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Federal Court of Australia |
Last Updated: 29 April 1999
Stuart v Chief of the Army [1999] FCA 501
ADMINISTRATIVE LAW - judicial review - applicant discharged from the Australian Army - whether the respondent was estopped from applying administrative discharge after applicant convicted under military law - "res judicata" - whether decision to discharge vitiated by a policy which did not have regard to the circumstances of an individual case.
WORDS AND PHRASES - res judicata - autrefois convict.
Administrative Decision (Judicial Review) Act 1977 (Cth)
Defence Force Discipline Act 1982 (Cth)
Defence Act 1903 (Cth)
Australian Military Regulations (Cth)
R v Thomas [1951] 1 KB 26
Re: Tracey; Ex parte Ryan [1989] HCA 12; (1989) 166 CLR 518
Re: Drake v Minister for Immigration and Ethnic Affairs (1979) 2 ALD 634
Shand v Chief of the Army, Burchett J, 26 March 1998, unreported
American Jurisprudence, 2nd ed. Vol. 53A at par 212; 57 CJS, par 135
Spencer Bower, Turner and Handley, The Doctrine of Res Judicata (3rd ed., K.R. Handley)
DIANA BETTINA STUART V CHIEF OF THE ARMY
NG 1159 OF 1998
JUDGE: BEAUMONT J.
DATE: 13 APRIL 1999
PLACE; SYDNEY IN THE FEDERAL COURT OF AUSTRALIA BETWEEN: Applicant AND: Respondent JUDGE:
NEW SOUTH WALES DISTRICT REGISTRY NG 1159 OF 1998
DIANA BETTINA STUART
CHIEF OF THE ARMY
BEAUMONT J. DATE OF ORDER: 13 APRIL 1999 WHERE MADE: SYDNEY
THE COURT ORDERS THAT:
The application be dismissed with costs.
Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
|
IN THE FEDERAL COURT OF AUSTRALIA | |
| NEW SOUTH WALES DISTRICT REGISTRY | NG 1159 OF 1998 |
|
BETWEEN: | DIANA BETTINA STUART
Applicant |
|
AND: | CHIEF OF THE ARMY
Respondent |
JUDGE:
BEAUMONT J. DATE: 13 APRIL 1999 PLACE: SYDNEY
BEAUMONT J:
INTRODUCTION
1 This is an application by a soldier, Diana Bettina Stuart, under the Administrative Decision (Judicial Review Act) 1977 for judicial review of a decision of a delegate of the Chief of the Army to discharge Ms Stuart.
2 By s 44(1) of the Defence Act 1903 it is provided that:
"44. (1) Subject to the regulations, a soldier may at any time be discharged by the [relevant authority] for such reasons as are prescribed, notwithstanding[inter alia]:
(a) that the soldier has not completed the period for which the soldier is enlisted; ..."
3 The Regulations, i.e., the Australian Military Regulations, made, under the Defence Act 8701 , prescribe the reasons for discharge in Regulation 176. It is there provided that those reasons include:
"(n) that the [relevant authority] is satisfied that the retention of the soldier in the Army is not in the interest of Australia or of the Army;"BACKGROUND FACTS
4 The long history of the present matter commences with the receipt by Ms Stuart of a notice dated 18 June 1996 to show cause why her discharge should not occur. Relevantly, that notice was as follows:
"NOTICE TO SHOW CAUSE WHY DISCHARGE SHOULD NOT OCCUR
6 By a discharge determination dated 4 March 1997, Major J.C. Hill, a prescribed discharge authority, stated:
"1. I ... have considered the following:7 The "Theft Policy" is set out in the Army's Manual of Personnel Administration, Chapter 87. It is there stated:
a. your Notice to Show Cause Why Discharge Should Not Occur dated 18 Jun 96;
b. your Response to Notice to Show Cause Why Discharge Should Not Occur dated 13 Feb 97;
c. RAAOC Corps Director's recommendation of discharge;
d. Your complete Service History: this included adverse and supporting material; and
e. Any other relevant information.
2. In reaching my decision, I gave weight to all of the above considerations; however, I gave great weight to the Army Theft Policy (which is included under any other relevant information) and the recommendations of your Corps Director. You have been found guilty and convicted of a Theft offence, and the Army has a no Theft Policy.
3. I have determined that you are to be administratively discharged under the terms of AMR 176(1)(n) `Retention not in the interest of the Army'. The effective date of your discharge is to be 26 Mar 97."
