FEDERAL COURT OF AUSTRALIA

McAuley v Defence Honours and Awards Appeals Tribunal [2016] FCA 719

ORDERS

THE COURT ORDERS THAT:

1.    The application be dismissed with costs.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

TRACEY J:

INTRODUCTION

1    The applicant, Captain William McAuley, has been a member of the Army Reserve since 1981. In the intervening years he has rendered service both in Australia and overseas. The quality of his service was acknowledged in annual reports prepared by his commanders. One form of recognition of military service is the award of medals. In 2002 Captain McAuley considered that he had satisfied the criteria for eligibility for the award of the Reserve Force Decoration (“RFD”). He made an application for the award through his unit orderly room. He received the medal only to be advised, some two years later, that he should not have received it because he had not rendered sufficient efficient service. He was asked to return the medal. There matters rested for some seven years. In 2011 he sought a review of his eligibility. When he failed to elicit a favourable decision he sought further review in the Defence Honours and Awards Appeals Tribunal (“the Tribunal”).

2    When the Tribunal affirmed the adverse decision Captain McAuley sought judicial review of the decision in this Court under the Administrative Decisions (Judicial Review) Act 1977 (Cth) (“the ADJR Act”).

3    In order to succeed in this Court it was necessary for Captain McAuley to establish that the Tribunal had committed one or more of the errors, identified in s 5 of the ADJR Act, when reaching its decision. The Court cannot intervene simply because it might have reached a different conclusion on the merits from that reached by the Tribunal.

4    For the reasons which follow the Court has concluded that Captain McAuley has failed to establish any reviewable error on the part of the Tribunal. As a result his application must be dismissed.

FACTUAL BACKGROUND

5    The parties filed an agreed statement of facts and relevant annexures. The following account is drawn from the agreed material.

6    The applicant is a Captain in the Australian Army Reserve. He was appointed as a Captain in the Royal Australian Engineers (Supplementary Reserve), Active Citizen Military Forces on 3 December 1981.

7    On 3 January 2002 Captain McAuley made an application for the RFD. The Directorate of Honours and Awards in the Department of Defence (“the Directorate”) sent the RFD medal to his home address.

8    On 4 February 2004, the Directorate informed him that the RFD had been issued in error and that its records indicated that he had not completed the necessary 15 years of efficient service. He was asked to return the award.

9    On 23 November 2011, Captain McAuley made an application to the Tribunal for review of his entitlement to the RFD medal. The Tribunal conducted a hearing and, on 14 October 2013, affirmed the decision of the Directorate finding him to be ineligible to receive the RFD.

10    On 30 July 2014, this Court ordered, by consent, that the decision of the previously constituted Tribunal be set aside and the matter be remitted for reconsideration according to law.

11    On 10 June 2015, and in anticipation of the second hearing, Captain McAuley’s solicitor wrote to the Tribunal requesting that a summons to attend be issued to each of four witnesses, one of whom was Corporal Westie, the orderly room corporal in Captain McAuley’s unit at the time he made his application for the RFD. No reasons were given for the requests.

12    On 15 June 2015, the Tribunal declined the requests because he had failed to provide reasons for making them.

13    On 22 June 2015 the Tribunal wrote to Corporal Westie stating that it “would appreciate [her] attendance at [the] hearing to give evidence”. The Tribunal advised her that she was not obliged to attend the hearing.

14    On 26 June 2015, Corporal Westie sent an email to the Tribunal stating that she did not wish to attend the forthcoming hearing. She said “[she did] not wish to see [the applicant] as this was and is now again harassment.”

15    The hearing was held on 7 August 2015. At the commencement Captain McAuley’s solicitor complained about the Tribunal’s failure to subpoena two of the witnesses named in the 10 June 2015 letter. One of these was Corporal Westie. The Tribunal proceeded to hear the application. Further material was filed following the hearing.

16    On 7 September 2015, the Tribunal invited final comments by 14 September 2015. Captain McAuley provided no further material in response to this invitation.

