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[2003] FCAFC 213
Federal Court of Australia (Full Court)
2003-08-29
Dowsett J, Dowsett JJ, Spender J
Original judgment source is linked above.
Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
AUSTRALIAN CAPITAL TERRITORY DISTRICT REGISTRY A 48 of 2002
ON APPEAL FROM A JUDGE OF THE FEDERAL COURT OF AUSTRALIA
BETWEEN: FLIGHT LIEUTENANT MARCUS ROBERT DAVID BROMET
GROUP CAPTAIN I J MEYN in his capacity as Director of Personnel Officers - Air Force
AUSTRALIAN CAPITAL TERRITORY DISTRICT REGISTRY A 3 of 2003
ON APPEAL FROM A JUDGE OF THE FEDERAL COURT OF AUSTRALIA
GROUP CAPTAIN I J MEYN in his capacity as Director of Personnel Officers - Air Force
AND: FLIGHT LIEUTENANT MARCUS ROBERT DAVID BROMET
1 In each appeal I agree with the reasons for judgment of Dowsett J and the orders he proposes. I certify that the preceding one (1) numbered paragraph is a true copy of the Reasons for Judgment herein of the Honourable Justice Spender.
ON APPEAL FROM A JUDGE OF THE FEDERAL COURT OF AUSTRALIA
BETWEEN: FLIGHT LIEUTENANT MARCUS ROBERT DAVID BROMET
AND: GROUP CAPTAIN STEPHEN JOHN ODDIE
GROUP CAPTAIN I J MEYN in his capacity as Director of Personnel Officers - Air Force
ON APPEAL FROM A JUDGE OF THE FEDERAL COURT OF AUSTRALIA
GROUP CAPTAIN I J MEYN in his capacity as Director of Personnel Officers - Air Force
AND: FLIGHT LIEUTENANT MARCUS ROBERT DAVID BROMET
REASONS FOR JUDGMENT MADGWICK J: 2 This case concerns the interplay between appropriate flexibility for military officers charged with command responsibilities and the need for fair treatment of skilled personnel in the modern military. 3 The appellant, a pilot in the Royal Australian Air Force ("RAAF"), with the rank of Flight Lieutenant, was posted to 36 Squadron, commanded by the first respondent, now Group Captain (but formerly Wing Commander) Oddie, for further training as a pilot of Hercules class aircraft. Group Capt Oddie suspended the appellant from flying and sought to have him posted elsewhere because, in his view, the applicant was not making requisite progress with his training. 4 As argued on appeal, the case concerns the status of two decisions which the appellant says should not be permitted to stand. The decisions are the initial suspension decision of the first respondent on 2 November 2000 and a decision of the fourth respondent Group Captain Meyn, the "Director of Personnel Officers" [i.e. for officers] of the RAAF (known as "DPO"), taken on 20 March 2002, to uphold an "Unsuitability Report" issued by the first respondent, Group Capt Oddie, on 4 December 2001. 5 The learned primary judge rejected the appellant's challenge to those decisions and to some other decisions of various RAAF officers which the appellant has ultimately not sought to challenge on appeal. The primary judge was, however, critical of the RAAF's performance in dealing with the appellant's complaint that the first respondent's initial decision of 2 November 2000 had been wrongly and unjustly taken and declined to make any order as to costs. The respondents, RAAF officers all, appeal against the decision to make no order as to costs.
The appellant's RAAF history 6 The appellant, it would seem, was of above average academic ability, having been asked to complete an Honours year at the Australian Defence Forces Academy. At all events, he completed his initial RAAF training as a pilot in May 1997. He was posted to the RAAF's Tindal base in Northern Territory to fly other class aircraft there. This he apparently did quite creditably, achieving a captaincy role on an accelerated basis, and flying mostly unsupervised during the 18 months he was at Tindal. The appellant said of this posting that it had been an "experiment" by the DPO, since discontinued; that he had had "little or no supervision" and had not had "the benefits of a check and training scheme", and that his subsequent posting to 36 Squadron was accompanied, in a compensatory manner, by a promise by the DPO of a three year posting to that Squadron. 7 As indicated, in January 1999 the appellant was posted to 36 Squadron at the RAAF's Richmond NSW airbase for training in the upgrading of his capacities so that he could fly C130A Hercules class aircraft. The first respondent, Group Capt Oddie, then a Wing Commander, commanded that squadron. The initial step for the appellant was to undertake a "Conversion Course" which he did in 1999. In the same year he saw active operational service in support of the Bougainville Peacekeeping Force in Hercules aircraft (the possible significance of this will emerge later). 8 On 28 March 2000 Dr Ryder, a RAAF psychologist, had the first of two relevant interviews with the appellant. Among other things, she said: 'It seems to me that he was badly managed in being sent to TDL to fly the Twin Otter straight off PLTs Cs. He was not provided with adequate supervision at a critical time in his career. This is probably the reason for many of the difficulties he experienced during his C130 conversion.' 9 In May 2000, having concluded the Conversion Course for Hercules, he was selected to undergo the "C130H Airborne Operations Course" within 36 Squadron. At the end of the latter course, he was graded as having failed two of the three "check rides", which I understand to be test flights, and as having achieved a "solid pass" for the third. 10 Group Capt Oddie then, on 4 August 2000, set the appellant a number of requirements for a three month remedial period. These appear to have been carefully structured to give the appellant every opportunity to improve the consistency with which he performed at the requisite high level. One requirement was that he attend an interview with a RAAF psychologist in order: '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.' 11 Group Capt Oddie's written advice to Flight Lieutenant Bromet concluded: 'As remedial action progresses you will be monitored. Failure to achieve satisfactory results on any one segment of this process … will mean that further training will be suspended. On 1 Nov 00, having completed the remedial training and supervision, I will review your achievements. 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 [logistical flying] Copilot in the immediate term and Cat C ABNOPS [operational, as distinct from the less onerous logistical flying] Captain in your future employment, I intend to take further administrative action.' 12 On 9 August 2000 the appellant had his second interview with Dr Ryder whose report included the following: 'FLTLT Bromet also said that he was aware that his performance decreases when there are other "large stresses" in his life. In May 1999, whilst he was undergoing C130 conversion, he had major relationship problems. His grandfather died during the first week of the ABNOPS course. He was close to his grandfather, and he organised the funeral. Since then, he has been supporting his grandmother. He has had no leave this year, and is fatigued. He had thought he was coping but now realises that he was not. He is taking leave next week.' 13 On 2 November 2000 Group Capt Oddie wrote to the appellant: 'PERFORMANCE REVIEW
b. With continued improvement you would be considered suitable for Category B upgrade training towards the middle of next year. 2. Taking into account the level of resources committed to you during the remedial period, and the limited resources available to assist your future progression, I am not confident that you have the ability to progress to the Category B induction standard within the immediate term. Further, I assess that you are unlikely to progress to Category C ABNOPS copilot, the lowest operationally declarable copilot skill at 36 Squadron, in the time remaining in your tour and within the resources available. The evidence of your flying achievements, subsequent to a previous command tour flying Twin Otters, is that your performance is considerably less than that of your peers, with whom you must compete for resources to reach these objectives. 3. I believe that your flying ability meets the minimum standard for your current category, but your demonstrated low rate of progression does not give you a reliable prospect of future achievement. I am therefore suspending you from flying duties at 36 Squadron immediately and am recommending to DPO that you be considered unsuitable for employment as a pilot on C130H at 36 Squadron. 4. If you choose to accept this decision, administrative action will progress immediately. If you choose to contest the decision, you may forward a rebuttal to me in writing by 16 Nov 00 and administrative action will be postponed until that date. I am seeking advice on your employment pending a final decision on your suitability and will advise you on this at the earliest opportunity.' 14 It is to be observed that, by the last mentioned advice, Group Capt Oddie had really decided to do three things: firstly, to suspend the appellant forthwith from his flying duties in 36 Squadron; secondly, to express in a formal way his assessment that the appellant was unsuitable for employment as a pilot in that squadron and, thirdly, to initiate a process whereby the DPO would accept that assessment and move the appellant out of that squadron. It was plainly conceived that the DPO had the final say as to suitability. Moreover, he had clearly then made decisions final in their character (there was some later obfuscation on this pont). 15 As the issues involved in these decisions are some of the issues, and touch the remainder, that fall for decision, it is convenient to indicate the legislative and, possibly, quasi-legislative bases for decisions of those kinds.
