Bowthorpe, M.P. v Minister for State for Defence

IN THE FEDERAL COURT OF AUSTRALIA	)
1
NEW SOUTH WALES DISTRICT REGISTRY	) No. G 372 of 1986
1
GENERAL DIVISION	)

BETWEEN :

MARTIN

PAUL

BOWTHORPE

Applicant

AND:	MINISTER OF STATE FOR DEFENCE

First respondent

CHIEF OF THE AIR STAFF

Second respondent

MINUTE OF ORDER

JIJDGE MAKING ORDER	: Neaves J.
DATE OF ORDER	: 3 September 1986
WHERE MADE	: Sydney

THE COURT ORDERS

THAT:

1. The

application

Martin

Paul

Bowthorpe

for

interlocutory relief be dismissed.

2.	The applicant pay the respondent's costs	of that
application.

Note:

Settlement and entry

of orders is dealt

with in Order 36

of the Federal Court Rules.

IN THE FDERAL COURT OF AUSTRALIA	1
)
N W SOUTH WALES DISTRICT REGISTRY	1 No. G 372 of 1986
1
GENERAL DIVISION	)

BETWEEN :

MARTIN

PAUL

BOWTHORPE

Applicant

AND :

MINISTER OF STATE FOR

DEFENCE

First respondent

CHIEF OF THE AIR STAFF

Second respondent

CORAM: Neaves

U:	11 September 1986

REASONS FOR JUDGMENT

On 3 September

1986

dismissed,

with costs, an

application by Martin Paul Bowthorpe

("the applicant") for

certain interlocutory relief against the Minister of State

for

Defence and the Chief of the Air Staff and said that

I would

publish my reasons	for reaching that conclusion. What follows
are those reasons.

The application, as filed, sought relief against the

Minister of State for Defence and the Commanding Officer

of the

Royal Australian Air Force. At the commencement of the hearing

I gave

the

applicant

leave

amend

the

proceedings

substituting

the

Chief

the

Air

Staff

the second

respondent in place of the Commanding Officer of the Royal

Australian Air Force.

The

applicant

sought

an interlocutory

injunction

restraining the respondents from proceeding to carry into

effect a decision made on or about

20 August 1986 by the Chief

of the Air Staff that the applicant be discharged from the

Royal Australian Air Force

("the Air Force").

The in-~unction

was

ought

until

the

hearing

and

etermination

application

under

the

Administrative

Decisions

(Judicial

Review) Act 1977

(Cth) ("the Judicial Review Act") for an order

of review in respect of that decision. In the alternative, the

applicant sought an order under

s.23 of the Federal Court of

Australia Act 1976

(Cth) or under s.15(1) of the Judicial

Review Act suspending the operation of the decision that the applicant be discharged from the Air Force until the hearing and determination of the substantive application under the

Judicial Review Act.

The applicant volunteered and was accepted for service

in the Air Force

on 11 July 1978. On enlistment, he would have

taken an oath or affirmation in accordance

with Form 1 in

Schedule

1 to the Air Force Regulations made under

the

Force Act 1923 (Cth). He thus swore, or affirmed, that he would well and truly serve Her Majesty Queen Elizabeth the Second, Her Heirs and Successors according to law, in the

Permanent Air Force for a

specified period of years or until

his services were sooner lawfully terminated.

At the time of

3 .

the making of the

decision that he be discharged, the applicant

held

the

rank

leading

aircraftman

(see Air Force

Regulations, reg.

101).

It appeared from the affidavit of

the applicant filed

herein that on

about 27

March 1986 one Flight Lieutenant

Blackburn handed him a written report signed by Group Captain

X.N.

Pyke, the Commanding Officer

of the unit in

which the

applicant was serving, and bearing that date, together with the

annexures thereto, detailing a number of respects in which his

conduct,

work

performance

and

attitude

were said

unsatisfactory and below the standard required by the

Air

Force. The report concluded with a recommendation that	he "be
discharged 'Services no longer required". According to the

applicant, he was afforded an

opportunity to answer what was

stated in the report,

an opportunity of which

he availed

himself in

a document which is undated but which

he says was

handed to Flight Lieutenant Blackburn about	a week after	he
received the copy of the report.

