Stuart v Chief of Army
[2003] FCA 1291
•13 NOVEMBER 2003
FEDERAL COURT OF AUSTRALIA
Stuart v Chief of Army [2003] FCA 1291
ADMINISTRATIVE LAW – Termination of enlistment of member of Australian Defence Force – Challenge to validity of two decisions: decision to terminate enlistment and decision to reject application for redress of grievance – Whether either decision manifestly unreasonable – Whether decision-makers failed to take into account relevant considerations or took into account irrelevant considerations – Whether applicant was denied procedural fairness – Whether decision-maker failed to exercise true discretion.
Administrative Decisions (Judicial Review) Act 1977 (Cth) s 5
Defence (Personnel) Regulations 2002 (Cth)reg 87
DIANA BETTINA STUART v CHIEF OF ARMY
N 567 of 2003
WILCOX J
13 NOVEMBER 2003
SYDNEY
IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
N 567 of 2003
BETWEEN:
DIANA BETTINA STUART
APPLICANTAND:
CHIEF OF ARMY
RESPONDENTJUDGE:
WILCOX J
DATE OF ORDER:
13 NOVEMBER 2003
WHERE MADE:
SYDNEY
THE COURT ORDERS THAT:
1. The application be dismissed.
2.The applicant, Diana Bettina Stuart, pay the costs of the proceeding incurred by the respondent, Chief of Army.
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 567 of 2003
BETWEEN:
DIANA BETTINA STUART
APPLICANTAND:
CHIEF OF ARMY
RESPONDENT
JUDGE:
WILCOX J
DATE:
13 NOVEMBER 2003
PLACE:
SYDNEY
REASONS FOR JUDGMENT
WILCOX J:
Private Diana Bettina Stuart applies to this Court for review of two decisions concerning her prospective discharge from the Australian Defence Force (‘ADF’). The respondent to the application is Chief of the Army.
The application is brought pursuant to the Administrative Decisions (Judicial Review) Act 1977 (Cth) (‘the ADJR Act’). It identifies the relevant decisions as:
(i)a decision made by a delegate of the respondent, Colonel J R Moug, on 11 April 2003, that the applicant be discharged from the ADF pursuant to reg 87(1)(e) of the Defence (Personnel) Regulations 2002 (Cth) (‘the Regulations’); and
(ii)a decision of another delegate of the respondent, Brigadier M L Clifford, on 20 September 2003, to reject an application by Private Stuart for redress of grievance concerning Colonel Moug’s decision.
No question has been raised by the respondent as to the competency of the application made to the Court. The case has been argued by Mr B Levet and Ms B Boss, counsel for the applicant, and Mr A Markus, solicitor for the respondent, by reference solely to the question whether the proved facts reveal the existence of a ground of review provided by the ADJR Act.
The facts
The applicant joined the Australian Regular Army on 3 October 1990. In July 1995, she was charged with a number of offences under the Defence Force Discipline Act 1982 (Cth) (‘the DFD Act’), relating to alleged theft of ammunition. She pleaded not guilty but was convicted of some offences and suffered punishments consisting of restrictions of privileges (‘ROPs’) and detention.
Notwithstanding having suffered the punishments, the applicant petitioned the convictions, but was initially unsuccessful. She received a notice to show cause why she should not be discharged from the ADF. A discharge decision was made and a redress of grievance application failed. However, the applicant succeeded in obtaining an order in this Court, dated 28 June 2000, quashing the 1995 convictions. The discharge decision was then withdrawn.
Over her period of service, the applicant has faced 59 separate charges, apparently all under the DFD Act. The evidence does not disclose the history of each of them. Many of the charges were either dismissed at trial or resulted in convictions that were later quashed. However, it seems there were at least nine unquashed convictions. They range in date from 13 September 1991 to 25 June 2001. Most of the convictions were for insubordinate behaviour or disobedience of a lawful command. During the period between her first and last conviction, the applicant served in four different Army units.
It appears that, in about September 2001, the applicant was required to attend an examination by an ADF psychologist. The psychologist recommended that she be discharged from the ADF.
On 17 February 2003, Lieutenant Colonel P Short, as a delegate of Chief of Army, issued to the applicant a termination notice, pursuant to reg 87(2) of the Regulations. The notice stated a proposal to terminate the applicant’s services in the ADF on the ground that she was ‘not suited to be an enlisted member of the Defence Force’. This is a ground of termination stated in reg 87(1)(e) of the Regulations. A further ground of termination, set out in reg 87(1)(c), is that ‘the enlisted member is medically unfit (including unfitness because of mental incapacity)’.
