CNM v Chief Executive, Department for Child Protection

SUPREME COURT OF SOUTH AUSTRALIA
(Civil: Application)
CNM v CHIEF EXECUTIVE, DEPARTMENT FOR CHILD PROTECTION
[2024] SASC 118
Judgment of the Honourable Auxiliary Justice Nicholson
FAMILY LAW AND CHILD WELFARE - CHILD WELFARE UNDER STATE OR TERRITORY JURISDICTION AND LEGISLATION - CHILDREN IN NEED OF PROTECTION - GUARDIANSHIP OF CHILDREN
PROCEDURE - CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS - MOTIONS, INTERLOCUTORY APPLICATIONS AND OTHER PRE-TRIAL MATTERS
PROCEDURE - CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS - ENDING PROCEEDINGS EARLY - SUMMARY DISPOSAL - SUMMARY JUDGMENT FOR PLAINTIFF OR APPLICANT
PROCEDURE - CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS - ENDING PROCEEDINGS EARLY - SUMMARY DISPOSAL - SUMMARY JUDGMENT FOR DEFENDANT OR RESPONDENT: STAY OR DISMISSAL OF PROCEEDINGS
CM (the applicant) sought judicial review of the Department for Child Protection's (DCP) identification of a risk of harm to his children due to domestic violence. He contended that this constituted a decision affecting his legal rights, specifically challenging the conclusion that the children's mother’s ability to make safe choices was impaired by his use of violence and coercive control. CM filed an originating application (FDN 1) seeking to have this finding set aside.
The respondent, DCP, filed an interlocutory application (FDN 8) seeking summary judgment on the basis that CM's originating application disclosed no reasonable basis for judicial review. DCP argued that the identification of risk was not a decision made in the exercise of a statutory power and thus was not amenable to judicial review. They asserted that the investigation was non-coercive, resulted in no legal consequences for CM, and that any judicial review would lack utility.
Held:
1.The identification of risk conclusion is not a decision made in the exercise of a statutory power and is not amenable to judicial review.
2.The respondent’s application for summary judgment (FDN 8) is granted, as there is no reasonable basis for the relief sought by CM. Consequentially, CM's originating application (FDN 1) seeking judicial review is dismissed.
3.No order as to costs is made.

Children and Young People (Safety) Act 2017 (SA) ss 7, 31, 32, 34, 35, 36, 150, 152; Uniform Civil Rules 2020 (SA) rr 256.5(3)(a), 144.2 ; Independent Commissioner Against Corruption Act 2012 (SA); Ombudsman Act 1972 (SA), referred to.
Adelaide Brighton Cement v Hallett Concrete Pty Ltd (2020) 137 SASR 117; Clough v Leahy (1905) 2 CLR 139; McGuiness v Attorney-General (Vic) (1940) 63 CLR 73; Victoria v Australian Building Construction Employees’ and Builders Labourers’ (1982) 152 CLR 25; Murphy v Lush (1986) 60 ALJR 523; North Ganalanja Aboriginal Corporation v Queensland (1996) 185 CLR 595; King v Ombudsman (2020) 137 SASR 18; L v South Australia (2017) 129 SASR 180, considered.

CNM v CHIEF EXECUTIVE, DEPARTMENT FOR CHILD PROTECTION
[2024] SASC 118
Civil: Application
NICHOLSON AJ.
Introduction

On 23 June 2023, the Department for Child Protection (DCP and respondent), received a notification pursuant to section 31 of the Children and Young People (Safety) Act 2017 (SA) (CYPS Act) to the effect that a child of CM (the applicant) exhibited suspicious indications consistent with sexual harm and may be at risk. The respondent caused an assessment of the notification to be undertaken. Upon completion of the assessment, an investigation into the circumstances of the child and his brother (the children) was undertaken in accordance with subsection 32(3)(a) and section 34 of the CYPS Act. By letter of 1 November 2023, the respondent advised the applicant that a risk of domestic violence had been identified on the basis that the ability of the children’s mother “to make safe choices for the children was impaired” by the applicant’s “use of violence and coercive control”. A risk assessment in accordance with the respondent’s relevant protocol was undertaken and a determination reached that the children were considered to be safe and at low risk in the mother’s home. The children were referred to a therapy service, the file was closed and no further action was taken by the respondent.
