Martincevic v Commonwealth of Australia

THE PRIMARY JUDGE'S DECISION 31 Amongst other things, the primary judge held that Lieutenant Colonel Egan was under no legal obligation to defer his termination decision, which was based on a medical classification of MEC 403 and medical unfitness under reg 87(1)(c) of the Personnel Regulations, until the determination of any Redress of Grievance. The appellant did not challenge this aspect of his Honour's decision. His Honour held that the issue in the termination decision was "whether the soldier was fit to be a soldier"; and "the issue of the Referral of the Redress of Grievance here [was] separate from the question of the validity of the applicant's termination". 32 Relevantly for this appeal, the primary judge also held that, in the circumstances of the case, there was no denial of natural justice on Lieutenant Colonel Egan's part in refusing to give a further extension to the appellant "to see if he could obtain medical evidence to assist his case". His Honour added that, in making the enquiries of Dr Chalk on 24 July 2006, Lieutenant Colonel Egan "was seeking the fullest and up-to-date information about the applicant's medical fitness". He held that, after Major Adamson's response of 26 June 2006, the appellant had no expectation that the decision would be held in abeyance; and that, once Lieutenant Colonel Egan received Professor Whiteford's report, he was under no obligation to act on it. This aspect of his Honour's decision was challenged on appeal.

THE GROUNDS OF APPEAL AND THE PARTIES' SUBMISSIONS 33 There were three grounds of appeal. The notice of appeal, as amended, read as follows: 1. The learned Trial Judge erred in finding that there was no reviewable error to taint the decision of the Third Respondent. Particulars a. In light of the minute sent on 26 July 2006 by the Appellant to the Soldier Career Management Agency ("SCMA") the Appellant did have a legitimate expectation that the Respondents would consider the views of Professor Whiteford before his service was terminated. SCMA did not reply to this minute. SCMA's response was to decide [to] terminate the appellant's service on 8th August 2006 when it knew that this was the day before the Appellant was due to see Professor Whiteford. b. The Appellant was not afforded natural justice. First he was not told that the Respondents would not consider the report of Professor Whiteford prior to the making of the Termination decision. If they were not going to do so they were obliged to let the Appellant know this and were obliged to hear submissions on the matter. Second he sent the report of Professor Whiteford to SCMA and at no stage was the report considered by SCMA. 2. The learned Trial Judge erred in finding that the termination procedure need not have been suspended until the Appellant's Redress of Grievance was investigated by persons independent of his Commanding Officer. The Learned Trial Judge did not refer to Annex B of DI(G) Pers 34-1 paragraph 4 where it is provided that the Commanding Officer should have immediately passed the Redress to the next superior officer in the Chain of Command for investigation and resolution. 3. The learned trial judge erred by failing to find that the outcome of the investigation by Lieutenant Colonel Thomae, that was brought to the Third Respondent's attention by the Appellant's letter dater 26 July 2006, was a relevant consideration that the Third Respondent was bound to consider within the meaning of s 4 [sic] of the Administrative Decisions (Judicial Review) Act 1977. The reference in [3] to 's 4' should be a reference to s 5 of the Judicial Review Act. It is treated as such in these reasons. Nothing turns on this error. 34 In support of the first ground, counsel for the appellant argued that the common law supplied the content of natural justice applicable to the making of the termination decision, and not merely the Personnel Regulations. At common law, so the appellant's counsel said, there would be a denial of natural justice: (a) where a representation is made as to how a matter will proceed; (b) that representation is departed from; (c) there is no hearing regarding the departure; (d) the departure from the representation creates an unfairness; and (e) the unfairness is a denial of an opportunity to put forward relevant evidence. Accordingly, there was a denial of natural justice in this case because, so the appellant's counsel submitted: On 26 June 2006 the appellant was advised that he would be granted an extension of 21 days in which to provide a report of Dr Chalk and that if he wanted a further extension he must request it and provide supporting materials … Such an extension of time is contemplated … by s 87(2)(e) [of the] Personnel Regulations. This is a representation as to what procedure would be adopted. On 26 July 2006 the appellant wrote requesting an extension of time in which to provide a medical report of Dr Whiteford and present Lieutenant Colonel Thomae's report to Dr Chalk … The third respondent proceeded to make the decision to terminate the appellant on 9 August 2006 without further hearing from the appellant or ruling on the appellant's application for a further extension. The appellant had an expectation that his request for an extension of time would be considered and ruled on prior to the decision being made. The third respondent never considered whether or not to grant the extension of time prior to making the decision. This is a departure from the previous representation. It was only upon being advised of the decision that the appellant became aware that his request for an extension of time was effectively denied. If the third respondent considered that the appellant was unreasonably delaying, 'doctor shopping' or that further evidence was unnecessary in the circumstances, it was incumbent on the third respondent to give the appellant an opportunity to respond to that view before making the decision. The third respondent denied the appellant the opportunity to present an alternative medical report and to place Lieutenant Colonel Thomae's report before Dr Chalk. He did so without even considering whether or not it was appropriate to do so in the circumstances. This is an unfairness that constitutes a denial of natural justice. 