Ferdinands v District Court of South Australia

[2010] SASC 265

SUPREME COURT OF SOUTH AUSTRALIA

(Civil: Application for Judicial Review)

FERDINANDS v DISTRICT COURT OF SOUTH AUSTRALIA & ORS

[2010] SASC 265

Judgment of The Honourable Justice Gray

27 August 2010

ADMINISTRATIVE LAW - JUDICIAL REVIEW - GROUNDS OF REVIEW - JURISDICTIONAL MATTERS

APPEAL AND NEW TRIAL - APPEAL - PRACTICE AND PROCEDURE - SOUTH AUSTRALIA - EXTENSION OF TIME FOR APPEAL

Application for an order for an extension of time in which to bring judicial review proceedings - plaintiff sought to review a number of decisions made between 1997 and 2003 relating to the outcome of disciplinary proceedings adverse to him in 1998, when he pleaded guilty to a charge of being absent from his duty as a police officer without permission - application substantially out of time - whether an extension of time warranted.

Held: application dismissed - delay in circumstances to be characterised as "gross" - no meaningful reason provided by plaintiff for the lengthy delay - merits of claim amount to weak prospects of success - prejudice would be occasioned by the defendants if application for an extension of time were granted.

District Court Rules 1992 (SA) r 84.12; Police (Complaints and Disciplinary Proceedings) Act 1985 (SA)s 46; District Court Act 1991 (SA) s 43(3); Supreme Court Civil Rules 2006 (SA) r 200; Supreme Court Rules 1987 (SA) r 98.06; Migration Act 1956 (Cth); District Court Civil Rules 2006 (SA) r 242, referred to.
Kirk v Industrial Court of New South Wales (2010) 239 CLR 531; Ferdinands v Commissioner of Police (No 3) [2003] SADC 28; Hall v City of Burnside (2006) 102 SASR 298; Jackamarra v Krakouer (1998) 195 CLR 516; Esther Investments Pty Ltd v Markalinga Pty Ltd [1989] 2 WAR 196; Palata Investments Ltd v Burt & Sinfield Ltd [1985] 1 WLR 942; McKay v Alexandrina Council (2003) 227 LSJS 442; Ex parte Savage [1989] WAR 46; Haneef v Minister for Immigration and Citizenship (2007) 161 FCR 40; Plaintiff S157/2002 v Commonwealth of Australia (2003) 211 CLR 476; Collins v South Australia & Ors [1998] SASC 6960; Ferdinands v Police [2002] SASC 279, considered.

FERDINANDS v DISTRICT COURT OF SOUTH AUSTRALIA & ORS
[2010] SASC 265

Civil

GRAY J:

Introduction

1. This is an application for an order for an extension of time in which to bring judicial review proceedings. 

2. The applicant, Trevor Kingsley Ferdinands, seeks an extension of time in which to bring judicial review proceedings against four defendants: the District Court of South Australia, the Commissioner of Police, the Adelaide Magistrates Court and the Commissioner for Public Employment. 

3. Mr Ferdinands, a former police officer, seeks to challenge eight decisions made by South Australia Police, the Magistrates Court and the District Court, between 1997 and 2003.  A convoluted omnibus of litigation has resulted from disciplinary proceedings to which Mr Ferdinands was subject 12 years ago, in July 1998, in his position as a police officer, for being absent from duty without permission. 

4. I have arrived at the view that this application should be dismissed.  I have provided more lengthy reasons than perhaps would usually be provided in an application lacking such merit as the within application.  However, these applications touch on a critical constitutional function of this Court: its supervisory jurisdiction to judicially review decisions of public decision makers.[1]  Further, in the face of Mr Ferdinands’ persistent attempts to re-ventilate events of many years ago, I consider it important that he clearly understand the reasons for my refusal of his application

   [1]    See Kirk v Industrial Court of New South Wales (2010) 239 CLR 531.