"Introduction8 The policy goes on:
. Theft has a detrimental effect on the environment of mutual trust and personal integrity which is vital to the effectiveness and morale of the Army. Any theft related offence is therefore regarded far more seriously in the Army than in the civil community where the protection of property is the only consideration.
8702. For the purposes of this chapter theft includes the following:
a. stealing,
b. receiving stolen property,
c. unlawful possession of service property,
d. possession of property suspected of having been unlawfully obtained,
e. fraud related offences.
Policy
8703. Theft by members of the Army will not be tolerated. Discharge action will be initiated against all offenders.
Promulgation
8704. Army policy on theft is to be widely promulgated. The statement at Annex A is to be given to all members during their initial training and is to be published every six months in Unit Routine Orders.
8705. All enlistees are to be informed of the Army's theft policy prior to attestation and they are to sign the relevant section of the Application for Enlistment or Appointment acknowledging that they have been so informed."
"Administrative action
8712. Where a member has been convicted of a theft related offence (at either a military or civilian hearing) or in circumstances where the member's CO is satisfied on the balance of probabilities that there is sufficient evidence implicating the accused in a theft related offence (either military or civilian), the member's CO is to notify the member that consideration is to be given to his/her discharge (or, in the case of an officer, termination of their commission). The CO is to include in this notice a recommendation as to whether the member should be retained or discharged, and is to ask the member to `Show Cause" why he/she should not be discharged. An example of the Notice to Show Cause is attached at Annex B.
8713. A CO is to consider promptly a member's response to a `Show Cause'. The CO may choose to vary the original recommendation (generally due to the introduction of new factors by the member) and if this occurs, the CO must advise the member in writing of the new recommendation and of the member's right to comment on the new recommendation. On completion of this procedure the documentation is to be promptly forwarded to the relevant discharge authority. Note that a recommendation for retention may be varied to one for discharge and that the converse may also apply.
8714. When `Show Cause' action is taken the unit is to:
a. provide advice and assistance to the member in preparing any response to the notice; and/or
b. if requested, arrange legal advice for the member.
8715. Discharge action is to be in accordance with MPA, Vol 1, Chap 35 (OR) or MPA, Vol 1, Chap 55 (Offr) and is to be treated as involuntary discharge/termination. Note that the member retains the right to submit a complaint for Redress of Grievance against any decision made to discharge the member.
8717. Discharge action is not to proceed until all disciplinary action has been finalised. Only exceptional circumstances warrant a member's discharge before disciplinary action has been completed."
The annexed statement mentioned in par 8704 is as follows:
"STATEMENT OF THE ARMY THEFT POLICY
Offences of theft, fraud, forgery and other related offences by members of the Army bring into question the integrity and trustworthiness of the member involved and, more importantly, erode the mutual trust and confidence between members that is essential to the effective operation of a disciplined force. Offences of this nature by members of the Army will not be tolerated and appropriate disciplinary action will be taken. Where disciplinary action does not result in the member's dismissal from the Army, administrative action enabling discharge will be initiated against all offenders."
9 By an application for redress of grievance dated 4 March 1997, Ms Stuart requested that Major Hill's determination be reversed.
10 By a letter dated 14 March 1997 a copy of which was provided to Ms Stuart, Major Hill said:
11 By a discharge determination dated 15 April 1997, Major J.M. Blumson stated:
"2. In her ROG, Pte Stuart asserts the concern that she was denied Natural Justice in that she was not given the opportunity to comment on her COMD's recommendations and consequently it was not considered by the Discharge Authority. In the course of providing a Statement of Reasons, SCMA determined that PTE Stuart was denied Natural Justice as:
a. Her Notice to Show Cause did not advise her what her COMD's recommendation would be ie. discharge or retention.
b. PTE Stuart acknowledged the COMD's recommendation on 19 Feb 97 however, there is no evidence that she was formally advised of her right of reply to his recommendation prior to the Discharge Authority's determination.
The denial of Natural Justice means that SCMA's decision to discharge PTE Stuart is flawed. In fairness to PTE Stuart, SCMA has cancelled the decision to discharge her. The cancellation of PTE Stuart's discharge subsequently negates the need for SCMA to raise a Statement of Reasons.
