Sherston v Chief of Navy [2004] FCA 110

Sherston v Chief of Navy [2004] FCA 110

Interlocutory relief was refused because the applicant had not shown a sufficient basis for the Court to intervene before completion of the reg 85 process: criminal prosecution was unlikely and did not justify restraining the process, apprehended bias was not established, and challenges to the admissibility or sufficiency of the evidence were matters for the respondent to consider in the first instance and, if necessary, for later review of any final termination decision.

Jurisdiction
Australia
Judgment Date
16 January 2004
Procedural Posture
Application for an Order of Review Under the Administrative Decisions (judicial Review) Act 1977 (cth) Concerning a Termination Notice Under the Defence (personnel) Regulations 2002 (cth) / Application for Interlocutory Orders Restraining the Respondent From Proceeding With the Termination Process
Outcome
Application for interlocutory orders dismissed.
Legal Topics
['reviewability of Decision by Delegate of Governor General' 'termination Notice for Royal Australian Naval Reserve Officer' 'interlocutory Relief' 'procedural Fairness and Apprehended Bias' 'pending or Possible Criminal Proceedings' 'use of Allegedly Unlawfully Intercepted Material']
['administrative Law' 'defence and Military Law' 'judicial Review'] ['reviewability of Decision by Delegate of Governor General' 'termination Notice for Royal Australian Naval Reserve Officer' 'interlocutory Relief' 'procedural Fairness and Apprehended Bias' 'pending or Possible Criminal Proceedings' 'use of Allegedly Unlawfully Intercepted Material']

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Procedural Posture

Application for an Order of Review Under the Administrative Decisions (judicial Review) Act 1977 (cth) Concerning a Termination Notice Under the Defence (personnel) Regulations 2002 (cth) / Application for Interlocutory Orders Restraining the Respondent From Proceeding With the Termination Process

Legal Issues

  1. 1 ['Whether a decision by a delegate of the Governor-General under reg 85 of the Defence (Personnel) Regulations 2002 (Cth) is excluded from review as a decision by the Governor-General under s 3 of the Administrative Decisions (Judicial Review) Act 1977 (Cth).' 'Whether interlocutory orders should restrain the respondent from requiring the applicant to respond to the termination notice or from proceeding with the termination process.' 'Whether possible future criminal proceedings meant the applicant would be prejudiced by having to provide a written statement of reasons why his service should not be terminated.' 'Whether the respondent was biased or would bring a biased mind to any decision under reg 85(4).' 'Whether the Court should intervene at the termination-notice stage by assessing the admissibility or sufficiency of the evidence, including material said to be inadmissible under the Telecommunications (Interception) Act 1979 (Cth).']

Ratio Decidendi

Interlocutory relief was refused because the applicant had not shown a sufficient basis for the Court to intervene before completion of the reg 85 process: criminal prosecution was unlikely and did not justify restraining the process, apprehended bias was not established, and challenges to the admissibility or sufficiency of the evidence were matters for the respondent to consider in the first instance and, if necessary, for later review of any final termination decision.

Court Disposition

Application for interlocutory orders dismissed.

Orders

  • ['The application for interlocutory orders be dismissed.' "The applicant pay the respondent's costs of the application for interlocutory orders." 'The proceeding be listed for directions on a date to be fixed by Heerey J.']