King v Ombudsman
[2019] SASC 107
•26 June 2019
SUPREME COURT OF SOUTH AUSTRALIA
(Civil)
KING v OMBUDSMAN & ANOR
[2019] SASC 107
Judgment of The Honourable Justice Kelly
26 June 2019
ADMINISTRATIVE LAW - JUDICIAL REVIEW - GROUNDS OF REVIEW - JURISDICTIONAL MATTERS
ADMINISTRATIVE LAW - JUDICIAL REVIEW - GROUNDS OF REVIEW - UNREASONABLENESS
ADMINISTRATIVE LAW - JUDICIAL REVIEW - GROUNDS OF REVIEW - RELEVANT CONSIDERATIONS
ADMINISTRATIVE LAW - PREROGATIVE WRITS AND ORDERS - CERTIORARI
Application for judicial review.
The plaintiff is the General Manager of the body corporate, Anungu Pitjantjatjara Yankunytjatjara (APY). The second defendant was formerly a member and Chairperson of the APY Executive Board. The plaintiff applies for judicial review in respect of two separate investigations conducted by the Ombudsman. Both investigations relate to complaints made in the name of the second defendant regarding actions of the plaintiff in his capacity as General Manager of APY. The two investigations comprise a completed investigation (the 2016 investigation) and a future investigation (the 2017 investigation).
The plaintiff seeks orders in the nature of certiorari quashing certain decisions made during, and following, the investigations conducted by the Ombudsman. The plaintiff also applies pursuant to s 28 of the Ombudsman Act 1972 (SA) for a declaration that the Ombudsman had no jurisdiction to investigate certain complaints made in the name of the second defendant. The plaintiff further asserts that certain findings and decisions of the Ombudsman with respect to both investigations were legally unreasonable.
Held, dismissing the application for judicial review:
1. The Ombudsman had jurisdiction to investigate the various complaints made by the second defendant in respect of both investigations.
2. It was open for the Ombudsman to have made the findings complained of. The plaintiff has failed to demonstrate that any of the Ombudsman's conclusions in respect of the 2016 investigation are legally unreasonable.
3. The plaintiff has not established that there is any proper reason for this Court to restrain the Ombudsman from continuing with the 2017 investigation.
4. I have not found it necessary to express any concluded view about the Ombudsman's argument with respect to the availability of prerogative relief in this matter (at [160]).
Anangu Pitjantjatjara Yankunytjatjara Land Rights Act 1981 (SA) ss 5(1), 13D, 12F, 35A; Ombudsman Act 1972 (SA) ss 28, 18(1), 25(1), 25(2), 17(2), 13(3), 15(3a), 16(1); Supreme Court Act 1935 (SA) s 31; Supreme Court Civil Rules 2006 r 200A(6), referred to.
The Minister for Immigration v Eden (2016) 240 FCR 158; Minister for Immigration and Citizenship v Li (2013) 249 CLR 332, applied.
Hot Holdings Pty Ltd v Creasy (1996) 185 CLR 149; City of Port Adelaide Enfield v Bingham (2014) 119 SASR 1; Ainsworth v The Criminal Justice Commission (1992) 175 CLR 564; Boyd v The Ombudsman & Anor [1983] 1 NSWLR 620; Griffith University v Tang (2005) 221 CLR 99; Kaldas v Barbour (2017) 326 FLR 122, considered.
WORDS AND PHRASES CONSIDERED/DEFINED
"made under an enactment", "legal unreasonableness"
KING v OMBUDSMAN & ANOR
[2019] SASC 107Civil: Application for Judicial Review
KELLY J.
Introduction
This is an application for judicial review of certain decisions made by the first defendant, the Ombudsman.
The plaintiff, Richard King, is the General Manager of Anangu Pitjantjatjara Yankunytjatjara (“APY”). APY is a body corporate pursuant to s 5(1) of the Anangu Pitjantjatjara Yankunytjatjara Land Rights Act 1981 (SA) (“APY Land Rights Act”). The office of General Manager is held pursuant to s 13D of the APY Land Rights Act.
APY holds the freehold title to the APY lands on behalf of its members. The lands are located in the far northwest of South Australia. The APY Executive Board oversees decisions that are made at the APY General Meetings relating to development, use and management of the lands. The Executive Board consists of up to 14 members elected or appointed in accordance with the APY Land Rights Act.
The second defendant, Trevor Adamson, was a member and Chairperson of the APY Executive Board. He ceased to be a Board member and Chairperson in April 2017.
The plaintiff applies for judicial review in respect of two separate investigations conducted by the Ombudsman. Both investigations relate to complaints made in the name of the second defendant regarding actions of the plaintiff in his capacity as General Manager of APY.
The two investigations in question comprise a completed investigation, which the Ombudsman designated as reference number ‘2016/07614’ (“the 2016 investigation”), and a future investigation bearing the Ombudsman’s reference number of ‘2017/05243’ (“the 2017 investigation”).
The plaintiff seeks orders in the nature of certiorari quashing certain decisions made during, and following, the investigations conducted by the Ombudsman.
The plaintiff also applies pursuant to s 28 of the Ombudsman Act 1972 (SA) (“Ombudsman Act”), together with s 31 of the Supreme Court Act 1935 (SA) and rule 200A(6) of the Supreme Court Civil Rules 2006 (SA), for a declaration that the Ombudsman had no jurisdiction to investigate the various complaints made in the name of the second defendant relevant to both the 2016 and 2017 investigations. The plaintiff further asserts that certain findings and decisions of the Ombudsman with respect to both investigations were legally unreasonable.
Background
Before turning to the plaintiff’s complaints in respect of both investigations, it is necessary to outline the factual history of the matter.
In September 2016, a complaint outlining several allegations against the plaintiff was made in the name of the second defendant to the Ombudsman. One of the allegations raised was that the plaintiff denied the second defendant access to handwritten notes of APY Board meetings. The second defendant’s complaint was that he had requested, both verbally and in writing, that the plaintiff provide him with copies of the handwritten notes, but he had not been provided with copies as requested. This became the subject of the 2016 investigation.
The 2016 investigation
Without descending into detail at this stage, I note the following matters.
By email dated 23 September 2016, addressed to Ms Ella King, an assessment officer in the Ombudsman’s office, attaching a letter of the same date signed by the second defendant, the Ombudsman received the initiating complaint from the second defendant.[1]
[1] See affidavit of Wayne Nicholas Mackay affirmed 3 August 2018 (“the second Mackay affidavit”), Exhibit WNM-5.
By further email to Ms King dated 26 September 2016, attaching a second letter signed by the second defendant (also dated 26 September 2016), the Ombudsman received a further complaint that the plaintiff had refused to provide copies of the handwritten notes of certain meetings of the APY Executive Board to the second defendant.[2]
[2] See the second Mackay affidavit, Exhibit WNM-6.
On 30 September 2016, the Ombudsman’s office received a further email attaching a letter of the same date signed by the second defendant advising that Mr Brouss Chambers would be assisting the second defendant with “these matters”.[3]
[3] See the second Mackay affidavit, Exhibit WNM-7.
The Ombudsman’s office sought, and subsequently received (by email from Mr Chambers on 11 October 2016), a signed authority dated 10 October 2016 for Mr Chambers to act with respect to the second defendant’s complaint.[4]
[4] See the second Mackay affidavit, Exhibit WNM-8.
By a letter dated 4 November 2016, the Ombudsman notified the plaintiff that he intended to conduct a preliminary investigation of the matter pursuant to s 18(1) of the Ombudsman Act.[5] The Ombudsman requested that the plaintiff prepare a response addressing the complaints made by the second defendant. The Ombudsman also requested from the plaintiff full copies of the “handwritten minutes” for APY Executive Board meetings held between June and October 2016.
