Sinnott v Chief of Defence Force

LOGAN J: 1 On 18 December 2019, a Ms Athena Sinnott, a former member of the Royal Australian Air Force (RAAF), instituted proceedings in the original jurisdiction of the Court pursuant to the Administrative Decisions (Judicial Review) Act 1977 (Cth) (ADJR Act), naming the Chief of Defence Force (CDF) as respondent. The application also sought to invoke, further or alternatively the Court's jurisdiction under s 39B of the Judiciary Act 1903 (Cth). 2 The background to the judicial review application is stated on the face of that application in these terms: 1. Between 14 September 2004 and 5 February 2005, and 26 September 2006 and 29 January 2018, the Applicant served as a permanent enlisted member in the Royal Australian Air Force (the "RAAF"). 2. In the course of her service in the RAAF, the Applicant suffered from post-traumatic stress disorder, generalised anxiety disorder and major depression disorder, after which she received treatment for all those conditions and fully recovered from those conditions. The Applicant's consulting psychiatrist confirmed that all those conditions have been fully remitted or resolved, and the Applicant was able to continue to serve in the RAAF with no impairment or condition of any type whatsoever. 3. On 29 January 2018, after the Applicant contested the Respondent's proposed action on numerous grounds to cease the Applicant's service in the RAAF, the Applicant had no option but to involuntarily separate from the RAAF. 4. On or about 2 August 2018, the Applicant applied to be re-enlisted in the RAAF. 5. On 20 August 2018, the Respondent rejected the Applicant's re-enlistment application. 6. On or around 18 September 2018, the Applicant submitted an appeal with the Australian Defence Force seeking a review of the Respondent's decision rejecting the Applicant's re-enlistment application. 7. On 29 November 2018, the Respondent rejected the Applicant's appeal. 8. On 1 March 2019, the Applicant submitted a request for a second level review of the decision rejecting her application for re-enlistment in the Australian Defence Force. 9. On 9 August 2019, the Respondent rejected the Applicant's second level review application. 3 Given that the decision of a delegate of the respondent CDF was made on 9 August 2019, rejecting Ms Sinnott's application to re-enlist in the Australian Defence Force (ADF), insofar as the application sought to rely upon the ADJR Act, an extension of time was necessary. The grounds specified in the judicial review application were these: 1. Pursuant to section 5(1)(e) of the Administrative Decisions (Judicial Review) Act 1977 (C'th) (the "ADJR"), the Applicant was aggrieved by the Respondent's decision rejecting the Applicant's application for re-enlistment in the Australian Defence Force, as the making of the said decision was an improper exercise of the power conferred by the enactment in pursuance of which it was purported to be made. 2. The said power was conferred upon the Respondent under the Defence Act 1903 (C'th), pursuant to which the Respondent was empowered to enlist a person in the Australian Defence Force under section 12(1)(b) of the Defence Regulation 2016 (C'th). 3. Pursuant to section 12(3) of the Defence Regulation 2016 (Cth), before a person is appointed or enlisted, consideration must be given to whether the person is a fit and proper person to perform the duties such as an officer or enlisted member. 4. The making of the decision by the Respondent (by his delegate at the Defence Force Recruiting) rejecting the Applicant's application for re-enlistment in the Australian Defence Force was an improper exercise of the power conferred upon the Respondent because: (a) The Respondent had failed to take into account that the Applicant was a former service woman with previous military experience; (b) The Respondent had therefore failed to take into account the Respondent's own policy with respect to medical standards that applied to former military personnel; and (c) Therefore, contrary to section 5(2)(a) of the ADJR, the Respondent had failed to take a relevant consideration into account in the exercise of a power. 5. The making of the decision by the Respondent (by his delegate at the Defence Force Recruiting) rejecting the Applicant's application for re-enlistment in the Australian Defence Force was an improper exercise of the power conferred upon the Respondent because: (a) The Respondent had applied a policy that applied for initial candidates rather than for people who had previous military experience; and (b) Despite the Applicant having previously served in the Australian Defence Force and having previous military experience, contrary to section 5(2)(f) of the ADJR, the Respondent had exercised a discretionary power in accordance with its own rule or policy without regard to the merits of the Applicant's case (i.e. no medical conditions and previous medical conditions being fully remitted and resolved). 