Paterson v Chief of the Army (No 2)
[2001] FCA 196
•7 MARCH 2001
FEDERAL COURT OF AUSTRALIA
Paterson v Chief of the Army (No 2) [2001] FCA 196
SERGEANT BRUCE PATERSON v CHIEF OF THE ARMY
N 36 OF 2001LINDGREN J
7 MARCH 2001
SYDNEY
IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
N 36 OF 2001
BETWEEN:
SERGEANT BRUCE PATERSON
APPLICANTAND:
CHIEF OF THE ARMY
RESPONDENTJUDGE:
LINDGREN J
DATE OF ORDER:
7 MARCH 2001
WHERE MADE:
SYDNEY
THE COURT ORDERS THAT:
1.The application be dismissed.
2.The applicant pay the respondent’s costs.
Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
N 36 OF 2001
BETWEEN:
SERGEANT BRUCE PATERSON
APPLICANTAND:
CHIEF OF THE ARMY
RESPONDENT
JUDGE:
LINDGREN J
DATE:
7 MARCH 2001
PLACE:
SYDNEY
REASONS FOR JUDGMENT
INTRODUCTION
The applicant (without discourtesy, “Paterson”) claims that he “transferred” from the Australian Army Reserve (“ARes”) to the Australian Regular Army (“ARA”) because of an assurance he was given that he would not be posted away from the Sydney Military Area (“SMA”) for a period. He has in fact been posted away from the SMA to the Army Promotion Training Centre (“APTC”) at Canungra in Queensland during that period.
Paterson seeks relief under the Administrative Decisions (Judicial Review) Act 1977 (Cth) (“the AD(JR) Act”) and under s 39B of the Judiciary Act 1903 in respect of the posting decision and in respect of two unfavourable decisions on applications by him for review of the posting decision. The ground of relief on which Paterson’s submissions were based is that in taking the decisions, the respondent failed to take into account a relevant consideration, namely, the giving of the assurance mentioned, with the result that the decisions are liable to be set aside. At various times during the course of the proceeding, Paterson has claimed that the respondent is estopped from departing from the alleged assurance, and that the assurance gave rise to a legitimate expectation that the assurance would not be departed from without Paterson’s being first given an opportunity to be heard. Ultimately, however, these claims were not pressed. Nor is there a claim of breach of contract.
Subregulation 77(2) of the Australian Military Regulations made under the Defence Act 1903 (Cth) provides, in effect, that the Chief of Army may post an officer to an appointment. It is not in dispute between the parties that the posting decision was an exercise of that power, and was therefore “a decision of an administrative character made¼under an enactment” for the purpose of the definition of decisions to which the AD(JR) Act applies (see par (c) of the definition of “enactment” in subs 3(1) of the AD(JR) Act). Nor is it in dispute that the two review decisions satisfied the same description.
CHRONOLOGICAL ACCOUNT OF BACKGROUND FACTS
Paterson first enlisted in the ARes on or about June 1983. Apart from a period from February 1985 to November 1985, he served in the ARes from then until 1 October 1999 when he transferred to the ARA in the circumstances recounted below.
In late 1998, Paterson was employed by the New South Wales Environment Protection Authority (“EPA”) as an analytical chemist. At that time, he was also serving as a sergeant in the ARes and was posted to 176 Air Dispatch Squadron (“176 AD Sqn”) at Richmond, near Sydney. According to Paterson, in November 1998, after he had successfully completed Subject 1 for the rank of Warrant Officer, he was approached by his Officer Commanding at 176 AD Sqn, Major Dean Herbert, who asked him whether he would be able to do “a year’s full-time Army Reserve service”. Paterson arranged with the EPA to take leave and he commenced as a full time Reservist on 1 March 1999. However, by a course of events not revealed by the evidence, his period of full-time service in the ARes in fact expired on 30 September 1999.
In mid-July 1999, Major Herbert asked Paterson to consider transferring to the ARA, which, he said, had a position for him in the “Air Dispatch trade”. According to Paterson, Major Herbert raised the matter several times subsequently, including in late July or early August 1999, when Paterson spoke of his concern that if he joined the ARA he might be posted away from the SMA. In his affidavit sworn 17 January 2001, Paterson states that he said to Major Herbert:
“I have discussed things with my wife and we have decided the only way I could come across to the ARA is if I knew I was staying in Sydney for the next three years. This is firstly because my wife is on an IVF programme run by a doctor from Royal North Shore Hospital. It was very hard to get on the programme and we couldn’t get her transferred to anywhere else. Also, we have mortgage and loan commitments. We would need my wife’s salary to contribute to the repayments for the next three years if I am to give up my civilian employment. She is working as an analytical chemist at the Australian Government Analytical Laboratories at Pymble. We need her salary because I would take quite a salary reduction to come across, and she would find it hard to get work outside Sydney.”