[5] See affidavit of Richard King sworn 28 May 2018 (“the first King affidavit”), Exhibit RK-6.
There followed correspondence between the Ombudsman, the plaintiff and the plaintiff’s legal representatives, after which the Ombudsman issued a summons to the plaintiff to produce the notes which had been requested. The summons was served on the plaintiff on 12 December 2016.[6] There followed further correspondence and the notes were finally provided to the Ombudsman on 9 February 2017.[7]
[6] See the second Mackay affidavit, Exhibit WNM-16. Note: the ‘Receipt and Acknowledgement of Acceptance of Service and Summons’ document as signed by the plaintiff appears to be dated ‘12/11/16’ in error.
[7] See the second Mackay affidavit, Exhibit WNM-22.
During the course of the 2016 investigation, the Deputy Ombudsman and an assessment officer met with the plaintiff. The Ombudsman provided a provisional report to the plaintiff and to the second defendant for comment and response prior to publication.
On 8 May 2018, the Ombudsman published the report relating to the 2016 investigation.[8]
[8] See affidavit of Nicholas Wayne Mackay affirmed 4 July 2018 (“the first Mackay affidavit”), Exhibit WNM-1.
The report
The substantive recommendations and conclusions contained in the report for the purpose of these proceedings were contained in the following paragraphs:
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. 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 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 the Board and the Administration. I am also of the view that Mr King should have acted in the best interests of the Board and facilitated inspection 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.
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 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 to the handwritten notes between July 2016 and March 2017.
…
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 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.
For completeness, I also note that with regard to other issues that were the subject of the Ombudsman’s report, the Ombudsman concluded that it could not be established that the minutes of the APY Executive Board meetings were inaccurate or that the plaintiff failed to follow the correct procedure for adopting the APY Executive Board meeting minutes. In relation to those two issues, the Ombudsman’s conclusion was that the plaintiff did not act in a manner that was wrong within the meaning of s 25(1) of the Ombudsman Act.
The 2017 investigation
The complaints which gave rise to the 2017 investigation were made in May 2017 whilst the 2016 investigation was still ongoing. In fact, the initiating correspondence, which consisted of four emails from Mr Chambers on behalf of the second defendant to the Ombudsman,[9] still contained the Ombudsman reference for the 2016 investigation (2016/07614). The complaint was that the plaintiff had failed to implement a requisition calling for a Special General Meeting to be held in March 2017. One of the emails from Mr Chambers to the Ombudsman included two letters from the second defendant to the plaintiff, dated 6 and 7 March 2017, relating to that complaint and other matters.
[9] See affidavit of Wayne Nicholas Mackay affirmed 31 August 2018 (“the third Mackay affidavit”), Exhibit WNM-26.
On 22 May 2017, the Ombudsman registered these further allegations as a separate complaint and gave it the reference number ‘2017/05243’.
On 24 May 2017, the assessment officer at the time in the Ombudsman’s office emailed Mr Chambers and specifically requested a further Authority to Act on behalf of the second defendant.[10] Due to logistical problems, there was some delay. However, the authority was signed on 19 June 2017 and duly returned to the Ombudsman’s office.[11] As that Authority to Act referred to the reference number for the 2016 investigation, in May 2018,[12] out of an abundance of caution, the Ombudsman sought and received a further Authority to Act, dated 16 May 2018, pursuant to the 2017 investigation.[13]
[10] See the second Mackay affidavit, Exhibit WNM-25.
[11] See the first Mackay affidavit, Exhibit WNM-3.
[12] See affidavit of Wayne Nicholas Mackay affirmed 17 October 2018 (“the fifth Mackay affidavit), Exhibit WNM-36.
[13] See the first Mackay affidavit, Exhibit WNM-4.
In a letter dated 14 August 2017, the Ombudsman wrote to advise the plaintiff of the May 2017 complaint that he had received from the second defendant. The Ombudsman requested information to be provided by 31 August 2017 to enable him to determine whether he should conduct a preliminary investigation. The letter contained the allegations concerning the plaintiff’s failure to arrange a Special General Meeting in accordance with a requisition signed by 10 APY Anangu members. That letter contained the Ombudsman’s reference number ‘2017/05243’.[14]
[14] See the first King affidavit, Exhibit RK-12.
Eventually, the plaintiff’s solicitor, Ms Morley, responded, explaining the delay in response.[15] Further correspondence then ensued between the Ombudsman and the plaintiff’s solicitor.
[15] See the first King affidavit, Exhibit RK-16.
On 21 March 2018, the Ombudsman wrote to the second defendant explaining that, on the information available, it did not appear to him that the plaintiff had acted in a way that may possibly be unlawful, unreasonable or wrong. Therefore, he did not consider that further enquiries by his office were either necessary or justifiable. In that letter, he advised the second defendant that he intended to end consideration of the complaint unless the second defendant was able to identify an error in his assessment of the matter. A response was requested by 7 April 2018, after which the Ombudsman indicated his intention to close the file.[16]
[16] See the first King affidavit, Exhibit RK-2A.
On 9 April 2018, Mr Chambers, on behalf of the second defendant, wrote to the Ombudsman requesting an extension of time to respond to the Ombudsman’s letter of 21 March 2018.[17]
[17] See the third Mackay affidavit, Exhibit WNM-28.
Mr Chambers thereafter provided statutory declarations from two of the Anangu Board members concerning the events which had occurred around the timing of the requisition for the Special General Meeting in March 2017.
The Ombudsman wrote to the plaintiff on 26 April 2018 informing him that as a consequence of receiving the information contained within the statutory declarations from Mr Chambers, he required further information from the plaintiff, including the plaintiff’s response to the allegations about the plaintiff’s behaviour during the Board meeting on 8 March 2017.[18]
[18] See the first King affidavit, Exhibit RK-2B.
One of the statutory declarations provided by Mr Chambers to the Ombudsman on 20 April 2018 was that of the second defendant. The statutory declaration was signed by the second defendant and the authenticity of that signature was unchallenged.
On 16 May 2018, an assessment officer of the Ombudsman had a meeting at which both Mr Chambers and the second defendant were present. That was the meeting at which, out of an abundance of caution, the Ombudsman requested a further authority signed by the second defendant with the correct reference number ‘2017/05243’.
Proceedings commence
On 31 May 2018, the plaintiff filed a Statement of Grounds in this Court seeking judicial review of a number of purported decisions made by the Ombudsman during both investigations. An affidavit of the plaintiff was filed in support of the application on the same date (the first King affidavit).
On 6 July 2018, the matter first came before this Court. Orders were made regarding the timetable for the filing of affidavits and statements of agreed facts and for the disclosure of documents.
The Interlocutory Application
On 10 August 2018, the Ombudsman wrote to the plaintiff advising that he intended to issue an addendum report to “remove any ambiguity that might arise from the wording” used in the report.[19] With respect to the issue of whether the plaintiff had erred in failing to provide copies of the handwritten notes to the complainant, the Ombudsman indicated that the report would be altered with the following additions in bold and underlined.
[19] See affidavit of Ruth Louise Cresswell Morley affirmed 16 August 2018, Exhibit RM-B.
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. 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, between July 2016 and March 2017.
…
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.
In response to that letter, the plaintiff filed an Interlocutory Application in this Court on 22 August 2018 seeking an injunction restraining the Ombudsman from any further investigation or consideration in respect of the 2016 investigation, pending the outcome of the plaintiff’s substantive proceedings for judicial review in the Statement of Grounds filed on 31 May 2018.
