Federal Court of Australia

Randall v Chief of the Defence Force [2020] FCA 1327

ORDERS

THE COURT ORDERS THAT:

1.    The respondent’s objections to evidence made in written submissions filed on 19 August 2020 and in oral submissions of 11 September 2020 be resolved in accordance with the attached reasons for decision.

2.    The respondent pay the applicant his costs of and incidental to the case management hearing of 11 September 2020, such costs to be taxed if not otherwise agreed.

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

REASONS FOR JUDGMENT

COLLIER J

1    The trial in the substantive proceedings in this matter is set down for a three day hearing, four weeks hence. Pursuant to the Administrative Decisions (Judicial Review) Act 1977 (Cth) (ADJR Act), the applicant has sought judicial review of a decision, made by the authorised delegate of the respondent, that the applicant’s service in the Australian Defence Force (ADF) be terminated pursuant to s 24(1)(c) of the Defence Regulation 2016 (Cth) (Defence Regulation). The parties have sought a ruling from me in light of an objection by the respondent to the admissibility of certain evidence annexed to the affidavit of Mr Glen O’Brien filed on 28 July 2020. Mr O’Brien is the solicitor for the applicant with day to day carriage of the matter. The evidence objected to contains aspects of the proceedings before a Restricted Court Martial (RCM) in May and June 2016 involving the applicant, being extracts of the transcript of the hearing, an exhibit from the hearing, the charge sheet, findings sheet and punishment sheet (RCM material).

2    Materially, in his second further amended originating application for judicial review (originating application) filed on 11 August 2020, the applicant claimed to be aggrieved by the termination decision on the basis of four grounds, in summary:

(1)    The termination decision was an improper exercise of the power conferred by s 24(1)(c) of the Defence Regulation.

(2)    The termination decision involved an error of law.

(3)    There was no evidence or other material to justify the making of the termination decision.

(4)    The termination decision was made in breach of the rules of natural justice.

3    The objection to evidence relates in particular to grounds 1 and 2. Each of these grounds has detailed particulars. Relevantly, however, these grounds are as follows:

1.    Pursuant to s.5(1)(e) of the Administrative Decisions (Judicial Review) Act 1977 (Cth) (ADJR Act) the termination decision was an improper exercise of the power conferred by s 24(1)(c) of the Defence Regulation 2016 (Cth) in that:

a.     the exercise of the power was made for a purpose other than a purpose for which the power was conferred (ADJR Act, s 5(2)(c));

   b.     further or alternatively, it was unreasonable (s 5(2)(g));

c.     further or alternatively, the respondent failed to take a relevant consideration into account in the exercise of the power (s 5(2)(b)).

            Particulars

…

(10)    Further, by deciding to terminate the service of the Applicant on the same or substantially the same grounds as the DFDA charges of which he had been acquitted, without considering the terms of the DFDA charges, the exhibits tendered at the trial and the transcript of the trial, the Respondent’s decision was unreasonable.

(11)    In circumstances where the termination decision was based on the same or substantially the same grounds as that which was rejected by the Restricted Court Martial (RCM) and the DFDAT, the decision to terminate the applicant’s service was an improper exercise of the power under s 24(1)(c) of the Defence Regulation 2016 (Cth), for a purpose other than that for which it was conferred.

…

(13)    Further or alternatively, when making the termination decision, the respondent failed to take a relevant consideration into account, namely, that the grounds of the termination decision were the same or substantially the same as the DFDA charges of which the applicant had been acquitted.

2.    Pursuant to s.5(1)(f) of the ADJR Act the termination decision involved an error of law.

                Particulars

(1)    Properly construed, the power conferred by s 24(1)(c) of the Defence Regulation 2016 (Cth) does not permit the respondent to terminate the service of a member on the same or substantially the same grounds as charges under the DFDA of which that member has been acquitted;

(2)    The respondent purported to terminate the applicant’s service in the ADF on the same or substantially the same grounds as the DFDA charges of which he had been acquitted by the RCM and the DFDAT;

(3)    Further, or in the alternative, the respondent, as the commander of the ADF, was a party to the DFDA proceedings, or alternatively, his privies were parties to the proceedings, by reason of the fact that all relevant participants in the DFDA proceedings were under the respondent’s command: Defence Act 1903 (Cth), s 9. The relevant participants were (i) the prosecutor; (ii) the court martial panel who delivered the verdicts; (iii) the officer who reviewed the convictions pursuant to DFDA s 152; and (iv) the Chief of Army who appeared as a respondent in the DFDAT;

(4)    the respondent was estopped from terminating the applicant’s service in the ADF on the same or substantially the same grounds as the DFDA charges of which he had been acquitted;

(5)    further or alternatively, if (which is denied) the termination decision was based on grounds that were not advanced in the DFDA proceedings, those grounds could have been advanced in the DFDA proceedings and the respondent is estopped from terminating the applicant’s service in the ADF on those grounds.

(Underlining omitted.)

