Stuart v Sanderson

Federal Court of Australia|2000-06-28|Before: Handley J, Ormiston J, Madgwick J

REASONS FOR JUDGMENT HIS HONOUR 1 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 2 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. 3 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. 4 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."

5 Section 158(1)(c) of the Act provides: "where in a review it appears to the reviewing authority: … (c) that there was a material irregularity in the course of the proceedings and that a substantial miscarriage of justice has occurred; or … he shall quash the conviction." 6 On 1 April 1996, as a result of the review, two of the convictions were quashed and three were upheld. However, upon the advice of a Deputy Judge Advocate General (Cole JA), the petition for further review was dismissed by Lt. Gen. Sanderson on 28 November 1996. Consequently, the applicant's privileges were restricted for a fortnight and she was detained in a Defence Force facility for seven days. 7 On 22 April 1997 the applicant was discharged from military service by Major Blumson because of the convictions that she had sustained. At the time of this decision, the Army's Manual of Personnel Administration contained a theft policy stating that: "Theft by members of the Army will not be tolerated. Discharge action will be initiated against all offenders." The applicant sought "redress of grievance" with respect to her discharge. However, on 11 August 1998 Brigadier Webster, the duly authorised delegate for the second respondent, confirmed the discharge decision pursuant to s 44(1) of the Defence Act 1903 (Cw). Proceedings before Beaumont J (NG 1159 of 1998) 8 On 3 November 1998 the applicant commenced proceedings in this Court to review the decision of Brig. Webster. On 31 March 1999, in proceedings before Beaumont J, the applicant sought judicial review of that decision, pursuant to the Administrative Decisions (Judicial Review) Act 1977 (Cw). The grounds of review relied upon were set out in the application: "1. That the Respondent in electing to deal with certain conduct of the Applicant pursuant to the Defence Force Discipline Act is thereby estopped from seeking to administratively discharge the Applicant from the Australian Army in respect of that same conduct; alternatively 2. That the Respondent in seeking to discharge the Applicant from the Australian Army is seeking to give effect to a rule or policy without having regard to the justice of the matter. 3. Such further grounds as may be contained in the accompanying affidavit." 9 No further ground is readily apparent from the accompanying affidavit (and certainly none that is relevant to the present proceedings). However, in a "Statement of Facts, Issues and Contentions" filed on 12 March 1999 the applicant included, under the heading of "Issues to be determined", the following points: "Whether the decision maker had sufficient if any regard for the fact that the conviction was obtained in circumstances which differed greatly from those attending a normal trial, and in particular: (a) That the Applicant had requested but had not been provided with a legally qualified defending officer; (b) That neither the Summary Authority, the prosecuting officer, or the appointed defending officer were legally qualified; … (d) That, particularly having regard to … the lack of a legally qualified defending officer, the abilities of the Applicant to appeal the conviction were limited in character." Further, in an affidavit filed in those proceedings on 25 March 1999, the applicant claimed that she had not been provided with legal representation at the hearing before the summary authority. 10 Two principal submissions, as identified in the application set out above, were pressed at the hearing before Beaumont J. First, there was a double jeopardy argument. The applicant contended that it was not open to the respondent both to punish the applicant, by way of detention and restriction of privileges, and then to punish her again by way of discharge. The doctrine of autrefois convict operated, the applicant argued, to prevent the respondent from dismissing her. Second, the applicant submitted that the theft policy unduly fettered the discretion of the respondent to take into account the particular circumstances of her case. 11 Beaumont J rejected both of these submissions and dismissed the application on 13 April 1999. At paragraph 35 of his judgment Beaumont J noted that: "in the course of argument, and in Ms Stuart's affidavit sworn on 25 March 1999, reference was made to the circumstances in which an appointment was made of an officer to represent Ms Stuart at the hearing of the disciplinary quasi-criminal charges brought against her. I mention it only by way of completeness. It does not seem to me that this can provide here any ground for judicial review nor, in fairness, did I understand that counsel for the applicant ultimately sought to press the point." The applicant's case 12 The present proceedings were commenced on 20 May 1999. The applicant relies upon Rule 24 of the Defence Force Discipline Rules (Cth), made pursuant to s 149 of the Act, which at the time of the proceedings before the summary authority (though it has since been amended), provided that: "(1) An accused person may request the services of a specified member of the Defence Force to defend the accused person at the hearing of a proceeding before a summary authority. (2) Where an accused makes a request under subrule (1), the person whose services are requested shall be permitted to defend the accused person unless the services of the person are not reasonably available. (3) Where the services of a person which have been requested by an accused person under sub-rule (1) are not reasonably available, the summary authority shall, with the consent of the accused person, direct a defence member to defend the accused person." 13 The applicant claims that, despite being based in Melbourne, Lt. Col. Beckwith was, for the purposes of Rule 24, reasonably available, that she had requested his services, that the appointment of Capt. Buckley was therefore in breach of the Rule, and that this breach constituted a miscarriage of justice before the summary authority which convicted her. 14 Before addressing the issues raised by the applicant's claims, it is convenient to first deal with an obstacle to the applicant's case raised by the respondents. "Anshun" estoppel 15 The foregoing makes it clear that the issues that the applicant seeks to agitate in this application were referred to in a general way, but not pressed, in the proceedings before Beaumont J. Having regard to the way in which the issues were formulated, it cannot be said that the grounds have formally passed into judgment (nor did the respondents argue that they had) and thus no problem of res judicata arises to defeat the present application: Blair v Curran (1939) 62 CLR 464 is authority for a strict approach to the defences of res judicata and issue estoppel. 16 However, it was submitted by the respondents that the matters raised by the present application ought to have been litigated in a single proceeding before Beaumont J, and that therefore the applicant may properly be said, by the application of the Anshun estoppel principle, to have irrevocably abandoned or waived the right to press them now. That principle, as approved by the High Court in Port of Melbourne v Anshun (1981) 147 CLR 589 at 598, was expressed by Wigram VC in Henderson v Henderson (1843) 3 Hare 100 at 115, in the following, now familiar, terms: "when a given matter becomes the subject of litigation in, and of adjudication by, a Court of competent jurisdiction, the Court requires the parties to that litigation to bring forward their whole case, and will not (except under special circumstances) permit the same parties to open the same subject of litigation in respect of matter which might have been brought forward, only because they have, from negligence, inadvertence, or even accident, omitted part of their case. The plea of res judicata applies, except in special cases, not only to points upon which the Court was actually required by the parties to form an opinion and pronounce a judgment, but to every point which properly belonged to the subject of the litigation, and which the parties, exercising reasonable diligence, might have brought forward at the time." 17 The applicant seeks here to put another ground of review that might have been, but was not, put before Beaumont J. The underlying controversy is essentially the same; the remedies that the applicant seeks in this matter are designed, ultimately, to challenge the discharge decision that was impugned before Beaumont J, by attacking the convictions upon which it was based. The application is therefore in substance a collateral attack upon the earlier decision of both Beaumont J and of Brig. Webster: see Hunter v Chief Constable [1982] AC 529. It is the substance of an issue sought to be raised in later proceedings rather than its form that is to be considered when applying the Anshun doctrine: Bryant v Commonwealth Bank (1995) 57 FCR 287. Since, having regard to the nature and subject matter of the first suit, it would have been expected that the additional claim would also have been raised previously, and since the additional claim arises out of substantially the same facts, the application of the Anshun principle would seem to be appropriate in this case: see Bryant, Ling v Commonwealth (1996) 68 FCR 180 and Handley J in "Anshun Today" (1997) 71 ALJ 934 at 938. 18 It was conceded by the applicant, in written submissions, that: "the present matters could have been raised at that time [before Beaumont J], however, this can only go to the issue of whether this Court will exercise its discretion to grant relief. The Respondent has not been disadvantaged by the failure to raise the matters before Beaumont J other than as to costs and the applicant was ordered to pay costs and has agreed to pay a fixed amount." 19 However, Anshun estoppel is not necessarily remedied by appropriately framed costs orders. As noted by Handley J in "Anshun Today" at 935: "The extended doctrine including Anshun is sustained by the same principles of private right and public convenience which undergird the res judicata doctrine - the private right not to be vexed with multiple proceedings for the same cause, and the public convenience that litigation should come to an end, that court judgments be respected and inconsistency avoided." 20 The principle is thus not founded only upon the need to restrain costs between parties in dispute, although that is one of its purposes (Bryant at 298, and Trawl Industries v Effem Foods (1992) 36 FCR 406 at 423 per Gummow J). It is also founded upon the need to avoid 'conflicting' judgments (Anshun at 603 - 604), to ensure finality of litigation (Anshun at 609, per Brennan, and Bryant at 299), to prevent parties from gaining an advantage in the use of the Court's time (Handley at 938) and, in the more global expression of Murphy J "to preserve the orderly administration of justice" (Anshun at 605); that expression might include, for example, the maintenance of the appearance of good order, so as to sustain public confidence in curial disposition of disputes. 21 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 22 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). 23 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. 24 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 25 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." 26 At first sight, the decision of the majority in Anshun appears to disparage this view. At 601 - 602 Gibbs CJ, Mason and Aickin JJ said: "in Yat Tung the adoption of the principle in Henderson v Henderson was taken too far. Lord Kilbrandon spoke of it becoming 'an abuse of process to raise in subsequent proceedings matters which could and therefore should have been litigated in earlier proceedings'. As we have seen, this statement is not supported by authority." Further, the majority noted that "the abuse of process test is not one of great utility" in applying the principle, and that: "In this situation we would prefer to say that there will be no estoppel unless it appears that the matter relied upon as a defence in the second action was so relevant to the subject matter of the first action that it would have been unreasonable not to rely on it." 27 However, abuse of process was relied on by Mason CJ, Deane and Gaudron JJ in Rogers v The Queen (1994) 181 CLR 251. Mason CJ said at 255: "The availability of res judicata, the defences of autrefois acquit and autrefois convict and the rule against double jeopardy and the doctrine of abuse of process make it unnecessary to introduce the doctrine of issue estoppel into the criminal law… I agree with the reasons given by Deane and Gaudron JJ for concluding that the prosecution's tender of the records of interview constituted a direct challenge to the 1989 determination and was therefore an abuse of process. The concept of abuse of process is not confined to cases in which the purpose of the moving party is to achieve some foreign or ulterior object, in that it is not that party's genuine purpose to obtain the relief sought in the second proceeding. The circumstances in which abuse of process may arise are extremely varied and it would be unwise to limit those circumstances to fixed categories … Likewise it would be a mistake to treat the discussion in judgments of particular circumstances as necessarily confining the concept of abuse of process." See also the judgment of Deane and Gaudron JJ at 275 and 280. 28 This apparent incongruency was explained by Ormiston J in "Abuse of Process, Anshun and the Criminal Law - A Commentary" (1997) 71 ALJ 942 at 944 in the following terms: "As explained by Handley JA in his third edition of Spencer Bower, Turner & Handley on Res Judicata the extended doctrine of res judicata, is 'based on abuse of process' … Despite the comments in the passage quoted above from their judgment I would doubt that the majority in Anshun intended to say that the principle they extrapolated from Henderson and subsequent cases was not founded on the inherent jurisdiction of the court to prevent abuse of its processes, but they intended to say, rather, that merely incanting the words 'abuse of process' was not a useful test for determining in what circumstances a party would be shut out from raising a particular case." Ormiston J offers persuasive reasons to support this view, see pp 946 - 948. Such a reading of the Anshun decision reconciles it with the weight of other authority and is therefore to be preferred. None of the later cases expressly purported to depart from what was said in Anshun. 29 Yet, although the doctrine of Anshun estoppel may be ultimately derived from the Court's power to prevent an abuse of its process, that does not of itself demand that the principle be applied on an entirely open-ended, discretionary basis. It is to be noted that in Anshun, in the passage set out in para 26 above, the High Court explained the criteria for the prima facie application of the estoppel rule. Nevertheless, the terms of the particular rule articulated by Wigram VC, set out above, at para 16 and adopted, albeit with explanation, in Anshun, appear to suggest that the discretionary aspects of the Anshun rule are to be found in the "special circumstances" exception. This issue was raised directly in the Anshun litigation. At first instance (Port of Melbourne v Anshun [1980] VR 321) McGarvie J said at 344 that: "A rigid formulation is ill-suited to operate in all cases so as to apply the principle only when the facts amount to an abuse of process and to avoid shutting out a party from bringing forward a genuine subject of litigation." After quoting from the decision in Yat Tung Investment v Dao Heng Bank [1975] AC 581 at 590 McGarvie J continued, "What is there said by the Privy Council, is consistent with the existence of a discretion." On appeal (Port of Melbourne v Anshun (No 2) [1981] VR 81) the Full Court said: "the learned trial Judge, having once determined that the matter of the agreement properly belonged to the subject of the earlier litigation and might have been brought forward at the time of that litigation by the Authority, exercising reasonable diligence, had a discretion only in the sense that … he was required to consider whether special circumstances existed in the sense that justice required the non-application of the general rule". 30 In recounting the background to the case, the majority judgment in the High Court, at 594 - 595, quoted the above passage. The High Court did not revisit the matter of discretion, and did not therefore expressly confirm the Full Court's view that the application of the Anshun principle was discretionary only in as far as it related to "special circumstances". However, the appeal was unanimously dismissed and the comments of the majority generally accorded with those of the Full Court. The High Court should be taken either to have concurred with this view or to have expressed no authoritative opinion on the matter. The authority of the Full Victorian Supreme Court is therefore at least highly persuasive and, with respect, I agree with it. 31 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 32 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. 33 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. 34 Secondly, what is asserted on the applicant's behalf is that she was denied a then-existing, important right of every soldier. 35 The consequence for the respondents of the applicant being allowed to take her present point would not go beyond inconvenience and expense, albeit to a not insignificant degree. The respondents can however, at least in part, be compensated by a costs order: see Anshun per Brennan at 615. The respondents are litigant only in an official capacity and are unlikely to feel the other pressures which often weigh on individuals who are litigants. 36 The orderly processes of the Court have been to an extent disrupted but that has to be weighed against the vindication of an important right. It seems to me that it would be right to regard this case as one where special circumstances exist. In coming to this conclusion, I do not overlook that there has been significant delay by the applicant. As the decision in Newington v Beneficial Finance Corporation Ltd [2000] FCA 338shows, even where, without fault, a litigant discovers fresh evidence that might win the case, mere delay can defeat that litigant. Parties can hardly be in a better position because they have belatedly thought of another point of law. However, vindication of criminal charges, necessarily involving moral turpitude, a possible miscarriage of justice in the hearing of such charges,

and a denial of an important process right before a body other than a court capable of inflicting criminal punishment are at stake here. Was the point now raised sufficiently taken before the decision-maker? 37 By way of another preliminary point, counsel for the respondents submitted that the availability of Lt. Col. Beckwith was never raised before Lt. Gen. Sanderson on review. The respondents argued that the applicant's claim, before Lt. Gen. Sanderson, that "in all the circumstances, it is clear that I should have been permitted access to independent legal advice of my choice", did not sufficiently clearly raise a claim of non-compliance with Rule 24. The respondents submit that the applicant's complaint was primarily directed towards the fact that she did not receive legal advice rather than that she did not receive assistance from the officer of her choice. Indeed, during cross-examination the applicant conceded that she did not know of Rule 24 at the time of preparing her petition. 38 Section 153(3) of the Act provides that to petition for review a person must set out the grounds upon which the review is sought to be invoked. Even though the applicant failed to make reference to the relevant Rule, she did invoke the concept of the relevance of her choice of advisor in her defence. A narrow view of what is to be expected under a provision such as s 153(3) of a private soldier (among other ranks) should not be taken. Interpreted in its statutory context, s 153(3) ought to be viewed as requiring no more than substantial compliance: see Project Blue Sky v Australian Broadcasting Authority (1998) 194 CLR 355. The fact that the applicant did not fully appreciate her rights under Rule 24 neither disentitles her from such rights nor bears on an assessment as to whether the matter was sufficiently put before the first respondent. Whether Lt. Col. Beckwith was "reasonably available" 39 The applicant claims that an error of law was made in the determination of whether Lt. Col. Beckwith was reasonably available to defend her at the summary hearing as she had requested. Therefore, it is submitted, the applicant did not have a trial such as the relevant legislation intended and this resulted in a miscarriage of justice. Lt. Gen. Sanderson, it is then said, erred in law by dismissing her petition for further review on 28 November 1996. As the final internal review decision, this is the appropriate decision to be reviewed in this Court: Twist v Randwick Municipal Council (1976) 136 CLR 106. Therefore, there should be consequential relief against the dismissal which was plainly founded on the applicant's convictions. 40 Whether the services of a member of the Defence Force which have been requested by an accused person are "reasonably available" is, in my view, to be determined practically and having regard to all the circumstances, which may vary greatly. The request may be in time of war or of peace, in Australia or abroad, in circumstances of isolation of the various persons concerned, or otherwise. Cases may be attended by various degrees of urgency. The potential seriousness of the consequences of a conviction will have its influence. Questions of cost and convenience cannot be set aside. No doubt there are many other factors that may, in particular cases, be relevant. 41 Lt. Col. Beckwith was apparently "available" to defend the applicant on the days of the hearing: though based in Melbourne he was not engaged in any other case that might have prevented his attendance at Bonegilla. The applicant points to the seriousness of the charges, the seriousness of the consequence of conviction, and the minimal cost of making the requested services of the chosen member available. The cost of appearing before the authority is also limited to a sessional rate of pay irrespective of rank. It was agreed at the hearing that theft is a matter of great importance in the armed services, and is at least in some circumstances treated more seriously than in civilian life: defence personnel are often required to live in close quarters with little security to personal property. This is reflected by the maximum penalty of five years for a conviction of theft under the Act (whilst in this case the applicant could not have been detained for such a long term by a summary authority, the maximum sentence available is indicative of how seriously the matter of theft is taken to be in general terms). 42 The potential consequences for the applicant were serious. In fact she was detained in a Defence Force facility for seven days and her privileges were restricted for a fortnight. The maximum term of detention that the summary authority could have applied was 14 days. A further potentially serious consequence (that which the applicant is ultimately seeking to overcome by these proceedings) was her discharge which could be expected to be brought about, as it was, by convictions. As noted above, at the time of the decision to deny the applicant Lt. Col. Beckwith's services, the Army's Manual of Personnel Administration contained a theft policy plainly indicating that a usual consequence of a theft conviction would be discharge. 43 A further consideration showing the reasonableness of making Lt. Col. Beckwith available was the relatively short distance from Melbourne to Wodonga, and the fact that the hearing was only anticipated to take two days. 44 Counsel for the respondents argued that the various costs that would have been imposed upon the Army were unreasonably high and that the charges were not sufficiently serious to justify them, given that the charges were being heard before a summary authority with only limited powers to impose penalties. Further, reasonable availability, in the context of a hearing before a summary authority, ought to be interpreted to mean reasonable availability of the services of a member from within the accused's own unit: in the armed services it is to be assumed, for purposes of efficiency and effective discipline, that disciplinary matters are to be dealt with intra-murally. This interpretation was said to be supported by the fact that in matters heard before a summary authority both the commanding officer, who presides over the proceedings, and the prosecutor are unit members. In this case Lt. Col. Beckwith was outside Maj. Karsai's chain of command, and therefore, in order to obtain his assistance Maj. Karsai would have needed the consent of the Chief Legal Officer in Melbourne. Further, it was argued that the legislative regime under the Act ensures that if a matter is deemed by the convening authority to be too serious or complicated for summary hearing, then it will be referred to either a Defence Force magistrate, a restricted court martial or a court martial, and in all of these instances, legal representation is provided for under s 137 of the Act. Simple matters, it was said, are to be dealt with quickly and efficiently within a unit. 45 Such considerations may indeed be relevant to a determination of what may constitute reasonable availability in some circumstances. For instance, the availability of the services of a Melbourne based member may be considered not to be reasonable when an accused is serving abroad, to say nothing of serving in a unit engaged in combat in a remote location where the charge demands a prompt hearing. However, Rule 24 in its plain terms accorded members of the Defence Force a right of broad application. Despite an express guarantee of legal representation under s 137 in cases perceived to be more serious, this case was serious enough: the applicant was accused of theft and the potential consequences of convictions were serious, as were the actual consequences. Had the broad nature of the circumstances relevant to a judgment of reasonable availability been appreciated, the view could not, in my opinion, reasonably have been taken that Lt. Col. Beckwith's services were not reasonably available. An error as to the meaning of Rule 24 may therefore be inferred: see Avon Downs v Federal Commissioner of Taxation (1949) 78 CLR 353 at 360 which I considered in Sidhu v Holmes [2000] FCA 776. Whether failure was a material irregularity which led to a substantial miscarriage of justice 46 Finally, it remains to be determined whether the error on the part of the summary authority, identified above, amounts to a material irregularity which led to a substantial miscarriage of justice according to s 158(1)(c). It is clear, for the reasons given above, that the failure to make Lt. Col. Beckwith available to defend the applicant was a material irregularity in the proceedings before the summary authority. However, it was submitted by the respondents that the irregularity did not give rise to a substantial miscarriage of justice. It was said that there is no principle of law to the effect that a substantial miscarriage of justice necessarily occurs when an accused person is not represented by the person of his or her choice. Assuming this to be generally true, different considerations nevertheless apply as to proceedings which can take away a person's liberty yet are not conducted by a court. In Hembury v Chief of the General Staff (1998) 193 CLR 641 Gummow and Callinan JJ (Hayne J agreeing), speaking of a court martial, said at 659: "In Balenzuela, Windeyer J … also emphasised that, where the complaint was of misdirection of law, 'there has been an error in law; and the court must assume that it has, or may have, resulted in a miscarriage of justice, for a party has a right to have his case tried according to law'. Here, the adjective 'substantial' qualifies 'miscarriage of justice'. However, Windeyer J's reasoning applies with added force where the proceeding in question leads to the imposition of a punishment yet is not conducted by a court. Here, there was a misdirection on a matter of law which was a material irregularity in the course of the proceeding. The appellant, under the present state of authority in this court, did not have the right to the determination of his guilt, on charges of offending against a law of the Commonwealth, by a court exercising the judicial power of the Commonwealth. Nevertheless, he had, at the least, a right to have his case determined by a court martial which proceeded according to the law of the Commonwealth."

