FEDERAL COURT OF AUSTRALIA Martinek v Evans [2002] FCA 1584 MARY-ANN MARTINEK V MARK EVANS V 7 OF 2002 MARY-ANN MARTINEK V CHIEF OF ARMY V 373 OF 2002 NORTH J 18 DECEMBER 2002 MELBOURNE IN THE FEDERAL COURT OF AUSTRALIA VICTORIA DISTRICT REGISTRY V 7 OF 2002 BETWEEN: MARY-ANN MARTINEK APPLICANT AND: MARK EVANS RESPONDENT V 373 OF 2002 BETWEEN: MARY-ANN MARTINEK APPLICANT AND: CHIEF OF ARMY RESPONDENT JUDGE: NORTH J DATE OF ORDER: 18 DECEMBER 2002 WHERE MADE: MELBOURNE THE COURT ORDERS THAT: 1. Both applications are dismissed. 2. The applicant is to pay one third of the respondents' costs of the applications including the costs of the motions, notice of which was filed by the respondents on 19 June 2002. 3. Liberty is reserved to the applicant to apply to vary the order made in par 2 provided that she files and serves a notice in writing of her intention to do so by 15 January 2003. Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules. IN THE FEDERAL COURT OF AUSTRALIA VICTORIA DISTRICT REGISTRY V 7 OF 2002 BETWEEN: MARY-ANN MARTINEK APPLICANT AND: MARK EVANS RESPONDENT V 373 OF 2002 BETWEEN: MARY-ANN MARTINEK APPLICANT AND: CHIEF OF ARMY RESPONDENT JUDGE: NORTH J DATE: 18 DECEMBER 2002 PLACE: MELBOURNE REASONS FOR JUDGMENT 1 The applicant, Mary-Ann Martinek, commenced two applications. The first against Brigadier Mark Evans and the second against the Chief of Army (the respondents). The first application numbered V7 of 2002 was filed on 7 January 2002. The second was numbered V373 of 2002 and was filed on 13 June 2002. 2 Presently before the Court are two notices of motion filed by each of the respondents seeking orders that each respective application be dismissed on the ground that no reasonable basis for it is disclosed, and that it is frivolous, vexatious, and an abuse of process. 3 It is necessary to explain the background to the applications. Ms Martinek served in the Australian Army and reached the rank of Major. The Chief of Army decided to retire her and he signed a notice of retirement in 2000. In response to this decision, Ms Martinek commenced an application numbered V349 of 2000 in this Court. On 20 July 2001, that application was settled, and written terms of settlement were executed. The recitals to the terms of settlement describe the circumstances as follows: "A. On 2 March 2000 the Respondent's [Chief of Army] predecessor signed a Notice of Retirement which, if it were valid, would have retired the Applicant from the Australian Regular Army with effect from 24 March 2000. B. That Notice of Retirement stated that retirement of the Applicant was for the reason that the officer was incapable of rendering service on the basis of physical incapacity not within the officer's power to control. C. On 12 April 2000 the Respondent's predecessor wrote to the Applicant and indicated that a clerical error existed in the Notice of Retirement of 2 March 2000. The Respondent's predecessor advised that the Notice should have read that the officer had been retired as a result of mental incapacity that was not within the officer's power to control. D. On 22 May 2000 the Applicant commenced proceeding number V349 of 2000 in the Federal Court of Australia ('the proceeding'). E. In the proceeding the Applicant has sought an order that the decision of 2 March 2000 to retire her be quashed and set aside. F. The Respondent will consent to an order of the Court that the Notice of Retirement of 2 March 2000 be set aside. G. The Applicant has agreed that on making of the orders by the Court, she will resign from the Australian Regular Army on the basis that her services are no longer required at her own request upon the disbandment of the Survey Corps." 4 The terms of settlement relevant to the present applications are as follows: "1. The Respondent will on the signing of these Terms, revoke the Notice to Show Cause which was directed to the Applicant and signed by the Respondent's predecessor on 7 December 1999. 2. The Applicant will on the signing of these Terms, by writing under her hand addressed to the Respondent, tender her resignation of her military office with effect on the date of the Court order which determines this proceeding. 3. The Respondent will, by instrument in writing, accept the resignation on the ground that the Applicant has requested her discharge. 4. Subject to the provisions of clause 10, the Respondent will pay to the Applicant the amount of salary owing for service that would have been rendered by her between 24 March 2000 and the date of her resignation, less any usual deductions for income tax and superannuation contributions. … 10. No moneys shall be payable by the Respondent pursuant to clause 4 until the Respondent has accepted the Respondent's resignation pursuant to clause 3 and the amount to be paid by the Applicant to the Respondent pursuant to clause 9 has been determined. When the amount has been so determined, the Respondent may deduct that amount from any moneys owing to the Applicant pursuant to clause 4 and the balance shall be paid by the Respondent to the Applicant within 28 days of the date on which the determination is made. … 14. The Applicant and the Respondent agree on their own behalf and on behalf of their officers, servants, agents and representatives, including their legal representatives and their officers, servants, and agents, that neither will make any public statement, or maintain any facility which may be disparaging of the other or which is likely to misrepresent, mislead and thereby cause detriment to the reputation or standing of the Applicant or of the Australian Defence Force, its officers, servants or agents. 