Ferdinands v Police No. Sccrm-02-136

[2002] SASC 279

FERDINANDS  v  POLICE
[2002] SASC 279

Full Court:  Doyle CJ, Wicks and Besanko JJ

1. DOYLE CJ, WICKS AND BESANKO JJ:              Mr Ferdinands has applied for leave to appeal to the Full Court against a decision by a Judge of this Court.  The Judge dismissed an application for leave to appeal to the Full Court.  The application for leave to appeal is now made to the Full Court.

2. Mr Ferdinands appealed to the District Court against a decision made by the Police Disciplinary Tribunal (“the Tribunal”), acting under the Police (Complaints and Disciplinary Proceedings) Act 1985 (“the Police Act”). The appeal lay to the District Court by virtue of s 46(1) of the Police Act.

3. By s 46(9) of the Police Act, the appeal lay to the District Court sitting in its Administrative and Disciplinary Division.

4. The appeal to the District Court was dismissed by a Judge of that Court on 6 July 2001.

5. Section 46(8) of the Police Act provides as follows:

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

6. That provision is a bar to an appeal to this Court against the decision of the District Court. Although s 43 of the District Court Act 1991 confers a right of appeal to this Court against a judgment of the District Court, s 43(3) of that Act provides:

   “(3)   In the case of a judgment of the Court in its Administrative and Disciplinary Division, an appeal lies as of right on a question of law and by leave of the Supreme Court on a question of fact (but this principle may be displaced or modified by the provisions of the special Act under which the jurisdiction is conferred).”

   Section 46(8) of the Police Act displaces the right of appeal that would otherwise be conferred by s 43 of the District Court Act.

7. Accordingly, there was no right of appeal from the decision of the District Court to this Court.

8. Nevertheless Mr Ferdinands filed a Summons in this Court, seeking an order that the decision of the District Court be set aside, and that his appeal be determined by the Supreme Court. If this is to be treated as an appeal against the District Court decision, s 46(8) of the Police Act is a bar to it being entertained by the Court.

9. The submissions filed by Mr Ferdinands suggest that s 46(8) of the Police Act is invalid. In particular, Mr Ferdinands argues that the provision is discriminatory and is contrary to certain rights, not clearly identified, that are guaranteed to Mr Ferdinands. It suffices to say that there is no substance in these submissions, and there is no arguable prospect of them succeeding.

10. It follows from this that the purported appeal to the Supreme Court against the decision of the District Court was incompetent.

11. In another document that Mr Ferdinands was permitted to file, he seeks a “referral” of the District Court decision, on the grounds that there is no right of appeal.

12. The decision in respect of which Mr Ferdinands seeks leave to appeal refers to an “application for review of a decision of a District Court Judge …”.  To the extent that the Judge, in refusing that application, was striking out the application for “referral”, the decision was clearly correct.  There is no basis for granting leave to appeal against the decision.

13. Subject to one matter, the Judge was correct in dismissing or striking out the purported appeal to the Supreme Court, assuming that by her decision she intended to do so.  It seems that she did.

14. If an appeal did lie to the Supreme Court, presumably it would lie under s 43(2)(c) of the District Court Act. This appeal would lie only if s 46(8) of the Police Act were invalid or ineffective, and for reasons already indicated that provision is not invalid or ineffective. However, if an appeal did lie, it would lie to the Full Court of the Supreme Court.

15. It may be that the purported appeal by Mr Ferdinands could or should have been brought before the Full Court at the outset.  However, although we have not had the benefit of submissions on the point we consider that the Judge could exercise the inherent power of the Court to strike out the purported appeal on the grounds that it is plainly incompetent to invoke the jurisdiction of the Court.  It follows that we consider that the Judge was right to dispose of the purported appeal.  There was no need to have the matter dealt with by the Full Court.

16. The application for leave to appeal to the Full Court should be struck out as incompetent.