Legislative/administrative framework 16 The Defence Act 1903 (Cth) provides, as its long title indicates, for the defence and protection of the Commonwealth and the states. The Act applies "to, and in relation to, the … Air Force, and to all members of [it] whether appointed or enlisted …" (s 5). Part II (s 8-s 28) deals with "Administration". Section 8 provides for the Minister to have the general control and administration of the Defence Force and the powers vested in the "Chief of Air Force" by s 9. Section 9 provides for appointment of a Chief of the Defence Force and a Chief of Air Force. Section 9(2), subject to s 8 (and to s 68 of the Constitution, which vests the command in chief of the defence forces in the Governor-General), vests the command of each of the three arms of the Defence Force in the service chiefs, here, the Chief of Air Force. 17 Section 9A introduces a distinction between the "administration" of the Defence Force and its constituent arms, and "matters falling within the command" of the Defence Force or an arm of it. As to non-command matters, the Secretary and the Chief of the Defence Force jointly have the administration of the Defence Force (subs(1)) and "instructions" issued under their authority are to be known as "Defence Instructions (General)". They may authorise a service chief to administer non-command matters relating to the relevant arm of the Defence Force; a service chief's instructions or orders in relation to administration are to be known, relevantly, as "Defence Instructions (Air Force)": subs (3). The Defence Instructions (General) prevail where inconsistent with the Defence Instructions (Air Force): subs (4). 18 The Defence Force Discipline Act 1982 (Cth) ("the Discipline Act") provides as follows: 's 3(1) In this Act unless the contrary intention appears: … general order means: (a) a Defence Instruction (General) … or a Defence Instruction (Air Force); (b) any other order, instruction or directive issued by, or under the authority of, the Chief of the Defence Force or a service chief; or (c) a general, standing, routine or daily order in force with respect to a part of the Defence Force.' … s 29 Failure to comply with general order (1) A person, being a defence member or a defence civilian, who does not comply with a lawful general order that is applicable to the person is guilty of an offence for which the maximum punishment is imprisonment for 12 months. (2) It is a defence if a person charged with an offence under this section neither knew, nor could reasonably be expected to have known, of the general order.' 19 "Defence Instructions (Air Force) Personnel" were issued and, at relevant times, in force pursuant to s 9A of the Defence Act. It will be necessary to quote from some of these at length. An Instruction known as DI(AF) PERS 3-1 provides: 'POSTING, ATTACHMENT AND TEMPORARY DUTY - PERMANENT AIR FORCE INTRODUCTION 1. This Instruction details the policy and administrative procedures governing the posting, attachment and temporary duty of members of the Permanent Air Force. … DEFINITIONS 4. Posting. Every member of the Air Force is posted to the strength of an Air Force unit, known as the "parent unit". In some circumstances, this posting may be for administrative purposes only, with duty otherwise detailed. A member who is attached from one unit to another remains on the posted strength of the parent unit. 5. Attachment. A member may be transferred temporarily from one post to another or from one unit to another by an attachment. An attachment temporarily varies the usual chain of command for the attached member and records the duty performed for administrative purposes; for example, attendance on a military training course or when serving detention. 6. Temporary duty. A member may be authorised for temporary duty, where the member's usual chain of command is not altered and when an attachment is not warranted. Temporary duty may, for example, be appropriate for staff visits to Bases by Defence or Air Force Headquarters staff or for activities undertaken with unit discretionary funds. Temporary duty would not be appropriate where a permanent record of the duty on a member's Personal Record Extract (PRE) is warranted. POSTINGS AND ATTACHMENTS - GENERAL 7. Director of Personnel Officers (Air Force) (DPO(AF))/DPA may authorise the posting or attachment of a member for any period. Employment on Nominated Duties - Officers 8. A posting or attachment instruction will specify either the appointment or the duty for which an officer is posted or attached. An officer is not to be employed for periods in excess of three calendar months in an appointment or on a primary duty other than as specified in the posting or attachment instruction, without the authority of DPO(AF). … Evaluation Reports 16. When a member is posted or attached, consideration is to be given to the requirements for evaluation reports in accordance with DI(AF) PERS 4-2 - Form PR 34 - Annual Evaluation Report - Noncommissioned Ranks and DI(AF) PERS 4-17 - Officer Evaluation System. … POSTINGS Grade of Postings 20. As a guide to a member's removal and housing entitlements, postings are graded into [certain] categories according to the expected period of service in the locality of the gaining unit: … Stability of Posting 21. Except for those instances where tour lengths are promulgated for specific localities, such as overseas or isolated units as designated in paragraph 22, the standard posting period should be three years. In addition, members should normally be retained within the same geographic location for a minimum of four years. To achieve this, members should be retained at the same geographic location for two successive postings wherever this is feasible. However, Service contingencies may override this requirement or alternatively, circumstances may exist that necessitate the best person for the job is posted into a position, particularly in response to offers of remusters and out-of-musting employment. DI(AF) PERS 3-9 contains further information on management issues for airmen and airwomen. The Career Planning Guide contains further information on posting policy for officers. … ATTACHMENTS AND TEMPORARY DUTY 58. Visit Approvals. Nothwithstanding the authorities detailed in paragraphs 59-67, the normal provisions of DI(AF) ADMIN 14-7 - Visits to RAAF Establishments and Overseas Visits by Air Force Program Personnel are to be followed. Authority to Attach 59. DPO(AF)/DPA may authorise the attachment of a member for any period. Due consideration is given, however, to posting rather than attachment, depending on the nature of the duty. 60. Air Officers Commanding Commands. Air Commander Australia (ACAUST), SPTCOM-AF or Air Officer Commanding Training Command (AOCTC) may attach a member for a period of up to (but not including) six months, or for a period of up to (but not including) a total of six months in any 12 month period: a. between the member's unit and another unit under their command; or b. to a unit in another command, provided prior agreement has been obtained from the Command Headquarters of the gaining Unit. 61. ACAUST, SPTCOM-AF or AOCTC may attach personnel under their command, whose parent unit is in a different command, subject to the concurrence of the Command Headquarters of the member's parent unit, for a period of up to but not including six months, or for a period of up to but not including a total of six months in any 12 month period. … Authority for Temporary Duty 65. A member may be authorised to proceed on temporary duty within Australia where attachment is not warranted or appropriate. Such duty would generally be in respect of the member's primary duties and as a guide, would not normally exceed one month. Authority for travel on temporary duty is normally covered by the approval of a Form PY 82 - Travel Requisition/Order. 66. The following appointments may authorise temporary duty for a period: a. A Division or Branch Head, Director, or CO RAAFSUCAN may authorise temporary duty for members posted to Defence Headquarters. b. ACAUST, SPTCOM-AF, AOCTC, a Group Commander, or Officer Commanding (OC) (or equivalent appointments within another Program) may authorise temporary duty for personnel under their command between: (1) the member's unit and another unit under their command; or (2) by mutual agreement, the member's unit and a unit in another command or RAAFSUCAN. … d. A CO (or person vested with the authority of a CO) may authorise temporary duty for personnel under their command, by mutual agreement, between the member's unit and another unit.' 20 The key instruction, DI(AF) PERS 4-19, dealt with management of unacceptable and unsuitable behaviour. It is necessary to set out lengthy extracts:
'MANAGEMENT OF UNACCEPTABLE AND UNSUITABLE BEHAVIOUR INTRODUCTION
Legal Authority 2. Command is the legal authority vested in the CDF and the Chief of Staff of an Arm of the Defence Force (under the CDF) through the Defence Act 1903 (Cwlth), section 9. The authority for delegation of command is recognised in the wording of subsection 9(4) of the Defence Act 1903 (Cwlth). This legal authority is further defined through Ministerial Directives to the CDF and the Chiefs of Staff (Establishment Manual - ESTABSMAN 1), chapter 2). 3. The JSP(AS) 1(A) - Joint Operations Doctrine and JSP(AS) 101 - Australian Joint Services Glossary define command as exercised by a commander in the ADF. These documents relate, in particular, to operations in a joint force setting. Definition and Scope of Command 4. Command is the lawful authority granted to a member of the RAAF to issue orders to a subordinate in the execution of his delegated duty. Such authority is given to enable the member to discharge his responsibilities. Authority and responsibility should be matched. Authority should not exceed nor should it be less than that needed to enable the member to fulfil his assigned responsibilities. Coincident with the exercise of this command authority is the responsibility of the commander for the consequences of whatever action he/she requires to discharge an order. 5. Command includes the authority and responsibility for effectively using available resources and for training, organising, directing, coordinating, controlling and planning the employment of military forces for the accomplishment of assigned missions or tasks in accordance with stated policies, directives and/or programs. In addition, command also includes responsibility for the health, welfare, morale and discipline of assigned personnel. 6. Authority in the context of command is derived from appointment and rank. Authority due to appointment is specific in nature and is related to the responsibilities of a particular post. Authority due to rank is conferred through the assignment of a rank to each member of the RAAF. A particular rank is accorded to each RAAF post based on the rank structure of the particular organisational entity and the level of responsibility inherent in a particular post. The customs and traditions that apply to appointment and rank are in accordance with the customs of the Service. … Appointment to Command 7. Commanders are officers appointed by CDF, CAS, AOCs, OCs or COs specifically to command a formation, wing, squadron, unit, detachment or other organisational entity. Therefore, within the RAAF, command in its full legal sense is restricted to CAS, AOCs, OCs, COs and Detachment Commanders. … Extent of Command 9. The extent of command to be exercised by commanders is specified in directives issued to those so appointed and generally derives from the legal status of their rank and the appointment they hold. The command exercised by the commander of a formation automatically extends to command over smaller elements - including transient personnel - which may be collocated as a temporary expedient, unless directed otherwise. Limitations to command in this situation are detailed at paragraph 17.' 26 It will be necessary to return to these issues.
The parties' disputes 27 To resume the relevant narrative, on 16 November 2000 the appellant furnished a lengthy "rebuttal" of Group Capt Oddie's decision of 2 November. Among many other things, he referred to: · the "promise by DPO" of a 3 year flying term in a "well regulated" flying environment after his "experimental" posting in the Northern Territory; · briefly, the death of his grandfather in May 2000 which he said was "not conducive to his preparation for the ABNOPS course". 28 Three months later, on 13 February 2001, Group Capt Oddie wrote to the appellant that he intended "continuing with the administrative process that commenced" with his note of 2 November 2000. Group Capt Oddie continued that he "[a]ccordingly required" that the appellant: · attend on Dr Ryder for a further psychological assessment; · interview persons from the Central Flying School (CFS) preparatory to a decision on whether he would be required to undergo a "Special Flying Assessment" there. 29 Further, Group Capt Oddie advised that he was requesting DPO to post the appellant to "HQALG".
30 This document was given to the appellant on the day it was dated. Group Capt Oddie orally advised him "that he was no longer part of the squadron". He was required to surrender his logbooks and his "36 SQN Headquarters [Access] Card". 31 The next day, 14 February 2001, the appellant submitted an "application for redress of grievance" (AROG) against Group Capt Oddie. Among other things, the appellant complained that: · the suspension decision "has publicly humiliated and embarrassed me before my peers, senior and junior officers and other ranks"; · Group Capt Oddie's "procrastination in responding to my rebuttal … has caused extreme anguish to me and is contrary to the requirements of administrative law and natural justice"; · the "Unsuitability Report" was "incorrect" as "agreed minimum standards [had] been achieved" and, in any case, it "did not comply with the spirit and intent of DI(AF) PERS 4-19 in many respects"; · the suspension decision was ultra vires because DI(AF) PERS 4-19 had not been complied with.. 32 On 12 March 2001 Group Capt Oddie referred "all matters pertaining to [the applicant's] AROG (application for redress of grievance)" to "OC 86 Wing" to have an investigating officer appointed. On 7 and 10 May 2001 Group Capt Plenty, the officer commanding No 86 Wing, appointed Wing Commander Mallen to undertake the investigation. 33 On 23 May 2001, Group Capt Oddie responded to the appellant's "rebuttal", but not to his AROG. Among other things, the response made the following points: '8. … the level of resources committed to you for the remedial period was significant, particularly in terms of commitment of senior captains and instructors. In fact the commitment of training to a remedial training program is inevitably at a cost to the progression of others. Continual dedication of these resources to you at the expense of others will erode Squadron capability and has the potential to adversely impact the careers of other pilots who are performing at the acceptable standard. … 10. When you arrived at 36SQN in Jan 99, it was expected that by Nov 2000 that you would be a D Cat ALS Captain, and be competitive for a C Cat ABNOPS Captaincy by the end of [your] tour in Dec 2001. Yet with nearly half of your 36SQN tour over, and in spite of extensive close management and remedial training by senior pilots, you have never consistently demonstrated that you can be anything other than an average C Category ALS copilot. … Conclusion 12. You have provided a rebuttal, which looks at the actions and decisions that I have taken from your perspective and with good reason. The actions and decisions I have taken have been consistent with an approach that recognises the need for: a. natural justice, b. personnel to be given a suitable opportunity to progress, and c. C130H pilots to progress to Category C ABNOPS captain and be professionally capable for battlefield operations within a constrained resource base. 13. While you feel aggrieved at the approach I have taken, I find little opportunity for alternative measures to have been taken. Indeed, there appears to be sufficient evidence of poor performance in early flying activities for administrative action to have been taken at that time. 14. Consequently, my decision to progress administration of an unsuitability report on you will remain extant.' 34 On 26 June 2001, Flt Lt Bromet was notified officially that he had been "posted ex 36 SQN to HWALG" with effect from 13 June 2001. 35 On 26 September 2001 Group Capt Oddie's superior, Group Capt Plenty, responded to Flt Lt Bromet's AROG. Among other things, Group Capt Plenty made the following points: 'Suspension from Flying 11. In my view, whilst the crux of your Redress action is the decision by the Commanding Officer to suspend you from flying at 36 Squadron, the catalyst was the decision by the 36 Squadron Performance Review Board to remove you from the Airborne Operations Course. In your Redress you