Background

4    At material times, the applicant was a Warrant Office Class 2 and a member of the Royal Australian Corps of Signals within the Australian Army. At the RCM in May and June 2016, at which he was brought to trial, the applicant was charged with:

    28 offences against s 61(3) of the Defence Force Discipline Act 1982 (Cth) (DFDA), relating to unauthorised access to (or modification of) restricted data, contrary to s 478.1(1) of the Criminal Code; and

    in the alternative to each charge under s 61 of the DFDA, offences of prejudicial conduct against s 60 of the DFDA,

(together, the DFDA charges).

5    The offences were alleged to have occurred variously in 2013 and 2014, during the course of the applicant’s deployment in the United Arab Emirates, when he held roles including Information System Engineer, Information System Manager and Information Security Systems Officer.

6    On 21 June 2016, the applicant was convicted in the RCM of nine offences against DFDA s 61(3) and two offences against DFDA s 60. He was acquitted of all other charges.

7    On 23 April 2018, the applicant was served with a termination notice pursuant to s 30(1) of the Defence Regulation (first termination notice). The first termination notice alleged 25 occasions on which the applicant had accessed a Defence computer system without authorisation, correlating to the 11 instances of which the applicant had been convicted in the RCM and 14 instances of which the applicant had been acquitted in the RCM.

8    On 26 and 27 April 2018, the applicant’s appeal against the RCM convictions was heard by the Defence Force Discipline Appeal Tribunal (DFDAT). On 10 July 2018, the DFDAT delivered a decision quashing the convictions: Randall v Chief of Army [2018] ADFDAT 3. I note in particular paragraph [63] of the DFDAT decision, where their Honours found:

Given the rights of access (and modification) which WO2 Randall enjoyed, by virtue of the position which he held, the evidence led by the prosecution from the holders of the various personal accounts as to their not having given him permission to access those accounts was never, even if accepted in full by the panel, sufficient to prove absence of authority beyond reasonable doubt.

9    On 20 July 2018, the respondent issued a new termination notice in respect of the applicant’s service pursuant to s 30(1) of the Defence Regulation, on the basis that, under s 24(1) of the Defence Regulation, the retention of his service was not in the interests of the ADF (second termination notice). In substance, the second termination notice replicated the first termination notice, setting out the same facts and circumstances to which the first termination notice referred, including the same incidents and allegations of absence of authorisation. In respect of each of the 11 instances that related to convictions in the RCM which had been quashed by the DFDAT, the second termination notice included the following statements:

(1)    On 10 July 2018 the finding of guilt with respect to this conduct was overturned by the Defence Force Discipline Appeals Tribunal (DFDAT) on the basis that the absence of access authority could not be proven beyond a reasonable doubt. However, the fact remains that on the balance of probabilities you did not have the authority to access the email account of [name].

(2)    In addition to not having the authority to access [name]’s account, you accessed [name]’s email account for the purpose of self-interest as opposed to any work or work related purpose.

(3)    As a Warrant Officer in the Australian Army, you were placed in a position of trust and you abused this position for your own personal advantage.

(4)     Putting your self-interest above your job and your service is behaviour that is contrary to the Army Values of Respect, Teamwork and Courage. Your behaviour was also contrary to the Defence Values of Professionalism, Loyalty, Integrity Courage and Teamwork. Your behaviour was therefore inconsistent with the standard of behaviour expected of a Warrant Officer in the Australian Army and therefore your retention in the Defence Force.

(Redactions added.)

10    On 16 November 2018, a delegate of the Chief of the Defence Force determined that the applicant’s service in the ADF was to be terminated on 12 December 2018 pursuant to s 24(1)(c) of the Defence Regulation and provided a statement of reasons for that decision (termination decision). The delegate made the following relevant findings of fact:

e.    Between 29 Dec 13 and 08 Jun 14, you accessed the email accounts of the following personnel on multiple occasions on the ADF Deployed Defence Secret Network (DDSN) and Deployed Defence Restricted Network (DDRN):

(1)    LTCOL A Duncan;

(2)    LEUT A Jageillo, RAN;

(3)    CAPT A Hansen;

(4)    CAPT P Kimberly; and

(5)    WO1 C Tuddenham.

f.    You accessed the email accounts listed at sub-paragraph (e) above when your duties as ISE, ISM or ISSO did not require you to.

g.    You were charged with various offences as a result of accessing those email accounts and were tried by restricted court martial (RCM) between 31 May 16 and 21 Jun 16. You were found guilty on some, but not all, counts.

h.    On 10 July 18, the Defence Force Discipline Appeals Tribunal (DFDAT) overturned the RCM convictions on the basis that the absence of authority on your part to access the relevant email accounts could not be proven beyond a reasonable doubt.

i.    Not inconsistently with the DFDAT judgment, I find that you were authorised to access the DDSN and DDRN in order to perform your duties as ISE, ISM and ISSO. I further find that you were authorised to access individuals’ email accounts on the DDSN and DDRN in order to perform your duties as ISE, ISM and ISSO without the permission of the individuals to whom the email accounts were assigned.

j.    I find that that there were various inter-personal tensions within the FCU of which you were a part on OP ACCORDIAN, which on occasion may have hampered various individuals, including you, in the performance of their duties. The sharing of information between individuals comprising the FCU may have also been hampered as a result.

k.    I find that you accessed the relevant email accounts for purposes outside what was required of you by virtue of your appointments and duties as ISE, ISM and ISSO. In particular, I find that these other purposes were:

(1)    To obtain documents or information which other members of the FCU declined to provide to you:

(1)    WO1 Tuddenham’s email account; 15 May 14 at approx. 0344h – ref E, para 109(p);

(2)     LEUT Jagiello’s email account: 28 May 14 at approx. 0539h – ref E, para 109(r).

