CATCHWORODS Administrative Decisions (Judicial Review) Act 1977 - review of decision dismissing complaint under Australian Military Regulations - Redress of Wrongs - finding of an error of law - whether effective redress possible - exercise of discretion. Administrative Decisions (Judicial Review) Act 1977 ss.5(1), 16(1) @<es Act 1903 s.124 Australian Military Regulations 194, 765, 769 MAJOR JOHN JAMES MICHAEL DOYLE v THE CHIEF OF THE GENERAL STAFF AND IN THE MATTER of an application made pursuant to Secton 5(1) of the ADMINISTRATIVE DDCISIONS (JUDICIAL REVIEW) ACT 1977 @.... G.52 of 1981 Fisher J. Adelaide 5 November 1982 ry es IN THE FEDERAL COURT OF AUSTRALIA SOUTH AUSTRALIA DISTRICT REGISTRY No. G.52 of 1981 See ee GENERAL DIVISION BETWEEN: MAJOR JOHN JAMES MICHAEL DOYLE Applicant - and - THE CHIEF OF THE GUNERAL STAFF Respondent AND IN THE MATTER of an application @. pursuant to Section 5(1) of the ADMINISTRATIVE DECISIONS (JUDICIAL REVIEW) ACT 1977 5 November 1982 REASONS FOR DECISION FISHER J: This is the hearing of an application by Major John James Michael Doyle ("Major Doyle") pursuant to the provisions of s.5(1) of the Administrative Decisions (Judicial Review) Act 1977 ("the Act"). He seeks a review of the decision dated @ February 1980 of the Chief of the General Staff ("the respondent") dismissing his complaint made pursuant to Regulation 194 of the Australian Military Regulations. On 8 July 1982 I granted to Major Doyle an extension of time within which to make this application and there 1s no reason to repeat all of the backgroun: information which I set out in those reasons and expresslv incorporate into these reasons. In particular upon the basis of the authorities referred to in the earlier reasons I find that Major Doyle is a "person aggrieved" and thus entitled to make this application. . " The decision of which the applicant seeks review by this Court was made by the respondent under the provisions of Regulation 194 of the Australian Military Regulations made pursuant to s.124 of the Defence Act 1903. This Regulation is to be found in Part 1V - "Discipline Division 1 - RedéSss of Wrongs" and provides as follows: "194. (1). If a member thinks himself wronged, he may complain in succession, to - (a) his commanding officer; (b) his formation commander; (c) any superior formation commander; and (ad) the Chief of the General Staff (3). Each authority mentioned in sub-reguliation (1) to which.complaint is made shall, so far as practdcable and so far as not already done, cause the complaint to be investigated, and, 1f 1t appears to the authority that the member has suffered a wrong, shall cause the wrong to be fully redressed, 1f full redress is within the power of the authority, or if investigation of full redress is not within the power of the authority, shall refer the complaint to the next superior authority, 1n order that it may be investigated and redressed as fully as possible. (4). If an officer if dissatisfied with the decision of the Chief of the General Staff he may require that his complaint be referred to the Governor- General in Council. {5). No authority to whom a complaint 1s made or referred under this regulation shall attempt to prevent or dissuade any member from carrying his complaint to a superior authority in accordance with this regulation." It was conceded that the applicant was entitled to complain and that he did in fact lodge a valid complaint pursuant to this Regulation. As mentioned in my earlier reasons no point was taken on the fact that the complaint appears to have been considered at the outset by the Chief of the General Staff rather than progressing in the first instance through the officers mentioned in sub-regulation 194(1) (a)-(c). The complaint of the applicant was set out in a document of sever pages dated 22 October 1980 and in paragraph 1 thereof was briefly identified as follows: "1. Deficiencies and abuses have occurred in my career management which reduced my chances of promotion in the service and which prejudice my prospects (employment, community service and social) in civil life." The document then in 25 numbered paragraphs elaborated on the deficiencies and abuses of which the applicant complained. These need not be set out in full at this stage as they are summarised ir paragraph 27 with cross-references to the earlier numbered paragraphs. I was invited to proceed on the basis that this paragraph Me ctty identified the applicant's complaint. It is in the following terms and I have set out in full those words abbreviated therein by initials: "27. I complain that my chances of promotion were reduced by the following deficiencies and abuses: a. Denial of an opportunity of a personal interview with any officer directly involved in the selection of officers for the rank of LT Col, or able to make comparisons across a broad sample of eligible members in that year. I don't believe any member of MS (Military Secretary) staff or the P & S (Personnel and Selection) committee in 1975 ha ver met me. Nor can I see any reason why this neg t should occur when I was readily available in the MD (Military District) containing the layout concentratio of troops in the ARA (Australian Regular Army). b. Unjustified devaluation of confidential reports by officers with no personal knowledge of my performance in the relevant or any other posting or activity (see paras 14-17). - c. Failure to observe R765(3) of the AMR's (Australian Military Regulations) (see paras 14-17). da. An unjust derogatory comment placed on my MS (Military Secretary) dossier by the officer responsible for my management, indicating a personal preconception to a class of members, and constituting a harmful element in the impression to be received by the officers who prepared by P & S (Personnel and Selection) dossier without a personal interview." -e In respect of item b, the applicant's complaint arose out of the fact that in his two confidential reports for the years 1973 and 1975 his Commanding Officer made remarks very favourable to his chances of promotion. However in each of those years the officer holding the position of Head of Corps, being junior in rank to his Commanding Officer, made the comment "Grossly overates" (sic) in one instance and "Overates"(sic) on the other. On neither occasion were the comments of the Head of Corps referred to the applicant for his information, The applicant complains that these failures to refer back were contrary to Regulation 769 which provides, "769. The procedure mentioned in this Division in relation to the communication to the officer of the annual confidential report made upon him shall as nearly as practicable be followed when any other written report 1s made to superior authority upon an officer whether that report 1s favourable to the officer or not." The procedure referred to in this Regulation in respect of the annual confidential report is for all relevant purposes to be found in Regulation 765, which is as follows: "765. (1) At the end of each year of training a confidential report in respect of each officer of the Permanent Forces, other than a W.O. holding an honorary commission, shall be prepared in accordance with the directions contained in the form mentioned in the next following sub-regulation. (2) Each confidential report made upon an officer under sub-regulation (1) shall be made by his C.O. on the form authorized by the Chief of Personnel and shall be initialled by the officer upon whom it is made, The report shall thereupon be forwarded through the proper channel to the formation commander. A superior officer (if any) to whom the report is forwarded shall, before transmitting it to the formation commander, add any comments which he considers should be made by him. 5. (3) Upon receipt of a confidential report upon an officer under this regulation, the information commander shall add