35 The appellant did not proceed with the second ground but, in its stead, argued the third ground, which was introduced without objection on the hearing of the appeal and confirmed subsequently by way of amendment to the notice of appeal. In so far as necessary, leave ought be given to make the amendment in the terms requested in the appellant's counsel's email to the Court dated 4 September 2007. 36 In support of this third ground, the appellant sought leave to adduce an affidavit sworn by his solicitor, Mr T W Fisher, on 10 August 2007. Lieutenant Colonel Thomae's report dated 23 June 2006 formed part of an exhibit to this affidavit. The affidavit showed that, prior to the hearing before the primary judge, Mr Fisher wrote to the Minister for Defence to request a copy of Lieutenant Colonel Thomae's report. The report was not made available until after the primary judge had delivered judgment. The appellant argued that the report vindicated his claims of bullying and bastardisation. Lieutenant Colonel Thomae found that the appellant had been the victim of inappropriate conduct by 7 CSSB personnel. The appellant submitted that it should be borne in mind that, at all material times, the report was within the control of the Chief of Army, who chose not to place it before the primary judge. The appellant further submitted that the report was cogent evidence and likely to have an effect on the outcome of the appeal. 37 Section 27 of the Federal Court of Australia Act 1976 (Cth) and O 52 r 36 of the Federal Court Rules 1979 (Cth) permit the Court to receive further evidence on appeal. There can be no suggestion in this case that the appellant deliberately withheld Lieutenant Colonel Thomae's report or that the appellant could have placed it before the primary judge had he exercised reasonable diligence: see generally CDJ v VAJ (1998) 197 CLR 172 ('CDJ v VAJ') at 203-204 per McHugh, Gummow and Callinan JJ, at 185-8 per Gaudron J and at 233-6 per Kirby J. There was no dispute that the report was the second respondent's document. For the reasons set out below, the evidence of the report would have produced a different result had it been tendered before the primary judge: see CDJ v VAJ at 202 per McHugh, Gummow and Callinan JJ and VUAD of 2003 v Minister for Immigration & Multicultural Affairs [2004] FCAFC 186 at [19] per Gray, Moore and Emmett JJ. The Court should therefore receive Mr Fisher's affidavit and the exhibits to it. 38 The appellant contended that Lieutenant Colonel Egan's failure to consider Lieutenant Colonel Thomae's report constituted a failure to take into account a relevant consideration, which he was bound to take into account. The appellant submitted that the report was "highly relevant to the appellant's service history and pertinent to the question of whether or not he could continue in the army once the systematic bastardisation of him, as described in Lieutenant Colonel Thomae's report, ceased". It was, so the appellant argued: …plainly within the subject matter, scope and purpose of the Personnel Regulations that the third respondent should have regard to whether or not any psychological condition was caused by bullying and bastardisation. Once the appellant's claims of bullying and bastardisation had been vindicated, the medical specialists could then ascertain whether the appellant's condition was likely to improve as a result of that vindication and the cessation of the victimisation of the appellant. 39 The appellant also argued that Lieutenant Colonel Egan was well aware of Lieutenant Colonel Thomae's investigation into the appellant's grievance and might readily have ascertained its outcome. He argued that the report was likely to bear on issues critical to the termination decision. 40 At the hearing of the appeal, counsel for the respondents stated that the third respondent would abide the judgment of the Court; and that only the first and second respondents would present argument. References below to the respondents' arguments are therefore to be understood as references to the arguments of the first and second respondents only. 41 The respondents' argument in opposition to the appellant's first ground is succinctly set out in their written submissions in the following way. The evidence is that the appellant had been given the opportunity to supplement his [statement of reasons] in response to the termination notice in accordance with s 87(2)(e) of the Regulation and had been given a further 21 days from 26 June 2006. The applicant was given no undertaking that a further extension would be granted nor was he told that no decision would be made pending receipt of a further submission from him if no response was forthcoming. The evidence is that the appellant was well aware of that. As at the date of his decision, 8 August 2006, the third respondent had evidence in the form of the Medical Board report upon which he might be satisfied that the applicant was medically unfit. Such 'satisfaction' based decisions are not unexaminable, but it is not for this Court to substitute its own opinion as to the applicant's medical fitness. On judicial review of a 'satisfaction' based decision, the presence of evidence upon which a decision-maker might have reached the conclusion he did will usually, and in this case does, present an applicant with an insurmountable obstacle. 42 The respondents argued that Lieutenant Colonel Thomae's report was not a matter Lieutenant Colonel Egan was bound to consider. They noted that the termination notice to which this report referred was a notice of 6 April 2006 and not the notice of 24 May 2006 that grounded the termination decision at issue in the case. They contended that the grievance issues about bullying and bastardisation were distinct from the issue whether there was a medical ground for termination. In argument, counsel submitted that the report prepared by Lieutenant Colonel Thomae was about decisions made with respect to deployment or training, rather than medical health, and the Redress of Grievance therefore related to different issues from those that fell to the third respondent to consider.

