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Lane v Morrison

Lane v Morrison

Case [2009] HCA 5 16 January 2009

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HIGH COURT OF AUSTRALIA
FRENCH CJ
BRIAN GEORGE LANE  PLAINTIFF
AND
COLONEL PETER JOHN MORRISON
& ANOR   DEFENDANTS
Lane v Morrison
[2009] HCA 5
16 January 2009
C3/2008
ORDER
1.        The name of the first defendant be amended to "Colonel Peter John            Morrison, a Military Judge of the Australian Military Court".
2.        The Plaintiff have leave to file a Further Amended Application for an         Order to Show Cause in the form notified to the registry on 9 January    2009.
3.        The Further Amended Application for an Order to Show Cause, insofar as it seeks relief on Grounds 4, 5 and 7, be dismissed.
4.        The Further Amended Application for an Order to Show Cause, insofar as it seeks relief on Grounds 1, 2, 3 and 6, be referred for further hearing by       a Full Court.
5.        The plaintiff file and serve a revised s 78B notice by not later than 4pm on            23 January 2009, and file an affidavit of service by not later than 4pm on           2 February 2009.
6.        The second defendant prepare and file an Application to Show Cause         book, in accordance with the index as settled by the Registry, by not later    than 4pm on 10 March 2009 (being within 10 working days of the plaintiff         filing the affidavit of service of the s 78B notice).
7.        The standard timetable for filing submissions set out in High Court Practice Direction No 1 of 2000 be varied as follows:
7.1The plaintiff shall file and serve its written submissions on or before 6 February 2009.

7.2 The second defendant shall file and serve its written submissions at least 15 clear working days before the hearing of the Further Amended Application by the Full Court.
7.3 Any intervener shall file and serve its written submissions at least 10 clear working days before the hearing of the Further Amended Application by the Full Court.
7.4The plaintiff may file and serve written submissions in reply at least five working days before the hearing of the Further Amended Application by the Full Court.
7.5The second defendant may file and serve written submissions in reply to any interveners at least five working days before the hearing of the Further Amended Application by the Full Court.

8.        Costs of this hearing be costs in the cause.
9.        The plaintiff's summons dated 16 July 2008 be otherwise dismissed.
10.      Liberty to apply in writing on three clear working days notice.
Representation
A W Street SC with M J Duncan and K S Cochrane for the plaintiff (instructed by Provest Law)
Submitting appearance for the first defendant
S J Gageler SC, Solicitor-General of the Commonwealth, with N M Wood for the second defendant (instructed by Australian Government Solicitor)
Notice: This copy of the Court's Reasons for Judgment is subject to formal revision prior to publication in the Commonwealth Law Reports.

CATCHWORDS
Lane v Morrison
Constitutional law – High Court – original jurisdiction – defence power – military justice system – application for show cause order –…

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.

Continue reading Lane v Morrison

Details

AGLC: Lane v Morrison [2009] HCA 5
Case: [2009] HCA 5
Decision Date: 16 January 2009

CaseChat Overview and Summary

The plaintiff, Lane, sought an order to show cause against the defendant, Colonel Peter John Morrison, a Military Judge of the Australian Military Court, and the second defendant, the Commonwealth of Australia. The dispute concerned the constitutional validity of aspects of the military justice system, specifically relating to the defence power. The matter came before the High Court of Australia in its original jurisdiction.

The primary legal issue before the Court was whether the plaintiff's application for an order to show cause, which challenged the constitutional basis of the military justice system, disclosed an arguable case. This involved determining whether certain grounds of the application had sufficient merit to warrant further consideration by the Court. A secondary issue concerned the proper procedure for notifying Attorneys-General under section 78B of the Judiciary Act 1903 (Cth), including the scope of information that must be included in such notices.

French CJ considered the plaintiff's application and determined that while some grounds of the application were not arguable and were therefore dismissed, other grounds did raise substantial constitutional questions. His Honour ordered that the application, in relation to grounds 1, 2, 3, and 6, be referred for further hearing by a Full Court. The Court also addressed procedural matters, including amending the name of the first defendant and requiring the plaintiff to file and serve a revised section 78B notice, along with specific directions for the filing of submissions and the preparation of court materials.

The Court made several orders, including dismissing certain grounds of the application, referring others for a Full Court hearing, and setting out a revised timetable for further proceedings. Costs were reserved as costs in the cause.

Orders

Orders of the court

1. The name of the first defendant be amended to "Colonel Peter John Morrison, a Military Judge of the Australian Military Court".

2. The Plaintiff have leave to file a Further Amended Application for an Order to Show Cause in the form notified to the registry on 9 January 2009.

3. The Further Amended Application for an Order to Show Cause, insofar as it seeks relief on Grounds 4, 5 and 7, be dismissed.

