Ferdinands v District Court of south Australia - [2011] SASCFC 139

SUPREME COURT OF SOUTH AUSTRALIA
(Full Court: Civil)
FERDINANDS v DISTRICT COURT OF SOUTH AUSTRALIA & ORS
[2011] SASCFC 139
Judgment of The Full Court
(The Honourable Justice Vanstone, The Honourable Justice Anderson and The Honourable Justice Stanley)
23 November 2011
APPEAL AND NEW TRIAL - APPEAL - PRACTICE AND PROCEDURE - SOUTH AUSTRALIA - WHEN APPEAL LIES - BY LEAVE OF COURT - GENERALLY
Application for extension of time and application for permission to appeal against decision of single judge of the Supreme Court dismissing an application for an extension of time and application for judicial review.
Held: applications dismissed.
District Court Rules 1992 (SA) r 84.12; Police (Complaints and Disciplinary Proceeedings) Act 1985 (SA) s 46, referred to.
Hall v City of Burnside (2006) 102 SASR 298, applied.

FERDINANDS v DISTRICT COURT OF SOUTH AUSTRALIA & ORS
[2011] SASCFC 139
Full Court: Vanstone, Anderson and Stanley JJ

VANSTONE J: The Court has before it an application for permission to appeal and an application for an extension of time within which to appeal against a decision of a single judge of this Court.
In April 2010 the applicant sought an extension of time within which to bring proceedings for judicial review in respect of various orders and decisions made between 1998 and 2003. The orders and decisions were made by, variously, the Commissioner and Deputy Commissioner of Police, the Police Disciplinary Tribunal, the Adelaide Magistrates Court and, most relevantly, a judge of the District Court sitting in its administrative and disciplinary division. They were the outcome of prosecutions against the applicant, formerly a police officer, by the Commissioner of Police in the Police Disciplinary Tribunal (PDT) and a criminal prosecution, as well as proceedings related to the appellant’s dismissal from the Police Force. Under the rules of the Court such actions must be commenced as soon as practicable and, in any event, within six months of the relevant decision. The length of the extensions required by the applicant varied, but was, in each case, a period of more than seven years.
The judge’s decision
On 27 August 2010 a single judge of this Court determined that no extension should be granted and dismissed the application. The judge gave detailed reasons for so finding. He considered the length of the delays before seeking a review, the proffered reasons for there having been delays of that length, whether the applicant had prospects of success and the extent of any prejudice the respondents might suffer. The judge found that a consideration of each of those factors told against the grant of an extension.
The critical decision then under attack was that of a District Court judge. The District Court judge had dealt with an application for an extension of time within which to appeal from a conviction and penalty recorded in the PDT for being absent from duty without permission. An essential plank of the applicant’s argument was that the judge had acted without jurisdiction. The judge had initially granted an extension, upheld the applicant’s appeal and made consequential orders. However, upon being alerted to the fact that the respondent had not been given opportunity to address the merits of the matter, the judge utilised rule 84.12 of the District Court Rules 1992 (SA) to set aside his judgment and orders. Having gone on to hear the matter fully argued, the judge affirmed the decisions under appeal.
The applicant argued, in effect, that rule 84.12 could not provide the power to set aside a judgment in an appeal under s 46 of the Police (Complaints and Disciplinary Proceedings) Act 1985, because s 46(8) of that Act provided that no further appeal would lie against a decision of the Court. The applicant submitted that s 46(8) was a privative clause and prevented resort to the power to set aside a judgment otherwise available in rule 84.12. As to that argument, the single judge said this:
29.The merits of Mr Ferdinands’ claim are weak, and accordingly so too are his prospects of success. The thrust of Mr Ferdinands’ application is founded in the claimed privative clause issue. As mentioned, the clause is not a privative clause in the sense contended for by Mr Ferdinands, but even if it was, Mr Ferdinands has not set out any grounds for review, an incumbency cast upon him by rule 200(3)(b)(ii) of the Supreme Court Civil Rules.
30.There is a substantial body of authorities which discuss rule 84.12 and its modern equivalent, rule 242 of the District Court Civil Rules 2006 (SA). I need not address the rule any further, save to say that it has been interpreted broadly by this Court. I can see no reason why the exercise of the power conferred by rule 84.12 in the circumstances of the case before [the District Court judge], in any way offends section 46(8) of the Police (Complaints and Disciplinary Proceedings) Act.
The applicant’s argument depends upon characterising the setting aside of a judgment as being in the nature of an appeal. I agree with the judge that an argument along these lines is fallacious. That finding alone would have been sufficient to justify the judge’s decision to refuse the application, because the success of the attack on the use of that rule by the District Court judge was vital to the applicant’s arguments going to the other decisions.
The extension of time
The appeal to this Court was filed on 10 March 2011, not much short of six months out of time. Not only is an extension of time in which to file this appeal required, but permission to appeal is also needed. The four respondents, represented by Mr C Jacobi, oppose both orders.
The applicant has filed two affidavits, each sworn on 24 February 2011. Only one of them purports to address the issue of an extension. Counsel for the respondents objected to the Court receiving the longer one (FDN 13) at all and he objected to some parts of the shorter one (FDN 14). The overarching ground of the objection was that the material was irrelevant. In addition, specific parts were singled out as amounting to argument, or being of a scandalous or vexatious nature.
In my view the objections are well taken. The parts objected to are plainly inadmissible. I propose that the objectionable passages in FDN 14 be struck out and that FDN 13 be rejected.
