Clark v Chief of Defence Force [1999] FCA 1252

Clark v Chief of Defence Force [1999] FCA 1252

The original grant of LWOPASM was not invalid merely because its duration was linked to co-location with the spouse, but once the applicant personally notified the RAAF on 22 October 1995 that the de facto relationship had ceased and that he expected to be posted to normal duties, the continued refusal to revoke the leave retrospectively was so unreasonable that no reasonable decision maker could have made it and was also an exercise of the power for an improper purpose. In the statutory Defence Force context, the applicant was ready, willing and able to serve, was kept in a relationship akin to employment, and was to be treated as rendering continuous full time service; the Salary...

Jurisdiction
Australia
Judgment Date
15 September 1999
Procedural Posture
Application for Judicial Review Under the Administrative Decisions (judicial Review) Act 1977 (cth) / Final Judgment
Outcome
Application succeeded; the respondent's decision was set aside, declaratory relief was granted, and the respondent was ordered to pay the applicant's costs.
Legal Topics
['leave Without Pay' 'revocation of Leave' 'unreasonableness' 'improper Purpose' 'defence Force Remuneration' 'statutory Employment Conditions']
['administrative Law' 'military Law' 'employment and Industrial Law'] ['leave Without Pay' 'revocation of Leave' 'unreasonableness' 'improper Purpose' 'defence Force Remuneration' 'statutory Employment Conditions']

Case Brief

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Procedural Posture

Application for Judicial Review Under the Administrative Decisions (judicial Review) Act 1977 (cth) / Final Judgment

Legal Issues

  1. 1 ['Whether the original grant of Leave Without Pay Accompanying Spouse Member was invalid because it was not for a sufficiently specified period.' "Whether the Chief of the Defence Force had power to revoke the grant of leave without pay after the applicant's de facto relationship ceased." 'Whether refusal to revoke the leave retrospectively was so unreasonable that no reasonable decision maker could have made it.' 'Whether the refusal to revoke the leave was an exercise of power for a purpose other than a purpose for which the power was conferred.' 'Whether the applicant was entitled to salary, allowances and other remuneration despite not performing duties during the relevant period.' 'Whether the applicant should be treated as rendering continuous full time service while ready, willing and able to serve but not posted to duties.']

Ratio Decidendi

The original grant of LWOPASM was not invalid merely because its duration was linked to co-location with the spouse, but once the applicant personally notified the RAAF on 22 October 1995 that the de facto relationship had ceased and that he expected to be posted to normal duties, the continued refusal to revoke the leave retrospectively was so unreasonable that no reasonable decision maker could have made it and was also an exercise of the power for an improper purpose. In the statutory Defence Force context, the applicant was ready, willing and able to serve, was kept in a relationship akin to employment, and was to be treated as rendering continuous full time service; the Salary...

Court Disposition

Application succeeded; the respondent's decision was set aside, declaratory relief was granted, and the respondent was ordered to pay the applicant's costs.

Orders

  • ['The decision of the respondent, made on 30 March 1998, and furnished to the applicant on 3 April 1998, not to revoke, effective from 22 July 1995, a grant of Leave without Pay made to the Applicant on 6 March 1995 and as a consequence not to pay the applicant salary, allowances and other remuneration during the...