King v Ombudsman - [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 Act, which proscribes any investigation of an administrative act in respect of which the complainant has a right of appeal, reference or review under an enactment. In the alternative, Mr King contended that the Ombudsman otherwise fell into jurisdictional error in making the two adverse findings referred to above by reason either that he failed to have regard to relevant considerations, or that the findings were unreasonable.
In respect of the 2017 Investigation, Mr King contended that the Ombudsman had no jurisdiction to entertain the complaints by reason of s 15(3a) of the Ombudsman Act (which requires that the complaint be made by a person directly affected by the administrative act complained of) and/or s 16(1) of that Act (which requires that the complaint be made within 12 months from notice of the matter complained of).
In defending the claim for judicial review, the respondents contended that the claim must fail on the ground that the Ombudsman’s powers of investigation and report under the Ombudsman Act are not amenable to judicial review, or in the alternative on the basis that Mr King is not entitled to the relief sought. In the alternative, the respondents contended that the claim must fail on the basis that Mr King has not established any of the contended jurisdictional errors.
The primary judge dismissed the proceedings on the grounds that none of the contended jurisdictional errors has been established. Her Honour did not consider it necessary to determine the respondents’ contentions that the Ombudsman’s findings were not amenable to judicial review, or that Mr King was not entitled to the relief sought.
On appeal, Mr King challenges the primary judge’s dismissal of his claim for judicial review. He relies upon grounds which allege error by the primary judge in respect of both Investigations. In respect of the 2016 Investigation, the grounds of appeal allege that her Honour erred both inholding that the Ombudsman was not prevented by s 13(3)(a) of the Ombudsman Act from investigation, and that the Ombudsman’s adverse findings were not affected by jurisdictional error. In respect of the 2017 Investigation, the grounds of appeal allege that her Honour erred in not holding that she was prohibited from entertaining the complaints by s 15(3a) and/or s 16(1) of the Ombudsman Act.
The Ombudsman filed a notice of contention in which he contends that the Ombudsman’s powers of investigation and report under the Ombudsman Act are not amenable to review and/or that Mr King is not entitled to the relief sought.
Per Doyle J (Parker J and Tilmouth AJ agreeing):
1. Discussion of the amenability of the Ombudsman’s functions and powers to judicial review, including under s 28 of the Ombudsman Act, and the potentially available relief.
2.      Relief in the nature of certiorari will not ordinarily be available to quash an Ombudsman’s report.
3. However, the formation and reporting of adverse findings of the type contemplated by s 25(1) of the Ombudsman Act are nevertheless conditioned by the usual implied constraints, albeit the available relief would ordinarily be confined to declaratory or injunctive relief.
4. The Court’s jurisdiction under s 28 of the Ombudsman Act is confined to questions relating to whether the Ombudsman has jurisdiction to conduct a particular investigation, as opposed to the manner in which it is thereafter conducted.
5.      As to Mr King’s challenges to the 2016 Investigation:
a. The Court has jurisdiction under s 28 of the Ombudsman Act to determine whether s 13(3)(a) of that Act prevented the Ombudsman conducting the investigation. However, Mr King has not established either that Mr Adamson had a relevant right of reference or review, or that any such right was “under an enactment”.
b.      Mr King has not established that the Ombudsman either failed to take into account a relevant consideration in making the adverse findings, or that they were otherwise unreasonable.
6.      As to Mr King’s challenges to the 2017 Investigation:
a. The Court also has jurisdiction under s 28 of the Ombudsman Act to determine the questions raised by these challenges.
b. Mr Adamson was the complainant, and was “directly affected”, for the purposes of s 15(3a), such that the Ombudsman was not prevented by that section from entertaining the complaint.
c. The complaint was not barred by reason of it being made too late under s 16(1) of the Ombudsman Act.
7.      Appeal dismissed.
Anangu Pitjantjatjara Yankunytjatjara Land Rights Act 1981 (SA) ss 5(1), 6(2)(j), 8(4)(a), 12F(1), 12F(2), 12F(5), 13D, 13G(1)(c), 13G(4)(b), 13H(1), 13M; Independent Commissioner Against Corruption Act 2012 (SA) ss 14A, 14B; Judicial Review Act 1991 (Qld) s 4(a); Local Government Act 1999 (SA) s 273; Ombudsman Act 1972 (SA) s 150(1)(d), referred to.
Ainsworth v Criminal Justice Commission (1992) 175 CLR 564; City of Port Adelaide Enfield v Bingham (2014) 119 SASR 1; Hot Holdings Pty Ltd v Creasy (1996) 185 CLR 149; Kaldas v Barbour (2017) 326 FLR 122; R v Collins; Ex parte ACTU-Solo Enterprises Pty Ltd (1976) 50 ALJR 471, discussed.
Acquista Investments Pty Ltd v Urban Renewal Authority (2015) 123 SASR 147; Ainsworth v The Ombudsman (1988) 17 NSWLR 276; Apache Northwest Pty Ltd v Agostini (No 2) [2009] WASCA 231; Botany Council v The Ombudsman (unreported, Supreme Court of NSW, Spender AJ, 16 June 1995); Boyd v Ombudsman [1983] 1 NSWLR 620; Briginshaw v Briginshaw (1938) 60 CLR 336; Commissioner of Police v The Ombudsman (unreported, Supreme Court of NSW, Sackville AJ, 9 September 1994); Griffith University v Tang (2005) 221 CLR 99; King v Ombudsman [2018] SASC 155; Kirk v Industrial Court (NSW) (2010) 239 CLR 531; L v The State of South Australia (2017) 129 SASR 180; Minister for Aboriginal Affairs v Peko-Wallsend Limited (1986) 162 CLR 24; Minister for Immigration and Border Protection v Eden (2016) 240 FCR 158; Minister for Immigration and Border Protection v MZYTS (2013) 230 FCR 431; Minister for Immigration and Citizenship v Li (2013) 249 CLR 332; Patsalis v State of New South Wales (2012) 81 NSWLR 742; R v Toohey; Ex parte Northern Land Council (1981) 151 CLR 170; Reg. v. Criminal Injuries Compensation Board; Ex pane Lain [1967] 2 Q.B. 864; Salisbury City Council v Biganovsky (1990) 54 SASR 117; Xenophon v The State of South Australia (2000) 78 SASR 251, considered.