to the report a statement of his opinion, and the whole report shall be returned through the proper channel to the C.0O. for the information to the officer upon whom the report is made, and that officer shall again initial the report as a certificate that he has read it. (4) When the report has again been initialled by the officer upon whom it is made, it shall be returned to the formation commander for transmission to the Chief of Personnel." In respect of item d of paragraph 27, the complaint arose out of the following comment written by a former Military Secretary on a record of interview form dated 14 November 1972, namely "Usual Brit who wants everything. Not impressed". All the applicant's complaints in respect of which he oh redress had reference to and, he alleged, prejudiced his prospects of promotion. He was however at pains to emphasize that his concern was not that he had failed to obtain promotion but that there were serious deficiencies in the promotion procedures. He represented himself on this hearing as he did on his application for extension of time. By document dated 5 January 1981 the respondent indicated that he had on 16 December 1980 dismissed the complaints of the apQcart except in respect of item d above. In this regard he redressed the acknowledged wrong by directing, inter alia, that the derogatory comment be removed from the applicant's dossier at the office of the Military Secretary. The reasons for the respondent's decisions were set out in detail in the document of 16 January 1980 which the parties accepted as being reasons complying with s.13 of the Act, notwithstanding the fact that pursuant to Schedule 2(a) to the Act the respondent was under no obligation to supply such reasons. However their provision has enabled the applicant exhaustively to explore possible errors on the part of the decision maker. He put befor me substantial material which was objected to by counsel for the respondent and I have not found it appropriate to make use of any of it. It is of little profit to set out these reasons in full at this stage. They can be more appropriately considered by reference to the applicant's claims that they shouldbe subject to review by this Court. He contended that a review was warranted because the decisions were made in an improper exercise of power or alternativel anvolved an error of law. The error of law was particularised as arising in the respondent's contention that the remarks of the Head of Corps referred to in item b above and made in each instance on the applicant's Annual Confidential Report were not governed by Regulations 765 and 769 supra. If they were so governed the applicant contended that the comments should have been referred back to him as the officer commented upon. In respect of the contention that the making of the decision involved an improper exercise of power, the applicant identified by reference to the reasons a number of irrelevant considerations which he said were taken into account and a number of relevant consider- ations which he said had not been taken into account in the making o the decision to dismiss the complaint. The following general comments are relevant on these contention of improper exercise of power. It is important to bear in mind in considering whether the respordent has taken irrelevant considerations into account and has failed to take relevant conditions into account that his discretion under Regulation 194 is unqualified. There are no restrictions expressly placed upon his obligation to investigate fully the complaint and,to the extent he finds it made out, to redress it as fully as possible. Of such an unqualified discretion the High Court had this to say in The Queen v Australian Broadcasting Tribunal (1979) 144 C.L.R. 45 at p.50: "The general rule is that a discretion expressed without any qualification is unconfined except in so far as it is affected by limitations to be derived from the context and scope and purpose of the statute." For the applicant to make out a case for review in the present instance he must establish that the respondent failed to take into account a consideration which he was bound to take into acc. Alternatively he must establish that as a matter of law he was not entitled to take into account a particular consideration. As Deane J. said in Sean Investments Pty. Limited v Mackellar (1981) 38 A.L.R. 363 at 375: "The ground of failure to take into account a relevant consideration will only be made good if it is shown that the decision-maker has failed to take into account a consideration which he was, in the circumstances, bound to take into account for there to be a valid exercise of the power to decide." The question as to what are relevant or irrelevant conMer- ations in a matter such as this is very much in the discretion of the decision maker. On this point Deane J. in Sean Investments Pty Limited v Mackellar supra, has this to say on page 375; "This does not mean however, that a party affected by a decision is entitled to make an exhaustive list of all the matters which the decision maker might conceivably regard as relevant and then attack the decision on the ground that a particular one of them was not specifically taken into account... In a case such as the present, where relevant considerations are not specified, it is largely for the decision-maker, in the light of matters placed before him by the parties, to determine which matters he regards as relevant and the comparative importance to be accorded to matters which he so regards." In the light of these statements of principle I turn to consider the applicant's contentions. He defined four consider- ations taken into account by the respondent which he contended were irrelevant which I will look at in turn. In paragraph 14 of his reasons the respondent said as follows: "Since promotion is not a right and investigation of the 1978 P & S (Promotion and Selection) Committee proceedings revealed no irregularity or error in your case, the CGS determined that you were not wronged by the decisions that you were unlikely to be required for promotion to LT COL before reaching the retiring age for MAJ." The applicant made two submissions concerning the relevance of this paragraph. He says that the concept of promotion not being a right was irrelevant because his original complaint concerned promotional procedures and not his lack of promotion, In my opinion there is no ground upon which I can find that this consideration is necessarily irrelevant to what was the task of the respondent. In fact it could well be said to be very relevant as the starting point of the respondent's investigation of the applicant's alleged'wrongs. The fact that the applicant may see it as irrelevant by reference to the manner in which he put forward his complaint is nothing to the point, In the same way it is impossible to say that the respondent, in his investigation of the matter, was not entitled to regard as relevant the procedures of the Promotion and Selection Process of 1978. If I was required to make a positive finding as to whether such consideration was relevant, my decision would be in the affirmative. In paragraph 7 of his reasons the respondent set out the following under the heading of "Unsatisfactory Postings" "You stated that your postings after 1971 were 'devoid of development opportunity and positively detrimental to a Staff Corps officer's promotion prospects'. There is no evidence that the recorded interview comment in 1972 had any effect on your postings after that year. Examination of your posting history, your annual confidential reports, correspondence between you and MS (Military Secretary) and interview records shows that..." @ The decision then set out eight instances of postings and concluded in paragraph 8: "It is clear that your -postings from 1972 to 1978 were not activated by any animosity towards you by MS. When your specific desire to move to and return to Adelaide up to 1977 1s considered in conjunction with the obvious absence of a wide range of postings in South Australia, the complaint that you were directed into a series of 'unsuitable' postings, 1S not supportable. Finally, it 1s clear that your posting history did not affect your promotion chance to LT COL (since you were cleared 'X' in 1977) and had no bearing on your subsequent downgrading to 'Z'. CGS dismissed this aspect of your complaint." The applicant contended that paragraph 7 contained,in his opinion, inaccuracies or omissions. This may well be the case. But whether or not he is wholly or partly correct in his view is again a matter of opinion and it is not possible for the assessment of the respondent to be challenged in this way. Without doubt these matters, which the respondent was of opinion were accurately stated, were relevant to the applicant's complaint. He can not contend they were irrelevant because in his opinion they were inaccurately stated or contained omissions. . 