Dr. James, B. v MacDonald, B

[1994] FCA 692

JUDGMENT No. ..6..-,, 9 2 J - 9%

IN TAE FEDERAL COURT OF AUSTRALIA	1
NEW SOU'PE WALES DISTRICT REGISTRY	) No. NG 631 of 1994
GENERAL DIVISION	1

DR BART JAMES

Applicant

AND :

BRIAR HacDONALD

Respondent

CORAM:	LINDGREN J
PLACE :	SYDNEY
DATE :	16 SEPTEMBER 1994  28 SEP 1994

FEERM a lURT 0.

AUSTRALU

PRINCIPAL

-

HIS HONOUR: In these proceedings the applicant applies for an order of review of a decision of the respondent made on 12 September 1994, described as being pursuant to Regulation 116 of the m i c Service Act 1922 (Cth) ("the Act"), to direct the applicant to perform the duties of the office of Veterinary Officer Class 2, Vet Pool, Brisbane in the Australian Quarantine and Inspection Service effective from 19 September 1994, that is to say from next Monday. It is common ground that the reference to "Regulation 116 of the Public Service Act 1922" should be a reference to regulation 116A of the Public Service Regulations under the Act.

Manager, Operations Division of the Australian Quarantine and	Brian MacDonald, appears to be the National Operations
Inspection Service. The applicant is employed by that Service in Casino and the effect of the decision which is attacked is to require him to relocate to Brisbane next Monday.
Within the application which commenced the proceedings there is an application for an interim order pursuant to S. 15 of

The decision which is attacked is expressed in a letter dated 12 September 1994 which follows upon earlier correspondence between the parties. I ehould record that the respondent,

. . . .

the 1 s -) Act 1977 (Cth)

("the BpwBI Act"). The interim order is expressed as an order that the Court suspend the operation of the decision impugned until further order of the Court.

In the course of the hearing of the application for interim relief before me today it has been made clear that the applicant is due to be on leave, in any event, for the next fortnight, that is, the fortnight commencing next Monday, 19 September 1994. In other words, even in the ordinary course of events, he would not be required to attend for work during that fortnight. To that extent, for a fortnight at least, the direction that he relocate to Brisbane will, in effect, not produce any result in what he does from day to day.

It has been possible for a date to be found for the final hearing of these proceedings, namely 30 September 1994 which, it will be noted, occurs within that fortnight. Moreover, the parties through their legal representatives have agreed on

order that the matter may be prepared for final hearing on 30 short minutes of orders as to the course to be followed in	September. This is of course commendable. It is, however,
unfortunate that the parties have not been able to agree on the form of any undertaking or interlocutory relief which ia to operate in the meantime. Thus this judgment becomes necessary.
In summary, the case for the applicant is that the decision has been taken for disciplinary reasons and that this is not a permissible way of exercising the power conferred by regulation 116A. The case for the applicant is that disciplinary matters are covered by Division 6 of Part I11 of the Act. It does not seem necessary for me to embark upon a detailed consideration of the submission. Briefly it may be noted that subsection 5 5 ( 1 ) defines "misconduct" in relation to an officer as "a failure of the officer to fulfil his duty as an officer" and that the notion of failing to fulfil duty as an officer is defined in S. 56 of the Act in a manner which involves an element of culpability as distinct from unavoidable incapacity for which the officer in question cannot be criticised. I do not mean to express in a final and considered way the effect of S. 56 but I think that for present purposes the description which I have given is adequate.
I think that it is at least arguable that disciplinary matters
are to be dealt with within the rubric of Division 6 which is relevantly a "code", and that it is not permissible to utilise regulation 116A for that purpose.
The question then arises whether in this particular case the decision which is attacked was one which was taken for disciplinary reasons or partly for disciplinary reasons. That question requires a consideration of the correspondence, copies of which have been annexed to the a£ fidavite filed in the proceedings.
expressing certain concerns relating to the applicant's On 17 August 1994 the respondent wrote to the applicant
performance of work as Veterinary Officer in Charge of the Casino Abattoir. The letter listed concerns which Mr MacDonald had, although he made it clear in the letter that his concerns were not limited to those mentioned in the letter. The concerns which were lieted are as follows:

"- an apparent deterioration and subsequent breakdown

in the working relationships and leadership of the

Plant Management Team;

- poor observance of AQIS management systems required
to monitor plant activities;

- your apparent inability to provide management and

other reports to AQIS supervisors and managers in a

timely manner and in sufficient detail;

- adverse reports received from Company management

regarding the delivery of AQIS services; and

- your apparent inability to properly represent AQIS

as evidenced by your extraordinary action in walking out of a meeting with Company management without

explanation. *

The letter goes on to express the view of the writer (the respondent) that the applicant would benefit for a time from closer supervision and that it would therefore be in his interests and that of AQIS and the Australian Public Service generally if he were to be temporarily transferred to another position.