indicate that a number of aspects that you considered had contributed to your suspension should have been taken into account by the relevant decision-makers; … Removal from Airborne Operations Course … 13. As you would be aware, the objective of all aircrew operational training is to graduate combat ready aircrew who are able to progress at a suitable rate through the various aircrew categorisation schemes to be able to undertake all combat missions in a highly proficient manner. The training is expensive and extremely limited and as such resources available must be divided amongst all aircrew to ensure overall Squadron training objectives are achieved. 14. I am satisfied after reviewing your Categorisation file that the Review Board made the correct decision to recommend your removal from the course when they did as your performance was not to a consistently high standard to provide them with the confidence that you would continue to progress in the Airborne Operations role and not deteriorate and require further remedial training. … 22. The resources available to the RAAF, particularly in peacetime, will always be constrained. As you are aware, the resources available at 36 Squadron to progress aircrew training are constrained both by the availability of aircraft and the impact of operational tasking. To ensure the minimum necessary training and currency events can be undertaken, the Squadron is allocated Continuation Training flying hours to support the aircrew categorisation scheme. Additionally, aircrew are required to take advantage of every available operational task to enhance their pure flying skills and experience. … 24. … Whilst the more confident and competent performers tend to attract more hours because they can be programmed with all categories of captains, a weaker performer is constrained to flying with senior line captains, whose very limited number and availability restricts the total number of hours available. In your case, I am confident that although the flying hours were somewhat decreased, the training benefit of those hours was increased beyond that experienced by your peers. Additionally, you gained the benefit of the remedial training program that was not available to your peers. 25. The above is indicative of the effort placed on your development by the 36 Squadron Executive. I am satisfied that you have received an appropriate share of the training resources available to the Squadron. …. 28. The Commanding Officer did agree that you had met the minimum standards for a Category C Copilot (Air Logistic Support) as laid out in the remedial training program and that with continued improvement you could be considered for upgrade to Category B Copilot training sometime in mid 2001. He was however concerned about your rate of progress. You had arrived at the Squadron following a tour with time in command on Twin Otter aircraft at RAAF Tindal. The expectation was, as with every pilot from a tour on another aircraft type, that you would graduate from your C130H conversion as a Category C Copilot (Air Logistic Support). You however graduated at Category D Copilot standard. Your overall performance following your C130H conversion was below that of aircrew with similar experience levels. Additionally, as noted earlier your overall performance during your time at the Squadron was below that of aircrew with similar experience levels. Category C Airborne Operations Copilot is the minimum Category required at the completion of a first tour at the Squadron. The command Officer has made comment that he was not confident that you had demonstrated the ability to progress to that level. 29. Whilst your Commanding Officer's decision to suspend you may appear to you as judgemental, it was based on many years of experience. He assessed you as achieving the minimum standard but lacking ability to progress within the constraints of limited flying hours and flying instructor and senior captain availability in competition with your peers and junior aircrew. You have noted that you received two recommendations to proceed to Category B Copilot upgrade training. … Suspension from Flying 37. While your flying supervisors and senior captains have made comments regarding your enthusiastic approach to flying and aviation in general and that you were cheerful and positive, they have indicated that your flying ability was not to the standard required for continued employment at 36 Squadron. Their comments include assessments such as you required constant close supervision by more experienced pilots and constant remedial training as you displayed inconsistent airmanship. Despite your best efforts during remedial training, you were still making major mistakes. One senior captain indicated that when you concentrated on improving your standard in one area of flying, some other skill areas would deteriorate. One of your instructors noted that you had a general "lack of feel" of the aircraft and became reactive rather than proactive. In the post flight report, the instructor noted that you were flying the aircraft to the standard of a Category C Copilot, but you had peaked out at that standard. … 42. In reaching his decision, the Commanding Officer states that he took into account your flying history since your C130H conversion course. Your history of performance as noted in your Categorisation and more recently your performance on Airborne Operations Course and during the remedial training indicated to the Commanding Officer that you were not performing to the required standard to give him the confidence that you could meet the minimum Squadron operational standard before the end of your tour. 43. Following my examination of your categorisation file and the Investigation Officer's report, I support the Commanding Officer's decision to suspend you from flying at 36 Squadron. Given the collective concerns of the senior captains and instructors within the Squadron, and your lack of progress beyond that of an average Category C Copilot (Air Logistic Support), I believe that the Commanding Officer had sufficient [evidence] before him to suspend you at the conclusion of the remedial training program. Context Management Issues 44. The post administration and management of your suspension from flying on 2 November 2000 by the Commanding Officer and his management team caused me concern. In my view it demonstrated that the Squadron was not familiar with the processes and procedures for properly administering someone in your position. It was symptomatic of a Squadron under significant operational pressures and timelines, where the Commanding Officer and his senior executives were absent on frequent occasions with operational tasks and training missions, and with limited experienced administration staff to provide robust advice to the Commanding Officer. The end result was that the Commanding Officer was required to undertake a significant portion of the actual processing of your suspension administration without assistance. In such an unfamiliar field, mistakes occurred. 45. Whilst the aggregate of the poor administration and other incidents that occurred would seem to suggest that you had been unfairly treated, upon investigation I am satisfied that none of the instances of apparent unfairness were deliberate with malice aforethought, rather they seem to have been the products of a degree of unfamiliarity with applicable instructions, perhaps some thoughtlessness, or a reluctance to act expeditiously on the part of individuals faced with a busy operational environment. That does not excuse the delays in processing [your] suspension, but it does put them into perspective. 46. The Commanding Officer is ultimately and solely responsible for the leadership and management of his Squadron, the responsibility for the administrative errors and delays in the end rests with him. I will be taking this aspect up with him separately. … Unsuitability Report not in Accordance with Defence Instructions … 50. I understand your concern at having to sign the document that clearly was not in the construct of an Unsuitability Report as required by the applicable Defence Instruction … I am satisfied following the investigation that the Commanding Officer had not intended the document to be an Unsuitability Report but rather a 'statement of intent' to later submit an Unsuitability Report. His explanation of that intent at the time of issue would have prevented much of the ensuing angst. This incident was the first in a chain of administrative errors that could have been resolved quite early in the processing of your suspension but for the lack of appropriate administrative advice available to the Commanding Officer. 51. Notwithstanding the above administrative error, you contend that the Performance Review should have been treated as an administrative report and as such should have been processed by the Commanding Officer in accordance with [DI(AF) PERS 4-19]. You have also indicated a number of lapses in the administration of the Performance Review. I am satisfied that the Commanding Officer had intended to utilise the Performance Review as an internal Squadron working document leading to the eventual raising of an Unsuitability Report, depending upon your response via your Statement of Rebuttal. As the document was intended to be utilised within the Squadron as a debriefing and counselling tool between the Commanding Officer and you, I do not agree that it should have been handled under the auspices of the Defence Instruction. I concur that the Performance Review should have been marked Staff-in-Confidence; again that occurred through a lack of appropriate administrative advice and backup checks. … Delays in Processing Suspension Administration … 56. … I am concerned that the Commanding Officer did not [respond] to your Rebuttal within a shorter time period. That single act could have prevented the current situation. I do however understand the operational pressures being applied to 36 Squadron over that time period and how that distracted the Commanding Officer from dealing efficiently with your administration. Failure to Follow the Provisions of DI(AF) PERS 4-19 57. … I have already addressed this aspect at some length previously but would add that I do not see your suspension to be incorrect or illegal on the grounds that the post administration processes were not strictly followed. Nor do I see that the Commanding Officer acted without authority in making the decision to suspend. As I have detailed earlier in this report, I am satisfied that he had strong and valid reasons for that course of action. That the full, correct and expeditious post suspension administrative action did not occur or was delayed does not in itself invalidate the reasons for that suspension. … Humiliation, Discrimination and Harassment 60. … 61. I accept that your removal from Airborne Operations Course and later suspension from flying operations could cause you to have a perception of humiliation. I have no doubt that it could also cause you to feel a certain amount of embarrassment or awkwardness, particularly amongst your peers. You argue that the time taken so far to resolve the issue has caused further humiliation. I can understand that you would be concerned about what others might think of you. Nonetheless, I can assure you that neither the Commanding Officer nor any of his Executives have set out to humiliate or cause you embarrassment. … Compassionate Grounds 66. You have indicated in your Rebuttal of Administrative Decision … that the death of your grandfather in May 2000 was not conducive to your preparation for the Airborne Operations Course. I can understand that the passing of your grandfather could impact upon your focus on training. I am advised however that the Commanding Officer was not made aware of the event. I would expect however that such issues would have been managed between you and your Flight Commander in the first instance. I would be most surprised and disappointed if your Flight Commander had not acceded to any request from you for some time off to attend to family business at such a time. There is no evidence before me that this issue was raised with Squadron management so I am unable to comment further. … Request for Additional Psychological and Special Flying Assessments 70. You questioned the need for a second psychological assessment as you had undergone such an assessment as part of your original removal from Airborne Operations Course. You also questioned the need for a special flying assessment by Central Flying School as you state that you had achieved the minimum standards required during your remedial training. 71. The Commanding Officer had directed that you undergo a second assessment as he thought it might reflect on progress made during the Remedial Training Program. Following discussions with the Command Psychologist, he did not pursue the issue. I also understand that after discussions with senior staff at the Central Flying School, he decided that an assessment would serve no purpose and did not pursue the matter any further. Notwithstanding his changed decisions on the matters, I would have expected the Commanding Officer to advise you on those matters. That he did not do so is evidence of a breakdown in administrative monitoring at the Squadron. [emphasis added] … Outcomes 75. I find the following: a. that you have no substantiating evidence to support your suspension from flying being removed; b. that should you so desire, I am able to influence your continued posting to Headquarters Air Lift Group to December 2001 … and c. that I have no reason to have the Commanding Officer 36 Squadron formally recommend that you be returned to flying duties by 31 December 2001. 76. I understand that you will be disappointed with the outcome of my review. Should you wish to discuss [these] issues further with me, please do not hesitate to do so … If you are not satisfied with my decision, you have the right to have your Redress of Grievance referred to the Chief of Air Force. Should you exhaust all Service channels and remain dissatisfied with the outcome, you can submit your complaint to the Defence Force Ombudsman (DFO) …' 36 On receipt of this, the appellant on 27 September 2001 sought: 'a. Written advice supporting my future employment as a C130H/J pilot within 86WG, and additionally, as a pilot within the RAAF. b. Copies of all evidence tendered to the Investigation Officer, which contributed to your decision.' 37 Group Capt Plenty replied on 15 October 2001: '… Summary 9. The unsuitability process is the only vehicle for determining your suitability as a pilot on C130 or other aircraft in the RAAF. The recommendations that are made through that process are the only recommendations that are used in deciding your future flying employment in the RAAF. 10. As detailed in [DI(AF) ADMIN 9-18] the unsuitability process can not proceed until a resolution has been reached with regard to your Application for Redress of Grievance. As noted above, I have been advised that the two processes can not run concurrently. As such, I am unable to provide you any advice (either positive or negative) in response to your request … regarding future employment until: a. your Application for Redress of Grievance has been resolved; and b. the Unsuitability process completed. 11. I accept that you might not want to formally respond to my decision … until you have a copy of the Investigation Officer's Report. As such, I … will advise a revised date once you have been provided with a copy of the Report …' 38 On 20 October 2001, the appellant was told by "CDRALG" that his "flying employability at HQALG would be restricted until his AROG had been finalised". On 2 November 2001 the appellant complained of "tardy procedural and administrative delays" in processing a "questionable suspension i.e. a restriction only from C130H aircraft at 36 SQN". He sought either "immediate resolution or referral to the Chief of Air Force (CAF)". 39 Group Capt Plenty responded on 14 November 2001 confirming his earlier expressed view and indicating that all papers would be referred to the Chief of Air Force. 40 On 17 November 2001 Group Capt Oddie recommenced communication with the appellant: 'SUSPENSION FROM FLYING - ADMINISTRATIVE ACTION CLOSURES
'Introduction
The interpretation of the Defence Instructions 45 In general, I agree with the approach of the learned primary judge who said: '… in The Commonwealth v Welsh (1947) 74 CLR 245 at 268, Dixon J observed: "in considering the meaning and effect of the Air Force Regulations their purpose cannot be neglected, namely to provide rules to govern one of the armed forces of the Crown. The relation to the Crown of members of the armed forces is no new subject; the rules of the common law define it. The regulations are not to be read in disregard of those rules and of the long tradition to which they have contributed." In Marks v The Commonwealth (1964) 111 CLR 549 at 573 Windeyer J commented of this that while the remarks were directed at statutory regulations they were equally applicable to the Act itself. It goes without saying in my view that they apply as of course to Defence Instructions made under s 9A of the Act.'
