Re Nolan; Ex parte Young

[1990] HCATrans 126

~ i~~

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry

Adelaide	No Al2 of 1990
In the matter of -

An application for a writ of prohibition against the

COMMONWEALTH OF AUSTRALIA and

LIEUTENANT COLONEL J.A. NOLAN

a Defence Force Magistrate

Respondents

Ex parte -

HUGH YOUNG

Prosecutor

Young

TOOHEY J

(In Chambers)

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA ON THURSDAY, 7 JUNE 1990, AT 9.15 PM

Copyright in the High Court of Australia

C3Tl/l/LW 1 7/6/90

MR G.A. HACKETT-JONES, QC: If Your Honour pleases, I appear

with my learned frien~ MRS. CONNELL, for

Sergeant Young who is the prosecutor in this

application for a writ of prohibition against

Colonel Nolan, the Defence Force Magistrate.

(instructed by Thomson Simmons & Co.)

HIS HONOUR:	Ves, thank you.
MR HACKETT-JONES:	I have prepared a summary of argument of

that were of assistance to Your Honour.

HIS HONOUR:  Thank you. Mr Hackett-Jones, perhaps if I mention

two matters that might be thought to stand in the way

of this application because it would then perhaps

help to crystalize the argument. It seems to me that

you are faced with two difficulties: one is

to demonstrate that the judgment of Major Ryan is

sufficiently arguable to warrant the grant of an

order nisi, but the other is this: why should I
not allow the hearing before the Defence Force

Magistrate to proceed so that questions of

jurisdiction and any other questions that might
arise could be dealt with in the ordinary way

rather than this Court intervening at such an early

stage?

MR HACKETT-JONES: Well, we would say, sir, that that

prejudices his right to a civilian trial, that that

is one of the rights that he has as a citizen

under the principle as recognized, I think,
universally in TRACEY and stated by Lord Mansfield

in BURDETT V ABBOT that by taking on the character

of a soldier he does not divest himself of his

civilian rights and privileges.

HIS HONOUR:  Yes, I understand that and I am not suggesting

that the case is not arguable. My point in

at least the second of the two points is that

why should this Court intervene at this stage?

(Continued on page 3)

C3Tl/2/LW	2	7/6/90
Young

HIS HONOUR (continuing):  Why should not the matter just proceed

in the ordinary W8Y so that all questions that arise

relating to jurisdiction or otherwise if there were

a conviction would be dealt with by the tribunal,

and if necessary, by the Federal Court before the

matter found its way, if it did, to this Court.

Could I just elaborate on that to this extent by

saying that you could see obvious practical difficulties

if each time there was a charge brought under the

DEFENCE FORCE DISCIPLINE APPEALS ACT the question of

jurisdiction were raised, and if it were decided by

the magistrate adverse to the defendant, the matter

were then brought to this Court, particularly

as there is, at least I think in the judgment of

Mr Justice Brennan and myself in TRACEYi an indication

that questions of jurisdiction may invo ve not only
the nature of the charge, but some of the facts

surrounding the charge.

MR HACKETT-JONES:  Well, that is so, sir, but what we say is that

in this case it is clear enough from the principles

that were enunciated by yourself and Mr Justice Brennan
that jurisdiction does not exist, and in view of that

Sergeant Young is entitled to a writ of prohibition, in effect, to protect him from being subjected to a

jurisdiction to which he is not liable.

HIS HONOUR: Would an application lie to the Federal Court under

section 39B of the JUDICIARY ACT - would Major Rvan

be an officer of the Commonwealth?

MR HACKETT-JONES:  Yes, I think there would be a possibility of

an application under that section, sir.

HIS HONOUR:  I have some concern about the matter as it were

proceeding directly from a ruling by the Defence Force Magistrate to the High Court, as it were, sidestepping all the ordinary avenues that are contemplated by

the DEFENCE FORCE DISCIPLINE APPEALS ACT. It is true
that some industrial matters get to this Court in
that way, but there are reasons relating to

non-appealability and so on, and non-challenge,
that have brought that about.	I am just concerned

that if what you are seeking to do is to apply TRACEY

to the facts of the particular case, that this Court

should be asked to, as it were, assume control of the

matter on the basis of the ruling of the Defence Force

Magistrate.

