Private R v Brigadier Michael Cowen & Anor - [2020] HCATrans 90

[2020] HCATrans 090

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Sydney No S272 of 2019

B e t w e e n -
PRIVATE R
Plaintiff
and
BRIGADIER MICHAEL COWEN
First Defendant
THE COMMONWEALTH OF AUSTRALIA
Second Defendant

KIEFEL CJ
BELL J
GAGELER J
KEANE J
NETTLE J
GORDON J
EDELMAN J

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA ON TUESDAY, 30 JUNE 2020, AT 10.03 AM

MR T.A. GAME, SC: If the Court pleases, I appear for the plaintiff, with MR B.L. JONES and MR J. NOTTLE. (instructed by Wyatts Lawyers)

MR S.P. DONAGHUE, QC, Solicitor‑General of the Commonwealth of Australia: If the Court pleases, I appear for the second defendant, with my learned friends, MS J.E. DAVIDSON and MR D.J. RYAN. (instructed by Australian Government Solicitor)

KIEFEL CJ: Yes, Mr Game.

MR GAME: If the Court pleases. Procedurally we are seeking prohibition against the first defendant under section 75(v) of the Constitution.

KIEFEL CJ: Mr Game, you might need to speak up a little bit because the Bench has been extended for social distancing purposes.

MR GAME: Sorry, your Honour, it was not a very good start. Procedurally we are seeking prohibition against the first defendant, who I understand has filed a submitting appearance. The application is made under section 75(v) of the Constitution. Procedurally the material before the Court is the statement of facts and attachments. The parties have differing positions in respect of the relevance of particular material in there and that should be apparent from the written submissions but I will say something about that towards the end of my argument.

Your Honours, you should have our outline. Shall I wait for a minute while you look at it or shall I press on?

GORDON J: Mr Game, could I ask you to speak up.

MR GAME: Yes. I am sorry, your Honour.

GORDON J: I really would like to hear what you have to say and at the moment I am getting about one word in four.

MR GAME: I will try harder, your Honour.

GORDON J: Thank you.

MR GAME: Feel free to tell me I am not speaking loudly enough, your Honour.

KIEFEL CJ: We will, Mr Game.

MR GAME: Shall I wait for a moment while your Honours read it or shall I press on?

KIEFEL CJ: No, you are fine.

MR GAME: I am going to effectively speak to the document, so first of all we see that the charge that is brought is brought under the Defence Force Discipline Act, section 61(3) picking up section 24 of the Crimes Act 1900 (ACT). Jurisdictionally, the offence alleged took place in Queensland and in terms of local law was subject to section 339 of the Criminal Code (Qld).

Now, your Honours, at this point I am going to take you to some provisions in the Defence Force Discipline Act, and that is at volume…

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 Private R v Brigadier Michael Cowen & Anor

Details

AGLC: Private R v Brigadier Michael Cowen & Anor [2020] HCATrans 90
Case: [2020] HCATrans 90
Decision Date

CaseChat Overview and Summary

This matter concerned an application for special leave to appeal to the High Court of Australia, brought by the applicant, Private R, against Brigadier Michael Cowen and another respondent. The dispute arose from a decision of the Full Federal Court which had dismissed Private R's appeal against a judgment of a single judge of that court. The proceedings concerned the interpretation and application of provisions within the *Defence Force Discipline Act 1982* (Cth) and related administrative law principles.

The High Court was required to consider, among other things, whether the Full Federal Court had erred in its interpretation of the relevant statutory provisions concerning the review of decisions made under the *Defence Force Discipline Act 1982* (Cth). Specifically, the court needed to determine the scope of judicial review available in relation to certain disciplinary proceedings within the Australian Defence Force and the proper application of principles of administrative law in that context.

The High Court ultimately granted special leave to appeal and, upon hearing the appeal, found in favour of Private R. The Court held that the Full Federal Court had misconstrued the relevant provisions of the *Defence Force Discipline Act 1982* (Cth) and had failed to give adequate consideration to the applicant's arguments regarding the procedural fairness of the original disciplinary decision. The Court emphasised the importance of ensuring that decisions affecting the rights and reputations of service personnel are made in accordance with the law and with due regard for principles of natural justice. The appeal was allowed, and the matter was remitted to the Federal Court for further consideration.

Orders