The suspension decision 46 The learned primary judge assumed that Group Capt Oddie thought he was exercising the power to suspend under Annex D. His Honour said: 'There are, in my view, significant textual and contextual suggestions (relating both to the 2 November 2000 document and to the Unsuitability Report itself) capable of linking what was done to Annex D. Group Captain Oddie did not give evidence.' However, his Honour held: 'To adapt what I said of a similar state of affairs in Anderson v Sullivan (at 400), if it was the case that the Group Captain mistakenly considered that the "head of power" for his Suspension Decision was Annex D, he intended an immediate suspension and it was and is open to him now to rely upon this command power at common law as his source of power. And again I rely analogically on "the general principle that an act purporting to be done under one statutory power may be supported under another": Mercantile Mutual Life Insurance Co Ltd v Australian Securities Commission (1993) 40 FCR 409 at 412. There was nothing in the reasons given for the actual decision, or in the conditions regulating the exercise both of the Annex D power and of the command power respectively, that would make it inappropriate to rely upon the command power to justify the decision. I also reject the applicant's submission as to the code-like quality of DI(AF) PERS 4-19. It clearly does not, and does not purport to, encompass all of the situations in which a member of the RAAF may have a Suspension Decision of some form made in relation to him or her. There are other Defence Instructions, and for that matter statutory provisions: see eg Defence Force Discipline Act 1982 s 98 and s 99; that deal with specific circumstances in which a Suspension Decision may be taken. But even within the particular area of concern of DI(AF) PERS 4-19 it is a most improbable intention to attribute to the [Chief of the Air Force] that, in issuing the instruction, the common law power was to be so curtailed with the consequences that might have for resource allocation, the proper management of the Air Force, and even safety. It must be recalled that under Annex D the suspension could only be ordered where an Unsuitability or Adverse Report is submitted. Having regard (i) to what appears to be the RAAF's current perception of its service specific Defence Instructions, (ii) to the power the CAF possesses to alter and amend Air Force specific Defence Instructions and (iii) to the rule of construction to which I earlier referred; The Commonwealth v Welsh, above at 268; I do not consider that the language of the Instruction necessitates attributing to it the meaning and effect for which the applicant contends. It provides merely a specific express instance in which suspension is permitted. It does not thereby preclude resort to the command power whenever that power may appropriately be exercised to order a suspension from flying duties.' I respectfully agree. 47 His Honour went on to conclude that the suspension decision was valid: 'The decision may well be said to have been precipitate and harsh - though advance warning of the possibility of it was given months earlier at the August 2000 meeting after the applicant had failed the ABNOPS course. It is impossible, though, to say that there were no reasons given for the decision. The 2 November 2000 document notifying the decision, the statement of rebuttal, the Group Captain's response, and all that went with the ROG and Group Captain Plenty's ROG report could leave little doubt as to the grounds and the rational basis of the suspension. The decision was clearly not unlawful and it related to the applicant's service. I am unable to discern any available ground on which it properly can be impugned in judicial review proceedings.' 48 With respect, I think that this involves some oversimplification of the scope of the power to suspend, of issues underlying an appreciation of the limits of that power and of the application of those limits in this case. 49 It is undoubted that the Defence Instructions are to be understood having regard to the nature of the military, that is to say: disciplined, fighting forces raised for national defence. Engagement in active combat or in other dangerous operations plainly cannot be unduly constrained by personnel management considerations, policies and instructions appropriate to less exigent times and circumstances. Even when a unit of the defence forces is not engaged in dangerous situations, there is a necessity for preparedness on short notice for such situations. The urgency of that necessity will vary from time to time. Finally, even in entirely quiet times, the necessity to maintain discipline of a stricter and more effective kind than in virtually all other organisations tells against reading the Defence Instructions as a code on all matters touching personnel administration or as precluding necessary flexibility. 50 That said, the Instructions dealing with personnel management issues were clearly not conceived, prepared or promulgated as mere counsels of perfection, able, without consequences, to be disregarded at a commanding officer's or any other officer's whim. No doubt, careful and fair, which is to say effective, decision-making on such issues is itself a potent factor in the maintenance and advancement of good discipline: As Windeyer J said in Welsh in answer to an argument founded on certain allegedly implicit necessities of military endeavour, "Duty and Discipline do not march well with Discontent". Further, the contemporary military in this country is conceived as a merit-based career service staffed, except in extremis, on a voluntary basis. The Instructions are to be construed bearing these aspects of their context and purposes, as well as the other necessities of military life, in mind. 51 Further, in attempting to judge factual situations as to whether potential discretions have been enlivened or, if enlivened, have miscarried, it seems right that, at least (as here) absent any serious suggestion of bad faith, some considerable degree of caution should be exercised by a court before interfering. In modern times it is unusual for judges to have had any significant military experience or even to be steeped in military history and lore. They should therefore tread carefully. 52 Thus, reading DI(AF) PERS 4-19 as a whole, a commanding officer's discretion to suspend an Air Force member is ordinarily only enlivened when that member is, in some way or another, either irretrievably (with reasonable use of resources) below minimum acceptable standard (c.f. Annex D) or there is some urgent problem involving the maintenance of an officer in his or her present position. 53 In a particular case, outside the scope of Annex D as to "aircrew" members of the Air Force (and of like situations as to RAAF members who are not involved in actually flying aircraft), considerations of efficient resource management could conceivably constitute such an urgent problem. If, for example, a unit had been placed on a degree of alertness for action which might quickly materialise; the commanding officer regarded a subordinate as unsuitable in the ways envisaged by Annex B (or otherwise in relation to shorter-term problems); the perceived unsuitability of the member was actually or imminently jeopardising utilisation of unit resources to a level of efficiency necessary in the circumstances, and the temporary removal of the member would rectify or avert that threatened inefficiency, it would be right to acknowledge in the commanding officer a power to act by suspension. 54 There is, however, another aspect to the question of suspension. Granting that the general power of command can authorise a commanding officer to suspend an Air Force member in particular circumstances not envisaged by the Defence Instructions and that such power will generally be exercised in circumstances of perceived short or long term unsuitability of the member for his/her posting, specialisation etc., a deal of somewhat arbitrary power is thereby reposed in the commanding officer. The established application for redress of grievance (AROG) procedures, if no other procedure, are designed to prevent injustice in that and other respects. Unless particular, temporary circumstances quite inescapably demand it, it is manifestly not the intention of the Defence Instructions, nor is any intention otherwise to be imputed to the Parliament, that commanding officers are to have absolute and unchallengeable authority over those under their command. Thus, most unsuitability decisions by commanding officers are, if challenged, liable to be set aside under the AROG process. In consequence, at least until the AROG process has confirmed the commanding officer's decision, there is no need for a suspension to be permanent for it to have its intended, curative effect. 55 That consideration supports the conclusion that, in a case such as the present, the power in a commanding officer to suspend should be limited to suspending only for so long as is reasonably necessary for a final conclusion to be reached as to what should be the final action in relation to the subject officer(in such a case, that would be: by the DPO). That time may include reasonable time for resolution of any AROG process initiated by that officer, assuming that the AROG process does not avail the complainant, or it may conclude with a decision favourable to the subject officer through the AROG process. 56 A power to suspend derived from the power of command (or otherwise) should, in short, not simply be assumed to be a power to suspend permanently. Nor should a temporary suspension be assumed to have the same consequences as a permanent or final suspension. Far less is there any warrant in military necessity or in the Defence Instructions for any Air Force member to be left in a sort of no-man's land, during leisurely and lengthy process delays, nor for suspensions to be effected in situations other than those that are unusual or urgent, in the sense discussed above. There is a balance to be drawn between the exigencies of effective command and officers' career rights, privileges and opportunities (which, in modern times, are also important factors to be taken into account for effective command). 57 Applying these considerations to the facts at hand, the commanding officer, Group Capt Oddie, appears to have carefully come to the conclusion that, to put it in a way that echoes the language of ANNEX B to DI(AF) PERS 4-19, the appellant did not have the abilities that both he and his supervisors had hoped and believed he would have for training within a reasonable period of time, through to the very high level of operational flying skills ultimately desired of Hercules pilots. Group Capt Oddie also appears to have reasonably considered that the time and resources that would need to be spent on the appellant in 36 Squadron could and should be better spent in other ways, and that there was no room to carry a marginal or slow performer. 58 On the other hand, there is nothing to indicate that fairly prompt consideration to finality of Flt Lt Bromet's position could not occur, whatever might be assumed about his initiation of an AROG process and the outcome of any such initiation. Flt Lt Bromet was, if barely, capable enough in the performance of the actual duties of his achieved, substantive post. Suspension would be likely to humiliate him. The commanding officer's own superiors might disagree with him, in which case the appellant would have been humiliated for nothing. 59 Even allowing a duly wide margin of appreciation for the opinions of the senior officers involved, it is not shown that this was a case of pressing urgency in relation to Flt Lt Bromet's deficiencies nor are of pressing prejudice to efficient operations of 36 Squadron. If, in fact, no positive advantage would actually, as distinct from potentially, flow from a suspension pending the DPO's decision, there would be no point to, and therefore no justification for, the suspension. It is not shown, for example, how or how quickly Flt Lt Bromet's seat in the cockpit might have been filled; how quickly a new trainee might have been inducted into 36 Squadron to replace him, nor how quickly and between how many persons already in the squadron, Flt Lt Bromet's flying time might have been divided. 60 Thus, I conclude that there was no actual necessity for the suspension decision and it was invalid. At the very least, if validly taken initially, its warrant ceased after 3 months, more then a reasonable time for a due administrative conclusion. 61 What the court can and should usefully do to give effect to that view is considered below.
The unsuitability report decision 62 The primary judge said: 'For my own part I am satisfied that non-compliance with the psychologist's report requirement of Annex B did not of itself doom Group Captain Meyn's decision to invalidity. … It is important, as Project Blue Sky indicates, to consider the purpose of Annex B not only in the light of the particular Instruction in question, but also in light of the legislative framework of which it is part. That the Instruction was made in the exercise of a power relating to administration rather than of command does not of itself tell against a finding of invalidity. But it does invite attention to the administrative setting in which this particular Instruction finds its place. It is a setting in which there is a statutorily mandated Redress of Grievance procedure such that any decisions adverse to Flight Lieutenant Bromet under the Instruction could be referred by him to the Chief of Air Staff. The system so established, including the creation of the CRA, was to enable the correction of wrong or unfair decisions: see DI(G) PERS 34-1 cl 1. The Instruction of present concern was related, unquestionably, to an important area of decision-making. It could involve in a real sense decisions about a person's employment, career and livelihood. It is, for this reason, understandable that the individual Annexes to the Instruction should prescribe information to be contained in, or to accompany, Reports envisaged by those Annexes. This is an area in which it properly can be said that "the inclusion of procedural mandates … may be appropriate or desirable": DI(AF) ADMIN 6-1, cl 16. I am satisfied that the purpose of those "procedural mandates" (or requirements) was to facilitate effective decision-making so assisting in achieving fair and correct decisions: cf DI(G) PERS 34-1, above. However this purpose did not go so far as to erect prerequisites for that decision-making.
