yo. SF/ IN THE FEDERAL COURT OF AUSTRALIA NEW SOUTH WALES DISTRICT REGISTRY GENERAL DIVISION JUDGE MAKING ORDER DATE OF ORDER WHERE MADE THE COURT ORDERS THAT: ) ) ) No. G 372 of 1986 ) ) BETWEEN: MARTIN PAUL BOWTHORPE Applicant AND: MINISTER OF STATE FOR DEFENCE First respondent CHIEF OF THE AIR STAFF Second respondent MINUTE OF ORDER Neaves J. 3 September 1986 Sydney 1. The application by Martin Paul Bowthorpe for interlocutory relief be dismissed. 2. The applicant pay the respondent's costs of that application. Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules. REC He 12 SEP 1986 FEDERAL COURT OF AUSTRALIA PAINS PAL pre ' Af oa IN THE FEDERAL COURT OF AUSTRALIA NEW SOUTH WALES DISTRICT REGISTRY No. G 372 of 1986 ween GENERAL DIVISION BETWEEN : MARTIN PAUL BOWITHORPE Applicant AND: MINISTER OF STATE FOR DEFENCE First respondent CHIEF OF THE AIR STAFF Second respondent CORAM: Neaves J. DA i 11 September 1986 | REASONS FOR JUDGMENT On 3 September 1986 I dismissed, with costs, an application by Martin Paul Bowthorpe ("the applicant") for certain interlocutory relief against the Minister of State for Defence and the Chief of the Air Staff and said that I would publish my reasons for reaching that conclusion. What follows are those reasons. The application, as filed, sought relief against the Minister of State for Defence and the Commanding Officer of the Royal Australian Air Force. At the commencement of the hearing I gave the applicant leave to amend the proceedings by 2. substituting the Chief of the Air Staff as the second respondent in place of the Commanding Officer of the Royal Australian Air Force. The applicant sought an interlocutory injunction restraining the respondents from proceeding to carry into effect a decision made on or about 20 August 1986 by the Chief of the Air Staff that the applicant be discharged from the Royal Australian Air Force ("the Air Force"). The injunction was sought until the hearing and determination of an application under the Administrative Decisions (Judicial Review) Act 1977 (Cth) ("the Judicial Review Act") for an order of review in respect of that decision. In the alternative, the applicant sought an order under s.23 of the Federal Court of Australia Act 1976 (Cth) or under s.15(1) of the Judicial Review Act suspending the operation of the decision that the applicant be discharged from the Air Force until the hearing and determination of the substantive application under the Judicial Review Act. The applicant volunteered and was accepted for service in the Air Force on 11 July 1978. On enlistment, he would have taken an oath or affirmation in accordance with Form 1 in Schedule 1 to the Air Force Regulations made under the Air Force Act 1923 (Cth). He thus swore, or affirmed, that he would well and truly serve Her Majesty Queen Elizabeth the Second, Her Heirs and Successors according to law, in the Permanent Air Force for a specified period of years or until his services were sooner lawfully terminated. At the time of 3. the making of the decision that he be discharged, the applicant held the rank of leading aircraftman (see Air Force Regulations, reg.101). It appeared from the affidavit of the applicant filed herein that on or about 27 March 1986 one Flight Lieutenant Blackburn handed him a written report signed by Group Captain K.N. Pyke, the Commanding Officer of the unit in which the applicant was serving, and bearing that date, together with the annexures thereto, detailing a number of respects in which his conduct, work performance and attitude were said to he unsatisfactory and below the standard required by the Air Force. The report concluded with a recommendation that he "be discharged 'Services no longer required'". According to the applicant, he was afforded an opportunity to answer what was stated in the report, an opportunity of which he availed himself in a document which is undated but which he says was handed to Flight Lieutenant Blackburn about a week after he received the copy of the report. It also appeared from the applicant's affidavit that on about 11 July 1986 Flight Lieutenant Blackburn showed hima telex message to the effect that he was to be discharged on 24 July 1986 for the reason that his services were no longer required. Subsequently, representations were made to the Minister for Defence on the applicant's behalf by Mr P. Morris, his local member of Federal Parliament, requesting that the decision to discharge him be reconsidered. Action to discharge the applicant was suspended pending a reconsideration of the 4. matter but on or about 20 August 1986 the decision was taken which was the subject of the application for interlocutory relief. The applicant was informed of that decision on 25 August 1986. Pursuant to that decision his discharge from the Air Force was to take effect on 4 September 1986. The hearing of the application proceeded on the basis that the decision in question was made by the Chief of the Air Staff. Reference was made to regs 109 and 115 of the Air Force Regulations. Regulation 109 provides: "109. (1) The Chief of the Air Staff may dispense with the services of an airman at any time. (2) The competent authority to authorize a discharge shall be the Chief of the Air Staff." The term "airman" denotes a member of the Air Force other than an officer (sub-reg.4(1)). Regulation 115 is in the following terms: "115. An airman may be discharged for any of the following reasons: (a) Irregular enlistment; (b) Not likely to become an efficient airman; (c) Temperamentally unsuited for flying; (d) Being claimed as an apprentice; (da) Having been absent without leave fora period exceeding 3 months; (e) Having not been granted, or having not accepted, Australian citizenship; (f) (g) (ga) (h) (i) (j) (1) (m) (n) (0) (p) (xr) (s) (t) It was decision to du reason specifi Having made a misstatement as to age on enlistment; Having made a false answer on attestation; Having made a false statement on his Medical History Sheet; Having been convicted by the Civil Power of an offence committed before enlistment; Having been dismissed or discharged for disciplinary reasons or having been called upon to resign from any portion of His Majesty's Forces prior to enlistment in the Air Force; Having been sentenced to penal servitude (or imprisonment) by court-martial (or by Civil Power); On request; On being granted a commission; Medically unfit for further service; Medically unfit through his own default; Termination of period of enlistment; Having reached the age for retirement; Services being no longer required; Being surplus to establishment; or For such other reason as the Chief of the Air Staff thinks fit." common ground between the parties that scharge the applicant had been made for the the ed in par.(r) of reg.115, namely that his services were no longer required. 