(2)    To track a member’s alleged effort to obtain civilian employment (CAPT Kimberly’s email account; 19 Feb 14 at approx. 1724h – ref E, para 109(h)).

(3)    To circumvent other processes; specifically, to obtain a password which you understood HQJOC had emailed to LEUT Hansen (LEUT Hansen’s email account; 06 Feb 14 at approx. 1049h – ref E, para 109(e)).

(4)    Accessing emails which you noticed once already in a member’s email account and of whose existence, prior to accessing the member’s account, you were unaware but in whose subject matter you had an “interest” (LEUT Hansen’s email account; 05 May 14 at approx. 0425h – ref E, para 109(n)).

(5)    To consider playing a prank (LEUT Jagiello’s email account; 30 May 14 at approx. 0719h – ref E, para 109(t)).

(6)    To locate a document when the appropriate course of action would have been to ask people for it (LTCOL Duncan’s email account; 4 Jun 14 at approx. 1234h – ref E, para 109(y)).

l.    I find that accessing the email accounts for purposes outside what was required of you by virtue of your appointments and duties as ISE, ISM and ISSO, as set out at sub-paragraph (k) above, constitutes an abuse of a position of trust. I further find that this behaviour falls substantially short of the standard required of a senior soldier in the Australian Army and is contrary to the Defence values of professionalism and integrity.

…

11    The delegate concluded:

Conclusion

18.    I am of the opinion that the reason for terminating your service in the Defence Force has been established.

19.    You have demonstrated significant shortcomings of the behaviour expected of a senior soldier. I am satisfied that your behaviour demonstrate an abuse of the trust placed in you to perform the duties of ISE, ISM and ISSO as well as a serious lack of professionalism and integrity, contrary to Defence values.

20.    On balance, having regard to the references, I am satisfied that your continued service is not in the interests of the Defence Force. The evidence contain in the [termination notice] and supporting documentation is reliable, relevant and plausible. The determination that you should be separated is in accordance with the Defence Regulation 2016, policy provisions and the principles of administrative law.

12    The termination decision noted at [22] that, pursuant to regs 40 and 41(2) of the Defence Regulations and Ch 6 of the Complaints and Alternative Resolutions Manual, the applicant had 14 days in which to submit a redress of grievance “should you wish to complain about this decision”.

13    On 28 November 2018, the applicant submitted a redress of grievance.

14    On 12 December 2018, the applicant ceased his service with the ADF in accordance with paragraph [21] of the termination decision.

submissions of the parties

15    By consent, on 29 July 2020, I relevantly ordered:

5.    The parties are to use their best endeavours to resolve any objections to evidence.

6.     The matter be listed for a case management hearing on 11 September 2020 to consider any objections not resolved between the parties.

16    As I noted earlier in this judgment, the unresolved objections to evidence concern the view taken by the respondent of the RCM material exhibited to the affidavit of Mr O’Brien. Relevantly, Mr O’Brien deposed as follows:

2.    The background to these proceedings is that:

(a)    from 2 May 2016 to 21 June 2016, the applicant was tried before a Restricted Court Martial of various charges under the Defence Force Discipline Act 1982 (Cth) (DFDA). On 21 June 2016, the applicant was convicted of some of the charge and acquitted of the balance;

(b)     on 10 July 2018, the Defence Force Discipline Appeals Tribunal quashed the applicant’s convictions;

(c)     on 16 November 2018, the respondent (by his delegate) terminated the applicant’s service in the Australian Defence Force (ADF).

3.    In these proceedings, the applicant contends in grounds 1 and 2 that his service in the ADF was terminated on the same or substantially the same grounds as the DFDA charges of which he had been previously acquitted. The respondent’s amended outline of submissions filed on 6 July 2020 disputes this proposition: see the submissions at paragraph 46.

4.    In view of the position taken by the respondent, the applicant intends to adduce evidence of parts of the proceedings before the Restricted Court Martial, to prove that the respondent terminated his service on the same or substantially the same grounds as the charges of which he was acquitted.

5.    Exhibited hereto and marked GWO-01 is a bundle of documents pertaining to the applicant’s trial before the Restricted Court Martial.

6.    In GWO-01 at page 1 is a copy of an email to me from the Registrar of Military Justice, attaching a copy of the charge sheet on which the applicant was arraigned before the Restricted Court Martial on 2 May 2016.

