SENATOR.KINGSLEYFERDINANDS: KINGSLEY FERDINANDS - CHAMPION COLT

Friday 30 March 2012

The Master

Supreme Court of South Australia

Sir Samuel Way building

ADELAIDE SA 5000

Dear Master

Re: Trevor Kingsley Ferdinands v Attorney General of South Australia – Matter of fresh summons in the Supreme Court of South Australia – or Notice of Appeal in the District Court of South Australia – Master to make ruling on 15 years of wasted court ptoceedings

My purpose in writing is to inform you that 29 February 2012 the High Court of Australia refused special leave in a matter of fraud and conspiracy by the Commissioner of Police Mal Hyde.

In accordance with law I have done my duty and now I further do my duty and report to you that the judgment of the Supreme Court of South Australia is invalid in law and criminal, and likewise the refusal by Justice Heydon and Justice Bell is invalid because it is written by persons who engaged in spite, malice, ill-will and racial hatred towards minority groups and blacks as judicial officers and those persons seek to cover-up and protect the evil of the Commissioner of Police and his abuse of the Police Disciplinary Tribunal and Administrative Division of the District Court of South Australia.

The facts are in late 1996 to early 1997 when Mal Hyde was appointed Commissioner of Police I did write to him and outline serious matters of dishonesty and corruption in the force. I also highlighted many issues of fraud, perjury and nepotism which was in violation of State law. That fraud, perjury and nepotism continues today like a wild fire and what has happened is that the South Australia Police has become a private family club where criminals are protected and concealed from the courts and others are thrown out to the media wolves.

After my reports, in early 1997 Mal Hyde made a conscious decision to fabricate events and charges and convene court rooms in fraud. This case is the first case.

DCJ David Smith or Justice Gray or Justices Vanstone, Anderson or Stanley did not bother to look at or call for original documents to validate any claim made by Commissioner of Mal Hyde. Thus is there a special project or is there not a special project and were there an offences ever committed will never be known.

In fact every claim made in Crown submissions was a lie and false. The Supreme Court of South Australia refused to say anything or do anything because they are either paralysed as to the Mike Rann – Mal Hyde relationship or in love with the Mike Rann – Mal Hyde relationship and do not wish to upset the apple cart so to speak.

Thus, fraud is widespread. Justice is poorer for men who are not independent and impartial. The face of the public record remains invalid because DCJ David Smith or Justice Gray or Justices Vanstone, Anderson or Stanley were too frightened or too scared to tackle racism, fraud, dishonesty and corruption in South Australia Police.

The issue before the master is not the issues that were before DCJ David Smith or Justice Gray or Justices Vanstone, Anderson or Stanley but when or not a fresh summons should be issued in this matter as to a Rule 242 variation of judgment of DCJ David Smith or whether a Notice of Appeal in the DCJ David Smith’s number 3 judgment should be issued.

The facts of the matter of the Rule 242 are this:

1. On the first judgment I won my appeal for a trial;

2. It soon became evident that mal Hyde had fabricated charges and was trying to run a con or scam in the Police Disciplinary Tribunal because he had no evidence and tried to use duress including threatening to sack me from the police force if I did not plead guilty to his charges;

3. I maintained I have done nothing wrong but worked for the South Australia Police Department at my highest level to achieve something professional;

4. Finally, Mal Hyde filed a Rule 84.12 seeking changes saying he did not understand what the DCJ was doing and DCJ David Smith wrote a second judgment.

At no stage did DCJ David Smith indicate that what he had heard would change his mind rather the Crown brought two witnesses into the witness box namely Sergeant Gary Simpson and Sergeant Doug Wyman and both distanced themselves from any investigation or knowledge of the offences. Thus, the Crown had no witnesses. I cannot understand still today how the Crown can state in the first instances it did not understand the first hearings and first judgment and then indicate they demand a fresh court hearing and bring two police officers who were never interviewed and never knew of any charges and had no evidence to give about the special project.

This is well and truly fraud and conspiracy and I am sticking to this that I have been robbed by criminal judicial officers working with a criminal Commissioner of Police Mal Hyde and financed by a criminal State government in Mike Rann.

I will not mix my words. These men are dishonest and what is important is that they know they are evil and dishonest and have spent hundreds of hours writing lies instead of writing the truth.

I advise you I have no faith in DCJ David Smith or Justice Gray or Justices Vanstone, Anderson or Stanley.

I advise you I have no faith in High Court Justices Heydon or Bell. They have zero ability and are unspeakably lazy.

I advise you I have no faith in Commissioner of Police Mal Hyde.

I advise you I have no faith in former Premier Mike Rann or his Attorney General Michael Atkinson.

These persons are underperformers and have desired to alter history and events by lies.

The above mentioned persons are utterly dishonest. They have chosen to engage in process corruption which is the abuse of the court’s processes and fabrication of evidence.

I am seeking further clarification as to the special leave application and this may take many months thus I am now seeking to bring this matter on before the master for a ruling.

These are serious matters and I would be grateful if you could read all attached files including:

1. High Court of Australia Special Leave ruling;

2. Application for Special Leave to appeal.

3. Full Court of Supreme Court of South Australia judgment;

4. Justice Gray’s judgment;

5. DCJ David Smith number 3 judgment, and;

6. DCJ David Smith number 2 judgment.

Without any doubt there is no special project for me and I think DCJ David Smith, Justice Gray, Justices Vanstone, Anderson, Stanley and Justices Heydon and Bell all knew of this and engaged in fraudulent conduct whilst in office.

These are very serious allegations of misconduct by judicial officers however until the full facts are disclosed by Mal Hyde and all materials and evidence forced by subpoenas or court orders it seems that Mal Hyde has lied with the blessings of the Supreme Court of South Australia and the High Court of Australia.

Mal Hyde’s conduct has been shameful and disgraceful but he is not frowned upon for his vile racism and fraud in the courts rather he is well supported by the Supreme Court of South Australia and the High Court of Australia especially by Justice Gray, Justices Vanstone, Anderson or Stanley.

I have stated that I advise you I have no faith in High Court Justices Heydon and Bell and that they have zero ability and are unspeakably lazy. Justices Heydon and Bell lack any sense of responsibility. They think justice is for a good time and that the taxpayer’s of Australia owe them a living thus they can write dishonest judgments and evil and think because they are sitting pretty and high up in the social world that they are untouchable. The judgment of Justice heydon and Bell is invalid. It has no merit. They were required to pu pressure upon the Crown but when they have been paid thirty pieces of silver to do the bidding of the Crown and make all white people look good and honest and all minority groups and blacks look dishonest then their work is a sham and utterly fraudulent. It is clear the price that justice must pay is to repeat a lie. The last time the world saw this type of lie was in the United States of America’s (US) declaration of weapons of mass destruction in Iraq. That was a lie and proven to be a lie. But before it was proven to be a lie it was sent to all nations and Murdoch’s News Corporation had a field day hoping and anticipating the death of hundreds of thousands of Iqari’s and their families. The world cannot afford to pay for men who are irresponsible and lazy as they attract danger to international justice.

I would appreciate on what is a difficult matter if you could write at all legal firms, the Law Society of South Australia and all independent legal practitioners and advise them that the facts in Ferdinands v District Court of South Australia (2012) and judgments are incorrect and not to be used or relied upon by any law firm or legal practitioner in any legal proceedings whatsoever. This blanket warning must be given once you have inspected the Commissioner of Police’s file on the so called ‘special project for the New Zealand Commissioner of Police’ and determined whether it is authentic or utterly false.

I inform you clearly in Her Majesty’s English, the length of the delay that has been cited by so many so called honourable judges, has always been blamed on me by those very racist judges but not one of them has the courage or challenged the Commissioner of Police and asked why he did not serve any legal documents upon me from the time he served the summons for some 3 months past and why he used threats and duress in the workplace to force a change of plea. Further how did he come to select me for some special project (that he concocted in an attack upon a whistle blower) and how did he arrive at a penalty of three years transfer from Firearms Section to the City watch House, and that I was not to appeal his decision to any court but stay in the City Watch House, Adelaide for three (3) years.

It seems justice has been bought and sold for thirty pieces of silver in the State of South Australia. Justices Gray, Vanstone, Anderson and Stanley all had a duty but when one has been paid to look away them one expects the garbage judgments of de-facto members of the Australian Labor Party parading themselves as honourable judges of the Supreme Court.

I ask you to give careful consideration to these matters as others have not. I ask you to make a decision as to whether you will accept documents to make a ruling as to whether a fresh summons is issued or notice of appeal is issued. Certainly I have no idea DCJ David Smith was going to change his mind because at the time I was focused on the evidentiary value of the two witnesses and when both turned up to court and both said they knew nothing, it did not make sense to me as to what else I could have done.

If it is necessary for you to inspect the transcripts of the hearings of DCJ David Smith and Full Court of the Supreme Court of South Australia then I do so invite you to inspect them and read for yourself as to what I said in my applications and what the judges did in their judgments.

The judges cannot all misdirect themselves for 15 years because that would be entirely absurd.

It is my respected and considered legal opinion that the master is dealing with fraud and conspiracy and those men who engaged in fraud and conspiracy to defeat justice and uphold a vicious lie against minority groups and blacks are former Premier Mike Rann, Commissioner of Police mal Hyde, DCJ David Smith, Supreme Court Justices Gray, Vanstone, Anderson, Stanley and High Court Justices Heydon and bell. It is an orchestrated and complex plan and well executed because each level has feigned weakness and stated they had no powers to shirt front the Crown and its deceit but in the end it will be proven by honest men that this case is so obvious even a blind man can see it. The case being a whistle-blower was attacked and attacked and attacked and the Justices stood by and did nothing because he was a man of different race and colour.

