Sailors successfully sue Navy over dud recruiting promises

The following, interesting story from earlier this year, which we missed at the time, was brought to our attention today by a CONTACT fan…

FILE PHOTO (February 2019): Collins-class submarines HMAS Collins, HMAS Farncomb, HMAS Dechaineux and HMAS Sheean transition through Cockburn Sound, Western Australia. Photo by Lieutenant Chris Prescott.

NSW Court of Appeal has overturned a NSW Supreme Court decision that denied damages to 300 former trainee marine technicians who claimed they were recruited into the Royal Australian 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 of the NSW Supreme Court 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, the NSW Court of Appeal ruled on 31 May 2019 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 300-odd other members of the class action.

Mr Searle was awarded $60,000, plus interest, plus costs.

The case was made possible by Galactic Litigation Partners LLC, a New York-based Litigation Funder and brought by Sydney-based Levitt Robinson Solicitors.

Stewart Levitt of Levitt Robinson Solicitors said his firm preferred to deal with an overseas funder in cases against government because they perceived their clients feared local funders might be pressured into an easy settlement, rather than upset the powers-that-be.

Mr Levitt also said the appeal-court decision was a milestone for military personnel, not just in the Navy.

“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,” he said.

The unanimous, landmark Court of Appeal decision sets a precedent that may now be relied on by other ADF and former ADF members who believe Defence did not live up to promises made by recruiters.

“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,” Mr Levitt said.

“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 [Registered Training Organisation], 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.

“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 Solicitors is a Sydney-based firm with a reported penchant for taking on ‘David-and-Goliath’ cases.

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Brian Hartigan

Managing Editor Contact Publishing Pty Ltd PO Box 3091 Minnamurra NSW 2533 AUSTRALIA

11 thoughts on “Sailors successfully sue Navy over dud recruiting promises

  • 04/11/2019 at 2:51 pm
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    Guess I could sue the living arsehole end out of the puss for not disclosing the amount of duties I was expected to do for very prolonged periods of time that had absolute zilch to do with my rating. That in addition to the massive amounts of unpaid OT clocked up, bullying and other discrepancies that would make headlines in the morning rag.

    However for what it’s worth, I do admire the lead plaintiff’s intestinal fortitude in legally pursuing this matter. At least it wasn’t something as superficial and outright trivial based on being “I was offended because blah blah” BS!

    Reply
  • 04/11/2019 at 2:37 am
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    You mean the Military lies during recruitment? Never saw that coming….. On a serious note, glad someone stuck it to them. Lying grubs. Glad they got sued.

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  • 03/11/2019 at 11:44 am
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    Promises and Defence is a oxymoron.

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    • 03/11/2019 at 11:46 am
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      BTW they lie about go hard free medical…there is no such thing DVA is an insurance company who do nothing but Delay, Deny, Wait until you Die!

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      • 05/11/2019 at 5:47 pm
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        Hi Sean,
        Sorry that you feel that way about DVA. What you need to do is see some one from an ESO and I suggest
        Defence Force Welfare Association and they will help you through your problem. We have just attended a Transition Seminar and the amount of people we helped that day was great. I know its hard when you transition and there is too much negativity regarding DVA and most of it is false. If I can help get in touch.
        Lee Bowes
        State President
        DFWA SA Branch

        Reply
  • 29/10/2019 at 7:58 pm
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    My eldest son went through Cresswell Naval College a few years ago now,with the idea he was to go on to uni & do an elect engr deg,.,that they agreed upon when he enlisted .After doing quite well he graduated ,Navy said .This term all will only be doing a Bof Arts,as money was short .Thats when my lad started to buck & was told .Well if you want OUT all that we put into you will cost your father 27,000 dollars .I told them ,NO way.It,s a breach of contract & went to RSL.Next the lad got a cheque for same amount & a clean discharge.

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    • 29/10/2019 at 8:02 pm
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      LOL and eyes roll back in head.
      Thank you for sharing.

      Reply
    • 03/11/2019 at 5:55 pm
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      Navy got out cheaply there! I’m sure that they really would have got their monies worth , by the sounds of it!! So the Navy agreed to be used as a paid stepping stone, whilst paying his degree, and when they do subjects he doesn’t like at Uni, he comes running back to Mummy and Daddy!! Imagine if the Navy wanted to use him for what they paid for and deploy him?? Pmsl

      Reply
    • 04/11/2019 at 3:44 pm
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      For this reason, amongst others (watch the 7:30 report from a few years back), I personally believe ADFA should be scrapped, and officer training should only be conducted through the respective single-service officer training establishments (RMC, Creswell & Point Cook). Any employment training specifically relying on the use of a university degree should be pursued either through the current DAS (which needs an overhaul too), the undergrad sponsorship scheme and or qualified direct entry hire streams. The military did without ADFA for 80 years quite successfully beforehand, so maybe it’s time to trim the fat away.

      There are way too many of these jubes/Ruperts milking the taxpayer for useless and non relevant degrees that they never use in their specialisation. Seriously does a ship driver, infantry officer or catering officer utilize a STEM degree in their category/corps/mustering? NO! All it does is just either help pad out their post discharge career plan and or their CVs when they leave.

      Reply

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