Millar v Bornholt [2009] FCA 637

FEDERAL COURT OF AUSTRALIA

Millar v Bornholt [2009] FCA 637

ADMINISTRATIVE LAW – Referral to Delegate of Chief of Army of redress of grievance complaint in respect of termination of service in the Australian Army – Judicial review of delegate's decision – Whether denial of procedural fairness – Whether decision unreasonable – No procedural unfairness – Decision not unreasonable DEFENCE AND WAR – Members of the Defence Force – Referral to Delegate of Chief of Army of redress of grievance complaint in respect of termination of service in the Australian Army – Nature of power exercisable by Chief of Army or delegate – Plenary nature of power CONSTITUTIONAL LAW – Crown – Relationship between the Crown, Parliament and the Australian Defence Force – role of redress of grievance system with respect to that relationship and discipline, command and control within the Defence Force Administrative Decisions (Judicial Review) Act 1977 (Cth) s 5(1)(e) Defence Act 1903 (Cth) ss 8, 9, 30, 31 and 55 (repealed) Defence Force Discipline Act 1982 (Cth) s 20 Constitution ss 51(vi), 68 and 75(v)

Act of Settlement 1701 (Eng) Armed Forces Act 2006 (UK) s 334 Army Act 1881 (UK) ss 42 and 43 Army Discipline and Regulation Act 1879 (UK) Australian Courts Act 1828 (UK) s 24 Bill of Rights 1689 (Eng) art 5, 6 and 9 Defence Act 1990 (NZ) s 49 Magna Carta 1215 (Eng) art 61 Mutiny Act 1689 (Eng) National Defence Act 1985 (Can) s 29 Australian Military Regulations 1927 reg 9(2A) (repealed) and 194 (repealed) Defence Force Amendment Regulations 2008 (No 1) Pt XV Defence Regulations 1952 (Cth) reg 75, 76, 77, 81 Defence (Personnel) Regulations 2002 (Cth) reg 4, 87 and Sch 1 Australian Military Regulations and Orders O 289A Defence Instruction (General) PERS 34-1 Redress of Grievance – Tri-Service Procedures Articles of War (1873) (UK) art 12 and 13 Queen's Regulations and Orders for the Canadian Forces (Can)Ch 7 Bankstown Municipal Council v Fripp (1919) 26 CLR 385 cited Commonwealth v Welsh (1947) 74 CLR 245 considered Attorney-General (NSW) v. Perpetual Trustee Company (1951-1952) 85 CLR 237 cited Attorney-General (NSW) v. Perpetual Trustee Company [1955] AC 457 cited Marks v. The Commonwealth (1964) 111 CLR 549 considered Buck v Bavone (1976) 135 CLR 110 considered R v Federal Court of Australia; ex parte Pilkington ACI (Operations) Pty Ltd (1978) 142 CLR 113 considered Coutts v. The Commonwealth (1984-1985) 157 CLR 91 cited Kioa v West (1985) 159 CLR 550 applied Attorney-General (NSW) v Quin(1990) 170 CLR 1 followed Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 followed Minister for Immigration and Multicultural Affairs v Eshetu (1999) 197 CLR 611 considered Martincevic v Commonwealth (2007) 164 FCR 45 cited Bowthorpe v. Minister for Defence (1986) 17 IR 192 cited Bromet v. Oddie ((2002) 78 ALD 320 cited R v The Army Council; ex parte Ravenscroft [1917] 2 KB 504 considered R v Army Board of the Defence Council; ex parte Anderson [1992] 1 QB 169 cited Armstrong v Canada (Attorney General) [2006] F.C.J. No. 625; 2006 FC 505 considered Armstrong v Canada (Attorney General)[2007] F.C.J. No. 546;2007 FCA 157 cited Leading Seaman D.M. Morphy v. Canada (Attorney General)[2008] F.C.J. No. 242; 2008 FC 190 cited Clode CM, The Military Forces of the Crown (1869) Clode CM, The Administration of Justice under Military and Martial Law, (2nd Ed 1874) TRISHA LEE MILLAR v BRIGADIER M D BORNHOLT (AS DELEGATE OF THE CHIEF OF ARMY) and MAJOR M WILKINSON (AS DELEGATE OF THE CHIEF OF ARMY)