In the termination notice, Lieutenant Colonel Short identified the material he had considered when deciding to issue the notice. This included two psychological reports of 24 September 2001; the applicant’s conduct record ‘consisting of the convictions and punishments’ previously listed; and her ‘complete service history as contained on her personal file’.
The applicant responded to this notice with a lengthy submission, called ‘Statement of Reasons in response to Termination Notice of 17 Feb 03’. In para 2 of the document she said:
‘I say that I have been the victim of an ongoing vendetta by the Army establishment, seeking to have me removed from the Army. Over the past few years, efforts have been made to remove me using disciplinary, administrative and medical means. All have so far proved unsuccessful. Ref A is yet another attempt, for improper purposes to achieve my removal.’
‘Ref A’ is the termination notice issued by Lieutenant Colonel Short.
After referring to the 1995 convictions and their aftermath, the applicant said at paras 6-8:
‘Since commencing to fight my said convictions and discharge, I have been subject to a campaign by Army to get rid of me by whatever means. Disciplinary, Administrative and Psychological grounds been [sic] attempted, thus far with no success. I have been charged with numerous offences, some of which are extraordinarily trivial. I have been charged for things which, if other defence members had done them, they would not have resulted in charges. I invite an examination of my Conduct Record (save and in respect of spent convictions, for reasons to which I shall later refer) in this regard. At least some of my supervisors have been tasked to report on any possible infringement of regulations by me, no matter how trivial, in circumstances where they have not been tasked to do so in respect of any other defence member. Ref B contains examples of this. I say that this type of harassment continues to the present time, as can be seen from my Conduct Record. Most of the charges against me have not been successful.
I say that a course of action has been determined that insubstantial charges be brought against me so that some of the “mud will stick” in terms of facilitating later Administrative or Psychological discharge action against me. This course of action against me, which could only be described as conspiratorial in nature, appears to have been supported by legal advice (see ref C).
Even the circumstances of most of my psychological interviews (which seem themselves to have a compounding effect and amounting to a self-fulfilling prophesy) have been unfortunate in that I have been ordered to attend and co-operate in circumstances where I have known full well that the intent was to obtain a report that could be used against me as the basis of my discharge. Ref D is an example of such coercion.’
‘Ref D’ is a record of a conversation between the applicant and Warrant Officer Snow on 6 July 1995.
The applicant went on to put submissions concerning the psychologist’s reports, both in relation to their content and the circumstances in which they were brought into existence. During the course of that submission, she said:
‘I may have developed (which I do not admit) a medical illness or disorder as a result of the continued improper stress which I have been placed under by my chain of command over a period of years. If I were diagnosed to have an illness or disorder (and I do not admit that I have any illness or disorder) then I should be given the option of a medical discharge and associated entitlements. Clearly I did not suffer it when I was enlisted as I was in fact deemed suitable for employment and subsequently retrained from the trade of storeman to the trade of operator supply. This required re-testing at the time and at such time no problems of a psychological nature were evident. If I suffer from an illness or disorder (and I do not admit that I do) then I believe it has not been diagnosed and would in all likelihood have arisen from my employment, from the failure of my employer to protect me from injury and to diagnose and treat any illness or disorder, and from the systemic bias against me which has been evidenced over a number of years. Any failure to diagnose and treat any illness or disorder which I might have (and I do not admit that I suffer from any such illness or disorder) again reflects a systemic bias against me and a collective corporate intent to terminate my career and deny me an opportunity to accrue entitlements. No suggestion is made of a pre-existing illness or acquisition of any injury or disorder and if one has occurred to me it stands to reason that it must only have arisen from my employment. If this hypothesis is correct then using the grounds relied on by ref A clearly represents a direct denial of opportunity to seek compensation and treatment and an abrogation by my employer of its responsibilities.’