The applicant has sought judicial review of, as described in the originating application (FDN 1), the “decision” that “the children are at risk of harm due to domestic violence on account of [the children’s mother’s] ability to make safe choices being impaired by [the applicant’s] use of violence and coercive control”.
The respondent, by interlocutory application (FDN 8), has sought summary judgment on the basis that the applicant’s originating application discloses no reasonable basis for judicial review. The applicant has described that of which he complains as a “decision”. The respondent has characterised it as a “finding”. I will refer to it as the “identification of risk conclusion”.
In addition to the two applications, FDN 1 and FDN 8, I have before me and have had regard to, with no objection:
(i)the applicant’s statement of facts and contentions (part of FDN 1);
(ii)an affidavit affirmed by the applicant on 9 April 2024 (FDN 2);
(iii)an affidavit of Rohan Davison-Bennett (DCP) affirmed 26 April 2024 (FDN 9);
(iv) a second affidavit affirmed by the applicant on 24 May 2024 (FDN 10);
(v)the written submissions of the respondent (FDN 12);
(vi)the written submissions of the applicant (FDN 14);
(vii)a second affidavit of Rohan Davison-Bennett affirmed on 18 June 2024 (FDN 16); and
(viii)the parties’ oral submissions.
The legislative scheme
The following paragraphs accurately summarise the legislative scheme in material respects. I have taken this summary, verbatim, from the respondent’s written submissions at paragraphs [3]-[14].
3.Section 7 of the Children and Young People (Safety) Act 2017 (the CYPS Act) provides that “the paramount consideration in the administration, operation and enforcement of the Act must always be to ensure that children and young people are protected from harm”.
4. Chapter 5, Part 1 of the CYPS Act imposes mandatory reporting obligations on persons employed or otherwise working in a number of prescribed occupations. Section 31(1) of the CYPS Act provides:
A person to whom this Part applies must, if-
(a) the person suspects on reasonable grounds that a child or young person is, or may be, at risk; and
(b) that suspicion was formed in the course of the person’s employment,
report that suspicion, in accordance with subsection (4), as soon as is reasonably practicable after forming the suspicion.
5. Chapter 5, Part 2 of the CYPS Act provides for responses to reports received under the mandatory reporting system:
5.1 Section 32 of the CYPS Act requires the Chief Executive to cause each report to be assessed in accordance with any requirements set out in the regulations. Regulation 11 of the Children and Young People (Safety) Regulations 2017 (SA) (the CYPS Regulations) requires reports or notifications to be assessed in accordance with any requirement or direction of the Chief Executive.
5.2 Section 32(2) states that the Chief Executive may, in the course of an assessment under this section, make use of or rely on such systems of information gathering, collating or reporting as the Chief Executive thinks fit (whether or not the system is operated or provided by a State Authority). Importantly, the CYPS Act provides no further detail as to how an assessment of a report or notification is to be undertaken.
5.3    For the purpose of initially assessing whether a child is exposed to harm and/or risks of harm, DCP have policy based categories of harm, each of which is defined and determined by a series of identified factors. A child’s circumstances are assessed against these categories of harm, which are referred to as screening criteria.[1] All reports of harm and/or risk of harm made under s 31 are considered against the screening criteria.
[1]    Affidavit of Rohan Bennett affirmed 26 April 2024, p 10 (Exhibit RB-2).
5.4 Section 32(3) provides that upon completion of an assessment under s 32, the Chief Executive must cause at least one of the actions set out in sub-section (3) to be taken. Relevantly, for the purposes of this matter, one of those actions is the carrying out of an investigation into the circumstances of the child under s 34 of the CYPS Act (s32(3)(a)).
5.5 Section 34 provides a broad discretion to the Chief Executive to cause an investigation into the circumstances of a child or young person if a report is made pursuant to s 31 and if the Chief Executive suspects on reasonable grounds that the child or young person may be at risk (or in any other circumstances) subject to any further provisions contained in the CYPS Regulations in relation to an investigation under this section. The CYPS Regulations are silent as to any regulations for the purposes of s 34.
6. DCP has a Manual of Practice (the Manual) “to support and guide DCP staff to undertake child protection practice”.[2] The Manual provides detailed guidance about how a DCP employee can plan and conduct an investigation into the circumstances of a child experiencing harm or suspected to be at risk of harm. For example, the Manual allows for child protection practitioners to convene strategy discussions with individuals from different agencies, as well as engage with the child the subject of the notification.[3] It also expressly encourages DCP practitioners to “apply professional judgment to each individual child protection case in its specific context.”[4]
[2]    Affidavit of Rohan Bennett affirmed 26 April 2024, p 45 (Exhibit RB-3).