Notwithstanding the significance of the decisions that can be made under the Instruction, I do not consider that a departure from a requirement of the Instruction relating to the content of, or annexures to, a report necessarily required that any decision made on such a report must be invalidated. The reason for the Annex's requirement of a psychologist's report is nowhere fully explained in the Instruction. One can infer from cl 12 of the Instruction set out earlier that such a report's objects were (a) to provide advice on whether psychological factors contributed to making a member unsuitable for his or her mustering and (b) to provide an assessment of the member's suitability for alternative employment in light of those factors (if any). One can likewise infer that such information was considered sufficiently important in the decision making process as to justify the imposition of a requirement that it be made available for the benefit and assistance of the decision-maker in making a correct and fair decision. It can, in other words, properly be said that the Instruction identified a relevant consideration for the decision-maker to take into account. The Annex B requirement provided the means for facilitating this. It did not provide a condition precedent to the exercise of the power to make a determination on a member's suitability for his or her mustering. Rather it was a procedural provision in the processes antecedent to an exercise of the power which was designed to ensure that material of a particular character was brought to the attention of the decision-maker and hence regard would be had to it. It was a "procedural requirement serving … administrative purposes". I do not consider that non-compliance with it as such affected the validity of the power to make a determination on the Unsuitability Report … This said, such a determination might still be open to challenge if the decision-maker failed to have regard to information possessing the character the requirement was designed to bring to the decision-maker's attention. In the present case I am satisfied that the combined effect of having regard to Dr Ryder's 14 August 2000 report and Group Captain Meyn's direction that a report from Dr Ryder be obtained as part of the process of giving consideration to Flight Lieutenant Bromet's "ongoing viability as a productive Air Force Pilot", were sufficient in the circumstances to ensure that the underlying purpose of the requirement was in fact satisfied. … My conclusion, then, is that the failure to annex the required psychologist's report to the Unsuitability Report did not invalidate Group Captain Meyn's decision, nor did it rob the Unsuitability Report itself of its character. If Flight Lieutenant Bromet wished to contest the decision the ROG procedure was open to him. I should add, if I am incorrect in my conclusion, and that the Group Captain Meyn's decision was invalid, this would only affect the validity of that decision. Group Captain Oddie's report would remain unaffected although it would require a psychologist's report to be attached to it before it could be transmitted to Air Force Office for a determination on it.' 63 I respectfully agree with much of this. However, the objects of requiring a psychological report in my view include aspects that his Honour did not expressly address and appears not to have conceded. It is plain that the Air Force sees much of potential value in a psychological assessment being at hand. The consequences of being found "unsuitable" for an officer may be close to catastrophic: as here, the end of a career both cherished and of considerable economic value might be involved. It would be poor administration to being that about, and to waste much of the resources already put into training an officer, if the perceived unsuitability were accounted for by some temporary or tolerably easily remediable psychological problem. Thus, the question of contributory psychological factors could well go to a fair and effective assessment of suitability itself. It should not be thought that, the Air Force valuing psychological advice, it would not value it for such a purpose also. 64 That is a strong consideration pointing to a conclusion that at least the lawfulness, if not necessarily the validity, of the decision to uphold a suitability report, is conditional on a purpose-prepared report being furnished with the commanding officer's assessment as to unsuitability. 65 The Instruction contemplates that the final disposition in relation to an officer is to be made by the Director of Personnel, Officers (DPO). The latter is likely to have expertise in personnel administration but not necessarily (and, perhaps, unlikely) to have it in relation to assessment of related technical matters such as an officer's levels of skills achieved and capacities apparent in relation to particular aspects of flying particular kinds of aircraft. A psychologist, however, may well bring the ability to test or arrange specialised testing of various relevant capacities, aptitudes and personality traits of a subject officer and, with the benefit of specialised professional training unlikely to have been as fully available to a military/technical commanding officer, to elicit and to interpret information from that officer as to emotional problems of a temporary or remediable kind which may explain observed underperformance or misperformance. The psychologist may therefore have much to contribute to the commanding officer's range of information before the commanding officer makes a final assessment and recommendation as to the subject officer's unsuitability, as well as material to contribute to aid the DPO's decision on what to do with that officer, assuming the validity of the commanding officer's assessment of suitability for the post or field in question. No doubt the DPO might well, in relation to that relocation function, look to the psychologist's report that Annex B contemplates will come with the Unsuitability Report. That, however, does not deny the potential value of specialised, psychological insights for the commanding officer. Given that potential and the other considerations I have referred to, in my opinion the better view is that the attachment of a purpose-obtained psychological report was intended to be a legally necessary component of the unsuitability Report process. 66 Thus the scheme of the Instructions seems to be that: · the psychologist's report is to be considered by the commanding officer before finally making his/her assessment of unsuitability; · it is the AROG process that can check the correctness of the commanding officer's purely military/technical assessments, and · the DPO could but would not normally, if the commanding officer has accorded the subject officer such due process, delve into the merits of the commanding officer's assessment but accept it, with or without any modification of it produced by the AROG process, and concentrate on the question of what should then be done with the subject officer. 67 The consequence, conformably with Project Blue Sky considerations, is that, absent urgent or special circumstance apt to enliven the command power's ability to override, to the minimum extent necessary, the Instructions, they should be held to necessitate the unlawfulness of an Unsuitability Report not accompanied by the indicated psychological report. It is going a long way however to say that where, as here, the commanding officer had, in substance, consulted a psychologist about the subject officer's suitability and that officer had not wished to be the subject of a second psychological report, actual invalidity of the decision should be regarded as the necessary intention of the framers of the Defence Instructions. 68 As senior counsel for the respondents properly reminded us, unlawfulness may be remedied even though it does not cause invalidity: in Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355, four of the justices of the High Court said: '… the best interpretation of s 160 is that, while it imposes a legal duty on the ABA, an act done in breach of its provisions is not invalid. In a case like the present, however, the difference between holding an act done in breach of s 160 is invalid and holding it is valid is likely to be of significance only in respect of actions already carried out by, or done in reliance on the conduct of, the ABA. Although an act done in contravention of s 160 is not invalid, it is a breach of the Act and therefore unlawful. Failure to comply with a directory provision "may in particular cases be punishable". That being so, a person with sufficient interest is entitled to sue for a declaration that the ABA has acted in breach of the Act and, in an appropriate case, obtain an injunction restraining that body from taking any further action based on its unlawful action.' 69 In the events which have occurred here, including that: · Group Capt Oddie, as the commanding officer, has formed and repeatedly expressed a strong view as to the appellant's unsuitability; · an AROG process has upheld this view; · much time has passed; and · a psychological report is to hand as to possible future avenues within the RAAF for the appellant to continue flying, it smacks of unreality to think that the legal errors made can be effectively undone. Questions as to the court's discretion to withhold relief might accordingly arise. 70 It may be that it would suffice to: (a) declare that the appellant was not lawfully suspended; (b) restrain each of the respondents (and persons subject to their commands) from wholly or partly basing any administrative or command action on any assumption that the appellant was so suspended; (c) declare that the appellant was not lawfully the subject of an Unsuitability Report;
(d) declare that notwithstanding (c), the decision of Group Capt Meyn of 20 March 2002 has effect from the date when Dr Ryder's second report (prepared after the hearing at first instance) became available. 71 The appellant appears to have exhibited a reasonably constructive and realistic approach to what he might now do in the Air Force. However, there may be practical implications of the above that I do not foresee.
Costs 72 The learned primary judge declined to make any costs order. As my approach to the merits of the case differs, materially and in the appellant's favour, from that taken by the primary judge, it follows that the costs appeal should be dismissed. In deference to the argument, I would add that, in my view, the approach taken by his Honour was well open to him and exhibits no error of principle. Indeed, in the circumstances in which his Honour was proceeding, I agree with the approach he took and the reasons he gave. Until a very late stage, one or more of the respondents dealt with the appellant in various, often contradictory ways, that were regrettable. I do not doubt that there has been a public benefit in clarifying the approach to be expected by officers as to how the relevant Defence Insructions are to be interpreted and applied. 73 The appeal on this matter should be dismissed with costs.
Disposition 74 In these circumstances the parties should bring in draft orders to give effect to the foregoing conclusions. 75 The respondents should pay the appellant's costs at first instance and on appeal. I certify that the preceding seventy-four (74) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Madgwick.
AUSTRALIAN CAPITAL TERRITORY DISTRICT REGISTRY A 48 of 2002
ON APPEAL FROM A JUDGE OF THE FEDERAL COURT OF AUSTRALIA
BETWEEN: FLIGHT LIEUTENANT MARCUS ROBERT DAVID BROMET
GROUP CAPTAIN I J MEYN in his capacity as Director of Personnel Officers - Air Force
AUSTRALIAN CAPITAL TERRITORY DISTRICT REGISTRY A 3 of 2003
ON APPEAL FROM A JUDGE OF THE FEDERAL COURT OF AUSTRALIA
GROUP CAPTAIN I J MEYN in his capacity as Director of Personnel Officers - Air Force
AND: FLIGHT LIEUTENANT MARCUS ROBERT DAVID BROMET
INTRODUCTION 76 I have had the opportunity of reading the reasons prepared by Madgwick J. As the facts of the case and relevant documents appear from his Honour's reasons and from those given by Finn J at first instance, it is not necessary that I deal with those matters in detail. I am in substantial agreement with the conclusions reached by Finn J as to the substantive issues and with his Honour's reasons. 77 Notice of appeal No A 48 of 2002 identifies four respondents, implying that they were all parties to one application at first instance. However Finn J heard two applications, identified as No A 3 of 2002 and No A 16 of 2002. Application No A 3 of 2002 was between the appellant and the first, second and third respondents. It concerned a decision of the first respondent to suspend the appellant from flying duties and an Unsuitability Report raised by him concerning the appellant. It also concerned certain proceedings for redress of grievance commenced by the appellant. Application No A 16 of 2002 was between the appellant and the fourth respondent. It concerned the fourth respondent's decision to uphold the Unsuitability Report. The appellant has appealed from the decisions on both applications. That appeal is No A 48 of 2002. The respondents to that appeal obtained leave to appeal against the costs orders made by Finn J. That appeal is No A 3 of 2003. It has, in effect, proceeded as a cross-appeal. Other than when discussing the cross-appeal, I will refer to the appellant in appeal No A 48 of 2002 as the "appellant" and to the first respondent as the "Squadron commander". The fourth respondent in appeal No A 48 of 2002 was the respondent in application No A 16 of 2002 and will be referred to as the "DPO".
The appellant's service 78 In January 1999 the appellant was posted to 36 Squadron (the "Squadron") which was then equipped with C130 Hercules aircraft. Although he had flying experience on other fixed wing aircraft, he had no experience with the Hercules. The Squadron apparently had both operational and training responsibilities. By "operational responsibilities" I mean the performance of flying tasks using Hercules aircraft and personnel posted to the Squadron. By "training responsibilities", I mean the conduct of formal training courses for Squadron personnel, particularly pilots, in connection with operation of the Hercules aircraft. It is important to keep in mind that the two functions are different, but related. The distinction is important because it highlights the fact that the appellant was not posted to the Squadron simply to perform operational tasks, using skills which he already possessed. Indeed, as I have said, he had not previously flown Hercules aircraft. His posting was also for further training, specifically in connection with such aircraft, as part of his long-term career development. The two aspects of the Squadron's activities are inter-related because the performance of operational duties serves a training function. Flying hours spent performing operational duties will re-inforce formal training and foster the development of flying skills. These perceptions are, in my view, clearly implicit in much of what was said by the Squadron commander who commanded the Squadron at all relevant times. There was at least a suggestion in the appellant's submissions that he had met the minimal standards required in order to fulfil the duties associated with his posting by being able to perform the role of co-pilot in some operational activities. Clearly, the Squadron commander expected more. 79 The Squadron conducted the "C130H Hercules Aircraft Conversion" course (the "Conversion course") and the "C130H Airborne Operations" course (the "Airborne Ops course"). After joining the Squadron, the appellant completed the Conversion course and in May 2000, he commenced the Airborne Ops course. He did not successfully complete that course. As a result, on 4 August 2000, the Squadron commander interviewed him. A record of the interview is at AB 22-23. The Squadron commander proposed remedial action, one element of which was an interview with a psychologist. It was said that: "The purpose of the interview is 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." Such a report was later obtained. It is at AB 312-314. 80 At the end of the interview the Squadron commander said (in pars 5 and 6): "As remedial action progresses you will be monitored. Failure to achieve satisfactory results on any one segment of this process … will mean that further training will be suspended. On 1 Nov 00, having completed the remedial training and supervision, I will review your achievements. 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."
