Mallios v Commissioner of Police - [2024] SASC 131

SUPREME COURT OF SOUTH AUSTRALIA
(Appeal to a Single Judge)
MALLIOS v COMMISSIONER OF POLICE
[2024] SASC 131
Decision of the Honourable Justice B Doyle (ex tempore)
7 November 2024
MAGISTRATES - APPEAL AND REVIEW - SOUTH AUSTRALIA - APPEAL TO SUPREME COURT - PROCEDURE - OTHER MATTERS
Interlocutory application brought by the applicant in an appeal before a single judge against a decision of a magistrate refusing the applicant’s application under s 47IAB(1) of the Road Traffic Act 1961 (SA) (‘RTA’) for an order that his license not be suspended pursuant to a notice given to him under s 47IAA(2) of the RTA.
The applicant sought orders that the judge in the matter recuse himself of the proceeding and that the matter be referred back to the Registry to appoint another judge of the Court to determine the appeal at a future date.
The applicant also sought an order that the Crown Solicitor’s Office is not authorised to represent the respondent by reason of the respondent not being a party within the meaning of the Crown Proceedings Act 1992 (SA) and/or the Crown Proceeding Regulations 2023 (SA).
Held, dismissing the application:
1.There is not a basis to conclude that a fair-minded lay observer familiar with the procedural history of the matter might reasonably apprehend that the judge might not bring an impartial mind to the matter or deviate from deciding the issues by reference to their merits.
2.There is no basis to conclude that the Crown Solicitor may not represent the Commissioner of Police.

Crown Proceedings Act 1992 (SA) ss 4(1), 18; Crown Proceedings Regulations 2023 (SA); Joint Criminal Rules 2022 (SA) r 24.1; Public Sector Act 2009 (SA); Road Traffic Act 1961 (SA) ss 47IAB, 47IAA(2); Uniform Civil Rules 2020 (SA) r 25.1(1), referred to.
QYFM v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2023) 97 ALJR 419, applied.
Bell v R [2020] SASCFC 116; Charisteas v Charisteas (2021) 273 CLR 289; Concrete Pty Ltd v Parramatta Design & Developments Pty Ltd (2006) 229 CLR 577; Corporation of the City of Unley v South Australia (1997) 68 SASR 511; Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337; Johnson v Johnson (2000) 201 CLR 488; Police v Conway [2006] SASC 186, considered.

MALLIOS v COMMISSIONER OF POLICE
[2024] SASC 131
Single Judge Appeal – Criminal

B DOYLE J: By notice of appeal filed on 9 July 2024, Mr Mallios (‘the applicant’) sought an extension of time within which to seek leave to appeal against a decision of a Magistrate made on 27 March 2024 refusing his application under s 47IAB(1) of the Road Traffic Act 1961 (SA) (‘RTA’) for an order that his licence not be suspended pursuant to a notice he had been given on 18 March 2024 under s 47IAA(2) of the RTA.
The hearing of the appeal and, if it is required, the application for leave to appeal, is listed before me today. The procedural history of this matter between the filing of the notice of appeal on 9 July 2024 and the present date is somewhat involved, and I will return to that to the extent necessary in due course.
Interlocutory application
On 4 November 2024, the applicant filed an interlocutory application styled ‘Interlocutory Application – No 4’,[1] which I directed be returnable this morning, having earlier made inquiries as to whether the applicant would be in a position to have that application heard and determined sooner, but having been informed he was not available at any time before this morning.
[1] FDN 22.
That application sought orders:
(1) that the sitting judge in this matter recuse himself from the proceedings; and
(2) that the matter be referred back to the Registry, to appoint another judge of this Court to determine the matter at a future date.
The application was supported by an affidavit sworn by the applicant on 1 November 2024, but filed on 4 November 2024.[2]
[2] FDN 23.
