Mellett v Minister for Defence, Ireland and the Attorney General [2014] IESC 33 (09 April 2014)

Judgment Title: Mellett v Minister for Defence, Ireland and the Attorney General

Neutral Citation: [2014] IESC 33

Supreme Court Record Number: 137/13

High Court Record Number: 2012 406 JR

Date of Delivery: 09/04/2014

Court: Supreme Court

Composition of Court: Murray J., Hardiman J., Fennelly J.

Judgment by: Fennelly J.

Status of Judgment: Approved


Judgments by	Link to Judgment	Result	Concurring
Fennelly J.	Link	Appeal dismissed	Murray J., Hardiman J.

Outcome: Dismiss

THE SUPREME COURT

Appeal No.: 137/2013

BETWEEN:

CHERYL MELLETT

Applicant/Appellant

and

MINISTER FOR DEFENCE, IRELAND and

THE ATTORNEY GENERAL

Respondents

Judgment of Mr Justice Fennelly delivered the 9^th day of April 2014.

1. This is an appeal from the judgment of the President of the High Court of 1st March 2013 in which he rejected the application of the appellant for judicial review of the decision of 22nd March 2012 discharging her from the Defence Forces.

2. The appellant was enlisted as a naval recruit in the Defence Forces in November 2004. Her term of engagement was five years. Following the expiry of that term in 2009, she continued in service without engagement.

3. The appellant had been chronically unable to meet the required fitness standards. Ultimately, procedures were commenced which led to a decision to discharge her from the Defence Forces being made on 22nd March 2012. The appellant sought judicial review in the form of an order of certiorari of that decision. The application was heard in the High Court by Kearns P, who, in a written judgment delivered on 1st March 2013, rejected the application. The appellant has appealed to this Court. She invites this Court to quash the decision discharging her from the Defence Forces.

The Facts
4. The appellant was admitted to the Defence Forces as a Naval Recruit in November, 2004 pursuant to article 8(1)(d)(ii) of A10 of the Defence Forces Regulations, pursuant to which her enlistment was for a term of five years.

5. Members of the Defence Forces are required to maintain a certain minimum level of fitness. The appellant passed such a fitness test in 2005. In 2006 she failed her fitness test having suffered what she described as a ‘traumatic experience’. She gained a considerable amount of weight between 2006 and 2009 and failed to pass any fitness test during this period. It is reflected in her annual assessments that despite failing to pass her fitness tests she was considered a valued member of the defence forces.

6. For the months March to October 2009, the appellant was placed on three health-related fitness assessments in succession. These programmes are designed to assist a member of the Defence Forces who is having difficulty attaining the requisite standard.

7. In November 2009 the appellants five year term of engagement expired.

8. The appellant commenced an external training programme, joining a local sports centre, in early 2010. She claims to have lost three stone in ten weeks. By July 2010 she was in a position, having lowered her body mass index (BMI) by the required amount, to undertake the fitness test. However, during that summer, she developed gall bladder problems. In September 2010 she under-went an operation to remove her gallbladder and was not permitted to take the fitness test. Her recovery after the operation was described as slow and in January 2011 the applicant was involved in a road traffic accident, in which she suffered what she describes as a whiplash injury.

9. In February 2011, she was paraded and informed that she would have 4 months to reach the requisite BMI in order to take her fitness test and was to be placed on a fitness programme for that purpose. She indicated that it would be very difficult for her to reach the required level of fitness due to her injuries and the fact that she had put on weight since September 2010. In July 2011 she was not in a position to carry out her fitness test.

10. In July 2011, given that her term of engagement with the Defence Forces had expired in November 2009, the applicant was considered by her Commanding Officer for an extension of service. Such an extension can take place by way of re-engagement pursuant to s. 64 of the Defence Acts 1954.

11. The procedure for an extension under s. 64 requires a recommendation from the applicant’s commanding officer. The applicable criteria for an extension are set out in the Defence Forces Regulation A10 in s. 9(2)(a). A private will not have his or her term of engagement extended unless, using, as is appropriate, the female gender:

(i) she fulfils certain criteria, including the requisite fitness and medical standards;

(ii) she is recommended for an extension of service by her commanding officer; and

(iii) she is specially selected by a Selection Board established for that purpose.

