Re SCHMIDT

Connor J President, Walters J Deputy President and Judge Broad Member

SYDNEY, May 27-29, 1980
41 FLR 252

Defence -- Navy -- Court-martial -- Courts-Martial Appeal Tribunal -- Powers -- Petition to Chief of Naval Staff to review finding of court-martial -- Petition a condition precedent to application for leave to appeal against conviction -- Tribunal has no power to dispense with noncompliance -- Courts-Martial Appeals Act 1957 (Cth.), s. 20(2)(a), (b) -- Courts-Martial Appeals Regulations, reg. 4.

Held, that under the provisions of s. 20(2)(a) and (b) of the Courts-Martial Appeals Act 1957 and the Courts-Martial Appeals Regulations, reg. 4, a person is not entitled to apply for leave to appeal to the Tribunal against conviction unless he has within a period of forty days from the day upon which the conviction was pronounced, lodged a petition praying that the conviction be quashed by the Chief of the Naval Staff.

Failure to comply strictly with such requirement is fatal to an application for leave to appeal and the Tribunal has no power to dispense with noncompliance.

Jolly v District Council of Yorketown (1969), 119 C.L.R. 347; Sandringham Corporation v. Rayment (1928), 40 C.L.R. 510, applied.

Hatton v. Beaumont, [1977] 2 N.S.W.L.R. 211, distinguished.

APPLICATION FOR LEAVE TO APPEAL.

The facts appear sufficiently from the judgment.

(1980) 41 FLR 252 at 253

D. A. Wheelahan, for the applicant.

P. J. Newman, for the respondent.

Cur adv vult

May 29, 1980

THE TRIBUNAL delivered the following reasons.

This is an application for leave to appeal by Ian Charles Schmidt. The appellant appeals against two convictions on charges that on 5th June, 1978, in the Gulf of Carpentaria he stole a sextant from a person unknown and that on 8th November, 1978, in waters off Darwin he stole a sextant the property of the Master of the Fu Yuan.

It was common ground that although the appellant lodged a petition with the Chief of Naval Staff praying that the convictions be quashed, he did not do so within the time prescribed. The question therefore arose as to whether this omission was fatal to the application. Section 20(2) of the Courts-Martial Appeals Act 1957 (Cth) provides as follows:

"A person is not entitled to apply for leave to appeal to the Tribunal against a conviction ... --

(a) unless he has, within the prescribed period, lodged a petition praying that the conviction be quashed by the prescribed authority; and

(b) subject to sub-section (2) of the next succeeding section, unless --

(i) he has been notified that the petition has been refused; or

(ii) the prescribed period after the day on which the petition was lodged has expired."

Regulation 4 of the Courts-Martial Appeals Regulations provides as follows:

"For the purposes of paragraph (a) of sub-section (2) of section 20 of the Act, the prescribed period within which a petition shall be lodged is --

(a) where the conviction to which the petition relates is a conviction by a court-martial held in Australia -- a period of forty days from the day on which, in the case of a naval court-martial, the conviction was pronounced and, in any other case, the finding of the court-martial was promulgated; and

(b) in any other case -- a period of sixty days from that day."

The effect of s. 20(2) and reg. 4 in this case is that a person is not entitled to apply for leave to appeal to the Tribunal against a conviction unless he has within a period of forty days from the day on which the conviction was pronounced lodged a petition praying that the conviction be quashed by the Chief of Naval Staff. As we have indicated above it was conceded that the petition was lodged beyond this period.

It was submitted on behalf of the appellant that the provision contained in s. 20(2)(a) was directory and not mandatory and

(1980) 41 FLR 252 at 254

that a failure to comply with it was not a bar to his applying for leave to appeal. Reliance was placed upon the judgment of the Court of Appeal of New South Wales in Hatton v. Beaumont [1977] 2 N.S.W.L.R. 211 in which it was held that certain legislative provisions in the Liquor Act, 1912 (N.S.W.) were directory. A regulation made under the Act provided that if any person aggrieved by an adjudication made by a licensing court desired to appeal, "the following provisions shall apply ... ". One of the provisions was that the appellant should within seven days of lodging his notice of appeal deposit a sum of money before a justice conditioned to appear at the appeal court and prosecute his appeal and abide by the decision of the court and pay costs awarded by the court. There was no provision in the legislation which provided specifically for the consequence of failure to comply with any of the provisions concerning appeal. The Court of Appeal was therefore faced with the task of construing the legislation and ascertaining the intention of the legislature by considering the whole scope of the statute and the regulations.