   Background

5. Mr Ferdinands’ application for judicial review was instituted by way of summons dated 22 April 2010.  On the same day, an order for an extension of time was sought.  By way of affidavit with respect to the extension of time, Mr Ferdinands deposed the following:

   I seek extension of time to file this matter as time has lapsed due to the directions of both the Registrar and the Master to get the documents correct for filing otherwise the documents will not be accepted by the courts.

   This case is vital to correcting the face of the public record and deals exclusively with jurisdictional and the procedural errors involved that have been able to go on and on over a period of many years caused by District Court of South Australia and Commissioner of Police, Mal Hyde.

   I have reworked the documents after having done some extra 4 months readings and research and I am now happy that there was no malice or ill-will or fraud by any players and I have removed any suggestions that there was actions other than to state clearly the unlawfulness of this case started when the Commissioner of Police appealed the final decision of his Honour Judge Smith in the Rule 84.12 hearings.

   I now believe that the documents are ready for filing and that there are serious issues to be tried. 

6. I heard the application for an extension of time on 21 May 2010.  On that occasion, Mr Ferdinands appeared in person.  Counsel appeared for the District Court, the Commissioner of Police and the Magistrates Court (“the defendants”).  The Commissioner of Public Employment made no appearance at the hearing. 

7. On the hearing of the application, I ordered that counsel for the defendants file and serve written submissions in response to Mr Ferdinands’ application for an extension of time and submissions with respect to the merits of the application for judicial review.  Also on that occasion Mr Ferdinands made oral submissions in support of his affidavit material on the court file, and I gave Mr Ferdinands the opportunity to file anything in reply.  All material has now reached the court file and in arriving at my conclusion in respect to the application I have had regard to this material.

8. It is apparent that Mr Ferdinands has been involved in a total of 46 proceedings in the Police Disciplinary Tribunal, the Workers Compensation Tribunal, the Administrative Appeals Division of the District Court, the Magistrates Court, the Industrial Relations Commission, the Supreme Court, the Industrial Relations Court, the District Court, the Defence Force Discipline Appeal Tribunal, the Federal Court, the High Court, and he has appeared before the Defence Force Magistrate.[2]  Most of these proceedings have related, directly or remotely, to Mr Ferdinands’ attempts to release himself from the outcome of disciplinary proceedings adverse to him on 10 July 1998, when he pleaded guilty to a charge of being absent from duty without leave.  

   [2]    Counsel for the defendants provided a summary to the Court of the actions involving Mr Ferdinands.

9. As mentioned, this litigation has a significant history, which was summarised by Smith DCJ in his decision in Ferdinands v Commissioner of Police (No 3): [3]

   [3]    Ferdinands v Commissioner of Police(No 3) [2003] SADC 28 at [1]-[6].

   This appeal has had a considerable history.  I summarise it briefly.  On the 6th January 1998, Trevor Kingsley Ferdinands (“the appellant”), who was then a serving police officer, was charged as follows:

   “Charge

   I, Darryl John Clarke, Superintendent of Police of Adelaide, hereby charge you for that on 1 April 1997 at Adelaide and Canberra, being an employee of the Force, you were absent without permission from your duties.

   Regulation 27(4)(c) of the Police Regulations, 1982.

   Particulars of the Charge

   It is alleged that:

   1.     On 1 April 1997 you were stationed at the Firearms Section.

   2.    On 1 April 1997 you were rostered for duty at the Firearms Section, Flinders Street, Adelaide.

   3.     You did not report for duty at all that day.

   4.     You were absent from duty without permission.”

   He pleaded not guilty.  Then on the 27th March 1998 he changed his plea to guilty.  On about the 10th July 1998, by way of penalty, he was reprimanded and transferred from the Firearms Section to the City Watch House – Adelaide Division.

   On the 8th March 2001, notwithstanding his plea of guilty and the inordinate delay, he appealed to this Court sitting in its Administrative and Disciplinary Division pursuant to the Police (Complaints and Disciplinary Proceedings) Act 1985. The appeal was against both the conviction and the penalty. Section 46(4) of the said Act provides that an appeal must be instituted within one month of the making of the decision or order appealed against. However, by s42C of the District Court Act 1991 this Court is empowered to extend time even if the appeal time has elapsed. 