10. The final irrelevant consideration upon which the applicant relied related to the interview records of 1971 and 1972 to which the respondent referred. In my opinion there is no ground upon which it can be said that they are necessarily irrelevant to the respondent's consideration of the complaints. The fact that they occurred at an earlier period of time and that subsequently the applicant changed his views as stated therein in no way makes them irrelevant. Turning to the relevant considerations which the applicant contends were not taken into account, they were specifically identified by him. He was particularly concerned that two officers whom he contended were "incompetent" commented on and downgraded his annual confidential repart. He contends that their incompetenc was a relevant consideration which was disregarded. However I am quite unable to assess this allegation of incompetence as a matter which in any way the respondent 1s obliged, whether as a matter of law, logic or fairness, to consider before making a valid decision. I lakewise reject his contention that failure to take into account Regulation 769 or "subsequent reports of various kinds on my dossier" can be said to amount to a disregard of a relevant consideration. The applicant has failed to satisfy me that there is any restriction upon the assessment of the respondent as to what are or are not relevant considerations, apart from those implicit in the subject matter of his complaints. However the matter of Regulation 769 falls for consideration under the heading of error of law. 11. The second set of relevant considerations which he contended were not taken into account were those relevant to the Military Secretary's derogatory comment set out earlier. In this regard the respondent accepted that the applicant's complaint was justified. It follows that the applicant can only be seeking a review of the redress which the respondent considered appropriate an granted. The relevant portion of the respondent's reasons is as follows: "5. CGS upheld the complaint that the recorded interview comment of Nov 72 (Reference A, paras 18-22) was insensitive and offensive. He directed that it be removed from your dossier and this has been done. Remedial action to ensure that similar comments are not made in future is being taken. 6. Your further complained that the derogatory comment so proved to be damaging in that it was the cause of a series of unsatisfactory postings after 1972 and affected your promotion prospects. Investigation showed that you were first considered for promotion to LT COL in Oct 75, that there is no evidence in this or subsequent con- siderations by the P & S 'Committee that the interview comment influenced (or was even known to) the Committee. You were cleared by the P & S Committee for promotion to LT COL in November 1977. This aspect of the complaint, therefore, was dismissed. The matter of alleged unsatisfactory postings is dealt with separately." In respect of his obligation to redress, the respondent is only obliged to do so as fully as possible. No other directjgns are given as to how he should carry out his duty and it mJ his decision as to how far it is possible for the complaint to be redressed. This is a question of degree and not a question of law. The applicant has wholly failed to satisfy me that the respondent --has icnored any relevant consideration in making his decision in this regard. Likewise in dismissing the complaint that the derogatory comment was the cause of unsatisfactory postings and affected his promotion prospects, the applicant draws attention to 12, to the types of postings he received. I quite fail to see that the fact that the applicant saw these postings as unsatisfactory can be said to be a relevant consideration which was ignored, The applicant also contended that abnormal conditions, namely reduced promotion prospects after 1975 and che cumulative effect of all of his complaints in a climate of intense competition were relevant considerations to which the respondent should have paid regard. In my opinion he has paid sufficient regard to these matters, even though, as a matter of law I do not find that he was positively obliged so to do. In the ultimate, after taking into account in the best light the applicant's submissions, whach were not always easy to accomodate within the ambit of this very difficult branch of the law, I find that he has not made out a case on this aspect of the matter. I turn now to the contention that a review should be granted because there is a perceived error of law in the making of the decision. The applicant complained that his chances of promotion were reduced by a number of deficiencies and abuses, the relevant one of which in the present instance being the failure to observe the requirements of Regulation 765(3). That regulation refers to an obligation on an officer who makes comment upon a confidential report to have it returned to the officer reported upon for his information. Regulation 769 set out above requires this procedure to apply when any other written report is made upon 'an officer to superior authority. 13. The respondent's answer to this complaint is set out in paragraphs 9 and 10 of his reasons which were as follows: "9. You complained that your 1973 and 1975 confidential reports were 'downgraded' by Head of Corps, that you were not made aware of these changes and that it was 'improper' that a junior officer acting for Head of Corps should downgrade a more senior reporting officer's or senior reporting officer's assessment. 10. Head of Corps has never been regarded as a senior reporting officer as envisaged in AMR 765(3) and is not in the 'reporting chain' between the officer reported upon and the Chief of Personnel. There is, therefore, no requirement that their comments should be referred back to the officer reported upon. The CGS dismissed this aspect of the complaint." In making this answer it 1S apparent that the respondc MD neither gave consideration nor referred to the provisions of Regulation 769. It imposes an obligation to follow the procedure in Regulation 765 requiring communication to the officer concerned of the annual confidential report and any comment thereon when "any other written report is made to superior authority upon an officer whether that report is favourable to the officer or not". At first sight it would appear that that regulation applies to the reports of the Head of Corps, whether or not they me portion of the confidential report referred to in Regulation 765. Counsel for the respondent contended to the contrary on two grounds. He submitted in the first instance that Regulation 765 was an entire code on the procedures to be followed in respect of the annual confidential report and Regulation 769 was inapplicable. He