Williams v Chief of Air Force [2006] FMCA 754 (11 May 2006)

Last Updated: 21 July 2006

FEDERAL MAGISTRATES COURT OF AUSTRALIA

REPRESENTATION

ORDERS

(1)	The application be dismissed.
(2)	The Applicant pay the Respondent’s costs.
(3)	Liberty to apply is granted to the parties in relation to the issue of costs.

LNG 60 of 2005

Applicant

And

Respondent

REASONS FOR JUDGMENT

(Revised from transcript)

1.	This is an application filed on 24 October 2005 by Christopher Gordon Williams (the Applicant) seeking review of a decision dated 27 September 2005 (the decision) made pursuant to reg.14 of the Cadet Forces Regulations 1997 by K.J. McDonald, a director of the Australian Air Force Cadets (the AAFC) as a delegate of the Respondent, the Chief of Air Force. The Applicant applies for review pursuant to the Administrative Decisions (Judicial Review) Act 1977 (the ADJR). The decision terminated the appointment of the Applicant as an Officer of the AAFC.
2.	In support of the application, the Applicant has relied upon particulars of the ground of review and has otherwise relied upon an affidavit sworn by him on 19 October 2005 together with written submissions prepared by the Applicant's former solicitors and filed on 26 April 2006. The Applicant, although a lawyer by training, appears before this Court self-represented and, despite his training, I make due allowance for the fact that he is now self-represented.
3.	It is significant to note that the decision which is the subject of this application, in brief terms, could clearly be described as a significant decision affecting the appointment of the Applicant to the AAFA and it is perhaps appropriate at the outset to make reference to those parts of the decision which are clearly the subject of concern to the Applicant. There is no dispute in this case that this is a decision subject to the review available under the ADJR Act, nor is there any dispute that this is a decision under an enactment.
4.	Relevantly the following appears in the decision:

"3. I have carefully considered your representation at reference D, but remain of the opinion that you are unsuitable to be a member of the AAFC. My reasons for this opinion were set out in reference A, viz:

‘You were convicted on five charges of recklessly presenting false documents pursuant to the Social Security Act, s.1346 in the Tasmanian Magistrates Court on 11 November 1999. I have considered the reasons provided in your submission of 9 September 2004, and confirm that although the current policy in the Australian Air Force Cadets Policy Manual does not state that a member of the AAFC must report convictions, this does not represent an implied acceptance of members engaging in criminal activity. Indeed, as we have previously indicated, the fact that applicants with a criminal record are regarded as being not suitable to be appointed as AAFC members implies that members who are subsequently convicted of an indictable or summary offence are also unsuitable to be AAFC members.’

4 These reasons have not been altered by my reconsideration of your reply of 9 September 2004. My decision was based solely on the circumstances of the Social Security Act offences. In view of my findings about the effect of the Social Security Act convictions there was no need to consider the mobile phone and personal expenditure allegations, although if I had done so I would have required definitive proof. In my view, the Law Society action did not take the matter further because it was based on the Social Security Act convictions.

5 In your reply of 9 September 2004 you also submit that your service since the offences ought to be taken into account. The need for general deterrence and for equality of treatment (a person with similar convictions whose convictions had occurred before his/her application to join the AAFC would not have been accepted) outweigh the circumstances of your specific service."

5.	In order to understand the contents of the decision sought to be reviewed and reference to various documents and events in that decision, it is noted that the factual background in this matter, which is not disputed, has been appropriately set out in the outline of submissions of the Respondent who, I note, has also sought to rely upon material set out in the court book and an affidavit of Mr David William Wilson sworn 20 March 2006.
6.	In that factual background it is noted the Applicant was an instructor in the AAFC who, at the time his appointment was terminated, held the rank of Flying Officer. The circumstances leading to the decision to terminate his appointment on the grounds that he was unsuitable to be a member of the AAFC were referred to earlier in this judgment setting out the extract from the decision. On 11 November 1999 the Applicant was convicted of five Social Security Act offences and sentenced to imprisonment for three months suspended.
7.	The Court had the advantage of reading the transcript of proceedings which were held before the Court of Petty Sessions at Hobart in Tasmania before His Worship Mr Hill on 11 November 1999. The Applicant in those proceedings was represented and pleaded guilty to the charges. In the transcript there is reference to what is described as a brief summary of the facts. Those facts which appear in the court book at page 73 recite the following, as presented by the representative for the prosecution:

"... the facts are that the defendant has been overpaid the sum of ten thousand, two hundred and sixty dollars and 80 cents in sole parent pension as a result of his failing to advice (sic) Centrelink that he was in receipt of income protection insurance payments. The defendant injured himself at work on 28^th March 1995 and was paid Worker’s compensation on 30^th October 1995. He then applied for a sole parent pension on 2^nd November 1995. At the time of claiming the defendant did not advice (sic) that he could claim income protection insurance. The defendant received his first payment from Australian Casualty and Life on 11^th January 1996 of four thousand, eight hundred dollars, for the period 12 April 1995 to 11 October 1995. He received payment thereafter of two thousand, one hundred and fifty dollars a month. In his pension claim, the defendant referred to the Worker’s compensation payments that had ceased, but he made no reference to his entitlement under income protection. In the period of the charges, the defendant completed 5 sole parent review forms and he was asked, "do you get money from any other sources" and he answered this question "no". On one form he did say he received Abstudy of $120 per fortnight. He failed to advise the payments of two thousand, one hundred and fifty dollars per month from Australian Casualty and Life. On 2^nd November 1995 prior to the charges, the defendant signed a declaration that he would advise the department if he received any income from any source or his present income details changed."

8.	It is not necessary for me to then further recite the matters presented at the hearing before the Magistrate by the prosecutor. It is appropriate, however, to note that, in sentencing, the Magistrates Court stated the following, which appears at page 77 of the court book:

"You have pleaded guilty to a serious set of offences. The amount of money involved as the prosecutor has said, is not insignificant. You have no previous matters but the admitted fraud on your part went on for about 12 months and involved, as I say, an amount slightly in excess of ten thousand dollars and on the face of it, a period of imprisonment would be appropriate. You have pleaded guilty, however, you have individual circumstances of some significance in relation to your health - some significance - you have dependants and you have no previous convictions. Your rehabilitation, it seems to me, is somewhat promising although I am a little guarded as to that in the light of medical problems that you have been referred to both today and also on a previous occasion, but I think in the light of those matters that Mr Nibbs has said in relation to your plea of guilty, I think appropriately this matter is to be dealt with by way of a period of imprisonment, suspended."

9.	The Court then proceeded to make appropriate orders. It appears in the chronology that after this conviction became known to the AAFC, consideration was then given to terminating the Applicant's appointment on the grounds that he was unsuitable to be a member. The Applicant was sent a letter dated 7 April 2003 by the Officer Commanding Five Wing AAFC. The Applicant responded to that with submissions dated 10 June 2003 from solicitors then acting on his behalf. Those submissions are set out at pages 68 to 71 of the court book.
10.	As a further part of the chronology it is noted that on 10 June 2003 the Supreme Court of Tasmania made an order that the Applicant's name be removed from the role of practitioners of the Court. The transcript of proceedings leading to that decision made by Crawford J appears in the court book, commencing at page 47. It is not necessary for me to recite all of the material set out in the court book but it is sufficient to note that that order was made upon the application of the Law Society of Tasmania and it is common ground that it was based solely on the Social Security Act offences to which I have already referred.
11.	In his reasoning, Crawford J relevantly states the following at court book page 66:

"... This Court when it admits persons to be practitioners of the Court holds those persons out upon the basis of material put before the Court as being fit and proper persons to represent the public as practitioners. It is essential that those who the Court holds out as fit and proper should be honest in their dealings, not just with government departments but with their clients, the Court and all others and when it comes to the attention of the Court that a practitioner has committed serious offences of fraud, serious offences of dishonesty, it should only be in an unusual case that the Court would not strike the practitioner's name from the roll.

I’m satisfied from the material that the Law Society has put before me today that by reason of the offences committed by Mr Williams he has shown that he is not a fit and proper person to continue to be a legal practitioner. The Court can no longer have any trust in him so for these reasons it is ordered that the name of Christopher Gordon Williams be removed from the Roll of Practitioners of this Court."

12. It is common ground that the Applicant has not sought to be readmitted to practise law and, as indicated to this Court, has not pursued that matter any further.