KING v OMBUDSMAN & ANOR
[2020] SASCFC 90
Full Court: Parker & Doyle JJ and Tilmouth AJ

PARKER J: I would dismiss the appeal. I agree with the reasons of Doyle J.
DOYLE J: At first instance, 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 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 pursuant to s 13D of the Anangu Pitjantjatjara Yankunytjatjara Land Rights Act 1981 (SA) (the APY Act).
The APY is a body corporate pursuant to s 5(1) of the APY Act, and holds the freehold title to the APY lands in the far northwest of South Australia on behalf of its members. The Executive Board of the APY consists of up to 14 members elected or appointed in accordance with the APY Act. It oversees decisions that are made at General Meetings of the APY in relation to the development, use and management of the APY lands.
The second defendant (Mr Adamson) is an Anangu person and member of the APY, and was at relevant times the Chairperson of the Executive Board. He ceased to be the Chairperson, and a member of the Executive Board, in April 2017. He was the named complainant in respect of both the 2016 and 2017 Investigations.
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 the General Manager, 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” within the meaning of s 25(1)(g) of the Ombudsman Act 1972 (SA). 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, and prior to the completion of the 2016 Investigation. The complaint related to Mr King’s conduct in relation to the requisitioning 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 Act, which proscribes any investigation of an administrative act in respect of which the complainant has a right of appeal, reference or review under an enactment. In the alternative, Mr King contended that the Ombudsman otherwise fell into jurisdictional error in making the two adverse findings referred to above by reason either that he failed to have regard to relevant considerations, or that the findings were unreasonable.
In respect of the 2017 Investigation, Mr King contended that the Ombudsman had no jurisdiction to entertain the complaints by reason of s 15(3a) of the Ombudsman Act (which requires that the complaint be made by a person directly affected by the administrative act complained of) and/or s 16(1) of that Act (which requires that the complaint be made within 12 months from notice of the matter complained of).
In defending the claim for judicial review, the respondents contended that the claim must fail on the ground that the Ombudsman’s powers of investigation and report under the Ombudsman Act are not amenable to judicial review (whether under s 28 of the Ombudsman Act or otherwise), or on the ground that Mr King is not entitled to the relief sought. In the alternative, the respondents contended that the claim must fail on the basis that Mr King has not established any of the contended jurisdictional errors.
At first instance, Kelly J dismissed the proceedings on the basis that none of the contended jurisdictional errors had been established. Her Honour did not consider it necessary to determine the respondents’ contentions that the Ombudsman’s findings were not amenable to review, or that Mr King was not entitled to the relief sought.
In this appeal, Mr King challenges Kelly J’s dismissal of his claim for judicial review. He relies upon grounds which allege error by Kelly J in respect of both the 2016 Investigation and the 2017 Investigation. In respect of the 2016 Investigation, the grounds of appeal allege that her Honour erred both in holding that the Ombudsman was not prevented by s 13(3)(a) of the Ombudsman Act from investigation, and that the Ombudsman’s adverse findings were not otherwise affected by jurisdictional error. In respect of the 2017 Investigation, the grounds of appeal allege that her Honour erred in not holding that the Ombudsman was prohibited from entertaining the complaints by reason of s 15(3a) and/or s 16(1) of the Ombudsman Act.
The Ombudsman has filed a notice of contention in which he contends that the Ombudsman’s powers of investigation and report under the Ombudsman Act are not amenable to review and/or that Mr King is not entitled to the relief sought.
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.
The evidence includes a document entitled “Investigation Plan”, apparently prepared by Charmaine Zwolak, an officer from the Ombudsman’s office, dated 1 November 2016. It contains a summary of the content of the complaints made by or on behalf of Mr Adamson, the communications that had occurred to that point in time, and the issues arising.
By letter dated 4 November 2016, the Ombudsman wrote to Mr King referring to the complaint from Mr Adamson about him in his role as General Manager of the APY. He described the complaint as raising a number of issues relating to meetings of the Executive Board, ultimately summarising the complaint as raising three matters. The three matters raised by Mr Adamson were identified in the following terms:
Specifically, the complainant complains that:
1.   he has been denied access to and copies of the handwritten minutes of the APY Executive Board meetings
2.   the minutes of meetings presented to the Executive Board for ratification do not accurately reflect what occurred at those meetings
3.   the process for the adoption of minutes of meetings held on 10 & 11 August and 7 & 8 September was improper.

The letter stated that the Ombudsman had decided to conduct a preliminary investigation of this complaint under s 18(1) of the Ombudsman Act, and that he aimed to complete the investigation within four months. The letter sought Mr King’s response by 18 November 2016 in relation to a number of matters to assist him in his investigation. It also sought full copies of the handwritten minutes of the Executive Board meetings between June and October 2016 by the same date.
There followed correspondence between Mr King and the Ombudsman in which Mr King challenged the basis for, and merits of, the complaints and sought further time to respond. The correspondence included a request by Mr King for additional time to respond to the Ombudsman’s letter of 4 November 2016, in response to which the Ombudsman gave Mr King until 2 December 2016. The correspondence also included a follow up request by the Ombudsman for the provision in the interim of copies of the relevant handwritten minutes. Mr King did not directly respond to this request, although in a letter of 23 November 2016 he explained that the documents sought were not in fact handwritten “minutes”, but rather handwritten notes made by an employee and in the nature of “working documents created to enable me to carry out my statutory role and function which is, pursuant to s 13E, to implement the decisions of the Executive Board.”
