FEDERAL COURT OF AUSTRALIA

Li v Chief of Army [2012] FCA 808

THE COURT ORDERS THAT:

1.    The interlocutory application be dismissed.

2.    The costs of the interlocutory application be costs in the cause.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

1        By interlocutory application filed on 26 July 2012 the applicant sought expedition of the hearing of his appeal. The application was not opposed by the respondent. The matter came before me as duty judge.

BACKGROUND

2        On 5 April 2011 the applicant was convicted by a Restricted Court Martial of one charge under s 33(b) of the Defence Force Discipline Act 1982 (Cth) (the Act) of creating a disturbance on service land. He was issued with a severe reprimand and fined $5,000, with an amount of $3,000 suspended. The applicant appealed to the Defence Force Discipline Appeal Tribunal which dismissed his appeal on 16 March 2012. On 28 March 2012 the fine imposed by the Restricted Court Martial was quashed and substituted with a fine of $3,000, with $2,500 suspended.

3        On 13 April 2012 the applicant filed a notice of appeal to the Full Court of this Court from the Tribunal’s decision. The Notice of Appeal raises 22 separate matters which are said to be “questions of law”.

4        The applicant’s appeal came before Justice Emmett as part of an electronic callover conducted on 18 July 2012. On that day, his Honour made orders listing the appeal for hearing before a Full Court in the November sittings, which are to take place in the period 5-30 November 2012. Presumably having regard to the composition of the Tribunal (which was constituted by two judges of this Court, as well as a Deputy President), the appeal will be heard by a Full Court comprising five judges. The hearing has been listed on the basis of an estimate of one day plus, although it might be noted that it was suggested to me today that the matter would take only one day.

5        The respondent did not oppose the application, but relied on an affidavit by Mathew Ray Bock, a solicitor acting for the respondent. Mr Bock described the circumstances surrounding actions taken by the respondent to limit the applicant’s access to that part of the Defence Complex in Canberra where the events giving rise to this matter occurred on 3 February 2010. Limitations were placed on the applicant’s access to areas where there were Defence personnel who were either directly affected or were witnesses to the events which gave rise to the disciplinary charges. Subject to those access limitations, the applicant continued to work in the Campbell Park Offices in Canberra until January 2011. On 1 May 2011 the applicant was posted to Headquarters Force Command in Paddington, New South Wales. I was told that this was part of the respondent’s overall “management” of the matter. As matters stand at present, the applicant is expected to remain in his current position based in Paddington until January 2014, when an issue of discharge could arise. Mr Bock also gave evidence to the effect that the respondent’s position was that neither the outcome of this interlocutory application nor the substantive appeal itself would necessarily alter the applicant’s current duties and posting in Paddington. Any request from the applicant to be posted elsewhere, including back to Canberra, would be subject to a variety of considerations including the availability of a suitable position. I was also told that another relevant factor would be the respondent’s assessment of the situation from an overall “management” perspective even if the conviction was set aside on appeal.

6        The applicant swore an affidavit which described hardship he and his wife are experiencing as a result of his posting to Sydney since 1 May 2011. His wife is a doctor who works at Canberra Hospital and they have a three year old child. Both his wife and the child are based in Canberra. The applicant gave evidence that his practice was to commute weekly to work in Sydney, spending his weekends in Canberra with his family, and that this would continue until the end of 2013. He gave evidence that his wife, as an Intern/Resident Medical Officer at Canberra Hospital, has to work long and sometimes inconvenient hours in order to complete her internship in 2012 and her residency in 2013. He gave evidence of what was said to be his wife’s inability to attend to their young child while she worked those inconvenient hours. He also said that he and his wife “had no suitable childcare arrangements for after hours child care”. It emerged during the hearing, however, that the child is looked after by an au pair under what were described as “temporary arrangements”. No evidence was adduced as to why those temporary arrangements could not be extended or, alternatively, some other appropriate and possibly similar arrangement put in place to care for the child during the mother’s absence at work.

7        There is one other matter which I should mention as it has potential relevance to the application. It relates to the fact that the interlocutory application seeking expedition was not made until approximately one week after the electronic callover conducted by Justice Emmett on 18 July 2012. It was common ground that the applicant’s solicitor had received information from the Federal Court concerning that callover and the necessity for a party to file electronically a status report containing information of relevance to the callover. Part of the information required in that status report was whether the matter required expedition. The applicant’s solicitor arranged for a status report to be lodged with the Court shortly prior to the callover on 18 July 2012. It contained no indication that the applicant sought expedition, even though it was clear from the form that some such indication should have been given if relevant. The applicant’s solicitor gave evidence to the effect that he had instructions prior to the electronic callover to seek expedition. The solicitor had had no previous involvement in an electronic callover and gave evidence to the effect that he believed that the issue of expedition could be raised before Justice Emmett on 18 July 2012. In the events that occurred, neither of his counsel was available to appear at what the solicitor expected to be a physical callover. Accordingly, at approximately 1.00 pm on the day of the callover the solicitor forwarded an email and an accompanying letter to the Court registry seeking an expedited appeal on the basis of the hardship described above. Shortly thereafter, a Deputy District Registrar replied by email to the applicant’s solicitor referring to his email and attached letter. The reply drew attention to the fact that the status report made no reference to the need for expedition and that Justice Emmett had already taken steps earlier that day to list the matter for an appeal based on the information which was then before him. The applicant’s solicitor was informed that any application for an expedited hearing needed to be made by filing an interlocutory application and supporting affidavit. As noted above, those steps were then taken on 26 July 2012, leading to the application which is now before me. I should add that the applicant’s solicitor accepted full personal responsibility for not having provided all relevant information in the status report, including the applicant’s desire to have the appeal expedited.

