The High Court has granted Kevin Donoher leave to seek judicial review of a decision to discharge him from the Naval Service, citing arguable concerns that the Defence Forces’ prescribed procedures may not have been followed.
Mr Justice Garrett Simons gave the ruling on 5 July 2024. The application was heard at the leave stage, where the question was whether the proposed case was arguable. The judge stressed that this was a modest threshold, not a decision on the ultimate merits of the challenge.
The proposed discharge appears to have followed a Medical Board determination in September 2023 recommending that Mr Donoher be assigned “Grade 3”. He said on affidavit that he understood this related to concerns about his liver and a diagnosis of fatty liver. After being told in October 2023 that the discharge process would proceed because his medical category fell below the required standard, he lodged an appeal.
Mr Donoher later obtained a report from a consultant hepatologist, dated 31 January 2024, which he said found no significant health impairment and assessed him as equivalent to “Grade 1”. He said he submitted the report to the military authorities. The Deputy Chief of Staff approved the discharge application, and Mr Donoher was told in April 2024 that his discharge date would be 9 July.
The judge said the papers did not make clear whether the report had been considered by the Deputy Chief of Staff, who held the decision-making authority. The Defence Forces’ procedures require a member to be told the statutory reason and grounds for a proposed discharge, and provide an opportunity to make representations. The authorised officer must consider any representations before deciding. The judge found it arguable that these requirements had not been met.
The court granted leave for specified reliefs in Mr Donoher’s statement of grounds. It did not determine whether the discharge decision was unlawful. The judgment also noted concerns that information about procedural rights had apparently been communicated orally, and said a written explanation of those rights and applicable time limits would be preferable.
The judge ordered a temporary 21-day stay on the proposed discharge. The State respondents may apply to set aside or vary the stay on three clear days’ notice. The proceedings were listed for 9 July 2024, when the parties could seek an early hearing date for the substantive judicial review. Mr Donoher was directed to serve the papers by close of business on 8 July.