Consideration
19 In my view the respondent's objections to the admissibility of the RCM material are not substantiated. I have formed this view for the following reasons.
20 First, I reject the contention of the respondent that the RCM material is irrelevant in the context of the judicial review application before the Court.
21 It is common ground that a decision may be legally unreasonable if the decision-maker failed to take into account information that the decision-maker knew (or ought reasonably to have known) was readily available and centrally relevant. The leading authority on this point appears to be the decision of Wilcox J in Prasad v Minister for Immigration & Ethnic Affairs (1985) 6 FCR 155 at 169-170, where his Honour said:
I have been unable to find any discussion in the authorities of this question, possibly because the facts will often be clear. Consequently, I express no more than a tentative view. But in principle, as it seems to me, the intermediate position is correct. Under s 5(l)(e) and s 5(2)(g) the court is concerned with the manner of exercise of the power. A power is exercised in an improper manner if, upon the material before the decision-maker, it is a decision to which no reasonable person could come. Equally, it is exercised in an improper manner if the decision-maker makes his decision - which perhaps in itself, reasonably reflects the material before him - in a manner so devoid of any plausible justification that no reasonable person could have taken this course, for example by unreasonably failing to ascertain relevant facts which he knew to be readily available to him. The circumstances under which a decision will be invalid for failure to inquire are, I think, strictly limited. It is no part of the duty of the decision-maker to make the applicant's case for him. It is not enough that the court find that the sounder course would have been to make inquiries. But, in a case where it is obvious that material is readily available which is centrally relevant to the decision to be made, it seems to me that to proceed to a decision without making any attempt to obtain that information may properly be described as an exercise of the decision-making power in a manner so unreasonable that no reasonable person would have so exercised it. It would follow that the court, on judicial review, should receive evidence as to the existence and nature of that information.
(Emphasis added.)
22 This principle has been accepted by the Full Court in such cases as Luu v Renevier (1989) 91 ALR 39 at 49-50 and further by this Court in Chen v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 1934 at [18], SZIED v Minister for Immigration and Citizenship [2007] FCA 1347 at [37]-[40] and Telstra Corporation Ltd v Australian Competition and Consumer Commission (2009) 179 FCR 437; [2009] FCA 757 at [385].
23 As Moore J further observed in SZIED:
40. … In Prasad, Wilcox J spoke of circumstances where it was obvious that material was readily available which was centrally relevant. But his Honour's observations concerned a challenge to a decision by reference to s 5(1)(e) and s 5(2)(g) of the Administrative Decisions (Judicial Review) Act 1977 (Cth), namely on the basis that the decision involved the improper exercise of a power because the decision was so unreasonable that no reasonable person could have so exercised the power. Importing the observations of Wilcox J (quoted at [37] above) into a case such as the present, it would be necessary to determine to whom it was obvious that material was readily available. Is that an assessment made after the event by reference to facts proved in the judicial review proceedings (facts such as the Tribunal had the 2003 and 2005) but without proof that the Tribunal member knew of the documents? Or does it additionally require proof that the Tribunal member was aware that the documents were held by the Tribunal or at least knew that it was likely that such documents were held by the Tribunal? The answer is suggested by Wilcox J who referred, before the quoted passage, to circumstances where the decision maker unreasonably fails to ascertain relevant facts which he or she knew to be readily available to him or her (at 169.9). In the present case one would have thought it would be necessary to demonstrate that the Tribunal member knew of the documents existence or, perhaps, ought to have known that it was likely the documents existed and were readily available…
(Emphasis added.)
24 Put simply, in sub-ground 1(b) of the originating application the applicant claims that, in deciding to terminate the service of the applicant on the same or substantially the same grounds as the DFDA charges of which he had been acquitted, the delegate did not consider the RCM material, and accordingly, the respondent's decision was unreasonable. In terms of the comments of Moore J in SZIED, there is no reason for me to conclude that the RCM materials were not readily available to the decision-maker. The second termination notice specifically referred to the DFDAT decision, which in turn referred to the RCM, and annexed the transcript and exhibits of the RCM hearing. The decision-maker in her decision stated she had regard to the second termination notice and also the applicant's response to that notice in which he referred to being acquitted in the RCM (and subsequently by the DFDAT) of charges on the same or substantially the same grounds. I consider such materials were centrally relevant to the decision of the decision-maker.
