Eaton v Overland

[2001] FCA 876

FEDERAL COURT OF AUSTRALIA

Eaton v Overland [2001] FCA 876

CHRISTOPHER EATON v SIMON OVERLAND AND ANOR
A 28 OF 2001

ALLSOP J

29 JUNE 2001

ADELAIDE

IN THE FEDERAL COURT OF AUSTRALIA

AUSTRALIAN CAPITAL TERRITORY

DISTRICT REGISTRY

A28 of 2001

BETWEEN:

CHRISTOPHER EATON
APPLICANT

AND:

SIMON OVERLAND
FIRST RESPONDENT

MICHAEL KEELTY
SECOND RESPONDENT

JUDGE:

ALLSOP J

DATE OF ORDER:

29 JUNE 2001

WHERE MADE:

ADELAIDE

On condition that the applicant file in the Canberra registry by no later than 10.30 am on Monday 2 July 2001, an undertaking as to damages in the usual form prescribed by the relevant practice note, the Court:

1.   Orders that from 10.30 am on Monday 2 July 2001 and until further order the first and second respondents be restrained from taking any action in relation to transferring the applicant, redeploying the applicant or bringing the applicant back to Australia from his current position at Interpol in Lyon on the basis of the investigation and results of investigation of conduct of the applicant between August and November 2000 of sending unauthorised material over the Internet.  The Court notes the undertaking to the Court of the respondents in the meantime (between now and 10.30 am on Monday 2 July 2001) not to take any steps of like kind which hitherto has been the subject of an existing undertaking.

2.   Directs the applicant to file in the registry and to send by facsimile to my associate on Monday 2 July 2001 a draft order in the terms identified.

3.   Orders that the costs of all parties be costs in the cause.

4.   Adjourns the matter to a date to be fixed, for directions.

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

IN THE FEDERAL COURT OF AUSTRALIA
AUSTRALIAN CAPITAL TERRITORY DISTRICT REGISTRY	A28 of 2001

BETWEEN:

CHRISTOPHER EATON
APPLICANT

AND:

SIMON OVERLAND
FIRST RESPONDENT

MICHAEL KEELTY
SECOND RESPONDENT

JUDGE:	ALLSOP J
DATE:	29 JUNE 2001
PLACE:	ADELAIDE (Heard in Sydney and Canberra)

REASONS FOR INTERLOCUTORY JUDGMENT

1. By a further amended application for judicial review, the applicant, an officer of the Australian Federal Police, currently seconded, for want of a better phrase, to Interpol, seeks judicial review and prerogative writs in respect of decisions and conduct of the first respondent, the chief operating officer of the Australian Federal Police, and the second respondent, the commissioner of the Australian Federal Police.  Interlocutory relief is sought by way of injunctive relief in the following terms:

   “restraining the first and second respondents from taking any action in relation to transferring the applicant, redeploying the applicant or bringing the applicant back to Australia from the position of the Australian Federal Police special liaison officer to Interpol in Lyon until further order.”

2. The matter arises from conduct undertaken by the applicant while posted overseas at Interpol in Lyon, France.  Briefly, the circumstances are these:  In March 1999 the applicant was seconded to the general secretariat of Interpol for one year.  In early to mid‑2000 his term was extended for a further two years.  As something is made of it by the applicant, it is important to note that there is an arguable case for the proposition that the applicant began to be employed, at least from the year 2000, by Interpol, and ceased in effect to be employed by the Australian Federal Police.  It is unnecessary to explore the precise boundaries and significance of this submission or proposition made by the applicant.

3. The precise nature of Interpol is not important to identify for this judgment.  The respondents wished to make it clear, and did make it clear, that Interpol is not to be viewed as a governmental agency related to the Australian government, or as an arm of government, but rather it appears to have relevantly some form of legal personality, the precise nature of which is not presently important.

4. The applicant's letter of appointment dated June 2000 and what was termed a declaration of loyalty of July 2000, both in respect of Interpol, give substance to the proposition that he was really attached to Interpol and not the Australian Federal Police in the second half of the year 2000.  If the applicant was in fact attached to Interpol, then the constitution of Interpol required that he not accept instructions from governments or other authorities.  Also, if he was, properly speaking, attached to Interpol, he had rights to be heard arising from the staff rules in respect of disciplinary matters or actions of the secretary‑general concerning him.  As a person attached to Interpol, it would also appear that he was subject to some form of disciplinary regime.  The above are not findings of fact but rather there appears to be sufficient evidence about them to make them at least arguable matters. 

5. The applicant took his family to Lyon.  They live there with him.  He has two twin daughters aged 17, and his wife lives with him in Lyon.  The daughters are at the American school in Lyon.  There has already been some interruption to their schooling by reason of disconformity in school terms in the northern and southern hemispheres. 

