Clark v Chief of Defence Force [1999] FCA 1252 (15 September 1999)

Last Updated: 1 October 1999

FEDERAL COURT OF AUSTRALIA

Clark v Chief of Defence Force [1999] FCA 1252

ADMINISTRATIVE LAW - Whether grant of leave for "specified" period needs to be for a definite period - Whether Chief of Defence Force has power to revoke leave without pay - Whether refusal to exercise discretion to revoke leave became unreasonable when the conditions for the grant of leave no longer existed - Whether failure to exercise discretion was an exercise of power for a purpose other than the purpose for which the power was conferred - Whether an officer is entitled to remuneration under industrial instrument when no duties have been performed - Whether applicant rendered full time continuous service without performing duties - Relevant of industrial law precepts to interpretation of services remuneration and leave determination.

Acts Interpretation Act 1901 (Cth), s 33(3)

Administrative Decisions (Judicial Review) Act 1977 (Cth), ss 5(1)(e), 5(2)(g), 11

Air Force Regulations (Cth), rr 72(1), 73(5)

Air Force Act 1923 (Cth), ss 4B, 4G(1)

Defence Act 1903 (Cth), ss 4(1), 58B, 58H(2)(a)

Defence Force Disciplinary Act 1982 (Cth), s 96(6)

Australian Bank Employees Union v National Australia Bank (1989) 31 IR 437, applied

Automatic Fire Sprinklers v Watson [1946] HCA 25; (1946) 72 CLR 435, distinguished

Byrne v Australian Airlines [1995] HCA 24; (1995) 185 CLR 410, applied

Comptroller General of Customs v Kawasaki Motors [1991] FCA 519; (1991) 32 FCR 219, applied

Coutts v Commonwealth [1985] HCA 40; (1985) 157 CLR 91, applied

Gapes v Commercial Bank of Australia [1980] FCA 21; (1979) 41 FLR 27, applied

Heating Centre v Trade Practices Commission (1986) 65 ALR 429, cited

Minister for Aboriginal Affairs v Peko-Wallsend [1986] HCA 40; (1986) 162 CLR 24, applied

R v Anderson; Ex parte Ipec-Air [1965] HCA 27; (1965) 113 CLR 177, applied

R v Australian Broadcasting Tribunal; Ex parte 2HD [1979] HCA 62; (1979) 144 CLR 45, applied

Seymour v Stawell Timber Industries [1985] FCA 236; (1985) 9 FCR 241, applied

TCN Channel 9 v AMP (1982) 42 ALR 426, cited

GARY JAMES CLARK v CHIEF OF DEFENCE FORCE

NG 385 of 1998

MADGWICK J

SYDNEY

15 SEPTEMBER 1999

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NG 385 OF 1998

BETWEEN:	GARY JAMES CLARK Applicant
AND:	CHIEF OF DEFENCE FORCE Respondent

JUDGE:	MADGWICK J
DATE OF ORDER:	15 SEPTEMBER 1999
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1. The decision of the respondent, made on 30 March 1998, and furnished to the applicant on 3 April 1998, not to revoke, effective from 22 July 1995, a grant of Leave without Pay made to the Applicant on 6 March 1995 and as a consequence not to pay the applicant salary, allowances and other remuneration during the period 22 July 1995 to 19 December 1996 is set aside.

2. It is declared that the respondent was at all times between 22 October 1995 and 19 December 1996 required to treat the applicant as being a member of the Australian Defence Forces rendering full-time continuous service and holding the rank of Squadron Leader and as being entitled to all benefits including salary, allowances and other remuneration, to which he would have been entitled as such.

3. The respondent is to pay the applicant's costs in these proceedings.

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NG 385 OF 1998

BETWEEN:	GARY JAMES CLARK Applicant
AND:	CHIEF OF DEFENCE FORCE Respondent

JUDGE:	MADGWICK
DATE:	15 SEPTEMBER 1999
PLACE:	SYDNEY

REASONS FOR JUDGMENT

HIS HONOUR:

1 This case raises questions about the proper limits of the use of a certain kind of leave without pay in the Defence Forces. The applicant, Mr Gary Clark, seeks judicial review, under the Administrative Decisions (Judicial Review) Act (Cth) 1977 ("the AD(JR) Act"), of a decision taken by the respondent, General J Baker, Chief of the Defence Force (a) not to revoke a grant of leave without pay, and (b) not to pay the applicant salary and other remuneration after the date of the challenged decisions.