15. Upon execution of these Terms of Settlement, the parties will sign a consent order under Order 35 Rule 10 of the Rules of the Federal Court, quashing and setting aside the decision of the Respondent's predecessor to retire the Applicant from the Australian Regular Army and otherwise dismissing the proceeding with no order as to costs." [emphasis added] Ms Martinek was legally represented when the terms of settlement were signed. 5 In accordance with clause 2 of the terms of settlement Ms Martinek tendered her resignation on 20 July 2001. On the same day, as a result of the consent referred to in clause 15 of the terms of settlement, the Court ordered, by consent, that the decision to retire Ms Martinek from the Army be quashed with effect from 24 March 2000. In accordance with clause 3 of the terms of settlement, on 18 August 2001, the Chief of Army accepted her resignation. 6 On 5 November 2001, Ms Martinek applied for appointment as an officer of the Army Reserve. Brigadier Mark Evans, the respondent in V7 of 2002 refused this application. He notified his decision to Manpower Defence Recruiting within the Army by a letter dated 17 December 2001 in the following terms: "It is my understanding that you received an application to re-enlist into the Regular Army by Ms Mary-Ann Martinek on 15 October 2001. She then amended this on 5 November 2001 to an application to re-enlist into the Army Reserve. Your office then requested that the Army Personnel Agency – Melbourne conduct a suitability check on Ms Martinek as she has prior military service. As you are aware, the Career Management Agency of the Service which the applicant is seeking to join is responsible for determining the conditions of service that will be offered such as rank, seniority, posting etc. Ms Martinek held the rank of major at the time of her resignation. As I am the delegate of the Chief of Army for appointing officers to the Army of the rank of major, the re-appointment of Ms Martinek to the Army is my decision. Earlier this year the Department of Defence made a legal settlement with Ms Martinek which enabled her to resign from the Army and access certain entitlements on the basis of having served for a period of over 20 years. Notwithstanding this settlement, I have taken into account Ms Martinek's previous service in the Army and on that basis I decline to re-appoint her. Please inform Ms Martinek that on the basis of her previous service in the Army, the delegate of the Chief of Army, the Director General Personnel – Army, has declined to appoint her as an officer in the Army Reserve." [emphasis added] the issues to be determined 7 The applications filed in the Court were drawn by Ms Martinek who was, at the time, representing herself. She obviously devoted great attention and time to preparing the applications. However, they lacked a real focus on the legal issues to be considered by the Court. In an attempt to elicit those legal issues the Court allowed Ms Martinek to amend the applications. The original application in V7 of 2002 filed on 7 January 2002 was amended on 2 April 2002 and 20 June 2002. The original application in V373 of 2002 was filed on 13 June 2002 and amended on 20 June 2002. The amended applications were each over twenty pages long, but still lacked a clear definition of the issues to be determined. 8 Ms Martinek appeared for herself at several directions hearings. She obviously had a deep commitment to redressing the wrong, as she saw it, connected with the ending of her military career. In due course, she accepted the suggestions of the Court to engage lawyers to represent her so that her concerns could be expressed in terms which might attract a remedy at law. As a result, Mr Appudurai of counsel filed an outline of submissions on behalf of Ms Martinek setting out the basis on which the motions were opposed. The outline is a clear and concise document and has been most helpful in defining the issues which Ms Martinek wishes to litigate. For the sake of convenience, and to minimise further costs, I have treated this document as setting out the claims of Ms Martinek for the purpose of determining the notices of motion. The respondents seem to have accepted this course also. 9 The issues raised in these submissions are summarised in pars 4 and 5 as follows: "4. It is conceded that the applications (including amended applications), drawn as they are by a lay person, are not as clear as they could be as to the relief sought and the grounds upon which such relief is sought. It is contended, however, that the effect of the applications when considered in context is to seek review (under the ADJR Act and s 39B of the Judiciary Act 1903: (a) the decision of the respondent on 18 August 2001, made pursuant to s 17(3)(a) of the Defence Act 1903 ('the Act'), to accept the resignation of the applicant; and [the 18 August 2001 decision] (b) the decision of Brigadier-General Mark Evans (as 'the delegate of the Chief of Army') on 17 December 2001, purportedly made pursuant to s 10 of the Act, to '… decline to re-appoint her' and decline '… to appoint her as an officer in the Army Reserve'. [the 17 December 2001 decision] 5. Accordingly, it is contended that each of the decisions sought to be reviewed is a decision of the respondent within the scope of the ADJR Act and s 39B of the Judiciary Act. The applicant does not seek to re-litigate the matters settled by the terms of settlement of application V349/2000." 