Shand, Private Paul Anthony v Chief of the Army
[1998] FCA 1507
•14 OCTOBER 1998
IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
NG 992 of 1998
BETWEEN:
PRIVATE PAUL ANTHONY SHAND
ApplicantAND:
CHIEF OF THE ARMY
Respondent
JUDGE:
EMMETT J
DATE OF ORDER:
14 OCTOBER 1998
WHERE MADE:
SYDNEY
THE COURT ORDERS THAT:
The application be dismissed.
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
NG 992 of 1998
BETWEEN:
PRIVATE PAUL ANTHONY SHAND
ApplicantAND:
CHIEF OF THE ARMY
Respondent
JUDGE:
EMMETT J
DATE:
14 OCTOBER 1998
PLACE:
SYDNEY
EX TEMPORE REASONS FOR JUDGMENT
HIS HONOUR: The applicant, Paul Anthony Shand (“the Applicant”) was a Private in the Australian Regular Army. The Applicant seeks to impugn a decision that he be discharged from the Army, a decision which took effect on 22 September 1998. The proceedings are brought under the Administrative Decisions (Judicial Review) Act 1977 (Cth) (“the AD(JR) Act”) and were commenced at about the time of the discharge. The respondent is the Chief of the Army.
It is necessary to explain the statutory framework within which the proceedings arise in order to consider the issues which have been raised by the Applicant. Section 44 of the Defence Act 1903 (Cth) provides that subject to the regulations, a soldier may at any time be discharged by the Chief of the General Staff for such reasons as are prescribed. Section 124(1)(a) relevantly provides that the Governor-General may make regulations providing for and in relation to the enlistment, appointment, promotion, reduction in rank and discharge of members of the Defence Force.
Australian Military Regulations have been made pursuant to section 124. Regulations 176 and 177 relevantly provide as follows:
176(1)For the purposes of section 44 of the Act, each of the following reasons is a reason for the discharge of a soldier:
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(n)that the Chief of the Army is satisfied that the retention of the soldier in the Army is not in the interest of Australia or of the Army;
177(1)…the discharge of a soldier for a reason prescribed by subregulation 176(1) shall be effected in accordance with an order for the discharge of the soldier signed by the Chief of the General Staff.
(2) An order for the discharge of a soldier shall specify:
(a) the reason for the discharge; and
(b) the date on which the discharge is to have effect.
(3)As soon as practicable after the Chief of the General Staff signs an order for the discharge of a soldier in pursuance of subregulation (1) he shall, unless the soldier cannot be found:
(a)cause the soldier to be informed of the making of the order: and
(b) cause a copy of the order:
(i) to be served on the soldier personally; or
(ii)to be served by post on the soldier at his address last known to the Chief of the General Staff.
The Applicant's first contention is that regulation 177 was not observed and, accordingly, that there was no valid decision for his discharge or, alternatively, there was no effective discharge complying with 177(2). The Chief of the Army concedes that there is no single document that fully complies with the form and service requirements of regulation 177 in relation to the Applicant's discharge on 22 September 1998.
It appears to be common ground that the decision to discharge was a decision under an enactment within the meaning of the AD(JR) Act and that by reason of non compliance with regulation 177 there are grounds for review under section 5 of that Act. However, the Chief of the Army contends that even though regulation 177 may not have been complied with, the Court, as a matter of discretion, should grant no relief. That argument will require a consideration of the somewhat complex procedural background to the Applicant's discharge.
The second contention on behalf of the Applicant is that insofar as the discharge was dependent upon a determination made by Major Julie Margaret Blumson on 21 September 1991, that decision was made without authority. Section 120A(4) of the Defence Act provides that the Chief of the General Staff may, by instrument in writing, delegate to an officer of the Army all or any of his powers under, inter alia section 44.
By instrument of 7 July 1997, the Chief of the Army delegated the power pursuant to section 44 in the following terms:
…to discharge soldiers of the rank not higher than the rank of staff sergeant, to the OFFICER OF THE ARMY for the time being holding, occupying or performing duties of Staff Officer Grade Two, Soldier Career Management Agency;…
I have before me evidence concerning the staffing of the Soldier Career Management Agency. Within the personnel management group there is a category described as PM1 RAAC/RAA/RAINF/AAAVN/AUST INT. Major Blumson is shown as a “Staff Officer Grade 2” under that heading. However, in other parts of the delegation reference is made to “Officers of the Army”. Reference is also made to the appointment of “Staff Officer Grade 1, Personnel Management, SCMA. In an instrument of delegation of powers pursuant to subregulation 176, reference is also made to the appointment of “Staff Officer Grade 2, Personnel Management, SCMA”.
The Applicant's contention is that the delegations draw a distinction between officers whose appointments can be described as “Staff Officer Grade 2, Personnel Management SCMA” on the one hand, and the officer, whose appointment is described as “Staff Officer Grade 2, SCMA”. The Applicant contends that Major Blumson, while she clearly holds the first appointment, is not necessarily the officer who holds the second appointment.
However, Major Blumson said in evidence before me that both descriptions apply to her. Further, there is no evidence that there is an appointment of an officer as “Staff Officer Grade 2, SCMA”, separate from those officers who hold appointment as “Staff Officer Grade 2, Personnel Management, SCMA”. I am satisfied, therefore, that Major Blumson had delegated authority to exercise the power to discharge under section 44 of the Defence Act. Accordingly, this ground fails.
The third and fourth bases upon which the Applicant's discharge is impugned concerns failure to comply with Defence Instructions (General). Section 9A(2) of the Defence Act provides that instructions issued by or with the authority of the Secretary and the Chief of the Defence Force in pursuance of the powers vested in them jointly by virtue of subsection (1) shall be known as Defence Instructions (General).
