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Ferdinands v Minister for Defence [2012] HCATrans 266 (24 October 2012)
Last Updated: 29 October 2012
[2012] HCATrans 266
IN THE HIGH COURT OF AUSTRALIA
Office of the Registry
Adelaide No A22 of 2012
Adelaide No A22 of 2012
B e t w e e n -
TREVOR KINGSLEY FERDINANDS
Plaintiff
and
MINISTER FOR DEFENCE
Defendant
Application for order to show cause
CRENNAN J
TRANSCRIPT OF PROCEEDINGS
FROM MELBOURNE BY VIDEO LINK TO ADELAIDE
ON WEDNESDAY, 24 OCTOBER 2012, AT 10.13 AM
Copyright in the High Court of Australia
MR P.H. D’ASSUMPCAO: If your Honour pleases, I appear for the defendant, the Minister for Defence. (instructed by Australian Government Solicitor)
HER HONOUR: Thank you. Yes, Mr d’Assumpcao.
MR D’ASSUMPCAO: Your Honour, there has been no attendance by the plaintiff at this time. In Adelaide time it is now approximately 9.43 am. In the time available, I did a quick survey of the rules and I could not find a relative rule relating to dismissing the application for failing to attend other than in the context of rule 13 which applies to interlocutory applications or other applications.
HER HONOUR: Yes.
MR D’ASSUMPCAO: In the circumstances, the defendant would pursue the application for dismissal pursuant to rule 27.094, your Honour, and I acknowledge at the outset that the Court’s powers under that rule are only to be exercised in the clearest of cases and where the application is manifestly groundless. Your Honour, the defendant relies on the affidavit of Cabrini Rita Shepherd affirmed on 13 September 2012.
HER HONOUR: Yes, thank you. I have read that.
MR D’ASSUMPCAO: Thank you, your Honour. You will find some familiar judgments in there.
HER HONOUR: Yes.
MR D’ASSUMPCAO: Your Honour, I have also filed an outline of submissions on Monday and a list of authorities yesterday.
HER HONOUR: Yes, I have those and read those.
MR D’ASSUMPCAO: Thank you. I respectfully make two short points in relation to the submissions. The first point is that the gist of the plaintiff’s application, which rests substantially on section 75(v) relief, seeks to compel the Minister to produce certain documents. The granting of that relief, your Honour, in my respectful submission would be premature, and I say that because that picks up the language adopted by Justice Kirby both in Re Heerey, which is item number 2 on the list of authorities, and also in Re Carmody; Ex parte Glennan [2000] HCA 37; 173 ALR 145. I will turn to that in a moment, but the point being, your Honour, that in the circumstances of this case where other avenues should have been exhausted. Provision or the issuing of constitutional writs should not even, in my respectful submission, be considered. In those circumstances, the proceeding amounts to an abuse of process.
I had in mind to direct your attention to some particular paragraphs in Glennan; that is the decision of Justices Gummow, Hayne and Callinan. In particular, your Honour, that was a case where the Commissioner had disallowed an objection to a taxation assessment and the Court observed that the Taxation Administration Act 1953 gave a right of appeal to the then appellant and then to the Federal Court.
The appellant had been unsuccessful before the Federal Court. He filed an application for special leave but then discontinued that and on the same day he discontinued it – this is relevantly at about paragraph 5, your Honour, by way of background - - -
HER HONOUR: Yes, thank you.
MR D’ASSUMPCAO: On the day he discontinued he commenced an application in the High Court in its original jurisdiction. The then Chief Justice dismissed that application at a time when the appellant was unrepresented. The appellant appealed and was represented by senior counsel. On the appeal, the appellant argued that the challenge to the Commissioner’s assessment – this is at about paragraph 15, your Honour, on page 254, the appellant contended that his challenge to the Commissioner’s assessment lay as a constitutional right, independent of the review process available under the Administration Act.
