FEDERAL COURT OF AUSTRALIA
Fisk v Chief of the Defence Force [2017] FCA 1489
ORDERS
Applicant | ||
AND: | Respondent | |
DATE OF ORDER: |
THE COURT ORDERS THAT:
1. The application for leave to re-open is refused.
2. The application for leave to further amend the further amended originating application is dismissed.
3. The applicant is to pay the respondent’s costs as agreed or taxed.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
PERRY J:
[1] | |
[6] | |
[8] | |
[24] | |
[28] | |
[28] | |
[29] | |
[29] | |
[31] | |
[39] | |
[43] | |
[48] | |
5.2.6 Do the proposed grounds have sufficient prospects of success? | [56] |
[60] |
1 By an interlocutory application filed on 18 October 2017, the applicant, Captain Shaun Michael Fisk, seeks leave to further amend his originating application to raise a new issue, namely, “the unlawful use by the relevant [Australian Defence Force] decision-makers of ‘spent convictions’ within the meaning of Part VIIC of the Crimes Act 1914 (Cth)”. The proposed amendments seek:
(1) a declaration that the termination notice dated 21 October 2015 issued by COL Garraway is invalid on the ground that a “spent conviction” was taken into account contrary to s 85ZW(b)(ii) of the Crimes Act 1914 (Cth) (the Crimes Act);
(2) orders under s 16(1)(a) of the Administrative Appeals (Judicial Review) Act 1977 (Cth) (ADJR Act) setting aside:
(a) the decision to terminate the applicant’s employment made on 11 May 2016 because no valid termination notice had been issued and/or BRIG Stothart took into account an irrelevant consideration being the spent conviction contrary to s 85ZW(b)(ii); and
(b) the decision made by the Chief of Defence Force (CDF) on 8 August 2017 not to uphold the applicant’s redress of grievance (ROG) on the ground that the CDF took into account an irrelevant consideration being the spent conviction contrary to s 85ZW(b)(ii);
(3) an injunction under s 39B of the Judiciary Act 1903 (Cth) restraining the CDF from terminating the applicant’s service in the Defence Force in reliance on the termination notice or the ROG decision.
2 Before the application to re-open, the applicant had challenged the termination notice only on the ground that COL Garraway had no authority to issue the termination notice because the power to do so had not been validly delegated to him. The validity of the termination decision was not directly challenged, even though it was not in issue that the termination decision would be invalid if the notice had been issued without authority.
3 While the applicant disputes the need to seek leave to reopen, he sought leave to the extent necessary orally at the hearing. As I later explain, leave to reopen is required because judgment has already been reserved on all outstanding issues in the matter and, indeed, was ready to be delivered but was deferred following correspondence from the parties advising that the CDF had decided not to uphold the applicant’s ROG.
4 If leave to re-open is granted, the applicant also seeks an extension of time within which to challenge the CDF’s decision not to uphold his ROG. This decision was notified to CAPT Fisk on 11 August 2017. In this regard, the applicant submits that under s 11(3)(a) of the ADJR Act, he was required to commence proceedings within 28 days of receipt of the decision, i.e., by 8 September 2017. However the interlocutory application seeking leave to amend was not filed until 18 October 2017.
5 For the reasons set out below, leave to re-open is refused with costs. It follows that the question of whether to grant leave to an appeal and an extension of time does not arise.
6 The interlocutory applications are supported by: an affidavit sworn by Leslie Patrick Maroun, solicitor, on 13 October 2017; the affidavit of Brian Robert Belling, solicitor, sworn on 31 October 2017; and the affidavit of CAPT Fisk affirmed on 8 November 2017 which was read subject to rulings on objections.
7 The respondent relied upon the affidavit of Brooke Marie Griffin, solicitor, affirmed on 26 October 2017, deposing to the background to the interlocutory applications and as to the prejudice which the respondent would allegedly suffer in the event that leave to reopen were allowed.
8 On 21 October 2015, COL Garraway, Director Officer Career Management – Army issued a termination notice to the applicant pursuant to reg 85 of the Defence (Personnel) Regulations 2002 (Cth) (the Personnel Regulations) requiring him to show cause why his appointment as officer in the ADF should not be terminated on the basis that his retention was not in the interests of the ADF (the termination notice). Following receipt of the applicant’s submissions in response, BRIG Sothart, Director General Career Management–Army, decided to terminate the applicant’s service in the ADF (the termination decision). The applicant acknowledged receipt of the termination decision on 13 May 2016.
