mdroth/huggingface-course_section-5_zst huggingface dataset:
Case: Marks v. The Commonwealth [1964] HCA 45 ; (1964) 111 CLR 549
Outcome: considered
a passage later cited with approval by Dawson J in Coutts v The Commonwealth [1985] HCA 40 ; (1984-1985) 157 CLR 91 , at 120, Windeyer J, observed in Marks v The Commonwealth [1964] HCA 45 ; (1964) 111 CLR 549 , at 564 that, in Australia, the position of the Crown in relation to the Defence Force depended not upon the prerogative but rather upon statute such that the inquiry was whether the relevant statute law modified or abrogated the common law position. Hence the significance of Sir Owen Dixon's observation as to the manner of construing the provisions now found in reg 87 of the Defence (Personnel) Regulations . This observation of Sir Owen Dixon has subsequently been cited with approval both in the High Court ( Marks v The Commonwealth [1964] HCA 45 ; (1964) 111 CLR 549 , at 573 per Windeyer J; Coutts v The Commonwealth [1985] HCA 40 ; (1984-1985) 157 CLR 91 , at 98 per Wilson J, Brennan J agreeing).and in this Court ( Bowthorpe v Minister for Defence (1986) 17 IR 192, at 195 per Neaves J; Bromet v Oddie ((2002) 78 ALD 320, at 331 per Finn J).
Case: Buck v Bavone [1976] HCA 24 ; (1976) 135 CLR 110
Outcome: considered
feature just mentioned does not mean that statutory powers the exercise of which is dependent upon the engendering or achievement of a state of "satisfaction" in relation to an event or fact are unexaminable on judicial review either at common law or under the Administrative Decisions (Judicial Review) Act , as was explained by Brennan CJ, Toohey, McHugh and Gummow JJ in a survey of pertinent authority in Minister for Immigration and Ethnic Affairs v Wu Shan Liang [1996] HCA 6 ; (1996) 185 CLR 259 at 275-277. Paragraph 5(1)(f) of the Administrative Decisions (Judicial Review) Act would permit the setting aside of BRIG Bornholt's decision in the event that it "involved an error of law". CPL Millar's referred redress complaint relevantly pressed a case that he should countermand the termination decision because he ought on the whole of the material not form an opinion in terms of reg 87(4) and 87(1)(e) of the Defence Personnel Regulations. In these circumstances and having regard to the nature of the regulation concerned an error of law might be found, as with judicial review under s 75(v) of the Constitution , in one or more of the ways described by Gibbs J in Buck v Bavone [1976] HCA 24 ; (1976) 135 CLR 110 at 118-119: In all such cases the authority must act in good faith; it cannot act merely arbitrarily or capriciously. Moreover, a person affected will obtain relief from the courts if he can show that the authority has misdirected itself in law or that it has failed to consider matters that it was required to consider or has taken irrelevant matters into account. Even if none of these things can be established, the courts will interfere if the decision reached by the authority appears so unreasonable that no reasonable authority could properly have arrived at it. However, where the matter of which the authority is required to be satisfied is a matter of opinion or policy or taste it may be very difficult to show that it has erred in one of these ways, or that its decision could not reasonably have been reached. [Emphasis added] In respect of the words emphasised in the passage quoted. Gummow J made the following observation in Minister for Immigration and Multicultural Affairs v Eshetu [1999] HCA 21 ; (1999) 197 CLR 611 at 654, [137] : This passage is consistent with the proposition that, where the criterion of which the authority is required to be satisfied turns upon factual matters upon which reasonable minds could reasonably differ, it will be very difficult to show that no reasonable decision-maker could have arrived at the decision in question. It may be otherwise if the evidence which establishes or denies, or, with other matters, goes to establish or to deny, that the necessary criterion has been met was all one way.
