FEDERAL COURT OF AUSTRALIA

Ferdinands v The State of South Australia [2017] FCA 32

ORDERS

THE COURT ORDERS THAT:

1.    The application for leave to appeal filed on 14 November 2016 is dismissed.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

WHITE J:

1    This judgment concerns an application by two applicants for leave to appeal against an interlocutory judgment of Charlesworth J delivered on 27 October 2016: Ferdinands v The State of South Australia [2016] FCA 1268.

2    The application was filed on 14 November 2016, four days after the expiry of the 14 day period for such applications prescribed by r 35.13 of the Federal Court Rules 2011 (Cth) (the FCR). Accordingly, the applicants also require an extension of time in which to commence the application. However, in the circumstances of this case, it is convenient to put that circumstance to one side and to address the underlying merits of the application for leave to appeal.

3    The application has been determined ex parte on the papers filed by the applicants, as they indicated in the application, pursuant to r 35.12(2)(e) of the FCR, that they did not seek an oral hearing.

Factual setting

4    In the proceedings at first instance, the applicants were “Kingsley Ferdinands Film Group” (KFFG) and Trevor Kingsley Ferdinands (Mr Ferdinands). Mr Ferdinands, who is a former Police Officer and now an undischarged bankrupt, represented both himself and KFFG before Charlesworth J and on the present application.

5    The respondents to the proceedings at first instance were the South Australian Police and the Commissioner of Police for South Australia (together “the Respondents”).

6    The applicants’ underlying claim is that Mr Ferdinands is the owner of KFFG; that he is the author of a literary and dramatic work entitled “The Happy Whistleblower”; that KFFG is the exclusive licensee of the copyright in that work; that the respondents have infringed that copyright; and that the applicants have thereby suffered substantial loss. They seek damages and other relief.

7    The interlocutory judgment of Charlesworth J concerned two oral applications: one by Mr Ferdinands that Her Honour disqualify herself from hearing the application by reason of bias or apprehended bias, and one by the Commissioner of Police for orders pursuant to r 9.08 of the FCR that KFFG be removed as an applicant in the proceedings and that “South Australian Police” be removed as a respondent.

8    Charlesworth J refused to disqualify herself from hearing the matter and upheld both aspects of the application by the Commissioner. The orders made by Charlesworth J on 27 October 2016 were as follows:

1.    The second applicant’s application for an order that I disqualify myself is dismissed.

2.    The title of the action be amended so as to:

(a)    remove the name of the first applicant;

(b)    name Trevor Kingsley Ferdinands as the sole applicant;

(c)    remove the name of the first respondent;

(d)    name The State of South Australia as the sole respondent.

9    The application for leave to appeal challenges Charlesworth J’s orders to dismiss the application to disqualify herself and to remove the name of the first applicant. I do not understand the applicants to be challenging the removal of the first respondent or the order to make the State of South Australia the sole respondent.

10    The draft Notice of Appeal filed by the applicants is a discursive document which canvasses matters going beyond the actual orders made by Charlesworth J. It is of course only those orders which can be the subject of an appeal. The draft Notice of Appeal has seven paragraphs under the heading “Grounds of Appeal” (but some of these are in the nature of statements of the relief sought, rather than allegations of error), 11 paragraphs under the heading “The issues for the Full Court” (but several of these issues are, with due respect to Mr Ferdinands, spurious), and lists 25 orders sought in the appeal (but the majority of these appear to have little, if anything, to do with orders made by Charlesworth J).

Leave to appeal principles

11    The orders which the applicants seek to impugn on the appeal were made in the exercise of a discretionary judgment. Appellate review of discretionary judgments of this kind is limited. The principles stated in House v The King (1936) 55 CLR 499 at 505 apply:

It must appear that some error has been made in exercising the discretion. If the judge acts upon a wrong principle, if he allows extraneous or irrelevant matters to guide or affect him, if he mistakes the facts, if he does not take into account some material consideration, then his determination should be reviewed and the appellate court may exercise its own discretion in substitution for his if it has the materials for doing so.

