Fulton v Chief of the Defence Force

1. The Termination Decision of the respondent (by his delegate Wing Commander WJ Perrett) dated 4 May 2017 (Termination Decision) terminating the applicant's service as a member of the Australian Defence Force pursuant to s 24(1)(c) of the Defence Regulation 2016 (Cth) (Defence Regulation) be quashed.
2. The decision of the respondent's subordinate, Wing Commander KL Breaden, dated 8 June 2017, pursuant to Part 7 of the Defence Regulation, to refer the applicant's application for redress of grievance in respect of the Termination Decision to the Inspector-General, Australian Defence Force and otherwise to deal with that application be quashed.
3. As a consequence of orders 1 and 2, the hearing of the application presently fixed for 18 August 2017 be vacated.
4. The respondent pay the applicant's costs of and incidental to the proceeding, which are (by agreement) fixed in the sum of $10,000. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

LOGAN J: 1 Flight Lieutenant Heath Maxwell Ryan Fulton's appointment as a member of the Australian Defence Force - ADF (more particularly as a member of the Royal Australian Air Force - RAAF) was terminated with effect on and from 7 June 2017 by a decision of a delegate of the respondent Chief of the Defence Force on 4 May 2017, pursuant to s 24(1)(c) of the Defence Regulation 2016 (Cth) (Defence Regulation). Being aggrieved by this decision, FLTLT Ryan sought redress via the procedure for redress of a grievance now found in Pt 7 of the Defence Regulation. His redress application was considered by his commanding officer, the Commanding Officer of No 23 Squadron, RAAF, Wing Commander Karen Breaden. That officer considered that it was not within her power on the redress to reverse the termination decision. Further, for reasons given in a minute dated 8 June 2017 sent to FLTLT Fulton, she opined that his redress application, insofar as it related to access to requested personal documents, lacked merit. She also informed him that she had referred his redress application to the Inspector-General, ADF. 2 By an application filed on 28 June 2017, FLTLT Fulton sought the judicial review of each of these decisions. That application came before me for its first case management hearing on 30 June 2017. Circumstances relating both to the making of these decisions as well as FLTLT Fulton's background and service in the ADF persuaded me that, as an initial measure, the matter should be referred for mediation by a registrar. I also made provision for the application to be heard on 18 August 2017 in the event that it did not resolve via mediation. 3 In the result, the parties reached the joint view, following mediation, that the termination decision was attended with a jurisdictional error in the form of a denial of procedural fairness to FLTLT Fulton. The parties are to be commended in respect of their approach to the resolution of this litigation, as is the registrar (District Registrar Baldwin) in the deployment of her considerable experience in assisting the parties to reach this position. 4 The nature of that jointly conceded error is described in a joint submission which the parties have lodged with the Court in conjunction with a proposed consent to orders, pursuant to r 39.11 of the Federal Court Rules 2011 (Cth). While it is not necessary to call for any further submission from the parties, for reasons which follow the case is not one for determination in chambers but rather ought to be the subject of a judgement published in open court explaining why the Court's orders have been made. 5 It is first necessary that the joint submission of the parties be set out in full. SUBMISSIONS IN SUPPORT OF CONSENT ORDERS Introduction 1. The applicant has applied to the Court pursuant to the Administrative Decisions (Judicial Review) Act 1977 (Cth) and the Judiciary Act 1903 (Cth) variously seeking to review two decisions of the respondent, namely: 1.1 The decision of the respondent (by his delegate, Wing Commander KL Breaden) dated 8 June 2017 (ROG Decision) deciding that the applicant's application for Redress of Grievance dated 23 May 2017 against the decision of the respondent (by his delegate Wing Commander WJ Perrett) dated 4 May 2017 (Termination Decision) terminating the applicant's services with the Australian Defence Force (ADF) pursuant to s 24(1)(c) of the Defence Regulation 2016 (Cth) (the Regulation) could not be substantiated and the redress sought should not be granted. 1.2. Further and in the alternate, the decision of the respondent (by his delegate Wing Commander WJ Perrett) dated 4 May 2017 (Termination Decision) terminating the applicant's services with the Australian Defence Force (ADF) pursuant to s 24(1)(c) of the Regulation. 2. This application gives rise to the question of whether the Termination Decision and the ROG Decision are valid. 