7.    In GWO-01 at pages 2 - 29 is a copy of the charge sheet.

8.    On 21 July 2019, the respondent filed in these proceedings a bundle of the documents before the decision maker. Document number 2 at pages 7 to 21 of that bundle is the Termination Notice dated 20 July 18. Page 17 records that enclosure 1 to the document is the “[f]ull transcripts and exhibits of Restricted Courts Martial for 8254433 WO2 Peter Allan [sic] Randall”.

9.    On 9 April 2020 the respondent’s solicitors provided to me a copy of the transcripts referred to in Enclosure 1 to the Termination Notice. The transcripts cover thirty-three days of the Restricted Court Martial proceedings.

10.    In GWO-01 at pages 30 - 642 is a copy of the following parts of the transcript of the applicant’s Restricted Court Martial provided to me by the respondent’s solicitors:

(a)    Day 1: 2 May 2016 – charges on which the applicant was arraigned; prosecution opening; evidence of Jagiello (1 – 93);

(b)    Day 8: 12 May 2016 – evidence of CAPT Kimberley (648 – 649; 655);

(c)    Day 13: 19 May 2016 – evidence of WO1 Saunders and LEUT Hansen (1018 – 1020; 1031 – 1032, 1043 – 1045, 1064 – 1073);

(d)    Day 15: 23 May 2016 – evidence of WO2 Tuddenham (1180 – 1194)

(e)     Day 24: 6 June 2016 – Prosecution closes its case (1795 - 1796)

(f)    Day 25: 7 June 2016 – Ruling on defence no case submission; directed acquittals on charges 17 and 25; evidence in chief of Randall (1820 - 1910).

(g)    Day 26 – 28: 8 to 10 June 2016 – evidence of Randall (1911 – 2115);

(h)    Day 29: 14 June 2016 –closing addresses (2116 - 2163);

(i)    Day 31: 20 June 2016 – CJA summing up (2307 – 2418);

(j)    Day 32: 21 June 2016 – CJA summing up continued; verdict (2419 - 2439).

11.    In GWO-01 at page 643 is a copy of an email to me from the Registrar of Military Justice, attaching a copy of exhibit 22 from the trial.

12.    In GWO-01 at pages 644 - 646 is a copy of exhibit 22 from the trial. This document was marked ‘MFI 23’ at the conclusion of the prosecutor’s opening address to the court martial panel on 2 May 2016 (transcript pg 54) and was tendered as an exhibit on 5 May 2016 (transcript pg 351).

13.    In GWO-01 at pages 647 - 658 respectively is a copy of the Findings Sheet dated 21 June 2016 and the Punishments Sheet dated 22 June 2016.

17    At the hearing before me, the respondent submitted, in summary, as follows:

    The respondent had expanded his concession in respect of the admissibility of the RCM material – the entirety of the RCM material could be admitted, pursuant to s 136 of the Evidence Act, for the limited purpose of ground 2. The RCM material was not otherwise admissible in relation to ground 1. However, the RCM material could be admitted provisionally de bene esse and without prejudice in relation to ground 1, so that the Court may later determine its admissibility in this respect, after the benefit or hearing more substantive argument on the application for judicial review.

    The effect of Part 3.5 of the Evidence Act 1995 (Cth) (Evidence Act) is that evidence of an acquittal is admissible in respect of a claim of issue estoppel, but not as an evidentiary fact. Given that issue estoppel operates as a substantive rule of law, rather than evidence, the RCM material need not otherwise be admitted in respect of ground 1.

    Issue estoppel, as a substantive rule of law, may have an impact on ground 1. To the extent to which the applicant relies on the fact of his acquittal before the RCM as founding the claims in the sub-grounds to ground 1, that will stand or fall with ground 2. If the decision-maker was estopped from terminating the applicant on the same grounds for which he was acquitted, the applicant could say that, for example, in failing to take that into account, there was a failure to take into account a relevant consideration.

    The appropriate course is for the Court to first decide ground 2 (that is, whether as a matter of law, the respondent was precluded from making the termination decision) and that can then inform the Court’s assessment of the other grounds.

    Section 91 of the Evidence Act is relevant, and applies to both convictions and acquittals. The RCM material is not admissible as evidence that the applicant was innocent of the DFDA charges. There is a danger that if the RCM material is admitted generally, its use will go beyond the scope of what is permissible in respect of a judicial review application

    The approach taken by the Supreme Court of the Northern Territory in Majindi v The Northern Territory of Australia (2012) 31 NTLR 150; [2012] NTSC 25, is relevant in this context.

    It is not necessary for the RCM material to be before the Court for the Court to reach a conclusion about the legal unreasonableness ground (ground 1(b), particular (10)). This ground can be assessed by reference to the evidence that was before the decision-maker and is before the Court, including the termination decision and the DFDAT decision, both of which refer to the acquittals by the RCM.