12. It will be noted that approval by a Selection Board is essential if an extension of service is to be granted.

13. The medical grade of a person seeking an extension is calculated using a numerical system, outlined under Article 234 of Administrative Instruction A10. A person seeking an extension must not have a medical grade below 77-23-524, the first two figures signify the year of birth, the third figure refers to medical condition, the fourth to physical condition and the final three figures denote vision, colour vision and hearing. Article 234 provides that an applicant may not be recommended for an extension of service where her medical category is below 77-23-524. The appellant’s medical grade was 77-34-111. Thus, she was deemed to have failed her fitness test.

14. On the 19th July 2011, at the end of the four-month period she had been given in February, the appellant was paraded by her Commanding Officer, Comdt. Kenny, and informed that he was not recommending her for an extension of service. He then forwarded his recommendation together with her extension of service file (EOS file) to the relevant selection board. The file also contained two memos, one from Comdt. Kenny and one from Lt. Stanley. The memos stated that the applicant had been afforded every opportunity to train for the previous 4 months and had been taken off driving, night duty and exercise. The appellant was advised that she could make a submission to the selection board, which she duly did.

15. Where a person is not recommended for an extension of service, s. 78(1) of the Defence Force Act 1954 permits him or her to continue to serve without engagement.

16. The appellant lodged a submission to the Selection Board which outlined her circumstances, the difficulties she had encountered and enclosed a number of references relating to her period in the Defence Forces, all of which were extremely supportive of her position.

17. The selection board refused to recommend an extension of service for the appellant on 22nd December 2011 and advised that she should be discharged. On the 19th January 2012 she was paraded by her Commanding Officer and informed that he was moving to recommend her discharge. He informed her of the statutory reason for her discharge and of her right to make written representations. He said he would attach her Extension of Service (EOS) file to the application for discharge.

18. The relevant statutory provision was s. 73 of the Defence forces Act 1954 which provides that the Minister for Defence or a designated officer may authorize the discharge of a member of the Defence Forces for a prescribed reason.

19. On the 26th January 2012 the appellant lodged an appeal of the decision to discharge her from the Defence Forces. On the 5th April 2012 she was paraded and informed that her appeal had been refused and that she was scheduled to be discharged on the 11th May 2012. This was in accordance with the order of Major-General Boyle, the Adjutant General, Deputy Chief of Staff (Support), who in the applicant’s case is the officer with statutory authority to order discharge. The order was made on 22nd March 2012. She was also advised on 5th April, 2012 that if she could appeal the matter through the ‘Redress of Wrongs’ process.

20. The applicant, on this date, had achieved the requisite BMI to undertake the fitness test but her application to undergo this test was refused because the applicant was reported as suffering from a medical condition which required intervention.

21. On the 11th April 2012 the appellant was furnished with her AF97B Discharge Form. In that Form, Comdt Kenny records under “PART TWO-CERTIFICATE BY COMMANDING OFFICER” as follows:

“I HEREBY CERTIFY THAT ON 19th Jan 2012 I paraded the [appellant], and informed her that it is proposed to apply for her discharge for the following statutory reason.

Determination of Service by the Minister of Defence DFR A.10 Para 58(s).

Sgwn Mellett has NOT been recommended for EOS (5-9 years) in accordance with the provisions of DF regulations A 10 and Admin Instr A 10. Sgwn Mellett was paraded and informed of this decision on 19th July 2011 (Training Diary). I have attached here your EOS file which sets out the grounds for your non extension. Accordingly, in accordance with A 10 Part 462, I am now applying for your discharge from the DF. You have 7 days upon which to make any representation and submission on my decision. These representations along with the AF97B and he supporting EOS file will be forwarded through normal channels to the Deputy COS (Sp).”

22. It was apparent from this form that Maj Gen Boyle had made his decision to have the appellant discharged prior to receiving the view of Brig General Aherne. It was recorded on the form that Brig General Aherne had recommended her immediate discharge when in fact this was not the case. What had in fact happened was that, unknown to the appellant Brigadier General Aherne, the applicant’s General Officer Commanding and Major-General Boyle’s immediately inferior officer, had recommended that the applicant be given a further three months within which to achieve the requisite BMI in order to undertake her fitness test. This is one of the grounds on which judicial review was sought.

23. The applicant lodged an address of wrongs application on 12th April 2012, this was refused shortly after on the 2nd May. It was on the 2nd May 2012 that the appellant was furnished with a copy of the decision and all relevant documentation. Included in this documentation was a letter dated the 16th February 2012, form the appellant’s General Commanding Officer which recommended that she be afforded a further period of time to achieve the requisite fitness.