In the affidavit, the applicant stated that the application was ‘motivated’ by the following matters:
(a)that the judge has ‘entered into the arguments of the case on his own accord’;
(b)that the judge has ‘of his own accord questioned the ‘utility’ of my appeal’;
(c)that the judge has ‘corresponded with the DPP without my input or first awaiting my answer in the correspondence’;
(d)that the judge has ‘made decisions with respect to this matter without first hearing my views or argument’; and
(e)that the judge has ‘made decisions and determinations without any formal application having been made to the Court’.
The applicant asserts that these issues ‘alone provide a prospect and perception of bias or perception and apprehension of bias in this Appeal’.
Yesterday, the applicant provided an Amended Interlocutory Application – No 4 and, overnight, a slightly amended form of that document, in which the applicant now also seeks an order:
(3) that the Crown Solicitor’s Office is ‘not authorised to represent the Respondent pursuant to the Respondent not being a party within the confines of the Crown Proceedings Act 1992 and/or the Crown Proceedings Regulations 2023 either, a Minister, nor an instrumentality, nor an agency of the Crown; or a body or person declared by the regulations to be an instrumentality or agency of the Crown for the purposes of this Act’.
In an email sent to the Registry and to the practitioner with the conduct of the matter for the respondent, the applicant stated that his objection was not a personal attack on the practitioner, but was that ‘in broad terms the so-called CSO (Crown Solicitor’s Office) has no legal or lawful underpinning’.
A question arises as to the sequence in which I should resolve the matters raised by the interlocutory application. It is desirable that I deal with the application for recusal before deciding any other question of substance or any contentious question of procedure because if I decide I should recuse myself, I should not decide these matters. However, the respondent’s counsel, Ms Nolan, wished to be heard on the recusal application, and her right to do so was put in issue by the applicant.
As a practical matter, I proposed that I should hear submissions from the applicant and Ms Nolan on both matters, but that I would first determine the question of recusal before (if it is appropriate, having regard to my decision on that question) turning to the question of representation. The applicant was content for the hearing to proceed in that way.
At the outset of the hearing, the applicant handed to me and Ms Nolan a 21-page document titled ‘Written submissions of appellant for hearing before Doyle J on 7 November 2024’.[3] The Court adjourned so that the Court and Ms Nolan could read and consider those submissions, and the hearing resumed thereafter. Those submissions made extensive reference to authority in respect of the question of recusal.
[3] FDN 26.
As to the factual matters underlying the contention of bias or apprehended bias, in some respects the summary set out in the submissions does not accord with the record of the procedural history of this matter, including as appears from transcript and relevant email correspondence exchanges which, for the purposes of this application, have been marked for identification ‘MFI-A’ and ‘MFI-B’.
Recusal application
There are two main limbs to the applicant’s application that I should recuse myself. I will consider them separately and cumulatively.
The ultimate test is that recently reaffirmed in QYFM v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs.[4] I must consider whether a fair-minded lay observer might reasonably apprehend that I might not bring an impartial mind to the resolution of the question or questions that I will be required to decide. The ‘double might’ serves to emphasise that the criterion is concerned with ‘possibility (real and not remote), not probability’.[5]
[4] (2023) 97 ALJR 419.
[5] QYFM v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2023) ALJR 419 at [37] (Kiefel CJ and Gageler J), citing Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337 at [7] (Gleeson CJ, McHugh, Gummow and Hayne JJ).
It has been said that logically this entails the following steps: (1) identification of the factor which it is said might lead a judge to resolve the question other than on its legal and factual merits; (2) articulation of the logical connection between that factor and the apprehended deviation from deciding that question on its merits; and (3) assessment of the reasonableness of that apprehension from the perspective of a fair-minded lay observer.[6]
[6] QYFM v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2023) ALJR 419 at [38] (Kiefel CJ and Gageler J), citing Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337 at [8] (Gleeson CJ, McHugh, Gummow and Hayne JJ).
It is not necessary to place applications in particular categories, but, for convenience, arguments for recusal are often grouped into the categories of ‘interest’, ‘association’, ‘extraneous information’ and ‘conduct’.