I heard argument on that application on 20 September 2018. At the close of submissions, I declined to grant the plaintiff’s application for an injunction and in due course delivered my reasons.[20]
[20] See King v Ombudsman & Anor [2018] SASC 155.
In summary, my view at that time was that the plaintiff had failed to establish he would suffer any prejudice as a result of the Ombudsman proceeding to issue the proposed clarification.
On 5 October 2018, the Ombudsman subsequently issued an addendum report with the above additions included.[21]
[21] See the fifth Mackay affidavit, Exhibit WNM-32.
The Ombudsman agreed to delay any further investigation into the 2017 matter until the conclusion of these proceedings.
The hearing on judicial review
I heard evidence in respect of the substantive proceedings on 4 and 17 December 2018.
The plaintiff gave evidence and tendered two affidavits sworn by him on 28 May 2018 and 12 September 2018 respectively. I received those affidavits subject to objections and subsequently ruled certain passages in both affidavits inadmissible.
My ruling in respect of each of the impugned paragraphs, together with brief reasons, is contained in the Schedule to these reasons.
In summary, those passages which were excluded were either irrelevant to any issue in the proceedings, contained hearsay, or were assertions of opinion which contained scandalous or other irrelevant material.
The plaintiff also tendered a letter sent by him to the Ombudsman dated 29 September 2018.[22] That letter contained the plaintiff’s submissions in respect of the Ombudsman’s addendum report.
[22] Exhibit P3.
The plaintiff was not cross‑examined by counsel for either defendant and no other witnesses were called by the plaintiff.
The first defendant called Mr Wayne Nicholas Mackay. Mr Mackay is a legal officer with the Ombudsman’s office. Five separate affidavits of Mr Mackay were tendered, affirmed on 4 July 2018, 3 August 2018, 31 August 2018, 6 September 2018 and 17 October 2018 respectively. A letter dated 17 May 2018, signed by Mr Chambers and sent via email to the Ombudsman’s office, was also tendered.[23]
[23] Exhibit O6.
Mr Mackay was cross‑examined extensively by counsel for the plaintiff. No other witnesses were called by the first defendant and the second defendant adduced no evidence.
The plaintiff’s complaints in respect of both investigations
The plaintiff’s complaints about the Ombudsman’s decisions arising out of the 2016 investigation, can be summarised as follows:
·The Ombudsman did not have jurisdiction to investigate complaints made in the name of the second defendant that the plaintiff had failed to provide access to or copies of certain documents to the second defendant.
·The Ombudsman was wrong to conclude that:
·the plaintiff acted in a manner that was wrong within the meaning of s 25(1) of the Ombudsman Act;
·the plaintiff should apologise to the second defendant;
·the plaintiff failed to co-operate with the Ombudsman’s investigation in a timely manner.
The plaintiff’s complaints in respect of the Ombudsman’s decision arising out of the 2017 investigation can be summarised as follows:
·The Ombudsman was wrong to conclude that he had jurisdiction to investigate complaints in the name of the second defendant that the plaintiff failed to arrange a Special General Meeting of APY as required by the APY Land Rights Act and that the plaintiff acted improperly on 6 March 2017, 23 March 2017 and 30 March 2017 in respect of that matter.[24]
·The Ombudsman was legally unreasonable in failing to discontinue the 2017 investigation pursuant to s 17(2) of the Ombudsman Act.
[24] The subject matter of the complaint is set out in Exhibit RK-2A to the first King affidavit, page 40; see also paragraph 6 of the third Mackay affidavit.
Grounds relevant to the 2016 investigation
The grounds upon which the plaintiff advances the application for judicial review pursuant to the 2016 investigation are set out below.
The Ombudsman acted beyond jurisdiction in commencing the 2016 investigation as he was prohibited by virtue of s 13(3)(a) of the Ombudsman Act from so doing.
Section 13(3)(a) provides that the Ombudsman must not investigate any administrative act where the complainant is provided with a right of appeal or review. The plaintiff submits that the APY Land Rights Act provided a right of review within the meaning of s 13(3)(a) of the Ombudsman Act in respect of the acts of the General Manager about which the second defendant complained. The plaintiff submits that the proviso in s 13(3) did not apply as there is no evidence that the Ombudsman turned his mind to form the opinion required by the proviso.
The proviso in s 13(3) permits the Ombudsman to investigate where the Ombudsman believes it is not reasonable to expect a complainant to resort to that appeal, review or remedy.
Before me, it was not disputed that the Ombudsman never did turn his mind to the proviso in s 13(3) as the Ombudsman took the view that the section was inapplicable.
The Ombudsman’s investigation was beyond jurisdiction as the investigation was tainted by third-party fraud.
The plaintiff submits that the complaint made in the name of the second defendant was in fact made fraudulently by a third party, namely Mr Chambers. The plaintiff submits that Mr Chambers impersonated the second defendant without disclosure or attribution of his truthful identity. The plaintiff submits that alleged third-party fraud of Mr Chambers “perverted the course of justice” by fraudulently representing to the Ombudsman that it was the second defendant who was personally seeking his assistance. It also portrayed a false narrative that the second defendant was the author of various complaints to the plaintiff and that the plaintiff was unresponsive to those complaints. The plaintiff submits that those actions diverted the Ombudsman from properly considering the jurisdictional constraints within ss 15(3a) and 17(2) of the Ombudsman Act.
The Ombudsman did not have jurisdiction to entertain the 2016 investigation because of the constraints in s 15(3a) of the Ombudsman Act.
This ground can be viewed as separate but allied to the second ground of complaint. Briefly, the plaintiff submits that, as the relevant complaint in respect of the 2016 investigation was made by Mr Chambers, it had not been brought by a person “directly affected by the administrative act to which the complaint relates” as required by the provisions in s 15(3a) of the Ombudsman Act.
The Ombudsman failed to have regard to the relevant considerations that ought to have informed the opinions expressed in the report and therefore fell into error.
The plaintiff refers to the failure of the Ombudsman to consider his explanation for not providing the handwritten notes, as requested, in making his finding in the report that the plaintiff had failed to co-operate with the Ombudsman’s investigation. The plaintiff submits that this finding was unreasonable in light of the plaintiff’s explanation, and the fact that it took the Ombudsman himself over 19 months to resolve the complaint.
The findings of the Ombudsman in his report were legally unreasonable.
The plaintiff submits that certain findings of the Ombudsman in the 2016 investigation were legally unreasonable in the sense articulated by the High Court in Minister for Immigration and Citizenship v Li.[25] The plaintiff complains specifically of the finding that the refusal of the plaintiff to provide copies of the handwritten notes of the APY Board meetings resulted in a lack of trust between one or more members of the Executive Board and the Administration of APY. The plaintiff also complains of the finding that there was no good reason for the plaintiff to refuse the second defendant access, in the form of copies, of the requested documents at the relevant time.
[25] (2013) 249 CLR 332, 375 [105] (Gageler J).
Grounds relevant to the 2017 investigation
The plaintiff makes three main complaints in relation to the 2017 investigation, which are set out below.
The Ombudsman acted beyond jurisdiction as the complaint in this matter was made by a third party, Mr Chambers, and not the second defendant.
Consistent with the submission made in respect of the 2016 investigation, the plaintiff again contends that the complaint was made by a third party and, as such, the complainant was not a person directly affected by the subject matter of the complaints. The plaintiff submits that the Ombudsman was therefore prohibited from entertaining the complaint by s 15(3a) of the Ombudsman Act.
A secondary complaint under this ground is that the second defendant was not a person directly affected in any event as the second defendant was no longer a Board member of APY at the time the complaint was made on 17 May 2017. The plaintiff contents that the second defendant therefore had no interest greater than any other Anangu community member within the meaning of s 15(3a) of the Ombudsman Act.
