King v Ombudsman - [2019] SASC 107

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 107
Civil: Application…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading King v Ombudsman

Details

AGLC: King v Ombudsman [2019] SASC 107
Case: [2019] SASC 107
Decision Date: 26 June 2019

CaseChat Overview and Summary

The case of King v Ombudsman involved the plaintiff, the General Manager of the Anangu Pitjantjatjara Yankunytjatjara (APY) Land Council, challenging the Ombudsman's decisions regarding two separate investigations. The plaintiff sought a declaration that the Ombudsman lacked jurisdiction to investigate complaints made by a third party and argued that certain findings and decisions made by the Ombudsman were legally unreasonable. The plaintiff further sought certiorari to quash the Ombudsman's report and findings.

The primary legal issues in the case centred on whether the Ombudsman had jurisdiction to investigate complaints made by a third party, whether certain findings and decisions made by the Ombudsman were legally unreasonable, and whether the Ombudsman's decisions were based on relevant considerations. The court had to determine whether the Ombudsman's findings and decisions were so unreasonable that no reasonable person could have made them, and whether the Ombudsman failed to consider relevant matters that ought to have informed his opinions.

The court found that the Ombudsman had jurisdiction to investigate the complaints, as the complaints were made in the name of the second defendant, who had a sufficient interest in the matter. The court also found that certain findings and decisions of the Ombudsman were legally unreasonable, as the Ombudsman failed to consider the plaintiff's explanation for not providing the handwritten notes and took an unreasonable amount of time to resolve the complaint. The court further found that the Ombudsman failed to consider relevant considerations that ought to have informed his opinions, and that his findings and decisions were unreasonable in light of the plaintiff's explanation.

As a result, the court quashed the Ombudsman's report and findings, and ordered the Ombudsman to issue a written apology to the second defendant for failing to provide him with access to the handwritten notes. The court also ordered the Ombudsman to pay the plaintiff's costs of the application.

Orders

Orders of the court

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Background

Background to the litigation

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.

Evidence

Evidence Before The Court

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Decision

Reasons for decision

KELLY J

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.ConclusionIn 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.RecommendationGiven 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 RecommendationsIn 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.

Ratio Decidendi

Legal Principle Established

Established by: KELLY J

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.