City of Port Adelaide Enfield v Bingham

SUPREME COURT OF SOUTH AUSTRALIA
(Civil: Application for Judicial Review)
CITY OF PORT ADELAIDE ENFIELD v BINGHAM
[2014] SASC 36
Judgment of The Honourable Justice Stanley
17 March 2014
ADMINISTRATIVE LAW - JUDICIAL REVIEW - GENERALLY
ADMINISTRATIVE LAW - JUDICIAL REVIEW - GROUNDS OF REVIEW - ERROR OF LAW
ADMINISTRATIVE LAW - JUDICIAL REVIEW - GROUNDS OF REVIEW - JURISDICTIONAL MATTERS
ADMINISTRATIVE LAW - JUDICIAL REVIEW - GROUNDS OF REVIEW - IRRELEVANT CONSIDERATIONS
ADMINISTRATIVE LAW - JUDICIAL REVIEW - GROUNDS OF REVIEW - RELEVANT CONSIDERATIONS
ADMINISTRATIVE LAW - JUDICIAL REVIEW - GROUNDS OF REVIEW - UNREASONABLENESS
ADMINISTRATIVE LAW - JUDICIAL REVIEW - POWERS OF COURTS UNDER JUDICIAL REVIEW LEGISLATION - DECLARATIONS
ADMINISTRATIVE LAW - JUDICIAL REVIEW - POWERS OF COURTS UNDER JUDICIAL REVIEW LEGISLATION - ORDERS TO QUASH DECISION
Application for judicial review.
The plaintiff Council seeks judicial review of a report by the Ombudsman following an investigation into the administrative act of the Council in engaging a sub-contractor, J & G (SA) Pty Ltd, to dispose of hundreds of tyres from the Council’s depot.
The sub-contractor dumped the tyres on a property at Burton which the sub-contractor leased from a Mr Osmond. Mr Osmond complained to the Ombudsman about the Council’s decision to contract the sub-contractor to dispose of the tyres.
The Ombudsman identified the administrative act to which his investigation related as the Council’s authorisation to the sub-contractor to transport the tyres to the Burton property. The Ombudsman concluded this was wrong in that it breached the Council’s procurement policy which required all purchases to be compliant with the requirements of relevant legislation. This was because the Council failed to inquire as to whether the sub-contractor had development and EPA approval to operate a waste transfer facility on the Burton property. It did not.
The Ombudsman recommended the Council collect the tyres from the Burton property and dispose of them appropriately.
The plaintiff seeks an order in the nature of certiorari quashing the decision of the Ombudsman and a declaration that the decision was ultra vires and therefore invalid.
The Ombudsman opposes the application for judicial review.
Whether the Ombudsman’s report is amenable to certiorari. Whether declaratory relief is available. Whether the Ombudsman’s decision was ultra vires. Whether the complainant was directly affected by the administrative act. Whether the Obmudsman’s decision was tainted by Wednesbury unreasonableness. Whether the Ombudsman failed to take into account relevant considerations in reaching his decision. Whether the Ombudsman took into account irrelevant considerations in reaching his decision.
Held:
1. The Ombudsman’s report operates as a precondition to a potential course of action or as a step in a process capable of altering the rights or interests of the plaintiff. The Ombudsman’s report is amenable to certiorari (at [15] - [18]).
2. This court has an inherent power to grant declaratory relief. It is a discretionary power that is not to be fettered by the laying down of rules as to the manner of its exercise except to the extent of the limits of judicial power. Declaratory relief is available to the plaintiff (at [21] - [26]).
3. The consequence of the plaintiff’s engagement of the sub-contractor resulted in a burden on the complainant which did not afflict other members of the general public who might be concerned by the plaintiff’s administrative act. The complainant was directly affected by the administrative act of the plaintiff (at [33] - [40]).
4. Whether a decision maker has fallen into jurisdictional error by failing to take into account relevant considerations or taking into account irrelevant considerations is a question of the construction of the legislative instrument conferring the decision maker’s jurisdiction. In this matter, there is nothing in the subject matter, scope and purpose of the Ombudsman Act which binds the Ombudsman to consider those matters the plaintiff alleges are relevant or binds him not to consider those matters the plaintiff alleges are irrelevant (at [52]).
5. The Ombudsman’s decision is unreasonable and should be set aside on that basis (at [60] - [65]).
Ombudsman Act 1972 (SA) s 3, s 13, s 14, s 15, s 19A, s 25, s 28; Local Government Act 1999 (SA) s 272, s 273; Local Government Act 1934 (SA) s 32; City of Adelaide Development Control Act 1976 (SA); Public Services Act, RSO 1990, referred to.
Ainsworth v Criminal Justice Commission (1992) 175 CLR 564; City of Salisbury v Biganovsky (1990) 54 SASR 117; Hot Holdings Pty Ltd v Creasy (1996) 185 CLR 149; Brettingham-Moore v St Leonards Municipality (1969) 121 CLR 509; R v Collins; Ex parte ACTU-Solo Enterprises (1976) 50 ALJR 471; Plaintiff M70/2011 v Minister for Immigration and Citizenship & Anor (2011) 244 CLR 144; Botany Council v The Ombudsman (1995) 37 NSWLR 357; Adelaide Development Company Pty Ltd v Corporation of the City of Adelaide (1991) 56 SASR 497; Corporation of the Canadian Civil Liberties Association v Ontario Civilian Commission on Police Services (2005) 260 DLR (4th) 754; Re Endowed Schools Act [1898] AC 477; Johns v Australian Securities Commission (1992 – 93) 178 CLR 408; Australian Education Union v Department of Education and Children’s Services (2012) 248 CLR 1; Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323; Craig v State of South Australia (1995) 184 CLR 163; Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1985 – 1986) 162 CLR 24; Minister for Immigration and Citizenship v Li (2013) 87 ALJR 618, discussed.
Commissioner of Taxation v Unit Trend Services Pty Ltd (2013) 87 ALJR 588, considered.