6. While the applicant was in Lyon with Interpol, the Australian Federal Police brought in guidelines dealing with the use of the Internet for what might generally be called inappropriate private use.  The applicant does not appear to have known about these guidelines until some time in very late 2000 or early 2001; certainly, it would appear, after the relevant acts in question about which complaint is made by the Australian Federal Police. 

7. In August, October and November 2000, the applicant sent material over the Internet of what might be called a ribald or sexually explicit nature.  It is unnecessary to go into any details.  I have made an order, with the consent of all parties, under section 50 of the Federal Court Act 1976 in relation to the annexures to the second affidavit of Mr Overland, the first respondent.  I made those orders last Friday.  It is sufficient for identification that the material involved some cartoons and some sexually explicit pictures.  The applicant's evidence about this material is at paragraphs 4, 5 and 6 of his affidavit of 7 June, which read as follows.  Paragraph 4:

   On 1 August 2000 I emailed from my home computer three cartoons to a federal agent based in Nicosia, Cyprus.  By mistake I sent these cartoons to that agent's AFP email address rather than his home email address.

   The balance of paragraph 4 is irrelevant.  Paragraph 5:

   On 16 October I emailed from my home computer a "Baywatch" Powerpoint file twice to the same agent.  Again I mistakenly sent this file to that agent's AFP email address rather than his home email address.

   Again the balance of paragraph 5 is irrelevant.  Paragraph 6:

   On 18 November 2000 I emailed from my home computer three sexually explicit attachments to the same Federal Police agent, a colleague at Interpol and, by request from that colleague, to his brother in Italy.  Once again I mistakenly sent these images to the Australian Federal Police agent's AFP email address rather than his home email address.

   Again the balance of paragraph 6 is irrelevant.

8. These messages were intercepted by the Australian Federal Police and an internal investigation was commenced.  By December 2000 agents of the Federal Police interviewed the applicant on the telephone, they being in Australia and he being in Europe.  He had not been informed at this stage of all the matters concerning the relevant investigation.  Without going into the chronology in exhaustive detail, it suffices to say that from January 2001 onwards, with increasing tones of seriousness, this matter was dealt with by the Australian Federal Police.  In May the applicant was given a two‑page document of the first respondent entitled Outcome of Allegation and Notice of Intention to Transfer.  This document said in note 1:

   The purpose of this minute is to notify you of the outcome of the internal investigation. 

   Note 2: 

   Advise you that I am considering your transfer from Lyon to a Canberra-based role.  That has yet to be determined. 

   Note 3:

   Provide you with an opportunity to respond to the prospect of potential redeployment.

   And 4:

   Notify you that I am referring the matter to employment standards for an assessment to determine your suitability for continued employment with the Australian Federal Police.  Before I make a decision in relation to your suitability for continued employment with AFP I provide you with an opportunity to be heard. 

   I do not read the balance of the document. 

9. This communication led to some submissions by the applicant to, in effect, the first respondent.  It also subsequently led to an application for ex parte relief and the giving of temporary undertakings.  The applicant's complaints about the process to which he has been and is being subjected are numerous.  Time does not permit me to set them out exhaustively.  They are contained within the further amended application for review and were elucidated in written submissions and oral submissions made to me before and during a hearing last Friday evening.  The written submissions are on file and I do not set them out, nor do I think it necessary to summarise the oral submissions of either party.

10. It is sufficient for today's purposes to say that first there is an argument that the whole process which has been undertaken by the respondents and the Australian Federal Police has been misconceived as not being undertaken in accordance with a regime said to be mandated by the Australian Federal Police Discipline Regulations 1979. Secondly, it is said that the investigation is without authority as the applicant is strictly speaking attached to Interpol and under the control of that organisation. Thirdly, it is said that the conduct and decisions (and I should interpolate parenthetically that the existence of reviewable decisions is a matter in issue) are infected with various kinds of administrative error, including an absence of procedural fairness, so it is said, Wednesbury unreasonableness, so it is said, and from the oral submissions last Friday I take it that there is to be, or there is, a form of allegation of a lack of administrative good faith.  (I should say, again parenthetically, that as to the last matter I will be touching on that in terms of directions when I have finished this judgment.) 

11. I have considered the submissions of the parties and have come to the following conclusions on an interlocutory basis.  First, there is a real issue for hearing as to whether the respondents and the Australian Federal Police have and has authority to act, how they should have gone about acting, and whether or not the conduct so far undertaken has been so affected by unfairness that it ought be quashed and its effects nullified.  It goes without saying that I have formed no final views about these matters, but for the purposes of assessing an interlocutory application such as this and, in particular, the balance of convenience, I have come to the view that the issues are ones of legitimate substance. 