[3]    Affidavit of Rohan Bennett affirmed 26 April 2024, pp 65 and 86 (Exhibit RB-3).
[4]    Affidavit of Rohan Bennett affirmed 26 April 2024, p 45 (Exhibit RB-3).
7.An investigation will, among other matters, look to determine whether any harm and/or risk of harm identified in the initial assessment has some basis. In the course of an investigation, information may be gathered about a child’s circumstances from a wide range of sources, and usually, information is provided voluntarily without any powers being exercised. There are some steps that DCP can take as part of an investigation which are set out in the Act:
7.1    Section 35 states that in some circumstances (for example, when the child has been removed and is in the custody of the Chief Executive), a child can be professionally examined or assessed by direction of the Chief Executive; and
7.2    Section 36 states that if the Chief Executive reasonably suspects the child or young person is at risk as a result of the abuse of a drug or alcohol, the Chief Executive can direct the parent, guardian or another person to undertake an approved drug and alcohol assessment.
Importantly, these steps are set out in Chapter 5, Part 2 of the CYPS Act, which is entitled “Responding to reports etc that child or young person may be at risk”, and ss 32 and 34 also fall within this Part.
8. There are other sections within the CYPS Act outside of Chapter 5, Part 2 that allow for DCP to obtain information, not necessarily in the course of an investigation occurring as a result of s 34:
8.1    Section 150 allows for a child protection officer to require, by way of a notice in writing, a specified person or body to provide them with information or documents. Failure to do so constitutes an offence; and
8.2    Section 152 allows for the sharing of information between certain persons and bodies (including DCP) if the provider of information or documents reasonably believes that the provision would assist the recipient in performing functions relating to children and managing any risk to a child which might arise in the recipient’s capacity as an employer or provider of services.
9. Towards the end of the investigation, a finding is then made as to whether a category of harm (either the subject of a notification, or another category of harm that is discovered during the course of investigation) is substantiated or not substantiated, and/or in the case of risk of harm, whether that risk has been identified or not identified.[5] Importantly, the process through which that any finding is made or risk identified is not set out in the CYPS Act, nor is any finding required by the legislation.
10. A finding of substantiation of harm or identification of risk of harm is no more than an opinion that a DCP category of harm as defined in the DCP Screening and Response Priority Assessment has been made out on the information gathered during the course of the investigation.
11. At the conclusion of an investigation, DCP case workers assess the risk to the safety of the child using the Initial Risk Assessment for Abuse and Neglect Policy and Procedures Manual.[6] A risk level is assigned in respect of a household in which the child will reside.[7]
12. Following an investigation and assessment of the risk to a child, DCP case workers must determine what, if any, further action may be taken.[8] Broadly speaking, DCP may determine that further intervention by DCP should occur or that no further intervention should occur. In either case, DCP may also determine that referrals should be made to other support services and agencies.[9]
13. Further intervention might involve the exercise of statutory powers under the CYPS Act, such as convening a family group conference,[10] the removal of a child from a place,[11] or an application for court orders for the care and protection of the child.[12]
14. Each of these statutory interventions may only be exercised by the Chief Executive or the Minister, subject to the statutory criteria for their exercise. In the case of each of these statutory powers, the CYPS Act provides rights to parents of the child, either to participate in a family conference[13] or as a party to proceedings.[14]
(Emphasis in original)
[5]    Affidavit of Rohan Bennett affirmed 26 April 2024, p 151 (Exhibit RB-3).
[6]    Affidavit of Rohan Bennett affirmed 26 April 2024, p 169 (Exhibit RB-4) & p 9 (Exhibit RB-1).
[7]    Affidavit of Rohan Bennett affirmed 26 April 2024, p 183 (Exhibit RB-4).
[8]    Affidavit of Rohan Bennet affirmed 26 April 2024, p 9 (Exhibit RB-1).
[9]    Affidavit of Rohan Bennett affirmed 26 April 2024, p 9 (Exhibit RB-1)
[10] CYPS Act, Chapter 4, Part 2.
[11] CYPS Act, Chapter 5, Part 3.
[12] CYPS Act, Chapter 6, Part 1.
[13] CYPS Act, s 23.