Having determined to end consideration of the 2017 complaint as evidenced in the letter to the second defendant on 21 March 2018, the Ombudsman thereafter changed his mind and decided to investigate notwithstanding that initial determination.
The plaintiff submits this decision was also legally unreasonable within the meaning of that term as enunciated in Li, pursuant to s 17(2) of the Ombudsman Act.
The further complaint made on 20 April 2018 in respect of the plaintiff’s conduct at a meeting on 8 March 2017 was not made within the time prescribed by s 16(1) of the Ombudsman Act.
The plaintiff submits in support of this ground that the Ombudsman could not entertain the complaint as he had not formed the requisite opinion under s 16(1) of the Ombudsman Act. That section provides that the Ombudsman may only entertain a complaint made after 12 months from the day on which the complainant first had notice of the matters alleged in the complaint if the Ombudsman has formed the opinion that, in all the circumstances of the case, it is proper to entertain the complaint.
Discussion
I turn now to discuss the issues arising from the grounds identified by the plaintiff in respect of the 2016 investigation.
Was the Ombudsman prohibited from investigating pursuant to s 13(3)(a)?
The first issue is whether the Ombudsman was prohibited from investigating the first complaint (the 2016 investigation) by virtue of the terms of s 13(3)(a) of the Ombudsman Act.
That section is reproduced below.
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 plaintiff submits that the complaint fell within the terms of s 13(3)(a) because the second defendant had a right of review under an enactment.
The plaintiff referred to ss 12F and 35A of the APY Lands Rights Act. Those sections relevantly state:
12F—Code of conduct
(1) The Executive Board must prepare a code of conduct to be observed by members of the Executive Board, the Director of Administration, the General Manager and any employees of Anangu Pitjantjatjara Yankunytjatjara.
(2) The code of conduct must contain the following provisions:
(a) a provision requiring that a person referred to in subsection (1) must not divulge or communicate personal information obtained (whether by that person or otherwise) in the course of official duties except—
(i) as required or authorised by or under this Act or any other Act or law; or
(ii) with the consent of the person to whom the information relates; or
(iii)in connection with the administration of this Act;
(b) a provision requiring that a person referred to in subsection (1) must not engage in bullying of, harassment of or threatening behaviour towards any Anangu or persons employed by Anangu Pitjantjatjara Yankunytjatjara, in the course of, or the purported course of, official duties;
(c) a provision requiring that a person referred to in subsection (1) must declare any unsolicited gifts received by them in the course of, or related to, official duties;
(d) any other provision prescribed by the regulations.
(3) Subject to this Act, the Executive Board may at any time amend the code of conduct, or substitute a new code of conduct.
(4) The code of conduct prepared, and any amendment or substitution under this section, must be presented to Anangu Pitjantjatjara Yankunytjatjara at the next general meeting for approval.
(5) A person referred to in subsection (1) must comply with the approved code of conduct.
(6) The Executive Board must, within 12 months after each election of the Executive Board, complete (and, as appropriate, implement) a review of its code of conduct under this section.
(7) The code of conduct must not diminish a right under any Act or law.
(8) A person is entitled to inspect (without charge) the code of conduct—
(a) at the places on the lands, and during the times, nominated by the Executive Board and approved by the Minister; and
(b) during ordinary office hours at the principal office of Anangu Pitjantjatjara Yankunytjatjara.
(9) A person is entitled, on payment of the fee prescribed by the regulations, to a copy of the code of conduct.
…
35A—Application for conciliation
(1) An Anangu who is aggrieved by a decision or action of the Executive Board may apply to the Minister for conciliation in relation to that decision or action.
(2) An application under this section must be made in a manner and form determined by the Minister.
(3)On receiving an application under this section, the Minister—
(a)must refer the application to a member of the panel of conciliators to determine whether or not the matter is frivolous or vexatious, or otherwise lacks merit; and
(b)must, if that member determines that the matter is not frivolous or vexatious or lacking in merit, appoint a conciliator (not being the conciliator who made the determination) from the panel of conciliators to hear the matter.
The code of conduct drawn up by the APY Executive Board pursuant to s 12F of the APY Land Rights Act (“Code”) was tendered in these proceedings.[26]
[26] See affidavit of Richard King sworn 12 September 2018 (“the second King affidavit”), Exhibit RK-20.
The relative portions of the Code on which the plaintiff specifically relies are set out below.
·Follow the rules;
·Do your job properly and honestly;
·Be respectful and fair;
…
·Do not talk with anyone else about APY business or personal information that you know about because you work for APY;
·Do not bully, harass or intimidate people;
…
In support of his submission that the Code is an enactment for the purposes of s 13(3)(a) of the Ombudsman’s Act, the plaintiff argues that the Code was expressly authorised by s 12F of the APY Land Rights Act and it authorised decisions to be made from which new rights or obligations might arise.
In making this submission, the plaintiff relies on observations made by the High Court in Griffith University v Tang,[27] in particular the following passages in which the Court (per Gummow, Callinan and Heydon JJ) explained the criteria to be applied in determining whether a decision is “made under an enactment”.[28]
The determination of whether a decision is "made ... under an enactment" involves two criteria: first, the decision must be expressly or impliedly required or authorised by the enactment; and, secondly, the decision must itself confer, alter or otherwise affect legal rights or obligations, and in that sense the decision must derive from the enactment. A decision will only be "made ... under an enactment" if both these criteria are met. It should be emphasised that this construction of the statutory definition does not require the relevant decision to affect or alter existing rights or obligations, and it will be sufficient that the enactment requires or authorises decisions from which new rights or obligations arise. Similarly, it is not necessary that the relevantly affected legal rights owe their existence to the enactment in question. Affection of rights or obligations derived from the general law or statute will suffice.
[27] (2005) 221 CLR 99.
[28] (2005) 221 CLR 99, 130 [89].
The plaintiff submitted that, as the Code was prepared pursuant to s 12F(1) of the APY Land Rights Act, the first limb of the test in Tang was therefore satisfied.
The plaintiff further submitted that, as the Code contains a procedure to be followed in respect of any complaint against the General Manager, the outcome of which may give rise to a direction pursuant to s 13M of the APY Land Rights Act and/or for a conciliation pursuant to s 35A of that Act, the second limb of the test in Tang was therefore satisfied.
Further any breach of a duty imposed under s 12F of the APY Land Rights Act, if established, may give rise to grounds for the General Manager’s termination pursuant to s 13G of that Act. Section s 13M relevantly states:
The Director of Administration, the General Manager and any employees of Anangu Pitjantjatjara Yankunytjatjara are not subject to direction by an individual member of the Executive Board unless the member of the Executive Board is acting in accordance with a resolution of the Executive Board.
There are two difficulties with the plaintiff’s submissions. The obligations set out in the Code, including the extracts relied upon by the plaintiff, are stated at a very high level of generality with the main focus on the interrelationship between the APY Executive Board and APY members. Whilst the APY Land Rights Act requires the APY Executive Board to prepare a code of conduct, there is no requirement in any statute for the code of conduct to contain any particular provisions concerning any rights of appeal, reference, review or remedy.
There is no specific or generalised obligation contained within the Code obliging the General Manager to provide the documents the second defendant requested. In my view, therefore, the complaint made by the second defendant could not properly be made the subject of a breach of the Code enabling the second defendant to have pursued the complaint procedure set out therein.
Even assuming it could be, the second defendant could not have availed himself of the right to conciliation contained in the Code. It is evident, on the face of s 35A of the APY Land Rights Act, that the conciliation process applies only to a complaint about a decision or action of the Executive Board itself.