12. In the absence of cross‑examination and further investigation I would prefer not to label them strong or weak but rather simply leave my description of them as prima facie ones of substance in the sense that they are not obviously hopeless and raise serious issues for trial.  In that light, I go to the question of the balance of convenience.  In this regard I have taken into account matters to which I now refer. 

13. The applicant appears to be presently able usefully to fulfil some functions and roles at Interpol.  There is evidence that he retains the confidence and support of his immediate supervisor and immediate manager, they being two different people.  There is evidence that he continues to be involved in certain key projects which will be of utility to Interpol.

14. There is evidence that the secretary‑general of Interpol has lost confidence in the applicant as an attached officer and wishes him to be removed to Australia.  Were there nothing further to be said about this, that matter would be a powerful consideration in refusing relief.  However, without going into any great detail about it, there is evidence to support the view put forward by the applicant that this view of the secretary‑general has been brought about in part by the applicant not disclosing to the secretary‑general the investigation which he learned was under way about him at an early stage.  There is evidence that it may well be this perceived lack of loyalty, and what is perceived to be conduct contrary to the declaration of loyalty by the applicant, which has apparently brought about the view of the secretary‑general.  There is evidence to the effect that this failure to speak by the applicant was brought about by his bona fide belief that he could not tell the secretary‑general because of his obligations to the Australian Federal Police. 

15. There is also the suggestion in submissions, and some evidential foundation for it at this interlocutory level, though difficult to assess with any precision, that the views of the secretary‑general may have been brought about in part by communications of views by the former Commissioner of the Australian Federal Police reflecting an attitude or conclusion which may itself have been founded or brought about by an investigation being carried on by procedural fairness.  I do not conclude that, nor do I conclude that there was any lack of bona fides in any officer of the Australian Federal Police.  However, the applicant, through his French legal advisers, appears to be seeking to challenge, in such fashion as he can under French law, the manifestation of the secretary‑general's views on grounds not dissimilar to lack of procedural fairness. 

16. Again, the precise nature of what is being done in France and its precise effects are not clear.  However, there is a suggestion, and some basis to support it, that the position of the applicant has been prejudiced at Interpol, by communication of views of those in the Australian Federal Police; and it may well be, depending upon the views taken of this matter at a final hearing, that those views have been brought about by a process subject to and capable of vitiation. 

17. The applicant's family is in France.  The applicant's wife and daughters have arranged their lives on an assumption of a posting until mid‑2002.  Of course, if the applicant has done something which warrants his removal, then any inconvenience to them must be laid at his feet, not at the feet of his superiors in the Australian Federal Police.  However, there is a serious issue as to the legitimacy of any proposal to remove him from Interpol and a serious question as to the effect any such illegitimate action, if it be illegitimate, has had on the secretary‑general in Interpol, and in those circumstances the position of innocent third parties is of some importance.

18. The daughters are at school in France and their removal would see further interruption to their schooling at an important time of their approaching final year in high school.  One alternative which the applicant may have to choose in these circumstances is to leave his family in France while he comes back to Australia.  Such domestic interruption is a matter to be considered of no little moment.  The applicant has also identified a significant monetary cost in removal in paragraph 10 of his submissions dated 6 June 2001.  I do not repeat them here. 

19. In partial or attempted answer to these balance of convenience questions, the respondents have undertaken that the applicant will continue to be paid in accordance with his current terms and conditions until 31 August 2001.  This is contained in the second affidavit of the first respondent in paragraph 17.  I do not think this meets the financial or familial burden referred to above in its entirety.

20. An important consideration in my view, at least at the interlocutory level, is the fact that the applicant says - and he has said on oath - that the complained of activity was in large part intended to be over private facilities and was done in ignorance of the guidelines.

21. While I have taken into account the views of the respondents and their representatives of the seriousness of the matter, there is a serious question able to be propounded by the applicant that the overall response of the respondents and their conduct of the investigation is such which could found a not fanciful argument as to Wednesbury unreasonableness.  In saying this, I do not draw any conclusions and have not formed any final view, but the respondents have viewed and have conducted the investigation and the proposed dealing with the applicant on a basis that the subject matter is one of the utmost gravity.  In those circumstances there is a serious issue to be tried that the applicant is and has at all times since late 2000 been entitled to have made plain to him all the matters which bear upon the matter and to have the matter conducted on the premise that it is, in effect, a disciplinary matter of the most serious kind.  Again, I emphasise that I have not formed final views about these matters at all, but they are matters of impression at an interlocutory level and formed with only the provisional examination of the evidence such an application has allowed.