(There is independent evidence that Mrs Paterson was indeed on an IVF program and that the couple were borrowers from RAMS Mortgage Corporation Ltd.) Paterson says Major Herbert undertook to make inquiries of the Soldier Career Management Agency (“SCMA”) and suggested that Paterson also make inquiries of his “Career Adviser” at SCMA.
According to his affidavit, Paterson attempted to contact that Career Adviser, Captain Laycock, but he was unavailable for an extended period, and the person filling his place, Warrant Officer Armstrong, said he could not give Paterson any advice. Paterson says he told Major Herbert of this, and Major Herbert said he would either contact SCMA himself or have the Squadron Sergeant Major (“SSM”) do so. Paterson’s affidavit relates his conversation with Major Herbert which lies at the heart of the case he seeks to make, in the following terms:
“In about mid August 1999 Major Herbert came back to me and said ‘The SSM and I have made some enquiries of SCMA. If you come across to the ARA you will first be posted back here to 176 and then you will be posted to Air Movements and Training Development Unit [“AMTDU”] at Richmond for a full posting cycle.’ Or words to that effect. I replied to him ‘That keeps me in Sydney as long as I need. I’ll go and sign my transfer application.’ I signed my transfer application over the next day or so and transferred to the ARA with effect 1st October 1999.”
The evidence does not reveal when Paterson’s “transfer” from the ARes to the ARA was approved, but it took effect on 1 October 1999, the day after his period of service as a full-time Reservist terminated.
In mid September 1999, while still a full-time officer in the ARes, Paterson was sent to Darwin to support the deployment of Australian troops to East Timor. On 10 January 2000 he was deployed to East Timor where he remained until 25 June 2000.
Immediately following his return from East Timor, Paterson had a period of post-deployment leave, after which, in late July 2000, he returned to his post at 176 AD Sqn at Richmond, where he found waiting for him Posting Order 02/00/04218 authorised by Captain J W Cooke of SCMA. This notified him that he was posted from 176 AD Sqn to the APTC at Canungra with effect from 15 January 2001, for a period expected to end in December 2002.
Paterson took the several steps referred to below to overcome his posting to Canungra. As noted in more detail later, the respondent relies on the fact that as he took those steps, his reliance on, and account of, the critical conversation with Major Herbert changed.
First, on 9 August 2000, Paterson completed a form of “Application for Retention” in which he stated:
“At the time of my transfer to the ARA there was no suggestion of a posting outside the Sydney Metropolitan Area within the first two years. The main consideration on transfer was the continuance of my wife’s income for at [sic] least two years. A posting to Canungra would entail my wife terminating her employment and hence cause severe financial disadvantage to my family.”
Paterson’s Application for Retention was supported by a letter dated 4 August 2000 from himself to Captain Cooke, which included the following paragraph:
“At no stage in the discussions leading to my transfer was there any hint of a posting outside the Sydney Metropolitan Area for at least two years. All indications were that my career path would lead me to a posting at AMTDU. Further, prior to my transfer, at a morning tea function at 176 Air Dispatch Sqn in mid 1999, BRIG Wilkinson stated that I would be on the next available Subject 2 for WO2 Cse. This would mean I would be fully qualified for promotion to WO2 in the near future. This reinforced the expectation of a posting at AMTDU as there was a vacancy for a WO2 at that establishment and this greatly swayed me in my decision to transfer to the ARA.”
It will be observed that in these two documents, Paterson did not refer to the alleged assurance given by Major Herbert at all.
A Minute of the SCMA dated 29 August 2000 signed by Captain Cooke recorded that Paterson’ Application for Retention was not approved.
Secondly, on 25 September 2000 Paterson wrote a letter to Major A J W Polich of the SCMA requesting a review of Captain Cooke’s decision. Under cover of a Minute dated 10 October 2000, Major P A Bruce, the Officer Commanding at 176 AD Sqn, wrote to Major Polich enclosing Paterson’s letter and supporting his request for review. Paterson’s letter included the following paragraphs:
“5.It was with full knowledge of the above mentioned circumstances that MAJ Herbert, then OC 176 Air Dispatch Sqn advised me that I would be posted to AMTDU or 176 Air Dispatch Sqn for the initial two year ARA posting tenure. Without this enticement, I would not have transferred to the ARA.