C3T2/l/PF	3
Young

MR HACKETT-JONES:  Yes. I suppose what we would say is thdt

in this case the judgment in TRACEY is, we would

say, authority for the particular circumstances

with which it was concerned and that case was

concerned with an offence that was indisputably,

we would sa½ a service of the disciplinary offence

but the position is at least ambiguous, although
we would say certainly that the tendencies of the

judgment show that in a case like the present where

one does have clear civilian analogues there is

enough to show that the jurisdiction should not

be exercised, either that it does not exist or

that it should not be exercised if it does exist.

Now, certainly, it would be possible for us

to bring an application for a writ of prohibition

in the Federal Court because the JUDICIARY ACT now

provides for that to be done but because this is a
case that peculiarly involves the interpretation

of the judgment of TRACEY itself, we felt it more

appropriate to bring the application in this Court

than in the Federal Court.

HIS HONOUR:  Yes, I understand that in the sense that there

is no clear majority view emanating from TRACEY.

MR HACKETT-JONES:	Yes, that is so.
HIS HONOUR:	On the other hand, as you put it I did not

understand you to be, as it were, seeking
clarification of TRACEY so much as simply arguing

for its application to the facts of the particular

case.

MR HACKETT-JONES: Well, I suppose TRACEY, really, strictly

only stands as authority for the particular kind
of offence to which it applied. There are

indications in it which we would argue - very

strong indications - suggesting that in a case

like the present where you have offences with

clear civilian analogues, the civilian jurisdiction

is to be exercised in preference to the military

jurisdiction. I suppose we are seeking clarification

to that extent; that we would want this Court to say

that specifically rather than to leave it as a matter

of inference.

(Continued on page 5)

C3T3/1/SH	4
Young
HIS HONOUR:	I can see the practical problems that would

arise if all that was being sought to do was

the application of TRACEY to the facts of a

particular case in this Court. 1hat would simply, as it we-::-L:,

eliminate the hierarchical structure that was

contemplated by the DEFENCE FORCE DISCIPLINE APPEALS

ACT. I suppose the argument against that is that

we are at a very early stage of the development of

this aspect of the law?

MR HACKETT-JONES:	Yes, well that as I say, yes.
HIS HONOUR:	Could you just, perhaps, make clear to me the

argument, and I do not mean the detail of the

argument, but if the order nisi were granted

the basis upon which it would be argued that either

TRACEY is direct authority for an absence of

jurisdiction, or that propositions can be inferred

from TRACEY, that would point to a lack of jurisdiction

on the part of the magistrate?

MR HACKETT-JONES:  Yes. Well, as to jurisdiction, we would

say that your o;.;n judgraent with that of Justice Brennan's

answers a kind of intermediate point between, on

the one hand, the judgment of Chief Justice Mason,

Justice Wilson and Justice Dawson, on the one hand;
on the other hand the judgments of Justice Deane and

Justice Gaudron on the other. So, we would say

that the passage at the bottom of page 31 and 32 of the

ALR report would be to limit the outer limits of the

validity of this jurisdiction, as it were.	And if
I could just read that passage:

There are two sets of constitutional

objectives to be reconciled. The first set

of objectives, dictated by section Sl(vi),

consist of the defence of the Cormnonwealth

and of the several States and the control of

the armed forces. To achieve these objectives,

it is appropriate to repose in service

according to the exigencies of time, place and	authorities a broad authority, to be exercised	circumstance, to impose discipline on defence
members and defence civilians. The second set
of objectives, dictated both by Ch III and
s 106 of the CONSTITUTION and by the
constitutional history we have traced, consist of
recognition of the pre-ordinate jurisdiction of the civil courts and the protection of
civil rights which those courts assure alike
to civilians and to defence members and defence civilians who are charged with criminal offences.
To achieve these objectives, civil jurisdiction
should be exercised when it can conveniently
and appropriately be invoked and the jurisdiction

C3T4/l/JL	5
Young

of service tribunals should not be invoked,

except for the purpose of maintaining or

enforcing service discipline.

Well, just pausing there, that seems to be to us a

statement that in a case like the present where you

have clear civilian analogues, where the offence is alleged to have been committed in Keswick, a suburb

of Adelaide close to the heart of Adelaide, where particular statement and, of course, on Your Honour's
the parties are all close to the centre of population,
the civilian jurisdiction is the jurisdiction that
is to be invokved, rather than the military discipline.

further development of that proposition down through

that page, where Your Honour points out that there

maybe cases where, notwithstanding the existence of

civilian analogues, the military jurisdiction may be

appropriate.	But those are rather exceptional
cases.