    In respect of the improper purpose ground (ground 1(a), particular (11)), the observation of the Court of Appeal of Victoria in East Melbourne Group Inc v Minister for Planning (2008) 23 VR 605; [2008] VSCA 217 at [312] is relevant in respect of considering material that was before a decision-maker when a statement of reasons has been provided. In such circumstances, a failure to refer to particular matters or give other reasons will justify the inference that such other matters or reasons were not relied upon. To the extent that the decision-maker in this case has not identified the RCM material as being before her, that material is not relevant for consideration by the Court.

    In respect of the relevant considerations ground (ground 1(c), 1 particular (13)), what factors a decision-maker is bound to take into account is determined by the relevant statute. It is uncontroversial that the applicant was either acquitted of the DFDA charges by the RCM or had his convictions quashed by the DFDAT. In those circumstances, the RCM material is not relevant to the issues to be decided with respect to this ground.

18    The applicant submitted, in summary:

    Contrary to the submissions of the respondent, it is not the applicant’s case that ground 1 hinges on whether ground 2 is accepted.

    In any event, the ADJR Act confines the relevant grounds on which the applicant can rely.

    No reason has been advanced by the respondent why, where the responding party disputes the ultimate issue, the evidence on which the moving party seeks to rely should be admitted on a provisional basis.

    The reason the applicant has put forward the RCM material was because the respondent disputed the proposition running through all of the grounds, namely that the termination decision was based on the same or substantially the same grounds on which he was charged and acquitted.

    The applicant does not ask the Court to engage in a merits review of the termination decision – rather, the applicant anticipated taking the Court through the RCM material to make good the proposition that the applicant was terminated on the same, or substantially the same, grounds on which he had been tried and acquitted in the RCM proceedings.

    In relation to ss 91 and 93 of the Evidence Act, the applicant does not rely on the evidence given in the RCM as evidence of facts in dispute in that court martial (for example, in respect of some particular explanation for why the applicant accessed an email account, or that he had been authorised to do so). Rather, the applicant relies on evidence that there was a RCM, which involved charges that corresponded identically with the grounds of termination and that led to the acquittal of the applicant of those charges.

    In relation to the legal unreasonableness ground, it is uncontroversial that the admissibility of the RCM material can be demonstrated if the moving party can establish that the evidence was readily available and centrally relevant. In order for the Court to evaluate the applicant’s contention about that point, the Court needs to have the evidence before it to decide whether the RCM material is centrally relevant.

Consideration

19    In my view the respondent’s objections to the admissibility of the RCM material are not substantiated. I have formed this view for the following reasons.

20    First, I reject the contention of the respondent that the RCM material is irrelevant in the context of the judicial review application before the Court.

21    It is common ground that a decision may be legally unreasonable if the decision-maker failed to take into account information that the decision-maker knew (or ought reasonably to have known) was readily available and centrally relevant. The leading authority on this point appears to be the decision of Wilcox J in Prasad v Minister for Immigration & Ethnic Affairs (1985) 6 FCR 155 at 169-170, where his Honour said:

I have been unable to find any discussion in the authorities of this question, possibly because the facts will often be clear. Consequently, I express no more than a tentative view. But in principle, as it seems to me, the intermediate position is correct. Under s 5(l)(e) and s 5(2)(g) the court is concerned with the manner of exercise of the power. A power is exercised in an improper manner if, upon the material before the decision-maker, it is a decision to which no reasonable person could come. Equally, it is exercised in an improper manner if the decision-maker makes his decision – which perhaps in itself, reasonably reflects the material before him – in a manner so devoid of any plausible justification that no reasonable person could have taken this course, for example by unreasonably failing to ascertain relevant facts which he knew to be readily available to him. The circumstances under which a decision will be invalid for failure to inquire are, I think, strictly limited. It is no part of the duty of the decision-maker to make the applicant's case for him. It is not enough that the court find that the sounder course would have been to make inquiries. But, in a case where it is obvious that material is readily available which is centrally relevant to the decision to be made, it seems to me that to proceed to a decision without making any attempt to obtain that information may properly be described as an exercise of the decision-making power in a manner so unreasonable that no reasonable person would have so exercised it. It would follow that the court, on judicial review, should receive evidence as to the existence and nature of that information.

(Emphasis added.)

22    This principle has been accepted by the Full Court in such cases as Luu v Renevier (1989) 91 ALR 39 at 49-50 and further by this Court in Chen v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 1934 at [18], SZIED v Minister for Immigration and Citizenship [2007] FCA 1347 at [37]-[40] and Telstra Corporation Ltd v Australian Competition and Consumer Commission (2009) 179 FCR 437; [2009] FCA 757 at [385].

