Martincevic v Commonwealth of Australia

• Jurisdiction: Australia Federal only
• Judgment Date: 29 October 2007
• Neutral Citation: [2007] FCAFC 164
• Court: Full Federal Court (Australia)

FEDERAL COURT OF AUSTRALIA

Martincevic v Commonwealth of Australia [2007] FCAFC 164

ADMINISTRATIVE LAW – Termination of service in the Australian Defence Force – Judicial review of termination decision – Termination decision made without prior notice of refusal of extension of time to submit additional material in opposition – No breach of natural justice shown

ADMINISTRATIVE LAW – Judicial review of termination decision – Relevant consideration – Failure to consider an investigator’s report into soldier’s service with battalion – Failure to comply with Defence Instructions – Investigator’s report made after notice of proposed termination and before termination decision – Change in circumstances – Relevant consideration not so insignificant that could not have materially affected the termination decision

Administrative Decisions (Judicial Review) Act 1977 (Cth) ss 5, 6

Judiciary Act 1903 (Cth) s 39B

Federal Court of Australia Act 1976 (Cth) s 27

Defence Act 1903 (Cth)

Defence (Personnel) Regulations 2002 (Cth) reg 87

Federal Court Rules 1979 (Cth) O 52 r 37

Defence Instructions (Army) PERS 116-5

Defence Instructions (Army) PERS 124-29

CDJ v VAJ (1998) 197 CLR 172 cited

VUAD of 2003 v Minister for Immigration & Multicultural Affairs [2004] FCAFC 186 cited

Kioa v West (1985) 159 CLR 550 cited

Commonwealth v Welsh (1947) 74 CLR 245 cited

Marks v Commonwealth (1964) 111 CLR 549 cited

Coutts v Commonwealth (1985) 157 CLR 91 cited

Re Minister for Immigration and Multicultural Affairs; ex parte Lam (2003) 214 CLR 1 distinguished

Attorney-General (NSW) v Quin (1990) 170 CLR 1 distinguished

Minister for Immigration & Ethnic Affairs v Teoh (1994) 183 CLR 273 distinguished

Australian Broadcasting Tribunal v Bond (1996) 170 CLR 321 cited

Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24 cited

Bromet v Oddie [2002] FCA 1148 referred to

Bromet v Oddie [2003] FCAFC 213 referred to

ANTHONY MARTINCEVIC v COMMONWEALTH OF AUSTRALIA, CHIEF OF ARMY AND ANTHONY JOHN EGAN

QUD 108 OF 2007

FINN, KENNY & GREENWOOD JJ

29 OCTOBER 2007

melbourne (heard in brisbane)

IN THE FEDERAL COURT OF AUSTRALIA
QUEENSLAND DISTRICT REGISTRY	QUD 108 OF 2007

ON APPEAL FROM A SINGLE JUDGE OF THE FEDERAL COURT OF AUSTRALIA

BETWEEN:	ANTHONY MARTINCEVIC Appellant
AND:	COMMONWEALTH OF AUSTRALIA First Respondent CHIEF OF ARMY Second Respondent ANTHONY JOHN EGAN Third Respondent

JUDGES:	FINN, KENNY & GREENWOOD JJ
DATE OF ORDER:	29 OCTOBER 2007
WHERE MADE:	melbourne (heard in brisbane)

THE COURT ORDERS THAT:

1. The appellant have leave to amend his notice of appeal in the terms notified to the Court by his counsel on 4 September 2007.

2. The affidavit of Mr T W Fisher sworn on 10 August 2007 and the exhibits thereto be received in evidence.

3. The order of the primary judge made on 28 March 2007 dismissing the amended application for an order of review be set aside, and in lieu thereof the Court orders that:

a) The decision made by Lieutenant Colonel A J Egan on 8 August 2006 terminating the appellant’s service with the Australian Defence Force be set aside; and

b) The first and second respondents pay the costs of the applicant before the primary judge.

4. The first and second respondents pay the appellant’s costs of the appeal.

Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA
QUEENSLAND DISTRICT REGISTRY	QUD 108 OF 2007

ON APPEAL FROM A SINGLE JUDGE OF THE FEDERAL COURT OF AUSTRALIA

BETWEEN:	ANTHONY MARTINCEVIC Appellant
AND:	COMMONWEALTH OF AUSTRALIA First Respondent CHIEF OF ARMY Second Respondent ANTHONY JOHN EGAN Third Respondent

JUDGES:	FINN, KENNY & GREENWOOD JJ
DATE:	29 OCTOBER 2007
PLACE:	melbourne (heard in brisbane)

REASONS FOR JUDGMENT

THE COURT Introduction

1 The appellant, Anthony Martincevic, joined the Australian Defence Force (“ADF”) in 1994. He had been an enlisted member of the ADF for some twelve years, when, on 8 August 2006, Lieutenant Colonel A J Egan terminated his service. In so doing, Lieutenant Colonel Egan, who is the third respondent, acted as the delegate of the Chief of Army, who is the second respondent. On 26 October 2006, Lieutenant Colonel Egan further advised the appellant that the decision to terminate his service (‘the termination decision’) was to be effective from 17 November 2006. At the time of the termination decision, the appellant held the rank of Private with 7^th Combat Services Support Battalion (‘7 CSSB’) at the Gallipoli Barracks in Enoggera, Brisbane. He had been posted to 7 CSSB some two and a half years earlier, on 19 January 2004.