The applicant referred to the position of another defence force member ‘who was initially required to show cause on grounds similar to mine but … was discharged ultimately on medical grounds’. The applicant did not name this person but it appears she was referring to a person later identified as Craftsman (‘CFN’) Rosemond. The applicant also discussed at some length the convictions identified in the termination notice. In the course of doing this, she said the circumstances in which she served the punishment for one offence were illustrative of ‘the Army’s vendetta against me’. She explained:
‘At the time I was awarded such ROPs I was a living out member. I was required to attend my Unit for the entire period of the ROPs. I note that when a member is required to “live in” during ROPs they are ordinarily provided with transit accommodation (including a room, bunk, and other private facilities). Whilst they are required to do additional work/drill during the period of the ROPs, at night they are able to sleep in the provided accommodation subject to having to report from time to time to the Duty Office/Duty NCO. In my case, 5 BASB did not have transit accommodation. They did not arrange for me to serve my ROPs at a location which had transit accommodation. On the first night, I was forced to sleep on the carpeted room of the COMS room. On each of the subsequent nights I was forced to sleep on the linoleum floor of the RAP. My chain of command did not supply me with a bed or a mattress. During a short period of the ROPs I was able to borrow a stretcher. I was unable to complete the ROPs because I collapsed.’
The applicant included in her submission a section entitled ‘Abuse of Process’, which she explained in this way:
‘I say that the totality of the attempt made to get rid of me, including the huge number of (largely unsuccessful) charges, the attempts to administratively discharge me and the number of times I have been referred for psychological or psychiatric assessment, together with the other impediments that are continually put in the way of me having a successful military career amount in themselves to an abuse of process. All I wish to do is to continue to serve in the Army until retiring age.’
The applicant went on to say she was being treated differently to other members of the ADF who had been issued with notices to show cause on the grounds of being ‘psychologically unsuited’ or that their ‘retention [was] not in the interests of the Army’ and were subsequently permitted medical discharges. She cited no example but made a request, purportedly under the Freedom of Information Act 1982 (Cth) (‘the FOI Act’), for information about all members of the ADF of the rank of Private or Craftsman who had been granted medical discharges over the past two years after having first been required to show cause on either of these grounds.
In support of her abuse of process claim, the applicant referred to an alleged incident of Friday, 23 August 2002. She said that, on that afternoon, she was given a series of tasks, in rapid succession, by several non-commissioned officers, apparently corporals. When she asked which task she was intended to complete, she was marched to the office of the Squadron Sergeant-Major. After making her wait for a long time, she said, the Squadron Sergeant-Major ordered her to be taken to the cells where she was held until the following afternoon. She was never charged with any offence.
A particularly serious aspect of the applicant’s complaint is her allegation, apparently based on information she subsequently obtained, that an inquiry was made before the Friday afternoon by someone in her unit as to the availability of a detention cell for the weekend. The suggestion is that the applicant was deliberately ‘set up’ for punishment.
On 11 April 2003, Colonel Moug signed a document entitled ‘Termination of Service Decision’. The document referred to the material Lieutenant Colonel Short had previously identified to the applicant and to the applicant’s statement of reasons. Colonel Moug stated that:
‘the reason for terminating your service in the Defence Force:
a.has been established; and
b.has not been affected by a change in circumstances since the termination notice was given to you.’
Accordingly, he said, ‘I … must terminate your service in the Defence Force, as you are not suited to be an enlisted member of the Defence Force’.
Colonel Moug gave reasons for his opinion. It is not necessary to set out the whole of his reasons but, having regard to submissions put to me, it is desirable to set out two paragraphs. At paras 2 and 4, Colonel Moug said:
‘I find that your conduct record … is poor and has been consistently so for a sustained period of time. You have demonstrated over an extended period a failure to meet the standards of conduct and behaviour required by a member of the Defence Force. Further, you have given no indication of any intention to modify your conduct or behaviour to achieve the required standards now or in the future. In considering your statement of reasons I based my determination on a number of factors and I would like to address each of these in turn.
…
Allegations of victimisation campaign ... You claim to have been the victim of a campaign by Army to get rid of you by any means and this has resulted in unfair treatment, including the laying of insubstantial disciplinary charges. I can find no evidence that you have been subject to unfair treatment or any form of institutional harassment. I do note that from your description the administration of your Restriction of Privileges at 5BASB appears to have been inappropriate and I am seeking that your claims be investigated. That said, your indisciplined [sic] conduct and behaviour has spanned many years and involved a number of different units. Further, far from being insubstantial most of the offences relate to a disregard for proper military authority.’ (Original highlighting)
After dealing with other issues, Colonel Moug repeated his view that, judged by her conduct and behaviour, the applicant was unsuited to be a soldier. He informed her, in accordance with reg 87(4) of the Regulations, that her service was terminated with effect from 12 May 2003.
