Fulton v Chief of Defence Force [2023] FCAFC 134

Federal Court of Australia

Fulton v Chief of Defence Force [2023] FCAFC 134 Appeal from: Fulton v Chief of the Defence Force (2022) 178 ALD 184

File number: QUD 12 of 2023

Judgment of: LOGAN, SARAH C DERRINGTON, STEWART JJ

Date of judgment: 18 August 2023

Catchwords: DEFENCE AND WAR – appeal from dismissal of application for review of decision by delegate of Chief of Defence Force to terminate service with Defence Force – officer's retention considered not to be in the interests of the Defence Force – whether delegate required to take into account annual personal performance reports – whether a mandatory relevant consideration within statutory context of Defence Regulation 2016 ADMINISTRATIVE LAW – appeal from dismissal of application for review of decision by delegate of Chief of Defence Force to terminate service with Defence Force – whether delegate failed to take into account a mandatory relevant consideration or a clearly articulated claim being 18 years of personal performance reports – whether delegate took into account an irrelevant consideration being a non-recorded conviction for a traffic offence ADMINISTRATIVE LAW – procedural fairness – appeal from dismissal of application for review of decision by delegate of Chief of Defence Force to terminate service with Defence Force – whether despite being given 21 extra days to respond to termination notice appellant was denied procedural fairness STATUTES – interpretation – general approaches to interpretation – whether s 12(3) of the Penalties and Sentences Act 1992 (Qld) operates in manner contemplated by s 85ZV(3) and s 85ZW of the Crimes Act 1914 (Cth) – whether s 5 of the Criminal Law (Rehabilitation of Offenders Act) 1986 (Qld) operated to relieve the appellant from being required to disclose a conviction that was not recorded – whether an "inquiry" was being conducted pursuant to the Defence Act 1903 (Cth)