MACPHERSON v PALLARAS - [2006] SASC 370

Supreme Court of South Australia
(Civil)
MACPHERSON v PALLARAS
[2006] SASC 370
Judgment of The Honourable Justice Perry (ex tempore)
5 December 2006
EQUITY - EQUITABLE REMEDIES - INJUNCTIONS
ADMINISTRATIVE LAW - JUDICIAL REVIEW - GROUNDS OF REVIEW - PROCEDURAL FAIRNESS - HEARING - GENERALLY
Ex parte application by Auditor-General for an interim injunction to restrain the Director of Public Prosecutions from presenting a report to Parliament - alleged that the Auditor-General was denied procedural fairness by Director of Public Prosecutions in the preparation of the report - report critical of Auditor-General in both personal and professional capacity - report prepared pursuant to statutory requirement - held not arguable that the Director of Public Prosecutions was required to afford the Auditor-General procedural fairness in the preparation of the report - application dismissed.
Director of Public Prosecutions Act 1991 s 12(3) and s 12(4), referred to.

MACPHERSON v PALLARAS
[2006] SASC 370
Civil

PERRY J: (ex tempore) This is an ex parte application by the Auditor-General for an interim injunction to restrain the Director of Public Prosecutions from reporting to Parliament pursuant to s 12(3) of the Director of Public Prosecutions Act 1991 in terms of the draft report which he furnished to the Auditor-General on Monday 4 December 2006.
The Director of Public Prosecutions informed the Auditor-General that he proposed to forward the report to Parliament today. The most up to date information available to counsel suggests that the report has not yet been delivered.
Pursuant to s 12(4) of the Director of Public Prosecutions Act 1991 the Speaker of the House of Assembly and the President of the Legislative Council must, as soon as practicable after receipt of the report, lay copies of it before their respective Houses. Both Houses are due to sit this afternoon, and if the report has in fact been delivered or is delivered sometime later today, the expectation is that in pursuance of that statutory obligation the report will be laid before both Houses then or soon thereafter. In view of those circumstances, I heard the application as a matter of urgency.
The solicitors for the applicant have notified the President of the Legislative Council and the Speaker of the House of Assembly that the proceedings have been brought, and that this enlivens what they describe as the sub judice convention.
By way of background there has been a dispute, at times spilling into the public arena and discussed in Parliament, between the parties as to the extent of the statutory powers of the Auditor-General to investigate and obtain information from the Director of Public Prosecution as to certain aspects of the operation of his office. Particular matters upon which the Auditor-General has focused attention are the decision by the Director of Public Prosecutions to prosecute Randall Ashbourne, and procedures associated with use in prosecutions of DNA evidence said to have been illegally obtained or retained, with particular reference to the case of R v Dean. There has been considerable correspondence between the parties on these issues, at times acrimonious.
In his annual report tabled in Parliament on 19 October 2005, the Director of Public Prosecutions commented adversely on some aspects of the Auditor- General’s views and comments made to him. In November 2005 the Auditor-General delivered a supplementary report to Parliament in which he joined issue with the Director of Public Prosecutions on a number of issues which had been the subject of comment by him.
He advanced further criticism of the Director of Public Prosecutions in the supplementary report to Parliament which he delivered to Parliament in November 2006.
The report of the Director of Public Prosecutions now in question addresses the November 2006 supplementary report of the Auditor-General, and joins issue with a number of the positions taken by the Auditor-General.
Speaking very generally, the Director of Public Prosecutions advances the opinion that the Auditor-General cannot legitimately investigate the manner in which the Director of Public Prosecutions exercises his prosecutorial discretion, as opposed to the investigation of purely financial matters.
The report which the Director of Public Prosecutions proposes to deliver to Parliament contains passages in which the Auditor-General is severely criticised for the stance he has taken in the matter and for his construction of the relative statutory responsibilities of the Auditor-General on the one hand and the Director of Public Prosecutions on the other. The Director of Public Prosecutions’ report is expressed in strong language, at times in intemperate language. It attacks the Auditor-General personally and questions his bona fides, suggesting that he is guilty of actual bias. It suggests that he has fundamentally misconceived relevant legal principles.
In his affidavit in support of the application the Auditor-General asserts that a number of the statements made by the Director of Public Prosecutions involve serious criticisms, which impugn his integrity and impartiality and undermine both his personal reputation as Auditor-General and the standing and reputation of the office which he holds.
The application proceeds on one ground only, namely that the Auditor-General has been denied procedural fairness in having been given too short a time within which to comment on, and perhaps answer, matters contained in the draft report before its delivery to Parliament. That is the only ground on which the application is based.
Mr Livesey QC of counsel for the Auditor-General has put everything which can be said in favour of his client’s case. However, at the end of the day I am not satisfied that it is reasonably arguable that the principles relating to affording procedural fairness are involved in the particular circumstances of this case. It would be rare indeed for such principles to apply where the holder of a statutory office exercises his or her power to report to Parliament on a matter relating to the functioning of the office.
In any event, the parties have exchanged their views, albeit with unusual vigour and lack of restraint, over many months of disputation. The position of each party has been clearly defined in those exchanges. The fact that the somewhat intemperately expressed report now in question includes severe personal criticism of the Auditor-General does not result in a situation where the rules of natural justice come into play. The holders of high office, as judges are well aware, must be prepared to take such criticism in their stride. At the end of the day, there is no reason why appropriate proceedings might not be brought in this Court to seek declaratory relief clarifying the ambit of power of the two office holders. Perhaps legal proceedings directed to that end might be the most effective way to bring to an end this unseemly debate.
I add that it is not for the court to censor or edit or filter a report delivered pursuant to statutory provisions such as those now in question.
However, to make it clear, in dismissing the application, I do so on the sole ground that it is not reasonably arguable, even to the extent necessary to support an interim injunction, that the rules as to procedural fairness apply in the circumstances of this case. In my view they do not apply. Even if they did, where the parties have over a long period of time made their respective positions clear, in the particular circumstances those rules would have no effective or sensible content.
The application is dismissed.
I add that if perchance, unknown to counsel and to the Court, the report has in fact been delivered to Parliament, this Court could not in any event make an order interfering with the statutory obligation of the Speaker or the President to table the report in the respective Houses. That would be an impermissible interference with the functioning of Parliament.
I discharge all orders made this morning for suppression.