Entering into the arguments and questioning the ‘utility’ of the appeal of my own accord
The first limb of the applicant’s application involves a contention that I have entered into the arguments of my own accord and questioned the utility of the appeal of my own accord. This most naturally fits within the ‘conduct’ category.
The question is whether I have engaged in conduct, in connection with the management of this proceeding, which gives rise to a reasonable apprehension of prejudice, partiality or prejudgment. There is no suggestion that such an apprehension arises from any conduct of mine outside the proceedings.
Whilst the question of reasonable apprehension of bias is to be considered through the prism of the lay observer rather than a lawyer, the fair-minded observer is taken to have sought to be informed on some of the basic considerations relevant to the role I have been undertaking, and to have some understanding of ordinary judicial practice.[7] They would also be aware of all that has occurred in the proceeding and see the impugned conduct in its context.
[7] Charisteas v Charisteas (2021) 273 CLR 289 at [12] (Kiefel CJ, Gageler, Keane, Gordon and Gleeson JJ) referring to Johnson v Johnson (2000) 201 CLR 488 at [13] (Gleeson CJ, Gaudron, McHugh, Gummow and Hayne JJ).
In this case, my raising of questions relating to the utility of the appeal occurred in a particular context. The context was this:
(1)First, by interlocutory application filed at or around the time he filed his notice of appeal,[8] the applicant sought an order that his licence disqualification or suspension be ‘stayed’ pending the determination of the appeal. The applicant filed affidavits relating to that application. In one of those affidavits, being an affidavit of the applicant made on 15 July 2024,[9] he deposed as follows:[10]
[8] FDN 4.
[9] FDN 7.
[10] FDN 7 at [4].
I am seeking to have the operation of the Suspension or Disqualification immediately “Stayed” as the Suspension or Disqualification will expire in two months time and the Appeal will be futile if I am required to await my Appeal that long.
Later in the affidavit he deposed:
any delays would render the Appeal futile if allowed to be delayed until later in the year.
(2)Following an initial hearing in this matter on 26 July 2024 at which the applicant did not appear, the applicant was on 30 July 2024 granted an extension of time within which to make his application for leave to appeal. At a directions hearing in this Court on 30 July 2024, directions were made by Bampton J expediting the hearing of the matter in order that it could be determined prior to the expiry of the six-month period of disqualification or suspension that had commenced when the s 47IAA notice was issued to the applicant by police on 18 March 2024. Those directions required the respondent to file submissions by 5 August 2024, with the applicant to file his written submissions by 12 August 2024. The matter was listed for hearing on 14 August 2024.
(3)In accordance with Bampton J's directions, the respondent filed written submissions dated 5 August 2024. The applicant filed written submissions dated 12 August 2024.
(4)When the matter came before Bampton J on 14 August 2024, the applicant said that he was not aware that the appeal was to be heard on that day, and that he understood it was to be an argument that his licence be reinstated, presumably a reference to the interlocutory relief he had sought pending the hearing of the appeal. The applicant was granted an adjournment until 16 August 2024.
(5)The following day he sent an email to the chambers of Bampton J requesting that the appeal be adjourned for a period of at least 3 to 4 weeks, and requesting that his application for a stay be heard on 16 August 2024.
(6)At the hearing on 16 August 2024, the applicant confirmed that he sought an adjournment of the appeal, and that he wanted the Court to grant a stay of the licence suspension. The grounds proffered related to the hardship being caused to him by the suspension. Bampton J declined to grant a stay, having not been satisfied that the grounds of appeal were reasonably arguable. She urged the applicant to seek advice in relation to the charge laid in the Magistrates Court. Her Honour produced a ruling that identified and explained the relevant provisions of the legislative regime.[11]
[11] FDN 18.
(7)That left the appeal, and if leave is necessary, the application for leave to appeal, to be dealt with by the judge with responsibility for hearing single judge appeals during the month of September, and that was the occasion for my assuming the conduct of this proceeding.