Section 29(1) of the Defence Force Discipline Act 1982 (Cth) then relevantly provides that a person, being a member of the Australian Regular Army who does not comply with the Defence Instruction (General) that is applicable to him or her, is guilty of an offence.
Included in Defence Instructions (General) is a section entitled “Redress of Grievance - Trial Service Procedures”. That section of the Defence Instructions (General) relevantly contains the following paragraphs:
1. Under the Defence Force Regulations, members with a grievance concerning any matter relating to their service, may make a complaint in writing to their commanding officer (CO).
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3. The aim of this instruction is to detail procedures for dealing with applications for redress of grievance (ROG) within the ADF.
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11. …Members are to submit their complaint in writing to their CO in the first instance…
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18. A member's CO has the primary responsibility for attempting to resolve the member's complaint and for ensuring that the procedures detailed in this instruction are adhered to.
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22. …When a complaint relates to a proposed action, the Service is not to take that action until the complaint has been finally disposed of, unless Service requirements dictate otherwise; ie, where considerations of safety, security, discipline or effective operation of the unit dictate that the proposed action should be taken regardless of the submission of a complaint. If necessary, on receipt of a complaint the member's CO should alert the appropriate authority to this requirement.
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26. A CO should appoint an officer or warrant officer to investigate the complaint and prepare a written report…
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29. When investigating a complaint against an administrative decision a redress officer should normally obtain a Statement of Reasons (SOR) from the original decision maker… Upon receipt of a request for a SOR, the decision maker is not required to conduct a review of the original decision but to provide an explanation for the decision…
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33. When a redress officer is satisfied that the member has no grounds for the complaint the redress officer is to notify the member in writing together with reasons for the decision…
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43. Where involuntary cessation of service is likely to form the basis of a complaint, the member is to be given a minimum of 21 days from the date of receipt of the discharge order to the date of discharge. This will allow sufficient time for the member to submit a complaint before being discharged.
In addition, Part 15 of the Defence Force Regulations also deals with redress of grievances. The relevant regulations are as follows:
75(1) Subject to this Part, where a member considers that he or she has a grievance concerning any matter relating to his or her service, the member may make a complaint to his or her commanding officer.
(2) A complaint shall be in writing.
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76(1) Subject to sub-regulation (2), if a member is not satisfied with the decision of a commanding officer on a complaint, the member may refer the complaint:
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(b)in the case of a member of the Army - to the Chief of the General Staff;…
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77. An officer to whom a complaint is made under subregulation 75(1) or referred under regulation 76, must:
(a)investigate the complaint without delay or cause it to be investigated without delay; and
(b)notify the member of the results of the investigation without delay.
It seems that the Defence Instructions (General) to which I have referred above are intended to flesh out the specific requirements of Part 15 of the Defence Force Regulations.
The Applicant contends, first, that insofar as reliance is placed by the Chief of the Army on the decision of Major Blumson of 21 September 1998 there has been a failure to comply with paragraph 43 of Defence Instructions (General). The Chief of the Army responds that even if there has been a failure to comply with paragraph 43, the Court, in the exercise of its discretion, would grant no relief. The possible application of paragraph 43 and the response of the Chief of the Army will also require a consideration of the complex procedural background to the Applicant's discharge on 22 September 1998.
The Applicant contends, secondly, in relation to the Defence Instructions (General), that there has been a failure to comply with paragraph 22 because there were, as at 22 September 1998, two outstanding applications for redress of grievance which had been submitted by the Applicant. It was common ground that regulation 77 of the Defence Force Regulations had not been complied with in respect of those applications. However, the Chief of the Army contended that the proviso to paragraph 22 was attracted on the basis that the effective operation of the Applicant's unit dictated that the proposed discharge action should be taken regardless of the complaints. In that respect, the Chief of the Army relied on the evidence of Major Blumson.
It is necessary to consider the terms of the two applications for redress of grievance. The Chief of the Army contended that since Major Blumson had taken into account all of the matters which were the subject of the complaints there was, in the events which had happened, nothing to be achieved by delaying the proposed discharge until after the application had been formally disposed of. It is necessary, therefore, to consider also the evidence of Major Blumson.
While there were several prior instances of administrative warnings being given by the Army to the Applicant, the relevant history begins on 13 February 1997 when the Applicant was given “notice to show cause” by his commanding officer. That document relevantly says:
1. I hereby inform you that I propose to seek your discharge under AMR 176(1)(n), Retention not in the interest of the Army.
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3. Should you wish to submit reasons as to why you should not be discharged, you are to do so within seven days of the date of receipt of this notice. You may consult a Legal Officer if one is available or you may have another person assist you in preparing your response. If you do not wish to submit reasons why you should not be discharged, you are to sign the statement below and forward it to me within seven days or sooner if practicable.
The Applicant signed an acknowledgment of that document on 13 February 1997. On 24 February 1997 the Applicant submitted a response. His conclusion was in the following terms:
19. I accept that a number of the matters raised in the NTSC are true and weigh against me in any assessment of my suitability for retention. I gave a number of undertakings in my response to the first NTSC issued on me in January 1996. I have to the best of my ability complied with those. It is my submission that all of the matters raised in this NTSC are the result of a destructive home life and my overall inability to seek assistance in dealing with it. It has taken me many years to accept this situation. I have now resolved to correct my life and establish direction, as is evidenced by my payment of the outstanding debt to Gower Commercial Agency. I therefore request that I be retained in the Army for a further short ‘probationary period’ and afforded a final opportunity to do the following:
(a) to prove myself as a competent soldier worthy of retention in the Australian Regular Army; and
(b) to once and for all deal with the destructive implications of my marriage with Deanna, and to seek referral to a specialist for ongoing counselling in that regard.