¼
7.Commencing in June 99, prior to transferring to the ARA I personally, together with other members acting on my behalf, made numerous attempts to confirm with SCMA what would be my status concerning posting tenure and career expectations. These inquiries were directed initially to CAPT Laycock, then career adviser for the Air Dispatch trade, who remained ‘un-contactable’. Inquiries were then directed to WO1 Armstrong who at that time was temporarily occupying CAPT Laycock’s position. Unfortunately, WO1 Armstrong felt he was not then sufficiently qualified to offer advice.
8.The inability of SCMA at the time to advise either my Unit or myself resulted in a situation where the only advice available was from within 176 Air Dispatch Sqn. This advice was principally obtained from MAJ Herbert, WO2 Jansen, SSM 176 Air Dispatch Sqn, and WO2 Milne, Troop WO. The information provided by them was based on prior experience dealing with SCMA.”
It will be observed that in this letter Paterson asserted that he and other members of 176 AD Sqn had attempted unsuccessfully to obtain an assurance from SCMA, and that as a result he was obliged to rely on the advice of Major Herbert and others, based on their previous experience with SCMA in other cases.
A SCMA Minute dated 16 November 2000 recorded that SCMA had reviewed Paterson’s application “for compassionate retention” but that the SCMA’s original decision of 29 August 2000 not approving his Application for Retention was upheld.
Thirdly, on 8 December 2000 Paterson applied for “Redress of Grievance” (“ROG”). In this document, Paterson began by identifying the precise nature of his grievance as follows:
“A decision by SCMA to post me to a Unit outside of the Sydney Metropolitan Area (SMA) commencing 15 January 2001. This posting is contrary to an agreement that was the basis of my transfer to the ARA from the Army Reserve (ARes) in response to an invitation extended to me on behalf of Army.” (my emphasis)
This marks the first occasion on which Paterson alleged an agreement or assurance binding on the Army. Paterson’s application for ROG also included the following paragraphs:
“1.The reason I transferred into the ARA was by invitation in order to fill a severe staff shortage within the Air Dispatch trade. It was made clear at the time that I was not in a position to transfer from the Army Reserve (ARes) due to the involvement of my wife and myself in an IVF program. Participation in this program meant that my wife would have to remain in the SMA for a maximum of 2 years.
¼
3.It had also been made clear at the time my transfer into the ARA was solicited, that a career change would only be possible if I remained in the SMA for at least two years, in order to create financial stability due to a reduced income and the need to finance the IVF program.
4.It was due to my personal circumstances referred to above, that in order to entice me into the ARA I was given an undertaking by MAJ Herbert, then OC 176 AD Sqn, that I would be permitted to only accept postings to Units within the SMA for the initial 2 year posting tenure. Without this undertaking, I would not have transferred to the ARA.
5.At the time of my transfer into the ARA from the ARes, I was in possession of a secure, well-paid job as an Analytical Chemist with the NSW Environment Protection Authority (EPA). By transferring to the ARA, I effectively ‘burnt my bridges’ as far as any further career prospects within the EPA. I would not have undertaken such a transfer unless I was given to understand that I had effectively entered an agreement that would be honoured by Army.
6.Commencing in June 99, prior to transferring to the ARA, I personally, together with other members on my behalf, made numerous attempts to confirm with SCMA my status concerning posting tenure and career expectations. These inquiries were directed initially to the then career adviser for the Air Dispatch trade, CAPT Laycock who remained ‘un-contactable’. Inquiries were then directed to WO1 Armstrong who at that time was temporarily occupying CAPT Laycock’s position. Unfortunately, WO1 Armstrong felt he was not then sufficiently qualified to offer advice.
7.The inability of SCMA at the time to advise either my Unit or myself resulted in a situation where the only advice available was from within 176 AD Sqn. This advice was principally obtained from MAJ Herbert, WO2 Jansen, SSM 176 Air Dispatch Sqn, and WO2 Milne, Troop WO. The information provided by them was based on prior experience dealing with SCMA.” (my emphasis)
In the penultimate paragraph of his application for ROG, Paterson stated:
“It is respectfully submitted that it is irrelevant that MAJ Herbert, unable to obtain any proper advice from SCMA and motivated according to what he accurately assessed as being in the best interests of the Service at the relevant time, agreed to an initial two year posting in the SMA without technically correct authorisation.” (my emphasis)
This document makes it clear that Paterson was now asserting an agreement made with him by Major Herbert without authority from SCMA.