(8)Noting the applicant’s request that he be given several weeks to prepare for the appeal, I listed the appeal for hearing on 23 September 2024, but I also listed the matter for directions on 4 September 2024. At that hearing, I inquired as to whether in light of the fact that the period of his licence suspension would expire before the hearing date, giving rise to a question of the appeal’s practical utility, the applicant wished to seek that the appeal be expedited and heard on a date the following week, that is, the week following 4 September 2024.
(9)The applicant indicated he was not sure he would be ready before 23 September 2024, and was seeking legal advice. He did not request an earlier hearing date. In the course of the hearing, I said:
Supposing for the moment, and you shouldn’t read anything into what I'm about to say, but supposing that you were to succeed on the appeal on 23 September, there might be some legal significance in your success, but it’s not going to make any difference to the fact that you will have been without your licence for six months. So really what I’m asking you is whether you wish to hold that appeal date and we’ll proceed on the 23^rd and it may be that the respondent will submit that, amongst other things, the appeal should be refused because there’s no practical utility to it.
As I have indicated, the applicant did not request that the appeal be expedited.
(10)Later in the course of the hearing, I said:
so long as you understand it may be put against you on 23 September, that whatever the merits of your appeal, there is no order that I could make on that appeal which would, in practical terms at least, alter the fact that your licence will have been suspended for a period that will have expired by the time we get to the 23^rd. Now I’m not seeking to dissuade you from maintaining that listing and we’ll proceed on that basis, but I just wanted to ascertain that you did wish to proceed, and I'll take it now that you do.
At the end of the hearing, I made clear to the applicant that I continued to have an open mind about the issues I had raised.
(11)On that occasion, directions were made for any further materials to be filed by 9 September 2024. The applicant did not file any further materials.
(12)Late on 20 September 2024, the last business day before the hearing of the appeal, in email correspondence that comprises MFI-B, the applicant sent an email indicating he was too unwell to attend the appeal on Monday, and attaching a letter from a medical practitioner indicating she considered him unfit to attend Court in his present state of health. The applicant’s email requested that the Court allocate another date and time convenient to the Court and the parties.
(13)The respondent indicated it opposed a further adjournment of the matter. The respondent said that the appeal had become futile, and that it was open to the Court to find that the grounds of appeal no longer fell to be determined as the applicant no longer had a real interest given that a favourable outcome to the applicant in relation to the matter would produce no foreseeable consequences.
(14)The applicant replied that the appeal was not rendered futile by the expiration of the period of the licence suspension and raised a number of authorities in that regard. The applicant did not appear at the hearing on 23 September 2024. The respondent urged me to refuse the application for an adjournment and to dismiss the appeal on two grounds: first, that the appeal lacked utility, and secondly, that it lacked reasonable prospects of success.
(15)In the course of submissions, I inquired whether Ms Nolan submitted that the appeal was as of right or required leave. Ms Nolan acknowledged that there was no clear authority. For the purposes of considering the applicant’s adjournment application, I considered it appropriate to proceed on the basis that leave may not be required. In that context, I indicated I was not persuaded that I should refuse the adjournment on the footing contended for by the respondent, namely, that the appeal lacked utility and was liable to be dismissed as futile in those circumstances.
(16)I concluded that it was arguable that were the applicant to demonstrate grounds for intervention, I could conclude that there was legal, even if not practical significance in the relief he might seek. I further said that I would need, in light of the medical evidence, to be satisfied to a very high degree that there were no reasonable grounds for the appeal before I would refuse his adjournment application and I was not satisfied to that extent. As a result, I refused the application for an adjournment.