(Continued on page 7)

C3T4/2/JL	6
Young
HIS HONOUR:	Well, you had three members of the Court directly

against you in that regard: Chief Justice,

Justice Wilson and Justice Dawson.

MR HACKETT-JONES:  Yes, but then if one adds Justice Gaudron.

Justice Gaudron, of course, took much the same line

as Your Honour did but she took the view, if I

understand it correctly, that in fact because of

modern methods of communication there was really

no case for the exercise of the military jurisdiction

within Australia. So, there you have, you might

say, three marshalled on each side with

Justice Deane, of course, taking a view that - well,

approaching the matter from a rather different point of view but saying that it is simply not appropriate at all for defence tribunals to be exercising what

is an heterogeneous jurisdiction comprising both

elements of service discipline and public policy -

public discipline.

HIS HONOUR:	But if this matter came before the Court and the Court was not asked to reconsider TRACEY or, if
asked, declined to do so and you were therefore compelled to argue the case on the basis of the
judgments in TRACEY as they presently stand, what
would be the case for an absence of jurisdiction?
It is not enough to point to the judgment of
Justice Brennan and myself.

MR HACKETT-JONES: Well, we would say that there is a majority

of four against jurisdiction in these circumstances.

In other words, we would count in Justice Deane although we concede that he is approaching the matter

from a slightly different viewpoint.

(Continued on page 8)

C3T5/l/DR	7	7/6/90
Young

HIS HONOUR:  You would be relying on numbers in the sense

that you cannot point to a majority of four

Justices espressing similar views that you would

s2ek to cull from those three judgments, because

one is a joint judgment, oppositions that would

tell against jurisdiction in the present case

albeit for different reasons.

MR HACKETT-JONES:  Yes, we would say that on that particular

point the judgments are if not three one way and

three the other, but the judgment of Justice Deane,

the tendency of the judgment	points in that
direction too.

HIS HONOUR:  Are any of your arguments affected by the amendments

that have been made to the charges, Mr Hackett.:.Jones?

I note that amendments have been made which first

identify the place of the commission of the alleged

offence as Keswick Barrack and not merely a suburb of

Adelaide and also, in each case, allege that the defendant was performing the duties of unit pay

representative for 4 Field Survey Squadran.

MR HACKETT-JONES:  Yes, well we say, I mean that is c:bviously

an attempt by the army to beat-up, as it were, the

service connection element, Lut - - -

HIS HONOUR:  Well that may well be so, but the question is

whether it is likely to be successfull or not.

MR HACKETT-JONES: Well, we would say not, no, not on the judgments as they stand at the moment, because

whether those things exist or not, we are not

denying that Sergeant Young was an officer of the

Army; we are not denying that he committed these

offences while he was acting in the performance of

military functions, but what we are saying is that

his offence is the offence of defrauding an employer,

if he committed it, and that is no more_serious than

an offence by any other officer of the Com.uonwealth

in defrauding the Commonwealth. It is certainly no
less serious, but no more serious than the offence

of any other employee who defrauds his employer

in a similar way.

(Continued on page 9)

C3T6/1/CM	8	MR HACKETT-JONES, QC 7/6/90
Young

MR HACKETT-JONES (continuing):  So, what we are saying

is that there is nothing to distinguish this

offence as a peculiarly disciplinary matter

as far as the army is concerned. It has no outstanding

feature that makes it peculiarly a matter of ~

service discipline, and we would say further, indeed

that in so far as disciplinary considerations

may be concerned, those disciplinary objectives can

be equally achieved by prosecuting him before a

civilian court.

HIS HONOUR:  Do you contemplate that if an order nisi were

granted from the prosecutor's point of view the

matter would be argued by reference to the charge

sheets alone? I note that the draft order nisi

contemplates the filing of affidavits, or the

possibility of the filing of affidavits, but from

a prosecutor's point of view, would you propose,
subject to anything that might arise from the

respondent, to argue the matter by reference only

to the charge sheets?

HR HACKETT-JONES: Well, I would think there would be very

little else. I mean, I suppose there are certain

facts, like the fact that we are not in a state of

emergency; there is not a state of war at the
moment; the suburb, the Keswick Barracks, are close
to centres of civilisation, things like that,
centres of major population and close to civilia~
courts: those are material factors that we would
want the Court to take into account, but they arc in tt1e
nature of elementary facts that the Court rni0ht well

be prepared to take judicial notice of.