3. Notwithstanding the decision to cancel PTE Stuart's discharge order, the question of whether or not her continued service is in the interests [of the] Army is still in question; and to that end, SCMA will consider her case afresh. PTE Stuart should be advised that she now has the opportunity to submit to SCMA comments on her COMD's recommendations and any other material she feels SCMA should consider prior to making a determination. PTE Stuart should also be advised that she has until 25 Mar 97 to make her submissions to SCMA. Her submissions should however, be staffed through her COMD. Under the rules of Natural Justice PTE Stuart is to be given the opportunity to comment on any further adverse material written or forwarded to SCMA by Bandiana Logistic Group. The Discharge Authority will consider the following material:
a. PTE Stuart's original Notice to Show Cause;
b. her original response to that Notice;
c. her COMD's recommendation of discharge;
d. her response, if any, to her COMD's recommendation;
e. the Army Theft Policy;
f. her entire service history, including any reports raised upon her, her offence history (both civil and military) her length of service; and
g. any other relevant information that PTE Stuart has seen and has had the opportunity to comment on.
4. An assessment of the merits of her case will be made on or after 25 Mar 97. The decision maker will be a Discharge Authority who was not involved in the original decision to order her discharge."
"1. I, Major Julie Blumson, being a prescribed Discharge Authority under the powers and functions of DA 44 have considered the following:12 By a further application to redress grievance dated 6 May 1997, Ms Stuart requested that the determination of her discharge be reversed.
a. your Notice to Show Cause Why Discharge Should Not Occur dated 18 Jun 96;
b. your Response to Notice to Show Cause Why Discharge Should Not Occur dated 13 Feb 97;
c. the Army Discharge Policy (including the Theft Policy);
d. your Commanding Officer's recommendation of discharge dated 19 Feb 97;
e. your response to your Commanding Officer's recommendations dated 2 Apr 97;
f. your complete Service History; and
g. your Offence History (including your petitions for review).
2. Prior to my being asked by the SO1 PM Gp, LTCOL Aird, to consider your case, I had no prior knowledge of the circumstances and events that lead to your Notice to Show Cause. Further, in considering your case I have only examined the documents listed above.
3. In reaching my decisions, I gave great weight to all of the above considerations; however, I gave greater weight to the Army Discharge Policy. It is my determination that you are unsuited for retention in the Army. I have determined that you are to be administratively discharged under the terms of AMR 176(1)(n) `Retention in the Army not in the interest of the Army'. The effective date of your discharge is to be Wed 30 Apr 97."
13 By letter to Ms Stuart dated 3 July 1997, Colonel I.R. Lilley found that she had no ground for complaint and went on to say:
"3. You now have two options open to you:14 By letter dated 31 October 1997, Ms Stuart applied to the Chief of the Army for redress of grievance seeking the reversal of the discharge determination.
a. You can accept my determination and continue with discharge action; or
b. If you are not satisfied with my determination, you re entitled to have your complaint referred to the Chief of Army. You have the right to provide further information regarding this grievance or my investigation of your grievance. However, you should not include any new grievances in this submission.
4. I reiterate the advice at Reference B which said that if you have exhausted all service channels and you are still not satisfied you may submit your complaint to the Office of the Defence Force Ombudsman (DFO) and the Reference goes on to describe the circumstances whereby you may submit your complaint to the DFO.
5. Your response should be handed to me within seven (7) days from receipt of this advice."
15 By Minute dated 11 August 1998, Brigadier D.A.W. Webster dealt with this application as follows:
"2. I have determined that you have no legal grounds for your complaint in relation to your ROG. You have submitted that you have been denied natural justice in the way that SCMA handled the decision to order your discharge. I did not accept this on the basis that you have been supplied with the substance of the material on which the adverse decision was made. You have had a counselling session with COMD BLG regarding his adverse recommendation and you were given the opportunity to respond to that recommendation. Further, you have specifically advised of the key factors on which the discharge decision has been based. These factors are your conviction for a theft related offence on 29 Jan 95 and the Army policy on theft which is contained in reference N.16 The legal advice and recommendation referred to in par 4 dated 30 March 1998 was as follows:
3. I am authorised to order a soldier's discharge under AMR 176(1)(n). Following my determination that you had no grounds for complaint, I reviewed the decision to discharge you on its merits. I have directed that you be discharged on 28 Aug 98.
4. In making my determination, I considered the material contained in the references including advice from the Defence Legal Office (reference M). I also took into account your service history as contained in your SCMA records.
5. In coming to my decision I accepted that there are a number of considerations which tend to favour your retention in the Army. The principal considerations are as follows:
a. Your commitment to the Army and the military lifestyle which is evidenced in your keen involvement with representative shooting and a variety of sporting and community activities.
b. The various military reports and references that have identified you as a capable and competent soldier who can perform your allotted tasks efficiently and without supervision. I note that your supervisors have found you honest and trustworthy.
c. Your very strongly stated desire to continue to serve in the Army and apply your skills and knowledge in the military environment.
