Federal Court of Australia Burns v Chief of the Defence Force [2023] FCA 579 File number: QUD 109 of 2023 Judgment of: LOGAN J Date of judgment: 29 May 2023 Catchwords: PRACTICE AND PROCEDURE – application for joinder to existing application under Administrative Decisions (Judicial Review) Act 1977 (Cth) (ADJR Act) by different applicants aggrieved by different type of decision having its source in different statutory authority to decisions under review in existing application – rule 9.02, Federal Court Rules 2011 (Cth) – where existing application based on decisions evidenced by termination notices under Defence Regulation 24(1)(c) – where decisions, the subject of proposed joinder, were based on a show cause notice as to why a Formal Warning should not be placed on particular defence members' files – where common issue of fact and law said to be the alleged use of improperly obtained material – where specific statutory foundation for issue of show cause notices (as opposed to general power of command under the Defence Act 1903 (Cth) not evident – where, consequentially, no clearly identified "decision under an enactment" for the purposes of the ADJR Act – where decision to issue show cause notice amendable to review under s 39B(1) of the Judiciary Act 1903 (Cth) – where joinder if permitted would raise additional issues antithetical to desirability of prompt hearing and determination of proceeding already fixed for trial – joinder application dismissed – proposed amendments to originating application deemed to be separate application under s 39B of the Judiciary Act with that deemed separate proceeding adjourned to a date to be fixed following hearing and determination of existing proceeding and further proceedings in sequel of show cause notices restrained until further order Legislation: Administrative Decisions (Judicial Review) Act 1977 (Cth) Defence Act 1903 (Cth) Judiciary Act 1903 (Cth) s 39B Federal Court Rules 2011 (Cth) r 9.02 Defence Regulation 2016 (Cth) reg 24 Division: General Division Registry: Queensland National Practice Area: Administrative and Constitutional Law and Human Rights Number of paragraphs: 13 Date of hearing: 29 May 2023 Solicitor for the Applicants: Tusk Lawyers Counsel for the Respondent: Ms S Marsh Solicitor for the Respondent: Holding Redlich Lawyers ORDERS QUD 109 of 2023 BETWEEN: MITCHELL BURNS First Applicant SAM KOSOVICH Second Applicant ALEXANDER HONEYSETT (and another named in the Schedule) Third Applicant AND: CHIEF OF THE DEFENCE FORCE Respondent order made by: LOGAN J DATE OF ORDER: 29 MAY 2023 THE COURT ORDERS THAT: PENAL NOTICE TO: THE CHIEF OF THE AUSTRALIAN DEFENCE FORCE, COMMANDING OFFICER 23 SQUADRON WGCDR TANYA EVANS AND SQN LDR KYLIE THOMPSON, ROYAL AUSTRALIAN AIR FORCE AND SUBORDINATES. IF YOU (BEING THE PERSONS BOUND BY THIS ORDER): (A) REFUSE OR NEGLECT TO DO ANY ACT WITHIN THE TIME SPECIFIED IN THIS ORDER FOR THE DOING OF THE ACT; OR (B) DISOBEY THE ORDER BY DOING AN ACT WHICH THE ORDER REQUIRES YOU NOT TO DO, YOU WILL BE LIABLE TO IMPRISONMENT, SEQUESTRATION OF PROPERTY OR OTHER PUNISHMENT. ANY OTHER PERSON WHO KNOWS OF THIS ORDER AND DOES ANYTHING WHICH HELPS OR PERMITS YOU TO BREACH THE TERMS OF THIS ORDER MAY BE SIMILARLY PUNISHED. Deemed separate originating application 1. Insofar as the draft further amended originating application (being Exhibit TJC3 to the affidavit of Tegan Jessica Childs filed herein on 19 May 2023) seeks the review by the Court of a decision of the respondent made by a delegate, Squadron Leader (SQN LDR) Kylie Thompson to require, by notices each respectively dated 15 May 2023, Leading Aircraftman (LCA) Luke Marriott and Corporal (CPL) Mitchell Houghton each to show cause within 14 days why an Imposing Authority, namely the Commanding Officer 23 Squadron, Royal Australian Air Force (WGCDR) Tanya Evans, another delegate should not impose a formal warning on each of them (show cause notice) so much of that draft further amended originating application as seeks the review of the decision to issue the show cause notice be deemed to be a separately filed and served originating application (deemed originating application) seeking the judicial review of that decision in which: (a) the parties to that review application are LAC Luke Marriott and CPL Mitchell Houghton as first and second applicants and the respondents to the application are the Chief of Defence Force (CDF), SQN LDR Kylie Thompson and WGCDR Tanya Evans as first, second and third respondents respectively; (b) the substantive relief sought is for the issuing, pursuant to s 39B of the Judiciary Act 1903 (Cth) of a writ of prohibition prohibiting the respondents from taking any further proceedings in respect of the respective show cause notices and for the issuing of a writ of certiorari calling up the decision evidence by the respective show cause notices into this Court and quashing it; and (c) the interlocutory relief sought is for an injunction to be issued in the proceeding constituted by the deemed originating application restraining the first respondent, the CDF, the second respondent, SQN LDR Kylie Thompson and the third respondent, WGCDR Tanya Evans from taking any further proceedings in respect of the respective show cause notices, pending the hearing and determination of proceeding QUD 109/2023 or further earlier order. Registrar to open separate court file in respect of deemed originating application 2. The registrar forthwith open a separate court file in respect of the deemed originating application and place on that file: (a) a copy of the deemed amended originating application; (b) a copy of the affidavit of Tegan Jessica Childs referred to above; (c) a copy of this order. Restraint on respondents to deemed originating application 3. In respect of the separate proceeding constituted by the deemed originating application, the first respondent, the CDF, the second respondent, SQN LDR Kylie Thompson and the third respondent, WGCDR Tanya Evans be restrained from taking any further proceedings whether by themselves or otherwise howsoever in respect of the respective show cause notices, pending the hearing and determination of proceeding QUD 109/2023 or further earlier order. Adjournment of deemed originating application 4. The separate proceeding constituted by the deemed originating application be adjourned to a date to be fixed by the Court following the hearing and determination of proceeding QUD 109/2023 or as fixed by further earlier order. Dismissal of interlocutory application 5. The application for joinder and further amendment of the originating application in this proceeding as made by an interlocutory application filed on 19 May 2023 be dismissed. Liberty to apply and costs 6. Liberty to apply reserved to the parties in this proceeding and, in relation to so much of this order as made in respect of the deemed originating application, to the parties to the originating application. 