Administrative failings in a Termination Notice

Case Study

Preliminary

We will review the matter of Fulton v Chief of the Defence Force [2017] FCA 913 (Fulton). It is fitting to consider Fulton, given the Applicant, Flight Lieutenant Heath Maxwell Ryan Fulton (Applicant), has appeared in several Federal Court of Australia (Court) proceedings against the Australian Defence Force (ADF). Most recently, as Appellant in the matter of Fulton v Chief of the Defence Force [2022] FCA 1582, which is presently awaiting a judgment to be handed down from the Full Court of the Federal Court of Australia on appeal. The appeal will more likely than not result in the Appellant being successful.

Fulton is an interesting matter because it is not a judgment per se. It is, instead, an explanation of the judicial discretion (Judge’s reasoning) which is required to be exercised in granting judicial review. In this regard, Fulton was resolved in Court directed mediation, which left the only task to be completed being the granting of Consent Orders. It is in coming to a decision to grant the Consent Orders that we see His Honour Justice Logan’s decision making. 

Justice Logan is an old hand at matters involving the ADF. Presently, His Honor is the President of the Defence Force Discipline Appeals Tribunals and, while being the President, appears to use his position to provide substantial judgements which can be relied upon to address matters of ADF policy, which, in circumstances where a matter was resolved by mediation, may otherwise not be seen. In this regard, His Honour provides a substantial benefit to legal practitioners who want to ‘go to bat’ for the digs, as was the case in Igoe v Major General Michael Ryan AM in his capacity as a Reviewing Authority (No 2) [2020] FCA 1091, being another ‘Consent Order’ decision, despite it being 77 paragraphs long.

Background

The background of Fulton is somewhat straightforward: 

1. on 4 May 2017, Wing Commander WJ Perrett (WGCDR Perrett) determined the Applicant was ‘no in the interest of Defence to retain’ pursuant to the Defence Regulations 2016 (Cth)(Regulations), section 24(c) (Termination Decision); 

2. on 23 May 2017, the Applicant lodged a Redress of Grievance (ROG) against the Termination Decision; 

3. on 8 June 2017, Wing Commander Karen Beaden (WGCDR Beaden), determined the ROG ‘lacked merit’ and redress could not be granted; 

4. on 28 June 2017, the Applicant sought judicial review of two (2) decisions: 

1. the finding the ROG lacked merit, and no redress could be provided; and 

2. the Termination Decision. 

5. on 30 June 2017, District Registrar Baldwin convened a mediation, during which the ADF and the Applicant agreed to resolve the matter by Consent Orders, as opposed to progressing to a Hearing on 18 August 2017. 

Decision

Not mentioned above are the decisions which were sought to be reviewed by the Applicant. These were: 

1. The decision of the CDF (or his delegate WGCDR Beaden) within the ROG, which in turn addressed the Termination Decision, being a decision to involuntarily separate the Applicant under the Regulation; or alternatively

2. The Termination Decision. 

From the above, the Applicant is, in the most practical sense, ‘hedging his bets’ and trying to pursue two (2) courses of action at once. In this regard, the Applicant is addressing both the Termination Decision, which if quashed would result in his reinstatement to service, and the ROG, which is decided differently, may also impact the Termination Decision. Some may see this approach as ‘throwing mud at the wall and seeing what sticks’. However, it is a practical approach, this is particularly so when dealing with the ADF’s administrative systems, where an individual may suffer unsound, incorrect, or infected decision making at all levels without intervention.

The error in WGCDR Perret’s decision making which led to an incorrect decision, which the ADF agreed to in mediation as a procedural failing which infected the decision to separate the Applicant from service, and for which the ROG was based, is also found in Fulton at [5].