   In particular, in the appeal, the appellant sought the following orders:

   •      to extend time in which to appeal; and

   •      to set aside the penalty and rehear the disciplinary proceeding as a plea of not guilty or remit the matter for rehearing by the Tribunal as a plea of not guilty.

   This Court pursuant to ss42E to 42H of the District Court Act has robust powers on appeal which extends to granting the orders sought by the appellant.

   I received affidavit evidence, several documents and heard argument at various times between the 7th June 2001 and the 19th September 2001.  On the 1st November 2001 I published the first of the judgments in this matter, which culminated in me making the following orders:

   “Therefore, for the above reasons, I extend the time within which the appellant can appeal, to the 8th March 2001.  On the basis of the evidence before me I rescind the decision of the Deputy Commissioner of the 10th 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.”

   (see Ferdinands v Commissioner of Police (2001) 216 LSJS 193) (“first judgment”)

10. Counsel for the Commissioner of Police had complained to Smith DCJ that the judgment had determined the whole of the application made by Mr Ferdinands, but that he and his client had proceeded on the understanding that the judgment was to be limited to the application to extend time to appeal.  In this respect, Smith DCJ set out what had occurred and how he proceeded to act:[4]

    Upon the publishing of that first judgment, counsel for the Commissioner protested courteously that the judgment determined the whole of the application whereas he and his client anticipated that I was dealing only with the application to extend time to appeal.  Indeed, that explained the failure of the Commissioner to answer a number of serious allegations made by the appellant against Sergeant Gary Simpson.  On the 12th December 2001 the respondent formally applied pursuant to Rule 84.12 of the District Court Rules to set aside the first judgment and orders.  In that application, I received as evidence the entire transcript including the transcript of directions hearings.  I accepted that there was some ambiguity in what was intended and so I set aside the first judgment.  In particular, I made the following order:

    “Accordingly pursuant to Rule 84.12 of the District Court Rules I set aside the orders made by me on 1st 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 10th 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.

    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.”

    (see Ferdinands v Commissioner of Police No. 2 (2002) 218 LSJS 13) (“second judgment”)

    [4]    Ferdinands v Commissioner of Police(No 3) [2003] SADC 28 at [7].

11. As can be seen from the above extracts, Smith DCJ set aside his previous orders, including his order extending time, on the basis that an ambiguity in how the challenge was to proceed had resulted in the Commissioner not presenting all of the evidence and argument, and in particular the Judge noted that the ambiguity must have explained the course taken by the Commissioner “not to answer a number of serious allegations”.  Ultimately, the decision was adverse to Mr Ferdinands, and the conclusions of Smith DCJ were as follows:[5]

    I make it clear that I have categorically found that there has been no impropriety or irregularity by Sergeant Gary Simpson in connection with his dealings with the appellant and in particular as to the circumstances surrounding the appellant's change of plea to guilty on the 27th March 1997. My previous conclusions about the part played by Sergeant Simpson, based as they were on the unchallenged affidavit evidence of the appellant, now have no foundation whatsoever. Indeed I am convinced that Sergeant Simpson acted with all propriety and consideration for his troubled staff member - the appellant.

    Accordingly, there being "no substantial grounds for apprehending a miscarriage of justice" there is no basis to extend time to appeal under s42C of the District Court Act and for the same reason there is no cogent reason within the meaning of s42E(3) of the said Act to depart from the decision of the Deputy Commissioner.

    Therefore, pursuant to s42F(a) of the District Court Act I affirm the decision appealed against…

    [5]    Ferdinands v Commissioner of Police(No 3) [2003] SADC 28 at [44]-[46].

    The Present Proceeding

12. As is clear from the above extracted remarks, Smith DCJ, when faced with the contentions of the Commissioner of Police, proceeded to set aside his earlier judgment pursuant to rule 84.12 of the then applicable District Court Rules 1992 (SA).  Rule 84.12 provided:

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

13. Section 46 of the Police (Complaints and Disciplinary Proceedings) Act 1985 (SA), dealt with appeals against decisions of the Tribunal or punishment for breach of discipline, and relevantly provided:

    (1)     A party to proceedings before the Tribunal may appeal to the Court against a decision made by the Tribunal in those proceedings.

