Peek v Chief Executive Officer, Australian Government Solicitor

[2005] FCA 870

FEDERAL COURT OF AUSTRALIA

Peek v Chief Executive Officer, Australian Government Solicitor [2005]
FCA 870

Safety, Rehabilitation and Compensation Act 1988 (Cth) s 36(3)

Blackadder v Ramsey Butchering Services Pty Limited (2002) 118 FCR 395 cited

GREGORY JAMES PEEK v CHIEF EXECUTIVE OFFICER, AUSTRALIAN GOVERNMENT SOLICITOR & ANOR
NSD 880 OF 2005

HELY J
8 JUNE 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:

HELY J

DATE OF ORDER:

8 JUNE 2005

WHERE MADE:

SYDNEY

THE COURT ORDERS THAT:

1.The applicant file and serve points of claim/an outline of contentions on or before 15 June 2005.

2.The first and second respondents file and serve their response on or before 22 June 2005.

3.The first and second respondents file and serve any affidavits upon which they rely on or before 22 June 2005.

4.The applicant file and serve any affidavits in reply by 29 June 2005.

5.The applicant file and serve an outline of submissions no later than 5 working days prior to the hearing of the application (by 29 June 2005).

6.The first and second respondents file and serve a bundle of documents, relevant to the terms and conditions of the applicant’s employment, by 29 June 2005.

7.The first and second respondents file and serve an outline of submissions no later than 2 working days prior to the hearing of the application (by 1 July 2005).

8.The parties file an agreed bundle of relevant correspondence, in chronological order, by 1 July 2005.

9.The proceedings be listed for final hearing on 6 and 7 July 2005.

10.The parties have liberty to apply on 2 days’ notice.

11.The costs of 8 June 2005 are costs in the proceedings.

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:	HELY J
DATE:	8 JUNE 2005
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1. Since about March 1996 the applicant has been employed on a permanent basis by the Australian Government Solicitor (‘the AGS’) as a principal solicitor.  On 8 October 2004 the applicant lodged a claim for compensation under the Safety, Rehabilitation and Compensation Act 1988 (Cth) (‘the SRC Act) on the basis of a claim on his part that he was suffering from a psychological disorder which had developed as a result of his duties with the AGS.

2. On 11 October 2004 the applicant ceased active duties with the AGS on medical advice and thereafter he embarked upon a treatment program which he initiated with a consultant psychiatrist, Dr John Pickering.  Salary payments continued to be credited to his bank account until about mid-December 2004 which payments appear to have been charged against his accrued paid leave entitlement up to that point.

3. On 5 January 2005 Dr Pickering issued a qualified certificate to the effect that the applicant was fit to return to his pre-injury duties from 17 January 2005.  The applicant presented himself for work on 17 January 2005 and thereafter there were discussions and disputes between the applicant and the AGS as to whether the applicant should submit to an independent medical examination before being permitted to return to work.  I should state that the facts which I catalogue are taken from the applicant’s affidavit.  They are the bare facts necessary to explain the decision I propose to give on the interlocutory application and are not to be treated as an exhaustive statement of the case that the applicant has put.

4. The issue of whether Mr Peek should attend a medical examination was deferred pending receipt of a detailed medical report from Dr Pickering and from time to time after 17 January 2005 the AGS determined that the applicant should receive miscellaneous leave on full pay pending receipt of Dr Pickering’s report.  There was a period between about 13 December and 16 January when the applicant was not in receipt of salary because he had exhausted his leave entitlements which had accrued up to that point and he claimed sickness allowances from Centrelink.

5. On about 7 January 2005 Dr Pickering’s report was received by the applicant and forwarded to the AGS shortly after that date.  Dr Pickering in fact issued two reports and I do not propose to summarise them.  Shortly stated, Dr Pickering’s view was that the applicant was fit to resume work providing he was not exposed to any threatening work situations likely to cause excessive anxiety.

6. On 17 March 2005 the AGS advised the applicant that it continued to have concerns as to the applicant’s fitness to return to work and considered that it was necessary to obtain an independent specialist’s report.  The applicant’s consent was sought to the conduct of an examination by a psychiatrist, Dr Parmegiani.  The applicant declined to give that consent. Following some further correspondence between the AGS and the applicant, the AGS, by letter dated 5 May 2005, issued some directions to the applicant after first having afforded him the opportunity to show cause why those directions should not be given.  Those directions were:

   ‘-I direct you to attend for a medical assessment by Dr Julian Parmegiani, psychiatrist, at 10.00 am, on Tuesday, 31 May 2005 at his rooms on the 12th Floor of 370 Pitt Street (between Goulburn and Bathurst Streets) in Sydney.

   -Under subsection 36(3) of the SRC Act I require you to attend Dr Julian Parmegiani, psychiatrist, at 10.00 am on Tuesday 31 May 2005 at his rooms on the 12th floor of 370 Pitt Street (between Goulburn and Bathurst Streets) in Sydney for the additional purpose of Dr Parmegiani assessing your capability to undertake a rehabilitation program within the meaning of the SRC Act.

   -For the time being, and unless otherwise notified in writing, I direct you not to attend for work at AGS.  This direction will be reviewed by me within 3 full working days after receipt of Dr Parmegiani's written assessment of your fitness for duty.  I emphasise that this direction will only remain in place for so long as is reasonably necessary to enable AGS to consider Dr Parmegiani's report and form a view as to your fitness to return to work.  As previously advised, I would consult you in relation to any issues arising from Dr Parmegiani’s report.’

7. The AGS also notified the applicant in that letter that his miscellaneous leave with pay would cease on 16 May 2005 unless he agreed to attend the examination with Dr Parmegiani.  If he did not agree then the applicant’s absence from work thereafter would be treated as leave due to illness or injury.