9 The applicant submitted a ROG on 27 May 2016 with respect to the termination decision to his commanding officer, LT COL Thompson, pursuant to Part 15 of the Defence Force Regulations 1952 (Cth) (the Defence Force Regulations). The applicant’s termination was held in abeyance pending the determination of his ROG by his commanding officer. LT COL Thompson decided on 21 June 2016 that there were insufficient grounds to support the ROG. On 29 June 2016, COL Garraway decided that the applicant’s termination should be held in abeyance until 20 July 2016 but decided not to grant any further extensions to the date of the applicant’s termination. On 5 July 2016, the applicant referred his ROG to the Chief of Army pursuant to Part 15 of the Defence Force Regulations.
10 The applicant commenced these proceedings by filing an originating application on 15 July 2016. An ex parte interlocutory injunction restraining the CDF and others from terminating the applicant’s service as an officer in the ADF was granted on 15 July 2016. On 18 July 2016 the CDF consented on a “without admission” basis to a continuation of the interlocutory injunction until final hearing of the applicant’s originating application.
11 The originating application was amended on 6 September 2016 to add the ground that the termination notice was invalid as having been issued by COL Garraway without a valid delegation to him by the Governor General under reg 119(1) of the Personnel Regulations.
12 On about 23 September 2016, a delegate of the Chief of Army, BRIG Bornholt, issued a decision not to uphold the applicant’s ROG to the Chief of Army.
13 On 30 September 2016 the substantive application in this Court was adjourned part-heard and listed for further hearing on 19 October 2016 as a consequence of the need to factor the decision by the Chief of Army into the application.
14 On 6 October 2016, the applicant referred his ROG to the CDF pursuant to Part 15 of the Defence Force Regulations. The applicant also filed a further amended originating application. At the hearing on 19 October 2016, the CDF consented on a “without admission” basis to the continuation of the interlocutory order restraining the CDF and others from terminating the applicant’s service as an officer in the ADF until further order. That disposed, as I later explain, of ground 2 of the application. The Court heard argument in respect of the relief sought in ground 1 of the further amended originating application as to the validity of the delegation to issue the termination notice and reserved its decision.
15 On 26 October 2016, Mr Belling, the solicitor for the applicant, was advised by Mr Gration, counsel for the applicant, of the spent convictions issue.
16 On 7 December 2016, the respondent’s solicitors received a letter from the applicant’s solicitor enclosing a copy of a document entitled “Supplementary reasons for referral of ROG to CDF” (supplementary submission (CDF)) and an unsealed, unsigned and undated document entitled “Second Further Amended Originating Application” (the draft further amended application). The supplementary submission (CDF) challenged the termination notice and decision on the basis that the applicant’s spent convictions had been disclosed contrary to s 85ZW(b) of the Crimes Act. The draft further amended application also raised for the first time a challenge to the validity of the termination notice and the termination decision on the same ground, and sought an injunction restraining the respondent and others from terminating the applicant’s service in reliance on the termination notice. In this regard, the covering letter from the respondent’s solicitors stated that:
… we enclose by way of service a proposed Second Further Amended Originating Application that our client will seek leave to file and serve should these proceedings not otherwise rendered moot by the CDF’s determination of our clients ROG that has been referred to him.
17 On 8 August 2017, the CDF issued a decision deciding not to uphold the applicant’s ROG. Relevantly, the CDF found the exemption in s 85ZZH(g) of the Crimes Act allowed the spent convictions to be disclosed and taken into account because the applicant held a “designated position”, being a position whose duties are likely to involve access to secret or top secret information, namely:
35. The position to which you were posted (that is, appointed) at the time when your service was terminated was a position designated by my authority, under the Defence Security Manual as requiring at least a Negative Vetting 1 (Secret) security clearance. The decision concerned whether your service should be terminated was, in my view, an assessment of you as an appointee to that position, as are the reviews of that decision that have been taken through the ROG process.
18 As I later explain, one of the issues which the applicant wishes to raise if leave to reopen and to amend is granted is that the CDF wrongly found that, when the applicant’s service was terminated he held a position requiring access to secret or top secret information.
19 On 16 August 2017, the respondent’s solicitors with the consent of the applicant’s solicitors sent an email to my chambers advising of the outcome of the ROG decision and stating that “[t]he parties will endeavour to prepare proposed orders for her Honour’s consideration as soon as possible.” Correspondence subsequently ensued between my chambers and the solicitors for the parties following up the proposed consent orders and on 14 September 2017, the solicitors for the applicant wrote advising that:
Captain Fisk has sought Mr Gration’s counsel on the advice I have tendered to him with respect to the orders which if agreed will conclude the litigation. Mr Gration is overseas and not back to 26 September 2017. Captain Fisk and I are making a further attempt at obtaining Mr Gration’s advice overnight.
I will revert to the Respondent and to you on behalf of Her Honour as soon as I can.