[14] CYPS Act, s 51.
The respondent’s principal arguments in support of dismissal
The Court must dismiss an action for judicial review if upon application for summary judgment, the respondent establishes that there is no reasonable basis for undertaking the judicial review as sought.[15] The Court must engage in a “practical assessment of whether the applicant has real, as opposed to merely fanciful, prospects of success”.[16] Mere satisfaction that the claim is unlikely to succeed is insufficient as a basis for summary dismissal. However, it is not necessary to establish that the claim is “hopeless” or “bound to fail”.[17]
[15] Uniform Civil Rules 2020 (SA), rr 256.5(3)(a) and 144.2, Adelaide Brighton Cement v Hallett Concrete Pty Ltd (2020) 137 SASR 117; [2020] SASC 161 at [53]-[59] (Doyle J).
[16] Adelaide Brighton Cement v Hallett Concrete Pty Ltd (2020) 137 SASR 117; [2020] SASC 161 at [59] (Doyle J).
[17] Adelaide Brighton Cement v Hallett Concrete Pty Ltd (2020) 137 SASR 117; [2020] SASC 161 at [59] (Doyle J).
The respondent’s principal contention is that the identification of risk conclusion was not a decision made in the exercise of a statutory power and, as such, is not amenable to judicial review. If so, this would be a complete answer to the applicant’s interlocutory application seeking judicial review.
In short:
(i)DCP received a report pursuant to section 31 of the CYPS Act of a suspicion, said to be based on reasonable grounds, that a child of the applicant may be at risk;
(ii)once the notification had been received, the Chief Executive was obliged to and did cause the report to be assessed (subsection 32(1));
(iii)upon completion of the assessment, the Chief Executive, whilst not obliged to, exercised the discretion available under subsection 32(3)(a) to cause an investigation into the circumstances of the child to be carried out under section 34;
(iv)such an investigation was carried out which included an interview of the applicant by DCP employees;
(v)the identification conclusion was reached and notified by both the applicant and the mother; and
(vi)the DCP file concerning the child and his brother was closed and no further action under the CYPS Act was undertaken.
I accept, as the respondent contends, that the CYPS Act is largely silent as to the process to be engaged in when undertaking a section 34 investigation. The discretion to engage in such an investigation is unfettered by any statutory requirement other than, in a case such as the present, a reported suspicion and an assessment thereof must first occur. Further whilst subsection 34(3) provides that regulations may make further provision in relation to a section 34 investigation, no such regulations have been promulgated.
Rather, DCP has available to it a very substantial manual which provides guidance to relevant employees as to how to conduct such an investigation, as explained earlier in these reasons. Whilst the CYPS Act provides for the exercise of certain coercive powers that might assist such an investigation, for example, sections 150 and 152,[18] no such coercive powers were deployed in the present case. Usually, as was the case in this matter, information is sought and provided on a voluntary basis without the exercise of any coercive powers.
[18] Sections 35 and 36 by their terms are inapplicable to the present case.
I accept the respondent’s submission that the investigation here is of the same nature as the well established general power of the executive government to conduct non-statutory non-coercive enquiries.[19] Section 34, in effect, confirms the existing general power in the executive to investigate. In King v Ombudsman,[20] Doyle J (with whom Parker J and Tilmouth AJ agreed) explained the relevance of this in the context of the Ombudsman’s statutory reporting function.
I commence by focusing upon Mr King's challenge to the Ombudsman's report in respect of the 2016 Investigation on account of it containing two adverse findings about him which he contends were infected by error (in that the Ombudsman failed to take into account relevant considerations and that the findings were otherwise legally unreasonable). The Ombudsman contends that in circumstances where the report, opinions and recommendations of the Ombudsman have no legal effect, they are not amenable to judicial review on the grounds relied upon by Mr King, and in any event cannot sound in the relief sought.
In considering the amenability to review of an exercise of power, it is relevant to have regard to its source, nature and effect.