3. The applicant and the respondent have now agreed that: 3.1 the Termination Decision is attended by procedural error and should be declared a nullity or alternatively quashed 3.2 consequent upon 3.1, the ROG Decision is of no effect 3.3 in the alternate, the ROG decision is infected by the procedural error which attended the Termination Decision and should be declared a nullity or alternatively quashed. Basis for the agreement 4. On 23 February 2017, the respondent by his delegate Wing Commander KL Breaden, issued a Termination Notice to the applicant pursuant to s 24(2) of the Regulation. The Termination Notice included grounds in support of a proposed decision to terminate the applicant's service with the ADF. The applicant was invited to respond to the Termination Notice before a decision was made to terminate his service. 5. The basis for this agreement is the parties' joint understanding that the applicant was denied procedural fairness in respect of the Termination Decision because medical records which informed a relevant medical opinion of Dr Peel, were not disclosed to the applicant. This was raised in the applicant's response to the Termination Notice. However, the respondent proceeded to terminate the applicant's service with the ADF without providing such medical records to the applicant, and the applicant was thereby denied an opportunity to properly respond to the Termination Notice. 6. The parties have signed terms of agreement and propose the enclosed draft consent orders that provide for disposition of the proceeding in accordance with this agreement. These submissions briefly outline the matters that justify the making of the proposed orders pursuant to rule 39. 11 of the Federal Court Rules 2011 (Cth) as well as confirming the action proposed to be taken by the respondent in reliance of these orders once made. Requirements for procedural fairness 7. The right to procedural fairness depends not on the nature of the proceeding, but on whether the power that is being used is apt to destroy, defeat or prejudice a person's rights, interests or legitimate expectations: Ainsworth v Criminal Justice Commission (1992) 175 CLR 564 at 576. The critical question to be asked is what does the duty to act fairly require in the circumstances of the particular case: Kioa v West (1985) 159 CLR 550 at 585. The application of procedural fairness requires that, '...an opportunity should be given to deal with adverse information that is credible, relevant and significant to the decision to be made': Kioa v West (1985) 159 CLR 550 at 629. 8. A more recent consideration of the law concerning the application of procedural fairness to an affected person can be found in Coutts v Close [2014] FCA 19. In referring to relevant cases, Griffiths J set out a useful summary at paragraph 114: Subject to any relevant statutory modification or variation, it is well established that a person liable to be directly affected by an administrative decision to which the rules of procedural fairness apply must be given an opportunity of putting information or submissions to the decision-maker. For that right to have substance, the person affected must be given an opportunity of ascertaining the relevant issues, which requires the decision-maker to identify for the person affected any issue critical to the decision which is not apparent from the nature of that decision or the terms of the statute under which it is made. The obligation extends to informing the affected person of the nature and content of adverse material that is credible, relevant and significant obtained from sources other than the affected person, as well as of any adverse conclusion reached by the decision-maker in respect of which the affected person had no notice. The affected person must be given an adequate opportunity to address such new material and/or any unexpected conclusions by further information and submission. (See, for example, Kioa v West (1985) 159 CLR 550 at 628-629; Commissioner for Australian Capital Territory Revenue v Alphaone Pty Ltd (1994) 49 FCR 576 at 590-592; SZBEL v Minister of Immigration and Multicultural and Indigenous Affairs (2006) 228 CLR 152 at 162 and Minister for Immigration and Citizenship v SZGUR (2011) 241 CLR 594 at 599) Generally speaking, however, and subject naturally to the particular statutory context, procedural fairness does not require that a decision maker adopt an "open file" policy which would have the effect of disclosing every submission or piece of evidence to an affected party. (See, for example, Minister for Local Government v South Sydney City Council (2002) 55 NSWLR 381) Ultimately, the fundamental issue here is whether the applicant was given a reasonable opportunity to address issues relevant to his interests. 9. A failure to afford procedural fairness can have the effect of setting aside a decision adverse to the interests of an affected party. 10. Having regard to the facts of this particular case and the applicable law, the parties agree that a procedural error arose in circumstances where the applicant was not given notice of the medical evidence considered by Dr Peel in formulating his written medical opinion, which was then provided to the delegate for consideration. 