After lawful authority and instruction from the master I can file TK Ferdinands v Attorney General of South Australia (2012) in this matter. This is a matter for all cases across the Commonwealth of Australia and common law. That is what happens after a case has closed and been closed that some time down the track evidence appears that the case was a sham and the evidence led at the time was baseless, or false or misleading.

The matters are plainly conspiracy to pervert the course of justice and fraud against the Commonwealth and the state of South Australia by undesirable individuals who think they are above the law.

I put the matters to the master in anticipation of results within 21 days.

I hope to hear from you soon.

Yours faithfully

T.K. Ferdinands

592 BRIGHTON ROAD

BRIGHTON SA 5048

Ferdinands v District Court of South Australia and Ors [2012] HCASL 23 (29 February 2012)

Last Updated: 29 February 2012

TREVOR KINGSLEY FERDINANDS
v
DISTRICT COURT OF SOUTH AUSTRALIA & ORS
[2012] HCASL 23
A30/2011

1. On 1 April 1997 the applicant, who was then a police officer, allegedly failed to report for duty. On 6 January 1998 he was charged with being absent from his duties without permission. He pleaded not guilty. On 27 March 1998 he changed the plea to guilty. A penalty was imposed on or about 10 July 1998.

2. Nearly three years later, on 8 March 2001, the applicant appealed, well out of time, against conviction and penalty to the District Court (Smith DCJ). Smith DCJ extended time, rescinded the decisions complained of, and remitted the matter to the Police Disciplinary Tribunal. Smith DCJ then set aside his own orders pursuant to r 84.12 of the District Court Rules (SA) on the ground that the Commissioner of Police had operated on an understanding different from that of the judge, namely that the proceedings were to be limited to the application to extend time to appeal, and in consequence the Commissioner had not tendered all the evidence and put all the arguments that he would have relied on.

3. The applicant contended and contends that Smith DCJ had no jurisdiction to set aside his earlier judgment and orders. The contention rests on s 46(8) of the Police (Complaints and Disciplinary Proceedings) Act 1985 (SA), which provides: "No further appeal lies against a decision of the Court made on an appeal under this section." This prevents an appeal from a Supreme Court judge to the Full Court. The applicant contends that on its true construction s 46(8) also prevented the Commissioner's successful challenge to Smith DCJ.

4. In 2010 the applicant challenged Smith DCJ's orders and many other orders made by officials and courts in South Australia. The Supreme Court of South Australia (Gray J) dismissed that challenge. An application for leave to appeal to the Full Court of the Supreme Court of South Australia (Vanstone, Anderson and Stanley JJ), which was brought nearly six months out of time, was dismissed. The Full Court rejected the applicant's s 46(8) argument. There are no prospects of demonstrating error in that conclusion. Nor do the vexatious and embarrassing submissions of the applicant indicate any other ground on which an appeal to this Court might succeed.

5. The applicant's application for special leave to appeal to this Court is dismissed.

6. Pursuant to r 41.10.5 we direct the Registrar to draw up, sign and seal an order dismissing the application.

J.D. Heydon V.M. Bell
29 February 2012

IN THE HIGH COURT OF AUSTRALIA

ADELAIDE REGISTRY No. of 2011

BETWEEN: TREVOR KINGSLEY FERDINANDS

Applicant

and

DISTRICT COURT OF SOUTH AUSTRALIA

First Respondent

and

COMMISSIONER OF POLICE

Second Respondent

And

ADELAIDE MAGISTRATE’S COURT

Third Respondent

And

COMMISSIONER OF PUBLIC EMPLOYMENT

Fourth Respondent

APPLICANT’ WRITTEN CASE

Part I:

1. The Applicant's written case is that there is that there are three major issues to be dealt with by the Full Court of the High Court of Australia, namely:

a. Has the Full Court of the Supreme Court of South Australia lawfully and properly applied the principles of the privative clause as stated by Halsbury LJ in Salomon’s case and Spender J in Haneef’s case?

b. Has the Full Court of the Supreme Court of South Australia lawfully and properly applied the principles of Enever v The King (1906) and Foley v Ryder (1906) in the lawfulness or unlawfulness of work practices of police officers in the Commonwealth of Australia, namely a police service of constables operates under orders and not contract for services and any contract for services signed is voidable in law?

c. Has the Full Court of the Supreme Court of South Australia correctly applied Jones v Dunkel (1959) and Bunning v Cross (1978)?

d. Has the Full Court of the Supreme Court of South Australia legitimately applied Hall v City of Burnside (2006)?

2. The argument 1 (a) is:

In Salomon v Salomon (1987) Halsbury LCJ has stated that judicial officers must adhere to the letter of the law, and in this case the letter of the law is found in s46(8) of the Police (Complaints and Disciplinary Proceedings) Act 1985. This matter was confirmed by the applicant in the hearings of the District Court of South Australia when the Crown lost a case and then decided to file a Rule 84.12 under the District Court of South Australia rules to reopen the case and introduce new materials, facts and witnesses.

The objection by the Applicant was refused by the District Court judge, his Honour Judge David Smith. In 2007 Justice Spender of the Federal Court of Australia applied the letter of the law in Haneef’s case and confirmed the meaning of the privative clause. Thus this case is about who is right in law and procedure? Is Ferdinands, Halsbury and Spender right, or is Smith, Gray, Vanstone, Anderson and Stanley right? The law in this matter is very close and it is not poles apart thus the final ruling of this Full Court shall bind all courts and legal practitioners.

It is my submission that the Crown has to abide by the will of the Parliament and that means understanding that the police force is managed by the Commissioner of Police and that means it is not owned by the Commissioner of Police as some private family business or club. Thus, “No appeal” means no appeal but it also means no other methods or guises to file to re-open a case. The jurisdictional error has had a domino effect from 1997 to 2011 and because of the serious error and mistakes made in law and others matters are declared voidable in law because the Crown has not kept to any rules of the court or rules of evidence.

The Commissioner of Police was ordered to trial. He refused a trial. Thus, it can be inferred from this refusal to establish the truth and primary facts that he had no evidence and his actions were an act of victimization. If the judge failed to adhere to any requirements as defined by law with respect to the granting of extension of time and sending the matter to trial, he is nevertheless completely immune from any appeal or last resort use of the District Court Rules by the Crown as the matter is precluded from any other proceedings.

3. The argument 1 (b) is:

In Enever v The King (1906) and Foley v Ryder (1906) the courts are explicit in their descriptive analysis of the police force and they do state that it is formed from a military basis where police officers are under orders. The Police Act 1998 (SA) deals exclusively with the purpose of the police force in s5 and thus there is no capacity for any Commissioner of Police to offer ay contract for service.

It is my submission from service in the police force in South Australia that all police tasks are set by orders. The operations of the police force come from police budgets and the duty of the Commissioner of Police is to attend parliament yearly and speak about police operations and the need for personnel, equipment and resources. Thus, all events from the tennis, football, rock concerts and major race carnivals to royal visits are covered in the budget. The Commissioner of Police offered the Applicant a contract for services in 1997. The Applicant refused to sign such contract. After some pressure and duress the applicant signed the contract. Later, the Commissioner of Police used that contract to initiate legal proceedings in the Police Disciplinary Tribunal, but at the time the Commissioner of Police did not state that the contract for services was to be the subject of breaches and those breaches would be heard and tried in the Police Disciplinary Tribunal. The Commissioner of Police had other methods in which he could have had the tasks allocated and one method would have been to legitimately send the request for the special project to the Minister for Police’s office instead he allocated the project to the Applicant whom he had private knowledge that had made public interest disclosures with regards to matters of racism, fraud, dishonesty and corruption in the police service. Did the project actually exist or was it an elaborate hoax or sham or scam designed to entrap the Applicant and then force a termination from the police service. The Full Court should have made a declaration that the contract was invalid.

4. The argument 1 (c) is:

Jones v Dunkel (1959) is about pattern recognition analysis on assessment of the evidence available and drawing rational and reasonable conclusions from those patterns to say precisely not what happened but exactly what dot not happen.

Bunning v Cross (1978) is about the unconscious trick played by the police on a member of the public, but in this case is it used as the unconscious trick to file a Rule 84.12 against the principles and law of the privative clause and the s46(8) of the Police (Complaints and Disciplinary Proceedings) Act 1985.

It is my submission that there seems to be a vast misunderstanding by the judicial officers in the Australian law courts from 1997 to 2011 as to what constitutes patterns of behavior in accordance with executive misconduct and what is judicial discretion and discretion must first be used for the greater good, and secondly to prevent a serious miscarriage of justice.

It is my belief that this matter is a serious miscarriage of justice. Is it fair and reasonable to fabricate evidence and then set about a chain of events in the courts to constructively dismiss a police officer? The answer is no: it is unlawful. In fourteen (14) years the Commissioner of Police has fought and resisted a trail in these matters. It must be concluded from inferences he has fabricated and concocted a special project story and contract for services.