10 The arguments in relation to each of the two decisions referred to in the outline of submissions will be considered in turn. Mr Appudurai rightly submitted that the Court will not dismiss an application summarily for failure to disclose a cause of action except in a clear case. The claim must be so untenable that it cannot possibly succeed: Dey v Victorian Railway Commissioners (1949) 78 CLR 62 at 92 per Dixon J. the 18 August 2001 Decision 11 The submission filed on behalf of Ms Martinek states as follows: "6. It is contended that, notwithstanding the provision in paragraph 3 of the terms of settlement that the '[r]espondent will, by instrument in writing, accept the resignation on the ground that the Applicant has requested her discharge', the respondent was not relieved of his obligation to properly exercise his discretion to accept the applicant's resignation pursuant to s 17(3)(a) of the Act. 7. The respondent's acceptance of the applicant's resignation was, in the circumstances, infected by error in that: (a) he failed to properly consider the applicant's tender of her resignation pursuant to paragraph 2 of the terms of settlement within the scope of his discretion under ss 17(1) and 17(3)(a) of the Act; (b) he failed, prior to exercising that discretion, to have regard to all relevant matters required to be considered. In particular, he failed to have regard to whether he had complied with all his obligations under the terms of settlement (especially paragraph 14); such compliance was, in the context of the settlement of V349/2000, a pre-condition to the exercise of his discretion. The applicant's concerns as to her reputation were central to V349/2000 and the terms of settlement were predicated upon the acceptance by the respondent that the basis for the Notice of Retirement was then incorrect and required correction; and (c) in the circumstances, that decision was a decision which no reasonable person could have made it." 12 Section 17(1) and (3)(a) of the Defence Act 1903 (Cth) (the Act) provides: "17.(1) An officer of the Army may, by writing under his hand addressed to the Chief of the General Staff, tender the resignation of his military office, but the resignation shall not be accepted, and is not effective, except as provided by this section. … (3) The Chief of the Army: (a) in the case of a resignation by an officer of a rank not higher than the rank of colonel that has not been rejected in pursuance of subsection (2) – may, by instrument in writing, accept the resignation or forward the resignation to the Minister for submission to the Governor-General;" 13 Mr Appudurai submitted that, when the terms of settlement were signed, Ms Martinek had been concerned that she was retired as a result of her service record incorrectly showing that she was severely psychologically unfit by reference to a military code of S8. In fact, the record should have shown a much lower level of psychological unfitness, namely, S3. Thus, he argued, the correction of the record was central to her agreement to the terms of settlement. That correction was required, he contended, by the terms of clause 14 of the terms of settlement. To retain the incorrect record was to "maintain any facility which may be disparaging of the other or which is likely to misrepresent, mislead and thereby cause detriment to the reputation or standing of the Applicant" as referred to in clause 14 of the terms of settlement. Given the circumstances, it was a precondition for the operation of clause 3 of the terms of settlement that the correction of the record was made. It was submitted that the correction had not been made when the resignation was accepted. Consequently, it was contended, the respondent had failed to take into account a relevant matter, namely, the absence of the required correction, when the decision to accept the resignation was made. 14 There are a number of points at which this argument cannot succeed. For instance, there is nothing to support the conclusion that clause 3 of the terms of settlement is subject to the precondition asserted. On the contrary, where the terms of settlement require a precondition for the operation of a particular clause, such as clauses 4 or 15, the terms of settlement make an express provision for the purpose. No such provision is made in clause 3. 15 Further, the scope of relevant factors to be taken into account in making the decision to accept the resignation is defined by s 17(3)(a) of the Act: Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1985) 162 CLR 24, per Mason J at 39. There is nothing in that section, or in the subject-matter, scope and purpose of the Act, which makes compliance with the terms of settlement a matter which the decision-maker is obliged to take into account. 16 It has been assumed for the purpose of this argument that clause 14 obliges the respondent to maintain a correct service record. In adopting the assumption, I express no view whether clause 14 has the result contended for by Ms Martinek. If it does so, then the proper way to vindicate the right asserted is to enforce clause 14 rather than to seek judicial review of the decision to accept the resignation pursuant to clause 3 of the terms of settlement. 17 In the result, the challenge to the 18 August 2001 decision cannot succeed. the 17 december 2001 decision 18 The submission filed on behalf of Ms Martinek states as follows: "8. The respondent contends (in the respondent's outline) that the decision of Brigadier Evans is not reviewable, under the ADJR and s 39B of the Judiciary Act, as that decision was relevantly that of the Governor-General. 