THE  HIGH  COURT

JUDICIAL REVIEW

RECORD NO. 630JR2001

BETWEEN

ANTHONY BYRNE

APPLICANT

AND

MINISTER OF DEFENCE AND LIEUTENANT GENERAL

C.E. MANGAN, CHIEF OF STAFF

RESPONDENTS

Judgment of Finnegan P. delivered on Wednesday the 31st March 2004.

The Applicant enlisted in the Permanent Defence Forces on the 9th August 1988 his engagement following an extension in service being for a period of twelve years.  This period expired on the 9th August 2000.  The Defence Act 1954 section 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 29th 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 1st March 2001 but due to deferrals he was not in fact discharged until the 21st September 2001.  The Applicant on this application seeks reliefs the effect of which would be to annul his discharge.  

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 1st April 1997 to the 9th 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 29th 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 22nd 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 23rd 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 19th March 2001 as the date of his discharge.  By letter dated 13th March 2001 the Applicant invoked the provisions of the Defence Act 1954 section 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 19th September 2001.  The Applicant was discharged from the Permanent Defence Forces on the 21st September 2001.

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

(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 21st September 2001.

(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.

(3)	An Order quashing the decision of the first named Respondent made 28th 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.

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

(4)	An Order quashing the decision of the second named Respondent made 2nd August 2001 confirming the 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.

Notwithstanding the manner in which the reliefs are framed the sole issue on this application is the legality of the decision of Lieutenant Colonel Briody not to recommend the Applicant for re-engagement.  See Affidavit of the Applicant’s Solicitor Fergus O’Regan sworn on the 26th July 2002 at paragraph 7 thereof.

Firstly it is claimed that the decision of the Commanding Officer not to recommend was made on invalid reasons or based on irrelevant considerations or on consideration of matters in excess of those which the Commanding Officer was entitled to take into account and accordingly was ultra vires and in breach of regulations.  In consequence of this it is further argued that the decisions on the redress of wrongs procedure of the Adjutant General and the Minister should also be struck down.  The Applicant argues that in order to qualify for re-engagement a man must meet three requirements.

(1)	His Commanding Officer must make a recommendation pursuant to the Defence Act 1954 section 64.

(2)	He must have an appropriate medical grading:  Army Administration Instruction Part 10 (Amdt. No. 20) paragraph 230.  However the practice for many years has been to treat men with lower than stipulated grades as eligible.

(3)	His conduct must be assessed not lower than “good”:  Defence Force Regulations A10  Regulation 10(2).

The Applicant satisfies the requirements at (2) as applied in practice and (3).  In these circumstances, it is argued, as the Applicant satisfies the requirement at (2) as applied in practice above it is not open to his Commanding Officer to have regard to the Applicant’s medical condition in deciding whether or not to make a recommendation.

The Defence Act 1954 section 26 enables the Minister to make regulations, not inconsistent with the Act, in relation to any of the matters mentioned in the Fourth Schedule to the Act.  The Fourth Schedule at paragraph 7 lists as a matter for the purposes of section 26 the discharge of men.  Section 64 reads as follows –

“Subject to any regulations from time to time made by the Minister, a member of the Permanent Defence Force 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 further period of service in the Permanent Defence Force as will make up a total continuous period of twenty one years service reckoned as aforesaid and inclusive of any period previously served in the Reserve Defence Force.”

I am satisfied that  section 64 confers upon the Commanding Officer a discretion without restriction on the matters to which regard may be had in the exercise of the same.  To read the section in conjunction with Defence Force Regulations A10 or A12 as limiting that discretion would render the Regulations inconsistent with the Act and so ultra vires the Minister.  Similarly the discretion of the Commanding Officer could not be curtailed by an Army Administration Instruction.  I am satisfied that the discretion conferred upon the Commanding Officer by section 64 of the Act to make a recommendation in favour of a member of the Permanent Defence Force is a pre-condition to re-engagement and not as contended by the Applicant one of three requirements.   Once this pre-condition is satisfied whether the member should be re-engaged or not is a matter for the prescribed military authority under section 64 of the Act.  The two further requirements, medical grading and conduct, are matters to which regard can then be had by the prescribed military authorities.  These matters do not concern the Commanding Officer however.  The only basis upon which the exercise by him of his discretion can be challenged is upon the ground of unreasonableness within the meaning of the The State (Keegan) v Stardust Victims Compensation Tribunal 1987 ILRM 202.  Having regard to the lengthy periods for which the Applicant had been on light duties or on sick leave and the stated reason for the Commanding Officer’s decision not to make a recommendation in favour of the Applicant, namely that he was as a result of the same ineffective,  I am satisfied that it cannot be said that the Commanding Officer’s decision is fundamentally at variance with reason and common sense.  It follows from this that the decision of the Adjutant General and the Minister pursuant to the redress of wrongs procedure cannot be interfered with.

