FEDERAL COURT OF AUSTRALIA

Ferdinands v Chief of Army [2013] FCAFC 103

THE COURT ORDERS THAT:

1.    The proceeding commenced by the notice of appeal from the Defence Force Discipline Appeal Tribunal under section 52(3) of the Defence Force Discipline Appeals Act 1955 (Cth) and filed by the applicant on 3 April 2013 be dismissed.

2.    Should the applicant file any proceeding in the Court that is in any way in relation to a charge for which he was convicted by a Defence Force Magistrate under the Defence Force Discipline Act 1982 (Cth) following a trial between 25 October and 4 November 1999, the District Registrar is not to give a return date and is to require the applicant to show cause by filing of submissions and any affidavit as to why the proceeding should not be dismissed as vexatious and an abuse of process. Such application to show cause should, subject to any other order of the Court, be dealt with on the papers.

3.    The applicant pay the respondent’s costs on an indemnity basis.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

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1    On 4 November 1999 the applicant, Trevor Kingsley Ferdinands, was convicted of one count of assaulting an inferior contrary to s 34(1) of the Defence Force Discipline Act 1982 (Cth). By a Defence Force Magistrate (DFM), after a review under this Act, a penalty was imposed by way of demotion from Corporal to private.

2    In April 2001, the applicant lodged a notice of appeal out of time against this conviction. The Defence Force Discipline Appeal Tribunal (the Appeal Tribunal), through the then president, Heerey J, refused the application for an extension of time.

3    On 16 August 2002, an appeal from Heerey J’s refusal was dismissed by the Appeal Tribunal.

4    On 9 September 2002, an appeal against the Appeal Tribunal decision was filed in the Federal Court. In February 2003, a five member bench of the Full Court dismissed the appeal. A special leave application was filed by the applicant in March 2003 in relation to that decision of the Federal Court, but was deemed abandoned under the High Court Rules 1952 by October 2003, no step having been taken in furtherance of it or insufficient steps.

5    Meanwhile, on 27 February 2001, the applicant was convicted of an assault in the Adelaide Magistrates Court. The applicant was an army reservist and in his civilian life was a policeman.

6    In November 2001, he was dismissed from the South Australian Police Service. In November 2004, a delegate of the Chief of Army terminated the applicant’s service in the Army Reserve. In 2006, the applicant filed an application in the High Court seeking in substance to challenge the 1999 conviction. It was remitted to the Federal Court. Lander J dismissed the application in December 2008. The applicant sought leave to appeal. In January 2009, Mansfield J dismissed that application for leave. In April 2009, a show cause application was filed.

7    In the High Court Hayne J dismissed the application. An application for leave to appeal was made. This was dismissed in December 2009 by Heydon and Bell JJ. In December 2010, another show cause application was filed in the High Court. It was dismissed by Crennan J in June 2011. Another application for leave to appeal was filed. Once again, Heydon and Bell JJ dismissed the application. In July 2012, another show cause application was filed in the High Court. Once again, Crennan J dismissed it. Bell and Gageler JJ later dismissed an application for leave to appeal. The applicant appealed to the Appeal Tribunal to challenge the DFM’s order of 1999.

8    On 21 March 2013 the Appeal Tribunal, Tracey J as President, White JA as Deputy President and Cowdroy J as Member, refused to extend time and refused applications made orally by the applicant to that tribunal to which I will refer in due course. From these orders, the applicant appeals to this Court on a question of law under s 52 of the Defence Force Discipline Appeals Act 1955 (Cth) (the Act). The above brief outline is more fully described in the primary judgment and in earlier judgments of the Appeal Tribunal and of this Court.

9    On 11 June 2013, the respondent filed an interlocutory application purportedly under the Federal Court Rules 2011 seeking the following orders:

1.    That, pursuant to rr 6.03(2) and (3), this application be determined without notice to any other party and be determined without an oral hearing.

2.    Alternatively, that this application be heard at the hearing of the substantive appeal on 12 August 2013 at 10.15 am.