Pausing here in the procedural chronology, I do not consider that a fair-minded observer might form the view either that I might not bring an open mind to the merits of the applicant’s appeal and, if leave is required, the application for leave, in that:
(1)as has been explained the question of the practical utility of the appeal if heard after the period of suspension expired was one raised by the applicant himself in the context of his stay application, and, in a sense, was an obvious matter;
(2)when I raised that question at the hearing on 4 September 2024, that was in a context of me seeking to ensure that the applicant had the opportunity, if he wished, to seek the expedition of the appeal to enhance or ensure its practical utility, if it were to succeed;
(3)whilst I drew the applicant’s attention to the possibility the respondent might raise questions of utility at least in relation to the form of any relief that might be granted on a later date, I do not consider that I did so in a way which might cause a fair-minded observer to think that I had a concluded view or might not decide that issue other than on its merits if and when the time came to resolve that question, or that I had inappropriately donned the mantle of prosecutor (or in this case, the Commissioner of Police). I indicate in passing that, in various respects, I consider the characterisation of what occurred at that hearing in paragraphs [81] to [83] of the applicant’s written submissions to be inaccurate or at least not a fair characterisation of events;
(4)further, if it is relevant to consider my conduct after that hearing, that is, if I am correct that I had not by that time conducted myself in a way that required my disqualification, a fair-minded observer of the hearing on 23 September 2024 would understand that I did not accept, at least in the way in which it was being put by the respondent on that occasion, that questions of utility were necessarily fatal to the appeal being progressed. If anything, I indicated that I was inclined to a preliminary view that if there were legal grounds for intervention, I could conclude that there was legal, if not practical, significance in the relief that the applicant might seek;
(5)I was of course only considering those issues to the extent necessary to decide whether the applicant should be denied an adjournment on the footing that his appeal was doomed to fail. But my refusal of that application tends to contraindicate any suggestion that I might not be prepared to decide the appeal, and in particular, any questions relating to the utility of the appeal on its ultimate merits.

In those circumstances and bearing in mind that judges are not in any event necessarily precluded from expressing preliminary views,[12] I do not consider that my conduct was such that I should recuse myself on grounds of apprehended bias.
[12] Concrete Pty Ltd v Parramatta Design & Developments Pty Ltd (2006) 229 CLR 577 at [112] (Kirby and Crennan JJ).
Insofar as paragraphs [85] and [88] of the applicant’s written submissions advance additional contentions in the context of utility, directed to the question of recusal, I indicate that I am not persuaded that they provide a basis for recusal. Amongst other things, it is there submitted that I have failed to grasp that ‘this Appeal is not about the Appellant being disqualified but about the learned Magistrate's refusal to hold an enquiry into the actions of the roadside disqualifications by the Police Officer’. Whether or not I have fully grasped all of the issues is not strictly to the point. The question is whether my conduct might suggest, in the eyes of a fair-minded lay observer, that I might deviate from deciding this matter on the merits, and I am not persuaded that the matters in those paragraphs would or might lead a fair-minded lay observer to consider that to be the case.
I return then to the procedural chronology. As MFI-A shows:
(1)On 30 October 2024, the applicant sent an email to my chambers stating:
The Magistrates Court have determined that the matter will not be heard next until the 11^th of November 2024 and after the scheduled Appeal date.
Most respectfully, I given [sic] that they are intrinsically related and that one of these actions may well become redundant. Can I suggest that the Appeal date be listed for hearing as soon as practicable after the Magistrates Court matter has been determined?
(2)On 31 October 2024, Ms Nolan wrote:
The Respondent is opposed to any further adjournment of the appeal proceedings.
The substantive proceedings and appeal proceedings are not intrinsically related. The outcome of one has no bearing on the outcome of the other.
We respectfully request that the hearing remain listed for 10.15 am on Thursday 7 November 2024. Should the appellant fail to attend the hearing on that occasion, the Respondent will request that the appeal be dismissed with costs.
(3)Later that day, my associate wrote to the parties by email:
Having considered the emails of the applicant and Ms Nolan, his Honour is not prepared to vacate and adjourn the hearing of the matter.
In written submissions provided today by the applicant, the applicant asserts as follows in paragraphs [91] to [93]:
This behaviour (and comments) by the Judicial Officer (in this matter) was further exacerbated when in correspondence to Counsel for the Respondent, the Appellant asked Counsel if they would agree to an ‘administrative’ delay the Appeal until after a lower Court matter, based on the same facts, were first disposed of and finalized. The Judicial Officer’s Associate was copied into this cross-correspondence between the parties. Another reason for ‘recusal’.