acknowledged that the form of a confidential report and the 14. documents it contained were such as authorised by the Chief of Personnel and contended that as the regulation made no reference to a report from a Head of Corps there was no obligation for this report to be communicated to the officer concerned. If it was necessary for me to do so I would reject this approach on the ground that as the report of the Head of Corps was, as I assume, part of the confidential report as such in a form authorised by the Chief of Personnel, It thus was subject to the provisions of Regulation 765. Notwithstanding the fact that its purpose may have been primarily to assist in placing officers in employment positions, 1t was made part of the confidential report and I see no basis for excluding it from the obligations imposed by that regulation in respect of such reports. It may be quite correct to say, as the respondent did, that the Head of Corps was not regarded as a "senior reporting officer" and thus was not in the "reporting chain". However the Chief of Personnel has, doubtless for good reason, seen it as appropriate to authorise a form of confidential report which makes provision for the inclusion of the remarks of the Head of Corps. By so doing he has subjected such remarks to the obligations of Regulation 765, There is a further answer to the submissions of counsel for the respondent. If for any reason the remarks of the Head of Corps do not form part of the confidential report and thus are subject to the last mentioned regulation, in my opinion they comprise another "written report to a superior authority" in accord with Regulation 769. This portion of the confidential repor is headed "Part -Vl1 - Remarks of Head of Corps" and is followed * ' 15, by these words in brackets "(Note - if you disagree with any of the ratings made in para 14 or any recommendation in para 18, re-tick in RED pencil)". I can see no ground for finding that the remarks of the Head of Corps and his disagreements, if any, with the ratings can be fairly described otherwise than as a written report to a superior authority. No doubt such a finding is, as submitted by counsel for the respondent, contrary to the practice of the Army. However on this aspect my decision must be in accord with the proper construction of the regulations. I find that in this regard an error of law has been made. @ Having perceived that the respondent erred in law in stating that there was no requirement that the comments of the Head of Corps should have been referréd back to Major Doyle, the question arises as to what should be done in consequence of this error. As Lord Denning M.R. said in Pearlman v Keepers and Governors of Harrow School [1979] 1 All E.R. 365 at p.372 "no court or tribunal has any jurisdiction to make an error of law on which the decision of the case depends". The Master of the Rolls placed his emphasis on the word "jurisdiction"; I attach significance to the balance of @ sentense, namely "error of law on which the decision of the case depends". This statement supports what I would see as correct, namely it is crucial to ascertain whether the decision depends upon the error of law. It is necessary to determine whether, if the error had not been made, a different decision could or should have resulted either on the complaint or on the question of redress. " 16, In this matter Major Doyle complains concerning promotion procedures, he does not complain, he said, that he has not been promoted. He has established that, in rejecting his complaint that the Head of Corps' comments were not referred back to him, the respondent's decision involved an error of law. It is difficult however to appreciate that in consequence Major Doyle has suffered any, or any significant wrong. The powers of the Court in these circumstances are set out in s.16 of the Act as follows: e@ "16 (1) On an application for an order of review in respect of a decision, the Court may, in its discretion, make all or any of the following orders: (a) an order quashing or setting aside the decision, or a part of the decision, with effect from the date of the order or from such earlier or later date as the Court specifies; (b) an order referring the matter to which the decision relates to the person who made the decision for further consideration, subject to such directions as the Court thinks fit; (c) an order declaring the rights of the parties in respect of any matter to which the decision @ relates; (d) an order directing any of the parties to do, or to refrain from doing, any act or thing the doing, or the refraining from the doing, of which the Court considers necessary to do justice between the parties. 17. It is pertinent to note that Regulation 194 sets out what the decision maker should do if the complaint was justified and the member wronged, namely redress the wrong as fully as possible. It is, in my opinion, appropriate for this Court to intervene if it perceives that it is possible for the wrong which Major Doyle has suffered to be effectively redressed, assuming it needs to be redressed in any way other than by an acknowledgement. The words of Bray C.J. in his dissenting judgment 1n The Queen v Johns, Ex parte Public Service Association of South Australia Incorporated [1971] S.A.S.R. 206 at p.209 are in point and I adopt them. "Under these circumstances I think the Court, in the @ exercise of its discretion, should refuse to grant the certiorari. One of the grounds on which the court's discretion can be so exercised is futility or absence of any benefit from the making of the order: see Halsbury's Laws of England 3rd ed. vol. 11, p.41 par.266; R. v Lord Newborough (1869) E.R. 4 Q.B. 585; Ex parte Lucas (1910) 10 S.R. (N.S.W.) 120; 27 W.N. 19; R v Licensing Court of Blackall [1920] Q.S.R. 4; R v Anderson, Ex parte Ipec-Air Pty. Ltd. (1965) 113 C.L.R. 177, per Taylor and Owen J.J. at p.201. The Queensland case is particularly aunstructive. There, one of the grounds on which the Full Court of Queensland refused a mandamus against the Licensing Court, which had heard and determined the case irregularly in that the Magistrate had acted on his own extrajudicial knowledge of the licensee, was that if the mandamus went and the Licensing Court was ordered to rehear on proper evidence it would inevitably come to exactly the same conclusion (see at p.16). r ) I do not think this Court is called on to intervene because the Commissioner attached the wrong legal label to something which could not have been questioned by us if he had attached the right one, and to which he can, and in all probability will, attach the right one if, as a result of our order, the matter goes back to him." In this matter the only defect arose out of the fact that the comments of Head of Corps were not brought to the attention of Major Doyle. But there was nothing he could do apart from reading and initialling the report and this would not advance his case. 18. He was not entitled to make his own comments on or register his objection to the remarks of the Head of Corps. It can not be said that his chances of promotion were affected by the failure to refer the reports back to him. Major Doyle could not suggest any way in which it was possible for the respondent, if he had been aware of the error which had occurred, to redress the wrong he contended he suffered. Moreover he did not contend that 21t was of profit to him for me to make any of the orders sct out in s.16 of the Act. We gave the 1mpressio that he asked me to do no more than acknowledge the cxistence of the error of Law, which I have done. In the exercise of my discretion I dismiss the application. I will hear the parties on the question of costs. bor y thal vsanu te | 7 ge ceding payes are a true copy of the Heasons for Judgment of Mr ne ig age QO wa, Associate Dated. =SYKL Nov 432 > t wel ~ 969 