Ferdinands v Chief of Army

REASONS FOR JUDGMENT SPENDER J: 1 This is an application for leave to appeal from orders made by von Doussa J on 18 December 2002 dismissing Mr Ferdinand's application for "discovery". That application was in relation to what might be termed "information" which Mr Ferdinands sought in relation to his appeal from a decision of the Defence Force Discipline Tribunal ("the Tribunal"). 2 The Tribunal dismissed an appeal by Mr Ferdinands against a refusal by the President of the Tribunal, Heerey J, to extend the time within which to appeal from a conviction imposed by a Defence Force Magistrate. That conviction was in respect of a charge under the Defence Force Discipline Act 1982 (Cth) Act. 3 The applicant apparently has little understanding of the nature of the appeal he seeks to bring from the decision of the Tribunal to the Federal Court of Australia. Section 52 of the Defence Force Discipline Appeals Act 1955 (Cth) provides, relevantly, in subss (1), (3) and (4) as follows: "(1) An appellant or the Chief of the Defence Force or service chief may appeal to the Federal Court of Australia on a question of law involved in a decision of the Tribunal in respect of an appeal under this Act, not being a decision given by a single member exercising the powers of the Tribunal. (Emphasis added) … (3) The Federal Court of Australia has jurisdiction to hear and determine matters arising under this section with respect to which appeals are instituted in that Court in accordance with this section and that jurisdiction shall be exercised by that Court constituted as a Full Court. (4) The Federal Court of Australia shall hear and determine the appeal and may make such order as it thinks appropriate by reason of its decision." 4 What these provisions indicate is that an appeal lies to the Federal Court only on a question of law: s 52(1) provides that an appeal lies, not concerning or relating to a question of law, but on a question of law involved in a decision of the Tribunal. 5 Section 25 of the Federal Court of Australia Act 1976 (Cth) ("the Federal Court Act") deals with the exercise of appellate jurisdiction of the Federal Court. Subsection (1) of s 25 provides: "The appellate jurisdiction of the court shall, subject to this section and to the provisions of any other Act, be exercised by a Full Court." Section 25(2B) relevantly provides: "A single judge or a Full Court may: (a) join or remove a party to an appeal to the Court; or (b) make an order by consent disposing of an appeal to the Court (including an order for costs); or (ba) make an order that an appeal to the Court be dismissed for want of prosecution; or (bb) make an order that an appeal to the Court be dismissed for failure to comply with a direction of the Court; or (c) give directions about the conduct of an appeal to the Court, including directions about: (i) the use of written submissions and (ii) limiting the time for oral argument." 6 Concerning the question of evidence on an appeal, s 27 of the Federal Court Act provides: "In an appeal the court shall have regard to the evidence given in the proceedings out of which the the appeal arose, and has power to draw inferences of fact and, in its discretion, to receive further evidence, which evidence may be taken: (a) on affidavit; or (b) by video link, audio link or other appropriate means in accordance with another provision of this Act or another law of the Commonwealth; or (c) by oral examination before the Court or a Judge; or (d) otherwise in accordance with section 46." 7 In Eastman v the Queen (2000) 203 CLR 1, a relatively recent judgment of the High Court, McHugh J said: "Authority for an appellate court to receive further evidence must come from a grant of legislative power in addition to a mere grant of appellate jurisdiction. It does not come from the simple grant of appellate jurisdiction because an appeal is the right of entering a superior court to redress the error of the court below and whether that court erred is to be determined on the materials before it. The power to receive further evidence is usually expressly granted but it may be implied where the appeal is stated to be one by way of rehearing." (Emphasis added.) 8 It is clear then that von Doussa J was correct in exercising the Court's discretion against the application for further information, because this information was not before the Tribunal whose decision was the subject of the appeal. In making the orders that he did, von Doussa J dismissed the motion in the relevant respects on the basis that the production of the documents sought could not assist the appeal process. They were not documents that were before the Tribunal and therefore were not documents which would be relevant, as the appeal would only address questions of law. It is for these reasons that, in my opinion, leave to appeal the decision of von Doussa J should be refused. RYAN J: 9 I agree, for the reasons explained by the learned presiding judge, that leave to appeal should be refused. DOWSETT J: 10 I also agree. SELWAY J: 11 I also agree. SPENDER J: 12 The orders of the court are: (1) that leave to appeal from the orders of von Doussa J be refused, and (2) the applicant for leave pay the costs of the respondent to the motion for leave to appeal, to be taxed if not agreed. I certify that the preceding twelve (12) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justices Spender, Ryan, Dowsett and Selway