Ferdinands v Attorney-General of South Australia (Sitting in Executive Council) - [2007] SASC 53

Supreme Court of South Australia
(Civil: Application)
FERDINANDS v ATTORNEY-GENERAL OF SOUTH AUSTRALIA (SITTING IN EXECUTIVE COUNCIL)
[2007] SASC 53
Judgment of The Honourable Justice Layton (ex tempore)
15 February 2007
PROCEDURE - SUPREME COURT PROCEDURE - SOUTH AUSTRALIA - PROCEDURE UNDER RULES OF COURT
ADMINISTRATIVE LAW - JUDICIAL REVIEW - STANDING TO INSTITUTE PROCEEDINGS - GENERALLY
ADMINISTRATIVE LAW - PREROGATIVE WRITS AND ORDERS - CERTIORARI - DISCRETION OF COURT AND MATTERS PRECLUDING RELIEF - GENERALLY
Application for permission to commence an action for judicial review pursuant to 6SCR 200 of the Supreme Court Civil Rules 2006 (SA) – the applicant sought an order by way of certiorari quashing a decision of the Attorney-General and the Executive Council to appoint a Judge to the Supreme Court of South Australia – the applicant alleged that the Attorney-General defrauded Cabinet/Executive Council in the decision to recommend a Judge for appointment - whether applicant had a “reasonable basis” to be granted permission for judicial review – Held: the applicant did not have a “reasonable basis” to be granted permission to institute proceedings for judicial review – no standing (locus standi) to institute proceedings – no sufficient interest either in his capacity as an individual or in the public interest – the processes undertaken by the Attorney-General, Cabinet and the Executive Council in relation to the recommendation and appointment of Judges to the Supreme Court are non-justiciable in the circumstances – inadequate factual foundation to support the allegations made, in particular that the Attorney-General defrauded Cabinet/Executive Council – permission refused.
Constitution Act 1934 (SA) s 66(2); Supreme Court Act 1935 (SA) s 7; s 8; s 9; Supreme Court Civil Rules 2006 (SA) 6R 131; 6SCR 200, referred to.
Australian Conservation Foundation Incorporated v The Commonwealth (1980) 146 CLR 493; Attorney-General for the State of New South Wales v Quinn (1989-1990) 170 CLR 1; Re Bromfield; Ex Parte West Australian Newspapers Ltd (1991) 6 WAR 153; Onus v Alocoa of Australia Ltd (1981) 149 CLR 27; R v Liverpool Corp; Ex parte Taxi Fleet Operators Taxi Fleet Operator's Association [1972] 2 QB 299; R v Paddington Valuation Officer; Ex parte Peachey Property Corp [1966] 1 QB 380, considered.

WORDS AND PHRASES CONSIDERED/DEFINED
"reasonable basis", "standing", "justiciability"

FERDINANDS v ATTORNEY-GENERAL OF SOUTH AUSTRALIA (SITTING IN EXECUTIVE COUNCIL)
[2007] SASC 53
LAYTON J.
Introduction

Trevor Kingsley Ferdinands seeks permission to proceed with an action for judicial review which seeks an order by way of certiorari, together with other related orders including production of documents, pursuant to Rule 200 (4) and (5) of the Supreme Court Civil Rules 2006 (‘6SCR’). I have previously given directions as to the filing of documents related to his application and in particular directed that his Application for Directions be treated as an interlocutory application taken out pursuant to 6SCR 131.
Rule 200 (4) of the Supreme Court Civil Rules 2006 requires a court to grant permission for judicial review to proceed only if the court is satisfied that there is a “reasonable basis” upon which the applicant might establish a right to an order, which in this case is an order by way of certiorari.
In order to decide whether I am so satisfied, it is necessary to have regard to the bases for the judicial review and these matters include:
1.The standing of the plaintiff to institute proceedings for judicial review (locus standi);
2. The nature of the decision sought to be quashed by way of certiorari;
3.The person or body named as the defendant in the judicial review to whom the order is sought to be directed;
4.The justiciability of the decision which is the subject of the judicial review and order;
The information before me upon which I must base my decision consists of two affidavits of Mr Ferdinands sworn on 1 February 2007, and an exhibit.
In this case the main order sought is an order by way of certiorari. The person named as the defendant is the “Attorney General of South Australia (sitting in Executive Council)”. The order for certiorari is directed to a decision which is alleged to have been made by “Executive Council ” to appoint Judge Kelly, formerly a Judge of the District Court, to a be a Judge of the Supreme Court of South Australia. The plaintiff was unable to give the date of the decision. I note that the Government Gazette indicates that on 18 January 2007 the Governor’s Deputy in Executive Council appointed Judge Kelly as a Judge of the Supreme Court.