6. I did, however, note that your service history is not without blemish and that your commanding officer has recommended against your retention on the grounds that you have difficulty accepting military authority and are unable to operate effectively in a team environment. I also noted that prior to your conviction of the offences which led to your show cause notice, you have had four DFDA convictions since 14 Aug 91. You have submitted that these convictions and your problems with authority arose from personality clashes with individual supervisors and that people have interpreted your desire to think through a task and raise queries as being argumentative and insubordinate. In reaching my decision I was prepared to give you the benefit of the doubt as regards your service history and previous DFDA offences.
7. Nevertheless, notwithstanding the factors outlined above, I am left with the fact that you have been convicted with an offence involving the theft of ammunition and two other offences associated with that offence. You have submitted that the incident should be viewed as resulting from your stupidity and gullibility, and that you had no intention of stealing the ammunition or taking it for your own personal use. You have also suggested that it was a result of poor procedures and your ignorance of proper range procedures. As a member of the Army since 1987, I did not accept that you were unaware of the seriousness attached to any offence involving theft of ammunition. As to your intentions, the convictions speak for themselves. When you transferred to the ARA on 3 Oct 90, you were made aware of Army's policy that theft and related offences are not tolerated and may lead to discharge.
8. Because of its effect on the morale and effectiveness of Army members, any theft related offence is regarded far more seriously by the Army than it is in the civil community. While I considered and gave weight to the factors favouring your retention in the Army outlined above, I did not consider that they outweighed Army's interest in ensuring that theft by members is not tolerated and the need to ensure that members maintain the highest standards of integrity and honesty. My decision was, therefore, that your retention was not in the interests of the Army."
"Legal Advice
3, Overall, I do not consider that the member has been denied natural justice in the manner in which the decision to order her discharge has been handled. She has been supplied with the substance of the material on which the adverse decision has been made. She has also had a counselling session with her COMD regarding his adverse recommendation and was given the opportunity to respond to his recommendation. Furthermore, she has been specifically advised of the key factors on which the discharge decision has been based, namely, her conviction for a theft related offence on 29 Jan 95 and the Army policy on theft.
4. Against the member's claims as outlined above, is an offence history of 7 convictions since 14 Aug 91, including the theft charge, for which she received a punishment of 7 days detention. Furthermore, she states that she did sign an acknowledgment that she may be discharged if involved in a theft related charge.
5. On the other hand, there does not appear to be very much evidence that her record of service and performance generally, provide a great deal of additional support for the decision to order her discharge. The decision by SCMA to order her discharge does not appear to have been based on any performance related criteria.
Recommendation
6. It is recommended that the CA (or his delegate) make a fresh decision in respect of the member's discharge. He should reconsider all the material that was considered by the original decision maker, together with any new material submitted by the member.
The key issues for consideration in this matter are the relevance of the theft conviction and Army policy on theft. These issues must be considered in the light of her 6 other convictions over a 10 year career on the one hand, balanced against what is apparently a reasonably solid service performance history."
THE GROUNDS OF THE APPLICATION FOR JUDICIAL REVIEW
17 The grounds stated by Ms Stuart in her application for judicial review included:
"1. That the Respondent in electing to deal with certain conduct of the Applicant pursuant to the Defence Force Discipline Act is thereby estopped from seeking to administratively discharge the applicant from the Australian Army in respect of that same conduct; alternatively
2. That the Respondent in seeking to discharge the Applicant from the Australian Army is seeking to give effect to a rule or policy without having regard to the justice of the matter."
18 These grounds were developed by counsel for Ms Stuart in his statement of contentions dated 12 March 1999 as follows:
"Contentions relied upon by the Applicant
1. The Defence Force Discipline Act 1982 is an act primarily for the promotion of discipline within the Defence Force
2. The offences of which the applicant was convicted before a summary authority carried a range of potential punishments which included dismissal from the Defence Force.
3. The summary authority which heard the charges against the applicant did not have the power to dismiss the applicant form the Defence Force.
4. Had the summary authority considered the matters with which the applicant was charged to be of sufficient seriousness it was open to the applicant to refer the matter to a Convening Authority (which in turn could place the matter before either a Defence Force Magistrate or a Court Martial, either of which have the power to dismiss a member from the Defence Force).
5. The Respondent failed to consider the fact that the Summary Authority had not regarded the matter as of sufficient seriousness to refer the matter to a convening authority when that course was clearly open to him. [ss 5(1)(e), 5(2)(b) AD(JR) Act.]
