Ferdinands v Commissioner of Police (No 2) No. Dcaat-01-60

[2002] SADC 9

Trevor K. Ferdinands  v  Commissioner of Police
[2002] SADC 9

CIVIL
JUDGE DAVID SMITH

1. This is an application by the Commissioner of Police made pursuant to Rule 84.12 of the District Court Rules to set aside orders made by me on 1^st November 2001 in the matter of Ferdinands v Commissioner of Police [2001] SADC 142.

2. The history of the matter is set out in that judgment.  Suffice it to say that this matter concerns disciplinary proceedings which were concluded against Trevor Kingsley Ferdinands who was then a serving police officer on 10^th July 1998 when he pleaded guilty to a charge of being absent from duty without leave.

3. Pursuant to the provisions of the Police (Complaints and Disciplinary Proceedings) Act 1985 Ferdinands was reprimanded and transferred by the Commissioner of Police.  On 8^th March 2001 he appealed to this Court.  The appeal involved the following applications:

   ·to extend time in which to appeal; and

   ·to set aside the penalty and rehear the matter as a plea of not guilty or remit the matter for hearing by the tribunal as a plea of not guilty.

4. On 1^st November 2001 I made the following orders:

   ‘I extend the time within which the appellant can appeal to 8^th March 2001. On the basis of the evidence before me I rescind the decision of the Deputy Commissioner of 10^th July 1998 and insofar as it is necessary, the decision of the tribunal referring the matter to the Commissioner of Police for penalty and finally I remit the matter to the Police Disciplinary Tribunal with a direction that it accept a plea of not guilty from the appellant and proceed accordingly.’

   Arguments

5. This application by the Commissioner is directed to those orders made by me rescinding the decision of the Deputy Commissioner of Police of 10^th July 1998 and remitting the matter to the tribunal with a direction that it accept a plea of not guilty.  Notably the Commissioner does not specifically complain of the order extending time to appeal.  The Commissioner contends that my judgment or decision determined the whole of the application when it was anticipated that I should deal only with the application to extend time to appeal and if favourable to the appellant, proceed with the appeal itself at a later time.  The appellant Ferdinands resists this application.

   Law

6. In making the decision of the 1^st November 2001, I was sitting in the Administrative and Disciplinary Division of the District Court.  The Rules for this Division are found in Part VI of the District Court Rules 1992 and are called District Court Administrative Appeals Rules.  Rule VI-I (3) of the said Rules provide as follows:

   “(3)Subject to any express provisions contained in this Part, the rules for the Civil Division of the Court which are contained in Part II are not to apply in proceedings under this Part except as may be directed by the Court in a proceeding under this Part and with such modifications, if any, as the Court may specify.”

7. So, to invoke Rule 84.12 which is a Rule contained in Part II it is necessary for me to direct that it apply.  I return to this topic later.

8. I now turn to Rule 84.12 itself.  The Rule provides as follows:

   “The Court may vary or set aside a judgment or order at any time if the justice of the case so requires.”

9. The parameters of the application of this Rule are set out by Lander J in Copping v ANZ McCaughan (1997) 67 SASR 525 at 564-569. The Rule is more than a declaration of the common law and its application is not merely confined to orders which have not been sealed; (see Commonwealth Bank v Forshaw (1990) 55 SASR 247 and Copping (supra) per Lander J at 567).  The Court should exercise this considerable discretionary power sparingly, and, to pick up the wording of the section itself “only in circumstances which indicate that the justice of the case so requires”.  What the justice of the case requires involves a consideration of all the circumstances and a determination of what is fair and reasonable.  In particular, the need for finality in litigation is to be balanced against the avoidance of a miscarriage of justice; (see Cavanagh-Lang v O’Callaghan [2000] SADC 187).