In my view, therefore, the Ombudsman was correct to conclude that the provisions of s 13(3)(a) of the Ombudsman Act did not apply to prevent investigation of the second defendant’s complaint.
I turn now to consider the next issue which arises, namely whether the Ombudsman was prohibited by s 15(3a) of the Ombudsman Act from investigating the complaints.
Was the Ombudsman prohibited from investigating pursuant to s 15(3a)?
Section 15(3a) of the Ombudsman Act relevantly provides:
15—Persons who may make complaints
…
(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.
This issue is entwined with the allegation of fraud on the part of Mr Chambers and is relevant to the complaints made in respect of both the 2016 as well as the 2017 investigation.
The plaintiff contends that the 2016 and 2017 investigations were tainted by what he referred to as the third-party fraud of Mr Chambers and, therefore, both investigations were beyond the jurisdiction of the Ombudsman.
The plaintiff contends that the complaints which gave rise to both investigations were made by Mr Chambers, a person not directly affected by any of the matters the subject of either the 2016 or the 2017 complaints.
The plaintiff complains in respect of the 2016 investigation, that the relevant complaint was made in the name of “Trevor Adamson”; both emails in respect of the 2016 complaint, dated 23 September 2016 and 26 September 2016 respectively, came from an email address “[email protected]”.
The plaintiff submits that the complaint was in fact made by Mr Chambers impersonating the second defendant without any attribution of his truthful identity.
The allegation of fraud on the part of Mr Chambers was extended in the plaintiff’s oral submissions to include later emails sent from the same email address, “[email protected]”, as well as emails sent from an email address, “[email protected]”.
The plaintiff submits that it is plain Mr Chambers operated both email addresses. It is said that Mr Chambers’ practice of sending those emails in the name of the second defendant had the effect of perverting the course of justice in respect of the 2016 investigation.
The particulars of the fraud alleged by the plaintiff are that the emails had the effect of fraudulently representing to the Ombudsman that the second defendant was personally seeking his assistance when it was in fact Mr Chambers impersonating the second defendant, seeking to avail himself of the complaint process against the plaintiff.
The fraud, in the plaintiff’s submission, extended to the fraudulent portrayal by Mr Chambers, while impersonating the second defendant, of a false narrative that in fact the second defendant had been the author of numerous direct complaints to the plaintiff, when the plaintiff was unresponsive to his complaints. In the plaintiff’s submission, it was in fact Mr Chambers who made all the complaints to the plaintiff.
The plaintiff submits that the evidence that Mr Chambers was impersonating the second defendant in all of the email communications is irresistible in light of the fact that an email purporting to come from the second defendant was sent during a meeting at which the second defendant himself was present. That email, which was purportedly from the second defendant, complained of the plaintiff’s behaviour during the meeting. There is no dispute that the second defendant and the plaintiff were both present during that meeting.
In respect of these allegations, I consider it of some moment that four days before the complaint of 23 September 2016, the second defendant had written to the Ombudsman in a letter signed by the second defendant. That complaint was registered on the Ombudsman’s database with an investigation number ‘2016/07482’ and assigned to an assessment officer, Ms King. That complaint was later superseded by the ‘2016/07614’ investigation file. The point is, however, that there is no evidence that the letter signed and sent by the second defendant was not as it was purported to be, namely a letter signed by him and sent to the Ombudsman’s office.
The plaintiff’s submission also overlooks the fact that at no stage was the authenticity of the three ‘Authority to Act’ documents signed by the second defendant challenged. On their face, each of those authorities authorised the Ombudsman to deal with Mr Chambers as the authorised representative of the second defendant for the purpose of each of the complaints made by the second defendant against the plaintiff in both the 2016 and 2017 investigations.
At no stage was there any evidence which had the tendency to undermine or challenge any of those authorities. It is apparent on the fact of each authority that they were prepared in the office of the Ombudsman for the specific purpose of satisfying the Ombudsman that a third party, namely Mr Chambers, was duly authorised to act on behalf of the complainant/second defendant in both matters.
The oral evidence of Mr Wayne Mackay supports that conclusion.
In short, there is not a shred of evidence to support the suggestion that Mr Chambers intended to or did deceive the Ombudsman into thinking that the complaints he made were the second defendant’s when in fact they were not.
There is no evidence that Mr Chambers engaged in any other pretence in relation to his involvement in the matters separately from the second defendant. In fact, the evidence points to the contrary, namely that Mr Chambers’ representation of the second defendant in pursuance of all the complaints was well known to the Ombudsman and his staff.
Moreover, the evidence of Mr Mackay demonstrated that the staff of the Ombudsman’s office spoke to the second defendant personally about each of the subject complaints. The initiating complaints in respect of the 2016 investigation, dated 23 and 26 September 2016 respectively, were both signed by the second defendant. Shortly after those complaints were made an officer of the Ombudsman’s office spoke personally with the second defendant on 30 September 2016 and again on 1 November 2016.
Later, on 16 May 2018, the second defendant, along with others, attended a meeting at the Ombudsman’s office with reference to the 2017 complaints.
The Ombudsman, in his final report about the 2016 investigation, adverted specifically to the allegations of the plaintiff as to the alleged third-party fraud and the real identity of the complainant.
The Ombudsman noted that the plaintiff’s legal representatives had commented that the complainant’s purported request for copies of the handwritten notes had also requested that they be sent to an email address that the plaintiff believed to be an email address operated by the third party, namely Mr Chambers.
It is apparent that, as a consequence, the Ombudsman then referred to the Authority to Act and asserted that such an authority would be required to consider all of the complaints. Such authority in due course was forthcoming.
In light of those events as documented on the Ombudsman’s file, it is plain that the Ombudsman was satisfied that Mr Chambers had the authority to represent the second defendant in relation to all of the complaints.
For these reasons, I consider that the plaintiff has wholly failed to prove the allegation of third-party fraud made in respect of both the 2016 and 2017 complaints.
The evidence establishes that at all material times, Mr Chambers was authorised to act on the second defendant’s behalf and he did so.
Accordingly, the second defendant is plainly a person directly affected within the meaning of s 15(3a) of the Ombudsman Act.
At the time of the relevant administrative acts which occurred during meetings and associated events in March 2017, the second defendant was, by virtue of his position as Chairperson of the APY Executive Board, a person directly affected. He had a personal and individual interest in the administrative acts relating to the APY Executive Board minutes, meeting procedures and administrative practices and had a proper reason to request them. That the second defendant subsequently ceased to be Chairperson of the APY Executive Board in April 2017 is irrelevant to the conclusion that at the relevant time, when the administrative acts complained of were made, he was a person directly affected. The later change in the complainant’s circumstances does not alter the fact that, at the relevant time, he was a person directly affected by the administrative acts and omissions of the plaintiff.
For these reasons, I conclude that the Ombudsman was not prohibited by the terms of s 15(3a) of the Ombudsman Act from entertaining any of the complaints made with respect to both investigations.
I turn now to consider the next issue which arises, which is whether certain decisions made by the Ombudsman during the course of the 2016 investigation were legally unreasonable.
Legal unreasonableness
Several of the grounds pressed by the plaintiff with respect to the 2016 investigation assert legal unreasonableness in the Ombudsman’s conclusion that the plaintiff failed to co-operate, that there was no good reason for the General Manager to refuse access to the handwritten notes between July 2016 and March 2017, and that the plaintiff had acted in a manner that was “wrong” within the meaning of s 25(1)(g) of the Ombudsman Act.
The plaintiff also maintains that the Ombudsman’s decision to continue with the 2017 investigation was legally unreasonable.