6. The Respondent failed to give any consideration to the legislative intent of Parliament as expressed by Section 71 of the DFDA that a member should not be liable to both detention and discharge from the Defence Force. [ss 5(1)(e), 5(2)(b) AD(JR) Act.]
7. That the Respondent in imposing a punishment on the applicant under the Defence force Discipline Act which fell short of dismissal from the Defence Force was estopped from ordering the discharge of the Applicant on administrative grounds in respect of the same offence. [s 5(1)(j) AD(JR) Act.]
8. That the Respondent in seeking to discharge the applicant solely on the basis of her conviction for theft and the Army Theft Policy... was purporting to give effect to a rule or policy without regard to the merits of the case. [ss 5(1)(e), 5(2)(f) AD(JR) Act.]
9. That the Respondent failed to consider that the circumstances of the applicant's conviction were in circumstances which differed greatly from those attending a normal trial. [ss 5(1)(e), 5(2)(b) AD(JR) Act.]
[10. That the said policy is ultra vires. (s 5(1)(j) AD(JR) Act.)]"
CONCLUSIONS ON THE APPLICATION
19 It will be convenient to consider the applicant's two grounds for review in turn.
(a) The applicant's estoppel argument
20 As has been seen, this argument relies, inter alia, upon the provisions of s 71 of the Defence Force Discipline Act 1982 which is located in Part 4 of that Act dealing generally with, inter alia, "punishment". Before going to the provisions of s 71, some of the preceding sections in Part 4 should be noted as follows.
21 By s 66(1) it is provided, inter alia, that:
"Each punishment imposed... by a service tribunal shall be imposed.. in respect of a particular conviction and no other conviction."22 (By s 3 of this Act "service tribunal" means a court martial, a Defence Force magistrate or a summary authority.)
23 By s 67(2) a summary authority shall not impose a punishment in respect of a conviction except, inter alia, in accordance with Part 4.
24 By s 68 provision is made for the scale of the punishments. By s 68(1) it is provided, with some immaterial exceptions, as follows:
"... the only punishments that may be imposed by a service tribunal on a convicted person are, in decreasing order of severity, as follows:
(a) imprisonment for life;
(b) imprisonment for a specific period;
(c) dismissal from the Defence Force;
(d) detention for a period not exceeding 2 years;
(e) reduction in rank;
(f) ... [etc.]"
25 On behalf of the applicant, particular reliance is placed upon the provisions of s 71(1) as follows:
"71. (1) A service tribunal shall not impose a punishment of imprisonment on a member of the Defence Force whom it has convicted of a service offence unless the tribunal also imposes on that member in respect of that conviction the punishment of dismissal from the Defence Force."26 In my opinion, s 71(1) can have no application here, either directly or indirectly. The source, both actual and ostensible, of the power to discharge the applicant was the Defence Act, not the Defence Force Discipline Act. Each statute has its own independent operation. Neither can detract from the operation of the other in any presently material respect.
27 Nor, in my view, is there any scope here for the application of that doctrine of res judicata estoppel known as autrefois convict.
28 The general position is explained in Spencer Bower, Turner and Handley, The Doctrine of Res Judicata (3rd ed., K.R. Handley) as follows:
"While the maxim nemo debet bis puniri pro uno delicto forbids a second conviction for the same crime, it does not forbid a second prosecution for the same conduct where this amounts to separate crimes. Neither will an exemption from criminal liability on the second charge follow from the application of the maxim transit in rem judicatam. What has passed into res judicata is the offence of which he was convicted, on the same facts on the same indictment."
29 It is not the law that a person shall not be liable to be punished twice for the same act, as distinct from the same offence (see R v Thomas [1950] 1 KB 26 at 31). Spencer Bower goes on to note (at 246), the armed services legislation in England now provides that where a person subject to military law has been tried for an offence by court martial, he or she cannot be tried by a civil court for substantially the same offence, and the reverse also applies (and see Re: Tracey; Ex parte Ryan [1989] HCA 12; (1989) 166 CLR 518). But this is not to say that there is any fetter upon administrative action in a case where a member of the military forces has been convicted under military law of a disciplinary offence. This result follows, in my opinion, as a matter of the plain construction of the two statutes that presently govern the Australian Military Forces. It is also the position in the United States (see American Jurisprudence, 2nd ed. Vol. 53A at par 212; 57 CJS, par 135 at 347-8).