10. In Copping, Lander J at p669 said on this topic of the exercise of discretion as follows:

    “Although this Court does have jurisdiction to vary or revoke a sealed order of the court it is a jurisdiction that would be exercised only sparingly.  A fundamental principle of litigation requires that there be an end to litigation: Wentworth v Woollahra Municipal Council (1982) 149 CLR 672; State Rail Authority (NSW) v Codelfa Construction Pty Ltd (1982) 150 CLR 29. A judgment regularly entered after both parties have had full opportunity to present argument on either side, could be only varied or revoked if the justice of the case compelled the variation or revocation of the order.

    In my opinion a forensic decision made by a party or the party’s advisers during the hearing of an appeal ought, except in exceptional circumstances, to be binding upon the party and therefore disentitle that party to any right to revoke, set aside or vary the judgment or order made upon that forensic decision.

    In University of Wollongong v Metwally (No. 2) (1985) 59 ALJR 481 (at 483) the High Court said:

    “It is elementary that a party is bound by the conduct of his case.  Except in the most exceptional circumstances, it would be contrary to all principle to allow a party, after a case had been decided against him, to raise a new argument which, whether deliberately or by inadvertence, he failed to put during the hearing when he had and opportunity to do so.”

    See also Autodesk v Dyason (No 2) (1993) 176 CLR 300 at 310 per Brennan J.”

11. Given the power to set aside which exists in Rule 84.12 and for that matter another Rule mentioned by Lander J in Copping (supra), namely Rule 3.04 (f), neither myself or the Court are “functus officio”; (see FAI General Insurance Co Limited v Southern Cross (1988) 77 ALR 411).

    Application to the Facts

12. A perusal of the transcript (see Exhibit D1), in this matter, including the directions hearing before Judge Sulan of this Court on 18^th April 2001 onwards, reveals support for counsel for the Commissioner, Mr Powell’s contention that the Commissioner was expecting only a decision on the issue of the application to extend time to appeal. Mr Powell argued that it was only on that basis that his client did not respond to the serious allegations made by the appellant Ferdinands against Sergeant Simpson of the Firearms Division. Upon a careful consideration of the transcript, I accept that counsel could with justification have believed that only the application to extend time was to be decided. I find this to be the case only after a detailed perusal of the transcript. Initially I considered that once it was clear that s42C of the District Court Act empowered the Court to extend time, both applications could then be dealt with. I accept now that such was not spelled out at any time and at best the matter was left in a state of ambiguity.

13. In short I am satisfied that as a result of perhaps myself not spelling out clearly the direction in which the matter was headed, the Commissioner reasonably assumed that only the application to extend time was being dealt with and so did not have a full opportunity to present all the evidence and argument on the matter of the appeal itself and its entwined application to change plea.  Accordingly, I consider that the justice of the case requires the revocation of the orders.  For that purpose pursuant to Rule VI-I (3) of the District Court Administrative Appeals Rules, I direct that Rule 84.12 be applied in these proceedings.

    The orders

14. I turn to the issue of what orders should be set aside or revoked. In the initial application the appeal raised two issues, namely:

    ·the circumstances in which a penalty based upon a plea of guilty will be set aside and an appellant allowed to change his plea; and

    ·principles upon which an application to extend time to prosecute a statute barred or stale appeal should be determined.

15. As indicated in my previous judgment in this matter there is a considerable overlapping in the considerations which are relevant to the exercise of discretions in both the applications the subject of the original appeal.  Accordingly, in the previous judgment I traversed all the considerations and dealt with both the applications together.  Though the application here seeks only to revoke the orders other than that to extend time to appeal, I think it is artificial and almost unworkable to separate the orders and in particular the two separate exercises of discretion.  Accordingly pursuant to Rule 84.12 of the District Court Rules I set aside the orders made by me on 1^st November 2001.  In particular, I set aside the order extending time in which the appellant can appeal and further I set aside the order rescinding the decision of the Deputy Commissioner of 10^th July 1998 and the order remitting the matter to the Police Disciplinary Tribunal with the direction that it accept a plea of not guilty from the appellant.

16. Necessarily the findings as to the part played by Sergeant Simpson in the matter of Mr Ferdinands’ plea back in July 1998 are set aside.

17. I will now hear the parties as to what directions they seek as to the adducing of evidence as a prelude to the rehearing of the appeal.