11. In these circumstances, the parties submit that the Federal Court is entitled to find that as a consequence of the procedural error, the Termination Decision is a nullity or is alternately entitled to quash the Termination Decision. Effect of the declaration on the ROG Decision 12. Upon receipt of the Termination Decision, the applicant applied for a Redress of Grievance (ROG) pursuant to s 40 of the Regulation in respect of the Termination Decision. The nature of the power 13. In Millar v Bornholt (2009) 177 FCR 67, 78-79, Logan J said of the predecessor provision to section 42 of the Regulation that: [34] ... Where it lies within the power of the Chief of Army or subordinate officer to make a decision or to issue an order that has given rise to the complaint, it lies within the power of the Chief of Army or a delegate upon the investigation of a referred redress complaint to vacate that earlier decision or to countermand that order. The power is truly plenary. [35] Though the occasion for the exercise in this case of the power to review on referral a referred redress of grievance complaint was the exercise of a power to terminate a member's Army service, the ability to seek redress and later referral extends over the entirety of relationships between superior and subordinate within the Army. That has the necessary consequence that underlying circumstances and the nature of the decision under review will necessarily influence the manner and formality of the exercise of power in respect of a referred redress complaint. What does not change is the nature of the review power. The Chief of Army or a delegate considering the redress complaint on referral is fully empowered to consider afresh and on the merits the subject matter of the complaint, to reach his or her own decision in respect of it and to modify or countermand any decision which has given rise to a complaint which is upheld. (Emphasis added) 14. The parties agree that the enforceability of the ROG decision, which sought to review the Termination Decision, depends upon the validity of the Termination Decision. 15. The parties, having reached agreement that the Termination Decision should be declared a nullity or quashed, accept that as a consequence of that order, the ROG decision will be of no effect. 16. Should the Court disagree with this view it is open to the Court to find that the ROG Decision was infected by the same errors that invalidated the Termination Decision and to make an order declaring the ROG Decision a nullity or quashing the ROG Decision. 17. In the circumstances, the parties submit the first of these views is to be preferred. The Court is therefore entitled to simply note the impact of the order in respect of the Termination Decision on the ROG and is not required to make separate orders in respect of the ROG. Ancillary matters 18. Consequent upon the orders sought being acceptable to the Court, the respondent will take all necessary steps to reinstate the applicant's service in the ADF with the applicant's pay and entitlements backdated to 30 March 2017, being the date upon which the applicant had been suspended from duty in the ADF without pay. 19. The parties commend the proposed consent orders to the Court. ANNEXURE A: - Statutory framework Defence Force Regulation 2016 20. The Regulation is an instrument made under s 124 of the Defence Act 1903 (Cth). (Tab 49). It commenced operation on 1 October 2016. (Defence Regulation 2016, r 2 (Tab 50)) Source of power 21. The decision to terminate the applicant's service was made pursuant to s 24(1)(c) of the Regulation. Section 24 provides: (1) The Chief of the Defence Force may terminate the service of a member for one or more of the following reasons: (a) the member is medically unfit for service in the Defence Force; (b) the member cannot usefully serve because of redundancy in the Defence Force; (c) retention of the member's service is not in the Interests of the Defence Force; (d) the member has failed to meet a condition of his or her appointment or enlistment; (e) the member has been absent without leave for a continuous period of 3 months or more. Note: For interests of the Defence Force, see subsection 6(2). (2) For termination under paragraph (1)(a), (b) or (c), the member must be given notice and at least 14 days after the date of the notice to provide a written response. Note: For notice to members, see section 30. (3) However, if the member's appointment or enlistment is subject to a probationary period, notice is not required during that period. When termination because of redundancy can occur (4) Termination because of redundancy (other than during a probationary period) must not occur until 5 weeks after notice is given unless the member agrees to earlier termination. 22. Section 6(2) of the Regulation defines interests of the Defence Force as follows: (2) Reasons for something being or not being in the interests of the Defence Force include reasons relating to one or more of the following: (a) a member's performance; (b) a member's behaviour (including any convictions for criminal or service offences); (c) a member's suitability to serve: (i) in the Defence Force; or (ii) in a particular role or rank; (d) workforce planning in the Defence Force; (e) the effectiveness and efficiency of the Defence Force; (f) the morale, welfare and discipline of the Defence Force; (g) the reputation and community standing of the Defence Force. 