Stuart v Chief of Army

[2003] FCA 1291

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 APPLICANT
AND:	CHIEF OF ARMY RESPONDENT
JUDGE:	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 APPLICANT
AND:	CHIEF OF ARMY RESPONDENT

JUDGE:	WILCOX J
DATE:	13 NOVEMBER 2003
PLACE:	SYDNEY

REASONS FOR JUDGMENT

WILCOX J:

1. 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.

2. 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.

3. 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

4. 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.

5. Notwithstanding having suffered the punishments, the applicant petitioned the convictions, but was…