Martinek v Evans [2002] FCA 1584

FEDERAL COURT OF AUSTRALIA

Martinek v Evans [2002] FCA 1584 MARY-ANN MARTINEK V MARK EVANS V 7 OF 2002 MARY-ANN MARTINEK V CHIEF OF ARMY V 373 OF 2002 NORTH J 18 DECEMBER 2002 MELBOURNE

IN THE FEDERAL COURT OF AUSTRALIA

VICTORIA DISTRICT REGISTRY V 7 OF 2002

BETWEEN: MARY-ANN MARTINEK

APPLICANT

AND: MARK EVANS

RESPONDENT

V 373 OF 2002 BETWEEN: MARY-ANN MARTINEK

APPLICANT

AND: CHIEF OF ARMY

RESPONDENT

JUDGE: NORTH J

DATE OF ORDER: 18 DECEMBER 2002

WHERE MADE: MELBOURNE

THE COURT ORDERS THAT: 1. Both applications are dismissed. 2. The applicant is to pay one third of the respondents' costs of the applications including the costs of the motions, notice of which was filed by the respondents on 19 June 2002. 3. Liberty is reserved to the applicant to apply to vary the order made in par 2 provided that she files and serves a notice in writing of her intention to do so by 15 January 2003. Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA

VICTORIA DISTRICT REGISTRY V 7 OF 2002

BETWEEN: MARY-ANN MARTINEK

APPLICANT

AND: MARK EVANS

RESPONDENT

V 373 OF 2002 BETWEEN: MARY-ANN MARTINEK

APPLICANT

AND: CHIEF OF ARMY

RESPONDENT

JUDGE: NORTH J

DATE: 18 DECEMBER 2002

PLACE: MELBOURNE

REASONS FOR JUDGMENT 1 The applicant, Mary-Ann Martinek, commenced two applications. The first against Brigadier Mark Evans and the second against the Chief of Army (the respondents). The first application numbered V7 of 2002 was filed on 7 January 2002. The second was numbered V373 of 2002 and was filed on 13 June 2002. 2 Presently before the Court are two notices of motion filed by each of the respondents seeking orders that each respective application be dismissed on the ground that no reasonable basis for it is disclosed, and that it is frivolous, vexatious, and an abuse of process. 3 It is necessary to explain the background to the applications. Ms Martinek served in the Australian Army and reached the rank of Major. The Chief of Army decided to retire her and he signed a notice of retirement in 2000. In response to this decision, Ms Martinek commenced an application numbered V349 of 2000 in this Court. On 20 July 2001, that application was settled, and written terms of settlement were executed. The recitals to the terms of settlement describe the circumstances as follows: "A. On 2 March 2000 the Respondent's [Chief of Army] predecessor signed a Notice of Retirement which, if it were valid, would have retired the Applicant from the Australian Regular Army with effect from 24 March 2000. B. That Notice of Retirement stated that retirement of the Applicant was for the reason that the officer was incapable of rendering service on the basis of physical incapacity not within the officer's power to control. C. On 12 April 2000 the Respondent's predecessor wrote to the Applicant and indicated that a clerical error existed in the Notice of Retirement of 2 March 2000. The Respondent's predecessor advised that the Notice should have read that the officer had been retired as a result of mental incapacity that was not within the officer's power to control. D. On 22 May 2000 the Applicant commenced proceeding number V349 of 2000 in the Federal Court of Australia ('the proceeding'). E. In the proceeding the Applicant has sought an order that the decision of 2 March 2000 to retire her be quashed and set aside. F. The Respondent will consent to an order of the Court that the Notice of Retirement of 2 March 2000 be set aside. G. The Applicant has agreed that on making of the orders by the Court, she will resign from the Australian Regular Army on the basis that her services are no longer required at her own request upon the disbandment of the Survey Corps." 4 The terms of settlement relevant to the present applications are as follows: "1. The Respondent will on the signing of these Terms, revoke the Notice to Show Cause which was directed to the Applicant and signed by the Respondent's predecessor on 7 December 1999. 2. The Applicant will on the signing of these Terms, by writing under her hand addressed to the Respondent, tender her resignation of her military office with effect on the date of the Court order which determines this proceeding. 3. The Respondent will, by instrument in writing, accept the resignation on the ground that the Applicant has requested her discharge. 4. Subject to the provisions of clause 10, the Respondent will pay to the Applicant the amount of salary owing for service that would have been rendered by her between 24 March 2000 and the date of her resignation, less any usual deductions for income tax and superannuation contributions. … 10. No moneys shall be payable by the Respondent pursuant to clause 4 until the Respondent has accepted the Respondent's resignation pursuant to clause 3 and the amount to be paid by the Applicant to the Respondent pursuant to clause 9 has been determined. When the amount has been so determined, the Respondent may deduct that amount from any moneys owing to the Applicant pursuant to clause 4 and the balance shall be paid by the Respondent to the Applicant within 28 days of the date on which the determination is made. … 14. The Applicant and the Respondent agree on their own behalf and on behalf of their officers, servants, agents and representatives, including their legal representatives and their officers, servants, and agents, that neither will make any public statement, or maintain any facility which may be disparaging of the other or which is likely to misrepresent, mislead and thereby cause detriment to the reputation or standing of the Applicant or of the Australian Defence Force, its officers, servants or agents. 15. Upon execution of these Terms of Settlement, the parties will sign a consent order under Order 35 Rule 10 of the Rules of the Federal Court, quashing and setting aside the decision of the Respondent's predecessor to retire the Applicant from the Australian Regular Army and otherwise dismissing the proceeding with no order as to costs." [emphasis added] Ms Martinek was legally represented when the terms of settlement were signed. 5 In accordance with clause 2 of the terms of settlement Ms Martinek tendered her resignation on 20 July 2001. On the same day, as a result of the consent referred to in clause 15 of the terms of settlement, the Court ordered, by consent, that the decision to retire Ms Martinek from the Army be quashed with effect from 24 March 2000. In accordance with clause 3 of the terms of settlement, on 18 August 2001, the Chief of Army accepted her resignation. 6 On 5 November 2001, Ms Martinek applied for appointment as an officer of the Army Reserve. Brigadier Mark Evans, the respondent in V7 of 2002 refused this application. He notified his decision to Manpower Defence Recruiting within the Army by a letter dated 17 December 2001 in the following terms: "It is my understanding that you received an application to re-enlist into the Regular Army by Ms Mary-Ann Martinek on 15 October 2001. She then amended this on 5 November 2001 to an application to re-enlist into the Army Reserve. Your office then requested that the Army Personnel Agency – Melbourne conduct a suitability check on Ms Martinek as she has prior military service. As you are aware, the Career Management Agency of the Service which the applicant is seeking to join is responsible for determining the conditions of service that will be offered such as rank, seniority, posting etc. Ms Martinek held the rank of major at the time of her resignation. As I am the delegate of the Chief of Army for appointing officers to the Army of the rank of major, the re-appointment of Ms Martinek to the Army is my decision. Earlier this year the Department of Defence made a legal settlement with Ms Martinek which enabled her to resign from the Army and access certain entitlements on the basis of having served for a period of over 20 years. Notwithstanding this settlement, I have taken into account Ms Martinek's previous service in the Army and on that basis I decline to re-appoint her. Please inform Ms Martinek that on the basis of her previous service in the Army, the delegate of the Chief of Army, the Director General Personnel – Army, has declined to appoint her as an officer in the Army Reserve." [emphasis added]