The High Court dismissed Sergeant David Carroll’s application for judicial review of the decision not to continue his service in the Permanent Defence Force. Mr Justice Herbert, delivering judgment on 10 November 2006, refused the relief sought despite finding that a required warning had been overlooked.
Carroll had applied in June 2003, after 29 years’ service, for a fifth two-year period of continuance. He sought to reach 31 years of qualifying service towards a pension. The General Officer Commanding did not recommend continuance in January 2006, citing an unsatisfactory conduct assessment and concluding that continued service was not in the interests of the service. Carroll was discharged from the Defence Force with effect from 13 January 2006, after 31 years’ service, and was entitled to a military pension appropriate to that service.
The assessment relied on his record of absence without leave. The judgment records that, in the two years before the relevant assessment date of 13 October 2003, he had forfeited 22 days’ pay by 6 December 2001. Under the applicable Defence Force Regulations, that required an “unsatisfactory” conduct assessment. The court also noted further absences after he was paraded in October 2002 and told that continuance would not be recommended because of his disciplinary record.
Carroll argued that he had not received the advance warning required by an administrative instruction for personnel whose conduct could jeopardise an application to continue in service. The court held that the October 2002 meeting did count as a warning, but came too late to prevent the unsatisfactory assessment. It found that the warning requirement had been overlooked, probably because of the applicant’s absences.
However, the judge found that Carroll had not shown the omission caused him prejudice. On the balance of probabilities, the court concluded he would have continued to be absent without leave even if warned before 30 November 2001. The judgment found the statutory assessment procedures had otherwise been observed and that there was ample material to support the conduct assessment and the recommendation against continuance.
The court therefore refused certiorari and declaratory relief and dismissed the judicial review application. It did not overturn the decision not to continue Carroll’s service.