Here, the power to form opinions, make recommendations and report on the same (which I shall for convenience refer to compendiously as the Ombudsman's reporting power or function) has a statutory foundation in s 25(1) and (2) of the Ombudsman Act. However, the fact that a power takes a statutory form, whilst a relevant consideration, does not necessarily mean that it is impliedly constrained by the administrative law principles that commonly condition the exercise of statutory powers. It is relevant to have regard to the nature of the power, and not simply its statutory form, when considering whether any jurisdictional pre-requisites to its exercise should be implied.[21] For example, where the power is, or is closely analogous to, a power possessed in common with natural persons (such as the power to contract, to undertake non-coercive investigations or to hold and transfer property and information), this may be an indicator that it is not subject to implied statutory constraints.[22]
Here, at least at a general level, the Ombudsman's reporting power or function is one shared with natural persons. A natural person is empowered to undertake an inquiry or investigation, to form conclusions or opinions about the conduct under investigation, and to make recommendations to address any concerns. Executive government is likewise entitled in the ordinary course to investigate and report without any limit, albeit that there must be some statutory basis for any utilisation of compulsion in this context.[23]
The Ombudsman's power to report is not itself a coercive power. It does not compel any particular action, other than in the general sense that there is an obligation upon the principal officer of the relevant agency (if requested) to report back to the Ombudsman as to the action taken in response to any recommendations in the report. It may thus be contrasted with the coercive powers conferred upon the Ombudsman to assist in the investigation phase of his functions under ss 19, 19A and 23 of the Ombudsman Act.
It is also relevant that the Ombudsman's investigative and reporting functions are broadly expressed, being largely without any specific or ascertained criteria by reference to which they are to be exercised.[24]
[19] Clough v Leahy (1905) 2 CLR 139 at 156-157 (Griffith CJ), 163 (Barton and O’Connor JJ concurring); [1904] HCA 38; McGuiness v Attorney-General (Vic) (1940) 63 CLR 73 at 83-84 (Latham CJ), 101-102 (Dixon J); [1940] HCA 6; Victoria v Australian Building Construction Employees’ and Builders Labourers’ (1982) 152 CLR 25 at 47 (Gibbs CJ), 64-68 (Stephen J), 68 (Mason J), 120 (Aickin J), 156 (Brennan J) and 124-125 (Wilson J); [1982] HCA 31; Murphy v Lush (1986) 60 ALJR 523 at 526 (Gibbs CJ, Mason, Wilson, Brennan, Deane and Dawson JJ); [1986] HCA 37; North Ganalanja Aboriginal Corporation v Queensland (1996) 185 CLR 595 at 634-635 (McHugh J); [1996] HCA 2.
[20] (2020) 137 SASR 18; [2020] SASCFC 90 at [91]-[96] (Doyle J).
[21] (2017) 129 SASR 180 at [136]; [2017] SASCFC 133.
[22] Xenophon v South Australia (2000) 78 SASR 251 at [8], [18], [58]-[63]; [2000] SASC 327; Acquista Investments Pty Ltd v Urban Renewal Authority (2015) 123 SASR 147 at [98]-[103]; [2015] SASCFC 91.
[23] R v Collins; Ex parte ACTU-Solo Enterprises Pty Ltd (1976) 50 ALJR 471.
[24] Xenophon v South Australia (2000) 78 SASR 251 at [58]; [2000] SASC 327, referring to Mason J in R v Toohey; Ex parte Northern Land Council (1981) 151 CLR 170 at 219.

In L v State of South Australia,[25] the Full Court[26] held that neither reports finalised by the Care Concerns Investigation Unit of the South Australian Department for Education and Child Development which concluded that the plaintiffs abused and inadequately cared for foster children in their care nor their endorsement by the Chief Executive were amenable to judicial review. In so finding, the Court recognised that this general ability in the executive to conduct investigations is no different from the power to do so in private persons and may be exercised personally by employees or agents of the Crown. The reasoning of Kourakis CJ on behalf of the Court included the following.[27]
[25] (2017) 129 SASR 180; [2017] SASCFC 133.
[26] Kourakis CJ, Parker and Doyle JJ.
[27] L v State of South Australia (2017) 129 SASR 180; [2017] SASCFC 133 at [102]-[104] (Kourakis CJ).
It has been widely accepted that the prerogative powers comprise only those common law powers unique to the Crown.[28] It is in that sense that the prerogative has long been understood in Australia. In Clough v Leahy Griffith CJ explained:[29]
[28] Wheeler, “Judicial Review of Prerogative Power” (1992) 14 Syd LR 432 at 447 and see texts there cited.
[29] Clough v Leahy (1904) 2 CLR 139 at 156; [1922] HCA 2.
That term is generally used as an epithet to describe some special powers, greater than those possessed by individuals, which the Crown can exercise by virtue of the Royal authority. There are some such powers exercised under the law, but the power of inquiry is not a prerogative right.
