Li v Commonwealth of Australia (No 1)
[2012] FCA 1390
•7 December 2012
FEDERAL COURT OF AUSTRALIA
Li v Commonwealth of Australia (No 1) [2012] FCA 1390
Citation: Li v Commonwealth of Australia (No 1) [2012] FCA 1390 Parties: TING LI v COMMONWEALTH OF AUSTRALIA File number: NSD 1494 of 2012 Judge: PERRAM J Date of judgment: 7 December 2012 Catchwords: PRACTICE AND PROCEDURE – Interim injunction – whether balance of convenience favours grant of interim injunctive relief Legislation: Racial Discrimination Act 1975 (Cth)
Defence (Personnel) Regulations 2002 (Cth) regs 15, 49, 119
Date of hearing: 23 November 2012 Place: Sydney Division: GENERAL DIVISION Category: Catchwords Number of paragraphs: 19 Counsel for the Applicant: AW Street SC, R Francois Solicitor for the Applicant: Bainbridge Legal Counsel for the Respondent: K Eastman SC Solicitor for the Respondent: Clayton Utz
IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
GENERAL DIVISION
NSD 1494 of 2012
BETWEEN: TING LI
ApplicantAND: COMMONWEALTH OF AUSTRALIA
Respondent
JUDGE:
PERRAM J
DATE OF ORDER:
7 DECEMBER 2012
WHERE MADE:
SYDNEY
THE COURT ORDERS THAT:
1.The interlocutory application be dismissed.
2.Costs be costs in the cause.
3.The matter be listed for further directions on Thursday 13 December 2012 at 9.30 am.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
GENERAL DIVISION
NSD 1494 of 2012
BETWEEN: TING LI
ApplicantAND: COMMONWEALTH OF AUSTRALIA
Respondent
JUDGE:
PERRAM J
DATE:
7 DECEMBER 2012
PLACE:
SYDNEY
REASONS FOR JUDGMENT
The applicant is a Major in the Australian Army. In the proceedings he has filed in this Court, he seeks compensation for what he alleges was racist behaviour in his workplace. He also seeks declaratory and injunctive relief. The alleged racist behaviour also gave rise to an incident – the terms and nature of which are in dispute – as a result of which Major Li has been subject to various disciplinary actions, including a court martial.
Pending the trial of the matters in this Court, Major Li has sought interim relief, which is the subject of the present application. He seeks three orders:
1.an order restraining the Commonwealth from acting upon a decision not to renew his employment;
2.an order restraining the Commonwealth from imposing a segregation order upon him; and
3.an order restraining the Commonwealth from posting him in Sydney away from his family in Canberra.
I accept that Major Li has an arguable case for trial in the sense necessary to sustain a claim for interim relief. The questions which arise relate, therefore, to the balance of convenience.
It is useful to consider the issues by reference to each of the interim orders sought.
I. The proposed order to restrain the Commonwealth from acting on its decision not to renew Major Li’s employment
Major Li is a Legal Officer. He was appointed to the rank of Major by the Governor-General under reg 15 of the Defence (Personnel) Regulations 2002 (Cth). Under reg 15(3), the Governor-General must specify the officer’s period of service and may do this by specifying a ‘fixed period’. Such a fixed period may thereafter be extended by the Chief of the officer’s service following application by the officer: reg 49(2)(a). In the case of Major Li, Lieutenant Colonel Stevens (exercising authority delegated to him under reg 119(3)(a)(ii)) extended his fixed term of service on 5 November 2009. That period is now due to expire on 19 January 2014, that is, the year after next. It was accepted from the Bar table that the Governor-General’s decision to impose a fixed term on Major Li antedated the events of which complaint has now been made. This is consistent with Major Li’s evidence that Legal Officers are generally appointed on fixed terms. Major Li’s application to extend his fixed period of service, however, appears to have been made between the two ‘racial slurs’ alleged in his originating application in this Court.
Contrary to that which the proposed order might suggest, the Commonwealth has not decided not to renew Major Li’s employment. Instead, it is currently considering his application that it do so. In that circumstance, the application for this order is premature. More is that so when his current employment does not expire until 2014. I decline the order sought.
II. The proposed order restraining the Commonwealth from continuing the posting of Major Li away form his family in Canberra
From 12 August 2004 to 1 May 2011, Major Li was posted to a position in Defence Legal Division at its Campbell Park Offices in Canberra. From 17 January 2011 until 30 April 2011, he was under the supervision of Colonel Waddell and Lieutenant Colonel Freeman. In his originating application, Major Li alleges breaches of the Racial Discrimination Act 1975 (Cth) against both officers. Responsibility for Major Li’s career development during that time was, however, in the hands of Lieutenant Colonel Duncan. On 12 April 2011, Major Li canvassed with Lieutenant Colonel Duncan various career options for him in an email of that date. In that email, Major Li said that he did not think that it was ‘tenable for [him] to return to Defence Legal under [Colonel] Waddell’s supervision’ as ‘[t]his would have the effect of placing [Major Li] in an environment where [his] unfair treatment would only continue’.