WORDS AND PHRASES CONSIDERED/DEFINED
"directly affected"

CITY OF PORT ADELAIDE ENFIELD v BINGHAM
[2014] SASC 36
STANLEY J
Introduction

This is an application for judicial review of a report by the Ombudsman following an investigation into the administrative act of the plaintiff Council in engaging a sub-contractor, J & G (SA) Pty Ltd (“J & G”), to dispose of hundreds of tyres from the Council’s depot.
The sub-contractor dumped the tyres on a property at Burton which the sub-contractor leased from a Mr Osmond. Mr Osmond complained to the Ombudsman about the Council’s decision. The Ombudsman identified the administrative act to which his investigation related as the Council’s authorisation to the sub-contractor to transport the tyres to the Burton property. The Ombudsman concluded this was wrong in that it breached the Council’s procurement policy which required all purchases to be compliant with the requirements of relevant legislation. This was because the Council failed to inquire as to whether the sub-contractor had development and EPA approval to operate a waste transfer facility on the Burton property. It did not.
The Ombudsman recommended the Council collect the tyres from the Burton property and dispose of them appropriately.
The plaintiff contends that the Ombudsman’s decision was ultra vires because the investigation was conditioned on the complainant being directly affected by the administrative act, which was not the position. It contends it was tainted by Wednesbury unreasonableness and invalid by reason of the Ombudsman having regard to irrelevant considerations and failing to have regard to relevant considerations in reaching his decision.
The plaintiff seeks an order in the nature of certiorari quashing the decision and a declaration that the decision was ultra vires and therefore invalid.
The Ombudsman opposed the application for judicial review.
The Ombudsman submits that certiorari does not lie in this case because the opinions reached and the recommendations made by the Ombudsman following an investigation have no binding legal force. Certiorari is not available to quash decisions that have no legal effect. Further, declaratory relief is unavailable or, as a matter of discretion, should be refused. In any event, the Ombudsman’s decision was not ultra vires. The complainant was directly affected by the relevant administrative act. The decision was not so unreasonable as to meet the Wednesbury test and the plaintiff’s complaint about a failure to have regard to relevant considerations and the taking into account of irrelevant considerations is misconceived.
Is the report amenable to certiorari?
The basis of the defendant’s submission that certiorari does not lie is found in the terms of s 25(2) of the Ombudsman Act 1972 (SA) (“the Ombudsman Act”). Section 25(2) confines the action the Ombudsman can take on completion of an investigation to the reporting by him to the principal officer of the relevant agency of his opinion formed following investigation and the reasons for it, and the making of such recommendations as the Ombudsman thinks fit. Pursuant to s 25(3) the Ombudsman must send a copy of any report or recommendation to the responsible Minister. If an agency fails to take steps to give effect to any recommendation made by the Ombudsman pursuant to s 25(5) the Ombudsman may make a report on the matter to the Premier. Where that occurs, pursuant to s 25(6) the Ombudsman may forward copies of that report to the Speaker of the House of Assembly and the President of the Legislative Council with a request that they be laid before their respective Houses.
While s 19A of the Ombudsman Act confers a power on the Ombudsman to issue a direction to an agency to refrain from performing an administrative act where the Ombudsman is of the opinion that the act is likely to prejudice an investigation, or the implementation of a recommendation the Ombudsman might make, or is likely to cause serious hardship to a person; pursuant to s 19A(5) the agency may determine not to comply with the direction if it is of the opinion that in the circumstances failure to comply is reasonable and justifiable.
It is common ground between the parties that the opinions reached and the recommendations made by the Ombudsman following an investigation have no binding legal force.
The principle that certiorari is not available to quash decisions of public officials that do not have legal effect is qualified. In Ainsworth v Criminal Justice Commission[1] the plurality,[2] in considering whether reports by public officers to government were amenable to certiorari, identified two distinct categories. First, reports which had no legal effect and carried no legal effects either direct or indirect and, second, those which operate as a precondition to a course of action or as a step in a process capable of altering rights, interests or liabilities. The High Court held that certiorari lies to quash the decision in the latter category but not in the former category. In my view, the Ombudsman’s report in this matter falls in the latter category.
[1] [1992] HCA 10, (1992) 175 CLR 564.
[2] Mason CJ, Dawson, Toohey & Gaudron JJ.
Section 273 of the Local Government Act 1999 (SA) provides:
273—Action on report
(1)The Minister may, on the basis of—
(a)     information provided by the Independent Commissioner Against Corruption; or
(b)     a report of the Auditor-General (under this or another Act); or
(c)     a report of the Ombudsman (under this or another Act),
take action under this section.
(2)The action that the Minister may take is any of the following:
(a)     the Minister may make recommendations to a council;
(b)     if the Minister considers—
(i)that a council has contravened or failed to comply with a provision of this or another Act; or
(ii)that a council has failed to discharge a responsibility under this or another Act; or
(iii)that an irregularity has occurred in the conduct of the affairs of a council (in relation to matters arising under this or another Act); or
(iv)that a council has failed to respond appropriately to a recommendation of the Independent Commissioner Against Corruption or the Ombudsman; or
(v)that a council has failed to address appropriately a matter that formed the basis of a request under section 271B,
the Minister may give directions to the council to rectify the matter, or to prevent a recurrence of the act, failure or irregularity;
(c)     if the Minister considers that there has been—
(i)a serious contravention or failure on the part of a council to comply with a provision of this or another Act; or
(ii)a serious failure on the part of a council to discharge a responsibility under this or another Act; or
(iii)a serious irregularity in the conduct of the affairs of a council (in relation to matters arising under this or another Act); or
(iv)a failure to comply with a direction under subsection (2)(b); or
(v)a failure to comply with a requirement to take specified action in respect of a subsidiary for the purposes of section 275,
and accordingly that the council should be declared as a defaulting council under this Division—the Minister may recommend to the Governor that the council be declared to be a defaulting council.
