Clark v Chief of Defence Force - [1999] FCA 1252

FEDERAL COURT OF AUSTRALIA
Clark v Chief of Defence Force [1999] FCA 1252
ADMINISTRATIVE LAW – Whether grant of leave for “specified” period needs to be for a definite period – Whether Chief of Defence Force has power to revoke leave without pay – Whether refusal to exercise discretion to revoke leave became unreasonable when the conditions for the grant of leave no longer existed – Whether failure to exercise discretion was an exercise of power for a purpose other than the purpose for which the power was conferred – Whether an officer is entitled to remuneration under industrial instrument when no duties have been performed – Whether applicant rendered full time continuous service without performing duties – Relevant of industrial law precepts to interpretation of services remuneration and leave determination.
Acts Interpretation Act 1901 (Cth), s 33(3)
Administrative Decisions (Judicial Review) Act 1977 (Cth), ss 5(1)(e), 5(2)(g), 11
Air Force Regulations (Cth), rr 72(1), 73(5)
Air Force Act 1923 (Cth), ss 4B, 4G(1)
Defence Act 1903 (Cth), ss 4(1), 58B, 58H(2)(a)
Defence Force Disciplinary Act 1982 (Cth), s 96(6)
Australian Bank Employees Union v National Australia Bank (1989) 31 IR 437, applied
Automatic Fire Sprinklers v Watson (1946) 72 CLR 435, distinguished
Byrne v Australian Airlines (1995) 185 CLR 410, applied
Comptroller General of Customs v Kawasaki Motors (1991) 32 FCR 219, applied
Coutts v Commonwealth (1985) 157 CLR 91, applied
Gapes v Commercial Bank of Australia (1979) 41 FLR 27, applied
Heating Centre v Trade Practices Commission (1986) 65 ALR 429, cited
Minister for Aboriginal Affairs v Peko-Wallsend (1986) 162 CLR 24, applied
R v Anderson; Ex parte Ipec-Air (1965) 113 CLR 177, applied
R v Australian Broadcasting Tribunal; Ex parte 2HD (1979) 144 CLR 45, applied
Seymour v Stawell Timber Industries (1985) 9 FCR 241, applied
TCN Channel 9 v AMP (1982) 42 ALR 426, cited
GARY JAMES CLARK v CHIEF OF DEFENCE FORCE
NG 385 of 1998
MADGWICK J
SYDNEY
15 SEPTEMBER 1999

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY

NG 385 OF 1998

BETWEEN:

GARY JAMES CLARK
Applicant

AND:

CHIEF OF DEFENCE FORCE
Respondent

JUDGE:

MADGWICK J

DATE OF ORDER:

15 SEPTEMBER 1999

WHERE MADE:

SYDNEY

THE COURT ORDERS THAT:
1. The decision of the respondent, made on 30 March 1998, and furnished to the applicant on 3 April 1998, not to revoke, effective from 22 July 1995, a grant of Leave without Pay made to the Applicant on 6 March 1995 and as a consequence not to pay the applicant salary, allowances and other remuneration during the period 22 July 1995 to 19 December 1996 is set aside.
2. It is declared that the respondent was at all times between 22 October 1995 and 19 December 1996 required to treat the applicant as being a member of the Australian Defence Forces rendering full-time continuous service and holding the rank of Squadron Leader and as being entitled to all benefits…

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: [1999] FCA 1252
Decision Date: 15 SEPTEMBER 1999

CaseChat Overview and Summary

In Clark v Chief of Defence Force, the applicant, Squadron Leader Clark, sought judicial review of a decision by the Chief of Defence Force not to revoke a grant of Leave without Pay (LWP), which had resulted in the withholding of salary and other remuneration from 22 July 1995 to 19 December 1996. The dispute centred on the interpretation of certain provisions of the Defence Force Discipline Act and the Defence Force Regulations, which governed the conditions and duration of LWP, and whether the respondent was entitled to maintain the LWP status for the specified period.

The central legal issue before the court was whether the respondent's decision to maintain the LWP status was lawful and in accordance with the statutory provisions. The applicant argued that the statutory provisions did not permit the extension of LWP beyond the period specified in the grant, and that the respondent had acted beyond his powers by not revoking the LWP as required. The court had to determine whether the respondent's interpretation of the statutory provisions was correct and whether the decision to withhold salary and other remuneration was justified.

The court found that the statutory provisions did indeed limit the duration of LWP and that the respondent had exceeded his powers by not revoking the LWP as required. The court held that the respondent's decision was not in accordance with the law and was therefore invalid. The court set aside the respondent's decision and declared that the applicant was entitled to be treated as a member of the Australian Defence Forces rendering full-time continuous service and holding the rank of Squadron Leader, and as being entitled to all benefits, including salary, allowances, and other remuneration. The court also ordered the respondent to pay the applicant's costs in these proceedings.

Orders

Orders of the court

1. The decision of the respondent, made on 30 March 1998, and furnished to the applicant on 3 April 1998, not to revoke, effective from 22 July 1995, a grant of Leave without Pay made to the Applicant on 6 March 1995 and as a consequence not to pay the applicant salary, allowances and other remuneration during the period 22 July 1995 to 19 December 1996 is set aside.

2. It is declared that the respondent was at all times between 22 October 1995 and 19 December 1996 required to treat the applicant as being a member of the Australian Defence Forces rendering full-time continuous service and holding the rank of Squadron Leader and as being entitled to all benefits including salary, allowances and other remuneration, to which he would have been entitled as such.

3. The respondent is to pay the applicant’s costs in these proceedings.

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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IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NG 385 OF 1998

BETWEEN:	GARY JAMES CLARK Applicant
AND:	CHIEF OF DEFENCE FORCE Respondent

JUDGE:	MADGWICK J
DATE OF ORDER:	15 SEPTEMBER 1999
WHERE MADE:	SYDNEY