20 On 5 October 2017 the solicitors for the respondent wrote advising that regrettably, the parties had not agreed a form of orders. As a result the respondent considered that the matter should proceed to delivery of judgment, as envisaged in the email from my Associate to the parties dated 13 September 2017 and that a further order should be made in relation to the injunction presently in effect. However on 11 October 2017 the applicant’s solicitors wrote to my chambers advising that:
We consented to the Respondent’s solicitors sending a communication asking for the matter to be relisted for further directions, but not that the matter should proceed to delivery of judgment at this stage.
We are instructed to file an interlocutory application seeking leave to file and serve a Second Further Amended Originating Application in the form provided to the Respondent’s solicitors on 7 December 2016, which raises additional issues as to the validity of the termination decision in respect of the Applicant. We will be filing the interlocutory application shortly and propose that directions for the progress of the matter may perhaps best be dealt with at the return date on that interlocutory application.
21 On the same day, my Associate responded advising that, while her Honour was intending to deliver judgment on 16 October 2017, in the circumstances her Honour proposed to defer the delivery of judgment and instead bring the matter on for directions.
22 On 13 October 2017 the applicant filed the interlocutory application seeking leave to file the proposed Second Further Amended Originating Application (the further amended application). The interlocutory application was listed for directions on 23 October 2017 and set down for hearing.
23 On 24 October 2017, the applicant’s solicitors wrote attaching a minute from the applicant to the CDF requesting that the CDF reopen and reconsider the ROG decision in relation to spent convictions in light of the (allegedly) “correct” information regarding his posted positions. Specifically, the applicant contended that when the termination and ROG decisions were made, the applicant held positions requiring only a baseline security clearance and therefore positions which were not “designated position[s]” capable of attracting the exemption in s 85ZZH(g) of the Crimes Act. On 25 October 2017, the applicant’s solicitors served a notice to admit facts, being the facts said to demonstrate the security requirements of the positions held by the applicant when the termination and ROG decisions were made in line with the applicant’s minute to the CDF. There was no response to the notice to admit and the applicant submitted without opposition that the facts contained in the notice to admit should therefore be taken to be admitted.
4. IS LEAVE TO REOPEN REQUIRED?
24 The respondent rightly contends that the proceedings were not adjourned part-heard on 19 October 2016 and, as such, it is necessary for the applicant to seek leave to re-open the proceedings in order to file the proposed further amended application.
25 In the amended originating application filed on 12 October 2016 (the amended application), the applicant sought relief as follows:
(1) a declaration that the Termination Notice was “invalid as having been issued by Colonel Garraway without a valid delegation of power to him by the Governor General under reg 119(1) of the [Personnel Regulations]” (Ground 1); and
(2) an order restraining the Chief of Defence from terminating his service as an officer in the ADF “until all Redress of Grievance procedures, including referrals of complaints to the Chief of Army and to the Chief of the Defence Force, available to and exercised by the Applicant under Part 15 of the Defence Force Regulations 1952 (Cth) have been finalised” (Ground 2).
26 The application was heard on 30 September and 19 October 2016. As earlier explained, on the second day of hearing the respondent consented on a “without-admission” basis to the continuation of an interim injunction directed to the CDF to the same effect as that made by Wigney J on 18 July 2016, thereby allowing the ROG to “run its course” and be determined by the respondent. As a result, the applicant did not press his claim for final injunctive relief. This dealt with the relief sought in Ground 2 of the amended application. The Court heard full argument on ground 1 of the amended application and judgment was reserved. Despite submitting that the proceedings were “adjourned part-heard”, the applicant did not identify any matters raised in the amended application that were outstanding.
27 It follows, as the respondent submits, that submissions were completed with respect to the relief sought in the amended application and the Court reserved its judgment on 19 October 2016. Contrary to the applicant’s submissions, he therefore requires leave to reopen the proceedings.
5. THE APPLICATION FOR LEAVE TO RE-OPEN
28 The principles applicable to an application for leave to re-open may be summarised as follows.
(1) It is well-established that a superior court of record has power to rehear or review a case until judgment is drawn up, passed and entered: Featherby v Commissioner of Taxation [2016] FCA 454 (Featherby) at [8] (Gilmore J).
(2) With respect to the circumstances in which leave to re-open matters before the High Court may be granted, McHugh J in Eastman v Director of Public Prosecutions (ACT) [2003] HCA 28; (2003) 214 CLR 318 (Eastman) explained that:
29. Parties to matters before the Court need to understand, that once a hearing in the Court has concluded, only in very exceptional circumstances, if at all, will a Court later give leave to a party to supplement submissions. Parties have a legal right to present their arguments at the hearing. If a new point arises at the hearing, the court will usually give leave to the parties to file further written submissions within a short period of the hearing… But a party has no legal right to continue to put submissions to the Court after the hearing. In so far as the rules of natural justice require that a party be given an opportunity to put his or her case, that opportunity is given at the hearing.