22. If the applicant is to remain in Lyon, at least at present, and in the light of his immediate superiors' views, there does not appear to me to be any substantial likelihood of irreparable damage to the respondents or to their relationship with Interpol.  On the other hand, if the application is not granted, on the evidence before me, it does appear that it is likely that some step will be taken to have the applicant returned to Australia in circumstances which would give rise to complaint by the applicant of a breach of some form of public law obligation reflected in the further amended application, bringing about the interruption to or cessation of his posting.  In these circumstances there would be brought about the not insignificant inconvenience to his family, monetary damage on the hypothesis of a wrong having been done, and damage to his reputation which would be difficult to assess.  Little, if any, of such damage may be recoverable, even if he were to be successful on a final basis in administrative law relief.  Thus the grant of interlocutory relief for the reasonably short time up to the final determination of this matter can be seen as ensuring loss and damage is not caused to the applicant in circumstances where, were he to win the case on a final basis, he would quite possibly not be able to recover the position lost by the respondents' conduct.

23. Another significant matter to bear in mind, in considering the interlocutory relief, is the fact that the Court can hear this matter on a final basis in the not too distant future.  I will be dealing with dates later.  However, it appears that the Court will be able to hear this matter sometime in August or September. 

24. I have also taken into account the significant public responsibilities of the respondents in exercising their duty in an important organisation in which the appropriate conduct of senior officers, especially in international liaison positions, is a matter of perceived and real importance to the respondents.  These are important public responsibilities to be taken into account.  If the hearing of the matter on a final basis were not able to be dealt with promptly by the Court, as I think it can be, then this question of the entitlement of the respondents to deal with officers of the force in a way in which they perceived to be appropriate would be of greater significance and weight in weighing the relevant factors to which I have referred than I have otherwise accorded it. 

25. Also, the respondents say that there are in effect no operative decisions by reason of the process, largely litigious and partly curial, which has been, it is said, curing the problems of lack of notice of matters and any alleged lack of procedural fairness.  I think this matter falls properly to be considered within the assessment of the existence of a real and substantial issue for trial. 

1. In the light of all that I have said, and in weighing all the evidence which has been filed on the interlocutory hearing, and considering all the written submissions and oral submissions made on behalf of the parties, in my view there are serious issues for trial concerning and reflected by the matters identified in the further amended application, and that the balance of convenience, at least in the coming months, favours the retention of the status quo.  In those circumstances and upon the applicant, if he does so, providing an undertaking as to damages in the usual form required by the practice note, I propose to make an order restraining the first and second respondents until further order from taking any action in relation to transferring the applicant, redeploying the applicant or bringing the applicant back to Australia from his current position at Interpol in Lyon.

2. It is possible that in the months coming, circumstances may change to require a variation or discharge of this order.  I do not suggest that this will be the case.  However, the limitation on the interlocutory order, that is until further order, is not intended to be limited necessarily to the hearing of the matter on a final basis, although that is the usual position; nor, may I hasten to add, am I encouraging any further interlocutory applications in this matter.  I think that given the availability of the Court to hear it on a final basis, it should be dealt with promptly and on a final basis. 

3. Subject to hearing the parties about the matter, I propose that the costs of the interlocutory matter be costs of each party in the cause.

4. The order I make is as follows: that on condition that the applicant file in the Canberra registry by no later than 10.30 am on Monday, 2 July, an undertaking as to damages in the usual form prescribed by the relevant practice note, I order that from 10.30 am on Monday, 2 July and until further order the first and second respondents be restrained from taking any action in relation to transferring the applicant, redeploying the applicant or bringing the applicant back to Australia from his current position at Interpol in Lyon on the basis of the investigation and results of investigation of conduct of the applicant between August and November 2000 of sending unauthorised material over the Internet.  I note the undertaking to the court of the respondents in the meantime between now and 10.30 am on Monday not to take any steps of like kind which hitherto has been the subject of an existing undertaking.

5. I direct the applicant to file in the registry and to send by facsimile to my associate on Monday a draft order in the terms I have identified, which I will deal with and have entered upon my return from leave when I will be in Melbourne on Monday, 9 July.  As to costs I order that the costs of all parties be costs in the cause. 

I certify that the preceding thirty (30) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Allsop.

Associate:

Dated:             10 July 2001

Counsel for the Applicant:	Mr J Purnell SC with Mr C Erskine
Solicitor for the Applicant:	Porter, Parkinson & Bradfield, Canberra
Counsel for the Respondents:	Mr T Howe
Solicitor for the Respondents:	Australian Government Solicitor, Canberra
Date of Hearing:	22 June 2001 (Sydney, parties appearing by videolink from Canberra)
Date of Judgment:	29 June 2001 (Adelaide, parties appearing by videolink from Canberra)