Bromet v Oddie

REASONS FOR JUDGMENT 1 The circumstances giving rise to this combined proceeding could give no satisfaction to those charged with the command and administration of the Royal Australian Air Force. They are characterised by delay, error and confusion in the processes leading to the making of the four decisions of which the applicant, Flight Lieutenant Marcus Bromet, complains. 2 Those decisions were: (i) the decision of the first respondent, Group Captain Stephen Oddie, on 2 November 2000 to suspend the applicant from flying duties, Group Captain Oddie being the Commanding Officer of 36 Squadron and Flight Lieutenant Bromet being a pilot in that Squadron ("the Suspension Decision"); (ii) the decision of either the second respondent, Wing Commander Jensen, or the third respondent, Air Marshall Alan Houston, of 27 November 2001 to take no further action in relation to an application for Redress of Grievance made by the applicant against the Suspension Decision ("the Redress of Grievance Decision"); (iii) the decision of Group Captain Oddie of 4 December 2001 to issue an Unsuitability Report recommending that the applicant be identified as unsuitable for employment in fixed wing tactical air transport ("the Unsuitability Report Recommendation"); (iv) the decision of Group Captain Ian Meyn, the respondent in A16 of 2002, on 20 March 2002 to uphold the Unsuitability Report ("the Unsuitability Report Decision"). 3 The challenges to the decisions are made by way of an application for an order for review under the Administrative Decisions (Judicial Review) Act 1977 (Cth) ("the ADJR Act") and for writs of prohibition and certiorari under the Judiciary Act 1903 (Cth), s 39B. The ADJR Act application was out of time, but the respondents did not oppose the grant of leave for its filing. Neither did they prosecute the objection to competency they raised to some of the decisions for ADJR Act purposes. 4 To understand the nature and purpose of the various decisions challenged, it will be necessary to outline in a little detail both the events which gave rise to the decisions and the legal and administrative setting in which they occurred. The Factual Background 5 This can be dealt with relatively shortly. In January 1999 Flight Lieutenant Bromet was posted to 36 Squadron to undertake C130H Hercules Aircraft Conversion. In May 2000 he was selected for a C130H Airborne Operations Course. He was awarded a fail grading for the Course and an ABNOPS ("Airborne Operations") Review Board assessed him as not able to achieve the required standard for a Co-pilot in the ABNOPS role. 6 Flight Lieutenant Bromet met with Group Captain Oddie in August 2000. His past and prospective performance were discussed at that meeting and a course of remedial action was proposed. One element in the proposals, to which I need refer because of its significance in this proceeding, was that he attended an interview with a service psychologist. The purpose of that interview was stated in a contemporary record of interview to be: "to assist you to identify improvements that can assist your further development. The report from that interview will also assist me to decide what further training opportunities should be provided to achieve your development to meet unit expectations." 7 At the end of the interview (as recorded), Group Captain Oddie alerted the applicant to the following: "If you are unable to achieve in any single segment of remedial training or my assessment of your overall performance on 1 Nov 00 is that your performance remains unsatisfactory for further progression to Cat B ALS Copilot in the immediate term and Cat C ABNOPS Captain in your future employment, I intend to take further administrative action." Emphasis added. 8 The psychologist's report (from Dr Ryder) was provided on 14 August 2000. It outlined (i) Flight Lieutenant Bromet's service background; (ii) a previous interview Dr Ryder had had with him in March 2000; (iii) the subject matter of the immediate interview; and (iv) Dr Ryder's behavioural concerns about the applicant which were discussed with him. It concluded with the observation that, though the Flight Lieutenant was very keen for a flying career in the RAAF, "he will have to make some major changes to his behaviour, if he is to achieve his goal". 9 As he had foreshadowed in the August meeting, Group Captain Oddie reviewed the applicant's achievements in the remedial programme on 1 November 2000. On 2 November 2000, the Suspension Decision was made by the Group Captain. It stated: "PERFORMANCE REVIEW