Dempster v Comrie

[1999] FCA 956

FEDERAL COURT OF AUSTRALIA

Dempster v Comrie [1999] FCA 956

NO QUESTION OF PRINCIPLE – interlocutory relief, balance of convenience, no utility in granting interlocutory relief in the circumstances.

NIGEL DEMPSTER v M N (NEIL) COMRIE, CHIEF COMMISSIONER OF POLICE FOR THE STATE OF VICTORIA (in his capacity as employer as nominated by the Governor in Council) & ORS

V 299 of 1999

MARSHALL J
22JUNE
ADELAIDE (heard in Melbourne and Adelaide, via video link)

IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY	V 299 OF 1999

BETWEEN:

NIGEL DEMPSTER
Applicant

AND:

M N (NEIL) COMRIE CHIEF COMMISSIONER OF POLICE FOR THE STATE OF VICTORIA (in his capacity as employer as nominated by the Governor in Council)
First Respondent

NOEL ASHBY (Assistant Commissioner (Training))
Second Respondent

THE STATE OF VICTORIA
Third Respondent

JUDGE:

MARSHALL

DATE OF ORDER:

22 JUNE 1999

WHERE MADE:

ADELAIDE

THE COURT ORDERS THAT:

1.The application for interlocutory relief be dismissed.

2.The directions hearing be adjourned until 15 July 1999 at 10.15 am.

Note:    Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY	V 299 OF 1999

BETWEEN:

NIGEL DEMPSTER
Applicant

AND:

M N (NEIL) COMRIE CHIEF COMMISSIONER OF POLICE FOR THE STATE OF VICTORIA (in his capacity as employer as nominated by the Governor in Council)
First Respondent

NOEL ASHBY (Assistant Commissioner (Training))
Second Respondent

THE STATE OF VICTORIA
Third Respondent

JUDGE:	MARSHALL
DATE:	22 JUNE 1999
PLACE:	ADELAIDE (heard via video link in Melbourne)

REASONS FOR JUDGMENT

1. These brief reasons for judgment should be read with my judgment of yesterday in this proceeding. These reasons deal with the issue concerning whether Mr Dempster’s current secondment has been extended or will be extended beyond 30 June 1999.

2. I am prepared to assume that part of the application before the Court which relies on the accrued and/or associated jurisdiction of the Court raises a serious issue to be tried. In considering the balance of convenience, I find on the evidence before the Court that the temporary secondment of Mr Dempster expires on 30 June 1999.

3. I accept the evidence of Mr Ashby that only he and no-one else had the power to approve an extension of Mr Dempster’s current position beyond 30 June 1998. I also accept Mr Ashby’s evidence that such position was not extended by him.

4. Consequently, I would only be prepared to grant injunctive relief at this stage until 1 July 1999. It will not be necessary to do so if the respondents undertake not to effect a transfer of Mr Dempster from his position until the start of work on 1 July 1999. If the respondents wish to resist such an order or not give such an undertaking, I am prepared to hear further submissions on whether there is a serious issue to be tried and other matters going to the balance of convenience.

5. An undertaking having been given by the respondents not to transfer Mr Dempster until 1 July 1999, the Court sees no point in granting any interlocutory relief. The application for interlocutory relief will be dismissed. The Court will adjourn the directions hearing in the proceeding until 15 July 1999.

I certify that the preceding five (5) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Marshall.

Associate:

Dated:             22 June 1999

Counsel for the Applicant:	Mr D Grace QC with Mr R Niall
Solicitor for the Applicant:	Holding Redlich
Counsel for the Respondents:	Mr J Hammond
Solicitor for the 1st and 2nd Respondents:	Freehill Hollingdale & Page
Solicitor for the 3rd Respondent:	Victorian Government Solicitor
Date of Judgment:	22 June 1999 (ex tempore as revised from the transcript)