It also appeared from the applicant's affidavit that

on about 11 July

1986 Flight Lieutenant Blackburn showed him

telex message to the effect that

he was to be discharged on

July 1986 for the reason that

his services were no longer

required.

Subsequently,

representations

were

made

the

Minister for Defence on

the applicant's behalf by

Mr P. Morris,

his local member of Federal Parliament, requesting that the

decision to discharge him be reconsidered. Action to discharge

the applicant was suspended pending a reconsideration of the

matter but on or about

20 August 1986 the decision was taken

which was the subject of the application

f o r

interlocutory

relief.

The

applicant was informed of that decision on

2 5

August 1986. Pursuant to that decision

his discharge from the

Air Force was to take effect on

4 September 1986.

The hearing of the application proceeded on the basis

that the decision in question was made by the Chief of the Air Staff. Reference was made to regs 109 and 115 of the Air Force Regulations. Regulation 109 provides:

"109.

(1) The Chief of the Air Staff may

dispense with the services of	an airman at any
time .

( 2 ) The

competent authority to authorize

discharge shall be the Chief of the Air Staff."

"he term "airman" denotes

member of the Air Force other

than an officer (sub-reg.4(1)).

Regulation 115 is in the following terms:

"115. An airman may be discharged	for any of the
following reasons:

(a)	Irregular enlistment;

(b) Not

likely

become

an efficient

airman;

(c)	Temperamentally unsuited for flying;

(d) Being claimed as an apprentice;

(da)	Havlng been absent without leave for a period exceeding 3 months;

(e)	Having not been granted, or having not accepted, Australian citizenship;

5 .

Having made a	misstatement as to age on
enlistment;

Having

made

a false

answer

attestation;

Having made a false statement on his

Medical History Sheet;

Having been convicted by the Civil Power

of an offence

committed

b fore

enlistment;

Havlng been dismlssed or discharged for

disciplinary

reasons

having

been

called upon to resign from any portion of His Majesty's Forces prior to enlistment In the Air Force;

Having been sentenced to penal servitude

(or imprisonment) by court-martial	(or
by Civil Power);
....

On request;

On belng granted a commission;

Medically unfit for further service;

Medically unfit through hls own default;

Termination of period of enlistment;

Having reached the age for retlrement;

Services being

no longer required;

Being surplus to establishment;

For such other reason

as the Chief of

the Air Staff thinks fit."

It was common ground between the parties that the

decision to dlscharge the applicant had been made for the reason specifled in par.(r) of reg.115, namely that his services were no longer required.

The respondents objected to the competency

of the

application

the

ground

that

the

decision

that

the

applicant be discharged was not

decision to which the

Judicial Review Act applies. That expression is defined in

sub-s.3(1) of the Act to mean,

far as 1 s

relevant for

present purposes, a

decision of an administrative character

made under

an enactment, other than

a decision by the

Governor-General. Counsel for the respondents submitted

(a) that the decision was not

decision

under an enactment but

a decision in the

exercise of a prerogative power; and

(b)

that the decision was made by the Chief

of the Air Staff as

a delegate

of the

Governor-General.

It was, therefore, said that the decision was outside the

purview of the Judicial Review

Act.

The objection to

the competency of the application

was not fully canvassed in

argument and, in the result, I

did not find

it necessary to reach

a definitive opinion upon

it. Suffice it

to say that I inclined to the

view that

neither

the

submissions

advanced

on behalf

the

respondents should be accepted.

The substantive application for an order of review

was filed on 29 August 1986. It set out the grounds upon

whlch the applicant proposed to rely in the following terms:

"1.

That

a breach of

the rules of natural

justice occurred in connection with the

making of the decision. Specifically:-

7 .

(a) The

applicant

was not

given

adequate notice of the making of

the decision so as to allow him

prepare an application

for

review at an earlier time.

(b)

The applicant was not given any

reasons for

the making of the

decision.

(c)

The persons responsible for the making of the decision could be

seen to be biased against

him.

2 . That the decision was made after taking into accbunt irrelevant consideratlons

and

failing

take

into

account

relevant considerations.

3 . There was insufficient evidence or other

material to justify the maklng

of the

decision.

4 .

The	initial decision made on or about

11th July 1986 to dismiss the applicant

did not take into account the contents

of his 1986 Airman Evaluation Report."