I interpolate here that Major Li has a wife and child who live in Canberra. After sending that email, but before 22 April 2011, Major Li had a discussion with Lieutenant Colonel Duncan in which he indicated his willingness, as a last resort, to agree to a posting away from Canberra on the basis that he was ‘married/separated’. That this is so appears from an email he sent Lieutenant Colonel Duncan on 26 April 2011. This email was sent in response to an email from Lieutenant Colonel Duncan in which she told Major Li that she had obtained a posting for him in Sydney at Victoria Barracks HQ Forward Command. In Major Li’s response of 26 April 2011 he said:
Dear Ma’am,
Thank you for informing me of my new posting. I appreciate you giving me a new job but I am slightly disappointed that a Canberra posting can not be secured. I agreed to the married/separated option as a last resort as opposed to going back to Defence Legal.In any event, Major Li was thereafter posted to Victoria Barracks in Sydney. His posting was initially to a ‘pool’ position for the period 1 May 2011 to 20 January 2013. Lieutenant Colonel Duncan gave evidence before me that a pool position usually had associated with it no specific duties and was often used, for example, in the case of soldiers requiring rehabilitation.
On 16 January 2012, this state of affairs altered when Major Li received a fresh posting to Victoria Barracks which was, however, no longer a pool position. Instead, he was to serve as a Major in a position known as ‘SO2 Legal HQ FORCOMD’ for a period of two years. At the time, Lieutenant Colonel Duncan observed to Major Li that ‘[p]rofessionally, this is a good outcome for you’.
The burden of the interim order now sought by Major Li is to redeploy him to Canberra pending the trial of this action so that he can be with his family. His wife, Lieutenant Li, is an Army graduate doctor. During 2012 and 2013 she is, or will be, completing her internship and residency at Canberra Hospital. As is not unusual for interns, the hours are potentially very demanding. This has led to serious difficulties with childcare for their young child. The couple has been forced, in consequence, to engage an au pair. Tragically, in June this year, the couple lost a twenty-week unborn child which, I accept, can only have contributed to what is obviously already a stressful situation.
Lieutenant Colonel Duncan gave evidence that there are no positions in Canberra for Major Li, nor any near Canberra. I did not find the attempt in cross-examination to show otherwise persuasive. I accept her evidence.
It is apparent that Major Li was initially content – if not especially enthusiastic – to be posted to Sydney in 2011. He initially agreed (admittedly as a last resort) to a posting in the pool position which was not due to expire until January 2013. It was only in 2012 when Major Li’s wife began her internship at the hospital that the couple’s position has become so very difficult.
I do not think that the balance of convenience favours compelling the Commonwealth to redeploy Major Li away from a posting which was originally due to last until 2013 and to which he agreed. No doubt the consequences of agreeing to a Sydney posting have turned out to be infelicitous but this was always going to be so once his wife commenced an internship. That internship is not related to the events of this litigation. Further, whilst it was asserted from the Bar table that the Commonwealth could easily find a position for Major Li in Canberra, the difficulty is that I am not satisfied that that is so.
In that regard, the proposed order restraining the Commonwealth from keeping Major Li posted in Sydney is transparently a mandatory order. Without the most pressing grounds, I would not be prepared to interfere with internal decisions of the Australian Defence Force concerning the deployment of personnel. Such pressing grounds cannot be present where the officer concerned has consented to the posting from which he now seeks interim relief and where the real driver of the situation is Lieutenant Li’s internship at Canberra Hospital. I decline to make the order sought.
I should say for completeness that I have assumed in the foregoing discussion that this Court would have the power to make the order for redeployment sought. Ms Eastman SC submitted that the Court, in any event, had no such power. In the circumstances, I do not need to consider whether my assumption about power is correct. Even if it exists, it ought not to be exercised.
III. The proposed order restraining the Commonwealth from continuing to impose the segregation order on Major Li
On 25 October 2010, Lieutenant Colonel Freeman, the Deputy Director of Military Justice (Discipline Law), issued a ‘Lawful Command Order’ to Major Li. The effect of this order was and is that Major Li requires express permission to be in a specified part of the offices of the Defence Legal Division in Canberra.
I see no utility in doing anything about this on an interim basis. Major Li is posted in Sydney and the lawful order has no practical operation upon him. It was said for Major Li that it should not have been made and was an infringement of his rights. That submission has little to do with the balance of convenience. I decline to make the order.
IV. Disposition
I dismiss the interlocutory application. Costs will be costs in the cause. I list the matter for further directions on Thursday 13 December 2012.
I certify that the preceding nineteen (19) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Perram. Associate:
Dated: 7 December 2012
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