    (2)     A member of the police force may appeal to the Court against an order of the Commissioner imposing punishment on him or her for a breach of discipline.

    (3)     Subsection (2) applies—

    (a)whether the charge for the breach of discipline was laid in consequence of the investigation of a matter to which this Act applies or otherwise; and

    (b)whether the order imposing the punishment was made on the member being found guilty of the breach of discipline by the Tribunal or on the member making an admission of guilt to the Commissioner.

    (4)     An appeal under this section must be instituted within one month of the making of the decision or order appealed against.

    (8)     No further appeal lies against a decision of the Court made on an appeal under this section.

    (9)     In this section—

    Court means the Administrative and Disciplinary Division of the District Court.

    [Emphasis added]

14. It is apparent that Mr Ferdinands wishes to agitate by way of judicial review, that in setting aside his previous judgment pursuant to rule 84.12, Smith DCJ did so without jurisdiction. I note that Mr Ferdinands’ position is by no means immediately clear from the material or his submissions, as his arguments are constructed in a confused and rambling manner. Mr Ferdinands appears to rely on a decision of this Court which states that section 46(8) of the Police (Complaints and Disciplinary Proceedings) Act, displaces the right of appeal to the Supreme Court that would otherwise be available pursuant to section 43 of the District Court Act 1991 (SA).[6]  It appears that Mr Ferdinands seeks to extend the reasoning in that decision such that the conclusion of the Full Court in that matter would equally apply to an exercise of the power under rule 84.12.  In that respect, Mr Ferdinands deposed:

    Hence, when the District Court of South Australia commenced Rule 84.12 legal proceedings and hearings these hearing were entirely unlawful as there has been interference in the original decision of the Court.  The important point to note is that Spender J has stated “on any account” and Rule 84.12 constitutes an account because it is a physical and separate action away from the final delivered judgement.

    The very fact that there are judgments (2) and (3) in the matter of Commissioner of Police v Ferdinands DCAAT 98-7 suggests that the procedures in law have been wrongly applied.  The power expressed by the single judge was done so in good faith and in fair hearings but there was want of jurisdiction in hearing the matters at all.  This Honourable Court has a duty of care and owes the plaintiff a duty not to prejudice the interests of justice or the true face of the public record. 

    [6]    Ferdinands v Police [2002] SASC 279 (Doyle CJ, Wicks and Besanko JJ).

15. Mr Ferdinands seeks eleven orders in the following terms:

    1.That judicial review is sought under the Supreme Court Rules 2006 part 198, 199, 200 and 2001 to remedy a serious flaw of abuse of process by the defendants from a period of 1997 to 2001. 

    2.That Commissioner of Police v TK Ferdinands DCAAT 98-7 and Ferdinands v Commissioner of Police (No. 3) No-DCAAT 10-60 [2003] SADC 28 (21 February 2003) judgment is set aside due to jurisdictional errors;

    3.That the punishment and penalty issued by Deputy Commissioner Neil McKenzie in (1) is quashed due to jurisdictional errors;

    4.That Ferdinands v Commissioner of Police No-DCAAT 00-249 SADC [2000] (Russell William Stacey-Bray file) judgment is set aside due to jurisdictional errors;

    5.That the punishment and penalty issued by the Commissioner of Police in (3) is quashed due to jurisdictional errors;

    6.That South Australia Police v TK Ferdinands AMC 00-2130 (27 March 2001) (David Scott Hossack file) judgment is set aside and the conviction and penalty is quashed due to jurisdictional errors;

    7.That the punishment and penalty issued by Commissioner of Police on 22 November 2001 in (5) is quashed due to jurisdictional errors; 

    8.That the section 42 Notice of Termination issued by Commissioner of Police under the Police Act 1998 on 22 November 2001 is revoked due to jurisdictional errors;

    9.That the plaintiff, Constable Trevor Kingsley Ferdinands is reinstated into South Australia Police forthwith;

    10.That the plaintiff, Constable Trevor Kingsley Ferdinands is returned to Firearms Section of South Australia Police by or shortly after 30 April 2010; and,

    11.That the plaintiff Constable Trevor Kingsley Ferdinands is compensated for loss of all wages, benefits and entitlements with interest from 22 November 2001 to this date inclusive. 