23 The statutory requirement to provide the Termination Notice is found in s 24 of the Regulation. See also s 30(2) of the Regulation. (See, eg, Managing and Recording Sub-Standard Performance or Conduct, [66]-[68) (Tab 74). Defence Instruction (General) - Formal Warnings and Censures, [54] (Tab 75. It should be noted that the position has altered with the promulgation of the Regulation but that the Regulation has not been judicially considered. Previous judicial authority suggested that matters relating to the issue of a Termination Notice were matters beyond the jurisdiction of the Court - see Gaynor v Chief of the Defence Force (No 3) [2015] FCA 1370 per Buchannan J [192] - 'As I earlier discussed, the question of satisfaction of an officer issuing a termination notice such as the Chief of Army, or the satisfaction of a decision-maker such as GDF, is not one to which any independent opinion of this Court may be applied. As Logan J observed in Millar v Bornholt at [73], that would impermissibly pass that responsibility from the Governor-General's delegates to the judiciary'.) It is akin to a show cause notice. 24. Section 40 of the Regulation provides: (1) A member may make a complaint under this Part if the member considers: (a) that a decision. act or omission in relation to the member's service is adverse or detrimental to him or her; and (b) that the adverse or detrimental effect of the decision, act or omission is capable of being redressed by: (i) the Chief of the Defence Force, or another member of the Defence Force; or (ii) the Secretary or an employee of the Department; or (iii) a delegate of, or a person authorised by, the Chief of the Defence Force or Secretary. 25. Section 42 of the Regulation provides: A commanding officer or authorised complaint recipient who is given a complaint under this Part may do one or more of the following: (a) consider the complaint; (b) take action to redress the member's grievance; (c) refer the complaint to another person for consideration; (d) refer the complaint to another person who is capable of redressing the member's grievance; (e) refer the complaint to be dealt with under another complaint handling procedure. 6 The granting of relief on a judicial review application is not a matter for consent but rather requires the exercise of a judicial discretion. That is not to say that the parties to such an application may not jointly promote to the Court that the discretion ought to be exercised in a particular way. That is how I have treated the consent lodged by the parties in the present case. 7 Recently, in Gill v Minister for Immigration and Border Protection [2017] FCAFC 51, at [95] to [97], Griffiths and Moshinsky JJ, with whom in this regard I agreed, summarised the prevailing position in relation to the exercise of a discretion to grant relief on a judicial review application: 95 In the amended application for judicial review in the proceeding below, the relief sought by the appellant included an order that the Tribunal's decision be quashed and a writ of mandamus be directed to the Tribunal to re-determine the appellant's review application according to law. There is no doubt that these remedies are discretionary and may be withheld in an appropriate case, notwithstanding that the judicial review applicant has established jurisdictional error, including on the ground of lack of utility or futility (see, for example, R v Army Council; Ex parte Ravenscroft [1917] 2 KB 504 at 511 per Viscount Reading CJ and the discussion in Aronson, Groves and Weeks, Judicial Review of Administrative Action and Government Liability, 6th edition, Law Book Co at [17.150]). However, as the learned authors of that leading text state there: There is in all of these instances a real danger in saying that the ultimate outcome is obvious. Unless the eventual outcome is crystal clear, a consideration of a likely outcome might shade into a consideration of the desirable outcome, which is something that must be left to the primary decision-maker. 96 That passage correctly highlights the need for considerable caution before a remedy, such as mandamus, is withheld on the ground of lack of utility even where a jurisdictional error has been demonstrated. Helpful guidance can be obtained from the joint judgment of Gaudron and Gummow JJ in Re Refugee Tribunal; Ex parte Aala [2000] HCA 57; 204 CLR 82 (Aala) at [55] (footnotes omitted): 55 No doubt the discretion with respect to all remedies in s 75(v) is not to be exercised lightly against the grant of a final remedy, particularly where the officers of the Commonwealth in question do not constitute a federal court and there is no avenue of appeal to this Court under s 73 of the Constitution. The discretion is to be exercised against the background of the animating principle described by Gaudron J in Enfield City Corporation v Development Assessment Commission. Her Honour said: "Those exercising executive and administrative powers are as much subject to the law as those who are or may be affected by the exercise of those powers. It follows that, within the limits of their jurisdiction and consistent with their obligation to act judicially, the courts should provide whatever remedies are available and appropriate to ensure that those possessed of executive and administrative powers exercise them only in accordance with the laws which govern their exercise. The rule of law requires no less." (Footnote omitted.) 