Bercove v Hermes (No 2)

[1983] FCA 255

Re: ABRAHAM BERCOVE
And: C.L. HERMES CHAIRMAN, A.C.C. MENZIES AND J.T. HOWARD MEMBERS CONSTITUTING
THE DISCIPLINARY APPEAL BOARD
And: PUBLIC SERVICE BOARD
And: THE COMMONWEALTH OF AUSTRALIA (1983) 78 FLR 232
No. WAG 37 of 1983
Administrative Law

COURT

IN THE FEDERAL COURT OF AUSTRALIA

WESTERN AUSTRALIA DISTRICT REGISTRY
GENERAL DIVISION
Toohey J.(1)

CATCHWORDS

Administrative Law - interlocutory injunction - motion to restrain Public Service Board considering recommendation that appellant be dismissed until outcome of appeal to Full Court known - whether injunction sought is stay of proceedings under judgment at first instance - power of court under s.23 Federal Court of Australia Act 1976 to grant motion

Federal Court of Australia Act 1976 s.23

Rules under the Federal Court of Australia Act 1976 O.52 R.17

Public Service Act 1922 s.63A

Administrative Law - Interlocutory injunction - Motion to restrain Public Service Board considering recommendation that appellant be dismissed until outcome of appeal to Full Court known - Whether injunction sought is stay of proceedings under judgment at first instance - Power of Court under s. 23 Federal Court of Australia Act 1976 (Cth) to grant motion - Federal Court of Australia Act 1976 (Cth), s. 23 - Federal Court Rules, O. 52, r. 17 - Public Service Act 1922 (Cth), s. 63A.

HEADNOTE

The appellant was charged under s. 61 of the Public Service Act 1922.

The Chief Officer appointed under that Act held an inquiry pursuant to s. 62 of the Act and recommended to the Public Service Board that action be taken to dismiss the appellant from the Public Service.

The appellant appealed to a Disciplinary Appeals Board which confirmed the Chief Officer's recommendation.

The appellant then applied to the Federal Court for an order to review in respect of the Board's decision. The application was dismissed with costs.

The appellant then appealed to the Full Court and also applied to the court for an interlocutory injunction to restrain the Board from considering the recommendation that he be dismissed from the Public Service till the outcome of his appeal to the Full Court was known.

Held: (1) The justice of the case warranted relief in terms of the motion.

(2) The Board be restrained until the determination of the appeal or until further order from:

(a) considering pursuant to s. 63A of the Public Service Act 1922 (Cth) the recommendation of the Chief Officer to the Board that action be taken to dismiss the appellant from the Public Service, and

(b) considering the decision and reasons for decision of the Disciplinary Appeals Board dated 4 March 1983.

Per Toohey J. - "I am not persuaded that an injunction restraining the second respondent from acting in accordance with s. 63A of the Public Service Act is in truth a stay of proceedings under the judgment appealed from."

Erinford Properties Ltd v. Cheshire County Council (1974) Ch 261; Wilson v. Church (No. 2) (1879) 12 Ch D 454; Rifki v. The Minister for Immigration and Ethnic Affairs (1983) 46 ALR 301; Hiero Pty Ltd v. Somers (1983) 68 FLR 171, referred to.

HEARING

Perth, 1983, September 30. #DATE 30:9:1983

MOTION.

Motion requesting an interlocutory injunction under O. 52, r. 17 of the Federal Court Rules.

The applicant appeared in person.

I. Bates, for the respondents.

Solicitor for the respondents: B. J. O'Donovan, Commonwealth Crown Solicitor.

M.P.S.

ORDER

1. The time for the hearing of this motion is abridged to enable it to be dealt with today.

2. The second respondent be restrained until determination of this appeal or until further order from:

(a) Considering pursuant to Section 63A of the Public Service Act 1922 the recommendation of the Chief Officer to the second respondent made on 25 October 1982 that action be taken to dismiss the appellant from the Public Service and

(b) Considering the decision and reasons for decision of the first respondent dated 4 March 1983.

Orders accordingly.

JUDGE1

On 29 July 1983 Morling J. dismissed an application by the present appellant made pursuant to the provisions of the Administrative Decisions (Judicial Review) Act 1977.

The appellant has appealed to the Full Court of the Federal Court and that appeal is due to be heard on 12 October, less than a fortnight away.

By motion, the appellant seeks to restrain the second respondent, the Public Service Board, from considering a recommendation made to it that the appellant be dismissed from the Australian Public Service. Although the notice of motion lacks some precision in this respect, it is clear that what is sought is a restraint until the outcome of the appeal to the Full Court is known.

The second respondent opposes the motion and it does so on two grounds. First, it says that this court has no power to accede to the motion. Second, it argues that the motion lacks merit and should be dismissed.

The attitude of the second respondent is somewhat surprising, given the history of this matter. When application was made under the Judicial Review Act, the second respondent consented to an order on 29 March 1983 that until the determination of the application it be restrained from:

"1. Considering pursuant to section 63A of the Public Service Act 1922 the recommendation of the Chief Officer to the Second Respondent made on the 25th day of October 1982 that action be taken to dismiss the Applicant from the Public Service.