There was attached to Paterson’s application for ROG a statement by Lieutenant T J Campbell dated 10 October 2000 reading as follows:
“1.SGT B. Paterson was under my command as a Section Sergeant in 2 Tp, 176 Air Dispatch Squadron in early 1999. At this stage, SGT Paterson was serving a period of extended Gres [“General Reserve”, another form of reference to the Ares] service within 2 Tp.
2.SGT Paterson was considering transferring from Gres to the ARA but was also contemplating further civilian employment. Transfer to the ARA would be done at significant sacrifice to his financial and family situation. The Air Dispatch trade was seeking capable ARA Sergeants and enticed SGT Paterson by offering at least two back-to-back Sydney based air dispatch postings. SGT Paterson succumbed to the offer and transferred to the ARA.
3.I do not recall any consideration having been given to posting SGT Paterson away from the Sydney metropolitan area after completing his initial ARA posting at 176 Air Dispatch Squadron.
4.Though limited in detail, I offer this information believing it to be a true and accurate version of the aforementioned proceedings. It should be noted that I was not privy to all ‘trade related decisions’, but the information provided is that which I, as SGT Paterson’s Troop Commander, was informed of, and as such, passed it directly to him. I have no doubt that this information helped, in part, to persuade SGT Paterson to joint he ARA.” (my emphasis)
The evidence does not establish the circumstances in which this document came into being or came to be attached to Paterson’s application for ROG. Lieutenant Campbell was not a witness in the case. I will say more of his statement later.
On 14 December 2000, Major Leigh Blair of the APTC at Canungra advised SCMA that although SCMA does not normally direct posting action in the face of an unresolved ROG application unless operational reasons dictate otherwise, the impact of Paterson’s not taking up his posting in January 2001 would be significant. Major Blair’s memo explained why. In the event, SCMA did not relieve Paterson of his obligation to “march in” at Canungra on 15 January 2001, notwithstanding the fact that his application for ROG was not resolved. (It has not yet been resolved.)
Paterson filed his application which commenced this proceeding on 11 January 2001. He sought interlocutory relief which I refused on 12 January 2001 (see Paterson v Chief of the Army [2001] FCA 14).
The final version of his alleged conversation with Major Herbert is found in his affidavit of 17 January 2001 and was set out in [7] above. It is that Major Herbert and the 176 AD Sqn Sergeant Major had obtained advice from SCMA which was that if Paterson transferred to the ARA, his first posting would be back to 176 AD Sqn at Richmond after which he would be posted to AMTDU, also at Richmond, for a full posting cycle (apparently, the initial posting back to 176 AD Sqn would be to complete Paterson’s existing posting to that Squadron as a Reservist).
REASONING (INCLUDING OUTLINE OF PARTIES’ SUBMISSIONS)
By his further further amended application for an order of review, Paterson sought review of the following three decisions on public law grounds:
(i)the decision made by Captain J W Cooke of SCMA on 1 July 2000 to post him to Canungra;
(ii)the decision made by Captain J W Cooke of SCMA on 29 August 2000 to refuse Paterson’s Application for Retention;
(iii)the decision made by Major A J W Polich of SCMA on 16 November 2000 upholding the decision of 29 August 2000.
Paterson’s further further amended application for an order of review referred only to the AD(JR) Act, but on the hearing he sought to rely also on s 39B of the Judiciary Act 1903 (Cth). The respondent did not object to this. Accordingly, the hearing proceeded on the basis that both Acts were relied on, although the further further amended application was not formally amended to refer to s 39B of the Judiciary Act 1903.
