McInerney v South Australian Metropolitan Fire Service - [2008] SADC 92

DISTRICT COURT OF SOUTH AUSTRALIA
(District Court Administrative Appeals Tribunal)
MCINERNEY v SOUTH AUSTRALIAN METROPOLITAN FIRE SERVICE
[2008] SADC 92
Reasons for Decision of His Honour Judge Soulio
22 July 2008
ADMINISTRATIVE LAW - ADMINISTRATIVE TRIBUNALS - GENERALLY
Appeal from determination of Disciplinary Committee established under Fire and Emergency Services Act - preliminary point - whether presiding member entitled to continue to hold position following appointment as a Magistrate - whether determination of Disciplinary Committee invalid - nature of appeal.
Fire and Emergency Services Act 2005 s45, s47, s49, s51; District Court Act 1992 s20; Legal Practitioners Act 1991 s5; Magistrates Act 1983 s5, s18, referred to.
Police and The State of South Australia v Lymberopoulos & Ors [2007] SASC 247 (4 July 2007; Saraf & Anor v Johns [2008] SASC 166 (23 June 2008) at 34; Craig v The State of South Australia (1995) 184 CLR at 163, considered.

MCINERNEY v SOUTH AUSTRALIAN METROPOLITAN FIRE SERVICE
[2008] SADC 92
Background

The appellant was employed by the South Australian Metropolitan Fire Service as a firefighter. On 3 August 2007 the Disciplinary Committee established under the Fire and Emergency Services Act 2005 determined that his employment should be terminated.
He has appealed against that decision pursuant to s49 of the Act which relevantly provides that:
(1) An officer or firefighter who is aggrieved by a decision of the Disciplinary Committee or the Chief Officer pursuant to Subdivision 2 may appeal to the District Court.
A Procedural Point
Section 51 of the Fire and Emergency Services Act (the Act) provides that in any proceedings under the relevant subdivision the District Court will sit with assessors.
The parties agreed however that this was a preliminary matter and that it was appropriate that the matter be heard by a Judge of this Court sitting alone, pursuant to s20(4)(ab)(i)(A) of the District Court Act 1992.
The Preliminary Issue for Consideration
The grounds of appeal include a number of substantive matters. The only matter which fell for consideration by me was the question of whether the determination of the Disciplinary Committee (the Committee) was invalid for want of jurisdiction. The appellant asserts that the Committee was not properly convened at the time of the making of the determination as, by then, the presiding member, Mr Morris, had been appointed to the position of Stipendiary Magistrate.
Section 45(2) of the Act requires the presiding member to be a legal practitioner of not less than seven years standing. At the time of his initial appointment the presiding member was a legal practitioner of seven years standing and there was no challenge as to the validity of his initial appointment.
The appellant asserts that the presiding member ceased to be eligible to hold the office of presiding member of the Committee as a result of his appointment as a Magistrate, and on that basis the Committee had no authority to make any determination.
Appeal or Judicial Review
The challenge by the appellant amounts to an assertion that there has been an error of jurisdiction, rather than an error within jurisdiction.[1]
[1] Craig v The State of South Australia (1995) 184 CLR 163
It might be thought at first glance that where the appellant complains of an error of jurisdiction, the appropriate remedy is judicial review.
In Police and The State of South Australia v Lymberopoulos & Ors[2] Doyle CJ with whom Bleby and Sulan JJ agreed said:
Had there been a right of appeal from the Magistrate’s decision, one would expect the complaint that is made by Mr Lymberopoulos to have been made by way of appeal. This Court does not and will not encourage parties to proceedings to come to this Court in proceedings by way of judicial review with a view to interrupting or forestalling proceedings before the court in question. Experience has shown that to do so often results in unnecessary cost and delay. Ordinarily, the Court would exercise its discretion and refuse to make an order by way of judicial review if the proceedings have not been completed, and if there is a right of appeal.