On 24 April 2003, the applicant lodged an Application for Redress of Grievance. She identified her grievance as the decision of Colonel Moug made on 11 April 2003. The applicant sought a substituted decision that the ADF retain her services, together with other relief. The applicant set out four grounds. She also complained of denial of procedural fairness in numerous respects.
One of the points raised under the heading of procedural fairness was a claim that Colonel Moug’s decision ‘delivered to me materially different outcomes compared to other members who have received Termination Notices … based on similar grounds to those alleged against me’. She instanced the case of Craftsman Rosemond ‘who was recently discharged form [sic] the Army … when it was alleged that his psychological condition led him to behave in an inappropriate manner’. She said Craftsman Rosemond was awarded a pension and other benefits on the basis of ‘an alleged psychological or other illness’. The applicant contended that Craftsman Rosemond was the son of a former Regimental Sergeant Major in the Army and received favourable treatment on that account.
The Application for Redress of Grievance was considered by Lieutenant Colonel G W Hicks, Commanding Officer of 10 Force Support Battalion at Townsville. On 7 May 2003, he wrote to the applicant informing her that he was unable to grant the redress she sought. He confirmed the discharge date of 12 May 2003. In his statement of reasons, Lieutenant Colonel Hicks dealt with each of the grounds raised by the applicant. I need not set out everything he wrote. However, I should mention his comment regarding Craftsman Rosemond. It was as follows:
‘I cannot consider the circumstances of CFN Rosemond as I do not have access to the facts of his case and you have not provided all of them to me or provided his permission for me to seek them. You have not indicated if he is willing to have his circumstances discussed as part of your case. As the circumstances of his situation are not public knowledge and he has not provided permission for them to be considered it is inappropriate for me to consider his situation any further. In general terms however, every case should be considered on its merits. While you state that CFN Rosemond received a TN based on similar grounds to those alleged against you, it is very unlikely that the facts of your cases are the same and therefore it cannot be expected that the decisions would necessarily be the same. You imply that CFN Rosemond received a medical discharge. If you believe that you should receive a medical discharge I encourage you to discuss this with the Regimental Medical Officer.’
Lieutenant Colonel Hicks concluded his statement of reasons by advising the applicant of her entitlement to have the redress application referred to Chief of the Army. The applicant immediately requested this course be taken. On the following day, 8 May 2003, she instituted this proceeding. The discharge date was deferred.
The referred request for redress of grievance was considered in the first instance by Lieutenant Commander D R Hase. He prepared a brief for Brigadier M C Clifford, Acting Deputy Chief of Army. Lieutenant Commander Hase analysed the relevant material and recommended that Brigadier Clifford advise the applicant that he had found she had ‘no grounds for complaint that would require her decision to terminate her service being set aside’. He provided a draft letter to that effect. Lieutenant Commander Hase also recommended to Brigadier Clifford that, if he disagreed, he ‘make a note of the reasons for [his] decision so that an alternative response to PTE Stuart may be prepared’.
In fact, Brigadier Clifford did not disagree. On 20 September 2003, he wrote to the applicant informing her that he had determined, on behalf of the Chief of Army, that her complaint should not be upheld.
Brigadier Clifford indicated general agreement ‘with the thrust of the responses to [the applicant’s] submissions’ provided by Colonel Moug and Lieutenant Colonel Hicks. Brigadier Clifford went on:
‘The fact is that you have been subject to ongoing discharge proceedings for several years now because of unsatisfactory behaviour. I note that your previous discharge determination was rescinded only because there had been a procedural flaw, not because of the merits of your case. That was the basis for issuing a new TN on identical grounds to those set out in your previous Notice to Show Cause. While you maintain that the very large number of charges laid against you which were subsequently dropped, dismissed or quashed is evidence of a vendetta against you, I see it differently. You have served in a number of units over several years with different supervisors and yet there appears to be a constant pattern of behaviour which results in charges being laid against you which, in the main, relate to insubordination or disobedience of orders. The resort to formal disciplinary action may be reflective of a degree of exasperation provoked by your consistently uncompromising and aggressive attitude. That ultimately many of the charges preferred against you were not sustained, for a variety of reasons, reflects well on the check and balances contained in the military justice system.’
In para 5, Brigadier Clifford dealt with a claim by the applicant that other psychological reports had been disregarded when considering termination of her enlistment. He said:
‘The fact is that while these various reports stopped short of recommending your discharge, they all described characteristics which cast doubt on your compatibility with military service.’