In Mr King’s letter of 23 November 2016, he also challenged the Ombudsman’s decision to embark upon a preliminary investigation under the Ombudsman Act, suggesting that the Ombudsman had “misconceived [his] authority to investigate” the matters the subject of the complaint. Following a further request for a copy of the handwritten notes made by the Deputy Ombudsman on 1 December 2016, Mr King returned to this theme in an email to the Ombudsman’s office dated 2 December 2016 in which he suggested that the Ombudsman’s proposed course would be to “disregard the law” as set out in the APY Act, adding “I suggest you read the Act.”
The issue of the Ombudsman’s request for a response and the handwritten minutes was raised at the Executive Board meeting that took place over 5 and 6 December 2016. The minutes of that meeting record that the Ombudsman’s request was discussed, and that it was resolved “to reject the request.” The minutes state that the resolution was passed by seven votes to two, with one person abstaining.
The correspondence between Mr King and the Ombudsman culminated in a letter from the Ombudsman to Mr King dated 9 December 2016 in which the Ombudsman reiterated his intention to investigate, and drew Mr King’s attention to his obligation under s 24 of the Ombudsman Act not to obstruct, hinder or resist the Ombudsman. The Ombudsman wrote that he considered that a failure to comply with his request for full copies of the handwritten minutes and a comprehensive response to the other questions in his letter of 4 November 2016 without a lawful excuse involved an obstruction of his investigation. He indicated that he would issue Mr King with a summons for the copies of the handwritten minutes, and sought a response addressing the relevant matters by 16 December 2016.
On 12 December 2016, Mr King was served with a summons dated 9 December 2016. It required production on 16 December 2016 of full copies of the handwritten minutes of the Executive Board meetings in June to October 2016.
By email dated 15 December 2016, Mr King acknowledged receipt of the Ombudsman’s letter of 9 December 2016 (which he had received by email on that day), stating “I will be seeking legal advice on this issue and will get back to you in due course.”
Ms Zwolak responded on behalf of the Ombudsman’s office on 16 December 2016, and there followed various communications between the Ombudsman’s office and Mr King’s legal representative (Ruth Morley of Ruth Morley Legal Services). The Ombudsman, through his staff, continued to press for both a response to the queries in the Ombudsman’s letter of 4 November 2016, and copies of the handwritten notes of meetings.
A response, and a copy of the handwritten notes were eventually provided by letter from Ms Morley to the Ombudsman dated 9 February 2017.
A further complaint
The complaint which gave rise to the 2017 Investigation was made in May 2017, whilst the 2016 Investigation was still ongoing. Indeed, the initiating correspondence, which consisted of four emails dated 17 May 2017 from Mr Chambers on behalf of Mr Adamson to the Ombudsman’s office, used the Ombudsman’s reference number for the 2016 Investigation (namely, 2016/07614).
The new complaint related to the refusal of Mr King to convene a special general meeting of the APY in March 2017 despite a requisition dated 6 March 2017 calling for that to occur, as well as several associated matters. The emails sent by Mr Chambers included a number of documents relevant to the new complaints.
On 22 May 2017, the Ombudsman registered these new allegations as a separate complaint, with the reference number 2017/05243.
By email to Mr Chambers dated 24 May 2017, Ms Zwolak from the Ombudsman’s office referred to the new complaint by its new reference number (2017/05243), and sought both further information as to the matters subject to complaint and confirmation that the complaint was being made on behalf of Mr Adamson. In respect of the latter, the email attached an “authority to act” form for Mr Adamson to complete.
Due to logistical difficulties, there was some delay. However, the authority was ultimately signed on 19 June 2017 and returned to the Ombudsman’s office.
I interpose that this authority to act included reference to “matter number 2016/07614”. In May 2018, apparently out of an abundance of caution, Mr Adamson signed a further form authorising Mr Chambers to act on his behalf in relation to the complaint about the failure to convene the requisitioned special general meeting.
Returning to the narrative, by letter dated 14 August 2017, the Ombudsman wrote to Mr King advising him of the new complaint from Mr Adamson about him in his role as General Manager of the APY. The letter summarised four allegations relating to the March 2017 special general meeting, and sought a response to each, and any relevant documents, by 31 August 2017. The information was requested to “help me assess this complaint under the Ombudsman Act 1972, and decide whether I should conduct a preliminary investigation.”
Mr King responded through a letter from his solicitor, Ms Morley, dated 17 October 2017. After attributing the delay in responding to her having had a severe bout of the flu, Ms Morley responded to the allegations in terms that focussed upon Mr King’s view that the purported special general meeting was improperly convened and conducted, and was invalid. She attached an opinion she had obtained from counsel in support of these views.
The Ombudsman responded to Ms Morley by a letter dated 1 November 2017, in which he reiterated his earlier request for substantive responses to the allegations that had been made, and for documents relevant to the same.
Further correspondence between the Ombudsman and Mr King’s solicitor ensued. It included a response on behalf of Mr King to the allegations that had been made in relation to the March 2017 special general meeting.
A provisional report on the 2016 Investigation
By letter dated 6 November 2017, the Ombudsman wrote to Mr King in relation to the 2016 Investigation. The purpose of the letter was said to be twofold: first, to advise that the Ombudsman intended to conduct a full investigation of the complaint under s 18(1a) of the Ombudsman Act; and secondly, to inform Mr King of the Ombudsman’s provisional views about the complaint, as set out in the enclosed report. The letter went on to invite any submissions in relation to the provisional views by 27 November 2017.
