DEFENCE FORCE DISCIPLINE APPEAL TRIBUNAL

Angre v Chief of Navy (No 1) [2016] ADFDAT 1

THE TRIBUNAL ORDERS THAT:

1.    The respondent’s application for a stay of the proceeding be refused.

REASONS FOR DECISION

THE TRIBUNAL:

1    ABMT Rohan Angre has applied to the Tribunal for leave to appeal out of time against convictions entered by a General Court Martial on 16 and 22 September 2014 (“the first Court Martial”). He had faced five charges and had pleaded guilty to three of them. He was convicted on the counts to which he had pleaded guilty.

2    ABMT Angre did not immediately apply for leave to appeal against these convictions.

3    Another General Court Martial (“the second Court Martial”) was convened to deal with the imposition of punishments for the offences. Before the second Court Martial assembled ABMT Angre raised and argued a series of preliminary legal points before the Judge Advocate to that court martial. The preliminary hearing continued over some 11 sitting days and saw a number of witnesses called and examined.

4    In substance, ABMT Angre mounted a collateral attack on his convictions on the ground that a substantial miscarriage of justice had occurred because his guilty pleas had been induced by various improprieties attributed to his legal advisors and by the alleged failure of the Judge Advocate of the first Court Martial to ensure that he was fully apprised of the consequences of his pleas.

5    Having heard the evidence and arguments the Judge Advocate of the second Court Martial, who was the Chief Judge Advocate (“the CJA”), rejected ABMT Angre’s preliminary objections. He gave detailed reasons for so doing.

6    When he first sought to invoke the jurisdiction of this Tribunal ABMT Angre sought leave to appeal out of time against the Judge Advocate’s ruling in the second Court Martial. When advised that the Tribunal did not have jurisdiction to entertain such a proposed appeal he sought and was granted leave to file an amended notice of appeal. In that amended notice he sought leave to appeal out of time against his convictions by the first Court Martial. He did so on the grounds that there had been a material irregularity in the proceedings and that a substantial miscarriage of justice had occurred. In particularising these grounds he substantially restated the allegations which he had advanced before the Judge Advocate of the second Court Martial.

7    The hearing of ABMT Angre’s application for leave to appeal out of time has been fixed to commence on 12 December 2016.

8    The Chief of Navy raised preliminary objections to the proposed appeal proceeding in the Tribunal. He did so relying on the doctrine of res judicata and the contention that the proposed appeal constituted an abuse of process.

9    The Tribunal heard argument on these objections during a hearing conducted on 23 and 24 June 2016. Having done so it was held that the objections were legally unfounded. We gave oral reasons for so concluding and intimated that written reasons would be published at a later date. These are those reasons.

10    The respondent, the Chief of Navy, contends that the applicant, ABMT Angre, is precluded by res judicata from agitating before this Tribunal the grounds on which he seeks to appeal from his conviction – essentially, that the conviction was founded on a plea of guilty which was unsound – or, alternatively, that it would be an abuse of process for him to do so – by reason that the applicant made, after conviction but before sentence, an application under Defence Force Discipline Act 1982 (Cth) (“the DFDA”) s 134(1) and/or Court Martial and Defence Force Magistrate Rules r 38 to substitute a plea of not guilty, which was dismissed by the Judge Advocate to the second Court Martial after a lengthy contest involving the taking of oral evidence, cross-examination, and findings of credit.

11    The doctrine of res judicata and abuse of process is applicable in proceedings of the kind in issue here: see Administration of Papua and New Guinea v Guba (1973) 130 CLR 353 at 453 (Gibbs J, observing that a court-martial was a fairly obvious example of a tribunal whose sentence might in some circumstances be pleaded as an estoppel although not made in the exercise of judicial power); Walton v Gardiner (1993) 177 CLR 378 and Herron v McGregor (1986) 6 NSWLR 246 (applying the doctrine of abuse of process to proceedings in the NSW Medical Tribunal, albeit in the context of delay rather than multiplicity of proceedings).

12    For present purposes it may be assumed, without deciding, that the application to the Judge Advocate under DFDA s 134(1) and/or Court Martial and Defence Force Magistrate Rules r 38 was competent, and that it was within the learned Chief Judge Advocate’s jurisdiction to entertain and determine it. It may also be accepted, and it was common ground, that the necessary degree of commonality of parties and issues exist such as would attract the res judicata doctrine, if it is otherwise applicable: it is manifest that in the appeal the applicant will, if permitted, re-agitate precisely the same issues as were agitated in the application before the CJA. The issue is whether, accepting that there is the requisite identity of parties and issues, and assuming that the application before the CJA was competent and within jurisdiction, the doctrine of res judicata or abuse of process is engaged.