23    As Moore J further observed in SZIED:

40.    … In Prasad, Wilcox J spoke of circumstances where it was obvious that material was readily available which was centrally relevant. But his Honour's observations concerned a challenge to a decision by reference to s 5(1)(e) and s 5(2)(g) of the Administrative Decisions (Judicial Review) Act 1977 (Cth), namely on the basis that the decision involved the improper exercise of a power because the decision was so unreasonable that no reasonable person could have so exercised the power. Importing the observations of Wilcox J (quoted at [37] above) into a case such as the present, it would be necessary to determine to whom it was obvious that material was readily available. Is that an assessment made after the event by reference to facts proved in the judicial review proceedings (facts such as the Tribunal had the 2003 and 2005) but without proof that the Tribunal member knew of the documents? Or does it additionally require proof that the Tribunal member was aware that the documents were held by the Tribunal or at least knew that it was likely that such documents were held by the Tribunal? The answer is suggested by Wilcox J who referred, before the quoted passage, to circumstances where the decision maker unreasonably fails to ascertain relevant facts which he or she knew to be readily available to him or her (at 169.9). In the present case one would have thought it would be necessary to demonstrate that the Tribunal member knew of the documents existence or, perhaps, ought to have known that it was likely the documents existed and were readily available…

(Emphasis added.)

24    Put simply, in sub-ground 1(b) of the originating application the applicant claims that, in deciding to terminate the service of the applicant on the same or substantially the same grounds as the DFDA charges of which he had been acquitted, the delegate did not consider the RCM material, and accordingly, the respondent’s decision was unreasonable. In terms of the comments of Moore J in SZIED, there is no reason for me to conclude that the RCM materials were not readily available to the decision-maker. The second termination notice specifically referred to the DFDAT decision, which in turn referred to the RCM, and annexed the transcript and exhibits of the RCM hearing. The decision-maker in her decision stated she had regard to the second termination notice and also the applicant’s response to that notice in which he referred to being acquitted in the RCM (and subsequently by the DFDAT) of charges on the same or substantially the same grounds. I consider such materials were centrally relevant to the decision of the decision-maker.

25    Second, it is difficult to understand how the RCM material is not relevant to the other sub-grounds in ground 1, namely a failure to take into account a relevant consideration, and improper purpose on the part of the decision-maker. To the extent that the decision may have been infected with error as alleged by the applicant, the RCM material which the decision-maker presumably took in to account (or should have taken into account) is prima facie relevant to the Court’s review of the decision.

26    The respondent took me to the decision of the Victorian Court of Appeal in East Melbourne Group (2008) 23 VR 605 at [312], where their Honours said:

312 We put to one side a body of law which addresses the situation where a decision is unsupported by any reasons. It is permissible in such a case to look behind the decision to the material before the decision-maker, in an attempt to discern the reasons for the decision. Documents placed before the decision-maker may be considered. The court may be able to say that the decision could be explained by such material. The inference may then be available that the information contained in the documents was taken into account and provided the reason for the decision. But when a statement of reasons has been provided, a failure to refer to particular matters or give other reasons will justify the inference that such other matters or reasons were not relied upon.

(Emphasis added, footnotes omitted.)

27    To the extent that the respondent submitted that an absence of reference to the RCM material by the decision-maker in the termination decision means that that material is not relevant, I do not accept that as a proposition. At particular (13) of ground 1, the applicant specifically claims that the decision-maker failed to take into consideration the RCM material. It is a fundamental principle in administrative decision-making that relevant considerations must be taken into account: Mason J in Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24; [1986] HCA 40, at 39. As Mason J further observed at 45 in that decision:

It would be a strange result indeed to hold that the Minister is entitled to ignore material of which he has actual or constructive knowledge and which may have a direct bearing on the justice of making the land grant, and to proceed instead on the basis of material that may be incomplete, inaccurate or misleading.

(See also, for example, Ali v Minister for Home Affairs [2020] FCAFC 109 at [44].)

28    It follows that if the RCM material was such that the decision-maker was bound to take it into account as a relevant consideration, any absence of reference to that material in the termination decision is not determinative of its relevance.

29    Third, it is not uncommon for evidence to be admitted provisionally subject to relevance. Section 57 of the Evidence Act contemplates such rulings. However, in circumstances where there is prima facie relevance of the RCM material to the grounds of the application, then as a general proposition there is no reason to admit it only provisionally.

30    I also consider that the respondent’s reliance on the decision of Mildren J in Majindi (2012) 31 NTLR 150 is misconceived. His Honour in that case found it was unnecessary to determine whether there was estoppel, and by consent the Court had received evidence de bene esse because of a dispute over the admissibility of evidence concerning that issue. It is unremarkable that the Court in that case should have adopted that position in light of the consent position advanced by the parties and on the facts of that particular case. This does not support the adoption by me of a similar approach in the circumstances of the present case. Indeed, I respectfully consider the observations of his Honour in Majindi at [59] to be irrelevant to the proceedings before me.

31    Fourth, the respondent submitted that it would be appropriate for the Court to deal first with ground 2, because the success or failure of ground 2 would have an impact on the success of ground 1. This was another reason, in the respondent’s submission, for provisional admission of the RCM material in respect of ground 1.