24. The appellant was advised in writing on the 30th May 2012 that her appeal from the decision in respect of the redress of wrongs was postponed pending the outcome of the determination of legal proceedings, i.e. the judicial review proceedings before the High Court and subsequently this court.

High Court Proceedings
25. On 11th May 2012, the appellant applied for and was granted (see order of Peart J) leave to apply for judicial review of the decision to discharge her.

26. The grounds on which the application was based may be summarised as follows:

1) The applicant was not provided with the statutory reason for her discharge;

2) The applicant was not furnished with her Extension of Service file (hereinafter referred to as the “EOS file”) which contained the grounds and associated documentation supporting the initial recommendation to discharge her from the Defence Forces made on the 19th January 2012. She did not have access to this information when making submissions in respect of the recommendation to discharge her from the Defence Forces;

3) The ultimate adjudicator on the recommendation to discharge the applicant from the Defence Forces did not have before him all relevant matters when making his decision to direct the discharge of the applicant. In particular he was unaware of a recommendation from an officer designated to review the initial recommendation, to the effect that the applicant be afforded a further period of time within which to achieve the requisite body mass index (“BMI”), in order to undergo her fitness test;

4) In the event that the ultimate adjudicator was aware of all relevant matters he failed to provide reasons as to why he did not follow the recommendation of the immediately inferior officer who recommended that the applicant be afforded further time to achieve the requisite fitness.

27. The learned President ruled on these matters as follows. He commenced by restating the well-established jurisprudence to the effect that a member of the Defence Forces is a statutory officer in the employment of the State and is entitled to the benefit of the principles of natural justice when a process is initiated which could lead to his or her discharge from the Force. He referred to the decisions of this Court in State (Gleeson) v. Minister for Defence [1976] I.R. 280 and McGrath v. Minister for Defence [2009] IESC 62. He then ruled on the three individual complaints.

28. Firstly, on the question of whether the appellant had been duly informed of the statutory reason for her discharge, the learned President stated that the applicant had been informed on 19th January, 2012, by Comdt. Kenny, her commanding officer, that he was recommending that she be discharged from the Defence Forces. He noted the dispute as to whether what was communicated to the applicant amounted to a statutory reason for discharge, but expressed himself satisfied that that this information was given and the reason for same. This had been averred to by Comdt. Kenny and Company Sergeant Tony Macklin, whose evidence was not challenged in cross-examination. These two officers had deposed to the effect that the appellant had been informed of the statutory reason for her discharge.

29. Secondly, he turned to the question of the EOS file. He noted specifically that the appellant had accepted that being a member of the Defence Forces necessitates that a required level of physical fitness be attained. She had not passed a physical fitness test since 2005. The learned President continued:

“While it is accepted that she may be a valued member of the Defence Forces in some respects, the decision, not only to recommend her discharge, but, ultimately, the decision for her discharge, at all times rested on whether she had passed this fitness test or not. Article 9 2(a) of the Defence Forces Regulations A10 provide, inter alia, that a private will not have their term of engagement extended unless they meet the requisite fitness and medical standards. Therefore, very little discretion is afforded to the decision maker regarding this issue. It is also clear from the ample evidence before the Court that she was afforded every reasonable opportunity to reach the level of fitness required in order to be recommended for an extension of service.”

30. Turning specifically to the failure to provide the appellant with her EOS file, he continued:

“While it is accepted that the applicant did not receive this EOS file, she can have been in no doubt as to the details of her fitness history contained therein. It is also clear from the facts of the present case that the applicant can have been in no doubt as to the consequences of her failure to meet this compulsory standard of fitness. It follows, therefore, that she can neither have been in any doubt as to the essential findings and facts supporting the reasons grounding the recommendation for her subsequent discharge.”

31. He noted that there were extensive disputes in the affidavits filed regarding what he termed “the practicalities of achieving the requisite fitness level during the four month period set for her to achieve the requisite BMI to undergo her fitness test.” On this issue also, the learned President drew attention to the appellant’s failure to seek to have the relevant witnesses cross-examined:

“Although the applicant contested this evidence in her affidavits, it was at all times open to her to cross-examine the makers of the affidavits stating to the opposite effect that she had ample time and opportunity to get fit but this option was one she ultimately chose not to pursue.”

