Alpert; Ex parte - Re Aird & Ors [2003] HCATrans 332 (2 September 2003)

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Alpert; Ex parte - Re Aird & Ors [2003] HCATrans 332 (2 September 2003)

Last Updated: 4 September 2003

[2003] HCA Trans 332

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Brisbane No B60 of 2003

In the matter of -

An application for Writs of Certiorari and Prohibition against COLONEL STEVEN AIRD as a member of a general court martial constituted under the Defence Force Discipline Act 1982 and LIEUTENANT COLONEL BRYCE TITCUME as a member of a general court martial constituted under the Defence Force Discipline Act 1982 and MAJOR PETER THUAUX as a member of a general court martial constituted under the Defence Force Discipline Act 1982 and CAPTAIN SHANNON CALLAGHAN as a member of a general court martial constituted under the Defence Force Discipline Act 1982 and CAPTAIN SIMON WORBOYS as a member of a general court martial constituted under the Defence Force Discipline Act 1982

First Respondents

WING COMMANDER MICHAEL BURNETT in his capacity as the judge advocate appointed to the said general court martial

Second Respondent

Ex parte –

STEWART WAYNE ALPERT

Applicant/Prosecutor

HEYDON J

(In Chambers)

TRANSCRIPT OF PROCEEDINGS

FROM BRISBANE BY VIDEO LINK TO CANBERRA

ON TUESDAY, 2 SEPTEMBER 2003, AT 9.03 AM

Copyright in the High Court of Australia

__________________

MR J.A. LOGAN, SC: Your Honour, I appear with my learned friend, MR P.E. NOLAN, for the applicant. (instructed by Bevan Bowe and Associates)

MR G.B. HEVEY: May it please the Court, I appear with MR C. McCONAGHY on behalf of the respondents. (instructed by Australian Government Solicitor)

MR H.C. BURMESTER, QC: If it please the Court, I seek leave on behalf of the Commonwealth to appear and be heard on this application. (instructed by Australian Government Solicitor)

HIS HONOUR: No one opposes that leave, I take it?

MR HEVEY: No, your Honour.

HIS HONOUR: Yes, that is granted, Mr Burmester.

MR BURMESTER: Thank you, your Honour.

HIS HONOUR: Mr Hevey, strictly speaking, should not the first and second respondents be submitting to any order except as to costs?

MR HEVEY: They should, your Honour, but the situation is that a new office has been created within the Australian Defence Force and that is an office called the Director of Military Prosecutions. That office is to be legislated, hopefully, if not in this session of Parliament, in the next session of Parliament, and will assume a role similar to that of the Director of Public Prosecutions for the Commonwealth and the Territories. Depending on whether or not it gets through before this matter gets heard, should your Honour grant a decree today, it may be that we will be seeking to present a defence role in any event, separate and apart from the AGS or the Attorney-General’s position.

HIS HONOUR: Yes, I see. The problem is this: is there any - - -

MR LOGAN: Excuse me, your Honour. Up in Brisbane we are having a little difficulty hearing the return of the sound.

HIS HONOUR: From the Bar table as well as from me?

MR LOGAN: More from the Bar table than from your Honour.

HIS HONOUR: Right. I think we will all try and get nearer our microphones. The point that Mr Hevey just made was that he is submitting that it is not presently appropriate for the first and second respondents merely to submit to any order that the Court might make, because a new office known as the Director of Military Prosecutions may shortly be created and, if it were, he is saying that it could act, as it were, in a conventional partisan way against the prosecutor. I was about to ask the question whether, as far as you can see, there is no fact in contest between the parties. For example, is there any matter of fact, on which your client’s argument would depend, which is in contest?

MR LOGAN: Not any more, no, your Honour. That does seem to have been sorted out before the judge advocate.

HIS HONOUR: Mr Hevey, is there any matter of fact that - - -

MR HEVEY: No, that is correct, your Honour. The facts were agreed and they appear in the affidavit of Mr Alpert at pages 90 and 91. There are no other facts in contest.

HIS HONOUR: Mr Burmester, have you turned your mind to this aspect?

MR BURMESTER: Your Honour, it is my understanding that is right. The facts are essentially agreed on and are set out in the affidavit. There is no dispute.