7. Costs be reserved in respect of the interlocutory application and in respect of the deemed originating application, including the application for interlocutory relief in that proceeding. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011. REASONS FOR JUDGMENT (REVISED FROM TRANSCRIPT) LOGAN J: 1 On 15 May 2023, Squadron Leader (SQN LDR) Kylie Thompson directed show cause notices to two Airmen. The Airmen concerned, are named as the firth and sixth applicants on the draft further amended originating application in the affidavit of Tegan Childs (TJC-3). 2 The show cause notices call on them to show cause why a formal warning ought not be placed on their service records with the Royal Australian Air Force (RAAF). 3 In a general sense, the foundation for the show cause notices overlaps with that which became the subject of termination notices, which are under challenges in QUD 109 of 2023, Burns v Chief of Defence Force. However, the case of Mr Burns and others, which is at a more advanced interlocutory stage and is already the subject of a hearing fixed to commence on 17 July 2023, is quite different. The termination power exercised, or at least purportedly exercised in respect of Mr Burns and others is found in reg 24(1)(c) of the Defence Regulation 2016 (Cth), made under the Defence Act 1903 (Cth) (Defence Act). 4 That is not the foundation for this show cause process. That there is some process under the Defence Act is highly likely. It appears as if that process is that referred to in the show cause notices and found, therefore, in instructions issued with the delegated authority from the Chief of Defence Force (CDF) by the Chief of the Air Force. 5 There has been an application for joinder of a proposed challenge to the show cause process. That joinder power is said to be found in r 9.02 of the Federal Court Rules 2011 (Cth). On the basis of joinder, it is sought to file, by leave, an amended application for review. 6 The CDF has raised an interrogative note about whether the show cause decisions constitute decisions under enactment for the purposes of the Administrative Decisions (Judicial Review) Act 1977 (Cth). 7 Whatever may be said about that, it is certainly the case that the statutory foundation is not the same as Mr Burns' case. Further, whilst there is an overlap in terms of an apparent use of material which is said to be improperly taken into account in the context of terminations and in the issuing of the show cause notices, if there be any illegality in that, that can be remedied by a determination of Mr Burns' case and then an assimilation of the consequence of that by the CDF for the purposes of the show cause process. 8 On analysis, to join the proposed challenge to the existing proceeding would result in an inconvenient joinder and an elongation of time deliberately set aside so as to allow a determination as soon as possible of the challenges to the termination notices. 9 A more sure jurisdictional foundation for the relief that is apparently sought, in respect of the show cause proceedings, is found in s 39B(1) of the Judiciary Act 1903 (Cth) in terms of an application for prohibition. 10 As a matter of impression, the example show cause notice is a curious document, the opening paragraph of which evidences, as a matter of impression only, a pre-judgment in respect of the occurrence of conduct mentioned. Reference to later parts of that show cause notice serve only to reinforce a prima facie impression; witness the way in which the conclusions part of the show cause notice is cast. 11 As a matter of impression only, the show cause notice appears to be a document whereby the SQD LDR Thompson has pre-judged the conduct concerned and is seeking only a response in respect of the consequence. As a matter of first impression, that might be regarded as a denial of procedural fairness. It is not necessary to reach any concluded view in that regard, only to appreciate that, prima facie, there is a cause of action present, either alone or in addition to the overlapping issue of apparent use of material which is said to be illegally obtained and used. 12 A question canvassed in the course of submissions whether that in the circumstances, the more appropriate course to take was to deem the interlocutory application for joinder to be an originating application under s 39B. Another was whether; on the basis of the imminence of the expiry of the show cause period and the apparent existence, at least, of a procedural fairness denial cause of action, it was appropriate to grant an interlocutory injunction restraining the CDF and the author of the show cause notice from further proceeding with the show cause procedure pending the hearing and determination of Burns v the Chief of Defence Force QUD 109 of 2023 or further earlier order. A yet further question canvassed was a further order that the deemed originating proceeding be adjourned to a date to be fixed pending the determination of QUD 109 of 2023. 13 I consider the most appropriate course to take is to make orders accordingly. I dismiss the interlocutory application for joinder for the reasons that I have given. I certify that the preceding thirteen (13) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Logan. Associate: Dated: 2 June 2023 SCHEDULE OF PARTIES QUD 109 of 2023 Applicants Fourth Applicant: WILLIAM DYSON