To the above point, it appears the Applicant’s service was subject to involuntary separation due to medical grounds. In this process, Dr Peel provided a medical report to WGCDR Perret. It appears the Applicant was provided the right to respond to the report, but not the material given to Dr Peel in producing the report. This may be, for example, medical evidence, results of PESA/BFAs etc. It appears the ADF has realised, only after the Applicant commenced legal proceedings in the Court there was a failure to provide procedural fairness. This is addressed in the matter of Coutts v Close [2014] FCA 19, which states: 

Subject to any relevant statutory modification or variation, it is well established that a person liable to be directly affected by an administrative decision to which the rules of procedural fairness apply must be given an opportunity of putting information or submissions to the decision-maker. For that right to have substance, the person affected must be given an opportunity of ascertaining the relevant issues, which requires the decision-maker to identify for the person affected any issue critical to the decision which is not apparent from the nature of that decision or the terms of the statute under which it is made. The obligation extends to informing the affected person of the nature and content of adverse material that is credible, relevant and significant obtained from sources other than the affected person, as well as of any adverse conclusion reached by the decision-maker in respect of which the affected person had no notice.  The affected person must be given an adequate opportunity to address such new material and/or any unexpected conclusions by further information and submission… Ultimately, the fundamental issue here is whether the applicant was given a reasonable opportunity to address issues relevant to his interests.

[emphasis added]

The above passage can be easily broken down into the following: 

1. where there are no considerations within a statute, a decision must still be in accordance with the rules of natural justice (including procedural fairness); 

2. procedural fairness must include the subject person being given an opportunity to provide information to the decision maker; 

3. procedural fairness requires the subject person to be informed of the content of the material which is damaging to them and a negative conclusion which is made about them; and

4. the subject person must be given time to respond to new material which is negative to them.

The above four (4) points are summed up in the final underlined passage – a person must be given an opportunity to respond to matters which are important to their interests. In Fulton, it appears the ADF has failed to comply with the rules of procedural fairness in respect of paragraph (3), as it relates to the requirement to inform a person of all negative or damaging conclusions which may be relied upon (being the Dr Peel report). This oversight led to the ADF agreeing (by consent) to the orders made by Justice Logan in Fulton. 

Notwithstanding the above, there are good lessons which can be drawn from Fulton, particularly concerning the power of the ROG and what action can be taken by a decision maker in a redress. However, to best understand this power, it is useful to understand the position taken by WGCDR Beaden, who dealt with the ROG. Relevantly, it appears the Applicant requested the information provided to Dr Peel and was ultimately told the information request ‘lacked merit’. Thereafter, WGCDR Beaden referred the Applicant’s ROG to the Inspector-General: ADF (IG:ADF) Justice Logan addresses this in Fulton at [11], which states: 

One of the duties cast upon WGCDR Breaden, as FLTLT Fulton’s commanding officer dealing with his grievance, was, as a matter of discretionary value judgement, to “take action to redress the member’s grievance”: reg 42(b), Defence Regulation. In advising FLTLT Fulton that she had no power to reverse the termination decision, WGCDR Breaden acted on a view that the requirement found in reg 42(b) to “take action” was not in itself a source of power to reverse the termination decision if so persuaded on the merits, if she did not otherwise possess that authority. However, with respect, quite why in light of this view, she thought fit additionally to advise FLTLT Fulton that she would consider his case further upon the receipt of the Inspector-General’s report is elusive.

[emphasis added]

Justice Logan discusses the power provided to WGCDR Beaden within her position as Commanding Officer with carriage of a ROG. He considers the thought process which likely impacted WGCDR Beader and determines she was likely of the view her power to ‘take action’ likely did not include reversing the Termination Decision. For later reasons, is appears this way of thinking is incorrect. 

Notwithstanding the above, Justice Logan also politely raises his concern at WGCDR Beaden’s conduct in referring the ROG to the IG:ADF and indicated she would further consider the Applicant’s ROG upon review of receipt of the IG:ADF’s report. While Justice Logan refers to the conduct of WGCDR Beaden in this process as ‘elusive’, it is better framed that, as a matter of logic, WGCDR Beaden’s position is nonsense. This is because between the ROG and the IG:ADF report being received the Applicant’s service would be terminated. Following this, the Applicant would have no right of appeal left to him within the ADF and WGCDR Beaden would have no obligation (or legislative power) to unilaterally re-consider the ROG’s contents and determine the Termination Decision ought to be quashed. In practical terms, WGCDR Beaden didn’t really know what her correspondence said, but she clicked send anyway.