20. Should you be minded to grant this request, I give a final undertaking that if I fail to adequately meet the expectations Army requires of me, then I shall not oppose any subsequent proceedings against me for discharge.
The Applicant's commanding officer responded to that answer in the following terms:
1. I do not accept the reasons you have submitted regarding your Notice to Show Cause as suitable reasons to remain within the Australian Army. You have received extensive counselling by members of this unit and other units as well as various civil community organisations, but you have failed to show any indication that you are attempting to rectify your problems. These issues shall be addressed individually.
The document then set out in some detail a response to the detailed matters raised by the Applicant. The conclusion was as follows:
18. During the past twelve months you have failed to comply with the orders expressed in your Administrative Warning on the 2 February 1997. You have failed to rectify your debts, your domestic affairs that resulted in you being evicted from your married quarter and you have failed to demonstrate to me your suitability within the Army. I feel that you have had more than adequate time to do so, and that by simply placing you on a further ‘short probationary period’ will not resolve the problem. This is highlighted by the fact that you have had three previous warnings for the same matters.
20. I note with considerable concern the comments made by the Senior Navy Psychologist, Mr Newlyn, that should you remain within the Army you will continue to require support services and further lengthy administrative support. His conclusions are that retention would not be in the best interest of the Army or yourself. These conclusions were the same reached by the Army psychologist, Major Reynolds on the 16 February 1990 and your former Commanding Officer, Lieutenant Commander Bigham RAN on the 19 July 1990.
21. I therefore actively seek your discharge under AMR 176(1)(n) Retention not in the interest of the Army.
On 5 March 1997 a discharge determination was made by Major J.C. Hill in the following terms:
1. I, MAJ J.C. Hill, being a prescribed Discharge Authority under the powers and functions of DA 44 have considered the following:
(a)your Notice to Show Cause Why Discharge Should Not Occur dated 13 Feb 97;
(b)your Response to Notice to Show Cause Why Discharge Should Not Occur dated 24 Feb 97;
(c) your Commanding Officer's recommendation of discharge; and
(d)your complete Service History: this included adverse and supporting material.
2. In reaching my decision, I gave weight to all of the above considerations; however, I gave great weight to the recommendations of your CO, and the fact that you brought the Army into disrepute with your inability to control your finances over a considerable period of time. I have determined that you are to be administratively discharged under the terms of AMR 176(1)(n) ‘Retention in the Army not in the interest of the Army’. The effective date of your discharge is to be 28 Mar 97.
At that stage, that document appears to have complied with the requirements of regulation 177.
On 2 April 1997 the Applicant submitted an application for redress of grievance. The grounds for his complaint were set out as follows:
1. The decision maker failed to take into account adequately or at all the following relevant factors:-
a.The explanatory and mitigating factors contained in Ref C [the response to show cause].
b. My prior service including -
(i) length of service;
(ii) courses successfully completed by me;
(iii)prior favourable reports raised on me (copies attached).
(c) That I have now discharged all my debts.
(d)That I was not charged with any civilian offence relating to cheques not met on presentation pursuant to the Crimes Act (1900) NSW.
2. The decision maker took into account irrelevant material including debts, dishonoured cheques and financial obligations which were incurred by my wife and not by me. I as a matter of law cannot be held responsible for any debts incurred by my wife.
The assertion by CO PTS at paragraph 8 of REF C “that your claim that your wife wrote dishonourable [sic] cheques from your joint accounts is irrelevant” is as a matter of law incorrect. I cannot as a matter of law be held to be liable for any debt incurred by my wife or any other person without my authority. Further, I cannot be held responsible for the action of my wife in writing cheques to meet her commitments, albeit that such cheques were a then joint account of my wife and myself.
Captain J.A. Wetherill was asked to investigate the application for redress of grievance on 3 April 1997. Captain Wetherill requested a statement of reasons for the decision. On 21 April 1997, a statement of reasons was furnished relevantly providing as follows:
5. I am the SO1 Personnel Management Group, SCMA. By virtue of my appointment, I am the designated authority for the purpose of approving the discharge of soldiers in the ARA.
6. …I have reviewed the decision made with regards to PTE Shand's discharge. The factors considered in my deliberations are as follows:
a.PTE Shand's Notice to Show Cause;
b.PTE Shand's [application for redress of grievance]; and
c.PTE Shand's service history.
7. I have reviewed the evidence regarding the decision to discharge PTE Shand. The evidence taken into account were:
d.[Various documents and SCMA records of Private Shand's service history]; and
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8. …PTE Shand is encased in a recurrent cycle of personal problems that he appears incapable of breaking. I gave great weight to the Reference, given the complexity of the document and the numerous sources contained within. PTE Shand has demonstrated a clear and repetitive pattern over a substantial period; that pattern is one of requiring continual guidance and extensive counselling in order for PTE Shand to control his domestic and financial affairs… I am confident… that PTE Shand presents as a soldier who appears capable of functioning adequately within the workplace but is incapable of controlling his personal affairs to the extent where he is an extreme administrative liability. Despite PTE Shand's soldiering ability, he has been unable to fulfil his military potential as a direct result of down time due to personal and administrative difficulties.