13. By a letter dated 9 October 2003 the Applicant was advised by the Director of the AAFC that "after taking into account all relevant information I have concluded that you are unsuitable to be an Officer or Instructor in the AAFC and that your appointment will be terminated." He then had 28 days to contest the decision and did not do so. However, by an amended application for an order to review, dated 11 June 2004 the Applicant sought judicial review of the earlier decision to terminate his appointment to the AAFC.

14. Issues arose in relation to questions of fairness and the Respondent in earlier proceedings agreed to an order setting aside the termination of the Applicant’s appointment and giving the Applicant a further 21 days to contest the proposed termination of his appointment. An order to that effect was made by consent on 18 August 2004.

15.	In the court book there then appears a letter dated 9 September 2004 from the then solicitors for the Applicant, enclosing detailed written submissions on behalf of the Applicant together with other relevant material. Relevantly, it appears that the Applicant then provided further material and, ultimately, as I indicated earlier, there was a further letter being the decision from Wing Commander McDonald addressed to the Applicant. It is important to note that the decision referred to a letter dated 20 July 2005 as ‘reference A’.
16.	It is not necessary for me to recite the relevant passages further which appear in the letter dated 20 July 2005 which appears at page 41 of the court book.
17.	The Applicant has relied upon particulars of grounds of review. It seems to me that on a proper reading of the application and the submissions made by the Applicant that he essentially relies upon the powers of the Court to review the decision pursuant to s.5 of the ADJR Act. Specifically, reliance is placed upon sub-s.5(1)(e) as follows:-

"5(1) A person who is aggrieved by a decision to which this Act applies that is made after the commencement of this Act may apply to the Federal Court or the Federal Magistrates Court for an order of review in respect of the decision on any one or more of the following grounds:

(a) ...

(b) ...

(c) ...

(d) ...

(e) that the making of the decision was an improper exercise of the power conferred by the enactment in pursuance of which it was purported to be made;

..."

18.	In considering the question of an improper exercise of power, it is noted that s.5(2) provides for the following matters to be referred to which, in this instance, relevantly include s.5(2)(b) which provides "failing to take a relevant consideration into account in the exercise of power".
19.	In the Applicant's particulars of grounds of review the Applicant asserts that in making a decision to terminate:

"... it is insufficient for the Respondent to simply refer to a conviction."

20.	He further states in that document the following:

"4. All of the circumstances surrounding:-

(a) The Applicant's prior history;

(b) The Applicant's prior service;

(c) The commission of the offences; and

(d) The Applicant's service subsequent to the conviction;

need to be considered."

21.	He otherwise asserts in his grounds the following:

"5. The following are significant appropriate matters which the Respondent failed to take into account:-

(a) The Applicant's unblemished record prior to his conviction;

(b) The excellent service of the Applicant prior to this conviction;

(c) The mitigating factors surrounding the offence, including the psychological state of the Applicant at the time the offences were committed;

(d) The failure of the Applicant's counsel to properly put mitigatory factors to the Court;

(e) The excellent service of the Applicant subsequent to this conviction.

6. Considering all of these circumstances, the Applicant is "suitable" to continue to be a member of the Australian Air Force Cadets."

22.

In the submissions filed on behalf of the Applicant, those matters have been again referred to and, likewise, it is noted that the affidavit of the Applicant, to which reference was made earlier in this decision, makes reference to those factors. They are conveniently summarised in the Applicant's written submissions in a paragraph 4.3 as follows:

"4.3 In summary, the Respondent needed to examine, in coming to its’ decision, all of the circumstances surrounding:

(a) The Applicant's prior history;

(b) The Applicant's prior service as a member;

(c) The commission for Social Security offences;

(d) The Applicant's service as a member subsequent to the conviction for the Social Security offences."

23.

I should note in passing that, on my reading of the material currently before the Court, it is not suggested by the decision maker in the decision to terminate the Applicant's services that there are any grounds relied upon in that decision which claim in any way that the Applicant during the course of his service has committed any inappropriate act or in other way behaved in a manner which would constitute misconduct. Nor, indeed, does there appear to be a suggestion that the Applicant has not conducted himself in an appropriate and entirely reasonable manner in the discharge of his duties during the course of his appointment with the AAFC.

