Garcia v Westwood

[2007] FCA 1064

FEDERAL COURT OF AUSTRALIA

Garcia v Westwood [2007] FCA 1064

STEPHEN MAXWELL GARCIA v BRIGADIER IAN DENIS WESTWOOD AND CHIEF OF ARMY

NTD 12 OF 2007

MANSFIELD  J
13 JULY 2007
ADELAIDE

IN THE FEDERAL COURT OF AUSTRALIA
NORTHERN TERRITORY DISTRICT REGISTRY	NTD 12 OF 2007

BETWEEN:

STEPHEN MAXWELL GARCIA
Applicant

AND:

BRIGADIER IAN DENIS WESTWOOD
First Respondent

CHIEF OF ARMY
Second Respondent

JUDGE:	MANSFIELD  J
DATE OF ORDER:	13 JULY 2007
WHERE MADE:	ADELAIDE

THE COURT ORDERS THAT:

1.Extend Order 1 made on 11 July 2007 to 5:00 pm 20 July 2007.

2.List matter for final hearing at 2:15 pm 20 July 2007.

3.Liberty to apply.

Note:   Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA
NORTHERN TERRITORY DISTRICT REGISTRY	NTD 12 OF 2007

BETWEEN:

STEPHEN MAXWELL GARCIA
Applicant

AND:

BRIGADIER IAN DENIS WESTWOOD
First Respondent

CHIEF OF ARMY
Second Respondent

JUDGE:	MANSFIELD  J
DATE:	13 JULY 2007
PLACE:	ADELAIDE

REASONS FOR JUDGMENT

1. The application before the Court is for an interlocutory injunction to restrain the Chief of Army from giving effect to a sentence under Pt IV of the Defence Force Discipline Act 1982 (Cth) (DFDA) imposed upon the applicant by the first respondent as a Defence Force magistrate on 26 June 2007 and subsequently confirmed on review by a reviewing authority in accordance with Pt IX of the DFDA.

2. The allegation, which I accept to be the case for the purposes of today’s application only, is that the first respondent, having imposed sentence and having become (as is common ground) functus officio, was approached the morning following the sentence by Captain Vithanage who was the person in whose custody the applicant was placed following his sentence.  Captain Vithanage had received some information that a doctor who had provided evidence relevant to sentence to the first respondent changed his opinion as to the applicant’s medical condition and, in particular, in respect of the applicant’s medical suitability to undergo a period of military detention.

3. The first respondent, on the information presently before me, entertained Captain Vithanage’s approach in the absence of the applicant or of his legal representative and, upon being asked for advice as to how to proceed, gave advice that Captain Vithanage should arrange for the applicant to be examined by another medical officer.  It is argued that that conduct demonstrates that the first respondent denied the applicant procedural fairness in entertaining Captain Vithanage’s request and in responding to it at all and in the way he did, and that by doing so, additionally demonstrated that a reasonable person observing those events might reasonably think that the first respondent was biased in the way in which he entertained the sentencing submissions and dealt with them.

4. It is important to distinguish that allegation from another discrete process apparently applicable before a regimen of military detention is imposed.  I am informed that para 31 of the Defence Instructions (General) Personnel 45-3, issued in 2002, requires a soldier under sentence to be medically examined not more than 24 hours before a period of military detention is undergone.  The applicant has been medically examined since his sentence and most recently that medical examination has indicated that he is fit to undergo a regimen of military detention.  There is no criticism by the applicant of the process under the Defence Instruction.

5. As I say, that is quite distinct from the issue which the applicant now seeks to ventilate.

6. I have come to the view that it is reasonably arguable that the first respondent, although functus officio in his capacity as Defence Force magistrate in dealing with the applicant at the time of the conduct to which I have referred, by engaging in that conduct failed to accord the applicant procedural fairness and engaged in conduct which might disclose ostensible bias on his part.  That then is relevant to the sentence which might have been imposed having regard to the sentencing principles specified in s 70(2)(b) of the DFDA.

7. I am not called upon to decide that question, or any of the factual matters, or the legal arguments which have been advanced today in support of the existence of a serious question or an arguable issue.  I am only called upon to decide whether there is such an arguable issue.  As I have said, I am satisfied that such an arguable issue exists.  The balance of convenience in the circumstances is clearly one where the order made ex parte on 11 July 2007 restraining the transport of the applicant from Darwin to the Defence Force Corrective Establishment at Holdsworthy or some other military establishment to undergo the regimen of military detention imposed by the sentence, should continue for a further period of time.

8. I will hear the parties as to how quickly this matter can be relisted for hearing, or for hearing of the interlocutory application when the respondents have had an opportunity to respond to the applicant’s evidence.

I certify that the preceding eight (8) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Mansfield.

Associate:

Dated:       19 July 2007

Counsel for the Applicant:	Mr C McDonald QC
Counsel for the Respondents:	Mr T Berkley
Solicitor for the Respondents:	Clayton Utz
Date of Hearing:	13 July 2007
Date of Judgment:	13 July 2007