Stuart, Diana Bettina v Chief of the Army

[1998] FCA 1589

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NG 1159 of 1998

BETWEEN:	DIANA BETTINA STUART APPLICANT
AND:	CHIEF OF THE ARMY RESPONDENT

JUDGE:	BURCHETT J
DATE:	19 NOVEMBER 1998
PLACE:	SYDNEY

EX TEMPORE REASONS FOR JUDGMENT

This application is for interlocutory relief for a relatively brief period, because if there are problems they are going to be able to be addressed within one month at a directions hearing.  Also, either party can apply for expedition in the principal proceeding.  I do think the case is distinguishable from the Shand case (Shand v Chief of the Army, Burchett J, unreported, 26 March 1998) so far as the balance of convenience is concerned, there being no suggestion of serious conduct on a continuing basis, other than the particular incident which led to the convictions, which would cause an embarrassment to the army in having the applicant continue in it for the present.  Indeed, the whole procedure has gone on over a significant period in a fashion which, if not leisurely, is at any rate not unduly hasty.  Therefore, I do not think there is anything, all things considered, to support the proposition that the balance of convenience weighs against the applicant.  On the contrary, I think it weighs in the applicant's favour.

So far as concerns the question, which is really the primary question, of a genuinely triable issue, it seems to me that there are a number of genuinely triable issues here. I have formed no final view on any of them, but at the least it is arguable that there was a failure to take into account, when such heavy reliance was placed upon the fact of conviction, a number of circumstances attending that conviction, including, without attempting to state them exhaustively, that the officer who concluded there should be a conviction plainly did not regard the matter as of a high order of seriousness, or at any rate did not act in the way he should have acted if he did so regard it; that the conviction was obtained in circumstances far removed from the certainty attending a conviction at a trial in the ordinary courts of the land; that the ability of the applicant to appeal against it was of a somewhat limited character; and that the way in which the matter has been dealt with, while not in direct conflict, in terms, with s 71 of the Defence Force Discipline Act 1982, does arguably conflict quite severely with the policy which Parliament seems to have adopted in enacting that section.

None of these considerations seems to me to be conclusive, but each of them arguably was required to be taken into account, and arguably was not.  For these reasons I am prepared to grant a measure of interlocutory relief.

I order that, pending further order, the respondent be restrained from discharging or causing or permitting the discharge of or taking any further steps with a view to discharging the applicant from the Australian Army, on the basis of the decisions that are challenged.  By way of clarification, the applicant may not be removed to a discharge cell, because steps may not be taken with a view to her discharge.  I reserve the costs to the judge who hears the matter finally.

I certify that this and the preceding one (1) page are a true copy of the Reasons for Judgment herein of the Honourable Justice Burchett

Associate:

Dated:  19 November 1998

Counsel for the Applicant:	Mr B Levet
Counsel for the Respondent:	Ms R M Henderson
Solicitor for the Respondent:	Australian Government Solicitor
Date of Hearing:	19 November 1998
Date of Judgment:	19 November 1998