Brigadier Clifford set out extracts from the reports.
Brigadier Clifford went on to say at paras 6-8:
‘I note that of the nine offences, of which you have been convicted, eight of those offences concern conduct involving disobedience of orders or insubordination. When having regard to the punishments imposed, I would concede that some of the individual offences may be considered relatively minor in nature. However, when viewed as a whole, the offences demonstrate that you are unable or unwilling to exercise the self-discipline required to be an effective Army team member. I note also the absence of any contrition in your submissions and the lack of an undertaking to modify your behaviour in the future. Finally, I agree with the reasons previously provided to you for rejecting your various arguments concerning different treatment, abuse of process, change in circumstances and lack of procedural fairness.
In light of the above, I am satisfied that it was reasonably open and appropriate for the delegated authority to find that you are not suited to be an enlisted member of the Defence Force and that your service should be terminated. Accordingly, I have directed CO SCMA to now proceed with your discharge from the Army.
Separately, there are two matters that you have raised upon which I will comment. The first concerns your allegation that you were mistreated while undergoing the punishment of restriction of privileges in November 2000. As you know, CO SCMA caused that matter to be investigated and having regard to the report of that investigation, I am satisfied that your complaint is without merit. The second concerns your serious allegation that you were incarcerated in cells on 23 August 2002 for a contrived offence for which you have not yet been charged. I have asked for a separate brief on this matter with a view to referring it to the Inspector General ADF for investigation.’
Issues for the Court
The application filed on 8 May 2003 set out various grounds of judicial review. Those grounds of review were invoked in relation to the decisions of both Colonel Moug and Brigadier Clifford. No challenge was made to the decision of Lieutenant Colonel Hicks. The grounds of review have been amended on several occasions, most recently by an Additional Further Amended Application filed on 21 October 2003, the day before the hearing of the case. The amended grounds are as follows:
‘1.That the exercise of power by the decision maker was in all the circumstances unreasonable.
PARTICULARS
(a)That in making his decision the decision maker failed to take steps that were in his power to ascertain relevant facts which were readily available to him, and in particular relating to:
(i)the unlawful detention of the Applicant without charge;
(ii)the dissimilar treatment accorded to another member of the Australian Defence Force, namely Craftsman A. Rosemond; and
(iii)material held by the Army which was the subject of Freedom of Information requests by the Applicant.
2.That the decision maker failed to take into account all relevant considerations.
PARTICULARS
(a)The decision maker failed to consider the allegation of the Applicant that she was unlawfully detained, and that such unlawful detention was probative of the Applicant’s assertion of systemic bias against her;
(b)The decision maker failed to consider that a person in a similar position to the Applicant, namely Craftsman A. Rosemond, was accorded dissimilar treatment.
3. That the decision make took into account irrelevant material.
PARTICULARS
(a)The decision maker took into account material upon which the Applicant had not been given the opportunity to comment, including an investigating officer’s report pursuant to the Defence Inquiry Regulations which had not been released to the Applicant concerning her treatment at 5 BASB.
(b)The decision maker took into account unsubstantiated assertions contained in paragraph 33 line 3 in a brief prepared for him by Lieutenant Commander Hase.
4.That the exercise of power by the decision make otherwise lacked procedural fairness.
PARTICULARS
(a)The decision maker exercised the power without first complying \with the Applicant’s request pursuant to the Freedom of Information Act.
(b)The decision maker took into account material upon which the Applicant had not been given the opportunity to comment, including an investigating officer’s report pursuant to the Defence Inquiry Regulations which had not been released to the Applicant concerning her treatment at 5 BASB.
5.That the exercise of power by the decision maker was not a true exercise of discretion.
PARTICULARS
The decision maker fettered his discretion by adopting a decision prepared for him by Lieutenant Commander Hase.’
I will deal separately with each of the stated grounds.
Unreasonableness
(i) The applicant’s approach
During the course of oral argument, Mr Levet confirmed that the first ground of review is that stated in s 5(2)(g), read with s 5(1)(e), of the ADJR Act: ‘an exercise of a power that is so unreasonable that no reasonable person could have so exercised the power’. This ground of review is often called ‘Wednesbury unreasonableness’ after the case in which it was first formulated: Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1948] 1 KB 223.
