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…

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 [2018] SASC 155
Case: [2018] SASC 155
Decision Date: 21 September 2018

CaseChat Overview and Summary

In the case of King v Ombudsman, the plaintiff, who serves as the general manager of Anangu Pitjantjatjara Yankunytjatjara (“APY”), a body corporate established under the Anangu Pitjantjatjara Yankunytjatjara Land Rights Act 1981, has applied for an interlocutory injunction against the Ombudsman and the Attorney-General of the Commonwealth. The application arose from a complaint made by the second defendant, Trevor Adamson, a former member and chairperson of the APY Executive Board, who alleged that the plaintiff had wrongfully refused him access to handwritten notes of board meetings. The plaintiff has applied for an injunction to prevent the Ombudsman and the Attorney-General from pursuing any further action against him based on this complaint. The court was required to determine whether the plaintiff's application for an interlocutory injunction should be granted. This involved assessing the merits of the plaintiff's application and whether the plaintiff had demonstrated a strong prima facie case for the relief sought.

The court found that the plaintiff's application was not well founded. The court noted that the Ombudsman's report did not find that the plaintiff had breached any statutory obligations by refusing to provide the handwritten notes to the second defendant. Rather, the Ombudsman concluded that the plaintiff's refusal was wrong within the meaning of section 25(1) of the Ombudsman Act, and recommended that the plaintiff issue a written apology to the second defendant. The court held that the plaintiff had not demonstrated a strong prima facie case for the relief sought, as the Ombudsman's report did not find that the plaintiff had acted in a manner that was wrong within the meaning of section 25(1) of the Ombudsman Act. The court further found that the plaintiff had not demonstrated that he would suffer irreparable harm if the injunction was not granted. The court held that the plaintiff had failed to establish the necessary criteria for the grant of an interlocutory injunction.

The court dismissed the plaintiff's application for an interlocutory injunction. The court held that the plaintiff had not demonstrated a strong prima facie case for the relief sought, and that the plaintiff had failed to establish the necessary criteria for the grant of an interlocutory injunction. The court further found that the plaintiff had not demonstrated that he would suffer irreparable harm if the injunction was not granted. The court held that the application should be dismissed.

Orders

Orders of the court

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Background

Background to the litigation

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.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.

Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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