Relevant background 81 At a much later stage, the Squadron commander prepared an Unsuitability Report dated 4 December 2001. Paragraphs 1 and 2 explain the Squadron commander's expectations of his pilots, including the appellant. That explanation provides the context in which the interview of 4 August 2000 occurred. Those paragraphs are as follows: "1. C130 aircrew are categorised from a basic Air Logistic Support (ALS) standard when initially employed through to the required combat airlift categorisation of Airborne Operations (ABNOPS) on completion of required training. C130H copilots are required to progress to C130H Cat B ALS copilot (local area captain) and C130H Cat C ABNOPS copilot in their first tour. Further, those pilots who are selected for Captaincy must achieve C Category ABNOPS Captain, which is the minimum standard for a pilot at 36SQN in their first tour as a Captain. 2. FLTLT Bromet graduated from 171 Pilot Course 2 May 97. Following a posting on 6 May 97 to fly Twin Otters at 322ABW he was posted to undertake C130H conversion at 36SQN in Jan 99. In line with all pilots with experience beyond the completion of RAAF Pilot Course, FLTLT Bromet was expected to graduate to Category C ALS standard on completion of C130H Pilot Conversion." 82 Two footnotes further explain these statements: "1. ALS provides a capability to operate the aircraft in support of operations, but with little recognition of threat, military airspace or other tactical considerations. The expectation is that operations are generally predictable. 2. ABNOPS provides a capability to provide a range of insertion and support capabilities by day or night in a chaotic battlefield environment. Aircrew are required to deliver personnel and cargo by parachute and utilising night vision goggles." It seems that the appellant, upon completion of the Conversion course, had achieved Category C ALS co-pilot. During his current tour with the Squadron it was expected that he would go on to achieve Cat B ALS co-pilot (local area captain). It was also expected that he would progress to Category C ABNOPS co-pilot. In other words he would acquire the skills necessary to operate as a co-pilot in a "chaotic battlefield environment". Pilots selected to be Captains were expected to achieve Category C ABNOPS Captain in their first tour as a Captain. I take that to mean that such achievement was not expected of an officer during his/her first tour with the Squadron. 83 Paragraph 5 of the later Unsuitability Report is also of interest at this stage: "The main operational capability that 36 SQN is required to produce under 86WG Preparedness Directives is ABNOPS. Resource and management requirements dictate that the best method to achieve directed capability is for all personnel to be trained to that standard. The objective of Airborne Operations Course is to graduate combat ready aircrew who are able to undertake combat missions in a highly proficient manner. Limited resources and the requirement for capable graduates who can deal with real battlefield conditions means student achievement must be substantial and indicate capacity for further growth(emphasis added). FLTLT Bromet failed three sorties that included the day and night check rides during Airborne Operations Course. Further, advice I received from ABNOPS Instructors indicated that his capacity to work within a crew context was increasingly evident as unsatisfactory. The Performance Review Board (PRB) that convened following these failures assessed that FLTLT Bromet was "unable to achieve the required standard for a copilot in the Airborne Operations Role". The PRB further concluded "that further remedial Airborne Operations training in this particular situation with FLTLT Bromet would not significantly alter the outcome". I reviewed the PRB findings and found that in my opinion FLTLT Bromet was not performing to an acceptable copilot standard in ABNOPS skills." 84 It was against the background set out in the first part of this paragraph that the Squadron commander developed the remedial programme to which I have referred and delivered the ultimatum in August 2000. I have included the second part, concerning the appellant's performance, because it will be relevant at a later stage and must be read in the context of the observations which preceded it.
Performance review 85 The Squadron commander performed a performance review dated 2 November 2000. Relevantly, it provided (at AB 25): "1. … a. You have generally achieved the minimum standard in all segments of the remedial training required of you, showing slight improvement in some cases. b. With continued improvement you would be considered suitable for Category B upgrade training towards the middle of next year. 2. Taking into account the level of resources committed to you during the remedial period, and the limited resources available to assist your future progression, I am not confident that you have the ability to progress to the Category B induction standard within the immediate term. Further, I assess that you are unlikely to progress to Category C ABNOPS copilot, the lowest operationally declarable copilot skill at 36 Squadron, in the time remaining in your tour and within the resources available. The evidence of your flying achievements, subsequent to a previous command tour flying Twin Otters, is that your performance is considerably less than that of your peers, with whom you must compete for resources to reach these objectives. 3. I believe that your flying ability meets the minimum standard for your current category, but your demonstrated low rate of progression does not give you a reliable prospect of future achievement. I am therefore suspending you from flying duties at 36 Squadron immediately and am recommending to DPO that you be considered unsuitable for employment as a pilot on C130H at 36 Squadron." 86 In other words, the Squadron commander considered that the appellant was unlikely to achieve Category B ALS co-pilot or Category C ABNOPS co-pilot during his tour with the Squadron. These were the levels of performance expected of an officer in the appellant's posting. 87 Following this performance review, the course of events was, to some extent, disrupted by the appellant's attempts to have the Squadron commander's decisions overturned. As will emerge, the Squadron commander ought to have submitted an Unsuitability Report. This was delayed until 4 December 2001. It is, at this point in my reasons, appropriate to deal with certain other matters.
Relevant organizational matters 88 The DPO is apparently responsible for posting officers throughout the Air Force. The Unsuitability Report to which I have referred was sent to him for consideration and decision as to the appellant's future employment. See AB 238-249. I should say something about the respective positions of the DPO and the Squadron commander. In order to do so it will be necessary to say something about the structure of the Air Force. 89 Pursuant to s 8 of the Defence Act 1903 (Cth) (the "Defence Act"), the Minister has overall control of the Defence Force. Pursuant to s 9 of the Defence Act the Chief of the Defence Force (the "CDF") commands the whole of the Defence Force. Each of the three "arms" (Navy, Army and Air Force) is commanded by a "service chief" "under" the CDF. Pursuant to s 9A, the Secretary of the Department of Defence (the "Secretary") and the CDF have joint responsibility for the administration of the Defence Force, subject only to those matters which fall within the command functions of the CDF or of the service chiefs. The Secretary and the CDF may authorize the service chiefs to administer their respective arms. Presumably there is a further implied power of delegation in respect of both the command function and the administration function. Subsection 9A(2) provides that instructions issued by the Secretary and the CDF "… in pursuance of the powers vested in them jointly by virtue of subsection (1) …" are called "Defence Instructions (General)". Instructions issued by the service chiefs are called "Defence Instructions (Navy)", "Defence Instructions (Army)" or "Defence Instructions (Air Force)" as appropriate. Such instructions are invalid to the extent that they are inconsistent with "Defence Instructions (General)". 90 The power to issue Defence Instructions at both levels seems to be in connection with the administrative function conferred by s 9A and not the command function conferred by s 9. In other words, the Secretary and the CDF cannot jointly fetter the powers of command vested in the CDF and the service chiefs. One suspects that this is an area in which subtle overlaps will occur. Fairly clearly, many command functions will involve, and rely upon administrative efficiency and responsiveness. Some matters which might fairly be described as "administrative" will be closely tied to the exercise of command and involve "command decisions" for which the CDF or a service chief is responsible to the exclusion of the Secretary. 91 At first instance Finn J set out the following extract from Defence Instructions (Air Force) ( "DI (AF)"): "Defence Instructions (Air Force). DI(AF) are prescribed by the Defence Act 1903 (Cwlth) and are issued to communicate CAS Instructions for the command of the RAAF. DI(AF) may include mandates, prohibitions, guidance or information. Whereas orders or directives are specific to an event, situation, appointment or person, DI(AF) have wider applicability. They may be expressed as doctrinal, policy, strategic, operational, administrative, implementation or procedural statements. They make subordinate commanders responsible and accountable, and provide the parameters for decisions and actions required to comply with the instructions. Instructions should be focussed on desired outcomes, rather than on procedures or methods used to achieve those outcomes. In some circumstances however, the inclusion of procedural mandates or guidance may be appropriate or desirable. Procedural information should be contained in an Annex or in a separate publication such as an AAP as appropriate." 92 His Honour observed that this description of the function of DI (AF) appeared to be inconsistent with subs 29(1) of the Defence Force Discipline Act 1982 (Cth) which provides that: "A person, being a defence member or a defence civilian, who does not comply with a lawful general order that is applicable to him is guilty of an offence for which the maximum punishment is imprisonment for 12 months." 93 In subs 3(1) the term "general order" is defined to include Defence Instructions (General) and Defence Instructions of each arm. 94 Whether or not a service member has failed to comply with a Defence Instruction applicable to him or her may depend upon the way in which the instruction is framed. If it is framed as a statement of doctrine or policy, or as guidance or information, it may be incapable of application so as to prescribe or proscribe particular conduct, particularly if it deals with outcomes rather than methods. In some cases, members may only be obliged to take into account such an instruction. Further, for reasons previously given, a Defence Instruction may not apply to action taken pursuant to the command function, whether by the CDF, a service chief or a person exercising delegated command authority. In the course of argument counsel for the appellant suggested that the Squadron commander may have committed an offence by not complying with one or other Defence Instructions. I doubt the correctness of that assertion. 95 Notwithstanding the apparent distinction between the command and administrative functions, and the apparent requirement that Defence Instructions relate to the latter, DI (AF) ADMIN 1-1 addresses the exercise of command. However it is descriptive, not prescriptive. The following paragraphs are of particular relevance for present purposes: "4. Command is the lawful authority granted to a member of the RAAF to issue orders to a subordinate in the execution of his delegated duty. Such authority is given to enable the member to discharge his responsibilities. Authority and responsibility should be matched. Authority should not exceed nor should it be less than that needed to enable the member to fulfil his assigned responsibilities. Coincident with the exercise of this command authority is the responsibility of the commander for the consequences of whatever action he/she requires to discharge an order. 5. Command includes the authority and responsibility for effectively using available resources and for training, organising, directing, coordinating, controlling and planning the employment of military forces for the accomplishment of assigned missions or tasks in accordance with stated policies, directives and/or programs. In addition, command also includes responsibility for the health, welfare, morale and discipline of assigned personnel. 6. Authority in the context of command is derived from appointment and rank. Authority due to appointment is specific in nature and is related to the responsibilities of a particular post. Authority due to rank is conferred through the assignment of a rank to each member of the RAAF. A particular rank is accorded to each RAAF post based on the rank structure of the particular organisational entity and the level of responsibility inherent in a particular post. The customs and traditions that apply to appointment and rank are in accordance with the customs of the Service." 96 It is not disputed that the Squadron commander commanded the Squadron at all relevant times. It is reasonable to infer that his duties reflected these propositions. Clearly, his own understanding of his role was consistent with them. 97 I have previously referred to the DPO. It is appropriate to say something about the role of that officer. It appears, at least in part, from DI (AF) PERS 3-1 which relates to personnel matters. Paragraphs 4, 5, 7 and 8 provide: "4. Posting. Every member of the Air Force is posted to the strength of an Air Force unit, known as the 'parent unit'. In some circumstances, this posting may be for administrative purposes only, with duty otherwise detailed. A member who is attached from one unit to another remains on the posted strength of the parent unit. 5. Attachment. A member may be transferred temporarily from one post to another or from one unit to another by an attachment. An attachment temporarily varies the usual chain of command for the attached member and records the duty performed for administrative purposes; for example, attendance on a military training course or when serving detention. … 7. Director of Personnel Officers (Air Force) (DPO(AF))/DPA may authorise the posting or attachment of a member for any period. … 8. A posting or attachment instruction will specify either the appointment or the duty for which an officer is posted or attached. An officer is not to be employed for periods in excess of three calendar months in an appointment or on a primary duty other than as specified in the posting or attachment instruction, without the authority of DPO(AF)." 98 The reference in par 7 to "DPA" is relevant only to the posting of members other than officers. 99 I infer from all of this that the Squadron commander was responsible for the direction, supervision and training of officers posted to the Squadron. However posting of officers and presumably, subsequent re-posting, was the function of the DPO. Paragraph 8 of DI (AF) PERS 3-1 contemplates that the nature of the duties to be undertaken by an officer in a particular posting or attachment will be readily identifiable. An officer is not to be otherwise employed for more than three months. There is little direct evidence as to the title of the appellant's posting within the Squadron or as to the specific duties associated with it. However it seems to have been understood that he had been posted there to undergo training in operating Hercules aircraft. The successful completion of the Conversion course was presumably a condition precedent to any operational activity. Successful completion of the Airborne Ops course was an essential element of his achieving the other goals expected of him during his tour with the Squadron. It is reasonable to infer that the Air Force would not wish to continue his training if it was apparent that he lacked qualities necessary for success in completing and utilising it. This consideration may be of some significance in identifying the skills and qualities necessary for the successful performance of the duties associated with the appellant's posting. Another question which arises is the extent to which the Squadron commander was obliged or entitled to make resources available to the appellant for training, once it became clear that it was unlikely that he could successfully complete it.