Factual background

2 On 1 February 1986 the applicant joined the Australian Defence Forces ("the ADF") and was appointed to the Royal Australian Air Force ("the RAAF") as a Pilot Officer. In 1987 the applicant graduated in dentistry and was subsequently promoted to the position of Flight Lieutenant, Dental Officer.

3 In 1994, the applicant applied for "Civil Schooling", in order to undergo post-graduate study. His application was rejected. The applicant thereupon applied to resign from the ADF. However, after discussions with senior RAAF officers, the applicant withdrew his application to resign and on 22 September 1994 made a request for leave without pay. In 1993 the RAAF had recognised the applicant's de facto marriage to Flight Lieutenant Kelly. On 14 November 1994, the applicant was granted a species of leave, known in the armed forces as, Leave Without Pay Accompanying Spouse Member ("LWOPASM"). Such leave is granted in order that an officer may move to a new location to live with their spouse until a new position is found for them in the ADF at that new location. At the time of the grant of the LWOPASM, the applicant was posted to Townsville and his de facto wife Lieutenant Kelly was posted to a Sydney location. The application made it clear that he would be studying in Sydney when he applied for the leave. The LWOPASM took effect on 6 March 1995, and was to remain in effect until the applicant could be co-located, while performing duties, with his spouse. Before going on leave, in January 1995, the applicant was promoted to the position of Squadron Leader.

4 By March 1995, the RAAF had commenced an investigation into conduct by the applicant. It was alleged that the applicant had acted fraudulently and had been involved in theft of dental and other equipment from the RAAF Base in Townsville. On 5 April 1995, the applicant, having become aware of these allegations, again applied to resign from the ADF effective from 26 April 1995. The allegations inclined senior RAAF officers to oppose the applicant's tender of his resignation. Several reasons for rejecting the resignation were revealed by internal RAAF documents: to avoid criticism from the Chief of Air Staff and the Minister for Defence Science and Personnel ("the Minister") that the RAAF does not view fraud and theft allegations seriously; to send a clear message, generally, that the RAAF takes allegations of fraud seriously, and to retain the applicant until such time as the RAAF had dealt with any charges against him under the ADF's internal disciplinary procedures, or such time as the Australian Federal Police ("the AFP") had laid charges against him. Although the retention of the applicant at that time was initially opposed by the officer who had been delegated the relevant power, the Assistant Chief of Air Staff (Personnel and Resource Management), the applicant was informed on 19 June 1995 that it would be recommended to the Governor-General that the tender of his resignation be rejected. He responded on 10 July 1995, stating that he was suffering financial loss as a consequence of the likely refusal to accept his resignation. The applicant's tender of his resignation was ultimately rejected by the Governor-General on 18 July 1995.

5 On 22 July 1995 the applicant's de facto wife, Ms Kelly, informed her Commanding Officer (who also happened to be the Commanding Officer of the applicant) of the cessation of their de facto relationship. The applicant claims that from this date, the basis for his LWOPASM had ceased to exist, he was ready and willing to resume normal duties, and that he expected that he would soon be returned to such duties.

6 By August 1995, senior RAAF management, believing that the AFP intended to deal with the allegations made against the applicant independently of the Air Force's internal disciplinary procedures, were prepared to recommend that the applicant's resignation be approved. However, the Minister was opposed to this course of action. A compromise was ultimately reached between the RAAF management and the Minister's office to retain the applicant in the RAAF until he was charged by the Director of Public Prosecutions ("the DPP").

7 In August or September 1995, the applicant, having received no advice in relation to the revocation of his LWOPASM or a further posting, approached the Defence Force Ombudsman. The Ombudsman's office advised the applicant that he ought to lodge an "Application for Redress of Grievance" ("AROG"), which the applicant did on 22 October 1995. In his AROG, the applicant personally advised the authorities that his de facto relationship had ceased on 22 July 1995 and that the applicant had expected to be posted to normal duties. The investigating officer handling the AROG, Mr Snoxall, immediately consulted the decision makers complained about in the AROG, and determined not to proceed with the investigation until the outcome of legal proceedings involving the applicant were known. This course was taken despite the fact that, in essence, the applicant's complaint was that his application for resignation or, alternatively, his request for the revocation of LWOPASM, was apparently not being dealt with by the RAAF until the outcome of the legal proceedings.

8 It was suggested by counsel for the respondent that the applicant had not been returned to duty because he failed to report the end of his de facto relationship to his parent unit, he failed to advise that he was ready to be returned to work, and because of his generally uncooperative approach to being restored to normal duties. However, this claim needs to be seen in the light of internal RAAF memoranda and the correspondence that ensued between the applicant and RAAF management at this time:

* On 8 November 1995, in a letter to the applicant, Mr Snoxall noted that the applicant had given no formal notice to his parent unit of any change to his de facto relationship, and advised him that: "If you have not already done so you have a responsibility to notify your parent unit of this change."

