Stanbridge, Dennis v Minister for Defence Senator Robert Francis Ray
[1996] FCA 98
•26 Feb 1996
CATCHWORDS
PRACTICE AND PROCEDURE - Security for costs of appeal - security not provided - appeal dismissed - no question of principle.
Federal Court of Australia Act 1974 s 56
Dennis Stanbridge v. Minister for Defence Senator Robert Francis Ray and the Board of Directors of BHP for 1995
No. QG80 of 1995
Cooper J, Brisbane, 26 February 1996
IN THE FEDERAL COURT OF AUSTRALIA
QUEENSLAND DISTRICT REGISTRY
GENERAL DIVISION
No. QG80 of 1995
BETWEEN:
DENNIS STANBRIDGE
Applicant
AND:
MINISTER FOR DEFENCE SENATOR
ROBERT FRANCIS RAY and the BOARD
OF DIRECTORS OF BHP FOR 1995
Respondents
JUDGE MAKING ORDER: Cooper J
WHERE MADE: Brisbane
DATE OF ORDER: 26 February 1996
MINUTES OF ORDER
THE COURT ORDERS THAT:
In default of Dennis Stanbridge within fourteen days of the date of this order providing the security for costs ordered by Spender J on 20 July 1995 his appeal against the orders of Drummond J made on 18 May 1995 be dismissed with costs to be taxed if not agreed.
The notices of motion of Dennis Stanbridge filed 21 September 1995 and 13 October 1995 be dismissed.
Dennis Stanbridge pay the costs of the Minister for Defence and the Board of Directors of BHP for 1995 of and incidental to the notices of motion filed 21 September 1995, 5 October 1995, 12 October 1995 and 13 October 1995 including reserved costs, if any, to be taxed if not agreed.
Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
IN THE FEDERAL COURT OF AUSTRALIA
QUEENSLAND DISTRICT REGISTRY
GENERAL DIVISION
No. QG80 of 1995
BETWEEN:
DENNIS STANBRIDGE
Applicant
AND:
MINISTER FOR DEFENCE SENATOR
ROBERT FRANCIS RAY and the BOARD
OF DIRECTORS OF BHP FOR 1995
Respondents
JUDGE MAKING ORDER: Cooper J
WHERE MADE: Brisbane
DATE OF ORDER: 26 February 1996
REASONS FOR JUDGMENT
The applicant Dennis Stanbridge instituted proceedings in this court against the Minister for Defence under s 5(1) of the Administrative Decisions (Judicial Review) Act 1977 ("ADJR Act") to review a decision of the Minister to have military weapons melted down by BHP. The Board of Directors of BHP was also named as a respondent to the applications.
On 18 May 1995 Drummond J dismissed the application with costs on the ground that Mr Stanbridge was not an aggrieved person within the meaning of the ADJR Act. On 8 June 1995 Mr Stanbridge filed a notice of appeal from the orders of Drummond J to a Full Court of this court. On 20 July 1995 Spender J ordered that Mr Stanbridge provide security for the costs of the appeal in respect of the Minister in the sum of $3,000 and security for the costs of the appeal in respect of the Board of
Directors of BHP in the sum of $1,500 and stayed the appeal pending provision of the security.
On 18 September 1995 Mr Stanbridge was served with a letter dated 8 September 1995 from the Australian Government Solicitor advising that unless the security was provided within fourteen days, the Minister would apply under s 56 of the Federal Court of Australia Act 1974 for an order that if the security was not provided within a specified time the appeal would stand dismissed.
Mr Stanbridge, in the expectation that such an application would be filed, himself filed a notice of motion to be heard at the same time as any application of the Minister was heard. The relief claimed in his notice of motion was :-
"1. that any Notice of Motion filed on behalf of the Minister for Defence seeking such an order as described above concerning security of costs, shall be dismissed as invalid in law, vexatious and frivolous and an abuse of process.
2. that Richard Melville, Australian Government Solicitor be referred to the Federal Police for investigation for the following breaches of the Crimes Act 1914;
S.5- AIDERS AND ABETTORS
S.6- ACCESSORY AFTER THE FACT
S.7A- INCITING TO OR URGING THE
COMMISSION OF OFFENCES
S.24(c)(d)- TREASON
s.24AA(1)(a)(i)(ii) - TREACHERY
S.24AB(1)(a)(c) - SABOTAGE
S.29A(1)- FALSE PRETENSES [sic]
S.29D- FRAUD
S.30c(a)(b)(c) - ADVOCATING OR INCITING TO CRIME
S.32(a)- JUDICIAL CORRUPTION
S.42- CONSPIRACY TO DEFEAT JUSTICE
S.44- COMPOUNDING OFFENCES
S.86(1)(a)(b)(c) - CONSPIRACY
S.86a- CONSPIRACY TO DEFRAUD
3. that Richard Melville be suspended from his position as an Australian Government Solicitor without pay until the investigation and the trial be completed and he either be cleared or convicted.
4.that Richard Melville be allowed bail of $100,000.
5. that similar orders be made against Senator Ray, the Minister for Defence for the following breaches of the Crimes Act 1914; ss.7A, 24(c)(d), 24AA(1)(a)(i)(ii), 24AB(1)(a)(c), 29A(1), 29D, 30C(a)(b)(c), 86(1)(a)(b)(c), 86A.