In giving directions as to the filing of documents on this matter, I also directed that the matter be listed before me to enable Mr Ferdinands to present an argument orally as to why he should be given permission to pursue this action pursuant to 6SCR 200 (4). This hearing took place yesterday and Mr Ferdinands, who was not represented by counsel, made his submissions.
The grounds upon which the order is sought to quash the named decision are set out in some length in Mr Ferdinands’ affidavits and include the following matters:
·the decision is wrong in law;
·there was a failure by the Premier, Attorney-General and Executive Council to consult widely;
·the Premier, Attorney-General and Executive Council failed to amend legislation so as to have an open and transparent process of appointment of persons as Judges of the Supreme Court;
·the Attorney-General knowingly and deliberately withheld, misled and deceived Executive Council as to the professional conduct of Ms Trish Kelly which was later claimed in the document to be a “fraud upon Executive Council by the Attorney General;
The affidavit then details a number of alleged deficiencies of Judge Kelly which it is asserted were known by the Attorney-General. These allegations are in connection with a particular case involving David Scott Hossack, a former member of the South Australian Police. The nature of the allegations made against Judge Kelly relate to a time when she was employed in the office of the Director of Public Prosecutions in or about 2000. The allegations are expressed in inflammatory and extreme language and lack any factual particularisation. In addition, a number of other people are named who are alleged to be co-conspirators.
In oral argument Mr Ferdinands clarified that the “orders sought say it is a fraud on Executive Council. It’s not brought on any other ground”. I therefore understood that this was the major if not sole ground upon which he was pursuing judicial review, namely an allegation of “fraud upon the Executive Council by the Attorney General”.
In his affidavit Mr Ferdinands deposes to “The Particulars of the Case” in which he refers to an incident which he says arose in 2000 between David Scott Hossack and himself. He deposes that he was the police officer posted to the City Watch House and Mr Hossack was arrested and brought to the City Watch House. He deposes to “a short incident” between himself and Mr Hossack and that allegations were made that he assaulted Mr Hossack. I was informed by him orally that these allegations were the subject of a case in the Magistrates Court in a matter South Australia Police v Ferdinands. He deposes that he was convicted by a Magistrate and appealed to the Supreme Court. The appeal in the Supreme Court was not continued because, he submitted to me, his employment as a police officer was terminated. He deposes that “under a direction” of a Supreme Court Judge who was sitting on his appeal, he issued proceedings in respect of termination of employment in the Industrial Court. Mr Ferdinands informed me that he was unsuccessful despite several appeals, including to the High Court. His failure, he submitted, was because the remedy sought was not available in the Industrial Court by reason of the special nature of appointment of police officers.
The connection which Mr Ferdinands makes between the above matters and Judge Kelly, as contained in his affidavits, is that Judge Kelly handled the file in relation to his appeal against conviction in the Supreme Court when she was employed at the office of the Director of Public Prosecutions. Mr Ferdinands deposes in the affidavit that Judge Kelly did not act appropriately and that he had reported her conduct, together with the conduct of other persons, to the Attorney-General. Mr Ferdinands asserts that the Attorney-General refused or declined to act.
The argument then continues, that the Attorney-General knew of these matters together with other aspects set out in his affidavit and that the matters should have been before Executive Council when it made its decision. It is asserted that the Attorney-General concealed these matters and that this was the fraud by the Attorney-General.
I have not set out every single matter which is contained in Mr Ferdinands’ affidavits, but having heard his submissions, these seem to the be the major points.
The Decision
Before considering the arguments further, it is necessary for me to clarify precisely what is the decision sought to be quashed by certiorari.
The documentation refers to a decision to appoint Judge Kelly made by the Executive Council. It does not challenge the appointment of Judge Kelly which was made by the Deputy Governor in Executive Council.[1]
[1] Supreme Court Act 1935 (SA) s 9; The South Australian Government Gazette, (18 January 2007), 186.
In the course of argument, I suggested to Mr Ferdinands that the process for appointment of Judges to the Supreme Court by the Governor in Executive Council, was upon a decision or probably more precisely a recommendation made by Cabinet to appoint Judge Kelly, rather than a decision by Executive Council. For the purposes of considering this application I will regard his challenge to include both Cabinet and Executive Council, although they are obviously separate bodies. Executive Council being a statutory body[2] and Cabinet being a body by parliamentary convention. My concern is more about what “decision” he complains of.