(emphasis added)
(3) This passage in Eastman has since been applied by the Federal Court in considering applications for leave to reopen in this Court after judgment has been reserved: see e.g. Featherby at [12] (Gilmore J); Director, Fair Work Building Industry Inspectorate v Bolton (No 1) [2016] FCA 816 (Bolton) at [16] (Collier J); and Rahman v Commonwealth of Australia [2017] FCA 1129 (Rahman) at [31]-[33] (Bromwich J).
(4) Leave to re-open is not to be granted for the purpose of re-agitating arguments already considered by the court; nor is it to be exercised simply because the party seeking a re-hearing has failed to present the argument in all its aspects or as well as it might have been put. For example, Gilmore J in Featherby refused to grant leave to reopen on the ground that “[t]he failure to advance the submissions now sought to be made was solely contributable to the fault of Counsel for the applicant. The applicant was not denied procedural fairness. It would be contrary to the interest of justice to allow the application” (at [16]). In so holding, his Honour applied Mason CJ in Autodesk Inc v Dyason (No 2) (1993) 176 CLR 300 at 303 (Featherby at [10]).
(5) Consistently with this, the Court exercises its discretion to grant leave to re-open in accordance with s 37M of the Federal Court of Australia Act 1976 (Cth) (the FCA Act) and the principles stated in Aon Risk Services Australia Ltd v Australian National University (2009) 239 CLR 175 (Aon Risk) and Expense Reduction Analysts Group Pty Ltd v Armstrong Strategic Management and Marketing Pty Ltd (2013) 250 CLR 303 at [51]-[52]: see Featherby at [25]; Bolton at [18]-[24]; and Rahman at [32], [35]. In particular, in Aon Risk, Gummow, Hayne, Crennan, Kiefel and Bell JJ identified four matters relevant to the exercise of discretion to grant an adjournment:
(a) the explanation, or lack of an explanation, for the adjournment (at [108]);
(b) the detriment to other parties (at [114]);
(c) the detriment to other litigants in the Court (at [114]); and
(d) the parties’ choices to date in the litigation as to the claims to be made and how they were to be framed (at [112]).
As to the last of these matters, the plurality in Aon Risk emphasised that “…limits will be placed upon [the parties’] ability to effect changes to their pleadings, particularly if litigation is advanced. That is why, in seeking the just resolution of the dispute, reference is made to parties having a sufficient opportunity to identify the issues they seek to agitate” (at [112]). In line with this, the plurality accepted at [102] that the objectives under the relevant court rules (containing similar objectives to those in s 37M, FCA Act) do not require that every application for amendment be refused because it involves wasted costs and delay. Rather, “[f]actors such as the nature and importance of the amendment to the party applying cannot be overlooked.” Furthermore, as French CJ explained in Aon Risk at [5], “…, the time of the court is the publicly funded resource. Inefficiencies in the use of that resource, arising from the vacation or adjournment of trials, are to be taken into account. So too is the need to maintain public confidence in the judicial system.”
(6) Any prejudice suffered by the respondent is a relevant factor to be weighed in the balance in determining whether leave to reopen should be granted (Rahman at [37]).
(7) The merits of the arguments which the applicant seeks to raise is a relevant consideration but should be considered at a broadly impressionistic level. It is not appropriate to undertake a detailed consideration of the arguments in this context given the interlocutory nature of these proceedings and incomplete state of the evidence: see e.g. Bolton at [33] (Collier J); and, by analogy, MZABP v Minister for Immigration and Border Protection [2015] FCA 1391 at [62] (Mortimer J) (approved on appeal in MZABP v Minister for Immigration and Border Protection [2016] FCAFC 110 at [38]). In this regard I emphasise that, if leave to reopen is refused, the applicant has intimated that he may nonetheless institute separate proceedings, suggesting a further reason not to embark upon a detailed consideration of the proposed grounds.
5.2 Should leave to re-open be granted
29 The central contention which the applicant now seeks to raise is that spent convictions were taken into account at various stages in the termination decision-making process contrary to s 85ZW(b)(ii) of the Crimes Act. Among other arguments raised by the respondent in opposition to the application to re-open, the respondent contends that:
(1) there is “a very strong argument that Part VIIC of the Crimes Act did not apply to the Applicant at all” as the exemption in s 85ZZH applies;
(2) there is a good argument that there is no breach of Part VIIC where the decision-maker only takes into account the behaviour or conduct underlying the spent conviction or charge; and
(3) there is a strong argument that any alleged breach must be dealt with by the Information Commissioner under Div 5 of Part VIIC before any complaints can be litigated.
30 It is necessary therefore briefly to outline the statutory regime.
5.2.2 Relevant statutory provisions
31 Section 85ZW(b)(ii) on which the applicant seeks to rely appears in Div 3 of Part VIIC of the Crimes Act dealing with pardons, quashed convictions and “spent convictions”. Part VIIC expressly binds the Crown in right of the Commonwealth and State (s 85ZQ).