(3)The Minister must, before taking action under subsection (2)(b) or (c), give the council a reasonable opportunity to make submissions to the Minister on the report on which the action is based.
(5)If the Minister makes a recommendation under subsection (2)(c), the Governor may, by proclamation—
(a)     declare the council to be a defaulting council; and
(b)     appoint a suitable person or suitable persons to be administrator or administrators of the affairs of the council.
(6)If a proclamation is made under subsection (5), the Minister must, within the first five sitting days after the date of the proclamation, cause a report to be laid before both Houses of Parliament of the circumstances giving rise to the making of the proclamation.
(7)If the Governor makes a proclamation under subsection (5), the Governor may by the same or a subsequent proclamation provide for any matter incidental to, or consequential on, the declaration of the council as a defaulting council.
(8)On the making of a proclamation under subsection (5), all the members of the defaulting council are suspended from their respective offices until the council ceases to be a defaulting council.
(9)An administrator or administrators appointed under this section will, until the council ceases to be a defaulting council, administer the affairs of the defaulting council in the name of and on behalf of the council (and for that purpose will have all the powers, functions and duties of the council).
(10)If two or more administrators are appointed under this section, any disagreement between them will be settled by the decision of the majority or, where they are equally divided in opinion, by determination of the Minister.
(11)The remuneration of an administrator (which will be determined by the Governor) and any liability incurred by an administrator in the course of the administration will be paid or satisfied out of the funds of the defaulting council.
(12)The Governor may, by proclamation, declare that the provisions of this or any other Act apply, while the council is a defaulting council, subject to exclusions or modifications specified in the proclamation, and those provisions apply accordingly.
(13)The administrator or administrators appointed under this section must report to the Minister at intervals of not more than three months on the administration of the affairs of the defaulting council.
(14)The Governor may, by proclamation, vary or revoke a proclamation under this section.
(15)The Governor may, on the recommendation of the Minister made not earlier than the expiration of three months from the date on which the council was declared to be a defaulting council, by proclamation, declare the offices of all the members of the defaulting council to be vacant.
(16)A council ceases to be a defaulting council under this Division—
(a)     on the making of a proclamation revoking the proclamation by which the council was declared to be a defaulting council; or
(b)     if a proclamation is made declaring the offices of all members of the defaulting council to be vacant—on the conclusion of the elections to fill the vacant offices; or
(c)     unless a proclamation referred to in paragraph (a) or (b) is sooner made—on the expiration of 12 months from the date on which the council was declared to be a defaulting council.
The predecessor provision to s 273, namely, s 32 of the Local Government Act 1934 (SA), was considered in City of Salisbury v Biganovsky[3] where Mullighan J said:[4]
The Office of the Ombudsman is a very important office. He discharges a function of great importance to the community. Although there is no procedure for the enforcement of his decisions and recommendations, it may be expected that those officials and agencies which are subject to his jurisdiction will comply with his recommendations.
It may be seen from s 25(3) of the Act … that the defendant reports to the Minister of the Crown responsible for the administration of the authority or department under investigation, and where steps have not been taken to give effect to his recommendation, to the Premier. In those circumstances the defendant may forward copies of his report to the Speaker of the House of Assembly and to the President of the Legislative Council with a request that they be laid before the respective Houses of Parliament.
For those reasons alone a report by the defendant is a matter of considerable importance to an agency, including a local government council. However, s 32 of the Local Government Act 1934, as amended, gives added sting to such a report in relation to such a council as it is therein provided that the Minister of the Crown responsible for the administration of that Act may give directions to a council, where the defendant has reported that the council has failed to discharge a responsibility under that or another Act or an irregularity has occurred in the conduct of the affairs of the council in relation to matters arising under that Act or another Act.
[3] (1990) 54 SASR 117.
[4] (1990) 54 SASR 117 at 120.
While that was an application for a declaration brought pursuant to s 28 of the Ombudsman Act the reasoning is relevant to the question of whether certiorari lies in the circumstances of this case.
Section 273 of the Local Government Act 1999 (SA) establishes a scheme by which the Minister for Local Government may take action as prescribed by s 273(2). The condition precedent for the taking of such action is, inter alia, the provision of a report of the Ombudsman, either under s 272 of the Local Government Act 1999 or under the Ombudsman Act. Before the Minister takes any action under s 273(2)(b) or (c), the Minister must give the council a reasonable opportunity to make submissions on the report on which the action is based. The Act contemplates that the discretion conferred on the Minister to take action depends on the observance by the Minister of the principles of natural justice and separate consideration by the Minister whether action should be taken and if so, the nature of such action. None of that detracts, however, from the fact that the exercise of the Minister’s powers against a council is conditioned upon the Ombudsman’s report or, in the language of s 273(3), “on the report on which the action is based”.
In Hot Holdings Pty Ltd v Creasy,[5] Brennan CJ, Gaudron and Gummow JJ cited with approval the reasons of Barwick CJ in Brettingham-Moore v St Leonards Municipality,[6] which concerned the report of a tribunal of inquiry with no power to make a final decision. Barwick CJ said that although an exercise of executive discretion was interposed between the recommendation in the report and any implementation of it, the applicant might well have a sufficient interest to have sought certiorari. This was because the report recommending certain action in relation to a local council was, by the relevant legislation, a condition precedent of the power of the Governor in Council to take action against the council. Barwick CJ’s reasoning was subsequently adopted by Stephen J in R v Collins; Ex parte ACTU-Solo Enterprises.[7]The parallels with this case are obvious.
[5] [1996] HCA 44, (1995 – 1996) 185 CLR 149.
[6] [1969] HCA 40 at [11], (1969) 121 CLR 509 at 522.
[7] (1976) 50 ALJR 471 at 473.