The preliminary views set out in the report were relevantly the same as those set out in the final report (see below). In short, they were to the effect that in respect of the first limb of the complaint Mr King had acted in a manner that was “wrong” (within the meaning of s 25(1)(g) of the Ombudsman Act) in refusing to arrange for Mr Adamson to view the handwritten notes, but that in respect of the second and third limbs of that complainant, Mr King had not acted in a manner that was wrong.
Ms Morley responded on behalf of Mr King by letter dated 19 December 2017. She challenged the Ombudsman’s characterisation of Mr King’s conduct under the first limb as wrong. The letter added:
Trevor Adamson never asked nor made any request to view the handwritten notes. Trevor Adamson purportedly requested copies of the handwritten notes from several meetings to be sent to an email address. The General Manager believed that the email address was in fact not an email address of Mr Adamson, but an email address operated by one Brouss Chambers in Mr Adamson’s name. Chambers is neither an employee of APY, nor is he Anangu and consequently he has no entitlement at all to view APY Executive Board records.
Progress of the 2017 Investigation
On 21 March 2018, the Ombudsman wrote to Mr Adamson (copied to Mr Chambers, Mr King and Ms Morley) in relation to his complaints about the March 2017 special general meeting and related matters. The letter addressed each aspect of the complaint before concluding:
In all of the circumstances, I do not consider that there is a likelihood of collecting sufficient evidence of an administrative error that would warrant investigation by my Office and in any event, I am of the view that an investigation is unlikely to provide you with a meaningful outcome.
Outcome of my enquiries
On the information available, it does not appear to me that the General Manager has acted in a way that may possibly be unlawful, unreasonable or wrong within the meaning of the Ombudsman Act. Accordingly, I do not consider that further enquiries into your complaint by my office are necessary or justifiable.
I understand that this may not be the outcome you wanted, but on the evidence currently available to me, I do not think further enquiries would achieve a different result.
I intend to end my consideration of your complaint, unless you are able to identify an error in my assessment of the matter. If you think you are able to identify such an error, I ask you to contact my Office by 7 April 2018 with your reasoning. If you do not contact my Office within that time, I will close the file.
Subsequent to this, Mr Adamson provided the Ombudsman with further information by way of a statutory declarations in relation to the special general meeting from an attendee at that meeting, and a statutory declaration of his own.
In response to Mr Adamson’s complaints relating to the failure to convene a special general meeting, it had been suggested on behalf of Mr King that there had been no valid request for a special general meeting under s 8(4)(a) of the APY Act because the requisition had not been presented to the Executive Board. However, in his statutory declaration, dated 20 April 2018, Mr Adamson alleged that the requisition had been tabled at the Executive Board meeting on 8 March 2017.
Having considered this information, the Ombudsman wrote to Mr King by letter dated 26 April 2018. In that letter, the Ombudsman made reference to a particular allegation made by Mr Adamson in his statutory declaration; namely, that when the requisition calling for a special general meeting was tabled at the Executive Board meeting on 8 March 2017, Mr King interrupted and said words to the effect “no, there must be a board resolution to call a special general meeting and there must be a majority of an equal number of men and women”; and that he would not let anyone else speak, and offered misleading opinions about s 8(4) of the APY Act.
The letter went on to request responses from Mr King to a number of questions in relation to these allegations, and copies of Mr King’s request for advice from his counsel and his recording of the 8 March 2017 meeting, in order to assist the Ombudsman to determine whether to conduct an investigation.
Mr King responded through a letter from Ms Morley dated 30 April 2018 in which she sought an explanation for the Ombudsman’s continued pursuit of the complaint in relation to the special general meeting, and also sought further information to enable her to respond to the Ombudsman’s request.
The Ombudsman responded by letter dated 4 May 2018. The letter explained that his intention to close the file and end consideration of “complaint 2017/05243” had been subject to any further response from Mr Adamson. After referring to the further information that had been provided by Mr Adamson, the Ombudsman said that he considered it necessary to seek a further response from Mr King to assess whether “all four issues identified in my letter of 21 March 2018, as well as [Mr King’s] alleged conduct at the Executive Board meeting of 8 March 2017, should be investigated.”
The letter added:
That is, my file remains open, subject to further assessment of the information and a response from your client.
You have requested a copy of Mr Adamson’s complaint and statutory declaration received by my Office. I do not consider it necessary or appropriate in the circumstances to provide you with those documents. The substance of the allegations have been set out in sufficient detail for your client to respond.
Report on 2016 Investigation
The Ombudsman’s “Full Investigation Report” in respect of his 2016 Investigation is dated 8 May 2018.
The report commenced by identifying the following three issues:
1.   Whether the APY General Manager, Mr Richard King, erred in failing to provide copies of the handwritten notes of Executive Board meetings to the complainant.
2.   Whether the APY General Manager failed to ensure the accuracy of the minutes of the Executive Board meetings held on 7 and 8 September 2016.
3.   Whether the APY General Manager failed to follow the correct process for adoption of the Board meeting minutes dated 21 September 2016.
It then summarised the Ombudsman’s jurisdiction and investigation in the following terms:
Jurisdiction
The complaint is within the jurisdiction of the Ombudsman under the Ombudsman Act 1972.
I consider that the General Manager, Mr Richard King is subject to my jurisdiction. I have jurisdiction to investigate administrative acts as defined under section 3 of the Ombudsman Act as acts relating to a matter of administration on the part of any agency to which this Act applies. The latter term is in turn defined to include a person who holds an office established by an Act. Mr King is the General Manager of the Anangu Pitjantjatjara Yankunytjatjara (APY) and accordingly holds an office established pursuant to sections 13D and 13E of the Anangu Pitjantjatjara Yankunytjatjara Land Rights Act 1981 (APY Land Rights Act).