32    Notwithstanding the respondent’s characterisation of the applicant’s case, I am not persuaded that in order to substantiate ground 1 (or its sub-grounds) the applicant needs to first substantiate ground 2. In ground 2, the applicant claims pursuant to s 5(1)(f) of the ADJR Act that the respondent was estopped from terminating the applicant’s service on the same or substantially the same grounds as the DFDA charges of which the applicant had been acquitted. Particulars (10), (11) and (13) of ground 1 raise different issues. In particular (10), the applicant claims that by deciding to terminate the service of the applicant on the same or substantially the same grounds as the DFDA charges of which he had been acquitted, and without considering the RCM material, the respondent’s decision was unreasonable (rather than impermissible as ground 2 contends). Particular (11) contends in essence that the proper conclusion for the Court to draw from the fact that the termination decision was based on the same or substantially the same grounds as that which were rejected by the RCM and the DFDAT was that the termination decision was an improper exercise of the power under s 24(1)(c) of the Defence Regulation. Particular (13) contends that when making the termination decision, the respondent failed to take into account that the grounds of the termination decision were the same or substantially the same as the DFDA charges of which the applicant had been acquitted, which was a relevant consideration.

33    While each ground has the same base thread – namely that the termination decision was on the same or substantially the same grounds as the DFDA charges in respect of which the applicant had been acquitted – clearly different principles of law are relevant in respect of these grounds. Issue estoppel, which is the subject of ground 2, is not the base thread running through these grounds of review. Indeed, it is not outside the realm of possibility that the applicant could succeed on ground 1 but be unsuccessful in respect of ground 2. A failure on the part of the applicant to substantiate a case that the respondent was estopped from making the termination decision does not appear determinative of the questions raised in ground 1. Ground 1 claims errors infecting the decision-making process of the decision-maker. Ground 2, as the respondent has submitted, raises the substantive rule of law which is issue estoppel. However ground 2 is not a complete answer to ground 1. Speculation about these points is no reason at this stage to limit the evidence on which the applicant seeks to rely.

34    Fifth, the respondent relied on Part 3.5 of the Evidence Act, which provides:

91. Exclusion of evidence of judgments and convictions

(1)     Evidence of the decision, or of a finding of fact, in an Australian or overseas proceeding is not admissible to prove the existence of a fact that was in issue in that proceeding.

(2)     Evidence that, under this Part, is not admissible to prove the existence of a fact may not be used to prove that fact even if it is relevant for another purpose.

Note:    Section 178 (Convictions, acquittals and other judicial proceedings) provides for certificate evidence of decisions.

92. Exceptions

(1)     Subsection 91(1) does not prevent the admission or use of evidence of the grant of probate, letters of administration or a similar order of a court to prove:

   (a) the death, or date of death, of a person; or

   (b) the due execution of a testamentary document.

(2)     In a civil proceeding, subsection 91(1) does not prevent the admission or use of evidence that a party, or a person through or under whom a party claims, has been convicted of an offence, not being a conviction:

(a)     in respect of which a review or appeal (however described) has been instituted but not finally determined; or

   (b)     that has been quashed or set aside; or

   (c)     in respect of which a pardon has been given.

(3)     The hearsay rule and the opinion rule do not apply to evidence of a kind referred to in this section.

93. Savings

This Part does not affect the operation of:

           (a)     a law that relates to the admissibility or effect of evidence of a conviction tendered in a proceeding (including a criminal proceeding) for defamation; or

             (b)     a judgment in rem; or

             (c)     the law relating to res judicata or issue estoppel.

35    The respondent submitted that s 91 of the Evidence Act would exclude the RCM material as evidence that the applicant was innocent of the DFDA charges.

36    Key principles referable to s 91 are set out in S Odgers, Uniform Evidence Law (15th ed, Lawbook Co, 2020). It is useful to set out the following summary:

EA91.60 General Comments

Section 91 establishes a prima facie rule that evidence of a decision or judgment, or a finding of fact, in a proceeding is not admissible to prove some fact that was in issue in those proceedings. In addition, even if the evidence is relevant and admissible for some other purpose, it may not be used for the purpose of proving such a fact. As Simpson J explained in Attorney General (NSW) v Martin [2015] NSWSC 1372 at [13], whether this provision operates to exclude the use of decisions or judgments “will depend upon an analysis of three things – (i) what facts were in issue in those proceedings; (ii) what facts were found in the decisions; and (iii) the use to which the [party adducing the evidence] seeks to put those judgments – that is, what facts [the party] seeks to prove by their use”. In Ainsworth v Burden [2005] NSWCA 174, Hunt AJA (Handley and McColl JJA agreeing) stated at [109]

It is clear that s 91 does not prevent the tender of judgments which contain findings as to the existence of facts relevant to the issues in the trial in which they are tendered. It merely prevents the judgments from being tendered for the purpose of proving the existence of those facts. If they are admissible for some other purpose – as they are in the present case, in order to demonstrate that they would have persuaded any honest-minded person that the defendant's allegations were false – they may not then be used to prove the existence of those facts, a consequence which would otherwise have flowed from s 60 of the Evidence Act.

