Editors --- "Judicial Review of a Dismissal From The Army" [2004] AdminRw 17; (2004) 56 Admin Review 66

• Judicial review of a dismissal from the Army

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Judicial review of a dismissal from the Army

In Stuart v Chief of Army^[1] the applicant used several different grounds in the Administrative Decisions (Judicial Review) Act 1977 to challenge both her dismissal and the rejection of her application for redress of grievance. The first decision maker issued a notice that would lead to dismissal, citing the applicant’s conduct record (including convictions for insubordinate behaviour and disobedience), a psychological report recommending discharge, and her overall service history. The applicant responded by claiming the dismissal notice was part of an ongoing campaign of harassment aimed at getting rid of her, including charges for ‘trivial’ or ‘insubstantial’ offences. The same decision maker then confirmed the dismissal, finding no substance to the claim of harassment.

The applicant then sought redress in relation to her pending dismissal. A second decision maker found there was no evidence of differential treatment and that, while some of the applicant’s individual offences were indeed minor, there was a continuing pattern of behaviour that showed she was not suitable for the armed forces.

The applicant claimed that both decisions were unreasonable because the decision makers failed to take steps to ascertain readily available and relevant facts relating to her allegations, that there was a failure to take relevant considerations into account, that irrelevant material was taken into account (particularly material she had not been able to comment on), that procedural fairness was lacking, and that, in the case of the second decision, there had not been a true exercise of discretion since the decision maker had adopted a report by another officer.

Justice Wilcox found that none of the grounds of review was made out. The allegations that the decision makers had not dealt with were not relevant to the question of whether the applicant was suitable for the armed forces. It was not necessary for the decision makers to follow up a freedom of information request that the applicant herself had failed to pursue. The allegedly irrelevant material concerned a matter the applicant herself had raised in her response to the first notice. Finally, it was not improper to adopt a recommendation so long as a decision maker ‘approaches his or her task with an open mind and a readiness to make whatever decision he or she thinks to be proper in the circumstances’.

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^[1] [2003] FCA 1291.