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10. While I agree that PTE Shand's wife is also responsible for financial matters ie cheques accounts in joint names and payment of accounts, I do not accept PTE Shand's continual theory that his wife is the source of financial hardships and that she is responsible for writing cheques and incurring other costs without the knowledge of PTE Shand…
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11. Private Shand has requested in his response that he be retained for a further short ‘probationary period’, and afforded a final opportunity to prove that he is worthy of retention. I firmly believe that PTE Shand has had ample opportunity over the years to rectify his lifestyle…
Conclusion
12. The decision to discharge PTE Shand was based on the soldiers [sic] repetitive need to require continual counselling and guidance over domestic and financial affairs, all of which result in unnecessary down time of PTE Shand, and expansive utilisation of counselling resources and support services. PTE Shand has broken two previous warnings and has therefore demonstrated that he is not willing, or capable, of changing his behaviour. The professional assessment of Army and Navy psychologists, medical officers and social workers, who all independently concur that PTE Shand is not suited to be a soldier, also weighed heavily in my decision to discharge PTE Shand.
Recommendations
13. I recommend that PTE Shand be informed of my decision and that he be provided with a copy of this minute.
On 5 May 1997, Captain Wetherill submitted the results of his investigation into Private Shand's submission for redress of grievance. His conclusion was as follows:
13. It is evident that PTE Shand is envolved [sic] in a recurrent cycle of personal problems that appears he is either incapable or unwilling of breaking [sic]. Although, as a matter of law, PTE Shand cannot be held responsible for debts incurred by his wife, these represent only a small proportion of a much greater problem. The fact that PTE Shand has failed to adequately respond to two previous warnings demonstrates that he has been unwilling or incapable of changing his behaviour.
14. It is therefore concluded that as a matter of law, PTE Shand should not be held responsible for the debts incurred by his wife. However, given the extent of the problems detailed in his Show Cause, and the reports from the Army and Navy Psychologists, Medical Officers and DCO Social Workers, it is concluded that PTE Shand has no additional grounds for complaint.
15. PTE Shand's current good behaviour notwithstanding, it is believed that this soldier has had sufficient ‘second’ chances. We are probably observing a hiatus in the cycle of domestic problems and poor personal administration (as outlined by the DCO Social Worker), evident in PTE Shand's history.
Recommendation
16. It is recommended that:
a.PTE Shand should not be held accountable for debts incurred by his wife,
b.That PTE Shand has no grounds for complaint to his recommendation to be discharged from the Army pursuant to AMR 176(1) Retention not in the interest of the Army, and
c. PTE Shand be discharged from the Army.
On 6 May 1997 the Applicant's commanding officer wrote to him saying as follows:
1. Your complaint into the decision to discharge you from the Army under AMR 176(1)(n) Retention not in the interest of the Army, has been formally investigated and I have made a determination on its recommendations.
2. I concur with the recommendations of the investigation and find that:
a.You should not be held accountable for debts incurred by your wife,
b.that you have no additional grounds for complaint to the recommendation to be discharged from the Army pursuant to AMR 176(1)(n) Retention not in the interest of the Army, and
c. You are to be discharged from the Army.
3. If you are not satisfied with my determination you are entitled to have your complaint referred to the Chief of the Army.
On 14 July 1997, Brigadier Webster, a delegate of the Chief of the Army, considered the Applicant’s request for redress of grievance. In the memorandum of 14 July 1997, Brigadier Webster said as follows:
4. In relation to your ROG I determine that you have no legal grounds for your complaint. Following this determination, I reviewed your complaint on its merits and, again, I found no cause for complaint. My determination is that your discharge is to take place as soon as possible.
REASONS FOR DECISION
5. In your ROG you state that the decision maker failed to take into account all relevant material, took into account irrelevant material and acted under an error of law. I accept that you are not legally responsible for any debt incurred by your wife, and consequently in reaching my decision I have disregarded those incidents in your Notice to Show Cause (NTSC) which relate to debts incurred by your wife. Never the less I find that you have demonstrated a clear and repetitive pattern over a substantial period of requiring continual guidance and extensive counselling to assist you to control your domestic and financial affairs. In particular, you did not take steps to close your joint account against which your wife drew cheques which were subsequently dishonoured. It is evident to me that considerable time and effort has been spent with you by a large number of administrative staff and support agencies over an extended period of time, all to no avail. I have considered your service record throughout your career, but, despite your soldiering ability, I find that you have been unable to fulfil your military potential as a direct result of personal and administrative difficulties.
6. In reaching my decision, I have considered the mitigating factors presented in your response to your NTSC, your length of service, courses successfully completed by you, prior favourable reports raised on you and that you have discharged your debts…
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CONCLUSION
8. In summary, I have found against your complaint and direct CO SCMA to proceed with your discharge as soon as possible.
There were then brought into existence various signals authorising administratively the discharge of the Applicant. In particular, a signal of 30 July 1997 provided that approval was given for discharge of the Applicant under AMR 176(1)(n) and that the discharge was to have effect on 8 August 1997. However, on 1 August 1997, that determination was ordered to be held in abeyance. Subsequently, on 14 September 1997, a further signal authorised discharge on 19 September 1997. However, on that day, proceedings were commenced in this Court seeking orders that the decision of the Chief of the Army to discharge the Applicant be quashed and that the Chief of the Army be restrained from causing or permitting the Applicant to be discharged from the Army. At the time of commencement of those proceedings, interlocutory orders were made staying the effect of the discharge instruction. The matter came on for hearing before Burchett J on 3 November 1997 and his Honour reserved his decision at that time.
In early February 1998, the Applicant apparently requested access to documents located in his personal file. On 18 March 1998, a minute was forwarded to him enclosing certified copies of documents which were contained in his personal file and to which, up until then, he had apparently not been given access. The relevance of this matter will become apparent shortly.