25 Second, it is difficult to understand how the RCM material is not relevant to the other sub-grounds in ground 1, namely a failure to take into account a relevant consideration, and improper purpose on the part of the decision-maker. To the extent that the decision may have been infected with error as alleged by the applicant, the RCM material which the decision-maker presumably took in to account (or should have taken into account) is prima facie relevant to the Court's review of the decision.
26 The respondent took me to the decision of the Victorian Court of Appeal in East Melbourne Group (2008) 23 VR 605 at [312], where their Honours said:
312 We put to one side a body of law which addresses the situation where a decision is unsupported by any reasons. It is permissible in such a case to look behind the decision to the material before the decision-maker, in an attempt to discern the reasons for the decision. Documents placed before the decision-maker may be considered. The court may be able to say that the decision could be explained by such material. The inference may then be available that the information contained in the documents was taken into account and provided the reason for the decision. But when a statement of reasons has been provided, a failure to refer to particular matters or give other reasons will justify the inference that such other matters or reasons were not relied upon.
(Emphasis added, footnotes omitted.)
27 To the extent that the respondent submitted that an absence of reference to the RCM material by the decision-maker in the termination decision means that that material is not relevant, I do not accept that as a proposition. At particular (13) of ground 1, the applicant specifically claims that the decision-maker failed to take into consideration the RCM material. It is a fundamental principle in administrative decision-making that relevant considerations must be taken into account: Mason J in Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24; [1986] HCA 40, at 39. As Mason J further observed at 45 in that decision:
It would be a strange result indeed to hold that the Minister is entitled to ignore material of which he has actual or constructive knowledge and which may have a direct bearing on the justice of making the land grant, and to proceed instead on the basis of material that may be incomplete, inaccurate or misleading.
(See also, for example, Ali v Minister for Home Affairs [2020] FCAFC 109 at [44].)
28 It follows that if the RCM material was such that the decision-maker was bound to take it into account as a relevant consideration, any absence of reference to that material in the termination decision is not determinative of its relevance.
29 Third, it is not uncommon for evidence to be admitted provisionally subject to relevance. Section 57 of the Evidence Act contemplates such rulings. However, in circumstances where there is prima facie relevance of the RCM material to the grounds of the application, then as a general proposition there is no reason to admit it only provisionally.
30 I also consider that the respondent's reliance on the decision of Mildren J in Majindi (2012) 31 NTLR 150 is misconceived. His Honour in that case found it was unnecessary to determine whether there was estoppel, and by consent the Court had received evidence de bene esse because of a dispute over the admissibility of evidence concerning that issue. It is unremarkable that the Court in that case should have adopted that position in light of the consent position advanced by the parties and on the facts of that particular case. This does not support the adoption by me of a similar approach in the circumstances of the present case. Indeed, I respectfully consider the observations of his Honour in Majindi at [59] to be irrelevant to the proceedings before me.
31 Fourth, the respondent submitted that it would be appropriate for the Court to deal first with ground 2, because the success or failure of ground 2 would have an impact on the success of ground 1. This was another reason, in the respondent's submission, for provisional admission of the RCM material in respect of ground 1.