[2] ‘Every Minister of the Crown is, ex officio, a member of the Executive Council’: Constitution Act 1934 (SA) s 66(2).
The documents refer to “a decision by the Attorney-General and the Executive Council to appoint Trish Kelly, a Judge of the District Court to the Supreme Court of South Australia”. In the course of his submissions there appeared to be an expansion of the scope of the decision so that what is sought to be complained of is not simply the decision of the Attorney-General and the Executive Council/Cabinet, but rather the action or inaction of the Attorney-General in relation to the “pre-appointment” documentation and the processes which lead up to the recommendation by Executive Council/Cabinet for appointment.
Bearing in mind that the primary argument put by Mr Ferdinands is said to be the alleged fraud of the Attorney-General, it appears that the attack on these processes is related to this allegation of fraud. I will therefore treat the decision sought to be reviewed and quashed as that pleaded, being a decision by the Attorney-General and Executive Council/Cabinet to recommend appointment of Judge Kelly.
Standing
I will first deal with the issue of standing to seek the order for certiorari before then dealing with the other matters of justiciability, whether the defendant is appropriately named, and the alleged fraud.
I requested Mr Ferdinands, in the course of his oral submissions, to indicate on what basis he said that he had standing to seek the order for certiorari. He asserted that he had “a direct vested interest” in the appointment because he was “the victim of overt prejudice and bias”. In addition, he submitted he had standing because there was a public interest in appointment of Judges to be of appropriate standing and for there to be an appropriate procedure for appointment.
Much has been written on the topic of standing (locus standi) in regard to prerogative writs and with regard to certiorari. I note that the standing requirements have been interpreted more liberally by the courts in relation to prerogative writs of certiorari than for other orders such as declaration or an injunction.[3] I also note that sometimes the test for standing has been expressed as a person having to have a “sufficient interest” provided that the plaintiff is not a “busybody”.[4]
[3] See Re Bromfield; Ex Parte West Australian Newspapers Ltd (1991) 6 WAR 153, 163.
[4] R v Paddington Valuation Officer; Ex parte Peachey Property Corp [1966] 1 QB 380, 401; R v Liverpool Corp; Ex parte Taxi Fleet Operators Taxi Fleet Operator’s Association [1972] 2 QB 299, 308-9.
I note that “sufficient interest” is very broad but that there must be a link between the “sufficient interest” and the “decision” complained of. In this case, I note that the decision complained of and sought to be quashed, is the decision to appoint Judge Kelly.
Even accepting Mr Ferdinands’ allegations for the purposes of this argument, he complains about alleged behaviour of Judge Kelly which dates back to 2000 which he says affected him. The issue is whether that grievance or that interest in past conduct which he alleges against himself as a victim, gives him standing in relation to the completely different matter of Judge Kelly being appointed to the Supreme Court. There is no direct connection between Mr Ferdinands’ interest in his own situation, and the decision to appoint Judge Kelly to the Supreme Court. Mr Ferdinands appears to be in no different situation from other persons in the community with regard to the affect on him of her appointment to the Supreme Court. The affect required is not ‘…mere intellectual or emotional concern.’[5] I therefore do not consider that he has standing as a person who has a “sufficient interest” in the decision by reason of his own personal circumstances
[5] Australian Conservation Foundation Incorporated v The Commonwealth (1980) 146 CLR 493, 530.
However, I must still consider his claim that he is taking this action “in the public interest”. This argument requires different considerations, namely consideration of the plaintiff as a member of the public taking action in that capacity rather than being a person who has a sufficient interest of his own in the decision.[6]
[6] Ibid.
With regard to public interest and standing on that basis, again there must be a connection with the plaintiff as a member of the public being affected by the decision. In this case the argument as to standing on the basis of either a sufficient interest and also a public interest become merged. Mr Ferdinands refers back to his own circumstance, as a person who has suffered pain, suffering and financial losses.
The accusations which are made about the alleged conduct by Judge Kelly with regard to a specific case in which she was involved and in which the plaintiff alleges he has an interest, cannot be extrapolated into a broader argument that Judge Kelly should not have been recommended for appointment to the Supreme Court. Mr Ferdinands argues that the public interest will be adversely affected by Judge Kelly’s appointment, due to what he describes as her “prejudices, her bias, and her dishonest conduct”. Mr Ferdinands relies on his own experience as the basis for arguing that the public interest in this case is sufficient to give him standing. However, I consider that these matters can be raised no higher than being Mr Ferdinands’ own personal views. Therefore, it is not reasonably arguable that Mr Ferdinands has standing as a person who is affected by the decision to appoint Judge Kelly. I will deal with the allegation of fraud later in these reasons.