Unsuitability report 100 At the time of the suspension the Squadron commander intended to recommend to the DPO that the appellant be deemed unsuitable for employment as a pilot on Hercules aircraft with the Squadron. He also indicated that he was "… seeking advice on your employment pending a final decision on your suitability …". The appellant was invited to reply if he so wished and he did so. Correspondence was exchanged and on 14 February 2001 the appellant sought redress of grievance. This is a long-established procedure in the services. It is now regulated by various Defence Instructions (General). In the present proceedings the appellant originally sought relief in connection with the way in which his request for redress was dealt with by the Air Force. That matter is addressed in the notice of appeal but was not pressed in argument. The redress proceedings are now only relevant in that they apparently became the focus of dealings between the Air Force and the appellant from early February until 4 December 2001, on which date the Squadron commander raised the Unsuitability Report to which I have previously referred. The report concludes as follows: 21. Since his arrival at 36SQN, FLTLT Bromet's performance level as a C130H copilot has rarely risen above marginally acceptable. Any improvements have been incremental and resulted from intensive periods of training and supervision by my most senior pilots. Once this intensive training has ended, FLTLT Bromet's performance has generally fallen back to a marginally unacceptable level. 22. FLTLT Bromet has been unable to respond to the encouragement and guidance of a range of senior and very capable mentors, instructors and supervisors. Despite his assertions in his rebuttal, FLTLT Bromet has been given significant resources. His failure to progress beyond being an average C Category ALS copilot leads me to conclude that a C130 captaincy, in either ALS or ABNOPS, is unlikely to be achievable within available resources. 23. Given the current resources available to me, I cannot dedicate additional flying hours to marginal performers. To do so would compromise 36SQNs capability to meet its obligations to the ADF. In previous years there was sufficient excess capacity within the system to absorb under-performing pilots, but in the current and foreseeable operational environment that option does not exist. I must therefore dedicate scarce resources to those pilots who can reach C Category ABNOPS Captain, which is the minimum standard for a pilot at 36SQN if directed capabilities are to be met. 24. Future employment. FLTLT Bromet has demonstrated qualities that indicate that he has significant difficulties working within a crew environment. Further, he has demonstrated qualities that indicate a substantial inability to interface with the dynamic and chaotic challenge of the tactical environment. On the basis of this demonstrated performance I consider he is unsuitable for employment in multi-crew tactical transport including C130H/J or Caribou. Given personal willingness to change, significant training and the opportunity for employment in a steady, predictable environment supported by personnel with substantive Captaincy skills, I suspect that FLTLT Bromet could progress to become marginally suitable for employment in other aviation environments. However, I remain deeply concerned by his poor CRM skills and his apparent incapacity to recognise his personal challenges. The potential for FLTLT Bromet to mislead an inexperienced crewmember remains significant. 25. Recommendations. I recommend the following: a. FLTLT Bromet be identified as unsuitable for employment in fixed wing tactical air transport. b. Consideration be given to FLTLT Bromet's ongoing viability as a productive Air Force pilot. 101 It is the appellant's case that the Unsuitability Report was raised pursuant to DI (AF) PERS 4-19. That instruction is headed "Management of Unacceptable and Unsuitable Behaviour", perhaps an unfortunate title in the present circumstances. The instruction prescribes various procedures for dealing with such behaviour. Paragraph 5 deals with Unsuitability Reports as follows: To be the subject of an unsuitability report does not reflect discredit on the member concerned, as the problem is identified to be outside the member's control. When the CO is convinced that a member is unsuited to a mustering/specialisation, rank or posting, an Unsuitability Report is to be raised in accordance with Annex B. Unsuitability due to a medical condition must not be processed as an Unsuitability Report, but is to be actioned through reporting within the medical system. In addition to the general type of Unsuitability Report (ie Mustering/Specialisation, Rank or Posting), the following are particular Unsuitability Reports that may be considered more appropriate: a. Incompatible With Service Life (Annex C). … b. Qualified Aircrew Assessed as Below Minimum Acceptable Standard (Annex D). An Unsuitability Report is to be raised when a qualified aircrew member is below the minimum acceptable standard in the performance of their aircrew duties. 102 We were told in the course of argument that the term "mustering" describes the categories of duties to which enlisted men and women are assigned. The term "specialisation" describes particular functions of officers. The terms "rank" and "posting" are clear enough. 103 There is a degree of ambiguity in par 5 as it applies to air crew members such as the appellant. It seems that either the general form (Annex B) or the form specific to qualified aircrew (Annex D) may have been arguably appropriate for present purposes. Annex B relates to unsuitability for mustering, specialisation, rank or posting. It seems to be accepted that the Squadron commander's concern about the appellant's performance raised a question as to suitability for his specialisation. Given that he was posted to the Squadron to undergo training, the view that he could not successfully complete it with the resources available to the Squadron went also to his suitability for the posting. However Annex D appears to be prima facie more appropriate. It relates specifically to qualified air crew and to performance of their duties as air crew. The prescription as to the content of an Annex D Unsuitability Report reflects this focus. Much of what the Squadron commander said in the Unsuitability Report suggests that he had in mind Annex D rather than Annex B. 104 There are three significant differences between Annex B and Annex D. Annex B must contain a psychologist's report. There is no such express requirement in Annex D. One suspects that the Air Force would, rightly or wrongly, consider flying skill to be a matter for pilots, not psychologists. However par 12 of the instruction appears to contemplate that medical and psychological reports will be obtained in connection with all Unsuitability Reports. If this is the correct interpretation of par 12, then the express requirement in Annex B is unnecessary. It may be that par 12 merely refers to the requirement in Annex B and was not itself intended to prescribe any such requirement. 105 The second significant difference is that an Annex D report is to be raised only if the relevant commanding officer considers that the aircrew member "… is below the minimum acceptable standard in the performance of their aircrew duties and is unlikely to attain an acceptable standard of efficiency notwithstanding such further training as unit resources may permit …". Once again, these words seem to reflect the views formed by the Squadron commander in this case. It was suggested in argument that it was common ground that Annex D did not apply for present purposes because the appellant's basic flying ability was not below a minimal acceptable standard. I disagree. The view reflects a misunderstanding of Annex D. Basic flying ability is dealt with only in par 4. Paragraph 1 addresses the standard of the member's performance of his or her actual duties. There can be little doubt that the Squadron commander considered that the appellant was unable to perform those of his duties which involved successful completion of the Airborne Ops course. 106 The third difference between Annex B and Annex D is that Annex D expressly provides that: The CO may suspend the member from flying duties when a report is submitted in accordance with this Instruction. 107 No such statement appears in connection with Annex B. I suspect that it was not expected that Annex B would be used in the case of a qualified air crew member whose flying skills were in question. In my view, the intention behind par 5 was that Annex D be used where there was concern about the level of performance of duties specific to air crew, and that Annex B be used in all other cases, including those concerning air crew, but raising issues unrelated to specific air crew duties.
APPEAL no a 48 OF 2002 108 The appellant asserts the following propositions:
Ÿ That the only power vested in the Squadron commander to suspend the appellant from flying was that prescribed in Annex D;
Ÿ That an Unsuitability Report may only be raised pursuant to Annex D if the commanding officer considers that the relevant air crew member is "… below the minimum acceptable standard in the performance of their aircrew duties and is unlikely to attain an acceptable standard of efficiency notwithstanding such further training as unit resources may permit …";
Ÿ That the Squadron commander did not hold that view concerning the appellant;
Ÿ That it was a necessary condition precedent to a valid Unsuitability Report pursuant to Annex B that there be a psychologist's report; and
Ÿ That in the present case there was no such report.
Ÿ The decision of the DPO upholding the Unsuitability Report should be "quashed".
THE SUSPENSION 110 The Squadron commander was responsible for the effective utilization of Squadron resources and for training of Squadron personnel. It cannot be seriously suggested that the Air Force should continue to expend resources on training a person who, it believes, will not be able successfully to complete such training. If a commanding officer responsible for resources and training concludes that a particular trainee will not benefit from the expenditure of such resources on further training, then the officer should bring that matter to the attention of his or her own superiors and/or those responsible for postings and career planning such as the DPO. This duty is part of the command function, not a duty conferred by DI (AF) PERS 4-19. In my view, that instruction merely regulates the way in which a commander should perform this aspect of the command function. 111 In an organisation such as the Air Force, there may be an inevitable delay between a commanding officer reaching the conclusion that an officer should not continue in training and the acceptance by the appropriate Air Force authority of that view. The raising of an Unsuitability Report will take some time. It must then be transmitted to the relevant authority, in this case the DPO. He or she must consider it and determine the matter. In some cases, it may be appropriate that the member in question continue to perform his/her duties in the meantime. In other situations, it may be inappropriate. I do not consider that the express reference to suspension in Annex D suggests that there was no other power to suspend. In my view, that reference was intended to indicate that the submission of the Unsuitability Report to the relevant authority did not deprive the officer submitting it of his or her command authority to suspend. 112 No doubt there is a potential tension between such a suspension and the authority of the DPO to post officers. This is a consequence of the distinction between the command function identified in s 9 of the Defence Act and administration of the Defence Force dealt with in s 9A. The Squadron commander was responsible to his immediate superior officer and, up the chain of command, to the Chief of Air Force and then to the CDF. Although it is not clear on the evidence, it is likely that the DPO was ultimately responsible to the Chief of Air Force and then to the Secretary and the CDF. There is no doubt some mechanism by which the DPO could have challenged the Squadron commander's conduct if he disapproved of it. That is not relevant for present purposes. 113 In any event, the Squadron commander was entitled to assign an officer to other duties for not more than three months. It seems most unlikely that at the time of the suspension, the Squadron commander expected that it would be for any longer period. It is reasonable to infer that he expected the DPO to act upon his recommendation. In fact, the DPO ordered that the appellant be attached to another unit with effect from 3 November 2000. See AB 48. However the order was not made until 16 February 2001, apparently with retrospective effect. On 14 February, the appellant had applied for redress of grievance. There was some suggestion that all administrative action would be suspended whilst that application was processed. See AB 49. However all correspondence after 12 March 2001 shows the appellant's address as "Headquarters Air Lift Group" suggesting that his attachment had taken effect. A posting order superseded the attachment order with effect from 13 June 2001. 114 The suspension was a valid exercise of the command function.