5. The argument 1 (d) is:

Hall v City of Burnside(2006) can only be applied where there is no suggestion of bad faith, unreasonableness, fraud, obstruction and delays, intentional malice or ill-will by the parties. These are matters of bad faith and unreasonableness. In this case, the Full Court have illegitimately and wrongly applied Hall v City of Burnside (2006) as the issues are the Commissioner of Police has not complied with any rules or procedures of the court. He has obstructed and delayed matters. He has not involved himself in how he made a decision not to investigate public interest disclosures as to racism, fraud, dishonesty and corruption in South Australia Police service raised in 1996/1997 when he was appointed, yet he made a decision to give the Applicant a senior management project to which he had no training and knowledge and then invoke the police regulations and Police Disciplinary Tribunal to attack the character and commitment of the Applicant for alleged breaches of the contract. The conduct is intentional malice and ill-will; it is bizarre. But the conduct is covered in s5 of the Whistleblowers Protection Act 1993 (SA) as an act of victimization. The principle of the last act test must be applied to this case, and the last act was not in 1997 or in 2003 with Judge Smith or in 2010 with Justice Gray but days after the Full Court of the Supreme Court of South Australia hearing on 7 November 2011 when the Crown sought to re-open the case again and file more materials but her Honour Justice Vanstone refused. Thus, no extension of time is required because the law and facts still remain unsettled in 2011. The Crown suggestion that the matters are settled and dead are unconvincing. This Commissioner of Police has fought and resisted a trial for 14 years because he has no commitment to transparency, yet now he wants to channel and mislead the Judiciary with more distractions and extra irrelevant materials. He could have ended this nonsense with a fair trial in 1997; but the project is fake, the charges are false and he would have been exposed at trial as dishonest and corrupt as per R V Ghosh (1982) principles of dishonesty.

Part II: [ A brief statement of the factual background to the application.]

1. This Honourable Court must decide two major issues namely whether the primary facts of this case over ride all other facts in this case, namely that under the Whistleblowers Protection Act 1993 (SA) a whistle blower is fully protected in law from all acts of victimization, and it would be my suggestion that when the Commissioner of Police Mal Hyde fabricated and concocted this story of a special project for a foreign police service and gave it the applicant who was a sworn police officer who had made public interest disclosures than regardless of what happened in that case and all other cases the police officer was protected from acts of victimization including unlawful prosecutions and abuse of the court’s processes to remove him for contrived breaches of rules, laws and regulations. The other important fact is the jurisdictional error of the privative clause obtains no capital gain whatsoever and that regardless of whether or not the special project is a hoax or a ruse or a scam or a sham and the District Court of South Australia was convened in abuse of the court’s processes the jurisdictional error once detected must be repaired because the face of the public record is the most important thing in law; that is, whatever superior judges say in law and in principles must come first and must be upheld by inferior appellate courts.

2. The Full Court of the Supreme Court of South Australia erred in law in not applying the law the principles of the privative clause, or been consistent with past judgments of its own court house, or adhered to the superior legislation in this case of the s5 Whistleblowers Protection Act 1993 (SA). With all the information and knowledge they simply failed to recognize police corruption and they failed to recognize that the Rule 84.12 was a guise, a pretext, and a ruse and was masked as an appeal thus it was against the intent and law of s46(8) of the Police (Complaints and Disciplinary Proceedings) Act 1985 the words being “No appeal” and against Spender J’s position in Haneef (2007).

3. The Full Court of the Supreme Court of South Australia was too frightened and too scared to confront dishonesty and corruption in the South Australia Police and focused on extension of time. The Applicant informs all High Court judges and that is when the Act was written in 1985 it said, “No appeal”, and when the Commissioner of Police offered the contract for services for the special project the Applicant was suspicious because he was not qualified or trained and refused to get involved or sign any documents and protested at such strange work practices in 1997, and when the Crown filed a “Rule 84.12” masked as an appeal the Applicant objected in 2003 but was overruled by the court, and when Spender J said the privative clause meant no appeal in 2007 he was stating facts of law. Extension of time does not lie with the Applicant as he has complied with the law and refused to agree with the actions or authority of the Court or the Crown in this case. The Applicant deems all matters are unlawful and have no merit in law. The Applicant has protested and protested and continues to protest at the abuse of the court’s processes and principles of the court but the Judiciary in South Australia has refused to listen to him or apply the statute. The Applicant states that if the Judiciary is blind or naive and cannot see the Crown’s Rule 84.12 being misused and abused as an appeal then that is a different story; a story about courts of competent jurisdiction but as it stands the Applicant has protested and protested and protested that the special project is fake, the contract to help the foreign police service was fake. The plan or plot was motivated and designed to attack a whistle blower. The investigation and charges are fake designed to be an act of victimization and cause a resignation, or suicide, or tremendous stress and distress.

4. The Full Court of the Supreme Court of South Australia erred in law in not applying the principles of the Orders as directed to police officers in the field. This is the operational practice of all police services. A contract for services does not exist in a para military regime or any police service in the world. Contracts cannot be justified and are voidable in law. All police officers in operational work and in the field are under direct orders, commands and control.

5. There is considerable confusion in this matter and no one particular court seems to be consistent or clear. The two judgments of TK Ferdinands v Police SCCIV-02-136 [2002] SASC 46 (20 February 2002) and TK Ferdinands v Police SCCRM-02-136 [2002] SASC 279 (19 August 2002) are unclear and inconsistent. Doyle CJ with Wicks and Besanko JJ in TK Ferdinands v Police SCCRM-02-136 [2002] SASC 279 have struck out a privative clause appeal previously made by the Applicant as wrong and incompetent. But the Crown appeal in 2003 under the rules is taken by the courts to be not incompetent and valid in law.

Part III: [ A brief statement of the applicant's argument. ]

The South Australian Supreme Court have wrongly put the onus of proof on the Applicant and stated numerous times that the delay is gross when in fact I have asked every day and every year for the evidence from the Crown. The Extension of time delay has been caused deliberately by the Crown and Commissioner of Police who have not adhered to the rules of the court and served many documents required for a fair trial. Extension of time is not required as all matters are still alive and ongoing in different forms including Judicial Review. The Crown has not handed over materials and evidence and refuses to hand over evidence in other cases, thus, the outrage is why should the Crown be given any judgment by the courts for failure and refusal to comply with court rules.
This case is not gross delay in time to bring a matter to court because the ball for 14 years has been in the Crown’s court and the Commissioner of Police’s court to come clean, present evidence, tell the truth and show the world the evidence of wrongdoing. The courts have not enforced the rules themselves or issued any subpoenas for evidence.
The Crown has engaged in abuse of the court’s processes. They have convened court rooms in fraud from 1997 to 2011 by capitalizing on a jurisdictional error that they knew was unlawful. The Crown is well aware there is no special project whatsoever and all these matters are retaliation and retribution against a whistle blower and independent police officer. The rules and principles of the courts seem to drift one way and then another way and this leads to unsafe judgments. What is required is certainty. The Full Court of the Supreme Court of South Australia, the Justice Vanstone judgment is unsafe.
The Full Court of the Supreme Court of South Australia was required by law to declare TK Ferdinands v Commissioner of Police (No.3) No. Dccat-01-60 SADC 28 (21 February 2003) a jurisdictional error and set aside the judgment and thereafter set aside all other judgments that the Commissioner of Police had made by method of capital gain or benefit or advantage from an error of the courts, but they refused to do so and failed to do so. The jurisdictional error has been glossed over.
The Full Court of the Supreme Court of South Australia failed to declare all other prosecutions from 1997 to 2001 as unlawful prosecutions by judicial domino effect.
This Honourable Court must intervene and decide a case about who is right in law? Intervention means answering a question of fact, Is Ferdinands, Halsbury LJ and Spender J right in law as to the malleable nature of the privative clause? Is Smith, Gray, Vanstone, Anderson and Stanley JJ right in law and the privative clause can be defied and worked around, warped, bent or twisted to have a second bite at the cherry in an appeal? A strong message is needed to be delivered that states No means No on any account.
The Commissioner of Police has not complied with any rules of the court in 14 years: why should the Commissioner of Police get a judgment for what is known to be fabricated charges and nonsense stories about a project?
The Commissioner of Police must be identified as having committed misconduct under s17 of the Police Act 1998 (SA) and then terminated for misconduct. A series of miscarriages of justice remain unaltered on the face of the public record.
Whether the members of the Judiciary and the Commissioner of Police are racists and have engaged in acts of vile and insidious racism against the Applicant is not relevant. It may be that the Commissioner of Police relies exclusively upon the inherent racism in Judge Smith, and Justices Gray, Vanstone, Anderson and Stanley to avoid the responsibilities as independent and impartial officers of the court, and not produce evidence or himself but that racism may be insignificant in comparison to judicial officers performing their duties in accordance with law in applying the privative clause and enforcing the s5 of the Whistleblowers Act 1993 (SA). That Act is superior in all these proceedings and wipes out any conduct to attack the Applicant by the Commissioner of Police from 1997 to 2011. The matters of racism are only raised because the Applicant is a man of different race and colour, but why else or who else a Commissioner of Police could fabricate evidence against and then run a fabrication through the Australian law courts with impunity. The facts are plain to see and that is the Commissioner of Police is vastly immature but also he is not realistic. He has wasted taxpayers money using the courts as a tool for constructive dismissal.
There cannot be two different approaches to the one law or principle, and this Honourable Court must rule one way: the correct way. Both parties are close on this matter and a ruling based on law must be made in the interests of the administration justice and justice of the case.

Part IV: [ Reasons why an order for removal should be made or leave or special leave should be granted. ]

1. The face of the public must always be accurate and correct. Where acts of racism, fraud, dishonesty, corruption, jurisdictional errors or abuse of powers are discovered then it is the duty of every judicial officer who is honest, objective, independent and impartial to bring that application into his or her own court room and hear full legal argument. If possible and where applicable he must rectify the wrongs and identify the wrongdoers. He must sanction the illegal or unlawful or wrongful conduct and grant all orders against the wrongdoers to save the face of the public record and then correct the face of the public record.