It was stated by Hope J.A. that: "In some cases the question may be resolved by the language of the statute or subordinate legislation" [FN1] , see also per Mahoney J.A. [FN2] . In our view the question is so resolved in this case because the legislature has expressed a clear intention in s. 20 that, if the conditions specified in sub-s. (2)(a) or (b) are not complied with, the serviceman involved "is not entitled to apply for leave to appeal to the Tribunal against a conviction". We are therefore of the view that Hatton v. Beaumont is distinguishable.

While we recognize that it is not always easy to decide whether a particular statutory provision is mandatory or directory it seems to us that compliance with the provisions of sub-s. (2)(a) and (b) of s. 20 is made a condition precedent to the exercise of the right of appeal given by s. 20 and, if that condition precedent be not complied with, the entitlement to apply for leave does not come into existence: see Jolly v. District Council of Yorketown (1968) 119 C.L.R. 347, at p. 350. As Higgins J. said in Sandringham Corporation v. Rayment (1928) 40 C.L.R. 510, at p. 533: "Courts cannot ignore a condition precedent imposed by the Legislature." If a serviceman wishes to obtain the benefit of the rights given to him by s. 20 he must in our view comply strictly with the conditions laid down for their exercise.

In our opinion the failure of the appellant to lodge his petition "within the prescribed period" operates to bar his right of appeal to this Tribunal. Although the Tribunal is given specific power in s. 21(1)(b) to allow an extension of time for lodging an application for leave to appeal, it is not given any power to dispense with noncompliance with the provisions of s. 20(2). If

(1980) 41 FLR 252 at 255

the Tribunal had such a power it would have been appropriate to exercise it in this case since the petition appears to have been lodged only one day out of time and there were aspects of the court-martial proceedings which arguably called for consideration in the interests of justice.

It was also submitted by counsel for the appellant that the Chief of Naval Staff waived compliance with s. 20(2)(a) in that, although the petition was lodged out of time, he had dealt with it on its merits and refused to grant it. The Chief of Naval Staff, however, has the power to review the finding by a court-martial "at any time". Furthermore, a person convicted by a court-martial may "at any time" present a petition to the Chief of Naval Staff against the finding or sentence of a court-martial or both. The only limitation as to time is that the power of the Chief of Naval Staff to review the finding of a court-martial may not be exercised at any time after an application for leave to appeal against a conviction is lodged with the Registrar of the Tribunal: see generally s. 70 of the Naval Discipline Act, 1957 (U.K.) in its application to the Naval Forces of the Commonwealth by virtue of s. 34 of the Naval Defence Act 1910 (Cth). Because of these provisions we are of the view that it was the duty of the Chief of Naval Staff to consider the petition even though it was out of time for the purposes of s. 20(2). Consequently we do not uphold the submission that there was any waiver on the part of the Chief of Naval Staff. Taking this view we do not find it necessary to decide whether the Chief of Naval Staff has power to waive compliance with s. 20(2) or whether that provision is intended for the benefit of the Chief of Naval Staff so as to attract the doctrine of waiver.

For these reasons we are of the view that the appellant is not entitled to apply for leave to appeal. Therefore the application for leave to appeal is refused.

Application dismissed.

Solicitors for the applicant: John Brennan & Co.

Solicitors for the respondent: Legal Services -- Department of Defence.

P. F. MCDERMOTT

[FN1] [1977] 2 N.S.W.L.R., at p. 215.

[FN2] [1977] 2 N.S.W.L.R., at p. 225.

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