Investigation
My investigation has involved:
·    assessing the information provided by the complainant
·    seeking a response from Mr King
·    meeting with Mr King
·    seeking more particulars from the complainant
·    considering APY Land Rights Act
·    considering extracts from Horley’s Meetings Procedure, Law and Practice
·    considering extracts from Joske’s Law and Procedure at Meetings in Australia
·    issuing a summons to Mr King to produce documents
·    providing Mr King and the complainant with my provisional report for comment, and considering their responses
·    preparing this report.
The Ombudsman noted that the standard of proof he was to apply was the balance of probabilities, but in accordance with the principles in Briginshaw v Briginshaw.[1] The report summarised the responses made by the parties to his provisional report, before making some preliminary comments and then providing a detailed summary of the investigation and the matters considered.
[1] Briginshaw v Briginshaw (1938) 60 CLR 336.
As to the first issue, the report concluded as follows:
Whether the APY General Manager, Mr Richard King, erred in failing to provide copies of the handwritten notes of Executive Board meetings to the complainant
42.     Section 10 of the APY Land Rights Act provides in part:
10 – Procedure
(8)Any Anangu is entitled to inspect (without charge) the minutes at the places on the lands, and during the times nominated by the Executive Board and approved by the Minister.
(9)Any Anangu is entitled, on payment of the fee prescribed by the regulations, to a copy of the minutes.
43. I note that the complainant requested that Mr King provide him with copies and/or inspection of the handwritten notes on a number of occasions but has not to date been provided with access to those notes.
44.The complainant further asserts that he required copies of the handwritten notes in order to properly undertake his role as Chairperson.
45.     I note that Horsley’s meeting procedures provides the general position as:
Minutes should be written up as soon as possible after the conclusion of the meeting. At that stage events are fresh in the mind of the secretary and also of the chairman to whom the draft minutes should be submitted promptly for his comment and approval.
46.Mr King’s legal representative asserts that the documentation recorded during the Board meetings are not handwritten minutes, rather they are internal working documents from which the minutes are prepared in order for him to carry out his statutory role and functions pursuant to section 13E of the APY Land Rights Act, namely to implement decisions of the Board.
47.Mr King’s legal representative also asserts that the documentation recorded during Board meetings are internal working documents and as such the Chairperson has no general right of access to them. This appears to have led to the complainant forming a view that the minutes have been altered as he has no information from which to make a comparison.
48.I accept the submission that the handwritten notes prepared by an APY employee are not the ‘minutes’ of the meeting for the purposes of section 10 of the APY Land Rights Act. The draft minutes are scrutinised by the Board and it is a Board decision whether they are approved with or without amendment. The ‘minutes’ are those formally approved by the Board; not the handwritten notes.
49.The APY Land Rights Act also provides that in his role as General Manager, Mr King is not subject to a direction by an individual member of the Executive Board unless the member is acting in accordance with a resolution of the Executive Board. In my view, the complainant could not give a direction to Mr King to inspect the handwritten notes without a motion of the Executive Board. However, the complainant was not directing Mr King in this instance, rather he was requesting to inspect the notes to appropriately undertake his role as Chairperson; given that there is nothing within the APY Act that prevents the complainant from accessing those notes, it was a matter of Mr King’s discretion.
50.That said, I am also of the view that while the complainant has no right of access to the General Manager’s notes, there is no good reason why he was refused access [in the form of copies][2]. Further, provision of that information might have served to clarify any ambiguity about the accuracy of the minutes.
51.While I remain of the view that the General Manager would not be required to arrange inspection or provide copies of the handwritten notes in every circumstance, in this instance to be transparent and to facilitate the better operation of the Board, Mr King should have arranged inspection [by providing Mr Adamson with copies] of the handwritten notes. There is simply no good reason for his refusal.
52.In my view, the failure to provide the complainant with copies of the handwritten notes has resulted in a lack of trust between [one or more members of] the Board and the Administration [under Mr King]. I am also of the view that Mr King should have acted in the best interests of the Board and facilitated inspection [by providing copies] of the handwritten notes. Therefore, I consider that he has acted in a manner that was wrong within the meaning of section 25(1) of the Ombudsman Act.
Conclusion
In light of the above, my view is that the General Manager, acted in a manner that was wrong within the meaning of section 25(1) of the Ombudsman Act by refusing to allow the complainant to view the handwritten notes [by providing copies].
Recommendation
Given the complainant is no longer a member of the APY Executive Board I refrain from making a recommendation that he be provided with copies and/or access to the handwritten notes.
As I consider there was no good reason for the General Manager to refuse the complainant access [in the form of copies] to the handwritten notes I recommend under section 25(2) of the Ombudsman Act that the General Manager:
1.   Issue a written letter of apology to the complainant for failing to provide him with access [in the form of copies] to the handwritten notes between July 2016 and March 2017.
[2]    The words in square brackets in this, and subsequent, paragraphs of the report were inserted through the issuing of an addendum report on 10 August 2018 (see below).

As to the second and third issues, the Ombudsman was not satisfied that Mr King had acted in a manner that was wrong within the meaning of s 25(1) of the Ombudsman Act.
The report concluded:
Summary and Recommendations
In light of the above, my views are as follows:
1. By refusing to allow the complainant to view the handwritten notes [by providing copies] of Board meetings held between July 2016 and March 2017 the General Manager acted in a manner that was wrong within the meaning of section 25(1) of the Ombudsman Act.
I recommend that the General Manager provide the complainant with a written letter of apology in relation to this issue.
2. It cannot be established that the minutes of the Executive Board meetings held on the 7 and 8 September 2016 were inaccurate, and therefore the General Manager did not act in manner that was wrong within the meaning of section 25(1) of the Ombudsman Act.
3. It cannot be established the General Manager failed to follow the correct procedure for adopting the Board Minutes dated 21 September 2016, and therefore he did not act in a manner that was wrong within the meaning of section 25(1) of the Ombudsman Act.
