Posted by & filed under News.

Servicemen and women, aggrieved that Australia’s Defence Forces as their ‘‘employer’’ have failed to meet contractual obligations owed to them, may now be able to successfully sue for compensation and damages.

The breakthrough comes from a decision of the NSW Court of Appeal (Searle v Commonwealth of Australia [2019] NSWCA 127) which, at the end of May, ruled that damages can be awarded to marine trainee technicians recruited into the Royal Australian Navy under a contract which the Navy made no serious effort to perform. The successful marine trainees continue to be represented by Levitt Robinson, lawyers of Surry Hills, Sydney.

The lead plaintiff, Clayton Searle, was awarded $60,000 plus interest and costs. Up to another 300 group members in the class action are also now entitled to access similar compensation, says Levitt Robinson senior partner Stewart Levitt.

The unanimous, landmark Court of Appeal decision sets a precedent that could be relied on by other military personnel who find themselves in a similar predicament. Searle and the other sailors alleged that the Navy had contracted with them, holding itself out as a Registered Training Organisation (RTO) and as their “Employer”, to provide them with a Certificate IV in Engineering, but failed to honour its contractual promises.

At the initial hearing, Justice Fagan in the NSW Supreme Court held that the Commonwealth could not have bound itself by contract to the sailors because this would have been a “fetter” on the Navy’s “right of command” and could have given rise to operational interference. However, Justice Fagan’s decision was overturned on appeal, and the Commonwealth has elected not to seek leave to appeal to the High Court, so the NSW Court of Appeal’s decision stands.

“Enlisted men and women do not have a right in civil law to sue the Commonwealth for things that happen in the ordinary course of their military service, and also do not enjoy the protection of the Fair Work Act,” says Stewart Levitt.

“However, military personnel can now sue the government for anything they contracted to do with Defence that was above or beyond their standard obligations as enlisted men and women, if Defence breaches their contract.

“The Navy held itself out to the Victorian State Government as an RTO, to obtain benefits available under a State Training Scheme, but then left hundreds of sailors sitting idle, stuck in dead-end jobs and subject to military discipline, just marking time until they could be discharged,” he says.

“From the enquiries we have received while this case has been running, there have been similar incidents in the Army and Air Force – not just the Navy – so there would be many people who could pursue their rights, if they are not time-barred.’’

Levitt Robinson is a boutique city firm with a penchant for taking on “David and Goliath” cases. It is representing several senior banking whistleblowers and is running class actions on behalf of 7-Eleven franchisees, and Aveo retirement village residents.

Monday 29 July 2019, Sydney Morning Herald, page 31