CONSIDERATION 43 Lieutenant Colonel Egan terminated the appellant's service under reg 87(4) of the Personnel Regulations. The termination notice that was given to the appellant pursuant to reg 87(2) stated that the reason for his proposed termination was medical unfitness. Regulation 87(1)(c) of the Personnel Regulations provides that service in the ADF of an enlisted member may be terminated, in accordance with reg 87, for the reason that "the enlisted member is medically unfit (including unfitness because of mental incapacity)". Regulation 87(2) to (5) makes provision for the following procedure: (2) The Chief of an enlisted member's Service may give the enlisted member a termination notice: (a) stating that it is proposed to terminate the enlisted member's service in the Defence Force; and (b) stating the reason for terminating the service; and (c) setting out particulars of the facts and circumstances relating to the reason for terminating the service that are sufficient to allow the enlisted member to prepare a statement of reasons why the service should not be terminated; and (d) inviting the enlisted member to give the Chief a written statement of reasons why the service should not be terminated; and (e) specifying a period of at least 28 days after the date of the notice as the period in which the enlisted member may give the statement of reasons. (3) If: (a) the enlisted member does not give the Chief a statement of reasons in the specified period; and (b) the Chief is of the opinion that the reason for terminating the enlisted member's service has not been affected by a change in circumstances since the termination notice was given to the enlisted member; the Chief must terminate the enlisted member's service in the Defence Force. (4) If: (a) the enlisted member gives the Chief a statement of reasons in the specified period; and (b) having considered the statement, the Chief is of the opinion that the reason for terminating the enlisted member's service: (i) has been established; and (ii) has not been affected by a change in circumstances since the termination notice was given to the enlisted member; the Chief must terminate the enlisted member's service in the Defence Force. (5) The Chief must not terminate the enlisted member's service under this regulation in any other circumstances. 44 As the foregoing account indicates, on 23 May 2006, a delegate of the Chief of Army gave the appellant a termination notice in conformity with reg 87(2) of the Personnel Regulations. As noted, in conformity with reg 87(2)(e), the notice gave him 28 days to give his statement of reasons in opposition to termination, and the appellant gave his statement within this period. Thus, in making his termination decision, Lieutenant Colonel Egan purported to act under reg 87(4). There was no challenge to his evidence that he considered the appellant's statement of reasons, as well as the termination notice, MECRB records and determination, the Commanding Officer's Workplace Disability Report and recommendation, the Army's medical employment policies, and the appellant's psychological and psychiatric reports and health statement. Lieutenant Colonel Egan's statement of reasons specifically referred to all these matters. There was also no dispute that, having regard to these considerations, Lieutenant Colonel Egan formed the opinion that the reason for terminating the appellant's service (namely, that he was medically unfit within the meaning of reg 87(1)(c)) had been established and this reason had not been affected by a change of circumstances since the termination notice of 23 May 2006. Having formed this opinion, Lieutenant Colonel Egan was required by reg 87(4) to terminate the appellant's service. 45 The appellant's case was that the termination decision was vitiated by a denial of natural justice, alternatively, the failure to have regard to a relevant consideration. The denial of natural justice was said to be constituted by: (a) the failure to hear the appellant on his request for an extension of time before the termination decision was made; or (b) the failure to consider the appellant's request for an extension of time before the termination decision was made; or (c) the failure to rule on the appellant's request for an extension of time before the termination decision was made; or (d) the failure to allow the appellant the opportunity to present an alternative medical report to Lieutenant Colonel Egan; or (e) the failure to allow the appellant the opportunity to place Lieutenant Colonel Thomae's report before Dr Chalk. 