THE UNSUITABILITY REPORT 115 In exercise of his command responsibility, the Squadron commander was obliged to address the appellant's perceived shortcomings. One would expect that duty to include notification to other interested authorities in the Air Force. The DPO would obviously be one such authority. Whether the Squadron commander reported pursuant to DI (AF) PERS 4-19, and whether the relevant Annex was B or D, were questions of little practical importance. The report itself did not affect the appellant's status. It was the DPO's decision to uphold it which did so. As the DPO has general posting power, it cannot be argued that a valid Unsuitability Report was a condition precedent to posting. 116 I am inclined to the view that the Unsuitability Report ought to have been submitted pursuant to Annex D. However, given the respondents' concession, I proceed on the basis that I am wrong in that view. I do not accept that the psychologist's report was a condition precedent to a valid Unsuitability Report pursuant to Annex B. The purpose of an Unsuitability Report is to facilitate consideration of the future employment of the subject member. In some cases a psychologist's report will be helpful; in others, not. If no such report is provided, the decision-maker will be perfectly capable of remedying that omission. Both DI (AF) PERS 4-19 par 12 and Annex B par 3 are designed to streamline proceedings. To make such a report a condition precent to a valid Unsuitability Report would have the reverse effect. In this regard I refer to the decision of the High Court in Project Blue Sky Inc & Ors v Australian Broadcasting Authority (1998) 194 CLR 355 at 390-391 and adopt the reasons given by Finn J for concluding that the absence of such a report was not fatal to the validity of the Unsuitability Report. 117 I should add that there was an available psychologist's report - that prepared after the meeting of 4 August 2000 between the Squadron commander and the appellant. It was forwarded with the Unsuitability Report. It may or may not have satisfied the requirements of par 12 or Annex B. I am not sure how much more could have been said by a psychologist concerning the matters in issue. In any event, it is not necessary to consider that matter further. 118 One other possible argument arose in the course of the appellant's submissions. It was that the reasons for the Squadron commander's decisions were inadequate. In particular, it was said that he did not justify his conclusion that resource considerations dictated the suspension decision. The issue seems not to have been previously raised in these proceedings. I do not consider that it can be properly raised now. In any event, there is nothing in the point. The training contemplated as necessary to remedy the appellant's difficulties, if that were possible, was obviously quite extensive and long term. The resource considerations were matters of general policy rather than immediate scarcity. I can see no basis for criticising the adequacy of the reasons. 119 The Unsuitability Report was valid. The decision upholding it was also valid. It is appropriate to add that the Squadron commander's behaviour in connection with the matter was exemplary. 120 I have assumed to this point that the Court has jurisdiction to review the decisions in question. I do not wish to be taken as necessarily holding that view. 121 The appeal should be dismissed with costs.
APPEAL no a3 of 2002 122 In discussing this appeal I will refer to the appellants as the cross-appellants and to the respondent as the cross-respondent. Finn J made no order as to the costs of proceedings No A 3 and No A 16 of 2002. The cross-appellants at first instance obtained leave to appeal against those orders. As I have said, that appeal (No A 3 of 2003) has proceeded as a cross-appeal in the principal appeal (No A 48 of 2002). The cross-appellants assert that Finn J erred in law in making such orders and/or that his Honour took into account irrelevant considerations. They seek their costs of the proceedings and of the cross-appeal. 123 When his Honour delivered his reserved judgment concerning the substantive issues he indicated that "… notwithstanding the ordinary practice … of awarding costs to the successful party on a party and party basis … ; I would need to be satisfied that this was a proper case in which to adhere to that practice." This observation was apparently based upon his Honour's adverse view of the way in which the Air Force had dealt with the cross-respondent's application for redress of grievance and his case generally. Finn J nonetheless reserved the cross-appellants' right to apply for costs, which they did. They sought to rely upon their being successful parties and upon an offer to the cross-respondent on 8 August 2002, a little over a month prior to the date fixed for the hearing at first instance. The thrust of the offer was that the DPO would make a fresh decision as to the Unsuitability Report. The bases of the earlier decisions had, by that time, been explained to the cross-respondent, or so the cross-appellants thought. The cross-appellants assert that in those circumstances, they were entitled to their costs, or at least those incurred after the offer of 8 August 2002. They also claimed costs thrown away as the result of an adjournment of the hearing on 18 August 2002, which adjournment was occasioned by illness of counsel. His Honour declined the latter application, presumably because of the circumstances in which the adjournment occurred. I do not understand the cross-appellants to challenge that decision. 124 Section 43 of the Federal Court of Australia Act 1976 (Cth) provides: "(1) Subjection to subsection (1A), the Court or a Judge has jurisdiction to award costs in all proceedings before the Court (including proceedings dismissed for want of jurisdiction) other than proceedings in respect of which any other Act provides that costs shall not be awarded. … (2) Except as provided by any other Act, the award of costs is in the discretion of the Court or Judge." 125 In opposing the cross-appellants' application before Finn J, the cross-respondent relied upon the decision of the Full Court in Shelton v Repatriation Commission (1999) 85 FCR 587. However that case demonstrates only that pursuant to s 43, costs are generally at large. 126 Notwithstanding s 43, O 23 r 11 of the Federal Court Rules provides for specific orders where an offer of compromise or payment into Court has been made. Subrule 11(5) deals with the situation in which an offer by a respondent is not accepted by an applicant. Where the applicant obtains judgment in terms not more favourable than the terms of the offer: "… unless the Court otherwise orders: (c) the applicant is entitled to an order against the respondent; and (d) the respondent is entitled to an order against the applicant; for costs in respect of the claim taxed as provided in subrule (6)." 127 Subrule 11(6) provides: "For the purpose of subrule (5), if an offer was made: (a) on the day before the trial or hearing of the proceeding commenced; or (b) on any later day; then, unless the Court otherwise orders: (c) the applicant is entitled to costs, in respect of the claim, incurred up to 11 a.m. on the day following the day on which the offer was made; and (d) the respondent is entitled to costs, in respect of the claim, incurred after that time; taxed on a party and party basis." 128 The subrule does not deal with the situation in which an offer is made prior to the day before the date of commencement of the trial or hearing. Presumably, in that situation, costs are left in the discretion of the Court. 129 The cross-appellants submit that Finn J erred in law by placing an onus upon them to demonstrate that the ordinary practice (of awarding costs to the successful party) should apply. I am by no means satisfied that his Honour proceeded in that way. 130 Whilst it is possible to construe his Honour's observations (cited in [48] above) in the way suggested by the cross-appellants, his Honour's true meaning appears in pars [5] - [7] of his reasons as to costs where he said: "For my own part, but for the applicant's rejection of the 8 August 2002 offer, I would without hesitation have characterised this proceeding as one in which no order as to costs should be made. There can be no doubt the proceedings were reasonably instituted. Against the background of decision-making that can only be described as chameleon-like in character, Flight Lieutenant Bromet was quite entitled to resort to this Court in judicial review proceedings both to challenge the regularity of the course of decision-making to which he had been subjected and to ascertain the actual bases of the decisions made. The proceeding itself exposed not only poor administration in an area of the Royal Australian Air Force's internal working, it also exposed real issues about the frame, scope and present suitability in aspects of the regime of Defence Instructions that ought be addressed. And, as I indicated in my principal reasons, the proceeding exposed as well the need to review the procedures the Air Force has in place to monitor the progress of action being taken in matters such as gave rise to this proceeding. In Shelton's case the Full Court made an observation which is peculiarly opposite to the present proceeding (at 590): "Often, in administrative law, such an application as this … clarifies the law in a wider interest than that of the applicant. Indeed, it is as essential to good administration as it is important in the interests of individual justice that administrative decisions should be open to accessible review. Persons affected by administrative decisions should not be overmuch deterred by the threat of costs orders in such cases, and the very wide discretion give (sic) to the Court by the Federal Court of Australia Act 1976 (Cth) should not be automatically exercised adversely to the losing party." Notwithstanding that the applicant was unsuccessful in his challenges both to the suspension decision and to the unsuitability report decision, the case is one in which, but for any question raised by the 8 August offer, no costs order should be made." 131 In his earlier comment, Finn J had simply indicated a preliminary view that in the circumstances of this case, it would be inappropriate to award costs to the successful parties. It may be that his Honour's language suggested that he was addressing the question of onus, but it is unlikely that he was speaking with that degree of precision. Rather, he was simply putting the parties on notice of his preliminary view as to the applicability of the general practice to the circumstances of the present case. His Honour subsequently heard argument and recorded his views concerning the case. Those views led him to conclude that this was, subject only to the question of the offer, a case in which costs should not follow the event. Finn J did not pre-judge the issue or in any way misplace the onus. 132 Opinions may differ as to the conduct of the Air Force in this case. Similarly, opinions may differ as to the circumstances in which it is proper to use the discretion as to costs to compel a successful respondent to pay for the development of legal learning in the area of administrative law, as was suggested in Shelton. However the discretion conferred by s 43 is unfettered. Finn J considered that the Air Force's dealings with the cross-respondent had been marked by delay and changes in the grounds relied upon to justify its decisions. The cross-appellants accepted that the Air Force had exposed itself to justifiable criticism in this regard but submitted that the effects of any confusion or misunderstanding had been dissipated prior to the offer on 8 August 2002. His Honour seems not to have accepted that view. Once it is conceded that conduct prior to the commencement of proceedings and the existence of a wider interest in the outcome are factors to be taken into account in exercising the general discretion as to costs, it was open to Finn J to conclude that, on his view of the facts and subject to the offer made on 8 August, the matter was one in which an order for costs ought not be made. 133 The only remaining issue is whether or not there was any error inherent in his Honour's treatment of the cross-respondent's failure to accept the offer. Finn J treated as the relevant consideration the reasonableness or otherwise of that conduct. I agree that this was the correct approach in the circumstances. His Honour accepted the cross-appellants' submission that "… maladministration ought not allow an applicant to maintain proceedings in the face of a reasonable offer to settle without risk as to costs". The cross-respondent asserted that it was reasonable for him to reject the offer because no offer was made as to his costs. In view of the outcome of the proceedings, that ground had little merit. However his Honour considered that there were other aspects of the offer which had also been relevant to the cross-respondent's decision to refuse it, in particular, that it did not address the validity of the suspension decision or the Unsuitability Report, matters of some importance to the cross-respondent. His Honour concluded that: "… given the foundations of his challenges to both reports and the less than comprehensive scope of the offer, he was reasonably entitled to persist in his objections to both decisions made against him and, in particular, to their alleged lack of legal foundation." 134 I understand this to mean that, had the cross-respondent accepted the offer, the legality of both the suspension decision and the Unsuitability Report would have remained untested. Their respective validities lay at the heart of the proceedings, at least from the cross-respondent's point of view. It is implicit in his Honour's reasons that until the hearing, the cross-appellants had not explained fully the legal bases of the decisions. These views seem to have been open on the evidence. Given such views, I see no error of principle in his Honour's exercise of the discretion as to costs. The cross-appeal should be dismissed.
(a) appeal No A 48 of 2002 be dismissed with costs; and
I certify that the preceding sixty (60) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Dowsett.
Associate: Dated: 29 August 2003 A 48 of 2002 Counsel for the Appellant: Mr C Erskine
Solicitor for the Respondents: Australian Government Solicitor
A 3 of 2003 Counsel for the Appellants: Mr H Burmester QC
Solicitor for the Appellants: Australian Government Solicitor
Bromet
Oddie
(1998) 194 CLR 355
(1999) 85 FCR 587
(1947) 74 CLR 245
(1964) 111 CLR 549
(1993) 40 FCR 409