On 26 March 1998, Burchett J gave his decision on the application for review. His Honour's decision was that the application be dismissed. His Honour referred, in some detail, to the history to which I have referred above and concluded that the discharge of the Applicant, being a decision that was open in law, was a question for the delegate. His Honour referred to three propositions which had been advanced on behalf of the Applicant in support of a contention that the decision for discharge should be quashed. His Honour concluded that none of the three points taken on behalf of the Applicant demonstrated any error of law.
On 29 April 1998, a further signal was brought into existence forecasting discharge of the applicant on 8 May 1998. On 7 May 1998, a signal was brought into existence confirming discharge “under AMR 1761(1)(n)” and specifying 8 May 1998 as the date for discharge of the Applicant. On 11 May 1998, the order for discharge was directed to be held in abeyance, apparently as a result of legal advice having been received that appears to have related to the filing of a notice of appeal or the foreshadowing of a notice of appeal by the Applicant.
On 26 May 1998, the Applicant filed a notice of appeal from the whole of the judgment of Burchett J. At about that time, Beaumont J made an order that, until further order, the operation of the Applicant's discharge be suspended until the hearing and determination of the appeal.
On 3 July 1998, the Applicant lodged another application for redress of grievance. The complaint was stated to be as follows:
The Army subjected me to procedural unfairness in relation to the determination of my Redress of Grievance, and in my subsequent legal proceedings in that I was provided with documents which purported to be my full personnel file, but which constituted part only of my personnel file. I was therefore not able to consider or seek advice from my legal adviser on those documents under cover of Ref E, which were relevant to the conduct of my litigation against the Army.
The redress sought was that the decision to discharge be reversed and that the Applicant be given further opportunity to respond to the original Notice to Show Cause having regard to those relevant documents -
…which the Army has now produced and which were formerly withheld from me.
The grounds for complaint were set out as follows:
1.I have been subjected to procedural unfairness in that the decision-maker in respect of [the decision of 5 March 1997] failed to take into account adequately or at all the following relevant factors:
a. The existence of the documents supplied to me…;
b.Any arguments which I might have put based upon my having observed the said documents.
2.I have been subjected to procedural unfairness in that during the course of the subsequent litigation I was denied access to those documents and the benefit of any submissions which my Counsel could have put to the Court on the basis of such documents.
3.I also say there are supplementary grounds which did not exist at the time of making the original decision and which are as follows:
a.My continued satisfactory services as a member of the Army since the making of the decision;
b.My re-assignment to married quarters since the making of the decision.
In circumstances which are not totally clear to me, an order was made on 26 August 1998 that the order made by Beaumont J be terminated and that the appeal be dismissed, That order was entered on 4 September 1998.
However, on 1 September 1998, a further signal was brought into existence which referred to the signal of 7 May 1998, deleted the reference to discharge on 8 May 1998 and substituted 22 September 1998 as the date for discharge. It appears that that signal was received by the Applicant and prompted correspondence from counsel for the Applicant on 13 September 1998 in the following terms:
I note that PTE Shand has received a Discharge Signal, a copy of which is enclosed which indicates that the discharge is to have effect on 22 Sep 1998.
Please note that PTE Shand currently has an application for redress of grievance, a copy of which I also enclose. Such redress of grievance goes to the issue of the discharge itself. My understanding is that discharges are not to proceed until such time as all redresses relating to the actual discharge have been dealt with.
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It is understood that in respect of his present redress of grievance an Investigating Officer has been appointed. This is LT McGrath of DCSO-R.
In my respectful submission it would be inappropriate for the discharge to proceed until the present redress has been dealt with to finality.
The letter foreshadowed a further application to this Court if it was intended to proceed with the discharge. By minute dated 15 September 1998, Captain T.A. Boyle responded to counsel for the applicant, saying as follows:
2. I advise that SCMA intends to expedite this matter and to that end I inform you that a new determination will be made considering any fresh evidence you may have and any further supplementary grounds you intend to rely on. The SO2 PM1 has undertaken to have made the determination before the discharge date provided your documentation is received in sufficient time.
3. You should note that SCMA will proceed with PTE Shand's discharge on 22 Sep 98 as previously advised, subject to the determination made.
There is some doubt as to the effect or intent of that minute. The Applicant contends that, in effect, it is to be taken as an abandonment of all of the process up to that date. That contention is based on the statement that a “new determination” was to be made. However, it is clear that Captain Boyle was saying that, unless that new determination was contrary to the original decision to discharge, the Applicant’s discharge would proceed on 22 September 1998 “as previously advised”.
It is not clear what prompted the decision to re-consider the matter. It may well be that it was the fact that the outstanding application for redress of grievance had not yet been disposed of. In any event, Captain Boyle said that the relevant staff officer had undertaken to make any new determination before 22 September 1998.
In response to Captain Boyle's minute, a document entitled “Supplementary Answer to Notice to Show Cause” was submitted by the Applicant on 18 September 1998. In that document, reference was made to most of the documents to which I have already referred. The document then went on, relevantly, to say as follows:
I say I should be retained in the Army for the following reasons:-
1. Over a year and a half has passed since the Notice to Show Cause was issued at Ref B. During that time,
a. My personal finances have been in order; and
b.There have been no disturbances arising from my domestic life. Indeed, my wife and I have settled down in an effort to achieve our common goal of me remaining in the Army.
Additionally, my work performance has been satisfactory...
The above eighteen month period involving personal finances in order, domestic harmony and satisfactory work performance has been over an eighteen month period when I have faced stressful litigation to try and have an opportunity to continue to serve in the Army. I think I have demonstrated over a prolonged period that I can keep my personal house in order.
