Paterson v Chief of the Army [2001] FCA 14

FEDERAL COURT OF AUSTRALIA

Paterson v Chief of the Army [2001] FCA 14

SERGEANT BRUCE PATERSON v CHIEF OF THE ARMY N 36 OF 2001 LINDGREN J 12 JANUARY 2001 SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY N 36 OF 2001

BETWEEN: SERGEANT BRUCE PATERSON

APPLICANT

AND: CHIEF OF THE ARMY

RESPONDENT

JUDGE: LINDGREN J

DATE OF ORDER: 12 JANUARY 2001

WHERE MADE: SYDNEY

THE COURT ORDERS THAT: 1. The application for interlocutory relief be refused. 2. The proceeding be fixed for final hearing on 6 February 2001 at 10.15 am. 3. The applicant have leave to file and serve an amended application and any such amended application be filed and served by 22 January 2001. 4. The applicant file and serve a statement of claim and all further affidavits on which he will rely by 22 January 2001. 5. The respondent file and serve his defence and any affidavits on which he will rely by 29 January 2001. 6. The applicant file and serve written submissions by 1 February 2001. 7. The respondent file and serve written submissions by 5 February 2001. 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 N 36 OF 2001

BETWEEN: SERGEANT BRUCE PATERSON

APPLICANT

AND: CHIEF OF THE ARMY

RESPONDENT

JUDGE: LINDGREN J

DATE: 12 JANUARY 2001

PLACE: SYDNEY

REASONS FOR JUDGMENT

1 The applicant seeks urgent interlocutory relief directed to preventing the respondent from giving effect, this coming Monday 15 January, to a posting of him to Canungra in Queensland from his present posting at Richmond in New South Wales. The application is for interlocutory relief and I make no findings – this is not a final hearing. But I note at the outset that the application, if successful, would have at least some irreversible effects. Yet it was filed only yesterday, Thursday 11 January and has had to be heard today, Friday 12 January. 2 The background facts can be summarised briefly. The applicant was in civilian employment as an analytical chemist and a sergeant in the Army Reserve posted to 176 Air Dispatch Squadron, Richmond. He states that in July and August 1999 he had certain conversations with his then commanding officer, Major Dean Herbert, who proposed that he join the Australian Regular Army ("ARA"). There were two considerations which militated against the applicant's transferring to the ARA. The first that his wife was on an IVF program run by a doctor at the Royal North Shore Hospital and would wish to continue to live in Sydney for the time being. The second was that the applicant and his wife were dependent upon the salary of his wife, who was also employed as an analytical chemist in Sydney, to contribute to mortgage and loan payments over the following three years or so. 3 The essence of the applicant's case is that he was given an oral assurance by Major Herbert to the effect that if he joined the ARA he would be given two end-to-end postings of two years each in Sydney. These would keep the applicant in Sydney for some three to four years (in effect, he was already progressed some way into the first of the two periods). Acting in reliance on the assurances, the applicant signed a transfer application and did in fact transfer to the ARA with effect from 1 October 1999. 4 In mid-September 1999 the applicant was sent to Darwin to support the East Timor deployment and was there for some six weeks. He was deployed to East Timor on 10 January 2000 and remained there until 25 June 2000. While in East Timor he was told that his next posting was likely to be to Canungra but he was also told that this would "probably never eventuate". In late July 2000, after the applicant had returned to work from post-deployment leave, he received a formal posting order to Canungra with effect from 15 January 2001, that is, next Monday. 5 There has been considerable discussion this morning about the precise meaning of a "posting". However, it seems to be common ground that the only relevant decision which was taken by the Army was that which was communicated to the applicant in July 2000 by a document which is in evidence. That communication to the applicant refers to posting order numbered 02/00/04218 and authorised by Captain J. Cooke. It states: "Posting is from 176 AD SQN APN 168327 to APTC Canungra APN 240264 ECN 026 Sgt position corps RACT WEF 15 Jan 01. Tenure is expected to end Dec 02." 6 Following this notification the applicant has been following certain Army procedures with a view to having the decision reviewed. For example, he made an application for retention at Richmond and various decisions have been taken against him. Currently, there is pending an unresolved Application for Redress of Grievance. The Army internal procedures have taken some time and it is put for him that this explains why it was only yesterday that he approached the Court to file his present application for urgent interlocutory relief. The application for interlocutory relief seeks, relevantly, these orders: "2.That pending further order, the respondent be restrained from posting or permitting to be posted the Applicant from the Sydney region until 15th January 2003; alternatively 3. That pending further order the respondent be restrained from posting or permitting to be posted the Applicant from the Sydney region until after a Redress of Grievance filed by the Applicant on the 11th day of 2000 [sic] has been dealt with to finality." 7 On the question whether there is a serious issue to be tried that the applicant would obtain final relief, the applicant relies upon the doctrine of estoppel. There has been no pleading and I raised with counsel for the applicant the question whether I could take it that he relied only upon that doctrine. Counsel said that he had given some brief consideration to the question of a contractual cause of action but, so far as his consideration of the matter had progressed to date, he thought there were difficulties with propounding a contractual cause of action. 