Ferdinands v Chief of Army
[2008] FCA 1865
•3 December 2008
FEDERAL COURT OF AUSTRALIA
Ferdinands v Chief of Army [2008] FCA 1865
PRACTICE AND PROCEDURE – application for extension of time within which to apply to show cause – application remitted from the High Court – application for writs of certiorari and mandamus – application significantly out of time – factors relevant to grant of an extension of time – impecuniosity itself is not a sufficient reason to grant an extension of time – no prospect of the applicant succeeding – application dismissed
PRACTICE AND PROCEDURE – applicant sought to use application to challenge convictions by the Adelaide Magistrates Court and a Defence Force Magistrate – application was an abuse of process – application dismissed
Criminal Law Consolidation Act 1935 (SA)
Defence Force Discipline Act 1982 (Cth)Ferdinands v The Chief of Army [2003] FCAFC 10 referred to
Gallo v Dawson (1990) 93 ALR 479 cited
Re Commonwealth; Ex parte Marks (2000) 177 ALR 491 citedTREVOR KINGSLEY FERDINANDS v CHIEF OF ARMY and DEPARTMENT OF DEFENCE
SAD 141 of 2007
LANDER J
3 DECEMBER 2008
ADELAIDE
IN THE FEDERAL COURT OF AUSTRALIA
SOUTH AUSTRALIA DISTRICT REGISTRY
SAD 141 of 2007
BETWEEN: TREVOR KINGSLEY FERDINANDS
Applicant
AND: CHIEF OF ARMY
First RespondentDEPARTMENT OF DEFENCE
Second Respondent
JUDGE:
LANDER J
DATE OF ORDER:
3 DECEMBER 2008
WHERE MADE:
ADELAIDE
THE COURT ORDERS THAT:
1.The application for an extension of time to file the proceeding to show cause be dismissed.
2.The proceeding be dismissed.
3.The applicant pay the respondents’ costs.
Note:Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
The text of entered orders can be located using eSearch on the Court’s website.
IN THE FEDERAL COURT OF AUSTRALIA
SOUTH AUSTRALIA DISTRICT REGISTRY
SAD 141 of 2007
BETWEEN: TREVOR KINGSLEY FERDINANDS
Applicant
AND: CHIEF OF ARMY
First RespondentDEPARTMENT OF DEFENCE
Second Respondent
JUDGE:
LANDER J
DATE:
3 DECEMBER 2008
PLACE:
ADELAIDE
REASONS FOR JUDGMENT
On 17 March 2006 the applicant filed an application in the High Court of Australia seeking an extension of time within which to apply to show cause why the constitutional writs should not issue in relation to a decision made by Brigadier C J Appleton, as the delegate of the Chief of Army, on 3 November 2004.
The application was supported by an affidavit of the applicant sworn on the same day in which he deposed that he was a member of the Department of Defence between October 1982 and 3 November 2004 when his service was terminated by reason of the decision complained of, which decision had been made on the ground that the applicant lacked the necessary qualities for service in the Army.
On 26 April 2007 the respondents applied in the High Court to have the proceeding remitted to the South Australian Registry of this Court. That application was supported by an affidavit in which the deponent asserted that the application for an extension of time which had been sought by the applicant in the High Court would be opposed and that the respondents would apply to have the proceeding dismissed.
The applicant opposed the respondents’ application but on 4 May 2007 Crennan J made the following orders:
1.The further proceedings in the plaintiff’s application for an order to show cause, together with the plaintiff’s application for an extension of time filed on 17 March 2006, be remitted to the Federal Court of Australia, South Australian Registry, for hearing.
2.The time limits imposed by Rules 25.06.1 and 25.07.2 of the High Court Rules 2004 are to continue to apply to these proceedings upon their remittal to the Federal Court of Australia, subject to the determination by the Federal Court of Australia of the plaintiff’s application for an extension of time filed on 17 March 2006.
Her Honour made other consequential orders in relation to administrative matters and costs. On 11 October 2007 the respondents filed a notice of motion in this Court seeking the following orders:
1.That, in the event that the application for an extension of time is granted, the whole of the Application to Show Cause filed in the High Court of Australia and remitted to this Court by order of the Honourable Justice Crennan on 4 May 2007, or such parts of that Application as the Court sees fit, be struck out pursuant to Order 11 Rule 16 of the Federal Court Rules for disclosing no reasonable cause of action and for causing embarrassment.
2.That the whole of the relief sought in the Application, or such parts thereof as the Court sees fit, be summarily dismissed pursuant to Order 20 Rule 5 of the Federal Court Rules for being an abuse of process of the Court.
3.That the respondents have summary judgment in the proceedings or such parts as the Court sees fit, pursuant to subsection 31A(2) of the Federal Court of Australia Act 1976, on the grounds that the applicant has no reasonable prospect of successfully prosecuting the proceedings.
