Case: Bacon v Rose [1972] 2 NSWLR 793
Outcome: distinguished
The present case is quite different, for example, from Bacon v Rose [1972] 2 NSWLR 793, to which reference was also made in argument. In Bacon v Rose , Street CJ indicated that he would have been prepared to grant a declaration of right, had he concluded that committal proceedings had been improperly instituted against the plaintiff. His Honour said that (at 797): 'If an administrative or ministerial process is wrongly invoked against a person, then there is in my view just as much basis for recognizing and declaring a right in that person to be rid of the invalid administrative or ministerial yoke as there is in the case where a person's property is invalidly affected'. 92 The issue of law presented in the present case does not involve a threshold question as to the constitution of the court martial. Indeed the challenge to the Judge Advocate's ruling, if successful, will not terminate the court martial. On the contrary, it will require the court martial to reconvene and to consider further arguments relating to the Record of Interview. 93 Having reached the conclusion that the circumstances of the present case are not exceptional, it is perhaps not necessary to consider the exercise of discretion as a separate matter. If, however, there is a residual discretion to grant the declaration relief sought by the applicants notwithstanding the conclusion I have reached, I would not exercise it in favour of the applicants. In addition to the matters to which I have referred, declaratory relief would involve the potential for significant prejudice to the Accused. On the information I have been given, if the present application were to succeed the Accused would be the only member of the Armed Forces charged with an offence before a court martial ever to be denied the benefit of a favourable evidentiary ruling made by the court martial. And if the amending legislation is passed, he would presumably be the last such person. 94 For the reasons I have given, I do not think that it would be appropriate for the Court to grant the applicants the declaration they seek. Even if they establish that the reasoning of the Judge Advocate in support of his evidentiary ruling was flawed, this is not one of the most exceptional cases that would justify the grant of declaratory relief. In any event, I would not be prepared to exercise any discretion available to me in favour of granting the declaration sought by the applicants. 95 The application will be dismissed. Since the Accused does not seek a costs order if he is successful in the proceedings, there will be no order as to costs. I certify that the preceding ninety-five (95) numbered Paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Sackville. Associate: Dated: 21 August 2007 Counsel for the first and second applicants: Dr J G Renwick and Mr B L Jones Solicitor for the first and second applicants: Australian Government Solicitor Counsel for the second respondent: Mr B Levet Solicitor for the second respondent: Kinghan &amp; Associates Date of hearing: 14 August 2007 Date of judgment: 21 August 2007 AustLII: Copyright Policy | Disclaimers | Privacy Policy | Feedback URL: http://www.austlii.edu.au/au/cases/cth/FCA/2007/1282.html