King v Ombudsman

Case [2020] SASCFC 90

Supreme Court of South Australia

(Full Court)

KING v OMBUDSMAN & ANOR

[2020] SASCFC 90

Judgment of The Full Court

(The Honourable Justice Parker, The Honourable Justice Doyle and The Honourable Auxiliary Justice Tilmouth)

15 September 2020

ADMINISTRATIVE LAW - THE OMBUDSMAN - REVIEW OF OMBUDSMAN'S DECISIONS

ADMINISTRATIVE LAW - THE OMBUDSMAN - JURISDICTION

ADMINISTRATIVE LAW - JUDICIAL REVIEW - GROUNDS OF REVIEW - JURISDICTIONAL MATTERS

COURTS AND JUDGES - COURTS - JURISDICTION AND POWERS - GENERAL PRINCIPLES

The appellant (Mr King) sought judicial review in relation to both a completed investigation and report of the first respondent (the Ombudsman) (the 2016 Investigation), and the Ombudsman’s consideration of some additional complaints that had the potential to lead to a further investigation (the 2017 Investigation).

Both the completed 2016 Investigation and the potential 2017 Investigation concerned the conduct of Mr King in his capacity as General Manager of the Anangu Pitjantjatjara Yankunytjatjara (the APY) being an office created under the Anangu Pitjantjatjara Yanjunytjatjara Land Rights Act 1981 (SA) (the APY Act) and hence an agency for the purposes of the Ombudsman Act 1972 (SA). The second defendant was the named complainant in respect of both investigations. He is an Anangu person and member of the APY, and was until April 2017 the Chairperson of the Executive Board.

The complaints by Mr Adamson that triggered the 2016 Investigation raised three matters.  In his report following this investigation, the Ombudsman dismissed the complaints in respect of the second and third matters.  However, in respect of the first matter (that is, whether Mr King erred in failing to provide copies of the handwritten notes of certain Executive Board meetings to Mr Adamson), the Ombudsman found that Mr King had acted in a manner that was “wrong”.  The Ombudsman also made a finding that Mr King failed to cooperate with the investigation in a timely manner and to provide documentation as requested of him.

The potential 2017 Investigation arose as a result of a complaint made in the name of Mr Adamson in May 2017.  The complaint related to Mr King’s conduct in respect of a special general meeting of the APY in March 2017.  The Ombudsman has not yet determined whether to conduct an investigation into these matters.

In these judicial review proceedings, Mr King sought relief in respect of both the 2016 Investigation and the 2017 Investigation.  As to the former, he sought various forms of relief, including a declaration that the Ombudsman had no jurisdiction to conduct the 2016 Investigation, and an order in the nature of certiorari setting aside the Ombudsman’s report in respect of that investigation.  As to the latter, he sought relief including a declaration that the Ombudsman had no jurisdiction to conduct the 2017 Investigation, and an injunction preventing the Ombudsman from taking any further action in respect of that investigation.

In respect of the 2016 Investigation, Mr King contended that the Ombudsman had no jurisdiction to investigate the complaints by reason of s 13(3)(a) of the Ombudsman…

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King v Ombudsman [2020] SASCFC 90
Case
[2020] SASCFC 90
Decision Date

CaseChat Overview and Summary

This case concerned an appeal brought by Mr King against decisions made by the Ombudsman. The dispute arose from complaints made by Mr Adamson regarding Mr King's conduct, specifically concerning access to meeting minutes and the accuracy of those minutes. Mr Adamson also raised issues about the convening of a special general meeting. The Ombudsman conducted an investigation into these matters.

The legal issues before the court were whether the Ombudsman had acted within its jurisdiction in conducting the 2016 investigation and a proposed 2017 investigation, and whether the Ombudsman's decisions in relation to these investigations were amenable to judicial review. A key aspect of the appeal involved whether certain allegations made by Mr Adamson constituted fresh complaints requiring a new investigation under the relevant Act.

The court reasoned that the allegations concerning the 8 March 2017 meeting were not a fresh complaint but rather a response to Mr King's explanation regarding the failure to convene a special general meeting. These allegations were considered to shed light on the merit of the earlier complaints. Consequently, the court found that section 16(1) of the Ombudsman Act, which deals with fresh complaints, did not apply. The court rejected the challenges made by Mr King to both the 2016 and the proposed 2017 investigations.

