FEDERAL COURT OF AUSTRALIA Rowley v Chief of Army [2016] FCA 1209 File number: NSD 1532 of 2015 Judge: PERRY J Date of judgment: 11 October 2016 Catchwords: PRACTICE AND PROCEDURE – interlocutory application seeking to vacate injunction restraining respondent from effecting dismissal or discharge of applicant from Australian Army – where basis on which injunction was sought has fallen away – application allowed. Legislation: Defence Force Discipline Act 1982 (Cth) Federal Court Rules 2011 (Cth) Judiciary Act 1903 (Cth) Cases cited: Mill v R (1988) 166 CLR 59 Date of hearing: 10 October 2016 Registry: New South Wales Division: General Division National Practice Area: Administrative and Constitutional Law and Human Rights Category: Catchwords Number of paragraphs: 25 Counsel for the Applicant: Mr B Levet Solicitor for the Applicant: Kinghan & Associates Counsel for the Respondent: Mr J Kirk SC and Ms S Callan Solicitor for the Respondent: Australian Government Solicitor ORDERS NSD 1532 of 2015 BETWEEN: SECOND LIEUTENANT PATRICK ANTHONY ROWLEY Applicant AND: CHIEF OF ARMY Respondent JUDGE: PERRY J DATE OF ORDER: 11 OCTOBER 2016 THE COURT ORDERS THAT: 1. Paragraph 1 of the orders made on 4 December 2015 restraining the respondent from effecting the dismissal or discharge of the applicant from the Australian Defence Force is vacated. 2. The applicant is to pay the respondent's costs of and incidental to the respondent's interlocutory application filed on 7 October 2016 as agreed or assessed. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011. REASONS FOR JUDGMENT PERRY J: 1. INTRODUCTION 1 The applicant in these proceedings, Second Lieutenant Patrick Anthony Rowley, pleaded guilty to, and has been convicted of, five of eleven offences originally charged under the Defence Force Discipline Act 1982 (Cth) (DFDA). The offences of which he was convicted concerned the provision, while he was a member of the Australian Defence Force (ADF), of false information and forged documents in relation to the satisfaction of conditions for payments for rental assistance from the Commonwealth. 2 By a further amended originating application filed on 11 April 2016 (the originating application), the applicant seeks judicial review under s 39B of the Judiciary Act 1903 (Cth) (Judiciary Act) of the sentence imposed with respect to the offences of which he has been convicted. 3 Judgment on the issues raised in the originating application was reserved on 10 October 2016. This judgment relates to the interlocutory application filed on 7 October 2016 and argued also on 10 October 2016 in which the respondent, the Chief of Army, seeks orders to vacate paragraph 1 of orders made on 4 December 2015. Paragraph 1 of those orders provides that: The Chief of Army be restrained, until further order of this Court, from effecting the dismissal or discharge of Patrick Anthony Rowley from the Australian Army. 4 That order was made by consent. 5 The respondent also seeks an order that the applicant pay the respondent's costs of and incidental to the interlocutory application. 2. EVIDENCE 6 In support of the interlocutory application, the respondent relied upon the affidavit of Bradley James Dean, affirmed on 7 October 2016. Mr Dean is a solicitor with the Australian Government Solicitor (AGS) having conduct of the matter on behalf of the respondent. 7 No evidence was led by the applicant. 3. BACKGROUND 8 It is necessary briefly to set out the background to the interlocutory application. 9 The particulars of the DFDA offences to which the applicant pleaded guilty may be summarised as follows, namely that, being a member of the ADF, the applicant: (1) on 19 March 2013, by deception dishonestly obtained a financial advantage from the Commonwealth by preventing the identification and initiation of debt recovery of rental allowance payments between 8 January and 30 April 2013 to which he was not entitled, contrary to s 61(3) of the DFDA and s 134.2(1) of the Criminal Code Act 1995 (Cth) (CCA) (the fourth charge); (2) on 3 April 2013, making an entry in a service document, namely an application for recognition of an interdependent relationship, which indicated his permanent resident address to be at an address in Darwin where he no longer lived (the Kitchener Drive address) contrary to s 55(1)(b) of the DFDA (the sixth charge); (3) on 11 April 2013, making an entry in a service document, namely a "Live Out (AA157) form", that was false in a material particular and which he knew to be false, indicating his address to be the Kitchener Drive address where he no longer lived contrary to s 55(1)(b) of the DFDA (the seventh charge); (4) on 3 April 2013, knowing that an "Addendum to the Residential Tenancy Agreement" was a false document, used it with the intention of dishonestly inducing a person in his capacity as a Commonwealth public official to accept it as genuine and, if so accepted, to dishonestly influence the exercise of a public duty or function contrary to s 61(3) of the DFDA and s 145.1(1) of the CCA (the ninth charge); and (5) on 7 June 2013, knowing that a "final rental receipt" letter was a false document, used it with the intention of dishonestly inducing a person in his capacity as a Commonwealth public official to accept it as genuine and, if so accepted, to dishonestly influence the exercise of a public duty or function contrary to s 61(3) of the DFDA and s 145.1(1) of the CCA (the eleventh charge). 