Edward John Lawler v The Minister of Defence for the Commonwealth of Australia

[1984] FCA 375

Re: EDWARD JOHN LAWLER
And: THE MINISTER OF DEFENCE FOR THE COMMONWEALTH OF AUSTRALIA; and THE
COMMANDING OFFICER OF THE ROYAL AUSTRALIAN AIR FORCE
N.S.W. No.G.143 of 1984
Review of decision to discharge airman from Royal Australian Air Force

COURT

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY
GENERAL DIVISION
St. John J.

CATCHWORDS

Review of decision to discharge airman from Royal Australian Air Force - considerations for decision-maker not specified.

ADMINISTRATIVE DECISIONS (JUDICIAL REVIEW) ACT 1977

AIR FORCE ACT 1939

AIR FORCE REGULATIONS consolidated 1966

HEARING

SYDNEY

#DATE 15:11:1984

ORDER

1. The application is dismissed.

2. No order as to costs.

JUDGE1

This is an application by Edward John Lawler, formerly an airman in the Royal Australian Air Force, for review of a decision pursuant to the Administrative Decisions (Judicial Review) Act 1977, the decision in question being one in which he was discharged from that Force. The grounds of the application which were pursued were that there was a breach of the rules of natural justice in connection with the making of the decision, that the decision was not authorized by the enactment in pursuance of which it was purported to be made, and that the making of the decision was an improper exercise of the power conferred by the enactment in pursuance of which it was purported to be made.

1. In respect to the last mentioned ground, particulars of that were that the exercise of the power was so unreasonable that no reasonable person could have so exercised that power, that it was for a purpose other than for the purpose for which the power is conferred, that there was a failure to take relevant considerations into account in the exercise of the power, and that irrelevant considerations were taken into account in the exercise of the power.

2. The events preceding the decision were that the applicant had been apprehended for stealing Air Force property from his place of employment, and in the first instance he had requested, pursuant to the regulations that he be dealt with by a District Court-Martial. There followed some communication between headquarters and his commanding officer, in which the superior officer indicated that the District Court-Martial was not desired and that a suggestion was made that the applicant be dealt with summarily, as provided for in the relevant legislation and regulations. The applicant then withdrew his request for a District Court-Martial and consented to being dealt with summarily by his commanding officer.

3. The differences so far as he was concerned between those two courses was that the maximum penalty which the commanding officer could impose, if dealt with summarily, was 28 days detention and loss of emoluments during the period. Had the District Court-Martial dealt with the matter, the maximum penalty would have been two years imprisonment, and that Tribunal would have had the opportunity, if it thought it was deserved, of discharging the applicant. After being dealt with by the commanding officer and sentenced to 27 days detention and loss of emoluments for that period, the applicant was served with a notice of an adverse report which recited the circumstances in relation to the stealing and misappropriation with which he had been charged and to which he pleaded guilty before his commanding officer.

4. The applicant was given the opportunity of answering that report. He did so in a detailed way and in language which would indicate to me that he had some assistance in preparing that document.

5. The matter was then dealt with by Wing Commander Wark, who was the officer delegated pursuant to the regulations and the Air Force legislation to make recommendations in relation to the application of regulation 109 to the applicant. Regulation 109 provides that the Chief of the Air Staff may dispense with the services of an airman at any time, and that the competent authority to authorize the discharge shall be the Chief of the Air Staff . Wing Commander Wark was the deponent to an affidavit in which he set out the history of the matter, and in addition, he annexed the relevant documents on the file relating to the decision which led to the discharge of the applicant. The primary document was exhibit C to that affidavit, which was dated 17 April 1984 and it set out the personal details of the applicant, the fact of the conviction for the improper possession and stealing of public property, the applicant's service history, personal qualities, particular proficiency, and the fact that he had previously applied for a discharge. There followed a summary of the investigation into the theft and the adverse report which was served upon the applicant. The applicant's statement in answer to the adverse report is summarized, and the relevant documents which have been compiled in relation to the applicant were also referred to and in some cases summarized.

6. Wing Commander Wark came to the conclusion that he should recommend that the applicant be discharged under the provisions of Air Force Regulation 115 paragraph (r) on the basis that his services be no longer required. That paragraph is simply a reproduction of the matter contained in regulation 109, and it appears with a number of other grounds upon which an airman may be discharged.

7. Moving to the grounds upon which the application is made and their application to the facts before me, I find no evidence of any breach of the rules of natural justice; the opportunity given to the applicant to answer the adverse report was utilized and was taken into account. As to the ground that the decision was not authorized by enactment in pursuance of which it was purported to be made, I have had no submissions sufficiently substantial in that regard to warrant me dealing with the submission.

8. The main ground relied upon by the applicant was the taking into account of irrelevant considerations or not taking into account relevant considerations. Applicant's counsel particularly relies upon the fact that Wing Commander Wark referred to the value of the goods misappropriated or stolen as being four thousand dollars ($4,000), when ultimately it was ascertained that that value was two thousand six hundred and fifty dollars ($2,650). I do not regard that as a relevant consideration in the sense in which it is used in the Act and, in any event, the disparity between the two figures is not such as to cause any adverse comment to Wing Commander Wark's attitude towards them.

9. As well as the affidavit, Wing Commander Wark was given notice to attend for cross-examination. He did so, he was cross-examined at length as to the considerations he took into account in reaching his decision. Although counsel for the applicant had commented to the effect that he has given weight to matters which it is suggested he should not have given such weight to, and that he has failed to give weight to other matters, I would refer to the judgment of Deane, J. in Sean Investments Pty Limited v. MacKellar (1981) 38 ALR 363 at 375, where his Honour said this, and I quote:-
   
   

"In a case such as the present, where relevant

considerations are not specified, it is largely for the decision-maker, in the light of matters placed before him by the parties, to determine which matters he regards as relevant and the

comparative importance to be accorded to matters which he so regards. The ground of failure to take into account a relevant consideration will only be made good if it is shown that the

decision-maker has failed to take into account a consideration which he was, in the

circumstances, bound to take into account for

there to be a vaild exercise of the power to

decide."

1. In fact the decision-maker did not attach undue weight to any of the considerations which he took into account and, in my view, his assessment of the situation could not be attacked on the basis of the ground relied upon. I should mention that counsel for the applicant submitted that where the decision-maker referred to the position of the Air Force as an employer, in the common law sense, he was making an error of law. I am not satisfied that what the decision-maker was doing on that occasion was expressing what the law was, but was rather assessing the situation in relation to the position of an employer vis-a-vis an employee, in a factual context.

2. The fact that other considerations might apply where the employee is a servant of the Crown as commented upon in such cases as the Commonwealth v. Quince (1944) 68 CLR 227 is, to my mind, of no moment. The applicant had committed a serious offence. He was in a situation where his employment, if it continued, would be unsupervised and the decision-maker came to the view that, if he were to remain in the Air Force, there would be a need for supervision but no possibility of it being carried out.

3. In all the circumstances, I am of the opinion that the application should be dismissed, and I do so.