Ferdinands v Department of Premier and Cabinet - [2007] SADC 136

DISTRICT COURT OF SOUTH AUSTRALIA
(District Court Administrative Appeals Tribunal: Appeal Against a Master's Decision)
FERDINANDS v DEPARTMENT OF PREMIER AND CABINET
[2007] SADC 136
Judgment of His Honour Judge Barrett
14 December 2007
ADMINISTRATIVE LAW - FREEDOM OF INFORMATION - RIGHT OF ACCESS - GENERALLY
Appeal against Master's decision refusing extension of time in which to appeal - appeal without merits - seeks to agitate matters already litigated - appeal dismissed.
Freedom of Information Act 1991 18(2a), referred to.
Grey v City of Marion [2006] SASC 3, considered.

FERDINANDS v DEPARTMENT OF PREMIER AND CABINET
[2007] SADC 136

The appellant used to be a policeman. He was dismissed from the police force in about 2001. Since then he has been involved in many legal and administrative processes dealing directly or indirectly with that issue. The appellant’s documents are extremely convoluted and discursive. He has made serious wide-ranging allegations against police officers, the judiciary, the government, public servants and legal practitioners. The present appeal is against a decision of a Master of this court dated 4 October 2007, refusing to extend the time in which to appeal against the determination of the principal Freedom of Information (FOI) officer of the Department of Premier and Cabinet dated 18 June 2007.
In a letter dated 25 June 2007 which the appellant sent to the principal FOI officer set out in paragraph 19 of his affidavit in support of his appeal to the Master the appellant encapsulates his range of concerns as follows:
The history of this case is long and it needs to be told correctly so that every perpetrator of racism, improper conduct, dishonesty and corruption faces the correct charges and that every person who has aided and abetted a conspiracy to pervert the course of justice is imprisoned.
His concerns have widened to include members of the judiciary who have made findings against him. In an affidavit filed in this court on 3 December 2007 and entitled “Affidavit response to the farce”, the appellant makes further allegations not earlier made. I will not canvas them because they do not assist in the determination of this appeal.
Although the appeal to the Master was from a decision of the principal FOI officer dated 25 June 2007 the appeal has its genesis in a decision of the same officer dated 13 March 2007. In a letter of that date the officer effectively declined three applications for material which the appellant had lodged in January 2007. In part that letter said:
To assist you in deciding whether or not to seek an internal review, I advise that in relation to each of these three applications it is my view that I would be entitled to refuse access on the grounds that it is part of a pattern of conduct that amounts to an abuse of the right of access, in accordance with section 18(2a) of the [Freedom of Information] Act.
I have formed that view on the grounds that this set of three applications follows six similar applications to the Commissioner for Public Employment since 2003, all directed at gathering documents relating to appointment processes in which you have no proper interest or in revisiting disputes between yourself and SAPOL that have been thoroughly litigated in the court system.
In particular, I note that the Supreme Court has recently rejected your attempt to commence proceedings in relation to the appointment of a Supreme Court judge, which is the same subject of one of the three Freedom of Information applications you have submitted.
(See Appeal book page 68.)
I set out the headings of the three applications. The headings themselves give a sufficient indication of the contents of the application although the contents are lengthy and discursive.
The first application is by letter dated 17 January 2007. The heading reads:
Re: Trevor Kingsley Ferdinands – copies of all Cabinet appointments, meetings, minutes and agenda of Cabinet, any letters and reports – any information or notes or discussions supplied by Commission of Police, or the Police Complaints Authority or Director of Public Prosecutions to State Cabinet in relation to the Russell William Stacey Bray affair and $100,000,000 ex-gratia payment.
(See page 34 of the appeal book.)
The second application is by letter dated 19 January 2007. It’s heading reads:
Re: Trevor Kingsley Ferdinands – Copies of all documents with regards to the appointment of Mal Hyde, Commissioner of Police – including all aspects of the selection processes, names of other candidates – formal meetings, minutes and agenda of 1996 State Cabinet – any letters and reports between departments.
(See page 55 of the appeal book.)
The third application is by letter dated 21 January 2007. It’s heading reads:
Re: Trevor Kingsley Ferdinands – Copies of all document with regards to the appointment of Judge Trish Kelly to the Supreme Court of South Australia – including all aspects of the selection processes – names of other candidates – formal meetings, minutes and agenda of 1996 State Cabinet – any letters and reports between departments.
(See page 59 of the appeal book.)