* On 10 November 1995, the applicant responded to Mr Snoxall, writing that his parent unit "was informed of my defacto cessation as my previous defacto is based there."

* On 6 December 1995, Mr Snoxall stated in a letter to the applicant that: "The Director of Personnel Officers-Air Force is aware of your situation and is currently considering your interim employment options."

* On 7 December 1995, Mr Snoxall noted in a RAAF internal memorandum that the applicant "is now available for employment following a change in his domestic status from LWOPASM."

* On 13 December 1995, Mr Snoxall wrote to the applicant advising that the Director of Personnel Officers-Air Force "now require written confirmation from you that you are now available for posting."

* On 18 January 1996, the applicant replied to Mr Snoxall: "As previously stated, my conditions for LWOP ceased 22 July 1995 and since this notification of my circumstances changing I have been awaiting confirmation of posting since that date. As requested, I cannot offer additional confirmation, other than that already provided, as my circumstances have not changed since Jul[y] 22 1995."

* On 6 March 1996 a letter was prepared by the Air Force Office to inform the applicant that it was likely that he would be posted for duties in the Canberra Area Dental Unit and that he ought to contact relevant persons in order to make appropriate arrangements. However, it seems that the applicant did not receive this letter (and he was not cross-examined to suggest otherwise).

9 After these communications, relations between the applicant and the RAAF deteriorated. The applicant, apparently frustrated by these events, did not comply with the precise requirements demanded of him by Mr Snoxall, namely to give formal notice of the cessation of his de facto relationship to his parent unit, and later to give written confirmation that he was available for posting. Thus, despite the fact that the RAAF was aware that the applicant was seeking the revocation of his LWOPASM and a posting to normal duties, and that some senior officers in the RAAF were concerned about the possible invalidity of the applicant's continuous grant of LWOPASM, the applicant's LWOPASM was not revoked until 20 December 1996 and the applicant was not posted to normal duties in 1995 or 1996. The applicant's resignation was finally accepted on 22 December 1996.

10 On 23 December 1997 the applicant's solicitors wrote to the Chief of the Defence Forces requesting that the LWOPASM be revoked retrospectively from 22 July 1995 and that payment of wages and ancillary benefits be paid from that date. The letter stated that:

"(a) it is apparent that Dr Clark was no longer lawfully entitled to LWOPASM from 22 July 1995; and (b) if you agree with this factual contention, it is incumbent upon you to exercise your powers under Determination 2608 to revoke the grant of LWOPASM effective from 22 July 1995.

We therefore make application to you seeking that you exercise your power to make a determination revoking LWOPASM made on 14 November 1994 with effect from 22 July 1995.

Thereafter we submit that our client's entitlement to wages and other ancillary benefits under Determination No 6 of 1992 and other relevant determinations between 22 July 1995 and 19 December 1996 should be calculated and paid to our client."

11 On 30 March 1998 the respondent rejected the applicant's request. He decided that the grant of LWOPASM was properly authorised and ought not be revoked as of 22 July 1995. Further, he wrote, "because Mr Clark did not return to duty before his discharge at his own request" he ought not be paid salary, allowance or other remuneration for the intervening period. This decision, furnished to the applicant on 3 April 1998, now forms the subject of the application for judicial review in this Court.

Relevant legislation

12 The relevant legislation is found in the Defence Act 1903 (Cth) and the Air Force Act 1923 (Cth). Section 4(1) of the Defence Act defines various terms used in the Act. It states that:

"`Member' - Includes any officer, sailor, soldier and airman;

...

`Officer' means ... in relation to the ... Australian Air Force - a person appointed as an officer of the ... Australian Air Force;

...

`The Permanent Forces' means the Permanent Naval Forces, the Australian Regular Army, the Regular Army Supplement and the Permanent Air Force."

13 Part IIIA of the Defence Act, entitled "Remuneration, Allowances and Other Benefits", outlines how determinations relating to employment conditions in the defence forces may be made. Division 1 deals with determinations made by the Minister and Division II deals with determinations made by the Defence Force Remuneration Tribunal.

14 Section 58B(1), which falls within Division 1, provides that:

"The Minister may, by instrument in writing, make determinations, not inconsistent with this Act ... or the Air Force Act 1923, providing for and in relation to:

(a) the remuneration of members or cadets;

(b) the payment of allowances or other pecuniary benefits, not being allowances or benefits by way of remuneration, to or in respect of members or cadets ...