Each of the plaintiff’s complaints therefore calls for the application of the relevant principles relating to “legal unreasonableness” as a ground of judicial review.
Before I turn to consider the particular complaints made with respect to each investigation, it is instructive to firstly examine the relevant principles. A particularly helpful distillation of the applicable principles is to be found in the reasons of the Full Federal Court (Allsop CJ, Griffiths and Wigney JJ) in The Minister for Immigration v Eden at [58] - [65].[29]
[29] (2016) 240 FCR 158.
58First, the concept of legal unreasonableness concerns the lawful exercise of power. Legal reasonableness, or an absence of legal unreasonableness, is an essential element in the lawfulness of decision-making: Li at [26] and [29] (French CJ), [63] (Hayne, Kiefel and Bell JJ) and [88] (Gageler J); Singh at [43]; Stretton at [4] (Allsop CJ) and [53] (Griffiths J).
59Second, the Court’s task in determining whether a decision is vitiated for legal unreasonableness is strictly supervisory (Li at [66]). It does not involve the Court reviewing the merits of the decision under the guise of an evaluation of the decision’s reasonableness, or the Court substituting its own view as to how the decision should be exercised for that of the decision maker: Li at 363[66] (Hayne, Kiefel and Bell JJ); Stretton at [12] (Allsop CJ) and [58] (Griffiths J); see also Plaintiff M64/2015 v Minister for Immigration and Border Protection (2015) 90 ALJR 197 at [23]. Nor does it involve the Court remaking the decision according to its own view of reasonableness: Stretton at [8] (Allsop CJ).
60Third, there are two contexts in which the concept of legal unreasonableness may be employed. The first involves a conclusion after the identification of a recognised species of jurisdictional error in the decision making process, such as failing to have regard to a mandatory consideration, or having regard to an irrelevant consideration. The second involves an “outcome focused” conclusion without any specific jurisdictional error being identified: Li at [27]-[28] (French CJ), [72] (Hayne, Kiefel and Bell JJ); Singh at [44]; Stretton at [6] (Allsop CJ).
61 This appeal is primarily concerned with whether the outcome of the Minister’s exercise of power was legally unreasonable. That said, some of the primary judge’s reasons for concluding that the decision was unreasonable, and some of the appeal grounds and submissions, are directed at the Minister’s reasons and alleged errors in the decision-making process.
62 Fourth, in assessing whether a particular outcome is unreasonable, it is necessary to bear in mind that within the boundaries of power there is an area of “decisional freedom” within which a decision-maker has a genuinely free discretion: Li at [29] (French CJ), [66] (Hayne, Kiefel and Bell JJ). Within that area, reasonable minds might differ as to the correct decision or outcome, but any decision or outcome within that area is within the bounds of legal reasonableness: Li at [66] (Hayne, Kiefel and Bell JJ); Stretton at [7] (Allsop CJ). Such a decision falls within the range of possible lawful outcomes of the exercise of the power: Li at [105] (Gageler J); Stretton at [11] (Allsop CJ).
63Fifth, in order to identify or define the width and boundaries of this area of decisional freedom and the bounds of legal reasonableness, it is necessary to construe the relevant statute: Li at [24] (French CJ), [67]-[67] (Hayne, Kiefel and Bell JJ); Stretton at [55] and [62] (Griffiths J). The task of determining whether a decision is legally reasonable or unreasonable involves the evaluation of the nature and quality of the decision by reference to the subject matter, scope and purpose of the relevant statutory power, together with the attendant principles and values of the common law concerning reasonableness in decision-making: Stretton at [7] and [11] (Allsop CJ). The evaluation is also likely to be fact dependant and to require careful attention to the evidence: Singh at [42].
64Sixth, where reasons for the decision are available, the reasons are likely to provide the focus for the evaluation of whether the decision is legally unreasonable: Singh at [45]-[47]. Where the reasons provide an evident and intelligible justification for the decision, it is unlikely that the decision could be considered to be legally unreasonable: Singh at [47]. However, an inference or conclusion of legal unreasonableness may be drawn even if no error in the reasons can be identified. In such a case, the court may not be able to comprehend from the reasons how the decision was arrived at, or the justification in the reasons may not be sufficient to outweigh the inference that the decision is otherwise outside the bounds of legal reasonableness or outside the range of possible lawful outcomes: Li at [76] (Hayne, Kiefel and Bell JJ); Stretton at [13] (Allsop CJ).
65Seventh, and perhaps most importantly, the evaluation of whether a decision is legally unreasonable should not be approached by way of the application of particular definitions, fixed formulae, categorisations or verbal descriptions. The concept of legal unreasonableness is not amenable to rigidly defined categorisation or precise textural formulary: Stretton at [2] and [10] (Allsop CJ) and [62] (Griffiths J). That said, the consideration of whether a decision is legally unreasonable may be assisted by reference to descriptive expressions that have been used in previous cases to describe the particular qualities of decisions that exceed the limits and boundaries of statutory power. A number of those cases, and the descriptive expressions used in them, are referred to in Li and in the judgment of Allsop CJ in Stretton (at [5]). The expressions that have been utilised include decisions which are “plainly unjust”, “arbitrary”, “capricious”, “irrational”, “lacking in evident or intelligible justification”, and “obviously disproportionate”. It must be emphasised again, however, that the task is not an a priori definitional exercise. Nor does it involve a “checklist” exercise: Singh at [42]. Rather, it involves the Court evaluating the decision with a view to determining whether, having regard to the terms, scope and purpose of the relevant statutory power, the decision possesses one or more of those sorts of qualities such that it falls outside the range of lawful outcomes.
I have borne those principles in mind when considering the complaints made by the plaintiff about the Ombudsman’s decisions.
At the outset, I observe that the role of the Ombudsman, under the Ombudsman Act, is to scrutinise public administration and to bring publicity to administrative issues. Opinions formed and recommendations made by the Ombudsman following an investigation have no direct or indirect legal consequences.
However, the Ombudsman must observe the requirements of procedural fairness. Some of those requirements are set out in the Ombudsman Act itself, which provides as follows.
18—Procedure on investigations
…
(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.
…
(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.
At the conclusion of an investigation, the Ombudsman may form an opinion in accordance with the provisions set out in s 25(1) of the Ombudsman Act which provides relevantly as follows:
(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.
The Ombudsman Act does not set out any criteria for the forming of any opinion the Ombudsman might hold, nor does that Act require that reasons be provided except in the circumstances set out in s 25(2) which relevantly provides:
(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
(bthat 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.
With those general considerations in mind, I turn to consider the specific complaints made by the plaintiff.
Did the Ombudsman fail to have regard to relevant considerations and were the findings in the Ombudsman’s report legally unreasonable?
The plaintiff complains that the Ombudsman’s conclusion that there was no good reason for the plaintiff to have refused to provide copies of the handwritten notes to the second defendant is erroneous. The plaintiff further complains that the Ombudsman failed to have regard to relevant considerations, namely the plaintiff’s explanation as to why he did not produce handwritten copies to the second defendant. Accordingly, the plaintiff submitted that the Ombudsman’s conclusions were “devoid of any possible, acceptable basis”.
I observe that, notwithstanding all of the material tendered by the first defendant in these proceedings to contrary effect, the plaintiff continued to assert throughout the whole of these proceedings that the second defendant never asked or made any request to the plaintiff. He maintained, rather, that it was a third party, namely Mr Chambers.
In a letter to the Ombudsman dated 19 December 2017, the plaintiff (via his legal representative Ms Morley) asserted that the second defendant had “purportedly requested copies of the handwritten notes from several meetings be sent to an email address” which, the plaintiff submitted, was an email address operated by someone other than the second defendant.[30]
[30] See the first King affidavit, Exhibit RK-3.
