A CATCHWORODS DEFENCE - Air Force - officer - termination of appointment - natural justice ~ appointment "during pleasure". PRACTICE AND PROCEDURE - striking out statement of claim - amendment - declaration sought obscure in effect. Judiciary Act, 5.44 Federal Court Ruies, o.11 r.16 Air Force Requlations, reg.628(1) BRIAN WILLIAM FATTON Vv. THE HONCGURABLE KIM CHRISTIAN BEAZLEY, MINISTEP OF STATE FOR DEFENCE AND THE CCMMONWEALTH OF AUSTRALIA NSW G427 OF 1984 PINCUS J. BRISSANE 1i SEPTEMBER 1985 apes eae IN THE FEDERAL COURT OF AUSTRALIA } NEW SQUTH WALES DISTRICT REGISTRY ) GENERAL DIVISION ) BETWEEN : BRIAN WILLTAM PATTON Applicant AND: THE HONOURABLE KIM CHRISTIAN BEAZLEY, MINISTER OF STATE FOR DEFENCE AND THE COMMONWEALTH OF AUSTRALIA Respondents MINUTES OF ORDER JUDGE MAKING ORDER: PINCUS J. DATE OF ORDER: ll SEPTEMBER 1985 WHERE MADE: BRISBANE THE COUPT ORDERS THAT: 1. The amendment sought be refused. 2. The statement of claim be struck out in its entirety. 3. The costs of and incidental to this application and order be taxed and paid by the applicant, Mr Patton. NOTE: of the Federal Court Rules. NSW G427 of 1984 Settlement and entry of orders is dealt with in Order 36 eyer ce oe wee eT wT, . ' we IN THE FEDERAL COURT OF AUSTRALIA ) NEW SOUTH WALES DISTRICT REGISTRY ) NSW G427 of 1984 GENERAL DIVISION ) BETWEEN : BRIAN WILLTAM PATTON Applicant AND: THE HONOUPABLE KIM CHRISTIAN BEAZLEY, MINISTER OF STATE FOR DEFENCE AND THE COMMONWEALTH OF AUSTRALIA Respondents PINCUS J. 11 SEPTEMBER 1985 PEASONS FOR JULGMENT The applicant instituted these proceedings by a writ issued out of the High Court of Australia. Afters certain steos wer2 taken, Mason Jd. ordered that the further hearing of the matter be yemitted to this Court pursuant to s.44 of the Judiciarv Act 1903. The respondent subsequently applied for an order that the amended statement of claim of the applicant be "dismissed" on the ground that it disclosed no reasonable cause of action. I assume that what was intended was to apply that the pleading be struck cut under o.11 rF.16. The basis of the application was simply that, if all the allegations in the statement of claim are true, the plaintiff is nevertheless not cop reer ten v fe Nr ene , ey at ott a "" , entitled to any relief. to strike out pleadings is one which must be exercised with great caution, if it is clear that the claim as pleaded cannot possibly succeed, then I should strike it out. The further amended statement of claim need not be set out in full; following:- the allegations which require mention are That the avrlicant was appointed, with the rank of pilot officer, to be an officer of the Royal Australia Air Force, such appointment being gazetted in 1966, That in 1967 a commission was issued in respect of that aprointment. That on September 1968 the applicant was advised that a recommendation had been made to the Governor-General that his appointment be terminated with effect from 13 September 1968 and that letter contained no complaint or charge against the applicant and no cause was advanced in support of the recommendation. Although there is authority that a power That the appointment was purportedly terminated with effect from 6 November 1968. That the purported termination was gazetted on 28 November 1968. That the respondents have taken no action to cancel the applicant's commission. The statement of claim does not precisely set out the mode of termination of the appointment, but the relevant extract from the Gazette has been placed before me and it is agreed that I should treat it as part of the allegation of termination. The notification in the Gazette reads as follows:- "ROYAL AUSTRALIAN AIR FORCE THE following change is made: PERMANENT AIR FOPCE Equipment Branch The probationary appointment of Pilot Officer B.W. Patton (0570841 is terminated 6 November 1968. GORDON FREETH Minister of State for Air (Ex. Min. No. 141 - Approved 21 November 1968)" n -- eot eae ica aR Tr s7 peewee It will be observed that there is no mention of the Governor-General in Council, but it 1s common ground that, correctly read, the Gazette shows that termination was effected by decision of the Governor-General in Council. That is conveyed by the words "Ex Min" and "approved". It should be mentioned, further, that the plaintiff's claim in the proceedings is for two orders only, which need not be set out in detail. Each of them asserts an entitlement to money on the assumption that the termination alleged was not effective. In argument before me, both written and oral, the applicant e¢zplained that by reason of the nature of his appointment, 1b could not be terminated without regard toa the 'S Principles of natural justice. He relied upon a considerable number of references to authority, dating back to the 1766 edition of Blackstone's Commentaries on the Laws of Enqiand. The details of the argument, which was very elaborately developed, are not of immédiate concern, for in support cf his contention that the statement of claim should be struck out, Mr Robertson for the respondents relied almost entirely upon the recent decision of the High Court in Coutts v. Commonwealth of Australia 59 A.L.R. 699. Me Robertson did not, as I understood hin, suggest that, apart from Coutts' case, the matter was one in which it would be appropriate to strike tne pleading out, but said that the decision put an end to the applicant's prospects of a woo success. The question becomes, then, whether Coutts' case governs the matter and it is necessary to determine whether what was there decided makes the applicant's claim in this case impossible to sustain. Before turning to the central point of Coutts' case, however, I wish to make an observation upon the reliance which appeared to be placed by the respondents on the remarks of Wilson J., in commenting upon the reasons of Lord Diplock in Council of Civil Service Unions v. Minister for Civil Service (1984) 3 W.L.R. 1174:- "The interests of national security were paramount and in relation thereto the executive government, and not the courts of justice, must have the last word. Botn Lord Scarman ard Lord Roskill expressed a similar view." IT do not understand Wilson J.,. by these remarks, to have intended to convey that in this country, once a question of national security arises, Courts cannot intervene. The Courts here have never regarded an allegation that naticnal security is