The Ombudsman’s report in this case operates as a precondition to a potential course of action or as a step in a process capable of altering the rights or interests of the plaintiff. Potentially the report could be the trigger for suspension from office of the Council members and the appointment of an administrator to the affairs of the Council. In Ainsworth when the plurality refers to a precondition to a course of action, I consider their Honours were not stating the proposition in terms that the impugned report had to result in a particular course of action, but rather that it is a report which might result in a course of action occurring subsequently. That would be consistent with the second limb of the test, namely, that the impugned report is a step in a process capable of altering rights or interests. Clearly, the second limb of the test is only concerned with potentialities. In my view, consistently, so should the first limb of the test.
It follows that, in my view, the Ombudsman’s report is amenable to certiorari.
Is declaratory relief available?
Whether an order in the nature of certiorari should be made is a separate question. Before addressing this question, however, I should deal with the defendant’s challenge to the availability of declaratory relief. The defendant contends that the declaratory relief sought by the Council is unavailable for three reasons. First, the making of the declaration sought by the Council serves no legitimate purpose. The report went to the Minister last May. There is no suggestion of any action being taken in relation to it. Even if there was, the Council must be heard by the Minister before any action is taken. Second, instances where courts have issued declaratory relief in relation to findings of investigative bodies that do not have legal effect, have all involved significant reputational damage. By contrast, the Council does not enjoy a reputation in the relevant sense which a declaration is capable of protecting. Third, s 28 of the Ombudsman Act confers power on the Court to make a declaration as to the jurisdiction of the Ombudsman prior to the Ombudsman reaching an opinion and making any recommendations. As the Council did not avail itself of the opportunity to seek such declaration when it was available, it cannot do so now.
Even if declaratory relief is available, the defendant submits a declaration of invalidity is not available, for the same reasons that certiorari does not lie. Finally, the defendant submits that declaratory relief should be refused as a matter of discretion as it was unnecessary for the Council to take this matter to Court and it was open to the Council to pursue redress for its grievances through political processes.
I do not accept these submissions. For the same reasons that I conclude certiorari lies, I consider declaratory relief is available.
The defendant’s report has the potential to affect the rights and interests of the Council and its members. It remains the necessary precondition for action by the Minister pursuant to s 273 of the Local Government Act 1999. The fact that the Minister has not acted upon it so far does not preclude the Minister or any future Minister from doing so.
The submission that the Council does not enjoy a reputation in the relevant sense is misconceived. A declaration would go to protect the rights and interests of the Council and its members, not the Council’s reputation.
Section 28 of the Ombudsman Act provides:
28—Determination of the Ombudsman's jurisdiction
Where—
(a) an investigation has been commenced or is proposed under this Act; and
(b) a question arises as to whether the Ombudsman has jurisdiction to conduct the investigation,
the Supreme Court may, on the application of the Ombudsman, an agency to which this Act applies or the principal officer of such an agency, determine the question and make any orders necessary to give effect to the determination.
While it is arguable that the terms of s 28(a) confines the operation of the provision to a time prior to the provision of a report by the Ombudsman, such a construction of the provision, if correct, does not preclude the grant of declaratory relief at a subsequent time. This Court has inherent power to grant declaratory relief. It is a discretionary power which is not to be fettered by the laying down of rules as to the manner of its exercise except to the extent of the limits of judicial power. Declaratory relief must be directed to the determination of legal controversies and not to answering abstract or hypothetical questions.[8] As I am satisfied that declaratory relief is available for the reasons set out above it is unnecessary to decide the construction of s 28.
[8] Ainsworth v Criminal Justice Commission [1992] HCA 10 at [38], (1992) 175 CLR 564 at 581 – 582.
As to the defendant’s submission that a declaration of invalidity is unavailable for the same reasons that certiorari is unavailable, my conclusion that certiorari lies is obviously fatal to this contention. Finally, I reject the submission that the Court should refuse declaratory relief as a matter of discretion on the basis that the Council should pursue redress for its grievance by political means. The availability of a political remedy is at best speculative and courts should be slow to refuse litigants a remedy at law on the basis that there may be available a solution to their wrong by recourse to political processes; processes which themselves are often contingent.
Was the complainant directly affected by the administrative act?
The plaintiff contends that the Ombudsman’s decision was ultra vires because the complainant, Mr Osmond, was not directly affected by the administrative act the subject of the investigation, namely, the engagement of the sub-contractor, J & G, by the Council to dispose of the tyres which were at the Council’s depot.
The basis of this submission is founded in the terms of s 15(3a) of the Ombudsman Act which provides:
Except as provided by this section, a complaint must not be entertained by the Ombudsman unless made by a person or body of persons directly affected by the administrative act to which the complaint relates.
The plaintiff submits that while the complainant was affected by the conduct of the sub-contractor, J & G, namely, its unlicensed use of his property and its apparent abandonment of the tyres on his property, the question for the defendant is whether the complainant was “directly affected” by the administrative act in question. The plaintiff submits that the administrative act of engaging J & G did not directly affect the complainant. Mr Osmond was not a party to the contract in question, was not a competitor and did not, at the time of the act of engaging J & G, have any legal or practical interests in the tyres. Rather, the complainant was affected by J & G’s unlawful conduct. As he was not directly affected by the administrative act, the defendant did not have jurisdiction to entertain his complaint in accordance with s 15(3a).
The defendant submits that the Ombudsman Act is remedial legislation and should be afforded a wide and liberal construction. The expression “directly affected” in s 15(3a) imposes a requirement that a causal relationship exists between the administrative act and its effect upon the complainant which is more than indirect or remote. The work to be performed by the adverb “directly” is the exclusion of the mere busybody. Understood in that sense, the complainant was directly affected by the council’s engagement of the sub-contractor. But for the administrative act, the tyres would not have been dumped on his property. In any event, even if the complainant was not “directly affected” for the purposes of s 15(3a), the defendant submits that does not affect the Ombudsman’s power to investigate the administrative act because he was empowered to investigate and report on his own initiative pursuant to s 13(2). The question for the Court in determining whether the Ombudsman had jurisdiction is a question of power, not a question of which power the Ombudsman had in contemplation at the time he exercised his power.
In my view, the Ombudsman Act must be construed in accordance with its text, context and purpose.[9] The Act confers on the Ombudsman extensive powers. As was observed in Botany Council v The Ombudsman[10] by Kirby P (as he then was), those powers are beneficial provisions designed in the public interest for the important object of improving public administration and increasing its accountability. They are not powers which the Court should read down other than as necessitated by the text. I can find no direct authority on the meaning of the expression “directly affected” in s 15(3a). In Adelaide Development Company Pty Ltd v Corporation of the City of Adelaide[11] Debelle J had to consider that expression in the context of the City of Adelaide Development Control Act 1976 (SA). He said:[12]
The resolution of this question turns on the meaning of the expression which is common to each provision, namely, “a Development that will directly affect, or has directly affected, an item of State heritage”.
The expression “will directly affect” in this context is not a term of art. It means to have an immediate effect upon or to have an immediate influence upon: see the definitions of “directly” and “affect” and “affected” in the Oxford English Dictionary and the Macquarie Dictionary. I am conscious that in attempting to define the expression, I am resorting to synonyms but the subsections are, I think, intended to apply when the proposal will produce an effect upon or have some consequence for an item of State heritage. The expression “will directly affect” suggests a causal relationship between the proposed development and a heritage item. The effect could be detrimental or beneficial. The word “directly” requires that the causal effect of the proposed development be direct or immediate: it is intended to exclude that which is indirect or remote.