46 The last-mentioned matter can be put to one side. Since Dr Chalk was not the decision-maker but merely the author of certain reports to which the decision-maker (Lieutenant Colonel Egan) had regard, there is no tenable basis for the contention that the failure to allow the appellant the opportunity to provide Lieutenant Colonel Thomae's report to Dr Chalk constituted a denial of natural justice on the decision-maker's part. 47 This leaves the other formulations of the first limb of the appellant's appeal. On the first limb of his appeal, the appellant relied on the doctrine of natural justice, or the duty to act fairly. What is required of a decision-maker in this regard depends on the circumstances of the case, the subject matter and context, and the legal framework in which the decision is made: see generally Kioa v West (1985) 159 CLR 550 at 584-585 per Mason J. The circumstances are set out above. For this purpose, the Personnel Regulations, especially reg 87, supply the relevant legal framework. As the respondent emphasised, the challenged decision was one to terminate the service of an enlisted member of the ADF. The distinctive character of a decision affecting the service of a member of the armed forces can sometimes be important: see Commonwealth v Welsh (1947) 74 CLR 245 at 258-259 per Latham CJ, with whom McTiernan J agreed, 262 per Rich J, 268 per Dixon J and 274 per Williams J; Marks v Commonwealth (1964) 111 CLR 549 at 573 per Windeyer J; and Coutts v Commonwealth (1985) 157 CLR 91 at 98 per Wilson J, 105 per Brennan J and 120 per Dawson J. In this case, it is apparent that the Personnel Regulations made under the Defence Act 1903 (Cth) ('Defence Act') significantly alter the relationship between the Crown and an enlisted Army member from that at common law. 48 The appellant's essential complaint was that he was not given the opportunity to present Professor Whiteford's report to Lieutenant Colonel Egan before he made his decision on 8 August 2006. The fact is, however, that, prior to that date, the appellant had been given an extended opportunity to present medical evidence in opposition to his termination. First, the termination notice of 23 May 2006 permitted him 28 days to provide his statement of reasons in opposition. Secondly, on 26 June 2006, in response to a communication on the appellant's behalf, Major Adamson, of SCMA, had indicated that the appellant would have a further 21 days in which to obtain another medical report (at this time, said to be from Dr Chalk) and to provide an additional statement of reasons. SCMA later confirmed with the appellant that he would have until 21 July 2006. The appellant's subsequent difficulty arose from the fact that he did not present his additional medical evidence or additional statement of reasons prior to the due date. Further, prior to the due date, he did not notify SCMA that he was unable to do so or that he had an appointment with another specialist psychiatrist on 9 August 2006. 49 The appellant's submission that the Army departed from a representation as to the procedure that it would follow is not borne out by the events outlined above. Major Adamson, of SCMA, had made it clear to Major Smith, on behalf of the appellant, that the appellant did not have an "indefinite extension" and the matter might proceed after the due date (apparently 21 July 2006). There is nothing in Major Adamson's email of 26 June 2006 that supports the conclusion that a request for an extension made beyond the due date would be granted or, indeed, treated in any particular manner. Further, there is nothing in the record of the conversation between Captain Loskill and the appellant (which was not apparently disputed) that contained any such representation. On the contrary, Captain Loskill stated "she didn't like his chances". Moreover, the appellant misled Captain Loskill by failing to state that his forthcoming appointment was with a different psychiatrist (Professor Whiteford) and thereby set in train a sequence of enquiries that, unfortunately for the appellant, did nothing to assist his position. 50 There was, in the circumstances of the case, no failure to allow the appellant the opportunity to present an alternative medical report to Lieutenant Colonel Egan. 51 In these circumstances, in order to make out his case, the appellant was obliged to challenge the way in which Lieutenant Colonel Egan dealt with his further request for an extension. The appellant focussed on the fact that he was not heard on this request for an extension of time. His further request, on 26 July 2006, for an extension - this time to permit him to obtain a report from Professor Whiteford - was made late. As already noted, SCMA had done nothing to lead him to believe he would be granted the extension or that his request would be dealt with in any specific way. The appellant had no reasonable basis for thinking that, once he made his request for an extension of time, there would be no decision regarding his termination until the outcome of his request was notified to him. Nothing had been done that obliged Lieutenant Colonel Egan to notify the appellant before the termination decision was made that he would not entertain the request or that he declined it. The appellant could not therefore derive support for his position from anything said in Re Minister for Immigration and Multicultural Affairs; ex parte Lam (2003) 214 CLR 1 ("Lam"), or from the dicta in Attorney-General (NSW) v Quin (1990) 170 CLR 1 at 40 per Brennan J or Minister for Immigration & Ethnic Affairs v Teoh (1994) 183 CLR 273 at 291-292 per Mason CJ and