The appeal was dismissed. While the Ombudsman was partially successful on matters raised in its notice of contention, no specific orders were made in that regard.

Orders

Orders of the court

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Background

Background to the litigation

It is convenient to commence by addressing the matters raised in the notice of contention. However, before doing so, it is appropriate to summarise the factual context and legislative framework within which the various issues must be considered.Factual background In September 2016, there were disagreements between Mr Adamson and Mr King about various matters that had been raised at the meetings of the Executive Board of the APY during August and September of that year, including as to the accuracy of the minutes of those meetings that had been prepared by Mr King, and as to Mr Adamson’s ability to access some handwritten notes of those meetings.Commencement of the 2016 Investigation The process leading to the Ombudsman’s 2016 Investigation (which was designated with the reference number 2016/07614) commenced with a letter dated 23 September 2016 from Mr Adamson as Chairperson of the Executive Board, sent by email on that same day to an assessment officer within the Ombudsman’s office, Ella King. The letter focussed upon an allegation that Mr Adamson had been refused access by Mr King to the handwritten “minutes” of the Executive Board; and that Mr King had said that Mr Adamson could look at them but refused to give him copies. It was said that the minutes of the 7 September 2016 meeting were crucial to enable implementation of governance resolutions made that day. By further email to Ms King dated 26 September 2016, Mr Adamson attached a letter of the same date from him, reiterating his complaint. By email to Ms King dated 30 September 2016, Mr Adamson attached a letter of the same date, signed by Mr Adamson and advising that Brouss Chambers was assisting him with “these matters.” The Ombudsman’s office sought, and subsequently received (by email from Mr Chambers on 11 October 2016), a signed “authority to act” dated 10 October 2016, authorising Mr Chambers to act on Mr Adamson’s behalf regarding the complaint against Mr King and the Ombudsman’s investigation of “APY Executive matters”. On 6 October 2016, representatives of the Ombudsman met with Mr King and discussed Mr Adamson’s complaint. The notes of that meeting suggest that Mr King’s position was that while Mr Adamson could view the handwritten minutes of the Executive Board meetings, he could not have a copy of them. By further letter dated 10 October 2016 from Mr Adamson to Ms King of the Ombudsman’s office, Mr Adamson expanded upon his complaint. He explained why he considered access to the minutes was necessary for him to fulfil his role as Chairperson of the Executive Board. He also asserted that the version of the minutes circulated and published contained inaccuracies (including in relation to the resolutions arising out of his August report), and challenged aspects of the processes or procedures adopted at meetings of the Board. By email dated 13 October 2016 from Mr Chambers to Ms King, Mr Chambers provided some additional information on behalf of Mr Adamson in relation to his complaints. Mr Adamson did likewise by further email dated 25 October 2016.

Evidence

Evidence Before The Court

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Decision

Reasons for decision

While the allegations about Mr King’s conduct at the 8 March 2017 meeting of the Executive Board were fresh allegation of fact, they were a response to Mr King’s purported answer to Mr Adamson’s earlier complaints concerning the failure to convene the requisitioned special general meeting; namely, that the special general meeting had not been validly convened because the requisition had not been tabled at a meeting of the Executive Board. The fresh allegations of fact by Mr Adamson related to the circumstances in which the requisition had in fact been tabled at the Executive Board meeting on 8 March 2017. The significance of these allegations lay in their capacity to shed new light on the merit of the earlier complaints that had been made in relation to the failure by Mr King to convene a special general meeting. They were not intended as, or treated as, a fresh complaint for the purposes of the Ombudsman Act. As such, there was no occasion for the operation of s 16(1) of that Act.Conclusion For the reasons set out, I have rejected each of the challenges made by the appellant to the 2016 Investigation and the proposed 2017 Investigation. I would therefore dismiss the appeal. While the first respondent has been partially successful in the matters raised in its notice of contention, I do not consider it necessary to make any orders in that respect. TILMOUTH AJ: I agree with the orders proposed by Doyle J for the reasons given by him.

Ratio Decidendi

Legal Principle Established

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