Doyle v Chief of General Staff

[1982] FCA 129

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 to extend the relevant time for making an application.

Kelly v. Coats (1981) 51 F.L.R. 69, referred to.

(3) The words "a person who is aggrieved" in s. 5 of the Act are not confined to those who can establish that they have a legal interest at stake; they extend to persons who can show a grievance as a result of the decision beyond that of an ordinary member of the public.

Vickers v. Minister for Business and Consumer Affairs (1981) 43 A.L.R. 389, followed.

(4) Whether the applicant is a person aggrieved and whether his application for an order of review is futile, in that a favourable final decision from the court would not result in a material benefit to him, are matters relevant to the exercise of the court's discretion to extend the time for making an application. However the court should not be too concerned with these matters at this stage; they are best left for determination at the final hearing.

Tooheys Ltd v. Minister for Business and Consumer Affairs (1981) 36 A.L.R. 64, followed.

HEARING

Adelaide, 1982, May 20; July 8. #DATE 8:7:1982

APPLICATION.

Application under s. 11(1)(c) of the Administrative Decisions (Judicial Review) Act 1977 (Cth) for further time within which to lodge an application under that section to the court for an order of review of a decision of the Chief of General Staff dismissing a complaint made by the applicant pursuant to reg. 194 of the Australian Military Regulations.

The applicant appeared in person.

D. J. Bleby for the respondent.

Cur. adv. vult.

Solicitor for the respondent: B. J. O'Donovan, Commonwealth Crown Solicitor.

F.P.C.

ORDER

The applicant's application for extention of time within which to lodge his application for an order of review is granted.

The applicant has up to and including 4 December 1981 to lodge such application.

"11(1) An application to the Court for an order of review -

(a) shall be made in such manner as is prescribed by Rules of Court;

(b) shall set out the grounds of the application; and

(c) shall be lodged with a Registry of the Court and, in the case of an application in relation to a decision that has been made and the terms of which were recorded in writing and set out in a document that was furnished to the applicant, . . . shall be so lodged within the prescribed period or within such further time as the Court (whether before or after the expiration of the prescribed period) allows.

(2) . . .

(3) The prescribed period for the purposes of paragraph (1)(c) is the period commencing on the day on which the decision is made and ending on the twenty eighth day after -

(a) if the decision sets out the findings of material questions of fact, refers to the evidence or other material on which those findings were based and gives the reasons for the decision - the day on which a document setting out the terms of the decision is furnished to the applicant; or

(b) in a case to which paragraph (a) does not apply -

(i) . . .

(ii) . . .

(iii) . . . "

For the purpose of this application which is in effect for an extension of time within which to lodge the application for an order of review, it was accepted that the period prescribed by s.11(3) expired on Monday 2 February 1981, the document provided for by s.11(3) having been furnished to the applicant on 5 January 1981. As the application to this Court for a order of review was not lodged in the Registry in Adelaide until 4 December 1981, it is apparent that an extention for a period in excess of

Orders accordingly.

JUDGE1

This is an application by Major John James Michael Doyle ("Major Doyle") pursuant to the provisions of s.5(1) of the Administrative Decisions (Judicial Review) Act 1977 ("the Act") for an order of review of the decision of The Chief of the General Staff ("the respondent") dated 27 October 1980 whereby he dismissed the complaint of Major Doyle made pursuant to Regulation 194 of Australian Military Regulations. On 4 December 1981 Major Doyle applied to this Court for an allowance, as contemplated by s.11(1) (c) of the Act, of further time within which to lodge his application for an order of review. Section 11 prescribes the mode of making and the time within which an application is to be made and as far as relevant to these proceedings is as follows: 10 months is sought by Major Doyle.