32. Finally, he addressed the problem that Brig General Aherne’s recommendation that the appellant be allowed a further three months to see if she could attain the required fitness levels had not been properly communicated to the deciding officer. He found, in effect, that, although an error had been made, the recommendation had, in fact, reached its destination prior to the decision being made. He found as follows:

“As regards the third ground, I am satisfied with the explanation given by the respondents that the ultimate adjudicator, in this case being the Adjutant General, Deputy Chief of Staff (Support), Major-General Boyle, was, in fact, aware of all relevant matters when making his decision to direct the discharge of the applicant. Although it was admitted that an error was made in the process of completion of Part Four of the Applicant’s AF 97B form, Major-General Boyle did, I am satisfied, by letter dated 16th February, 2012, actually have sight of the recommendation by Brigadier General Aherne, the applicant’s General Officer Commanding and Major-General Boyle’s immediately inferior officer, that the applicant be afforded a further period of time to achieve the requisite physical fitness. I am therefore satisfied that this error which occurred was, indeed, technical in nature and did not prejudice the applicant in any way.”

33. On the question of the adequacy of the reasons for the decision, the learned President ruled:

“So, although Major-General Boyle did not give reasons to explain why he did not ultimately follow Brigadier General Aherne’s said recommendation, I am satisfied that it was unnecessary for him to give a detailed exposition on why the recommendation was not followed in circumstances where he had all the relevant material and thus could make a properly informed decision.

Furthermore, such recommendation by a General Officer Commanding is not determinative of the process of application for discharge. The officer with statutory authority to order discharge in this instance is the Adjutant General, Deputy Chief of Staff (Support), being in this instance, the said Major-General Boyle. Therefore, it his prerogative to discharge the applicant in spite of a recommendation from an inferior officer that the applicant be afforded some additional time to achieve the required level of fitness.”

The appeal
34. Although there are six paragraphs in the Notice of Appeal, they all relate essentially to two matters: firstly, that the failure to provide the appellant with her EOS file was, in fact, prejudicial and secondly, that the recommendation of Brigadier General Aherne was not properly before or considered by Maj. General Boyle when making the decision.

35. The appellant did not seek to contest the decision of the learned President that she had been given the statutory reason for her discharge. At the hearing of the appeal, counsel for the appellant accepted that decision and the reason for it, namely that the appellant had not sought, in the High Court, to challenge the evidence to that effect given on behalf of the respondent.

36. At the hearing of the appeal, the appellant advanced essentially three points. These need to be placed in context in one important respect. The appellant had not, at any material date, reached the required fitness standards for service in the Defence Forces. This was not disputed. It followed that she could not claim to be entitled to have her service extended. Equally, it followed that her continued service in the Defence Forces could, at best, be as a person serving without engagement.

37. In support of the application to have her discharge quashed by an order of certiorari, she made essentially the following two points. The first is that it was contrary to fair procedures that her Extension of Service File was not disclosed to her. The second is that the recommendation of Brigadier general Aherne was not shown to have been properly before Major general Boyle, when he made his decision.

38. The appellant’s first complaint related to the failure to provide her with access to her complete “Extension of Service File.” (EOS file) Although there was no statutory obligation to provide the appellant with the EOS file, and no request had been made for it, the content of the rules of natural justice, in the particular circumstances of the present case, it was argued, required that it be provided. The particular facts upon which the appellant relied in support of this argument was that the EOS file in fact contained two reports of name officers, Lieutenant Stanley and Commandant Kenny relating to the period during which she was endeavoring to reach the required fitness standards. These reports suggested that the appellant had been given ample time to train. In the affidavit of Commandant Ray Kenny, dated the 26th of July 2012, at paragraph 11 it is stated;

“I say that the Applicant participated in the said training programme between 21st February 2011 and 13th June 2011. I say that she was provided with assistance throughout the 16 week programme from Lt. Stanley, Cpl. Tarpey, Cpl. Henry and PTI Pte Spain. In order to assist her in this regard, the Applicant was moved from night duties, was excused driving duties and was excused Defence Force Exercises for the period. In this regard I beg to refer to a report of her training programme upon which marked with the Letters “RK7” I have signed my name prior to the swearing hereof.”

