Ferdinands v Minister for Defence

[2011] HCATrans 173

[2011] HCATrans 173

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Adelaide  No A29 of 2010

B e t w e e n -

TREVOR KINGSLEY FERDINANDS

Plaintiff

and

MINISTER FOR DEFENCE

Defendant

Application for an order to show cause

CRENNAN J

TRANSCRIPT OF PROCEEDINGS

FROM MELBOURNE BY VIDEO LINK TO ADELAIDE

ON WEDNESDAY, 15 JUNE 2011, AT 9.37 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 defendant.  (instructed by Australian Government Solicitor)

HER HONOUR:   Yes, Mr Ferdinands.

MR FERDINANDS:   This is the application for the order to show cause for the Minister for Defence.  The Minister himself has got certain duties to perform and to undertake as Minister in charge of the Australian Army.  The Crown submissions are that these matters have already been dealt with.  I can inform the Court these matters have not been dealt with.  What was dealt with was a trial in 1999 at the Defence Force Magistrate’s level and then there were subsequent appeals within the Federal Court of Australia.  Those matters were brought by the Executive, the Executive being Chief of Army and his representatives.

Her Honour’s presence in A29 of 2010 is not a matter of the Executive.  The matter has now transformed.  The Crown submissions are basically that the Court should not hear these matters.  The Crown submissions as put to the Court is that I am seeking judicial review of the Federal Court matters.  That is completely incorrect.  What I am seeking is for the Minister for Defence be accountable and show some duty and some performance in that duty and give what is known as a ministerial direction.  The Minister does have power to give ministerial directions to the Executive.  The direction being sought is a direction to prevent, in my opinion and my opinion alone, a miscarriage of justice in that I have been charged, investigated, prosecuted and convicted.

HER HONOUR:   You are seeking, are you, a ministerial direction which relates to a desire on your part to challenge your conviction of November 1999 and your dismissal in November 2004?

MR FERDINANDS:   That may or may not be the case depending on what the High Court of Australia does in the future.  What we have before the Court is the lack of evidence, that is, the lack of discovery and the lack of disclosure both at the trial and on the appeals through the Federal Court.  That was a conscious decision made by the Executive.  The Chief of Army and his representatives made that decision.  So when we talk about the lack of discovery and the lack of disclosure, when we move towards the burden of proof beyond reasonable doubt, this Court cannot entertain beyond reasonable doubt with such significant amounts of evidence not presented to the Court.  In other words, the original court was channelled, it was narrowed.  So what it got was essentially one version of events in 1999.

What today is about in A29 is – obviously there are two parts.  One is the question of law, possibly the greatest question of law ever asked in military history, who is actually responsible for all of this?  Is it the High Court Judges themselves dealing with applications of soldiers or is it, in fact, the Minister’s problem, the Minister who recruits all these people, the Minister who sets policy, the Minister who is supposed to provide guidance and leadership?  He created the military justice system in the Defence Act, but there are rules to discovery and disclosure and part of those rules are to support a notice of alibi.  If I have an alibi to any charge, the Executive, under the Chief of Army, has to do what is morally and ethically responsible for a fair trial. 

So if I am accused of something, surely I must have my day in court.  I cannot be channelled and narrowed and sort of pushed around from one court to the next court with malice or ill will or unfairness.  So A29 asks a question of law, but something else A29 of 2010 asks is for the release of documents which are part of what we call discovery and disclosure.  These documents should have been taken as evidence by the military police in the very initial investigations.  Why they did not take that is not an issue for the Court, but if the investigation itself was incompetent, then that is clearly an issue for the Court. 

So this morning her Honour can say, all right, so the military police did not do a good investigation and the courts did not do a good enough job to access information, why now should the High Court get involved and the reason being is the face of the public record.  The face of the public record cannot be altered, amended or deleted.  It cannot be tampered with.  If a soldier is under orders doing something and everybody knows that, then it makes no sense whatsoever to come into court and say that soldier was told to do something else and he did the wrong thing, therefore he disobeyed orders, therefore he will be charged and investigated.  So the face of the public record can be proven in the primary fact by what is known as digital evidence.