The respondents’ application was supported by an affidavit of Danielle Marie Forrester sworn on 11 October 2007, the contents of which will need to be later addressed. The application which is before me this morning is the applicant’s application for an extension of time within which to apply to the Court for an order to show cause why the constitutional writs should not issue in relation to Brigadier Appleton’s decision. The application to show cause which has been filed by the applicant does not clearly identify the relief that is sought but I think it may be understood that the applicant seeks both the issue of a writ of certiorari to quash the decision of Brigadier Appleton on 3 November 2004 and the issue of a writ of mandamus. I think the writ of mandamus is sought because the applicant seeks orders:
4.That the Department of Defence comply with its duty and responsibility as a party to serious and complex litigation, and comply with all judicial orders and directions; and answer in full, all correspondence sent by the plaintiff with regards to full and complete discovery and disclosure in these legal issues of appeal.
5.That the plaintiff is allowed to proceed unhindered and unimpeded by the defendants to complete his appeal of conviction in the DFM 1999 trial.
Six grounds are raised in the application to show cause, each of which is particularised. Shorn of their particulars, the grounds may be identified as being:
(1) Brigadier Appleton wrongly had regard to a number of documents;
(2)Brigadier Appleton failed to accord the applicant procedural fairness as a result of which his acts were an abuse of process because he made a decision not knowing all of the facts;
(3)Brigadier Appleton did not know of other crucial facts that were supplied to him by the Commissioner of Police in South Australia and did not know all of the facts;
(4)Brigadier Appleton did not know of other facts that were crucial to the termination decision “hence, Brigadier Appleton failed to determine the question of procedural fairness and his actions were an abuse of process”;
(5)Brigadier Appleton did not know of other facts that were crucial to the termination decision and he avoided serious issues of professional misconduct of legal practitioners in the applicant’s criminal trial in 1999;
(6)Brigadier Appleton has accessed documents supplied directly from “Mal Hyde, Commissioner of Police in the State of South Australia to cause greater humiliation and shame to the plaintiff and reinforce his decision to terminate, when in fact, no case exists to terminate. The access of the documents in question is illegal and constitutes a breach of privacy.”
The thrust of Mr Ferdinand’s complaints is that he was wrongly convicted in the Adelaide Magistrates Court of common assault and wrongly convicted by a Defence Force Magistrate of assault. That being the case, he argued that Brigadier Appleton was wrong to take into account those convictions. In essence, he seeks to use the proceeding to show cause to overturn those convictions.
The High Court Rules apply to this application because Crennan J so ordered and because the proceeding was initiated in that Court.
Insofar as the application seeks a writ of certiorari, the procedure is governed by rule 25.06.1 of the High Court Rules, which provides:
An order to show cause why a writ of certiorari should not issue to remove a judgment, order, conviction or other proceeding, for the purpose of its being quashed shall not be granted unless the application for the order is made not later than six months after the date of the judgment, order, conviction or other proceeding, or within such shorter period as may be prescribed by any law.
Brigadier Appleton’s decision is an “other proceeding” within the meaning of those words in rule 25.06.1.
An application to show cause for the issue of an order in the nature of mandamus is governed by rule 25.07.2 of the High Court Rules, which provides:
An application for an order to show cause why a writ of mandamus should not issue to a judicial tribunal to hear and determine a matter shall be made within 2 months of the date of the refusal to hear or within such period of time as is, under special circumstances, allowed by the Court or a Justice.
Rule 25.07.2 applies only to a writ of mandamus directed to a judicial tribunal. Clearly enough, Brigadier Appleton does not come within the description of a judicial tribunal and, in those circumstances, the rule does not provide a time limit for the issue of the constitutional writ of mandamus if it were to issue directed to the respondents.
Although no time limit therefore is prescribed in relation to an application for mandamus in a case such as this, the writ would not issue unless the decision which is complained of was first quashed. Therefore, the applicant would not be entitled to the issue of the writ of mandamus in relation to the orders sought in the application to show cause unless he can first satisfy the Court that a writ of certiorari should issue to quash Brigadier Appleton’s decision.
The application for a writ of certiorari is well out of time. The application was commenced more than 16 months after the decision was made, which means that it was commenced 10 months after the time prescribed by rule 25.06.1.