This is the letter which the plaintiff complains was ignored by the Ombudsman in reaching his conclusion that the plaintiff’s decision not to hand over or make the notes available for the second defendant to access was “wrong” within the meaning of s 25(1)(g) of the Ombudsman Act.
From my examination of the history of the Ombudsman’s investigation into this matter, tendered as evidence in these proceedings, I consider that there was in fact a proper basis for the Ombudsman’s finding that there was no good reason to deny the second defendant access to the handwritten notes and that the plaintiff’s decision not to do so was wrong.
In the letter signed by the second defendant to the Ombudsman on 23 September 2016, to which I have referred previously in these reasons, he told the Ombudsman that he had asked for copies of the handwritten minutes twice. He said that the plaintiff had refused to give him copies and said he was busy and had to go out.
Shortly thereafter, by letter dated 10 October 2016, the second defendant forwarded to the Ombudsman an authority for Mr Chambers to act to assist him with regard to his complaint.
The tendered documentation, namely the correspondence between the Ombudsman’s office and the plaintiff subsequent to the complaint made on 23 September 2016, reveals that the plaintiff initially refused to provide the requested documents and, at times, adopted an obstructive approach to the Ombudsman. The communication from the plaintiff to the Ombudsman dated 2 December 2016,[31] is one such example in which the plaintiff, in response to the Ombudsman, was both high‑handed and dismissive.
[31] See the second Mackay affidavit, Exhibit WNM-15.
While it may be true that, in his report, the Ombudsman did not explicitly refer to the plaintiff’s letter of 19 December 2017 (in which he explained that he decided not to hand over the notes to the second defendant because of doubts about the identity of the person who had requested the notes), I do not consider there was any obligation on the Ombudsman to do so.
It is apparent from the tendered material evidencing the communications between the Ombudsman’s office and the plaintiff about this issue, that the Ombudsman did understand the plaintiff’s explanation, however, he did not agree with it. At one stage, it is apparent that the Ombudsman questioned the plaintiff’s objection to Mr Chambers advocating for the second defendant. So much is evident from the letter dated 4 November 2016 from the Ombudsman to the plaintiff.[32]
[32] See the first King affidavit, Exhibit RK-6.
For these reasons, I am satisfied that it was open to the Ombudsman to conclude that the plaintiff failed for some time to produce the handwritten notes as requested and that there was no good reason for him to have done so.
The plaintiff had refused to provide copies in response to the second defendant’s oral and subsequent written requests despite the fact those requests were repeated. At that time, the second defendant was still the Chairperson of the APY Executive Board.
After the complaint was received by the Ombudsman and the Ombudsman requested that the plaintiff hand over the notes, he prevaricated for some time. The plaintiff’s subsequent explanation – that he could not hand over the notes as the APY Executive Board passed a resolution on 6 December 2016 that the handwritten notes were not to be provided to the Ombudsman – does not explain why the notes were not provided prior to that date, since the first request by the Ombudsman on 4 November 2016. Furthermore, when the Ombudsman issued a summons, which was served on the plaintiff on 12 December 2016, the plaintiff still failed to produce the requested documents until February 2017. The explanation was that he was going on leave and seeking legal advice.
In the circumstances, therefore, I consider it was open to the Ombudsman to form the opinions which he did, that the plaintiff did not co-operate and further, that the decision not to hand over the notes was wrong.
For the same reasons, I consider it was open to the Ombudsman to conclude that there was a lack of trust between one or more members of the APY Executive Board and the Administration under the plaintiff’s management. The material tendered in these proceedings demonstrates that it was plainly open to the Ombudsman to find there was considerable disharmony between the members of the Board and the Administration during the plaintiff’s management.
The plaintiff’s submission that the unreasonableness of the opinion reached by the Ombudsman is also manifested by the Ombudsman’s own delay in concluding the investigation into the 2016 matter after a period of some 13 months is, in my view, irrelevant to the determination of whether the Ombudsman’s actions in that period were legally unreasonable.
I turn now to consider the plaintiff’s argument that the Ombudsman’s failure to discontinue the 2017 investigation was legally unreasonable.
Was the Ombudsman legally unreasonable in failing to discontinue the 2017 investigation?
The plaintiff’s complaint in respect of the 2017 matter was based on the letter which the Ombudsman wrote to the second defendant on 21 March 2018.[33] The complaint made is that the Ombudsman, having formed the opinion that further enquiries were neither necessary nor justifiable, later unreasonably failed to discontinue the investigation.
[33] See the first King affidavit, Exhibit RK-2A.
It is evident from the correspondence on the Ombudsman’s file that the second defendant wrote to the Ombudsman on 9 April 2018 enclosing further material which bore upon the allegations the subject of the 2017 investigation.[34] It will be recalled those allegations related to the plaintiff’s alleged failure to arrange a Special General Meeting as requested by the second defendant. The material forwarded to the Ombudsman’s office on 9 April 2018 on behalf of the second defendant included a statutory declaration from Mr Murray George, one of the Anangu Board members who had supported the requisition for a Special General Meeting. Shortly after that, a further statutory declaration from the second defendant, bearing on the same events which occurred at the meeting on 8 March 2017, was also forwarded to the Ombudsman’s office on 20 April 2018.
[34] See the third Mackay affidavit, Exhibit WNM-28.
It was as a consequence of receiving the further information in the form of those statutory declarations and emails in April 2018, that the Ombudsman determined to seek additional information from the plaintiff concerning the further allegations with a view to deciding whether or not to conduct a full investigation into the matter.
The plaintiff submits that the allegations made in April 2018 constitute a new complaint and were therefore made outside the 12-month time limit prescribed by s 16(1) of the Ombudsman Act.
The plaintiff argues that as the meeting which was the subject of the April 2018 complaint occurred on 8 March 2017, it amounted to a fresh complaint which was made out-of-time. Furthermore, the plaintiff argues that the Ombudsman did not turn his mind to form the requisite opinion under s 16(1) of the Ombudsman Act and was therefore prohibited from further investigation of the 2017 matter.
Finally, the plaintiff submits that, irrespective of whether s 16(1) of the Ombudsman Act did apply to the further allegations made in April 2018, the Ombudsman’s conduct in exercising a discretion not to terminate the 2017 investigation after receiving the further statutory declarations from Mr George and the second defendant was unreasonable in the sense articulated in Li.
In my view, the plaintiff’s submissions are misconceived. As evidenced by the history referred to in paragraphs [22] to [32] herein, the two further complaints came out of an established context in which the Ombudsman was fully aware of Mr Chambers’ role and fully aware of the course of the 2016 investigation, which was still underway when the initiating complaint was made with respect to the 2017 investigation. Indeed, in the first set of emails forwarding the complaints of 17 May 2017, Mr Chambers referred to the Ombudsman reference number ‘2016/07614’. It was not until 22 May 2017 that the Ombudsman gave those complaints the Ombudsman reference number ‘2017/05243’.
Based on the correspondence between the Ombudsman’s office and the plaintiff’s representatives from May 2017 until May 2018, it is plain the parties treated the further allegations made by both Mr George and the second defendant in May 2018 as additional information concerning the original complaint as to the events which had occurred at the meeting on 8 March 2017.
In these circumstances, it is plain that the material forwarded by both Mr George and the second defendant via Mr Chambers in April 2018, did not amount to a fresh complaint but was plainly additional information provided in respect of the original complaint made in May 2017 concerning the events at the meeting on 8 March 2017.
It is apparent from the evidence of Mr Mackay with respect to the further Authority to Act, which was signed in May 2018, that the further authority was obtained out of an abundance of caution specifically because the first authority incorrectly referenced the 2016 investigation.