3.    The proceeding commenced by the notice of appeal from a tribunal under s 52(3) of the Defence Force Discipline Appeals Act 1955 (Cth) and filed by the Applicant on 3 April 2013 be dismissed.

4.    Pursuant to r 6.02, the Applicant be ordered not to start or continue any proceeding in the Court against the Respondent, the Commonwealth of Australia (or any emanation thereof), in relation to the charge for which he was convicted by a Defence Force Magistrate under the Defence Force Discipline Act 1982 (Cth), following a trial between 25 October and 4 November 1999 on the grounds that:

4.1. the Applicant has no reasonable prospect of successfully prosecuting the proceeding, or any further proceeding, for the purposes of r 26.01(a) and/or s 31A(2) of the Federal Court of Australia Act 1976 (Cth)

4.2. the proceeding is, or any further proceeding would be, vexatious within the meaning of Schedule 1 to the Rules, in that:

4.2.1. it is an abuse of process of the Court

4.2.2. the proceeding started for a wrongful purpose

4.2.3. the proceeding stared [sic] or pursued without any reasonable ground

    4.3. the proceeding discloses no reasonable cause of action for the purposes of r 26.01(c).

5.    Further, or in the alternative, that pursuant to rr 6.01(a) and/or 26.21(1), each of the pleadings filed by the Applicant be struck out on the ground or grounds that they

5.1. contain scandalous and/or vexatious material for the purposes or r 6.01 and/or 16.21(1)(a) and (b)

5.2. are likely to cause prejudice, embarrassment or delay in the proceeding for the purposes of r 16.21(1)(d)

5.3. fail to disclose a reasonable cause of action for the purposes of r 16.21(1)(e)

5.4. are otherwise an abuse of the process of the Court for the purposes of r 16.21(1)(f)

6.    Any pleading, or part of a pleading, that is struck out on a ground referred to in 5.1 above is to be removed from the Court’s file pursuant to r 6.01(a) and/or 16.21(2)

7.    That the Applicant pay the Respondent’s costs of, and incidental to, the Proceeding on an indemnity basis.

8.    Any further or other orders that the Court deems fit to make.

10    It is necessary to understand, however, that on or about the day that that application was filed, the Federal Court Rules 2011 were changed to a form in Pt 6 which was designed to support the recent changes to the Federal Court of Australia Act 1976 (Cth) under Pt VAAA, which is entitled ‘Vexatious proceedings’. Under that Part in Div 2, s 37AO deals with the making of vexatious proceedings orders. That section is in the following terms:

37AO Making vexatious proceedings orders

(1)    This section applies if the Court is satisfied:

        (a)    a person has frequently instituted or conducted vexatious proceedings in Australian courts or tribunals; or

        (b)    a person, acting in concert with another person who is subject to a vexatious proceedings order or who is covered by paragraph (a), has instituted or conducted a vexatious proceeding in an Australian court or tribunal.

(2)    The Court may make any or all of the following orders:

        (a)    an order staying or dismissing all or part of any proceedings in the Court already instituted by the person;

        (b)    an order prohibiting the person from instituting proceedings, or proceedings of a particular type, in the Court;

        (c)    any other order the Court considers appropriate in relation to the person.

Note:    Examples of an order under paragraph (c) are an order directing that the person may only file documents by mail, an order to give security for costs and an order for costs.

(3)    The Court may make a vexatious proceedings order on its own initiative or on the application of any of the following:

        (a)    the Attorney-General of the Commonwealth or of a State or Territory;

        (b)    the Registrar of the Court;

        (c)    a person against whom another person has instituted or conducted a vexatious proceeding;

        (d)    a person who has a sufficient interest in the matter.

(4)    The Court must not make a vexatious proceedings order in relation to a person without hearing the person or giving the person an opportunity of being heard.

(5)    An order made under paragraph (2)(a) or (b) is a final order.