6.that bail be set at $300,000 for Senator Ray.
7. that similar orders be made against SPENDER J for the same breaches of the Crimes Act 1914 as listed for Richard Melville.
8.that bail be set at $300,000 for SPENDER J.
9. that similar orders be made against each and every Director for the Board of Directors of BHP for 1994/5 for ss.5, 6, 24(c)(d), 24AA(1)(a)(i)(ii), 24AB(1)(a)(c), 29D, 44, 86(1)(a)(b)(c), 86A.
10.that bail be set at $200,000 for each and every Director."
On 5 October 1995 the Board of Directors of BHP for 1995 filed a notice of motion seeking the dismissal of the notice of motion pursuant to O 20 r 2 of the Federal Court Rules and for an order that in default of payment of the security ordered by Spender J within fourteen days, the appeal so far as it related to the Directors of BHP be dismissed. The Minister, on 12 October 1995, filed a notice of motion seeking similar relief so far as the proceedings related to the Minister.
Mr Stanbridge filed an amended notice of motion on 13 October 1995 which sought the following relief :-
"1. The Notice of Motion filed on 5 October 1995 by the respondent Board of Directors of BHP for 1995 be wholly dismissed pursuant to order 20 rule 2 of the Federal Court Rules upon the ground that
(a)no reasonable cause of action is disclosed
(b)the proceeding is frivolous and vexatious
(c)the proceeding is an abuse of the process of the Court in the application and administration of the laws of Australia and proscribed in the Constitution of Australia
(d)it is an attempt to pervert the course of justice under s.434, is perhaps a conspiracy to defeat justice under s.42 and is compounding offences under s.44 of the Crimes Act 1914.
2. That DRUMMOND, J be reported to the Federal Police for the same reasons as Spender, J and under all the other conditions as well, as listed in my Notice of Motion filed on the 5 September 1995.
3. That all the people mentioned in that same Notice of Motion be also reported to the Director of Public Prosecutions for the Commonwealth."
The order of Spender J requiring Mr Stanbridge to provide security for his appeal has not been appealed nor set aside or rescinded by his Honour. Mr Stanbridge has not provided the security ordered.
On the applications to have fixed a specified period for the provision of security and in default to have the appeal dismissed, Mr Stanbridge repeated the arguments he had placed before Spender J. He did not indicate that he intended to provide the security or indeed that he could pay the same or that there had occurred any material change in his circumstances which rendered it necessary to reconsider the need for or amount of such security. In those circumstances the Minister and the Board of Directors of BHP are entitled to have the issue of the future prosecution of the appeal finalised. To this end, it is appropriate that the security ordered be provided within fourteen days and in default that the appeal be dismissed. Accordingly, the notices of
motion of the Minister and the Board of Directors of BHP seeking such relief are not invalid, vexatious, frivolous or an abuse of process and Mr Stanbridge is not entitled to the relief claimed in paragraph 1 of the notice of motion filed 21 September 1995 and paragraph 1 of the amended notice of motion filed 13 October 1995.
Although Mr Stanbridge addressed the court on the correctness of the decision of Drummond J as to Mr Stanbridge's standing to seek review of the Minister's decision to melt down the equipment and the merits of the decision itself, those matters do not in themselves found jurisdiction and power in this court to make the orders sought in paragraphs 2 - 10 inclusive of the notice of motion filed 21 September 1995 and paragraphs 2 and 3 of the amended notice of motion filed 13 October 1995. The provisions of Cap 29 of the Magna Carta, covering clause 5 of Act 63 & 64 Victoria c.12, sections 80 and 119 of the Constitution, and, the provisions of the Crimes Act 1914 (Cth) referred to by Mr Stanbridge do not together or singularly empower this court to make the orders sought. Mr Stanbridge was not able to direct the court to any other statute which gave the court the jurisdiction or power to make the orders. In those circumstances Mr Stanbridge's notices of motion must fail whether it be on the basis of disclosing no reasonable cause of action or on the merits as claiming relief not available in the Federal Court of Australia.
Mr Stanbridge, as appears from the reasons of Spender J, is aware that he is at risk of an adverse order for costs if he fails on applications which he prosecutes in the court. Having failed on these applications the ordinary rule that costs should follow the event should apply.
THE COURT ORDERS THAT:
In default of Dennis Stanbridge within fourteen days of the date of this order providing the security for costs ordered by Spender J on 20 July 1995 his appeal against the orders of Drummond J made on 18 May 1995 be dismissed with costs to be taxed if not agreed.
The notices of motion of Dennis Stanbridge filed 21 September 1995 and 13 October 1995 be dismissed.
Dennis Stanbridge pay the costs of the Minister for Defence and the Board of Directors of BHP for 1995 of and incidental to the notices of motion filed 21 September 1995, 5 October 1995, 12 October 1995 and 13 October 1995 including reserved costs, if any, to be taxed if not agreed.
I certify that this and the preceding five (5) pages are a true copy of the reasons for judgment herein of his Honour Justice Cooper.
Date:26 February 1996
Associate
Applicant in Person: Mr D Stanbridge
Counsel for the First Respondent: Mr DJ McGill
Solicitors for the First Respondent: Australian Government Solicitor
Solicitors for the Second Respondent: Corrs Chambers Westgarth
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