(c) the payment of allowances or other pecuniary benefits to or in respect of members of the families of members or cadets;

(d) leave of absence and long service leave of members;"

A determination, "Determination 2608: Leave Without Pay" ("the Leave Determination"), was issued pursuant to this section on 30 November 1984 and remained in force throughout the relevant period. Clause 6 of the Leave Determination stated that:

"the Chief of the Defence Force may ... grant the member a period of leave without pay specified in the approval not exceeding:

(a) where the member has a spouse who is also a member and, because there is not available to the first mentioned member a suitable posting which would enable that member to accompany his or her spouse on a posting, the purpose of the application for leave without pay by the member is to accompany his or her spouse on a posting:

(i) the period during which such a posting remains unavailable; or,

(ii) the duration of his or her spouse's posting,

whichever is less". (emphasis added)

That provision was the origin of the LWOPASM which the applicant was granted.

15 Section 58G of the Defence Act, under Division II of Part IIIA, establishes the Defence Force Remuneration Tribunal. Section 58H(2)(a) sets out the Tribunal's functions and powers, including that the Tribunal shall "inquire into and determine the salaries and relevant allowances to be paid to members". "Determination 6 of 1992: Salaries" ("the Salary Determination") was issued pursuant to s58H(2)(a) on 4 June 1992 and remained in force at all relevant times. The determination contained, among other things, the following:

"Salary not payable

8. A member is not entitled to salary for any period for which the member is granted leave without pay or is subject to forfeiture of salary in accordance with the Defence Force Regulations.

Salary of member of the Permanent Forces

12.1 This Part applies to a member of the Permanent Forces and any other member who is rendering continuous full time service.

12.2 Salary is payable fortnightly to a member to whom this Part applies on the basis of a 7 day week.

Rate of salary for officer

13.1 The rate of salary applicable to an officer whose rank is specified in column 1 of Schedule 2 is the rate specified in column 2 opposite the officer's rank in column 1.

...

Rate of salary - medical and dental officer

15.1 The rate of salary applicable to a medical or dental officer whose rank is specified in column 1 of Schedule 4 is, instead of the rate specified in Schedule 2, the rate specified in column 2 of Schedule 4 opposite the officer's rank in column 1.

...

Salary of member of the Reserve Forces

21.1 This Part applies to a member of the Reserve Forces and any other member who is not rendering continuous full time service.

21.2 Salary is payable to a member to whom this Part applies for each day the member is required to attend for duty.

21.3 Where a member attends for duty on a day for less than 6 hours, the member is entitled to be paid a proportion of the rate of salary that would otherwise apply for the day, being:

(a) in the case of a member who attends for not less than 3 hours - half

(b) in the case of member who attends for not less than 2 hours but less than 3 hours - one third; and

(c) in the case of a member included in a approved category who attends for not less than 1 hour but less than 2 hours - one sixth."

The Schedules referred to set out annual salary rates.

16 The relevant provisions of the Air Force Act are s 4B and s 4G(1). Under s 4B "the Permanent Air Force consists of officers appointed to, and airmen enlisted in, that force". Section 4G(1) provides that "members of the Permanent Air Force are bound to render continuous full time air-force service."

17 Also relevant to this application are Regulations 72 and 73 of the Air Force Regulations (Cth). These provide:

"72 Appointments to be held during pleasure

(1) An officer shall hold his appointment during the pleasure of the Governor-General, but the commission of an officer shall not be cancelled except for cause and after he has had notice in writing of any complaint or charge made, and of any action proposed to be taken against him and has been given the opportunity of making such statement as he thinks fit regarding the cause.

...

73 Resignation of officers

(5) The Governor-General may, by instrument in writing, accept, or refuse to accept, the resignation of an officer."

18 Finally, s 96(6) of the Defence Force Disciplinary Act 1982 (Cth) provides:

"A person who has ceased to be a member of the Defence Force or a civilian shall not be charged with a service offence unless:

(a) the period that has elapsed since he so ceased does not exceed 6 months; and

(b) the maximum punishment for the service offence is imprisonment for a period of 2 years or a punishment that is more severe than that punishment."

Available grounds of review

19 This application is brought under the AD(JR) Act. Section 5(1)(e) and s 5(2)(g) of the AD(JR) Act provide:

"(5)(1) A person who is aggrieved by a decision to which this Act applies that is made after the commencement of this Act may apply to the Court for an order of review in respect of the decision on any one or more of the following grounds:

...

