Millar v Bornholt [2009] FCA 637

Millar v Bornholt [2009] FCA 637

Brigadier Bornholt was obliged to afford procedural fairness, but he did not deny it because the applicant already knew the case against her from the termination and redress processes, had opportunities to respond, and no new adverse personal material was introduced before he adopted the report and reasons. His conclusion that the applicant was not suited to be an enlisted member was reasonably open on the whole of the material, including the Army psychologists' reports, service history and the competing reports from Mr Zemaitis. The Court therefore found no legal error in Brigadier Bornholt's decision, and because Major Wilkinson's decision was wholly consequential and no separate...

Jurisdiction
Australia
Judgment Date
15 June 2009
Procedural Posture
Application for Judicial Review Under the Administrative Decisions (judicial Review) Act 1977 (cth) of Decisions Concerning a Referred Redress of Grievance Complaint and Discharge From the Australian Army / Final Judgment
Outcome
Application dismissed.
Legal Topics
['procedural Fairness' 'unreasonableness' 'redress of Grievance in the Australian Defence Force' 'termination of Service of Enlisted Member' "plenary Nature of Chief of Army Delegate's Power" 'command and Control Within the Defence Force']
['administrative Law' 'defence and War' 'constitutional Law'] ['procedural Fairness' 'unreasonableness' 'redress of Grievance in the Australian Defence Force' 'termination of Service of Enlisted Member' "plenary Nature of Chief of Army Delegate's Power" 'command and Control Within the Defence Force']

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Procedural Posture

Application for Judicial Review Under the Administrative Decisions (judicial Review) Act 1977 (cth) of Decisions Concerning a Referred Redress of Grievance Complaint and Discharge From the Australian Army / Final Judgment

Legal Issues

  1. 1 ['Whether the delegate of the Chief of Army denied the applicant procedural fairness in determining her referred redress of grievance complaint.' "Whether the delegate's decision not to uphold the redress of grievance complaint was unreasonable." 'What was the nature of the power exercisable by the Chief of Army or delegate on a referred redress of grievance complaint.' "Whether the consequential decision fixing the applicant's discharge date should fall if the primary redress decision was invalid."]

Ratio Decidendi

Brigadier Bornholt was obliged to afford procedural fairness, but he did not deny it because the applicant already knew the case against her from the termination and redress processes, had opportunities to respond, and no new adverse personal material was introduced before he adopted the report and reasons. His conclusion that the applicant was not suited to be an enlisted member was reasonably open on the whole of the material, including the Army psychologists' reports, service history and the competing reports from Mr Zemaitis. The Court therefore found no legal error in Brigadier Bornholt's decision, and because Major Wilkinson's decision was wholly consequential and no separate...

Court Disposition

Application dismissed.

Orders

  • ['The application is dismissed.']