Staats, S.J. v Commonwealth of Australia

[1991] FCA 598

5        91

JUDGMENT No. ....... . / .... ........ ....

IN THE FEDERAL COURT OF AUSTRALIA )

AUSTRALIAN CAPITAL TERRITORY

) No. ACT G 49 of 1991

DISTRICT REGISTRY	1
)
GENERAL DIVISION	1

BETWEEN: STEVEN JOHN STAATS

Applicant

AND: CO1.lMONWEALTH OP AUSTRALIA.

Respondent

MINUTE OF ORDER

JUDGE MAKING ORDER :	Neaves J.
DATE OF ORDER	3 October 1991
WHERE MADE	Canberra
THE COURT ORDERS THAT:

1.   The application flled herein on 26 August 1991 be dismissed pursuant to Order 20, rule 2 ( 1 ) of the Federal Court Rules on the ground that the application discloses no reasonable cause of action.

PRlNClP, .

2.   The applicant pay the respondent's costs of the application, including the costs of the respondent's motion notice of which was glven on 13 September

1991.

Note: Settlement and entry of

36 of the Federal Court Rules.

RECEI'

- 4 OCT 1991

AUSTRAL -

IN THE FEDERAL COURT OF AUSTRALIA	) )
AUSTRALIAN CAPITAL TERRITORY	1
I No. ACT G 49 of 1991
DISTRICT REGISTRY	1 \
GENERAL DIVISION

BETWEEN: STEVEN JOHN STAATS

Applicant

AND: COMMONWEALTH OF AUSTRALIA:

Respondent

CORM: Neaves J.

DATE: 3 October 1991

REASONS FOR JUDGMENT

Before the Court is a motion on behalf of the Commonwealth of Australia ("the Commonwealth") for an order	b~
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that a certain proceeding pending in the Court at the suit of Steven John Staats as applicant against the Commonwealth as respondent be stayed or dismissed generally pursuant to Order
20, rule 2(1) of the Federal Court Rules on the ground that
the proceeding discloses no reasonable cause of action.

The proceeding was commenced by application filed on ..

26 August 1991 and is supported by an affidavit affirmed by

the applicant on that date. The application expresses the relief sought by Mr Staats ("the applicant") in the following terms: .

"On the grounds appearing in the accompanying affidavit,
the Applicant seeks a Declaratory Judgment of Right:

1.    the Respondent by his [sic] conduct debarred himself [sic] from obtaining injunctions issued in the Federal Court of Australia in the aforementioned proceedings on 17 August 1989 restraining a Disciplinary Appeals Committee from hearing an Appeal lodged by the Applicant 11 July 1989, without this being unable to continue the litigation.

2.    That the Applicant's consent to these proceedings on

17 August 1989 were [sic] obtained by deception and

the Applicant's consent therefore has no validity;

3.    That the injunctions of 17 August 1989 are therefore null and void, and that the Respondent s&idusly breached the Consent Orders of 10 July 1989.

THE APPLICANT claims by way of relief:

1. Consequential thereto the terms of settlement of Myself vs Commonwealth of Australia ACT G 20 of 1989 of 14 March 1990 be struckout;

2.   Judgment be entered for the Applicant and he be awarded compensation for all loss and damage

claimed. "

The reference to "the aforementioned proceedings" is a reference to proceedings in this Court commenced by the applicant agalnst the Commonwealth and numbered ACT G 20 of

1989.

In order to understand the basis of the proceeding

commenced on 26 August 1991 it is necessary to refer in some
detail to the earlier proceedings.

Proceeding No. ACT G 20 of 1989 was commenced by application filed on 7 April 1989. In that proceeding the applicant, who was then an officer of the Australian Public Service occupying a position of Administrative Service Officer, Class 1 (Position No.583) in the Australian Defence

Force Academy within the Department of Defence, sought a declaration that he was not bound to comply with what were referred to as certain directions given to him by an officer of the Department of Defence. The applicant also claimed damages against the Commonwealth.