CONSIDERATION

8        The former Federal Court Rules (Federal Court Rules 1979 (Cth)) contained a specific rule dealing with the Court’s power to order expedition (Order 52 r 37(1)). There is no equivalent express provision in the 2011 Rules, but it was common ground that Rule 36.11 of the 2011 Rules, which relate to a party applying for directions in relation to the management, conduct and hearing of an appeal, together with s 25(2B)(c) of the Federal Court of Australia Act 1976 (Cth) (which confers power to give directions about the conduct of an appeal) provide a sufficient basis for an order for expedition in an appropriate case (see Paul’s Retail Pty Ltd v Lonsdale Australia Limited [2012] FCA 724 at [36] per Dodds-Streeton J).

9        There was no dispute as to the relevant principles concerning an application for expedition. The Court has a broad discretion in the matter and needs to be satisfied that it is in the interests of justice to order expedition. Some of the relevant considerations in exercising that discretion include:

(a)    whether the appellant would suffer some significant practical disadvantage if the hearing did not take place until after a particular date;

(b)    whether a party might lose its livelihood, business or home, or suffer irrefutable loss or extraordinary hardship;

(c)    whether the appeal will become futile; and

(d)    whether the parties proceeded up to the date of the application for expedition with due speed.

I do not intend this list to be exhaustive.

10        While the Court is sympathetic to the hardship described by the applicant concerning the difficulties of arranging suitable childcare for his child while he is based in Sydney and his wife and child are based in Canberra, and his wife has lengthy and inconvenient work hours, I consider that that hardship, while relevant, is outweighed by the following considerations.

11        First, even if the appeal were to be expedited and successful from the applicant’s view point, there is no guarantee that he would be posted back to Canberra. As Mr Bock’s affidavit establishes, any request for a posting by him back to Canberra would be subject to a variety of considerations, including the availability of a suitable position and the respondent’s assessment of what is the most appropriate course having regard to the applicant’s position but also wider issues concerning personnel management. Mr Street SC, who appeared for the applicant, candidly accepted that there was no certainty that the applicant would be reposted to Canberra even if he was successful in his appeal. That acknowledgement was correctly made. Not only is it uncertain whether the applicant would be reposted to Canberra if he were to succeed in his appeal, but there is no evidence before me which would indicate when any such decision would be made and what the timing of any relocation would be. In other words, I am not persuaded that the hardship described by the applicant would be addressed and overcome by expediting the hearing of the appeal.

12        Secondly, I am not satisfied that the applicant has established the degree of hardship which would warrant the appeal being expedited. As noted above, although the applicant gave evidence that he and his wife “had no suitable childcare arrangements for after hour’s childcare”, it emerged during the hearing that their young child was cared for at times by an au pair. I was told from the Bar Table that this was a “temporary arrangement”, but no material was placed before me which would indicate that similar arrangements could not continue or be put in place. The problems of arranging suitable childcare affect many members of the community and, while sympathising with the applicant’s position, I am not satisfied that those difficulties are unique or of such a magnitude as to warrant his appeal being expedited. The Court also recognises the practical difficulties created by the fact that the applicant is currently separated from his family during the week because of his current posting in Sydney, but I do not accept that those difficulties will necessarily be overcome by expediting the appeal.

13        Thirdly, an important consideration in any application for expedition is the wider interests of justice, including the efficient allocation of the Court’s finite resources. The expedition of any proceeding, including an appeal, will often have an adverse practical impact on other litigants because the grant of expedition effectively grants a higher priority to a particular proceeding relative to others. Other litigants, whose proceedings may well have been commenced well before those which have been expedited, may be adversely affected by the greater priority being given to the expedited proceeding. Of course, I am not suggesting that expedition is not appropriate in some particular cases. But I consider that these are important practical considerations in this case, not the least because the appeal involves a Court comprising five judges. I am not suggesting that the Court is unable in an appropriate case to convene a bench of five judges to hear an appeal but the practical difficulties of doing so highlights the need for there to be strong grounds for that to occur outside the four periods set aside each year for the hearing of appeals. I do not believe that the applicant has established a sufficiently strong case to warrant his appeal being expedited and heard before the November Full Court sittings.

14        Finally, I should say something briefly about the unfortunate circumstances pertaining to the failure to seek expedition at the electronic callover. The applicant’s solicitor accepted full responsibility for the omission to draw the Court’s attention to the need for expedition in the status report which was lodged electronically with the Court. I accept that the applicant himself had given instructions prior to the callover on 18 July 2012 that expedition be sought. It is unfortunate that those instructions were not implemented in the electronic status report notwithstanding that the applicant’s solicitor said that he had had no prior experience of that procedure. I should record, however, that the solicitor’s oversight has not weighed heavily in my judgment refusing expedition. I cannot speculate as to what another judge’s view of the matter might have been if the application for expedition had been made at the time of the callover. I can only act on the basis of the material which is before me. For the reasons which I have given above, I do not believe that that material establishes a sufficiently strong case of hardship to warrant the current listing to be disturbed.

15        Finally, during the course of the hearing Mr Street SC applied to have the maximum length of the written outlines of submission concerning the appeal to be increased from the standard 10 pages to 30 pages. It may be that this application was made with a view to reassuring the Court that an expedited hearing could be comfortably heard within one day. In any event, I do not consider that the case warrants a departure from the normal rule.

16        For all these reasons I dismiss the interlocutory application. In light of the fact that the respondent did not oppose the application, I consider it is appropriate that the costs of the interlocutory application be costs in the cause.

Associate:

Dated:    3 August 2012