4. The Further Amended Application for an Order to Show Cause, insofar as it seeks relief on Grounds 1, 2, 3 and 6, be referred for further hearing by a Full Court.

5. The plaintiff file and serve a revised s 78B notice by not later than 4pm on 23 January 2009, and file an affidavit of service by not later than 4pm on 2 February 2009.

6. The second defendant prepare and file an Application to Show Cause book, in accordance with the index as settled by the Registry, by not later than 4pm on 10 March 2009 (being within 10 working days of the plaintiff filing the affidavit of service of the s 78B notice).

7. The standard timetable for filing submissions set out in High Court Practice Direction No 1 of 2000 be varied as follows:

7.1 The plaintiff shall file and serve its written submissions on or before 6 February 2009.

7.2 The second defendant shall file and serve its written submissions at least 15 clear working days before the hearing of the Further Amended Application by the Full Court.

7.3 Any intervener shall file and serve its written submissions at least 10 clear working days before the hearing of the Further Amended Application by the Full Court.

7.4 The plaintiff may file and serve written submissions in reply at least five working days before the hearing of the Further Amended Application by the Full Court.

7.5 The second defendant may file and serve written submissions in reply to any interveners at least five working days before the hearing of the Further Amended Application by the Full Court.

8. Costs of this hearing be costs in the cause.

9. The plaintiff's summons dated 16 July 2008 be otherwise dismissed.

10. Liberty to apply in writing on three clear working days notice.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

FRENCH CJ

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Ratio Decidendi

Legal Principle Established

Established by: FRENCH CJ

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Actions

Citations

Lane v Morrison [2009] HCA 5

Most Recent Citation

EPL20 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCAFC 173

Cases Citing This Decision

EPL20 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCAFC 173
Citation 1 (Para 1)

…ceeds on a non-Constitutional ground (see Zhang v Commissioner of Police [2021] HCA 16; 389 ALR 363 at [21]; ICM Agriculture Pty Ltd v Commonwealth [2009] HCA 5; 240 CLR 140 at [141] per Hayne, Kiefel and Bell JJ and Babington v Commonwealth [2016] FCAFC 45; 240 FCR 495 at [47] per Kenny, Perram, Robertson, Gri…

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Cases Cited

White v Director of Military Prosecutions [2007] HCA 29
Citation 1 (Para 10)

…ed application to the Full Court for further hearing insofar as the claim for relief is based on ground 1. [10](2007) 231 CLR 570 at 649 [241]-[242]; [2007] HCA 29.…
White v Director of Military Prosecutions [2006] HCATrans 566
Citation 2 (Para 19)

…oposed s 78B notice, the plaintiff is seeking to reagitate grounds dismissed as unarguable by Gleeson CJ in White v Director of Military Prosecutions [2006] HCATrans 566 at 770-885. The Commonwealth contended that: "10.1.By ground 4 the Plaintiff seeks a trial on indictment and by a jury pursuant to s 80 of the Consti…
Re Aird; Ex parte Alpert [2004] HCA 44
Citation 3 (Para 21)

…Aird; Ex parte Alpert [21]; Re Tyler; Ex parte Foley [22]; Re Nolan; Ex parte Young ;[23] and Re Tracey; Ex parte Ryan [24]. [21](2004) 220 CLR 308; [2004] HCA 44. [22](1994) 181 CLR 18; [1994] HCA 25. [23](1991) 172 CLR 460; [1991] HCA 29. [24](1989) 166 CLR 518; [1989] HCA 12.…
Cheng v The Queen [2000] HCA 53
Citation 4 (Para 14)

…HCA 10. [15](1954) 94 CLR 86; [1954] HCA 43. [16](1968) 121 CLR 283; [1968] HCA 80. [17](1978) 141 CLR 182; [1978] HCA 56. [18](2000) 203 CLR 248; [2000] HCA 53. [19](1999) 200 CLR 386; [1999] HCA 57.…
Re Tyler; ex parte Foley [1994] HCA 25
Citation 5 (Para 21)

…Ex parte Foley [22]; Re Nolan; Ex parte Young ;[23] and Re Tracey; Ex parte Ryan [24]. [21](2004) 220 CLR 308; [2004] HCA 44. [22](1994) 181 CLR 18; [1994] HCA 25. [23](1991) 172 CLR 460; [1991] HCA 29. [24](1989) 166 CLR 518; [1989] HCA 12.…
Re Tracey; Ex Parte Ryan [1989] HCA 12
Citation 6 (Para 21)

…yan [24]. [21](2004) 220 CLR 308; [2004] HCA 44. [22](1994) 181 CLR 18; [1994] HCA 25. [23](1991) 172 CLR 460; [1991] HCA 29. [24](1989) 166 CLR 518; [1989] HCA 12.…
Kingswell v The Queen [1985] HCA 72
Citation 7 (Para 14)