17    On 15 October 2015, the Tribunal decided to affirm the decision that Captain McAuley was ineligible for the award of the RFD, but found that he was eligible for the award of the Defence Long Service Medal.

18    The Tribunal provided lengthy reasons for its decision. It set out the legislative criteria for the award of the RFD and examined the documentary records held by the Department of Defence relating to Captain McAuley’s service. It also considered the evidence given by him concerning his eligibility for the award. Having done so the Tribunal concluded that the evidence before it did not establish Captain McAuley’s entitlement to the RFD.

19    The Tribunal provided the following reasons in relation to its decision not to compel the attendance of witnesses requested by Captain McAuley:

“211.     The Tribunal noted Mr Cahill’s [Captain McAuley’s then solicitor] ongoing demands that the Tribunal must summons witnesses to allow his client to be accorded natural justice and to allow for cross examination. The Tribunal has the power to summons but at no stage did Mr Cahill provide satisfactory justification to the Tribunal to compel witnesses. The Tribunal noted that in the June-July 2015 period, Mr Cahill wrote several letters to the Tribunal and in these documents continually adjusted who he was demanding to have summonsed with the only consistent witness that he wished to compel being Corporal Westie.

212.    The Tribunal was satisfied that the evidence provided by witnesses in the papers was sufficient to deal with the matter and that the witnesses had either provided a satisfactory account of their actions or were not material to the outcome. Similarly, the Tribunal did not consider that Corporal Westie’s involvement in the assessment was relevant – even if she had checked the application and determined it was correct, she was not the delegate to make the decision and, for whatever reason, a re-assessment of Captain McAuley’s eligibility by the Directorate had subsequently found him to be not entitled and that he had been incorrectly awarded the medal.

213.     Even if this reassessment had been instigated by Lieutenant Colonel Bell, as the Applicant asserts, the Tribunal considered that the issue remained that Captain McAuley was unable to provide evidence to support his claim of having met his training obligations. The Tribunal considered that even if Captain McAuley’s Regimental files at 22 Construction Regiment had been interfered with after 2002, this would not have affected his service records (including his pay records) which were held in Canberra and were the basis of his eligibility.

214.     The Tribunal therefore considered that it was not necessary to compel witnesses as the evidence provided in the material before the Tribunal and Captain McAuley’s own evidence regarding remunerated attendance was sufficient to allow for the correct and preferable decision to be made.”

20    The Tribunal also made the following comments about allegations of harassment made by Corporal Westie:

“215.     The Tribunal noted that Corporal Westie in her advice by e-mail on 26 June 2015 stated that:

‘… I do not wish to see Mr McAuley as this was and is now again harassment… he contacted me at home repeatedly to sign a Statutory Declaration back in 2011, early 2012 which I refused to do…’

216.     The Tribunal considered that this statement by a serving Junior Non-Commissioned Officer in relation to her dealings with a serving Officer previously of the same unit may constitute a reportable allegation of unacceptable behaviour. It is open to Corporal Westie to pursue this matter through her chain of command should she consider it necessary.”

GROUNDS OF REVIEW

21    Captain McAuley did not complain about the Tribunal’s construction and application of the legislative provisions governing the award of the RFD. His application to this Court was founded on allegations of procedural irregularities on the part of the Tribunal.

22    He advanced the following grounds of review in respect of two of the procedural decisions, and a “finding” made by the Tribunal, in the course of considering and determining his application:

    The decision by the Tribunal to correspond with Corporal Westie, prior to the hearing of the matter, without prior notification to him or his consent, after having refused his request to issue a witness summons. This decision was said to be beyond power and to constitute a breach of the rules of natural justice.

    The Tribunal’s “finding” that it considered that a statement made by Corporal Westie “may constitute a reportable allegation of unacceptable behaviour” against him was made in excess of its functions and review jurisdiction. It should have but did not first put potential adverse findings to him for his consideration and response and should have required Corporal Westie, by summons or otherwise, to attend a hearing for cross-examination as to those matters by him or his representative. It was further alleged that the making of the “finding” was an improper exercise of the Tribunal’s powers and a breach of the rules of natural justice.