2. There has never been a criticism of my soldiering ability, only of my personal finances and domestic circumstances. Justice Burchett… said of me
“There is no suggestion that he was incapable of performing any particular acts which as a soldier he was required to perform. Nor is there any suggestion that he was generally insubordinate. His unsuitability in the eyes of the decision-maker…centred upon his apparent incapacity to deal with his own domestic and financial matters.”
3. My financial problems arose from the conduct of my wife. She had a gambling problem which caused her to fail to pay trades persons or to pay them with cheques which subsequently bounced.
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I say that the Army voluntarily assumed the task of chasing me on behalf of my wife's creditors. I say that:
(a) I was never sued by any creditor,
(b) I never had a Judgment against me by any creditor; and(c)I have never had a garnishee issued against me by any creditor;
I am aware of numerous persons (including officers) who have been sued, had Judgments entered against them and had their Army pay garnished, but not one of these things has ever happened to me.
The annexures … clearly indicate that it was my wife's bad financial management rather than mine which attracted attention from the Army and which gives rise to my record as an administrative liability to my unit.
4. I have subsequently taken steps to ensure that any future financial mismanagement by my wife will not impact on my ability to meet household debts from my pay. I have done this by closing all joint bank accounts and retaining sole control over my finances. Indeed I did so prior to 1996 and my wife thereafter passed a cheque on an old cheque book (which she no longer has). For legal technical reasons I was not allowed to point this out to Justice Burchett…
My record over the last eighteen months in managing my finances successfully is proof that the steps I have taken have been successful.
5. I say that over the last eighteen months I have demonstrated persistence in my efforts to remain in the Army, and this is a quality which the Army should value in a soldier.
6. I say that the proposal to discharge me on 22 Sept 98 … is procedurally unfair for the following reasons:
a.My ROG at Ref M, which goes to the issue of discharge has not been finalised and I have not had the opportunity of seeing the report of Investigating Officer, LT McGrath.
b.My legal officer, CAPT Levet, will be overseas for four weeks commencing 20 Sept 98…
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CONCLUSION
8. I respectfully ask that for the above reasons I be permitted to continue to serve in the Army. I would consent to being placed on an Administrative Warning concerning my finances and domestic relationships.
The additional material to which reference is made, being the material furnished in March 1998, consisted of a record of interview with the Applicant in August 1992 and a memorandum of September 1992. The memorandum of 2 September 1992 is in the following terms:
(1)The incident [the interview of 31 August] related is the third similar event in a row. Given his history in the past, and now these three financial problems, PTE Shand is to be Admin. Warned for his poor financial management.
(2)LT Ford is to furnish documentary evidence of the two other episodes to be linked with [that interview]. Based on this evidence, prepare an Admin. Warning of six months duration as I’ve indicated. You are to clear the warning through Legal prior to it being issued by myself.
(3)Advise LT Ford of this action and ensure all evidence is obtained, filed and is correct.
(4)Keep me advised.
During the course of the interview, a number of questions were put and answers obtained from the Applicant as follows:
Q: Do you realise, PTE Shand, that writing a cheque and presenting it from a non-existant [sic] cheque account is illegal?
A: Yes sir.
Mr Walsh is prepared to not let this matter go any further if you are able to pay him $125 for general cleaning, [and various other amounts].
Q: Do you understand?
A: Yes sir.
Q: Are you able to pay this amount? Do you have access to this money?
A: No sir.
I will then organise for you to draw $205 from your pay.
It seems to me that the material contained in those documents, rather than being of assistance to the Applicant, would, in effect, have done nothing but confirm the decision that was made on 5 March 1997.
On 21 September 1998, Major Blumson signed a discharge determination which referred to the signal of 1 September 1998, the correspondence of 13 and 15 of September 1998 and the Supplementary Answer to Show Cause. The discharge determination then went on to say as follows:
1. [The signal of 1 September] directed that Private Shand was to be discharged on 22 Sep 98. [The correspondence of 13 September 1998] advised that PTE Shand had fresh evidence that he wished it to be considered in respect to the discharge decision. SCMA … advised that the new material would be considered and a new determination made provided that the submission was made before the discharge date. The supplementary submission was subsequently supplied…
2. I, SO2 Personnel Management, SCMA, by virtue of my appointment, am a prescribed Discharge Authority under the powers and functions of DA 44 for soldiers in the Australian Army, and have reviewed the following material in making the fresh determination:
a.Material considered as part of NTSC dated 13 Feb 97 and outlined in Determination dated 5 Mar 97;
b.Material considered as part of ROG against decision to discharge dated 2 April 1997…
c. Supplementary submission dated 18 Sep 98:
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3.All of the above material was considered and on balance it was determined that PTE Shand is to be discharged. The specified discharge date of 22 Sep 98 is to stand.
A further application for redress of grievance dated 21 September 1998, which may have been submitted on 22 September 1998, was submitted by the Applicant. The application sought that the decision of Major Blumson be reversed and that discharge be suspended until the Applicant had had reasonable opportunity to provide his counsel, Captain Levet, with instructions. The grounds specified were as follows:
a.that the decision maker has failed to give due weight to the relevant material in my favour and/or, has failed to consider relevant material and/or has considered, or given undue weight to, irrelevant material,
b.that no reasonable decision maker could have arrived at the decision had all the relevant material been given due weight and consideration, and
c.…I requested that my discharge date be set after the date - after the return from leave of my legal adviser. The action taken in regard to this matter is detailed and voluminous. It is therefore unreasonable to expect another legal officer to have carriage of this matter at short notice and without the benefit of CAPT Levett's detailed knowledge and involvement. I submit that it is not unreasonable to suspend action until after CAPT Levett's return in four weeks time.