(e) that the making of the decision was an improper exercise of the power conferred by the enactment in pursuance of which it was purported to be made

...

(5)(2) The reference in paragraph (1)(e) to an improper exercise of a power shall be construed as including a reference to:

(a) taking an irrelevant consideration into account in the exercise of a power;

...

(c) an exercise of a power for a purpose other than a purpose for which the power is conferred;

...

(f) an exercise of a power that is so unreasonable that no reasonable person could have so exercised the power;

...

(j) any other exercise of a power in such a way that constitutes abuse of the power."

Validity of the original grant of LWOPASM

20 It was submitted by the applicant that the original grant of LWOPASM, made on 14 November 1994, was invalid because it did not conform with the requirements of the Leave Determination. As outlined above that Determination states, under part 6, that: "the Chief of the Defence Force may ... grant the member a period of leave without pay specified in the approval".

21 The applicant's submission first fastened upon the word "specified". It was said that a sufficient degree of particularity is required in order that something may be considered to be "specified": see TCN Channel 9 v AMP (1982) 42 ALR 426 at 503 and 504, and Heating Centre v Trade Practices Commission (1986) 65 ALR 429 at 446. It was argued that the grant of leave, which was made "until he can be collocated with his spouse", was not for a specified period, but on the contrary for an indefinite unspecified period. Therefore, it was contended, the grant of leave was invalid, void and of no effect.

22 However, the applicant's interpretation of "specified" cannot be sustained in light of paragraphs 6(a)(i) and 6(a)(ii) of the Leave Determination, which explicitly authorise the grant of leave for indeterminate periods of time. Indeed, the grant of leave "until he can be collocated with his spouse" appears to be exactly the type of leave contemplated by the Determination. Therefore, for the purposes of part 6 of that Determination, the leave granted to the applicant was adequately specified.

23 Further, as noted by the respondent, a challenge to the original grant of LWOPASM made on 14 November 1994 falls well outside the time limitations imposed by s 11 of the AD(JR) Act.

Failure to revoke the LWOPASM effective from 22 July 1995

24 A more substantial submission was developed by the applicant in relation to the failure of the respondent to revoke retrospectively the grant of LWOPASM from the time the applicant's de facto marriage terminated. On its face the Leave Determination does not provide the respondent with the power to revoke a grant of LWOPASM. However, counsel for the applicant submitted that such a power is granted by implication where the circumstances upon which the grant was made change such that the basis of the grant of leave no longer exists. On one view, the power to revoke the grant of LWOPASM is necessary by implication to render the scheme envisaged under the Determination fully effective: see Comptroller General of Customs v Kawasaki Motors [1991] FCA 519; (1991) 32 FCR 219 at 224-226 and 230. The scheme envisaged by this Determination, as noted above, was to enable the grant of leave to an officer, whose spouse had been moved, to be reunited with the spouse. Further, as a matter of statutory interpretation it ought to be presumed, according to s33(3) of the Acts Interpretation Act 1901 (Cth), that:

"Where an Act confers a power to make, grant or issue any instrument ... the power shall, unless the contrary intention appears, be construed as including a power exercisable in the like manner and subject to the like conditions (if any) to repeal, rescind, revoke, amend, or vary any such instrument."

Although the Determination in question is not itself a statute, there is no intention apparent from the provisions of the Determination that, where the conditions necessary to grant leave without pay are no longer fulfilled, the Chief of the Defence Force ought not be able to revoke such a grant. It would be administratively convenient that that be so.

25 Once the applicant ceased to meet the primary requirements of the LWOPASM, upon the cessation of his de facto relationship with Ms Kelly on 22 July 1995, if revocation was necessary, the respondent had the power necessary to revoke the applicant's grant of LWOPASM.

26 Counsel for the respondent did not dispute that the Chief of the Defence Force had the power to revoke a grant of leave without pay, but contended that the Leave Determination imposed no duty on the respondent either to grant an application for LWOPASM or to revoke that power. In effect it was submitted that the power to revoke the applicant's LWOPASM was a discretion to be exercised in the prerogative of the Chief of the Defence Force.

27 However, statutory discretions, even if wholly unqualified on their face, are no longer recognised as being quite unconstrained. In R v Anderson; Ex parte Ipec-Air (1965) 113 ALR 177 at 189, Kitto J said:

"It is a general principal of law, applied many times in this Court and not questioned by anyone in the present case, that a discretion allowed by statute to the holder of an office is intended to be exercised according to the rules of reason and justice, not according to private opinion; according to law, and not humour, and within those limits within which an honest man, competent to discharge the duties of his office, ought to confine himself ... The courts, while claiming no authority in themselves to dictate the decision that ought to be made in the exercise of such a discretion in a given case, are yet in duty bound to declare invalid a purported exercise of the discretion where the proper limits have not been observed."