…hia Hsing v Rankin [17]; Cheng v The Queen [18] and Re Colina; Ex parte Torney [19] . [11](1915) 19 CLR 629; [1915] HCA 13. [12](1985) 159 CLR 264; [1985] HCA 72. [13](1928)41 CLR 128; [1928] HCA 18. [14](1938) 59 CLR 556; [1938] HCA 10. [15](1954) 94 CLR 86; [1954] HCA 43. [16](1968) 121 CLR 283; [1968] HCA 80.…
Sachter v Attorney-General for the Commonwealth [1954] HCA 43
Citation 8 (Para 14)

…15] HCA 13. [12](1985) 159 CLR 264; [1985] HCA 72. [13](1928)41 CLR 128; [1928] HCA 18. [14](1938) 59 CLR 556; [1938] HCA 10. [15](1954) 94 CLR 86; [1954] HCA 43. [16](1968) 121 CLR 283; [1968] HCA 80. [17](1978) 141 CLR 182; [1978] HCA 56. [18](2000) 203 CLR 248; [2000] HCA 53. [19](1999) 200 CLR 386; [1999] HC…
R v Federal Court of Bankruptcy; ex parte Lowenstein [1938] HCA 10
Citation 9 (Para 14)

…ney [19] . [11](1915) 19 CLR 629; [1915] HCA 13. [12](1985) 159 CLR 264; [1985] HCA 72. [13](1928)41 CLR 128; [1928] HCA 18. [14](1938) 59 CLR 556; [1938] HCA 10. [15](1954) 94 CLR 86; [1954] HCA 43. [16](1968) 121 CLR 283; [1968] HCA 80. [17](1978) 141 CLR 182; [1978] HCA 56. [18](2000) 203 CLR 248; [2000] HCA…
R v Archdall and Roskruge; Ex parte Carrigan and Brown [1928] HCA 18
Citation 10 (Para 14)

…Queen [18] and Re Colina; Ex parte Torney [19] . [11](1915) 19 CLR 629; [1915] HCA 13. [12](1985) 159 CLR 264; [1985] HCA 72. [13](1928)41 CLR 128; [1928] HCA 18. [14](1938) 59 CLR 556; [1938] HCA 10. [15](1954) 94 CLR 86; [1954] HCA 43. [16](1968) 121 CLR 283; [1968] HCA 80. [17](1978) 141 CLR 182; [1978] HCA 5…
R v Bernasconi [1915] HCA 13
Citation 11 (Para 14)

…l (Cth) [15]; Zarb v Kennedy [16]; Li Chia Hsing v Rankin [17]; Cheng v The Queen [18] and Re Colina; Ex parte Torney [19] . [11](1915) 19 CLR 629; [1915] HCA 13. [12](1985) 159 CLR 264; [1985] HCA 72. [13](1928)41 CLR 128; [1928] HCA 18. [14](1938) 59 CLR 556; [1938] HCA 10. [15](1954) 94 CLR 86; [1954] HCA 43.…
Zarb v Kennedy [1968] HCA 80
Citation 12 (Para 14)

…85] HCA 72. [13](1928)41 CLR 128; [1928] HCA 18. [14](1938) 59 CLR 556; [1938] HCA 10. [15](1954) 94 CLR 86; [1954] HCA 43. [16](1968) 121 CLR 283; [1968] HCA 80. [17](1978) 141 CLR 182; [1978] HCA 56. [18](2000) 203 CLR 248; [2000] HCA 53. [19](1999) 200 CLR 386; [1999] HCA 57.…
Li Chia Hsing v Rankin [1978] HCA 56
Citation 13 (Para 14)

…] HCA 18. [14](1938) 59 CLR 556; [1938] HCA 10. [15](1954) 94 CLR 86; [1954] HCA 43. [16](1968) 121 CLR 283; [1968] HCA 80. [17](1978) 141 CLR 182; [1978] HCA 56. [18](2000) 203 CLR 248; [2000] HCA 53. [19](1999) 200 CLR 386; [1999] HCA 57.…
Re Nolan; Ex Parte Young [1991] HCA 29
Citation 14 (Para 21)

…e Young ;[23] and Re Tracey; Ex parte Ryan [24]. [21](2004) 220 CLR 308; [2004] HCA 44. [22](1994) 181 CLR 18; [1994] HCA 25. [23](1991) 172 CLR 460; [1991] HCA 29. [24](1989) 166 CLR 518; [1989] HCA 12.…

Legislation Cited

Defence Force Discipline Act 1982 (Cth) 10, 114, 115, 61
5 mentions (from Para 1)
Judiciary Act 1903 (Cth) 78B
2 mentions (from Para 4)
Crimes Act 1900 (ACT)
1 mention (from Para 7)
Defence Legislation Amendment Act 2006 (Cth)
1 mention (from Para 2)