The High Court has refused Cheryl Mellett’s application to quash an order discharging her from the Defence Forces, concluding that the process did not breach fair procedures.
In a judgment delivered on 1 March 2013, President of the High Court Nicholas Kearns said the statutory decision-maker, Major-General Boyle, had seen a recommendation that Mellett receive more time to meet the required fitness standard. The court found that an error in a discharge form was technical and had not prejudiced her.
Mellett’s judicial review challenged the discharge order made on 22 March 2012. She argued that she had not been given the statutory reason for discharge or her Extension of Service file, and that Boyle either had not been told of Brigadier General Aherne’s recommendation for a further period to meet the required fitness standard or had failed to explain why he did not follow it.
The respondents accepted that Mellett had not received the file, but argued there was no legal obligation to provide it. They said Boyle had received Aherne’s recommendation separately, even though it was missing from the relevant section of the discharge form.
The judgment records that Mellett joined the Defence Forces as a naval recruit in November 2004. She passed a fitness test in 2005 but did not pass in the following years. Her five-year engagement expired in 2009, and the Selection Board refused to recommend an extension in December 2011. She was told in January 2012 that discharge was being recommended and that she could appeal.
Kearns said the evidence of two officers supported the respondents’ account that Mellett had been told the statutory reason for discharge. He found she knew that failure to meet the required fitness standard was the basis for the process and was aware of the relevant fitness history, including through an annual report she had signed.
The judge also found that Boyle had considered Aherne’s recommendation for more time. Although Boyle gave no detailed reasons for not following it, Kearns held that reasons were unnecessary in the circumstances because Boyle had the relevant material and held the statutory authority to order discharge. The recommendation from Aherne was not binding.
The judgment noted that Mellett’s appeal through the Defence Forces’ Redress of Wrongs process had been refused. Kearns also referred to an unspecified medical condition as a further complication in her case. He refused the relief sought; the judgment does not set out any order reinstating her or otherwise changing the discharge decision.