(6)    For the purposes of subsection (1), the Court may have regard to:

        (a)    proceedings instituted (or attempted to be instituted) or conducted in any Australian court or tribunal; and

        (b)    orders made by any Australian court or tribunal; and

        (c)    the person’s overall conduct in proceedings conducted in any Australian court or tribunal (including the person’s compliance with orders made by that court or tribunal);

        including proceedings instituted (or attempted to be instituted) or conducted, and orders made, before the commencement of this section.

11    It is to be noted that under subsection (2), the Court may make any or all of the following orders: “an order prohibiting the person from instituting proceedings, or proceedings of a particular type, in the Court”. That is to be distinguished from the old r 6.02 which was in the following terms:

6.02 Vexatious proceedings

If a person starts a vexatious proceeding against another person in the Court, the respondent, the Attorney-General of the Commonwealth or of a State or Territory, the Registrar or an interested person may apply to the Court for an order that the person must not continue the proceeding or start or continue any other proceeding in the Court, against that person or any other person, without the leave of the Court.

Note 1: Interested person and vexatious proceeding are defined in the Dictionary.

Note 2: The Court may exercise this power on its own initiative – see rule 1.40.

12    It is to be noted that that rule concluded with the words, “without the leave of the Court.” An application was made at the conclusion of the applicant’s submissions to amend the orders sought in the interlocutory application to remove the words and numbers pursuant to r 6.02 at the commencement of order 4 sought in the application to make the order concord or conform with the current form of s 37AO.

13    For the reasons that I will deal with in a moment, for myself I would not make an order under s 37AO, but would make an order to protect the processes of this Court in a form that would achieve a similar result. The respondent filed an affidavit of Mr Rodger Prince, a solicitor in the Australian Government Solicitor, in support of the interlocutory application. That affidavit set out in detail the history of these proceedings which I have only briefly identified. Under s 52 of the Act there is an appeal to this Court from the Appeal Tribunal on a question of law. The grounds of the appeal are contained in the documents filed by Mr Ferdinands and are in the following terms:

1.    The Tribunal had a duty and responsibility to verify all aspects of the respondent’s case and it failed to verify anything and refused to verify evidentiary materials suppressed from appeals court actually existed and what role they would play in changing the verdict from guilty to not guilty in a 1999 Defence Force magistrate’s (DFM) trial undertaken by the respondent. The remarkable and evolving journey of this case took a spectacular turn at the Tribunal and that new version of critical events must be explored. The Tribunal did not provide logical reasons why the rules of evidence did not apply to this case or why evidentiary materials required for a successful appeal were withheld from the court from 1999 to 2013.

2.    The Tribunal made a catastrophic error by going off on a tangent and not understanding the key principle of discovery and disclosure, namely that all evidence and information within reason, must be discovered and disclosed to the appellant and at the same time evidence and information must disclosed and discovered to the court, so the court can make the best decision which is the right decision based on all the facts laid out before it, so as to prevent a serious miscarriage of justice, on the face of the public record. Thus, any attempt to obscure or conceal information from the court simply means the appeals process from 1999 to 2013 is flawed and inaccurate. There appears to be an obligation to produce derived by law, and in law.

3.    The Tribunal erred by not demanding that discovery and disclosure of all materials in this case held by the respondent including all evidence and information was passed onto the appellant for his lawful and proper defence of the verdict by the Defence Force magistrate in the Federal Court of Australia appeals. There appears to be an exercise of original jurisdiction in a hearing de novo as to why the appeal has been thwarted and hindered for 693 weeks (not 6 days or 69 days or 693 days by 693 weeks!) and this should have involved oral evidence from the respondent with intrinsic cross-examination but the respondent did not attend the hearings and his legal counsel provided no answers to the court as to his absence. The respondent had to give reasons in law why four (4) sets of crucial documents not tendered and why eleven (11) key witnesses for the appellant were not called. It appears the sham undertaken by the respondent has the blessings of the Tribunal.

4.    The Tribunal erred in thinking the case was an appeal and somehow out of time to be filed when in fact it is an original application based on fraud and the appellant did alert the Tribunal that the rules and laws of the court have not been applied to the appellant.

