Stuart v Sanderson

Case [2000] FCA 870

FEDERAL COURT OF AUSTRALIA

Stuart v Sanderson [2000] FCA 870

DEFENCE AND WAR – Defence Forces – service offences – summary authority – accused not represented by person of choice before summary authority – person of choice was reasonably available – reasonable availability to be determined practically and in circumstances of hearing – reasonable availability not necessarily limited to persons within an accused’s unit – material irregularity – substantial miscarriage of justice – petition for review dismissed – application for judicial review pursuant to Court’s original jurisdiction under s 39B Judiciary Act1903

ESTOPPEL – earlier proceedings in which applicant could have brought current claim – Anshun estoppel not remedied merely by appropriate order for costs – Anshun estoppel operates generally – discretionary nature of Anshun estoppel resides in the special circumstances exception – serious nature of criminal convictions and infraction of a generally applicable procedural right as special circumstances – application of Anshun estoppel to administrative decisions

WORDS AND PHRASES – “reasonably available”

Defence Force Discipline Act 1982 (Cth), ss 153, 158(1)(c)
Defence Force Discipline Rules (Cth), R 24

Avon Downs v Federal Commissioner of Taxation (1949) 78 CLR 353, applied
Bryant v Commonwealth Bank (1995) 57 FCR 287, applied
Chamberlain v Deputy Commissioner of Taxation (1988) 164 CLR 502, cited
Connolly v DPP [1964] AC 1254, applied
Hembury v Chief of the General Staff (1998) 193 CLR 641, applied
Henderson v Henderson (1843) 3 Hare 100, applied
Hunter v Chief , applied
Ling v Commonwealth (1996) 68 FCR 180, applied
Mills v Cooper [1967] 2 QB 459, considered
Minister for Immigration v Karas (1992) 42 FCR 349, cited
Port of Melbourne v Anshun [1980] VR 321, not followed
Port of Melbourne v Anshun (1981) 147 CLR 589, applied
Port of Melbourne v Anshun (No 2) [1981] VR 81, applied
Project Blue Sky v Australian Broadcasting Authority (1998) 194 CLR 355, applied
Rogers v The Queen (1994) 181 CLR 251, applied
Sawyer v Department of Primary Industry (1992) 38 FCR 375, cited
Sidhu v Holmes [2000] FCA 776, applied
TrawlIndustries v Effem Foods (1992) 36 FCR 406, applied

Handley J, “Anshun Today” (1997) 71 ALJ 934

Ormiston J, “Abuse of Process, Anshun and the Criminal Law – A Commentary” (1997) 71 ALJ 942

DIANA BETTINA STUART v LIEUTENANT GENERAL SANDERSON & ANOR
N 464 of 1999

MADGWICK J
28 JUNE 2000
SYDNEY


IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY

N 464 of 1999

BETWEEN:

DIANA BETTINA STUART
APPLICANT

AND:

LIEUTENANT GENERAL SANDERSON
(acting as Chief of General Staff)
FIRST RESPONDENT

AND:

CHIEF OF THE ARMY
SECOND RESPONDENT

JUDGE:

MADGWICK J

DATE OF ORDER:

28 JUNE 2000

WHERE MADE:

SYDNEY

THE COURT ORDERS THAT:

1.The parties are to bring in, by way of facsimile to my Associate, short minutes of proposed orders (accompanied, in case of dispute, by short submissions) designed to give effect to the conclusions reached in these reasons,…

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AGLC
Stuart v Sanderson [2000] FCA 870
Case
[2000] FCA 870
Decision Date

CaseChat Overview and Summary

The case of Stuart v Sanderson involves Ms Diana Stuart, a private with the Australian Regular Army, challenging a decision by Lieutenant General Sanderson to uphold service convictions against her. Ms Stuart seeks a writ of certiorari to quash the decision, a writ of mandamus to quash the convictions, a declaration of a material irregularity leading to a miscarriage of justice, and an injunction against the Chief of the Army taking any action based on the convictions. The dispute revolves around Ms Stuart’s alleged theft of ammunition and subsequent service convictions and punishments under the Defence Force Discipline Act 1982. Ms Stuart contends that she was denied access to independent legal advice of her choice, which she argues led to a substantial miscarriage of justice.

The legal issues before the court were whether the Anshun principle, which prevents relitigation of matters that could have been raised in an earlier proceeding, should apply to the judicial review of administrative decisions and whether the application of this principle is discretionary. Ms Stuart argued that the Anshun principle should not apply to administrative law cases and that its application should be discretionary, with the court exercising that discretion in her favour. The court considered the nature of the Anshun principle, its application in administrative law, and whether there were special circumstances that could excuse Ms Stuart’s failure to raise her arguments earlier.

The court found that the Anshun principle could apply to administrative law cases and that its application was not purely discretionary but rather depended on whether special circumstances existed. The court held that there were no special circumstances in this case to excuse Ms Stuart’s failure to raise her arguments earlier. Notably, the court highlighted that the Anshun principle should not prevent an accused person from asserting their innocence in criminal proceedings, which in this case involved serious consequences including deprivation of liberty and discharge from the Army. The court concluded that the Anshun principle should not apply in a manner that prevents Ms Stuart from raising her defence.

The court ordered the parties to submit proposed orders within seven days to give effect to the conclusions reached in the reasons.

Orders

Orders of the court

1. The parties are to bring in, by way of facsimile to my Associate, short minutes of proposed orders (accompanied, in case of dispute, by short submissions) designed to give effect to the conclusions reached in these reasons, within seven days.

Background

Background to the litigation

Ms Diana Stuart, the applicant, is a private with the Australian Regular Army. Pursuant to s 39B of the Judiciary Act 1903 (Cth), she seeks a writ of certiorari quashing the decision of the first respondent, Lieutenant General Sanderson, dated 28 November 1996 and made on behalf of the second respondent, the Chief of the Army, to uphold service convictions and punishments against her. Further, she seeks a writ of mandamus, directed to Lt. Gen. Sanderson, “to quash the service convictions”, a declaration that there was a material irregularity in the course of obtaining the convictions which led to a substantial miscarriage of justice, and an injunction restraining the Chief of the Army from taking any action to discharge her on the basis of the convictions.Factual background The applicant enlisted in the Army on 3 October 1990. In July 1995 she was charged with 14 offences under the Defence Force Discipline Act 1982 (Cth) (“the Act”) relating to the alleged theft of ammunition from the Australian Army Rifle Association. A hearing was arranged before Lieutenant Colonel Jones, the applicant’s commanding officer, acting in the capacity of a “summary authority”, to be held on 30 and 31 August 1995 in Bandiara Bonegilla (a training facility based about five kilometers from Wodonga). Warrant Officer Cranfield acted as prosecuting officer. As is common place in such hearings, neither Lt. Col. Jones nor W.O. Cranfield was legally qualified. The applicant requested that she be represented before the summary authority by Captain Adamson, the Army Reserve Legal Officer local to her area; however, as he knew one of the witnesses involved in the hearing he declined to represent her. The applicant then requested the assistance of Lieutenant Colonel Beckwith, another legal officer, who was based in Melbourne and had been recommended to her. Despite the fact that he was available at the time, the hearing proceeded without his assistance. Major Karsai, the Area Legal Officer, who was responsible for making referrals for legal assistance, considered that the applicant’s charges were not sufficiently serious to warrant the provision of legal counsel, particularly given that Lt. Col. Beckwith would need to travel from Melbourne to Wodonga to attend the hearing. Instead Maj. Karsai appointed Captain Buckley as a defending officer for the applicant. He was an officer in the same chain of command as Lt. Col. Jones and was not legally qualified. On 30 August 1995 the summary authority convicted the applicant of two counts of disobeying lawful command and awarded a punishment of reprimand for both convictions. On 31 August 1995 the applicant was convicted of stealing property, failure to comply with a general lawful order, and prejudicial behaviour and was awarded punishment of restriction of privileges for 14 days, detention for three days and detention for seven days, to be served concurrently. On 19 January 1996, pursuant to s 153 of the Act, the applicant lodged a petition for review of the convictions and punishment. Lt. Gen. Sanderson, acting as the “reviewing authority”, conducted the review on the papers. The applicant’s petition stated, amongst other things, that:“Without an adequate defence/defending officer, it is submitted that I had little chance of justice being done at the trial. I also submit that as a private soldier, I know little of the law, and was advised to rely on the defending officer and the defence assistance, which I did to my ultimate detriment. I respectfully submit that in all the circumstances, it is clear that I should have been permitted access to independent legal advice of my choice. Such access was denied by the Area Legal Officer, and my superiors did not assist me in my endeavours to obtain same.”

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

MADGWICK J
The applicant raised two objections to the application of the Anshun principle in this case. First, it was argued that the rule did not apply to judicial review of administrative decisions. Second, it was argued that the application of the principle was discretionary, and that the Court should exercise that discretion in favour of the applicant.Anshun and judicial review of administrative decisions It was submitted by the applicant that the principle of Anshun estoppel ought not be applied to administrative law cases. In support of this submission it was noted that the principle was first adopted, in the Anshun case, in the context of litigation as to a commercial transaction and that there have been few instances of its application in the field of administrative law (though the principle has been applied in at least some administrative law cases, for example, Minister for Immigration v Karas (1992) 42 FCR 406 and Sawyer v Department of Primary Industry (1992) 38 FCR 375). The applicant also emphasised the fact that the present proceedings arise from the applicant’s conviction pursuant to the Defence Force Discipline Act whereas the decision to discharge the applicant was made under a different enactment, the Defence Act. It would be a wrongful application of Anshun estoppel, it was submitted, if the principle were to have the effect of preventing legal redress for unlawful action taken under a statutory provision or even delegated legislation. The applicant thus sought to extend to the doctrine of Anshun estoppel, by analogy, the well-established principle that estoppel by representation does not apply to administrative decisions. Formosa v Department of Social Security (1988) 46 FCR 117 at 135, and Minister for Immigration, Local Government and Ethnic Affairs v Kurtovic (1990) 21 FCR 193 were relied upon. However, as appears from the discussion below, the basis of the Anshun principle is quite different from the foundation of estoppel by representation, which lies in equitable principles. One obvious difference, for example, is that estoppel by representation seeks to provide justice between the parties, whereas the justification for Anshun estoppel, as discussed above at para 20, is broader. No principle or authority was cited to indicate that the capacity of a court to prevent an abuse of its processes and to safeguard the orderly administration of justice ought to be blunted merely because the supposed right which is sought to be vindicated before that court is derived from statute rather than the common law.Nature of discretion as to application of the Anshun principle In seeking to establish that Anshun estoppel ought to be regarded as discretionary, the applicant submitted that the principle found its derivation, not in the doctrine of res judicata, which operates as a rule of law (see Chamberlain v Deputy Commissioner of Taxation (1988) 164 CLR 502), but in the Court’s inherent discretionary jurisdiction to prevent an abuse of its processes. In support of that position, Lord Devlin in Connolly v DPP [1964] AC 1254 said, at 1359, that:“Res judicata imposes a rigid bar and Wigram VC’s principle a flexible one. I prefer the modern development of this principle which justifies it by the power to stop vexatious process.”

Ratio Decidendi

Legal Principle Established

Established by: MADGWICK J

Thus, where a party has behaved unreasonably in not raising a matter in the earlier proceedings, that party will in general not be permitted to later litigate it, unless there are special circumstances. Applying that approach, it seems to me that the matter now relied upon was so relevant to the subject matter of the proceedings before Beaumont J that it was unreasonable not to rely on it then. The question then becomes whether there are special circumstances that could avoid the prima facie operation of the rule.Whether special circumstances exist to deny the operation of the Anshun principle There appear logically to be two broad considerations that might be relevant to the determination of whether special circumstances exist. First, circumstances may in some way account for the unreasonable conduct involved in not having pressed the matter in the earlier proceeding, so as to excuse it. No such consideration seems to be present in this case. Second, circumstances may mean that application of the Anshun rule would work such a degree of hardship or of injustice on a party as to justify the displacement of the prima facie rule. One such circumstance suggested by the applicant was that, although the present proceedings are of an administrative nature, they seek in substance to establish a miscarriage of justice with respect to criminal convictions. Such convictions obviously entail serious consequences (including, in this case, deprivation of liberty and discharge from the Army). More importantly however, it appears that the doctrine of Anshun estoppel does not apply adversely to an accused person in a criminal cases. In criminal proceedings, notions of “double jeopardy” including the doctrines of autrefois convict and autrefois acquit operate. Significantly, such doctrines only operate in favour of the accused. As Diplock LJ said of issue estoppel in Mills v Cooper [1967] 2 QB 459 at 467: “[it] is a particular application of the general rule of public policy that there should be finality in litigation. That general rule applies also to criminal proceedings but in a form modified by the distinctive character of criminal as compared with civil litigation. Here it takes the form of the rule against double jeopardy”. But issue estoppel is not a part of Australian criminal law: Rogers v The Queen (1994) 181 CLR 251. There is, in my opinion, less justification for importing an Anshun barrier against a defence which an accused person might wish to raise than there is for permitting issue estoppel to operate. Therefore, in my view, the extended doctrine of abuse of process, expounded in Anshun, ought not apply to criminal proceedings in a manner which prevents an accused person from asserting his or her innocence, nor am I aware of any authority that suggests otherwise. The analogical force of this should, in my view, be given weight in the present case: here, the applicant seeks belatedly to raise a question which could have been raised in the criminal proceedings or in earlier civil proceedings concerning that criminal process. The Court should be slower to shut her out than if merely civil rights or remedies were at issue throughout.