CATCHWORDS Administrative Decisions (Judicial Review) Act 1977 - review of decision dismissing complaint under Australian Military Regulations - Redress of Wrongs - finding of an error of law - whether effective redress possible - exercise of discretion. Administrative Decisions (Judicial Review) Act 1977 ss.5(1), 16(1) Defence Act 1903 s.124 Australian Military Regulations 194, 765, 769 MAJOR JOHN JAMES MICHAEL DOYLE v THE CHIEF OF THE GENERAL STAFF AND IN THE MATTER of an application made pursuant to Section 5(1) of the ADMINISTRATIVE DECISIONS {JUDICIAL REVIEW) ACT 1977 No. G.52 of 1981 Fisher J. Adelaide 5 November 1982 IN THE FEDERAL COURT OF AUSTRALIA ) ) SOUTH AUSTRALIA DISTRICT REGISTRY )} No. G.52 of 1981 ) ) GENERAL DIVISION BETWEEN: MAJOR JOHN JAMES MICHAEL DOYLE Applicant - and - THE CHIEF OF THE GENERAL STAFF Respondent AND IN THE MATTER of an application made pursuant to Section 5(1) of the ADMINISTRATIVE DECISIONS (JUDICIAL REVIEW) ACT 1977 5 November 1982 REASONS FOR DECISION FISHER J: This is the hearing of an application by Major John James Michael Doyle ("Major Doyle") pursuant to the provisions of s.5(1) of the Adminzstrative Decisions (Judicial Review) Act 1977 ("the Act"). He seeks a review of the decision dated 27 February 1980 of the Chief of the General Staff ("the respondent") dismissing his complaint made pursuant to Regulation 194 of the Australian Military Regulations. On 8 July 1982 I granted to Major Doyle an extension of time within which to make this application and there is no reason to repeat all of the background information which I set out in those reasons and expresslv incorporate into these reasons. In particular upon the basis of the authorities referred to in the earlier reasons I find that Major Doyle is a "person aggrieved" and thus entitled to make this application. The decision of which the applicant seeks review by this Court was made by the respondent under the provisions of Regulation 194 of the Australian Military Regulations made pursuant to s.124 of the Defence Act 1903. This Regulation is to be found in Part 1V - "Discipline Division 1 - ReddSss of Wrongs" and provides as follows: "194. (1). If a member thinks himself wronged, he may complain in succession, to - (a) his commanding officer; (b) his formation commander; (c) any superior formation commander; and (a) the Chief of the General Staff (3). Each authority mentioned in sub-regulation (1) to which ,complaint 1s made shall, so far as practgcable and so far as not already done, cause the complaint to be investigated, and, if it appears to the authority that the member has suffered a wrong, shall cause the wrong to be fully redressed, 1f full redress is within the power of the authority, or if investigation of full redress is not within the power of the authority, shall refer the complaint to the next superior authority, in order that it may be investigated and redressed as fully as possible. (4). If an officer if dissatisfied with the decision of the Chief of the General Staff he may require that his complaint be referred to the Governor- General in Council. (5). No authority to whom a complaint is made or referred under this regulation shall attempt to prevent or dissuade any member from carrying his complaint to a superior authority in accordance with this regulation." It was conceded that the applicant was entitled to complain and that he did in fact lodge a valid complaint pursuant to this Regulation. As mentioned in my earlier reasons no point was taken on the fact that the complaint appears to have been considered at the outset by the Chief of the General Staff rather than progressing in the first instance through the officers mentioned in sub-regulation 194(1) (a)-(c). The complaint of the applicant was set out in a document of seven pages dated 22 October 1980 and in paragraph 1 thereof was briefly identified as follows: "l. Deficiencies and abuses have occurred in my career management which reduced my chances of promotion in the service and which prejudice my prospects (employment, community service and social) in civil life." The document then in 25 numbered paragraphs elaborated on the deficiencies and abuses of which the applicant complained. These need not be set out in full at this stage as they are summarised in Paragraph 27 with cross-references to the earlier numbered paragraphs. I was invited to proceed on the basis that this paragraph correctly ' identified the applicant's complaint. It is in the following terms and I have set out in full those words abbreviated therein by initials: "27. I complain that my chances of promotion were reduced by the following deficiencies and abuses: a. Denial of an opportunity of a personal interview with any officer directly involved in the selection of officers for the rank of LT Col, or able to make comparisons across a broad sample of eligible members in that year. I don't believe any member of MS (Military Secretary) staff or the P & S (Personnel and Selection) committee in 1975 had ever met me. Nor can I see any reason why this neglect should occur when I was readily available in the MD (Military District) containing the layout concentratior of troops in the ARA (Australian Regular Army). b. Unjustified devaluation of confidential reports by officers with no personal knowledge of my performance in the relevant or any other posting or activity (see paras 14-17). c. Failure to observe R765(3) of the AMR's (Australian Military Regulations) (see paras 14-17). d. An unjust derogatory comment placed on my MS (Military Secretary) dossier by the officer responsible for my management, indicating a personal preconception to a class of members, and constituting a harmful element in the impression to be received by the officers who prepared by P & S (Personnel and Selection) dossier without a personal interview." In respect of item b, the applicant's complaint arose out of the fact that in his two confidential reports for the years 1973 and 1975 his Commanding Officer made remarks very favourable to his chances of promotion. However in each of those years the officer holding the position of Head of Corps, being junior in rank to his Commanding Officer, made the comment "Grossly overates" (sic) in one instance and "Overates"(sic) on the other, On neither occasion were the comments of the Head of Corps referred to the applicant for his information, The applicant complains that these failures to refer back were contrary to Regulation 769 which provides, "769. The procedure mentioned in this Division in relation to the communication to the officer of the annual confidential report made upon him shall as nearly as practicable be followed when any other written report is made to superior authority upon an officer whether that report is favourable to the officer or not." The procedure referred to in this Regulation in respect of the annual confidential report is for ail relevant purposes to be found in Regulation 765, which is as follows: "765. (1) At the end of each year of training a confidential report in respect of each officer of the Permanent Forces, other than a W.O. holding an honorary commission, shail be prepared in accordance with the directions contained in the form mentioned in the next following sub-regulation. (2) Each confidential report made upon an officer under sub-regulation (1) shall be made by his C.O. on the form authorized by the Chief of Personnel and shall be initialled by the officer upon whom it is made, The report shall thereupon be forwarded through the proper channel to the formation commander. A superior officer (if any) to whom the report is forwarded shall, before transmitting 1t to the formation commander, add any comments which he considers should be made by him. 5. (3) Upon receipt of a confidential report upon an officer under this regulation, the information commander shall add to