr Flori had made a public interest disclosure.  That is, if Mr Flori had never sent the February 2010 letter with its dishonest attribution, officers appointed to investigate his conduct could never have recommended action against him on the basis that he was dishonest.
40. [40]
    This argument is misconceived.  As set out above, the definition section of the Whistleblowers Protection Act is to the effect that a public interest disclosure “means a disclosure of information specified in sections 15 to 20 of the Act …”.  Here the relevant section is s 15, which allows a public officer to make a public interest disclosure “about someone else’s conduct”.  The February 2010 letter disclosed information about the conduct of officers A and B.  It was that information which had to be examined to determine whether it was a public interest disclosure.  Had it been, the Act would have protected the disclosure of that information.  The Act would not protect other independent wrongs or wrongdoings simply because they happened to be in the same document which contained a public interest disclosure.  Signing the letter in the name of Mr McGrath was not a disclosure of information about someone else’s conduct.  It was an independent act of dishonesty.  So was lying about that to the disciplinary investigation.
41. [41]
    The final words of the definition in the Whistleblowers Protection Act, “and includes all information and help given by the discloser to an appropriate entity”, cannot be construed so as to change this position.  These words must refer back to “a disclosure of information specified in sections 15 to 20 of the Act”, and take their meaning accordingly.  This part of the definition is concerned with all information and help given by the discloser about the public interest disclosure.  The words are not apt to capture and protect an independent wrong which itself is not a public interest disclosure.
42. [42]
    FLANAGAN JA:  I agree with Dalton JA.