For these reasons I consider that there is no basis upon which Mr Ferdinands has standing to seek judicial review and seek an order for certiorari to quash the decision to appoint Judge Kelly, either on the basis of having a sufficient interest or grievance, or on the basis of public interest in the manner he contends. Instead it appears to me from having seen the material put forward by Mr Ferdinands, and having also heard his oral submissions, that the situation of Mr Ferdinands is that described by Stevens J in Australian Conservation Foundation Incorporated v The Commonwealth (1980) 146 CLR 493 at 539, namely:
An individual does not suffer such damage as gives rise to standing to sue merely because he voices a particular concern and regards the actions of another as injurious to the object of that concern.
Nor is the plaintiff regarded as having a sufficient interest in the subject matter of an action:[7]
Unless he is likely to gain some advantage, other than the satisfaction of righting a wrong, upholding a principle or winning a contest…
[7] Australian Conservation Foundation Incorporated v The Commonwealth (1980) 146 CLR 493, 530.
Further as Brennan J said in Onus v Alcoa of Australia Ltd (1981) 149 CLR 27 at 74:
Where a plaintiff seeks to enforce compliance with a public duty, standing is to be found in some affection or threatened affection of the plaintiff’s interests by the defendant’s breach or apprehended breach of duty. Conversely, a defendant is liable to be sued because by his breach of duty he has affected, or by his apprehended breach of duty he threatens to affect, the plaintiff’s interests.
Whilst Brennan J is referring to a public duty, these same aspects also appear applicable to the arguments put forward by the plaintiff as to the public interest in the processes of appointment of Judges and the arguments sought to be mounted as to the qualities of a person being appointed.
I consider that on the issue of standing alone, there is no reasonable basis for permitting the plaintiff to commence the action for judicial review.
Justiciability
However, there are still other impediments which lie in the way of the plaintiff satisfying me that he has a “reasonable basis” for the order sought in the action. These concern both the person who has been named as the defendant, namely the Attorney-General of South Australia (sitting in Executive Council), as well as whether or not a prerogative power to appoint a person as a Judge of the Supreme Court is justiciable by this Court.
In South Australia, Judges of the Supreme Court are appointed by the Governor as set out in s 9 of the Supreme Court Act 1935 which relevantly provides:[8]
9 (1) whenever necessary, the Governor shall appoint a qualified person to hold the office of Judge of the Court with a tenure prescribed by the Constitution Act, 1934, but subject to the provisions of this Act as to retirement.
[8] Supreme Court Act 1935 (SA) s 9.
The only other relevant section is the qualifications for appointment namely s 8 which provides:[9]
8 (1) no person shall be qualified for appointment as a puisne Judge of the Court unless he is a practitioner of the Court of not less than ten years’ standing.
[9] Supreme Court Act 1935 (SA) s 8.
Therefore the appointment of Supreme Court Judges is an exercise of the prerogative power.
It is firstly to be noted that it is not the Attorney-General who appoints the appointee. The Governor or in this case the Deputy Governor, makes an appointment in Executive Council, upon the recommendation for appointment by Cabinet. Whilst there may be certain practices of consultation which may be undertaken prior to a decision by Cabinet to make a recommendation, they are not required by any statute and essentially the decision or recommendation by Cabinet to the Governor in Council, resides solely within the discretion of the executive arm of Government.

In Attorney-General for the State of New South Wales v Quin (1989-1990) 170 CLR 1, the High Court discussed in a different context the appointment of judicial officers. The issue in that case concerned stipendiary magistrates who had initially been the subject of appointment pursuant to statute, before changes were made by the New South Wales Government to replace that process, with Magistrates being appointed by the Governor. The High Court gave consideration to the overall circumstance of making the appointments to the Supreme Court. At page 18 Mason CJ said:[10]
Generally speaking, the judicial branch of Government should be extremely reluctant to intervene in the Executive process of appointing judicial officers…the function of making appointments to the Judiciary lies within the exclusive province of Executive. According to tradition, it is not a function over which the courts exercise supervisory control.
[10] Attorney-General for the State of New South Wales v Quin (1989-1990) 170 CLR 1, 18.