the report a statement of his opinion, and the whole report shall be returned through the proper channel to the C.0. for the information to the officer upon whom the report 15 made, and that officer shall again initial the report as a certificate that he has read it. (4) When the report has again been initialled by the officer upon whom it is made, it shall be returned to the formation commander for transmission to the Chief of Personnel." In respect of item d of paragraph 27, the complaint arose out of the following comment written by a former Military Secretary on a record of interview form dated 14 November 1972, namely "Usual Brit who wants everything. Not impressed". All the applicant's complaints in respect of which he sought redress had reference to and, he alleged, prejudiced his prospects of promotion. He was however at pains to emphasize that his concern was not that he had failed to obtain promotion but that there were serious deficiencies in the promotion procedures. He represented himself on this hearing as he did on his application for extension of time. By document dated 5 January 1981 the respondent indicated that he had on 16 December 1980 dismissed the complaints of the applicant except in respect of item d above. In this regard he redressed the acknowledged wrong by directing, inter alia, that the derogatory comment be removed from the applicant's dossier at the office of the Military Secretary. The reasons for the respondent's decisions were set out in detail in the document of 16 January 1980 which the parties accepted as being reasons complying with s.13 of the Act, notwithstanding the fact that pursuant to Schedule 2(a) to the Act the respondent was under no obligation to supply such reasons. However their provision has enabled the applicant exhaustively to explore possible errors on the paxt of the decision maker. He put before me substantial material which was objected to by counsel for the respondent and I have not found it appropriate to make use of any of it. It is of little profit to set out these reasons in full at this stage. They can be more appropriately considered by reference to the applicant's claims that they shouldbe subject to review by this Court. He contended that a review was warranted because the decisions were made in an improper exercise of power or alternatively involved an error of law. The error of law was particularised as arising in the respondent's contention that the remarks of the Head of Corps referred to in item b above and made in each instance on the applicant's Annual Confidential Report were not governed by Regulations 765 and 769 supra. If they were so governed the applicant contended that the comments should have been referred back to him as the officer commented upon. In respect of the contention that the making of the decision involved an improper exercise of power, the applicant identified by reference to the reasons a number of irrelevant considerations which he said were taken into account and a number of relevant consider- ations which he said had not been taken into account in the making of the decision to dismiss the complaint. The following general comments are relevant on these contentions of improper exercise of power. It is important to bear in mind in considering whether the respondent has taken irrelevant considerations into account and has failed to take relevant conditions into account that his discretion under Regulation 194 is unqualified. There are no restrictions expressly placed upon his obligation to investigate fully the complaint and ,to the extent he finds it made out,to redress it as fully as possible. Of such an unqualified discretion the High Court had this to say in The Queen v Australian Broadcasting Tribunal (1979) 144 C.L.R. 45 at p.50: "The general rule is that a discretion expressed without any qualification is unconfined except in so far as it is affected by limitations to be derived from the context and scope and purpose of the statute." For the applicant to make out a case for review in the present instance he must establish that the respondent failed to take into account a consideration which he was bound to take into account. Alternatively he must establish that as a matter of law he was not entitled to take into account a particular consideration. As Deane J. said in Sean Investments Pty. Limited v Mackellar (1981) 38 A.L.R. 363 at 375: "The ground of failure to take into account a relevant consideration will only be made good if it is shown that the decision-maker has failed to take into account a consideration which he was, in the circumstances, bound to take into account for there to be a valid exercise of the power to decide." The question as to what are relevant or irrelevant consider- ations in a matter such as this is very much in the discretion of the decision maker. On this point Deane J. in Sean Investments Pty. Limited v Mackellar supra, has this to say on page 375: "This does not mean however, that a party affected by a decision is entitled to make an exhaustive list of all the matters which the decision maker might conceivably regard as relevant and then attack the decision on the ground that a particular one of them was not specifically taken into account... In a case such as the present, where relevant considerations are not specified, it is largely for the decision-maker, in the light of matters placed before him by the parties, to determine which matters he regards as relevant and the comparative importance to be accorded to matters which he so regards." In the light of these statements of principle I turn to consider the applicant's contentions. He defined four consider- ations taken into account by the respondent which he contended were irrelevant which I will look at in turn. In paragraph 14 of his reasons the respondent said as follows: "Since promotion is not a right and investigation of the 1978 P & S (Promotion and Selection) Committee proceedings revealed no irregularity or error in your case, the CGS determined that you were not wronged by the decisions that you were unlikely to be required for promotion to LT COL before reaching the retiring age for MAJ." The applicant made two submissions concerning the relevance of this paragraph. He says that the concept of promotion not being a right was irrelevant because his original complaint concerned promotional procedures and not his lack of promotion. In my opinion there is no ground upon which I can find that this consideration is necessarily irrelevant to what was the task of the respondent. In fact 1t could well be said to be very relevant as the starting point of the respondent's investigation of the applicant's alleged-wrongs. The fact that the applicant may see it as irrelevant by reference to the manner in which he put forward his complaint is nothing to the point, In the same way it is impossible to say that the respondent, in his investigation of the matter, was not entitled to regard as relevant the procedures of the Promotion and Selection Process of 1978. If I was required to make a positive finding as to whether such consideration was relevant, my decision would be in the affirmative. In paragraph 7 of his reasons the respondent set out the following under the heading of "Unsatisfactory Postings" "You stated that your postings after 1971 were 'devoid of development opportunity and positively detrimental to a Staff Corps officer's promotion prospects'. There is no evidence that the recorded interview comment in 1972 had any effect on your postings after that year. Examination of your posting history, your annual confidential reports, correspondence between you and MS (Military Secretary) and interview records shows that..." The decision then set out ezght instances of postings and concluded in paragraph 8: "Tt 1s clear that your postings from 1972 to 1978 were not activated by any animosity towards you by MS. When your specific desire to move to and return to Adelaide up to 1977 is considered in conjunction with the obvious absence of a wide range of postings in South Australia, the complaint that you were directed into a series of 'unsuitable' postings, is not supportable. Finally, it is clear that your posting history did not affect your promotion chance to LT COL (since you were cleared 'X' in 1977) and had no bearing on your subsequent downgrading to 'Z'. CGS dismissed this aspect of your complaint." The applicant contended that paragraph 7 contained,in his opinion, inaccuracies or omissions. This may well be the case. But whether or not he is whotly or partly correct in his view is again a matter of opinion and it is not possible for the assessment of the respondent to -be challenged in this way. Without doubt these tatters, which the respondent was of opinion were accurately stated, were relevant to the applicant's complaint. He can not contend they were irrelevant because in his opinion they were inaccurately stated or contained omissions. 