Chief of Defence Force v Clark

FEDERAL COURT OF AUSTRALIA

Chief of Defence Force v Clark [2000] FCA 103

ADMINISTRATIVE LAW – Leave without pay to accompany spouse member (“LWOPASM”) granted pursuant to a determination made under Defence Act 1903 (Cth) s 58B(1)(d) – whether Chief of Defence Force has power to revoke retrospectively a grant of leave without pay to accompany spouse member.

Defence Act 1903 (Cth), s 58B(1)(d)

CHIEF OF DEFENCE FORCE v GARY JAMES CLARK
N 1140 of 1999

BLACK CJ, SACKVILLE AND EMMETT JJ
SYDNEY
10 FEBRUARY 2000

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	N 1140 of 1999

BETWEEN:	CHIEF OF DEFENCE FORCE APPELLANT
AND:	GARY JAMES CLARK RESPONDENT
JUDGE:	BLACK CJ, SACKVILLE AND EMMETT JJ
DATE OF ORDER:	10 FEBRUARY 2000
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1.   The appeal be allowed.

2.   The orders made by the primary judge, including the order for costs, be set aside.

3.   The matter be remitted to the primary judge to determine whether the relief sought in paragraphs 3 (f), (g) and (h) of the respondent’s amended application for an order of review should be granted. 

4.   There be no order as to the costs of the appeal.

Note:    Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	N 1140 of 1999

BETWEEN:	CHIEF OF DEFENCE FORCE APPELLANT
AND:	GARY JAMES CLARK RESPONDENT

JUDGE:	BLACK CJ, SACKVILLE AND EMMETT JJ
DATE:	10 FEBRUARY 2000
PLACE:	SYDNEY

REASONS FOR JUDGMENT

BLACK CJ:

1. This is an appeal from a judgment of Madgwick J in an application under the Administrative Decisions (Judicial Review) Act 1977 (Cth) for judicial review of what was said to be a “decision” of the appellant, the Chief of the Defence Force, not to revoke retrospectively a grant of leave without pay to the respondent, Mr Gary Clark. The application for judicial review followed a request by Mr Clark’s solicitors to the Chief of the Defence Force that he exercise what was said to be a power under the Defence Act 1903 (Cth) to revoke the grant of leave to Mr Clark notwithstanding that his service with the Australian Defence Force (“ADF”) had then come to an end.

2. The facts are set out in some detail in the judgment of the learned primary judge and it is necessary to make only brief reference to them in these reasons.  The respondent joined the ADF in 1986 and was appointed to the Royal Australian Airforce (“the RAAF”) as a Pilot Officer.  He graduated in dentistry and was subsequently promoted to the rank of Flight Lieutenant.  His duties were those of a Dental Officer.  In 1993, the respondent’s de facto marriage to another member of the ADF, Flight Lieutenant Kelly, was recognised by the RAAF.  In 1994, the respondent applied for assistance to undergo postgraduate study in dentistry. This application was rejected by the RAAF.

3. In November 1994, the respondent was granted…