Deane J. 52 If there was any unfairness to the appellant in proceeding to make a decision without affording him a chance to present Professor Whiteford's report, it did not derive from any departure from any representation by SCMA as to the procedure it would follow. There was nothing in the particular circumstances of the case, in the nature of the decision, or in reg 87 of the Personnel Regulations, that warranted the conclusion that there was a denial of natural justice in making the termination decision because the appellant was not given an opportunity to be heard on his final request for a further extension. Ultimately, this limb of the appellant's appeal boiled down to the proposition that the decision-maker was legally obliged to inform the appellant of a step the decision-maker took along the way to reach his decision. The requirements of natural justice would not extend so far. The failure to hear the appellant on his extension of time request before the ultimate decision was made did not constitute a failure to accord natural justice in making the ultimate decision. 53 The appellant's submission that there was a denial of natural justice because Lieutenant Colonel Egan failed to consider or rule on the request before making the termination decision does not withstand scrutiny. As already noted, Lieutenant Colonel Egan's evidence was that he was aware of the appellant's request of 26 July 2006 and the fact there had been no SCMA response to it at the time he made the decision. It follows that he turned his mind to the request and, in acting inconsistently with it, he declined to grant the extension. 54 Ultimately, the appellant's challenge to the decision to terminate his service focussed on the fact that the termination decision was made the day before his appointment with Professor Whiteford, even though the decision-maker knew that the appellant had the appointment and had asked for an opportunity to present the Professor's report to him. The decision-maker thus deprived the appellant of the opportunity to present the Professor's report to him. The fact was, however, that this proceeding contained no direct challenge to the decision-maker's failure to grant the extension of time. Bearing in mind the restrictive constructions of the word "decision" and "conduct" in the Judicial Review Act, this Act would probably not have supported such a challenge (see Australian Broadcasting Tribunal v Bond (1996) 170 CLR 321 at 341-342 per Mason CJ, with whom Brennan and Deane JJ agreed) although such a challenge could have been made under s 39B of the Judiciary Act. In this Court, the subject of the appellant's challenge has always been Lieutenant Colonel Egan's ultimate decision to terminate the appellant's service with the ADF, and not the decision to refuse a further extension. The appellant did not invoke s 39B of the Judiciary Act to challenge the decision not to extend time to permit him to present Professor Whiteford's report to Lieutenant Colonel Egan. This is reflected in the initiating application for an order of review (see pars 1 to 4A), the reasons for judgment of the primary judge, and the appellant's submissions on appeal. Accordingly, no issue arose as to whether the decision not to grant the further extension was vitiated by some matter, such as a failure to have regard to a relevant consideration (for example, the forthcoming appointment with Professor Whiteford) or having regard to an irrelevant one. 55 The second limb of the appellant's appeal relied on the fact that the decision to terminate his service was apparently made without regard to Lieutenant Colonel Thomae's report. This report was addressed to Brigadier A Smith, Commander 7th Brigade, Enoggera, Queensland and dated 23 June 2006. It was, therefore, completed by 8 August 2006, when Lieutenant Colonel Egan made his decision. 56 The report was made following Lieutenant Colonel Thomae's investigation into the appellant's allegations in his April 2006 email to the CDF. The report upheld a number of the appellant's allegations about his mistreatment at 7 CSSB. Indeed, Lieutenant Colonel Thomae's conclusions highlighted the complexity of the appellant's position. Relevantly, he said: PTE Martincevic has consistently been unable to pass BFA's and his complicated personal circumstances have significantly impacted on his ability to provide service to the ADF. This has been compounded by his transfer to the ARA where his trade skills have been developed in armoured corps units. SCMA's waiver in PTE Martincevic's transfer to the ARA of initial employment training has impacted on his work performance after he left the familiarity of working in an armoured corps unit. His consistently low levels of psychological suitability for service in the ARA, failure to pass a BFA and his basic competency in his trade made the posting to 7 CSSB a difficult one for PTE Martincevic. It is clearly arguable that PTE Martincevic is not suitable to be a soldier in the ARA on his inability to pass his BFA alone. The problem is that there has been a systemic failure to manage PTE