97 Their Honours acknowledged at [57] that, in cases of denial of procedural fairness, the nature of the alleged irregularity may be a matter going to the discretion to deny a remedy on the basis that, in any event, no different result would have been reached. 8 Further reference should be made to one of the cases referred to in the passage quoted, R v Army Council; Ex parte Ravenscroft [1917] 2 KB 504 (Ravenscroft). In that case, a British army officer sought the judicial review of the decision of a court of inquiry. One of the reasons why the court declined to grant relief was that the officer had made an application for a redress of grievance relating to that inquiry, pursuant to the then s 42 of the Army Act 1881 (UK), which provided: 42. Mode of complaint by officer If an officer thinks himself wronged by his commanding officer, and on due application made to him does not receive the redress to which he may consider himself entitled, he may complain to the Army Council in order to obtain justice, who are hereby required to examine into such complaint, and through a Secretary of State make his report to His Majesty in order to receive the directions of His Majesty thereon. At the time when the case was before the court, the redress application had not finally been resolved. The plenary nature of the power able to be exercised by the Sovereign, as Head of the Armed Forces, on advice from the Secretary of State for War (reflecting the post-Restoration constitutional position), in respect of the redress application was a factor which told against the granting of any relief on judicial review, as a matter of discretion. In effect, the nature of the then British redress power meant that a complete review on the merits, including a power to countermand the decision the subject of the grievance was available. In Australia in modern times an existence of a right of merits review, for example by the Administrative Appeals Tribunal, can be a persuasive (though not necessarily determinative) factor telling against the granting, as a matter of discretion, of a judicial review remedy, if not providing at an earlier stage a basis for the summary dismissal of such an application. 9 In Millar v Bornholt (2009) 177 FCR 67, I reviewed the history of provision for the redress of grievances by members of the armed forces from its British origins up to its then Australian manifestation. The then current provision has since been repealed and replaced by that found in Pt 7 of the Defence Regulation. 10 As noted, FLTLT Fulton was, prior to the institution of his judicial review application, also informed by his commanding officer that his redress application had been referred to the office of the Inspector-General, ADF. Provision for such referral is found in reg 43 of the Defence Regulation. 11 One of the duties cast upon WGCDR Breaden, as FLTLT Fulton's commanding officer dealing with his grievance, was, as a matter of discretionary value judgement, to "take action to redress the member's grievance": reg 42(b), Defence Regulation. In advising FLTLT Fulton that she had no power to reverse the termination decision, WGCDR Breaden acted on a view that the requirement found in reg 42(b) to "take action" was not in itself a source of power to reverse the termination decision if so persuaded on the merits, if she did not otherwise possess that authority. However, with respect, quite why in light of this view, she thought fit additionally to advise FLTLT Fulton that she would consider his case further upon the receipt of the Inspector-General's report is elusive. 12 Whether this is the correct construction of reg 42(b) is, perhaps, moot, but it is neither necessary nor desirable, given the conceded jurisdictional error in the making of the termination decision, finally to determine the point. It is clear enough from reg 42(b) that it is not contemplated that a commanding officer will merely be a referral agency in respect of redress applications. He or she is expected to exercise some plenary power, which would at least materially include countermanding, if thought fit and otherwise within that officer's authority, a decision which is the subject of the application. To this extent, it remains a feature of the redress of grievance system that an officer dealing with a redress of grievance application is expected to grant redress in appropriate cases. 13 Equally though, when one examines the actions which the Inspector-General may, under reg 45 of the Defence Regulation consequentially take upon the referral of a redress of grievance application, they are confined to the making of findings and related recommendations to, as thought appropriate in a particular case, the Minister, the Secretary, the CDF, a service chief or some other person. Inferentially, it would then fall to the person to whom the recommendation is made to decide whether to exercise, in light of the Inspector-General's findings and recommendation, a plenary power to, for example, countermand a termination decision. In these circumstances, it would be odd to construe reg 42(b) as conferring unlimited plenary power on a commanding officer, as opposed to requiring that officer to exercise such plenary power as that officer otherwise possessed to take action if thought fit in the circumstances of a particular case. Where that officer did not possess the requisite power, the redress application would be referred to the Inspector-General. It is not though, as I have stated, necessary to reach a concluded view on this subject. 