So if the soldier has materials such as phone records, faxes, movement sheets, log books, all of that constitutes digital evidence that must be brought forward by Chief of Army who is conducting the trial.  He is conducting, he has presented the charge sheets, he has convened the court, now he is running the trial.  He cannot withhold the soldier’s story.  There cannot be two versions of events to what is known as the face of the public record, because the face of the public record is set. Things happen or they did not happen, so the only way to prove that is by hard evidence.  In my case, the notice of alibi was not supported.

So when her Honour looks at the orders basically what will happen is the Australian Government Solicitor will come forward with the evidence

suppressed, the Court will be able to look at my version of events still not presented to the Court, look at what was said at trial and then say what was said at trial was what is known as concoction or fiction.  It is just concoction.  So this is the hard evidence, this is the primary fact evidence, we now declare this matter a conviction by fraud or a sham trial and revoke obviously the orders to terminate but also set aside previous judgments in the Federal Court.  But the Minister has a responsibility to this Court.  The Minister for Defence must perform a duty.  That is basically what I have to say, your Honour, unless her Honour has some special questions for me in terms of the question of law or why these matters were not presented, the initial evidence.

HER HONOUR:   Thank you very much, Mr Ferdinands.

MR FERDINANDS:   Okay.  Thank you, your Honour.

HER HONOUR:   I shall now hear from Mr Bleby.

MR BLEBY:   If the Court pleases.  The defendant pursues paragraphs 1 and 2 of the summons filed on 23 March 2011.  It does not pursue paragraph 3.  The defendant relies on the affidavit of Paul Henry d’Assumpocao filed on the same date and, your Honour, we have filed a short written submission in support of the summons.

HER HONOUR:   Yes, I have read that material.

MR BLEBY:   There is nothing further I wish to add by way of oral submissions, if the Court pleases.

HER HONOUR:   Thank you very much.  Mr Ferdinands, do you wish to say anything in reply?

MR FERDINANDS:   Yes, I do, your Honour.  This case is required for a hearing because within this case I have suffered 12 years in the courts and I have – nobody assisted me - I have come to the conclusion that there are now five new forms and five new rules to go forward to what is known as speed up all processes and these new forms bring what is known as tactical speed, absolute tactical speed, to the operations of the High Court of Australia. 

This morning, if I can digress for only a moment, there was an application for extension of time.  Her Honour can see in Ferdinands v Minister for Defence the five new forms actually do cover High Court Rules 41.02.4, 41.02.5 and 41.02.6 and 41.02.7, the notice of extension of time.  So I lived all of this and yet all around me are other people, both the Crown and litigants in person, living notices of extension of time, people coming in with applications.  On this hearing, if I am successful on the five forms, there will never, ever, ever be an application for extension of time hearing again because what that person will do will go down to the Registry, will pick up form 200, fill it out, circle why they had problems in terms of the extension of time and it will be dealt with at the Registry level. 

If a person can come into Court, as we had the previous litigant say, the Court was shut, I did everything right, her Honour then gave approval, yes, I can see what is going on, all of that is gone because now we have got tactical speed.  The tactical speed element, the crucial element in that argument is the face of the public record. 

Sometimes people do not know the law.  When I started all of this, I did not know the law.  I did not know anything.  I had to sit down and read and read and all of a sudden people were saying things which were the same in South Australia and the same in New South Wales, but slightly different in Western Australia and a bit more added in Queensland and it was all over the place, and you have got to sort of bring that together under one umbrella called the High Court of Australia and then once these forms go out, you can look at the five forms and the amendments to them and say, all right, this is what we are going to do in Ferdinands v Minister for Defence. 