39. In the above mentioned report, RK7, “Training report, Sgwn Mellett 13th June 2011”, signed by Lieutenant E. Stanley, at paragraph 9 it is stated:

“I met Sgwn Mellett on the 19th May at 1425hrs. Sgwn Mellett stated that she felt swamped at work and was constantly either on the Helpdesk or on Duty. This was the first time this issue was brought to my attention. She said that she does not mind being on the help desk but finds it hard to get somebody replace her. However, since Sgwn Mellett’s Unit Training Program began in 21st Feb 2011 she had been facilitated throughout her training program. She was taken off night duty, driving duty, all exercise so that ample time to train throughout the working day.”

40. The modified working arrangements were also recorded in a letter dated 1st June 2011, from Commandant Kenny to Commandant S. Ridge;

“Sgwn Mellett has been afforded every opportunity in order to pass her fitness test. She has been unable to achieve this goal. The following guidance has been provided to Sgwn Mellett:

a….11th Feb 2011, Sgwn Mellett was paraded and informed of being afforded 4 months in order to allow adequate time for her to pass her Fitness Test. She was informed the OC 4Fd CIS Coy will not recommend her for an extension of service should she not be able to pass her Fitness Test (See 667B).

j. 21st Feb 2011, Sgwn Mellett began her Unit Training Program supervised by Lt. Stanley. In order to again facilitate Sgwn Mellett, she was removed from the panel for night duty, she was excused driving duties and she was excused DF exercises for a four (4) month period, in order that she be given every opportunity to pass her fitness test. (Annex C).

k. 13th June 2011, Sgwn Mellett failed her fitness Test. This test was conducted by Lt Gilmore and supervised by Lt. Stanley.”

41. In a Report dated the 30th June 2011, titled: 2009–2011 Report: 300917 Sgwn Mellett, from the desk of Lt. Stanley, at points 9 and 10 it was recorded;

“9. 11th Feb 2011 Sgwn Mellett was paraded and informed of being afforded 4 months in order to allow adequate time to pass her Fitness Test. She was notified that OC 4 Fd CIS Coy will not recommend her for extension of service should she not pass her Fitness test..

10. 21st Feb 2011 Sgwn Mellett began her Unit Training Program with Lt. Stanley. She was taken off night duty, driving duty and exercises for the 4 month period so that she had ample time to train throughout the working day.”

42. Replying Affidavit of Commandant Ray Kenny, dated the 4th of February 2013, paragraph 6;

“I beg to refer to paragraph ‘7’ of the Applicant’s second affidavit. I say that I issued an instruction to Cpl Hayes to take the Applicant off night duties so that she could concentrate on her fitness. The Applicant’s own records show that she did one night duty on 7 February 2011; the Applicant’s official training program began on 21 February 2011. The Applicant’s records also show that she did not do one night duty for the months of March, April, May and June 2011. During the latter mentioned months, the Applicant was also required to complete a duty known as SDS on four occasions. This duty requires one to deliver sensitive or important mail to Dublin or Galway by travelling by train. The only other duty carried out by the applicant during the aforementioned months was that of helpdesk duty. Helpdesk duty is a desk based task and involves the taking of phone calls and recording of same. The records indicate that the Applicant performed the latter duty eleven times in the relevant four months.”

Paragraph 9;

“I say notwithstanding the fact that the four-month official training programme commencing 21st February 2011, the Applicant’s training was always facilitated.”

43. The appellant, in her own affidavit contested much of what was contained in the affidavits. She said that she had not, in fact, been allowed time. She continued to be rostered for normal duty during this period.

44. In her second affidavit the appellant swore:

“First I wish to state that there are a number of matters raised in the affidavits filed in opposition of both Comdt. Ray Kenny and Lt. Kieran Moynihan, that are incorrect and do not represent an accurate account of the manner in which I was treated by the Defence Forces. They both state that I was afforded every opportunity to achieve fitness between fitness between January and June, 2011. I dispute this fact entirely. Indeed I find it difficult to understand how Lt Moynihan can pass comment on the manner I was treated at all given my dealings during the period at issue were exclusively with Lt Murtagh Brennan. Lt Gilmore carried out a caliper test on me in February, 2012, as she is a female training officer. Lt Moynihan only signed the related form and this is the only contact I had with Lt Moynihan in relation to the matter.