threatened, even imminently, as a reason fore declining to examine governmental action: see for example South Australia v. Commonwealth 65 C.L.R. 373, decided in 1942, Australian Communist Party v. Commonwealth 83 C.L.R. 1, and the recent decision in Alister v. PR 50 A.L.R. 41, especially at p.64. Further, as Lord Scarman was careful to explain in the House of Lords case referred to, the well-known statement that "those who are eer creme gt "4 Ft ean Suey ree, 3 7 Mae pe Sera sey wre ey ote er ory ere ee ¥ Me responsible for national security must be the sole judges of what the national security requires" does not mean that evidence is unnecessary to establish that national security is involved in the case, nor that the opinion of the Crown as to such matters is conclusive: see (1984) 3 W.L.R. from p.1190G to 1193A. The doctrine which Lord Scarman so anxiously refutes would be a prime recipe for tyranny. The cry of "national security" can be used to encompass all kinds of alleged internal threats and the notion that, once it is uttered by the authorities, the rule of law has but an attenuated application has never taken hold here, although it seems to have some support in England: cf. The Secretary of State for Defence v. Guardian Newspapers Ltd. (1984) 3 W.L.R. 986 at p.1015. To return tG the central point of Coutts' case, the facts were that the original plaintiff, whose executriz pursued the matter before the High Court, was appointed to be, and later commissioned as, an officer in the Royal Australian Air Force. After a question was raised about his health, the Governor in Council appreved a recommendation that his appointment be terminated on medical grounds. It was contended on benalf of the executrix, 1n the High Court, that the source of the power ta terminate the appointment was reg. 628(1) of the Air Farce Regulations, which it is not necessary to set out, but which deals with the retirement or discharge of members on medical grounds. Deane J., who dissented, held that the requirements of natural justice applied in respect of the termination of the " appointment and that the deceased had also been entitled to set up a case that the provisions of reg. 628(1) were inapplicable to the circumstances of the case. The majority (Wilson, Brennan and Dawson JJ.) held that the Commonwealth had a right to dismiss the officer at pleasure, that this appointment was "liable to be terminated at any time far good or bad reason or for none" (p.708), subject to a power to dismiss which "may be exercised at any time and for any reason, or for no reason or for a mistaken reason" (p.709), and "terminable at will, without notice but also without any hearing" (p.720). The applicant here did not contend that Coutts' case 1s distinguishable from his own and I can see no ground of distinction. It 1s true that there was a difference, referced to above, but it was one which made Coutts' case stronger for the plaintiff there; it was able to be argued that 1 was express or implicit in rea. 628(1) that the common law dismissal rule did not apply, and that, having been dismissed on medical grounds, the deceased had been entitled to rely upon that sub-regulation. In this case no question of dismissal on medical grounds arises. No reason for the termination of the appointment was given and the plaintiff simply says that he was entitled to he heard. As Mr Robertson pointed out, Mason A.C.d., who dissented, did so in terms which are against the applicant's case here; his Honour was of the view that:- "J... mo obligation to conform to the rules of natural justice can arise when the power to wee ee oe a ~ So neers — '. em y how . 5 TIE pr eer cen an tong ' a tar 2, . mn eerie a ee; dismiss at pleasure is exercised for discretionary reasons independently of reg. 628(1)." In my opinion, Deane d., the other dissenting judge, may not have reached a concluded view on the question whether the rules of natural justice would have applied if there had been a dismissal on discretionary grounds independently of reg. 628(1): see p.712 line 40, p.714 line 40. However that may be, four members of the Court were of the view that, no assistance as far as the plaintiff was concerned being able to he derived from reg. 628(1), 1t was not possible to attack the termination of appointment on the ground that the requirements of natucal qustice were not observed. That view is part of the ratio and I am bound by it. The argument fer the applicant really ignores Coutts' case and put forward reasons of substance against the legality of what has been done. In the circumstances, although I have carefully considered the submissions made by the applicant, it would not seem proper for me to express my own view on them; the conclusion at which thev arrive 1s diametrically opposed to the result of Coutts' case. Pa Ay The only other question is an Application for amendment which is mad2 by the applicant and which seeks to add a claim as follows:- The holder of an Air Force commission which has ae not been cancelled by the Governor-General acting pursuant to the provisions of regulation 72(1) of the Air Force Regulations, remains an officer of the Aic Force. ~~ The effect of this amendment, if allowed, would be to introduce a new and rather obscure issue into the case, namely (assuming all else against the plaintiff), whether what was done left him asa person who might peoperly be described as "an officer of the Air Force". I was, at first, inclined to the view that the amendment should be allowed but, on reflection, I have come to the conclusion that it should not be, for the reason put forward by Me Robertson. This is, in substance, that the granting of the new declaration sought would, so far from clarifying the legal position, merély raise a new question, namely the effect of the declacation. ents I ther 0] Tore propose to order that the statement of claim be struck out, in its entirety, and that the amendment be refused. I will hear the parties as to whether any further orders should be made cof a consequential kind. I order that the costs of and incidental to this application and order be taxed and paid by the asplicant, Mr Patton. ; a 1 certify that this and the QY preceding pages are a true copy of the reasons for judgment herein of His Honour Mr. Justice Pincus Daswiset OAc 1y [ ? /'8 S "Associate '\ 'Dated r pees re eye npr eee oa va * ee mg ee ae qe a wae! x