6. The respondents objected to the competency of the application on the ground that the decision that the applicant he discharged was not a decision to which the Judicial Review Act applies. That expression is defined in sub-s.3(1) of the Act to mean, so far as 1s relevant for present purposes, a decision of an administrative character made under an enactment, other than a decision by the Governor-General. Counsel for the respondents submitted - (a) that the decision was not a decision under an enactment but a decision in the exercise of a prerogative power; and (b) that the decision was made by the Chief of the Air Staff as a delegate of the Governor-General. It was, therefore, said that the decision was outside the purview of the Judicial Review Act. The objection to the competency of the application was not fully canvassed in argument and, in the result, I did not find it necessary to reach a definitive opinion upon it. Suffice it to say that I inclined to the view that neither of the submissions advanced on behalf of the respondents should be accepted. The substantive application for an order of review was filed on 29 August 1986. It set out the grounds upon which the applicant proposed to rely in the following terms: "1. That a breach of the rules of natural justice occurred in connection with the making of the decision. Specifically:- (a) The applicant was not given adequate notice of the making of the decision so as to allow him to prepare an application for review at an earlier time. (b) The applicant was not given any reasons for the making of the decision. (c) The persons responsible for the making of the decision could be seen to be biased against him. 2. That the decision was made after taking into accdunt irrelevant considerations and failing to take into account relevant considerations. 3. There was insufficient evidence or other material to justify the making of the decision, 4. The initial decision made on or about llth July 1986 to dismiss the applicant did not take into account the contents of his 1986 Airman Evaluation Report." The principles governing the legal relationship to the Crown of members of the armed services are well established, having been the subject of authoritative exposition in a large number of decisions. It is sufficient for present purposes to refer to The Commonwealth v. Quince (1943) 68 C.L.R. 227; The Commonwealth v. Welsh (1947) 74 C.L.R. 245; Marks v. The Commonwealth (1964) 111 C.L.R. 549 and Coutts v. The Commonwealth (1985) 59 A.L.J.R. 548. The rule is very clearly established that, except when modified by statutory provision, the members of the armed services are employed only during the pleasure of the Crown. A member may be dismissed at will - at any time and without notice. The power of termination may be exercised for any reason or for no reason or for a mistaken reason. In the most recent of the cases mentioned, Graeme Richard Coutts, who had been appointed to be an officer in the Air Force, was compulsorily retired upon medical grounds. The High Court held that there was nothing in the Defence Act 1903 (Cth), the Air Force Act 1923 (Cth) or the regulations made thereunder which modified the rule to which IT have referred. The officer's appointment was, therefore, subject to termination at the pleasure of the Governor-General, acting with the advice of the Executive Council, without any reason being assigned for such termination and without the officer being afforded an opportunity to be heard. Neither the decision to terminate his appointment nor the procedural steps leading up to it were open to review by the courts. Nor was that conclusion affected by the circumstance that a reason had, in fact, been assigned for the termination of the appointment. As the applicant in the case before this Court is an airman and not an officer, it is necessary to examine the relevant statutory provisions to determine whether, in the case of an airman, the rule to which I have referred has been relevantiy modified. There is no express provision in the Air Force Regulations applicable to airmen corresponding to the first limb of sub-reg.72(1) in relation to officers. That sub-regulation provides that an officer holds his appointment during the pleasure of the Governor-General. Nor is there a provision applicable to airmen corresponding to reg.32 which provides that the appointment or promotion of an officer under the regulations does not create a civil contract between the Crown or the Commonwealth and the officer. But the absence of such provisions does not, in my opinion, require a different conclusion to be reached in the case of airmen to that reached by the High Court in the case of officers for the regulations in question do no more than re-state the position as 1t existed at common law. The power of the Chief of the Air Staff to discharge the applicant from the Air Force has its source in reg.109 of the Air Force Regulations. But, as Dixon C.J. said in The Commonwealth v. Welsh (supra), that provision is not to be read in disregard of the rules of the common law regulating the relation to the Crown of members of the armed forces and of the long tradition to which they have contributed. So read, reg.109 does no more than designate the Chief of the Air Staff as the appropriate authority to exercise the power to discharge an airman. That designation is not, of itself, sufficient to limit the otherwise unfettered character of the power to terminate an airman's engagement or to modify the way in which the power may be exercised. Nor, in my view, does reg.115 have that effect, particularly when regard is had to par.(t) which recognises that the Chief of the Air Staff may discharge an airman for any reason which he thinks fit. As a result of my consideration of the matters put in argument, I reached the conclusion that the case was 10. covered, in principle, by the decision of the High Court in Coutts v. The Commonwealth (supra), there being no material difference, so far as the power of termination is concerned, between the position of an officer and that of an airman. I was, therefore, not satisfied that the applicant had demonstrated that there was a sufficiently arguable question to warrant the grant of the interlocutory relief sought. For the reason set out above, I dismissed the application for interlocutory relief and ordered the applicant to pay the respondents' costs of the application. I certify that this and the preceding 9 pages are a true copy of the Reasons for Judgment herein of the Honourable Mr Justice Near <i bh Associate Dated: 11 September 1986 Counsel for the applicant : Mr G.J. Stanton Solicitors for the applicant : W.H. Baker Love & Geddes Mr L. Katz Australian Government Solicitor Counsel for the respondent Solicitor for the respondent Date of hearing : 3 September 1986