16. On the hearing of the application, Mr Ferdinands claimed that once the decision of Smith DCJ 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”.

17. Actions for judicial review are brought to the Supreme Court in its inherent jurisdiction.  Rule 200 of the Supreme Court Civil Rules 2006 (SA) establishes that the Court’s permission is required for a proceeding in which an order for judicial review is sought.  Sub-rule (2) states:

    An action for judicial review must be commenced as soon as practicable after the date when the grounds for review arose and, in any event, within 6 months after that date. 

1. In Hall v City of Burnside,[7] the Full Court was concerned with rule 98.06 of the Supreme Court Rules 1987 (SA), the progenitor rule to rule 200(2).  With respect to the six month time limit, Doyle CJ, with whom Duggan J agreed, observed:[8]

   As McHugh J said in Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541 at 553, the six-month limitation period is "the general rule". It is not "an arbitrary cut off point". The six-month limit represents a judgment as to an appropriate time limit having regard to the public interest and having regard to the interest of individuals who have an interest in the particular case that arises. A limitation period is imposed, and the length of the period is determined, recognising that the limitation period may result in a cause of action being defeated.

   A six-month time limit for proceedings by way of judicial review is common in Australia, and in some jurisdictions the time limit is even shorter: see Aronson, Dyer, Groves, Judicial Review of Administration Action (3rd ed, Lawbook Co, 2004), pp 718-719.

   The relatively short limitation period reflects the fact that judicial review is concerned with the validity of decision-making by individuals and bodies exercising statutory and other powers that must be exercised in the public interest. Such decisions often have direct and consequential effects on persons other than those immediately affected. In a range of circumstances it will often be a matter of significance for other persons and authorities to know whether or not such a decision is valid or has been subject to a legal challenge. There is a substantial public interest in being able to say, after a specified time, that such a decision can be treated as beyond attack. The very fact that the standing rules permit challenges to validity to be made by persons other than those directly involved in the decision-making process is a reason why there should be a relatively short period within which any such attack should be mounted.

   The fact that r 98.06 requires that, quite apart from the six-month time limit, proceedings should be brought "as promptly as possible" emphasises the significance of the time limit.

   I do not suggest that the judge overlooked this point. I merely emphasise that when considering whether the interests of justice require that an extension be granted (as the plaintiffs had to demonstrate), substantial weight should be given to the fact that the time limit has been imposed, and to the public interest and any relevant private interest (here, the interests of City Apartments) in the validity of the decision after the expiry of the limitation period.

   [Emphasis added]

   [7]    Hall v City of Burnside (2006) 102 SASR 298.

   [8]    Hall v City of Burnside (2006) 102 SASR 298 at [47]-[51].

2. Although not amounting to exhaustive factors for consideration,[9] there are generally four factors to be weighed by the Court when considering an application for an extension of time:[10] the length of the delay; the reason for the delay; whether the applicant has prospects of success; and, the extent of any prejudice suffered by the respondent to the application.  It is proposed to deal with each of these factors in turn. 

   [9]    Jackamarra v Krakouer (1998) 195 CLR 516 at [66] where Kirby J said:

   I do not doubt that the four considerations mentioned in Esther Investments are relevant.  But they are by no means exhaustive.  Several others have from time to time been thought relevant.  These include whether the delay was intentional or contumelious; or merely the result of a bona fide mistake or blunder; and whether the delay is that of the litigant or of its lawyers, with which the litigant should not be saddled.  It may also be relevant, where the default is that of a party’s legal representatives, to take into account any considerations personal to the party which might have affected its ability to safeguard its own interests, for example, by applying pressure to its lawyers.  Similarly, the extent to which any such prejudice may be remedied by an appropriate costs order is another consideration that has sometimes been treated as relevant.