    The Tribunal’s further decision, made after the hearing of 7 August 2015, not to issue a summons to Corporal Westie, despite both the further oral request made by him during the hearing and the potential for the making of an adverse finding arising from the material provided to the Tribunal by Corporal Westie. These failures were alleged to have denied him procedural fairness and to be so unreasonable that no reasonable person could have so exercised the power.

23    Captain McAuley sought orders setting aside the Tribunal’s decision and referring the question of his eligibility for the award for further consideration by the Tribunal with directions that Corporal Westie be summonsed to appear and that he be permitted to examine her.

24    He also sought a declaration that the Tribunal did not have the power under Part VIIIC of the Defence Act 1903 (Cth) (“the Defence Act”) to make a finding that material before it “may constitute a reportable allegation of unacceptable behaviour” against him.

THE LEGISLATION

25    In 2011, a new Part VIIIC was inserted in the Defence Act. It was entitled “Defence Honours and Awards Appeals Tribunal”. The Tribunal was thereby established: see s 110U. The functions of the Tribunal are identified in s 110UA. Relevantly, the Tribunal’s functions include the review of “reviewable decisions”. Such decisions include a refusal to recommend a person for a “defence award”: see ss 110T and 110V(1)(a)(ii). The RFD is such an award: see Defence Force Regulations 1952 (Cth), regs 93A and 93C; Item 29, Part 2 of Schedule 3. Review may be sought by a person who has applied unsuccessfully for an award: see s 110VA. If an application is made for review of a reviewable decision the Tribunal is required to review the decision and either affirm the decision or set it aside. If the decision is set aside the Tribunal may either substitute a new decision or refer the matter to a person determined by the Tribunal for reconsideration in accordance with any directions given by the Tribunal: see s 110VB(2). Any new decision, made by the Tribunal, was to be what the Tribunal regarded as the “correct and preferable” decision. Any determinations made by the Tribunal must be in writing and it is required to provide reasons for its decisions: see s 110XE(1) and (2).

26    The Tribunal is constituted by a Chair and other members. The Chair is the executive officer of the Tribunal: see ss 110X and 110XA. The Chair is empowered, by s 110XH, to make procedural rules in relation to the practice and procedure to be followed by the Tribunal. Such rules are to be made by legislative instrument: see s 110XH(1). The matters with which procedural rules may deal include “how evidence is to be given, or submissions are to be made, to the Tribunal” and “how people are to be summoned to attend before the Tribunal”: see s 110XH(2)(g) and (h). Pursuant to this power the Chair made the Defence Honours and Awards Appeals Tribunal Procedural Rules 2011 (Cth) (“the Rules”). Relevantly, r 22 provides that:

“(1)    Subject to the Act and the Regulations, the procedure of the Tribunal is at the discretion of the Tribunal.

(2)    The Tribunal must conduct its proceedings with as little formality and technicality, and with as much expedition as the requirements of the Act and the Regulations and a proper consideration of the matters before the Tribunal permit.

(3)     The Tribunal is not bound by the rules of evidence but may inform itself on any matter in any way it considers appropriate.”

27    Section 110XC provides that the Tribunal “may summon a person to attend before [it] to give evidence or produce documents for the purpose of a Tribunal proceeding.” It is an offence for a person to fail to comply with such a summons: see s 110XC(2).

PROCEDURAL FAIRNESS

28    It was not disputed that the Tribunal was bound to accord procedural fairness to Captain McAuley when dealing with his application. Each of the grounds alleges that the Tribunal in one way or another breached this obligation. It will, therefore, be convenient to deal first with the relevant principles and then to consider each complaint of denial of procedural fairness.