Case: R v Federal Court of Australia; ex parte Pilkington ACI (Operations) Pty Ltd [1978] HCA 60 ; (1978) 142 CLR 113
Outcome: considered
is a feature of reg 87(4) of the Defence (Personnel) Regulations , noted by the Full Court in Martincevic [2007] FCAFC 164 ; (2007) 164 FCR 45 at 54, [44] , that, once the Chief of Army (or a delegate) forms the opinion described in that sub-regulation, the service of the member concerned must be terminated. One aspect of that opinion is whether the decision-maker is "satisfied" in terms of reg 87(1)(e) that the member is not suited to be an enlisted member. These features of reg 87 mean that it is one of those provisions where "some fact or event [is] condition upon the existence of which the jurisdiction of a court or tribunal shall depend": R v Federal Court of Australia; ex parte Pilkington ACI (Operations) Pty Ltd [1978] HCA 60 ; (1978) 142 CLR 113 at 125. In this instance, the "fact or event" upon which the jurisdiction of the Chief of Army to terminate the service of a member depends is a state of subjective satisfaction, an opinion. In Bankstown Municipal Council v Fripp [1919] HCA 41 ; (1919) 26 CLR 385 at 403, Isaacs and Rich JJ observed of provisions of this type that they are employed with the object of preventing litigation on matters of jurisdictional fact.
Case: Coutts v. The Commonwealth [1985] HCA 40 ; (1984-1985) 157 CLR 91
Outcome: cited
relationship between the Crown and a soldier is not that of employer and employee: Attorney-General (NSW) v Perpetual Trustee Company [1955] AC 457, at 489-490; Attorney-General (NSW) v Perpetual Trustee Company [1952] HCA 2 ; (1951-1952) 85 CLR 237 , at 301-302 per Kitto J. At common law, the relationship between the Crown and a soldier may be terminated without notice and for any reason, no reason or a mistaken reason: The Commonwealth v Welsh [1947] HCA 14 ; (1947) 74 CLR 245 , at 257-258 per Latham CJ, McTiernan J agreeing; at 262 per Rich J, at 274 per Williams J; Coutts v The Commonwealth [1985] HCA 40 ; (1984-1985) 157 CLR 91 , at 105 per Brennan J. In a passage later cited with approval by Dawson J in Coutts v The Commonwealth [1985] HCA 40 ; (1984-1985) 157 CLR 91 , at 120, Windeyer J, observed in Marks v The Commonwealth [1964] HCA 45 ; (1964) 111 CLR 549 , at 564 that, in Australia, the position of the Crown in relation to the Defence Force depended not upon the prerogative but rather upon statute such that the inquiry was whether the relevant statute law modified or abrogated the common law position. Hence the significance of Sir Owen Dixon's observation as to the manner of construing the provisions now found in reg 87 of the Defence (Personnel) Regulations . This observation of Sir Owen Dixon has subsequently been cited with approval both in the High Court ( Marks v The Commonwealth [1964] HCA 45 ; (1964) 111 CLR 549 , at 573 per Windeyer J; Coutts v The Commonwealth [1985] HCA 40 ; (1984-1985) 157 CLR 91 , at 98 per Wilson J, Brennan J agreeing).and in this Court ( Bowthorpe v Minister for Defence (1986) 17 IR 192, at 195 per Neaves J; Bromet v Oddie ((2002) 78 ALD 320, at 331 per Finn J).
Case: Attorney-General (NSW) v Quin (1990) 170 CLR 1
Outcome: followed
following observation of Brennan J in Attorney-General (NSW) v Quin (1990) 170 CLR 1 at 35-6 is no less pertinent in this case than in other judicial review cases: The essential warrant for judicial intervention is the declaration and enforcing of the law affecting the extent and exercise of power: that is the characteristic duty of the judicature as the third branch of government ... [T]he duty extends to judicial review of administrative action alleged to go beyond the power conferred by statute or by the prerogative or alleged to be otherwise in disconformity with the law. The duty and the jurisdiction of the courts are expressed in the memorable words of Marshall CJ in Marbury v Madison : "It is, emphatically, the province and duty of the judicial department to say what the law is." The duty and jurisdiction of the court to review administrative action do not go beyond the declaration and enforcing of the law which determines the limits and governs the exercise of the repository's power. If, in so doing, the court avoids administrative injustice or error, so be it; but the court has no jurisdiction simply to cure administrative injustice or error. The merits of administrative action, to the extent that they can be distinguished from legality, are for the repository of the relevant power and, subject to political control, for the repository alone. (footnote reference omitted) Like other officers of the Commonwealth, the decisions of the Chief of Army and his delegates are amenable to judicial review either by the High Court by constitutional writ under s 75(v) of the Constitution or in such other courts as the Parliament invests with federal jurisdiction judicially to review their decisions, but only for error of law. There is nothing inherently illogical or unreasonable about the opinion as to CPL Millar's suitability to which BRIG Bornholt came. Twice before she had been considered for discharge on the basis of unsuitability but a choice had been made as between competing assessments not to discharge her. As a result of her performance on operational service two psychologists, MAJ Hadfield (provisionally) and CAPT Brown formed the opinion that CPL Millar was not suited to be a soldier. Assisted by their opinions and looking at the whole of her service history, BRIG Bornholt was entitled to form the opinion he did as to her unsuitability. In so doing, he was entitled to and self evidently did take into account the views of Mr Zemaitis. It is just that he chose not to accept the latter's views. BRIG Bornholt was also entitled to form a view, based on a comparison of the reports of the Army psychologists and Mr Zemaitis prepared for him by staff and adopted by him that one reason for the differing views may have been that Mr Zemaitis did not have access to CPL Millar's full psychological file.
