Re Nolan; Ex parte Young

This matter concerned an application for a writ of prohibition brought by Sergeant Young, the prosecutor, against Lieutenant Colonel J.A. Nolan, a Defence Force Magistrate. The application sought to prohibit the Defence Force Magistrate from proceeding with a hearing.

The central legal issues before the High Court were whether the judgment of Major Ryan was sufficiently arguable to warrant the grant of an order nisi, and, more significantly, why the Court should intervene at an early stage to prevent the Defence Force Magistrate's hearing from proceeding, rather than allowing jurisdictional and other questions to be dealt with in the ordinary course of proceedings. Sergeant Young argued that allowing the hearing to proceed would prejudice his right to a civilian trial, a right he retained as a citizen despite his military status, as recognised in the principle from *Tracey* and *Burdett v Abbot*.

The Court considered the practical difficulties of allowing every challenge to jurisdiction under the *Defence Force Discipline Appeals Act* to proceed directly to the High Court. However, Sergeant Young contended that in this specific case, the lack of jurisdiction was sufficiently clear based on principles enunciated by the Court in *Tracey*, entitling him to a writ of prohibition to protect him from being subjected to a jurisdiction to which he was not liable. The Court also considered whether an application could be made to the Federal Court under section 39B of the *Judiciary Act*.