Martincevic in 7 CSSB, particularly in the period January 2004 to May 2005. PTE Martincevic has been subject to inappropriate behaviour by his direct superiors, multiple unjustified attempts to discharge him on psych grounds, subjected to improper disciplinary processes and careless supervision whilst under punishment. The mismanagement of PTE Martincevic in 2004 period has had a compounding effect that permeates every aspect of his service at 7 CSSB in 2005 and 2006, in particular the administrative warning and notice of termination. (Emphasis added) 57 Lieutenant Colonel Thomae made numerous recommendations, including the withdrawal of a notice of termination issued on 6 April 2006 (which, as already noted, was not the termination notice that initiated the termination decision here) and: [t]hat consideration is given to forming a panel consisting of a senior military medical officer, a consulting psychiatrist and a military member to review this report and PTE Martincevic's medical and psychiatric records to determine if PTE Martincevic is suitable for service in the ARA. The respondents accepted that this process would have been different from the MECRB process. 58 At the hearing of the appeal, the respondents did not demur to the proposition that Lieutenant Colonel Egan did not consider Lieutenant Colonel Thomae's report into the appellant's allegations of his mistreatment at 7 CSSB. Indeed, the evidence before the primary judge would not have supported the contrary position. 59 The question is whether Lieutenant Colonel Thomae's report was a relevant consideration for the purposes of Lieutenant Colonel Egan's decision-making on 8 August 2006, in the sense that he was obliged to consider the report in deciding whether or not to terminate the appellant's service. Under the Judicial Review Act, the failure to consider a relevant matter is one instance of an improper exercise of power: see s 5(2)(b). This also reflects the common law. Under the Judicial Review Act as at common law, the accepted position is that: (i) the ground of failure to take a relevant consideration into account can only be made out if a decision-maker fails to take into account a consideration he or she is bound to take into account in making the decision; (ii) the considerations a decision-maker is bound to take into account are determined by the statute (in this case, the Defence Act and the Personnel Regulations and instructions made under the Act) conferring the discretion; (iii) if the relevant considerations are not expressly stated, then they must be determined by implication from the subject-matter, scope and purpose of the statute; and (iv) a court will not find that a decision-maker is bound to take a particular matter into account unless an implication to that effect can properly be made: see generally Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24 at 39-40 per Mason J. To succeed, the appellant must show Lieutenant Colonel Egan not only failed to take into account the report prepared by Lieutenant Colonel Thomae, but also that he was bound to take the report into account: Peko-Wallsend at 39. 60 Regulation 87 of the Personnel Regulations does not state expressly what considerations a decision-maker is bound to consider in reaching the opinion in reg 87(4) that precipitates the termination of an enlisted member's service. Regulation 7 of the Personnel Regulations provides limited guidance in so far as it stipulates, in a non-exhaustive way, matters to which a decision-maker must have regard when determining a matter or making a decision under the Regulations, including "the need to ensure the availability of an adequate supply of suitable … enlisted members", "the skills and experience required for the proper performance of duties", "the management of … enlisted members", and the career advancement needs of … enlisted members". There would also be a range of considerations specific to the particular kind of decision to be made. Presumably, given the proposed reason for termination was medical unfitness within reg 87(1)(c), Lieutenant Colonel Egan was bound to consider the appellant's medical records, including MECRB records: see also [5]-[7] to Annex D to DI(A) PERS 116-5 referred to below. The range of matters that would fall within the class of matters that he was bound to consider does not, however, necessarily end here. Such matters would also include any relevant instructions under s 9A of the Defence Act. To understand this later proposition, it is necessary to discuss this provision further. 