The application was listed for a directions hearing on 5 May 1989. Prior to that date, a notice of motion was filed on behalf of the Commonwealth seeking an order that the application be set aside. By a notice of motion filed on his behalf on 2 May 1989, the applicant sought an interlocutory injunction against an officer of the Department of Defence, Mr Peter Lush, restraining him, until the hearing and * -

determination of proceeding No. ACT G 20 of 1989, from holding

an inquiry pursuant to s.62(1) of the Public Service Act 1922 (Cth) into certain disciplinary charges that had been lald against the applicant under that Act arising out of the matters the subject of the substantive application.

When the matter came before the Court on 5 May 1989,

Mx Lush, by his counsel, gave an undertaking that he would not

proceed with an inquiry under S. 62(1) of the Act founded upon the several documents purporting to charge the applicant with disciplinary offences. The foundation for the giving of the undertaking was a recognition that the purported charges were defectively drawn. Upon the undertaking being given the applicant's motlon notice of which had been given on 2 May 1989 was dismissed.

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The d~sclpllnary charges were re-drawn and, on 11 May 1989, Mr L.P. Hansar, an officer of the Department of	i l
1.
Defence, signed a series of 16 documents charging the	1 :
applicant with disciplinary offences. Notice of those charges	1:

was given to the applicant on 16 May 1989. On 26 May 1989, 1 ,

the applicant was notlfled by M r Lawrence Baxter that he, Mr Baxter, had been appointed by the Secretary to the Department of Defence to hold an inquiry under S. 62(1) of the' ~iblic

Service Act into those charges.

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On 29 May 1989, the applicant gave notice of a motion which came before the Court on 2 June 1989. By the motion the applicant sought to restrain, until the hearing and determination of his substantive application, the further conduct of the inquiry into the disciplinary charges laid against him. That motion was dismissed. The applicant was granted leave to file and serve an amended substantive application and the matter was adjourned until 30 June 1989.

the appointment of Mr Baxter as the officer to hold the	further motion, this motion being for an order setting aside On 5 June 1989, the applicant gave notice of a
inquiry under s.62(1) of the Public Service Act into the disciplinary charges pending against the applicant. That motion came before the Court on 9 June 1989. No order was made, however, other than to adjourn the hearing of the motion until 30 June 1989. The Court said:

"This matter has been brought before the Court on an urgent application, the effect of which if granted would be to restrain Mr Lawrence Baxter, of the Department of Defence, from further proceeding with an inquiry into certain charges laid against the applicant under section 61 of the Public Service Act. No grounds have been established, in my opinion, to warrant the Court restraining Mr Baxter from proceeding with an inquiry at this stage. I, therefore, make no order on the notice of motion, which is presently before the Court, other than to adjourn it for further hearing on 30 June when the substantive application, which the applicant has lodged in the Court, will be listed for further directions with a view to hearing then, in the light of what has hapcened with the inqulry, whether any further proceedings should be heard in this Court. The application for any immediate relief is, therefore, refused."

On 19 June 1989, Mr Baxter signed a report in writing upon his inquiry into the disciplinary charges pending against the applicant. On 23 June 1989 141 Baxter directed under s.62(6) of the Public Service Act that the applicant be dismissed from the Australian Public Service and in a document of that date set out particulars of his reasons for glving that direction. It does not appear when those particulars were furnished to the applicant. Section 62(10) of the Public Service Act provided:

"(10) A direction under this section in respect of an officer takes effect:

(a)	if the officer appeals against the direction - upon the lapsing or withdrawal of the appeal or upon a Disciplinary Appeal Committee confirming the direction; or
(b)	in any other case - upon the expiration of the period within which the officer may appeal to a Disciplinary Appeal Committee against the direction;

but not otherwise."

The substantive application came before the Court on a directions hearing on 30 June 1989. On that occasion the

Commonwealth by its counsel gave an undertaking "not to take

any action to dismiss the applicant from employment pending

the determination by the Court of the application in its

proposed amended form". Upon that undertaking being given,

the matter was adjourned, certain directions as to its future

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conduct being glven.

On 5 July 1989, the District Registrar of the Court received a letter of that date from the Australian Government Solicitor, Solicitor for the Commonwealth, reading as follows:

"This matter was listed before Neaves J. on 30 June, 1989
for directions.

On that day, Mr Erskine gave an undertaking on behalf of the respondents in relation to the decision of the inquiry officer, Mr Baxter, to dismiss Mr Staats from the Public Service. In essence, that undertaking was that the respondents would take no steps to dismiss Mr Staats.

On close examination of the Public Service Act 1922, it seems that the undertaking may be ineffective in preventing Mr Staats from being dismissed. Section 62(6)

of the Act empowers an inquiry officer to 'direct that	the officer be dismissed from the Service'. Section
62(10) provides that such a direction takes effect upon the expiry of the appeal period for an appeal to a Disciplinary Appeal Committee. It seems that the dismissal is automatic once the direction has been made. Therefore, there is nothing that my clients can undertake not to do, because there is nothing that they have to do to complete the process of dismissal.
If this is right, then Mr Staats' dismissal will take effect from close of business on Monday 10 July, 1989 wlthout any further action by my clients. This was clearly unintended by all parties and his Honour on 30 June.
I would be grateful if you would bring this matter to his Honour's attention to see whether the matter should be relisted before 10 July. I apologise for the fact that
it was not put to his Honour on 30 June."

On 10 July 1989, a notice of motion was filed by solicitors acting for the applicant reading as follows:

"The Applicant wlll at 2.15pm on 10 July 1989 at Childers Street Canberra, move the Court for the following

orders :  -

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1.    that until further order, no action be undertaken by the Respondent prejudicial to the Applicant's continued employment with the Commonwealth; and

2. that until further order, no action be undertaken by the Respondent with respect to any report, disciplinary action or otherwise under the Public Service Act 1922 or otherwise; and

3.    that until further order, a stay in relation to the dismissal or termination of employment of the Applicant be granted in this matter; and

4.    such further orders as the Court sees fit."

Later on that day, 10 July 1989, orders were made by consent in the following terms:

"1. That the leave given to the applicant on 30 June

1989 to amend his application be extended up to and
including 21 August 1989;

2.  That the applicant file and serve any further affidavit material on or before 21 August 1989;

3.  The respondent file and serve any affidavit material on or before 11 September 1989;

3A. The applicant file and serve any affidavit material in reply on or before 25 September 1989;

4.  That the parties be granted liberty to apply on three days' notice;

5.  That until further order, no actlon be undertaken by the respondent prejudicial to the applicant's continued employment with the Commonwealth;

6. That until further order, no action be undertaken by the respondent with respect to any report, disciplinary action or otherwise under the Public Service Act 1922 or otherwise;

7.  That until further order, a stay in relation to the dismissal or termination of employment of the applicant be granted in this matter;

8.  That the matter be adjourned to 1 September 198Y for further directions."

In the course of the proceedings on that day, the Court expressed doubt whether the orders sought in the notice of motion would be effective to prevent the dismissal of the applicant taking effect and suggested that urgent consideration be given to the advisablllty of the applicant lodging an appeal under s.63D(2) of the Public Service Act to a Disciplinary Appeal Committee, the lodging of such an appeal clearly having the effect of preventing, pending the hearing and determination of the appeal, the dismissal taking effect.

On 11 July 1989 the applicant appealed, pursuant to s.63D(2) of the Public Service Act and regs 140 and 141 of the Public Service Regulations, to a Disciplinary Appeal Committee against the direction that he be dismissed from the Australian Public Service. It appears that an extension of time within which to lodge the appeal was granted pursuant to reg.141(2).

In accordance with reg.140, the appeal was lodged with the

Director of the Merit Protection and Review Agency ("the

Agency") established by the Merit Protection (Australian

Government Employees) Act 1984 (Cth). Section 16 of that Act

required the Agency to arrange, from time to time, for the

establishment, in accordance with s.17, of such Disciplinary

Appeal Committees as appeared to it to be required for the

purposes, inter U, of the disciplinary provisions of the

Public Service Act. Section 17 provided that a Disciplinary

Appeal Committee established for the purpose of an appeal

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under s.63D of the Public Service Act was to be constituted

"(a) a Convenor nominated by the Agency;

(b)	a person nominated by the relevant Secretary in relation to the person who appealed or made the request; and
(c)	a person nominated by the organisation that is, as provided by the regulations, the appropriate organisation or, in the absence of such a nomination, nominated in such other manner as the regulations provide."

On 17 August 1989, the Court, by consent, ordered

that the Disciplinary Appeal Committee be restrained until

lodged on 11 July 1989. Further directions were then given	further order from proceeding to hear and determine the appeal
extending the time for the filing of affidavit material on which the parties wished to rely on the hearing of the substantive application.
On 29 August 1989, an amended substantive application and supporting affidavit were filed on behalf of the applicant. Further affidavits were subsequently filed by the parties and the matter was fixed for hearing on 14 March 1990. On that date, the hearing was adjourned until 16 March 1990 and on the latter date the Court was informed that the matter had been settled in accordance with terms of settlement signed by the applicant and the solicitor for the Commonwealth. The terms of settlement, which were dated 14 March 1990, were as follows:

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"1. The respondent will retain one copy of the report and recommendations by Mr Baxter, the inquiry officer in this matter, on the applicant's discipline file held within the Department of Defence, and one copy on the file held by the Australian Government Solicitor;

2. Any other copies of M r Baxter's report and recommendations known to the respondent will be destroyed forthwith and no other copies will be made;

3. The applicant's personnel file held within the

Department of Defence will contain no reference to the discipline file referred to in paragraph 1;

4. The respondent confirms the letters to the applicant

dated 28 September 1989, 4 October 1989 and 5 October
1989, copies of which are annexed to this agreement;

5. These proceedings in the Federal Court will be

discontinued, with no order as to costs;

6. The applicant's appeal to the Disciplinary Appeal

be cancelled upon the applicant's resignation taking	Committee against the recommendations of M r Baxter will	effect;
7. The applicant will forthwith tender his resignation from the Australian Public Service. ; ,

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8. The actions required to be taken by the parties	I ' .
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under this agreement will be completed forthwith upon the
signing of this agreement."	1.
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It is unnecessary to set out the terms of the letters

identified in par.4 of the terms of settlement.	I '
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The Court noted the terms of settlement and, at the request of the parties, made the following orders -

"1. Pursuant to Order 22, Rule 2(l)(d) of the Federal Court Rules, leave be granted to the Applicant to discontinue the Application herein; and

2.  Each party bear his or its own costs of the Application."

Later on 16 March 1990, the applicant filed a notice of discontinuance of the proceedings. On a date which does not appear from the material before the Court, the applicant resigned from the Australian Public Service.

The case which the applicant seeks to make against the Commonwealth in the substantive application filed on 26 August 1991 has its foundation in an allegation that the Commonwealth, by its officers, committed a serious breach of the order (Order 6) made by consent on 10 July 1989 that, until further order, no action was to be undertaken by the Commonwealth "with respect to any report, disciplinary action

or otherwise under the Public Service Act 1922 or otherwise".	In support of that allegation the applicant relies on certain
documents to which I shall now refer.
The first of the documents in point of date is a note dated 2 August 1989 made by Dr Jarvis, a Senior Adviser within the Merit Protection and Review Agency. That note reads :

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"I phoned Mr ~rskine (AGS acting for Defence Dept) to

confirm his previous advice that the court order was not	l
binding on the Agency even though it was served on the	1 ,I
Defence Department but expressed to refer to 'the Commonwealth' as respondent.
2. Apart from the fact that it (the order) had been	i ' I . .
sought in relation to the Defence Dept. and served only
on the Dept. M r Staats had, by lodging an appeal to the	i
DAC acted contrary to the notion that the order was	1 ~,
intended to apply to the DAC.	l
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Appeal dated 11/1/89. Order dated 10/7/89.	! ..

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3.	I advised MS Cargill accordingly."	1 .
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The next document in chronological order is a note

dated 8 August 1989 made by MS B. Penny of the Merit

[:.

Protection and Review Agency. That note records the substance I ' 1 :

of telephone conversations had by MS Penny on that date. It	I
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records that she was informed by Mr D. Kelly of the Department
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of Defence that the Departmental nominee on the Disciplinary
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Appeal Committee was M r N. Bateson and that Mr Erskine of the	i
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Australian Government Solicitor's Office wished to call 3 or 4	i

witnesses on the hearing of the appeal.	The memorandum also	I
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records concern being expressed whether Orders 5 and 6 of the	:.
orders made by the Court on 10 July 1989 prevented the appeal

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proceeding before the Disciplinary Appeal Committee.

The third document is a memorandum dated 11 August 1989 addressed by MS K. Cargill of the Merit Protection and Review Agency to MS M. Linkenbagh, Convenor, Disciplinary Appeal Committee, reading as follows:

"As previously discussed, the hearing of the above appeal
has been scheduled for:

Date : Monday 21 August 1989

Time :	9.30 am
Venue :	Hearing Room, Level 3, Merit Protection and Review Agency, 65-67 Constitution Avenue, Campbell.

I have advised the other Committee members that a pre-

hearing meeting has been scheduled for 9.00 am on Monday

21 August 1989 at the above address.

The other Committee members are:

Mr N o n Bateson (Departmental Nominee) Phone: 462678

Mr Car1 Buik (Union Nominee) Phone:. 642916

The representatives for the parties to the appeal are:

Department's	Representative:	M r Chris Erskine
Phone: 462156

Appellant's representative: Himself

Phone:

I have enclosed Part 'A' of the papers to be used by the department at the hearing and Part 'B' of the papers will be forwarded to you as soon as possible. The department has made these papers available to the appellant.

Should you have any queries regarding this appeal please contact MS Bev Penny, or in her absence Kerry Cargill, on [phone]."

The arrangements referred to in those documents were

presumably made pursuant to the provisions of regs 12 and 13

of the Merit Protection (Australian Government Employees)
Regulations. Regulation 12 provided that, where the Director

of the Agency received an appeal in accordance with reg.141 of the Public Service Regulations, he was, as soon as practicable, to obtain the name and address of the nominees to constitute the Disciplinary Appeal Committee and refer the appeal together with those names and addresses to a Convenor of a Disciplinary Appeal Committee. Regulation 13 provided that, as soon as possible after a Convenor received the

material, the Convenor was to fix the date on which and the

time and place at which the Disciplinary Appeal Committee would hear the appeal and notify the parties and the other members of the Committee.

In the course of his oral submissions, the applicant made it clear that he did not seek to argue that the orders

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made by consent on 10 July 1989 precluded the Merit Protection and Review Agency taking the necessary steps to constitute a Disciplinary Appeal Committee to hear his appeal or arranging a date, time and place for the hearing of that appeal. His submissions, however, focussed upon the actions of Mr Kelly of the Department of Defence and Mr Erskine of the Australian Government Solicitor's Off ice, both officers of the Commonwealth, in taking the steps in relation to his appeal which are ascribed to them in the documents to which reference has already been made. Those steps were, according to the

submission, properly described as action "with respect to any

report, disciplinary action or otherwise under the Public

that order and a contempt of court. The applicant further	of the consent orders and, thus, their taking was a breach of Service Act 1922 or otherwise" within the meaning of Order 6
alleged that the Commonwealth had failed, prior to the granting of the injunction on 17 August 1989 or to his giving his consent to the granting of that injunction, to disclose to him or to the Court that Mr Kelly and M r Erskine had taken

those steps. The submission continued that, the Commonwealth being in breach of the orders made by the Court on 10 July 1989, was debarred from applying for the injunction granted on 17 August 1989. It was said that the Commonwealth had been guilty of deception in obtaining the injunction and had been motivated by the circumstance that, had it not obtained that

injunction, it would have been unable to continue to defend , .

proceeding No. ACT G 20 of 1989. The applicant further asserted that, had he been made aware at the time of the steps taken by blr Kelly and M r Erskine, he would not have consented to the granting of the injunction on 17 August 1989, he would have taken proceedings against the Commonwealth for contempt of court and would have applied to the Court to have the Commonwealth struck out as a respondent to proceeding No. ACT G 20 of 1989. He further said that, had he been aware of those facts, he would not have consented to the terms of settlement dated 14 March 1990.

In relation to the relief sought, the applicant disclaimed any intention of seeking to have the order made on	16 March 1990 giving him leave to discontinue proceeding No.
ACT G 20 of 1989, or the notice of discontinuance filed pursuant thereto, set aside. He said that he did not seek to be re-instated in the Australian Public Service or to have the Court review the legality of Mr Baxter's report or of his

direction that he be dismissed. What he sald he was seeking	l	i-
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was a declaration that the injunction granted on 17 August	;
1989 was improperly obtained, a consequential order setting	i	I
aside the terms of settlement dated 14 March 1990, and	I
judgment for loss and damage suffered by him as a result of	:	1
the Commonwealth's deceptive conduct.

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It does not appear from the material before the Court whether the applicant was informed on or about 11 August

1989 that the Disciplinary Appeal Committee proposed to	!:
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commence hearing his appeal on 21 August 1989 or, if he were	l -
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so informed, whether he objected to the Committee so	I
proceeding. In any event, the circumstances were such as to
make it appropriate that the hearing and determination of the
appeal should await the determination by the Court of the
substantive application then pending before it. It was	, '
clearly to this end that the orders made on 17 August 1989	, .
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were directed. The sole purpose of the injunction granted by consent on that date was to preserve the situation that the
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purported dismissal of the applicant from the Australian	r
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Public Service would not take effect until the Court had heard	,
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and determined the then pending proceeding. The extent to	I.
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which steps may have been taken to constitute a Disciplinary	!
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Appeal Committee to hear the applicant's appeal and to prepare for the hearing of that appeal was not a matter material to the orders that the Court was then being asked to make. There was no necessity for the Court, or for that matter the applicant, to be informed whether any such steps had been taken or, if so, what those steps were. Clearly, there was no deception of the Court. Nor was there any infringement of the applicant's rights.

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But, even if a conclusion were to be reached that the steps taken by officers of the Commonwealth in relation to the applicant's appeal following its institution on 11 July 1989 constituted a breach of the consent orders made on the previous day - and I make no such finding - that would, in my opinion, provide no foundation whatsoever for havlng the injunction granted on 17 August 1989 or the terms of settlement dated 14 March 1990 set aside. Neither the failure of the Commonwealth to inform the applicant of what had been done by way of preparation for the hearing of the appeal nor

~ t s conduct in seeking the injunction that was granted on 17 August 1989 provides any basis for a claim against the

Commonwealth sounding in damages.

Accepting that it is only in a clear case that the Court will summarily terminate proceedings (see General Steel Industries Inc. v. Commissioner for Railwavs f N . S . W . 1 (1964) 112 C.L.R. 125 at pp.128-g), I am left in no doubt that the application filed on 26 August 1991 and the supporting

affidavit affirmed by the applicant on the same day dlsclose no basis upon which the applicant could obtain any of the relief sought in the application. The application is, therefore, dismissed pursuant to Order 20, rule 2(1) of the Federal Court Rules as disclosing no reasonable cause of action. The applicant must pay the Commonwealth's costs of

the application, including the costs of the motion notice of < -

whlch was given on 13 September 1991.

I certify that this and the

preceding 17 pages are a true copy of the Reasons for Judgment herein of the Honourable Mr Justice Neaves .

V Associate

Dated: 3 October 1991

The applicant appeared in person
Counsel for the Commonwealth	: Mr T. Howe
Solicitor for the Commonwealth	: Australian Government

Solicitor

Date of hearing	: 23 September 1991
Date of judgment	: 3 October 1991