The High Court has refused Sandra Dunne’s application for judicial review of her discharge from the Defence Forces, concluding that the Forces’ fitness training instructions were guidelines and did not bind a commanding officer’s discretion over an extension of service.
Dunne sought to quash her discharge, which took effect on 12 August 2009, and to be reinstated. She had been granted leave to bring the judicial review in February 2010. The judgment, delivered by Ms Justice Dunne on 20 July 2011, addressed both a time-limit objection and the substantive challenge.
The respondent argued that the case was late because the relevant decision had been made before the discharge took effect. The court held that the operative decision was the formal discharge decision confirmed on 27 July 2009 and communicated to Dunne on 12 August. It found she could not have been expected to bring proceedings before that formal decision was notified, and therefore held the application was within time.
Dunne’s substantive case concerned Defence Forces Training Instructions governing health-related fitness assessments. She argued that she had not received the prescribed training support and that, after failing fitness tests on 23 and 27 March 2009, she was not given the specified further eight weeks of assisted training before being tested again. She said these procedural failures made the discharge decision unfair.
The court preferred the respondent’s position that the assessment process began in January 2007, rather than restarting when Dunne was placed on an assessment programme in October 2008. It also held that the training instructions were guidelines, not binding rules that curtailed a commanding officer’s discretion to recommend against extending a member’s service. The judge found no breach of fair procedures or natural justice.
The judgment added that, even if there had been such a breach, the court would not exercise its discretion to grant judicial review. It cited the time and opportunities Dunne had been given to meet the fitness requirements, alongside the circumstances described in the evidence. The court refused the application; it did not quash the discharge or order reinstatement.