29    Procedural fairness is intended to ensure that those who may be adversely affected by administrative decisions are not prejudiced by “practical injustice”: see Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte Lam (2003) 214 CLR 1 at 14 (Gleeson CJ). The guiding principle is one of fairness: see VHAP of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 80 ALD 559 at 566 (Allsop J, with whom Gyles and Conti JJ agreed on this point).

30    The parties both accepted that the application of the principle depended on the particular facts of any case. This was emphasised by Weinberg J in Applicants M1015/2003 v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 1309 at [54]:

“Whether or not there has been a denial of procedural fairness in any given case is largely dependent upon the particular facts of that case. Where the decision-maker has relied upon adverse information, without providing any opportunity to comment upon it, the question whether the decision is vitiated will depend upon a range of factors. These include the importance of the material to the ultimate decision, as well as the nature of that material. Some information is purely factual and entirely incontrovertible. There may simply be no answer to it. Other information may involve a combination of fact and opinion, and may be contentious. In relation to information of that kind, the denial of the opportunity to comment upon it may give rise to procedural fairness. Moreover, some matters are so blindingly obvious as not to require any comment or submission. In such cases, the fact that there has been no opportunity to comment will be of little or no significance.”

31    The basic elements of procedural fairness were outlined by the Full Court (Northrop, Miles and French JJ) in Commissioner for Australian Capital Territory Revenue v Alphaone Pty Ltd (1994) 49 FCR 576 at 591-2:

“Where the exercise of a statutory power attracts the requirement for procedural fairness, a person likely to be affected by the decision is entitled to put information and submissions to the decision-maker in support of an outcome that supports his or her interests. That entitlement extends to the right to rebut or qualify by further information, and comment by way of submission, upon adverse material from other sources which is put before the decision-maker. It also extends to require the decision-maker to identify to the person affected any issue critical to the decision which is not apparent from its nature or the terms of the statute under which it is made. The decision-maker is required to advise of any adverse conclusion which has been arrived at which would not obviously be open on the known material. Subject to these qualifications however, a decision-maker is not obliged to expose his or her mental processes or provisional views to comment before making the decision in question.”

32    The determination of procedures, required to be adopted in a particular case, in order to accord fairness to parties will also be influenced by the functions and powers of the tribunal concerned: see Minister for Immigration and Citizenship v Li (2013) 249 CLR 332 at 341-347 (French CJ); 355-362 (Hayne, Kiefel and Bell JJ); Weinstein v Medical Practitioners Board of Victoria (2008) 21 VR 29 at 34-39 (Maxwell P with whom Neave and Weinberg JJA agreed).

33    Captain McAuley pointed to a number of the provisions of Part VIIIC of the Defence Act and subordinate legislation made under it, which, he contended, governed and constrained the manner in which the Tribunal performed its functions. In doing so he generated some debate about the characterisation of the Tribunal: was it to be treated as being adversarial or inquisitorial in nature? It was accepted on both sides that the Tribunal did not fall neatly in one category rather than another. It was more of a hybrid: cf Matthew Groves, “The Duty to Inquire in Tribunal Proceedings” (2011) 33 Sydney Law Review 177 at 181. Proceedings in the Tribunal are adversarial to the extent that both an applicant and the Department of Defence can be represented at hearings (as occurred in this case) and were able to place material before the Tribunal and to make submissions. Legal representation was permissible. On the other hand, the Rules contained many provisions which were incompatible with an adversarial process. When an application was made to the Tribunal the Secretary of the Department was required to give the Tribunal a report on the reviewable decision (r 7(3)). The report was required to include findings on material questions of fact and the reasons for the impugned decision and a copy of any document on which the decision was based (r 7(4)). This material was to be provided to the applicant (r 8(1)). The Tribunal could direct the Secretary to search for and provide additional documents (r 9). The Tribunal was empowered to conduct its own research into the reviewable decision (r 6(1)). It was also empowered to inform itself on any matter in any way it considered appropriate (r 22(3)). It could invite a third party to make oral submissions at the hearing (r 13(1)). Subject to any legislative constraints the Tribunal’s procedure was to be determined in its discretion (r 22(1)). Formality was to be avoided (r 22(2)). The Tribunal was not bound by the rules of evidence: (r 22(3)).