Both Mr Ferdinands and Dr Bleby, who appeared for the respondents, referred me to Gallo v Dawson (1990) 93 ALR 479. In Gallo v Dawson 93 ALR 479, McHugh J set out discussing the then High Court Rules relating to an extension of time at 480:
The grant of an extension of time under this rule is not automatic. The object of the rule is to ensure that those Rules which fix times for doing acts do not become instruments of injustice. The discretion to extend time is given for the sole purpose of enabling the court or justice to do justice between the parties: see Hughes v National Trustees Executors & Agency Co of Australasia Ltd [1978] VR 257 at 262. This means that the discretion can only be exercised in favour of an applicant upon proof that strict compliance with the rules will work an injustice upon the applicant. In order to determine whether the rules will work an injustice, it is necessary to have regard to the history of the proceedings, the conduct of the parties, the nature of the litigation, and the consequences for the parties of the grant or refusal of the application for extension of time: see Avery v No 2 Public Service Appeal Board [1973] 2 NZLR 86 at 92; Jess v Scott (1986) 12 FCR 187 at 194-5; 70 ALR 185. 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.
In Re Commonwealth; Ex parte Marks (2000) 177 ALR 491, McHugh J was concerned with an application for the issue of the writs of certiorari and mandamus in circumstances where the application was 11 months out of time for the issue of certiorari and 15 months out of time for the issue of mandamus, a similar delay to the period in this proceeding.
McHugh J said that the grant of an extension of time is not automatic whether the substantive application is for constitutional relief or by way of an appeal. He said (at [13]):
A “case would need to be exceptional” before the time for commencing proceedings was enlarged by many months. The explanation for such a delay is also a relevant consideration.
McHugh J said that he needed to take into account the explanation for the delay and, where the application is for an extension of time, the prospects of the application succeeding.
Dr Bleby contended on this application that I should have regard to the history of the matter, the nature of the litigation, the consequences for the parties of a grant or refusal of the extension and, because this is an application for the issue of the constitutional writs, the fact that the public interest requires that there be an end to litigation about the efficacy of such acts or decisions.
I accept, of course, that all of those matters are relevant. Those matters were all referred to by McHugh J in Gallo v Dawson 93 ALR 479. But they are, I think, of less importance than the two primary issues which must be determined. The primary issues are first, the explanation for the delay and secondly, the prospects of the applicant succeeding on the substantive application.
The applicant has filed four affidavits in support of the application for an extension of time. In an affidavit sworn on 4 May 2007, he says:
55.With regard to Extension of Time matters, I say that time should be and will be extended until I can find a legal practitioner that is honest and decent and can step forward and assist the High Court of Australia in these matters of fraud and racial hatred of employees in the Department of Defence.
In his last affidavit, which was sworn on 30 October 2007, he asserts that he believes that he has acted within a reasonable time. He says in that affidavit that the delay has been caused by:
38.... [E]xtreme poverty and hardship and trying to get the respondents to actively engage in serious issues such as professional misconduct, process corruption and hate crimes without using the courts.
The question of impecuniosity, of course, is always a relevant factor for a person who is unrepresented and who happens to be in those circumstances. However, the authorities are clear that impecuniosity itself is not a basis on which a party is relieved of the obligation to prosecute his application diligently: Ferdinands v The Chief of Army [2003] FCAFC 10 at [36]. Moreover, the failure of the applicant to obtain a solicitor or counsel who satisfies what he says is a test of honesty and decency cannot be a ground for or an excuse for the applicant failing to bring the application within the time prescribed by the High Court Rules. In the end, I think it not unfair to say that no real explanation has been given for the delay, notwithstanding that this proceeding was commenced more than two years ago.
The applicant has been convicted in the Adelaide Magistrates Court and by a Defence Force Magistrate. The thrust of the applicant’s complaints is that Brigadier Appleton wrongly took into account those convictions and the circumstances surrounding those convictions. Rather, Brigadier Appleton should have, it is asserted, ignored the convictions because the convictions ought to be set aside.
The proceeding which was commenced in the High Court is patently an abuse of process in that it seeks by the application for the issue of the constitutional writs to set aside a conviction in the Adelaide Magistrates Court and a conviction by a Defence Force Magistrate.
The applicant was at the relevant times a police officer. He was charged in the Adelaide Magistrates Court under s 39 of the Criminal Law Consolidation Act 1935 (SA) with common assault. He was convicted on 27 February 2001. On 27 April 2001 a psychiatrist described the applicant as having a paranoid personality disorder characterised by a pervasive distrust and suspicion of others. In his sentencing remarks, after the imposition of the conviction to which I have referred, the Magistrate described the conduct of the applicant as “a cowardly and seemingly inexplicable and unprovoked attack by a member of the police force against a defenceless person already in police custody.”
On 21 November 2001 the applicant was discharged as a police officer as a result of the conviction for common assault. The applicant appealed to the South Australian Supreme Court, but unsuccessfully. It is not entirely clear what other appellate steps he took in relation to that conviction. It is clear that the applicant eventually obtained a hearing in the High Court but that seems to be in relation to an issue relating to the termination of his service as a police officer.