The further further amended application gives as grounds of the application that the making of each decision was an improper exercise of the power conferred by the enactment in pursuance of which it was purported to be made (by reference to s 5(1)(e) of the AD(JR) Act), that the decision involved an error of law (by reference to s 5(1)(f) of the AD(JR) Act), and that the decision was otherwise contrary to law (by reference to s 5(1)(j) of the AD(JR) Act). The “error of law” and “otherwise contrary to law” grounds raise the estoppel contention which was abandoned. In the way in which the case was argued, the “improper exercise of power” ground depended on the decision-makers’ having failed to take a relevant consideration into account in the exercise of their power (by reference to s 5(2)(b) of the AD(JR) Act). The following particulars of the relevant consideration are given:
“The respondent in deciding to post the respondent [sic – applicant] outside the Sydney region failed to take into account adequately or at all the following:-
(i)That the respondent had through his servant or agent Major Dean Herbert represented to the applicant that if the applicant transferred from the Army Reserve to the Regular Army the applicant would receive two back to back postings in the Sydney area;
(ii)That the applicant in reliance on such representation had acted to his detriment;
(iii)That because of such representation and his reliance thereon in acting to his detriment, the applicant had a legitimate expectation of receiving two back to back postings in the Sydney region;
(iv)The extent of the detriment that would be suffered by the applicant as a result of the decision.”
(Although other bases of “improper exercise of power” are alleged in the further further amended application, no submissions were made in support of them, in my opinion they have no merit, and I need say no more of them.)
In order to establish the ground of relief relied on, Paterson had to establish:
· that the assurance was given;
· that the respondent, through his delegate or delegates, was bound to take the allegation of the giving of the assurance and of Paterson’s acting to his detriment in reliance on it, into account; and
· that the respondent, through his delegate or delegates, failed to take that consideration into account.
The respondent’s submissions were to the effect that:
· on the evidence I should not be satisfied that the alleged assurance was given;
· there was no obligation to have regard to the consideration; and
· even if the alleged assurance was given by Major Herbert, regard was had to it when, on 16 November 2000, Major Polich decided to uphold Captain Cooke’s decision of 29 August 2000 not approving Paterson’s Application for Retention.
Was the alleged assurance given?
The respondent submits that Paterson has given different versions of the alleged conversation with Major Herbert, that they have progressively become more favourable to his case, and that the most favourable version of all was that made for the first time in his affidavit sworn 17 January 2001. The respondent submits that in these circumstances I should not be satisfied that the alleged assurance was given.
I assess the evidence in the present respect against the following background.
As at August 1999 when the alleged conversation is said to have occurred, Mrs Paterson was on the IVF program, Mr and Mrs Paterson were in employment as analytical chemists and they had mortgage and personal loan commitments. It was the fact, as Paterson knew, that if he transferred to the ARA, it would be assumed that he was offering unrestricted service. As at August 1999, there were in force Defence Instructions (Army) PERS 149-3 issued on 10 March 1997 by the Lieutenant General Chief of Army under s 9A of the Defence Act 1903, which contained pars 8 and 13 as follows:
“Unrestricted Service
8. Liability. Personnel managers assume that all soldiers will offer unrestricted service. Soldiers who are not prepared to render unrestricted service to meet the manning requirements of the Army cannot expect to receive the same career management consideration as soldiers who offer unrestricted service. Soldiers who fail to offer unrestricted service are to be counselled by their CO regarding their retention within the Army.
¼
Duration of Posting (Australian Regular Army)
13. The normal duration of postings overseas and to remote localities within Australia is two years. In locations other than those mentioned above there is no specified duration of posting; however, personnel managers are to plan postings on the basis of a three-year tenure (and a subsequent posting within the one geographic location where possible).¼”
I accept that it would have been a concern of Paterson’s in August 1999 that a transfer from the ARes to the ARA might lead to a posting away from the SMA, with consequential disruption to his wife’s participation in the IVF program and the meeting of their financial commitments. It is natural then to think that Paterson might be hoping for an assurance that this would not occur.
However, it was also the fact, as Paterson knew, that the posting of a soldier is effected by the relevant officer in SCMA who issues an order to the soldier concerned. In cross-examination Paterson conceded that he had understood that it was SCMA, not Major Herbert, who had power within the Army to make decisions in relation to postings. His cross-examination included the following passage:
“MR JOHNSON: Sergeant Paterson, in your affidavit you made some statements as to your dealings with Major Herbert and also as to your dealings or attempted dealings with SCMA? – Yes.
You understood, didn’t you in July of 1999 that SCMA was [the] part of the Army that had power to make decision whether people would or would not receive particular postings? – Yes, I did.
Is that correct? – That’s correct.
You knew that Major Herbert did not himself have that power, didn’t you? – Yes, I did.
It was because of that knowledge that you attempted to [contact] SCMA yourself? – Yes, I did.
And at no stage did you in fact receive any statement from any officer in SCMA to the effect that you would or would not be posted anywhere. That is correct, isn’t it? – That’s correct.”
