Fulton v Chief of Defence Force

Fulton appealed against the dismissal of an application for review of the decision by a delegate of the Chief of Defence Force to terminate his service with the Defence Force. The delegate's decision was based on a finding that the appellant's retention was not in the interests of the Defence Force. The primary issue for the court was whether the delegate was required to take into account the appellant's annual personal performance reports and if the delegate took into account an irrelevant consideration being a non-recorded conviction for a traffic offence. The court also considered whether the appellant was denied procedural fairness due to being given only 21 extra days to respond to the termination notice. Additionally, the court examined the interpretation of certain sections of the Penalties and Sentences Act 1992 (Qld) and the Crimes Act 1914 (Cth) in relation to the appellant's unrecorded conviction.

The court found that the delegate was not required to consider the appellant's performance reports as mandatory relevant considerations within the statutory context of the Defence Regulation 2016. The court held that the delegate did not take into account an irrelevant consideration being a non-recorded conviction for a traffic offence, as the delegate considered the fact that the appellant appeared in court charged with a criminal offence, and the fact that the appellant had failed to notify his commanding officer that he had been so charged and was to appear in court. The court also found that the appellant was not denied procedural fairness despite being given only 21 extra days to respond to the termination notice. The court dismissed the appeal and ordered that the appellant pay the respondent's costs to be assessed if not agreed.