4. I note the mandatory phrasing of para 22 of [Defence Instructions (General)] redress of Grievance – Tri-Service Procedures which states that the discharge action proposed is not to take place until this complaint has been finally disposed of. Given my current working arrangements I submit that there are no service reasons consistent with those identified as exceptions to this rule which require that discharge action be effected before disposal of this redress.
5. I understand that I may attach documents to this application and that I may have assistance from a legal officer if reasonably available, or another member of the ADF, in stating this grievance.
It is against that background that this application comes on for hearing before me. In evidence before me, Major Blumson said that she was the author of the instrument of 21 September 1998. In an affidavit filed in the proceedings, she indicated the documents which she had regard to in making her decision. She said that, having read the material which she identified, she reached her decision that the Applicant should be discharged on 22 September 1998 prior to the determination of his request for redress of grievance of 3 July 1998 for the following reasons:
(i)The material attached as Ref E to the applicant’s Redress of Grievance of 3 July, 1998 would not have assisted the applicant in any way. I considered that this material was in fact uncomplimentary.
(ii)The applicant's statement in his Supplementary Answer to Notice to Show Cause did not disclose any information which was significant in my view that had not been previously provided, as part of the material before Brigadier Webster, (and before the Federal Court in the proceedings before Burchett J, as evident from His Honour’s Reasons for Decision);
(iii)In addition, I received from CAPT Bruce Levet Barrister of Law, on behalf of the applicant a statement by WO2 J.M. Davis of the applicant's work performance in the period 16 September, 1997 to 22 September, 1998. I gave little weight to this statement because such work as was performed by the applicant while awaiting finalisation of discharge procedures was not the usual work performed by him;
(iv)since 16 September 1997 the applicant has been required to present himself each day to what is termed the Discharge Cell at Randwick Barracks. The Discharge Cell is established to hold members awaiting discharge, usually within a short period of time. Discharge usually occurs within 14 days of the member receiving a discharge order. The discharge procedures have been suspended by court proceedings which were finalised on 26 August, 1998. I considered that it was not conducive to the maintenance of the morale of other members that the applicant be permitted to remain unnecessarily, following unsuccessful and protracted legal proceedings;
(v)the delegate of the Chief of the Army has already determined that the retention of the applicant is not in the interests of Australia or the Army. None of the new material provided by the applicant caused me to believe that an alternative outcome was possible;
(vi)the applicant was not likely to succeed with his 3 July, 1998 Redress of Grievance, particularly in the absence of any significant new material.
(vii)there may always be a Redress of Grievance on foot prior to discharge, regardless of whether any particular Redress of Grievance is first resolved. In this case, I felt that all the substantive issues raised by the applicant had been dealt with given the views that I had formed outlined above.
Major Blumson was cross-examined in relation to those reasons. The statement from Warrant Officer Davis, to which reference is made, was in the following terms, relevantly:
PTE Shand has been employed as a transport driver at DCSO-R over the period 16 Sep 97 – 16 Sep 98. During this time PTE Shand has been relied upon to carry out transport tasks where he has achieved good results.
PTE Shand has been accepted as part of a team within the transport section, and has mixed in well with his peers.
PTE Shand’s conduct over this period has been of a satisfactory standard. PTE Shand has shown commonsense to most problems and situations. On numerous occasions PTE Shand has been relied upon to carry out tasks with no supervision.
PTE Shand physical fitness is of a very good standard and the member is always looked at improving himself in this area during his own time.
PTE Shand is a loyal and trustworthy solider who shows a mature attitude towards his employment. This member behaves in a manner that is in accordance with Army standards however, due to the situation that the member is in PTE Shand has had periodic lapses when under stress.
Overall PTE Shand’s commitment towards both the Army and his role as a transport driver is of a good standard.
This assessment was prepared by his immediate supervisor in consultation with the undersigned.
It appears from the cross-examination of Major Blumson that she may have been under some misapprehension as to the work which was in fact being done by the Applicant during that period. She said that she gave little weight to Warrant Officer Davis' statement because the work that was being performed was different from his normal work.
That may not be accurate. There was some evidence that the work that was being done was in fact the usual work which the Applicant performed as a driver. However, Major Blumson said that even so, those circumstances would not have much bearing on her decision. She said that her decision not to await the determination of the review was based on her concern that, having regard to the time which had been taken to finalise the discharge procedures, Army morale may well be affected by the continued presence of the Applicant within the Army.
It is not for me to reconsider that question. Paragraph 22 of the Defence Instructions (General) contemplates that there may be an exception to the prohibition on taking proposed action which is the subject of a complaint; namely where service requirements dictate otherwise. It appears to me that it would have been open, even on the correct version of the work which had been done by the Applicant, for Major Blumson to form the view which she expressed. In the circumstances, I am not satisfied on the basis of that evidence that there has been a failure to comply with paragraph 22.
The situation which presents itself to me is an unfortunate one. It is common ground that there have been lapses in procedure in relation to the way in which the Applicant has been dealt with. I am satisfied that grounds have been established for the jurisdiction of the Court to be attracted to intervene if, in the exercise of discretion, that is the appropriate course. Once the jurisdiction of the Court is properly enlivened by a sufficient application, there is an obligation on the Court to entertain such an application.
However, the existence of such an obligation is not inconsistent with a power in the Court to refuse relief, notwithstanding that the statutory pre-conditions to a grant of relief are satisfied. The natural meaning of section 16 of the AD(JR) Act is apt to confer upon the Court a discretion both as to whether or not to grant relief, provided that a basis for relief is established, and if relief is to be granted, as to the form of the relief - see Lamb v Moss& Brown (1983) 49 ALR 533 (at 549-550).