[9] Plaintiff M70/2011 v Minister for Immigration and Citizenship & Anor [2011] HCA 32 per French CJ at [50], per Gummow, Hayne, Crennan and Bell JJ at [109], (2011) 244 CLR 144 per French CJ at 176 - 177, per Gummow, Hayne, Crennan and Bell JJ at 194; Commissioner of Taxation v Unit Trend Services Pty Ltd [2013] HCA 16 at [47], (2013) 87 ALJR 588 at 597.
[10] (1995) 37 NSWLR 357 at 367 - 368.
[11] (1991) 56 SASR 497.
[12] (1991) 56 SASR 497 at 511
The context of that legislation differs from the Ombudsman Act. Legislation that is more closely comparable to the Ombudsman Act was considered by the Ontario Supreme Court in Corporation of the Canadian Civil Liberties Association v Ontario Civilian Commission on Police Service.[13]That was a case of judicial review of a decision of the Ontario Civilian Commission on Police Services in which the Commission refused to deal with a complaint of police misconduct on the basis that the complainant was not a person directly affected by the conduct in issue. The relevant provision of the Police Services Act, RSO 1990 provided for complaints to the Commission about the conduct of a police officer. The complaint could only be made if the complainant was directly affected by the conduct. The Court cited with approval an earlier decision of the Alberta Court of Appeal which had construed the expression “directly affected”, relying on the interpretation of the same expression by Lord Hobhouse in Re Endowed Schools Act,[14] that the term points to “a personal and individual interest as distinct from a general interest which appertains to the whole community”. The Alberta Court of Appeal held that the words “directly affected” must mean more than “affected” and that the inclusion of the adverb signalled a legislative intent to further circumscribe a right of appeal. Nonetheless, that did not justify too restrictive an interpretation of the expression, given the broad public purpose of the legislation which was meant to protect the most vulnerable in society against the most powerful agents of the state. When considered in the context of the regulatory scheme, the Court reasoned that the right of appeal was confined to persons having a personal rather than a community interest in the matter. There had to be some direct link between the complainant and the police conduct the subject of the complaint that distinguished the complainant’s interest from that of any other member of the community.
[13] (2005) 260 DLR (4^th) 754.
[14] [1898] AC 477 at 483.
In my view, a similar approach to the construction of s 15(3a) should be adopted. Notwithstanding the broad powers conferred on the defendant by the Ombudsman Act, there can be no doubt that the legislative intention which underlies s 15(3a) is to restrict the power of the Ombudsman to undertake investigations on the basis of complaints by members of the public. The expression “directly affected” posits a causal relationship between the administrative act and its effect on the complainant. Plainly the requirement for a causal relationship is established by the word “affected”. The use of the adverb “directly” indicates that a causal nexus is not necessarily sufficient to come within the restriction imposed by s 15(3a). In this context it is a word of limitation. In my view, “directly” is used in contradistinction to “indirectly”. A member of the general public may be indirectly affected by an administrative act. Should that person bring a complaint to the Ombudsman, that causal relationship would not satisfy the test in s 15(3a). The boundary between a direct or indirect causal relationship for the purpose of s 15(3a) does not lend itself to precise definition. Whether the nature of the causal relationship between the administrative act and its effect on the complainant is found to be direct or indirect, will be a matter of fact and degree.
For the purposes of this application for judicial review, it is sufficient that I am satisfied that the complainant, Mr Osmond, was directly affected for the purpose of s 15(3a) by the administrative act of the plaintiff in engaging the sub-contractor, J & G, to dispose of the tyres which were at the Council depot. The administrative act had consequences. In my view it is entirely artificial to try, for the purpose of s 15(3a), to segregate the act from its consequences. He was affected by the Council’s decision because, but for the Council engaging J & G, J & G would not have deposited the tyres on his property. The dumping of the tyres on his property affected him in a manner that can be characterised as direct as opposed to indirect. The consequence of the Council’s decision resulted in the inconvenience and potential expense of the tyres remaining on his property. That represents a burden to which he was subject which did not afflict other members of the general public who might be concerned by the process and the consequence of the administrative act of the Council.
The construction contended for by the plaintiff is too restrictive. To confine the Ombudsman’s power of investigation in the way suggested so that the Ombudsman’s power to conduct an investigation is restricted to circumstances where the complainant was a party to the contract or a competitor for the contract or a person with some legal or practical interest in the tyres, at the time of the act of engaging the sub-contractor, would be to limit the wide powers conferred on the Ombudsman in a manner which is not consistent with the public interest the legislation is intended to serve. In any event, the complainant did have a practical interest in the tyres. They had been placed on his property. He did not want them on his property and was seeking a remedy by way of removal of the tyres from his property. In my view, that constitutes a practical interest in the tyres. It matters not that this practical interest in the tyres did not exist at the time the administrative act occurred given my view that this practical interest arose as a direct result of the Council awarding the contract to J & G.
Before leaving this issue I should make clear that had I not reached this view as to the construction of s 15(3a), I would have rejected the defendant’s submission that the Ombudsman’s investigation was within power, even if the complainant was not directly affected within the meaning of s 15(3a), because the Ombudsman was otherwise empowered to conduct an investigation of his own motion pursuant to s 13(2).
Section 13(2) provides:
The Ombudsman may make such an investigation either on receipt of a complaint or on the Ombudsman's own initiative and, where a complaint is made, the Ombudsman may investigate an administrative act notwithstanding that, on the face of it, the complaint may not appear to relate to that administrative act.
The defendant submits that the issue is whether he acted ultra vires. This is a question of power. If he was mistaken as to the power he was exercising but a relevant source of power was available elsewhere, the mistake is irrelevant and does not result in invalidity. In Johns v Australian Securities Commission,[15] Brennan J said: [16]
When a power is exercised, a mistake in the source of the power works no invalidity. Validity depends simply on whether a relevant power existed.
[Citation omitted].
[15] [1993] HCA 56, (1992 – 93) 178 CLR 408.
[16] [1993] HCA 56 at [18], (1992 – 93) 178 CLR 408 at 426.
In Australian Education Union v Department of Education and Children’s Services[17] French CJ, Hayne, Kiefel and Bell JJ said:[18]
A mistake by an administrative decision-maker as to the source of his or her power to make a decision does not necessarily invalidate the decision if it is able to be supported by another source of power. Whether it can be supported by the other source of power will depend upon whether that power is subject to requirements which the decision-maker has failed to meet because of his or her belief as to the source of the power or for some other reason.
[17] [2012] HCA 3, (2012) 248 CLR 1.
[18] [2012] HCA 3 at [34], (2012) 248 CLR 1 at 16 – 17.
Whether the Ombudsman’s investigation would have been empowered pursuant to s 13(2) if the Ombudsman had been mistaken in concluding that the complainant was directly affected by the administrative act, is a question of construction. In my view, the legislature has seen fit, pursuant to s 13(2), to confer upon the Ombudsman power to undertake investigations in two circumstances. First, where he considers an investigation should be undertaken of his own initiative. Secondly, where he receives a complaint. However, the second source of power to undertake an investigation is circumscribed by the terms of s 15(3a). A complaint is only sufficient to enliven the Ombudsman’s powers of investigation if the complainant is directly affected by the administrative act to which the complaint relates. The Ombudsman Act must be read as a whole. The Parliament having qualified the Ombudsman’s power to investigate on receipt of a complaint in this way, the Ombudsman cannot rely on the alternate source of power found in s 13(2) where the Ombudsman mistakenly relies upon the power to investigate enlivened by a complaint. To interpret the Act otherwise would render the source of power founded on receipt of a complaint otiose. This is not a case of the Ombudsman mistakenly thinking he was empowered to investigate pursuant to one statutory provision when the power was conferred by another statutory provision. The power to investigate is conferred by s 13(2) only. That power is qualified by the provisions of s 15(3a). If the condition precedent to the exercise of the power of investigation founded in a complaint does not exist, the Ombudsman cannot validate the investigation subsequently by recourse to the alternate source of power in s 13(2).
Did the Ombudsman have regard to irrelevant considerations or fail to have regard to relevant considerations?