Case: Minister for Immigration and Ethnic Affairs v Wu Shan Liang [1996] HCA 6 ; (1996) 185 CLR 259
Outcome: followed
feature just mentioned does not mean that statutory powers the exercise of which is dependent upon the engendering or achievement of a state of "satisfaction" in relation to an event or fact are unexaminable on judicial review either at common law or under the Administrative Decisions (Judicial Review) Act , as was explained by Brennan CJ, Toohey, McHugh and Gummow JJ in a survey of pertinent authority in Minister for Immigration and Ethnic Affairs v Wu Shan Liang [1996] HCA 6 ; (1996) 185 CLR 259 at 275-277. Paragraph 5(1)(f) of the Administrative Decisions (Judicial Review) Act would permit the setting aside of BRIG Bornholt's decision in the event that it "involved an error of law". CPL Millar's referred redress complaint relevantly pressed a case that he should countermand the termination decision because he ought on the whole of the material not form an opinion in terms of reg 87(4) and 87(1)(e) of the Defence Personnel Regulations. In these circumstances and having regard to the nature of the regulation concerned an error of law might be found, as with judicial review under s 75(v) of the Constitution , in one or more of the ways described by Gibbs J in Buck v Bavone [1976] HCA 24 ; (1976) 135 CLR 110 at 118-119: In all such cases the authority must act in good faith; it cannot act merely arbitrarily or capriciously. Moreover, a person affected will obtain relief from the courts if he can show that the authority has misdirected itself in law or that it has failed to consider matters that it was required to consider or has taken irrelevant matters into account. Even if none of these things can be established, the courts will interfere if the decision reached by the authority appears so unreasonable that no reasonable authority could properly have arrived at it. However, where the matter of which the authority is required to be satisfied is a matter of opinion or policy or taste it may be very difficult to show that it has erred in one of these ways, or that its decision could not reasonably have been reached. [Emphasis added] In respect of the words emphasised in the passage quoted. Gummow J made the following observation in Minister for Immigration and Multicultural Affairs v Eshetu [1999] HCA 21 ; (1999) 197 CLR 611 at 654, [137] : This passage is consistent with the proposition that, where the criterion of which the authority is required to be satisfied turns upon factual matters upon which reasonable minds could reasonably differ, it will be very difficult to show that no reasonable decision-maker could have arrived at the decision in question. It may be otherwise if the evidence which establishes or denies, or, with other matters, goes to establish or to deny, that the necessary criterion has been met was all one way.