Paterson led evidence from Craig Raymond Morgan, now a Law Student, but formerly (from June 1987 to February 2000) a Commissioned Officer in the ARA, who had retired with the rank of Major. The evidence was directed to establishing that there is a “culture” within the ARA according to which soldiers accept at face value representations made to them by their Officers Commanding. The evidence was objected to. Neither counsel was in a position to assist the Court fully with argument by reference to authorities on the admissibility of Mr Morgan’s testimony. With some doubt, I admitted it. I do not, however, accept, on the basis of Mr Morgan’s testimony, that all soldiers accept at face value and as binding on the respondent any representation made by their Commanding Officer on any subject whatever relating to the Army. In any event, the passage from the cross-examination of Paterson set out above demonstrates that he, at least, understood that Major Herbert did not have power to make posting decisions. I found Mr Morgan’s testimony of no assistance in the resolution of the issues before me.
The evidence relating to the giving of the alleged assurance must be understood, then, against Paterson’s concern to protect his position coupled with his knowledge that only SCMA could give him that protection. I turn now to the evidence which I will address in chronological sequence.
On 1 June 2000, while he was on deployment in East Timor, Paterson completed a “Soldier Development and Posting Preferences” form in which he ticked a number of boxes including one, the ticking of which signified a negative answer to the question whether there were any limitations or restrictions that might affect his next posting. In re-examination, Paterson explained that he had previously been told by his Regimental Sergeant Major that he was unlikely to be posted to Canungra and that his posting would be to one of two units based in the SMA. He said that he had meant to signify by his tick merely that there were no limitations or restrictions affecting a posting of him within the SMA.
The next matter to note is Paterson’s Application for Retention dated 9 August 2000 and his accompanying letter dated 4 August 2000 to Captain Cooke in support, both referred to earlier. Since the purpose of the documents was to persuade Captain Cooke not to adhere to his existing posting decision but to retain Paterson in the SMA, one would have expected Paterson to have referred to the assurance if it had been given and if Paterson had transferred to the ARA in reliance on it.
I set out earlier extracts from Paterson’s letter dated 25 September 2000 to Major Polich requesting a review of Captain Cooke’s decision and observed that in it Paterson referred to the inability of himself and others to obtain any advice from SCMA.
I turn next to Paterson’s application dated 8 December 2000 for ROG from which I also set out extracts earlier. It will be recalled that in that document, for the first time Paterson claimed to have had an “agreement” that he would not be posted away from the SMA. But this was said to have been based on an undertaking given by Major Herbert, not by SCMA.
It is only in his affidavit of 17 January 2001, that for the first time Paterson implicates SCMA. On this occasion, he alleges that Major Herbert told him that he (Major Herbert) and the 176 AD Sqn Sergeant Major had made inquiries of SCMA and been informed that if Paterson were to transfer to the ARA, he would be posted back to 176 AD Sqn and then to AMTDU, both at Richmond.
In his cross-examination, Paterson conceded that he had, over time, given different versions of his conversation with Major Herbert.
On the above evidence alone, I am not satisfied that Major Herbert made an inquiry of SCMA, and relayed the result to Paterson. That is, I am not satisfied that the alleged assurance relied on by Paterson was given by SCMA or that SCMA is in any way responsible for the giving of any assurance to him. Likewise, I am not persuaded that Major Herbert himself gave Paterson any assurance.
I have no reason to doubt that conversations took place between Paterson and Major Herbert and other officers of 176 AD Sqn about the difficult decision Paterson had to make and that they gave him the benefit of their opinions as to what might lie in the future for him. Moreover, I have no reason to doubt that they or some of them said that their opinions were based on their understanding of what SCMA had done in other cases in the past. I have no reason to doubt that Paterson listened to what they had to say and took it into account when making his decision. But all this falls far short of establishing the case Paterson propounds.
There was evidence from Lieutenant Colonel Ross Peter Bradford, Staff Officer Grade 1 in the SCMA to the effect that there was no record in the records of SCMA of an assurance that Paterson would enjoy an initial specified term of posting within the SMA, and if there had been any communication by Paterson with SCMA about the matter, there would have been a “record of conversation” about it on Paterson’s record. This evidence supports my conclusion reached above.
It remains to address two matters: Lieutenant Campbell’s statement and the respondent’s failure to call Major Herbert as a witness.
I set out Lieutenant Campbell’s statement earlier. The critical sentence in it is:
“The Air Dispatch trade was seeking capable ARA Sergeants and enticed SGT Paterson by offering at least two back-to-back Sydney based air dispatch postings.”
