Li v Chief of Army

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.