24.

The legal framework has been appropriately and thoroughly set out in the Respondent's contentions. In my view, it is not necessary to set out in detail all of the references in order to understand the framework within which the decision was ultimately made. It is relevant to note, however, that the Cadet Forces Regulations 1997 (the Regulations) contain provisions dealing with acceptance in enrolment of cadets, appointment of officers and instructions and discharge or termination of appointments. The appointment of an Officer in the AAFC may be terminated by the Respondent pursuant to reg.14 of the Regulations which relevantly provides in sub-reg.(2):

"Subject to sub-regulation (3), a cadet may, at any time, be discharged, or the appointment of an instructor or officer may be terminated, by the service chief, for any of the following reasons:

(a) that the member is unsuitable to be a member."

25.

In considering the law in relation to review of a decision of this kind, pursuant to the provisions of the ADJR Act, I accept, as submitted by the Respondent, the relevant law is referred to in a number of well-known authorities. In applications of this kind, it is not for this Court to make a decision on the merits of the factual position for itself. That is, it is not for me to embark upon a further fact-finding mission and reach a different decision to that of the decision-maker. The Respondent referred to the decision of Deane J in Sean Investments Pty Ltd v MacKellar (1981) 38 ALR 363 at 375 where the Court states in relation to the exercise of powers that this does not mean that a party affected by a decision is entitled to make an exhaustive list of all the matters which the decision-maker might conceivably regard as relevant and then attack the decision on the ground that a particular one of them was not specifically taken into account. The Court further states at p.375:-

"In a case such as the present, where relevant considerations are not specified, it is largely for the decision-maker, in the light of matters placed before him by the parties, to determine which matters he regards as relevant and the comparative importance to be accorded to matters which he so regards. The ground of failure to take into account a relevant consideration will only be made good if it is shown that the decision-maker has failed to take into account a consideration which he was, in the circumstances, bound to take into account for there to be a valid exercise of the power to decide."

26.	It was submitted by the Respondent and I accept that the principles applicable to the ground of review have been appropriately summarised by Mason J, as he then was, and MAA v Peko Wallsend Ltd [1986] HCA 40; (1986) 162 CLR 24 at 39-42 as follows:-

"(a) The ground of failure to take into account a relevant consideration can only be made out if a decision-maker fails to take into account a consideration which he is bound to take into account in making that decision...

(b) What factors a decision-maker is bound to consider in making the decision is determined by construction of the statute conferring the discretion... where the ground of review is that a relevant consideration has not been taken into account and the discretions is unconfined by the terms of the statute, the court will not find that the decision-maker is bound to take a particular matter into account unless an implication that he is bound to do so is to be found in the subject-matter, scope and purpose of the Act.

(c) Note every consideration that a decision-maker is bound to take into account but fails to take into account will justify the court setting aside the impugned decision and ordering that the discretion be re-exercised according to law. A factor might be so insignificant that that the failure to take into account could not have materially affected the decision...

(d) The limited role of a court reviewing the exercise of an administration discretion must constantly be borne in mind."

27.

I accept as a matter of law that the Applicant who seeks to impeach the exercise of the statutory power bears the onus of establishing an improper exercise of that power (see ASC v Lucas [1992] FCA 234; (1992) 36 FCR 165 at 177-179). I further accept the authority of Deane J in Sean Investments Pty Ltd v MacKellar [1986] HCA 40; (1986) 162 CLR 24 who cited with approval from the United Kingdom Court of Appeal in Elliott v Southwark London Borough Council [1976] 2 All ER 781 the following passage in relation to the role of this Court when undertaking judicial review:

"It is not for the court to prescribe a list of matters which must always be considered or to prescribe which factors should be given more weight than others. It is worth repeating that the function of the court, where such issues are raised, is not to substitute its own opinion or decision on matters which Parliament has left to the judgment of the local authority but to decide whether the local authority in reaching its decision has acted in accordance with the statutory provisions."