10. The final irrelevant consideration upon which the applicant relied related to the interview records of 1971 and 1972 to which the respondent referred. In my opinion there is no ground upon which it can be said that they are necessarily irrelevant to the respondent's consideration of the complaints. The fact that they occurred at an earlier period of time and that subsequently the applicant changed his views as stated therein in no way makes them irrelevant. Turning to the relevant considerations which the applicant contends were not taken into account, they were specifically identified by him. He was particularly concerned that two officers whom he contended were "incompetent" commented on and downgraded his annual confidential report. He contends that their incompetence was a relevant consideration which was disregarded. However I am quite unable to assess this allegation of incompetence as a matter which in any way the respondent 1s obliged, whether as a matter of law, logic or fairness, to consider before making a valid decision. I likewise reject his contention that failure to take into account Regulation 769 or "subsequent reports of various kinds on my dossier" can be said to amount to a disregard of a relevant consideration. The applicant has failed to satisfy me that there is any restriction upon the assessment of the respondent as to what are or are not relevant considerations, apart from those implicit in the subject matter of his complaints. However the matter of Regulation 769 falls for consideration under the heading of error of law. 11. The second set of relevant considerations which he contended were not taken into account were those relevant to the Military Secretary's derogatory comment set out earlier. In this regard the respondent accepted that the applicant's complaint was justified. It follows that the applicant can only be seeking a review of the redress which the respondent considered appropriate and granted. The relevant portion of the respondent's reasons is as follows: "5. CGS upheld the complaint that the recorded interview comment of Nov 72 (Reference A, paras 18-22) was insensitive and offensive. He directed that it be removed from your dossier and this has been done. Remedial action to ensure that similar comments are not made in future is being taken. 6. Your further complained that the derogatory comment also proved to be damaging in that it was the cause of a series of unsatisfactory postings after 1972 and affected your promotion prospects. Investigation showed that you were first considered for promotion to LT COL in Oct 75, that there is no evidence in this or subsequent con- siderations by the P & S Committee that the interview comment influenced (or was even known to) the Committee. You were cleared by the P & S Committee for promotion to LT COL in November 1977. This aspect of the complaint, therefore, was dismissed. The matter of alleged unsatisfactory postings is dealt with separately." In respect of his obligation to redress, the respondent is only obliged to do so as fully as possible. No other directions are given as to how he should carry out his duty and it must be his decision as to how far it is possible for the complaint to be redressed. This is a question of degree and not a question of law. The applicant has wholly fa1led to satisfy me that the respondent --has ignored any relevant consideration in making his decision in this regard. Likewise in dismissing the complaint that the derogatory comment was the cause of unsatisfactory postings and affected his promotion prospects, the applicant draws attention to 12, to the types of postings he received. I quite fail to see that the fact that the applicant saw these postings as unsatisfactory can be said to be a relevant consideration which was ignored. The applicant also contended that abnormal conditions, namely reduced promotion prospects after 1975 and the cumulative effect of all of his complaints in a climate of intense competition, were relevant considerations to which the respondent should have paid regard. In my opinion he has paid sufficient regard to these Matters, even though, as a matter of law I do not Find that he was positively obliged so to do. In the ultimate, after taking into account in the best light the applicant's submissions, which were not always easy to accomodate within the ambit of this very difficult branch of the law, I find that he has not made out a case on this aspect of the matter. I turn now to the contention that a review should be granted because there is a perceived error of law in the making of the decision. The applicant complained that his chances of promotion were reduced by a number of deficiencies and abuses, the relevant one of which in the present instance being the failure to observe the requirements of Regulation 765(3). That regulation refers to an obligation on an officer who makes comment upon a confidential report to have it returned to the officer reported upon for his information. Regulation 769 set out above requires this procedure to apply when any other written report is made upon an officer to superior authority. 13. The respondent's answer to this complaint is set out in paragraphs 9 and 10 of his reasons which were as follows: "9, You complained that your 1973 and 1975 confidential reports were 'downgraded' by Head of Corps, that you were not made aware of these changes and that it was 'improper' that a junior officer acting for Head of Corps should downgrade a more senior reporting officer's or senior reporting officer's assessment. 10. Head of Corps has never been regarded as a senior reporting officer as envisaged in AMR 765(3) and is not in the 'reporting chain' between the officer reported upon and the Chief of Personnel. There is, therefore, no requirement that their comments should be referred back to the officer reported upon. The CGS dismissed this aspect of the complaint." In making this answer it is apparent that the respondent neither gave consideration nor referred to the provisions of Regulation 769. It imposes an obligation to follow the procedure in Regulation 765 requiring communication to the officer concerned of the annual confidential report and any comment thereon when "any other written report is made to superior authority upon an officer whether that report is favourable to the officer or not". At first sight it would appear that that regulation applies to the reports of the Head of Corps, whether or not they formed portion of the confidential report referred to in Regulation 765. Counsel for the respondent contended to the contrary on two grounds. He submitted in the first instance that Regulation 765 was an entire code on the procedures to be followed in respect of the annual confidential report and Regulation 