Re Brian William Patton v the Honourable Kim Christian Beazley, Minister of Defence and the Commonwealth of Australia [1985] FCA 329 (11 September 1985)

FEDERAL COURT OF AUSTRALIA

Re: BRIAN WILLIAM PATTON
And: THE HONOURABLE KIM CHRISTIAN BEAZLEY, MINISTER OF STATE FOR DEFENCE AND
THE COMMONWEALTH OF AUSTRALIA
No. NSW G427 of 1984
Defence

COURT

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
GENERAL DIVISION
Pincus J.

CATCHWORDS

Defence - air Force - officer - termination of appointment - natural justice - appointment "during pleasure".

PRACTICE AND PROCEDURE - striking out statement of claim - amendment - declaration sought obscure in effect.

Judiciary Act, s.44

Federal Court Rules, o.11 r.16

Air Force Regulations, reg.628(1)

HEARING

BRISBANE
11:9:1985

ORDER

1. The amendment sought be refused.

2. The statement of claim be struck out in its entirety.

3. The costs of and incidental to this application and order be taxed and paid by the applicant, Mr Patton.

NOTE: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

DECISION

The applicant instituted these proceedings by a writ issued out of the High Court of Australia. After certain steps were taken, Mason J. ordered that the further hearing of the matter be remitted to this Court pursuant to s.44 of the Judiciary Act 1903. The respondent subsequently applied for an order that the amended statement of claim of the applicant be "dismissed" on the ground that it disclosed no reasonable cause of action. I assume that what was intended was to apply that the pleading be struck out under o.11 r.16. The basis of the application was simply that, if all the allegations in the statement of claim are true, the plaintiff is nevertheless not entitled to any relief. Although there is authority that a power to strike out pleadings is one which must be exercised with great caution, if it is clear that the claim as pleaded cannot possibly succeed, then I should strike it out.

2. The further amended statement of claim need not be set out in full; the allegations which require mention are the following:-

That the applicant was appointed, with the

rank of pilot officer, to be an officer of
the Royal Australia Air Force, such
appointment being gazetted in 1966.

That in 1967 a commission was issued in
respect of that appointment.

That on 9 September 1968 the applicant was
advised that a recommendation had been made
to the Governor-General that his appointment
be terminated with effect from 13 September
1968 and that letter contained no complaint
or charge against the applicant and no cause
was advanced in support of the
recommendation.
That the appointment was purportedly
terminated with effect from 6 November 1968.

That the purported termination was gazetted
on 28 November 1968.

That the respondents have taken no action to
cancel the applicant's commission.

3. The statement of claim does not precisely set out the mode of termination of the appointment, but the relevant extract from the Gazette has been placed before me and it is agreed that I should treat it as part of the allegation of termination. The notification in the Gazette reads as follows:-

"ROYAL AUSTRALIAN AIR FORCE

THE following change is made:

PERMANENT AIR FORCE

Equipment Branch

The probationary appointment of Pilot Officer B.W.
Patton (057084) is terminated 6 November 1968.

GORDON FREETH
Minister of State for Air

(Ex. Min. No. 141 - Approved 21 November 1968)"

4. It will be observed that there is no mention of the Governor-General in Council, but it is common ground that, correctly read, the Gazette shows that termination was effected by decision of the Governor-General in Council. That is conveyed by the words "Ex Min" and "approved".

5. It should be mentioned, further, that the plaintiff's claim in the proceedings is for two orders only, which need not be set out in detail. Each of them asserts an entitlement to money on the assumption that the termination alleged was not effective.

6. In argument before me, both written and oral, the applicant explained that by reason of the nature of his appointment, it could not be terminated without regard to the principles of natural justice. He relied upon a considerable number of references to authority, dating back to the 1766 edition of Blackstone's Commentaries on the Laws of England. The details of the argument, which was very elaborately developed, are not of immediate concern, for in support of his contention that the statement of claim should be struck out, Mr Robertson for the respondents relied almost entirely upon the recent decision of the High Court in Coutts v. Commonwealth of Australia [1985] HCA 40; 59 ALR 699. Mr Robertson did not, as I understood him, suggest that, apart from Coutts' case, the matter was one in which it would be appropriate to strike the pleading out, but said that the decision put an end to the applicant's prospects of success.

7. The question becomes, then, whether Coutts' case governs the matter and it is necessary to determine whether what was there decided makes the applicant's claim in this case impossible to sustain. Before turning to the central point of Coutts' case, however, I wish to make an observation upon the reliance which appeared to be placed by the respondents on the remarks of Wilson J., in commenting upon the reasons of Lord Diplock in Council of Civil Service Unions v. Minister for Civil Service [1983] UKHL 6; (1984) 3 WLR 1174:-

"The interests of national security were paramount
and in relation thereto the executive government,
and not the courts of justice, must have the last
word. Both Lord Scarman and Lord Roskill
expressed a similar view."

