FEDERAL COURT OF AUSTRALIA
Fisk v Chief of the Defence Force [2017] FCA 1489
ORDERS
NSD 1159 of 2016 BETWEEN: SHAUN MICHAEL FISK
Applicant
AND: CHIEF OF THE DEFENCE FORCE
Respondent
JUDGE:
PERRY J
DATE OF ORDER:
8 DECEMBER 2017
THE COURT ORDERS THAT:
1.The application for leave to re-open is refused.
2.The application for leave to further amend the further amended originating application is dismissed.
3.The applicant is to pay the respondent’s costs as agreed or taxed.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
REASONS FOR JUDGMENT
PERRY J:
1 INTRODUCTION
[1]
2 EVIDENCE
[6]
3 BACKGROUND
[8]
4 IS LEAVE TO REOPEN REQUIRED?
[24]
5 THE APPLICATION FOR LEAVE TO RE-OPEN
[28]
5.1 Relevant principles
[28]
5.2 Should leave to re-open be granted
[29]
5.2.1 The proposed amendments
[29]
5.2.2 Relevant statutory provisions
[31]
5.2.3 Are the circumstances exceptional?
[39]
5.2.4 Prejudice to the respondent
[43]
5.2.5 Case management considerations
[48]
5.2.6 Do the proposed grounds have sufficient prospects of success?
[56]
6 CONCLUSION
[60]
1. INTRODUCTION
By an interlocutory application filed on 18 October 2017, the applicant, Captain Shaun Michael Fisk, seeks leave…
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Details
- Case
- [2017] FCA 1489
- Decision Date
CaseChat Overview and Summary
The Federal Court was asked to decide an application made by the applicant, a serving officer in the Australian Defence Force (ADF), to reopen and amend his originating application in his proceedings against the Chief of Defence Force (the respondent). The applicant sought to challenge the validity of the termination of his appointment in the ADF, which had been decided by the respondent following a referral of the applicant's request for a review of the termination decision (ROG). The respondent argued against the reopening and amendment of the application, asserting that it would cause significant prejudice to the proceedings.
The primary legal issue before the court was whether the applicant should be granted leave to reopen and amend his originating application. The court needed to determine if the applicant's proposed changes to the application had real prospects of success and whether exceptional circumstances existed that warranted the reopening of the case. The court also had to consider the potential prejudice to the respondent if the application were to be reopened and amended.
The court found that, although the applicant's proposed changes to the application were arguable, they did not have real prospects of success. The court considered that the lack of exceptional circumstances, the extent of prejudice that the respondent would likely suffer if leave were granted, and the case management considerations all weighed against the grant of leave to reopen. The court further noted that while the applicant's case was arguable, it was not strong enough to warrant the reopening of the proceedings.
Accordingly, the court refused the application for leave to reopen and amend the originating application. The court also dismissed the application for leave to further amend the further amended originating application and ordered the applicant to pay the respondent's costs as agreed or taxed.
The primary legal issue before the court was whether the applicant should be granted leave to reopen and amend his originating application. The court needed to determine if the applicant's proposed changes to the application had real prospects of success and whether exceptional circumstances existed that warranted the reopening of the case. The court also had to consider the potential prejudice to the respondent if the application were to be reopened and amended.
The court found that, although the applicant's proposed changes to the application were arguable, they did not have real prospects of success. The court considered that the lack of exceptional circumstances, the extent of prejudice that the respondent would likely suffer if leave were granted, and the case management considerations all weighed against the grant of leave to reopen. The court further noted that while the applicant's case was arguable, it was not strong enough to warrant the reopening of the proceedings.
Accordingly, the court refused the application for leave to reopen and amend the originating application. The court also dismissed the application for leave to further amend the further amended originating application and ordered the applicant to pay the respondent's costs as agreed or taxed.