(Emphasis added.)
Griffith CJ continued:[30]
[E]very person is free to make any inquiry he chooses; and that which is lawful to an individual can surely not be denied to the Crown, when the advisers of the Crown think it desirable in the public interest to get information on any topic.
The Chief Justice then observed, however, that the power to compel an answer could only be found in statute. So too for the Minister through the Chief Executive and for the other officers of the Department in the instant cases. The inquiries and subsequent assessment and reports they make are simply the exercise of human faculties which are not only not denied to the executive government, but are also critical to its efficient operation. Moreover, no questioning of legal validity in effect, purpose or method is raised by the making of those inquiries. Such inquiries may be a good or poor use of resources, but the efficiency and standards of the officers of the Department and the Minister is accountable only to Parliament and, in the case of an abuse of those resources or administration, subject to investigation by ICAC[31] or the Ombudsman.[32]
It is now accepted that there is no free-standing common law requirement that an administrative decision-maker under statute must comply with the rules of procedural fairness or that the common law can impose any other limitation on the exercise of statutory power.
[30] Clough v Leahy (1904) 2 CLR 139 at 156; [1922] HCA 2.
[31] Independent Commissioner Against Corruption Act 2012 (SA).
[32] Ombudsman Act 1972 (SA).
In the present case, the identification of risk conclusion had no legal consequences and there was no delegation of investigative powers (as opposed to the investigation itself which was non-coercive) and no prescription, by statute or regulation, of the investigatory process. The identification of risk conclusion was not a decision made in the exercise of statutory power and was not amenable to judicial review.
The respondent also contends that any judicial review of the identification of risk conclusion would lack utility. The applicant would like the conclusion to be set aside, in effect, relief in the nature of certiorari. The respondent submitted as follows, which submission I accept as correctly summarising the legal position.[33]
It appears that the Applicant seeks relief that the substantiation finding “be set aside”. That is essentially an order in the nature of certiorari. Such relief will ordinarily not be granted unless the challenged decision has a legal impact on the applicant. An opinion formed or a recommendation made by a public official may form the basis for discretionary steps to be taken by another decisionmaker. However, the opinion or recommendation will not be reviewable unless the public official who formed the opinion or made the recommendation was under a legal obligation in forming the opinion or making the recommendation and/or obligated to take legal steps once the opinion was formed or recommendation made. Where there is no legal duty to consider the decision under challenge, certiorari will have no work to do as the impugned decision is of no consequence whether quashed or not.[34]
[33] Written submissions of respondent (FDN 12) at [36].
[34] Hot Holdings Pty Ltd v Creasy (1996) 185 CLR 149 at 158-165 (Brennan CJ, Gaudron & Gummow JJ); [1996] HCA 44. Ainsworth v Criminal Justice Commission (1992) 175 CLR 564 at 580-581 (Mason CJ, Dawson, Toohey & Gummow JJ); [1992] HCA 10; Apache Northwest Pty Ltd v Agostini[No 2] [2009] WASCA 231 at [12] (Wheeler and Newnes JJA); King v Ombudsman & Anor (2020) 137 SASR 18 at 42 [105], 52-53 [145]-[147] (Doyle J with Parker J and Tilmouth AJ agreeing); [2020] SASCFC 90.
The conclusion complained of has had no legal effect on the applicant and there has been no consequential action affecting his rights or those of his children. The fact that the outcome letter may have come to the attention of the applicant’s wife or other jurisdictions such as the Administrative Appeals Tribunal or a court exercising family law jurisdiction does not alter the fact that no such consequential action has been effected. Should the conclusion ever be relied on elsewhere, its terms and the reliability of its evidentiary basis can be challenged in that context. Further, the relief being sought is discretionary in nature; any order setting aside the finding or granting declaratory relief would serve no practical purpose.
Conclusion
I am satisfied that the application for judicial review should be summarily dismissed because there is no reasonable basis for undertaking a judicial review; the applicant has no prospect of success. At the hearing of the respondent’s application for summary dismissal, the respondent advised that were it to succeed it would seek no order as to costs.
I order that the respondent’s application for summary judgment is granted (FDN 8). Consequentially, the applicant’s originating application, FDN 1, seeking judicial review is dismissed. I make no order as to costs.

[2024] SASC 118

23 September 2024