Dunne v Minister for Defence
| Jurisdiction | Ireland |
| Judge | Ms. Justice Dunne |
| Judgment Date | 20 July 2011 |
| Neutral Citation | [2011] IEHC 383 |
| Court | High Court |
| Date | 20 July 2011 |
[2011] IEHC 383
THE HIGH COURT
BETWEEN
AND
DEFENCE ACT 1954 S81
WELDON v MIN FOR HEALTH & LOURDES HOSPITAL REDRESS BOARD UNREP KEARNS 10.12.2010 2010/53/13238 2010 IEHC 444
O'DONNELL v DUN LAOGHAIRE CORP 1991 ILRM 301 1990/8/2084
O'BRIEN v MORIARTY 2006 2 IR 221 2005 2 ILRM 321 2005/45/9458 2005 IESC 32
MCGRATH v MIN FOR DEFENCE & ORS 2004 2 IR 386 2004/34/7996 2004 IEHC 66
RSC O.84 r21
DEFENCE ACT 1954 S63(1)
DEFENCE ACT 1954 S64
DEFENCE ACT 1954 S81(2)
DEFENCE FORCE REGS (DFR) A10 REG 8
DEFENCE FORCE REGS (DFR) A10 REG 8(1)(E)
DEFENCE FORCE REGS (DFR) A10 REG 9(2)
DEFENCE FORCE REGS (DFR) A10 REG 58
DEFENCE FORCE REGS (DFR) A10 REG 58(S)
BYRNE v MIN FOR DEFENCE & MANGAN UNREP FINNEGAN 31.3.2004 2004/5/1128 2004 IEHC 35
DEFENCE FORCES
Discharge
Judicial review - Discharge - Certiorari - Decision not to recommend extension of service - Failure of fitness tests - Delay - Relevant date for assessment of delay - Date of formal decision to discharge applicant - Whether applicant within time - Whether failure of respondent to comply with procedures provided in training instructions -Alleged failure to provide necessary support and training - Alleged breach of fair procedures - Status of training instructions - Whether training instructions binding or guidelines - Discretion of commanding officer - Whether discretion could be curtailed by training instructions - Discretionary nature of certiorari - Weldon v Minister for Health [2010] IEHC 444, (Unrep, Kearns P, 20/7/2011); O'Donnell v Dun Laoghaire Corporation [1991] 1 ILRM 301; O'Brien v Moriarty [2005] IESC 32, [2006] 2 IR 221; McGrath v Minister for Defence [2004] IEHC 66; [2004] IR 386; De Roiste v Minister for Defence [2001] 1 IR 190 and Byrne v Minister for Defence [2004] IEHC 35, (Unrep, Finnegan P, 31/3/2004) considered - Defence Forces Act 1954 (No 33), s2 63, 64 and 81- - Application refused (2010/148JR - Dunne J - 20/7/2011) [2011] IEHC 383
Dunne v Minister for Defence
Facts The applicant had been a member of the Defence forces and had been discharged having failed to pass the fitness test required. The applicant brought judicial review proceedings by way of certiorari to quash the order of discharge and sought an order reinstating her as a member of the Defence forces. The applicant had failed in her attempt to pass the fitness test required. It was contended on her behalf that the relevant procedures in the Defence Forces Training Instructions had not been followed and that she had been denied fair procedures. The applicant also contended that she was given a generic training programme which did not relate to her personally An issue also arose as to whether the proceedings were within the applicable time limits with the respondent contending that they were out of time. It was also contended that compliance with the Defence Forces Training Instructions was not amenable to judicial review.
Held by Dunne J in refusing the relief sought. The applicant could not have been expected to bring proceedings until such time as the final decision which affected her had been notified to her and the proceedings were therefore in time. The Defence Forces Training Instructions were guidelines and did not provide a prescriptive set of rules that must be adhered to in every case before a commanding officer made a recommendation. It was clear that the applicant had an exemplary record with the Defence Forces and was also anxious to remain a member of the Defence Forces. However every possible opportunity was given to the applicant to overcome the difficulties relating to fitness. At the end of the day, the applicant had struggled unsuccessfully to meet the necessary requirements to continue as a serving member. The court could not exercise its discretion to grant judicial review, even if it was satisfied that there had been a breach of fair procedures or natural justice.
Reporter: R.F.
JUDGMENT of Ms. Justice Dunne delivered the 20th day of July 2011
The applicant herein sought leave to apply for judicial review by way of certiorari quashing the order of discharge of the applicant from the Defence Forces on the 12 th August, 2009 and an order reinstating her as a member of the Defence forces serving without engagement as and from the 12 th August, 2009. Leave to apply for judicial review was granted by the High Court (McKechnie J.) on the 11 th February, 2010.