At paragraph 17, the Court discussed section 75(v) of the Constitution and relevantly said that it is necessary to show “jurisdictional error” of the issue of those writs – that is a trite proposition of course – and secondly, that the remedies “do not lie as a right”:
One matter to be taken into account is the existence of jurisdiction such as that provided for in Pt IVC of the Administration Act . . . and ending with the appellate jurisdiction of this court under s 73 of the Constitution.
Their Honours then remarked that the doctrine expressed by Justice Kirby in Re Heerey represents the current doctrine of the Court. Now, in Re Heerey, your Honour, the applicant had unsuccessfully challenged a decision of Justice Mansfield before the Full Federal Court in relation to a sequestration order and rather than seeking special leave the applicant commenced proceeding in the original jurisdiction against the judges of the Federal Court. What Justice Kirby said at paragraph 17, if your Honour has that decision to hand, is important, in my submission. His Honour said:
Although this court has the jurisdiction to provide that relief –
namely constitutional relief –
against the respondents, and the power to do so if the other requirements of law are fulfilled, ordinarily, in a case of a judgment of a federal court, where an appellate facility is available, this court will, as a matter of discretion, refuse to issue a constitutional writ. It will do so where the applicant has failed, or omitted, to engage the appellate jurisdiction as provided by s 73 of the Constitution. This approach is taken to ensure that parties, with rights to seek special leave to appeal, do not, without good reason, bypass the primary means envisaged by the Constitution for the correction of alleged judicial error nor circumvent the legislative arrangements that have been adopted requiring the special leave first be obtained in appeals to this court.
His Honour at paragraph 18 refers to his earlier decision of Carmody, noting that:
no hard and fast rules can be laid down . . . the writ may be regarded as premature if the party’s complaint should properly have been prosecuted first as an appeal. The invocation of the original jurisdiction of this court under s 75(v) of the Constitution was refused in Glennan as a matter of discretion. The same approach should be adopted here. No other approach would uphold the constitutional scheme and the statutory procedures for special leave which are a protection for litigants generally, as well as for this court.
Now, it is respectfully submitted that the rationale behind the comment, that is a protection for the court is precisely to avoid the situation of an abuse of process by instituting proceedings where a person has a statutory right of review by the proper channels. In this case, the plaintiff would have had a right of review under the Freedom of Information Act within the Department of Defence, then to the Administrative Appeals Tribunal, if it had jurisdiction, then to the Federal Court and up it goes ending in the High Court.
The second point I make, your Honour, which is critical is that the plaintiff is using this proceeding with a view to collaterally attacking the 1999 decision before the Defence Force Magistrate. Your Honour will recall making some remarks in June last year when the plaintiff was before you in a separate action and the remarks were to the effect that the plaintiff – there was yet another incident by the plaintiff of collaterally attacking that decision and your Honour did not permit that to proceed as it was an abuse of process because the plaintiff had exhausted all avenues of
appeal. Your Honour also noted that the documentation in that matter was prolix and embarrassing in form and it is my submission that those remarks are apposite to the material placed before the Court in this application.
Your Honour submitted that in light of the undisputed facts in Ms Shepherd’s affidavit, and having regard to the matters in the Minister’s written submissions, the present proceeding is groundless. It displays a vexatious nature and is an abuse of process of the Court, and to that end the defendant invokes rule 27.09.4. If the Court pleases.
HER HONOUR: Thank you very much.
This is the return of a summons filed on 17 September 2012 by the Minister for Defence under rule 27.09.4 of the High Court Rules 2004 (Cth) seeking to have the plaintiff’s application for an order to show cause summarily dismissed on the grounds that it does not disclose a cause of action. The summons also seeks to have the action dismissed as frivolous or vexatious, or an abuse of process.
The plaintiff was a corporal in the Australian Defence Force. On 4 November 1999, he was convicted by a Defence Force Magistrate of one count of assault on an inferior officer contrary to section 34(1) of the Defence Force Discipline Act 1982 (Cth). The plaintiff lodged an appeal against his conviction to the Defence Force Discipline Appeal Tribunal but this appeal was ultimately dismissed on the basis that the Defence Force Magistrate’s findings were open to him and that no miscarriage of justice had occurred. On 30 November 2004, a delegate of the Chief of the Army, Brigadier Appleton, discharged the plaintiff from the Australian Defence Force.
These events have formed the basis for a series of proceedings initiated by the plaintiff in the Federal Court of Australia and in this Court, including the present proceedings. Some of the history of these proceedings has been explained in Ferdinands v Minister for Defence [2011], HCATrans 173, and does not need to be repeated.
On 13 July 2012, the plaintiff filed a fresh application for an order to show cause. The application is directed to the defendant, the Minister for Defence, and relates primarily to the defendant’s failure to respond to a letter sent by the plaintiff on 11 May 2012 requesting access to a series of documents relating to an inquiry into the plaintiff’s conviction of November 1999.
The plaintiff seeks various forms of relief, including orders:
(a) compelling the defendant to provide to the plaintiff copies of the documents requests in his letter of 11 May 2012;
(b) compelling all Ministers of the Crown lawfully and properly to attend to the administration of their portfolios and offices; and
(c) referring a question of law to the Full Court of this Court in the following terms:
“Can the Chief of Army appoint a legal defence counsel to a soldier in the Australian Army who has been accused and charged with service offences if that soldier has refused any Australian Army legal assistance and wishes to appoint his own legal advisers and team to defend charges against him?”
An affidavit has been sworn by Cabrini Rita Shepherd on 13 September 2012 and filed in support of the defendant’s summons. The plaintiff has sworn and filed two affidavits dated 13 July 2012 and 5 October 2012, the latter being specifically directed to opposing the defendant’s summons seeking summary dismissal of the plaintiff’s application for an order to show cause.
The plaintiff has failed to appear today.
An application such as this for constitutional writs of certiorari and mandamus rests substantially on section 75(v) of the Constitution: Re Carmody; Ex parte Glennan [2000] HCA 37; (2000) 74 ALJR 1118; 173 ALR 145. When the defendant seeks summary dismissal of the show cause action, as here, it is for the plaintiff to show at least an arguable case for the relief sought. The arguable case must be in respect of some error amounting to a jurisdictional error by the Minister. Further, the remedies for which section 75(v) provides do not lie as of right: Glennan v Commissioner of Taxation (2003) 198 ALR 250 at 254 paragraph 17 per Justices Gummow, Hayne and Callinan.
The plaintiff’s letter of 11 May 2012 did not comply with the requirements for a valid request for access to documents under section 15 of the Freedom of Information Act 1989 (Cth). In his letter, the plaintiff specifically states that he does “not need to go through Freedom of Information processes”. In the absence of a valid request under the Freedom of Information Act 1989 (Cth), the plaintiff’s application for an order to show cause amounts to little more than an attempt to invoke the original jurisdiction of this Court in order to compel a Minister to answer a letter.
The outline of submissions filed by the plaintiff in opposition to the defendant’s summons consists of some 121 paragraphs and shows that the present application constitutes yet another attempt by the plaintiff to collaterally challenge his conviction of 4 November 1999 and the decision of the Defence Force Discipline Appeal Tribunal referred to above. The plaintiff’s application for an order to show cause, supporting affidavit material and his outline of submissions are prolix and embarrassing in form. They are barely intelligible and disclose no basis for the grant of the relief sought.
Further, in all the circumstances, including the history of this litigation, the proceedings are bound to fail; therefore they are vexatious: Dey v Victorian Railways Commissioner [1949] HCA 1; (1949) 78 CLR 62 at 91. It follows that the proceedings should stand dismissed. I order that the plaintiff’s application for an order to show cause dated 13 July 2012 be dismissed and that the plaintiff pay the defendant’s costs.
AT 10.31 AM THE MATTER WAS CONCLUDED
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