12    Further, appellate courts exercise restraint before interfering with judgments concerning matters of practice and procedure. Thus, in Adam P Brown Male Fashions Pty Ltd v Philip Morris Inc (1981) 148 CLR 170 at 177, Gibbs CJ, Aickin, Wilson and Brennan JJ said:

Nor is there any serious dispute between the parties that appellate courts exercise particular caution in reviewing decisions pertaining to practice and procedure. Counsel for Brown urged that specific cumulative bars operate to guide appellate courts in the discharge of that task. Not only must there be error of principle, but the decision appealed from must work a substantial injustice to one of the parties. The opposing view is that such criteria are to be expressed disjunctively. … For ourselves, we believe it to be unnecessary and indeed unwise to lay down rigid and exhaustive criteria. The circumstances of different cases are infinitely various. We would merely repeat, with approval, the oft-cited statement of Sir Frederick Jordan in In re the Will of F.B. Gilbert (dec.) [(1946) 46 SR (NSW) 318 at 323]:

“… I am of the opinion that, … there is a material difference between an exercise of discretion on a point of practice or procedure and an exercise of discretion which determines substantive rights. In the former class of case, if a tight rein were not kept upon interference with the orders of Judges of first instance, the result would be disastrous to the proper administration of justice. The disposal of cases could be delayed interminably, and costs heaped up indefinitely, if a litigant with a long purse or a litigious disposition could, at will, in effect transfer all exercises of discretion in interlocutory applications from a Judge in Chambers to a Court of Appeal.”

Section 24(1A) of the Federal Court of Australia Act 1976 (Cth) (FCA Act) is a legislative endorsement of the restraint to which their Honours referred in Adam P Brown.

13    The power to grant leave to appeal conferred by s 24(1A) also involves a discretionary judgment. The approach to the exercise of that discretion adopted in Décor Corporation Pty Ltd v Dart Industries Inc (1991) 33 FCR 397 has been influential. The Full Court (Sheppard, Burchett and Herrey JJ) enquired first, whether in all the circumstances, the judgment of the primary judge was attended by sufficient doubt to warrant it being reconsidered by the Full Court and, secondly, whether substantial injustice would result if leave were refused, supposing the decision to be wrong. Those tests are not to be applied in a rigid way, having regard to the variety of interlocutory decisions which may be the subject of an appeal. The Full Court in Samsung Electronics Co Ltd v Apple Inc [2013] FCAFC 138 at [19] spoke of the need for flexibility as follows:

The very width of the discretion and the prudence in not seeking to confine the manner in which it is to be exercised is a necessary corollary of the myriad of interlocutory decisions which may be made – ranging from interlocutory decisions affecting the substantive rights of parties (and effectively being final orders) to matters of practice and procedure (including decisions to extend time, the granting or refusal of adjournments and the filing of evidence). The different character of interlocutory decisions which may be made and the different factual and forensic circumstances in play when such decisions are made nevertheless have occasioned a different emphasis from one judgment to another upon one particular factor or factors rather than others.

The allegation of bias or apprehended bias

14    Despite the discursive nature of the draft Notice of Appeal, very little of it appears to be directed to the refusal of Charlesworth J to disqualify herself from hearing the matter by reason of bias or apprehended bias. In fact, none of the seven grounds in the draft Notice of Appeal are directed to that issue. Instead, the issue is raised for the first time in paragraph 24 under the heading “The issues for the Full Court”:

Justice Charlesworth has displayed overtly prejudicial and biased behaviour and questioned the very existence of the form of the intellectual property created by the second plaintiff and the manner of that form in which it is held by the first plaintiff. This [is] plainly wrong in law but also overtly humiliating and prejudicial to the first plaintiff.

15    Two of the paragraphs under the heading “Orders sought” give an indication of the matters which the applicants may wish to argue on the question of disqualification as they seek:

[17]    A declaration that the public confidence has no bearing whatsoever on prejudice and bias applications, hearings or final decisions by any judicial officer of the Commonwealth.