The applicant herein enlisted as a member of the Defence Forces for a five year term on the 12 th July, 2000. Therefore, her period of service expired in July 2005. She applied for an extension of service at that time but was not recommended for an extension of service because, although she was of the requisite weight to engage in her annual fitness test, she failed a fitness test in May 2005.
The applicant became pregnant and was therefore exempted for the period of her pregnancy from undergoing a fitness test. She gave birth in 2006. Unfortunately the applicant suffered from post natal depression. She attempted to return to work in November 2006, but was unable to cope. She came under the care of Cmdt. Tobin, psychiatrist, at that time and was prescribed leave together with medication. In January 2007, the applicant was paraded and served with a Health Related Fitness Assessment (HRFA) having failed the earlier fitness test. She was not permitted to undergo a fitness test at that time as her body mass index (BMI) was in excess of the limit permitted for members of the Defence Force required to take fitness tests. She went on sick leave again in April, 2007, and remained on sick leave until July, 2007. She was informed in July 2007 and subsequently in November 2007 that she would not be recommended for reengagement. In July 2007 and again in November 2007, the applicant appealed those decisions and she was informed that her service would be extended until February 2008. The purpose of those extensions was to allow her to achieve the requisite standard for fitness to enable her to continue serving in the Defence Forces.
During the period between January 2007 and February 2008, the applicant had managed to reduce her weight from 95 to 90 kgs. but her BMI remained above the maximum limit and consequently she was not allowed attempt a fitness test in February 2008. Subsequent to that, again a decision was made not to recommend the applicant for extension of service. The applicant appealed that decision and ultimately in October 2008, she was informed that her service extended until January 2009. She was served with a Health Related Fitness Assessment. In January 2009, she applied for a further extension of service and this was granted until March 2009. She was informed at that point that no further extension would be granted. She failed a fitness test then on the 23 rd March, 2009 and subsequently on the 27 th March, 2009, and in April 2009, was informed that she would not be recommended for a further extension of service. Ultimately in April 2009, an application for her discharge was completed and in May was approved by the General Officer in Command. That decision was confirmed towards the end of July and on the 12 th August 2009, the discharge of the applicant from the Defence Forces took place. It is clear that throughout the period following the conclusion of her first period of service, the applicant's service was extended regularly to enable her to pass the requisite fitness test.
The complaints made by the applicant centre around the Defence Forces Training Instructions dated the 28 th February, 2007. In the statement of grounds reference is made to the fact that where a member of the Defence Forces is placed on a Health Related Fitness Assessment a threefold process must then be followed pursuant to 12D and 13J(1) and (2) of the Training Instructions. It would be useful at this point to refer in some more detail to the statement of grounds which provides as follows:-
2 "8. Pursuant to 13J(2)(a) and 12D, a party must be assessed and provided with a personal training programme and a personal trainer, and be afforded a twelve week period within which to prepare for a further test. Pursuant to 13J(2)(b) if the member fails the next test, he or she is to be provided with a further period of eight weeks to prepare for another test, again with the assistance of a remedial training programme and personal assistant. In the event that the member fails the second test, he or she can, after having been medically cleared, be tested again within a seven month period.
9 Contrary to 13J(2)(a) of the Defence Forces Training Instructions outlined above, the applicant was not the subject of an assessment in October 2008, nor was she monitored during the course of the twelve week period or given any assistance from her personal training assistant. Further her trainer was substituted on the 22 nd December, 2008 and she was supplied with a new training programme.
10. The applicant was scheduled for her second test at the end of January 2009, which was postponed until March 2009, as she was ill. The applicant was tested on the [23 rd] March, 2009 and failed. Contrary to 13J(2)(b) of the Defence Forces she was not afforded another period of eight weeks of assisted training within which to prepare for a further test, rather she was tested again on the 27 th Mach 2009 and failed. The applicant was then informed, as she had been informed previously, that having failed her test she would be discharged.
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13. Having regard to the matters aforesaid the respondent acted in breach of the principles of natural and constitutional justice, and the...
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Whelan v Minister for Defence
...any submissions she thought relevant.” 107 The respondent also relies upon the decision of Dunne J. in Dunne v. Minister for Defence [2011] IEHC 383. In that case, after her initial five-year term of engagement, the applicant sought to extend her service in 2005 but failed the required fitn......