FEDERAL COURT OF AUSTRALIA Gaynor v Chief of the Defence Force [2014] FCA 742 Citation: Gaynor v Chief of the Defence Force [2014] FCA 742 Parties: BERNARD GAYNOR v CHIEF OF THE DEFENCE FORCE File number(s): NSD 692 of 2014 Judge(s): BUCHANAN J Date of judgment: 11 July 2014 Legislation: Administrative Decisions (Judicial Review) Act 1977 (Cth), ss 16 (1)(a), 16(1)(c) Defence (Personnel) Regulations 2002 (Cth), reg 85 Federal Court Rules 2011 (Cth), r 7.01 Date of hearing: 11 July 2014 Place: Sydney Division: GENERAL DIVISION Category: No Catchwords Number of paragraphs: 15 Solicitor for the Prospective Applicant: Mr R Balzola, Robert Balzola and Associates (Legal) Solicitor for the Prospective Respondent: No appearance IN THE FEDERAL COURT OF AUSTRALIA NEW SOUTH WALES DISTRICT REGISTRY GENERAL DIVISION NSD 692 of 2014 BETWEEN: BERNARD GAYNOR Prospective Applicant AND: CHIEF OF THE DEFENCE FORCE Prospective Respondent JUDGE: BUCHANAN J DATE OF ORDER: 11 JULY 2014 WHERE MADE: SYDNEY THE COURT ORDERS THAT: 1. The application filed on 11 July 2014 be dismissed. THE COURT DIRECTS THAT: 1. The applicant file and serve an application and statement of claim in accordance with the Federal Court Rules within 14 days. 2. The matter proceed thereafter on the pleadings. 3. The matter be listed for directions before Foster J on a date to be fixed after discussion with the Associate to Foster J. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011. IN THE FEDERAL COURT OF AUSTRALIA NEW SOUTH WALES DISTRICT REGISTRY GENERAL DIVISION NSD 692 of 2014 BETWEEN: BERNARD GAYNOR Prospective Applicant AND: CHIEF OF THE DEFENCE FORCE Prospective Respondent JUDGE: BUCHANAN J DATE: 11 JULY 2014 PLACE: SYDNEY REASONS FOR JUDGMENT BUCHANAN J: 1 The application with which this judgment deals is brought by Mr Bernard Gaynor, a Major in the Australian Army Reserve, against the Chief of the Defence Force. It relies on rule 7.01 of the Federal Court Rules 2011 (Cth) which provides, relevantly: 7.01 Order before start of proceeding (1) If a matter is urgent, a person who intends to start a proceeding (a prospective applicant) may apply to the Court, without notice, as if the prospective applicant had started the proceeding and the application had been made in the proceeding, for an order: (a) granting an injunction; or … (3) A prospective applicant seeking an order under this rule must give an undertaking to the Court to start a proceeding in relation to the subject matter of the application within 14 days after the application has been determined. Note: Without notice is defined in the Dictionary. 2 The application was filed today. The proposed respondent has not been served with either the application or the affidavit in support of it which was sworn by Mr Gaynor's solicitor, Mr Robert Balzola. 3 Mr Balzola appeared today to argue why, nevertheless, some form of urgent relief was appropriate and necessary. 4 The papers filed as attachments to Mr Balzola's affidavit disclose the following matters. 5 Major Gaynor has served in both permanent and reserve capacities in the Australian Army. At present he serves as a member of the Australian Army Reserve. 6 Owing to public statements made by Major Gaynor on social media sites, and on a website maintained by him, which were critical of policies of the Australian Army and the Australian Defence Force, the Chief of Army, after some inquiries, issued Major Gaynor with a termination notice within the meaning of reg 85 of the Defence (Personnel) Regulations 2002 (Cth). It would appear that that termination notice was issued on 30 May 2013. Major Gaynor had a right to respond and apparently exercised that right. 7 Notwithstanding Major Gaynor's response, on 10 December 2013 the Chief of the Defence Force, General D J Hurley, issued a written decision terminating Major Gaynor's service with the Australian Defence Force, effective 13 January 2014. 8 It would appear that the termination date was extended while various further procedures were undertaken. I infer that those procedures involved efforts by Major Gaynor to bring about a different outcome. Mr Balzola's affidavit discloses that on 9 July 2014 those further procedures were finalised and Major Gaynor was informed that his service with the Australian Army would cease at midnight today, 11 July 2014. 9 The first matter to note, which Mr Balzola candidly accepted, was that the present application has been brought at the end of the process and in circumstances where no advice has been afforded to the proposed respondent to enable any answering submission to be made. It is therefore necessary for me to evaluate the necessity for interim relief of an urgent kind without the benefit of any answering submission. 10 The proceedings which are foreshadowed in the present application are, it would appear, intended to challenge the decision of 10 December 2013 on a number of grounds. Those proceedings will (at least) involve reliance upon the provisions of the Administrative Decisions (Judicial Review) Act 1977 (Cth) ("the ADJR Act"). That is a matter of some significance for reasons which I will mention shortly. 11 In the circumstances of the present application it is not possible for me to explore in any depth the foundation for the causes of action which are proposed in the proceedings. I will assume for present purposes that there is a respectable foundation for the challenge which the applicant wishes to bring against the decision to terminate his Defence Force service. 12 However, it does not appear to me that the balance of convenience favours the grant of any injunctive relief, even for the short period which might be necessary to allow the respondent to be represented and make submissions. One reason for that is that s 16(1)(a) of the ADJR Act provides a clear power in an appropriate case to quash or set aside a decision from a date earlier than the date of the order. Section 16(1)(c) of the ADJR Act provides a further power to make an order declaring the rights of the parties in respect of any matter to which the decision relates. It does not appear to me, therefore, that the passing of midnight on 11 July 2014 will operate in any legal or practical sense to extinguish the applicant's rights. 13 This matter will be allocated in the ordinary course to the docket of a judge of the Court. It will be open to the applicant, after filing the initiating process upon which he wishes to rely, to seek an expedited final hearing if his case can be put into a proper form for such a course to be taken. I say nothing about whether such an expedited final hearing would be appropriate; that will be a matter for the docket judge. 14 I make the following order: 1. The application filed on 11 July 2014 be dismissed. 15 I make the following directions: 1. The applicant file and serve an application and statement of claim in accordance with the Federal Court Rules within 14 days. 2. The matter proceed thereafter on the pleadings. 3. The matter be listed for directions before Foster J on a date to be fixed after discussion with the Associate to Foster J. I certify that the preceding fifteen (15) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Buchanan. Associate: Dated: 15 July 2014