2 The appellant challenged the termination decision in this Court by way of a judicial review application under ss 5 and 6 of the Administrative Decisions (Judicial Review) Act 1977 (Cth) (‘Judicial Review Act’) and, in the alternative, pursuant to s 39B of the Judiciary Act 1903 (Cth) (‘Judiciary Act’). On 28 March 2007, a judge of the Court dismissed the application. The appellant appeals from his Honour’s judgment.

CIRCUMSTANCES RELEVANT TO THE TERMINATION DECISION

3 For present purposes, it suffices to say that the appellant’s problems with 7 CSSB began not long after his posting there and continued to the termination decision. He brought complaints of bullying and bastardisation in respect of his treatment by 7 CSSB. He was punished a number of times whilst with 7 CSSB for disciplinary infringements. He was also the subject of various unsuccessful attempts to discharge him on medical grounds prior to the termination decision in question here.

4 The appellant’s history with 7 CSSB included two occasions when he was admitted to hospital (2 Health Support Battalion) for depression, one in March 2005 and another in March 2006. On the first occasion, a specialist psychiatrist, Dr J N Chalk, said that the appellant’s mental health did not give rise to grounds for termination of his service with the ADF. After the second occasion, Dr Chalk kept the appellant under review, seeing him on about a fortnightly basis. About 6 April 2006, the ADF asked Dr Chalk to provide an opinion concerning the appellant’s fitness for duty and medical class. Dr Chalk gave oral advice that the appellant was suffering from “asituation crisis with avoidance personality traits”, and that he considered the appellant to be MEC 403. The classification MEC 403 indicates personnel who are considered not employable or deployable in the Army. Also about 6 April 2006, the appellant received a termination notice, although this is not the notice that preceded the termination decision in question in this proceeding.

5 In early April 2006, the appellant also made a complaint to the Chief of the Defence Force (‘CDF’) about his treatment with 7 CSSB. He alleged that he was the victim of bullying and bastardisation, which had had an adverse psychological effect on him. On 7 May 2006, Lieutenant Colonel Thomae was appointed to investigate the complaint. At the time the learned primary judge heard the matter and delivered judgment, the appellant did not know whether Lieutenant Colonel Thomae had concluded his investigation and made his report. I interpolate here that the appellant asked the Court to receive further evidence on the hearing of the appeal, which showed that Lieutenant Colonel Thomae had completed a report on 23 June 2006. This report is important for the disposition of this appeal.

6 On 11 April 2006, the appellant was notified that he had been classified MEC 403 and would be medically reviewed for discharge. Subsequently his Commanding Officer, Lieutenant Colonel Whitting, signed a “Workplace Disability Report” concerning his deployability. In this report, Lieutenant Colonel Whitting stated that he concurred:

… with the medical opinion regarding the necessity to medically downgrade PTE Martincevic. His continual threats of self-harm and very poor work performance render this member as unsuitable for continued service as a result of an inability to deploy him on operations for fear of his reactions under stress and his continual predilection for making threats of self-harm.

7 On 5 May 2006, the appellant wrote to the Medical Board in Canberra seeking an independent medical assessment and requesting that action on his MEC 403 classification be held in abeyance pending this assessment. Amongst other matters, he also advised that he had applied “for funding for an independent psychiatric assessment”.

8 On 16 May 2006, a Medical Employment Classification Review Board (‘MECRB’) undertook a review of the appellant’s reclassification to MEC 403. A medical consultant from the Joint Health Support Agency (“JHSA”) reported:

This is not a simple picture of a medical condition but a complex presentation with interacting factors. This soldier and his family have a high requirement for support which unfortunately is demonstrably incompatible with his military life. The member’s personality and behaviour have exacerbated his situation and have deteriorated in response to the stress.

The President of the MECRB found that:

Pte Martincevic has a condition that has not improved upon posting to BNE. He continually presents with claims of self-harm and thoughts of suicidal ideation. He is high maintenance and has demonstrated a personality that is incompatible with service employment and he is definitely not deployable. I determine P8S8 MEC 403. I find that there is sufficient evidence that the member is non-deployable in the long term and therefore I am bound to issue the member with a TN...