Cheryl Mellett v Minister for Defence and Others

• Jurisdiction: Ireland
• Judge: Mr Justice Fennelly
• Judgment Date: 09 April 2014
• Neutral Citation: [2014] IESC 33
• Court: Supreme Court
• Date: 09 April 2014

[2014] IESC 33

THE SUPREME COURT

Murray J.

Hardiman J.

Fennelly J.

Appeal No.: 137/2013

Mellett v Min for Defence & Ors

BETWEEN:

CHERYL MELLETT

Applicant/Appellant

and

MINISTER FOR DEFENCE, IRELAND and THE ATTORNEY GENERAL

Respondents

DEFENCE FORCE REGS A10 ART 8(1)(D)(ii)

DEFENCE ACT 1954 S64

DEFENCE FORCE REGS A10 ART 9(2)(A)

DEFENCE FORCE REGS A10 ART 234

DEFENCE ACT 1954 S78(1)

DEFENCE ACT 1954 S73

GLEESON, STATE v MIN FOR DEFENCE 1976 IR 280

MCGRATH v MIN FOR DEFENCE & ORS 2010 1 IR 560 2009/35/8644 2009 IESC 62

Defence forces – Required fitness – Judicial review – Appellant seeking judicial review of the decision discharging her from the Defence Forces – Whether evidence was properly considered when making the decision

Facts: The appellant, Ms Mellett, was enlisted as a naval recruit in the Defence Forces in 2004. In 2009, her five year term of engagement expired and she continued service without engagement pursuant to s. 78(1) of the Defence Force Act 1954. The appellant had been chronically unable to meet the required fitness standards. Procedures were commenced and she was discharged from the Defence Forces in a 2012 decision pursuant to s.73. The appellant sought judicial review in the form of an order of certiorari of that decision. Her grounds of application were as follows: (1) she was not provided with the statutory reason for her discharge; (2) she was not furnished with her Extension of Service file (EOS file) which contained the grounds supporting the initial recommendation to discharge her; (3) the ultimate adjudicator did not have before him all relevant matters when making his decision, 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. The High Court rejected the application in 2013, dismissing each ground: (1) the applicant had been informed by her commanding officer that he was recommending that she be discharged; (2) she could have been in no doubt as to the details of her fitness history contained in the EOS file or the consequences of her failure to meet the fitness standards; (3) she failed to seek to have the relevant witnesses cross-examined; (4) although an error had been made, the recommendation had reached its destination prior to the decision being made. Ms Mellett appealed to the Supreme Court, inviting to Court to quash the decision discharging her. She submitted that the failure to provide her with her EOS file was prejudiced and that the recommendation of Brig General Aherne was not properly considered by Major-General Boyle when making the decision.

Held by Fennelly J that all of the procedures must be looked at in the light of the underlying fact that the appellant was unable to reach the required fitness standards and that she was fully aware of that fact; she was aware that her service was not extended for that reason and she was made aware of the intention to move to have her discharged and the reason for it. Fennelly J held that the appellant was not entitled by any statute or under Defence Force Regulations to access to the EOS file. Fennelly J noted that the rules of natural justice oblige a decision maker to acquaint the person to be affected with the intention to seek their discharge and the essential reasons for it, referring to State (Gleeson) v Minister for Defence [1976] IR 280. Fennelly J held that 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, ruling that the appellant was not deprived of the benefit of fair procedures. Fennelly J held that there was affidavit evidence that the recommendation of Brig General Aherne was conveyed to Major-General Boyle. Fennelly J ruled that this was not a case of failure to disclose material which was adverse to the appellant; the non-disclosure could not be described as prejudicial

Fennelly J, having dismissed all grounds, dismissed the appeal.

Appeal dismissed.

1 This is an appeal from the judgment of the President of the High Court of 1 ^st March 2013 in which he rejected the application of the appellant for judicial review of the decision of 22 ^nd 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 22 ^nd 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 1 ^st 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(l)(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 19 ^th 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...