6. The making of the decision by the Respondent (by his delegate at the Defence Force Recruiting) rejecting the Applicant's application for re-enlistment in the Australian Defence Force was an improper exercise of the power conferred upon the Respondent because: (a) First, the Applicant did not suffer from any medical conditions; (b) Secondly, any conditions that the Applicant had previously suffered, namely from post-traumatic stress disorder, generalised anxiety disorder and major depression disorder had been fully remitted or resolved; (c) Thirdly, the Applicant was fit and healthy, and was fully deployable at the Respondent's pleasure; (d) Fourthly, the Applicant was a former service woman in the Australian Defence Force with previous military experience; (e) Fifthly, the Respondent had applied a policy on medical standards that applied for initial candidates rather than its own policy under Chapter 4 of the Defence Health Manual, Volume 2, Part 005 which specifically applied for people with previous military experience. That policy mandated that it may be desirable for those candidates with previous military experience to be accepted for entry even though they may not meed the medical standards for initial candidates. However, the Respondent had incorrectly applied the medical standards by applying the standards for initial candidates rather than applying the correct policy that applied for people with previous military experience, such as the Applicant; (f) Sixthly, the Applicant was, at the time she applied to be re-enlisted in the Australian Defence Force on or about 2 August 2018, and a decision was made to reject her application on 9 August 2019 after the Applicant submitted a second level review on 1 March 2019, the Applicant was a fit and proper person to be able to perform the duties of an enlisted member; and (g) Therefore, contrary to section 5(2)(g) of the ADJR, the Respondent had exercised a power that was so unreasonable that no reasonable person could have so exercised the power to reject the Applicant's application for re-enlistment in the Australian Defence Force. [sic] 4 On the same day as the judicial review application was filed, an affidavit of Ms Sinnott was filed. An affidavit of Mr Dale Thomas Hooper, a solicitor and principal of Brookwater Legal, which firm was the solicitor on the record at that stage for Ms Sinnott, was also filed (the December affidavit). 5 The proceeding was listed for first case management before the Court on 4 February 2020. Mr Hooper remained, at that stage, Ms Sinnott's solicitor on the record. At that time, the CDF, a solicitor from TurksLegal, the firm acting for him, foreshadowed an application in relation to the use beyond the judicial review proceeding of the December affidavit. 6 At the case management hearing, I made directions with respect to the future conduct of the judicial review application, which included provision for mediation. I also made an order limiting the access to the December affidavit. 7 As it transpired, and happily for each of the parties to the judicial review application, it was possible, consensually, to resolve the judicial review application without a need to hear and determine either an extension of time application or the substantive public law merits of the application. That then left for resolution the application which the solicitors for the CDF had by then formulated. The CDF applied to use the December affidavit beyond the present proceedings. That formulation is more particularly found in a letter sent by TurksLegal to Mr Hooper of 26 February 2020, which stands in place of an interlocutory application. 8 In short, the CDF wishes to use the December affidavit in the following ways: (1) providing a copy of the affidavit to appropriate ADF members for the purpose of investigating and considering any security, disciplinary or administrative issues that might arise on the content of the affidavit; and (2) providing a copy of the affidavit to the Queensland Legal Services Commissioner for the purpose of any investigation or consideration of issues that might arise from the content of the affidavit. 9 It is that interlocutory application which now falls for determination as the only remaining issue in the proceedings. Appropriately, the CDF has made that application on notice to Mr Hooper. I have had the benefit of written and, today, oral submissions in relation to the CDF's application. 10 When it was initially foreshadowed, I must confess to an initial concern that the application might entail an unfortunate endeavour to intimidate a person who was solicitor on the record in respect of a contested proceeding in this Court. That, of course, would be conduct of the most serious kind. It was, though, quite unnecessary, on 4 February 2020, to reach any concluded view at all in relation to that. On the basis of the evidence tendered in support of the CDF's application, I am quite satisfied that there was never any such intent on the part of the CDF or any of his subordinates. Rather, the application raises a very particular question as to whether, in the circumstances prevailing, there ought to be permission granted to the CDF for the uses set out in his interlocutory application. 11 Some further background is necessary before turning to the merits of that application. 12 In addition to being a solicitor in private practice, Mr Hooper is also, or was at the time he made the December affidavit, himself a member of the ADF. Indeed, so much is apparent on the face of the December affidavit. He there states that he is a specialist reserve legal officer in the RAAF holding the rank of Wing Commander. He further deposes in the affidavit to having access, via access he enjoys in that military capacity, to various ADF policies and rules via the Defence Restricted Network (DRN) to a copy of the Defence Health Manual. Exhibited to the December affidavit is an extract of that manual, being the policy at chapter 4 relating to guidelines on medical standards for candidates for enlistment with previous military service. 