The statement does not identify who is meant by “[t]he Air Dispatch trade” or the source of the information to which the statement refers. Paterson did not call Lieutenant Campbell. Accordingly, there is no oral testimony from him elaborating on the statement and no cross-examination of him in relation to it.
The generality of the language of the statement prevents it from carrying great weight. Lieutenant Campbell was not an officer within SCMA but was at 176 AD Sqn. His statement seems to be to the effect that some unidentified person told him that some unidentified person, perhaps in SCMA but perhaps not, had at some unidentified time (perhaps “in early 1999”), offered, in some unidentified form (whether orally or in writing, the statement does not say), two back-to-back Sydney based air dispatch postings if he would transfer from the ARes to the ARA, and that Lieutenant Campbell passed on the offer to Paterson.
The statement is quite unsatisfactory and I do not accept that it provides support for the case now made by Paterson that he was given an assurance by SCMA through Major Herbert, or by Major Herbert himself. Indeed, if the last paragraph in the statement is intended to signify that Lieutenant Campbell passed directly to Paterson the offer referred to earlier in the statement, it sits ill with the case that Paterson now makes, since Paterson has never alleged that any supposed assurance was communicated to him by Lieutenant Campbell.
My assessment of the statement as deserving no weight is supported by Lieutenant Colonel Bradford’s evidence that there is no SCMA record of the alleged assurance and that if one had been given by SCMA, he would expect a record of it to exist.
I turn now to the respondent’s failure to call Major Herbert. Paterson submits that based on this failure, I should draw an inference of the kind referred to in Jones v Dunkel (1959) 101 CLR 298. There was evidence that at the time of the hearing Major Herbert was undertaking a course at the Army Staff College in Canberra. I accept that he was available to testify if the respondent had wished to call him as a witness. But a “Jones v Dunkel inference” does not supply evidence otherwise missing. The inference is merely one to the effect that the testimony of the absent witness would not have assisted a party who might have been expected to call that witness. In the present case, it was not to be expected that the respondent would call Major Herbert to answer a case which was not established by the evidence led by Paterson.
For the above reasons, I am not satisfied that the alleged assurance was given.
Was there an obligation to have regard to the consideration in question?
In order to succeed, Paterson had to establish that the respondent was bound, not merely permitted, to have regard to the consideration in question, that is, the fact or allegation that Paterson had been given the alleged assurance and had relied on it to his detriment by leaving his employment with the EPA and transferring from the Ares to the ARA.
In Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24, Mason J stated (at 39) that: “[t]he ground of failure to take into account a relevant consideration can only be made out if a decision-maker fails to take into account a consideration which he is bound to take into account in making that decision.” His Honour stated further as follows (at 39-40):
“What factors a decision-maker is bound to consider in making the decision is determined by construction of the statute conferring the discretion. If the statute expressly states the considerations to be taken into account, it will often be necessary for the court to decide whether those enumerated factors are exhaustive or merely inclusive. If the relevant factors – and in this context I use this expression to refer to the factors which the decision-maker is bound to consider – are not expressly stated, they must be determined by implication from the subject-matter, scope and purpose of the Act. In the context of judicial review on the ground of taking into account irrelevant considerations, this Court has held that, where a statute confers a discretion which in terms is unconfined, the discretion are similarly unconfined, except in so far as there may be found in the subject-matter, scope and purpose of the statute some implied limitation on the factors to which the decision-maker may legitimately have regard: see Reg. V Australian Broadcasting Tribunal; Ex parte 2HD Pty Ltd [(1979) 144 CLR 45 at 49-50], adopting the earlier formulations of Dixon J in Swan Hill Corporation v Bradbury [(1937) 56 CLR 746 at 757-758], and Water Conservation and Irrigation Commission (NSW) v Browning [(1947) 74 CLR 492 at 505]. By analogy, where the ground of review is that a relevant consideration has not been taken into account and the discretion is unconfined by the terms of the statute, the court will not find that the decision-maker is bound to take a particular matter into account unless an implication that he is bound to do so is to be found in the subject-matter, scope and purpose of the Act.” (my emphasis)
Regulation 77 of the Australian Military Regulations simply gives a power to “post an officer to an appointment”. Accordingly, the discretion is expressed in the widest terms.
I do not find in the subject-matter, scope or purpose of the Australian Military Regulations an implication that the respondent or his delegate was bound to take the consideration in question into account when taking any of the decisions Paterson seeks to impugn.
