Azshion v Ombudsman NSW

[2016] NSWCATAD 249

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 was a power of the President of the Tribunal to refer a matter to the Ombudsman. He said this power was found in s 39 of the Administrative Decisions Tribunal Act. That Act has been repealed. However Ms Smith referred me to s 35D of the Ombudsman Act 1974 which now contains the same provision. That section provides:

35D Inter-relationship between Ombudsman and NCAT

(1) The Ombudsman and President of the Civil and Administrative Tribunal may enter into arrangements regarding any of the following:

(a) matters that the Tribunal will refer to the Ombudsman where it considers that the matter can be the subject of a complaint, inquiry, investigation or other action under the Ombudsman Act 1974 and that it would be more appropriate for the Ombudsman to deal with the matter,

(b) matters that the Ombudsman will refer to the Tribunal where the Ombudsman considers that the matter can be the subject of an administrative review application and that it would be more appropriate for the Tribunal to deal with it,

(c) matters that are the subject of an administrative review application and that are also the subject of a complaint, inquiry, investigation or other action under the Ombudsman Act 1974,

(d) the co-operative exercise of the respective functions of the Ombudsman and the Tribunal.

(2) The Ombudsman and President are jointly to cause notice of any arrangements entered into under this section to be published in the Gazette as soon as is practicable after they are entered into. However, a failure to publish any such arrangements does not affect their validity.

(3) The Ombudsman and the Civil and Administrative Tribunal are empowered to exercise their functions in conformity with any relevant arrangements entered into under this section.

(4) An administrative review application may be made to the Civil and Administrative Tribunal whether or not a complaint has been made to the Ombudsman in relation to the decision.

(5) Without limiting subsection (3):

(a) the Ombudsman may (despite anything in this Act) decline, discontinue or defer a complaint made under this Act to give effect to an arrangement entered into under this section, and

(b) the Ombudsman may (despite any provision of this Act but in conformity with the Civil and Administrative Tribunal Act 2013) disclose any information to the Tribunal duly obtained by the Ombudsman in relation to any matter referred to the Civil and Administrative Tribunal to give effect to an arrangement entered into under this section, and

(c) the Tribunal may dismiss, adjourn or stay proceedings relating to an administrative review application to give effect to an arrangement entered into under this section, and

(d) the Ombudsman may entertain any complaint under this Act, or the Tribunal may entertain an administrative review application, duly made by a person on the basis of a referral under arrangements entered into under this section.

(6) In this section:

administrative review application has the same meaning as in the Civil and Administrative Tribunal Act 2013.

The jurisdiction issue

9. The Tribunal has the jurisdiction which is conferred on it by or under the Civil and Administrative Tribunal Act 2013 and any other legislation: s 28(1) Civil and Administrative Tribunal Act; CMT [2014]NSWCATGD 11 at [36].

10. Mr Azshion is seeking review of a decision by the Ombudsman. Section 9 of the Administrative Decisions Review Act 1997 states as follows:

9 When administrative review jurisdiction is conferred

(1) The Tribunal has administrative review jurisdiction over a decision (or class of decisions) of an administrator if enabling legislation provides that applications may be made to the Tribunal for an administrative review under this Act of any such decision (or class of decisions) made by the administrator:

(a) in the exercise of functions conferred or imposed by or under the legislation, or

(b) in the exercise of any other functions of the administrator identified by the legislation.

(2) If enabling legislation makes provision for applications to be made to the Tribunal in respect of an administratively reviewable decision subject to certain conditions, the Tribunal has jurisdiction under the enabling legislation only if those conditions are satisfied.

(3) A provision of enabling legislation that provides for a decision of an administrator to be administratively reviewable by the Tribunal under this Act extends to the following:

(a) a decision made by a person to whom the function of making the decision has been delegated,

(b) if the provision specifies the administrator by reference to the holding of a particular office or appointment—a decision by any person for the time being acting in, or performing any of the duties of, the office or appointment,

(c) a decision made by any other person authorised to exercise the function of making the decision.

(4) If an administrator makes an administratively reviewable decision by reason of holding or performing the duties of an office or appointment and then ceases to hold or perform the duties of the office or appointment, this Act has effect as if the decision had been made by:

(a) the person for the time being holding or performing the duties of that office or appointment, or

(b) if there is no person for the time being holding or performing the duties of that office or appointment or the office no longer exists—such person as the President (or another person authorised by the President) specifies.

(5) Nothing in this section permits administrative review jurisdiction to be conferred on the Tribunal by a statutory rule unless the conferral of jurisdiction by such means is expressly authorised by another Act.

11. Mr Azshion could not point me to any enabling legislation which provided that the Tribunal could review a decision of the Ombudsman refusing to investigate a complaint. Sections 13 and 15 of the Ombudsman Act set out the procedure for making such a decision:

13 Decision for investigation

(1) Where it appears to the Ombudsman that any conduct of a public authority about which a complaint may be made under section 12 may be conduct referred to in section 26, the Ombudsman may, whether or not any person has complained to the Ombudsman about the conduct, make the conduct the subject of an investigation under this Act.

(2) Subsection (1) has effect notwithstanding anything in any Act passed before the passing of this Act.

(3) The Ombudsman may discontinue an investigation under this Act.

(4) Where any person has complained to the Ombudsman under section 12 about the conduct of a public authority, the Ombudsman, in deciding whether to make that conduct the subject of an investigation under this Act or whether to discontinue an investigation commenced by him or her under this Act:

(a) may have regard to such matters as he or she thinks fit, and

(b) without limiting paragraph (a), may have regard to whether, in his or her opinion:

(i) the complaint is frivolous, vexatious or not in good faith,

(ii) the subject-matter of the complaint is trivial,

(iii) the subject-matter of the complaint relates to the discharge by a public authority of a function which is substantially a trading or commercial function,

(iv) the conduct complained of occurred at too remote a time to justify investigation,

(v) in relation to the conduct complained of there is or was available to the complainant an alternative and satisfactory means of redress, or

(vi) the complainant has no interest or an insufficient interest in the conduct complained of.

(4A) In deciding whether to discontinue an investigation of police conduct, the Ombudsman shall have regard to the public interest.

(5) Notwithstanding any other provision of this section, the Ombudsman shall not investigate the conduct of a public authority, being a local government authority, if that conduct is subject to a right of appeal or review conferred by or under an Act unless the Ombudsman is of the opinion that special circumstances make it unreasonable to expect that right to be or to have been exercised.

15 Reasons for refusal to conciliate, investigate or continue investigation

(1) Where:

(a) a complaint has been made to the Ombudsman under section 12 about the conduct of a public authority, and

(b) the Ombudsman:

(i) refuses to investigate the conduct complained of or to deal with the complaint by conciliation, or

(ii) discontinues an investigation of that conduct,

the Ombudsman shall inform the complainant in writing of his or her decision and the reasons for the decision.

(2) Where the Ombudsman discontinues an investigation of police conduct, the Ombudsman shall inform the complainant and the Commissioner of Police in writing of the decision and the reasons for the decision.

(3) Where the Ombudsman:

(a) refuses to carry out any other investigation, or

(b) refuses to deal with any other complaint, disclosure or allegation by conciliation, or

(c) discontinues any other investigation,

the Ombudsman must inform the complainant, or the person who made the disclosure or allegation, in writing of the decision and the reasons for the decision.

12. Neither section, nor the Ombudsman Act itself, contains any reference to the Tribunal having jurisdiction to review such decisions. Ms Smith submitted that the power to refuse to investigate was a discretionary power.

The Privacy and Personal Information Protection Act issue

13. Mr Azshion sought to rely on the power of the Tribunal to review a decision under the Privacy and Personal Information Protection Act (s 55 of that Act). However the Tribunal may only review a decision where there has been an internal review decision (s 55(1).)

14. Mr Azshion said he should have been informed of his rights under the Act by the Ombudsman when the Ombudsman received his letter of 23 August. Ms Smith submitted that the letter did not make any claim for a remedy under the Privacy and Personal Information Protection Act and in fact did not mention that Act. She submitted that Mr Azshion could not rely upon that Act for jurisdiction (CCM v University of Western Sydney trading as Western Sydney University [2016] NSWCATAP 185) as there had been no internal review under the Privacy and Personal Information Protection Act and therefore no jurisdiction existed under that Act.

The power to refer a matter to the Ombudsman

15. Mr Azshion submitted that there was a relationship between the President of the Tribunal and the Ombudsman under s 35D of the Ombudsman Act and the Tribunal had the power to refer this matter to the Ombudsman. In submissions filed on 19 October 2016 he asked that “a recommendation from the President be forwarded to the Ombudsman for the Ombudsman to re-examine the eight complaints and self-review the present decision to not conduct any form of inquiry or investigation.”

16. Section 35D appears to enable the Ombudsman and the President of the Tribunal to enter into arrangements concerning certain classes of matters and the handling of such matters. Mr Azshion could not point me to evidence of any such arrangement, which is required to be gazetted by s 35D(2).

17. Even if such arrangements existed, Mr Azshion’s application is an application for review of a decision. Section 35D does not give jurisdiction to the Tribunal to hear or refer such an application where otherwise no jurisdiction exists.

Conclusion

18. I am satisfied that the Tribunal does not have jurisdiction to hear this application and therefore it is not necessary for me to consider whether s 35A of the Ombudsman Act applies to the application. The application for review should be dismissed.

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I hereby certify that this is a true and accurate record of the reasons for decision of the Civil and Administrative Tribunal of New South Wales.

Registrar

Decision last updated: 07 November 2016