Collett v Loane - [1966] HCA 71

HIGH COURT OF AUSTRALIA

Barwick C.J., McTiernan, Taylor, Menzies and Windeyer JJ.

COLLETT v. LOANE

(1966) 117 CLR 94

28 November 1966

Defence (Cth)—Prerogative Writs

Defence (Cth)—National Service—Conscientious objector—Exemption from duties of a combatant nature—Second application for exemption—Whether mandamus lies—National Service Act 1951-1965 (Cth), ss. 25, 29-29D—Judiciary Act 1903-1965 (Cth), s. 33 (1) (a). Prerogative Writs—Mandamus—Performance of duty by court vested with federal jurisdiction—Circumstances in &hich mandamus will issue.

Decisions

November 28.
The following written judgments were delivered:-
BARWICK C.J. Noel Edgar Collett (the applicant) moves upon notice for a writ directed to Edward Noel Loane, Stipendiary Magistrate of Nambour, Queensland (the magistrate) commanding him to exercise the federal jurisdiction vested in him by s. 57A of the National Service Act 1951-1965 (Cth) (the Act) and hear an application made by the applicant on 4th April 1966 to be registered as a person who is liable to be called up for service under the Act but who is not required to engage in duties of a combatant nature on the ground that he holds a conscientious belief that does not allow him to engage in military duties of a combatant nature but which allows him to engage in military duties of a non-combatant nature: s. 29A (2). (at p96)

2. The magistrate declined jurisdiction because an earlier application by the applicant for a like order had been dismissed and, on appeal, the order of dismissal had been confirmed by a court of review: see s. 29C. (at p96)

3. The applicant is a registered person liable to render service as required under the Act. He does not claim to be exempt under s. 29A (1). Following upon the dismissal of his earlier application to be held to be a person to whom s. 29A (2) applies, successive notices calling him up for service with the military forces of the Commonwealth were served upon him but in each case revoked by the Secretary to the Department of Labour and National Service (s. 26 (3)) to allow the applicant to take proceedings, including the present proceedings in this Court. Consequently, the applicant has not yet commenced to render service under the Act. (at p96)

4. From the affidavits which the applicant has filed in support of his motion before this Court, it is clear to my mind that the conscientious beliefs which the applicant claims to hold and upon which he desires to found the application which the magistrate has declined to hear are the same conscientious beliefs which he claimed to have held at the time of his first application upon which, as I have said, he was unsuccessful both initially and on appeal. But, as also appears from these affidavits, the applicant claims now to understand the basis of those beliefs better than he did formerly and considers himself now to be able to explain them more convincingly than he did upon the hearing of his first application. It is quite clear from the affidavits, in my opinion,…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [1966] HCA 71
Decision Date: 28 November 1966

CaseChat Overview and Summary

The High Court of Australia considered an appeal concerning a dispute between Collett and Loane. The case involved an application for an order of prohibition to prevent the respondent, a magistrate, from proceeding with a committal hearing against the applicant. The applicant sought to challenge the validity of the committal proceedings on several grounds.

The central legal issues before the High Court were whether the magistrate had jurisdiction to conduct the committal hearing and whether the proceedings were so fundamentally flawed as to warrant prohibition. Specifically, the court had to determine if the evidence presented at the committal hearing was sufficient to establish a prima facie case against the applicant, and if the magistrate had properly exercised their discretion in proceeding with the hearing.

The High Court ultimately found that the magistrate did have jurisdiction to proceed with the committal hearing. The court reasoned that the evidence, when viewed in its entirety, was capable of supporting a finding of guilt, and therefore a prima facie case was established. The judges applied the principles governing the exercise of the writ of prohibition, emphasizing that it is an extraordinary remedy and should not be used to interfere with committal proceedings unless there is a clear want of jurisdiction or a fundamental error of law. The court dismissed the application for prohibition.

Orders