32 Notwithstanding the respondent's characterisation of the applicant's case, I am not persuaded that in order to substantiate ground 1 (or its sub-grounds) the applicant needs to first substantiate ground 2. In ground 2, the applicant claims pursuant to s 5(1)(f) of the ADJR Act that the respondent was estopped from terminating the applicant's service on the same or substantially the same grounds as the DFDA charges of which the applicant had been acquitted. Particulars (10), (11) and (13) of ground 1 raise different issues. In particular (10), the applicant claims that by deciding to terminate the service of the applicant on the same or substantially the same grounds as the DFDA charges of which he had been acquitted, and without considering the RCM material, the respondent's decision was unreasonable (rather than impermissible as ground 2 contends). Particular (11) contends in essence that the proper conclusion for the Court to draw from the fact that the termination decision was based on the same or substantially the same grounds as that which were rejected by the RCM and the DFDAT was that the termination decision was an improper exercise of the power under s 24(1)(c) of the Defence Regulation. Particular (13) contends that when making the termination decision, the respondent failed to take into account that the grounds of the termination decision were the same or substantially the same as the DFDA charges of which the applicant had been acquitted, which was a relevant consideration.
33 While each ground has the same base thread - namely that the termination decision was on the same or substantially the same grounds as the DFDA charges in respect of which the applicant had been acquitted - clearly different principles of law are relevant in respect of these grounds. Issue estoppel, which is the subject of ground 2, is not the base thread running through these grounds of review. Indeed, it is not outside the realm of possibility that the applicant could succeed on ground 1 but be unsuccessful in respect of ground 2. A failure on the part of the applicant to substantiate a case that the respondent was estopped from making the termination decision does not appear determinative of the questions raised in ground 1. Ground 1 claims errors infecting the decision-making process of the decision-maker. Ground 2, as the respondent has submitted, raises the substantive rule of law which is issue estoppel. However ground 2 is not a complete answer to ground 1. Speculation about these points is no reason at this stage to limit the evidence on which the applicant seeks to rely.
34 Fifth, the respondent relied on Part 3.5 of the Evidence Act, which provides:
91. Exclusion of evidence of judgments and convictions
(1) Evidence of the decision, or of a finding of fact, in an Australian or overseas proceeding is not admissible to prove the existence of a fact that was in issue in that proceeding.
(2) Evidence that, under this Part, is not admissible to prove the existence of a fact may not be used to prove that fact even if it is relevant for another purpose.
Note: Section 178 (Convictions, acquittals and other judicial proceedings) provides for certificate evidence of decisions.
92. Exceptions
(1) Subsection 91(1) does not prevent the admission or use of evidence of the grant of probate, letters of administration or a similar order of a court to prove:
(a) the death, or date of death, of a person; or
(b) the due execution of a testamentary document.
(2) In a civil proceeding, subsection 91(1) does not prevent the admission or use of evidence that a party, or a person through or under whom a party claims, has been convicted of an offence, not being a conviction:
(a) in respect of which a review or appeal (however described) has been instituted but not finally determined; or
(b) that has been quashed or set aside; or
(c) in respect of which a pardon has been given.
(3) The hearsay rule and the opinion rule do not apply to evidence of a kind referred to in this section.
93. Savings
This Part does not affect the operation of:
(a) a law that relates to the admissibility or effect of evidence of a conviction tendered in a proceeding (including a criminal proceeding) for defamation; or
(b) a judgment in rem; or
(c) the law relating to res judicata or issue estoppel.
35 The respondent submitted that s 91 of the Evidence Act would exclude the RCM material as evidence that the applicant was innocent of the DFDA charges.
36 Key principles referable to s 91 are set out in S Odgers, Uniform Evidence Law (15th ed, Lawbook Co, 2020). It is useful to set out the following summary:
EA91.60 General Comments
Section 91 establishes a prima facie rule that evidence of a decision or judgment, or a finding of fact, in a proceeding is not admissible to prove some fact that was in issue in those proceedings. In addition, even if the evidence is relevant and admissible for some other purpose, it may not be used for the purpose of proving such a fact. As Simpson J explained in Attorney General (NSW) v Martin [2015] NSWSC 1372 at [13], whether this provision operates to exclude the use of decisions or judgments "will depend upon an analysis of three things - (i) what facts were in issue in those proceedings; (ii) what facts were found in the decisions; and (iii) the use to which the [party adducing the evidence] seeks to put those judgments - that is, what facts [the party] seeks to prove by their use". In Ainsworth v Burden [2005] NSWCA 174, Hunt AJA (Handley and McColl JJA agreeing) stated at [109]
It is clear that s 91 does not prevent the tender of judgments which contain findings as to the existence of facts relevant to the issues in the trial in which they are tendered. It merely prevents the judgments from being tendered for the purpose of proving the existence of those facts. If they are admissible for some other purpose - as they are in the present case, in order to demonstrate that they would have persuaded any honest-minded person that the defendant's allegations were false - they may not then be used to prove the existence of those facts, a consequence which would otherwise have flowed from s 60 of the Evidence Act.