28.	In my view, applying the relevant law to the decision sought to be reviewed in this case, it is important to note that it is not for this Court to re-hear, as I indicated earlier, the application or to otherwise reassess the information which is before the decision-maker. I should stress that, in my view, whilst the Applicant in this instance has sought to challenge the basis upon which the State Magistrates Court considered the material placed before that Court by the then representative of the Applicant, it is not for this Court to go behind the synthesis of the facts of a sentencing Court where that sentencing Court has before it a represented defendant who has pleaded guilty to the charges.
29.	Whilst the Applicant has expressed concern and significant reservations about the conduct of his representation before that Court, it would be inappropriate for this Court to go behind the sentencing Court's decision and, more importantly, the synthesis of facts determined by that Court. It is noted that there has been no appeal lodged from that decision nor any further action, perhaps for good reason, taken by the Applicant in relation to his claims that he was not appropriately or adequately represented or that matters were not put which he believed could and should have been put to the Court on that occasion.
30.	Hence, there is no doubt in my mind that the material then before the decision-maker who made the decision for the purpose of this application included material which clearly demonstrated that there had been a conviction for what could only be described as serious offences under the Social Security Act. The circumstances of those offences which were set out in the extracts referred to earlier in this judgment are clearly serious. I note that in the Applicant's affidavit he made reference to the proceedings and, in particular, in paragraph 10 states the following:

"10. I did not disclose my conviction to the AAFC. Given that it was a summary matter (a summary offence) it did not constitute a "crime", nor was it indictable."

31.	Before this Court the Applicant sought to make submissions putting into context the nature and seriousness of the offence for which he was convicted. However, I do not accept that by merely describing the matter as a ‘summary offence’, that that does ‘not constitute a crime’, nor do I accept that it does not constitute a serious crime. Simply because a matter is not an indictable crime does not detract from its degree of seriousness clearly taken into account by the learned Magistrate and, further, by Crawford J in the other proceedings to which I have referred.
32.	In my view, the crime of which the Applicant was convicted on 11 November 1999 is properly to be regarded as a serious crime and the circumstances of that crime, as indicated by the decision-maker in this instance, are circumstances which, of their own, provided a sufficient basis upon which the decision-maker was entitled to act.
33.	In this case there has been a claim under the provisions of the ADJR Act that certain relevant matters were not considered. In my view, a proper reading of the decision, an extract of which was set out earlier, clearly indicates that the decision-maker did take into account those other factors. There is no adverse finding against the Applicant as to the circumstances of his duty or the performance of his duty with the AAFC, rather, the decision-maker, in my view, in a manner free of error, considers the service record of the Applicant since the offences have been committed but then proceeds to conclude that the need for general deterrence and for a quality of treatment, a person with similar convictions whose convictions had occurred before his or her application to joint the AAFC would not have been accepted, outweighs the circumstances of the Applicant's specific service.
34.	Applying the law to which reference has already been made and dealing with the detailed submissions made by the Applicant before the decision-maker, I can see no error in the decision of a kind which would attract judicial intervention pursuant to the relevant provisions of the ADJR Act.
35.	During the course of submissions the Applicant, when asked questions in relation to another passage in his affidavit, that the "offences predated my involvement with the AAFC by several years," sensibly resiled from the reference to "several years". It is clear that the offence related to incidents in 1996 and 1997. It is equally clear from the Applicant's own chronology that in this instance he had, in fact, been appointed as an Officer a short time approximately perhaps one year after the date of the offences. It could hardly be claimed, therefore, that there was any degree of what might be described as ‘antiquity’ in relation to the offences which might otherwise persuade a decision-maker to place lesser weight on those offences. In any event, applying the authorities to which I have referred, I am satisfied that in this instance the decision sought to be reviewed is a decision which is free of any error of a kind which would enable this Court to make the orders sought by the Applicant.
36.	The Applicant has made a number of assertions from the bar table in affidavit material concerning the manner in which proceedings were conducted on his behalf before the learned Magistrate in the Hobart Court. They are not matters which this Court regards as relevant in the consideration of the application before it. It is clear, in my view, and consistent that the Respondent's contentions that, in any event, the decision-maker in this case has properly considered the material placed before him by the Applicant. Ultimately, in this instance, the decision-maker determined the facts and placed appropriate and significant weight upon those facts which is a matter for the decision-maker.
37.	It follows, for the reasons given, that the application should be dismissed with costs.

I certify that the preceding thirty-seven (37) paragraphs are a true copy of the reasons for judgment of McInnis FM



Associate:



Date: 11 May 2006