Justice Logan addresses the IG:ADF’s function in Fulton at [13], which states: 

Equally though, when one examines the actions which the Inspector-General may, under reg 45 of the Defence Regulation consequentially take upon the referral of a redress of grievance application, they are confined to the making of findings and related recommendations to, as thought appropriate in a particular case, the Minister, the Secretary, the CDF, a service chief or some other person. Inferentially, it would then fall to the person to whom the recommendation is made to decide whether to exercise, in light of the Inspector-General’s findings and recommendation, a plenary power to, for example, countermand a termination decision…

[emphasis added]

Within the above paragraph, Justice Logan highlights the IG:ADF’s function is limited to providing recommendations. The IG:ADF has no power whatsoever to impose decisions or to overturn decisions which have been made. In this regard, if the IG:ADF made a recommendation the Applicant’s service ought not to be separated, the recommendation would be provided to WGCDR Beaden, who, by her own hand, has indicated she lacks the power to change the decision reached within the Termination Decision. In this regard, WGCDR Beaden’s comment she will further review the ROG upon advice or recommendation from the IG:ADF appears further peculiar given her position she had no authority or power to take any action regarding the Termination Decision. While Justice Logan may not wish to reach a concluded view regarding WGCDR Beaden’s knowledge of her position, it appears the sentiments within the above paragraph appear accurate. 

In respect of what power WGCDR Beaden did possess, the matter of Millar v Bornholt [2009] 177 FCR 67 at [24] – [35], states: 

34. … Where it lies within the power of the Chief of Army or subordinate officer to make a decision or to issue an order that has given rise to the complaint, it lies within the power of the Chief of Army or a delegate upon the investigation of a referred redress complaint to vacate that earlier decision or to countermand that order.  The power is truly plenary.

35. Though the occasion for the exercise in this case of the power to review on referral a referred redress of grievance complaint was the exercise of a power to terminate a member’s Army service, the ability to seek redress and later referral extends over the entirety of relationships between superior and subordinate within the Army.  That has the necessary consequence that underlying circumstances and the nature of the decision under review will necessarily influence the manner and formality of the exercise of power in respect of a referred redress complaint.  What does not change is the nature of the review power.  The Chief of Army or a delegate considering the redress complaint on referral is fully empowered to consider afresh and on the merits the subject matter of the complaint, to reach his or her own decision in respect of it and to modify or countermand any decision which has given rise to a complaint which is upheld.

[emphasis added]

In the above paragraph, the word ‘plenary’ is taken to mean ‘full; entire; complete; and unabridged’. Given this, a practical reading of the above paragraph leads to the conclusion a person who has delegated authority to receive and consider a ROG may take any action (they are fully empowered) to consider the entirety of the matter which is the subject of the complaint and to reach their own conclusion about matters, and following this, to modify the decision. In this regard, a person who receives a ROG can overturn an involuntary separation decision. 

Previously, there was a proposition in law that a decision maker’s mind, as it relates to their satisfaction of matters, was beyond the Court’s consideration. This proposition appears to remain intact. However, the road in which a decision maker takes to reach their destination and the various markers which they consider along the way appear to very much be open to review and reassessment, either through a ROG or through the Court. 

What’s the key learning?

• A Commanding Officer who has delegation to receive a ROG is fully empowered to overturn a decision to separate a member from the ADF involuntarily; 
• The majority of decisions in the ADF can be subject to judicial review through the Court, or reassessed through a ROG;
• Documents which a decision maker will rely upon in making a decision are important; request them and do something if they are withheld; 
• If someone tells you something is ‘without merit’, they may not quite know what those words mean; 
• Sometimes, the ADF can get it wrong, and when they do, don’t wait for the IG:ADF to assist, particularly if the decision maker doesn’t know what they’re empowered to do in the first instance; and
• Sometimes it takes filing an Application in the Federal Court of Australia for the ADF to admit it is wrong, which becomes somewhat funny when the Judges uses this an opportunity to reinforce an authoritative decision which can be easily referenced.