2. There are issues of responsibility of superior appellate courts to access full materials, documents and files and inspect and analyze them. This is directly related to legal arguments of miscarriage of justice towards an Applicant and the improper exercise of powers by the Full Court of the Supreme Court of South Australia that is the failure to demand the documents held by the Crown.

3. The Full Court of the Supreme Court of South Australia did not address all key issues in the application. They approached the matter as if it was a legitimate act for the Commissioner of Police to issue contracts for service and fabricate a project out of taxpayer’s money. Hence, the District Court of South Australia errors have been over looked. The issue has always been the jurisdictional error and breach of privative clause. Thus, what flows from jurisdictional error and breach of privative clause are four unlawful prosecutions. The Commissioner of Police can obtain no capital gain, benefit, interest or advantage from any illegal, unlawful or wrongful act. He must lose every plot and plan of retaliation. Jurisdictional error means the judicial officer had no power, legal right or authority to do what he did and it was an ill-disciplined. The errors must be rectified at first notice by superior appellate courts.

4. The Full Court of the Supreme Court of South Australia did not authenticate, validate or verify one segment of the Commissioner of Police’s actions or the District Court judge’s actions. As it stands today the contract for services and project are a hoax, or a ruse, or a sham or a scam: in other words, a complete fabrication and the jurisdictional error has not been rectified. The inference thus must be by this Honourable Court is that there is no investigation, no witnesses, no investigator’s diary, no special project and thus, no offences committed under the police regulations by the Applicant and the Applicant should be allowed to return to work unmolested.

5. There is a strong public interest in this case as to how this Honourable Court tackles Halsbury LJ words in Salomon’s case in statutory interpretation, and Spender J words in Haneef’s case in the privative clause and Gleeson CJ, Gaudron and McHugh words in Barwick’s case in the statutory construction and Canadian Supreme Court words as to abuse of process in Toronto (City) v C.U.P.E., Local 79 [2003].

6. The Full Court of the Supreme Court of South Australia failed to make any findings of misconduct of the Commissioner of Police, Mal Hyde in the Rule 297 Judicial Review for his sustained attack upon a whistleblower from 1997 to 2011 using the legal processes in the Australian law courts. Hence, this Honourable Court is ordered to issues an s42 Notice of Termination of the Police Act 1998 (SA) for the Commissioner of Police Mal Hyde and declares directly that the Commissioner of Police has engaged in misconduct and must be terminated under s17 of the Police Act 1998 (SA).

7. This is the only case in Australian legal history of Judicial Review where the courts were asked to look at the evidence and conduct of the Commissioner of Police in the State of South Australia on Judicial Review of four prosecutions in five years from 1997 to 2001 and they refused.

8. The issue of a national damages system is vital to organize and speed-up applications in the courts as per Ms. Cornelia Rau and established in the Palmer Inquiry. The damages level is set at eight thousand ($8,000.00) dollars per day for all illegal and unlawful and wrongful acts of the Crown. This matter has been going for more than 5,370 days and the illegal, unlawful and wrongful acts of the Commissioner of Police continue to be protected by judicial officers. Compensation for loss of wages and opportunity are not a part of or to be included in the national damages system. All other damages formula against the Crown are to be set aside and the Crown will not abuse it power and authority to bring legal proceedings against citizens of the Commonwealth of Australia. This is a big change to damages and the assessment of damages in the Commonwealth of Australia. It forever separates the Crown from the Judiciary in any suggestion of prejudice, bias or fraud in awarding damages.

Part V: [ Any reasons why an order for costs should not be made in favour of the respondents in the event that the application is refused. ]

1. No order for costs is to be made and parties are to meet their own costs.

Part VI: [ A table of the authorities, legislation or other material on which the application relies, identifying the pages at which the relevant passages appear. ]

The Authorities

1. TK Ferdinands v Police SCCIV-02-136 [2002] SASC 46 (20 February 2002).

2. TK Ferdinands v Police SCCRM-02-136 [2002] SASC 279 (19 August 2002).

3. TK Ferdinands v Commissioner of Police (No.3) No. Dccat-01-60 SADC 28 (21 February 2003).

4. TK Ferdinands v Commissioner of Police (No.2) No. Dccat-01-60 SADC 9 (4 February 2002).

5. TK Ferdinands v Commissioner of Police No. Dccat-00-84 SADC 114 (8 September4 2000).

6. South Australia Police v TK Ferdinands AMC 00-2130 (27 March 2001).

7. TK Ferdinands v Commissioner of Police No-DCAAT 00-249 SADC [2000].

8. Hall v City of Burnside(2006) 102 SASR 298.

9. Haneef v Minister for Immigration and Citizenship (2007) 161 FCR 40 at 8-9 and 22-23.

10. Minister for Immigration and Ethnic Affairs v Teoh (1995) 183 CLR 273 at 35-37.

11. Salomon v A Solomon & Co Ltd [1897] AC 22 at 29-32.

12. R v Hickman; Ex parte Fox and Clinton (1945) 70 CLR 598 at 614-615.

13. Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28; (1998) 194 CLR 355 at 91-92.

14. Barwick v Law Society of NSW [2000] HCA 2; (2000) 74 ALJR 419 at 65-76.

15. Toronto (City) v. C.U.P.E., Local 79, [2003] 3 S.C.R. 77 and Canam Enterprises Inc. v. Coles (2000), 51 O.R. (3d) 481 (C.A.) at 1 and 6.

16. Enever v The King (1906) 3 CLR 969 at 3-4.

17. Foley v Ryder [1906] HCA; (1906) 4 CLR 422 (6 October 1906) at 2.

18. R v Commissioner of Police of the Metropolis, Ex parte Blackburn [1968] 2 QB 118 at 135-1236.

19. O’Malley v Keelty, Australian Federal Police Commissioner [2004] FCA 1688.

20. Attorney-General for New South Wales v The Perpetual Trustee Company and Others [1951-1952] 85 CLR Webb J at 6; Fullager at 4-5; Kitto J at 15.

21. RE Minister for Immigration & Multicultural Affairs ; Ex parte Miah (2001) 206 CLR 57 at 68-74.

22. Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24 Dawson J at 1-5

23. Jones v Dunkel (1959) 101 CLR 298. Windeyer J at 14; Kitto J at 1-5

24. R v Buckland [1977] 2 NSWLR 452 at 457.

25. Briginshaw v Briginshaw (1938) 60 CLR 336.

26. Bunning v Cross (1978) 141 CLR at 20-22.

27. R v Ghosh [1982] 3 WLR 110, at 118-119.

28. The Royal Commission into New South Wales Police Service, Final Report, Volume 1, May 1997. Chapter 5 Management of Intelligence at page 146 and Chapter 6.

Legislation

S 46 (8) of the Police (Complaints and Disciplinary Proceedings) Act 1985.
Rule 84.12 District Court of South Australia Rules
S 5 of the Police Act 1998.
S 9 of the Police Act 1998.
S 10 of the Police Act 1998.
S 11 of the Police Act 1998.
S 12 of the Police Act 1998.
S 13 of the Police Act 1998.
S 17 of the Police Act 1998.
S 5 of the Whistleblowers Protection Act 1985.
Evidence Act 1929 (SA) s9 (unsworn evidence – truth & a lie); s15 (witness not disqualified by interest or crime).
Magistrates Court Rules 1992 (SA) s20 (Pre claim procedures) (1) and (2); s21 (compel the attendance of another person to give evidence (that is, compel the Commissioner of Police to give evidence)).

Other material

Inquiry into the circumstances of the immigration detention of Cornelia Rau. The Mick Palmer Inquiry (2005). Commonwealth Solicitor General’s Office, Canberra, ACT 2601.
Industrial and Employee Relations Act; Police Officers Award (1995). Industrial Relations Court of South Australia.

Part VII: [ Indicate whether the applicant seeks to supplement this summary with oral argument. ]

1. Oral argument is necessary for 10 minutes.

Dated: Monday, 5th December 2011.

(signed)...............................................

TREVOR KINGSLEY FERDINANDS

The Applicant.

FERDINANDS v DISTRICT COURT OF SOUTH AUSTRALIA & ORS [2011] SASCFC 139 (23 November 2011)

Last Updated: 23 November 2011

SUPREME COURT OF SOUTH AUSTRALIA
(Full Court: Civil)

DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment. The onus remains on any person using material in the judgment to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court in which it was generated.

FERDINANDS v DISTRICT COURT OF SOUTH AUSTRALIA & ORS

[2011] SASCFC 139

Judgment of The Full Court
(The Honourable Justice Vanstone, The Honourable Justice Anderson and The Honourable Justice Stanley)

23 November 2011

APPEAL AND NEW TRIAL - APPEAL - PRACTICE AND PROCEDURE - SOUTH AUSTRALIA - WHEN APPEAL LIES - BY LEAVE OF COURT - GENERALLY

Application for extension of time and application for permission to appeal against decision of single judge of the Supreme Court dismissing an application for an extension of time and application for judicial review.

Held: applications dismissed.

District Court Rules 1992 (SA) r 84.12; Police (Complaints and Disciplinary Proceeedings) Act 1985 (SA) s 46, referred to.

Hall v City of Burnside [2006] SASC 283; (2006) 102 SASR 298, applied.

FERDINANDS v DISTRICT COURT OF SOUTH AUSTRALIA & ORS
[2011] SASCFC 139

Full Court: Vanstone, Anderson and Stanley JJ

1. VANSTONE J: The Court has before it an application for permission to appeal and an application for an extension of time within which to appeal against a decision of a single judge of this Court.