   [10]   See Esther Investments Pty Ltd v Markalinga Pty Ltd [1989] 2 WAR 196 at 198; Palata Investments Ltd v Burt & Sinfield Ltd [1985] 1 WLR 942 at 946; Jackamarra v Krakouer (1998) 195 CLR 516 at [6]-[8] (Brennan CJ and McHugh J), [66] (Kirby J); McKay v Alexandrina Council (2003) 227 LSJS 442 at [8] (Debelle J); see Hall v Burnside (2006) 102 SASR 298 at 312 (Gray J).

   The Length of the Delay

3. The delay in the present application is gross.  Mr Ferdinands is seeking to challenge decisions made between seven to 12 years ago.  Although the actual length of delay alone is not determinative of a successful application as each case will depend on its own circumstances, it is to be observed that the Full Court in Hall v Burnside was faced with a delay of 11 months – five months in excess of the time limitation – and characterised that delay as “substantial”.[11]  In Collins v South Australia, Olsson J held that in the absence of a proper and reasonable explanation for the delay, it would be especially inappropriate to grant relief in a case where the delay has been gross:[12]

   First, SCR 98.06 stipulates that, unless an extension of time is obtained, a summons for judicial review must be issued within six months from the date when grounds for the review first arose and shall, in all cases, be made as promptly as possible.  The rationale for that rule is obvious.  Where by reason of delay the resolution of the issue raised is academic or no longer of any real practical significance an extension will not normally be granted (La Roche & v Cormack & Ors (1991) 33 FCR 414).

   In the instant case the delay is gross and, for reasons which have already emerged, the grant of relief would, in fact, avail the plaintiff nothing.  The agreement made and accepted by Taylor DCJ in 1995, the new sentence imposed by him and what has followed since that time could not possibly be affected by any declared invalidity of the Parole Board determination.

   Second, as earlier demonstrated, the grant of relief on an application for judicial review is discretionary.  Particularly where there has been gross delay of the type here apparent, it would be unthinkable to grant the relief sought unless there was a proper and reasonable explanation for the delay in seeking the relief sought; a compelling basis for the grant of it; and it would produce some practical end result.

   [11]   Hall v City of Burnside (2006) 102 SASR 298 at [68] (Doyle CJ).

   [12]   Collins v South Australia & Ors [1998] SASC 6960 at [126]-[128].

4. The delay in the present proceeding is especially acute when measured by reference to the relevant six month time limitation.  Further, it is to be noted that the six month time limitation stipulated by rule 200(2), is fixed as a maximum time, and it would appear that if not satisfied that an action for judicial review was “commenced as soon as practicable” after the date when the grounds for review arose, then the court may reject an application on the basis of delay, even if an action was brought within six months.[13]  In light of this, and the weight of relevant authority, it is my view that in order to exercise the discretion to extend time in a case where the delay was so gross as that in the within proceeding, the circumstances would have to be extraordinary indeed. 

   [13]   See for example Ex parte Savage [1989] WAR 46.

   Reasons for the Delay

5. It is appropriate to address the reasons proffered by Mr Ferdinands for the delay.  By affidavit in support of his application, Mr Ferdinands deposed that:

   The grounds of the Judicial Review have risen only recently arisen in April 2009 (about ANZAC day) as I researched and studied the workings of the Federal Court of Australia, privative clauses and came across Haneef’s (2007) case.  

6. On a review of the material filed by Mr Ferdinands, it is apparent that he particularly complains about the decisions of Smith DCJ in 2003.  The fact of discovery six years later of an unrelated decision of a court cannot in my view be a “ground” for judicial review.  The defendants contended that the reason offered by Mr Ferdinands for the delay was “manifestly inadequate”.  I agree.  In fact, it barely amounts to a “reason” in any meaningful sense.  I will explain further. 