At all relevant times prior to 31 December 1981 Major Doyle was an officer in the Australian Regular Army. He enlisted with the rank of Captain in December 1966, was promoted to the temporary rank of Major in 1970 and to that substantive rank in December 1972. He retired from the Australian Regular Army on 31 December 1981 on reaching the age of 47 years. This age is the compulsory retiring age for an officer not promoted beyond the rank of Major. Although he attained that age on 18 September 1981 he was granted an extension of the period of his service until 31 December 1981. It is the contention of Major Doyle that he became eligible for promotion by selection to Lieutenant Colonel in 1975, that he received assurances he would be promoted but that he was informed in December 1978 that he was not to receive such promotion. Being dissatisfied with this state of affairs and considering himself wronged he exercised his rights to complain in accordance with regulation 194 of Australian Military Regulations. This regulation appears in Division 1 of Part V, in the following terms:

"Division 1 - Redress of Wrongs

194 (1) If a member thinks himself wronged, he may complain in succession, to -

(a) his commanding officer;

(b) his formation commander;

(c) any superior formation commander; and

(d) the Chief of the General Staff.

(3) Each authority mentioned in sub-regulation (1) to whom complaint is made shall, so far as practicable and, so far as not already done, cause the complaint to be investigated, and if it appears to the authority that the member has suffered a wrong, shall cause the wrong to be fully redressed, if full redress is within the power of the authority, or if investigation or full redress is not within the power of the authority, shall refer the complaint to the next superior authority in order that it may be investigated and redressed as fully as possible.

(4) If an officer is dissatisfied with the decision of the Chief of the General Staff he may require that his complaint be referred to the Governor-General in Council.

(5) No authority to whom a complaint is made or referred under this regulation shall attempt to prevent or dissuade any member from carrying his complaint to a superior authority in accordance with this regulation."

Major Doyle lodged his complaint pursuant to that regulation on 27 October 1980. No point was taken by either party to the fact that it was forthwith referred direct to the Chief of the General Staff. Throughout the proceedings this complaint was termed an "application for redress of wrongs". Major Doyle was advised on December 1980 that all his complaints with one exception were dismissed and on 5 January 1981 he was furnished with a document which satisfied the requirements of s.11(3)(a) of the Act. When in December 1981 he lodged his application for an order of review with this Court, his stated grounds were

"(a) The making of the decision was an improper exercise of power, and

(b) The decision involved an error of law."

He subsequently particularised these grounds in the following manner: In respect of the alleged improper exercise of power, he contended that the respondent had taken into account irrelevant considerations in the exercise of his discretion and failed to take into account relevant considerations. Subsequently he identified in some detail the alleged irrelevant and relevant matters to which however no further reference need be made at this stage. In respect of the ground based on an alleged error of law, this was identified as being the conclusion of the Head of Corps that officers are not subject to the provisions of regulations 765 and 769. The gravamen of Major Doyle's complaints was that (by the decision) he was prejudiced in his career prospects in the army and in later civilian life.

Major Doyle who presented his own case asked me to exercise my discretion in his favour, notwithstanding the relatively long delay in making his application for review, on a number of grounds. He contended that throughout the period of 10 months he was pressing his claim, and that as soon as he became aware of his rights under the Act he made an application. Further he said that there was no evidence and in fact no suggestion that the respondent had been prejudiced by the delay. Major Doyle deposed to the fact that on 3 March 1981 he requested reconsideration by the respondent of his decision. Such reconsideration was refused by letter of 7 April 1981, which letter advised Major Doyle that if he remained dissatisfied he could require that his complaint be referred to the Governor-General in council in accordance with Regulation 194(4) supra. Major Doyle placed some reliance on the fact that he was not then referred to his rights under the Act which had been proclaimed on 1 October 1980. He approached the Federal Ombudsman who referred him to the office of the Defence Ombudsman, who upheld the decision of the respondent. Major Doyle said at this stage he took legal advice and was in the first instance referred to the Administrative Appeals Tribunal Act 1975 and subsequently to the Act.

He said that he became aware of his entitlement to apply under the Act for a review in the first week of November 1981. He was however delayed in making application because of his inability to obtain a copy of the Regulations thereunder from the Government Printers until 24 November 1981 whereupon he prepared and subsequently filed his application. I accept his evidence on these matters.