2. In April 2010 the applicant sought an extension of time within which to bring proceedings for judicial review in respect of various orders and decisions made between 1998 and 2003. The orders and decisions were made by, variously, the Commissioner and Deputy Commissioner of Police, the Police Disciplinary Tribunal, the Adelaide Magistrates Court and, most relevantly, a judge of the District Court sitting in its administrative and disciplinary division. They were the outcome of prosecutions against the applicant, formerly a police officer, by the Commissioner of Police in the Police Disciplinary Tribunal (PDT) and a criminal prosecution, as well as proceedings related to the appellant’s dismissal from the Police Force. Under the rules of the Court such actions must be commenced as soon as practicable and, in any event, within six months of the relevant decision. The length of the extensions required by the applicant varied, but was, in each case, a period of more than seven years.

The judge’s decision

3. On 27 August 2010 a single judge of this Court determined that no extension should be granted and dismissed the application. The judge gave detailed reasons for so finding. He considered the length of the delays before seeking a review, the proffered reasons for there having been delays of that length, whether the applicant had prospects of success and the extent of any prejudice the respondents might suffer. The judge found that a consideration of each of those factors told against the grant of an extension.

4. The critical decision then under attack was that of a District Court judge. The District Court judge had dealt with an application for an extension of time within which to appeal from a conviction and penalty recorded in the PDT for being absent from duty without permission. An essential plank of the applicant’s argument was that the judge had acted without jurisdiction. The judge had initially granted an extension, upheld the applicant’s appeal and made consequential orders. However, upon being alerted to the fact that the respondent had not been given opportunity to address the merits of the matter, the judge utilised rule 84.12 of the District Court Rules 1992 (SA) to set aside his judgment and orders. Having gone on to hear the matter fully argued, the judge affirmed the decisions under appeal.

5. The applicant argued, in effect, that rule 84.12 could not provide the power to set aside a judgment in an appeal under s 46 of the Police (Complaints and Disciplinary Proceedings) Act 1985, because s 46(8) of that Act provided that no further appeal would lie against a decision of the Court. The applicant submitted that s 46(8) was a privative clause and prevented resort to the power to set aside a judgment otherwise available in rule 84.12. As to that argument, the single judge said this:

29. 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.

30. 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 [the District Court judge], in any way offends section 46(8) of the Police (Complaints and Disciplinary Proceedings) Act.

6. The applicant’s argument depends upon characterising the setting aside of a judgment as being in the nature of an appeal. I agree with the judge that an argument along these lines is fallacious. That finding alone would have been sufficient to justify the judge’s decision to refuse the application, because the success of the attack on the use of that rule by the District Court judge was vital to the applicant’s arguments going to the other decisions.

The extension of time

7. The appeal to this Court was filed on 10 March 2011, not much short of six months out of time. Not only is an extension of time in which to file this appeal required, but permission to appeal is also needed. The four respondents, represented by Mr C Jacobi, oppose both orders.

8. The applicant has filed two affidavits, each sworn on 24 February 2011. Only one of them purports to address the issue of an extension. Counsel for the respondents objected to the Court receiving the longer one (FDN 13) at all and he objected to some parts of the shorter one (FDN 14). The overarching ground of the objection was that the material was irrelevant. In addition, specific parts were singled out as amounting to argument, or being of a scandalous or vexatious nature.

9. In my view the objections are well taken. The parts objected to are plainly inadmissible. I propose that the objectionable passages in FDN 14 be struck out and that FDN 13 be rejected.

10. However, it should be noted that the applicant’s argument in support of an extension remains unaffected by this course. The reasons he puts forward for the delay in appealing to this Court extend to poverty (resulting in limited resources to work on this application), the bad effect which the litigation has had on his physical and mental wellbeing and the need to ensure that documents put to this Court are correct and of “crucial significance”. Counsel for the respondents has indicated that he is content for the application for an extension to stand or fall with the application for permission. Notwithstanding that attitude I express my view that no sufficient reason has been advanced for the delay in filing the appeal notice.

11. In the alternative, the applicant argues that in fact no extension of time is required, because his complaint involves “racism, fraud, dishonesty and corruption”. The applicant argues that the true nature of the ongoing action of the Police Commissioner was only recently revealed as “sustained and heightened retaliation and retribution against a whistleblower”. In my view, even assuming these premises, an extension of time is required.

The merits

12. In this Court, the applicant sought to re-argue the same matters agitated before the single judge. He argued that the “unlawfulness” of the District Court judge setting aside his earlier judgment infected all the judgments and orders made in the course of the various prosecutions. Mr Ferdinands submitted that the single judge erred in failing to require the second respondent to provide the evidence which underpinned the prosecution case on the charge of being absent without permission (to which the applicant pleaded guilty on 27 March 1998).

13. It is apparent from the reasons of the single judge that he was well aware that permission was being sought in relation to, not only the proceedings concerned with the charge of being absent without permission, but also in relation to two other disciplinary prosecutions, and an assault charge dealt with in the Adelaide Magistrates Court. The judge referred to that fact in [3] and [8] of his reasons and dealt with what the applicant put forward as the nexus between all the proceedings. He said:

16. On the hearing of the application, Mr Ferdinands claimed that once the decision of [the District Court judge] 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”.

The applicant dealt with the domino effect argument in a slightly different way before this Court, but the essence of it was that, should the original decision fall – and along with it the penalty by way of reprimand and transfer to another part of the police force – then the clock would be wound back and all that followed by way of prosecutions of the applicant and penalties would fall with it. As I have mentioned, he put it also in terms of unlawfulness; that unlawfulness associated with the original prosecution would affect what came later.

Analysis

14. It is not easy to understand the precise nexus which the applicant claims would cause the “domino effect”. It is sufficient to say that there is no apparent link, as a matter of law, between the various prosecutions. The fact that the decision of the District Court judge related to the prosecution which was first in time does not, of itself, provide a sufficient link. Even were “unlawfulness” or something like it made out in relation to the District Court judge’s decision, that would not, as I see it, have any effect on the validity of the other judgments and orders. Again, it is not enough simply to say that the various prosecutions amount to a campaign waged against a whistleblower. While Mr Ferdinands may view them in that way, there is nothing about the fact of, or nature of, the sequential prosecutions which gives them that flavour. In any event, as I have said, the applicant’s main argument based on the use of rule 84.12, which could potentially raise a jurisdictional issue, is doomed to fail.

15. The failure of the single judge to call for the evidence which would have been available to the prosecuting authority in 1998 in relation to the charge of being absent without permission is not susceptible of attack. The applicant’s appeal against the disciplinary measures which followed the finding of guilt came before the District Court judge some three years after the event. That in turn led to the application for judicial review. The applicant having entered the plea of guilty, there was no occasion for either the District Court judge or the single judge to see whatever evidence the prosecuting authority might have had. The issue before the District Court judge was whether the plea of guilty and the consequent orders should stand.

16. The applicant raised other matters in his notice of appeal which were not directly addressed in the oral argument. The first of those was that the single judge reversed the onus of proof in respect of an extension of time and wrongly required Mr Ferdinands to justify an extension. In the ground as framed, that seems to be bound up with the submissions going to the asserted privative clause and the failure by the second respondent to produce documents relevant to the original charge. Clearly the onus was on the applicant to establish that an extension was justified: rule 100 of the Supreme Court Civil Rules and Hall v City of Burnside [2006] SASC 283; (2006) 102 SASR 298 at 307.

17. Grounds 3 and 4 of the notice of appeal contain assertions about the conduct of the Commissioner of Police going back to 1997, relevant, as I understand it, to the original prosecution together with assertions about the want of power in the District Court to withdraw the orders originally made and to allow the conviction and penalty to stand.

18. Ground 5 complains that the single judge did not “of his own volition examine the four cases as a totality of constructive dismissal ... and declare them to be the persecution of an employee in the workplace”.

19. The last three grounds largely descend to the perceived merits of the compendious chain of events concerning the applicant and are, at least in part, an attempt to raise matters which were not relevantly at issue before the single judge, who as already observed, was dealing with an application for judicial review.

Conclusion

20. Nothing raised by the applicant identifies error or otherwise gives rise to any doubt about the correctness of the decision of the single judge. The judge referred to the critical matters of fact and directed himself correctly.

21. The applications for an extension of time in which to appeal and for permission to appeal should be refused.

22. ANDERSON J. I agree that the application for extension of time and the application for permission to appeal should be dismissed for the reasons given by Vanstone J.

23. STANLEY J: I have had the advantage of reading the draft reasons of Vanstone J. I agree with the orders proposed and her Honour’s reasons. I have nothing to add.

FERDINANDS v DISTRICT COURT OF SOUTH AUSTRALIA & ORS [2010] SASC 265 (27 August 2010)

Last Updated: 3 September 2010

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] HCA 1; (2010) 239 CLR 531; Ferdinands v Commissioner of Police (No 3) [2003] SADC 28; Hall v City of Burnside [2006] SASC 283; (2006) 102 SASR 298; Jackamarra v Krakouer [1998] HCA 27; (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] FCA 1273; (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

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.

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]

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”)

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...

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.

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.

18. 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] HCA 25; (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]

19. 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.

The Length of the Delay

20. 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] FCA 627; (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.

21. 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.

Reasons for the Delay

22. 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.

23. 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.

24. 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.

25. 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.

26. 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.

27. 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.

28. 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

30. 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.

31. 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

32. 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.

33. 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

34. 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.

