Azshion v Ombudsman NSW

Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation:	Azshion v Ombudsman NSW [2016] NSWCATAD 249
Hearing dates:	27 October 2016
Date of orders:	07 November 2016
Decision date:	07 November 2016
Jurisdiction:	Administrative and Equal Opportunity Division
Before:	C Ludlow, Senior Member
Decision:	The application is dismissed.
Catchwords:	ADMINISTRATIVE LAW –– jurisdiction
Legislation Cited:	Administrative Decisions Review Act 1997 Civil and Administrative Tribunal Act 2013 Ombudsman Act 1974 Privacy and Personal Information Protection Act 1998
Cases Cited:	CCM v University of Western Sydney [2016] NSWCATAP 185 CMT [2014]NSWCATGD 11
Category:	Principal judgment
Parties:	Craig Azshion (Applicant) NSW Ombudsman (Respondent)
Representation:	Solicitors: C Azshion (Applicant in person) NSW Ombudsman (Respondent)
File Number(s):	1610504

REASONS FOR DECISION

1. This matter was listed for hearing of the respondent’s application that the applicant’s application for review be dismissed for lack of jurisdiction. I am of the view that the respondent’s application to dismiss should be granted for the following reasons.

2. The history of the matter is as follows. On 30 June 2015 Mr Craig Azshion (the applicant) made 8 complaints to the Ombudsman about the conduct of the NSW Police Force.

3. On 23 July 2015 Mr Kimber Swan, a senior investigation officer in the Ombudsman’s office, replied to Mr Azshion stating that there was not an adequate basis on which the Ombudsman would take any further action in relation to his complaints.

4. Mr Azshion sought an internal review of that decision on 7 September 2015. On 12 November 2015 Ms Kirsteen Banwell, the A/Division Manager (Police) at the Ombudsman’s office wrote to him informing him that “an investigation into your complaint is not required and that no further action can be taken in this matter.”

5. Mr Azshion is seeking a review of that decision.

The parties’ submissions

6. The Ombudsman contends that this Tribunal does not have jurisdiction to review the Ombudsman’s decision. The Ombudsman contends this on three bases:

1. the Tribunal’s jurisdiction is not “at large” but is based in statute, and there is no statute which gives it jurisdiction to review decisions of the Ombudsman;

2. Mr Azshion’s application for review purports to rely upon the Privacy and Personal Information Protection Act 1998 and there has been no internal review decision made by the Ombudsman under that Act which is a prerequisite for review by this Tribunal;

3. Section 35A of the Ombudsman Act 1974 prevents civil proceedings being brought against the Ombudsman or an officer of the Ombudsman except in certain limited circumstances.

7. Mr Azshion’s submissions in support of jurisdiction were stated to rely on two points of law. Firstly, that he had written to the Ombudsman on 23 August 2015 challenging certain statements in Mr Swan’s letter as being mistaken and misleading and had requested amendments and corrections to that letter. He submitted that his letter of 23 August 2015 was in the nature of a request under the Privacy and Personal Information Protection Act and the Ombudsman had failed to deal with that request.

8. Secondly, he relied upon what he said…