13 There is no doubt whatsoever, indeed so much was conceded on behalf of the CDF, that the particular document extracted and annexed to the December affidavit was directly relevant to the judicial review application. It was also directly relevant insofar as any extension of time was required in respect of that application. 14 As regards to Hunter Valley Development v Cohen (1984) 3 FCR 344 discloses, relevant considerations in relation to whether or not to grant an extension of time include whether an explanation has been given for the delay, the adequacy of that explanation, and the prospective merits of the application, as well as any prejudice which might be suffered by the proposed respondent. 15 However one approaches the annexure to the December affidavit, it was relevant. It is a document which always would have had to have been included either in a bundle of documents before the CDF's delegate at the time when the enlistment refusal decision was made, as prepared by Court order by the CDF, or, in any event, would have been the subject of an order for particular discovery. 16 The extract from the manual discloses on its face that it is a document "For Official Use Only". It is in that marking and in the accessing of what used to be the DRN, presently known as the Defence Protected Network, that the grounds of the CDF's present application are found. 17 Group Captain Christopher Taylor, who is the present Director of Air Force Legal Services within the RAAF, has made an affidavit which has been read without objection in support of the CDF's interlocutory application. His evidence is that in his capacity as a member of the Air Command Legal Panel, Mr Hooper - or perhaps one should state Wing Commander Hooper - cannot represent individual members of the ADF in a Court proceeding of the present kind in that military capacity. He also states that there is no express rule or policy within the ADF which would have prevented Mr Hooper's acting in his private capacity for individual members of the ADF, subject, of course, to normal legal professional ethical obligations. 18 Strictly speaking, of course, Ms Sinnott, by virtue of the challenged decision was not a member of the ADF, because a decision had been made not to re-enlist her. The DRN, now the DFN, is, and I infer was in December, the ADF's internal computer network accessible only by authorised users who had been allocated a username and password by the ADF. Use by ADF members of the network is generally restricted to official ADF business. As to the marking on the face of the manual "For Official Use Only", Group Captain Taylor deposes, and I find, that it is a protective marking applied to ADF information: …which requires special handling due to legal, regulatory, privacy or Cabinet requirements or other sensitivities. His further evidence, which I accept, is that documents with that protective marking: …are only to be used for official purposes and may only be discussed outside Defence in accordance with certain legislative and administrative requirements. 19 At the time when the December affidavit was made, filed and served, the annexed extract from the manual was not publicly available. Quite properly and fairly, Group Captain Taylor also deposes that, since then, the need for that particular protective marking on the manual has been reviewed, and the protective marking of "For Official Use Only" has been removed. Group Captain Taylor deposes, on behalf of the CDF, that he has: … formed a belief that there has potentially been unauthorised access to documents stored in the DPN (that is, access for a purpose other than Defence business) and unauthorised disclosure of a confidential Defence document (ie: the annexure to the Hooper affidavit which was not publicly available at the time. These are matters that need to be investigated by the ADF. 20 Some care needs to be adopted in relation to the term or the adjective "confidential". That is because "confidential" is also a national security classification, albeit one being phased out. There is no suggestion whatsoever that the extract from the manual annexed to the December affidavit ever had a national security classification. I read Group Captain Taylor's use of the term "confidential" as meaning nothing more than a use in accordance with the prevailing requirements at the time in relation to a document marked "For Official Use Only". 21 Quite frankly and properly, Group Captain Taylor also concedes in his affidavit evidence, that he does not believe that the ADF is mandatorily required to investigate the use of the annexure to that December affidavit. That is because the prevailing policy found in the Commonwealth's Protective Security Policy Framework does not mandate an investigation where a document is marked "For Official Use Only". He does, though, adhere to his belief as to a need for an internal investigation, at least, and perhaps also a use in relation to any referral to the Legal Services Commissioner. 22 For his part, Mr Hooper has provided, and read and relied upon a further affidavit in which he deposes that, prior to the first case management hearing he had reported, within the RAAF chain of command, to his immediate superiors, who include Group Captain Taylor, his dissemination of the annexure to the December affidavit. His evidence also discloses the subsequent exchanges within the RAAF on that subject. It appears that one sequel to those exchanges is that a view had been formed by the Australian Government Security Vetting Agency that there was not a need to revise Mr Hooper's military security access authority. It is not necessary in order to resolve the present application to delve further into the exchanges within the RAAF chain of command. 