Ferdinands v Commissioner of Police (No. 3) No. Dcaat-01-60 [2003] SADC 28 (21 February 2003)

Last Updated: 20 April 2003

Court

DISTRICT COURT OF SOUTH AUSTRALIA

Judgment of His Honour Judge David Smith

Hearing

20/11/2002 to 21/11/2002, 25/11/2002.

Catchwords and Materials Considered

Appeal from Police Disciplinary Tribunal - appellant charged pursuant to s27(4)(c) of the Police Regulations 1982 - appellant pleaded guilty and was reprimanded and transferred - appeal to District Court against conviction and penalty - appeal out of time - application to extend time in which to appeal, and to set aside penalty and allow change of plea - powers of District Court in its Administrative and Disciplinary Division - evidence received as to inter alia merit of defence - case for defending charge wholly without merit - no substantial grounds for apprehending a miscarriage of justice and accordingly no basis to extend time to appeal and no basis to set aside penalty and guilty plea - no cogent reason within meaning of s42E(3) of District Court Act to depart from the decision of the Deputy Commissioner.

Police Regulations 1982 s27(4)(c);
Police (Complaints and Disciplinary Proceedings) Act 1985 ;
District Court Act 1991 s42C, 42E to 42H;
District Court Rules Rule 84.12, referred to.
Ferdinands v Commissioner of Police (2001) 216 LSJS 193;
Ferdinands v Commissioner of Police No. 2 (2002) 218 LSJS 13;
Barnes v McElroy [1924] SASR 41;
Bull v Deed (1968) 16 SASR 236;
Hinton v O'Dea (1977) 16 SASR 234;
Halsbury 3rd Ed. Vol.10 p521;
R v Forde (1923) 2 KB 400;
R v Trotter (1979) 22 SASR 64;
R. v. Cullum (1942) 28 Cr. App. R 150;
Ulowski v Miller [1968] SASR 277;
Reeves v Leyland Motor Corporation of Australia Ltd (No. 2) (1984) 115 LSJS 62, considered.

Representation

Appellant: TREVOR FERDINANDS
In Person

Respondent: COMMISSIONER OF POLICE
Counsel: MR J POWELL - Solicitors: CROWN SOLICITORS OFFICE
DCAAT-01-60
Judgment No. [2003] SADC 28
21 February 2003
(District Court Administrative And Disciplinary Division)

Trevor K Ferdinands v Commissioner of Police (No. 3)

[2003] SADC 28
Civil
Judge David Smith
Introduction - history

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")

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")

Accordingly, a new appeal hearing was required and relying on s42E(1) of the District Court Act, I decided to take evidence on all the issues raised by the appeal, including the merit of any defence to the charge that the appellant was in breach of Police Regulations on the 1st April 1997. Accordingly, I made directions for the filing of further affidavit evidence from both sides and gave leave for the cross-examination of the various deponents. The hearing was conducted over a period of 3 days on 20th 21st and 25th November 2002. I received both oral and affidavit evidence and a number of documents were tendered by consent. After hearing arguments on the 25th November 2002, I reserved my decision.

Law

What is set out hereunder is, in substance, a repeat of what I said about the applicable legal principles in the first judgment. However, I repeat what is said there to give this judgment coherence.

This appeal raises two issues, namely:-

•	the circumstances in which a penalty based upon a plea of guilty will be set aside, and an appellant allowed to change his or her plea; and
•	the principles upon which an application to extend time to prosecute a statute barred or stale appeal should be determined.

It is clear that a plea of guilty is not an insurmountable barrier to an appeal against conviction; (see Barnes v McElroy [1924] SASR 41; Bull v Deed (1968) 16 SASR 236). However, the Court will not lightly set aside a conviction founded upon a plea of guilty. It must be established that the plea has resulted from:-

•	A material mistake; or
•	Some improper threat or promise;

(see Hinton v O'Dea (1977) 16 SASR 234).

In Bull v Deed (supra) at p237, Walters J said:-

"But the circumstances in which a conviction founded on a plea of guilty may be set aside must be very exceptional. It seems that the Court should accede to an application to quash the conviction only where it has been established to its satisfaction that the making of the plea has been induced by a material mistake, or by some improper threat or promise on the part of a police officer or other person in authority, and that but for the inducement, the plea would not have been made; and that if a plea of not guilty has been entered, there would have been a substantial issue to be tried (Halsbury, 3rd ed. vol. 10 p.521; R v Forde (1923) 2 KB 400 at 403)."

Crucial to the basis upon which a Court would effectively allow a change of a plea on appeal, and therefore set aside a penalty or conviction, is whether or not there has been a miscarriage of justice.

In respect of the issue of extension of time, s42C of the District Court Act confers a wide discretion. In R v Trotter (1979) 22 SASR 64 at p65 Walters J said:-

"... an application for extension of time to appeal will be refused, unless there are substantial grounds on the merits which seem to justify the Court in extending the time (R. v. Cullum (1942) 28 Cr. App. R 150). In dealing with the application, the court will consider whether there is any substantial point of law to be argued on appeal, and whether there exist any substantial grounds for apprehending a miscarriage of justice. And if the proposed notice of appeal or application for leave to appeal discloses no sufficient grounds of appeal, the application for extension of time will not be granted".

To the above parameters could be added those considerations relevant to the exercise of the Court's discretion to strike out for want of prosecution, namely:-

•	the length of the delay;
•	the explanation for the delay
•	hardship to the appellant if the application to extend is dismissed and the right to argue the appeal lost;
•	the prejudice to the respondent if the extension is granted and argument on the appeal is allowed to proceed notwithstanding the delay; and
•	the conduct of the respondent in the litigation;

(see Ulowski v Miller [1968] SASR 277 at p280 per Bray CJ.)

In Ulowski (supra) at 280 Bray CJ said "... It must be remembered that we are dealing here with a discretion and in my view it ought not to be fettered by any absolute or inflexible rules".

Evidence and Findings

I have no hesitation in accepting as credible and reliable the evidence of Sergeant Gary Simpson, Sergeant Douglas Wyman (now retired) and Chief Superintendent John Minagall. Where there is conflict, I prefer their evidence to that of the appellant. I hesitate to regard the appellant as untruthful, but in some instances he was less than frank. He has become disillusioned, angry and even paranoid about his treatment in the police force. By some process which is difficult to identify this anger and paranoia has distorted the truth of what has happened at least in this matter. He has reconstructed the events the subject of this matter to fit in with his conviction that he is being victimised and oppressed.

I now turn to the evidence. The following narrative constitutes my findings. I will identify any areas of contention and set out my specific findings as I proceed with the narrative.

On the 12th December 1996 Sergeant Gary Simpson ("Simpson") took up his posting as supervisor of the Enquiry Unit of Firearms Branch in Flinders Street (111). The appellant at that time had been working in Firearms Branch for some four to five years (86). Simpson said that in the briefing for his new post he learned that the appellant "... was a marginal performer and the quality of his work was generally poor ... he was unpopular with other members of the unit due to personality conflicts ..." (see Exhibit R8 para 3). Simpson decided to address this perceived difficulty, and in consultation with Inspector Cormak McCarron, who was the officer in charge of the Branch, he decided to give the appellant a special project to be carried out elsewhere than in the offices of the Branch where there was tension and conflict (see Exhibit R8 para 5).

It so happened that the New Zealand Police Service had approached the Firearms Branch asking about the effectiveness of firearms control legislation in South Australia. Accordingly, Simpson and Inspector McCarron decided that the appellant should research that topic. They reasoned that it would not only enable the Branch to answer the New Zealand query but provide a worthwhile project for the appellant (113).

Simpson said, and I accept it to be so, that he discussed the proposal for the project with the appellant "either before or after Christmas or early in the New Year" (155). He said also that the appellant readily agreed to it and was enthusiastic about it (117). The appellant disagreed and said that the project did not come to his attention until as late as the 21st March 1997 when he signed the so-called contract. I prefer the evidence of Simpson. Why would he not convey what he and Inspector McCarron had in mind earlier than March? Keeping the appellant in the dark about it would have been pointless. I accept what Simpson said both as to the timing of informing the appellant of the project and as to the appellant's enthusiastic reaction to it.

Simpson obtained the consent of the officer in charge of Thebarton Barracks, Chief Superintendent John Minagall, to second the appellant to the Orderly Room at the Barracks from the 2nd January 1997 to the 2nd July 1997 in order to carry out the project. The Chief Superintendent made it clear that the appellant was to remain answerable to, and under the control of, Simpson and that he would be under the supervision of Sergeant Wyman at the Orderly Room only for day to day administrative purposes and if there were any problems the secondment would be terminated (see Exhibit A7 and see also 271-292).

The "placement" to use a neutral term was implemented by the completion of a Personal Movement Advice (PD162), dated the 23rd December 1996 (see Exhibit A5). It appears that the appellant did not settle into this new placement until well into the New Year. He took two weeks military leave (ie 4/1/97 to 17/1/97), and six weeks annual leave (ie 5/2/97 to 19/3/97) (150, 151).

On the 31st January 1997 Simpson signed what has been termed "the Contract" between himself and the appellant for the carrying out of the research project. The appellant signed it upon his return from leave on the 21st March 1997 (see Exhibit A6, see also 151, 152).

On the 21st March the appellant was supplied with a laptop computer (244).

I pause now to make findings about two contentious issues, namely the purpose of the placement and whether or not it was a secondment or a transfer.

