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Fulton v Chief of the Defence Force

Fulton v Chief of the Defence Force

Case [2025] HCASJ 20 31 July 2025

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HIGH COURT OF AUSTRALIA
STEWARD J
HEATH MAXWELL RYAN FULTON PLAINTIFF
AND
CHIEF OF THE DEFENCE FORCE & ORS DEFENDANTS
[2025] HCASJ 20
Date of Hearing: 27 May 2025
Date of Judgment: 31 July 2025
C17 of 2024
ORDERS
1.The plaintiff's application for an extension of time pursuant to r 4.02 of the High Court Rules 2004 (Cth) ("Rules") is refused.
2.The balance of the plaintiff's application for a constitutional or other writ is summarily dismissed pursuant to rr 25.09.3(b) and 28.01.2(c) of the Rules.
3.The plaintiff is to pay the first defendant's costs of and incidental to the application.

Representation
D D Keane KC with Y Araki for the plaintiff (instructed by Operational Legal Australia)
Z C Heger SC with C M R Ernst for the first defendant (instructed by Australian Government Solicitor)
Submitting appearances for the second and third defendants

STEWARD J. The plaintiff is a former Reserve officer in the Royal Australian Air Force ("RAAF"). In January 2021 his service was terminated pursuant to reg 24(1)(c) of the Defence Regulation 2016 (Cth). He sought judicial review of that decision in the Federal Court of Australia. The defendant to that action was the Chief of the Defence Force ("the CDF"), who is the first defendant in this proceeding. The plaintiff's application for review was dismissed by Perry J (the trial judge) on 22 December 2022.[1] His appeal from that decision was dismissed by a majority of the Full Court of the Federal Court of Australia (SC Derrington and Stewart JJ; Logan J dissenting) on 18 August 2023.[2] An application for special leave to appeal from that decision was unanimously dismissed by this Court on 8 February 2024.[3]
[1]Fulton v Chief of the Defence Force (2022) 178 ALD 185.
[2]Fulton v Chief of the Defence Force (2023) 300 FCR 623.
[3]Fulton v Chief of Defence Force [2024] HCASL 11.
On 18 December 2024, some 314 days later, the plaintiff filed an application for a constitutional or other writ in the original jurisdiction of this Court, initially seeking – pursuant to s 75(v) of the Constitution – a writ of certiorari to quash the orders of both Perry J and of the Full Court. By leave, the plaintiff was permitted to add to his prayer for relief: (i) a writ of mandamus directing the Federal Court to hear his application for judicial review; and (ii) a writ of prohibition prohibiting the CDF from enforcing two cost orders made in the judicial review proceedings by Perry J and by the Full Court respectively.
By the present application, the plaintiff now complains that the decision of Perry J was infected with jurisdictional error, and that the decision of the Full Court was therefore also necessarily flawed. The alleged error was not raised before Perry J, was not raised before the Full Court, and was not disclosed in the plaintiff's application for special leave to this Court. The alleged error is that there was a…

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.

Continue reading Fulton v Chief of the Defence Force

Details

AGLC: Fulton v Chief of the Defence Force [2025] HCASJ 20
Case: [2025] HCASJ 20
Decision Date: 31 July 2025

CaseChat Overview and Summary

The plaintiff, a former Reserve officer in the Royal Australian Air Force (RAAF), sought judicial review of the decision to terminate his service, which was dismissed by both the Federal Court and the Full Court. Following the refusal of special leave to appeal to the High Court, the plaintiff filed an application in the original jurisdiction of the Court, seeking a writ of certiorari, a writ of mandamus, and a writ of prohibition. The plaintiff's application was filed well outside the statutory time limits and, in any event, his claim of apprehended bias was not raised before the trial judge, before the Full Court, or before this Court in the plaintiff's application for special leave. The plaintiff's application was also filed more than 10 months after the refusal of special leave. The plaintiff sought an extension of time within which to file his application, but that request was refused. The writs of mandamus and prohibition were also dismissed as an abuse of process. The plaintiff was ordered to pay the costs of the Chief of the Defence Force.

Orders