23 In Liberty Funding Pty Ltd v Phoenix Capital Ltd (2005) 218 ALR 283 at [31] (Liberty v Phoenix), the Full Court take up views which have been expressed in the original jurisdiction by Wilcox J in Springfield Nominees Pty Ltd v Bridgelands Securities Ltd (1992) 38 FCR 217 (Springfield Nominees): [31] In order to be released from the implied undertaking, it has been said that a party in the position of the appellants must show "special circumstances": see, for example, Springfield Nominees Pty Ltd v Bridgelands Securities Ltd (1992) 38 FCR 217; 110 ALR 685. … The notion of "special circumstances" does not require that some extraordinary factors must bear on the question before the discretion will be exercised. It is sufficient to say that, in all the circumstances, [the] good reason must be shown why, contrary to the usual position, documents produced or information obtained in one piece of litigation should be used for the advantage of a party in another piece of litigation or for other non-litigious purposes. The discretion is a broad one and all the circumstances of the case must be examined. In Springfield Nominees, Wilcox J identified a number of considerations which may, depending upon the circumstances, be relevant to the exercise of the discretion. These were: • the nature of the document; • the circumstances under which the document came into existence; • the attitude of the author of the document and any prejudice the author may sustain; • whether the document pre-existed litigation or was created for that purpose and therefore expected to enter the public domain; • the nature of the information in the document (in particular whether it contains personal data or commercially sensitive information); • the circumstances in which the document came in to the hands of the applicant; and • most importantly of all, the likely contribution of the document to achieving justice in the other proceeding. 24 The reference in Liberty v Phoenix to the "implied undertaking" is a reference to a limitation which is sometimes described by reference to the United Kingdom case Harman v Home Department State Secretary [1983] 1 AC 280, as a "Harman undertaking". That case, at least in Australia, in terms of an implied undertaking is now better understood, in light of Hearne v Street (2008) 235 CLR 125 (Hearne v Street) at [3] per Gleeson CJ and at [96] and [105] to [108] per Hayne, Heydon and Crennan JJ, as a substantive obligation of law. 25 In their joint judgment in Hearne v Street at [96], Hayne, Heydon and Crennan JJ observed of the Harman obligation or undertaking or implied undertaking this: [96] Where one party to litigation is compelled, either by reason of a rule of court, or by reason of a specific order of the court, or otherwise, to disclose documents or information, the party obtaining the disclosure cannot, without the leave of the court, use it for any purpose other than that for which it was given unless it is received into evidence. The types of material disclosed to which this principle applies include documents inspected after discovery, answers to interrogatories, documents produced on subpoena, documents produced for the purposes of taxation of costs, documents produced pursuant to a direction from an arbitrator, documents seized pursuant to an Anton Piller order, witness statements served pursuant to a judicial direction and affidavits. [footnote references omitted] 26 The December affidavit is one which was, as I have observed, necessarily filed and served in support of the application for an extension of time, as well as in relation to the substantive application. 27 As to the application for an extension of time, one of the rules, see r 31.02(2)(a) of the Federal Court Rules 2011 (Cth), was that any such application be accompanied by an affidavit stating: (i) briefly but specifically, the facts on which the application relies; and (ii) why the application was not filed within time; and 28 At the very least, the December affidavit went, as I have indicated, to the prospective merits. It did, though, more than that, in that the policy concerned (annexed to the affidavit) was, on the face of the originating application, directly relevant to the challenge made to the decision of the delegate of the CDF. In that sense, the annexure was an advanced form of discovery of a relevant document. 29 I consider that I am bound by Liberty v Phoenix and Hearne v Street to hold that the CDF is bound not to use the December affidavit for other than the purposes of the present proceeding unless he obtains the leave of the Court. The position is subject to what McPherson J in Central Queensland Cement Pty Ltd v Hardy [1989] 2 Qd R 509 (Central Queensland Cement) described as an underlying principle, which was, at p 510, that: … a document furnished for use for one purpose may not legitimately be used for another. In Springfield Nominees, Wilcox J expressed agreement with that observation by, and the reasoning of, McPherson J in Central Queensland Cement in terms I have noted. Wilcox J's judgment is cited with evident approval by the Full Court in Liberty v Phoenix. 