In particular, Mr Levet and Ms Boss relied upon a comment I made about this ground of review in Prasad v Minister for Immigration and Ethnic Affairs (1985) FCR 155 at 169-170:
‘Under s 5(1)(e) and s 5(2)(g) the court is concerned with the manner of exercise of the power. A power is exercised in an improper manner if, upon the material before the decision-maker, it is a decision to which no reasonable person could come. Equally, it is exercised in an improper manner if the decision-maker makes his decision – which perhaps in itself, reasonably reflects the material before him – in a manner so devoid of any plausible justification that no reasonable person could have taken this course, for example by unreasonably failing to ascertain relevant facts which he knew to be readily available to him. The circumstances under which a decision will be invalid for failure to inquire are, I think, strictly limited. It is no part of the duty of the decision-maker to make the applicant’s case for him. It is not enough that the court find that the sounder course would have been to make inquiries. But, in a case where it is obvious that material is readily available which is centrally relevant to the decision to be made, it seems to me that to proceed to a decision without making any attempt to obtain that information may properly be described as an exercise of the decision-making power in a manner so unreasonable that no reasonable person would have so exercised it.’
This statement was applied by a Full Court of this Court in Luu v Renevier (1989) 91 ALR 39 at 50. It was cited, with apparent approval, by Mason CJ and Deane J in Minister for Immigration and Ethnic Affairs v Teoh (1995) 183 CLR 273 at 289-290. Therefore, I am content to consider the first ground of review upon the basis suggested in Prasad. However, it is necessary to bear in mind the stated limitations on obligation to inquire. I pointed out that it ‘is no part of the duty of the decision-maker to make the applicant’s case for him’. It is not enough that ‘the sounder course would have been to make inquiries’. I thought unreasonableness, in this sense, was confined to a case ‘where it is obvious that material is readily available which is centrally relevant to the decision to be made’. The question, in the present case, is whether any of the particularised material is in this category.
(ii) The 23 August 2003 incident
Item 1(a)(i) in the particulars refers to the alleged incident of 23 August 2002, referred to at paras 16 and 17 above. The applicant referred to the events of that day in her statement of reasons in response to the termination notice. Therefore, her complaint was before both Colonel Moug and Brigadier Clifford.
Colonel Moug made no reference to this complaint in his statement of reasons. He said he could find no evidence that the applicant had been ‘subject to unfair treatment or any form of institutional harassment’. However, he did not reveal what consideration (if any) he had given to this particular complaint. Brigadier Clifford did make specific reference to the incident: see para 29 above. He called it a ‘serious allegation’. However, he did not think it necessary to reach a conclusion about the accuracy of the allegation. He treated it as raising a separate issue, warranting separate investigation.
There is no doubt that the complaint made by the applicant in relation to 23 August 2002 amounted to an allegation of serious misconduct by persons in authority over her. It is, therefore, understandable that Brigadier Clifford thought it appropriate to refer the matter to the Inspector General ADF for investigation. Apparently Colonel Moug did not think it necessary to do this; it is unclear to me why not. However, the critical question, for the purpose of this case, is whether it was necessary for either decision-maker to ascertain the facts of the 23 August 2002 incident before determining whether or not to uphold the applicant’s application to set aside the discharge decision.
I do not think it was so necessary. The basis upon which Lieutenant Colonel Short issued a termination notice to the applicant was that she was ‘not suited to be an enlisted member of the Defence Force’. If Lieutenant Colonel Short had taken into account the events of 23 August 2002 in making that decision, it would obviously have been necessary for any person reviewing his decision to consider the applicant’s account of those events. If there was any doubt about the events of that day then, it seems to me, a decision-maker, acting reasonably, would have been bound to investigate the facts and form a judgment about those events. However, this was not the situation. Lieutenant Colonel Short made no reference to the events of 23 August 2002, either expressly or implicitly. It was the applicant who raised that subject, in aid of a claim of victimisation. The issue for Colonel Moug and Brigadier Clifford was not whether the applicant had been victimised, but whether her conduct record and the psychologist’s reports justified a view that she was unsuited to the Army. None of the convictions that were taken into account by Lieutenant Colonel Short arose out of the incident of 23 August 2002.
The relevance of the events of 23 August 2002 can be tested by assuming there is substance in the applicant’s allegations; that is, on that day a group of non-commissioned officers deliberately overtasked the applicant, with the intent of causing her to be insubordinate and draw detention upon herself, and that a more senior non-commissioned officer participated in this scheme, to the point of ordering her to be detained without charge. Such a state of affairs would be extremely reprehensible. It would demonstrate hostility by the relevant non-commissioned officers to the applicant. However, without evidence of the fact, it would not be possible to impute that hostility to Lieutenant Colonel Short, or to any of the officers who reviewed his decision.