34    The Tribunal’s relevant function was to “review” decisions. This required it to consider the evidence and arguments placed before it and any other relevant information properly obtained by it. It did not, however, so it was said, have broad investigatory powers. It was, for example, submitted that r 13(1) contained an implied limitation on the broader power conferred by r 22(3). This was because r 13(1) contemplated the making of submissions by the invited person rather than the giving of evidence. The Tribunal could not, as a result, inform itself by taking evidence from third parties.

35    Rule 22 is in materially the same terms as s 33 of the Administrative Appeals Tribunal Act 1975 (Cth). Equivalent provisions appear in the legislation governing the operation of many other statutory tribunals. Such provisions confer broad discretionary powers on tribunals as to how they conduct their proceedings and how they obtain information which they consider to be necessary in order to perform their statutory duties. Ordinarily, they will rely on the parties or the persons appearing before them to provide relevant information. Provisions such as r 22 empower a tribunal, if so minded, to obtain further evidence. That evidence cannot, however, be brought to account without first affording a person adversely affected by it procedural fairness. There is nothing in the legislation or the Rules which regulates the Tribunal which compels a different approach.

The Invitation to Corporal Westie

36    Captain McAuley did not suggest that Corporal Westie would not be an appropriate witness. Indeed, he had asked the Tribunal to issue a summons requiring her attendance. That application was refused because Captain McAuley had, despite being requested to do so, failed to explain to the Tribunal why Corporal Westie should be required to attend. It is clear, however, that the Tribunal itself considered that Corporal Westie may have been able to give some relevant evidence relating to the processing of Captain McAuley’s original application. For this reason it invited her to appear to give evidence. The invitation was supportable under either or both of rr 13(1) and 22(3). Corporal Westie declined the invitation. She did so in an e-mail to which she attached such documents as she had in her possession. The Tribunal did not insist on her attending. Corporal Westie supplied the documentary material voluntarily; it had not been sought by the Tribunal.

37    The email and the attachments provided an account of Corporal Westie’s involvement in dealing with Captain McAuley’s application. She had an imperfect recollection of events which had occurred over a decade earlier. She had searched for and examined such documentary records as had been retained by the unit. Having examined them she was unable to find records which supported Captain McAuley’s claim to have rendered efficient service for the required period. She had not certified that he had qualified for the award of the RFD. She had sent the application to the Directorate whose responsibility it was to assess Captain McAuley’s eligibility and, if satisfied, make a recommendation to the Governor-General that he be granted the award.

38    Corporal Westie’s email and the attached documents were provided to Captain McAuley prior to the Tribunal’s hearing on 7 August 2015. He had the opportunity, at the hearing, to respond to any of the material provided by Corporal Westie. Although he complained to the Tribunal about its failure to require Corporal Westie’s attendance, he did not identify any factual issues which he would have wished to question her about. He went no further than to suggest that Corporal Westie might be able to “clear up” some “gaps” in the records maintained by the unit. He did not suggest that Corporal Westie had withheld any material information or that her recollections were faulty.

39    It is to be borne in mind that Corporal Westie was not the person who was required to assess Captain McAuley’s application and form a judgment as to his entitlement to the award. Any questioning of her about whether or not she had satisfied herself as to his entitlement before forwarding the application to the Directorate would not, therefore, have assisted Captain McAuley’s case in the Tribunal. So much seems to have been accepted by Captain McAuley’s legal representative at the hearing before the Tribunal. At one point he submitted that Corporal Westie had made an assessment that Captain McAuley was qualified to receive the RFD. The Departmental representative intervened and said:

“I mean I would say that you’re talking about Corporal Westie making an assessment. At the end of the day, we are still the ones who need to make that final assessment to determine the entitlement. So whilst, yes, she will have the service records, we still have to go through that process ourselves.”