9. The applicant concedes that, if Brigadier Evans were properly delegated by the Governor-General to exercise his powers under s 10 of the Act, the decision of 17 December 2001 would not be reviewable under the provisions of the ADJR. The applicant agrees with the respondent that the position under s 39B is not clear. 10. As at the date of these submissions, the respondent has not provided proof (requested by the applicant's solicitor) of the authority of Brigadier Evans to make a decision under s 10 of the Act. While an instrument of delegation by the Governor-General (26 November 1997) to persons holding certain positions in the ADF has been provided, no instrument of appointment of Brigadier Evans (together with any relevant delegation or authorisation of the person making such an appointment) to any position contemplated in the Governor-General's instrument of delegation has been provided as requested by the applicant's solicitors. 11. In the circumstances, the applicant contends that Brigadier Evans' purported decision to decline her appointment (apparently as delegate of the respondent) was made without power. 12. The applicant contends, in any event, that the decision of Brigadier Evans (assuming he was authorised to make it) was made in circumstances that 'the basis of [Ms Martinek's] previous service in the Army' then considered by him contained the errors in her medical records identified earlier in these submissions. In those circumstances, it is contended that that decision is affected by error in that Brigadier Evans took into account matters which he was not entitled to have regard to in arriving at his decision." 19 Section 10(1) of the Act provides: "10. (1) The Governor-General may, in accordance with such conditions and subject to such qualifications or requirements as are prescribed or provided for by the regulations, by instrument in writing: (a) appoint persons to be officers of the Army; and (b) promote officers of the Army; and may issue commissions to persons so appointed." 20 The first point raised by Ms Martinek is that Brigadier Evans was not properly empowered to act as the delegate of the Governor-General. Section 120A(1) of the Act provides: "120A. (1) The Governor-General may, by instrument in writing, delegate to the Chief of the Defence Force or to an officer of the Army all or any of his powers under section 10." 21 By an instrument dated 26 November 1997, the Governor-General delegated the power under s 10 of the Act to appoint persons to be officers of the Army to ranks not higher than that of major to the person for the time being holding, occupying or performing the duties of the office of the Director General Career Management – Army. In an affidavit sworn on 29 November 2002, Robert William Strachan, a Lieutenant Colonel in the Personnel Branch of the Army, swore that from 7 February 2001 Brigadier Mark Evans performed the duties of the officer of Director General Career Management – Army. This evidence establishes that Brigadier Evans was properly delegated the power to appoint officers under s 10. Ms Martinek could not succeed in establishing that Brigadier Evans was not properly appointed a delegate of the Governor-General. 22 It will be recalled that Brigadier Evans stated in the letter dated 17 December 2001 that, in declining Ms Martinek's request for reappointment as an officer in the Army, he took into account her previous service in the Army. Mr Appudurai contended that Brigadier Evans must have taken into account the erroneous record of Ms Martinek's psychological fitness, and Brigadier Evans thereby fell into error. The error was taking into account matters to which he was not entitled to have regard. 23 However, the letter shows that Brigadier Evans had regard to Ms Martinek's "previous service" in declining her application. He was clearly entitled to do so. Ms Martinek has not demonstrated that Brigadier Evans took into account her record of psychological fitness. Furthermore, she is not entitled to any further reasons for that decision either under the Act, the Administrative Decisions (Judicial Review) Act 1977 (Cth) (see s 3(1) definition of 'decision' which excludes decisions of the Governor-General), or at common law (Public Service Board of New South Wales v Osmond (1986) 159 CLR 656). Consequently, Ms Martinek has not shown, and is not able to show, that Brigadier Evans has made any reviewable error. This cause of action is also bound to fail. Conclusion and costs 24 As the claims made by Ms Martinek are bound to fail, the applications will be dismissed. Ordinarily, the costs would follow the event. However, in all the circumstances the respondents have agreed to limit their claims to one third of their costs of the applications. The applicant reserved her right to argue that she should not have to pay any of the respondents' costs. I intend to make the order proposed by the respondents but to reserve liberty to the applicant to apply to vary the order as to costs. If the applicant seeks to exercise this liberty she must, by 15 January 2003, file and serve a notice in writing of her intention to do so. I certify that the preceding twenty-four (24) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice North. Associate: Dated: 18 December 2002 Counsel for the Applicant: Mr R Appudurai Solicitor for the Applicant: KPI Lawyers Counsel for the Respondents: Mr P Hanks QC with Mr M O'Bryen Solicitor for the Respondents: Phillips Fox Date of Hearing: 6 December 2002 Date of Judgment: 18 December 2002