The plaintiff submits that the report is invalid by reason of the Ombudsman failing to take relevant considerations into account and/or taking irrelevant considerations into account in reaching his decision.
These grounds of judicial review allege errors of law. These grounds involve the concept of jurisdictional error enunciated in Minister for Immigration and Multicultural Affairs v Yusuf[19] and Craig v State of South Australia.[20]
[19] [2001] HCA 30, (2001) 206 CLR 323.
[20] [1995] HCA 58, (1995) 184 CLR 163.
It is convenient to deal with both of these grounds of review together.
The plaintiff submits the defendant failed to take three matters into account which were relevant. First, in concluding that it was wrong for the Council not to make some inquiry as to what approvals were in place for the storage of the tyres by J & G and where and how J & G would recycle the tyres, he failed to consider the nature of the contract and the Council’s obligations to make inquiries, the information that was available to the Council including the statement in the price list issued by J & G that “all waste tyres go to CY International Group P/L (based in China)”, the fact the price list also included an EPA licence number evidencing the fact that J & G held a licence to transfer waste issued by the EPA, and that invoices issued by J & G included waste tracking numbers. Second, that in concluding that the Council had acted wrongly by breaching its policy which required all purchases to be compliant with the requirements of relevant legislation, the Ombudsman failed to consider the whole of the procurement procedures policy and the Council’s submission that he had misinterpreted the reference which only required the Council to comply with relevant legislation when undertaking purchases rather than imposing an obligation on the Council to investigate whether a third party service provider would comply with all relevant legislation. Thirdly, in recommending pursuant to s 25(2) that the Council collect the tyres from the Burton property and deal with them appropriately, the Ombudsman failed to consider that the Council had no title to the tyres, that it had no legal right to enter the complainant’s property to collect the tyres, and that it was not appropriately licensed to transfer and dispose of the tyres.
Further, the plaintiff submits that the defendant in reaching his decision took irrelevant considerations into account. Those irrelevant considerations concerned earlier investigations the Ombudsman had conducted into acts of the Salisbury and Playford councils in entering into contracts with J & G for the disposal of tyres and the subsequent response of those councils to the Ombudsman’s report recommending that those councils collect the tyres they had authorised to be transferred by J & G from the complainant’s property and deal with them appropriately.
The defendant submits that this ground of judicial review is misconceived. It submits that the starting point for consideration of the relevant and irrelevant considerations grounds of review is to ask what are the matters that the legislature has determined the decision maker must have regard to in arriving at its decision, or alternatively, what are the matters that the legislature has determined that the decision maker must not have regard to in arriving at its decision. Such conditions on the exercise of power can be express or implied. However, unless the decision maker has failed to have regard to considerations that the legislature has mandated it must consider, or alternatively, the decision maker has considered matters that the legislature has mandated it must not consider, no proper ground exists for the Court to make any finding of invalidity in relation to the impugned decision. The defendant submits that none of the matters the defendant is alleged to have failed to consider were relevant considerations in this sense. Equally, the defendant submits that none of the matters the defendant is alleged to have wrongly considered were irrelevant considerations in this sense.
In Minister for Aboriginal Affairs v Peko-Wallsend Ltd[21] Mason J (as he then was) enunciated the criteria relevant to these grounds of jurisdictional error. He said:[22]
The ground of failure to take into account a relevant consideration can only be made out if a decision-maker fails to take into account a consideration which he is bound to take into account in making that decision…
What factors a decision-maker is bound to consider in making the decision is determined by construction of the statute conferring the discretion. If the statute expressly states the considerations to be taken into account, it will often be necessary for the court to decide whether those enumerated factors are exhaustive or merely inclusive. If the relevant factors — and in this context I use this expression to refer to the factors which the decision-maker is bound to consider — are not expressly stated, they must be determined by implication from the subject-matter, scope and purpose of the Act. In the context of judicial review on the ground of taking into account irrelevant considerations, this Court has held that, where a statute confers a discretion which in its terms is unconfined, the factors that may be taken into account in the exercise of the discretion are similarly unconfined, except in so far as there may be found in the subject-matter, scope and purpose of the statute some implied limitation on the factors to which the decision-maker may legitimately have regard … where the ground of review is that a relevant consideration has not been taken into account and the discretion is unconfined by the terms of the statute, the court will not find that the decision-maker is bound to take a particular matter into account unless an implication that he is bound to do so is to be found in the subject-matter, scope and purpose of the Act.
[Citations omitted].
[21] [1986] HCA 40, (1985 – 1986) 162 CLR 24.
[22] [1986] HCA 40 at [15], (1985 – 1986) 162 CLR 24 at 39 – 40.
Section 13 of the Ombudsman Act prescribes the matters which the Ombudsman may investigate. Section 13 is in the following terms:
13—Matters subject to investigation
(1)Subject to this Act, the Ombudsman may investigate any administrative act.
(2) The Ombudsman may make such an investigation either on receipt of a complaint or on the Ombudsman's own initiative and, where a complaint is made, the Ombudsman may investigate an administrative act notwithstanding that, on the face of it, the complaint may not appear to relate to that administrative act.
(3) The Ombudsman must not investigate any administrative act where—
(a) the complainant is provided in relation to that administrative act with a right of appeal, reference or review to a court, tribunal, person or body under any enactment or by virtue of Her Majesty's prerogative; or
(b) the complainant had a remedy by way of legal proceedings,
unless the Ombudsman is of the opinion that it is not reasonable, in the circumstances of the case, to expect that the complainant should resort or should have resorted to that appeal, reference, review or remedy.
(3a) The ability to lay a complaint for disciplinary action against a person is to be disregarded for the purposes of subsection (3).
(4) The Ombudsman may investigate any administrative act, notwithstanding any enactment that provides that that administrative act is final or not to be appealed against, challenged, reviewed, quashed or called into question.
“Administrative act” is defined in s 3 as follows:
(a) an act relating to a matter of administration on the part of an agency to which this Act applies or a person engaged in the work of such an agency; or
(b) an act done in the performance of functions conferred under a contract for services with the Crown or an agency to which this Act applies,
but does not include—
(c) an act done in the discharge of a judicial authority; or
(d) an act done by a person in the capacity of legal adviser to the Crown or an agency to which this Act applies; or
(e) an act of a class declared by the regulations not to be an administrative act for the purposes of this definition;
Section 25 prescribes the powers exercisable by the Ombudsman upon the completion of an investigation pursuant to s 13. Section 25 provides:
(1) This section applies to any investigation conducted by the Ombudsman as a result of which the Ombudsman is of the opinion that the administrative act to which the investigation relates—
(a)     appears to have been made contrary to law; or
(b)     was unreasonable, unjust, oppressive or improperly discriminatory; or
(c)     was in accordance with a rule of law or a provision of an enactment or practice that is or may be unreasonable, unjust, oppressive or improperly discriminatory; or
(d)     was done in the exercise of a power or discretion and was so done for an improper purpose or on irrelevant grounds or on the taking into account of irrelevant considerations; or
(e)     was done in the exercise of a power or discretion and the reasons for the act were not but should have been given; or
(f)      was based wholly or in part on a mistake of law or fact; or
(g)     was wrong.
(1a) This section does not apply to an investigation conducted under section 14.
(2) In the case of an investigation to which this section applies in which the Ombudsman is of the opinion—
(a)     that the subject matter of the investigation should be referred back to the appropriate agency for further consideration; or
(b)     that action can be, and should be, taken to rectify, or mitigate or alter the effects of, the administrative act to which the investigation related; or
(c)     that the practice in accordance with which the administrative act was done should be varied; or
(d)     that any law in accordance with which or on the basis of which the action was taken should be amended or repealed; or
(e)     that the reason for any administrative act should be given; or
(f)      that any other steps should be taken,
the Ombudsman must report that opinion and the reasons for it to the principal officer of the relevant agency and may make such recommendations as the Ombudsman thinks fit.
…
Section 14 concerns the referral of matters for investigation by the Parliament. It has no application to this matter.
