Paterson v Chief of the Army (No 2) [2001] FCA 196

FEDERAL COURT OF AUSTRALIA

Paterson v Chief of the Army (No 2) [2001] FCA 196

SERGEANT BRUCE PATERSON v CHIEF OF THE ARMY N 36 OF 2001 LINDGREN J 7 MARCH 2001 SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY N 36 OF 2001

BETWEEN: SERGEANT BRUCE PATERSON

APPLICANT

AND: CHIEF OF THE ARMY

RESPONDENT

JUDGE: LINDGREN J

DATE OF ORDER: 7 MARCH 2001

WHERE MADE: SYDNEY

THE COURT ORDERS THAT: 1. The application be dismissed. 2. The applicant pay the respondent's 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 N 36 OF 2001

BETWEEN: SERGEANT BRUCE PATERSON

APPLICANT

AND: CHIEF OF THE ARMY

RESPONDENT

JUDGE: LINDGREN J

DATE: 7 MARCH 2001

PLACE: SYDNEY

REASONS FOR JUDGMENT

INTRODUCTION 1 The applicant (without discourtesy, "Paterson") claims that he "transferred" from the Australian Army Reserve ("ARes") to the Australian Regular Army ("ARA") because of an assurance he was given that he would not be posted away from the Sydney Military Area ("SMA") for a period. He has in fact been posted away from the SMA to the Army Promotion Training Centre ("APTC") at Canungra in Queensland during that period. 2 Paterson seeks relief under the Administrative Decisions (Judicial Review) Act 1977 (Cth) ("the AD(JR) Act") and under s 39B of the Judiciary Act 1903 in respect of the posting decision and in respect of two unfavourable decisions on applications by him for review of the posting decision. The ground of relief on which Paterson's submissions were based is that in taking the decisions, the respondent failed to take into account a relevant consideration, namely, the giving of the assurance mentioned, with the result that the decisions are liable to be set aside. At various times during the course of the proceeding, Paterson has claimed that the respondent is estopped from departing from the alleged assurance, and that the assurance gave rise to a legitimate expectation that the assurance would not be departed from without Paterson's being first given an opportunity to be heard. Ultimately, however, these claims were not pressed. Nor is there a claim of breach of contract. 3 Subregulation 77(2) of the Australian Military Regulations made under the Defence Act 1903 (Cth) provides, in effect, that the Chief of Army may post an officer to an appointment. It is not in dispute between the parties that the posting decision was an exercise of that power, and was therefore "a decision of an administrative character madeĽunder an enactment" for the purpose of the definition of decisions to which the AD(JR) Act applies (see par (c) of the definition of "enactment" in subs 3(1) of the AD(JR) Act). Nor is it in dispute that the two review decisions satisfied the same description.