Firstly, the appellant contended that his placement at the Barracks to carry out the project was motivated by ill-will. He said in effect that he was deliberately set-up by Simpson to fail (see Exhibit A6 paras 7-11). I do not accept that. First of all Simpson put this measure into place a mere 11 days after taking up his posting at Firearms Branch which was hardly sufficient time to work up any animosity towards the appellant. In any event, I accept what Simpson said in his evidence, namely:

"... As I said, I was very keen and - not that I'm not now - but I was very keen then to do my job very well as a new sergeant and I considered more than anything that that project was going to be as a developmental process for Trevor Ferdinands, to be developed to go back into operational policing and develop skills and that sort of thing as part of his personal development. That's why I devised that thing for him to do. But, on the same hand, he wasn't getting along well at the firearms branch and I considered it best that he be removed from that environment to concentrate on the project, to give him time away and give him something worthwhile to do - a worthwhile occupation or worthwhile task - as well as giving the people at the firearms branch, if you like, a rest form him, too."

(113-114)

On repeated questioning Simpson insisted that his motivation was the rehabilitation of the appellant's career in the police force (see 156, 160, 161, 205 and 217). The appellant's insistence about this ulterior motive was insensible. He offered nothing acceptable to support this serious allegation (see 79-81).

I now turn to the issue of whether there was a secondment or a transfer

The appellant contended that he was transferred to Thebarton Barracks (ie Operations Support Command), not seconded. The object of this contention was probably to demonstrate therefore that he could not be absent from duty from Firearms Branch if he was not part of that branch. Seconded means a type of temporary placement as opposed to a transfer which is understood in the Police Force to be a permanent placement (142, 263).

The evidence overwhelmingly points to the appellant being seconded to Thebarton Barracks (see Exhibit A5 - Permanent Movement Advice PD162). Simpson arranged it and throughout his evidence repeated that it was a secondment. He added that he had no power or authority to transfer any members from Firearms Branch (142). Sergeant Wyman who had the day to day administrative responsibility for the appellant also made that clear (250, 251, 255, 259, 263). Indeed Chief Superintendent Minagall, in his evidence as opposed to his affidavit, would not even accord that status to the appellant's placement but described it in the following terms:

"... I merely think you changed your workplace. I don't regard it as either a transfer or a secondment ..."

(274)

What is abundantly clear is that the appellant was placed in the Orderly Room at Thebarton Barracks to carry out the Firearms Branch research project under Simpson's control (185). He was to do this in accordance with the so-called contract. He was to be there until the 2nd July. During that time, he was subject to the administrative authority of Sergeant Wyman. Further, he was paid through Thebarton Barracks. However, as Sergeant Wyman, Chief Superintendent Minagall and Simpson made clear, he remained part of the Firearms Branch. The fact that he had some duties in the Orderly Room and was paid through Thebarton Barracks is not inconsistent with that.

The appellant travelled to Canberra to attend a wedding of a friend on the Easter weekend of 1997 (ie Friday 28th March 1997 to Monday 31st March 1997) (9). He said in evidence that it was his intention to "... access Australian National University for their resources and stuff like that ...". He said that he was "on duty". He was intending to stay on in Canberra. However, upon hearing that enquiries were being made as to his whereabouts he caught a plane back to Adelaide on Tuesday the 1st April (9). Simpson said that the appellant did not have any permission or authority to be working in Canberra and upon discovering that he was not at work in the Orderly Room but in Canberra on Tuesday the 1st April, he, Simpson, terminated the secondment and ordered him to return to work at the Firearms Branch in Flinders Street (169-171).

The appellant said that Sergeant Wyman gave him 100 hours leave from the workplace to work on the project (14) (Exhibit A6 paras 14-19; Exhibit A5). Sergeant Wyman did not agree with that (251). Indeed, Sergeant Wyman made it clear in his evidence that he had no control over the activities of the appellant in relation to the project (255, 258). Early in the appellant's time at the Orderly Room he clearly aggravated Sergeant Wyman by his arbitrary coming and going (see Wyman's report February 1997; Exhibits A6). I find that the appellant had no permission to be absent from the workplace, much less in Canberra. There were previous absences from the Thebarton Barracks which were to some extent tolerated by Simpson (203, 194, 195). I am satisfied that the appellant was not only absent from the workplace on the 1st April 1997 but also not working on that day. When in cross-examination the appellant was confronted with the false entries on the timesheet Exhibit R4, he claimed that upon arriving back from Canberra by aeroplane on the afternoon of the 1st April he then worked seven or eight hours into the early hours of the following morning (55-62). In my view, that was patently untruthful and emerged for the first time during the cross-examination. For instance, there was no mention of it to Inspector McCarron in the interview which occurred on the 6th May (70). The timesheet was a fiction as was the claim of working on the project till 1.00 am or 2.00 am the following morning (62-76).

The appellant was charged on the 6th January 1998 (see Exhibit A1). On the 27th January 1998 he notified the Registrar of the Police Disciplinary Tribunal that he did not admit the charges (see Exhibit A1). The appellant then said that Simpson said that "if he pleaded guilty he would be out of the section next day ..." (Exhibit A6 para 28). Simpson categorically denied that allegation (240), and denied further allegations by the appellant of harassment and victimisation. The appellant said that as a result of duress, harassment and victimisation he changed his plea to guilty on the 27th March 1998 (see Exhibit A1).

The appellant said that in early April 1998 he had second thoughts and contacted a certain Ms Karen Foale of the Police Disciplinary Tribunal in April 1998 and claimed that he told her that he wanted to change his plea back to not guilty. He said that Ms Foale told him that he could not do that and accordingly his plea of guilty remained. Ms Foale was not called by either party.

In due course, on the 10th July 1998, the Commissioner by his deputy imposed the following penalty:

•	reprimand;
•	transfer to the City Watch House, Adelaide Division until the end of the year 2000.

(see Exhibit A1)

I unhesitatingly accept Simpson's denial of subjecting the appellant to duress and harassment and of pressuring him to change his plea. The appellant's evidence about these matters is neither credible nor reliable. As to the appellant's evidence of the exchange with Ms Foale I find that even if it did take place as recounted by the appellant it does not change what I regard as established about his absence on the 1st April 1997.

Such are the facts.

Conclusion

The relevant portions of Regulation 27(4)(c) of the Police Regulations 1982 provides:

27. An employee of the Force shall be guilty of a breach of these regulations if the employee commits any of the offences set out below:

.............................

(4) Neglect of Duty, which offence is committed where such employee, without good and sufficient cause-

The evidence establishes, if necessary beyond reasonable doubt, that the appellant was absent without permission from his duties and therefore in breach of Reg. 27(4)(c). There are some difficulties of form rather than substance with the wording of the particulars of the charge. However, what is clear is that not being on leave and without permission the appellant was absent from his duty on the 1st April 1997. He was in Canberra and in transit therefrom at a time when he should have been working on the research project. The pith of the charge is that the appellant neglected or failed to attend to his duties on the 1st April 1997. Even if I accepted that the appellant was entitled to work on the project elsewhere than the Orderly Room at the Thebarton Barracks it is nonetheless clear on the evidence that on the 1st April he was not attending to his duties at all.

So there being no other evidence foreshadowed as available for the appellant in the event the matter be remitted for rehearing, I conclude that the Tribunal in the event of a trial would convict him of breaching Regulation 27(4)(c).

Common to the discretionary considerations in respect of both the application to extend time to appeal and the application to change plea, is whether or not there exists substantial grounds for apprehending a miscarriage of justice (see Bull v Deed (supra) and R v Trotter (supra)). So at the threshold I need to be convinced that the appellant has at least an arguable case so that to deprive him of the opportunity to prosecute it would give rise to an apprehension of a miscarriage of justice. Often the court will not be in a position to be conclusive about this issue of merit and so needs only to reach the stage of being convinced that the appellant's case is not wholly without merit (see Reeves v Leyland Motor Corporation of Australia Ltd (No. 2) (1984) 115 LSJS 62 per Cox J at 63). However, as indicated in this case I have heard sufficient evidence to reach the conclusion that the appellant's case for defending this charge is wholly without merit. That being so, both applications fail at the threshold.

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. I will hear the parties as to costs.

Ferdinands v Commissioner of Police (No 2) No. Dcaat-01-60 [2002] SADC 9 (4 February 2002)

Last Updated: 24 June 2002

Court

DISTRICT COURT OF SOUTH AUSTRALIA

Judgment of His Honour Judge David Smith (ex tempore)

Hearing

04/02/2002.

Catchwords and Materials Considered

JUDGMENTS AND ORDERS Application pursuant to Rule 84.12 of the District Court Rules to set aside orders made by the District Court sitting in its Administrative and Disciplinary Division allowing an appeal from Police Disciplinary Tribunal - application made on grounds that orders fully determined the appeal when it was anticipated that only an application to extend time to appeal was to be determined - Rule 84.12 applied pursuant to Rule VI-I (3) of the District Court Administrative Appeals Rules - principles upon which Rule 84.12 should be applied discussed - Rule 84.12 not merely confined to orders which are yet to be sealed and extends Courts powers beyond common law - criteria upon which discretion should be exercised discussed - power to set aside to be used sparingly - considerations of fairness and reasonableness and a balancing of the need for finality in litigation against the need to avoid miscarriages of justice are relevant considerations - Court making original orders not functus officio but empowered by Rule 84.12 to set aside its own orders. HELD: Applicant Commissioner reasonably anticipated that only part of the appeal was to be disposed of and so did not have a full opportunity to present all evidence and argument - justice of case required setting aside of all orders.