769 was inapplicable. He acknowledged that the form of a confidential report and the 14. documents it contained were such as authorised by the Chief of Personnel and contended that as the regulation made no reference to a report from a Head of Corps there was no obligation for this report to be communicated to the officer concerned. If it was necessary for me to do so I would reject this approach on the ground that as the report of the Head of Corps was, as I assume, part of the confidential report as such ina form authorised by the Chief of Personnel, It thus was subject to the provisions of Regulation 765. Notwithstanding the fact that its purpose may have been primarily to assist in placing officers in employment positions, it was made part of the confidential report and I see no basis for excluding it from the obligations imposed by that regulation in respect of such reports. It may be quite correct to say, as the respondent did, that the Head of Corps was not regarded as a "senior reporting officer" and thus was not in the "reporting chain". However the Chief of Personnel has, doubtless for good reason, seen it as appropriate to authorise a form of confidential report which makes provision for the inclusion of the remarks of the Head of Corps. By so doing he has subjected such remarks to the obligations of Regulation 765. There is a further answer to the submissions of counsel for the respondent. If for any reason the remarks of the Head of Corps do not form part of the confidential report and thus are subject to the last mentioned regulation, in my opinion they comprise another "written report to a superior authority" in accord with Regulation 769. This portion of the confidential report is headed "Part-Vl - Remarks of Head of Corps" and is followed 15. by these words in brackets "(Note - if you disagree with any of the ratings made in para 14 or any recommendation in para 18, re-tick in RED pencil)". I can see no ground for finding that the remarks of the Head of Corps and his disagreements, 1f any, with the ratings can be fairly described otherwise than as a written report to a superior authority. No doubt such a finding 1s, as submitted by counsel for the respondent, contrary to the practice of the Army. However on this aspect my decision must be in accord with the proper construction of the regulations. I find that in this regard an error of law has been made. Having perceived that the respondent erred in law in stating that there was no requirement that the comments of the Head of Corps should have been referred back to Major Doyle, the question arises as to what should be done in consequence of this error. As Lord Denning M.R. said in Pearlman v Keepers and Governors of Harrow School [1979] 1 All E.R. 365 at p,372 "no court or tribunal has any jurisdiction to make an error of law on which the decision of the case depends". The Master of the Rolls placed his emphasis on the word "jurisdiction"; I attach significance to the balance of the sentense, namely "error of law on which the decision of the case depends". This statement supports what I would see as correct, namely it is crucial to ascertain whether the decision depends upon the error of law. It is necessary to determine whether, if the error had not been made, a different decision could or should have resulted either on the complaint or on the question of redress. "a 16. In this matter Major Doyle complains concerning promotion procedures, he does not complain, he said, that he has not been promoted. He has established that, in rejecting his complaint that the Head of Corps' comments were not referred back to him, the respondent's decision involved an error of law. It is difficult however to appreciate that in consequence Major Doyle has suffered any, Or any significant wrong. The powers of the Court in these circumstances are set out in s.16 of the Act as follows: "16(1) On an application for an order of review in respect of a decision, the Court may, in its discretion, make all or any of the following orders: (a) an order quashing or setting aside the decision, or a part of the decision, with effect from the date of the order or from such earlier or later date as the Court specifies; (b) an order referring the matter to which the decision relates to the person who made the decision for further consideration, subject to such directions as the Court thinks fit; (c) an order declaring the rights of the parties in respect of any matter to which the decision relates; (d) an order directing any of the parties to do, or to refrain from doing, any act or thing the doing, or the refraining from the doing, of which the Court considers necessary to do justice between the parties. 17. It is pertinent to note that Regulation 194 sets out what the decision maker should do if the complaint was justified and the member wronged, namely redress the wrong as fully as possible. It is, in my opinion, appropriate for this Court to intervene if it perceives that it is possible for the wrong which Major Doyle has suffered to be effectively redressed, assuming it needs to be redressed in any way other than by an acknowledgement. The words of Bray C.J. in his dissenting judgment in The Queen v Johns, Ex parte Public Service Association of South Australia Incorporated [1971] S.A.S.R. 206 at p.209 are in point and I adopt them. "Under these circumstances I think the Court, in the exercise of its discretion, should refuse to grant the certiorari. One of the grounds on which the court's discretion can be so exercised is futility or absence of any benefit from the making of the order: see Halsbury's Laws of England 3rd ed. vol. 11, p.41l par.266; R. v Lord Newborough (1869) L.R. 4 Q.B. 585; Ex parte Lucas (1910) 10 S.R. (N.S.W.) 120; 27 W.N. 19; R v Licensing Court of Blackall [1920] Q.S.R. 4; R v Anderson, Ex parte Ipec-Air Pty. Ltd. (1965) 113 C.L.R. 177, per Taylor and Owen J.J. at p.201. The Queensland case is particularly instructive. There, one of the grounds on which the Full Court of Queensland refused a mandamus against the Licensing Court, which had heard and determined the case irregularly in that the Magistrate had acted on his own extrajudicial knowledge of the licensee, was that if the mandamus went and the Licensing Court was ordered to rehear on proper evidence it would inevitably come to exactly the same conclusion (see at p.16). I do not think this Court 1s called on to intervene because the Commissioner attached the wrong legal label to something which could not have been questioned by us if he had attached the right one, and to which he can, and in all probability will, attach the right one if, as a result of our order, the matter goes back to him." In this matter the only defect arose out of the fact that the comments of Head of Corps were not brought to the attention of Major Doyle. But there was nothing he could do apart from reading and initialling the report and this would not advance his case. 18. He was not entitled to make his own comments on or register his objection to the remarks of the Head of Corps. It can not be said that his chances of promotion were affected by the failure to refer the reports back to him. Major Doyle could not suggest any way in which it was possible for the respondent, if he had been aware of the error which had occurred, to redress the wrong he contended he suffered. Moreover he did not contend that it was of profit to him for me to make any of the orders set out in s.16 of the Act. He gave the impression that he asked me to do no more than acknowledge the existence of the error of law, which I have done. In the exercise of my discretion I dismiss the application. I will hear the parties on the question of costs. {ce oy Ural us ano we 17 ne Oe ia pages are a true copy of the Reasons for Judgment of Mr Justice Fisher > > 2X a i" wa, Assocrate— Dated} =S7K Nov 1432