30 Mr Hooper, in his submissions, put that what investigation the ADF may wish to undertake in relation to the accessing by him of the network for the retrieval of the extract of the manual which came to be annexed to the December affidavit could be undertaken readily by reference to material under the control of the ADF already. It is undoubtedly the case that the CDF, in commissioning an inquiry, be it under the Defence (Inquiry) Regulations 2018 (Cth) or otherwise, could access logs and other information in relation to technology data relating to network access. But that is not the full picture. The making of the December affidavit with its annexure is a necessary link in any inquiry. 31 In my view, a purpose served by permitting the use as requested of the December affidavit is akin to that described by Lehane J in Australian Trade Commission v McMahon (1997) 73 FCR 211 at 217: Where an authority or person charged with the investigation of possible criminal conduct is a party to a proceeding and obtains, through for example documents discovered in the proceeding, information suggesting that criminal conduct, of a kind which the authority or person is charged to investigate, the public interest seems to me to require, in most cases at least, that permission be given to use the information for that purpose. 32 Here, there is no present suggestion of any criminal investigation, although there is a reference to disciplinary proceedings as a possibility and that unauthorised access to an ADF computer system can be a criminal offence. I take that disciplinary reference to be a reference to proceedings under the Defence Force Discipline Act 1982 (Cth) (DFDA). Even if there is no manifestation of an investigation in proceedings under the DFDA, it does not mean that the CDF does not have a legitimate interest in the wider uses, as put in his interlocutory application, of that December affidavit. 33 As I observed in the course of submissions, there is a very large question, indeed, raised by the facts of this case, in relation to what one might term the interface between the military legal practice within the ADF by a person, and that person's civilian, private practice. One does not have to sit for very long in the Defence Force Discipline Appeal Tribunal (DFDAT) to understand the singular reliance by the ADF on the expertise of civilian legal practitioners who also volunteer to serve our country in a military capacity as legal officers. That reliance permeates the whole of the military justice system, both in proceedings under the DFDAT as well as on subsequent appeals against conviction to the DFDAT. And that is just the military justice system's reliance upon the input from specialist legal officers. It is by no means uncommon, indeed, it is rather the norm, to see persons that hold the reserve legal commissions appearing in civil capacity to the appeals to this Court. 34 The expertise needed for the competent conduct of prosecution and defence of service offences and the presentation and response to appeals is overwhelmingly likely to be found Reserve legal officers in the private practicing profession, given the sheer volume of work, applicable by analogy, encountered in civilian legal practice. That is not to say there is no expertise within ranks of Regular legal officers; only that, overwhelmingly, it is just in the nature of things that opportunity to gain relevant experience is found in civilian rather than military practice, at least in times other than general hostilities. The same, also, is inherently likely to be the case across a range of specialities apart from the law: medicine and dentistry come readily to mind in that regard. 35 Thus, there is a very real and legitimate interest on the part of the CDF in the use of the December affidavit in terms of reflective inquiry and related policy formulation concerning the interface between military legal and civilian legal practice. That, in itself, in my view, is sufficient to establish special circumstances in this case. 36 It may also be that there is a use in relation to any referral to the Queensland Legal Services Commissioner, although that use would, itself, seem to be something of a subset of resolution within the ADF of the policy question which I have mentioned. 37 It also seems to me that it is no answer to the use of the December affidavit for wider purposes than the present proceeding that it is a document which was always relevant. That may well mean that there was always an official purpose to disclose it, but it does not completely resolve the question of how that disclosure occurred, and it is that subject which forms part of the wider use proposed to be made by the CDF. It may well be that there are, without there being any question of any disciplinary proceedings in relation to Wing Commander Hooper, sound lessons, nonetheless, to be drawn in relation to formulation or revision of policy. 38 In short, I can see that there is a singular public interest served by permitting the use of the December affidavit for the purposes mentioned in the interlocutory application. There will be an order accordingly. 39 Quite properly, the CDF did not seek any order for costs in relation to his application. I should indicate as well that Mr Hooper made it plain that in the event that the application was dismissed, he also would not have sought an order for costs. I certify that the preceding thirty-nine (39) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Logan.

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