Thus, this provision does not prevent evidence being given of judgments for the purpose not of establishing the truth of the facts found, but to establish the terms of a judgment and its effect - as expressly recognised by the "Savings" provision in s 93. Equally, it will not prevent evidence being given of a "decision" if there was no finding of any fact in issue in the proceedings. It will not prevent evidence being given of a "decision" if the facts thereby evidenced are not "a fact that was in issue in that proceeding". It is also implicit in the wording of the provision that it only applies where evidence of a decision or judgment, or a finding of fact, is sought to be used in other proceedings. In King v Muriniti [2018] NSWCA 98, Basten JA (Gleeson JA agreeing) stated at [14]:
For s 91 to be engaged there must be a fact which was found in the earlier proceeding, was in issue in that proceeding and is in issue in the current proceeding. In other words, the reference at the end of s 91(1) to "that proceeding" implies two separate proceedings.
Furthermore, the general rule is subject to a number of exceptions, provided for in s 92. Of course, even if the provision does not apply, other provisions in the Act, such as the opinion rule and the hearsay rule, may have application. Further, allowing the evidence for a limited use may raise the question of discretionary exclusion.
(Footnotes omitted.)
37 I also note the following observations of Schmidt J in Attorney-General (NSW) v Mohareb [2016] NSWSC 1823 in relation to the application of s 91 to a judgment under the Vexatious Proceedings Act 2008 (NSW):
26. The term "finding of fact" is not defined in the Evidence Act. While issues which arise for resolution in particular proceedings will very frequently depend on findings of fact made on the evidence, not every finding made, or conclusion reached on matters in issue involves a finding of fact. In some cases they involve the resolution of questions of law and often, the resolution of questions of mixed fact and law.
…
32. That does not render such judgments inadmissible under s 91 of the Evidence Act, in later proceedings, including those brought under the Vexatious Proceedings Act, unless the judgment is sought to be tendered to prove the existence of a fact that was in issue in the earlier proceeding. If tendered to establish the existence of the proceedings, who the parties were and how a question of law, or a question of mixed fact and law, was resolved in those proceedings, s 91 does not render the judgment inadmissible.
(Emphasis added.)
38 Section 91 of the Evidence Act does not prevent the admission into evidence of the RCM material in the present case. For example, I understand that a fact that was in issue in the RCM was the authority or otherwise of the applicant to access various email accounts, and the RCM and the DFDAT made determinations in relation to that fact. However, the applicant does not rely on the RCM material as evidence of that fact. Consistently with such authorities as Attorney-General v Martin, Ainsworth v Burden, and Attorney-General v Mohareb, the only basis in the application before this Court on which the applicant relies on the RCM material is to demonstrate that the grounds of the termination decision were the same or substantially the same as the DFDA charges of which he was acquitted. Such reliance is not prevented by the terms of s 91 of the Evidence Act.
39 Finally, the respondent submitted that the use of the evidence in the RCM material should be limited pursuant to s 136 of the Evidence Act, which empowers the Court to limit the use to be made of evidence if there is a danger that a particular use of evidence might be unfairly prejudicial to a party or be misleading or confusing. To the extent that the applicant claims that in making the termination decision the respondent failed to take into account that the grounds of termination were the same or substantially the same as the DFDA charges of which the applicant had been acquitted, it seems completely reasonable and uncontroversial for that material to be before the Court. Any "danger" or confusion, in respect of either the Court or the parties relating to admission of the RCM material, in terms of s 136 of the Evidence Act, has not been identified by the respondent.