8 It is put for the respondent that the doctrine of estoppel cannot apply in the circumstances of the case because the respondent is invested with discretions required to be exercised in the public interest and cannot be estopped from exercising them in that interest. The respondent apparently derives statutory power to change the applicant's posting by virtue of the general power of administration granted by s 9A of the Defence Act 1903 (Cth) and reg 77 of the Australian Military Regulations 1927. 9 What is put for the applicant against the long line of cases which support the general proposition on which the respondent relies, is, first, that the limitation on the doctrine of estoppel recognised in those cases is not of universal application, and, secondly, that one can think of hypothetical situations in which it would be unjust in the extreme to an individual if a public authority, such as the Chief of Army, were permitted to go back on his word. 10 In relation to the first submission, counsel for the applicant has not sought to demonstrate why, in accordance with the authorities, the "public authority exception" to the estoppel doctrine does not apply in the present case. 11 The second submission referred to also hardly comes to grips with the difficulty which confronts the applicant. Indeed, as I understood counsel for the applicant, he acknowledges that the principle established by the authorities to which I have referred (on the hearing this morning reference has been made to Minister for Immigration and Ethnic Affairs v Kurtovic (1990) 21 FCR 193) seems to apply in the circumstances. The question of the "public authority" limitation on the availability of the doctrine of estoppel is one which has been the subject of many decisions and academic writings. On the footing of what has been put to me briefly this morning, I incline to the view that the limitation does apply in this case, but on the final hearing I may be persuaded otherwise. 12 Turning to the question of balance of convenience, it seems to me that the balance of convenience clearly favours the respondent. An affidavit by the solicitor for the respondent on information and belief has been filed this morning and read. I should say that both the affidavit for the applicant and the affidavit for the respondent have been read without cross-examination on either side and subject to relevance. In essence, the affidavit shows that the applicant is required to go to Canungra next Monday for the purpose of conducting a training course for the benefit of non-commissioned officers. The affidavit shows that, following representations made by the applicant, the possibility of allocating a suitable alternative soldier was examined but the conclusion was reached that no suitable alternative soldier was available. 13 The final paragraph of the affidavit is as follows: "Should the applicant not be available to conduct his part of the training – course, the whole of the training course may have to be deferred, with the result that the proposed participants of the training course would not be eligible for promotion from Corporal to Sergeant. Up to 60 non-commissioned officers may be effected [sic] as a result." 14 Counsel for the applicant put certain matters to me from the bar table about this evidence, for example, he submitted that the applicant himself has to undergo training next Monday before being able to conduct the training course, and that it must be possible for the Army to find other persons who could be similarly trained to conduct the course. Again, counsel points to the nature of the work that the applicant has been doing at Richmond and suggests that it is quite irrelevant to the training that he is to provide to others at Canungra. All of these matters are not the subject of any evidence. A decision must be taken now on incomplete evidence and incomplete legal submissions as a matter of urgency, the applicant having filed his submission only yesterday. On the affidavit evidence before me, the balance of convenience clearly favours the respondent. 15 I am able to give a final hearing to this matter early in February. It is not disputed by the solicitor for the respondent that if the applicant were to succeed on a final hearing in attacking the decision to post him to Canungra, in effect he would then be able to obtain the relief that he seeks. It is fairly put by Mr Levet, counsel for the applicant, that there would be the possibility that the applicant's present position at 176 Air Dispatch Squadron, Richmond might be filled by that time. No doubt this is a possibility but there is no evidence on the matter and, in view of the fact that I can give an early final hearing early in February, I think that the bare possibility is not something that should persuade me to a different result. Moreover, the applicant's case is not that he was assured of being retained in his previous posting: it is only that he would not be posted out of the Sydney region (see the form of the interlocutory orders sought, set out earlier). 16 One final matter should be mentioned. The applicant has indicated through counsel that he would be willing to be "detached" from his existing posting to go to Canungra to conduct at least the first of the training courses in question. A distinction is put on his behalf in submissions, not supported by evidence, between the effects of a "posting" and the effects of a "detachment". The applicant's undertaking to submit to a detachment was made clear by Mr Levet but the solicitor for the respondent has also made it clear that that this is not a course which his client wished to pursue. 17 For the reasons outlined, namely, my view that the case for relief of the kind being sought based on estoppel is, to the extent to which it has been argued, very weak indeed, and that the balance of convenience clearly favours the respondent, interlocutory relief is refused. I certify that the preceding seventeen (17) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Lindgren.