Final comment
I consider it necessary to comment on Mr King’s failure to cooperate with my investigation within a timely manner and provide documentation as requested of him. Mr King’s legal representative provided the requested documentation some three months after it was initially requested. I did not consider that the information requested of Mr King was onerous for him to provide.
I am of the opinion that a person in Mr King’s position as a public officer and the General Manager of the APY should set an example by giving their cooperation to my investigation regardless of their personal views or opposition to the allegation.
In accordance with section 25(4) of the Ombudsman Act, Mr King should report to the Ombudsman by 27 July 2018 on what steps he has taken to give effect to the recommendation above; including:
·details of the actions that have been commenced or completed
·relevant dates of the actions taken to implement the recommendation.
In the event that no action has been taken, reason(s) for the inaction should be provided to the Ombudsman.
I will be providing the Chairperson of the APY Board with a copy of this report.
I have also sent a copy of my report to the Minister for Aboriginal Affairs as required by section 25(3) of the Ombudsman Act 1972.
A further letter in the 2017 Investigation
On 28 May 2018, the Ombudsman wrote to Mr King in relation to the 2017 Investigation, referring to the letters from the Ombudsman’s office dated 26 April 2018 and 4 May 2018. The letter noted the absence of any response, referring in this respect to the comment upon Mr King’s failure to cooperate with the 2016 Investigation in a timely manner in the Ombudsman’s 8 May 2018 report. The letter requested a response by 1 June 2018.
Commencement of these proceedings
On 31 May 2018, Mr King filed a Statement of Grounds in this Court seeking judicial review of a number of purported decisions made by the Ombudsman during both investigations.
On 6 July 2018, the matter first came before this Court. Orders were made regarding the timetable for the filing of affidavits and a statement of agreed facts, and for the disclosure of documents.
Addendum report
On 10 August 2018, the Ombudsman wrote to Mr King advising that he intended to issue an addendum report to “remove any ambiguity that might arise from the wording” used in the report. He indicated an intention to clarify his findings in relation to the issue of access to the handwritten notes by adding the words that I have placed in square brackets in the passages I extracted from the Ombudsman’s report earlier in these reasons.
Following this, Mr King brought an application for an injunction to restrain the Ombudsman from progressing the 2016 Investigation, including by issuing any addendum report with the foreshadowed additions by way of clarification, pending determination of Mr King’s proceedings for judicial review. Kelly J refused to make the orders sought,[3] and on 5 October 2018 the Ombudsman issued an addendum report with the foreshadowed additions.
[3] King v Ombudsman [2018] SASC 155.
The legislative framework
In considering the amenability to review of the functions of the Ombudsman, it is appropriate to commence with a summary of the legislative framework within which the Ombudsman functions.
At a very general level, it can be said that the Ombudsman Act contemplates two phases in the exercise of the Ombudsman’s functions. The first involves the conduct of investigations, and is governed by ss 13 to 24 of the Act. The second involves the formation of opinions, making of recommendations and preparation of reports under ss 25 to 27 of that Act.
The investigatory phase of the Ombudsman’s functions
The Ombudsman Act provides for the Ombudsman to investigate administrative acts, and to do so either on receipt of a complaint or on his own initiative. In particular, s 13 relevantly provides:
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.
…
The concept of an “administrative act” is defined in s 3 to mean (subject to some exceptions not presently relevant):
(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,
…
While not relevant in these proceedings, the Act also provides for the Ombudsman to investigate matters referred to him by Parliament (s 14) or under the Independent Commissioner Against Corruption Act 2012 (SA) (s 14B), and to undertake reviews of the administrative practices and procedures of an agency to which the Act applies (s 14A).
The persons who may make a complaint to the Ombudsman are set out in s 15 of the Act:
15—Persons who may make complaints
(1) A complaint in respect of an administrative act may be made by any person or body of persons.
(2) Where the person by whom a complaint in respect of an administrative act might have been made has died or is unable to make the complaint personally, the complaint may be made by a person who is, in the Ombudsman's opinion, a suitable representative of that person.
(3) A complaint in respect of an administrative act that could, apart from this subsection, be made by a person or body of persons may, with the consent of that person or body, be made on behalf of that person or body by a member of either House of Parliament and with the consent of that person or body that member may act on behalf of that person or body in and in connection with all matters relating to the matter of complaint.
(3a)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.
…
Section 16(1) provides that a complaint must not be entertained by the Ombudsman if it is made after 12 months from the day on which the complainant first had notice of the matters alleged in the complaint, unless the Ombudsman is of the opinion that, in all the circumstances of the case, it is proper to entertain the complaint.
Section 17 enables the Ombudsman to refuse to entertain or continue an investigation in certain circumstances, including where he is of the opinion that the complaint is trivial, frivolous, vexatious, not made in good faith, not made by a person with a sufficient personal interest or is otherwise unnecessary or unjustifiable. Section 17A enables the Ombudsman to attempt to deal with a complaint by conciliation.
The procedure governing the conduct of investigations is addressed in s 18. That section states as follows:
18—Procedure on investigations
(1) Notwithstanding any other provision of this Part, the Ombudsman may make a preliminary investigation of an administrative act to determine whether to proceed with a full investigation of that act.
(1a) The Ombudsman must, before proceeding with a full investigation of an administrative act, inform the principal officer of the relevant agency of the decision to proceed with such an investigation.
(2)     Every investigation under this Act must be conducted in private.
(3)     The Ombudsman—
(a)     is not required to hold a hearing for the purposes of an investigation;
(b)     may obtain information from such persons and in such manner as the Ombudsman thinks fit;
(c)     may determine whether any person to whom an investigation relates may have legal or other representation.