Captain McAuley’s representative responded: “That’s fine. That’s agreed.”

40    The Tribunal’s invitation to Corporal Westie and its failure to require her attendance did not give rise to any practical injustice. Corporal Westie’s capacity to give relevant evidence was limited and, to the extent (if any) her email and the attachments to it could be seen to contain material prejudicial to Captain McAuley’s interests, he was provided with a fair opportunity of dealing with that material.

41    This ground has not been made out.

The “Reportable Allegation” Finding

42    This ground arises out of the Tribunal’s observations in paragraphs [215] and [216] of its reasons. Those paragraphs are set out above at [20]. The Tribunal drew attention to some complaints about the conduct of Captain McAuley in 2011 and 2012 which Corporal Westie regarded as harassment. The complaints had been made in her email to the Tribunal in response to its invitation to her to attend the hearing. She saw the Tribunal’s invitation to her as another act of harassment and said that she did not wish to see Captain McAuley. The Tribunal then made the gratuitous comments that Captain McAuley’s conduct might constitute “a reportable allegation of unacceptable behaviour” and that it was open to Corporal Westie to pursue the matter further through her chain of command. The Tribunal did not foreshadow the making of such comments with Captain McAuley.

43    The comments should not have been made. They carried the imprimatur of the Tribunal. They assume and appear to accept the accuracy of Corporal Westie’s complaint. The catalyst for the complaint would seem to have been the Tribunal’s invitation to her to attend the hearing. This she regarded as further harassment although it was the Tribunal and not Captain McAuley who had extended the invitation. Captain McAuley had been made aware of the complaint but his dealings with Corporal Westie in 2011 and 2012 had no obvious relevance to the issues which fell to be decided by the Tribunal. There was, as a result, no occasion for him to respond to them at the hearing.

44    The question remains, however, whether what was said by the Tribunal at [215] and [216] of its reasons, provided a legal foundation for impugning the Tribunal’s ultimate decision: cf Minister for Immigration, Local Government and Ethnic Affairs v Mok (1994) 55 FCR 375 at 387. The implied criticism of Captain McAuley did not lead to any adverse finding relating to his credit. His application to the Tribunal failed because the Tribunal was not satisfied, on the documentary evidence before it, that Captain McAuley had met the criteria for the award. Even had I been persuaded that the Tribunal had denied Captain McAuley procedural fairness before making the comments, this would not have provided a proper basis for quashing the Tribunal’s decision.

45    I do not consider that a declaration of the kind sought by Captain McAuley should be made. The Tribunal’s ill-advised comments were, as I have said, gratuitous and peripheral to the matters that fell for determination by it. These reasons are sufficient to protect Captain McAuley’s ongoing reputational interests.

Denial of Further Application to Summon Corporal Westie

46    At the hearing on 7 August 2015 Captain McAuley’s legal representative again complained about the failure of the Tribunal to require the attendance of Corporal Westie. He said:

“You’ve heard the evidence as is at the moment. We only have one suggestion, that if you have any lingering doubts as to Captain McAuley’s eligibility then that doubt can be overcome by calling Corporal Westie and the other people and ask them what was going on at the time. It seems to me that if you do have doubts as to the service eligibility over the years, she’s the one that certified that he complied. She was the one that found the documents were missing and she’s the one that can fill in all the missing gaps because, as I said, what we would suggest, that if you have great difficulty with your decision, that this matter should be stood down so that she and a couple of others can come before the tribunal and give evidence and satisfy yourselves that – I mean Captain McAuley has been – you’ve been asked to remember things 15, 20 years ago, which is all very well, and the records are on the face of them, agreed by various people, conflicting, incorrect – or not so much incorrect but incomplete and, worst still, missing.

So I mean, yes, there’s about three or four years that may need some further filling in. The reason why we wanted Corporal Westie here and Birmingham, and others was to clear up those gaps.”