HIS HONOUR:  Could I take you to another aspect of the

matter, and that is the order nisi itself? The grounds seem to me not to reflect the arguments

that might arise in relation to TRACEY. For

instance, the first ground is that the offences

with which the prosecutor has been charg are all

offences for which a civilian equivalent exists:

is that a meaningful proposition in the light of (Continued on page 10)

TRACEY?

C3T7/l/FK	9
Young
MR HACKETT-JONES:	Well, I think it is, sir. Certainly

that distinction was of enormous importance to

Justice Deane. It was, I would have thought, of gredt

significance to Your Honour 's judgment . You were saying

that section - as I understood the proposition, you

were saying that section 24(1) is very much a

disciplinary matter, failure to attend at duty -

HIS HONOUR:  I understand that. That is really caught up in

your second ground, that there is no rea;~n

pertinent to the maintenance of military discipline

why the charges should not be laid, heard and

determined under the civilian law. That might be

thought to pick up some aspects of Justice Brennan

and my judgment, although I am not entirely sure that

it does.

MR HACKETT-JONES:  Certainly this question of the overlap

between service offences and civilian offences was

a question, I would respectfully submit, of importance

in all the judgments.

HIS HONOUR:  Undoubtedly. Perhaps it is the way in which the

grounds are formulated that seem to me

that they may not pick up that thread in the judgments

adequately. For instance, Justice Brennan and I

say at page 32, about line 14:

Therefore proceedings may be brought
against a defence member or a defence
civilian for a service offence if, but
only if, those proceedings can

reasonably be regarded as substantially

serving the purpose of maintaining or

enforcing service discipline.

It may be that that is sufficiently caught up in your

ground 2.

MR HACKETT-JONES:  Yes. Well, I suppose what I would say is

that where you have got an offence like section 24(1)

well then, self-evidently it subserves the purpose

of maintaining defence discipline because it deals
with a matter that really goes to the heart of

defence service, but when you are dealing with a

matter like defrauding an employer, then that really

does not go to the heart of defence service at all,

and it is a matter on which you have clear civilian

analogue. So, therefore, according to the principles

expressed in your own judgment and the judgment of

Justice Brennan, ought to be dealt with by the civilian

court unless there is some clearly identifiable

reason why it should not.

Now, perhaps the Commonwealth, if they are

joined to this application, will be able to point to

a reason why it should, but what we would say is that

C3T8/	1 /HS	10	7/6/90
Young

there is certainly no reason that is apparent to

us at the moment, and as far as we can see there

is no reason that could be advanced.

HIS HONOUR:  You have an alternative proposition rather than

ground, perhaps, namely that if jurisdiction exists then the magistrate should decline to

exercise that jurisdiction on the ground that there

exists a more appropriate forum than from the

authorities that accompanied the papers.

It seems that it might be intended to argue SPILIADA and OCEANIC SUN LINE and so on.

MR HACKETT-JONES:  Yes, yes, that is so, sir, yes.

(Continued on page 12)

C3T8/2/FK	11
Young
HIS HONOUR:	Are those authorities really appropriate 1n

this case?

MR HACKETT-JONES:  Well, we would say, especially if you look

at McWATERS V DAY, what the Court is saying there is

that there are parallel systems of justice; the

military system and the civilian system, and what
we say is that the creation of parallel systems of

justice dealing with substantially the same offences

necessarily raises the questions of which is the

more appropriate forum and it is really on that

basis that we would seek to invoke principle which,

of course, we concede have been worked out in the

field of private rights to this particular

situation. I mean, we agree that there would be

some extension of those principles because, as

far as I know, they have never been applied to

determination of criminal matters but simply from

the nature of the case, the parallel systems

inevitably give rise to that problem.

HIS HONOUR:  Was the magistrate invited to decline to exercise

jurisdiction if he found that jurisdiction existed?

MR HACKETT-JONES:  Well, I believe he was, Your Hon, .Jr. I

think he took the view, and my learned junior will

correct me on this, but I think he took the view

that having found that he had jurisdiction he was

then obliged to exercise it and perhaps my

learned junior can refer me to the - - -

HIS HONOUR:  Well, I do recall reading something in the

judgment that might suggest that but I did not

think it was put quite in terms of a more

appropriate jurisdiction.