At para 671 Kirby J said: "the words 'substantial miscarriage of justice' in a provision such as s 23 are used in contradistinction to a miscarriage which is de minimis. Where the material irregularity concerns a legal misdirection about a matter of procedure which might have affected the outcome of the proceedings that will ordinarily amount to a substantial miscarriage of justice. This is because it is an accepted element of justice in our legal system that trials of serious matters must conform to the law with a high measure of exactitude. It would be quite wrong to distort the language of s 23 of the Appeals Act to require an appellant, in effect, to demonstrate that he or she was innocent or that the material irregularity clearly affected the court martial's decision when this will ordinarily be unknown and unknowable." 47 There is no satisfactory reason for distinguishing, in this regard, between the decision of a summary authority and that of a court martial, at least where the matter was regarded as serious enough to warrant significant, as distinct from trivial or minor, punishment. 48 The applicant had a right to have the criminal charges brought against her and determined according to law. This was not done. It is impossible now to speculate about the outcome of the proceedings had the services of Lt. Col. Beckwith actually been made available. For the reasons set out in the passages just quoted, the irregularity must be considered to have resulted in a substantial miscarriage of justice to the applicant. 49 It was submitted by the respondents that, even if the Court were to conclude that Lt. Col. Beckwith had been reasonably available, and that this amounted to a material irregularity before the summary authority which led to a substantial miscarriage of justice, this would not provide a sound basis for judicial review of the decision of Lt. Gen. Sanderson. It was said that his decision must have been unreasonable in the Wednesbury sense. I agree but, for the reasons outlined above, as I have indicated, it does seem to me that the decision was not, in the circumstances, reasonably open and therefore it was unreasonable in the relevant sense. This conclusion makes it unnecessary to determine whether the error might also amount to an error of law on the face of the record. Disposition 50 Given the excessive length of time that it took the applicant to bring the decision, now under review, before the Court to test the point now relied upon, there is a question whether the Court should decline, in its discretion, to grant the relief sought by way of mandamus or certiorari. The decision under review was made in August 1995 and it would place a serious burden upon the respondents now to require the matter to be revisited. It would also be unfair to the respondents simply to quash the decision; that might have the effect of preventing the summary authority from again seeking to determine the guilt of the applicant as to the charges (assuming that a "re-trial" would be legislatively authorised - this was not debated before me). Assuming certiorari would lie, I would decline to grant it. In the circumstances it is unnecessary to consider the respondents' submission that certiorari is not available under s 39B of the Judiciary Act in the absence of prohibition: see Madden v Madden (1996) 136 ALR 98, at 138 - 139 per Foster J. 51 However, the applicant has irretrievably been punished, as if guilty. Further, as matters have turned out, she has suffered substantial costs. To grant mandamus, requiring the applicant's petition to be reconsidered according to law would appear to have the consequential effect of also permitting the authorities to arrange the hearing and determination of the charges according to law, if the Army authorities considered that a proper use of resources. There may or may not be legal or practical difficulties in the Army doing that or discretionary relief available to the applicant against any unfairness arising from re-prosecution now. I express no view on those matters. If the Army authorities do not wish to re-prosecute the charges of which the applicant was convicted, they can no doubt give effect to that view by advising the applicant of their intention to offer no evidence or otherwise, as they may be advised. To grant declarations or injunctive relief directed against discharge of the applicant for military service, without also granting mandamus of the kind just proposed would result in discordancy of the record: the applicant's convictions would stand but the Army would be prevented from applying its usual policy in such a case. Despite the delay, the discretionary aspects of the case seem to me to favour equitable relief. 52 It therefore seems to me that it will do justice between the parties to grant both mandamus and appropriate equitable relief. This relief differs to some extent from that sought in the originating process and leave to make suitable amendments would be necessary. However, as the amendments would be merely in pursuit of the moulding of appropriate relief as to matters whose substance has been fully litigated, there can be no objection to this.

53 I will ask the parties 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 these conclusions, within seven days. 54 On the subject of costs, my present tendency of mind is as follows. Notwithstanding her success, the applicant could have had it in one curial proceeding instead of two, indeed perhaps without any had she raised the point now relied on more directly before Cole JA. On the other hand, the respondents persisted in their opposition to the point now raised and have not succeeded. The substantial body of the parties' costs in the current proceedings was incurred because of that unsuccessful opposition. Therefore, the respondents should pay the applicant's costs of these proceedings. The parties may put in any written submission they wish on this subject together with the short minutes. I certify that the preceding fifty four (54) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Madgwick.

Counsel for the Respondents: R Tracey QC and R Henderson

Solicitor for the Respondents: Australian Government Solicitor

Date of Hearing: 8 June 1999 & 13 September 1999

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