Ferdinands v Chief of Army & Anor

[2007] HCATrans 193

[2007] HCATrans 193

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Adelaide  No A10 of 2006

B e t w e e n -

TREVOR KINGSLEY FERDINANDS

Plaintiff

and

CHIEF OF ARMY

First Respondent

DEPARTMENT OF DEFENCE

First Respondent

CRENNAN J

TRANSCRIPT OF PROCEEDINGS

FROM MELBOURNE BY VIDEO LINK TO ADELAIDE

ON FRIDAY, 4 MAY 2007, AT 10.59 AM

Copyright in the High Court of Australia

MR T.K. FERDINANDS appeared in person.

MR C.D. BLEBY:   If the Court pleases, I appear for the first and second defendants.  (instructed by Australian Government Solicitor)

HER HONOUR:   Yes, Mr Bleby.

MR BLEBY:   If the Court pleases, there is a summons filed in this matter by the first and second defendants seeking a remitter of the action to the Federal Court together with orders preserving the need for the plaintiff to apply for an extension of time.  That summons is supported by an affidavit of Ms Nerida Ware which has been filed.  Alternatively, your Honour, Mr Ferdinands has before the Court an application for an extension of time.  That application is opposed.  That has not been prosecuted.  It is over a year since the application was filed.  The first and second defendants would be content to argue the application for an extension of time today, however, alternatively, we would seek to proceed on the summons to have the matter remitted together with orders effectively preserving the ‑ ‑ ‑

HER HONOUR:   Preserving the time limits?

MR BLEBY:   Yes.

HER HONOUR:   So the argument really would be undertaken subsequently in the Federal Court pursuant to the remitted proceedings.

MR BLEBY:   Yes, your Honour.  The reason why we pursued that course is that the originating process is rather long and involved.  There will be an application brought in any event to have the matter dismissed on a number of grounds and those grounds would feed into the resistance to the application for an extension of time.

HER HONOUR:   I understand.

MR BLEBY:   It may take some time to argue that.

HER HONOUR: Yes, certainly, I do understand. I will hear from Mr Ferdinands, I think. Mr Ferdinands, you will hear what has been suggested by Mr Bleby which involves remitting the matter to the Federal Court and preserving the time limits imposed by the High Court Rules but you will have an opportunity in that context to press your application for an extension of time. Did you understand that?

MR FERDINANDS:   Yes, your Honour, I understand that.

HER HONOUR:   Are you content for that course to be taken?

MR FERDINANDS:   No, not really.

HER HONOUR:   You tell me what you want to say then in relation to that proposal.

MR FERDINANDS:   The Crown filed an affidavit in this matter on 26 April 2007 to remit the matter back to the Federal Court.  I filed earlier an order for show cause and within that show cause to have the Chief of Army revoking orders for discharge and reinstate them back into the military for continued military service.  Part of the problem you have with going backwards and forwards in the courts is the facts in my case still have not been put to a judicial officer to make a balanced consideration.  All of my matters which I have raised in the grounds of appeal in the show cause to the High Court cover all the other tribunal matters, the Federal Court and the Full Bench of the Federal Court matters.  So to send the matter back is not really required. 

What I said in my affidavit that I filed this morning is if I can get proper legal representation to do the appeal books, the appeal books are very sort of substantial documentation and from that the Judges can then just read the appeal books, read the affidavits, work back through the tribunals and then write a decision as to whether or not the order to discharge me from the military service is either sustained or whether it is revoked.  So Chief of Army has to show cause as to what he did in his administrative orders. 

To go back to the Federal Court, I have got a very serious issue with the Federal Court.  I never filed any documents in that court and yet that court went ahead based solely on Crown documents and wrote a judgment.  That was my appeal I brought forward and they did not have anything from me due to economic circumstances and the like, but yet they went ahead and accepted en masse Crown documents.    So for me to go back, I would have to have all those members of that Full Court replaced on grounds of prejudice and bias, and it is overt prejudice and bias.  It is plain to anyone if I bring an appeal and I have not ‑ ‑ ‑

HER HONOUR:   There are over 40 judges on the Federal Court of Australia, Mr Ferdinands.

MR FERDINANDS:   That is right, yes, and I would have to then get that court to bring in another Full Court and be a complete and utter waste of time because then if that court went against me, it would then still come up to a High Court show cause for the two defendants.  I just need a bit of a further extension of time.  I would be looking at up to 90 days if that is

possible, your Honour, and having the Chief of Army respond to my affidavit which I filed this morning by 18 April.  I am seeking a 14 day adjournment in this matter this morning so Chief of Army can read my affidavit, respond to it and then her Honour will have the response from my affidavit and the original affidavit of 26 April. 