HIS HONOUR: The only problem with the affidavit is that the exhibits to it are bulky and to some extent irrelevant or not central. I was going to propose the following directions, the first of which was that the parties concur in stating the questions of law arising in the form of a special case stated for the opinion of the Full Court pursuant to Order 35 rule 1; and, two, to direct the prosecutor to file the special case on or before 24 September 2003; and then, three, to stand the matter over to 9.00 am on 30 September 2003. Did you hear that, Mr Logan?

MR LOGAN: Yes, thank you, your Honour.

HIS HONOUR: Are you happy with that general approach?

MR LOGAN: If your Honour pleases, yes, that is quite satisfactory to the applicant.

HIS HONOUR: Then, if the case stated were satisfactory, the order nisi could be granted on that day. Indeed, if it were completely satisfactory, it would not even be necessary for anyone to attend Court on that day. The matter could be done simply by me. If there were some problem, then it could be debated on 30 September. Do you understand?

MR LOGAN: Yes.

HIS HONOUR: You are happy with that approach?

MR LOGAN: Yes, your Honour. We will get to work doing a draft forthwith.

HIS HONOUR: Very well. Are you happy?

MR HEVEY: Yes, thank you, your Honour.

HIS HONOUR: And, Mr Burmester?

MR BURMESTER: Your Honour, we are happy to proceed by way of a case stated and assist in putting that together. Could I ask perhaps today that the Commonwealth be formally joined as a respondent to – or I suppose, in a sense, that is also premature if your Honour is not going to deal with the order nisi today.

HIS HONOUR: I think it is probably simpler to join the Commonwealth as a respondent now. If there is no opposition to that course, I make that order. That will mean that the Commonwealth under that name will be involved in the preparation of the case stated.

MR BURMESTER: Yes, your Honour, that is satisfactory.

HIS HONOUR: Do you think that period of a month or so will be sufficient to enable this procedural problem turning on the creation on the Director of Military Prosecutions to be sorted out?

MR HEVEY: I do not, your Honour. I do not think that the legislation can be through Parliament realistically until March next year. The Minister hopes to have it through by October, but, frankly, I think that is optimistic.

HIS HONOUR: I suppose, if it is not through, then the orthodox approach is simply for the respondents to submit and Mr Burmester’s client will be able to look after everything fully from the Commonwealth point of view.

MR HEVEY: We would seek to assist the Commonwealth in the presentation of their case as the new DMP. Although the position is not legislated at the moment, it has been appointed by the Chief of the Defence Force.

HIS HONOUR: Yes. We will, I think, just have to leave that problem on one side. Yes, Mr Burmester.

MR BURMESTER: Your Honour, there is one other point. I notice you referred to a case stated under Order 35. Often cases stated are done under section 18 of the Judiciary Act. I wondered if your Honour had any particular reason for preferring Order 35, or whether the parties could examine that themselves.

HIS HONOUR: Because Order 35 rule 1(4) – I am just speaking from memory – says, does it not, that the Court can draw any inferences from the matters stated in the case stated. Technically, that apparently is not – or at least there is a question as to whether that is so in relation to cases stated under section 18.

MR BURMESTER: I think that is right, your Honour.

HIS HONOUR: But if the parties agreed, then it would not matter what source of power we adopted.

MR BURMESTER: I think that is right.

HIS HONOUR: It just seems, as a matter of abundance of caution, wise to do it under Order 35 rule 1.

MR BURMESTER: I am content with that course, your Honour.

HIS HONOUR: But we can revisit that if anything substantive turns on it.

MR BURMESTER: Yes. I do not think it will, but thank you for that explanation.

HIS HONOUR: I will just make then formally the orders that I indicated. The Court:

1. Directs the parties to concur in stating the questions of law arising in the form of the special case stated for the opinion of the Full Court pursuant to Order 35 rule 1;

2. Directs the prosecutor to file the special case on or before 24 September 2003;

3. Stands the matter over to 9.00 am on 30 September 2003.

Is there anything further? I suppose I should certify counsel.

MR LOGAN: Would your Honour certify for counsel, please?

HIS HONOUR: Yes, I certify for counsel. Adjourn the Court, please.

AT 9.11 AM THE MATTER WAS ADJOURNED
UNTIL TUESDAY, 30 SEPTEMBER 2003