Orders
Orders of the court
1. The application for leave to re-open is refused.
2. The application for leave to further amend the further amended originating application is dismissed.
3. The applicant is to pay the respondent’s costs as agreed or taxed.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
Background
Background to the litigation
The respondent relied upon the affidavit of Brooke Marie Griffin, solicitor, affirmed on 26 October 2017, deposing to the background to the interlocutory applications and as to the prejudice which the respondent would allegedly suffer in the event that leave to reopen were allowed. 3. BACKGROUND On 21 October 2015, COL Garraway, Director Officer Career Management – Army issued a termination notice to the applicant pursuant to reg 85 of the Defence (Personnel) Regulations 2002 (Cth) (the Personnel Regulations) requiring him to show cause why his appointment as officer in the ADF should not be terminated on the basis that his retention was not in the interests of the ADF (the termination notice). Following receipt of the applicant’s submissions in response, BRIG Sothart, Director General Career Management–Army, decided to terminate the applicant’s service in the ADF (the termination decision). The applicant acknowledged receipt of the termination decision on 13 May 2016. The applicant submitted a ROG on 27 May 2016 with respect to the termination decision to his commanding officer, LT COL Thompson, pursuant to Part 15 of the Defence Force Regulations 1952 (Cth) (the Defence Force Regulations). The applicant’s termination was held in abeyance pending the determination of his ROG by his commanding officer. LT COL Thompson decided on 21 June 2016 that there were insufficient grounds to support the ROG. On 29 June 2016, COL Garraway decided that the applicant’s termination should be held in abeyance until 20 July 2016 but decided not to grant any further extensions to the date of the applicant’s termination. On 5 July 2016, the applicant referred his ROG to the Chief of Army pursuant to Part 15 of the Defence Force Regulations. The applicant commenced these proceedings by filing an originating application on 15 July 2016. An ex parte interlocutory injunction restraining the CDF and others from terminating the applicant’s service as an officer in the ADF was granted on 15 July 2016. On 18 July 2016 the CDF consented on a “without admission” basis to a continuation of the interlocutory injunction until final hearing of the applicant’s originating application. The originating application was amended on 6 September 2016 to add the ground that the termination notice was invalid as having been issued by COL Garraway without a valid delegation to him by the Governor General under reg 119(1) of the Personnel Regulations. On about 23 September 2016, a delegate of the Chief of Army, BRIG Bornholt, issued a decision not to uphold the applicant’s ROG to the Chief of Army. On 30 September 2016 the substantive application in this Court was adjourned part-heard and listed for further hearing on 19 October 2016 as a consequence of the need to factor the decision by the Chief of Army into the application. On 6 October 2016, the applicant referred his ROG to the CDF pursuant to Part 15 of the Defence Force Regulations. The applicant also filed a further amended originating application. At the hearing on 19 October 2016, the CDF consented on a “without admission” basis to the continuation of the interlocutory order restraining the CDF and others from terminating the applicant’s service as an officer in the ADF until further order. That disposed, as I later explain, of ground 2 of the application. The Court heard argument in respect of the relief sought in ground 1 of the further amended originating application as to the validity of the delegation to issue the termination notice and reserved its decision.
Evidence
Evidence Before The Court
For the reasons set out below, leave to re-open is refused with costs. It follows that the question of whether to grant leave to an appeal and an extension of time does not arise. 2. EVIDENCE The interlocutory applications are supported by: an affidavit sworn by Leslie Patrick Maroun, solicitor, on 13 October 2017; the affidavit of Brian Robert Belling, solicitor, sworn on 31 October 2017; and the affidavit of CAPT Fisk affirmed on 8 November 2017 which was read subject to rulings on objections. The respondent relied upon the affidavit of Brooke Marie Griffin, solicitor, affirmed on 26 October 2017, deposing to the background to the interlocutory applications and as to the prejudice which the respondent would allegedly suffer in the event that leave to reopen were allowed. 3. BACKGROUND On 21 October 2015, COL Garraway, Director Officer Career Management – Army issued a termination notice to the applicant pursuant to reg 85 of the Defence (Personnel) Regulations 2002 (Cth) (the Personnel Regulations) requiring him to show cause why his appointment as officer in the ADF should not be terminated on the basis that his retention was not in the interests of the ADF (the termination notice). Following receipt of the applicant’s submissions in response, BRIG Sothart, Director General Career Management–Army, decided to terminate the applicant’s service in the ADF (the termination decision). The applicant acknowledged receipt of the termination decision on 13 May 2016. The applicant submitted a ROG on 27 May 2016 with respect to the termination decision to his commanding officer, LT COL Thompson, pursuant to Part 15 of the Defence Force Regulations 1952 (Cth) (the Defence Force Regulations). The applicant’s termination was held in abeyance pending the determination of his ROG by his commanding officer. LT COL Thompson decided on 21 June 2016 that there were insufficient grounds to support the ROG. On 29 June 2016, COL Garraway decided that the applicant’s termination should be held in abeyance until 20 July 2016 but decided not to grant any further extensions to the date of the applicant’s termination. On 5 July 2016, the applicant referred his ROG to the Chief of Army pursuant to Part 15 of the Defence Force Regulations. The applicant commenced these proceedings by filing an originating application on 15 July 2016. An ex parte interlocutory injunction restraining the CDF and others from terminating the applicant’s service as an officer in the ADF was granted on 15 July 2016. On 18 July 2016 the CDF consented on a “without admission” basis to a continuation of the interlocutory injunction until final hearing of the applicant’s originating application. The originating application was amended on 6 September 2016 to add the ground that the termination notice was invalid as having been issued by COL Garraway without a valid delegation to him by the Governor General under reg 119(1) of the Personnel Regulations. On about 23 September 2016, a delegate of the Chief of Army, BRIG Bornholt, issued a decision not to uphold the applicant’s ROG to the Chief of Army.
Decision
Reasons for decision
For these reasons, I do not consider that the arguments which the applicant wishes to ventilate lack any real prospects of success which is a factor weighing in his favour. That notwithstanding, I do not accept the applicant's submission that he has a clear and obvious case. 6. CONCLUSION Leave to re-open should be refused with costs given that no exceptional circumstances have been demonstrated warranting the grant of leave to reopen. To the extent necessary, I would have reached the same conclusion on balance having regard to the lack of exceptional circumstances, the extent of prejudice that the respondent would be likely to suffer if leave were granted, the case management considerations to which I have referred, and the fact that, while his case is arguable, I would not characterise the argument as strong.
Ratio Decidendi
Legal Principle Established
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