28 In this case, at least the general purposes and intendment of the authorising legislation taken as a whole evince such restraints. The court in R v Australian Broadcasting Tribunal; Ex parte 2HD [1979] HCA 62; (1979) 144 CLR 45 at 49 said:

"Here the problem lies in ascertaining what are the proper limits of the discretion. In the absence of some positive indication of the considerations on which a grant or refusal of consent is to depend, the discretion is `unconfined except in so far as the subject matter and the scope and purpose of the statutory enactments may enable the Court to pronounce given reasons to be definitely extraneous to any objects the legislature could have had in view', to use the words of Dixon J in Browning."

29 The applicant contended, in effect, that a duty to exercise the discretion arose when the respondent's refusal to revoke the LWOPASM became so unreasonable that no reasonable administrator would so act. It was argued that this point was reached from the moment that the applicant's former de facto, Ms Kelly, informed her Commanding Officer of the cessation of their de facto relationship, on 22 July 1995. As the applicant and Ms Kelly were members of the same Parent Unit, Ms Kelly's advice to her Commanding Officer, it was argued, ought to be regarded as adequate notice on behalf of the applicant also. However, it was argued by the respondent, that at that point in time, the applicant had not himself notified RAAF authorities that his de facto relationship had ended and that he wished to return to duty. The supposed reasonableness of the requirement that the applicant personally advise of the cessation of his de facto relationship gains some support from the fact that the application form for recognition of a de facto relationship, which the applicant and Ms Kelly completed on 10 June 1993, required that: "If both parties of the de facto marriage are members of the ADF, they are both required to submit applications." Accordingly, the failure of the respondent to revoke the grant of LWOPASM merely upon Ms Kelly furnishing her parent unit with this advice, was not unreasonable.

30 Nevertheless, the applicant had advised, in his AROG dated 22 October 1995, that his de facto relationship had ceased on 22 July 1995 and that he expected to be posted to normal duties. Therefore, it was submitted by the applicant that, in the alternative, the respondent's refusal to revoke the LWOPASM became unreasonable from this later date.

31 The respondent submitted that the reason why the applicant's LWOPASM had not been revoked and he had not been returned to work after this notification on 22 October 1995, was because he had refused to comply with the requirements set forth in the subsequent correspondence with the RAAF. It was suggested that, as an educated man and a long serving member of the ADF, the applicant ought to have been familiar with the stringent approach to administrative procedure required, in such situations, of members of the ADF. The respondent submitted that the appropriate test to be applied in this situation was "[i]s the applicant willing to work?" It was said that it was clear, from his correspondence with the RAAF and his inaction, that the applicant was not willing to return to work, but wanted only to resign in order that he could finish his dentistry qualifications. Counsel for the respondent said that: "When perfectly reasonable steps were suggested to him on a number of occasions to actually bring him back to duty, each time the applicant failed to take that step, notwithstanding that he was an experienced officer and apparently well accustomed to writing appropriate military correspondence and writing documents."

32 Although the applicant failed to navigate the correct channels in seeking to be returned to duty, there is no material that could reasonably justify a conclusion that this was the product of sheer intransigence, rather than of confusion and frustration. Neither does the fact that the applicant may have preferred to resign permit a conclusion that he was not willing to return to work. The evidence established that, if he could not resign, the applicant was in fact willing to return to duties in order to be paid.

33 From the correspondence between the applicant and respondent and the internal RAAF memos, it seems clear that senior officers and ministerial staff believed that it was preferable that the applicant should remain on LWOPASM until the legal proceedings had run their course. The primary concern of those officers and employees was to resist the applicant's attempts to resign rather than to give effect to his right (and duty) to return to work, despite the fact that the applicant was not receiving an income, no longer had any reason to be on leave, and had not been found guilty of any offence. This situation continued from 22 October 1995 to 22 December 1996.

34 In these circumstances the fact that the respondent refused to revoke the grant of LWOPASM retrospectively was, in my opinion, so unreasonable that no reasonable decision maker could have arrived at it: see Minister for Aboriginal Affairs v Peko-Wallsend Ltd [1986] HCA 40; (1986) 162 CLR 24 at 40-42. Such an error constitutes a reviewable error of law according to ss 5(1)(e) and 5(2)(g) of the AD(JR) Act.