10 Both the Director of Military Prosecutions and the Defence Force Magistrate (DFM) accepted the guilty pleas in full satisfaction of the charge sheet. 11 On 15 May 2015, the applicant was convicted and sentenced in respect of the five charges to which he had pleaded guilty (the five convictions) and received the following punishments: (1) Fourth charge – reduced to the rank of Second Lieutenant; (2) Sixth charge – dismissed from the ADF; (3) Seventh charge – dismissed from the ADF; (4) Ninth charge – dismissed from the ADF and sentenced to six months imprisonment subject to his being released forthwith upon entering into a recognizance in the sum of $2000 to be of good behaviour for a period of two years; (5) Eleventh charge – dismissed from the ADF and sentenced to imprisonment for six months subject to an order that he be released forthwith upon his entering into a recognizance in the sum of $2000 to be of good behaviour for a period of two years, such term to be served concurrently with the term imposed with respect to the ninth charge. 12 On 26 October 2015, the applicant was notified of the decision to dismiss him from the ADF with effect on 2 December 2015, consequent upon his conviction and punishment by the DFM on 15 May 2015. 13 In addition, on 12 November 2015, the Medical Employment Classification Review Board (Medical Review Board) classified the applicant as unfit for service. The applicant was informed on 18 November 2015 that if he was not dismissed from the ADF (i.e. consequent upon his conviction and punishment by the DFM on 15 May 2015), he would be separated medically. 14 On 1 December 2015, the applicant made an urgent ex parte application before the start of a proceeding for an interlocutory injunction restraining the Chief of Army from causing or permitting the discharge or dismissal of the applicant from the Australian Army. That relief was granted by the duty judge, Buchanan J, until noon on 4 December 2015 upon the applicant undertaking to start a proceeding within 14 days in accordance with r 7.01(3) of the Federal Court Rules 2011 (Cth). Counsel for the applicant argued at that hearing that the injunction was necessary in order to ensure that the applicant's rights of review by way of petitions through the chain of command, with the ultimate discretion being vested in the Chief of the Defence Force, were preserved. Specifically, it was said that only a member of the ADF can petition against punishment. 15 As noted earlier, on 4 December 2015, orders were made by consent restraining the respondent from effecting the dismissal or discharge of the applicant from the Army until further order of the Court. 16 On 16 December 2015, the applicant instituted these proceedings pursuant to s 39B of the Judiciary Act seeking judicial review and declaratory relief with respect to the sentences imposed for the five convictions. As noted earlier, the further amended originating application was filed on 11 April 2016. At the risk of oversimplification, the grounds on which the applicant ultimately seeks to challenge the sentences imposed with respect to the five convictions are that there was no power to impose a sentence of imprisonment (the constitutional arguments), there was no power as a matter of statutory construction to make a Recognizance Release Order under s 19AC of the Crimes Act 1914 (Crimes Act), and the exercise of the sentencing discretion to impose a sentence of imprisonment miscarried so as to constitute jurisdictional error. 17 On 23 June 2016, the Chief of the Defence Force dismissed the further petition lodged on 22 February 2016 by the applicant. 18 On 5 October 2016, AGS wrote to the applicant's solicitors seeking the applicant's consent to the lifting of the injunctive relief. If that consent was not forthcoming, the letter advised that the respondent would apply for the injunctive relief to be lifted and would seek to have that application dealt with at the hearing before me on 10 October 2016. 19 The respondent's intention is to effect the dismissal or medical separation of the applicant from the Australian Army if and when the injunctive relief is lifted. 4. CONSIDERATION 20 The respondent submitted that the injunction should be discharged on three separate and independent grounds. These may be summarised as follows. (1) Even if the Court were to find jurisdictional error in the sentences imposed for the ninth and eleventh charges, there was no challenge to the sentences of dismissal imposed for the sixth and seventh charges. In this regard, in his written submissions, the applicant accepted at [33] that: Whilst the Applicant contends that any sentence of dismissal might also be viewed as excessive, the Applicant sees no practical utility in challenging the sentences of dismissal given the availability of administrative options to otherwise terminate his service. (2) The basis on which the applicant sought the interlocutory injunction has fallen away. The applicant has now pursued his rights to review through the chain of command to the Chief of the Defence Force. The respondent