However, it should be noted that the applicant’s argument in support of an extension remains unaffected by this course. The reasons he puts forward for the delay in appealing to this Court extend to poverty (resulting in limited resources to work on this application), the bad effect which the litigation has had on his physical and mental wellbeing and the need to ensure that documents put to this Court are correct and of “crucial significance”. Counsel for the respondents has indicated that he is content for the application for an extension to stand or fall with the application for permission. Notwithstanding that attitude I express my view that no sufficient reason has been advanced for the delay in filing the appeal notice.
In the alternative, the applicant argues that in fact no extension of time is required, because his complaint involves “racism, fraud, dishonesty and corruption”. The applicant argues that the true nature of the ongoing action of the Police Commissioner was only recently revealed as “sustained and heightened retaliation and retribution against a whistleblower”. In my view, even assuming these premises, an extension of time is required.
The merits
In this Court, the applicant sought to re-argue the same matters agitated before the single judge. He argued that the “unlawfulness” of the District Court judge setting aside his earlier judgment infected all the judgments and orders made in the course of the various prosecutions. Mr Ferdinands submitted that the single judge erred in failing to require the second respondent to provide the evidence which underpinned the prosecution case on the charge of being absent without permission (to which the applicant pleaded guilty on 27 March 1998).
It is apparent from the reasons of the single judge that he was well aware that permission was being sought in relation to, not only the proceedings concerned with the charge of being absent without permission, but also in relation to two other disciplinary prosecutions, and an assault charge dealt with in the Adelaide Magistrates Court. The judge referred to that fact in [3] and [8] of his reasons and dealt with what the applicant put forward as the nexus between all the proceedings. He said:
16On the hearing of the application, Mr Ferdinands claimed that once the decision of [the District Court judge] was shown to be void, that a “domino effect” would necessarily result in the above orders having to be made and the decisions relating thereto to be interfered with, in order to, as contended by Mr Ferdinands, “correct the face of the public record”.
The applicant dealt with the domino effect argument in a slightly different way before this Court, but the essence of it was that, should the original decision fall – and along with it the penalty by way of reprimand and transfer to another part of the police force – then the clock would be wound back and all that followed by way of prosecutions of the applicant and penalties would fall with it. As I have mentioned, he put it also in terms of unlawfulness; that unlawfulness associated with the original prosecution would affect what came later.
Analysis
It is not easy to understand the precise nexus which the applicant claims would cause the “domino effect”. It is sufficient to say that there is no apparent link, as a matter of law, between the various prosecutions. The fact that the decision of the District Court judge related to the prosecution which was first in time does not, of itself, provide a sufficient link. Even were “unlawfulness” or something like it made out in relation to the District Court judge’s decision, that would not, as I see it, have any effect on the validity of the other judgments and orders. Again, it is not enough simply to say that the various prosecutions amount to a campaign waged against a whistleblower. While Mr Ferdinands may view them in that way, there is nothing about the fact of, or nature of, the sequential prosecutions which gives them that flavour. In any event, as I have said, the applicant’s main argument based on the use of rule 84.12, which could potentially raise a jurisdictional issue, is doomed to fail.
The failure of the single judge to call for the evidence which would have been available to the prosecuting authority in 1998 in relation to the charge of being absent without permission is not susceptible of attack. The applicant’s appeal against the disciplinary measures which followed the finding of guilt came before the District Court judge some three years after the event. That in turn led to the application for judicial review. The applicant having entered the plea of guilty, there was no occasion for either the District Court judge or the single judge to see whatever evidence the prosecuting authority might have had. The issue before the District Court judge was whether the plea of guilty and the consequent orders should stand.
The applicant raised other matters in his notice of appeal which were not directly addressed in the oral argument. The first of those was that the single judge reversed the onus of proof in respect of an extension of time and wrongly required Mr Ferdinands to justify an extension. In the ground as framed, that seems to be bound up with the submissions going to the asserted privative clause and the failure by the second respondent to produce documents relevant to the original charge. Clearly the onus was on the applicant to establish that an extension was justified: rule 100 of the Supreme Court Civil Rules and Hall v City of Burnside (2006) 102 SASR 298 at 307.
Grounds 3 and 4 of the notice of appeal contain assertions about the conduct of the Commissioner of Police going back to 1997, relevant, as I understand it, to the original prosecution together with assertions about the want of power in the District Court to withdraw the orders originally made and to allow the conviction and penalty to stand.
Ground 5 complains that the single judge did not “of his own volition examine the four cases as a totality of constructive dismissal … and declare them to be the persecution of an employee in the workplace”.
The last three grounds largely descend to the perceived merits of the compendious chain of events concerning the applicant and are, at least in part, an attempt to raise matters which were not relevantly at issue before the single judge, who as already observed, was dealing with an application for judicial review.
Conclusion
Nothing raised by the applicant identifies error or otherwise gives rise to any doubt about the correctness of the decision of the single judge. The judge referred to the critical matters of fact and directed himself correctly.
The applications for an extension of time in which to appeal and for permission to appeal should be refused.
ANDERSON J. I agree that the application for extension of time and the application for permission to appeal should be dismissed for the reasons given by Vanstone J.
STANLEY J: I have had the advantage of reading the draft reasons of Vanstone J. I agree with the orders proposed and her Honour’s reasons. I have nothing to add.