MR HACKETT-JONES:  Yes. My recollection is that he took the

view that if the jurisdiction existed, he had to

exercise it and that was all there was to it.

HIS HONOUR:  But is there anything in TRACEY that suggests

that factors which point to the existence or

non-existence of jurisdiction, the sort of

considerations that are developed in the

judgment of Justice Brennan and myself, are

considerations that if jurisdiction is found to

exist can also bear upon the discretion to exercise

or not to exercise that jurisdiction?

(Continued on page 13)

C3T9/l/SH	12	7/6/90
Young

MR HACKETT-JONES:  We would say that the question was not

specifically considered. I mean, obviously it

was not specificially considered but it might be

the case that if parallel systems do exist that a

forum non conveniens argument could be the most

practical solution in a sense that obviously

there would be cases where a particular defendant

might prefer to have the matter dealt with by a

defence force magistrate. There are obviously

some advantages to that particular course. For

example, the Defence Force Magistrate's powers

of punishment are limited to six months whereas,
of course, if Sergeant Young is charged under the

civilian law he could face, if the prosecutions

were successful, much more substantial penalties.

So, I suppose what I would say is that

perhaps the principles of forum non conveniens

are the appropriate principles to apply; that if, in fact, the defendant takes no objection to the Defence Force Magistrate hearing and

determining the charges then so be it. Let him

do so, but on the other hand if objection is

taken then obviously, I would say, all the

judgments in TRACEY point to the conclusion

that the civilian jurisdiction has pre-ordered

it, that it is to be preferred to military

jurisdiction because of the independence of the
judicial officer who exercises it and

in those circumstances, unless there is some

cogent reason why the military tribunal should

exercise the jurisdiction then really the military

tribunal ought to defer to the jurisdiction

of the civilian court and adjourn the matter

to allow charges to be laid and heard before the

civilian court.

HIS HONOUR:  Mr Hackett-Jones, I propose to give you the

order nisi.	I have some misgivings in the sense
that it is undesirable, I think, when there is

a structure of appeals and references, as there is
in the DEFENCE FORCE DISCIPLINE APPEALS ACT, for the

matter to come direct from the ruling of the

Defence Force Magistrate to this Court, but I accept

that there are questions arising out of TRACEY that

are best answered by this Court and for that reason

I propose to grant the order nisi.

(Continued on page 14)

C3Tl0/l/LW	13	7/6/90
Young

MR HACKETT-JONES:	Yes, thank you, Your Honour.
HIS HONOUR:	Whether the alternative ground arises from TRACEY

is a very debatable proposition but that too is a

matter best answered immediately by this Court.

MR HACKETT-JONES:	Yes, sir.
HIS HONOUR:	Mr Hackett-Jones, I am just considering what I

should do by way of date and place in the draft

order nisi but I clearly do not want to do anything

that would pre-empt decision by the Chief Justice

as to when and where this matter should be heard.

Did you have in contemplation that it might be

heard at the Adelaide sittings of this Court?

MR HACKETT-JONES:  Of course, if that were convenient to the

Court that would be -

HIS HONOUR:  Yes, well, I am in no position to express a

view on that so, therefore, I think I have to leave

the date and place open-ended.

MR HACKETT-JONES:	Yes, sir.
HIS HONOUR:	What I will do is excise the words from "at

the sitting commencing" to "may be heard" and

simply substitute "at a time and place to be

fixed" unless you have any other form of language

that you think is more appropriate.

MR HACKETT-JONES:  No, that sounds very satisfactory to

me, sir.

(Continued on page 15)

C3Tll/l/DR	14
Young

HIS HONOUR:  Are there any other changes you wish to make to the

draft order nisi, Mr Hackett-Jones?

MR HACKETT-JONES:  My learned junior has just referred me to the

fact that there was another affidavit sworn by

Sergeant Young on the 18th day of May 1990.

HIS HONOUR:  So the earlier part of the draft will read - Upon

reading the affidavits of the said Hugh Young,

sworn the 10th and 18th days of May?

MR HACKETT-JONES:	Yes, that is right, sir.
HIS HONOUR:	Nothing else?
MR HACKETT-JONES:	No, thank you, sir, I think apart from that

it seems all right to me.

HIS HONOUR:  Very well. There will be an order in terms of

the draft order as amended and signed by me.	The
Court will now adjourn.

AT 9.53 AM THE MATTER WAS ADJOURNED SINE DIE

C3Tl2/l/PF	15	7/6/90
Young