Counsel for the respondent opposed any extention of time on a number of grounds, including that of delay. Initially a notice of objection to competency was filed by the respondent but was not pressed in the hearing. Counsel relied upon one ground specified in that notice, namely that adequate provision was made by Regulation 194(4) for review by another authority or person of the subject decision. I was also asked to dismiss the application on the ground that Major Doyle was not a person aggrieved and thus had no standing and that it was a futile application in that he could not obtain any benefit from an order of review.

It seems to me that each of these matters is relevant for consideration and certainly in the end must be fully determined. However, whatever may be my tentative views on any one or more of them I do not consider it appropriate to attach much significance or greatly rely upon them at this stage. In respect of counsel's reliance upon the existence of an alternative remedy he accepted the approach of Toohey J. in Kelly v Coats and Others (1981) 35 A.L.R. 93 at p.94 that "the onus is on those seeking to persuade the Court that it should not exercise the jurisdiction conferred upon it by the legislature". At the end of the day, if I find that Major Doyle has otherwise made out his case, I will then consider whether to exercise my discretion under s.10(2)(b)(ii) to refuse the application. The existence of this discretion is in my opinion not a sound ground upon which to refuse to extend the relevant time for making an application.

Counsel's primary grounds for contending that I should exercise my discretion and refuse are based on the delay and the contention that Major Doyle is not a person aggrieved or if he is his application is an exercise in futility.

As there is no evidence of any prejudice to the respondent or any other person caused by the delay and it can not be said that Major Doyle rested on his rights, I do not see this as a sound ground for refusing his application. As Bray C.J. said in Lovett v Le Gall (1975) 10 S.A.S.R. 479 at p.485:

"If the defendant has suffered no prejudice, as when he was well aware within the limitation period of the plaintiff's claim, or where the excess period of time is small, or where he cannot show that he has lost anything by reason of the delay, it may well be that the court will not find it difficult to come to the conclusion that it is fair and equitable in the circumstances to grant the extention."

The contention that Major Doyle is not a person aggrieved and that the application is futile can be considered together. As counsel is not contending on these grounds that the application is incompetent and that the Court has no jurisdiction, I do not see that a final decision is required to be made at this stage on either issue. Indeed I was not asked to reach such a conclusion but rather to take into account the possible weakness of Major Doyle's case in the exercise of my discretion. The question whether the applicant is a person aggrieved is as Ellicott J. said in Tooheys Limited v Minister for Business and Consumer Affairs (1981) 36 A.L.R. 64 at p.79;

". . . one of mixed law and fact and in many cases would best be determined at a final hearing when all the facts are before the Court and the Court has the benefit of full argument on the matter."

I would also adopt the recent statements of Morling J. in Michael Vickers v Minister for Business and Consumer Affairs and others an unreported decision delivered on 17 May 1982. His Honour said in the latter part of his reasons:

"The words 'a person who is aggrieved' in s.5 of the Judicial Review Act are not confined to those who can establish that they have a legal interest at stake in the making of the decision. They extend to cover a person who can show a grievance suffered as a result of the decision beyond that of an ordinary member of the public. See Tooheys Limited v Minister for Business and Consumer Affairs (1981) 36 A.L.R. per Ellicott J, at p.79 referred to with approval in Rice Growers Co-operative Mills Limited v Bannerman and Anor. (Bowen C.J., Franki and Northrop JJ. 16 December 1981 as yet unreported)."

It seems to me that it is certainly not correct to place a narrow construction on the words "a person aggrieved" nor, at this stage at least, to be too concerned by the probable lack of material benefit to Major Doyle from a favourable final decision from this Court. I am not persuaded by my tentative views on these matters or the extent of the delay that it is right to refuse the application presently before me. It is of some significance on the matter of delay that, at the time when the decision was made, namely 27 October 1980, the Act although enacted for in excess of 3 years had been proclaimed for only some few weeks. In these circumstances there is justification for attaching less importance to what otherwise would have the appearance of a long period of delay subsequent to 2 February 1981.

I allow a further time up to and including 4 December 1981 for the lodging by Major Doyle of his application to this Court.