Counsel for the applicant used the description ‘unlawful systemic bias’; but they were not speaking of an institutional structure that delivers biased outcomes. They were suggesting that everybody in authority over the applicant was biased against her. However, general bias cannot be inferred from the actions of a few, only, of those persons.
However reprehensible may have been the 23 August 2002 conduct towards the applicant, that conduct was not material to the issue before Colonel Moug and Brigadier Clifford. It was not unreasonable, in the Wednesbury sense, for Colonel Moug and Brigadier Clifford to make their decisions about the applicant’s application for redress of grievance without determining the facts concerning the 23 August 2002 incident.
(iii) Craftsman Rosemond
Counsel for the applicant submit that the alleged disparity between the treatment proposed for their client and that accorded to Craftsman Rosemond was an issue before Colonel Moug in a general form and before Brigadier Clifford specifically. They say both decision-makers ignored the issue.
It is correct that Colonel Moug made no reference to Craftsman Rosemond. This is not surprising; Craftsman Rosemond was not mentioned by name in the applicant’s statement of reasons. She made only a general allegation of differential treatment of her, compared to others who had been issued with notices to show cause on the grounds of being ‘psychologically unsuited’ or their ‘retention not in the interests of the Army’. I do not think it was incumbent on Colonel Moug to make inquiries about the course taken in respect of other ADF members. The circumstances of their cases must, inevitably, have been different to those of the applicant. In determining the appropriateness of the decision made by Lieutenant Colonel Short, nothing would have been gained by considering the course taken in relation to other people.
By the time the matter reached Brigadier Clifford, the allegation of differential treatment had become focussed on Craftsman Rosemond. However, by that time the allegation had been considered by Lieutenant Colonel Hicks, as is apparent from the passage in his response quoted at para 23 above. As he was entitled to do, Brigadier Clifford adopted that response. He was not obliged to consider the extent to which the situation of Craftsman Rosemond was comparable to that of the applicant. That could only be a distraction from the task at hand: determination of the appropriateness of the discharge decision made in respect of the applicant.
(iv) Freedom of information material
There is no evidence as to the nature or extent of material held by the Army that was the subject of the applicant’s FOI Act application. Unfortunately for her case, the applicant did not pursue her request for that information.
Mr Markus read an affidavit made by John Peterson, Executive Officer 1, FOI, in the Department of Defence. Mr Peterson deposed that an application under the FOI Act, made by the applicant, was received in the FOI directorate of the Department on 30 April 2003. The application was assigned to Mr Peterson, but he formed the opinion that it did not comply with the mandatory requirements of s 15 of the FOI Act. On 6 May 2003, he sent an email to the applicant outlining the perceived deficiencies in her request and informing her what she needed to do in order to make them good. Mr Peterson has a ‘read receipt’ for the email, dated the same day, but he never received a response from the applicant. The deficiencies were not repaired. Therefore, no action was taken in relation to her request.
It was no part of the duty of either Colonel Moug or Brigadier Clifford to ascertain what material might have been produced in response to a proper FOI request and then to consider such material.
Failure to take into account relevant considerations
This ground of review is based on s 5(2)(b) of the ADJR Act, read with s 5(1)(e). The ground arises where there was relevant material before the decision-maker that was ignored.
The relevant considerations particularised in this case are the applicant’s allegation of unlawful detention on 23 April 2002 and the material concerning Craftsman Rosemond. The full facts concerning the detention were not before either decision-maker. No facts concerning Craftsman Rosemond were before either of them. The ground is plainly untenable.
Taking irrelevant considerations into account
This ground of review refers to s 5(2)(a) of the ADJR Act, read with s 5(1)(e). Two items are particularised.
(i) ROP treatment
The first item is not properly a complaint of taking into account irrelevant material. It will be recalled that Colonel Moug responded to the applicant’s claims of mistreatment during her ROP punishment at 5 BASB by having the claims investigated: see para 19 above. As appears from an exhibit tendered by Mr Markus, the claims were investigated by Lieutenant Mark Russell, Adjutant at Holsworthy Barracks. Lieutenant Russell contacted the applicant by email. He asked her to clarify her complaint and put to her 15 specific questions, all of them pertinent to any proper investigation of her complaint. She responded with an email saying ‘I would prefer to seek legal advice before answering any allegations.’ Lieutenant Russell pointed out to the applicant that there were no allegations made against her; rather that the allegations were made by her. He said: ‘[n]evertheless, I acknowledge your decision and this will be reflected in my report.’