It is that principle which is relied on by the Chief of the Army in response to the claim now made on behalf of the Applicant. As I have said, there have been procedural lapses and documentary lapses and there has been, in strict terms, a failure to comply with the requirements of certain of the provisions to which I have referred. I shall deal with each of them separately.
First of all, the argument that the discharge should be impugned by reason of failure to comply with regulation 177 must be considered in the light of the history that I have recounted above. The Applicant was well aware that a decision had been made in March 1997 to discharge him and that the reason for that discharge was the reason set out in regulation 176(1)(n). As I have indicated, those matters had been conveyed to him on a number of occasions during a period of some 15 or more months. It was clear from Major Blumson's discharge determination of 21 September 1998 that the decision which she was making was no more than a confirmation of the decision which had been made some time previously.
The discharge on 22 September 1998 was no more than the culmination of the process that had begun with the Notice to Show Cause of 13 February 1997. The reason for the discharge was obvious to the Applicant, even though it was not specified in Major Blumson's document.
It was contended on behalf of the Applicant that regulation 177 attracted section 25D of the Acts Interpretation Act 1901 (Cth). Section 25D provides as follows:
Where an Act requires a tribunal, body or person making a decision to give written reasons for the decision, whether the expression “reasons”, “grounds” or any other expression is used, the instrument giving the reasons shall also set out the findings on material questions of fact and refer to the evidence or other material on which those findings were based.
It was also said that there was a failure to comply with regulation 177 as that requirement is to be construed in accordance with section 25D.
However, I consider that the reference to reason in regulation 177(2)(a) is not such as to attract section 25D. Regulation 177(1) provides that the discharge for a reason prescribed in regulation 176(1) is to be effected in accordance with an order. That order is to specify the reason for the discharge. It is quite clear, in my opinion, that the reason that is required to be specified is simply the reason under section 176(1). It is not a requirement for the giving of reasons and, therefore, does not attract any requirement to set out evidence and findings of fact.
Further, it is clear that the Applicant received notice in writing of the proposed discharge on 22 September 1998. Accordingly, while there may not have been compliance in strict terms with regulation 177, I do not consider that there has been any injustice accorded to the Applicant by reason of that matter alone. Accordingly, I would reject that as a basis for any relief.
The non compliance with Defence Instructions (General) I have already dealt with in relation to paragraph 22. So far as paragraph 43 is concerned, two questions arise. The first is whether it can be said that involuntary cessation of service was likely to form the basis of a complaint. It is difficult to know precisely what is intended by that requirement. However, having regard to the history of the relationship between the Applicant and the Army since at latest February and March 1997 and having regard to the number of applications for review, as a practical matter, it is probably a simple conclusion to reach that any discharge or any further attempt to give effect to discharge was likely to form the basis of a complaint. Nevertheless, the failure to comply with paragraph 43 must also be considered in the light of the terms of the application for redress of grievance of 3 July 1998.
The two grounds relied on in that application were first, the failure to take account of the material which had been furnished to the applicant in March 1998. As I have said, I do not see that that was capable of assisting his case. In any event, Major Blumson said that she considered it and regarded it as anything but complimentary.
The second ground is the record of the Applicant between the time of the decision of March and the present time. It would be curious if, having taken proceedings to impugn a decision, which proceedings were unsuccessful but which delayed the implementation of the decision, the conduct during the period of delay would then be relevant as to whether the decision should be reviewed. The application for redress of grievance sought reversal of the decision of 5 March 1997. There does not appear to me to be any basis for relying on the conduct of the Applicant while that decision was under review, unsuccessfully, as a basis for impugning the decision. Accordingly, it seems to me that the fact that the application for redress of grievance of July 1998 had not been resolved, while it may have constituted a failure to comply with paragraph 43, does not result in any injustice to the Applicant such as would warrant the intervention of the Court.
The final matter concerns the application for redress of grievance dated 21 September 1998 and which has not yet been dealt with. The grounds that are specified are completely lacking in particularity except in relation to the fact that the Applicant's legal adviser was not present and was not available. Nothing has been submitted to me as to what might have been advanced by Captain Levet had he been available to give advice to the Applicant. In other words, it is not suggested that some injustice had been done to the Applicant by reason of his not being able to obtain legal advice prior to the discharge becoming effective. Had there been a matter of substance which had been advanced, then it may well be that the somewhat peremptory way in which the discharge occurred on 22 September 1998 would have rendered unfair the fact that the Applicant did not have legal advice. However, it is clear that the Applicant has had ample opportunity in the period from March 1997 to date to make such submissions as he wished in relation to his discharge. In the circumstances, I do not consider that the failure to allow time for the consideration of the application for redress of grievance of 21 September 1998 is such as to create any injustice for the Applicant which would warrant the intervention of the Court.
In the circumstances, I am not satisfied that the Court should grant any relief in this case. There is, however, the question of costs. Having regard to the difficulties to which I have referred and the strict non-compliance with the provisions of the regulations, it appears to me that the application which is before me has been well justified on behalf of the Applicant. That is to say, while he has not been successful in obtaining any relief, he was entitled at least to draw attention to the failure to comply with the strict requirements of the regulations. It seems to me that it would not, therefore, be appropriate to order the Applicant to pay the cost of the proceedings.
I order that the application be dismissed. I make no order as to the costs of the proceedings.
I certify that this and the preceding twenty-six (26) pages are a true copy of the Reasons for Judgment herein of the Honourable Justice Emmett
Associate:
Dated: 14 October 1998
Counsel for the Applicant: B.M. Green Counsel for the Respondent: G.T. Johnson Solicitor for the Respondent: Australian Government Solicitor Date of Hearing: 24 September & 13 October 1998 Date of Judgment: 14 October 1998
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