2. Considering the decision and reasons for decision of the First Respondent dated the 4th day of March 1983".

The decision of Morling J. was delivered in Sydney and the appellant says that he had no opportunity to raise before his Honour an extension of the restraint imposed on the second respondent on 29 March 1983. In an affidavit filed in support of the motion, the appellant deposed to a telephone conversation with the Assistant Director of the second respondent before the filing of notice of appeal to the Full Court. In that conversation the appellant spoke of his intention to appeal and was told that provided he filed his appeal within time, the second respondent "would take no action on the recommendation of the Chief Officer until the Appeal had been disposed of". The second respondent has not challenged the appellant's affidavit. However, counsel for the second respondent says that his client wishes to proceed to consider the recommendation of the Chief Officer, notwithstanding the appeal to the Full Court and the early hearing of that appeal and, it may be inferred, notwithstanding the undertaking given to the appellant.

In a letter to the appellant dated 29 September 1983, the second respondent spoke of its decision to proceed with a consideration of the recommendation and commented:

"The Board is of the view that this consideration will not affect the hearing and determination of your appeal".

That statement may be literally true. But it seems to me quite undesirable that the second respondent, which has been content to date to defer consideration while the appellant was exercising a right of review available to him, should suddenly adopt a different and intransient position in the face of an appeal to the Full Court.

So far as merit is concerned, I have no doubt that the appellant's motion should be granted but I must deal with the submission that I have no power to grant what is sought.

Order 52 Rule 17 of the Federal Court Rules provides that an appeal shall not "operate as a stay of execution or of proceedings under the judgment appealed from" except so far as a judge may direct.

In the submission of the second respondent, such a direction is of no assistance to the appellant because the judgment appealed from did no more than dismiss the appellant's application for a review of a decision of the first respondent, a Disciplinary Appeal Board. The appellant having been charged with misconduct, an inquiry was held pursuant to s.62 of the Public Service Act and following that inquiry a recommendation was made by the Chief Officer appointed under the Act to the second respondent that action be taken to dismiss the appellant from the public service. The appellant then exercised a right of appeal to the first respondent which confirmed the Chief Officer's recommendation. It was the Disciplinary Appeal Board's decision that was the subject of the application to Morling J. The only relief claimed against the second respondent was of an interim or interlocutory nature restraining it from acting on the recommendation. That matter was disposed of by the order of 29 March 1983.

Is the injunction sought by the appellant against the second respondent properly to be regarded as a stay of proceedings under the judgment of Morling J.? Neither the appellant, who appeared in person, nor counsel for the second respondent referred me to any authority on the point and the urgency of the matter has confined my own researches. In Erinford Properties Ltd. v. Cheshire County Council (1974) 1 Ch. 261 there is a discussion by Megarry J. of some early authorities where an injunction was sought to restrain a successful defendant from parting with the subject matter of the action pending an appeal. His Honour was of the view that the relevant principle is to be found in the judgment of Cotton L.J. in Wilson v. Church (No. 2) (1879) 12 Ch. D. 454 at p.458, that ". . . when a party is appealing, exercising his undoubted right of appeal, this court ought to see that the appeal, if successful, is not nugatory".

The difficulty I have in applying that principle to the present case is that, although the second respondent was a party to the proceedings under the Judicial Review Act and of course is a party to the appeal from that decision, it was the decision of the first respondent that was sought to be reviewed. Although the second respondent accepted a restraint pending the determination of the application, I am not persuaded that an injunction restraining the second respondent from acting in accordance with s.63A of the Public Service Act is in truth a stay of proceedings under the judgment appealed from.

But I am satisfied that there is power under s.23 of the Federal Court of Australia Act 1976 to grant the motion. That section reads:

"The Court has power, in relation to matters in which it has jurisdiction, to make orders of such kinds, including interlocutory orders, and to issue, or direct the issue of, writs of such kinds, as the Court thinks appropriate".

The section has been relied upon to justify restraining the Minister for Immigration and Ethnic Affairs from deporting an application until the hearing of an application under the Judicial Review Act (Rifki v. Minister for Immigration and Ethnic Affairs (1983) 46 ALR 301) and also to restrain a respondent, pending the hearing of an application under the Trade Practices Act 1974, from removing or dissipating his assets (Hiero v. Somers (1983) 47 ALR 605). I am not aware of any case comparable to the present one in which reliance has been placed on s.23 but I agree with Ellicott J. in Hiero v. Somers at p.612 that the section should not be given a narrow interpretation. It is true that s.23 finds its place in Division I - Original Jurisdiction of Part III of the Federal Court Act but, as I understand it, it is original not appellate jurisdiction that I am being called upon to exercise.

Having regard to the order of 29 March 1983 to which the second respondent consented, the undertaking given on behalf of the second respondent before the present appeal was instituted and the imminent hearing of the appeal, I am satisfied that the justice of the case warrants relief in terms of the motion. The appellant is at present suspended from the public service but he is in receipt of salary and therefore he stands to lose by action of the second respondent dismissing him.

There will be an order in terms of sub-paras. (a) and (b) of para. 2 of the notice of motion, expressed to operate until the determination of the appeal or until further order. There will also be an order abridging the time for the hearing of this motion to enable it to be dealt with today.