32 Section 85ZM defines a “spent conviction” to be one where the person has been granted a pardon or “was not sentenced to imprisonment for the offence, or was not sentenced to imprisonment for the offence for more than 30 months, and the waiting period for the offence has ended.” That notwithstanding, the Crimes Act does not exclude the operation of State laws prohibiting the disclosure of spent convictions and authorities from taking into account spent convictions. To the contrary, Part VIIC provides that a person is entitled to the benefit of state laws dealing with the disclosure, or taking into account, of spent convictions under state laws, including against Commonwealth authorities, where such laws are more prescriptive and therefore more generous to the person convicted of the state offence. First, s 85ZP provides that nothing in Part VIIC authorises a person or body to disclose or take into account a conviction of a defence if to do so would contravene relevantly any Commonwealth or state law. Secondly, s 85ZV provides that a person may not disclose spent convictions or state laws as follows:
(3) Subject to Division 6, but despite any other Commonwealth law or any Territory law, where:
(a) a person was convicted of a State offence;
(b) subsection (2) does not apply to the person in relation to the offence; and
(c) under a law in force in that State, being a law dealing with the disclosure or taking into account of spent convictions (however described in that law) it is lawful for the person, in particular circumstances or for a particular purpose, not to disclose the fact that the person was charged with, or convicted of, the offence;
the person is not required, in corresponding circumstances or for a corresponding purpose:
…
(e) in a State or foreign country—to disclose that fact to any Commonwealth authority in that State or country.
33 A “Commonwealth authority” is defined in s 85ZL of the Crimes Act to include “the Defence Force”.
34 Thirdly, s 85ZW provides that spent convictions under state law cannot be disclosed or taken into account by Commonwealth authorities as follows:
Subject to Division 6, but despite any other Commonwealth law, or any State law or Territory law, where, under section 85ZV, it is lawful for a person not to disclose, in particular circumstances, or for a particular purpose, the fact that he or she was charged with, or convicted of, an offence:
(a) it is lawful for the person to claim, in those circumstances, or for that purpose, on oath or otherwise, that he or she was not charged with, or convicted of, the offence; and
(b) anyone else who knows, or could reasonably be expected to know, that section 85ZV applies to the person in relation to the offence shall not:
(i) without the person’s consent, disclose the fact that the person was charged with, or convicted of, the offence to any other person, or to a Commonwealth authority or State authority, where it is lawful for the first-mentioned person not to disclose it to that other person or that authority; or
(ii) in those circumstances, or for that purpose, take account of the fact that the person was charged with, or convicted of, the offence.
(emphasis added)
35 On the other hand, s 85ZZH of Div 6 of Part VIIC dealing with exclusions provides that:
Division 3 does not apply in relation to the disclosure of information to or by, or the taking into account of information by a person or body referred to in one of the following paragraphs for the purpose specified in relation to the person or body:
…
(g) a Commonwealth authority, for the purpose of assessing appointees or prospective appointees to a designated position;
(emphasis added)
36 Section 85ZL defines “designated position” to mean “a position in a Commonwealth authority which the head of the authority has determined to be a designated security assessment position whose duties are likely to involve access to national security information classified as secret or top secret” (emphasis added).
37 These provisions are reflected in DI (G) PERS 55-4, Reporting, Recording and Dealing with Civil Offences, Service and Civil Convictions (DI (G) PERS 55-4), a Defence Instruction issued on 16 January 2012 under the Defence Act 1903 (Cth). DI (G) PERS 55-4 at [6] provides that an individual does not have to disclose a spent conviction to any person including the ADF unless a legislative exclusion applies. On the other hand, when a decision to enlist or appoint is made, the enlisting or appointing authority must advise of all “Recordable Convictions” which in turn must be recorded on the member’s Conduct Record and Personnel Management Key Solutions (PMKeyS): DI(G) PERS 55-4 at [7]. A “recordable conviction” is defined at [4(f)] of DI (G) PERS 55-4 as a “Civil Conviction that is not a Spent Conviction.”
38 Finally, Div 5 of Part VIIC provides that the Information Commissioner must investigate complaints to her or him of breaches of Div 2 or 3 by relevantly, a Commonwealth authority and may dismiss the complaint or find it substantiated. Where the Information Commissioner finds the complaint substantiated, the Commissioner may declare an entitlement to relief including that the respondent should employ the complainant and that the complainant is entitled to compensation (s 85ZZD(1)(b)). Under s 85ZZF, the Information Commissioner or the complainant may apply to the Federal Court for an order to enforce a determination under s 85ZZD(1)(b).