Police (Complaints and Disciplinary Proceedings) Act 1985 ;
District Court Rules 1992 Part VI, VI-I (3), 84.12;
District Court Administrative Appeals Rules ;
District Court Act s42C, referred to.
Ferdinands v Commissioner of Police [2001] SADC 142;
Copping v ANZ McCaughan (1997) 67 SASR 525;
Commonwealth Bank v Forshaw (1990) 55 SASR 247;
Cavanagh-Lang v O'Callaghan [2000] SADC 187;
Wentworth v Woollahra Municipal Council [1982] HCA 41; (1982) 149 CLR 672;
State Rail Authority (NSW) v Codelfa Construction Pty Ltd [1982] HCA 51; (1982) 150 CLR 29;
University of Wollongong v Metwally (No. 2) [1985] HCA 28; (1985) 59 ALJR 481;
Autodesk v Dyason (No 2) [1993] HCA 6; (1993) 176 CLR 300;
FAI General Insurance Co Limited v Southern Cross (1988) 77 ALR 411, considered.

Representation

Appellant: TREVOR FERDINANDS
In Person

Respondent: COMMISSIONER OF POLICE
Counsel: MR J POWELL - Solicitors: CROWN SOLICITOR'S OFFICE
DCAAT-01-60
Judgment No. [2002] SADC 9
4 February 2002
(District Court Administrative And Disciplinary Division)JUR
Trevor K. Ferdinands v Commissioner of Police
[2002] SADC 9
CIVIL
JUDGE DAVID SMITH

This is an application by the Commissioner of Police made pursuant to Rule 84.12 of the District Court Rules to set aside orders made by me on 1st November 2001 in the matter of Ferdinands v Commissioner of Police [2001] SADC 142.

The history of the matter is set out in that judgment. Suffice it to say that this matter concerns disciplinary proceedings which were concluded against Trevor Kingsley Ferdinands who was then a serving police officer on 10th July 1998 when he pleaded guilty to a charge of being absent from duty without leave.

Pursuant to the provisions of the Police (Complaints and Disciplinary Proceedings) Act 1985 Ferdinands was reprimanded and transferred by the Commissioner of Police. On 8th March 2001 he appealed to this Court. The appeal involved the following applications:

•	to extend time in which to appeal; and
•	to set aside the penalty and rehear the matter as a plea of not guilty or remit the matter for hearing by the tribunal as a plea of not guilty.

On 1st November 2001 I made the following orders:

'I extend the time within which the appellant can appeal to 8th March 2001. On the basis of the evidence before me I rescind the decision of the Deputy Commissioner of 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.'

Arguments

This application by the Commissioner is directed to those orders made by me rescinding the decision of the Deputy Commissioner of Police of 10th July 1998 and remitting the matter to the tribunal with a direction that it accept a plea of not guilty. Notably the Commissioner does not specifically complain of the order extending time to appeal. The Commissioner contends that my judgment or decision determined the whole of the application when it was anticipated that I should deal only with the application to extend time to appeal and if favourable to the appellant, proceed with the appeal itself at a later time. The appellant Ferdinands resists this application.

Law

In making the decision of the 1st November 2001, I was sitting in the Administrative and Disciplinary Division of the District Court. The Rules for this Division are found in Part VI of the District Court Rules 1992 and are called District Court Administrative Appeals Rules. Rule VI-I (3) of the said Rules provide as follows:

"(3) Subject to any express provisions contained in this Part, the rules for the Civil Division of the Court which are contained in Part II are not to apply in proceedings under this Part except as may be directed by the Court in a proceeding under this Part and with such modifications, if any, as the Court may specify."

So, to invoke Rule 84.12 which is a Rule contained in Part II it is necessary for me to direct that it apply. I return to this topic later.

I now turn to Rule 84.12 itself. The Rule provides as follows:

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

The parameters of the application of this Rule are set out by Lander J in Copping v ANZ McCaughan (1997) 67 SASR 525 at 564-569. The Rule is more than a declaration of the common law and its application is not merely confined to orders which have not been sealed; (see Commonwealth Bank v Forshaw (1990) 55 SASR 247 and Copping (supra) per Lander J at 567). The Court should exercise this considerable discretionary power sparingly, and, to pick up the wording of the section itself "only in circumstances which indicate that the justice of the case so requires". What the justice of the case requires involves a consideration of all the circumstances and a determination of what is fair and reasonable. In particular, the need for finality in litigation is to be balanced against the avoidance of a miscarriage of justice; (see Cavanagh-Lang v O'Callaghan [2000] SADC 187).

In Copping, Lander J at p669 said on this topic of the exercise of discretion as follows:

"Although this Court does have jurisdiction to vary or revoke a sealed order of the court it is a jurisdiction that would be exercised only sparingly. A fundamental principle of litigation requires that there be an end to litigation: Wentworth v Woollahra Municipal Council [1982] HCA 41; (1982) 149 CLR 672; State Rail Authority (NSW) v Codelfa Construction Pty Ltd [1982] HCA 51; (1982) 150 CLR 29. A judgment regularly entered after both parties have had full opportunity to present argument on either side, could be only varied or revoked if the justice of the case compelled the variation or revocation of the order.

In my opinion a forensic decision made by a party or the party's advisers during the hearing of an appeal ought, except in exceptional circumstances, to be binding upon the party and therefore disentitle that party to any right to revoke, set aside or vary the judgment or order made upon that forensic decision.

In University of Wollongong v Metwally (No. 2) [1985] HCA 28; (1985) 59 ALJR 481 (at 483) the High Court said:

"It is elementary that a party is bound by the conduct of his case. Except in the most exceptional circumstances, it would be contrary to all principle to allow a party, after a case had been decided against him, to raise a new argument which, whether deliberately or by inadvertence, he failed to put during the hearing when he had and opportunity to do so."

See also Autodesk v Dyason (No 2) [1993] HCA 6; (1993) 176 CLR 300 at 310 per Brennan J."

Given the power to set aside which exists in Rule 84.12 and for that matter another Rule mentioned by Lander J in Copping (supra), namely Rule 3.04 (f), neither myself or the Court are "functus officio"; (see FAI General Insurance Co Limited v Southern Cross (1988) 77 ALR 411).

Application to the Facts

A perusal of the transcript (see Exhibit D1), in this matter, including the directions hearing before Judge Sulan of this Court on 18th April 2001 onwards, reveals support for counsel for the Commissioner, Mr Powell's contention that the Commissioner was expecting only a decision on the issue of the application to extend time to appeal. Mr Powell argued that it was only on that basis that his client did not respond to the serious allegations made by the appellant Ferdinands against Sergeant Simpson of the Firearms Division. Upon a careful consideration of the transcript, I accept that counsel could with justification have believed that only the application to extend time was to be decided. I find this to be the case only after a detailed perusal of the transcript. Initially I considered that once it was clear that s42C of the District Court Act empowered the Court to extend time, both applications could then be dealt with. I accept now that such was not spelled out at any time and at best the matter was left in a state of ambiguity.

In short I am satisfied that as a result of perhaps myself not spelling out clearly the direction in which the matter was headed, the Commissioner reasonably assumed that only the application to extend time was being dealt with and so did not have a full opportunity to present all the evidence and argument on the matter of the appeal itself and its entwined application to change plea. Accordingly, I consider that the justice of the case requires the revocation of the orders. For that purpose pursuant to Rule VI-I (3) of the District Court Administrative Appeals Rules, I direct that Rule 84.12 be applied in these proceedings.

The orders

I turn to the issue of what orders should be set aside or revoked. In the initial application the appeal raised two issues, namely:

•	the circumstances in which a penalty based upon a plea of guilty will be set aside and an appellant allowed to change his plea; and
•	principles upon which an application to extend time to prosecute a statute barred or stale appeal should be determined.

As indicated in my previous judgment in this matter there is a considerable overlapping in the considerations which are relevant to the exercise of discretions in both the applications the subject of the original appeal. Accordingly, in the previous judgment I traversed all the considerations and dealt with both the applications together. Though the application here seeks only to revoke the orders other than that to extend time to appeal, I think it is artificial and almost unworkable to separate the orders and in particular the two separate exercises of discretion. 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.

I will now hear the parties as to what directions they seek as to the adducing of evidence as a prelude to the rehearing of the appeal.

1 comment:

UnknownSeptember 18, 2013 at 10:47 PM
Kinglsley,
That corruption and 'boys club' attitude has always existed in the SAPOL. Do you remember a cadet on your training course at the Police Academy who was drummed out for allegedly 'cheating on a test'. That former cadet knows that at least three other cadets lied under oath in court about the alleged cheating incident He believes they were acting under the influence of Sgt John White and Supt Stretton. he knows this because he knows he did not cheat. I believe you were one of the few at the time who did not believe he was guilty.
There had been incidents before that event. The cadets in your course decided that the aforementioned cadet had a body odour problem and one day arranged to run into the TV room en masse and spray him with deodorant. Not one of them had paid him the common courtesy of telling him he had a problem. No, they acted as police are supposed to do, like a gang. That cadet had heard racist comments made about you even back in those days. please feel free to contact me through my profile here

SENATOR.KINGSLEYFERDINANDS

Saturday, March 31, 2012

KINGSLEY FERDINANDS - CHAMPION COLT - FOOD FOR THE SOUL

Ferdinands v Commissioner of Police (No. 3) No. Dcaat-01-60 [2003] SADC 28 (21 February 2003)

Court

Hearing

Catchwords and Materials Considered

Representation

Ferdinands v Commissioner of Police (No 2) No. Dcaat-01-60 [2002] SADC 9 (4 February 2002)

Court

Hearing

Catchwords and Materials Considered

Representation

1 comment: