Staats, S.J. v Hansar, L.P

[1989] FCA 287

JUDGMENT NO. a .6 .?~89

IN THE FEDERAL COURT OF AUSTRALIA	) )
AUSTRALIAN CAPITAL TERR I T m	1
) No. ACT G 20 of 1989
DISTRICT PEGISTRY	)
1
GENERAL DIVISION	)

BETWEEN: STETJEN JOHN STAATS

Applicant

AND:  LEANDER PAUL H A N d

First Respondent

-- HAYMOND B. FINNCGA.

Second Respondent

LAWRENCE BAXTER

Third Respendept

W: Neaves J.

m: 9 June 1989

RFASONS FOR JUDGMENT

On 2 June 1989 I dismissed an applicatl'dn

motion upon notice by Steven John Staats ("the applicant") for an interlocutory injunction restraining the respondents, pending the hearing and determination of a proceeding commenced in this Court on 7 April 1989 by the applicant against the Commonwealth of Australla, from proceeding further upon certain disciplinary charges laid against the applicant under s.61(2) of the Public Service Act 1922 (Cth). When dismlsslng the application I orally gave short reasons for my decision. Those

reasons were not recorded. As the applicant, who appeared in

person, has lndlcated an intcntlon to take the matter further,

lt 1s appropriate that I set out in a little more detsll the

circumstances in w h ~ c h the appllcatlon was made and the reasons
for my dcclsion. This I now proceed to do.

The applicant is an offlcer of the Australlan Public Service employed withln the Department of Defence. He occupies a positlon of Admlnlstrative Service Officer, Class 1 (Position

No.583) ~n the Australian Defence Force Academy. He 1s attached to the mail room withln that establishment.

In the substantive application, which was filed on 7

Aprll 1989, the appllcant seeks declarations that -

"1. The directives Issued by Mr K.E. Dean

director, Budgeting, Finance, Civil

Admlnlstration and Secretariat

Australian Defence Force Academy for and on behalf of the respondent to the applicant 7 March 1989 and subsequent as detailed in the affidavit and documents supporting thls application are invalid and in serious breach of contract. (Particulars of claim are attached.)

2.  As a consequence thereof the appllcant

perform the respondents' dlrectlves as

is, and was, not required at all to

per the respondents directives."

In that proceeding the applicant also claims damages agalnst the Commonwealth. The particulars of claim referred to in the declaratory relief sought are in the following terms:

"1. The respondent has not speclfled pursuant to which Public Service Act regulations such directives issued 7 March 1989 and subsequent as detailed in the affldavlt the respondent has lssued same ;

2.  The sald regular dutles as per dlrectlves lssued 7 March 1989 and subsequent Issued by the respondent to and from academlc departments Unlveroity College twlce dally are not covered by the applicant's duty statement.

3.  The respondent's directlves 7 March 1989 and subsequent are Intended to achleva the applicant's Imminent reslgnatlon who has so advised thereof repeatedly in writlng and orally and to terminate the applicant's employment as a permanent offlcer in the Australlan Publlc Service;

4.  The mode of performing the sald dutles as per the directlves 7 March 1989 and subsequent is inappropriate to the sald duties;

5.  The respondent's directives 7 March 1989 and subsequent present serlous hazards to safety and well belng of the applicant until the academy englneer can provide remedy as specified in Captaln Sharon Quick's mlnute of 29 March 1989 ref 86/466 sent Inter alia to 6 academy heads of department Australlan Defence

Force Academy. "

In support of the substantive application, the

applicant has filed an affldavlt sworn by hlmself on 7 Aprll

7 March 1989 of whlch the applicant complains is contained	1989. From that affidavit it appears that the directive of
In a memorandum bearing that date addressed to the applicant by Mr K.E. Dean, Director, Budgets, Finance, Clvil Administration and Secretariat, Department of Defence. It
reads :

"1. Further to our discussion of pm hours of Monday 8 March 1989 concerning your performance of duty 3 of the Duty Statement (copy attached), you are directed to undertake those duties relatlng to the delivery of mall to and the collection of mall from academlc departments of the University College. Deliveries are to be conducted twlce daily in accordance wlth the agreed schedule.

2. Should you contlnue to refuse to obey my dlrection in thls matter you are advlsed to relate your reasons for your actlons in writlng. In the meantime you are requested to perform the dutles as directed."

The reference to Monday, 8 March 1989 should, it seems, be a reference to Monday, 6 March 1989. The duty statement attached to the memorandum lists the duties of the position as follows -

"1. Asslst in opening mall and sort for

distrlbutlon.

2.  Distribute materlal to Cadet 'plgeon holes'.

3.  Undertake messenger and other duties as requlred."

The affidavit also refers to subsequent correspondence between the applicant and officers of the

Department of Defence in relation to the dlrection given by

Mr Dean. From this correspondence it appears that the applicant asserts that the duty statement of the positlon forms the basls of the contract of employment between himself and the Commonwealth and that the direction glven to him was not validly given as it requlred him to perform duties which do not properly fall within the terms of that

duty statement. The applicant also asserts that the direction was not given bona fide but as part of an orchestrated attempt to induce him to reslqn from the Australian Public Service.

The Commonwealth has filed a conditional apprarance and has given notlce of 1 motion to set aside the application on the ground that the Court has no jurlsdlctlon to entertain it. The motion has not yet been brought on for hearing.

On 4 April 1989, one Ngaire Bryan, who is described
in the documents as an authorised officer for the purposes

of s.61(2) of the Public Service Act, signed a serles of 8 documents purporting to set out disciplinary charges under

that sub-section in respect of the alleged failure by the applicant on various dates between 7 and 30 March 1989 to fulfil his duty as an officer of the Australian Public Service (Public Service Act, s.56(a)). On 5 April 1989, one Damien Kelly, also described as an authorised officer for the purpose of s.61(2) of the Public Service Act, signed a document purporting to set out a further charge against the

applicant for allegedly failing to fulfil his duty as such

officer. On 18 April 1989, Mr Kelly signed a series of 9

documents purporting to set out further charges against the applicant for failing, on various dates between 31 March 1989 and 14 April 1989, to fulfil his duty as an officer of the Australian Public Service.

The applicant was given notice of the above charges on 19 April 1989. On the same day he was informed by Peter Lush, Assistant Secretary, Clvil Personnel, Department of Defence, that he, Mr Lush, had been appointed by the Secretary to the Department of Defence to hold an lnqulry under 5.62 of the Publlc Service Act into the charges.

On 2 May 1989, the applicant gave notice of a motlon for the grant of an interlocutory lnjunctlon agalnst Mr Lush restraining hlm, until the hearing and determination of the substantive appllcatlon referred to above, from proceeding to inqulre Into the disciplinary charges whlch had been lald agalnst him. That motlon came before the Court on 5 May 1989. The motlon was dlsmlssed upon Mr Lush

undertaking by his counsel that he would not proceed with an

lnqulry under s.62(1) of the Public Servlce Act founded upon the several documents purporting to charge the appllcant with falling to fulfll his duty as an officer. The foundation for the giving of the undertaking was a

recognition that the purported charges were defectively

drawn. The respondent to the motion, Mr Lush, was ordered

to pay the applicant's costs of the motion.

The disciplinary charges were re-drawn and, on 11 May 1989, Leander Paul Hansar, Administrative Service Officer, Class 8, Personnel Adminlstratlon Section, Clvil Personnel Branch, Department of Defence, signed a series of 16 documents charging the appllcant with offences of falling to fulfil his duty as an offlcer in that on various dates between 7 March 1989 and 14 April 1989 he wilfully disobeyed

the direction given to him by Mr Dean on 7 March 1989.

Notlce of those charges was given to the applicant on 16 May 1989. On 26 May 1989 the applicant was notlfled by one Lawrence Baxter that he had been appointed by the Secretary to the Department of Defence to hold an lnqulry under s.62(1) of the Public Service Act into those charges.

On 29 May 1989 the applicant gave notice of the motlon which came hefore the Court on 2 June 1989. The applicant submitted that the interlocutory rellef sought should be granted on the ground that any further proceeding upon the charges laid against him would constitute a contempt of this Court. This was said to arise from the circumstance that Mr Baxter, as the officer conducting the lnqulry, would be required to consider whether the direction given by Mr Dean on 7 March 1989 was one which could properly have been given, that being a question which was raised for the Court's determination in the substantive proceeding commenced on 7 April 1989. It was submitted that the Court should restrain the respondents from proceeding

granting of interlocutory relief was opposed by counsel on	heard and determined the substantive application. The further with the disciplinary charges until the Court had
behalf of the respondents.
At the conclusion of the hearing, I was of opinion that the applicant had failed to show sufficient grounds for the interruption, by interlocutory injunction, of the proceedings pending against him under the disciplinary provlslons of the Publlc Servlce Act. In particular, I was unable to accept the submission that the holdlng of the proposed lnqulry Into the disciplinary charges would amount to a contempt of thls Court. The mere circumstance that the offlcer holding the inqulry would be requlred to form a vlew upon a questlon upon which the Court might be required to rule was not, of itself, sufficient to warrant the Court
restraining the further conduct of the administrative
process. Other appropriate remedles would be available to the applicant in the event that, in the course of holdlng the inquiry, the offlcer concerned proceeded on an erroneous view of the law as to the valldlty of the direction on which the dlscipllnary charges are founded. The application was, therefore, dismissed.
In relation to the substantive application pending in the Court, I acceded to a request by the applicant that he be granted leave to flle and serve an amended applicatlon. The applicatlon was adjourned until 30 June 1989 for further directions.

I certify that this and

the preceding 7 pages are a true copy of the Reasons for Judgment herein of the Honourable Mr Justice Neaves.

Associate

Dated: 9 June 1989

The applicant appeared in person

Counsel for the respondents : Mr C.M. Erekine

Solicitor for the respondents : Australian Government

Solicitor

Date of hearing : 2 June 1989