From that basis we can then proceed in logic, because right now, trying to argue facts which are not even facts is just not logical.  It does not make sense for someone to come to this courtroom and start arguing that the sun rises in the west.  It is fictional, it is nonsense, it is a waste of your time and mine.  The sun rises in the east.  That is basic knowledge, basic facts.  In my case Chief of Army has got basic knowledge, basic facts as to my guilt or my innocence.  If I am not involved in anything and I am plainly not where people say I was and I am actually posted somewhere else doing other duties, I cannot be guilty of any offences. 

It goes back to how Chief of Army handled his board of inquiry into the legal practitioners, Hevey, Morecombe and Macleod.  So that is where I am today.  I just need a 14‑day adjournment if her Honour is happy with that and then we will come back on 18 May with the response and then hopefully in 90 days time I should be able to find someone who can do the appeal books and we do not need to go back to the Federal Court and raise matters that have been raised in the grounds of appeal to show cause.

HER HONOUR:   Thank you, Mr Ferdinands.  Anything in reply?

MR BLEBY:   Only one thing, if the Court pleases.  If your Honour just peruses the originating process, you will note that there is no decision of the Federal Court which is impugned in this process.  So while there may or may not be questions about which judge would be able to hear the matter upon remittal, there is no direct challenge in this document to any decision of the Federal Court.  If the Court pleases.

HER HONOUR:   Thank you.

The plaintiff in this matter was a corporal in the Australian Defence Force (ADF).  His service was terminated on 3 November 2004 by Colonel T.J. Hanna following a determination by Brigadier C.G. Appleton, a delegate of the Chief of Army, that the plaintiff was not suitable for further service in the ADF.  Determination notice of 9 June 2004 to show cause why the plaintiff’s service should not be terminated identifies a number of incidents and grounds for the termination, including prejudicial behaviour.  The plaintiff responded on 6 August 2004 but Brigadier Appleton considered that there was nothing in the plaintiff’s response to alter his initial conclusion in correspondence dated September 2004 and the matter was referred to the Army Personnel Agency who would make the final decision on whether the plaintiff’s service in the ADF should be terminated.

In the period after 1993 but before 2004 the plaintiff served as a police officer with the South Australian Police. After an incident at the Adelaide city watch‑house he was charged with assault contrary to section 39 of the Criminal Law Consolidation Act 1935 (SA). He was found guilty and convicted and the Police Commissioner terminated his appointment as a police officer in November 2001. This incident was also referred to by Brigadier Appleton in the termination notice of 9 June 2004.

The plaintiff challenged his termination by the Police Commissioner in the Industrial Relations Commission of South Australia.  However, the commission found that it did not have jurisdiction to hear the matter, given the operation of the applicable Police Act 1998 (SA). The plaintiff then attempted to appeal this decision to the Supreme Court of South Australia, where the application was dismissed. This decision was then unsuccessfully appealed to the High Court and reported: Ferdinands v Commissioner for Public Employment (2006) 225 CLR 130.

In the matter currently before this Court the plaintiff has filed an application for an order to show cause on 4 May 2006 in respect of the decision to terminate his service made on 3 November 2004.  The plaintiff has also filed an application for an extension of time in which to pursue the order to show cause. 

The defendants have also filed a summons dated 26 April 2007 requesting that the matter be remitted to the Federal Court under section 44(1) of the Judiciary Act 1903 (Cth). Mr Ferdinands opposed the remitter to the Federal Court on two bases. He states that he seeks a judicial determination in respect of the decision about which he complains, something which he could obtain in the Federal Court of Australia. Secondly, he has indicated that he intends to seek the disqualification of certain Federal Court judges if they are allocated to his case. There is, however, no direct challenge in this proceeding to any decision of any Federal Court judge.

Given the nature of the matter disclosed in the materials before this Court, it is an appropriate matter to remit to the Federal Court of Australia.  The orders I make now are:

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, be remitted to the Federal Court of Australia, South Australian registry, for hearing.

2.The time limits imposed by rules 25.06.01 and 25.06.02 of the High Court Rules 2004 are to continue to apply to these proceedings upon the remittal to the Federal Court of Australia of the plaintiff’s application for an extension of time.

Is there any application in respect of costs?

MR BLEBY:   I apply for costs, if the Court pleases, on the basis that this matter could have been brought in the Federal Court in the first instance.

HER HONOUR:   Do you wish to say anything, Mr Ferdinands?

MR FERDINANDS:   No, I do not require a statement.

HER HONOUR:   Very well.  Then the third order will be that the applicant pay the respondents’ costs of today.

AT 11.14 AM THE MATTER WAS CONCLUDED