[2] [2007] SASC 247 (4 July 2007)
Similarly in Saraf & Anor v Johns[3] Debelle J, in hearing an appeal against findings and recommendations made by the Coroner where it was alleged that the findings were incorrect, and that the recommendations were ultra vires, said:
...While it would be possible for a person with a sufficient interest to institute an application for judicial review seeking orders quashing the recommendations on the ground the Coroner’s Court had acted beyond its power, it is unsatisfactory to require that person to resort to two remedies, an appeal against a finding of the Coroner’s Court and an application for judicial review to quash a recommendation. The firm policy of the law is to put an end to litigation as speedily as justice allows. ... That policy is reflected in the philosophy of the rules of this court relating to joinder of causes of action that multiplicity of proceedings is to be avoided. ... An appellant against a finding should not have to be put to the expense and possible delay of having to institute separate proceedings by way of judicial review to challenge a recommendation that is perceived to be invalid.
[3] [2008] SASC 166 (23 June 2008) at para 34
I am satisfied that the preliminary point is incidental to the substantive appeal on the merits. On that basis it is appropriate for me to determine the matter.
The Appellant’s Argument
Simply put, the argument is that as a consequence of his appointment as a stipendiary Magistrate on 9 November 2006 Mr Morris ceased to be entitled to act as the presiding member of the Committee, as a result of which the Committee was not properly constituted, and the findings of the Committee were invalid.
Not a Legal Practitioner
The first limb of the argument is that once appointed as a Magistrate, Mr Morris was not “a legal practitioner” as required by s45 of the Act.
There is no definition of “legal practitioner” in the Fire and Emergency Services Act.
Counsel for the appellant argued strongly that as Mr Morris was no longer entitled to practise, he could not be regarded as a legal practitioner.
The Legal Practitioners Act 1991 defines “legal practitioner” in the following terms in s5:
legal practitioner or practitioner means—
(a)     a person duly admitted and enrolled as a barrister and solicitor of the Supreme Court; or
(ab)   an interstate legal practitioner who practises the profession of the law in this State; or
(b)     a company that holds a practising certificate;
There is no question that Mr Morris was duly admitted and enrolled as a barrister and solicitor of the Supreme Court. Once enrolled, he remains enrolled, unless some action is taken and an order is made by the Supreme Court removing his name from the roll. That of course has not occurred.
There is no requirement in meeting the definition, that a legal practitioner, duly admitted and enrolled as a barrister and solicitor of the Supreme Court, be entitled to practise. So much is made clear by the separate definition, in the Legal Practitioners Act, of “local legal practitioner” defined as meaning “a legal practitioner who holds a practising certificate”.
The appellant sought to draw a distinction between a judicial officer and a legal practitioner. Counsel relied on s5 of the Magistrates Act 1983 as supporting the proposition that if a person is a judicial officer he cannot be a “legal practitioner”.
Section 5 of the Magistrates Act 1983 provides:
(5)A person is not eligible for appointment as a magistrate unless he is a legal practitioner of at least five years standing.
(6)For the purpose of determining whether a legal practitioner has the standing necessary for appointment as a magistrate, periods of legal practice and (where relevant) judicial service within and outside the State will be taken into account.
In my view subsection (6) does not support the appellant’s contention and if anything adds force to the argument that a judicial officer once appointed may still be defined as a legal practitioner given that when considering a legal practitioner’s qualifications for appointment, periods of judicial service may be taken into account.
Mr Morris was a legal practitioner of at least seven years standing at the time of his appointment, and remains a legal practitioner. In my view that is the end of that argument.
Conflict with the Magistrates Act
In the alternative, the appellant contends that Mr Morris was ineligible to hold the position of presiding member of the Committee on the basis that the requirements of the Magistrates Act relating to concurrent appointments and outside employment had not been met.
The basis upon which Mr Morris continued in his position as presiding member included that he would not be remunerated, and that the work on the Committee would occupy no more than one day per month.
The Magistrates Act provides that an appointment of a Magistrate will be taken to be on a full time basis unless the instrument of appointment provides that the appointment is on a part-time basis.