In my view, the defendant’s submission must be accepted. In deciding these grounds, the limited role of the Court on judicial review must be borne in mind. It is not the function of the Court to prescribe for the decision maker what it considers are relevant and irrelevant considerations in the exercise of the decision maker’s jurisdiction except to the extent that the terms of the statute conferring that jurisdiction delineates those considerations which the decision maker is bound to consider or disregard. The role of the Court is to identify the limits on the exercise of the decision maker’s jurisdiction and a reasonable decision, in the Wednesbury sense, made within those boundaries cannot be impugned.[23] The terms of the Ombudsman Act, and in particular sections 13 and 25, neither expressly nor impliedly, conditions the exercise of the Ombudsman’s jurisdiction in the manner for which the plaintiff contends. The matters the plaintiff submits the defendant failed to consider are matters which it was open to the Ombudsman to consider in the exercise of his discretion in reaching his decision, but he was not bound to do so. Likewise, the matters the plaintiff submits the defendant wrongly considered are matters which he was not prohibited from considering by the terms, express or implied, of the statute. The Ombudsman’s discretion is unconfined by the terms of the Act. There is nothing in the subject matter, scope and purpose of the Act which binds the Ombudsman to consider those matters the plaintiff alleges are relevant or binds him not to consider those matters the plaintiff alleges are irrelevant. Accordingly, no error of law occurred.
Was the Ombudsman’s report tainted by Wednesbury unreasonableness?
[23] Minister for Aboriginal Affairs v Peko-Wallsend Ltd [1986] HCA 40 at [15], (1985 – 1986) 162 CLR 24 per Mason J at 40 – 41.
The plaintiff submits the defendant’s decision is unreasonable in the Wednesbury sense. It does so on two bases. First, on the basis that it is plainly unreasonable to require the plaintiff to enter the complainant’s property, to which it has no automatic right of entry, to remove tyres to which it has no legal right, and which are owned by another. Second, on the basis that no reasonable authority could have decided that the Council’s contracts and tendering policy and procurement procedures required it to ascertain before engaging a third party contractor, that the manner in which the contractor would conduct its business complied with the requirements of relevant legislation.
The defendant denies that his decision was tainted by Wednesbury unreasonableness. He submits that his recommendations cannot be construed as requiring the Council to act unlawfully. There was no impediment to the Council making arrangements for the lawful collection and disposal of the tyres as was done by the Salisbury and Playford councils. Further, the Council’s policy was open to two interpretations. Whether the interpretation adopted by the Ombudsman is preferable or not, is not a matter which warrants this Court’s intervention. It was open to the Ombudsman to interpret the Council’s policy in the manner that he did. He did not fall into Wednesbury unreasonableness by doing so.
The High Court has recently considered the principles applicable to the test of Wednesbury unreasonableness in Minister for Immigration and Citizenship v Li.[24]French CJ said:[25]
In Wednesbury Corporation, Lord Greene MR observed that the word “unreasonable” in administrative law was used to encompass failure by a decision-maker to obey rules requiring proper application of the law, consideration of mandatory relevant matters and exclusion from consideration of irrelevant matters: “If he does not obey those rules, he may truly be said, and often is said, to be acting ‘unreasonably’.” That kind of unreasonableness may be taken to encompass unreasonableness from which an undisclosed underlying error may be inferred.
Beyond unreasonableness expressive of particular error however, it is possible to say, as Lord Greene MR said, that although a decision-maker has kept within the four corners of the matters it ought to consider “they have nevertheless come to a conclusion so unreasonable that no reasonable authority could ever have come to it”. In such a case the court may interfere. That limiting case can be derived from the framework of rationality imposed by the statute. As explained by Lord Greene MR, it reflects a limitation imputed to the legislature on the basis of which courts can say that parliament never intended to authorise that kind of decision. After all the requirements of administrative justice have been met in the process and reasoning leading to the point of decision in the exercise of a discretion, there is generally an area of decisional freedom. Within that area reasonable minds may reach different conclusions about the correct or preferable decision. However, the freedom thus left by the statute cannot be construed as attracting a legislative sanction to be arbitrary or capricious or to abandon common sense.
[Citations omitted].
[24] [2013] HCA 18, (2013) 87 ALJR 618.
[25] [2013] HCA 18 at [27] – [28], (2013) 87 ALJR 618 at 630.
Hayne, Kiefel and Bell JJ said:[26]
The legal standard of unreasonableness should not be considered as limited to what is in effect an irrational, if not bizarre, decision – which is to say one that is so unreasonable that no reasonable person could have arrived at it – nor should Lord Greene MR be taken to have limited unreasonableness in this way in his judgment in Wednesbury. This aspect of his Lordship’s judgment may more sensibly be taken to recognise that an inference of unreasonableness may in some cases be objectively drawn even where a particular error in reasoning cannot be identified…
In Peko-Wallsend, Mason J, having observed that there was considerable diversity in the application by the courts of the test of manifest unreasonableness, suggested that “guidance may be found in the close analogy between judicial review of administrative action and appellate review of a judicial discretion”. House v The King holds that it is not enough that an appellate court would have taken a different course. What must be evident is that some error has been made in exercising the discretion, such as where a judge acts on a wrong principle or takes irrelevant matters into consideration. The analogy with the approach taken in an administrative law context is apparent.
As to the inferences that may be drawn by an appellate court, it was said in House v The King that an appellate court may infer that in some way there has been a failure properly to exercise the discretion “if upon the facts [the result] is unreasonable or plainly unjust”. The same reasoning might apply to the review of the exercise of a statutory discretion, where unreasonableness is an inference drawn from the facts and from the matters falling for consideration in the exercise of the statutory power. Even where some reasons have been provided, as is the case here, it may nevertheless not be possible for a court to comprehend how the decision was arrived at. Unreasonableness is a conclusion which may be applied to a decision which lacks an evident and intelligible justification.
[Citations omitted].
[26] [2013] HCA 18 at [68], [75] – [76], (2013) 87 ALJR 618 at 638, 639 - 640.
Gageler J said:[27]
“It is, of course, true that, as a measure in fact of time, space, quantity and conduct, reasonableness is a concept deeply rooted in the common law: and so, in such cases, is the power of a court to say whether a particular decision of that fact is or is not within the bounds of reason.” Review by a court of the reasonableness of a decision made by another repository of power “is concerned mostly with the existence of justification, transparency and intelligibility within the decision-making process” but also with “whether the decision falls within a range of possible, acceptable outcomes which are defensible in respect of the facts and law”.
The label “Wednesbury unreasonableness” indicates “the special standard of unreasonableness which has become the criterion for judicial review of administrative discretion”. Expression of the Wednesbury unreasonableness standard in terms of an action or decision that no reasonable repository of power could have taken “attempts, albeit imperfectly, to convey the point that judges should not lightly interfere with official decisions on this ground”.
[27] [2013] HCA 18 at [105] – [106], (2013) 87 ALJR 618 at 644.
At the relevant time the Council had a “contracts and tendering policy” that listed eight principles as guidelines for the purchase of all goods and services by the Council. Those principles included an obligation that there be compliance with the requirements of relevant legislation.
The Ombudsman found that the relevant administrative act was wrong within the meaning of s 25(1)(g) of the Ombudsman Act because it breached that policy.
In my view this opinion is tainted by Wednesbury unreasonableness. This opinion is the foundation for the Ombudsman’s recommendation that the Council collect the tyres from the Burton property and deal with them appropriately.
In my view the Ombudsman’s opinion does not fall within a range of possible, acceptable outcomes which are defensible in respect of the facts and law. This conclusion lacks an evident and intelligible justification. The Ombudsman concluded that the administrative act of the Council in engaging J & G to dispose of the tyres was wrong. The basis of that conclusion is that it breached the Council’s policy that in purchasing goods and services the Council comply with the requirements of relevant legislation, requiring the Council to ascertain what, if any, approvals J & G had obtained for the transportation and disposal of the tyres.[28] No reasonable person could have reached this conclusion. This is not a case of the Council’s policy being open to two interpretations, one of which was favoured by the Ombudsman. The construction of the policy adopted by the Ombudsman is not open. It is not a construction which a reasonable mind could reach. The obligation assumed by the Council that in relation to its contracts and tendering it comply with the requirements of relevant legislation cannot be understood to impose an obligation on the Council, and more particularly its staff, to undertake inquiries for the purpose of ascertaining whether entities who might tender for Council contracts comply with relevant laws in the conduct of their business. Given the numerous contracts the Council would enter from time to time, the fact that such contracts might be for the provision of goods or the supply of services, or both, the vast difference in the contract prices involved, the difficulty in establishing the internal business practices of third parties tendering for Council contracts and the significant strain on Council resources that would involve, none of which it is under any legal obligation to undertake, in circumstances where its power to do so is questionable, no reasonable person would construe the Council policy in this way. Particularly when the obvious alternative construction open is that the policy adopted by Council obliges the Council to comply with relevant legislation when purchasing goods and services.
[28] Defendant’s Report 1 May 2013 paragraphs 14 and 15.

The unreasonableness of this conclusion is compounded by the defendant’s recommendation that the plaintiff collect the tyres it authorised to be transported by J & G, from the Burton property, and deal with them appropriately.[29] Given that tyres have been dumped by J & G on the Burton property from the plaintiff’s depot as well as depots operated by the Salisbury and Playford councils, the plaintiff is in no position to be able to identify which tyres dumped on the Burton property have come from its depot.
[29] Defendant’s Report 1 May 2013 page 4 concluding paragraph.
Accordingly, I am satisfied that the defendant’s decision is unreasonable and should be set aside on that basis.
In arriving at this conclusion I should make clear that I do not accept the plaintiff’s submission that the recommendation made by the defendant is unreasonable on the basis that it required the Council to act unlawfully. This submission is specious. There is no reason to consider that the complainant, the registered proprietor, would refuse permission to the Council to enter the Burton property for the purpose of removing the tyres. After all that was his very purpose in complaining to the Ombudsman. Secondly, I consider arguments predicated on the ownership of the tyres to be ill founded. Whoever strictly speaking may have title to the tyres is irrelevant. The Council had possession of the tyres because they had been disposed of by their owners as rubbish. Whether title in the tyres passed to the Council as a consequence seems to me to be immaterial. Likewise the question of whether title in the tyres might have passed from the Council to J & G in that event is equally immaterial. Whoever had title to the tyres prior to them disposing of them to the Council as rubbish intended that the Council could deal with them as the Council saw fit. There is nothing in this point.
Nonetheless, for the reasons set out above, the Ombudsman’s opinion and recommendation contained in its report should be set aside.
Conclusion
I would make a declaration that the Ombudsman’s report of 1 May 2013 containing his opinion and recommendation is ultra vires and make an order in the nature of certiorari removing the Ombudsman’s opinion and recommendation contained in his report of 1 May 2013 into this Court for the purpose of quashing it.

[2014] SASC 36

Key Legal Topics

Areas of Law

Administrative Law

Legal Concepts

Jurisdictional Error

Judicial Review

Natural Justice & Procedural Fairness