(4) Before making a report affecting an agency to which this Act applies the Ombudsman must allow the principal officer of the agency a reasonable opportunity to comment on the subject matter of the report.
(5) The Ombudsman must report any evidence of breach of duty or misconduct on the part of a member, officer or employee of an agency to which this Act applies to the principal officer of the agency.
(6) Subject to this Act, the procedure to be adopted in relation to an investigation will be as determined by the Ombudsman.
Section 19 provides that in the conduct of an investigation, the Ombudsman has the powers of a Royal Commission. In addition to these coercive powers, under s 19A the Ombudsman may also, in the circumstances provided for in that section, direct an agency to which the Act applies to refrain from performing an administrative act. And under s 23 the Ombudsman, or a person authorised by the Ombudsman, may enter and inspect any premises or place occupied by an agency to which the Act applies and anything in or on those premises or that place.
The reporting phase of the Ombudsman’s functions
I have already mentioned the specific obligation under s 18(5) of the Act to report any breach of duty or misconduct of a member, officer or employee of an agency to the principal officer of that agency.
In addition to this, s 25 provides for the Ombudsman to form adverse opinions as a result of his investigation of an administrative act, and to then prepare a report and make recommendations in relation to the same:
25—Proceedings on the completion of an investigation
(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 a 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.
(3) The Ombudsman must send a copy of any report or recommendation made under subsection (2) to the responsible Minister and, in the case of a report or recommendation relating to the sheriff, to the State Courts Administration Council.
(4) The principal officer of an agency in relation to which a recommendation is made under subsection (2) must, at the request of the Ombudsman, report to the Ombudsman within a time allowed in the request on what steps have been taken to give effect to the recommendation and, if no such steps have been taken, the reason for the inaction.
(5) If it appears to the Ombudsman that appropriate steps have not been taken to give effect to a recommendation made under this section, the Ombudsman may make a report on the matter (containing a copy of the earlier report and the recommendation) to the Premier.
(6) Where the Ombudsman reports to the Premier under subsection (5), the Ombudsman may forward copies of the 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.
I have mentioned that under s 18(4), before making a report affecting an agency, the Ombudsman must allow the principal officer of that agency a reasonable opportunity to comment on the subject matter of the report.
Section 26 imposes restrictions upon the disclosure of information obtained in the course of an investigation, except in certain circumstances (essentially, where it is necessary for the purposes of the Ombudsman, an agency under the Act, Parliament or a statutory authority or office holder, or it is authorised by the Ombudsman in the public interest). Under s 26(3) it is a matter for the Ombudsman’s discretion whether any report is published more widely than is required by s 25.
Under s 27, the Ombudsman is required to inform a complainant of the result of an investigation.
Other provisions
For reasons which will become apparent, it is also relevant to note the power conferred upon the Supreme Court under s 28 of the Ombudsman Act to determine questions in relation to the Ombudsman’s jurisdiction. That section states:
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.
Finally, I also note the conferral of immunity from liability, and from being compelled to give evidence, granted to the Ombudsman under s 30 of the Act:
30—Immunity from liability
(1) No liability attaches to the Ombudsman or any member of the Ombudsman's staff for any act or omission in good faith in the exercise or purported exercise of powers or functions under this or any other Act.
(2) Except for the purposes of an application under section 28, neither the Ombudsman nor any member of the Ombudsman's staff can be called to give evidence before any court in any judicial proceedings, on a matter coming to his or her notice in the course of exercising powers or functions under this or any other Act.
(3) …
Summary
By way of summary, it can thus be seen that the Ombudsman is statutorily empowered to investigate any administrative act of an agency to which the Ombudsman Act applies. The Ombudsman is empowered to do so on a complaint or on his or her own initiative. However, there are some statutorily imposed limitations upon the commencement of an investigation. In particular, the Ombudsman must not:
(i)investigate any administrative act where the complainant has a right of appeal, reference or review under any enactment (s 13(3)(a)) or remedy by way of legal proceedings (s 13(3)(b)), unless the Ombudsman considers it is not reasonable to expect the complainant to resort to that right or remedy;
(ii)entertain a complaint unless made by a person (or body of persons) “directly affected” by the administrative act (s 15(3a));
(iii)entertain a complaint if it is made after 12 months from the day on which the complainant first had notice of the matters alleged in the complaint, unless the Ombudsman considers it is proper to do so (s 16(1)).
When undertaking an investigation, the Ombudsman exercises a broad discretion, including as to whether to conduct a preliminary investigation under s 18(1), whether to attempt to conciliate the complaint under s 17A, and as to the procedure to be adopted (s 18(6)).
The Ombudsman is conferred with some coercive powers in aid of the investigation, including the powers of a Royal Commission (s 19), power to make directions to an agency in the circumstances set out in s 19A, and power to inspect and enter any premises or place occupied by an agency (s 23).
The Ombudsman Act also imposes some obligations upon the Ombudsman in respect of his investigatory functions, namely to inform the principal officer of the relevant agency of any decision to proceed with a full investigation (s 18(1a)), to report any breach of duty or misconduct by a member, officer or employee of an agency to the principal officer of the agency (s 18(5)), and before making a report affecting an agency, to give the principal officer of that agency a reasonable opportunity to comment upon the subject matter of the report (s 18(4)).
Turning to the reporting phase of the Ombudsman’s functions, if an investigation results in the Ombudsman forming an opinion that the administrative act to which the investigation relates falls within ss 25(1)(a) to (g), and that further action of the type listed in ss 25(2)(a) to (f) should be taken, then under s 25(2) the Ombudsman must report the opinion, and the reasons for it, to the principal officer of the relevant agency, and may make such recommendations as the Ombudsman thinks fit. The principal officer is required to report back to the Ombudsman on the steps taken in response to any recommendation (s 25(4)), and the Ombudsman may refer the matter to the Premier and Parliament if appropriate steps have not been taken (ss 25(5) and (6)). The Act also requires that the Ombudsman send a copy of any report or recommendation made under s 25(2) to the responsible Minister (s 25(3)). Finally, the Ombudsman must also inform the complainant of the result of the investigation (s 27).