Having regard to the foregoing arguments addressed by the Applicant relating to the failure to convene a medical board to determine his correct grading do not need to be considered his discharge not being on the ground of his grading.  In any event Defence Force Regulations A12 Part 2 relate to sick leave and not to discharge.  

In the course of the hearing Counsel on behalf of the Applicant referred to Defence Force Regulations A10 and Regulation 58 which sets out the wording to be used in recording the reason for discharge.  The reason at (f) in the Regulations cannot apply to the Applicant as he had more than one year’s service.  The reason at (p) is not applicable as it is common case that the Applicant was not below Defence Forces medical standards.  The reason at (r)  – “His services being no longer required” -applies in the case of a man whose discharge is clearly desirable in the interests of the service and in whose case no other reason for discharge is applicable.  While the Commanding Officer was of the view that the Applicant’s discharge was desirable in the interests of the service another reason for discharge is applicable namely that at (t) – “On termination of engagement”.  The correct reason to be given pursuant to the Regulations is that at (t).  As I understand it (t) is the reason in fact stated for the Applicant’s discharge.  

The next argument on behalf of the Applicant is that Army Administrative Instruction Part 10 (Amdt. No. 20) paragraph 230 with regard to timescales was not complied with.  Instruction 230 requires members who apply for re-engagement and who are in a medical category lower than B3 to be brought before a medical board:  the Applicant was graded lower than B3 on a temporary basis as temporarily unfit and these provisions accordingly apply to him.  However, as mentioned, in practice a man with a grading  higher than E is regarded as eligible.  The object of this provision is to ensure that the prescribed military authority has an up to date grading for the purposes of giving approval under section 64 of the Act where the Commanding Officer makes a recommendation for re-engagement.   As this matter never progressed to the point of such approval, the Commanding Officer not having recommended re-engagement, the non compliance did not affect the Applicant.  Further the non compliance is irrelevant to the decision of the Commanding Officer which is sought to be impugned in these proceedings.

Next on behalf of the Applicant it is argued that he comes within the provisions of section 78 of the Defence Act 1954.  Section 78 provides as follows –

“78(1) Where a person 
             (a)  has accepted pay as a man of the Permanent Defence Force and
             (b)   has neither been attested nor re-engaged as a man of the Permanent Defence Force
the following provisions shall have effect
	(i)   such person may at any time claim his discharge and on such claim being made he shall be discharged from the Permanent Defence Force with all convenient speed and

	(ii)  until such claim is made and such person is actually discharged in the manner prescribed by regulations made under section 81 he shall be
                    subject to this Act as a man of the Permanent Defence Force duly enlisted and attested or re-engaged.”

After the termination of his term of service the Applicant continued to be paid.  Accordingly the section applies to him.  On his behalf it is argued that the effect of the section is that he is therefore deemed to be re-engaged.  I am satisfied that this is not the legislative intention nor the effect of section 78.  The section makes a man coming within its terms subject to the Act, that is the provisions of the Act apply to him until he is discharged.  The section does not admit a construction that once pay is accepted by a man not re-engaged he should be deemed to be engaged so obviating the necessity for re-engagement;  the section merely provides that until his discharge he remains subject to the Act.

Finally in paragraph 16 in the Statement of Grounds the Applicant alleges non compliance in a number of particulars with provisions of Defence Force Regulations A10.  Firstly it is claimed that there was non compliance with Regulation 58 thereof.  That Regulation deals with the wording to be used in recording the reason for discharge.  I have already dealt with what I consider to be the appropriate reason and which is in fact the reason and wording used in relation to the Applicant.  The appropriate reason should of course be recorded in the records and if that had not been done I would order that it should now be done.  However even if the wording was in fact incorrect this does not in any way affect the validity of the decision of the Applicant’s Commanding Officer not to recommend him for re-engagement.  Secondly the Applicant suggests that Lieutenant Colonel Ryan rather than the Officer in Charge Records dealt with the matter under Regulation 58.   I am satisfied on the Affidavit of Lieutenant Colonel Briody at paragraph 24 thereof that the Applicant is incorrect in this.  Thirdly the Applicant contends that there was non compliance with Regulation 47 in that that Regulation requires him to be examined by a Medical Officer within as short a space of time as possible prior to discharge.  While the Applicant was not medically examined prior to the original date set for his discharge the original date was postponed and he was not in fact discharged until the 21st September 2001 and a medical examination was carried out upon him on the 22nd August 2001 and accordingly I am satisfied that Regulation 47 was in fact complied with in this regard.  

In the circumstances aforesaid the Applicant is not entitled to the relief which he claims on this application.