Home | © 2018 GA Publishing Mosman Sydney for legal practitioners

Defence force personnel, right of action

Haskins v The Commonwealth [2011] HCA 28.


54. A defining characteristic of the defence force is that each service is a disciplined force: Re Colonel Aird (2004) 220 CLR 308 at 323 [42], organised hierarchically. The maintenance of discipline is critical to the efficiency of the services.

55. By joining the defence force, members submit themselves to military law and discipline but do not put off any of the rights and duties of a civilian: Burdett v Abbot [1812] EngR 191. As the contributors to the first edition of Halsbury's Laws of England rightly said, although service personnel:

"enjoy certain privileges and are subject to certain disabilities created for the purpose of enabling them to discharge their duty to the Crown with greater efficiency ... they are in all respects amenable to, and entitled to claim the protection of, the civil tribunals and the ordinary law of the land".

That is why, as was pointed out in White v Director of Military Prosecutions (2007) 231 CLR 570 at 592 [38], "the civil law of obligations does not cease to run merely because the obligations in question bind or confer rights upon a defence member".

56. As was also pointed out in White, the system of military discipline cannot and does not operate beyond the ambit of Ch III of the Constitution. Those who constitute service tribunals are officers of the Commonwealth for the purposes of s 75(v).

57. But it by no means follows that an action for false imprisonment should be found to lie as between service members where the act or omission of which complaint is made was an act or omission in the bona fide execution of a form of military punishment that could be lawfully imposed.

58. In Parker v The Commonwealth (1965) 112 CLR 295 at 302, Windeyer J said:

"The courts in England have for nearly two hundred years said, and rightly in my opinion, that to allow a member of the forces to bring an action against another member for an act done in the course of duty would be destructive of the morale, discipline and efficiency of the service, and that for that reason the common law does not give a remedy even if the conduct complained of were malicious. It is not necessary that I trace the line of well-known cases from Sutton v Johnstone [1786] EngR 18, and including Heddon v Evans (1919) 35 TLR 642, in which these principles have been discussed.

"The question in its broader aspect is, the House of Lords said in Fraser v Balfour (1918) 87 LJKB 1116, still open, at all events before their Lordships. And I think it is still open before this Court: see Gibbons v Duffell (1932) 47 CLR 520 at 527.

"But, whatever be the true position in relation to malicious injuries and defamation, my present view is that actions of negligence are not maintainable by a member of the forces against a fellow member, whether commander, comrade or shipmate, in respect of acts done by him in the course of duty."

59. This Court's decision in Groves v The Commonwealth (1982) 150 CLR 113 shows that the statement by Windeyer J was expressed too widely.

In Groves the Court held that an action in negligence is maintainable against the Commonwealth by a serving member of the defence force for damage caused by the negligence of a fellow service member while on duty in peace time where such an action would be available to a civilian in the same situation as the plaintiff service member.

The plaintiff in Groves was held to be able to recover damages for personal injury suffered when he fell from a ladder that had not been securely fastened by a crew member on the Royal Australian Air Force aircraft on which both were serving.

All members of the Court left open whether some other rule should apply if injury was suffered in warlike operations, including "activities of a purely military character" such as training exercises.

And the difficulties presented by acts done in intended enforcement of discipline within the services were also recognised.

60. As Gibbs CJ pointed out in Groves, the cases to which Windeyer J referred in Parker "were all cases in which the conduct of the defendant was intentional and purported to have been done in the course of military duty or discipline, and the plaintiff's case was that there had been an exercise of authority that was malicious or otherwise wrongful".

As Gibbs CJ also noted, reluctance has more than once been expressed about formulating any general rule excluding from consideration by the courts all cases founded in what is alleged to be the wrongful exercise of military discipline. And the plurality reasons in Groves explore and emphasise the difficulties that underpin that reluctance.

But a majority of the Court expressly distinguished the negligent conduct at issue in Groves from conduct carried out in obedience to a specific order of a superior officer.

In Sutton v Johnstone [1786] EngR 18, the several Dawkins cases [Dawkins v Lord Rokeby [1866] EngR 5] and Heddon v Evans (1919) 35 TLR 642, it was held that no action lay - in cases variously for malicious prosecution, defamation and false imprisonment-  for certain acts done in the course, or for the purposes, of military discipline, even if malice were proved Gibbons v Duffell (1932) 47 CLR 520.

In all but Heddon v Evans, maintenance of discipline was a critical reason advanced for the conclusion reached. In Heddon v Evans, McCardie J concluded that the actions of which complaint was made were not actions done in excess of or without jurisdiction. It is neither necessary nor appropriate, however, to attempt to distil from those decisions, or now state, a general rule to the effect that no action in tort will lie in respect of any act done or omission made in the course of, or for the purposes of, military discipline.


65. In Keighly v Bell (1866) 176 ER 781 at 800, Willes J said that:

"a soldier, acting honestly in the discharge of his duty – that is, acting in obedience to the orders of his commanding officers – is not liable for what he does, unless it be shown that the orders were such as were obviously illegal".

Or as Pollock put the same point, in the first edition of The Law of Torts (1887):

"the subordinate ... is protected if he acts under orders given by a person whom he is generally bound by the rules of the service to obey, and of a kind which that person is generally authorized to give, and if the particular order is not necessarily or manifestly unlawful."


67. To permit the plaintiff to maintain an action against those who executed that punishment, whether service police or the officer in charge of the Corrective Establishment, would be destructive of discipline. Obedience to lawful command is at the heart of a disciplined and effective defence force. To allow an action for false imprisonment to be brought by one member of the services against another where that other was acting in obedience to orders of superior officers implementing disciplinary decisions that, on their face, were lawful orders would be deeply disruptive of what is a necessary and defining characteristic of the defence force.

It would be destructive of discipline because to hold that an action lies would necessarily entail that a subordinate to whom an apparently lawful order was directed must either question and disobey the order, or take the risk of incurring a personal liability in tort.

68. In the circumstances of this case, no action for false imprisonment lies against the Commonwealth. It follows that the Interim Measures No 2 Act acquired no property of the plaintiff. His second argument fails.

Previous page: Default judgment, setting aside     Next page: Defences in bar

© 2018 GA Publishing Mosman Sydney | piets/wcms | Account

Common Law Monthly Summaries

12 editions $385 incl GST

Subscribe Sample