But there is also other forms, notice of extension of time, there is also notice of the declaration of fraud, so fraud in the proceedings.  There is also the notice of the court of competent jurisdiction.  This is very important.  No litigant in person in history has ever come into court and said this court is incompetent.  Competent jurisdiction and a court of competent jurisdiction terminology is only used by senior – very senior judges, lords of the court.  They are the ones who have raised this and that is what I want to do, is I want to be able to present an argument to the High Court of Australia in different cases throughout history, the 1800s, the 1900s, even today where there are judges saying in a court of competent jurisdiction, okay, that is fine. 

What is the opposite to what they are saying?  They are talking about the incompetence.  Now, what we need to do is transfer that into a form because if a judge for some unknown reason, his limitation of the law, his lack of understanding within multiculturalism or even within cultures themselves, he sees things he does not understand, all of that can be dealt with in terms of the competency of the judge.  Nobody is saying the judge is criminal, nobody is saying the judge is corrupt, nobody is saying the judge is dishonest.  That is not what notice of court of competent jurisdiction is. 

What that form says is the person, one of the parties met a judge and he displayed in that courtroom matters which were discussed which were pretty much basic to the average person and people could understand that,

but this judge did not understand it for one or two or three reasons manifested in the judge and from that rose a court of competent jurisdiction.  That is what that form is about. 

In terms of the other form, notice to have legal practitioners struck off the rolls, that is a new system.  So under the present system you have got the Legal Practitioners Board, you have got the Legal Practitioners Act and then you have got the complaints process.  All of that is still operational.  That new form under High Court Rules 11.01.4 and 11.01.5, the new Rules, that is the power to the Judges, so they can come into Court and if a legal practitioner who thinks he can run a sham or a con right in front of the Judges, it is the individual Judges who will reach for the form 100 and because of the lack of honesty in that legal practitioner at that time, the Judge himself or herself will move to have him removed from the case and removed from the rolls.

So at the present situation, you have got complaints.  The complaints are after the trial, complaints are after the hearings when things have been dealt with.  This is actually being dealt with now.  If this form comes into life, it will be dealt with at the time and it will be universal, across 165 nations of the United Nations.

HER HONOUR:   Thank you, Mr Ferdinands.

MR FERDINANDS:   Thank you, your Honour.

HER HONOUR:   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 (“Tribunal”) on 17 April 2001, well out of time.  Following an appeal to the Tribunal against the dismissal of the plaintiff’s application for an extension of time by Heerey J (the President), the Tribunal extended the time for the filing of the appeal but dismissed the appeal, holding that the 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 Army, Brigadier Appleton, discharged the plaintiff from the Army forthwith. 

These events have founded multiple proceedings initiated by the plaintiff in the Federal Court and in this Court, including the present proceedings. 

On 9 September 2002, the plaintiff filed a notice of appeal in the Federal Court in respect of the Tribunal’s dismissal of his appeal.  On 11 February 2003, the Full Court of the Federal Court (Spender, Ryan, von Doussa, Dowsett and Selway JJ) granted the motion filed by the respondent in those proceedings (the Chief of Army) to dismiss the appeal on the grounds that the plaintiff had failed to prosecute the appeal with due diligence, failed to prepare a draft index prior to the appointed time under the Federal Court Rules, and failed to file and serve appeal books contrary to directions made by the District Registrar on 18 December 2002.  The Full Court considered that there was no injustice in dismissing the appeal for want of prosecution as it would have no prospects of success.

The plaintiff then applied for special leave to appeal the Full Court’s judgment to this Court, but his application was deemed abandoned on 1 October 2003. 

In March 2006, the plaintiff filed an application for an order to show cause directed to the Chief of Army and the Department of Defence and an application for an extension of time in which to file that application.  The relief sought was, amongst other things, orders that Brigadier Appleton’s decision of 3 November 2004 be quashed, that the Department of Defence answer correspondence from the plaintiff with respect to the provision of documents allegedly relevant to the plaintiff’s “legal issues of appeal”, and that the plaintiff be permitted to appeal against his conviction of November 1999.

On 4 May 2007, I ordered that further proceedings in the plaintiff’s applications be remitted to the Federal Court with the time limits imposed by rr 25.06.1 and r 25.06.2 of the High Court Rules 2004 (“High Court Rules”) to continue to apply upon the remittal subject to the Federal Court’s determination of the plaintiff’s application for an extension of time.

