Fulton v Chief of the Defence Force [2022] FCA 1582

Federal Court of Australia

Fulton v Chief of the Defence Force [2022] FCA 1582 File number(s): QUD 21 of 2021

Judgment of: PERRY J

Date of judgment: 22 December 2022

Catchwords: DEFENCE AND WAR – application for review of decision by delegate of Chief of the Defence Force –termination of service with Defence Force pursuant to reg 24(1)(c), Defence Regulation 2016 – whether termination decision vitiated by breach of procedural fairness because applicant given insufficient time to respond to termination notice – where failure to take into account applicant's service, personal performance reports, and mental health alleged to constitute failure to have regard to relevant considerations – whether error in taking into account applicant's traffic offence despite no conviction being recorded – whether delegate impermissibly limited the material to which he was obliged to consider – where no breach of procedural fairness or other error of law established – application dismissed

Legislation: Administrative Decisions (Judicial Review) Act 1977 (Cth) ss 5, 16 Crimes Act 1914 (Cth) ss 85ZL, 85ZM, 85ZV, 85ZW, 85ZZH Defence Force Discipline Act 1982 (Cth) s 153 Federal Court of Australia Act 1976 (Cth) ss 37M, 37N Crimes Regulations 2019 (Cth) reg 21, Sch 2 Defence Regulation 2016 (Cth) regs 6, 24, 28, 30 Penalties and Sentences Act 1992 (Qld) s 12

Cases cited: Allesch v Maunz [2000] HCA 40; (2000) 203 CLR 172 Aon Risk Services Australia Pty Ltd v Australian National University (2009) 239 CLR 175; [2009] HCA 27 Chief of Defence Force v Gaynor [2017] FCAFC 41; (2017) 246 FCR 298 Coutts v Close, Assistant Commissioner of Australian Federal Police [2014] FCA 19 Gaynor v Chief of the Defence Force (No 3) [2015] FCA 1370; (2015) 237 FCR 188 Graham v Deputy Chief of Air Force [2004] FCA 1377 Hartwig v Hack [2007] FCA 1039 Luck v Chief Executive Officer of Centrelink [2015] FCAFC 75 Martincevic v Commonwealth [2007] FCAFC 164; (2007) 164 FCR 45 Minister for Aboriginal Affairs v Peko-Wallsend Ltd [1986] HCA 40; (1986) 162 CLR 24 Minister for Immigration and Citizenship v SZIAI [2009] HCA 39; (2009) 111 ALD 15 Minister for Immigration and Ethnic Affairs v Teoh [1995] HCA 20; (1995) 183 CLR 273 Minister for Immigration and Multicultural Affairs v Yusuf [2001] HCA 30; (2001) 206 CLR 323 Minister for Immigration and Multicultural and Indigenous Affairs v Huynh [2004] FCAFC 256; (2004) 139 FCR 505 Ozepulse Pty Ltd v Minister for Agriculture Fisheries and Forestry [2007] FCA 1601; (2007) 163 FCR 562 Plaintiff M1/2021 v Minister for Home Affairs [2022] HCA 17; (2022) 96 ALJR 497 Plaintiff M61/2010 v Commonwealth of Australia [2010] HCA 41; (2010) 243 CLR 319 Re Minister for Immigration and Multicultural and Indigenous Affairs; ex parte Lam [2003] HCA 6; (2003) 214 CLR 1 Shand v Chief of Army [1998] FCA 265 SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs [2006] HCA 63; (2006) 228 CLR 152 Tickner v Chapman (1995) 57 FCR 452; [1995] FCA 987