I do not understand Wilson J., by these remarks, to have intended to convey that in this country, once a question of national security arises, Courts cannot intervene. The Courts here have never regarded an allegation that national security is threatened, even imminently, as a reason for declining to examine governmental action: see for example South Australia v. Commonwealth [1942] HCA 14; 65 CLR 373, decided in 1942, Australian Communist Party v. Commonwealth [1951] HCA 5; 83 CLR 1, and the recent decision in Alister v. R [1984] HCA 85; 50 ALR 41, especially at p 64. Further, as Lord Scarman was careful to explain in the House of Lords case referred to, the well-known statement that "those who are responsible for national security must be the sole judges of what the national security requires" does not mean that evidence is unnecessary to establish that national security is involved in the case, nor that the opinion of the Crown as to such matters is conclusive: see (1984) 3 W.L.R. from p.1190G to 1193A. The doctrine which Lord Scarman so anxiously refutes would be a prime recipe for tyranny. The cry of "national security" can be used to encompass all kinds of alleged internal threats and the notion that, once it is uttered by the authorities, the rule of law has but an attenuated application has never taken hold here, although it seems to have some support in England: cf. The Secretary of State for Defence v. Guardian Newspapers Ltd. (1984) 3 WLR 986 at p 1015.

8. To return to the central point of Coutts' case, the facts were that the original plaintiff, whose executrix pursued the matter before the High Court, was appointed to be, and later commissioned as, an officer in the Royal Australian Air Force. After a question was raised about his health, the Governor in Council approved a recommendation that his appointment be terminated on medical grounds. It was contended on behalf of the executrix, in the High Court, that the source of the power to terminate the appointment was reg. 628(1) of the Air Force Regulations, which it is not necessary to set out, but which deals with the retirement or discharge of members on medical grounds. Deane J., who dissented, held that the requirements of natural justice applied in respect of the termination of the appointment and that the deceased had also been entitled to set up a case that the provisions of reg. 628(1) were inapplicable to the circumstances of the case. The majority (Wilson, Brennan and Dawson JJ.) held that the Commonwealth had a right to dismiss the officer at pleasure, that this appointment was "liable to be terminated at any time for good or bad reason or for none" (p.708), subject to a power to dismiss which "may be exercised at any time and for any reason, or for no reason or for a mistaken reason" (p.709), and "terminable at will, without notice but also without any hearing" (p.720).

9. The applicant here did not contend that Coutts' case is distinguishable from his own and I can see no ground of distinction. It is true that there was a difference, referred to above, but it was one which made Coutts' case stronger for the plaintiff there; it was able to be argued that it was express or implicit in reg. 628(1) that the common law dismissal rule did not apply, and that, having been dismissed on medical grounds, the deceased had been entitled to rely upon that sub-regulation. In this case no question of dismissal on medical grounds arises. No reason for the termination of the appointment was given and the plaintiff simply says that he was entitled to be heard. As Mr Robertson pointed out, Mason A.C.J., who dissented, did so in terms which are against the applicant's case here; his Honour was of the view that:-

"... no obligation to conform to the rules of
natural justice can arise when the power to
dismiss at pleasure is exercised for discretionary
reasons independently of reg. 628(1)."

In my opinion, Deane J., the other dissenting judge, may not have reached a concluded view on the question whether the rules of natural justice would have applied if there had been a dismissal on discretionary grounds independently of reg. 628(1): see p.712 line 40, p.714 line 40. However that may be, four members of the Court were of the view that, no assistance as far as the plaintiff was concerned being able to be derived from reg. 628(1), it was not possible to attack the termination of appointment on the ground that the requirements of natural justice were not observed. That view is part of the ratio and I am bound by it. The argument for the applicant really ignores Coutts' case and put forward reasons of substance against the legality of what has been done.

10. In the circumstances, although I have carefully considered the submissions made by the applicant, it would not seem proper for me to express my own view on them; the conclusion at which they arrive is diametrically opposed to the result of Coutts' case.

11. The only other question is an application for amendment which is made by the applicant and which seeks to add a claim as follows:-

The holder of an Air Force commission which has
not been cancelled by the Governor-General acting
pursuant to the provisions of regulation 72(1) of
the Air Force Regulations, remains an officer of
the Air Force.

The effect of this amendment, if allowed, would be to introduce a new and rather obscure issue into the case, namely (assuming all else against the plaintiff), whether what was done left him as a person who might properly be described as "an officer of the Air Force". I was, at first, inclined to the view that the amendment should be allowed but, on reflection, I have come to the conclusion that it should not be, for the reason put forward by Mr Robertson. This is, in substance, that the granting of the new declaration sought would, so far from clarifying the legal position, merely raise a new question, namely the effect of the declaration.

12. I therefore propose to order that the statement of claim be struck out, in its entirety, and that the amendment be refused. I will hear the parties as to whether any further orders should be made of a consequential kind.

13. I order that the costs of and incidental to this application and order be taxed and paid by the applicant, Mr Patton.