Subsection 5 provides:
5(2b)However, a magistrate not appointed on a part-time basis may, by written agreement with the Chief Magistrate made with the approval of the Attorney-General, perform the duties of his or her office on a part-time basis for a period specified in the agreement.
First, the appellant says, there was no written agreement as required by s5(2b) of the Magistrates Act.
A good deal of argument centred around the question of whether communications involving Mr Morris, the Chief Officer of the MFS, and the Chief Magistrate (including a hearsay reference in a minute from the Chief Officer referring to Mr Morris having obtained permission from the Chief Magistrate and the Attorney-General), together constituted a written agreement.
In my view there was no need for a written agreement. The work of a Magistrate involves work after hours, at night and on weekends. I do not regard the fact that a Magistrate may be occupied in some other non-remunerative position one day per month, as making the Magistrate a part-time Magistrate.
Section 18 of the Magistrates Act was also relied upon by the appellant. That deals with special leave and provides that the Chief Magistrate may grant special leave for any reason which justifies the grant of such leave, for any period that the Chief Magistrate thinks fit. Further a Stipendiary Magistrate is not entitled to more than three working days remunerated special leave unless the Governor has consented to the grant of the leave.
There is no evidence that special leave was obtained, nor in my view was it required. If the time spent on the Committee constituted special leave, and if Mr Morris was remunerated for his work on the Committee, that may or may not have some consequences under the Magistrates Act. It does not in my view affect the validity of his continued role as presiding member of the Committee.
Counsel for the appellant also argued that s18A of the Magistrates Act had been breached. Section 18A(4) provides:
(4)     A part-time magistrate must not—
(a)     practise the profession of the law for fee or reward; or
(b)     without the written approval of the Chief Justice given with the concurrence
of the Chief Magistrate—
(i)     practise any other profession for remuneration; or
(ii)    carry on any trade or business; or
(iii)     hold any paid office in connection with a business; or
(iv)     engage in any form of work for remuneration.
The appellant relied on the fact that s45 of the Fire and Emergency Services Act provides that a member of the Disciplinary Committee is entitled to such remuneration and allowances as are determined by the Governor. Counsel for the appellant suggested that given that there is provision for remuneration, the fact that the presiding member had renounced any entitlement to remuneration was of no effect. I disagree.
Mr Morris was not a part-time Magistrate and accordingly s18A(4) does not apply to him. In any event, there has been no breach of that subsection. Even if there had been, such a breach would not invalidate his continued role as presiding member of the Committee.
The appellant also sought to rely on s18A(1) which provides:
18A(1)If a person holds or is to hold some other appointment for a fixed term concurrently with appointment as a stipendiary magistrate, the Governor may, with the consent of the person, suspend his or her remuneration, duties and other conditions of service as a stipendiary magistrate for the term of the concurrent appointment.
That subsection in my view is designed to deal with a situation where a person is concurrently appointed to a position which makes it untenable to carry out his or her duties as a Magistrate. That is not the case here. The subsection has no application. Again, if it did, it would not in my view affect the validity of his position as a presiding member of the Committee.
A further point made by the appellant, during the course of argument, was that the decision of the Committee dealt with two complaints referred by the Chief Officer to the Committee pursuant to s47(1) of the Act; one prior to the presiding member’s appointment as a Magistrate; and the second an investigation apparently commenced during a period when the presiding member was still clarifying, with the Chief Magistrate, his continued role as presiding member. I do not consider that that is of any consequence. Having been validly appointed initially, no step had been taken to suspend that appointment. The appointment as a Magistrate did not do so. The agreement of the Chief Magistrate and the approval of the Minister for Emergency Services for him to continue as presiding member merely confirmed an existing state of affairs.
It follows from what I have said that there has been no error of jurisdiction and the appeal must be determined on its merits before a Judge of this Court sitting with two duly appointed assessors.
I will hear counsel as to any consequential orders.