On 3 December 2008, Lander J dismissed both applications.  His Honour understood the plaintiff to be seeking, in his substantive application, the issue of a writ of certiorari to quash the decision of Brigadier Appleton and the issue of a writ of mandamus directed to the Department of Defence.  His Honour found that the plaintiff had given no real explanation for the delay in filing his application and that the proceeding originally filed in this Court was “patently an abuse of process” insofar as it sought, by the application for the issue of constitutional writs, to set aside the plaintiff’s conviction of November 1999 as well as a conviction in the Adelaide Magistrates Court - convictions from which the plaintiff had exhausted all avenues of appeal.  The plaintiff sought leave to appeal from the decision of Lander J.  On 20 January 2009, his application was refused by Mansfield J who found no error in Lander J’s reasoning. 

On 7 April 2009, the plaintiff commenced further proceedings in this Court by an application for an order to show cause and a summons directed to both Lander J and Mansfield J, and to the Chief of Army, in which he sought to challenge the abovementioned decisions of both Lander J and Mansfield J.  On 12 August 2009, Hayne J dismissed the plaintiff’s application, finding that there was no arguable basis for this Court to grant the relief sought given that the decisions of Lander J and Mansfield J were decisions concerning whether extensions of time should be granted for bringing proceedings initially instituted in this Court.  The plaintiff then sought leave to appeal from the decision of Hayne J, which application was dismissed by Heydon and Bell JJ on 9 December 2009. 

On 23 December 2010, the plaintiff commenced fresh proceedings in this Court by an application for an order to show cause and a summons directed to the defendant, the Minister for Defence, supported by affidavits.  The plaintiff sought various forms of relief, including orders:

·compelling the defendant to provide various documents alleged to be material to a review of his conviction of November 1999, in default of which the plaintiff sought declarations that the proceedings founding that conviction were a “sham”, “fraud” and “invalid in law”, and orders quashing the 1999 conviction and the decisions in all subsequent proceedings between the plaintiff and the Chief of Army;

·reinstating the plaintiff to the Australian Army Reserve at his former rank and awarding him compensation from the date of his termination;

·revoking a “Notice of Show Cause” said to have been issued to the plaintiff by Brigadier Appleton in April 2004; and

·referring two questions of law to the Full Court of this Court in the following terms:

“(a)Does the Minister for Defence have a discretionary power or a mandatory obligation to prevent a serious miscarriage of justice in the military justice system?”; and

“(b)Does that power to prevent a serious miscarriage of justice in the military system lie exclusively within s 75(v) of the Constitution and reside within the High Court of Australia? Thus the Minister for Defence is not to be involved in any matters of the military justice system and especially of those matters that are before the courts.”

In oral submissions today the plaintiff has complained about the conduct of his trial and appeals in relation to what he refers to as the conduct of the Executive in respect of evidence led at trial. 

The defendant has appeared today and made an application pursuant to a summons dated 23 March 2011 for dismissal of the plaintiff’s application under r 27.09.4 of the High Court Rules, together with costs.

The plaintiff’s application for an order to show cause, the accompanying summons, the supporting affidavit material and oral submissions today show that this proceeding is, in substance, another attempt on the plaintiff’s part to challenge his conviction of November 1999 and dismissal of November 2004, in respect of which he has exhausted all avenues of appeal.  This is so despite the fact that the present defendant was not named as such in the earlier proceedings.

The abovementioned documents filed by the plaintiff are prolix and embarrassing in form.  They disclose no arguable basis for a grant of the relief sought.  On all of the material before me, I am satisfied that, having regard to all the circumstances, the current proceeding amounts to an abuse of process in this Court. 

I order that the application for an order to show cause, and the accompanying summons, dated 23 December 2010 be dismissed and that the plaintiff pay the defendant’s costs.

Adjourn the Court.

AT 10.09 AM THE MATTER WAS CONCLUDED