King v Ombudsman - [2018] SASC 155

SUPREME COURT OF SOUTH AUSTRALIA
(Civil: Application)
KING v OMBUDSMAN & ANOR
[2018] SASC 155
Reasons for Ruling of The Honourable Justice Kelly
21 September 2018
EQUITY - EQUITABLE REMEDIES - INJUNCTIONS - INTERLOCUTORY INJUNCTIONS
The Ombudsman prepared a report following an investigation arising from complaints made by the second defendant regarding the plaintiff. The plaintiff instituted proceedings in this Court following that investigation. The plaintiff seeks orders including certiorari in respect of particular decisions made by the Ombudsman and a declaration that the Ombudsman had no jurisdiction to conduct the investigation.
After the substantive proceedings were filed, the Ombudsman advised the plaintiff that he intended to issue an addendum report relating to the investigation. The Plaintiff filed an interlocutory application seeking, amongst other things, an interim injunction restraining the Ombudsman from any further investigation or consideration in respect to the investigation relating to the plaintiff.
Held per Kelly J dismissing the interlocutory application:
1) The plaintiff has not established that he will suffer any prejudice, let alone significant or irreparable prejudice, if the Ombudsman is permitted to amend the report.
Anangu Pitjantjatjara Yankunytjatjara Land Rights Act 1981 Section 5; Ombudsman Act 1972 Section 25, referred to.
Adnyamathanha Traditional Lands Association v Minister for Energy and Mining (SA) and Anor [2018] SASC 142, applied.

KING v OMBUDSMAN & ANOR
[2018] SASC 155
Reasons for Ruling
KELLY J:

The plaintiff, Richard King, seeks an interlocutory injunction restraining the first defendant, the Ombudsman, from any further investigation or consideration in respect to an Ombudsman’s investigation with reference number 2016/07614, pending the outcome of substantive proceedings for judicial review commenced by the plaintiff on 31 May 2018.
The plaintiff’s application came on for hearing before me on 20 September 2018. At the close of submissions, I declined to grant the plaintiff’s application for an injunction and indicated I would deliver my reasons within a short period of time.
The following are my reasons for declining the plaintiff’s application.
Background
The plaintiff is the general manager of Anangu Pitjantjatjara Yankunytjatjara (“APY”) a body corporate pursuant to s.5(1) of the Anangu Pitjantjatjara Yankunytjatjara Land Rights Act 1981.
The second defendant, Trevor Adamson, was a former member and chairperson of the APY Executive Board. He ceased to be a board member and chairperson in April 2017.
In or about October 2016 the second defendant made a complaint to the Ombudsman in respect of a number of allegations that he made against the plaintiff. The matters the second defendant raised in relation to the actions of the plaintiff in his role as general manager of the APY Lands included an allegation that the plaintiff denied the second defendant access to handwritten notes of board meetings. The second defendant alleged that he had both verbally and in writing requested the plaintiff to provide him with copies of the handwritten notes on various dates but he had not been provided with copies of those handwritten notes as requested.
In due course, the Ombudsman issued a report in which he stated inter alia as follows:
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.
As a result of the findings outlined above and other findings, the plaintiff commenced judicial review proceedings. He seeks orders of certiorari in respect of particular decisions made by the Ombudsman and a declaration that the Ombudsman had no jurisdiction to conduct an investigation in respect of the particular complaints made by the second defendant to the Ombudsman.
The hearing of the issues which arise on that application will take place in December 2018.
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 his first report. With respect to the issue as to whether Mr King had erred in failing to provide copies of the handwritten notes to the complainant, the Ombudsman indicated the report was to be altered with the following additions in bold and underlined:
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 s.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 s.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 the Ombudsman’s letter of 10 August 2018 advising of the proposed alterations and inviting the plaintiff to comment if he so wished on the proposed addendum before a final version was issued, the plaintiff filed an interlocutory application in this Court seeking an injunction and an interim injunction restraining the Ombudsman from any further investigation or consideration in respect of the matter, pending the outcome of the substantive proceedings.
The principles which govern an application for an interlocutory injunction are well established. Doyle J in Adnyamathanha Traditional Lands Association v Minister for Energy and Mining (SA) and Anor[1] recently summarised them as follows:
[1] [2018] SASC 142 at [22] to [27].
Principles governing interlocutory injunctive relief
…
They are the principles set out in the decisions of the High Court in Australian Broadcasting Corporation v Lenah Game Meats Pty Ltd and Australian Broadcasting Corporation v O’Neill.
As the first of these decisions makes plain, the starting point is the identification of the legal or equitable rights which are to be determined at trial, and in respect of which the final relief is sought. As Gleeson CJ explained, if the applicant for an interlocutory injunction cannot show a sufficient colour of right of the kind sought to be vindicated by final relief, the foundation for the interlocutory relief in support of that right disappears.
…
Having identified the rights to be determined at trial that are relied upon in support of the interlocutory relief sought, the decision of the High Court in Australian Broadcasting Corporation v O’Neill prescribes an approach that requires that ATLA establish that:
1.there is a serious question to be tried, namely that on the evidence before the Court there is a sufficient likelihood of success to justify the preservation of the status quo pending the trial;
2.the balance of convenience favours the grant of an injunction; and
3.the plaintiff is likely to suffer harm for which damages will not be an adequate remedy.
Further, subsequent authorities have confirmed that these three matters are not to be considered in isolation from one another. To the contrary, and by way of explanation, depending on the nature and circumstances of the particular case, both the strength or weakness of the plaintiff’s case, and the nature and extent of the ‘irreparable harm’ to be suffered by the plaintiff, may inform whether the balance of convenience lies in favour of an injunction.
It remains true that the Court will not conduct a preliminary trial in assessing whether there should be a grant of interlocutory relief. However, in some cases it will be possible and appropriate for the Court to undertake some evaluation of the strength of the plaintiff’s case for final relief in order to assist in determining where the balance of convenience lies. That is more likely to be appropriate in cases where the decision to grant or refuse an interlocutory injunction will in a practical sense determine the substance of the matter in issue. It is also more likely to be appropriate in cases where the merits will turn upon matters not requiring the resolution of significant factual disputes.
Footnotes omitted
For the purpose of determining the interlocutory application I do not propose to descend into any detailed analysis of the merits of the plaintiff’s claim. Suffice to say I will assume, without deciding it today, that there is a serious issue to be tried.
However, for the reasons which follow I am not satisfied that the plaintiff has discharged the burden upon him to show that the balance of convenience favouring the grant of an injunction is in his favour.
As can be seen from the extracted report and proposed additions, summarised at paragraphs [7] and [10] respectively herein, there is a mis-match in the language used regarding the issue of the plaintiff providing handwritten copies of the board notes and the conclusion which the Ombudsman reached as to affording access to those notes. It is plain that the Ombudsman wishes to make it clear that the focus of his attention in issuing the report was on the failure to provide copies to the second defendant.
I understand that the clarification is sought to be made in the context of the litigation which the plaintiff has brought to challenge the Ombudsman’s right to issue any report.
Counsel for the plaintiff sought to allay any concerns that the Court may not have access to the complete report of the Ombudsman for the purpose of the proceedings to determine the issues between the parties in December. Mr Tredrea said that his client had no objection to the Court receiving copies of the proposed addendum report and that both counsel could refer to it. The plaintiff’s concern is that by issuing a second report the Ombudsman is obliged to forward that report under the Ombudsman Act 1972 to the Minister’s office, which will result in effect a second adverse report being forwarded to the Minister. He complains that there may be confusion in the Premier’s office when that report is received and his client may be prejudiced by the Premier accepting that it is a second report.
I cannot accept that argument. On the face of the proposed addendum the Ombudsman makes it perfectly plain that he is intending only to clarify certain language used in the original report. Furthermore, the proposed addendum relates only to an issue which is perhaps subsidiary to the whole of the Ombudsman’s report. As the Crown Solicitor submitted, the real reputational sting about which the plaintiff has complained is contained in another finding in the Ombudsman’s first report. That finding is that the plaintiff failed to cooperate with the Ombudsman’s investigation.
In my view, the plaintiff has failed to establish that he will suffer any prejudice as a result of the Ombudsman issuing the proposed clarification.
The Ombudsman is not seeking to re-open the investigation or to compel anybody to give evidence or produce any documents or anything of the kind. Although the Ombudsman has invited the plaintiff to comment if he wishes on the proposed addendum, there is no obligation on him to do so. That is particularly so in light of the fact that he has already made extensive submissions to the Ombudsman in relation to the first report.
The Ombudsman, as a statutory officer with a public duty to report on matters of concern to him, issued the first report. Bearing in mind that there is already litigation in respect of that report the Ombudsman now considers that it is in the public interest to clarify the language used in the report to maintain consistency throughout.
It is not necessary to consider the third issue which usually arises on an application for an interlocutory injunction as to whether damages may be an adequate remedy as it is common ground that it is not a relevant consideration in respect of this application.
In summary, I do not accept that any prejudice, let alone significant or irreparable prejudice, will flow to the plaintiff if the Ombudsman is permitted to amend his report as indicated in his letter to the plaintiff on 10 August 2018. It is for these reasons that I refused the plaintiff’s application for an interlocutory injunction.