(b) The applicant's attack on the theft policy and its application here
30 The contention advanced on behalf of the applicant is that the decision to discharge her was vitiated because the theft policy, was improper and inappropriate in principle as an attempt to impose a general rule without regard to the particular circumstances of an individual case. In my view, the argument should be rejected. It is well settled that a statement of guidelines, or of general policy, to guide administrative decision makers is not only to be encouraged, but is itself a valid exercise in good administration. As Brennan J said in Re: Drake v Minister for Immigration and Ethnic Affairs (1979) 2 ALD 634 (at 640):
"There are powerful considerations in favour of a Minister adopting a guiding policy. It can serve to focus attention on the purpose which the exercise of the discretion is calculated to achieve, and thereby to assist the Minister and others to see more clearly, in each case, the desirability of exercising the power in one way or another. Decision-making is facilitated by the guidance given by an adopted policy, and the integrity of decision-making in particular cases is the better assured if decisions can be tested against such a policy. By diminishing the importance of individual predilection, an adopted policy can diminish the inconsistencies which might otherwise appear in a series of decision, and enhance the sense of satisfaction with the fairness and continuity of the administrative process."31 It is true, as the respondent's submissions acknowledge, that a policy will be invalid if it unduly fetters an administrative discretion; and it will be invalid if it prevents a discretion being exercised at all. But the Army's theft policy does not have that effect. It does provide that discharge action will be initiated against all offenders, but this means no more than that the Army will consider whether the continued retention of each offender is in the Army's interest. The policy does not, in terms, or in its effect, provide that the authority must discharge all theft offenders. This is made clear by the provisions which deal with the obligation to issue a notice to show cause. The existence of this procedure is an indication, if it be needed, that the authority is bound to take into account the particular circumstances of the case before considering whether or not to determine that a discharge should be ordered.
32 The ultimate source, as has been said, of the present power is to be found in s 44 of the Defence Act. That provision requires that the authority be "satisfied" that the retention of the soldier is not in the interest of Australia or of the Army. Its meaning was considered by Burchett J in Shand v Chief of the Army, 26 March 1998, unreported. His Honour there said:
"Given the material before him, it was for the delegate to decide whether he was satisfied of the matter upon which a decision under the regulation had to turn, that is, `that the retention of the soldier in the Army is not in the interest of Australia or of the Army.' It is not, of course, any part of the Court's function to reach that decision. Provided the decision was open to be made upon the material, the making of it was for the delegate. In my opinion, the decision was plainly open.33 I agree with those observations.
The regulation is framed in terms which make the test the satisfaction of the Chief of the Army, or of his delegate. Cf. Minister for Immigration and Ethnic Affairs v Wu Shan Liang [1996] HCA 6; (1996) 185 CLR 259 at 275-277.
The issue upon which satisfaction must be attained by the decision-maker is whether the retention of the soldier in the Army is not in the interest of Australia or of the Army. That raises broad questions of fact and of evaluation of the facts. Necessarily, there is a wide ambit within which the decision-maker was entitled to come to a personal view. Provided a soldier's actions or attributes are capable of being seen as imposing an undesirable burden on the Army, or are capable of being seen as affecting the morale or well-being of other service personnel, or as in other ways affecting adversely the efficiency or the reputation of the Army, it would not be possible for the Court to find an error of law merely because (if it were the case) the Court might not itself have reached the same conclusion."
34 Having considered the process of reasoning set out in the above summary of the history of the matter, I can find no error of law or other ground for judicial review in its content. This was essentially a matter for the discretion of the authority, having regard to the factual circumstances of the particular case. In my view, no basis for interference by way of judicial review has been made out in this connection.
35 Finally, I should note that in the course of argument, and in Ms Stuart's affidavit sworn on 25 March 1999, reference was made to the circumstances in which an appointment was made of an officer to represent Ms Stuart at the hearing of the disciplinary quasi-criminal charges brought against her. I mention it only by way of completeness. It does not seem to me that this can provide here any ground for judicial review nor, in fairness, did I understand that counsel for the applicant ultimately sought to press the point.
ORDERS
36 The application will be dismissed, with costs.
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I certify that the preceding thirty-six (36) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable
Justice Beaumont. |
Associate:
Dated: 13 April 1999
|
Counsel for the Applicant: | Mr B Levet |
| Counsel for the Respondent: | Ms R M Henderson |
| Solicitor for the Respondent: | Australian Government Solicitor |
| Date of Hearing: | 31 March 1999 |
| Date of Judgment: | 13 April 1999 |
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