5.    The Tribunal erred in not properly concluding by the trends of the case, namely extended suppression of materials that the respondent has engaged in a mock and vexatious prosecution and seeks to conceal the truth and evidence from the Australian law courts. It failed to measure accurately the face of the public record.

6.    The Tribunal erred in its refusal to impose any demands with regards to the case of abuse of process in the appeal process by the respondent and should have justly and rightly ordered the respondent to comply with the rules of the court and to hand over all evidence in further discovery and disclosure to determine the truth of issues of this case including racism and fraud.

7.    The Tribunal erred in not issuing summons for Chief of Army, Army prosecutor Lieutenant Colonel Gary Hevey, defence counsel Wing Commander David McLeod, Defence Force magistrate Neville Morecombe QC and Warrant Officer Michael Heseltine for prejudicial conduct between 20 January 1999 to 1 February 2013 under s. 60(1) of the Defence Force Discipline Act 1982 (Cth) (DFDA).

8.    The Tribunal erred in not issuing summons for Warrant Officer Michael Heseltine for providing false evidence and statements between 20 January 1999 to 1 December 1999 under s. 61(3) of the DFDA 1982.

9.    The Tribunal erred in the understanding the principles of frivolous and vexatiousness in that the appellant if innocent in 1999 and there is evidence to prove such innocence, yet the Tribunal failed to demand that evidence and refused to view that evidence. The Tribunal was told that the respondent has simply made up the allegations and invented stories to cause maximum harm, detriment and injury to the appellant but refused to do anything about it.

10.    The Tribunal erred in the understanding the nature of abuse of process, and that it was the persons named in para. (7) and (8) potentially may have engaged in the abuse of process and with deliberate knowledge and intent misled the court and rigged a prosecution, and hat must be explored at courts martial of the persons named in para. (7).

11.    The Tribunal erred in not justly applying the reason and logic of s.5 and s.10 of the Racial Discrimination Act 1975 (Cth) (RDA) and how such lawful processes such as court’s processes of issuing summonses and convening court rooms can be manipulated and abused in indirect and completely concealed violation of s.5 and s.10 of the RDA.

12.    At all times, the independence of the Tribunal must be reflected in a reliable, consistent, independent and impartial way, and the Tribunal must listen attentively and objectively to argument and reconsider the issues of hollow witnesses, sham trial and sham appeals process and any elements of fraud otherwise its own judgment will be reduce to junk status.

13.    The Tribunal was not restricted, hamstrung or contained from exploring using limited and special powers all documents that constituted fresh evidence and all other documents that constituted new evidence. The Tribunal has caused greater difficulties by not enabling all powers of the court to treat the matter as an original application to the failed and explosive appeals hearings instead of a hearing de novo to the DFM trial.

14.    The Tribunal erred in not seeking new inquiry by making its own judicial orders as to a new and fresh Board of Inquiry when alerted to the fact that all superior appellate court judgments from 1999 to 2013 in the matter of Ferdinands v Chief of Army were forgeries. The dismissal by discharge of a soldier from the Australian Army is subject to review by the courts and is not specified in legislation as to appeal rights if the respondent has done certain acts or omissions that makes that dismissal or discharge unlawful, illegal, wrongful, fraudulent, misrepresented, unjust or harsh thus the Tribunal had to do something and take control to end the assertions and allegations of fraud or wrongdoing in the dismissal by discharge.

15.    In matters of allegations of fraud the court is not given any guidance as to extension of time and the court when alerted to any allegations of fraud whatsoever in any case no matter how old or fresh, or how weak or strong shall, in the interests of justice, reopen that case to set the face of the public record right, thus the Tribunal when deciding whether to approve extension of time had to exercise its powers in a just and right manner in the interests of justice but it failed to do so causing a denial of natural justice.

16.    The competence of any tribunal or court house is based mainly on its duty of care, precision to interpret data and information correctly, and protection of the rules of the court, not its ‘I couldn’t care less’ attitude thus control of information is not a private duty by independent judicial officers but a public duty because no one wants to see an innocent man convicted of offences or crimes he had no prior knowledge of. The Tribunal was put to the test and failed as there were no achievements, no accomplishments and no deeds done to force the respondent to abide by the rules of the court.

17.    The allegation nor suggestion that the superior appellate courts are in fear and dread of the respondent and his friends is absurd, and likewise the proposition that an independent court can fix something that cannot be fixed is baseless: a court of competent jurisdiction must act at all times to keep the wheels of justice turning, and the court must do something positive no matter how small to keep open the narrow pathway of hope for the wrongly accused.

18.    The Tribunal failed to see that the respondent laid a trap for the judicial officers of the Australia law courts and that trap was a sham prosecution to which all weak minded judicial officers are bound to follow the final arguments and judgment of the Defence Force magistrate Neville Morecombe QC. But after detailed and close observation the DFM’s judgment is flawed and inconsistent. In the end, the Tribunal has no strength and its final judgment lacks the necessary depth to articulate the essentials of fighting process corruption and racism manifested in the respondent. Any Tribunal that allows itself to be manipulated is not incompetent rather it is shameful and disgraceful.

19.    In the end, the Tribunal did not know the difference between friends of justice from an enemy of justice: it did now know the difference between a sword and a shield; it did not know the difference between an unshakable alibi and a no case to answer.

20.    Immediate relief is sought from this Honourable Court as to the bias by the Tribunal; bias in the sense of sheer unfairness and utter unreasonableness by its steadfast refusal to consider or evaluate any unprofessional conduct by the legal practitioners in the appeals process from 1999 to 2012 (the allegation that superior appellate court all judgments are forgeries). The Tribunal was informed numerous times the appellant had no prior knowledge of the charge 2 events along with many other yet somehow the appellant is charged and convicted of something that is deliberate fiction and unrecorded in medical and administrative records.

21.    Immediate relief is sought from this Honourable Court as to the bias by the Tribunal: the potential falsehood and prevarication by the respondent in the original two charges and this conduct has caused undue and unnecessary delay in the appellant’s return to work. To avoid the allegation of bias as asserted the Tribunal had to do something different; what was different from 1999 to 2013 in the appeals process was the judicial orders to release all materials, information and evidence in the Notice of Alibi and declare the 1999 and 2013 appeal process a sham based exclusively new evidence/fresh evidence obtained and, on the silence for 693 weeks (not 6 days or 69 days or 693 days but 693 weeks!) that infers fraud including the inexplicably delay of 693 weeks infers guilt of the respondent. The Tribunal was informed numerous times the appellant had no case to answer but the respondent made up a case in an act of retaliation and retribution.

14    These grounds of appeal do not coherently identify any question of law. In substance, what is sought is another challenge to a conviction made 14 years ago in relation to which an application for an extension of time within which to appeal has already been refused. That challenge is based on the challenge to the testimony of witnesses given before the DFM – the relevant witnesses being believed and the applicant’s evidence being found to be less than persuasive. The notice of appeal does not disclose a question of law, and on that basis it is incompetent. The reasons of the Appeal Tribunal for making the orders that it did concerned a number of topics including the question as to whether it should give, pursuant to the application of the applicant, an extension of time within which to appeal.

15    Before turning to the Appeal Tribunal’s reasons, it is sufficient to say at this point that the history of the matter as detailed in the affidavit of Mr Prince discloses the repeated attempts by the applicant to challenge the 1999 conviction after the exhaustion of the legal remedies under the Act. At the hearing before the Appeal Tribunal, the applicant made the oral application set out in [2] as follows:

In his oral submissions before the Tribunal the applicant maintained that the Tribunal’s jurisdiction to grant him the relief that he now seeks could be sourced in its original jurisdiction. He contended that the charges brought against him were racially motivated; and since the Tribunal has no jurisdiction to entertain such a complaint the Tribunal should refer the case to a Full Court of the Federal Court. He further argued that because the circumstances under which he came to be charged were deeply flawed and have been covered up, and continue to be covered up to the highest level, the Tribunal should undertake a wide-ranging inquiry into those matters. The applicant also asked the Tribunal to charge named persons with criminal misconduct.

16    The applicant sought, in effect, to ventilate complaints by reference to what he saw as the original jurisdiction of the Appeal Tribunal. He also demanded the presence of persons, pursuant to charges for criminal misconduct, and the production of documents said to have been fraudulently withheld.

17    It should be noted that at the same time as claiming that the statutory appeal was some form of original jurisdiction, he sought an extension of time in which to seek leave to appeal. The Appeal Tribunal correctly held that it was not exercising original jurisdiction, but was exercising statutory appellate jurisdiction. But it held that it had power to deal with further evidence should a proper basis for the calling or requiring of it be made. The question of original jurisdiction was dealt with from paras [44] to [53] of the Appeal Tribunal’s reasons as follows:

44    The Tribunal’s jurisdiction is contained in the DFDA Act, which establishes the Tribunal and provides in Part III that a convicted person, who is defined in s 4 to be a person who has been convicted by a court martial or a Defence Force Magistrate, may appeal to the Tribunal against their conviction on a question of law and/or, with leave, on a question of fact.

45    The powers of the Tribunal in relation to appeals are set out in s 23. Section 23(2) provides, relevantly, for the Tribunal to receive new evidence on what can conveniently be described as “the usual grounds” reflecting the criteria in Langdale v Danby [1982] 3 All ER 129; [1982] 1 WLR 1123 at 1133. The provision concludes that the Tribunal:

“… shall receive and consider that evidence and, if it appears to the Tribunal that the conviction … cannot be supported having regard to that evidence, it shall allow the appeal and quash the conviction …”.

It may well be that the applicant had this provision in mind when referring to the original jurisdiction although he made no reference to it.

46    Where the Tribunal quashes a conviction in respect to a service offence the Tribunal may “if it considers that in the interests of justice the person should be tried again”, order a new trial of the person for the offence: see s 24.

47    By s 26(1) the Tribunal has the power to substitute a conviction for an available alternative offence if it quashes a conviction after an appeal.

48    The Tribunal is given incidental powers, for example, by s 31(1)(b) to summon a person who would have been a compellable witness at the trial to attend the Tribunal and to give evidence and produce documents, books or writings in the person’s custody or control; by s 31(1)(c), to receive the evidence of any witness who is a competent but not compellable witness; and, by s 31(1)(d):

“where a question arising on an appeal involves prolonged examination of documents or accounts, or a scientific or local investigation, being an examination or investigation which cannot, in the opinion of the Tribunal, conveniently be conducted before the Tribunal – order the reference of the question for inquiry and report to a special commissioner appointed by the Tribunal and act upon the report of the commissioner so far as the Tribunal thinks fit to adopt it.”

49    The Tribunal may, pursuant to s 31(1)(e), appoint a person with special knowledge to act as an assessor to the Tribunal where special knowledge is required for the proper determination of an appeal.

50    By s 36 the Tribunal may obtain reports to assist in the determination of appeals. If the Tribunal thinks it necessary or expedient in the interests of justice to do so, it may direct such steps to be taken:

“ … as are necessary to obtain from the person who was the judge advocate of the court martial or from the Defence Force magistrate, a report giving his or her opinion upon the case, or upon a point arising in the case, or containing a statement as to any facts the ascertainment of which appears to the Tribunal to be material for the purpose of the determination of the appeal”.

51    As is apparent, all of these provisions relate to powers which may be exercised to better facilitate the hearing and determination of an appeal brought before the Tribunal, not as an exercise in original jurisdiction.

52    The powers of the Tribunal which the applicant seeks to invoke in what he has described as its “original jurisdiction” are aspects of its appellate jurisdiction. The applicant has not identified any fact, matter or circumstance which would advance his application for an extension of time were any of these processes to be put in train, nor that could be reasonably expected to impact upon the merits of any appeal were an extension of time to be granted.

53    Accordingly, the applicant’s oral applications must be refused.

18    It is to be noted that at para [52], the Appeal Tribunal said, in effect, that although it was exercising appellate jurisdiction and not original jurisdiction, the applicant simply had not identified any fact, matter or circumstance which would advance his application for an extension of time. In my view, the reasons of the Appeal Tribunal in paras [44] to [52] are plainly correct. The applicant also sought a referral of a question of law to the Federal Court. This was dealt with in paras [54] to [58] of the Appeal Tribunal’s reasons as follows:

(ii)     Referral of question of law to Full Court of the Federal Court

54    The applicant has also sought an order from the Tribunal that it refer a question of law to the Federal Court relating to a breach of the Racial Discrimination Act 1975 (Cth).

55    By s 51 of the DFDA Act the Tribunal may of its own motion or at the request of an appellant, Chief of the Defence Force, or a service chief:

“… refer a question of law arising in a proceeding before the Tribunal, not being a proceeding before a single member exercising the powers of the Tribunal, to the Federal Court of Australia for decision.”

The jurisdiction of the Federal Court to hear and determine a question of law referred to it by the Tribunal is exercised by the Full Court of the Federal Court. What is important to note is that the question of law which may be referred is a question “arising in a proceeding before the Tribunal”.

56    Proceedings in the Tribunal are appellate proceedings brought by a person convicted by a court martial or DFM in respect of that conviction. Sections 52 and 53 of the DFDA Act refer to the circumstances in which an appeal may be taken from a decision of the Tribunal to the Federal Court of Australia.

57    The question of law that the applicant wishes to have referred to the Full Court of the Federal Court is not a question of law that arises in these proceedings.

58    This application must be refused.

19    In my view, no error has been shown at all in the approach identified in those paragraphs.

20    The question of the application to extend time for the filing and serving of a notice of appeal against orders made and a conviction made before the DFM 14 years earlier was set out in paras [59] through to [68] as follows:

(iii)    Application to extend time

59    Although the applicant tended to distance himself from this application in his oral submissions, it is proposed to consider the application based on the applicant’s written materials.

60    The respondent contends that the Tribunal must be satisfied that it has jurisdiction to hear the application for an extension of time. Grierson v The King [1938] HCA 45; (1938) 60 CLR 431 concluded that since the appellate jurisdiction of a court is statutory and where the statute provides for the grounds, the procedure and the duty of the body hearing the appeal, a second appeal or application for leave to appeal which has been dismissed on the merits may not be reopened after a final determination. Part III of the DFDA Act concerns appeals to the Tribunal. It provides in s 23 the grounds upon which a conviction may be quashed and other matters pertaining to the appeal, while s 21 relates to time limits for bringing an appeal. Those provisions are not relevantly different from those under consideration in Grierson.

61    In Postiglione v The Queen [1997] HCA 26; (1997) 189 CLR 295 the High Court affirmed the principle in Grierson that where orders have been perfected dismissing an appeal against conviction heard on the merits, no second appeal may be brought. In that case there had been a number of procedural irregularities about the orders which allowed a second appeal to be entertained.

62    Not only does Part III of the DFDA Act on its proper construction not permit a second appeal in respect of the same subject matter, any subsequent such attempted appeal or application would be an abuse of the Tribunal’s process where nothing new is raised which would give rise to a perception that there has been a miscarriage of justice.

63    Before the applicant can prosecute any appeal or leave to appeal in respect of the proceedings before the DFM in 1999 leading to his conviction he must obtain an order of this Tribunal extending the time within which to appeal. He has already brought an application to extend time which has been refused twice in this Tribunal and that refusal has been the subject of an appeal to the Full Court of the Federal Court and was the subject of a special leave application. Inherent in the applications made for extensions of time was the requirement for the Tribunal to consider whether there was any merit in the substance of the applicant’s claims. On each occasion the Tribunal found that the applicant had disclosed no merit.

64    The appeals to this Tribunal and to the Full Federal Court were determined on their merits and the orders dismissing those appeals have been perfected. It is important to keep in mind that the appeal which the applicant wishes to have heard cannot be commenced without an extension of time and that has been refused, successively. Accordingly, this Tribunal has no jurisdiction to entertain a further application for an extension of time.

65    Even if there were any jurisdictional capacity to do so, the application falls within the legal description of “frivolous and vexatious”; nothing new has emerged and certainly nothing to suggest that a miscarriage of justice has occurred. Furthermore, no merit can be discerned in any appeal in respect to the DFM proceedings.

66    A further observation may be made. The applicant has made serious allegations of misconduct and corruption against the prosecutor and defence counsel and the Chief of Army in relation to the prosecution of charges against him. In his written submissions those allegations, either of corruption or foolishness in failing to detect and/or deal with corruption, have been made against this Tribunal and members of the Federal Court. They have tended to be disregarded in the course of the many hearings but such abuse ought not be permitted to continue to be received.

67    Apart from the applicant’s increasingly strident assertions that he is the victim of racially inspired and corruptly fabricated charges of assault, he has offered no further evidence than that which was advanced by him at his trial, which continued over several days and in respect of which he was legally represented. He has not explained in any effective way, on any occasion on which he has sought an extension of time, his failure to abide by the statutory time limits. The applicant, as much as any other citizen, is bound to adhere to the rules or explain why he should not and to confine his assertions within reasonable bounds. He has had opportunities to obtain an extension of time, including seeking special leave from the High Court. Save for the latter which was dismissed for want of prosecution, those applications have been heard and determined on their merits and refused.

68    The application to extend time for seeking leave to appeal should be dismissed.

21    A number of things can be said about those reasons. They identify, first, that there had already been an application for an extension of time and further such applications are an abuse of process. Secondly, no coherent reason was identified in any material before the Appeal Tribunal to explain the delay. Thirdly, the Appeal Tribunal referred to the increasingly strident assertions of the applicant which were repeated today in the assertions without evidence of the gravest impropriety of those who had a connection with the trial before the DFM. The conclusions of the Appeal Tribunal in relation to an extension of time were, in my view, plainly correct.

22    The history of this matter reveals repeated and dogged applications making the same broad sweeping assertions to revisit a conviction of 14 years standing. The applicant’s submissions reveal no legal basis for either (a) the identification of a proper question of law, or (b) any doubt in the Appeal Tribunal’s decision. The affidavit of Mr Prince amply demonstrates a vexatious character to the appeal and a justification for seeking an order to protect the respondent from further litigation and cost. The Court also has an entitlement to protect its own procedures and proceedings. This is the second occasion in which five judges have been brought to deal with the matter.

23    Sweeping allegations of impropriety and fraud have been made from the bar table. There is no basis that has been identified in the evidence to justify those matters, and this court has power, as I said, to protect its own processes and proceedings. I have already identified earlier the difficulty with the timing of the change of the rules. In my view, some order, however, should be made conforming with the authority of this Court to protect its own procedures.

24    The orders that I would make are:

(1)    The proceeding commenced by the notice of appeal from the Defence Force Discipline Appeal Tribunal under s 52(3) of the Defence Force Discipline Appeals Act 1955 (Cth) and filed by the applicant on 3 April 2013 be dismissed.

(2)    Should the applicant file any proceeding in the Court that is in any way in relation to a charge for which he was convicted by a Defence Force Magistrate under the Defence Force Discipline Act 1982 (Cth) following a trial between 25 October and 4 November 1999, the District Registrar is not to give a return date and is to require the applicant to show cause by filing of submissions and any affidavit as to why the proceeding should not be dismissed as vexatious and an abuse of process. Such application to such show cause should, subject to any other order of the Court, be dealt with on the papers.

25    The material that is in Mr Prince’s affidavit is ample foundation for the order for costs that is sought in the interlocutory application. And the third order I would make would be that:

(3)    The applicant pay the respondent’s costs on an indemnity basis.

NORTH J

26    I would make the same orders for the reasons articulated by the Chief Justice.

BENNETT J

27    I agree.

SIOPIS J

28    I agree.

LOGAN J

29    I agree with the orders proposed by the Chief Justice and with the reasons given for those orders.

Associate:

Dated:    12 August 2013