Had the Appellant received a favourable response from Counsel for the Respondent, the joint agreement would be tabled before the Court Registry to have the Hearing Date of the Appeal moved administratively until after the lower court matter had been finalized, or the Appellant (having received an unfavourable response from the Respondent’s Counsel), would need to consider if an Interlocutory Application was to be lodged to seek appropriate Orders from the Court. Another reason for ‘recusal’.
Without any formal or even informal request (or contact with) to the Court (or the Registry), a communiqué arrived from the Judicial Officer’s Associate claiming that no adjournment would be considered by the Court and the date set down for the Hearing, would proceed. Another reason for ‘recusal’.
I raised with the applicant during the hearing of the argument my concern that if the correspondence to which he was referring was the correspondence comprising MFI-A, the summary in those paragraphs is not accurate. The applicant sought an opportunity to consider that matter further. I gave the applicant that opportunity. Following having provided him with that opportunity, the applicant indicated that he did not wish to add to his written submissions. I indicate that I consider it to be clear that those paragraphs do not accurately record the effect of the impugned communications.
To the extent that, by his affidavit, the applicant contends that I ‘corresponded with the DPP without [his] input or first awaiting [his] answer’ and, taking the reference to the DPP to be a mistaken reference to the Commissioner of Police’s legal representative, I do not consider that to be an accurate characterisation of what occurred.
To the extent that the applicant might also or otherwise complain, in effect, that I did not accede to his informal application for an adjournment by email, or that I ought to have awaited his reply before deciding whether to do so, it is important to appreciate a distinction between whether I was correct to proceed as I did and the distinct question of whether my conduct gives rise to a reasonable apprehension of bias in the requisite sense.
As regards the most recent adjournment application made by email, it remains that the applicant can, if there are material matters that he wanted to raise but which were not canvassed in his email correspondence and which he would have raised had he been given a further opportunity raised by way of reply to Ms Nolan’s email, he retains the capacity to make a formal application or, indeed, to make an oral application at the hearing of the appeal in this matter. During submissions, Ms Nolan confirmed that that was also her position, namely, that my not acceding to the applicant’s request by email that the appeal be vacated administratively did not foreclose the applicant agitating an application of that kind, if so advised, at the hearing of the matter. An application for an adjournment can be reagitated at any time if there are proper grounds.
The question for present purposes that I must consider is whether, if and to the extent that I erred by proceeding in the manner previously described, that gives rise to a reasonable apprehension of bias.
I do not consider that a fair-minded observer familiar with the procedural history of this matter, including, for example, that I had granted the applicant an adjournment in his absence on a previous occasion over the respondent’s opposition, might conclude, even if it ought to have been made clearer to the applicant that he could formalise or reagitate his adjournment application, that this was indicative of a mindset on my part that suggests that I might not bring an impartial mind, in the sense of a mind open to persuasion, to the balance of the matters for decision.
Considering both of the groups of complaints raised by the applicant collectively, I do not reach a different conclusion; that is, considering all of the conduct in the round, I do not consider that a fair-minded lay observer might consider that I might not resolve the matters to be decided in this matter other than by reference to their merits, and I therefore decline to recuse myself.
Representation of the Commissioner
When he made his application under s 47IAB to the Magistrates Court, the applicant was required by s 47IAB(4)(b) to join the Commissioner of Police as a party to that application.
When the applicant brought his appeal in this Court, he appropriately named the Commissioner of Police as a respondent.
There was, in the Full Court’s decision in Police v Conway,[13] a suggestion that the task of the Magistrates Court on a s 47IAB application is administrative in nature.[14] Whether that means this appeal is incompetent is not something that I have had to decide because the respondent has done no more than draw the decision to my attention and, given that the Full Court itself in that case was hearing an appeal, which it did not suggest was incompetent, the decision is not binding authority to the effect that an appeal cannot be brought against a magistrate’s decision to grant or withhold relief under that section, even if the decision is, for some purposes, to be regarded as having an administrative quality to it.