Lieutenant Russell’s report is not in evidence. However, it appears from Brigadier Clifford’s letter to the applicant that he read the report before making his decision. He said that, having regard to the report, he was ‘satisfied that your complaint is without merit’. Given that the applicant had elected not to provide Lieutenant Russell with the detail he needed to evaluate her complaint, this result is unsurprising.
As the applicant herself raised the issue of her treatment at 5 BASB, it is difficult to understand her complaint that Lieutenant Russell’s report into that matter was irrelevant to the decision that Brigadier Clifford had to make.
(ii) Lieutenant Commander Hase’s recommendation
This aspect of the irrelevant considerations ground relates to a comment made by Lieutenant Commander Hase regarding a reference by the applicant to an appreciative remark made by the former Chief of Army in a letter to the applicant dismissing an earlier petition by her. Lieutenant Commander Hase commented that, at the time, the Chief of Army was unaware of pending discharge proceedings against her.
Sensibly, counsel for the applicant did not press this issue. Lieutenant Commander Hase’s comment, which was apparently factually correct, could not possibly amount to ‘unsubstantiated allegations’ or contravene s 5(2)(a) of the ADJR Act.
Procedural fairness
(i) FOI material
The complaint is that both decision makers ‘exercised the power without first complying with the Applicant’s request pursuant to’ the FOI Act. However, this complaint is misconceived. As already indicated, the applicant did not pursue her FOI request. In any event, neither decision-maker was responsible for complying with that request.
(ii) The ROP report
The particulars relating to this matter allege that ‘[t]he decision maker took into account material upon which the Applicant had not been given the opportunity to comment’. The reference is to Lieutenant Russell’s report. Accordingly, it has no relevance to the decision of Colonel Moug.
It is true that Brigadier Clifford read Lieutenant Russell’s report before making his decision and that the applicant had not been afforded an opportunity to comment on it. However, she had been given an opportunity to provide information for use in preparing the report. More importantly, there is no evidence that anything contained in the report was prejudicial to the case put by the applicant in relation to the issue Brigadier Clifford had to determine: whether or not she was suited to be an enlisted member of the ADF.
The report dealt with a complaint raised by the applicant that alleged serious misbehaviour but was peripheral to the matter under consideration by Brigadier Clifford. Even if the applicant’s complaint had been found to be justified, this would have had no bearing on her suitability for membership of the ADF. The complaint was advanced as proof of a ‘vendetta’, or ‘systemic bias’, against her. However, as with the 23 August 2002 incident, mistreatment by lowly ranked individuals would not establish abuse of power by those involved in the decision to terminate the applicant’s enlistment.
Fettered discretion
This ground is apparently intended to invoke s 5(2)(f) of the ADJR Act, read with s 5(1)(e). Section 5(2)(f) speaks of ‘an exercise of a discretionary power in accordance with a rule or policy without regard to the merits of the particular case’.
The only argued basis of this ground is the allegation that Brigadier Clifford ‘fettered his discretion by adopting a decision prepared for him by Lieutenant Commander Hase’. However, conduct does not fall within s 5(2)(f) of the ADJR Act simply because a decision-maker adopts a recommendation made by someone else, provided – and this is important – the decision-maker approaches his or her task with an open mind and a readiness to make whatever decision he or she thinks to be proper in the circumstances.
It is true that Lieutenant Commander Hase expressed views and made a recommendation adverse to the applicant. However, there is nothing to indicate that Brigadier Clifford failed to consider for himself the proper decision to be made. As Lieutenant Commander Hase expressly indicated, Brigadier Clifford had the option of deciding the other way.
Disposition
There is no merit in any of the grounds of review advanced by the applicant. The application will be dismissed with costs.
I certify that the preceding sixty-three (63) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Wilcox. Associate:
Dated: 13 November 2003
Counsel for the applicant: Mr B Levet, Ms B Boss Solicitors for the applicant: Wyatt Attorneys Solicitor for the respondent: Mr A Markus of Australian Government Solicitor Date of Hearing: 22 October 2003
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