Judicial review of the Ombudsman’s functions
In these proceedings, and on appeal, Mr King seeks judicial review of various aspects of the Ombudsman’s exercise of his functions under the Ombudsman Act. I have earlier summarised the nature of the challenges to, and relief sought in relation to, both the 2016 and 2017 Investigations.

The complaints made by Mr Adamson related to Mr King’s conduct in failing or refusing to convene a special general meeting in March 2017. While Mr Adamson is an Anangu person, and was the Chairperson of the Executive Board of the APY as at March 2017, he ceased to be the Chairperson and a member of the Executive Board in April 2017.
The appellant contends that, in the above circumstances, Mr Adamson was not a person “directly affected” by the administrative acts of which he complained at the time he made the complaints (that is, May 2017), with the result that the Ombudsman was precluded by s 15(3a) from entertaining those complaints. The respondents reject this contention, and rely upon Mr Adamson’s position as Chairperson of the Executive Board at the time of the administrative acts (as opposed to the time at which the complaints were made) as sufficient for the purposes of establishing that Mr Adamson was “directly affected” for the purposes of s 15(3a).
The meaning of “directly affected” in the context of s 15(3a) of the Ombudsman Act was considered by Stanley J in City of Port Adelaide Enfield v Bingham.[82] His Honour reasoned that the phrase must be construed in accordance with the text, context and purpose of the relevant provision, and indeed the Ombudsman Act as a whole. His Honour noted in this regard the objective of the Act, and indeed the public interest, in improving public administration and its accountability, suggesting that the Ombudsman’s powers should not be read down other than as necessitated by the text. Stanley J also referred to authorities that suggested both the need for a direct causative link between the administrative act and the effect upon the complainant, and the need for an interest on the part of the complainant that was personal in nature or otherwise distinguished the complainant from those with a merely community interest.
[82] City of Port Adelaide Enfield v Bingham (2014) 119 SASR 1 at [31]-[33].
Stanley J summarised:[83]
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.
[83] City of Port Adelaide Enfield v Bingham (2014) 119 SASR 1 at [33].
I agree with, and adopt, Stanley J’s analysis of the notion of “directly affected” for the purposes of s 15(3a) of the Ombudsman Act.
It is also my view that it is sufficient for the purposes of s 15(3a) that the complainant be directly affected as at the time of the relevant administrative act or acts. The text of s 15(3a) invites a focus upon the administrative acts, and their effect upon the complainant. Assuming the requisite effect and connection occurred or existed, I do not think that there is anything in the text, context or purpose of that subsection to require that the effect and connection exist and persist through to the point of the commencement, let alone determination, of the complaint.
It is relevant in this respect that the phrase “directly affected” is used in the context of determining a complainant’s standing, as opposed to their entitlement to any particular relief. It is also relevant that there is some protection against stale complaints by reason of the 12 month time limit under s 16(1) of the Act. And, as mentioned, the purpose of the Act is not suggestive of any narrow interpretation of the phrase. Indeed, one can readily conceive of some unfortunate (and unlikely to have been intended) outcomes were it to be a requirement that the effect upon the complainant be a continuing one.
I am satisfied that Mr Adamson, as the Chairperson of the Executive Board at the time, was directly affected by Mr King’s conduct in failing or refusing to convene a special general meeting. Putting to one side the merits or otherwise of the complaints made, I consider that the Chairperson of the Executive Board had an interest in the propriety and effectiveness of the governance of the APY, as reinforced by the relevant provisions of the APY Act. Not only was this so in a general sense, but also the Executive Board had a statutory function both in terms of oversight of the General Manager,[84] and in giving effect to a request that a special general meeting be convened.[85] Mr Adamson was also personally involved in the issues that arose in connection with the March 2017 special general meeting. Mr Adamson’s interest was thus a real and practical interest that, while shared to some extent by him as Chairperson with other members of the Executive Board, was nevertheless different from and greater than the more general interest enjoyed by the other Anangu persons and members of the APY. In my view, Mr Adamson was “directly affected” for the purposes of s 15(3a).
[84] See, in particular, ss 6(2)(j), 13H(1) and 13M of the APY Act.
[85] See s 8(4) of the APY Act.
Complaint made too late (s 16(1))
As mentioned earlier in these reasons, under s 16(1) of the Ombudsman Act, a complaint must not be entertained by the Ombudsman if it is made after 12 months from the day on which the complainant first had notice of the matters alleged in the complaint, unless the Ombudsman is of the opinion that, in all the circumstances of the case, it is proper to entertain the complaint.
The appellant contends that he was notified in the Ombudsman’s letter to him dated 26 April 2018 of an allegation in relation to his conduct at the 8 March 2017 meeting of the Executive Board, which allegation had been made by Mr Adamson in his statutory declaration dated 20 April 2018. The appellant contends that as the complaint in relation to his behaviour at this meeting was only made by Mr Adamson over 12 months after he first had notice of the matters alleged (by reason of his attendance at the 8 March 2017 meeting of the Executive Board), the Ombudsman did not have jurisdiction to entertain the complaint by reason of s 16(1). While acknowledging that s 16(1) would permit the Ombudsman to entertain the complaint if he formed the opinion that it was, despite the time that had passed, nevertheless proper to do so, the appellant contended that this was of no assistance in circumstances where the Ombudsman did not form any such opinion.
In my view, Kelly J was correct to reject the appellant’s contentions on the basis that they involve a mischaracterisation of the mere provision of further information in support of the existing complaints as a fresh complaint for the purposes of the Ombudsman Act.
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.