Peek v CEO, Australian Government Solicitor (No. 3)

[2005] FCA 1925

FEDERAL COURT OF AUSTRALIA

Peek v CEO, Australian Government Solicitor (No. 3)

[2005] FCA 1925

GREGORY JAMES PEEK v CHIEF EXECUTIVE OFFICER, AUSTRALIAN GOVERNMENT SOLICITOR and MEGAN PITT

NSD 880 OF 2005

EDMONDS J
15 DECEMBER 2005
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD 880 OF 2005

BETWEEN:

GREGORY JAMES PEEK
APPLICANT

AND:

CHIEF EXECUTIVE OFFICER
AUSTRALIAN GOVERNMENT SOLICITOR
FIRST RESPONDENT

MEGAN PITT
SECOND RESPONDENT

JUDGE:

EDMONDS J

DATE OF ORDER:

15 DECEMBER 2005

WHERE MADE:

SYDNEY

THE COURT ORDERS THAT:

1.The respondents have leave to file in Court the following affidavits:

(a)T N Phillips affirmed 14 December 2005;

(b)J Smith sworn 15 December 2005.

2.The applicant be referred to the Registrar for referral to a legal practitioner on the pro bono panel for legal assistance pursuant to Order 80 r 4.

3.The applicant’s application for an order restoring his salary and entitlements from 7 November 2005 be refused.

4.The applicant’s motion on notice be otherwise adjourned to a date to be fixed.

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

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD 880 OF 2005

BETWEEN:

GREGORY JAMES PEEK
APPLICANT

AND:

CHIEF EXECUTIVE OFFICER AUSTRALIAN GOVERNMENT SOLICITOR
FIRST RESPONDENT

MEGAN PITT
SECOND RESPONDENT

JUDGE:	EDMONDS J
DATE:	15 DECEMBER 2005
PLACE:	SYDNEY

REASONS FOR JUDGMENT GIVEN EX TEMPORE
(REVISED FROM THE TRANSCRIPT)

EDMONDS J:

1. The applicant moves the Court for various orders set out in a Notice of Motion, filed 13 December 2005, supported by an affidavit affirmed by the applicant on 7 December 2005.  In further support of the orders the applicant relies on affidavits affirmed by him on 24 May 2005 and 18 July 2005, as well as an affidavit of Dr John Pickering, sworn 10 July 2005.  The orders which the applicant seeks may be categorised under the following headings as they appear in the applicant’s Notice of Motion:

   (1)Leave to file an amended application;

   (2)an order that the respondents, on the basis of an alleged failure to fulfil undertakings made to the Court on 8 June 2005, restore payment of the applicant’s salary and entitlements from 7 November 2005 forthwith pending the outcome of these proceedings;

   (3)in addition, or in the alternative to (2):

   (a)an order that the respondents restore payment of the applicant’s salary and entitlements from 7 November 2005 forthwith pending the outcome of these proceedings;

   (b)an order that the respondents refrain from taking further steps to permanently fill the applicant’s pre‑injury position pending the outcome of these proceedings; 

   (4)an order that the applicant be referred to the Registrar for referral to a legal practitioner on the pro bono panel for legal assistance;

   (5)an order that the applicant have leave to join Comcare as a third respondent to the proceedings.

2. On the hearing of the motion, the applicant deferred pressing the orders sought in (1) and (5).  The applicant also deferred pressing that the respondents be ordered to refrain from taking further steps to permanently fill the applicant’s pre-injury position pending the outcome of these proceedings owing to the lateness with which the respondents filed certain evidence in relation to that issue. 

3. All the other orders are opposed, other than the fourth order; namely, that the applicant be referred to the Registrar for referral to a legal practitioner on the pro bono panel for legal assistance.  I hereby make an order in those terms. 

4. There remains the applications (on two alternative bases) for an order that the respondents restore payment of the applicant’s salary and entitlements from 7 November 2005 forthwith, pending the outcome of these proceedings. 

5. The applications for this order are opposed by the respondents.

6. The only real difference between the manner in which the application for these orders is crafted is that, in the case of the first, it is said to be pursuant to the failure of the respondents to fulfil undertakings to the Court of 8 June 2005, namely:  (1) not to take steps to terminate the applicant’s employment; and (2) not to institute disciplinary proceedings against the applicant.   

7. No evidence was tendered which would establish that these undertakings have been breached or not complied with.  On the contrary, in relation to the maintenance of the applicant’s employment contract, it is clear from correspondence which has passed between the second respondent and the applicant, in particular, a letter dated 14 December 2005 from the second respondent to the applicant that, so far as the second respondent is concerned, the applicant’s employment is clearly still on foot.  Indeed, the whole of that letter is predicated on that premise. Nor was any evidence tendered to suggest that there was any threat to terminate the applicant’s employment.  In the circumstances, I find the allegation that there has been a failure to fulfil this particular undertaking to be totally unfounded.

8. As to the allegation that there was a failure by the respondents to fulfil the second undertaking given to the Court, namely, not to institute disciplinary proceedings against the applicant, even the applicant conceded in argument that no proceedings in the nature of disciplinary proceedings had been commenced against him.  He argued that the action that had been taken by the second respondent to place him on leave without pay from 7 November 2005 was punitive and tantamount, as I understood his argument, to the institution of disciplinary proceedings.  I cannot accept that argument.

9. In my view, the undertaking should be confined to disciplinary proceedings as such, and even if the transfer of the applicant’s status from leave with pay to leave without pay can be characterised – and I make no such finding that it can – as disciplinary action, then it would not involve a breach of the undertaking.  Consequently, I am of the view that the applicant has not established that there has been failure by the respondents to fulfil the undertakings they gave to the Court on 8 June 2005.

10. This brings me to the principal application agitated on the hearing of the motion; namely, an application by the applicant for a mandatory order that the respondents restore payment of his salary and entitlements from 7 November 2005 on an ongoing basis pending the outcome of these proceedings.

11. The applicant referred me to various extracts of clauses from an unidentified source document and to extracts from a book entitled ‘Employment Handbook’, in support of his application for such an order.  However, having considered the parts of these documents to which the applicant took me, I am not satisfied that the applicant has established that he has any entitlement as of right to receipt of his salary whilst he is not working, that is, undertaking active duties.  This accords with the observation made by Hely J on 8 June 2005 in these proceedings which his Honour made in the context of the further observation, which I think must be right, that there is no such entitlement in the applicant, even if it be assumed that his exclusion from work is in some way referable to a breach of contract on the part of the respondents.

12. For these reasons the applicant’s application for orders either in their primary or alternative form relating to the restoration of his salary and entitlements from 7 November 2005 must be refused. 

13. In all the circumstances, I propose to defer the question of costs until the applications for the other orders which have been deferred are heard and determined or until the applicant indicates that he no longer intends to move the court for those orders.

I certify that the preceding thirteen (13) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Edmonds.

Associate:

Dated:            11 January 2006

The applicant appeared in person
Counsel for the Respondent:	Mr J J Fernon SC
Solicitor for the Respondent:	Carroll & O’Dea
Date of Hearing:	15 December 2005
Date of Judgment:	15 December 2005