8. In the meantime, on or about 13 April 2005, Comcare accepted the applicant’s claim under the SRC Act which resulted in a re-crediting of certain of his leave entitlements which had previously been exhausted. The evidence which is before me suggests that if the leave credits were applied in lieu of salary they could expire on 15 July 2005. I was also informed that if the leave credits were applied in that way, should the applicant ultimately succeed in the case which he has brought in this Court, then the leave credits so exhausted would be re-credited to him.

9. These proceedings were instituted on 30 May this year.  Basically, the proceedings claim what might be called administrative or public law relief.  They are not, at least explicitly, structured as a claim for damages for breach of contract.  This is a most unfortunate case from the point of view of all of those who are involved in it and it should be resolved by as early a final hearing as the Court can offer, consistently with affording the parties sufficient opportunity of preparing and presenting their cases.

10. I have been informed by the applicant and by counsel for the respondents that a timetable can be agreed upon which would enable a final hearing to take place on 6 July 2005, hence I propose to fix the matter for final hearing on that date upon the basis that I am informed by both parties that the final hearing should conclude, if not within a day, then certainly within the second day and I will shortly give some directions with a view to getting the matter ready for that final hearing.

11. The application which is currently before me is for urgent interlocutory relief in three forms:

    (a)that the decision of 5 May 2005 requiring and directing the applicant to attend a medical examination on 31 May 2005 be stayed;

    (b)that the decision of 13 May 2005 to suspend salary payments to the applicant by granting him miscellaneous leave without pay be stayed; and

    (c)that the applicant’s discretionary salary payments be restored forthwith.

12. Different considerations apply in relation to each of those claims for interlocutory relief, hence they should be considered individually.  As to the first, the date for attending the medical examination has now passed.  If the direction that the applicant attend that examination was unlawful then his failure to attend the examination is of no legal significance.  The respondent has undertaken not to take any disciplinary or other action with respect to the applicant’s failure to attend the examination on 31 May 2005 pending the resolution of these proceedings.  The respondent has also undertaken not to take any further steps with respect to requiring the applicant to attend a medical examination pending the resolution of these proceedings.  Having regard to all of these matters, I decline in the exercise of my discretion to grant the interlocutory relief which is sought in relation to this aspect of the decision. 

13. As to the second claim, it is trite law that any interlocutory relief should be clearly expressed and certain in its operation.  An order which merely stayed the operation of this decision would be uncertain in its operation and would probably lack any utility as the applicant has not demonstrated any entitlement to pay of a discretionary salary after 16 May 2005 unless there is a positive exercise of a discretion in his favour.  It would be entirely inappropriate simply to stay this decision and in the exercise of my discretion I would decline to do so.

14. The substantive matters that arise under the second claim can really be dealt with in relation to the third.  As I have said, this case is expressed in terms of administrative law remedies rather than in terms of an action for damages for breach of contract and if there is a breach of contract then, of course, ordinarily damages would be an appropriate remedy.

15. It has not been established that the applicant has any entitlement as of right to receipt of his salary whilst he is not working, 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.  More importantly, the applicant has not made out a prima facie case that his exclusion from work is wrongful or unlawful as it results from his failure to attend a medical examination which, prima facie, the respondent was entitled to require him to attend (reference can be made to the decision of Madgwick J in Blackadder v Ramsey Butchering Services Pty Limited (2002) 118 FCR 395 at pars 68 to 69 and to s 36(3) of the SRC Act in this respect). The applicant has not made out an entitlement to the payment of his salary yet what he seeks is that his discretionary salary be restored to him by way of a mandatory interlocutory order. No sufficient cause has been shown which would oblige the respondent to make a payment which it is under no legal obligation to make, or as to why the respondent can or should be compelled to exercise what is accepted to be a discretion in the applicant’s favour.

16. Should the applicant succeed in establishing his case, a monetary entitlement may accrue to him, in terms of some sums of money roughly equivalent to his salary.  In the meantime I do not think the applicant has shown a case which would entitle him, in effect on an interlocutory basis, to receive relief which he might anticipate receiving if he were to succeed at the final hearing.

17. For these reasons I decline to grant the interlocutory relief which the applicant seeks.  I have done what I can to ameliorate the applicant’s position by arranging for an early hearing which can occur before the applicant’s existing leave credits would be exhausted although, of course, it is a matter for him whether he wishes to access those credits.

18. By consent I therefore order that:

    1.The applicant file and serve points of claim/an outline of contentions on or before 15 June 2005.

    2.The first and second respondents file and serve their response on or before 22 June 2005.

    3.The first and second respondents file and serve any affidavits upon which they rely on or before 22 June 2005.

    4.The applicant file and serve any affidavits in reply by 29 June 2005.

    5.The applicant file and serve an outline of submissions no later than 5 working days prior to the hearing of the application (by 29 June 2005).

    6.The first and second respondents file and serve a bundle of documents, relevant to the terms and conditions of the applicant’s employment, by 29 June 2005.

    7.The first and second respondents file and serve an outline of submissions no later than 2 working days prior to the hearing of the application (by 1 July 2005).

    8.The parties file an agreed bundle of relevant correspondence, in chronological order, by 1 July 2005.

    9.        The proceedings be listed for final hearing on 6 and 7 July 2005.

    10.      The parties have liberty to apply on 2 days’ notice.

    11.      The costs of 8 June 2005 are costs in the proceedings.

I certify that the preceding eighteen (18) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Hely.

Associate:

Dated:             28 June 2005

The applicant appeared in person
Counsel for the Respondent:	K Eastman
Solicitor for the Respondent:	Carroll & O’Dea Lawyers
Date of Hearing:	8 June 2005
Date of Judgment:	8 June 2005