Ferdinands v Chief of Army [2009] FCA 22 (20 January 2009)

Last Updated: 20 January 2009

FEDERAL COURT OF AUSTRALIA

Ferdinands v Chief of Army [2009] FCA 22

PRACTICE AND PROCEDURE – application for leave to appeal from decision of Federal Court judge – whether leave required – whether decision to refuse application for extension of time to apply to show cause was interlocutory or final

Held: leave to appeal required – decision to refuse application was interlocutory – application did not seek to enforce a claimed legal right




Constitution s 75(v)
Defence (Personnel) Regulations 2002 (Cth) reg 87(1)(g)
Federal Court of Australia Act 1976 (Cth) ss 24(1A), 25(2)(a)
Judiciary Act 1903 (Cth) s 44
Defence Force Discipline Act 1982 (Cth) ss 5, 10
High Court Rules
Federal Court Rules



Décor Corp Pty Ltd & Anor v Dart Industries Inc [1991] FCA 655; (1991) 33 FCR 397 referred to
Paramasivam v Flynn [1998] FCA 1711; (1998) 90 FCR 489 distinguished
Re Luck [2003] HCA 70; (2003) 203 ALR 1 applied
Bienstein v Bienstein [2003] HCA 7; (2003) 195 ALR 225 applied
Hall v Nominal Defendant [1966] HCA 36; (1966) 117 CLR 423 cited
Ferdinands v Chief of Army [2003] FCAFC 10 cited
Gallo v Dawson [1990] HCA 30; (1990) 93 ALR 479 referred to




TREVOR KINGSLEY FERDINANDS v CHIEF OF ARMY and DEPARTMENT OF DEFENCE



SAD 204 of 2008



MANSFIELD J
20 JANUARY 2009
ADELAIDE

IN THE FEDERAL COURT OF AUSTRALIA
SOUTH AUSTRALIA DISTRICT REGISTRY	SAD 204 of 2008

BETWEEN:

TREVOR KINGSLEY FERDINANDS Applicant

AND:	CHIEF OF ARMY First Respondent DEPARTMENT OF DEFENCE Second Respondent

JUDGE:	MANSFIELD J
DATE OF ORDER:	20 JANUARY 2009
WHERE MADE:	ADELAIDE

THE COURT ORDERS THAT:

1. The application for leave to appeal from the decision of the Court given on 3 December 2008 is refused.

2. The applicant pay to the respondents their costs of the application.

Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
The text of entered orders can be located using eSearch on the Court’s website.

IN THE FEDERAL COURT OF AUSTRALIA
SOUTH AUSTRALIA DISTRICT REGISTRY	SAD 204 of 2008

BETWEEN:

TREVOR KINGSLEY FERDINANDS Applicant

AND:	CHIEF OF ARMY First Respondent DEPARTMENT OF DEFENCE Second Respondent

JUDGE:	MANSFIELD J
DATE:	20 JANUARY 2009
PLACE:	ADELAIDE

REASONS FOR JUDGMENT

INTRODUCTION

1 Mr Ferdinands has applied for leave to appeal from a decision of Lander J given on 3 December 2008. His Honour refused an application for an extension of time to apply pursuant to s 75(v) of the Constitution for an order to show cause why a decision of a delegate of the Chief of Army made on 3 November 2004 should not be quashed and, for consequential orders. That decision was that Mr Ferdinand’s employment as a member of the defence force should be terminated pursuant to Regulation 87(1)(g) of the Defence (Personnel) Regulations 2002 (Cth).

2 The application was first made to the High Court on 17 March 2006. The matter was remitted to this Court by order of Crennan J on 4 May 2007, with the specific order that the time limits imposed by rr 25.06.1 and 25.07.2 of the High Court Rules 2004 would continue to apply to the application upon the remittal. It was necessary for the extension of time to be granted because r 25.06.1 of the High Court Rules required the application to have been made less than six months after the making of the termination order. Clearly, the application was made considerably beyond that time.

3 In his reasons for judgment, Ferdinands v Chief of Army [2008] FCA 1865, Lander J refused to grant the extension of time sought because no proper explanation had been offered for the delay and because there was no prospect of Mr Ferdinands succeeding in obtaining an order setting aside the termination decision: at [41].

Is leave to appeal necessary?

4 Counsel for the respondents properly raised the question whether the decision of Lander J was an interlocutory decision or a final decision. If the latter, no leave to appeal from his decision was necessary. If the former, s 24(1A) of the Federal Court of Australia Act 1976 (Cth) provided that no appeal lay from that decision without leave. Leave to appeal may be given by a single judge: s 25(2)(a). Under O 52 r 10 of the Federal Court Rules leave to appeal is given in accordance with principles discussed in Décor Corp Pty Ltd & Anor v Dart Industries Inc [1991] FCA 655; (1991) 33 FCR 397, in particular having regard to two main considerations, namely, whether in all the circumstances the decision is attended with sufficient doubt to warrant its reconsideration by the Full Court, and whether substantial injustice would result if leave to appeal were refused supposing the decision to be wrong.

5 Counsel for the respondents drew attention to Paramasivam v Flynn [1998] FCA 1711; (1998) 90 FCR 489 (Paramasivam). That case involved an application for an extension of time to commence an action for damages in tort and for compensation for breach of fiduciary duty in relation to a series of sexual assaults upon that appellant against his guardian. The appeal from the dismissal of an application for an extension of time within which to have commenced those proceedings was dismissed, in essence because there was no real prospect of the claim succeeding. However, the Full Court (Miles, Lehane and Weinberg JJ) at 493 said that an order refusing an application to extend time to issue after the expiry of a limitation period may or may not be regarded as interlocutory since it may or may not finally determine the rights of the parties in respect of the subject matter of the action. The order appealed from did not simply refuse an application for an extension of time within which to issue proceedings, but it also entered summary judgment for the respondent. Consequently, the Full Court at 493 concluded that the orders were final in nature.

6 I do not consider that decision dictates that the decision of Lander J in the present matter was a final order so that no leave to appeal is necessary. That is because this proceeding, unlike the proceeding in Paramasivam, did not seek to enforce an existing alleged cause of action which had become statute barred by the elapse of time. In other words, there was no claimed legal right which Mr Ferdinands was seeking to enforce. His application was for an extension of time within which to apply for an order to show cause why the termination decision should not be set aside. It was necessary for him, even had he applied for such an order within time, to satisfy a Justice of the High Court (or if the matter were remitted to this Court, a judge of this Court) that it was appropriate for an order to show cause to be issued. Moreover, as McHugh ACJ, Gummow and Heydon JJ said in Re Luck [2003] HCA 70; (2003) 203 ALR 1 at [4]:

the usual test for determining whether an order is final or interlocutory is whether the order, as made, finally determines the rights of the parties in a principal cause pending between them. That question is answered by determining whether the legal effect of the judgment is final or not. If the legal effect of the judgment is final, it is a final order; otherwise, it is an interlocutory order. (original emphasis, citations omitted)

7 Earlier in that decision their Honours referred with approval to the remarks of McHugh, Kirby and Callinan JJ in Bienstein v Bienstein [2003] HCA 7; (2003) 195 ALR 225 at 230 in the following way at [9]:

An order is an interlocutory order, therefore, when it stays or dismisses an action or refuses leave to commence or proceed with an action because the action is frivolous, vexatious, an abuse of the process of the court or does not disclose a reasonable cause of action.

See also Hall v Nominal Defendant [1966] HCA 36; (1966) 117 CLR 423. The refusal of the application for extension of time within which to apply to show cause was interlocutory in nature as the legal effect of the judgment was not final. Further, Lander J dismissed the application on the basis that the application was, inter alia, an abuse of process and did not disclose a reasonable cause of action.

8 Accordingly, I consider that Mr Ferdinands correctly approached the matter on the basis that he required leave to appeal from the decision of Lander J.

Should leave to appeal be given?

9 Mr Ferdinands made detailed written submissions about why leave to appeal should be granted. In essence, he said it was in the interests of justice to grant leave. He briefly developed them orally. However, his submissions really amounted to no more than a way of describing the nature of his claim. They did not pay sufficient attention to the particular circumstances. I invited him to indicate where he contended Lander J had fallen into error in his consideration of that application for an extension of time to apply for the order to show cause. In my view, Mr Ferdinands was unable to indicate any such error either in the description of the history relevant to consideration of that application, or in identifying the grounds advanced by Mr Ferdinands in support of it, or in his Honour’s consideration of those grounds. I shall advert to them again shortly.

10 There are two additional matters which Mr Ferdinands raised, apparently for the first time on this application. The first is his assertion that Crennan J had no power to remit the matter to this Court for hearing and determination. He had not objected to the remittal order when it was made, nor had he raised that point before Lander J. He did not develop any argument in support of the proposition. It is plainly wrong: see s 44 of the Judiciary Act 1903 (Cth). Secondly, he argued that the delegate of the Chief of Army had no power to terminate his employment in the way that had been done because ss 5 and 10 of the Defence Force Discipline Act 1982 (Cth) were "involved". Again, that matter had not been raised in his original application, nor before Lander J. No notice of that matter had been given to the respondents, other than in a generic way in his draft proposed notice of appeal exhibited to his affidavit sworn on 8 December 2008 where it is said that:

That section 10 of the Defence Force Discipline Act 1982 – Application of the criminal code is declared invalid in law, and all associated subsections are declared invalid including section 162, 163 and 165A.

No detailed argument was developed in support of the contention. As it was not raised previously, it is unfair to the respondents to have been confronted with it only on this application, and more importantly, as it was not raised before Lander J, it cannot provide a basis for demonstrating that his Honour’s reasoning was erroneous and that leave to appeal from it should be given.

11 I return to the matters which were argued before Lander J.

12 Mr Ferdinands orally suggested in a general way that the history recorded by Lander J, and the description of the matters or grounds upon which the application to show cause was made were misunderstood by his Honour. Closer questioning of Mr Ferdinands indicated that he did not identify any particular respect in which his Honour misunderstood either of those aspects of his claim. I will not refer to the detail of them. He was unable to demonstrate any arguable error in those respects.

13 It became apparent in the course of his oral submissions on this application, that the thrust of Mr Ferdinands’ complaint is that he was wrongly convicted in the Adelaide Magistrates Court of assault, and wrongly convicted by a Defence Force Magistrate of a separate assault upon a service personnel. He argued that the delegate of the Chief of Army was wrong to have taken into account those convictions in deciding to terminate his employment. As Lander J said at [8] in essence, "he seeks to use the proceeding to show cause to overturn those convictions". Moreover, as Lander J pointed out at [38], the proposed proceeding is an attempt to quash the decision by a collateral attack upon the conviction by the Defence Force Magistrate.

14 Mr Ferdinands was convicted by a Defence Force Magistrate of one charge of assault upon an inferior officer on 4 November 1999. He belatedly sought to appeal from that decision on 17 April 2001. The President of the Defence Force Disciplinary Appeal Tribunal on 15 August 2001 refused to grant an extension of time to appeal. He appealed from that decision also. On 16 August 2002, that Tribunal extended the time for filing of an appeal but dismissed the appeal. Mr Ferdinands then appealed to this Court from that decision. That appeal was dismissed on 11 February 2003: Ferdinands v Chief of Army [2003] FCAFC 10. He applied to the High Court for special leave to appeal from that decision. That application was deemed to be abandoned for failure to comply with the High Court Rules on 1 October 2003. As Lander J said, his application for an extension of time to apply for an order to show cause should not be granted when it was, or to the extent that it was, seeking to make a collateral attack upon that conviction.

15 The fact that Mr Ferdinands was seeking collaterally to attack the Defence Force Magistrate’s conviction was reinforced by his complaints about the conduct of that hearing, in particular that certain witnesses had not been called and certain documents had not been produced which he claimed ought to have been produced on that hearing.

16 Mr Ferdinands raised an additional point on this application for leave to appeal, apparently for the first time, that he could not have been terminated by a decision of the delegate of the Chief of Army because, following that conviction, the prosecuting officer had asked for the termination of his employment, but the Defence Force Magistrate had imposed a lesser penalty. Hence, he said, the Defence Force Magistrate had decided that termination of his employment as a member of the defence force was not an appropriate penalty for the conviction, and the Chief of Army could not then reach a different view or impose an additional penalty. The proposition oversimplifies the grounds upon which the decision to terminate his employment was made. The material before the Court indicates that the facts and circumstances relating to the reason for terminating his service were that conviction, a conviction for assault in the Adelaide Magistrates Court on 27 February 2001, together with evidence about Mr Ferdinands’ character then provided relative to penalty in that Court, the termination of his civilian employment on 21 November 2001, and more generally his attitude towards others and towards authority. The evidence does not support Mr Ferdinands’ assertion. As the point was not raised before Lander J, even if it were correct, it could not show arguable error at first instance. And the proposition, even if correct, inappropriately conflates the punishment imposed for an offence with the assessment of suitability to remain in particular employment.

17 Mr Ferdinands also criticised the approach of Lander J in deciding whether there was an adequate explanation for the delay in making the primary application. His Honour properly identified the principles, as discussed by McHugh J in Gallo v Dawson [1990] HCA 30; (1990) 93 ALR 479 at 480. In my view, nothing was identified to suggest that his Honour has misunderstood or misapplied them. He recognised the disadvantage applicable to Mr Ferdinands by reason of his impecuniosity and by reason of his need to be self-represented.

18 So far as I can determine, although not dealt with in the draft proposed notice of appeal, the only other matter advanced on this application for leave to appeal was an assertion that Lander J had incorrectly struck out an affidavit of Mr Ferdinands of 4 May 2007 as an abuse of process. His Honour ruled that he would not receive paras [1]-[35] of that affidavit, but received the remainder of that affidavit. It was entirely proper to have rejected those paragraphs of that affidavit. They did not relate to any issue relevant to the primary application. They contained a series of unrelated and offensive allegations against persons who were not parties to it. The balance of that affidavit comprises matters which his Honour regarded as potentially relevant to the application which he was considering.

CONCLUSION

19 I have therefore come to the view that Mr Ferdinands’ application must be refused. He has not identified any matter in which Lander J might have fallen into error, even arguably so. He has not advanced any matter which specifically explains the delay between the making of the decision which he wishes to attack and the application for an extension of time to have made the application. In those circumstances, neither of the principles upon which an extension of time might be granted has been activated.

20 The application is therefore refused with costs.

I certify that the preceding twenty (20) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Mansfield.

Associate:

Dated: 20 January 2009

Counsel for the Applicant:	The applicant appeared in person
Counsel for the Respondents:	Ms D Forrester
Solicitor for the Respondents:	Australian Government Solicitor

Date of Hearing:	22 December 2008
Date of Judgment:	20 January 2009