In a stunning reversal of a decision of Justice Fagan in the NSW Supreme Court, last July, the NSW Court of Appeal today awarded damages to 300 former Marine Trainee Technicians who claim that they were recruited into the Navy on false pretences.
The allegations against the Commonwealth were that the Navy had contracted with them as a Registered Training Organisation, to provide them with a Certificate IV in Engineering, but failed to honour its promises.
At first instance, Justice Fagan held that the Commonwealth could not have bound itself by contract to the sailors because it was a “fetter” on the Navy’s right of command and could have given rise to operational interference.
However, today, the NSW Court of Appeal comprised of Chief Justice Bathurst, the President of the Court of Appeal, Justice Bell and Judge of Appeal, Justice Basten found that “The contract between Mr Searle and the Commonwealth did not fetter the Commonwealth’s power of naval command in any real sense, nor did any potential award of damages for breach have this effect”.
The Court of Appeal also found that while such a contract could not be specifically enforced, the Commonwealth would have to pay damages, not only to the Lead Plaintiff, Clayton Searle but to the three hundred (300)-odd other members of the Class. Mr Searle was, himself, awarded $60,000 plus costs.
Stewart Levitt of Levitt Robinson Solicitors commented:
“This is a milestone for military personnel. We have been contacted by many members of the Services who have similar grievances about being ‘sold a pup’ by recruiters and not receiving the training they bargained for.”
The case was made possible by Galactic Litigation Partners LLC, a New York-based Litigation Funder.
Mr Levitt continued:
“We prefer to deal with an overseas funder in a case against government because we perceive that our clients fear a local funder might be pressured into an easy settlement, rather than upset the powers-that-be.”
Mr Levitt expressed satisfaction at the award of damages of $60,000 plus costs to Mr Searle, noting that the other three hundred (300) Group Members’ damages remain to be assessed but, in most instances, “would likely exceed $60,000”.