5.2.3 Are the circumstances exceptional?
39 Turning to the exercise of discretion to grant leave to re-open, first, in my view the circumstances in which leave to reopen is sought here are not exceptional. The failure to raise the spent convictions issue at the trial was attributable to oversight by the applicant’s legal representatives, as they very properly accepted. However, as in Featherby, that does not demonstrate a denial of procedural fairness to the applicant or otherwise that exceptional circumstances justifying leave to reopen exist. To the contrary, as the respondents submitted:
(1) Part VIIC of the Crimes Act was enacted in 1989 and in force at all relevant times;
(2) the tenor of Part VIIC is reflected in DI (G) PERS 5-4 which was issued in 16 January 2012 and, as an ADF member, was available to the applicant and his legal advisors;
(3) the termination notice served on the applicant in October 2015 also referred to the spent convictions;
(4) the applicant provided a response to the termination notice in November 2015;
(5) the applicant was served with the termination decision in May 2016 which referred to the spent convictions;
(6) the applicant commenced proceedings in July 2016 and had legal representation throughout; and
(7) the applicant has already amended his originating application twice to raise new arguments and filed extensive affidavit evidence.
40 In addition, the legal representatives for the applicant became aware of the spent convictions issue within a few days of judgment being reserved but a decision was made to await the decision by the CDF before applying to this Court for leave to reopen. As the spent convictions issue is raised by the applicant as a ground for challenging the termination notice and termination decision as well as the CDF’s decision, the fact that the ROG decision was given by the CDF only recently does not afford an adequate explanation for the delay.
41 Finally, I note that the delay in raising this issue in these proceedings has been substantial as the applicant filed the interlocutory application over 16 months after he was given the termination decision, and over 2 months after he was given the ROG decision. However, the weight which might be given to the fact of substantial delay before the ROG decision must take into account that the CDF is partially responsible for the delay, given the length of time which it took for the CDF to make the ROG decision. For this reason, I give limited weight only to the extent of time which has elapsed between the applicant becoming aware of the issue, on the one hand, and the applicant filing the application for leave to re-open, on the other hand.
42 The fact that there are no exceptional circumstances would of itself suffice to provide grounds for refusing the application to re-open. However, in the event that I am wrong and as a matter of fairness in any event, I have addressed the other considerations raised by the parties.
5.2.4 Prejudice to the respondent
43 Secondly, the respondent has led evidence of serious prejudice in the event that leave to re-open is granted as it would require the CDF to incur significant further costs in order to respond, as well as delaying finalisation of the proceedings. In particular, Ms Griffin deposed to the need for further evidence to be obtained which was likely to be time-consuming and to necessitate a further hearing. The further evidence that Ms Griffin considered that the respondent would need to seek included:
(1) documents from authorities in relevant jurisdictions by which it can be determined whether the charges and/or convictions identified by the applicant to his superior officers constitute spent convictions; and
(2) evidence from each person whose decision is impugned relevant to the question of whether the exemption in s 85ZW(b) of the Crimes Act applied.
44 As to the latter, Ms Griffin gave evidence at [60(b)] of her affidavit that:
Section 85ZW(b) of the Crimes Act only applies to a person “who knows, or could reasonably be expected to know”, that s 85V of the Crimes Act applied. Therefore, it will be necessary for me to obtain evidence from each person whose decision is impugned – relevantly, COL Garraway, BRIG Stothart and the CDF – for the purposes of determining:
(i) whether, as a matter of fact, each decision-maker knew at the time of making the decision that any of the charges and/or convictions referred to in the Termination Notice, the Termination Decision or the ROG Decision were “spent convictions”;
(ii) the circumstances in which each decision was made, which is evidence going to whether or not the relevant decision-maker could reasonably be expected to know that any of the charges and/or convictions referred to in the Termination Notice, the Termination Decision or the ROG Decision were “spent convictions”.
Again, since this issue has never before been raised in the proceedings, I have not taken [sic] previously taken any steps to obtain any information from any of these witnesses in respect of these issues. Given the seniority in rank of the officers in question, and their various time commitments, I believe that it would take at least up to 2 months to obtain an affidavit from each witness.
45 In those circumstances, Ms Griffin considered that there would be no possibility for the proceedings to be heard and determined this year, if leave were granted to the applicant to reopen and to file the draft further amended application. As a result, Ms Griffin considered it would be sometime after February 2018 before the matter could be heard and determined. Furthermore, Ms Griffin pointed to prejudice for which an order as to costs would not be provide compensation, namely that:
So long as the proceedings remain on foot and are not finalised, the CDF any [sic] any other person in the ADF is restrained from terminating the Applicant’s service in the ADF, despite both the Termination Decision and the ROG Decision having now been made. As a result of this, I am instructed … that the Applicant remains entitled to full pay and other entitlements unless and until the service as an officer is terminated.