At paragraph 7;

“Comdt. Kenny has also stated that I was excused night duties, driving duties and exercise, during the period from February, 2011 to June 2011, however, I did occasional night duties and driving duties and exercise, and my workload in general increased, such that I did not have much additional time for time for training, contrary to what had been suggested by Comdt. Kenny. Indeed I informed both Comdt. Kenny and Lt Stanley during this period that I had difficulty in training giving my level of other duties and this is recorded in the training diaries entries for 11th March, 2011 and at paragraph 9 of training report dated the 13th June, 2011.

I beg to refer to a copy of records relating to night duties, driving duties, and complaints I made to Lt Stanley during this period upon which and marked with the letters CM 1 I have signed my name prior to the swearing thereof.”

45. The second point was that there was insufficient evidence, as distinct from no evidence, from which the learned President could have concluded that there had been before Major General Boyle, who affirmed the decision to discharge the appellant, an account of the recommendation of Brigadier General Aherne that the appellant be allowed a further period of three months to reach fitness. The background to this complaint is that the actual discharge form incorrectly recorded Brigadier General Aherne as having recommended the discharge of the appellant. In fact, that officer had recommended that the appellant be permitted a further period of three months during which she might be able to achieve the fitness standards. His recommendation to that effect was conveyed to the officer making the discharge decision, on his behalf, by Lieutenant Colonel Buckley. Counsel for the appellant argued that, in these circumstances, it was incumbent on Major General Boyle to swear an affidavit verifying that he was aware of the view of Brigadier General Aherne. That would have been the best evidence. In the affidavit of Brigadier General Aherne, dated the 2nd of August 2012, an account is given of the AF97B form and the letter written by him on 16th Feb 2012, containing his recommendation regarding Sgnt Mellett.

Paragraph 5;

“I say that the decision not to offer the Applicant an Extension of Service had been taken as set out in the Affidavit of Commandant Ray Kenny. The formal discharge process had now reached my desk and a recommendation to discharge or not to discharge was required at Part Four of the form 9AF97B) for onward transmission to the prescribed authority, Deputy Chief of Staff Support (hereinafter “D COS (Sp)”)”

Paragraphs 7-10:

“I say that I did not complete the form at that time but directed my Adjutant to write D COS (Sp) to recommend a further three month period during which the Applicant might prepare for and pass her tests, failing which her discharge would proceed. I say and believe that this letter, already exhibited with the Applicant’s Statement of Grounds, was dated 16th Feb 2012 and was appended to AF97B (with Part Four blank) for onward transmission to D COS (Sp).

I say in early April 2012 I was briefed that D COS (Sp) as the prescribed authority in this case had decided to discharge Sgwn Mellett. The date chosen for this discharge was 05 Apr 2012 and when the AF97B was returned to my office from the office of the D COS (Sp) upon which the decision of the D COS (sp) was recorded in a manner as prescribed, I say that I filled in the particulars at Part Four and dated as recorded on the AF97B.

I say that I filled in the particulars of Part Four at that time to effectively follow through administratively on the decision of the D COS (Sp) and record same at Part 4.

I say and believe that the DCOS (Sp) was in receipt of my recommendation but decided, as is his prerogative, to seek discharge immediately.”

46. Kearns P. in the High Court resolved this issue as follows;

“It appears from both the written submissions and the affidavits filed in the present case, that there is a marked divergence between the evidence of the applicant and that of the respondents regarding the practicalities of achieving the requisite fitness level during the four month period set for her to achieve the requisite BMI to undergo her fitness test. Although the applicant contested this evidence in her affidavits, it was at all times open to her to cross-examine the makers of the affidavits stating to the opposite effect that she had ample time and opportunity to get fit but this option was one she ultimately chose not to pursue.”

47. In effect, this is a pure matter of sufficiency of evidence. Counsel for the appellant submitted that the serious final nature of the order for discharge from the Defence Forces combined with the admitted defect in the discharged form AF97B should have led to the conclusion that there was insufficient evidence that the recommendation had been before Major General Boyle.

48. The third point, very briefly advanced, was an extension of the second. It was to the effect that, in the circumstances, and for the same reasons, it was incumbent on Major General Boyle to give reasons for declining to accept the recommendation of Brigadier General Aherne. Put otherwise, he had before him an application for discharge, but there was included in the papers a recommendation from Brigadier General Aherne that the appellant should be allowed a further period of three months. If Major General Boyle, so the argument goes, intended to authorise discharge in the face of such a recommendation, he should have dealt specifically with the recommendation.