Was regard had to the consideration?
I have set out earlier paragraphs 5, 7 and 8 of Paterson’s letter dated 25 September 2000 to Major Polich of the SCMA. In fact, in all, the letter comprised 17 paragraphs. Elsewhere in it Paterson made the following additional allegations:
· That he had made clear before transferring to the ARA that he was not in a position to transfer due to his wife’s participation in an IVF program which would require his wife to remain in the SMA for a maximum of two years;
· That he had made clear that a career change would be possible only if he remained in the SMA for two years to create financial stability due to his reduced income and the need to finance the IVF program;
· That the advice given to him confirmed a reasonable expectation that a career in the ARA was feasible and had caused him to apply for a transfer from the ARes to the ARA in August 1999.
The SCMA Minute dated 16 November 2000 signed by Major Polich dealing with Paterson’s request for review of Captain Cooke’s decision on his Application for Retention did refer to Paterson’s allegation as he was then making it in the following terms:
“2.SGT Paterson has raised an issue, which is of concern to SCMA. This is namely that he indicated he was promised a two-year tenure in his current location. SCMA’s concern is that these alleged a person or persons unknown made promises that these persons did not have the authority to do so. It is unfortunate that SGT Paterson was given incorrect information on requirements of full time service life. SCMA has no record of an agreed condition of transfer being the initial two year posting tenure be served in the SMA, alluded to by SGT Paterson. If such a condition was negotiated then it was not made with the relevant authority and Army cannot be held morally responsible for conditions of employment made in its name by persons without the relevant authority to do so.
3.It must be stressed that SCMA has had no evidence presented to support the suppositions of a personal agreement made between Army and SGT Paterson on his transfer. SCMA would be very interested in seeing such an agreement, as such practice is not normally performed by Army.
4.This information is released to enable SGT Paterson to be counselled on the background of SCMA’s decision. The decision is not to be interpreted as a policy statement, as each case is treated on its individual merits.”
Clearly, the decision-maker, Major Polich, had regard to Paterson’s allegation in the form in which Paterson made it in his letter to him dated 25 September 2000. That allegation was of an assurance given by Major Herbert that Paterson would be posted to AMTDU or 176 AD Sqn for the initial two-year ARA posting tenure and other advice of an undisclosed kind given to Paterson by Major Herbert and other 176 AD Sqn officers based on their prior experience of dealing with SCMA in connection with other cases. Major Polich gave the allegation no weight, however, because it would have represented an agreement made by a person who had lacked authority to make it.
The consideration to which Major Polich had regard was the one advanced by Paterson at the time. The consideration so formulated is, incidentally, consistent with the consideration as described in the particulars (set out earlier) in Paterson’s further further amended application for an order of review. But that consideration differed from the one finally deposed to in Paterson’s affidavit (an assurance given by SCMA itself and communicated to Paterson by Major Herbert). Major Polich did not take into account that consideration for the good reason that Paterson had not yet advanced it, and was not to do so until months later in his affidavit.
But according to the SCMA Minute of 16 November 2000, Major Polich had satisfied himself from SCMA records that SCMA had not given, or authorised the giving of, the assurance being asserted by Paterson. If, in his letter dated 25 September 2000 to Major Polich, Paterson had made the claim he has now made in his affidavit in this proceeding, clearly Major Polich would have rejected it as not supported by the evidence to be found in SCMA records.
Clearly, there is no merit in a case that Major Polich failed to take into account a consideration that was formulated for the first time subsequently and which would have been rejected. Equally clearly, as explained earlier, Major Polich was not bound to take that consideration into account.
For the above further reasons, the respondent did, through his delegate, have regard to the consideration in question, though not in the manner or with the result desired by Paterson.
CONCLUSION
For the above reasons the application should be dismissed with costs.
Before parting with the case, I note that there is evidence suggesting that Paterson is held in high regard within the Army. It may be that a reconsideration of his position would enable a solution to his difficulty to be found which would also be consistent with a meeting of the Army’s needs.
I certify that the preceding sixty-one (61) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Lindgren.
Associate:
Dated: 7 March 2001
Counsel for the Applicant:
Messrs B Levet and G Corr
Solicitor for the Applicant:
Ron Kessels
Counsel for the Respondent:
Mr G T Johnson
Solicitor for the Respondent:
The Australian Government Solicitor
Date of Hearing:
6 February 2001
Date of Judgment:
7 March 2001
2
6
0