[13] [2006] SASC 186.
[14] [2006] SASC 186 at [30].
What is relevant, however, is that the Court observed,[15] that the jurisdiction of the Magistrates Court did not involve a criminal judicial function.[16]
[15] [2006] SASC 186 at [30].
[16] Nor is it a prosecution, much less of an indictable offence of the kind the Director of Public Prosecutions might ordinarily conduct.
The section itself provides that the Commissioner of Police may (but is not required) to appear at the hearing represented by legal counsel or a police officer.[17]
[17] Section 47IAB(4)(c) of the RTA.
Whether the appeal to this Court is properly governed by the Joint Criminal Rules 2022 (SA) or having regard to the fact that it does not involve any question of adjudicating criminal guilt, the Uniform Civil Rules 2020 (SA), in either case, there is a similar provision respecting the question of representation.
In the case of the Uniform Civil Rules 2020 (SA), Rule 25.1(1) provides that subject to the sub-rules that follow:
a party may be represented in a proceeding or appellate proceeding by a law firm legally entitled to practise in South Australia.
In the case of the Joint Criminal Rules 2022 (SA), Rule 24.1 provides that:
A party may be represented in a proceeding or appellate proceeding by a law firm legally entitled to practise in South Australia.
The definition provisions in both rules provide, that:
‘Law firm’ means a law practice within the meaning of the Legal Practitioners Act 1981 and includes – (a) the Crown Solicitor ...
Prima facie, unless I were to conclude that the Crown Proceedings Act 1992 (SA) (‘CPA’) expressly or by necessary implication provides that the Crown Solicitor can only act as a ‘law firm’ for a party to an appeal in this Court where it falls within the definition of ‘Crown’ in s 4(1) of the CPA, it is not strictly necessary for me to decide whether the Commissioner of Police falls within what, in any event, appears to be an inclusive definition of ‘Crown’ in s 4(1).[18]
[18] Section 4(1) of the CPA provides:
‘In this Act, unless the contrary intention appears— …
Crown includes —
(a) a Minister, instrumentality or agency of the Crown;
(b) a body or person declared by the regulations to be an instrumentality or agency of the Crown for the purposes of this Act.’
It has been said that an ‘instrumentality of the Crown’ is any body or person that is ‘empowered to, and does, carry out a government purpose or activity. It does not have to be a servant or agent of the Crown to do that’: see Bell v R [2020] SASCFC 116 at [386] (Kourakis CJ, Peek and Blue JJ), referring to Corporation of the City of Unley v South Australia (1997) 68 SASR 511 at 525 per Matheson J (with whom Doyle CJ and Olsson J agreed).
Ms Nolan submitted that whilst I do not need to decide the question, the Commissioner of Police is a ‘public sector agency’ pursuant to or by reference to the provisions of the Public Sector Act 2009 (SA), and therefore is an ‘agency of the Crown’ within that definition, although she was not in a position to advance detailed argument to that effect this morning.
Because I do not consider that the effect of the CPA is to state exhaustively the government bodies, or emanations of the Crown for which the Crown Solicitor can act, I do not consider it necessary to resolve that question. I note in passing that in the appeal in Police v Conway, the Crown Solicitor is recorded as acting for the appellant.
Insufficient basis has been shown to doubt the authority of the Crown Solicitor to act in this matter.
To the extent that the applicant’s complaint is that on documents filed in this Court reference is made to the ‘Crown Solicitor’s Office’ as distinct from the ‘Crown Solicitor’, which is a corporation sole pursuant to s 18 of the CPA, I would regard that merely as an irregularity rather than as an impediment to Ms Nolan appearing or as otherwise providing a basis to doubt the validity of any steps taken by the respondent in this matter.
Disposition
For those reasons I would not grant the applicant the relief he seeks on his interlocutory application. That application is dismissed.