Stuart v Sanderson [2000] FCA 870

FEDERAL COURT OF AUSTRALIA

Stuart v Sanderson [2000] FCA 870 DEFENCE AND WAR – Defence Forces – service offences – summary authority – accused not represented by person of choice before summary authority – person of choice was reasonably available – reasonable availability to be determined practically and in circumstances of hearing – reasonable availability not necessarily limited to persons within an accused's unit – material irregularity – substantial miscarriage of justice – petition for review dismissed – application for judicial review pursuant to Court's original jurisdiction under s 39B Judiciary Act 1903 ESTOPPEL – earlier proceedings in which applicant could have brought current claim – Anshun estoppel not remedied merely by appropriate order for costs – Anshun estoppel operates generally – discretionary nature of Anshun estoppel resides in the special circumstances exception – serious nature of criminal convictions and infraction of a generally applicable procedural right as special circumstances – application of Anshun estoppel to administrative decisions WORDS AND PHRASES – "reasonably available" Defence Force Discipline Act 1982 (Cth), ss 153, 158(1)(c) Defence Force Discipline Rules (Cth), R 24 Avon Downs v Federal Commissioner of Taxation (1949) 78 CLR 353, applied Bryant v Commonwealth Bank (1995) 57 FCR 287, applied Chamberlain v Deputy Commissioner of Taxation (1988) 164 CLR 502, cited Connolly v DPP [1964] AC 1254, applied Hembury v Chief of the General Staff (1998) 193 CLR 641, applied Henderson v Henderson (1843) 3 Hare 100, applied Hunter v Chief , applied Ling v Commonwealth (1996) 68 FCR 180, applied Mills v Cooper [1967] 2 QB 459, considered Minister for Immigration v Karas (1992) 42 FCR 349, cited Port of Melbourne v Anshun [1980] VR 321, not followed Port of Melbourne v Anshun (1981) 147 CLR 589, applied Port of Melbourne v Anshun (No 2) [1981] VR 81, applied Project Blue Sky v Australian Broadcasting Authority (1998) 194 CLR 355, applied Rogers v The Queen (1994) 181 CLR 251, applied Sawyer v Department of Primary Industry (1992) 38 FCR 375, cited Sidhu v Holmes [2000] FCA 776, applied Trawl Industries v Effem Foods (1992) 36 FCR 406, applied Handley J, "Anshun Today" (1997) 71 ALJ 934 Ormiston J, "Abuse of Process, Anshun and the Criminal Law – A Commentary" (1997) 71 ALJ 942 DIANA BETTINA STUART v LIEUTENANT GENERAL SANDERSON & ANOR N 464 of 1999 MADGWICK J 28 JUNE 2000 SYDNEY