The principles governing the legal relationship to

the

Crown

members

of the

armed

services

are

well

established,

having

been

the

subject

of authoritative

exposition in a large number of decisions. It is sufficient

for present purposes to refer to

The Commonwealth v. Qulnce

(1943) 68 C.L.R.

227; The Commonwealth v. Welsh (1947) 74

C.L.R. 245; Marks v. The Commonwealth (1964) 111 C.L.R. 549

and Coutts v. The Commonwealth (1985) 59 A.L.J.R. 548.

The

rule is very clearly established that, except when modified

by statutory provision,

the

members of the armed services

are employed only during the pleasure of the Crown.

member may be dismissed at will

- at any time and without

notice.

The power of termmation may be exercised for any

reason or for no reason

or for a mistaken reason.

In the most recent of the cases mentioned, Graeme

Richard Coutts, who had been appointed

to be an officer in

the

Air Force, was compulsorily

retired

upon

medical

grounds.

The Hiqh Court held that there was nothing in the

Defence Act 1903 (Cth), the Air Force Act 1923 (Cth)

or the

regulations made thereunder which modified the rule to which

I have referred.

The officer's appointment was, therefore,

subject

termination

at the

pleasure

the

Governor-General, acting with the advice of the Executive

Council,

wlthout

any

reason

being

assigned

for such

termination

and

without

the

officer

being

afforded

opportunity to be heard. Neither the decision to terminate

his appointment nor the procedural steps leading up to it

were open to review by the courts. Nor was that conclusion

affected by the circumstance that a reason had, in fact,

been assigned for the termination of the appointment.

As the applicant in the case before this Court is

an airman and not an officer, it is necessary to examine the

relevant statutory provisions to determine whether, in the

case of

an airman, the rule to which I have referred has

been relevantly modified.

There is

express provision in the Air Force

Regulations applicable to airmen corresponding to the first

limb

sub-req.72(1)

relation

to officers. That

sub-regulation

provides

that

an officer

holds

his

appointment during the pleasure of the Governor-General.

. ' .

Nor 1 s there

a provision applicable to airmen corresponding

to reg.32 which provides that the appointment or promotion

of an officer under the regulations does not create

a civil

contract between the Crown or the Commonwealth and the

officer. But the absence of such provisions does not, in my

oplnion, require

a different conclusion to be reached in the

case of airmen

to that reached by the

High Court in the case

of officers for the regulations in question

do no more than

re-state the position

as it existed at common law.

The power

the

Chief

the

Air

Staff

discharge the appllcant from the Air Force

has its source in

rey.109 of the Air Force Regulations. But,

as Dixon C.J.

said in

The Commonwealth v.

(supra), that provision is

not to be read in disregard of the rules of the common law

regulating the relation to the Crown

of members of the armed

forces

and of the

long

tradltion

to which

they

have

contributed.

So read, rey.109 does

no more than designate

the Chief of the Alr Staff

the appropriate authority to

exercise the power to discharge an airman. That designation

not, of itself,

sufficient to limit

the

otherwise

unfettered character of the power to terminate an airman's engagement or to modify the way in which the power may be

exercised. Nor,

my view, does reg.115 have that effect,

particularly when regard is had to par.(t)

whlch recognises

that the Chief of the Alr Staff may discharge

an airman for

any reason which

he thinks fit.

As a result of my consideration of the matters put

in argument,

reached the conclusion that the case was

10.

covered, in principle, by the decision of the High Court in

Coutts v. The

Commonwealth (supra), there being

no material

difference, so far as the power of terminatlon is concerned,

between the position of an offlcer and that of

an airman. I

was,

therefore,

not

satisfied

that

the

applicant

had

demonstrated that there was sufficiently arguable question to warrant the grant of the interlocutory relief sought.

For the reason set out above,

dismissed the

application

for

interlocutory

relief

and

ordered

the

applicant to pay the respondents’ costs of the application.

I	certify that this and

the preceding 9 pages are

a true copy of the Reasons

for Judgment herein of the

Honourable

Mr Justice

Associate

Dated: 11 September

1986

Counsel for the applicant

: Mr G . J .

Stanton

Solicitors for the applicant	: W.H. Baker Love & Geddes
Counsel for the respondent	: Mr L. Katz

Solicitor for the respondent : Australian Government Solicitor

Date of hearing

: 3 September 1986

[1986] FCA 391

9 Mar 1986