Doyle v Chief of General Staff

Re: MAJOR JOHN JAMES MICHAEL DOYLE
And: THE CHIEF OF THE GENERAL STAFF
And: IN THE MATTER OF AN APPLICATION MADE PURSUANT TO SECTION 5(1) OF THE
ADMINISTRATIVE DECISIONS (JUDICIAL REVIEW) ACT 1977 (1982) 71 FLR 56
No. G52 of 1981
Administrative Decisions (Judicial Review) Act 1977 - Defence and War

COURT

IN THE FEDERAL COURT OF AUSTRALIA

SOUTH AUSTRALIA DISTRICT REGISTRY
GENERAL DIVISION
Fisher J.(1)

CATCHWORDS

Administrative Decisions (Judicial Review) Act 1977 - Australian Military Regulations, redress of wrongs - application for extension of time - grounds upon which to exercise discretion - length of delay - whether applicant a "person aggrieved" - whether alternative remedy.

Administrative Decisions (Judicial Review) Act s.5(1), s.11(1)(c) s.10(2) (b) (ii).

Australian Military Regulations 194, 765, 769.

Administrative Law - Judicial review - Extension of time to lodge application for order of review - Principles upon which granted - Administrative Decisions (Judicial Review) Act 1977 (Cth), ss 10(2)(b)(ii), 11(1)(c).

Defence and war - Compulsory retirement - Member not promoted - Complaint dismissed by Chief of General Staff - Judicial review sought by member - Australian Military Regulations, regs 194, 765, 769.

HEADNOTE

The applicant retired as an officer in the Australian Regular Army on 31 December 1981, at the compulsory retiring age of forty-seven years for officers not promoted above the rank of Major. Prior to his retirement, he lodged a complaint under reg. 194 of the Australian Military Regulations claiming he should have been promoted. The complaint was referred direct to the Chief of General Staff and dismissed in January 1981. On 4 December 1981 the applicant applied to the court for further time within which to lodge an application for an order of review pursuant to s. 11(1) of the Administrative Decisions (Judicial Review) Act 1977 (Cth), as the twenty-eight day period for lodging such an application had expired ten months earlier. Although the applicant had retired from the Army by the time the matter came before the court, he claimed that he had been prejudiced in his career in the Army and in later civilian life by the lack of promotion. On the question of delay the applicant gave evidence, accepted by the court, that throughout the whole of the ten month period he had been active in various ways in attempting to have the decision of the Chief of General Staff reviewed, but only recently became aware of his rights under the Act and immediately took steps to make application to the court.

Held: (1) As there was no evidence of any prejudice to the respondent or any other person caused by the delay and it cannot be said that the applicant rested on his rights, the fact of the delay is not a sound ground for refusing the application.

Lovett v. Le Gall (1975) 10 S.A.S.R. 479, approved.

(2) The existence of the court's discretion under s. 10(2)(b)(ii) of the Act to refuse to grant an application for an order of review is not a sound ground for refusing…