Thus, this provision does not prevent evidence being given of judgments for the purpose not of establishing the truth of the facts found, but to establish the terms of a judgment and its effect – as expressly recognised by the “Savings” provision in s 93. Equally, it will not prevent evidence being given of a “decision” if there was no finding of any fact in issue in the proceedings. It will not prevent evidence being given of a “decision” if the facts thereby evidenced are not “a fact that was in issue in that proceeding”. It is also implicit in the wording of the provision that it only applies where evidence of a decision or judgment, or a finding of fact, is sought to be used in other proceedings. In King v Muriniti [2018] NSWCA 98, Basten JA (Gleeson JA agreeing) stated at [14]:

For s 91 to be engaged there must be a fact which was found in the earlier proceeding, was in issue in that proceeding and is in issue in the current proceeding. In other words, the reference at the end of s 91(1) to “that proceeding” implies two separate proceedings.

Furthermore, the general rule is subject to a number of exceptions, provided for in s 92. Of course, even if the provision does not apply, other provisions in the Act, such as the opinion rule and the hearsay rule, may have application. Further, allowing the evidence for a limited use may raise the question of discretionary exclusion.

(Footnotes omitted.)

37    I also note the following observations of Schmidt J in Attorney-General (NSW) v Mohareb [2016] NSWSC 1823 in relation to the application of s 91 to a judgment under the Vexatious Proceedings Act 2008 (NSW):

26.    The term “finding of fact” is not defined in the Evidence Act. While issues which arise for resolution in particular proceedings will very frequently depend on findings of fact made on the evidence, not every finding made, or conclusion reached on matters in issue involves a finding of fact. In some cases they involve the resolution of questions of law and often, the resolution of questions of mixed fact and law.

…

32.    That does not render such judgments inadmissible under s 91 of the Evidence Act, in later proceedings, including those brought under the Vexatious Proceedings Act, unless the judgment is sought to be tendered to prove the existence of a fact that was in issue in the earlier proceeding. If tendered to establish the existence of the proceedings, who the parties were and how a question of law, or a question of mixed fact and law, was resolved in those proceedings, s 91 does not render the judgment inadmissible.

(Emphasis added.)

38    Section 91 of the Evidence Act does not prevent the admission into evidence of the RCM material in the present case. For example, I understand that a fact that was in issue in the RCM was the authority or otherwise of the applicant to access various email accounts, and the RCM and the DFDAT made determinations in relation to that fact. However, the applicant does not rely on the RCM material as evidence of that fact. Consistently with such authorities as Attorney-General v Martin, Ainsworth v Burden, and Attorney-General v Mohareb, the only basis in the application before this Court on which the applicant relies on the RCM material is to demonstrate that the grounds of the termination decision were the same or substantially the same as the DFDA charges of which he was acquitted. Such reliance is not prevented by the terms of s 91 of the Evidence Act.

39    Finally, the respondent submitted that the use of the evidence in the RCM material should be limited pursuant to s 136 of the Evidence Act, which empowers the Court to limit the use to be made of evidence if there is a danger that a particular use of evidence might be unfairly prejudicial to a party or be misleading or confusing. To the extent that the applicant claims that in making the termination decision the respondent failed to take into account that the grounds of termination were the same or substantially the same as the DFDA charges of which the applicant had been acquitted, it seems completely reasonable and uncontroversial for that material to be before the Court. Any “danger” or confusion, in respect of either the Court or the parties relating to admission of the RCM material, in terms of s 136 of the Evidence Act, has not been identified by the respondent.

Conclusion

40    In my view no orders ought be made excluding the reliance by the applicant on the affidavit of Mr O’Brien, or the RCM material annexed to that affidavit, for the purposes of the hearing of the substantive application.

41    The question of costs remains. This is, of course, a discretionary issue for the Court (s 43(2) Federal Court of Australia Act 1976 (Cth)), although as a general proposition costs follow the event (Oshlack v Richmond River Council (1998) 193 CLR 72; [1998] HCA 11; Northern Territory v Sangare (2019) 265 CLR 164; [2019] HCA 25).

42    The respondent submitted that costs ought be reserved because the matter before the Court was one in respect of which, in either outcome, the decision of the Court would be informed by a consideration of the broader issues in the substantive review application. The applicant sought an order for costs in his favour.

43    In my view the applicant is entitled to his costs of and incidental to the case management hearing of 11 September 2020, to be taxed if not otherwise agreed. This is because:

    It is plain from submissions on the part of both Counsel that progressive concessions were made by the respondent over the course of several weeks in respect of the admissibility of the RCM material. Indeed, the position of the respondent had substantially altered between the filing of written submissions and the oral hearing.

    I understand from oral submissions during the hearing that there had been communications between the parties prior to the hearing of 11 September 2020. Mr McLure SC from the bar table submitted that a substantial amount of work had gone into dealing with the issue on the part of the applicant. I am prepared to accept this statement in circumstances where it is clear that the position of the respondent changed substantially and where written submissions with supporting authorities were exchanged and provided to the Court.

    The case management hearing was retained for the sole reason of hearing the respondent’s objections, which I have found to have no basis.

    I see no reason why costs should not follow the event.

Associate:

Dated: 17 September 2020