Ferdinands v Chief of Army [2003] FCAFC 10

IN THE FEDERAL COURT OF AUSTRALIA
SOUTH AUSTRALIA DISTRICT REGISTRY	S 212 OF 2002

BETWEEN:

TREVOR KINGSLEY FERDINANDS

APPLICANT

AND:

CHIEF OF ARMY

RESPONDENT

JUDGES:	SPENDER, RYAN, von DOUSSA, DOWSETT, SELWAY JJ
DATE:	11 FEBRUARY 2003
PLACE:	ADELAIDE

REASONS FOR JUDGMENT

SPENDER J:

1 The Court is presently concerned with a notice of motion filed on 7 February 2003 by the respondent, the Chief of Army, to an appeal of Trevor Kingsley Ferdinands. The notice of motion seeks orders that Mr Ferdinands' appeal (notice of which was filed 9 September 2002) be dismissed pursuant to O 52 r 38 of the Federal Court Rules, on the grounds that:

(1) The Applicant has not prosecuted his appeal with due diligence;

(2) The Applicant failed to prepare a draft index prior to the time appointed for the settling of the Appeal Book Index in accordance with Order 52 Rule 26 of the Federal Court Rules;

(3) The Applicant has failed to file and serve Appeal Books at all contrary to the directions of the District Registrar on 18 December 2002.

The respondent also seeks that the applicant pay the costs of that motion.

2 It is clear, and Mr Ferdinands acknowledges, that he has not in fact filed the appeal books as directed, either by the time appointed by the District Registrar, or at any subsequent time. Mr Ferdinands was advised in writing on two separate occasions that if he failed to comply with the directions of the court, and particularly the directions in relation to the provision of appeal books, his appeal could be dismissed for want of prosecution.

3 I refer to a direction that I made on 29 January 2003, a copy of which was sent to Mr Ferdinands, in which he was advised as follows:

"The appeal of Mr Ferdinands will be heard at 10.15 am on 11 February 2003. Mr Ferdinands should file the appeal books immediately. Any failure to do so, or any failure otherwise to comply with directions in relation to his appeal could affect the outcome of his appeal, including the possibility of the appeal being dismissed for want of prosecution.

That advice was given as part of a direction by me on 29 January 2002 refusing a document for filing styled "NOTICE OF MOTION - QUESTIONS OF LAW RESERVED". This document misconceived the appellate jurisdiction of the Court, and misunderstood the persons or bodies which are entitled to state a question of law for consideration by a Full Court. A further document was presented to the registry by Mr Ferdinands which purported to be a notice of appeal from that direction. In response, he was again advised in writing on 6 February of the cautionary advice contained in the last paragraph of my direction of 29 January 2003.

4 Mr Ferdinands has acknowledged that he has not complied with the requirement to prepare appeal books. He says that he lacks the economic means to do so, and he ought to be excused on account of hardship. I note, however, that on a number of occasions Mr Ferdinands has suggested that the questions of law which he wished to have determined should be heard before any part of his appeal.

5 It is not for Mr Ferdinands to direct when, and in what order, matters might be heard by the Full Court. In particular, he does not have the right unilaterally to decide not to comply with directions for the preparation of his appeal. The fact is he has been solemnly but politely advised as to the consequence of failing to prosecute his appeal. He has, in my view, deliberately abstained from the prosecution of his appeal with due diligence, and his appeal is liable to be dismissed because of that want of prosecution.

6 There are two further matters which are, in my opinion, highly relevant to the taking of that course.

7 The first concerns the prospects of his appeal. The judgment of the Defence Force Disciplinary Tribunal is exhibited to the affidavit in support of the motion to strike out the appeal for want of prosecution. What those reasons and the other materials before the Court show is that on 1 November 1999 the appellant was convicted by a Defence Force Magistrate of one count of assaulting an inferior, contrary to s 34 of the Defence Force Discipline Act 1982 (Cth) ("the Discipline Act"). Mr Ferdinands was sentenced to a reduction in rank to the rank of private. He lodged a notice of appeal from that conviction on 17 April 2001, pursuant to s 21(1) of the Defence Force Discipline Appeals Act 1955 (" the Appeals Act") which is conducted under s 152 of the Discipline Act. Under s 21(2) of the Appeals Act, the period within which Mr Ferdinands had the right to appeal the original decision was within 30 days of conviction or on the day he was notified of the results of his s 152 review. Mr Ferdinands was not notified of the results of a s 152 review of his conviction until 31 August 2000. That is to say, the lodging of the notice of appeal was approximately 17 months after the date of conviction, and approximately seven months after notification of the result of the s 152 review of that conviction. The notice of appeal was thus very well out of time.

8 On 15 August 2001, the President of the Defence Force Discipline Tribunal, Heerey J, refused an extension of time within which to appeal.

9 Section 17(1)(a) of the Appeals Act provides that:

"(1) The powers of the Tribunal may be exercised by a single member with respect to:

(a) the granting of leave to appeal to the Tribunal against a conviction ..."

Section 17(2) of the Appeals Act provides:

A person affected by a decision of a single member of the Tribunal given with respect to a matter referred to in paragraph (a) ... of the last preceding subsection may, within the prescribed period, appeal to the Tribunal constituted in accordance with section 15 from that decision, and the Tribunal so constituted shall hear and determine the matter.

10 Mr Ferdinands lodged a notice of appeal on 29 August 2001. Pursuant to s 17(2), on 26 July 2002 the Defence Force Disciplinary Tribunal constituted by Underwood J, the Deputy President, and Mildren and Duggan JJ, Members, heard an application by Mr Ferdinands for an extension of time in which to appeal the refusal by Heerey J to grant an extension of time within which to appeal. On 16 August 2002 that Tribunal granted the extension of time in which to appeal from the refusal by Heerey J to grant an extension of time, but dismissed the appeal.

11 In the course of its reasons for dismissing that appeal, the Tribunal noted in par 9 of its reasons the observations of McHugh J in Gallo v Dawson (1990) 93 ALR 479 at 480 where McHugh J said:

"When the application is for an extension of time in which to file an appeal, it is always necessary to consider the prospects of the applicant succeeding in the appeal: see Burns v Grigg [1967] VR 871 at 872; Hughes, at 263-4; Mitchelson v Mitchelson (1979) 24 ALR 522 at 524. It is also necessary to bear in mind in such an application that, upon the expiry of the time for appealing, the respondent has 'a vested right to retain the judgment' unless the application is granted: Vilenius v Heinegar (1962) 36 ALJR 200 at 201. It follows that, before the applicant can succeed in this application, there must be material upon which I can be satisfied that to refuse the application would constitute an injustice."

12 At par 12 of the reasons of the Tribunal their Honours noted:

"It has to be said that the material placed before the tribunal by the applicant

... does not disclose a satisfactory explanation as to why the notification of the appeal was so late."

13 In its reasons the Tribunal carefully considered the evidence which had been led before the Defence Force Magistrate. Their Honours said at par 26:

"We have considered the argument that ... the finding of guilt on the second count was unsafe and unsatisfactory. However, we are of the view that a court adopting the approach which is appropriate when considering a ground of appeal of this nature (M v the Queen (1994) 181 CLR 487 at 494) would inevitably conclude that no miscarriage of justice had occurred."

The Tribunal concluded in par 29:

"In summary, therefore, it is our view that no satisfactory reason has been advanced for the lengthy delay in lodging the appeal. This consideration, coupled with the apparent absence of merit in the proposed grounds of appeal, lead us to the conclusion that the extension of time within which to appeal was rightly rejected."

14 It is apparent from that analysis that the proposed appeal by the appellant, which is not an appeal against his conviction but an appeal from a dismissal of an appeal from the decision of Heerey J not to grant an extension of time within which to appeal, would have no prospects of success, in my opinion.

15 The second matter relevant in deciding whether to dismiss the appeal for want of prosecution, touches on an aspect which was the subject of discussion between Mr Ferdinands and the bench in the course of the hearing of the motion. That relates to the "questions of law" which Mr Ferdinands sought to have the Full Court determine. Those proposed "questions of law" relate to the constitutional validity of Defence Force Magistrates. It is necessary that I should say something on that particular issue.

16 On 24 January 2003 Mr Ferdinands presented a document to the registry headed "NOTICE OF MOTION - QUESTION OF LAW RESERVED" which commenced:

"The abovenamed applicant will at 10.15 am on the 11^th day of February 2003 at 9^th floor, 25 Grenfell Street, Adelaide move the Court for orders that:

1. That the Full Bench of the Federal Court of Australia hear and determine the following two (2) questions of law:

i. Are Defence Force Magistrates judicial officers within the meaning, traditions and customs of judicial officers within the Commonwealth of Australia?

ii. Can any other person, group or institution, other than a judicial officer or judicial body, within the Commonwealth of Australia, preside over and determine cases in the criminal law and apply the standards of proof in the criminal law, and have those decisions authenticated and validated within the Australian criminal justice system?"

I repeat that Mr Ferdinands had expressed a belief, in an affidavit filed on 24 January 2003, that those questions of law should be heard and determined first.

17 On 29 January I made a direction to Mr Rainsford, the assistant registrar of the South Australia registry, that:

"Pursuant to order 46 rule 7A I direct you not to accept for filing the document styled 'Notice of Motion -Questions of Law Reserved' and the supporting affidavit. The 'notice of motion' wholly misconceives the appellate jurisdiction of the Federal Court, and is an abuse of process.

Mr Ferdinands' appeal might very well involve the question of law of whether a Defence Force Magistrate exercises the judicial power of the Commonwealth, and whether a particular person has been properly appointed. Any such questions have to be the subject of a ground of appeal, and then the subject of submissions."

A copy of that direction was forwarded to Mr Ferdinands on 30 January 2003, and to the solicitors for the respondent. That direction concluded with the paragraph to which I have already referred, that:

18 A document was presented on 5 February 2003 styled NOTICE OF APPEAL which commenced:

"TAKE NOTICE that the applicant appeals from the decision or determination of a single judge of the Federal Court constituted by Justice JEJ Spender given on 29 January 2003 at Brisbane.

THE QUESTIONS OF LAW raised on the appeal are -

and then the two questions which I have earlier set out are repeated. In respect of that, under the heading "Grounds", par 14 says:

"The Full Court of the Federal Court of Australia, must determine first before anything else whether in fact Mr N Morecombe, a member of the Defence Forces and a legal practitioner in South Australia, is in fact a judicial officer. (Emphasis added)

15. The Full Court of the Federal Court of Australia, must then determine, before anything else whether in fact social groups have the power to create courts and tribunals to discipline their members, where those courts and tribunals are made up of active and serving members from within the social group." (Emphasis added).

19 In the affidavit in support of that document styled Notice of Appeal Mr Ferdinands states:

"I believe that the correct procedure is to hear the Questions of Law first, as if successful, the appeal of the Defence Force magistrate would be hypothetical."

In relation to that matter, in a handwritten note to Assistant Registrar Rainsford, I said:

"Please arrange that the within purported 'notice of appeal' and supporting documents are put before the Full Court of the Federal Court on Tuesday next, 11 Feb 2003, (6 sets for 5 judges & the court), and forward a further set to the solicitors for the respondent. Please advise Mr Ferdinands of this direction, and I repeat the cautionary advice contained in the last paragraph of my direction of 29 January 2003."

That paragraph I have repeated in pars 3 and 17 above.

20 In relation to the legal position of a stated case or a question of law reserved, it is necessary to have regard first to s 25(6) of the Federal Court of Australia Act 1976 (Cth). That subsection provides:

"The Court constituted by a single Judge may state a case or reserve any question concerning a matter with respect to which an appeal would lie from a judgment of a Judge to a Full Court of the Court for the consideration of a Full Court and the Full Court has jurisdiction to hear and determine the case or question."

Section 26(1) which is headed "Cases stated and question reserved" provides:

"A court from which appeals lie to the Court may state any case or reserve any question concerning a matter with respect to which such an appeal would lie from a judgment of the first- mentioned court for the consideration of the Court, and the Court has jurisdiction to hear and determine the case or question."

21 As those two provisions make clear, a case can be stated or a question can be reserved only by a single judge of the Federal Court of Australia or by a court from which appeals lie to the Federal Court of Australia. It is not competent for a litigant; in particular, it is not competent in this case for Mr Ferdinands, to state a case or reserve a question for the Federal Court of Australia. The document styled "NOTICE OF MOTION - QUESTIONS OF LAW RESERVED" reflects a misunderstanding of the statutory powers concerning the stating of a case or the reserving of a question of law. As I attempted to indicate in my direction of 29 January 2003, the NOTICE OF MOTION - QUESTION OF LAW RESERVED, wholly misconceives the appellate jurisdiction of the Federal Court. It therefore is an abuse of process.

22 Having set out the true position in relation to the power to state a case or reserve a question of law, it is now necessary for this Court to consider the motion of the respondent to the appeal which seeks to have the appeal dismissed for want of prosecution, and in that context, to consider whether the "questions of law" which Mr Ferdinands inappropriately sought to raise might provide arguable grounds of appeal.

23 It is clear, in my opinion, that there is no requirement that a Defence Force Magistrate exercising functions under the Discipline Act be a Judge as defined by Chapter III of the Commonwealth Constitution ("the Constitution"). Nor is it the law that such a magistrate is exercising the judicial power of the Commonwealth. Those propositions in my opinion are now incontrovertible.

24 The primary case is Re Tracey ex parte Ryan (1988-89) 166 CLR 518 ("Re Tracey"). Desmond James Ryan was a Staff Sergeant in the Australian Regular Army. He was charged with three offences under the Discipline Act. The first was for making an entry in a service document with intent to deceive, and the second and third were for being absent without leave. The charges came before a Major R.R.S. Tracey, a Defence Force Magistrate. Objection was taken to his jurisdiction on the grounds that the hearing and determination of the charges was an exercise of the judicial power of the Commonwealth, and that the offences were indictable offences, thus were triable only by a jury under s 80 of the Constitution. Major Tracey ruled against the objection and Ryan obtained orders nisi for prohibition directed to the Magistrate and the Commonwealth of Australia.

25 In the High Court it was held by the whole Court that trials of service offences were not, under the Discipline Act, trials on indictment, and s 42 of the Acts Interpretation Act 1901 (Cth) did not require a contrary conclusion. Mason CJ, and Wilson, Brennan, Dawson and Toohey JJ, held that although a service tribunal exercised judicial power, it did not exercise the judicial power of the Commonwealth, because the power to make laws with respect to the defence of the Commonwealth under s 51(vi) of the Constitution contained power to enact a disciplinary code standing outside Chapter III of the Constitution, and to impose upon those administering it a duty to act judicially. It was also held by the Mason CJ, Wilson and Dawson JJ, with Brennan and Toohey JJ contra, that s 61 of the Discipline Act was valid on the ground that it was within the powers of the Parliament to provide that any conduct which constitutes a civil offence shall constitute a service offence if committed by a defence force member. The orders nisi for prohibition were discharged.

26 Two years later in Re Nolan ex parte Young (1991) 172 CLR 460 ("Re Nolan"), the High Court was again concerned with the question of the constitutional validity of Defence Force Magistrates. The prosecutor, a staff sergeant in the Australian Regular Army, was charged under the Discipline Act. The offences related to documents which the prosecutor, it was alleged, had falsified. He was charged with two offences for each document. Half the charges were for the falsification of a service record under s 55(1)(a) of the Discipline Act. The second half were for the offence of using a false instrument under s 61(1) of this Act which adopts s 135C(2) of the Crimes Act 1900 (NSW) in its application to the Australian Capital Territory. The charges came before Lieutenant Colonel Nolan, a Defence Force Magistrate, who held that he had jurisdiction to hear and determine the charges and refused to exercise any discretion he may have to decline jurisdiction. The prosecutor obtained an order nisi for prohibition.

27 It was held by Mason CJ, Brennan, Dawson and Toohey JJ, Deane, Gaudron and McHugh JJ dissenting, that a service tribunal had jurisdiction to hear the charges. The Chief Justice and Dawson J so held on the ground that it was open to Parliament to provide that any conduct that constitutes a civil offence shall constitute a service offence if committed by a defence member and be triable by a service tribunal. Brennan and Toohey JJ so found on the ground that it could reasonably be said that the maintenance and enforcement of service discipline would be served by charges being heard before a service tribunal constituted by a Defence Force Magistrate. However, Brennan and Toohey JJ said that the relevant power conferred by 51(vi) of the Constitution does not extend to the making of a law to punish defence members and defence civilians for their conduct unless the proceedings taken in order to punish them can reasonably be regarded as substantially serving the purpose of maintaining or enforcing service discipline.

28 In 1994 the High Court was again concerned with this question, in Re Tyler and Anor ex parte Foley (1994) 181 CLR 18. Wing Commander Foley was charged under s 47(1) of the Discipline Act of dishonestly appropriating $24,761.40. Offences of a similar nature also existed under s 71 of the Crimes Act 1914 (Cth) and s 178BA of the Crimes Act 1900 (NSW). Foley applied to the High Court for a writ of prohibition prohibiting a court‑martial from proceeding further, on the grounds that the general court-martial was not constituted in accordance with Chapter III of the Constitution, but was exercising the judicial power of the Commonwealth. Further, that the New South Wales Supreme and District Courts had jurisdiction to try the offences because they could validly exercise the judicial power of the Commonwealth or exercise their ordinary criminal jurisdiction under NSW law; and further, that the general court‑martial did not provide for trial by jury as required by s 80 of the Constitution in respect of Commonwealth offences. The majority, Mason CJ, Brennan, Dawson, Toohey and McHugh JJ held that the application for a writ of prohibition should be refused.

29 Mason CJ, Brennan, Dawson, Toohey and McHugh JJ, with Deane and Gaudron JJ dissenting, held that the court‑martial had jurisdiction to hear the charge: the Chief Justice and Dawson J on the ground that the Parliament had power under s 51(6) of the Commonwealth Constitution to provide for the trial of service offences by way of court‑martial and not by way of trial by jury, s 80 of the Constitution having no application; by Brennan and Toohey JJ on the ground that Parliament had power under s 51(vi) of the Constitution to provide for the trial before a court‑martial of offences substantially serving the purpose of maintaining and enforcing service discipline, and that the charge in question was of such an offence, and that the trial of a defence member for service offence lay outside the judicial power of the Commonwealth and did not attract s 80; and by McHugh J on the ground that the jurisdiction of the court‑martial to hear the charge was established by Re Tracey and Re Nolan, notwithstanding that neither of those cases has a ratio decidendi.

30 Finally, on this question raised by Mr Ferdinands, reference should be made to Re Governor Goulburn Correctional Centre; ex parte Eastman (1999) 200 CLR 322 ("Eastman's case"). The applicant, David Harold Eastman was convicted of murder after a trial before an acting judge of the Supreme Court of the ACT. The application for a writ of habeas corpus was brought before the High Court addressed to the governor of the prison in which he was incarcerated to effect his release. The applicant alleged that he was not duly convicted by reason that the presiding judge was not validly appointed. Alternative submissions were argued in support of that proposition.

31 First, it was submitted that the Supreme Court of the ACT was a court created by parliament for the purpose of s 72 of the Constitution. As such the court, though created pursuant to s 122 of the Constitution (power to legislate with respect to the territories) was a federal court subject to the requirements of s 72. Secondly, it was submitted that the Commonwealth Parliament's power to legislate with respect to the ACT was contained in s 52(i) (power to legislate with respect to the seat of government). Given that the legislative grant contained in that section was expressed to be "subject to the Constitution", it was submitted that if the Supreme Court was created pursuant to s 52(i) it would be subject to the requirements of s 72 and the rest of Chapter III of the Constitution.

32 It was held by Gleeson CJ, Gaudron, McHugh, Gummow, Hayne and Callinan JJ, Kirby J dissenting, that s 72 of the Constitution had no application to the Supreme Court of the Territory because the court was not a court "created by the Parliament" within s 72 of the Constitution.

33 The judgment of the High Court applied the principles established in Spratt v Hermes (1965) 114 CLR 226 and Capital Duplicators Pty Ltd v Australian Capital Territory (1992) 177 CLR 248 and held that the s 122 power with respect to territories was the source of the appointment of judges of the Australian Capital Territory Supreme Court, and therefore there was no requirement that the provisions of s 72 of the Constitution as to appointment and tenure apply to the appointment of such a judge. In the same way, the appointment and functioning of Defence Force Magistrates is dependent on and governed by the defence power, and there is no requirement that the provisions of s 72 or Chapter III of the Constitution apply in relation to them. I note by way of an aside that B.M. Selway QC, solicitor-general for the state of South Australia, with him J.M. Rusalen, for the attorney-general, intervened in support of the second respondent.

34 I have gone into some little detail in relation to the questions of law to which Mr Ferdinands had referred in some of the material that he presented to the registrar, for the purpose of showing that, in my opinion, it is unarguable that the Defence Force Magistrate was exercising the judicial power of the Commonwealth or that the Constitution required that he be appointed pursuant to Chapter III of the Constitution.

35 Since such questions are not arguable in this Court, there is no injustice in acceding to the application to dismiss the appeal for want of prosecution.

36 This is a case where it has been demonstrated that Mr Ferdinands has abstained from prosecuting his appeal with due diligence, for reasons which he submits are sound. However, impecuniosity is not a basis on which a person is relieved of the obligation to prosecute his appeal with due diligence. Realistically, there are no prospects of success in the foreshadowed appeal, nor any arguable basis for the "questions of law" which Mr Ferdinands had indicated he wanted to canvass before the Full Court. It follows then that there is no injustice in dismissing the appeal for want of prosecution. I would so order and order that the respondent to the motion pay the costs of it.

RYAN J:

37 I agree for the reasons explained by the learned presiding judge that the Court should accede to the respondent's motion and dismiss the appeal.

von DOUSSA J:

38 I agree for the reasons that have been given, that the appeal should be dismissed for want of prosecution.

DOWSETT J:

39 I also agree.

SELWAY J:

40 I also agree.

SPENDER J:

41 The orders of the court are that:

(1) the appeal filed by the applicant on 9 September 2002 be dismissed.

(2) the applicant pay the costs of the appeal, to be taxed if not agreed.

(3) the notice of motion filed by the respondent to the appeal on 7 February 2003 be granted.

(4) the respondent on the motion pay the costs of the motion, to be taxed if not agreed.

I certify that the preceding forty-one (41) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justices Spender, Ryan, von Doussa, Dowsett and Selway.

Associate:

Dated: 28 February 2003

The Applicant appeared on his own behalf

Counsel for the Respondent:	Mr M.B. Manetta

Solicitor for the Respondent:	Australian Government Solicitor

Date of Hearing:	11 February 2003

Date of Judgment:	11 February 2003

BETWEEN:	TREVOR KINGSLEY FERDINANDS APPLICANT
AND:	CHIEF OF ARMY RESPONDENT
JUDGES:	SPENDER, RYAN, von DOUSSA, DOWSETT, SELWAY JJ
DATE OF ORDER:	11 FEBRUARY 2003
WHERE MADE:	ADELAIDE