46 Ms Griffins was not cross-examined and no evidence was led by the applicant on the issue of prejudice. In this regard, the applicant’s counsel, after confirming that the question of prejudice was in issue, submitted that Ms Griffin’s evidence was merely a statement of her belief and as such, the matters to which she deposed could be addressed by submission.
47 I accept the applicant’s submission that it is not clear on the evidence why the respondent would be required to adduce internal ADF documents, including the applicant’s conduct record, if leave to reopen and to amend were granted. I therefore accept the applicant’s submission that the respondent has failed to demonstrate prejudice to this extent. However, I otherwise accept Ms Griffin’s evidence as to prejudice to be reasonable and credible. In particular, I consider that her evidence as to the need to obtain evidence from the relevant decision-makers bearing on the applicability of the exemption in s 85ZW(b) of the Crimes Act and the time required to obtain that evidence is compelling. This evidence as to prejudice weighs strongly against the grant of leave to reopen. I do not consider that the respondent can be criticised for not having obtained this evidence earlier when the applicant first wrote of his intention to raise the issue in the proceeding, there being no certainty that the applicant would in fact do so unless and until the application to amend was filed. I have also given particular weight to the inability for a costs order to compensate for certain aspects of the prejudice which the respondent may suffer if leave to re-open were granted and the spent convictions issue was unsuccessful. In so finding, I do not suggest that the applicant has not rendered service of value to the Army and may not have continued to do so in the interim if leave to re-open were granted.
5.2.5 Case management considerations
48 Thirdly, the applicant’s delay in raising the spent convictions issue, the inadequacy of the reasons for that delay, and the prejudice which the respondent would suffer if leave to reopen were granted, also demonstrate that the grant of leave would not promote case management principles. In this regard, it is generally not conformable with those principles to grant leave to reopen after judgment has been reserved to raise an issue that clearly could have been raised at trial. Moreover, the applicant does not merely wish to make a new submission but rather to raise new claims which would necessitate a separate trial.
49 Furthermore, the applicant decided after becoming aware of the argument to delay his application to re-open until after the decision by the CDF. That was a choice made by the applicant which does not sit comfortably with the obligations under s 37M and s 37N of the Federal Court of Australia Act 1976 (Cth), notwithstanding that the applicant notified the respondent of its intention to raise the spent convictions issue at a later time if his ROG was unsuccessful. (In this regard, I reiterate my earlier finding that limited weight only can be given to the extent of time which elapsed between the applicant’s legal representatives becoming aware of the spent convictions issue and the ROG decision by the CDF: see above at [41].)
50 Against this, the applicant submits that its approach would avoid the need for a multiplicity of actions. Specifically, the applicant submitted that:
…. one of the objects of r 8.21 [with respect to leave to amend] is to avoid a multiplicity of proceedings. As indicated to the Court at the directions hearing on 23 October 2017, if leave to amend the current originating process were not granted, CAPT Fisk would then commence separate fresh proceedings as of right seeking substantially the same relief. While an extension of time may be required for any relief sought under the ADJR Act, that would not apply to relief sought under the Judiciary Act and the respondent would have the onus to establish that there had been an unreasonable delay in commencing proceedings. For the reasons discussed above, the respondent would be unable to establish this and those proceedings would then simply replicate the vast majority of the evidence already filed in the present proceedings. That would be a clear departure from the requirements of s 37M of the Federal Court Act that the overarching purpose of the civil practice and procedure provisions is to facilitate the just resolution of disputes as quickly, inexpensively and efficiently as possible.
51 While avoiding a multiplicity of proceedings is a relevant consideration, I do not consider that this factor can be given much weight in the present case. The risk of a multiplicity of proceedings in this case arises as a result of the applicant’s failure to raise the spent convictions issue at the trial and no adequate reason has been given for the failure to do so.
52 Moreover, in order to commence proceedings challenging the decision by the CDF under the ADJR Act, the applicant would have to seek an extension of time (as he accepts). The onus on that application would lie upon him to establish that it is proper to grant the extension of time having regard to the delay, whether there is an acceptable explanation for the delay at least before leave to reopen is this proceeding was concerned, any prejudice to the respondent or a third party, and the merits of the substantive appeal if leave were granted: see e.g. BAO15 v Minister for Immigration and Border Protection [2016] FCA 214 at [19]; Hunter Valley Developments Pty Ltd v Cohen (1984) 3 FCR 344 at 348–349.)
53 While no time limit is prescribed for the making of applications under s 39B of the Judiciary Act 1903 (Cth), the Court is entitled to consider whether proceedings have been instituted within a “reasonable time”: Wyong-Gosford Progressive Community Radio Incorporated v Australian Communications Media Authority [2006] FCA 1691 (Wyong-Gosford) at [37]-[42] (Cowdroy J). In this regard, delay coupled with prejudice to the respondent are important factors which may debar an applicant from discretionary relief: Ansell v Wells and Others (1982) 63 FLR 127 at 156 (Lockhart J) (quoted with approval in Wyong-Gosford at [38]).
