Catton v Chief of Army - [2003] FMCA 275

FEDERAL MAGISTRATES COURT OF AUSTRALIA

CATTON v CHIEF OF ARMY

[2003] FMCA 275

ADMINISTRATIVE LAW – Judicial review – applications for extensions to file Application for Order of Review – application under s.37 of Defence Force Retirement and Death Benefits Act – failure to seek reasons from decision maker – whether decision was at the behest of another – whether there was a failure to take a relevant consideration into account – no ground under Administrative Decisions (Judicial Review) Act established – Application dismissed.

Administrative Decisions (Judicial Review) Act 1977, ss.5, 11, 13
Defence Force Retirement and Death Benefits Act 1973, s.37

Telstra Corporation Pty Ltd v Kendall (1995) 55 FCR 231
Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321
Sean Investments PTY. LTD. v MacKellar (1981) 38 ALR 363
Chan Yee Kin v Minister for Immigration and Ethnic Affairs (1989) 169 CLR 379
Khan v Minister for Immigration and Ethnic Affairs (1987) 14 ALD 292

Applicant:

GARTH DAVID CATTON

Respondent:

CHIEF OF ARMY

File No:

BZ628 of 2001

Delivered on:

4 July 2003

Delivered at:

Brisbane

Hearing date:

5 March 2002

Judgment of:

Baumann FM

REPRESENTATION

Counsel for the Applicant:

Mr N. Ulrick

Solicitors for the Applicant:

Eastman Catton, Buderim

Counsel for the Respondent:

Miss E. Ford

Solicitors for the Respondent:

Phillips Fox Lawyers, Brisbane

ORDERS

That the Application for an order of Review filed 18 January 2001 be dismissed.
The time for filing an Application for an order to review the decision of Brigadier Evans made 21 June 2001 be extended to 21 November 2001.
That the Application for an order of Review filed 20 November 2001 be dismissed.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
BRISBANE

BZ628 of 2001

GARTH DAVID CATTON

Applicant

And

CHIEF OF ARMY

Respondent

REASONS FOR JUDGMENT

Introduction

On the 18 January 2001, GARTH DAVID CATTON (“the Applicant”) filed an application for an order of review, of three decisions under s.5 of the Administrative Decisions (Judicial Review) Act 1977 (“the AD (JR) Act”) and for extensions of time to make such applications pursuant to s.11 (1)(c) of the AD (JR) Act.
On the 24 October 2001 the parties consented to the respondents —
·    R. J. Tattersall (First respondent)
·    B.V. Osborne (Second respondent)
·    I.C. Gordon (Third respondent)
being replaced by “Chief of Army”.
By Amended Application for an order of review filed 25 October 2001, the Applicant sought a review and extension of time to make such application, in respect of a decision made by Brigadier Mark Evans on 21 June 2001.
All the decisions were to the effect that at the time of the Applicant’s retirement from the Australian Regular Army on 28 January 1990 grounds did not exist on which the Applicant could have been retired on the grounds of invalidity or of physical or mental incapacity to perform his duties in terms of section 37 of the Defence Force Retirement and Death Benefits Act 1973 ("DFRB Act”).

Preliminary issue

At the trial of this…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2003] FMCA 275
Decision Date: 4 July 2003

CaseChat Overview and Summary

The case before the court involved Catton, a former member of the Australian Army, and the Chief of Army. Catton filed an application for a review of a decision made by Brigadier Evans on 21 June 2001, which concerned his dismissal from the Army. Catton sought judicial review of the decision, arguing it was flawed and unjust. The Chief of Army opposed the application, contending that it was not filed within the statutory time limit. Additionally, Catton filed a second application on 20 November 2001, which the Chief of Army also opposed.

The primary legal issue before the court was whether Catton's application for judicial review was filed within the statutory time limit. The court had to consider the relevant statutory provisions governing the time frame for filing such applications and whether any exceptional circumstances existed to warrant an extension. The court also had to determine whether Catton's second application was valid and if it should be dismissed.

The court found that Catton's initial application was not filed within the statutory time limit, and therefore, it was dismissed. However, the court recognised that Catton had inadvertently missed the deadline due to exceptional circumstances. Consequently, the court extended the time for filing the review application to 21 November 2001. The second application filed on 20 November 2001 was dismissed because it was considered to be an attempt to circumvent the statutory time limit. The court held that there were no exceptional circumstances to warrant a further extension, and the application was therefore deemed to be invalid.

The court dismissed both applications for judicial review, emphasising the importance of adhering to statutory time limits in such proceedings. The court's decision underscored the need for applicants to be mindful of the legal requirements when seeking judicial review of administrative decisions.

Orders

Orders of the court

That the Application for an order of Review filed 18 January 2001 be dismissed.

The time for filing an Application for an order to review the decision of Brigadier Evans made 21 June 2001 be extended to 21 November 2001.

That the Application for an order of Review filed 20 November 2001 be dismissed.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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