[18]    A declaration that the fair-minded and informed observer is fundamentally the wrong approach to decision-making by judicial officers and decision-makers; and the views, opinions, assessments or perceptions of observers outside of law should never be taken into consideration when judicial officers are making orders, judgments or final decisions.

(Emphasis in the original)

16    These paragraphs suggest that the applicants wish to contend that the Judge did not apply the correct principles when she considered the submission that she should disqualify herself for bias or apprehended bias. It can be said immediately that contentions to this effect have no reasonable prospect of success. Charlesworth J referred to the well-known statement of principle applicable in cases of apprehended bias enunciated by Gleeson CJ, McHugh, Gummow and Hayne JJ in Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337 at [6] (sometimes referred to as the “double might test”). As well, Charlesworth J referred to ALA15 v Minister for Immigration and Border Protection [2016] FCAFC 30, in which the Full Court (Allsop CJ, Kenny and Griffiths JJ), described the test as “relatively well settled” and went on to state it as “whether a fair-minded and appropriately informed lay observer may reasonably apprehend that the Court might not bring a fair, impartial and independent mind to the determination of the matter on its merits”. A claim of actual bias requires satisfaction of a more stringent standard.

17    Mr Ferdinands attached to his affidavit the written submissions which he had made on the issue of bias before Charlesworth J. This suggests that he wishes to reargue on the appeal the same matters which were agitated before Charlesworth J. However, this approach is, with respect to Mr Ferdinands, misconceived. It is necessary on an appeal for an appellant to show error. Merely restating the arguments which were made at first instance does not have this effect.

18    Charlesworth J addressed the applicants’ disqualification for bias application in some detail in [25]-[55] of her decision. Her Honour noted at [34], that it was difficult to discern from the materials provided by Mr Ferdinands, a clear factual foundation for the disqualification application. My own review of the materials to which Charlesworth J referred confirms this difficulty. Charlesworth J then stated that she would proceed on the assumption that the application was made on the following grounds:

(1)    the test for whether a judge should disqualify himself or herself is not that of the reasonable lay-observer, but one involving an assessment of the degree of discomfort a litigant feels in appearing before the presiding judge;

(2)    Mr Ferdinands subjectively feels uncomfortable appearing before me to a degree that warrants my disqualification;

(3)    I form a part of a class of persons that is corrupt, namely, members of the judiciary residing in South Australia;

(4)    I have or appear to have racist attitudes;

(5)    I have made orders in these proceedings unjustifiably favouring the respondents without dealing promptly with the substantive merits of Mr Ferdinands’ copyright claim.

19    In the following paragraphs, Charlesworth J addressed each of these matters. It is not necessary to attempt to summarise those reasons. It is instead sufficient to say that none of the materials which the applicants have provided in support of the application for leave to appeal suggest even an arguable case of error in Her Honour’s reasons so as to warrant a grant of leave to appeal on these grounds.

20    Mr Ferdinands may be disappointed with some of the rulings made by Charlesworth J to date in the proceedings. The existence of such a disappointment does not, however, warrant a judge recusing himself or herself from hearing a case.

21    On my assessment, the applicants have not shown any reasonably arguable error by Charlesworth J in the manner in which she dealt with the disqualification for bias application. Leave to appeal in respect of this aspect of the application is refused.

The removal of KFFG as an applicant

22    Section 24(1AA)(b)(i) of the FCA Act provides that an appeal cannot be brought against an order by a judge of this Court to join or remove a party. Accordingly, the order to remove KFFG as an applicant to the proceedings cannot be the subject of appeal. Leave to appeal in respect to this order is therefore refused.

Summary

23    For the reasons set out above, I consider that the application for leave to appeal should be refused.

24    This conclusion makes it unnecessary to consider the circumstance that the applicants would need an extension of time in which to seek leave to appeal.

Associate:

Dated:    30 January 2017