Byrne v Minister for Defence & Mangan

• Jurisdiction: Ireland
• Judge: Finnegan P.
• Judgment Date: 31 March 2004
• Neutral Citation: [2004] IEHC 35
• Judgment citation (vLex): [2004] 3 JIC 3104
• Court: High Court
• Date: 31 March 2004

[2004] IEHC 35

THE HIGH COURT

RECORD NO. 630JR/2001

BYRNE v. MINISTER FOR DEFENCE & MANGAN

JUDICIAL REVIEW

BETWEEN

ANTHONY BYRNE

APPLICANT

AND

MINISTER OF DEFENCE AND LIEUTENANT GENERAL C.E. MANGAN, CHIEF OF STAFF

RESPONDENTS

Citations:

DEFENCE ACT 1954 S64

DEFENCE ACT 1954 S114

DEFENCE FORCE REGS (DFR) A 10 REG 10(2)

DEFENCE ACT 1954 S26

DEFENCE ACT 1954 SCH 4 PAR 7

DEFENCE ACT 1954 S53

KEEGAN, STATE V STARDUST VICTIMS COMPENSATION TRIBUNAL 1987 ILRM 202 1986 IR 642

DEFENCE FORCE REGS (DFR) A 12 PART 2

DEFENCE ACT 1954 S78

DEFENCE FORCE REGS (DFR) A 10 REG 47

Synopsis:

JUDICIAL REVIEW

Jurisdiction

Legality of commanding officer's decision not to recommend applicant for re-engagement as member of defence forces challenged - Whether commanding officer has discretion to consider applicant's medical record when deciding not to recommend re-engagement - Whether recommendation of commanding officer pre-condition to decision to re-engage applicant - Whether decision ultra vires - Defence Act 1954, section 64 (2001/630JR - Finnegan P - 31/3/2004)

Byrne v Minister for Defence

Facts: section 64 of the Defence Act 1954 provides that: “subject to any regulations from time to time made by the Minister, a member of the Permanent Defence Forces enlisted under section 53 may…on the recommendation of his commanding officer and with the approval of the prescribed military authority be re-engaged for such period of service in the permanent defence force as will make up a total of continuous period of twenty one years service…” In the course of his service the applicant sustained back injuries resulting in an absence on sick leave for almost two years upto his discharge from the permanent defence forces. He had applied for re-engagement which was refused. The applicant then sought various reliefs, the effect of which would be to annul his discharge on the grounds that it was not open to his commanding officer to have regard to his medical condition in relation thereto as it was one of three requirements, according to the applicant, along with the recommendation of his commanding officer under section 64, that had to be met to qualify for re-engagement.

Held by Finnegan P in refusing the applicant the relief sought that section 64 of the Act of 1954 conferred upon a commanding officer of the defence forces a discretion without restriction on the matters to which regard could be had in the exercise of same when deciding on whether to re-engage a member of the forces. To read that section in conjunction with other defence force regulations which would limit such discretion would render the regulations inconsistent with the Act of 1954 and be ultra vires.

That the discretion conferred upon the commanding officer by section 64 of the Act of 1954 to make a recommendation in favour of a member of the defence forces was a pre-condition to re-engagement and not one of three requirements to be met when deciding to re-engage such member.

Reporter: P.C.

1 Finnegan P. delivered on Wednesday the 31st March 2004 .

2 The Applicant enlisted in the Permanent Defence Forces on the 9 ^th August 1988 his engagement following an extension in service being for a period of twelve years. This period expired on the 9 ^th August 2000. The Defence Act 1954section 64 thereof provides in relation to a member in the Applicant's position that on the recommendation of his Commanding Officer and with the approval of the prescribed military authority he may be re-engaged for such further period of service as will make up a total continuous period of twenty one years service. On the 29 ^th September 2000 the Applicant was informed verbally by his Commanding Officer that he would not be recommending the Applicant for re-engagement. It was initially proposed that the Applicant should be discharged on the 1 ^st March 2001 but due to deferrals he was not in fact discharged until the 21 ^st September 2001. The Applicant on this application seeks reliefs the effect of which would be to annul his discharge.

3 In the course of his service the Applicant sustained an injury to his back in April 1996 and had been on sick leave almost continuously from September 1999 until his discharge. From the 1 ^st April 1997 to the 9 ^th April 2001 he was on sick leave or light duties for a total of 1,112 days. The Applicant applied for re-engagement. On the 29 ^th September 2000 he was paraded and advised by his Commanding Officer, Lieutenant Colonel Martin Briody that he did not intend to recommend the Applicant's re-engagement on grounds of ineffectiveness due to continuous absence on sick leave. The Applicant was advised that he was free to make representations and that these would be considered before a final decision on a recommendation would be made and the period up to the 22 ^nd October 2000 was allowed to enable the Applicant to make such representations. The period coincided with the Applicant's marriage and honeymoon. The Applicant was again paraded on the 23 ^rd October 2000 and again asked whether he wished to make representations when he stated that he did not wish to do so. Following this Lieutenant Colonel Briody applied for the discharge of the Applicant on termination of engagement and fixed the 19 ^th March 2001 as the date of his discharge. By letter dated 13 ^th March 2001 the Applicant invoked the provisions of the Defence Act 1954section 114 for redress of wrongs complaining first to the Adjutant General and then to the Minister seeking to be re-engaged but in each case failing to obtain the redress which he sought. The Applicant thereupon instituted the present application on the 19 ^thSeptember 2001. The Applicant was discharged from the Permanent Defence Forces on the 21 ^st September 2001.

4 The reliefs which the Applicant seeks and in respect of which he was granted leave are the following –

5 (1) An Order of Certiorari and/or prohibition and/or injunction restraining the Respondent from taking any action or further dealing with the discharge of the Applicant from the Permanent Defence Forces notified as taking place on the 21 ^st September 2001.

6 (2) An Order of Certiorari and/or prohibition and/or injunction (including interim and/or interlocutory) restraining the Respondent from taking any further steps in the discharge of the Applicant from the Permanent Defence Forces.

7 (3) An Order quashing the decision of the first named Respondent made 28 ^th day of August 2001 confirming previous decisions that the Applicant had suffered no wrong requiring redress and finding that the Applicant's Commanding Officer did not recommend re-engagement for substantial reasons and that a date be set for the Applicant's discharge from the Permanent Defence Forces.

8 (Note: the correct date of the decision of the first named Respondent is the 23 ^rd January 2001)

9 (4) An...