35 Further, the respondent's decision may fairly be characterised as an exercise of the respondent's power for a purpose other than a purpose for which the power was conferred, establishing a reviewable error under ss 5(1)(e) and 5(2)(c). The power to grant LWOPASM exists to enable a compassionate decision, and one supportive of presumed emotional commitments of a member of the defence forces, where that can be done consistently with service interests. The principal service interest is that defence force members should, except for good cause, be available to perform their duty to serve. The power to revoke such a grant is likewise to be exercised with purposes of those kinds in mind. The power does not exist to enable fortuitous advantage to be taken, for what in this case were purposes unexplained in evidence by the respondent, of an officer's status as being on LWOPASM and to prevent the officer from either working or realising his or her ordinary expectation that he or she may resign, if he or she so wishes, while actively engaged in peacetime service and not subject to a fixed-term appointment.

36 The errors involved in the respondent's refusal are confirmed by a consideration of the context of the legislative and regulatory regime establishing the ADF's disciplinary system. Although regulation 72 of the Air Force Regulations provides that members of the ADF serve at the Governor General's pleasure (and it is not for the Court to question such an exercise of the Governor's discretion: Coutts v Commonwealth [1985] HCA 40; (1985) 157 CLR 91 at 104 per Wilson J), it is apparent that it was not within the contemplation of the statutory regime that a member ought be both refused the ability to resign and to return to paid service indefinitely, awaiting disciplinary action. Section 96(6) of the Defence Force Disciplinary Act subjects members to a liability to be charged with a disciplinary offence under the Act for up to six months after the cessation of their service. Thus, if there are outstanding charges against an officer who wishes to resign, there is no practical necessity that would justify the legislation being construed as authorising this to be taken into account as a bar to such resignation. It was open to the respondent to revoke the LWOPASM and return the applicant to a posting, or to seek to procure the Governor General's acceptance of the applicant's resignation without forfeiting the right to pursue disciplinary action.

The applicant's entitlement to salary, allowances and other remuneration

37 It was submitted by counsel for the respondent that, even if the respondent had acted unlawfully in failing to revoke the grant of LWOPASM, the respondent was not required to pay the applicant a salary thereafter since he had then performed no work. The principle espoused in Automatic Fire Sprinklers v Watson [1946] HCA 25; (1946) 72 CLR 435 by Dixon J would appear to support this proposition:

"A contract for the establishment of the relation between master and servant [is] ... commonly understood as involving no liability for wages or salary unless earned by service, even though the failure to serve is a consequence of the master's wrongful act. It is, of course, possible for the parties to make a contract for the payment of periodical sums by the master to the servant independently of his service... But, to say the least, it is not usual. The common understanding of a contract of employment at wages or salary periodically payable is that it is the service that earns the remuneration and even a wrongful discharge from the service means that wages or salary cannot be earned however ready and willing the employee may be to serve".

38 However, it is common ground that the applicant's employment conditions were governed, not by a contract of employment, but entirely by statute: see Coutts. With regard to remuneration, the relationship was governed by a statutory industrial instrument, namely the Salary Determination. Further, it is possible for a quasi-industrial instrument, like the Salary Determination, to provide for remuneration to be payable without a condition that duties actually be performed by the employee: see Gapes v Commercial Bank of Australia [1980] FCA 21; (1979) 41 FLR 27 at 28-29 and 33, and Australian Bank Employees Union v National Australia Bank (1989) 31 IR 437 at 440-441. (Such an agreement is also, of course, possible, as acknowledged by Dixon J in the quoted passage from Watson's Case above, within a contract of employment). As was said, in Gapes at 30-31:

"The problem in each case is to identify the topic with which the award deals and to ascertain what it says on that topic. It is the provision made by the award on that topic which governs. It is clear that one topic with which this award deals, and therefore governs, embraces the amount of salary, the times of payment of the components thereof, and the nature of the obligation to pay such components as and when specified in the award, namely whether that obligation is conditional or unconditional. Every obligation in the award is conditional on the existence of, at least, a contract of employment. But once that condition is fulfilled the award operates and governs the obligations of the parties to the extent that it deals therewith."

The statutory force of an industrial instrument, operating independently of the common law contract of employment, was confirmed in Byrne v Australian Airlines [1995] HCA 24; (1995) 185 CLR 410. Therefore, under a contract of employment payment may generally be conditional upon work, however, as a matter of construction of an applicable industrial instrument, that position may be varied.