14 That the Inspector-General does not possess any plenary power in respect of FLTLT Fulton's referred redress application does though distinguish the present case from Ravenscroft in terms of a consideration which would otherwise be relevant to the exercise of a discretion as to whether to grant relief. 15 The conceded procedural fairness error is undoubtedly a jurisdictional one. FLTLT Fulton is entitled to have the termination decision quashed. As their joint submission makes clear, the parties are ambivalent about the need also to quash WGCDR Breaden's later decision. It is true that it is a consequential decision and that its foundation is to be removed by quashing the earlier decision. Nonetheless, the statement is made by WGCDR Breaden in dealing with the application that, "at no time were you denied access to documents that you deemed relevant to your submission" [in relation to whether or not a termination decision should be made]. In circumstances where a want of procedural fairness in relation to the termination decision has been conceded, it might, at the very least, be thought apt to mislead to leave on the record a consequential decision given for, materially, such a reason. Further, quashing WGCDR Breaden's decision will put beyond doubt that there is no unresolved referral pending before the Inspector-General. 16 The result is that it will fall to the CDF or a delegate to decide afresh and on the material then to hand whether or not to terminate FLTLT Fulton's appointment as a member of the ADF. The outcome of this proceeding does not mean that he has any greater security of tenure than he had prior to the making of the now conceded to be invalid termination decision in May this year. The quashing of that decision does mean that he has to date remained and presently is an officer in the RAAF for all purposes, including entitlement to pay and other service benefits. 17 As the Full Court noted in Chief of Defence Force v Gaynor (2017) 246 FCR 298 at [33] (Gaynor), substantial amendments were made last year to the constituting legislation for the ADF with the making of the Defence Regulation being a sequel to that legislative initiative. Even so, what has been retained is a very longstanding feature of defence service by any officer, non-commissioned officer or other rank. That is that a member's service may be terminated on the basis that "retention of the member's service is not in the interests of the Defence Force": reg 24(1)(c), Defence Regulation. Such a ground leaves much to the making of a command value judgement but must nonetheless be reasonable in the public law sense of that word and the result of a fair process: Gaynor, at [103]. 18 FLTLT Fulton's circumstances, as described in his affidavit, disclose that he has risen from difficult pre-adulthood circumstances, through sustained and concerted personal endeavour, to the attaining of commissioned rank in the ADF. He has over time rendered service not just in the ADF but also in two of the organisations which comprise the Australian Defence Cadets (the Australian Army Cadets and the Australian Air Force Cadets). It is only to be expected that his attainment and service has contributed to his sense of self-worth. There is a good deal to admire about his attainment and the service which he has rendered to our country. Part of his ADF service has entailed serving as an operations officer in recent years in operations directed to preserving the integrity of Australia's maritime borders. It may be that he is a casualty of those operations with behaviours which were earlier thought to warrant his termination under reg 24(1)(c) truly being but symptoms of a condition to which that particular service has at least contributed. If so and if the condition is either intractable or unlikely to resolve within an operationally acceptable time, it may be that there is nonetheless cause for his termination but with that cause being found in reg 24(1)(a) of the Defence Regulation, "the member is medically unfit for service in the Defence Force". But such conclusions, if to be made at all, are ones for the evaluative judgement of the CDF or his delegate. They are not for this Court to make, any more than would be the making of a command decision as to his posting, given that he remains now a member of the ADF. I mention them as considerations only so as to emphasise that the quashing of the termination decision neither assures FLTLT Fulton of continued tenure nor limits the CDF or his delegate, if disposed again to consider termination, to the basis chosen before. I certify that the preceding eighteen (18) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Logan.