47    Near the end of the hearing Captain McAuley’s representative said: “I don’t know whether you want to rule on the availability of Corporal Westie”. The presiding member responded: “We’ll consider it”. The other member said that “If we decide we don’t need to hear from Corporal Westie, then we’ll proceed to make our decision on the basis of the material before us.” The Tribunal subsequently determined not to require the attendance of Corporal Westie. It explained its reasons for not doing so in the passages from its reasons which are set out above at [19].

48    For reasons which I have already explained the Tribunal was under no obligation to require the attendance of Corporal Westie. Its power to do so was discretionary and no denial of procedural fairness occurred as a result of her not being summoned.

UNREASONABLENESS

49    Captain McAuley also sought to challenge the Tribunal’s decision not to call Corporal Westie on the ground that this failure or refusal was unreasonable in the sense expounded by the High Court in Li.

50    In Li the High Court found that the Migration Review Tribunal had acted unreasonably when deciding to refuse an application by Ms Li for a short adjournment. She wanted the adjournment to provide additional information to the Migration Review Tribunal. It proceeded to affirm the decision under review. The High Court found this refusal to be unreasonable because it lacked an evident and intelligible justification and was plainly unjust.

51    Captain McAuley placed particular emphasis on the observations of Hayne, Kiefel and Bell JJ at 361. Their Honours there said that:

“… What is fair and just in relation to the particular act may be discerned, to an extent, from the purpose of the provision which requires that the act be done or which gives the discretionary power to the Tribunal to perform the act, as well as from the purpose of surrounding provisions …

A consideration of the purpose for which a duty is imposed, or a power granted, may connect an unfair action with a substantive obligation on the part of the Tribunal. Thus, whilst the characterisation of an act as unfair may not itself have consequences for the ultimate decision on the review, there may be other consequences which flow from that act.”

52    He argued that the Tribunal’s failure was “manifestly unfair and unjust” because Corporal Westie had “possible knowledge of attendance records” and had provided material to the Tribunal which had the potential adversely to affect his interests.

53    It may be accepted that the discretionary power, vested in the Tribunal by s 110XC of the Defence Act, was intended by the Parliament to be exercised reasonably: see Minister for Immigration and Border Protection v Stretton (2016) 237 FCR 1 at 3 (Allsop CJ); 23 (Griffiths J). A power to compel a person to put aside his or her normal commitments and attend a quasi-judicial hearing is intrusive and not lightly to be exercised. The Tribunal explained its reasons for not issuing a summons to Corporal Westie. Those reasons were provided pursuant to the obligation imposed by s 110XE of the Defence Act. It is to these reasons that the Court turns in order to determine whether there existed an evident and intelligible justification for the Tribunal’s decision: see Stretton at 19 (Griffiths J) and 30 (Wigney J).

54    The Tribunal decided that it would not require the attendance of Corporal Westie and some other persons named by Captain McAuley. It did so for a number of reasons. They were that no satisfactory justification for requiring their attendance had been forthcoming despite requests to Captain McAuley to explain why the summonses should be issued; it considered that the documentary evidence before it was sufficient to deal with the issues it was called on to determine; and that, in some cases, the witnesses were not expected to be able to provide relevant evidence. The Tribunal also dealt specifically with Corporal Westie. It said that “even if she had checked the application and determined it was correct, she was not the delegate to make the decision …” As a result, her opinion (if she had one) as to Captain McAuley’s eligibility could have no bearing on the outcome of the application. The Tribunal accepted that there were “gaps” in the unit’s records but placed little weight on this consideration because Captain McAuley’s service records (including his pay records) were held in Canberra and had been made available to the Tribunal.

55    The Tribunal’s reasons had a rational foundation. They cannot, in my view, be characterised as being plainly unjust or unfair. They were not irrational. The Tribunal’s decision not to compel the attendance of Corporal Westie was not, therefore, legally unreasonable.

DISPOSITION

56    The application must be dismissed with costs.

57    The Court is particularly grateful to counsel who appeared pro bono for Captain McAuley and put his case as forcefully as was possible.

Associate:

Dated:    18 July 2016