7. The case of Haneef v Minister for Immigration and Citizenship,[14] “Haneef’s case”, was a decision of a Judge of the Federal Court, which involved a consideration of the reasoning of the High Court in Plaintiff S157,[15] concerning the privative clause found in the Migration Act 1956 (Cth) that purported to exclude judicial review, and the Constitutional validity of that clause. The affidavit material of Mr Ferdinands in the present proceeding suggests that he seeks to draw an analogy between section 46(8) of the Police (Complaints and Disciplinary Proceedings) Act and Haneef’s case. As earlier extracted, section 46(8) in no way purports to oust judicial review – it merely states that no appeal will lie against a decision of the Court made under that section.  The analogy sought to be drawn by Mr Ferdinands is unsound. 

   [14]   Haneef v Minister for Immigration and Citizenship (2007) 161 FCR 40.

   [15]   Plaintiff S157/2002 v Commonwealth of Australia (2003) 211 CLR 476.

8. Further, as rightly contended by counsel for the defendants, ignorance of the law is insufficient to excuse delay, and even if it was somehow sufficient (or if somehow, the discovery operated as a “ground” for review), there is a further reason why it provides no adequate excuse for the delay occasioned in the present proceeding.  Mr Ferdinands deposed that he discovered Haneef’s case in April of 2009.  These proceedings were not initiated until 22 April 2010.  As a consequence, even on this view, the bringing of the proceedings was significantly delayed. 

9. I note however, that Mr Ferdinands deposed that a contributing factor to the delay was the directions of the Registrar and Master of this Court in relation to the documents sought to be filed.  While this may explain a short delay, it does not provide a satisfactory explanation for the lengthy delay occasioned in the present proceeding.

10. There is an important public interest in maintaining the position, that after a specified time, public decision-making is beyond attack.[16]  There is a further public interest in that time period being relatively short – six months – such that challenges to public decision-making are made promptly.  Antonymous with the concept of promptness is the concept of delay.  Any delay beyond the specified time period needs to be sufficiently explained before it can be excused.  In most cases, the greater the delay, the more difficult it will be to excuse that delay. 

    [16]   Hall v City of Burnside (2006) 102 SASR 298 at [49] (Doyle CJ).

11. For the reasons given, Mr Ferdinands has not provided the Court with any meaningful reason for the delay of many years in the present proceeding. 

    Prospects of Success

12. 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. 

13. 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 Smith DCJ, in any way offends section 46(8) of the Police (Complaints and Disciplinary Proceedings) Act.

14. Mr Ferdinands repeatedly made the submission that “the face of the public record must be correct”.  A close review of the material on the court file discloses that apart from the contentions of Mr Ferdinands regarding jurisdictional error and the relationship between rule 84.12 of the District Court Rules 1992 and section 46(8) of the Police (Complaints and Disciplinary Proceedings) Act as set out above, he does nothing more than assert that a series of judgments are incorrect. 

    Prejudice to the Defendant

15. Counsel for the defendants contended that the prejudice that would be suffered by the second defendant if an extension of time were granted to Mr Ferdinands would be significant.  A table provided by the defendants summarised the actions that Mr Ferdinands had been involved in since 1998.  Of the 46 actions, it is apparent that 37 have involved the State.  It was also said that of those 37 actions, 33 have been commenced by Mr Ferdinands.  The subject matter underlying the within proceeding, as set out earlier, has been litigated exhaustively in a range of tribunals and courts since 1998.  Further, I accept the defendants’ submission that Mr Ferdinands’ action is pleaded in a confused manner, which is likely to exacerbate the prejudice occasioned to the defendants if the application for an extension of time were granted.

16. By way of reply to submissions filed by the defendants, Mr Ferdinands filed an affidavit.  The affidavit is rambling and contains scandalous material, making allegations of inter alia fraud, and seeking a referral of questions of law to the Full Court.  It does not address in any meaningful way an extension of time, save for repeated assertions of the arguments set out earlier in these reasons. 

    Conclusion

17. This is a case where the factors weigh heavily against Mr Ferdinands in the exercise of the discretion to grant an extension of time.  For the reasons given, I have no hesitation in refusing the application.  The application for judicial review is dismissed.