61 Section 9A falls within Pt II, Div 1 of the Defence Act, which provides for the command and administration of the Defence Force: see generally Bromet v Oddie [2002] FCA 1148 at [27]-[29] per Finn J, an appeal from which was dismissed in Bromet v Oddie [2003] FCAFC 213, and compare [88]-[90] per Dowsett J, with whom Spender J agreed. Section 9A provides for the administration of the Defence Force. Pursuant to s 9A(2), the Secretary and the CDF may issue 'Defence Force Instructions (General)'. Section 9A(3) also contemplates that the Secretary and the CDF may authorise a chief of an arm of the Defence Force to administer matters relating to the arm, and that "instructions or orders issued or made by or with the authority of a chief of staff in relation to the administration of an arm of the Defence Force" shall be identified, in the case of the Army, as "Defence Instructions (Army)". Evidence of such instructions may be given in court "by the production of a document purporting to be a copy thereof": see s 9A(5): see also Bromet v Oddie [2002] FCA 1148 at [41] per Finn J. Various instructions made pursuant to s 9A(3) were in evidence before the primary judge. They included Defence Instructions (Army) PERS 116-5 Separation of Regular Army Soldiers, Army Reserve Soldiers and Soldiers on Full-Time Service - Policy and Procedures ('DI(A) PERS 116-5') and Defence Instructions (Army) PERS 124-29 Medical Employment Classification System in the Australian Army ('DI(A) PERS 124-29'). Both had a bearing on the termination decision. 62 DI(A) PERS 116-5 set outs "the Army specific policy, procedures and management aspects of separations": [5]. Amongst other things, the aim of DI(A) PERS 116-5 is "to specify procedures and management of … involuntary separations and medical separations": [4]. Part 4 of DI(A) PERS 116-5 deals with involuntary separations; and Pt 6, with medical separations. Annex D to DI(A) PERS 116-5, entitled "Termination Notice Procedures", specifies, in a non-exhaustive way, certain factors that a decision-maker on a proposed termination should take into account in making a decision to terminate a soldier's service. Paragraphs 3 and 4 of Annex D read as follows: Factors taken into consideration 3. When the Discharge Authority is deciding a member's suitability for retention, the following factors should be (but not limited to) considered: a. the evidence in support of the reasons for termination of service contained in the [termination notice]; b. age, rank and length of service of the soldier; c. complete service history, including adverse and supporting material; d. likelihood of repetition; e. the contents of the Statement of Reasons; f. the CO's recommendation; and g. pertinent ADF policy stipulation. Medical specific Termination Notice Areas 4. Medical discharge [termination notices] are very similar to normal [termination notices] outlined above; however, the determinations and actions on new or unconsidered medical information does produce some areas of concern. DI(A) PERS 116-5 defines "Discharge Authority" as "an authorised person (or position) that may make determinations of discharge under either the Defence (Personnel) Regulations 2002, the Defence Act 1903, or both. …": see [9]. The effect of [4] of Annex D to DI(A) PERS 116-5 is that "medical discharge" attracts the same kind of considerations as non-medical discharge, as well as additional considerations. The effect of DI(A) PERS 124-29 has also to be borne in mind. 63 This Court considered the status of Defence Instructions in Bromet v Oddie [2003] FCAFC 213 at [91]-[94] per Dowsett J, who referred to Bromet v Oddie [2002] FCA 1148 at [39] per Finn J. Lieutenant Colonel Egan was bound to have regard to DI(A) PERS 116-5, as well as DI(A) PERS 124-29, in making his decision: see Bromet v Oddie [2002] FCA 1148 at [39] per Finn J and Bromet v Oddie [2003] FCAFC 213 at [91]-[94], [65]-[67] per Dowsett J. Lieutenant Colonel Egan referred to both Instructions in his reasons for decision. Annex D to DI(A) PERS 116-5 apparently called on him to have regard to the appellant's complete service history. Indeed, Lieutenant Colonel Egan said he had regard to this, although his statement cannot be conclusive on the point. 64 Even apart from DI(A) PERS 116-5, the subject matter and context of the termination decision make it virtually inconceivable that a decision-maker under reg 87 would not be obliged to consider a soldier's service history. This is because a soldier's service history would in some way lie at the heart of any proposed termination decision and has some bearing on the proposed reason for termination (which fell for consideration in the opinion to be formed under reg 87(4)). A soldier's service history was therefore a relevant consideration, in the sense used in Peko-Wallsend at 39. Naturally enough, the weight that a decision-maker might give this service history would vary depending on the circumstances of the case, including the proposed reason for termination, especially perhaps where "medical discharge" was in question. 65 Lieutenant Colonel Thomae's report in response to the appellant's complaint to the Chief of the Defence Force was a not insignificant part of the appellant's service history. The report elucidated much of this history, particularly at 7 CSSB. This was the history contemporaneous with his adverse medical reports. If Lieutenant Colonel Egan was bound to consider the appellant's completeservice history (as DI(A) PERS 116-5 indicated) or merely that part of his service history that related to the period under review, then, subject to two other matters, he was bound to consider Lieutenant Colonel Thomae's report in forming his opinion as required by reg 87(4) of the Personnel Regulations. 