As the witness, Mr Mackay, explained in evidence, the information received from the second defendant and Mr George in April 2018 cast doubt on whether the Ombudsman’s preliminary view would have been reached had the subsequent information been available at the time. It was therefore that information which led him to form the view that further enquiries were necessary. It is plain from Mr Mackay’s evidence and the other material tendered that no determination to end the investigation had been made by the date of the letter to the second defendant on 21 March 2018. On its face, the Ombudsman expressed his view as contingent on there being no response from the second defendant.
There is no provision in the Ombudsman Act which causes me to doubt that the Ombudsman has the power to change his mind during the course of an investigation. Nor is there any provision in the Ombudsman Act which bars the Ombudsman from changing his mind. Consistent with the purpose and functions of the Ombudsman Act, I consider that the powers given to him may be exercised as required, even in a case where the Ombudsman has already reported.
The facts in Boyd v Ombudsman[35] illustrate that there can be circumstances where the interests of justice require that a complaint be further investigated or that the Ombudsman may change his mind, even in a case when he has already reported.
[35] Boyd v The Ombudsman & Anor [1983] 1 NSWLR 620.
In Boyd, the Ombudsman had already reported, under the Police Regulation (Allegations of Misconduct) Act 1978 (NSW), that a complaint concerning a member of the police force had not been sustained.
After reporting as such, the Ombudsman received further information which cast doubt on the correctness of his earlier report.
The Court held that if the Ombudsman has reason to suspect that his report may have been in error, justice required that he should have the opportunity of having the complaint further investigated with a view to correcting any error thereby disclosed.
In those circumstances, the Court held that in the absence of any provisions specifically precluding it, the Ombudsman had the power to require a complaint to be further investigated, notwithstanding that he had already reported under the Ombudsman Act.
Here, on any view of the matter, the Ombudsman’s investigation had not been completed and the Ombudsman had not reported.
In my view, the reasoning in Boyd is apposite, notwithstanding the fact that the investigation in that case had clearly concluded.
For these reasons, I consider that it was open to the Ombudsman to continue the 2017 investigation. In light of the further information received, the plaintiff has not established that it was a legally unreasonable decision to do so.
Is prerogative relief available to quash the findings of the Ombudsman or restrain the Ombudsman from continuing the 2017 investigation?
I acknowledge that the Ombudsman submitted that the plaintiff is not entitled to any of the relief sought on the ground that the report of the Ombudsman in respect of the 2016 investigation is not amenable to judicial review.
In contending that the remedy of certiorari is available to quash the findings of the Ombudsman, the plaintiff relied on Ainsworth v The Criminal Justice Commission[36] and a number of authorities from intermediate courts subsequent to the decision in Ainsworth. The Ombudsman, in arguing that the remedy of certiorari is not available, referred to a number of authorities including Hot Holdings Pty Ltd v Creasy,[37] Kaldas v Barbour,[38] and sought to distinguish the decision of Stanley J in City of Port Adelaide Enfield v Bingham.[39]
[36] (1992) 175 CLR 564.
[37] (1996) 185 CLR 149.
[38] (2017) 326 FLR 122.
[39] (2014) 119 SASR 1.
In Kaldas, the New South Wales Court of Appeal analysed the authorities relevant to this issue in detail. After his detailed analysis of the authorities, Bathurst CJ expressed the following opinion at [168]:
Were it necessary to finally decide the point, I would conclude that on the present state of authority, certiorari would not lie to quash a report of the Ombudsman. This is because the report could not be said to be part of a process which would lead to the affectation of an individual’s rights. The fact that the relevant Minister or public authority may take unidentified action which may affect the legal rights of a public authority (including an individual falling within that definition) does not seem to me to affect the position.
While I have not found it necessary to express any concluded view about the Ombudsman’s argument in this case, I am prepared to assume, without finally deciding the point, that the prerogative relief sought by the plaintiff is available. I have therefore assessed the plaintiff’s application on its merits to determine whether there is any proper ground upon which any order or orders for prerogative relief should be made. In accordance with the reasons outlined above, I have reached the conclusion, on the merits of the application, that no such order should be made.
Conclusion
For these reasons, I find that the Ombudsman had jurisdiction to investigate the various complaints made by the second defendant in respect of both investigations.
I consider that it was open for the Ombudsman to have made the findings complained of with respect to the 2016 investigation. The plaintiff has failed to demonstrate that any of the Ombudsman’s conclusions in respect of that investigation are legally unreasonable.
The plaintiff has not established that there is any proper reason for this Court to restrain the Ombudsman from continuing with the 2017 investigation.
I dismiss the plaintiff’s application for judicial review. I will hear the parties as to costs.
Schedule of rulings on first and second defendants’ objections to admissibility of King affidavits
Affidavit of Richard King sworn on 28 May 2018
Paragraph
Ruling
Reasons
22 From sentence “I say this is an email address…” to “I say that Chambers resides in the State of Victoria.” is inadmissible. Assertion of opinion based partly on hearsay and partly in irrelevant assertions. 23 The whole of paragraph 23 is excluded. Expression of opinion irrelevant to any fact in issue. 24 The whole of paragraph 24 is admitted. 29 (29.1-29.5 inclusive) The whole of paragraph 29 is excluded. Inadmissible opinion in respect of unidentified facts. 30 The first sentence commencing “I know that …”, the second sentence commencing “That email address was…”, and the last sentence “I believe …” are excluded. Irrelevant assertion of opinion and belief not relevant to any fact in issue. Affidavit of Richard King sworn on 12 September 2018
Paragraph
Ruling
Reasons
16 (16.1-16.3 inclusive) The whole of paragraph 16 is excluded. Irrelevant assertions of opinion. 17 The whole of paragraph 17 is excluded. Irrelevant opinion evidence and argument. 18 The whole of paragraph 18 is excluded.
Irrelevant assertions of opinion and argument from which no inference can be drawn. 19 Paragraphs 19.3 to 19.8 are excluded. Irrelevant assertions of opinion and argument from which no inference can be drawn. 20 The whole of paragraph 20 is excluded. Assertions of opinion based on hearsay and irrelevant and inadmissible allegations 22 and 23 The whole of paragraphs 22 and 23 are excluded. Assertions of opinion based on hearsay and irrelevant and inadmissible allegations. 24 and 25 The whole of paragraphs 24 and 25 are excluded. Argument and expressions of opinion as to what inferences should be drawn from RK-5. 26 The first sentence beginning with “I know also that …” to “[email protected]” and part of the second sentence from “…sent by Chambers impersonating the Second Defendant” is excluded. Argument and assertion of opinion. 27 The whole of paragraph 27 is excluded. Expression of opinion and argument based on hearsay. 28 The whole of paragraph 28 is excluded. Irrelevant. 29 From “in relation to the false…” to “2016/07614” is excluded. Irrelevant. 30 The whole of paragraph 30 is excluded. Argument and assertion of opinion. 31 to 34 inclusive The whole of paragraphs 31 to 34 are excluded. Argument and expressions of opinion based on hearsay. 35 The first sentence commencing “Further, on 12 October 2016 …” to “…against me.” is excluded. Part of the second sentence commencing “the said application…” to “…Commission” is excluded. In its place, the following is inserted: “an application dated 12 October 2016.” Assertion of opinion and argument. 36 to 42 inclusive The whole of paragraphs 36 to 42 are excluded. Argument and irrelevant assertion of opinion. 58 The whole of paragraph 58 is excluded. Irrelevant assertion of opinion and argument. 59 and 60 The whole of paragraphs 59 and 60 are admitted.
0
8
1