Conclusion
49. The nature of the appellant’s claim is necessarily narrowly constrained by the circumstances of the case. The fact of central and overwhelming importance was that the appellant had been unable to reach army fitness standards, a fact of which she was fully aware. She had endeavoured to reach the required standards without success. She had, as a result, been finally and definitively refused an extension of service. There was no discretion to decide otherwise: there was no discretion to extend her service. She was, at the best, in the anomalous position of a person serving in the Defence Forces without engagement. It was not at all surprising that the Defence Forces should not wish to retain personnel who were in this irregular status.

50. All the procedures must be looked at in the light of the underlying fact that the appellant was, for several years, unable to reach the required standards and that she was fully aware of that fact. She was aware of the fact that her service was not extended for that reason. She was made aware of the intention to move to have her discharged and the reason for it.

51. So far as the EOS file was concerned, she was not entitled by any statute or under Defence Force Regulations to access to the file. There is no general right under the rules of natural justice to access to the entire file of the decision maker. Thus, the point comes down to the fact that the EOS file contained reports from two officers to the effect that the appellant was permitted ample time by way of relief from the rigour of her duties to get fit. The appellant disputes this on affidavit. In my view, this is a side issue and not the main issue. It is well established that the rules of natural justice oblige a decision maker to acquaint the person to be affected with the intention to, in this case, seek her discharge and the essential reasons for it. Kearns P. cited the statement of Henchy J. in the case State (Gleeson) v. Minister for Defence [1976] I.R. 280. Gleeson was a case in which a member of the Defence Forces had been discharged for discreditable reasons without first being informed of the reason for the discharge or afforded any hearing to address the complaint upon which discharge was founded. Henchy J stated at p. 295:-

“In my judgment, the plea that the discharge was invalid because there was a breach of natural justice, in that the prosecutor should have been given an opportunity of being heard before being discharged is well founded. It is true that a few weeks before his actual discharge he was given notice that he was to be discharged; so he had both time and opportunity to make representations in regard to the proposed discharge. But, be it noted, he was never informed of the reason for his discharge until after he had actually been discharged; and he was given no information as to the facts or findings relied on to support that reason until the affidavits made on behalf of the respondent Minister were filed in the present proceedings. It is plain that before the prosecutor’s discharge he was given no opportunity of meeting the case for discharging him for the prescribed reason relied on.”

52. The rules of natural justice do not go so far as to require the affected person to be informed of all facts and details surrounding the decision. In the present case, the appellant was herself, in any case, fully aware of the circumstances in which she was unable to make herself fit. It was perfectly open to her to make any submissions she thought relevant. In my view, the complaint relates to a matter of fine detail. I do not believe that the appellant was deprived of the benefit of fair procedures. I would reject this ground.

53. The second point is simply a matter of evidence. There was affidavit evidence that the recommendation of Brigadier General Aherne was conveyed, via Lieutenant Buckley, to Major General Boyle. The learned President accepted that this was so. In any event, the essential point was whether the appellant was to be discharged from the Defence Forces for the simple reason that she had persistently failed to reach required fitness standards. So far as this central issue was concerned, the appellant was fully informed and does not dispute that she was fully aware of the reason proposed for her intended discharge. Thus, she does not claim that there was any lapse from standards of compliance with the rules of natural justice which comes anywhere near the circumstances of State (Gleeson) v Minister for Defence, already cited. Her complaint is the extremely limited one that she was not made aware of the fact that Brigadier General Aherne had recommended that she be allowed a further period of three months for a further attempt to comply. This is not a case of failure to disclose material which was adverse to her. Its non-disclosure could not be described as prejudicial. I would dismiss this ground.

54. It follows also that I would dismiss the third closely-related ground. The reason for discharge was her failure to achieve the fitness standards. This ground was stated. There was no separate obligation to state reasons for not acceding to a plea on essentially compassionate grounds that she be given a further chance.

55. For all these reasons, I would dismiss the appeal.

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You are here: BAILII >> Databases >> Supreme Court of Ireland Decisions >> Mellett v Minister for Defence, Ireland and the Attorney General [2014] IESC 33 (09 April 2014) URL: http://www.bailii.org/ie/cases/IESC/2014/S33.html Cite as: [2014] IESC 33

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