conceded that this did not preclude a person such as the applicant from petitioning again the Chief of the Defence Force under ss 152-155 of the DFDA and, as a matter of language and logic, from doing so irrespective of whether or not the person is still a member of the ADF. However, the respondent also submitted that any such further petition was unlikely to succeed given the existence already of an adverse decision by the Chief of the Defence Force. (3) The respondent relied also upon the existence of an independent basis for separation from the ADF on medical grounds, albeit that he accepted that this ground alone would lead perhaps only to a variation of the injunction rather than a discharge of it. 21 No issue was taken with any aspect of the second of these submissions by the applicant which are, in my view, plainly correct. As such, the basis on which the interlocutory injunction was sought by the applicant, namely, to ensure that his rights of review were preserved while those rights were pursued to the highest level within the ADF command structure, no longer provides a basis on which to maintain the interlocutory injunction even accepting with the benefit of reflection that the applicant's rights of review would have been preserved in any event irrespective of whether he remained a member of the ADF. That in itself provides an independent and sufficient ground for discharging the interlocutory injunction. 22 The applicant, however, contended that he would be prejudiced if the injunction were lifted because logically he could be dismissed or administratively separated from the ADF only once. Consequently, if he was not a member of the ADF when the sentencing process was remitted to the DFM (assuming his challenge in this Court succeeded), the sentencing option of dismissal from the ADF would no longer be available and he was therefore at greater risk of a sentence of imprisonment among the reduced forms of punishment still available. This submission was put in two ways. (1) In the event that this Court should uphold the grounds on which the sentences imposed for the ninth and eleventh charges were challenged, counsel for the applicant contended that it would be necessary for the sentences for all five convictions to be remitted to a DFM for reconsideration of the sentencing discretion afresh. In this regard, he argued that, despite giving rise to a number of charges, all of the charges arose out of the same course of conduct. As such, in his submission it would be necessary for the DFM to apply the "totality principle" to an assessment of the appropriateness of the penalties overall: see Mill v R (1988) 166 CLR 59 at 62-63. Consistently with this, the applicant seeks among other things a declaration that "the discretion of the Service Tribunal in sentencing the Applicant on 15 [M]ay 2015 miscarried in its entirety so as to amount to jurisdictional error." (2) Equally, a medical discharge from the ADF would take away a sentencing option and thereby place the applicant at greater risk of imprisonment. 23 As to the first submission, the respondent did not take issue with the need for the totality principle to be applied but submitted that even if the first three penalties remained in place, they would still have to be taken into account pursuant to the totality principle if it were to be remitted to a DFM. As a result, the respondent submitted that there would be no inconsistency between the requirement to apply the totality principle, on the one hand, and an order lifting the interlocutory injunction, on the other hand. It is unnecessary for me to decide that point. Rather, if the applicant is correct in submitting that the sentences imposed for all five charges will be tainted by jurisdictional error if he establishes that such an error has tainted the sentences for the ninth and eleventh charges, it would follow that the sentences for all five convictions are invalid. As a result, none of the sentences dismissing the applicant from the ADF would have been effective in law. As such, even accepting the argument for the applicant, it is unnecessary to maintain the interlocutory injunction on foot in order to preserve his rights with respect to sentencing for all five convictions in accordance with the totality principle. 24 As to the second submission, the respondent rightly submits the decision of the Medical Review Board classifying the applicant as unfit for service and foreshadowing a medical separation from the ADF involve separate decisions which are not challenged in these proceedings. Nor is there even any evidence taking issue with the finding that he is medically unfit for service. The submission that the injunction should be in place in order to prevent medical separation and thereby retain a sentencing option cannot therefore provide a justification in law for maintaining the injunction. 5. CONCLUSION 25 No basis now exists for maintaining the injunction restraining the respondent from effecting the dismissal or discharge of the applicant. The application to vacate paragraph 1 of orders made on 4 December 2015 must be allowed with costs. I certify that the preceding twenty-five (25) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Perry. Associate: Dated: 11 October 2016