54 The respondent has also indicated that he may argue that, on conclusion of these proceedings, the applicant is estopped from further challenging the termination notice and the termination decision or is otherwise time-barred.
55 As such, the submission that the applicant could commence fresh proceedings in respect of each of the termination notice, the termination decision and the ROG decision by the CDF “as of right” puts the matter too highly. The factors to which I have referred also indicate that there is at least some uncertainty about whether the applicant would ultimately commence any such future proceedings.
5.2.6 Do the proposed grounds have sufficient prospects of success?
56 Finally, the applicant submitted that the case which it proposed to run had strong prospects. As I have indicated, in the case of an application of this kind it is not appropriate to delve into the merits in detail but rather to approach the issue at a reasonably impressionistic level.
57 It is not in dispute on the interlocutory applications that the termination notice refers to two occasions on which the applicant has been found guilty of offences which constitute "spent convictions" for the purposes of s 85ZZH(g) of the Crimes Act. Furthermore, I do not give weight to the respondent's submission that it is doubtful that there is any utility in challenging the issuing of the termination notice if the ROG decision by the CDF is now the operative decision, given that it was not in issue in the substantive proceedings that, if the termination notice was invalid, it followed that the termination decision and decisions of the ROG were also invalid.
58 That notwithstanding, it is apparent that there would be a number of impediments which the applicant would have to overcome in order to succeed on the spent convictions argument were leave to reopen and to amend granted. These include the following.
(1) With respect to proposed ground 3, an extension of time would be required in order for the applicant to challenge the CDF's decision on the ROG under the ADJR Act, as the applicant accepts. There is also considerable force in the respondent's submission that the applicant would have to apply for an extension of time in order to challenge the termination decision under the ADJR Act, given that no direct challenge to that decision has previously been made in this proceeding. Yet, while not necessarily determinative, the explanation provided thus far for the applicant's delay in challenging these decisions would generally be regarded as inadequate. While the applicant seeks injunctive relief in proposed ground 4 under s 39B of the Judiciary Act 1903 (Cth) to which no statutory time limit applies, the grant of that relief is reliant upon the applicant succeeding upon proposed grounds 2 or 3.
(2) With respect to proposed grounds 2 and 3, there is a serious question as to whether only the behavioural conduct underlying the spent conviction was taken into account in the impugned decisions and, if so, whether there could therefore be any breach of Part VIIC of the Crimes Act: see by analogy Kocic v Commissioner of Police (2014) 88 NSWLR 159 at [57]-[60] (Basten JA) and [82] and [85] (Leeming JA) (White J diss on this issue at [112]-[126]).
(3) Also with respect to proposed grounds 2 and 3, the applicant submits that the CDF's finding was based on a plain error of fact, namely, that CAPT Fisk was posted to a "designated position" for the purposes of the exemption in s 85ZZH at the time his service was terminated. In this regard the applicant relies upon the posting history annexed to Ms Griffin's affidavit which is said to show that the security clearance for the positions to which he was posted when the termination decision was made and which he has subsequently held, had a security clearance requirement of "baseline" only. Against this, counsel for the CDF relied upon evidence in an email dated 14 August 2017 from MAJ Michael Liang, Careers Advisor Aviation, Director of Officer Career Management Army, to the applicant to suggest that, while the Med Management pool position which he had held had a Baseline security requirement, his security clearance requirement came from the employee specification which required a Negative Vetting Level 1 (NVL1) (Secret). As such, while that evidence is not and could not be conclusive on an interlocutory application, it indicates that the question of whether the applicant held a "designated position" for the purposes of the statutory exemption is not necessarily determined by the posting history annexed to Ms Griffin's affidavit as interpreted by the applicant.
(4) Finally, as the respondent submits, a question may arise as to whether it is necessary for the applicant to make a complaint to the Information Commissioner under Div 5 of Part VIIC of the Crimes Act before this Court has jurisdiction to do with any alleged breach of Part VIIC.
59 For these reasons, I do not consider that the arguments which the applicant wishes to ventilate lack any real prospects of success which is a factor weighing in his favour. That notwithstanding, I do not accept the applicant's submission that he has a clear and obvious case.
60 Leave to re-open should be refused with costs given that no exceptional circumstances have been demonstrated warranting the grant of leave to reopen. To the extent necessary, I would have reached the same conclusion on balance having regard to the lack of exceptional circumstances, the extent of prejudice that the respondent would be likely to suffer if leave were granted, the case management considerations to which I have referred, and the fact that, while his case is arguable, I would not characterise the argument as strong.
I certify that the preceding sixty (60) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Perry. |
Associate:
