FEDERAL COURT OF AUSTRALIA Chief of Navy v Angre [2016] FCAFC 171 Appeal from: Angre v Chief of Navy (No 2) [2016] ADFDAT 2 File numbers: NSD 1657 of 2016 NSD 1765 of 2016 Judges: ALLSOP CJ, GRIFFITHS, MORTIMER, PERRY AND GLEESON JJ Date of judgment: 9 December 2016 Catchwords: ADMINISTRATIVE LAW – appeal from a decision of the Defence Force Discipline Appeal Tribunal on a question of law pursuant to s 52(1) of the Defence Force Discipline Appeals Act 1955 (Cth) – meaning of "decision" – whether confined to a final and operative "decision" –whether the considerations in Director-General of Social Services v Chaney [1980] FCA 108; 47 FLR 80 apply to s 52(1) of the Defence Force Discipline Appeals Act 1955 (Cth) –interlocutory evidentiary ruling not a "decision" – appeal dismissed – discretionary refusal to extend time to apply for review under the Administrative Decisions (Judicial Review) Act 1977 (Cth) – discretionary dismissal of application for judicial review under s 39B of the Judiciary Act 1903 (Cth) EVIDENCE – first respondent sought leave to appeal out of time to the Defence Force Discipline Appeal Tribunal against convictions entered by a General Court Martial – first respondent applied to Tribunal for leave to adduce certain evidence on appeal – Tribunal granted leave relying on implied power in s 23(1) of the Defence Force Discipline Appeals Act 1955 (Cth) – whether s 23(2) of the Defence Force Discipline Appeals Act 1955 (Cth) is exhaustive of the Tribunal's power to receive fresh or new evidence Legislation: Administrative Appeals Tribunal Act 1975 (Cth) s 44(1) Administrative Decisions (Judicial Review) Act 1977 (Cth) ss 5, 11, 16 Defence Force Discipline Appeals Act 1955 (Cth) ss 15, 17, 19, 23, 23(1)(c), 23(2), 51, 52 Defence Force Discipline Appeals Regulations 1957 (Cth) reg 24 Judiciary Act 1903 (Cth) s 39B Cases cited: Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue [2009] HCA 41; 239 CLR 27 Australian Broadcasting Tribunal v Bond [1990] HCA 33; 170 CLR 321 Commissioner of Taxation v Cancer and Bowel Research Association [2013] FCAFC 140; 305 ALR 534 Director-General of Social Services v Chaney [1980] FCA 108; 47 FLR 80 DPP v Wise (a pseudonym) [2016] VSCA 173 Hembury v Chief of General Staff [1998] HCA 47; 193 CLR 641 Hunter Valley Developments Pty Ltd v Cohen [1984] FCA 186; 3 FCR 344 Kishore v Tax Practitioners Board [2016] FCA 1328 Master Education Services Pty Ltd v Ketchel [2008] HCA 38; 236 CLR 101 Obeid v The Queen [2016] HCA 9; 90 ALJR 447 R v Abou-Chabake [2004] NSWCCA 356 Date of hearing: 23 November 2016 Registry: New South Wales Division: General Division National Practice Area: Administrative and Constitutional Law and Human Rights Number of paragraphs: 91 Counsel for the Applicant: Mr A Moses SC with Mr B Kaplan Solicitor for the Applicant: HWL Ebsworth Counsel for the First Respondent: Mr G Sirtes SC with Mr M Gracie Solicitor for the First Respondent: Bainbridge Legal Counsel for the Second Respondent: The Second Respondent filed a submitting notice ORDERS NSD 1657 of 2016 NSD 1765 of 2016 BETWEEN: CHIEF OF NAVY Applicant AND: ROHAN MARTIN ANGRE First Respondent DEFENCE FORCE DISCIPLINE APPEAL TRIBUNAL Second Respondent JUDGES: ALLSOP CJ, GRIFFITHS, MORTIMER, PERRY AND GLEESON JJ DATE OF ORDER: 23 November 2016 THE COURT ORDERS THAT: 1. The appeal under s 52 of the Defence Force Discipline Appeals Act 1955 (Cth) be dismissed. 2. The application for an extension of time within which to file and serve an application for an order of review under s 11(1) of the Administrative Decisions (Judicial Review) Act 1977 (Cth) be refused. 3. The application for judicial review under s 39B of the Judiciary Act 1903 (Cth) be dismissed. 4. Reasons to be published in due course. THE COURT NOTES THAT: 1. No orders as to costs are necessary on the basis that the applicant made an undertaking to the Court to pay the first respondent's reasonable costs of the proceedings. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011. REASONS FOR JUDGMENT ALLSOP CJ: 1 Orders were made by the Court on 23 November refusing relief claimed by the applicant. Reasons were to be delivered later. Justice Mortimer has expressed her reasons for joining in the orders. I can explain my reasons for joining in the orders shortly by reference to her Honour's reasons. 2 The reasons of Mortimer J broadly reflect my reasons at the time. First, the decision in Director-General of Social Services v Chaney [1980] FCA 108; 47 FLR 80 governed the position in relation to the Defence Force Discipline Appeals Act 1955 (Cth) (the Act) for the reasons set out in Mortimer J's reasons. Thus the appeal under s 52 was dismissed. Secondly, the discretionary considerations militating against permitting the statutory regime of appeal under the Act to be undermined meant that an extension of time to file and serve an originating application for judicial review under the Administrative Decisions (Judicial Review) Act 1977 (Cth) was refused, and also meant that the application under s 39B of the Judiciary Act 1903 (Cth) was dismissed, as explained in Mortimer J's reasons. 3 One consideration which also weighed in my decision to refuse an extension of time in relation to, and to dismiss, the respective judicial review applications was the hypothetical nature of the relief. There is no certainty whatsoever that the additional evidence will be determinative of the proceedings or the issues in the proceedings. This only highlights the prematurity of the application: that it concerns an issue which may (or may not) be necessary to determine in any appeal, and so is an issue with which it is not necessary to deal now. 4 Whilst it was and is unnecessary therefore to deal with the substantive arguments put on the construction of s 23 of the Act, it is not inappropriate to record my present (and provisional) view that it is difficult to see why s 23(2), as a separate ground of appeal, should be construed as somehow limiting the operation of the Act in facilitating proof of a fact in issue in the matter arising under s 23(1)(c), being whether the conviction was a product of a material irregularity in the course of the proceedings, being the manner in which the guilty plea came forward. I certify that the preceding four (4) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Chief Justice Allsop. Associate: Dated: 9 December 2016 REASONS FOR JUDGMENT GRIFFITHS J: 5 I have had the advantage of reading the draft reasons of Mortimer J. I agree with her Honour's reasons concerning the orders made by the Court on 23 November 2016. I also agree with the observations of the Chief Justice in [3] and [4]. I certify that the preceding one (1) numbered paragraph is a true copy of the Reasons for Judgment herein of the Honourable Justice Griffiths. Associate: Dated: 9 December 2016 REASONS FOR JUDGMENT MORTIMER J: INTRODUCTION 6 These proceedings were heard by the Court in its original jurisdiction constituted by five judges on 23 November 2016. On that day, the Court made orders dismissing the applicant's appeal under s 52 of the Defence Force Discipline Appeals Act 1955 (Cth) (Appeals Act), refusing the application for an extension of time in which to bring a judicial review application under s 11 of the Administrative Decisions (Judicial Review) Act 1977 (Cth) (AD(JR) Act), and dismissing the application for judicial review under s 39B of the Judiciary Act 1903 (Cth). These are my reasons for the making of those orders. BACKGROUND 7 The first respondent, ABMT Angre, has applied to the Defence Force Discipline Appeal Tribunal for leave to appeal and an extension of time to appeal against convictions entered by a General Court Martial on 16 and 22 September 2014. 8 The appeal to this court and associated applications for judicial review concern orders made by the Tribunal on 29 July 2016 in connection with ABMT Angre's appeal to the Tribunal. The Tribunal was constituted by Tracey, Logan and Brereton JJ. By those orders, the Tribunal refused an application by ABMT Angre to amend his grounds of appeal before it, but granted leave to ABMT Angre to adduce certain evidence on his appeal. 9 In these proceedings, the applicant challenges the second order of the Tribunal: namely the order allowing ABMT Angre to adduce certain evidence on the hearing of his appeal. 10 The Tribunal relied for its evidentiary ruling on an implied power in s 23(1) of the Appeals Act. The applicant's contention is that the Tribunal misconstrued s 23(1) and no such implied power exists. The applicant submitted this was the first time the Tribunal had relied on s 23(1) for the admission of evidence on an appeal, as opposed to s 23(2), which the applicant contended was exhaustive of the Tribunal's powers to receive new or fresh evidence. 11 ABMT Angre's application for leave to appeal out of time is scheduled to commence before the Tribunal on 12 December 2016 and these proceedings have been expedited in order to allow the Court to hear and determine them before that date. 12 There is little evidence before the Court about the underlying prosecution and conviction of ABMT Angre. Senior counsel informed the court that the charges against ABMT Angre arose out of an assault. What is apparent from [1]-[10] of the Tribunal's statement of reasons in relation to the orders under challenge is as follows. 13 On 16 and 22 September 2014, what the Tribunal described as "the first Court Martial" convicted ABMT Angre of three charges. He had faced five charges, but had pleaded guilty to three and it was on those three that he was convicted. He did not immediately apply for leave to appeal against these convictions. 14 The question of what punishment should be imposed on ABMT Angre was the subject of hearing and determination before what the Tribunal described as "the second Court Martial". Before that hearing on punishment, ABMT Angre raised a number of preliminary legal points, which were heard over a period of 11 days. That hearing also involved the examination of a number of witnesses, some of whom, it appears, had sworn affidavits which were relied upon. 15 As the Tribunal described it, the thrust of the preliminary legal points raised by ABMT Angre concerned what it described at [4] of its reasons as: 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. 16 The Judge Advocate of the second Court Martial rejected ABMT Angre's preliminary objections. Initially, ABMT Angre sought to appeal from these rulings on his preliminary points. The Tribunal informed him it had no jurisdiction to deal with such an appeal. He then sought and was granted leave to file an amended notice of appeal whereby he sought leave to appeal out of time against his convictions by the first Court Martial. The amended notice of appeal is dated 23 December 2015. The stated grounds of appeal from his convictions are that there was a material irregularity in the proceedings leading to his conviction and that a substantial miscarriage of justice has occurred. Those grounds were particularised, as the Tribunal noted at [6], in a way which "substantially restated the allegations which he had advanced before the Judge Advocate of the second Court Martial". Both grounds in the notice of appeal are contained within s 23(1) of the Appeals Act. ABMT Angre did not rely on the ground contained in s 23(2) of the Appeals Act. 17 The applicant and the first respondent were agreed that the record before the Chief Judge Advocate, sitting as the Judge Advocate of the second Court Martial, as well as the record of the first Court Martial, should be before the Tribunal. However ABMT Angre sought, in addition, to rely on further evidence before the Tribunal. 18 At [8] of its reasons, the Tribunal set out what that evidence was: This evidence falls into a number of broad categories. They are: • The transcript of oral evidence given before the Judge Advocate of the second Court Martial and exhibits tendered in that hearing. • Some short passages from affidavits filed before the preliminary hearing before the Judge Advocate (but which were not read), the substance of which was not given in oral evidence. • Unsworn statements of two service members and an affidavit of a third service member which had been filed in the second Court Martial but not relied on at the preliminary hearing. 19 The applicant objected to the Tribunal receiving that evidence. It was not in dispute that the evidence was new evidence, not fresh evidence: see the explanation of the distinction given in R v Abou-Chabake [2004] NSWCCA 356 at [63]. The applicant contended the evidence ABMT Angre sought leave to introduce could not satisfy the requirements set out in subs 23(2)(a), (b) and (c) of the Appeals Act, and that this was the only power available to the Tribunal. The applicant sought a ruling from the Tribunal on his objection. 20 ABMT Angre's application, and the objection to it, were dealt with by the Tribunal at a hearing on 29 July 2016. ABMT Angre did not press his reliance on the unsworn statements. On the same day, the Tribunal refused ABMT Angre's further application for leave to amend the grounds of appeal and made the following order in relation to the additional evidence sought to be adduced: To the extent that it is necessary, the applicant be granted leave to adduce and rely on before the Tribunal the transcript of the oral evidence given and the exhibits tendered before the Chief Judge Advocate sitting as Judge Advocate to the Court Martial convened to sentence the applicant and the parts of the affidavits as follows: (a) The affidavit of the applicant sworn on 17 March 2015: the third last sentence of paragraph 70 and paragraph 76. (b) The affidavit of the applicant sworn on 8 June 2015: paragraphs 4 and 8. (c) The affidavit of LEUT Ross Glover sworn on 7 July 2015: paragraphs 29(b), 31 and 34. 21 As I have noted, the hearing of ABMT Angre's application for leave to appeal out of time from his convictions is scheduled to commence on 12 December 2016. The applicant does not contend that the hearing date should be vacated. In other words, the substantive matters on appeal raised by ABMT Angre before the Tribunal are shortly to be heard and determined. 22 Senior counsel for the applicant conceded in oral argument that it was not possible to know how, or whether, the new evidence will be used in the Tribunal's decision. Senior counsel conceded he could not submit the evidence would be necessary, or central, to the Tribunal's final decision. He submitted the question raised in these proceedings is one of power, in relation to s 23(1) of the Appeals Act. He informed the Court that ABMT Angre's submissions for the appeal hearing, now filed with the Tribunal, refer to and rely on the evidence the subject of the Tribunal's ruling. 23 Initially in this Court, the applicant filed only an appeal under s 52 of the Appeals Act in relation to the Tribunal's evidentiary ruling. During case management of that appeal, the Court raised the question whether the Full Court's decision in Director-General of Social Services v Chaney [1980] FCA 108; 47 FLR 80 applied to s 52 of the Appeals Act. The parties accepted this issue needed consideration. Consequently, and as an alternative process, the applicant then filed judicial review applications invoking this Court's jurisdiction under s 39B of the Judiciary Act and under s 5 of the AD(JR) Act. The applicant required an extension of time in relation to the AD(JR) Act application. 24 The application of Chaney to s 52 of the Appeals Act, and questions of refusal of relief on a discretionary basis in the judicial review applications for reasons similar to those set out by the Full Court in Chaney, were addressed by the parties in their written submissions and by senior counsel for the applicant in oral submissions. 25 The Court also heard argument by senior counsel on the merits of the applicant's contention that the Tribunal erred in ruling that new evidence could be admitted under s 23(1) of the Appeals Act for the purposes of ABMT Angre's appeal. 26 In my opinion, it is appropriate to deal with these proceedings on the basis that the principles in Chaney apply to s 52 of the Appeals Act, and that relief should be refused on a discretionary basis in the judicial review applications. RELEVANT STATUTORY PROVISIONS 27 Section 6 of the Appeals Act provides: Defence Force Discipline Appeal Tribunal For the purposes of this Act, there shall be a Tribunal to be known as the Defence Force Discipline Appeal Tribunal. 28 Section 15 of the Appeals Act provides: Exercise of powers of Tribunal (1) Except as otherwise provided in this Act, the powers of the Tribunal shall not be exercised: (a) except by an uneven number of members, being a number of not less than three; and (b) unless at least one of those members is the President, the Deputy President or a member who is qualified to be appointed as President. (2) Where an appeal, or a matter preliminary or incidental to an appeal, is to be heard in a place outside Australia, the President may, if he or she thinks fit, direct that paragraph (b) of the last preceding subsection shall not apply in relation to the appeal or matter. 29 Section 17 of the Appeals Act provides: Single member may determine certain matters (1) The powers of the Tribunal may be exercised by a single member with respect to: (a) the granting of leave to appeal to the Tribunal against a conviction or a prescribed acquittal; (b) the extension of the period within which, under this Act, an appeal or an application for leave to appeal to the Tribunal is required to be lodged; (c) the granting of legal aid to an appellant under the regulations; (d) the granting of leave to an appellant to be present at the hearing of an appeal or matter under this Act; (e) the allowance of remuneration and allowances under subsection (2) of section 34; (f) the giving of a direction under subsection (1) of section 37 for the payment of a sum or sums by Australia to an appellant or the making of an order under subsection (3) of that section for the payment of costs; or (g) a prescribed matter of practice or procedure. (2) A person affected by a decision of a single member of the Tribunal given with respect to a matter referred to in paragraph (a), (b), (c) or (d) of the last preceding subsection may, within the prescribed period, appeal to the Tribunal constituted in accordance with section 15 from that decision, and the Tribunal so constituted shall hear and determine the matter. 30 Section 20 of the Appeals Act provides: Appeals to Tribunal (1) Subject to this Act, a convicted person or a prescribed acquitted person may appeal to the Tribunal against his or her conviction or his or her prescribed acquittal but an appeal on a ground that is not a question of law may not be brought except by leave of the Tribunal. (2) An appeal does not lie to the Tribunal against a prescribed acquittal if, in the proceedings before the court martial or the Defence Force magistrate that resulted in the prescribed acquittal, evidence of the unsoundness of mind of the prescribed acquitted person was adduced by the defence. 31 Section 23 of the Appeals Act provides: Quashing of conviction etc. (1) Subject to subsection (5), where in an appeal it appears to the Tribunal: (a) that the conviction or the prescribed acquittal is unreasonable, or cannot be supported, having regard to the evidence; (b) that, as a result of a wrong decision on a question of law, or of mixed law and fact, the conviction or the prescribed acquittal was wrong in law and that a substantial miscarriage of justice has occurred; (c) that there was a material irregularity in the course of the proceedings before the court martial or the Defence Force magistrate and that a substantial miscarriage of justice has occurred; or (d) that, in all the circumstances of the case, the conviction or the prescribed acquittal is unsafe or unsatisfactory; it shall allow the appeal and quash the conviction or the prescribed acquittal. (2) Subject to subsection (5), where in an appeal it appears to the Tribunal that there is evidence that: (a) was not reasonably available during the proceedings before the court martial or the Defence Force magistrate; (b) is likely to be credible; and (c) would have been admissible in the proceedings before the court martial or the Defence Force magistrate; it shall receive and consider that evidence and, if it appears to the Tribunal that the conviction or the prescribed acquittal cannot be supported having regard to that evidence, it shall allow the appeal and quash the conviction or the prescribed acquittal. (3) Subject to subsection (5), where in an appeal against a conviction it appears to the Tribunal that, at the time of the act or omission the unsoundness of mind as not to be responsible, in accordance with law, for that act or omission, the Tribunal shall: (a) allow the appeal and quash the conviction; (b) substitute for the conviction so quashed an acquittal on the ground of unsoundness of mind; and (c) direct that the person be kept in strict custody until the pleasure of the Governor-General is known. (4) Where in an appeal it appears to the Tribunal that the court martial or the Defence Force magistrate should have found that the appellant, by reason of unsoundness of mind, was not able to understand the proceedings against him or her and accordingly was unfit to stand trial, the Tribunal shall allow the appeal, quash the conviction or prescribed acquittal and direct that the appellant be kept in strict custody until the pleasure of the Governor-General is known. (5) The Tribunal shall not quash a conviction under subsection (3) or (4) if there are grounds for quashing the conviction under subsection (1) or (2). (6) Section 194 of the Defence Force Discipline Act 1982 applies to a direction under subsection (3) or (4) of this section as if that direction were a direction to which that section applied. 32 Section 51 of the Appeals Act provides: Reference of questions of law to Federal Court of Australia (1) The Tribunal may, of its own motion or at the request of appellant or 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. (2) The Federal Court of Australia has jurisdiction to hear and determine a question of law referred to it under this section, and that jurisdiction shall be exercised by that Court constituted as a Full Court. (3) Where a question of law involved in a decision in respect of a proceeding before the Tribunal has been referred to the Federal Court of Australia under this section, the Tribunal shall not, in that proceeding: (a) give a decision to which the question is relevant while the reference is pending; or (b) proceed in a manner, or make a decision, that is inconsistent with the opinion of the Federal Court of Australia on the question. 33 Section 52 of the Appeals Act provides: Appeal to Federal Court of Australia from decisions of the Tribunal (1) An appellant or Chief of the Defence Force or a service chief may appeal to the Federal Court of Australia on a question of law involved in a decision of the Tribunal in respect of an appeal under this Act, not being a decision given by a single member exercising the powers of the Tribunal. (2) An appeal under subsection (1) shall be instituted not later than the twenty-eighth day after the day on which a copy of a document setting out the terms of the decision of the Tribunal is furnished to the person or within such further time as the Federal Court of Australia (whether before or after the expiration of that day) allows. (3) The Federal Court of Australia has jurisdiction to hear and determine matters arising under this section with respect to which appeals are instituted in that Court in accordance with this section and that jurisdiction shall be exercised by that Court constituted as a Full Court. (4) The Federal Court of Australia shall hear and determine the appeal and may make such order as it thinks appropriate by reason of its decision. (5) Without limiting by implication the generality of subsection (4), the orders that may be made by the Federal Court of Australia on an appeal include: (a) an order affirming or setting aside the decision of the Tribunal; (b) an order remitting the case to be heard and decided again by the Tribunal in accordance with the directions of the Court; (c) an order granting a new trial by a court martial or a Defence Force magistrate; and (d) where the Court sets aside a decision of the Tribunal quashing a conviction or quashing a prescribed acquittal an order reinstating the conviction or the prescribed acquittal, as the case may be. 34 At 29 August 2016, reg 24 of the Defence Force Discipline Appeals Regulations 1957 (Cth) provided: Procedure following decision on appeal, application or matter (1) When the Tribunal makes its decision on a question of law, an appeal, an application or a matter, the Tribunal must, as soon as practicable after making the decision, prepare a written statement that sets out the decision of the Tribunal on the question of law, appeal, application or matter. (2) The Tribunal must, as soon as practicable after preparing a written statement under subregulation (1), provide a copy of the statement to the Registrar. (3) The Registrar must, as soon as practicable after receiving a written statement under subregulation (2), give to the Registrar of Military Justice: (a) a copy of the statement; and (b) a copy of the record of proceeding of the Tribunal on the question of law, appeal, application or matter. RESOLUTION 35 I address first the question whether any extensions of time are required and, if so, whether they should be granted. Thereafter, I explain why in my opinion the principles set out by a Full Court of this Court in Chaney are applicable to the terms of s 52 of the Appeals Act. From this flows my conclusion that, since Chaney is applicable, it would not be appropriate to allow those principles to be defeated by permitting a challenge to the Tribunal's evidentiary ruling to be aired through judicial review applications prior to the final determination of the appeal proceeding before the Tribunal in which the ruling was made. The usual approach taken by this Court to this issue of discretion in such circumstances should apply. There is no justifiable basis in the present proceedings to permit the fragmentation of the proceedings before the Tribunal through judicial review. Extensions of time 36 Two issues concerning extension of time are raised by these proceedings. The first concerns the operation of the time limit in s 52 of the Appeals Act, and the second concerns the judicial review application under the AD(JR) Act. Extension of time to bring appeal 37 Section 52(2) of the Appeals Act provides that an appeal from a decision of the Tribunal must be instituted not later than 28 days after the day on which "a copy of a document setting out the terms of the decision of the Tribunal is furnished to the person", or within such further time as this Court permits. 38 When read with reg 24 of the Defence Force Discipline Appeals Regulations 1957 (which required the Tribunal to prepare a "written statement that sets out the decision of the Tribunal on the … matter"), the "document setting out the terms of the decision of the Tribunal" mentioned in s 52(2) should be construed as referring to Tribunal's reasons for decision, and not to the orders pronounced by the Tribunal on 29 July 2016. 39 It is not disputed that the Tribunal's statement of reasons was furnished to the applicant and the first respondent by email from the Associate to the President of the Tribunal, Tracey J, on 29 August 2016. It is also not disputed that the applicant filed his notice of appeal on 26 September 2016, being the 28th day after the statement was provided. 40 The notice of appeal was filed within time and no extension is required. 41 Even if an extension of time under s 52 of the Appeals Act is not required, the applicant does require an extension of time under the AD(JR) Act. Extension of time to make an application for review under the AD(JR) Act 42 In considering whether to extend the time in which a notice of appeal may be filed, the Court ordinarily takes into account any explanation for the delay, any prejudice to the respondent or other parties which might be occasioned if the extension of time were granted, and the prospects of success of the appeal if an extension of time were to be granted. These considerations were set out in Hunter Valley Developments Pty Ltd v Cohen [1984] FCA 186; 3 FCR 344 at 348-49 per Wilcox J and have been applied consistently in this Court. This list is not exhaustive: the Court has a broad discretion and in a given case there may be other factors specific to the circumstances of a particular party, or a particular proceeding, which should be considered. 43 Here, the applicant's submissions do not specifically address any extension of time under the AD(JR) Act. However, in his submissions on whether an extension of time is needed for the purposes of the s 52 appeal, the applicant contends the issues raised in the appeal are of "public importance and wide import". That may or may not be the case: that kind of characterisation of the applicant's contentions about subss 23(1) and 23(2) should await any substantive determination of ABMT Angre's appeal to the Tribunal, so that the Tribunal's evidentiary ruling can be placed in its proper context. My conclusions do not preclude the applicant from making his contentions about subss 23(1) and 23(2) in any eventual appeal from the final decision of the Tribunal. Thus, any public interest in the determination of the Tribunal's power under those provisions is not frustrated by the refusal to grant an extension of time, but rather can be assessed in its full context. If, by reason of the decision of the Tribunal on ABMT Angre's appeal, there is no basis for the applicant to avail himself of appeal rights under s 52 of the Appeals Act, then the issues of alleged public importance and wide import should await another, appropriate case where those issues are material to the final decision. I am not persuaded by the applicant's reliance on issues of public importance as a basis for extending time. 44 Rather, given my conclusions on the application of the principles in Chaney, there should be no extension of time under the AD(JR) Act because there would be no utility in such a grant in circumstances where the Court is of the view that any application for judicial review of the Tribunal's evidence ruling should be dismissed in an exercise of the Court's discretion. 45 As I explain below, this Court's supervisory jurisdiction on judicial review may be important in some circumstances where there is a statutory appeal on a question of law limited by the principles in Chaney, yet a person's rights and interests are affected in a way which requires immediate attention in the Court's supervisory jurisdiction. That is not this case. 46 The application for extension of time should be refused. Whether the decision in Chaney applies to s 52 of the Appeals Act 47 The Full Court's decision in Chaney was recently summarised, and explained, by Robertson J in Kishore v Tax Practitioners Board [2016] FCA 1328. I cannot improve on his Honour's summary and analysis, and I respectfully adopt it. At [10] his Honour described the decision and referred to two of the key passages from the judgments of Deane and Fisher JJ, who comprised the majority: The question in that case was whether an appeal lay under s 44 from a ruling by the President of the Tribunal that the Tribunal had jurisdiction to review the decision of the Director-General of Social Services that Mrs Chaney was not entitled to a widow's pension. Deane J said at 103: The conclusion which I have reached is that, subject to the qualifications mentioned below, an appeal under s 44(1) of the Act lies only from a decision of the Tribunal which constitutes the effective decision or determination of the application for review. Ordinarily, such a decision will be the final decision formulated in accordance with the provisions of s 43 of the Act. The qualifications referred to are an appeal pursuant to s 44(2) from a decision that the interests of a person are not affected by a particular decision and the case where the proceeding before the Tribunal can properly be divided into two or more separate parts in respect of which independent "decisions" may properly be given. Justice Fisher agreed and added, at 107: Under the Act the statutory process is complete when the Tribunal either decides to refuse to review the decision of the administrator or makes a decision in writing affirming, varying or setting aside the decision (s 43(1)). In my opinion, it is such a decision as aforementioned which the legislature has in mind in conferring on this Court by s 44(1) a right to hear an appeal on a question of law "from any decision of the Tribunal in that proceeding". It was ordered that the appeal to the Federal Court from the ruling of the President of the Tribunal be dismissed as incompetent. 48 Robertson J then explained, at [19], the purpose served by the approach in Chaney, with which I respectfully agree: In my opinion, the point of the decision in Chaney is to avoid judicial review by way of an appeal to this Court instanter and as of right from non-determinative steps, determinations or decisions of the Tribunal. This reflects the undesirability of fragmenting proceedings in the Tribunal by the making of applications to the Federal Court seeking to challenge intermediate directions, determinations or decisions of the Tribunal: see the judgment of the Full Court in Geographical Indications Committee v The Honourable Justice O'Connor [2000] FCA 1877; 64 ALD 325 at [26]-[28]. 49 At [21], Robertson J listed the significant number of times Full Courts of this Court have approved and applied the principles in Chaney: The decision in Chaney has been approved or applied by many Full Courts including: Geographical Indications Committee v The Honourable Justice O'Connor [2000] FCA 1877; 64 ALD 325; Australian Postal Corporation v Forgie [2003] FCAFC 223; 130 FCR 279; Australian Securities and Investments Commission v PTLZ [2008] FCAFC 164; 48 AAR 559; Irwin v Military Rehabilitation & Compensation Commission [2009] FCAFC 33; 174 FCR 574; Kowalski v Repatriation Commission [2009] FCAFC 107; 259 ALR 444; Rana v Repatriation Commission [2011] FCAFC 123; 196 FCR 137; Australian Postal Corporation v Sinnaiah [2013] FCAFC 98; 213 FCR 449; Commissioner of Taxation v Cancer and Bowel Research Association [2013] FCAFC 140; 305 ALR 534 and Luck v Chief Executive Officer of Centrelink (No 2) [2015] FCAFC 112; 67 AAR 399. 50 In his submissions, the applicant did not quarrel with the Chaney principle, and he accepted that it would be open to the applicant to challenge the Tribunal's evidentiary ruling in an appeal under s 52 against the Tribunal's final decision. Rather, he submitted, due to its textual and contextual features s 52 of the Appeals Act was not affected by the reasoning in Chaney, for five reasons. In my opinion, none of those reasons affect the application of the principles in Chaney to an appeal under s 52. 51 The applicant submits, as a first reason, that s 52(1) provides that certain decisions given by single members exercising the powers of the Tribunal (under s 17) are excluded from the right of appeal otherwise conferred. This, he submits, is a feature not present in s 44(1) of the Administrative Appeals Tribunal Act 1975 (Cth) (AAT Act). The applicant's proposition is literally correct. However it does not follow that, as the applicant submits, if the principle in Chaney were engaged, there would be no warrant for that exclusion in s 52(1). 52 The exclusion in s 52(1) picks up the powers conferred on a single member by s 17 of the Appeals Act. I have set out that provision at [29] above. 53 In relation to four of the kinds of powers which can be exercised by a single member (see s 17(1)(a)-(d)), there is, by s 17(2), a right of appeal to a Tribunal as constituted in accordance with s 15 of the Appeals Act. That explains, in large part, the exclusion in s 52(1): Parliament intends there to be a right of appeal from a single member within the Tribunal's own structure, not outside it. By reg 6 of the Defence Force Discipline Appeals Regulations 2016 (Cth) there is a 10-day period in which such an appeal can be brought. 54 On the remaining powers covered by s 17(1), two relate to orders concerning witness expenses and costs in the Tribunal (s 17(1)(e) and (f)) and it is clear the Appeals Act intends there should be no statutory right of appeal. Those exercises of power may be amenable to judicial review, but it is unnecessary to determine that question. 55 The final category of powers exercisable by a single member are those in s 17(1)(g), with respect to a "prescribed matter of practice or procedure". That phrase is not defined in the Appeals Act: cf the phrases "prescribed acquittal" and "prescribed acquitted person", which are defined in s 4 of the Appeals Act. Whatever matters may be prescribed, it is the intention of the legislative scheme that they not be subject either to statutory appeal within the Tribunal, or to this Court. Whether any such exercise of power is amenable to judicial review again need not be determined. 56 Further, s 17 does not require any of the powers with which it deals to be exercised by a single member: their exercise by a single member or the Tribunal as constituted under s 15 is a matter for the Tribunal's discretion. If those powers are exercised by a Tribunal as constituted under s 15 of the Appeals Act, then the construction of the word "decision" in s 52 arises, and falls to be determined in my opinion consistently with the principles in Chaney. 57 The applicant's second submission is that it is to be expected that if Parliament intended interlocutory rulings of the kind under challenge here to be excluded from s 52(1), then it would have said so expressly, given there is one express exclusion in the text of s 52(1). That is not a basis on which to distinguish Chaney, in circumstances where there was no express exclusion in s 44(1) of the AAT Act either. 58 Third, the applicant submits that the Tribunal's evidence ruling can be described as a "decision … in respect of an appeal under the [DFDA] Act". He submits "there is no question that it is a 'decision'", and no "question that it is one 'in respect of' the respondent's appeal". This submission begs the question of construction with which Chaney is concerned. 59 The fourth argument relies on the Tribunal's obligation in reg 24 to furnish a written statement after it makes its decision "on a question of law, an appeal, an application or a matter". The applicant submits that s 52(2), by referring to the written statement the Tribunal is required to provide, links reg 24, and especially the words "application" and "matter" in that regulation, with s 52(2). It is not appropriate to approach the construction of the word "decision" in s 52 through the prism of regulations made under the Act: Master Education Services Pty Ltd v Ketchel [2008] HCA 38; 236 CLR 101 at [19] (the Court). Further, it is to be expected that the Tribunal's obligation to give reasons, imposed by the terms of reg 24, extends more widely than to any final decision on an appeal. The reasons obligation is an independent one, operating in relation to a variety of exercises of power under the Appeals Act (including, as in this case, a ruling after an application to adduce new evidence) and does not inform the construction of the word "decision" in s 52(1). 60 Fifth and finally, the applicant relies on the Explanatory Memorandum to the Defence Force (Miscellaneous Provisions) Act 1982 (Cth), which inserted Pt V (ss 51-54) into the Appeals Act. At pp 9 and 17, the Explanatory Memorandum states that Pt V would "provide a wider access to the Federal Court of Australia including a right of appeal on questions of law" and that s 52(1) provided for a right to appeal to this Court on a question of law "from any decision of the Tribunal". The applicant emphasises the use in the Explanatory Memorandum of the word "any". 61 The first general response to this submission is that statements in extrinsic material cannot govern the construction of legislation, especially where those statements use language not present in the legislation itself: Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue [2009] HCA 41; 239 CLR 27 at [47] (Hayne, Heydon, Crennan and Kiefel JJ). 62 Linked to that response and illustrative of why the authorities take that approach, s 52(1) does not use the language of "any decision". The language of the statute is: "a question of law involved in a decision of the Tribunal" 63 That language is, in its context and for the reasons I explain below, amenable to the construction given to the same word in s 44(1) of the AAT Act by a majority of the Full Court in Chaney. 64 Ironically, in s 44(1) of the AAT Act the word "any" in fact does appear: may appeal to the Federal Court of Australia, on a question of law, from any decision of the Tribunal in that proceeding. 65 Notwithstanding its presence in s 44(1), the pronoun "any" did not alter the opinion of Deane J in Chaney about the proper construction of the word "decision". His Honour said (at 101) that, although its presence may tend "in the contrary direction": the use of "any" can be explained both by the fact that the subsection follows the specification in s. 43 (1) of a range of alternative ultimate decisions which may be given by the Tribunal and by the fact that it is possible that one proceeding before the Tribunal could involve the review of a number of connected decisions by the original decision maker with the consequence that the proceeding before the Tribunal called for a number of ultimate decisions each of which effectively disposed of a separate part of the proceedings (see, for example, Sullivan v. Department of Transport where the grant of two distinct licences was in issue). In the result, any indication provided by the qualifying word "any" as to the scope of the word "decision" in s. 44 (1), is, likewise, slight. 66 I turn now to explain why, in my opinion, there are a number of textual, contextual and purposive considerations to which Deane J referred in Chaney that are also present in the Appeals Act and in s 52 in particular. There are also some further textual and contextual matters particular to the Appeals Act which re-inforce my conclusion. 67 As with s 44(1), the context and content of s 52 and its role in the statutory scheme of the Appeals Act inform the construction of the word "decision". The observations of Deane J in Chaney at 101-103 apply with equal force to s 52(1). 68 Unlike the AAT Act, which in s 3(3) incorporates an extensive but not exhaustive definition of the word "decision", the Appeals Act does not define the word "decision". In Chaney at 100-101 Deane J concluded that the content of the definition in s 3(3) of the AAT Act, being concerned with actions "which are in the nature of effective action rather than intermediate 'decision' on the path to such action" provided some slight indication that a reference to "decision" in the AAT Act was a reference to the ultimate or operative determination. The absence of any definition of "decision" in the Appeals Act may indicate that the word has something of an ambulatory meaning depending on the context in which it is used in the Act. 69 Some of the other contexts in which the word is used support a meaning restricted to the ultimate or operative determination of the Tribunal. Section 15A is entitled "Reserved decision" and provides: (1) Where any proceeding, after being fully heard before the Tribunal, is ordered to stand for decision, it is not necessary for all the members before whom it was heard to be present together to declare their opinions thereon but the opinion of any one of them may be reduced to writing and may be made public by any other of them at any subsequent sitting of the Tribunal. (2) In any such case the question shall be decided in the same manner, and the decision of the Tribunal shall have the same force and effect, as if the member whose opinion is so made public had been present at the sitting of the Tribunal and declared his or her opinion in person. 70 In this provision there is no doubt that when the legislature uses the word "decision", it is referring only to the ultimate and operative determination made by the Tribunal. 71 In at least one other context in the Appeals Act, the word "decision" must be given a broader meaning. As I have noted, the legislative scheme differentiates in several places (including in s 52(1) itself) between a decision of the Tribunal as constituted under s 15 and intermediate or interlocutory decisions made by a single Tribunal member pursuant to an exercise of powers under s 17 of the Appeals Act. In s 17(2) the result of an exercise of powers by a single member under s 17(1) is also described as a "decision". Its meaning in s 17(2) must be taken from its context, which refers to one or more exercises of power under s 17(1). The extended meaning is in my opinion confined to the use of the word in s 17. That is made clear from the terms of s 51, which deals with reference of questions of law to this Court. 72 Section 51(1) expressly provides that the Tribunal may refer a question "arising in a proceeding before the Tribunal" but then expressly excludes from this referral power "a proceeding before a single member exercising powers of the Tribunal". That express exclusion confirms two matters relevant to the construction of "decision" in s 52(1). First, the extended meaning of the word "decision" in s 17 is confined to that section (and the terms of s 15A, as I have noted, support this conclusion). Second, the legislature did not intend this Court to deal with exercises of power by a single member under s 17. Rather it intended (through s 17(2) and the exclusions in ss 51(1) and 52(1)) that the Tribunal itself deal with appeals from those powers, or (for some of the exercises of power) that they are not subject to any statutory right of appeal under the Appeals Act. 73 Before turning to other features of the legislative scheme which support the application of Chaney, s 52(5) should be mentioned. That is the provision which sets out the powers exercisable by this Court on an appeal under s 52(1). It can be seen (see [33] above) that the language used in s 52(5)(b), (c) and (d) expressly contemplates that what is under appeal is the final and operative decision of the Tribunal. In subs (b) that is because the text refers to "the case" being remitted. In subs (c) that is because the text refers to the grant of a "new trial". In subs (d) that is because the text refers expressly to a "decision of the Tribunal quashing a conviction or quashing a prescribed acquittal", both of which are a subset of the final and operative decisions open to the Tribunal. Only subs (a) does not in terms confine itself to a final and operative decision of the Tribunal. However, subs (d) expressly picks up the terms of subs (a), and subs (b) does so by implication. That is sufficient connection to suggest that the power conferred by subs (a) is not contemplated by the legislature as exercisable in relation to matters such as an interlocutory ruling on the admission of evidence. For example, the remitter order sought by the applicant in this case ("Remit the First Respondent's application to adduce further evidence to the Defence Force Discipline Appeals Tribunal for determination according to law") is not capable of falling within the power conferred on this Court by s 52(5), which is to remit "the case" to be heard and decided again by the Tribunal. 74 In the Appeals Act, as with the AAT Act, this Court is not given a general supervisory jurisdiction over the Tribunal, but rather a limited one. The description given by Deane J in Chaney at 102 is apposite for the Appeals Act: [T]he general scheme of the [AAT] Act appears to be that the Tribunal will proceed to hear an application for review until completion of the hearing and, upon such completion, render its decision in the manner prescribed by s. 41 of the Act and comply with the requirements of that section as to service of a "copy of its decision". Any question of law arising in the course of the proceedings is to be determined by the Tribunal in the manner prescribed in s. 42 unless the Tribunal itself thinks it appropriate to seek the opinion of this Court during the currency of the proceedings when, either on its own motion or at the request of a party to the proceedings, it may refer a question of law for the decision of the court. 75 Section 53 of the Appeals Act is another provision whose text and operation is consistent with the conclusion I have reached. It deals with the sending of documents to this Court upon an appeal under s 52, or upon a reference on a question of law under s 51. It also deals with custody orders in relation to a person convicted. Two points should be made. Putting to one side the reference power in s 51, that s 53 contemplates the need for custody orders illustrates that the assumption on which it operates is that the Tribunal will have concluded its appeal proceeding and made final orders. Second, s 53(b) deals with the sending of documents by the Tribunal to the Court for the purposes of its exercise of jurisdiction. It relevantly provides that the Tribunal shall send to this Court: all documents and other records relating to the proceeding before the Tribunal to which the reference or appeal relates 76 In my opinion, in the context of an appeal under s 52, the terms of s 53(b) suggest Parliament contemplated that the record before the Tribunal would be complete – that is, the record of the entire "proceeding" would be available to this Court. 77 A further feature of the Appeals Act confirming the applicability of Chaney is the nature of the Tribunal's jurisdiction and the manner in which the Appeals Act requires it to be exercised. The first proposition to recall is that the power vested in a court-martial is not judicial in nature and is exercised for a disciplinary purpose. In Hembury v Chief of General Staff [1998] HCA 47; 193 CLR 641 at [32], Gummow and Callinan JJ described the jurisdiction in the following way: The Tribunal was not exercising the judicial power of the Commonwealth when, on 9 June 1994, it ordered, in respect to the present appellant: "The Appeal be dismissed and the convictions confirmed." Nor was the court-martial when, on 21 April 1993, it found the accused guilty on certain charges and imposed punishment. This follows from the current state of authority in this Court as to the interrelation between Ch III of the Constitution and the defence power conferred upon the Parliament by s 51(vi) thereof. The only exposure of this controversy to the judicial power of the Commonwealth has been in the Full Court of the Federal Court and the matter of which it was seised was limited by s 52(1) of the Appeals Act to the determination of "a question of law involved in a decision of the Tribunal". (Footnote omitted.) 78 Section 20 confines a person applying to the Tribunal under the Appeals Act to an appeal on a question of law against conviction or prescribed acquittal by a court martial, unless the Tribunal grants leave for a wider appeal to be brought. There is no generalised statutory right of appeal and this is readily understandable in a disciplinary scheme which depends on certainty and finality as part of the maintenance of discipline within the armed forces. In the case of frivolous or vexatious appeals, the Tribunal is empowered to ensure that a person commences to serve any sentence of imprisonment or detention swiftly: see s 22. Section 23, the key provision concerning grounds of appeal available before the Tribunal, requires the Tribunal to allow appeals if the terms of the relevant parts of s 23 are satisfied. The remainder of Div 2 of Pt III (in which s 23 is located) is concerned with other kinds of final orders the Tribunal is empowered to make. This is a scheme which is overwhelmingly concerned with a single appellate process flowing, without undue delay, through to an ultimate and operative outcome. It is from that outcome that s 52(1) envisages there can be an appeal on a question of law to this Court. 79 Although it does not say so in terms, in my opinion the general tenor of the following extract from the reasons of Gummow and Callinan JJ (with whom Hayne J at [80] agreed) in Hembury at [31] suggests that their Honours saw the "decision" to which s 52(1) refers as the ultimate and operative decision of the Tribunal: Section 52(3) of the Defence Force Discipline Appeals Act 1955 (Cth) (the Appeals Act) states: "The Federal Court of Australia has jurisdiction to hear and determine matters arising under this section with respect to which appeals are instituted in that Court in accordance with this section and that jurisdiction shall be exercised by that Court constituted as a Full Court." The subject matter of the "appeal" is a question of law involved in a decision of the Defence Force Discipline Appeal Tribunal (the Tribunal) constituted under the Appeals Act (s 52(1)). The Federal Court is to hear and determine the appeal and may make such order as it thinks appropriate by reason of its decision (s 52(4)). Although styled an "appeal", the proceeding before the Full Court was an exercise of original jurisdiction (43). This was a matter "arising under" the Appeals Act, within the meaning of s 76(ii) of the Constitution, with respect to which s 52 of that statute defined the jurisdiction of the Federal Court pursuant to s 77(i) of the Constitution. The content of the constitutional matter was limited to determination of a question of law involved in the decision of the Tribunal. The Full Court was not exercising any jurisdiction analogous to that of a Court of Criminal Appeal. (Footnote omitted.) The judicial review applications 80 I have dealt with the extension of time application under the AD(JR) Act above at [42]. Even if an extension of time were to have been granted, the applicant would have faced essentially the same difficulty under the AD(JR) Act as he faces in his reliance on s 52 of the Appeals Act. A "decision" under the AD(JR) Act is only reviewable if it has a substantive, final or operative quality about it: see Australian Broadcasting Tribunal v Bond [1990] HCA 33; 170 CLR 321 at 337-341 (Mason CJ), 377 (Toohey and Gaudron JJ). Relevantly, at 337 Mason CJ said: To interpret "decision" in a way that would involve a departure from the quality of finality would lead to a fragmentation of the processes of administrative decision-making and set at risk the efficiency of the administrative process. 81 Mason CJ's observation about fragmentation is relevant to the exercise of discretion in the judicial review applications, whether under s 16 of the AD(JR) Act or under s 39B of the Judiciary Act. 82 The lack of a final or operative quality to the Tribunal's evidentiary ruling is highlighted by the Tribunal's statement in its reasons that the evidence ABMT Angre sought to adduce could be admitted "subject to all just objections". The process of hearing and determining objections will, of course, take place during the appeal. Some or all of the evidence may be subject to a "just objection": the evidence itself is not before the Court so this observation is no more than the statement of possibility. However, it illustrates an additional way in which the Tribunal's decision is not final and operative. 83 In some circumstances, there may be utility, or necessity, in the Court's supervisory jurisdiction on judicial review being exercised notwithstanding the "decision" under review is but a step in the process towards the making of a final decision by a statutory tribunal. A decision of that character may not be reviewable under s 5 the AD(JR) Act on well-established principles, although s 6 of the AD(JR) Act may be applicable. Relief under s 39B of the Judiciary Act may be available if the interim decision affects rights and interests. However, it will not ordinarily be appropriate to fragment ongoing proceedings in a statutory tribunal and to exercise the Court's supervisory jurisdiction unless there is a real prospect of a person's rights and interests being affected in a way that would not be capable of correction on a statutory appeal from a final decision under a provision such as s 52. I emphasise that such circumstances will be out of the ordinary. 84 In Commissioner of Taxation v Cancer and Bowel Research Association [2013] FCAFC 140; 305 ALR 534 at [13] the Full Court expressed, in terms with which I respectfully agree, the correct approach to an application for judicial review under s 39B in such circumstances: The grant of relief pursuant to 39B of the Judiciary Act is a matter of discretion: SZBYR v Minister for Immigration and Citizenship (2007) 81 ALJR 1190 at [28]. In Re Refugee Review Tribunal; Ex parte Aala (2000) 204 CLR 82, Gaudron and Gummow JJ at [55] noted that: Some guidance, though it cannot be exhaustive, as to the circumstances which may attract an exercise of discretion adverse to an applicant is indicated in the following passage from the judgment of Latham CJ, Rich, Dixon, McTiernan and Webb JJ in a mandamus case, R v Commonwealth Court of Conciliation and Arbitration; ex parte Ozone Theatres (Aust) Limited. Their Honours said [(1949) 78 CLR 389 at 400]; For example the writ may not be granted if a more convenient and satisfactory remedy exists: if no useful result could ensue, if the party has been guilty of unwarrantable delay or if there has been bad faith on the part of the applicant, either in the transaction out of which the duty to be enforced arises or to which the Court towards the application is made. The Court's discretion is judicial and if the refusal of a definite public duty is established, the writ issues unless circumstances appear making it just that remedy should be withheld Ordinarily, the availability of appeal as an avenue to correct an error of law would be a powerful discretionary reason not to grant certiorari: Kirk v Industrial Relations Commission of New South Wales (2010) 239 CLR 531 (French CJ, Gummow, Hayne, Crennan, Kiefel and Bell JJ); Commissioner of Taxation v Futuris Corporation Limited [2008] HCATrans 144. Ordinarily also, a court would be reluctant to entertain a judicial review application where the challenge is to an intermediate direction or determination made along the way to reaching an ultimate determination of the substantive issue: Geographical Indications Committee v O'Connor (2000) 32 AAR 169 at [26]-[28] (Von Doussa, O'Loughlan and Mansfield JJ). As the cases illustrate, these principles ordinarily should lead the Court to exercise its discretion to refuse relief under s 39B of the Judiciary Act. 85 Subject to statutory modification, judicial emphasis on the undesirability of fragmentation of the criminal process continues. Two recent authorities to that effect suffice. In DPP v Wise (a pseudonym) [2016] VSCA 173 the Victorian Court of Appeal (Warren CJ, Weinberg and Priest JJA) said at [5], in respect of an appeal from an evidentiary ruling by the County Court of Victoria: As this Court has observed more than once, the common law set its face against the fragmentation of criminal proceedings. The introduction of a regime for interlocutory appeals in criminal cases was not intended to derogate from the overarching notion that fragmentation of criminal proceedings is undesirable. As may be gleaned from the text of the statute governing interlocutory appeals, it was not the intention of the legislature that fragmentation of criminal proceedings should ordinarily be contemplated. Interlocutory appeals should be reserved for unusual cases. Statutory fetters on appellate intervention emphasise, in our view that the legislature intended to uphold the authority of the trial judge, and contemplated that such authority should not lightly be interfered with. The regime for interlocutory appeals was not designed to cater for appeals against routine evidentiary rulings made in the ordinary course of a criminal trial. (Footnotes omitted.) 86 In Obeid v The Queen [2016] HCA 9; 90 ALJR 447, Gageler J said at [15]-[16], in relation to an application for a stay of criminal proceedings pending the determination of an application for special leave to appeal: There is a longstanding and general reluctance on the part of this Court in point of policy to make orders which would have the effect of fragmenting a criminal process which has already been set in train. The generality of that reluctance is sufficiently illustrated by the decision and reasoning of the Full Court in the course of refusing special leave to appeal from interlocutory decisions in criminal proceedings in Yates v Wilson and in R v Elliott, and by the much more recent decision of French CJ in Alqudsi v The Commonwealth, which concerned applications for both removal to, and remitter from, this Court in circumstances where an accused in pending criminal proceedings sought to challenge the validity of legislation creating the offence with which the accused was charged. The reasons given by Kirby J in Frugtniet v Victoria for refusing to stay a criminal proceeding against an accused pending the determination of a proceeding in this Court's original jurisdiction are particularly instructive in the present context. The proceeding in the original jurisdiction of this Court in that case concerned a challenge to the constitutional validity of legislation which bore on the trial process in a manner which was argued to infringe Ch III of the Constitution. His Honour said: This Court has more than once ... emphasised how rare it is to make orders which would have the effect of interfering in the conduct of a criminal trial. No case has been brought to my notice where the Court has made a stay order equivalent to the one sought on this summons. Although I do not doubt that, in a proper case, the Court would have the jurisdiction to make such an order to protect the utility of its process; it would be truly exceptional for it to do so. The Court expressed its attitude of restraint most recently in its decision in R v Elliott. There are many earlier such cases. They evidence the strong disposition of appellate courts in Australia – and especially of this Court – not to interfere in the conduct of criminal trials except in the clearest of cases where the need for such interference is absolutely plain and manifestly required. Analogous principles apply ... to the provision of a stay to prevent the commencement of a trial so as to permit a constitutional point to be argued. That point will not be lost to the plaintiff. If need be, at a later stage, it can be raised again. (Footnotes omitted.) 87 Although the Tribunal is not exercising judicial power, and instead exercises power for the purposes of maintaining discipline in the armed forces so that the proceeding is not, strictly, a "criminal trial", the military system of discipline both in form and content bears close resemblance to, and employs principles and practices derived from, the criminal law and criminal procedure. For the purposes of the application of the principles of fragmentation and discretion, I see no meaningful difference. Indeed, the need to maintain an orderly, efficient and effective system of discipline within the armed forces suggests an additional reason for courts in circumstances such as the present to adhere to the well-established judicial approach against fragmentation. Conclusion 88 Given the conclusions I have reached on the application of Chaney to s 52 of the Appeals Act, and the discretionary disposal of the judicial review applications, I do not canvass in any detail the substantive arguments about the proper construction of s 23(1) of the Appeals Act made on behalf of the applicant in these proceedings. That is especially so in circumstances where, after the final determination of the Tribunal, there may be an appeal to this Court pursuant to s 52 and the Tribunal's evidence ruling may be challenged, in a quite different context. 89 For these reasons, the Court made the orders which it did on 23 November 2016. I certify that the preceding eighty-four (84) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Mortimer. Associate: Dated: 9 December 2016 REASONS FOR JUDGMENT PERRY J: 90 I have had the benefit of reading the judgments of Allsop CJ and Mortimer J in draft. I agree with the reasons of Mortimer J for the orders made on 23 November 2016. I also agree with the Chief Justice's reasons at [3] and [4]. I certify that the preceding one (1) numbered paragraph is a true copy of the Reasons for Judgment herein of the Honourable Justice Perry. Associate: Dated: 9 December 2016 REASONS FOR JUDGMENT GLEESON J: 91 I have had the benefit of reading the draft reasons of Mortimer J and agree with her Honour's reasons. I certify that the preceding one (1) numbered paragraph is a true copy of the Reasons for Judgment herein of the Honourable Justice Gleeson. Associate: Dated: 9 December 2016