Case: Minister for Immigration and Multicultural Affairs v Eshetu [1999] HCA 21 ; (1999) 197 CLR 611
Outcome: considered
feature just mentioned does not mean that statutory powers the exercise of which is dependent upon the engendering or achievement of a state of "satisfaction" in relation to an event or fact are unexaminable on judicial review either at common law or under the Administrative Decisions (Judicial Review) Act , as was explained by Brennan CJ, Toohey, McHugh and Gummow JJ in a survey of pertinent authority in Minister for Immigration and Ethnic Affairs v Wu Shan Liang [1996] HCA 6 ; (1996) 185 CLR 259 at 275-277. Paragraph 5(1)(f) of the Administrative Decisions (Judicial Review) Act would permit the setting aside of BRIG Bornholt's decision in the event that it "involved an error of law". CPL Millar's referred redress complaint relevantly pressed a case that he should countermand the termination decision because he ought on the whole of the material not form an opinion in terms of reg 87(4) and 87(1)(e) of the Defence Personnel Regulations. In these circumstances and having regard to the nature of the regulation concerned an error of law might be found, as with judicial review under s 75(v) of the Constitution , in one or more of the ways described by Gibbs J in Buck v Bavone [1976] HCA 24 ; (1976) 135 CLR 110 at 118-119: In all such cases the authority must act in good faith; it cannot act merely arbitrarily or capriciously. Moreover, a person affected will obtain relief from the courts if he can show that the authority has misdirected itself in law or that it has failed to consider matters that it was required to consider or has taken irrelevant matters into account. Even if none of these things can be established, the courts will interfere if the decision reached by the authority appears so unreasonable that no reasonable authority could properly have arrived at it. However, where the matter of which the authority is required to be satisfied is a matter of opinion or policy or taste it may be very difficult to show that it has erred in one of these ways, or that its decision could not reasonably have been reached. [Emphasis added] In respect of the words emphasised in the passage quoted. Gummow J made the following observation in Minister for Immigration and Multicultural Affairs v Eshetu [1999] HCA 21 ; (1999) 197 CLR 611 at 654, [137] : This passage is consistent with the proposition that, where the criterion of which the authority is required to be satisfied turns upon factual matters upon which reasonable minds could reasonably differ, it will be very difficult to show that no reasonable decision-maker could have arrived at the decision in question. It may be otherwise if the evidence which establishes or denies, or, with other matters, goes to establish or to deny, that the necessary criterion has been met was all one way.
Case: Martincevic v Commonwealth [2007] FCAFC 164 ; (2007) 164 FCR 45
Outcome: cited
completeness, I should note that, though reference is made by the Full Court in Martincevic v Commonwealth [2007] FCAFC 164 ; (2007) 164 FCR 45 to a redress of grievance investigation, it did not prove necessary in that case for the Full Court to explore the nature of the power able to be exercised by the Chief of Army upon the referral of a redress complaint. Rather, that case highlighted that the existence and outcome of a subsisting redress investigation before the making of a discharge decision may constitute (and in the circumstances of that case was held to constitute) a relevant consideration for the purposes of the making of that discharge decision. It does not follow from the lack of understanding of the nature of the power evident in the Commonwealth's submissions that CPL Millar must succeed in her judicial review application. To determine that it is first necessary to relate in more detail the factual background which gave rise to CPL Millar's initial redress complaint, its later referral and this judicial review application. It is also necessary to set out why BRIG Bornholt came to confirm the decision to terminate her service with the Army. BRIG Bornholt's reasons are comprehensive. It would do that officer less than justice not to set them out in full but so to do in the main body of the judgement would, in my opinion, detract from its continuity and ready comprehensibility. I therefore annex the full text of BRIG Bornholt's reasons and highlight pertinent features in the main body of the judgement. Before CPL Millar deployed to Iraq as part of Operation CATALYST 2 she undertook pre-deployment training at Randwick Barracks in Sydney from 27 June 2006 for a period of one month. During that time, CPL Millar maintained a good rapport with most, but not all, of the members attending this pre-deployment training course. It is a feature of reg 87(4) of the Defence (Personnel) Regulations , noted by the Full Court in Martincevic [2007] FCAFC 164 ; (2007) 164 FCR 45 at 54, [44] , that, once the Chief of Army (or a delegate) forms the opinion described in that sub-regulation, the service of the member concerned must be terminated. One aspect of that opinion is whether the decision-maker is "satisfied" in terms of reg 87(1)(e) that the member is not suited to be an enlisted member. These features of reg 87 mean that it is one of those provisions where "some fact or event [is] condition upon the existence of which the jurisdiction of a court or tribunal shall depend": R v Federal Court of Australia; ex parte Pilkington ACI (Operations) Pty Ltd [1978] HCA 60 ; (1978) 142 CLR 113 at 125. In this instance, the "fact or event" upon which the jurisdiction of the Chief of Army to terminate the service of a member depends is a state of subjective satisfaction, an opinion. In Bankstown Municipal Council v Fripp [1919] HCA 41 ; (1919) 26 CLR 385 at 403, Isaacs and Rich JJ observed of provisions of this type that they are employed with the object of preventing litigation on matters of jurisdictional fact.