The letter contained a direction, purportedly "pursuant to Public Service regulation 116" that the applicant perform the duties of another officer at his current classif ication level namely "Veterinary Officer Level 2, Vet Pool, Brisbane, Position No. 8068" with effect on and from Monday 22 August 1994.

Apparently there were proceedings before the Australian

way which does not matter, caused the direction which was	Industrial Relations Commission and those proceedings, in a
given in the letter dated 17 August 1994 to be "put on hold" for the time being.
On 12 September 1994 the respondent again gave the impugned direction for relocation to Brisbane effective from 19 September 1994. There is no suggestion that the reasons which prompted the letter dated 17 August 1994 had altered, or that they were not the same reasons which prompted the letter dated 12 September 1994. At leaet the second and fifth reasons stated in the earlier letter (and quoted above) involve an
allegation of which culpability on the applicant's part is an element.
All that I am required to determine on this interlocutory application is whether there is a serious question to be tried as to whether the applicant will succeed on a final hearing and, if so, whether the balance of convenience favours the granting or withholding of the interlocutory relief sought:

ent and Ethnic Affaira

v (1992) 34 FCR 169.

The way in which, as I have said, the applicant puts his case primarily is that the decision taken in reliance on regulation 116A was not authorised by that regulation. An alternative basis is that even if it was so authorised, the decision was taken without observance of the rules of natural justice and that those requirements applied to the taking of this decision. It suffices for me to say that I think that there is a serious question to be tried in both respects.

The second matter which the application for interlocutory relief raises is the balance of convenience. It has been put for the respondent that the balance of convenience is against the granting of interlocutory relief, particularly in view of the fact that a hearing has now been fixed for 30 September. I do not agree. An undertaking has been offered by the	respondent not to require the applicant to relocate to	Brisbane during the period down to the hearing on
30 September. However, it is possible for the decision to be
acted upon in other ways. It is true that these might not be self evident, but, for example, the very taking of the decision could be treated as valid and comunicated to other persons as though it is an effective decision. In my view, the undertaking offered, although it goes very far indeed towards meeting the applicant's position, does not go quite far enough.
I propose to grant interlocutory relief in terms of S. 15, but only down to the time of the conclusion of the final hearing on 30 September, or more accurately down to 5 pm on that day. It may well be, of course, that although the hearing will be concluded on that day, judgment will be reserved and if that eventuates, it will be a matter for the trial judge whether to extend, either in the form in which I give it or in some modified form, interlocutory relief.
Accordingly, the formal orders of the Court will be as follower
(1) I make directions in accordance with paragraphs 1, 2, 3, 4, 5, 6, 7 and 8 of short minutes of orders, signed by counsel for both parties, initialled by me and dated today and placed with the papers.
(2) I note that the effect of paragraph 8 of the short minutes is, and I so order, that the proceedings be fixed for hearing on 30 September 1994 at 10.15 am.
(3) Until 5 pm on 30 September 1994 or further order of the Court, I suspend the operation of the decision referred to below and order that all and any proceedings on that decision be stayed:

The decision of the respondent communicated by the

respondent to the applicant in a letter dated 12 September 1994 requiring the applicant to perform the duties of another officer at his current classification level, namely, Veterinary Officer level 2, Vetpool Brisbane, position number 8068 as from Monday 19 September 1994.

(4) 1 order that costs to date be reserved.

I certify that this and the preceding 6

pages are a true copy of the Reasons for Judgment of the Honourable Justice Lindgren

Associate: f l k ~ b

Dated:  28 sep&er 1994

16 September 1994
Sydney

16 September 1994

Mr J H Pearce of counsel instructed by

Geoffrey Edwards h CO appeared for the

applicant.

Mr G Elliot of counsel instructed by the

Australian Government solicitor appeared

for the respondent.