13    A res judicata can arise only in respect of a final judgment. The respondent accepted that in strict form, the CJA’s rejection of the application to substitute a plea of not guilty was not final but interlocutory. That concession was plainly correct. A decision to permit or refuse leave to withdraw a plea of guilty is self-evidently an interlocutory decision, and that is so whether one focuses on the first Court Martial, in the course of which the applicant entered his plea of guilty and was convicted; or the second Court Martial, convened consequent upon the dissolution of the first pursuant to DFDA s 125(6) for the purpose (only) of taking action under Part IV, in which the final judgment would have been a sentence. It was argued that the decision should nonetheless be regarded as final, on the footing that “in the circumstances it is reasonable to regard the earlier decision as a final determination of the issue which one of the parties wishes to raise again”: see Makhoul v Barnes (1995) 60 FCR 572 at 583. That, however, was said in the context of considering and rejecting an argument that an issue estoppel arose to preclude a debtor, having failed on an application to set aside a bankruptcy notice, from disputing the debt on the hearing of a creditor’s petition.

14    In this respect, reference was made to the circumstance that the application was made after conviction, and to the length and complexity of the hearing and the evidentiary and credit issues involved. However, interlocutory decisions can be made after, as well as before, the final judgment; a classic example is, in equity, that a decision on an inquiry as to damages or account of profits taken pursuant to an order made for such inquiry in the substantive judgment is regarded as interlocutory. So are applications to set aside a judgment, to which the instant application is somewhat analogous. Neither in form nor in substance could the application before the CJA be said to be other than interlocutory. It follows that there is no res judicata.

15    As to abuse of process, the respondent contended that the applicant, having invoked the jurisdiction of the Judge Advocate appointed to the second Court Martial to substitute a plea of not guilty after conviction but before sentence, and having prosecuted that application with extensive evidence and cross-examination resulting in determinations of credit, it would be an abuse of process to seek now to re-litigate the same issues on appeal to this Tribunal from the conviction (by the first Court Martial), as it would in effect be an attempt to have a “second bite at the same cherry”, and would bring the administration of justice into disrepute by permitting a collateral attack on the decision of the CJA.

16    Unlike res judicata, abuse of process by re-litigation can operate even in respect of interlocutory decisions. However, its application in that context is generally to prevent the repeated re-agitation of the same interlocutory question. This was the point in Re Kala Capital Pty Ltd (No 2) [2012] NSWSC 1293, referred to by the respondent. In the present case, the respondent would apply it to the effect that, by electing to pursue an application at first instance to the Judge Advocate for a substituted plea, he effectively relinquished his statutory right of appeal, at least on those grounds (which are the only available grounds on the facts).

17    There are circumstances in which it may be an abuse of process for a party to exercise multiple parallel means of having a decision reviewed. In Meagher v Stephenson (1993) 30 NSWLR 736 at 737-9 the New South Wales Court of Appeal said that:

“The respondent (Mr Stephenson) was conditionally granted an off-licence (retail) for premises to become Northgate Cellars Tamworth by the Full Bench of the Licensing Court on 24 December 1992. The appellant (Mr Meagher) is the Liquor Controller of Woolworths Ltd. He was one of four unsuccessful objectors. The appellant commenced proceedings before Campbell J in the Supreme Court [of New South Wales]. He appealed pursuant to s 146 of the Liquor Act 1982 and made an application for orders in the nature of certiorari and mandamus directed to the Full Bench of the Licensing Court. Campbell J dismissed the proceedings holding that the Full Bench had not erred in law in its determination.

Before the Court of Appeal is an appeal and an application for leave to appeal against the determination of Campbell J. Because Campbell J was of the opinion that no error of law was demonstrated, he had no occasion to comment upon the appropriateness or otherwise of the dual nature of the proceedings before him. It may be that it would be a sound practice for a single judge faced with such a situation in future to require the appellant to elect which procedure to follow. Where the proceedings relate to determinations by the Licensing Court and the error alleged is an error of law on the face of the record, it is inappropriate and unnecessary to take proceedings for prerogative relief simultaneously with an appeal.

…

It appears to us that a claim for certiorari that is joined to an appeal under s 146 of the Liquor Act merely for the purpose of securing an appeal as of right to this Court, may well be an abuse of process which could be struck out in accordance with the principles applied in O'Reilly v Mackman [1983] 2 AC 237 at 254, 285. While this principle has proved difficult of application in the United Kingdom in some judicial review cases (see Roy v Kensington and Chelsea and Westminster Family Practitioner Committee [1992] 1 AC 624) no such difficulties appear to arise in cases such as the present. Indeed, it may also be open to a respondent to apply to strike out an appeal as of right on the same principles. It may be that there are cases where it is appropriate to take proceedings of the prerogative kind rather than to appeal pursuant to s 146 but there seems no justification, indeed it could be an abuse of process, to take both simultaneously.”

18    The propositions for which Meagher stands are:

(1)    That there is a discretion to refuse prerogative relief where the alternative and superior remedy of appeal has not been exercised: Geftlic v Merhi & Ors [2011] NSWCA 241 at [42] (Handley AJA); and

(2)    That it may be an abuse of process to apply (as of right) for prerogative relief, where an appeal would lie only by leave: see AB v Director of Public Prosecutions (NSW) [2014] NSWCA 122 at [24] (Basten JA); Fitzgibbon v Council of New South Wales Bar Association [2011] NSWCA 165 at [17] (Handley AJA; Basten and Young JJA agreeing).

Neither of those conditions applies here.

19    Geftlic was an application for relief in the nature of certiorari, to quash a decision in the Small Claims Division of the Local Court, and a decision of the District Court dismissing an appeal from the Local Court. The applicant was the (unsuccessful) defendant in the Local Court, where the plaintiff obtained a judgment for $10,000. The defendant appealed to the District Court; an appeal lay “only on the ground of lack of jurisdiction or denial of procedural fairness”. The appeal was dismissed; the applicant then sought prerogative relief, on the same grounds, from the Court of Appeal. Giles JA said (at [14]):

“[14]    It is sufficient as to the decision of the Local Court that, the defendant having unsuccessfully exercised a right of appeal on the grounds of lack of jurisdiction and denial of procedural fairness, as a matter of discretion she should not be granted relief when she relies on the same grounds in this Court. It would be a rare case in which two bites at the cherry should be permitted, one by appeal and when the appeal fails another by judicial review.”

Handley AJA said (at [35]-[36]):

“[35]    The judgment of Garling DCJ on 14 August 2009 conclusively established, subject to possible judicial review, that the decision of the Small Claims Division was not vitiated for lack of jurisdiction or denial of procedural fairness. That decision established issue estoppels, and possibly cause of action estoppels, on these questions which are binding on the parties and this Court.”

[36]    The decision of a lower court between the same parties on the same question is binding on a higher court except on appeal or judicial review: Marginson v Blackburn BC [1939] 2 KB 426 CA at 438; Jackson v Goldsmith [1950] HCA 22; 81 CLR 446; Ramsey v Pigram [1968] HCA 34; (1968) 118 CLR 271; Watt (formerly Carter) v Ahsan [2007] UKHL 51; [2008] 1 AC 696.”

Young JA agreed with both of the other members of the Court.

20    That was a case in which the judgment of the District Court was a final, not an interlocutory one. And it was a case in which there was a second attempt to invoke a review by a higher court. It did not involve an initial application in the court of first instance.

21    The present case is far removed. First, the rights of a party to make an application after judgment at first instance for a reopening or setting aside of the judgment, and that party’s rights of appeal from the same judgment, are not mutually exclusive. It is entirely appropriate for a party to exhaust its remedies at first instance before bringing appellate proceedings.

22    Secondly, there is no inconsistency in pursuing both courses; so that first pursuing one does not amount to an election to abandon the other.

23    Thirdly, the proceedings before a court martial are analogous to criminal proceedings, and an appeal to this Tribunal analogous to a criminal appeal. In a context where appellants are sometimes held to have lost a right of appeal by failing to take a point at first instance (for example, in respect of a summing-up), it would be extraordinary to hold that the right of appeal was lost by taking the point at first instance.

24    Fourthly, it was (correctly) accepted by the respondent that had the application to withdraw the plea been made and refused before conviction, it would have been open to the applicant to appeal on the grounds on which he presently seeks to rely, without that involving an impermissible collateral attack on the Judge Advocate’s decision. It is not apparent how what is permissible in that case becomes an impermissible collateral attack if the application is made – on relevant assumptions, within jurisdiction – after conviction but before sentence. In either case, the appeal lies (only) against the conviction, and not against the failure to grant the s 134(1) application: cf Maric v R (1978) 20 ALR 513 at 520 (Gibbs J). However, in impugning the conviction, any interlocutory decision which affects the final conviction can be called into question: Gerlach v Clifton Bricks Pty Ltd (2002) 209 CLR 478. The CJA’s decision affected the final conviction by maintaining it.

25    The applicant requires an extension of time in which to appeal, and leave to appeal insofar as the grounds do not raise a question of law. It may be that some of the matters to which the respondent points in connection with the “abuse of process” argument may be relevant on the question of leave to appeal. But they do not render the appeal to this Tribunal an abuse of process.

26    The objections on grounds of res judicata and abuse of process fail.

Associate:

Dated:    29 August 2016