39 The applicant argued that the Salary Determination provides unconditionally for the payment of a yearly salary in stated proportions to a member of the Permanent Forces and is not conditional on the actual performance of duties. The Determination, at part 12.1, provides that salary is payable "to a member of the Permanent Forces and any other member who is rendering continuous full time service." On its face the Determination does not impose a condition upon such payment that a member actually be performing duties. And, in support of the applicant's construction, cl 8 of the Determination expressly provides for those circumstances in which a member is not entitled to salary. Such circumstances (set out in the Defence Force Regulations which I need not include here) do not include non-performance of duties, though they do include absence without leave. Further, cl 21.2 and 21.2 and 21.3 of the Determination make specific provision for members who are not rendering continuous full time service (apparently members of the Reserve Forces). In their case, payment of salary is linked to attendance for duty. The absence of any such provision for non-reservists confirms the impression that the right to remuneration is linked to a member's appointment and duty to serve rather than directly to the additional obligation, which may be imposed, but need not be, to perform actual tasks.

40 However, the crucial question is whether the applicant can and should be regarded as having "rendered continuous full time service", despite not having performed any duties. The applicant relied upon an understanding of the term `service', emerging from the relevant statutory instrument, different from the notion of service under a contract between employee and employer, and implicit in Dixon J's formulation in Watson. Section 4G(1) of the Air Force Act, it will be recalled, states that "members of the Permanent Air Force are bound to render continuous full time air-force service". This would appear to support the applicant's contention that he ought to have been regarded, after the event, as having rendered such service.

41 Although it may be unusual that an industrial or quasi-industrial instrument should require payment in the absence of any performance of work, and such meaning ought not be readily assumed, the regulatory context within which the Salary Determination operates is far from that in which most such instruments operate. The Air Force Regulations, in regulations 72 and 73, insist that appointments are to be held at the Governor-General's pleasure. A member is unable simply to give a short period of notice of termination of service, as employees can under many awards. Unlike virtually any other employment arrangement, the applicant could have been posted anywhere on short notice without the right to resign. The peculiar status of a member of the Air Force supports the conclusion that, despite not performing duties, the applicant ought to be taken to have fulfilled his statutory duty to render full time service. He was ready willing and able to do so, and it was the respondent's actions which prevented him from doing so. In the statutory context it might be said that, even were the common law requirement of `service' to apply to applicant, the applicant would have rendered such service in all the circumstances. He was wrongfully denied an opportunity actually to perform duties, but consciously kept in a relationship akin to employment. As Dixon J went on to say in Watson: "they also serve who only stand and wait".

42 Further, it is a well established principle that it is not open to an employer to deprive an employee, who is ready and willing to work, of award entitlements to wages, by declining to provide the employee with work: see Seymour v Stawell Timber Industries [1985] FCA 236; (1985) 9 FCR 241 at 266-267. This has a bearing upon the interpretation of the Salary Determination. Section 58K(7) of the Act, expressly provides that the Tribunal is to have regard to decisions of or principles established by the Australian Industrial Relations Commission. Curial interpretations of awards stemming from such decisions are not irrelevant.

Conclusion

43 The foregoing proceeds on the assumption that some decision to revoke the LWOPASM was actually necessary. The case was fought on that basis. It may also be that the assumption is unfounded and that, upon the cessation of the "spousal" relationship which, under cl 6 of the Leave Determination is central to both the purpose and the permitted extent of the leave, the grant of the leave thereupon (or within a reasonable period thereafter) ceases by operation of law. That need not be further considered here.

44 For the above reasons the application succeeds. Pursuant to s 16 of the AD(JR) Act, the decision of respondent, made on 30 March 1998, and furnished to the applicant on 3 April 1998, not to revoke, effective from 22 July 1995, a grant of Leave without Pay made to the Applicant on 6 March 1995 and as a consequence not to pay the applicant salary, allowances and other remuneration which the applicant would have been entitled to during the period 22 July 1995 to 19 December 1996 will be set aside. It is declared that the respondent was at all times between 22 October 1995 and 19 December 1996 required to treat the applicant as being, entitled to all benefits including salary, allowances and other remuneration, to which he would have been entitled as a member of the Australian Defence Forces rendering full-time continuous service and holding the rank of Squadron Leader.

I certify that the preceding forty-four (44) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice the Court.

Associate:

Dated: 15 September 1999

Counsel for the Applicant:	J Pearce
Solicitor for the Applicant:	Matthews Folbigg
Counsel for the Respondent:	R Henderson
Solicitor for the Respondent:	Australian Government Solicitor
Date of Hearing:	2 November 1999
Date of Judgment:	15 September 1999