Mitty v Brown [2017] FCA 1635

FEDERAL COURT OF AUSTRALIA

Mitty v Brown [2017] FCA 1635 File number: QUD 591 of 2017

Judge: DOWSETT J

Date of judgment: 3 November 2017

Catchwords: ADMINISTRATIVE LAW – application for an injunction against an officer of the Commonwealth pursuant to s 39B of the Judiciary Act 1903 (Cth) – where the applicant is a decommissioned officer of the Australian Defence Force about to be transferred to a civilian correctional facility – application dismissed

Legislation: Judiciary Act 1903 (Cth) s 39B

Date of hearing: 3 November 2017

Registry: Queensland

Division: General Division

National Practice Area: Administrative and Constitutional Law and Human Rights

Category: Catchwords

Number of paragraphs: 8

Counsel for the Applicant: Mr R Pearce and Mr G Gunn

Solicitor for the Applicant: Human ASSET Solutions Pty Ltd

Counsel for the First Respondent: The First Respondent did not appear

Counsel for the Second Respondent: The Second Respondent did not appear

ORDERS QUD 591 of 2017

BETWEEN: ANDREW JAMES MITTY Applicant

AND: CHIEF OF AIR FORCE AUSTRALIA AIR MARSHALL GEOFF BROWN First Respondent

GROUP CAPTAIN PAUL JOSEPH LONG Second Respondent

JUDGE: DOWSETT J DATE OF ORDER: 3 NOVEMBER 2017

THE COURT ORDERS THAT:

1. the application for interim, ex parte relief be refused; and 2. the application otherwise be adjourned to a date to be fixed. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

DOWSETT J: 1 The applicant was an officer in the Air Force. On 21 September this year, he was found to have absented himself without leave. He was sentenced to imprisonment for a period of four months with a non-parole period of two months. He was also dismissed from the Australian Defence Force ("ADF"). An automatic review of that decision was unsuccessful, the decision being handed down on 26 October 2017. The applicant has further avenues for review or appeal. He may petition for further review of the decision or he may apply to the Defence Force Discipline Appeals Tribunal. There is provision for review of a decision of that Tribunal, and an ultimate right of appeal to this Court in certain circumstances. 2 He was ordered into detention following the findings made against him. However he could not immediately commence to serve his sentence because, I am told, a commissioned officer cannot be detained as opposed to being imprisoned. The reasons for this distinction are presently irrelevant. However the effect of it is that he has been, until now, detained at the Defence Force Correctional Establishment at Holsworthy in Sydney. However he will serve his sentence in a state prison. 3 At some time this morning, he was informed that he was to be moved to Silverwater which I understand to be a prison conducted by the New South Wales Government. I understand it to be a remand centre, although I am not sure about that. It does not matter. The applicant is concerned for his safety at Silverwater, given that its population includes individuals known to have sympathies with those people against whom he has been engaged whilst on active service. He claims also to be concerned about questions of due process, but they do not directly arise for present purposes. 4 There is facility for a person in the applicant's position to apply, within the military justice system, for a stay of proceedings. The applicant made such an application after the present proceedings had been commenced. He has been informed that his application for a stay has been declined because: of the fact that his conviction and punishment have been upheld and approved on automatic review; of the nature of his offending; he poses a significant flight risk should a stay be granted; there may be an adverse effect on service discipline if a stay were given after the punishment had been imposed; and the purpose of such punishment is the maintenance and enforcement of service discipline. 5 The reviewer took into account the grounds for the stay set out in the present applicant's application, the question of his safety, should he be transferred to a civilian correctional establishment, given his membership of the armed forces with operational experience, and the ADF's duty of care, requiring that it not expose members to unnecessary danger. As a result of his consideration of those matters, the officer in question, Group Captain Smith, was satisfied that Corrective Services New South Wales has in place sufficient procedures and safeguards, including protective custody arrangements for persons linked with the ADF, and that steps had been taken to provide the applicant's service history to Corrective Services New South Wales, so that these matters might be taken into account on transfer. 6 This application is made pursuant to s 39B of the Judiciary Act 1903 (Cth), seeking an injunction against officers of the Commonwealth namely, Air Marshall Geoff Brown and Group Captain Paul Joseph Long. For present purposes, I proceed upon the basis that a commissioned officer in the armed forces is an officer of the Commonwealth. The decision which the applicant seeks to stay is that made on 21 September 2017. However his counsel concedes that it may well be necessary to join Group Captain Smith as the officer declining the stay, so that his order can be reviewed. 7 Given the detailed processes in place within the ADF (which I have set out), it seems to me that it would, as a matter of general policy, be inappropriate for the Court to interfere pursuant to s 39B at this stage. I must say, too, that although it is asserted that the decision to move him to Silverwater, and the decision to decline the stay are clearly unreasonable, I am not persuaded that as much is the case. It seems to me that given that this is, in effect, a question of military discipline, the points made by Group Captain Smith are of some considerable importance. 8 I am not without sympathy for the applicant. I can well understand the difficulties faced by a formerly commissioned officer in going into the prison system. I can only imagine the additional difficulties which will face him, given his history of service and the other people with whom he may come into contact. However I see no basis to doubt the correctness of Group Captain Smith's view that adequate procedures are in place to ensure his safety in the prison system. In those circumstances, I consider that I must refuse the application. I certify that the preceding eight (8) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Dowsett.