66 A decision-maker is required to make a decision on the basis of material available to him at the time the decision is made. Lieutenant Colonel Thomae's report came into existence and was forwarded along the appropriate army channels about a month after the termination notice. The respondents did not demur to the proposition that, as at 8 August 2006, the report was available to the Chief of Army and, therefore, to Lieutenant Colonel Egan. That is, it constituted part of the material available to the Chief of Army and thus to his delegate, Lieutenant Colonel Egan, at the time of the termination decision. Furthermore, bearing in mind the appellant's letter of 26 July 2006, Lieutenant Colonel Egan must have been aware that, some months earlier, Lieutenant Colonel Thomae had been charged with the preparation of a report to the CDF about the appellant's allegations regarding his mistreatment at 7 CSSB and that the appellant contended that the report might be relevant to his medical condition and, therefore, his case in opposition to termination. 67 Even where a decision-maker fails to take into account a matter as he was bound to do, a court will not necessarily set aside the decision. A factor may be of such little importance that the court may decide that the failure to take it into account could have had no material effect on the decision under review. The present is not such a case. 68 Lieutenant Colonel Egan was obliged to terminate the appellant's service if he formed the opinion referred to in reg 87(4) of the Personnel Regulations. This was an opinion as to whether: (a) the proposed reason for termination (here, medical unfitness) was established; and (b) the reason was unaffected by a change in circumstances since the termination notice was given to the enlisted member. The report and its findings were capable of constituting a change in circumstances affecting the proposed reason for termination. Certainly, the appellant would have had it so. The appellant's case at the time of the termination decision was that his medical condition was attributable to his mistreatment at 7 CSSB and would abate if he were no longer subject to the misconduct. In conformity with this, the appellant sought to have a medical opinion on the significance of Lieutenant Colonel Thomae's report for his medical condition. The fact that Lieutenant Colonel Thomae's investigation resulted in findings to the effect that the appellant had been the victim of misconduct at 7 CSSB lent some objective support to the appellant's position. At the least, it was supportive of the basal fact on which it depended. Lieutenant Colonel Egan might have taken a different view of the credibility of the appellant and the nature of his case if he had had regard to Lieutenant Colonel Thomae's report. Alternatively, Lieutenant Colonel Egan might simply have considered that the findings in the report supported the appellant's retention, rather than termination. He might also have taken another, altogether different, view of the report. It is not for the Court to guess what view Lieutenant Colonel Egan would have taken of the report and its significance. It is enough that it cannot be said that the failure to have regard to the report was so insignificant that it could not have materially affected the decision: see Peko-Wallsend at 46 per Mason J. 69 As we have seen, the respondents argued that the investigation into the appellant's complaints of mistreatment at 7 CSSB was a different administrative process from an inquiry as to a soldier's medical fitness for termination of service purposes. This may be accepted. The object of each process was also different. It does not follow, however, that the outcome of the investigation into the appellant's complaints had no bearing on the formation of an opinion as required by reg 87(4). Although the perspectives were different, both processes concerned the appellant, particularly during his posting to 7 CSSB. In order to form the opinion that reg 87(4) required, for the reasons already stated, Lieutenant Colonel Egan might have attached some significance to Lieutenant Colonel Thomae's report that materially affected his assessment. 70 For the reasons stated, having regard to the further evidence that should be received on the appeal, the appeal should be allowed, the order of the primary judge dismissing the application for an order of review should be set aside, and in lieu thereof, orders should be made setting aside Lieutenant Colonel Egan's termination of the appellant's service. Consequential costs orders should also be made. Leave should also be given the appellant to amend his notice of appeal in the terms notified to the Court by his counsel on 4 September 2007. I certify that the preceding seventy (70) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justices Finn, Kenny & Greenwood .

Associate: Dated: 29 October 2007 Counsel for the Appellant: Mr J. Fenton

Solicitor for the Respondent: Dibbs Abbott Stillman