Although the principal FOI officer referred in his letter of 13 March 2007 to a deemed refusal of the applications, and to the reasons why he would have refused the applications in any event, the department carried out an internal review of the decision under section 29 of the Freedom of Information Act following an application for such a review by the appellant dated 10 April 2007. It may be that no internal review was required in the circumstances but it is not necessary here to canvas the course that the appellant’s applications took, because in the end he has been able to appeal to this court for an external review of the refusal of his applications under the Freedom of Information Act. His application may best be seen as an application to this court under section 40 of the Freedom of Information Act against the adverse internal review. The letter notifying him of that adverse review is dated 18 June 2007 (see appeal book page 71).
He lodged his application to this court on 3 August 2007, some two weeks beyond the 30 days in which it should have been lodged. The Crown in the proceedings before the Master, and before me, does not rest its case on his being out of time. The Master did not regard the lateness as a critical issue. Although the Master’s formal order was that she refused to extend time in which to appeal, she made plain that the reason for her decision was that the appellant’s appeal was without merit.
The appellant’s submissions before me did not really advance his case at all. He quoted passages from various judgments in this court and in the Supreme Court to support his case but misapplied the principles or, at the very least, failed to understand them fully. To take an example, he referred to a relevant authority on the discretion to extend time cited by the Master. He seized on the words of Debelle J in Grey v City of Marion [2006] SASC 3 (see page 96 of the appeal book). His Honour’s remarks began:
That discretion exists for the sole purpose of doing justice between the parties …
At page 9 of the transcript the appellant submitted the following:
[Justice Debelle] spoke about: “doing justice between the parties”. So the essential point of that is one cannot merely assert justice, because there is another party every day coming into court stating injustice.
So the sole purpose of doing justice between the parties means that His Honour must look at the bar table, look at my case, look at the Crown’s case. Where does justice lie? Is it justice that a man is driven out his job, driven out of his career, by fraud and malice, or is that injustice? Perpetrators, whoever they may be, it doesn’t matter if it’s the Premier, the Attorney General, it doesn’t matter who it is, who has organised this matter, who has planned this matter, who has financed this matter, it doesn’t matter who they are. If they have engaged in a serious injustice then they must be held accountable. In my opinion, in my mind alone, it is in the interest of justice to present the documents that I require.
That argument ignored what Debelle J had gone on to say about how the discretion is exercised. In particular His Honour had gone on to refer to the arguability of the case being put by an applicant for an extension. His Honour said:
When considering whether an appellant has an arguable case, the court does not go into “much detail on the merits” (authorities excluded). An appellant will not have an arguable case if it is clear that the appeal will fail and in that sense is not “arguable” or not “fairly arguable” (authority omitted).
(See Gray v City of Marion ibid at [4]).
While it is perfectly understandable that an unrepresented person would not fully understand a legal principle, the fact remains that submissions of that sort did not assist the applicant in his argument.
Another example of an unhelpful argument, although not determinative in itself, illustrates how easily distracted the appellant became when trying to resist material put before the court. The Crown had submitted before the Master a schedule of litigation in which the appellant had been involved. That same schedule was before me. In part the appellant dealt with that schedule in these terms, and when doing so he directed his remarks to counsel for the Crown:
The Crown has talked about the submission of a table, that table by any stretch of the imagination, is not a table of my dishonesty in the South Australia police force. It is a table of your sustained malice since I made those public interest disclosures. It is a table of multiple prosecution, multiple police officers committing various offences against the Police Act and against the Criminal Law Act in terms of improper conduct and perjury. It certainly is not a table which anyone can say this is the dishonesty of Police Constable Trevor Kingsley Ferdinands. It is absolutely not.
The table was tendered, not to demonstrate the dishonesty of the appellant, but rather, to demonstrate that he had been involved in a variety of litigation in which many topics, some related directly and some related very indirectly to his dismissal from work, had been ventilated. Of the seventeen proceedings he had initiated, he had been successful in only three. One of the reasons why the principal FOI officer had rejected the appellant’s applications was that the applications concerned matters that had already been the subject of litigation and the appellant was seeking, by new means, to revisit them.
In the end the appellant was simply unable to suggest any error on the part of the Master, nor any error on the part of the principal FOI officer. On the material before the Master and on the material before me his case is unarguable. It is without merit.
Accordingly I dismiss the appeal from the Master.