Case: Bowthorpe v. Minister for Defence (1986) 17 IR 192
Outcome: cited
a passage later cited with approval by Dawson J in Coutts v The Commonwealth [1985] HCA 40 ; (1984-1985) 157 CLR 91 , at 120, Windeyer J, observed in Marks v The Commonwealth [1964] HCA 45 ; (1964) 111 CLR 549 , at 564 that, in Australia, the position of the Crown in relation to the Defence Force depended not upon the prerogative but rather upon statute such that the inquiry was whether the relevant statute law modified or abrogated the common law position. Hence the significance of Sir Owen Dixon's observation as to the manner of construing the provisions now found in reg 87 of the Defence (Personnel) Regulations . This observation of Sir Owen Dixon has subsequently been cited with approval both in the High Court ( Marks v The Commonwealth [1964] HCA 45 ; (1964) 111 CLR 549 , at 573 per Windeyer J; Coutts v The Commonwealth [1985] HCA 40 ; (1984-1985) 157 CLR 91 , at 98 per Wilson J, Brennan J agreeing).and in this Court ( Bowthorpe v Minister for Defence (1986) 17 IR 192, at 195 per Neaves J; Bromet v Oddie ((2002) 78 ALD 320, at 331 per Finn J).
Case: Bromet v. Oddie ((2002) 78 ALD 320
Outcome: cited
a passage later cited with approval by Dawson J in Coutts v The Commonwealth [1985] HCA 40 ; (1984-1985) 157 CLR 91 , at 120, Windeyer J, observed in Marks v The Commonwealth [1964] HCA 45 ; (1964) 111 CLR 549 , at 564 that, in Australia, the position of the Crown in relation to the Defence Force depended not upon the prerogative but rather upon statute such that the inquiry was whether the relevant statute law modified or abrogated the common law position. Hence the significance of Sir Owen Dixon's observation as to the manner of construing the provisions now found in reg 87 of the Defence (Personnel) Regulations . This observation of Sir Owen Dixon has subsequently been cited with approval both in the High Court ( Marks v The Commonwealth [1964] HCA 45 ; (1964) 111 CLR 549 , at 573 per Windeyer J; Coutts v The Commonwealth [1985] HCA 40 ; (1984-1985) 157 CLR 91 , at 98 per Wilson J, Brennan J agreeing).and in this Court ( Bowthorpe v Minister for Defence (1986) 17 IR 192, at 195 per Neaves J; Bromet v Oddie ((2002) 78 ALD 320, at 331 per Finn J).
Case: R v The Army Council; ex parte Ravenscroft [1917] 2 KB 504
Outcome: considered
is the plenary nature of the power exercisable on the merits by the Chief of Army or a delegate on a referred redress complaint that this Court might decide, as a matter of discretion rather than jurisdiction, summarily to dismiss the application of a member of the Army who has chosen to seek judicial review of a termination of service decision rather than seek redress under the Defence Regulations. That, I note, was one of the bases upon which a Queen's Bench Divisional Court refused to grant prerogative relief to an officer in such a position in R v The Army Council; ex parte Ravenscroft [1917] 2 KB 504. Insofar as there are also suggestions (at 508 per Viscount Reading CJ, at 512 per Ridley J and at 513 per Avory J) in that case that a court would not interfere with the dismissal of an officer because that was a matter of military discipline, the case is inconsistent with, for example, Welsh's Case , supra, here and not good law. The latter aspect of the case is perhaps explicable on the basis that, at the time, officers served at the pleasure of the Crown with the basis for their dismissal being the Prerogative rather than, as in Australia, statutory. That distinguishing feature does not though affect the authority of that case insofar as it recognises that the plenary nature of the right of redress may provide a basis for discretionary refusal of a prerogative writ.
Case: R v Army Board of the Defence Council; ex parte Anderson [1992] 1 QB 169
Outcome: cited
was common ground as between CPL Millar and the Respondents that BRIG Bornholt was obliged to afford her procedural fairness in deciding her referred redress complaint. As it happens, there is contemporary English intermediate appellate authority which would support such a conclusion in the particular context of the consideration of a referred redress of grievance complaint, in that case one arising from an allegation of racial discrimination by a member of the British Army: R v Army Board of the Defence Council; Ex parte Anderson [1992] 1 QB 169.