Also in that same case Brennan J said the following at page 26:[11]
The power with which this case is concerned is the power to point Magistrates under s 12(1) of the Local Courts Act, 1982 (NSW).[12] That power is conferred on the Governor, and it is a novelty for a court to review judicially a Minister’s advice to the Governor as to the Governor’s exercise of a statutory power. At common law judicial review does not consist in assessing the legal affect of the steps taken preliminary to the exercise of a power but in a determination of the legality of the exercise or purported exercise of the power. The preliminary steps may be relevant to the legality of the exercise of the power but they are not themselves the subject of review. Where a power is conferred on the Governor, no act of the Minister amounts to an exercise, or non-exercise of the power. A court may examine – not review – what a Minister has done or failed to do, but only if the validity of the exercise of a power by the Governor depends on the Minister’s reasons or on the procedure adopted by the Minister in deciding upon that advice. The court may be required to make that examination in order to determine whether a condition governing the exercise of a power has been satisfied. Except in such a case, it would be a major intrusion by the court into the workings of the Executive Government to review judicially the advice given to the Governor by a Minister.
[11] Ibid, 26.
[12] Section 12 provided that “the Governor may, by commission under the public seal of the State, appoint any qualified person to be a Magistrate”.
Toohey J also said the following at page 64:[13]
Mr Quin does not quarrel with the general proposition, that in making appointments to judicial office, the Executive may make such appointment as it pleases.
[13] Attorney-General for the State of New South Wales v Quin (1989-1990) 170 CLR 1, 64.
Toohey J then went on to endorse what Mahoney JA had said in relation to the exercise of the prerogative to appoint which he regarded as immune from judicial review. His Honour continued to say:[14]
The appointment of judicial officers for reasons other than merit would rightly attract the wroth of the community as did President Roosevelt’s plan to “pack” the Supreme Court of the United States in 1937. But the appointments would not thereby be invalid. In ordinary circumstances, the courts have no role to play when it is suggested that a person appointed to judicial office was not appointed by reason of merit or even that the person was wholly unsuitable for judicial appointment. A court might, in an extreme case make its views known but it would have no jurisdiction to interfere with the appointment.
[14] Attorney-General for the State of New South Wales v Quin (1989-1990) 170 CLR 1, 64.
None of these Judges give endorsement to the argument sought to be put by Mr Ferdinands. Their observations are to the contrary.
In this case, first, the Attorney-General is not the person who has the power to make an appointment. Secondly, the Attorney-General is not the Cabinet nor the Executive Council, he is a member of both bodies. Thirdly, the action or inaction of the Attorney-General is not in these circumstances reviewable. Fourthly, a court has no jurisdiction to interfere with the processes leading to appointment of judicial appointment to the Supreme Court in the circumstances alleged by Mr Ferdinands.
In this case, Mr Ferdinands does not challenge the appointment of Judge Kelly by the Deputy Governor in Executive Council, which appointment has already taken place. Whichever way Mr Ferdinands seeks to couch his argument, either as to the decision of the Attorney-General, or a decision of Cabinet, or a decision of Executive Council, or the processes leading to the appointment by the Governor, such decisions or matters are not reviewable by this Court in this circumstance.
In my view, there is no reasonable basis for the order for certiorari as sought.
Fraud
The assertion of “fraud upon Executive Council by the Attorney-General”. is an assertion contained in the orders sought in the Inter Partes Summons and also under the heading of the “Nature of the Order Sought” as set out in Mr Ferdinands’ affidavit. The bases for fraud by the Attorney-General appear to substantially rely on the matters contained in paragraph 2 sub-paragraphs lxii, lxiii, lxvi-lxxi.
Rules 200(3)(b)(i) and (ii) of the Supreme Court Civil Rules 2006 state that the affidavit in support of the application for judicial review must set out “in detail, the grounds on which the applicant seeks the order for judicial review” (emphasis added).
In this case, the assertion of fraud is devoid of any detail let alone sufficient detail to found fraud. The matters contained in the paragraphs are largely broad sweeping pejorative general assertions of opinion rather than facts. There is no particularisation of “the criminal acts” or “the conspiracy” or what facts the Attorney-General had, nor what the Attorney-General said, or failed to say or do, which deceived the Executive Council/Cabinet. Instead Mr Ferdinands appears to rely on a reductionist argument in that he asserts unsuitability of Judge Kelly, (which in itself lacks an adequate factual basis but consists mainly of generalised assertions) and argues that as the Judge was recommended for appointment, then the Attorney-General must have failed to inform or deliberately concealed information from Executive Council/Cabinet. The details provided in the affidavit are a completely inadequate foundation upon which to plead a reasonable basis for arguing that the Attorney-General has been guilty of defrauding the Executive Council/Cabinet.
Conclusion
For the above reasons, it is my conclusion that there is no reasonable basis pursuant to 6SCR 200 (4) upon which Mr Ferdinands is able to establish a right to an order by way of certiorari. Permission is therefore refused.