The applicant was charged that on 15 January 1999 and 16 January 1999 he assaulted an inferior officer contrary to s 34(1) of the Defence Force Discipline Act 1982 (Cth). The applicant pleaded not guilty to both counts but was convicted on one of the counts by a Defence Force Magistrate on 4 November 1999. He was sentenced to be reduced in rank from corporal to private. It is not entirely clear to me whether that sentence on reduction in rank was for a period of time of three months or whether, after three months, the applicant was promoted again from private to corporal but nothing turns on that.
On 17 April 2001 he lodged a notice of appeal to the Defence Force Discipline Appeal Tribunal against the conviction. The notice of appeal was out of time and on 15 August 2001 Heerey J refused an application to extend time to file the appeal. The applicant then appealed to the Defence Force Discipline Appeal Tribunal but again out of time.
On 16 August 2002 the Tribunal, constituted by Underwood, Mildren and Duggan JJ, extended the time for the filing of the appeal until 29 August 2001, which was the date upon which the notice of appeal was filed but dismissed the appeal.
On 9 September 2002 the applicant filed a notice of appeal in this Court against the order of the Tribunal dismissing the appeal from Heerey J. On 7 February 2003 the respondent to that appeal, who is the first respondent to this application, applied to have the appeal dismissed on the ground that the applicant had failed to prosecute his appeal with due diligence.
On 11 February 2003 the appeal was dismissed by the Full Court of the Federal Court, consisting of Spender, Ryan, von Doussa, Dowsett and Selway JJ, on the ground that there was no prospect of success and the further ground that there would be no injustice to the applicant in dismissing the appeal for want of prosecution.
On 6 March 2003 the applicant filed an application for special leave to appeal to the High Court. He again failed to prosecute that application and on 1 October 2003 the High Court issued a certified of deemed abandonment.
Brigadier Appleton considered the convictions to which I have referred and the assessment of the psychiatrist, and concluded that the applicant’s behaviour was contrary to military ethic and cast serious doubts about his qualities to serve as a junior non-commissioned officer in the Australian Army.
On 9 June 2004 Brigadier Appleton invited the applicant to give a written statement of his reasons why the applicant’s service in the Defence Force should not be terminated. The applicant responded on 6 August 2004 presenting arguments against his termination.
Brigadier Appleton said that he considered the response in detail but concluded that there was sufficient evidence to support his initial assessment that because of his behaviour and attitude the applicant was not suitable for service in the Australian Defence Force. On the same day as Brigadier Appleton reached that decision, his service was terminated. Brigadier Appleton took into account, as he was entitled, the two convictions to which I have referred. The convictions, notwithstanding the appeals and re-hearings to which I have referred, stand. The applicant seems to challenge the conviction of the Defence Force Magistrate in these proceedings.
That is not the purpose of these proceedings and he is using this proceeding to quash Brigadier Appleton’s decision as a collateral attack on that conviction. In his argument the applicant seems to suggest that he would use this proceeding to obtain evidence to allow him to establish that the conviction of the Defence Force Magistrate was secured by fraud to present that evidence to the High Court. How he could re-open the application for special leave to appeal to the High Court, which has been dismissed, was not explained. However, if that is the purpose of this proceeding, that purpose is clearly an abuse of process.
The applicant frankly said that he intended to challenge in this proceeding the convictions. He went into detail about the evidence before the Defence Force Magistrate. The applicant has exhausted all avenues of appeal from the decision of the Defence Force Magistrate and, indeed, from the Adelaide Magistrates Court. It is not appropriate to challenge the conviction by way of application to show cause. I acknowledge that Mr Ferdinands has a strong belief that the conviction which was entered by the Defence Force Magistrate was a result of a combination of conspiracy, incompetence and fraud, but they are matters which have already been dealt with by the appropriate appeal tribunals.
They are matters which cannot be inquired into on a proceeding of this kind. Moreover, the application clearly seeks, insofar as it goes further than seeking the re-opening of the two convictions to which I have referred, a merits review of Brigadier Appleton’s decision. It does, notwithstanding the use of the language in the application, not raise any question of law which would give rise to the relief sought. There are no prospects that the applicant will succeed in obtaining the issue of the writ of certiorari and consequently the issue of the writ of mandamus.
In those circumstances where no proper explanation has been offered for the delay and there is no prospect of the applicant succeeding, the application for an extension of time should be refused. There will be an order refusing the applicant’s application for an extension of time within which to issue an application to show cause for the issue of the writ of certiorari and for the issue of the writ of mandamus. The proceeding will be dismissed and the applicant must pay the respondent’s costs.
I certify that the preceding forty-one (41) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Lander. Associate:
Dated: 11 December 2008
Counsel for the Applicant: The Applicant appeared in person Counsel for the First and Second Respondent: Dr C Bleby Solicitor for the First and Second Respondent: Australian Government Solicitor Date of Hearing: 3 December 2008 Date of Judgment: 3 December 2008
3
6
0