McGuirk v NSW Ombudsman

New South Wales

Court of Appeal

CITATION:	McGuirk v NSW Ombudsman [2008] NSWCA 357
HEARING DATE(S):	3 November 2008
JUDGMENT DATE:	19 December 2008
JUDGMENT OF:	Giles JA; Hodgson JA
DECISION:	The application for leave to appeal refused with costs.
CATCHWORDS:	ADMINISTRATIVE LAW – The Ombudsman – Discontinuance of investigation – Application for order that investigation be completed – Whether applicant has standing.
LEGISLATION CITED:	Ombudsman Act 1974 s 12, ss 13, 16, 17, 19, 24, 26, 29, 34, 35A and 35B Supreme Court Act 1970 s 65
CATEGORY:	Principal judgment
CASES CITED:	Alinta LGA Limited v Mine Subsidence Board [2008] HCA 17; (2008) 82 ALJR 826 Australian Conservation Foundation v The Commonwealth (1980) 146 CLR 493 Bilbao v Farquhar [1974] 1 NSWLR 377 Executive Council for Australian Jewry v Scully (1998) 79 FCR 537 Onus v Alcoa of Australia Ltd (1981) 149 CLR 27
PARTIES:	Gerard Michael McGUIRK (Applicant) NSW OMBUDSMAN (Opponent)
FILE NUMBER(S):	CA 40848/07
COUNSEL:	G M McGUIRK in person (Applicant) Ms K A STERN (Opponent)
SOLICITORS:	------ (Applicant) NSW Ombudsman (Opponent)
LOWER COURT JURISDICTION:	Supreme Court
LOWER COURT FILE NUMBER(S):	SC 30002/07
LOWER COURT JUDICIAL OFFICER:	Rothman J
LOWER COURT DATE OF DECISION:	13 November 2007
LOWER COURT MEDIUM NEUTRAL CITATION:	McGuirk v NSW Ombudsman [2007] NSWSC 1286

CA 40848/07
SC 30002/07

GILES JA
HODGSON JA

19 DECEMBER 2008

Gerard Michael McGUIRK v NSW OMBUDSMAN

Judgment

1 THE COURT: By a summons filed on 4 January 2007, the applicant sought an order that the respondent (the Ombudsman) finalise a certain investigation.

2 By notice of motion filed 7 February 2007, the Ombudsman sought an order that the summons be dismissed, having foreshadowed such an application to the applicant on the basis that leave to commence proceedings was necessary under the Ombudsman Act and had not been obtained.

3 By notice of motion filed 21 May 2007, the applicant sought leave nunc pro tunc to commence such proceedings.

4 The two notices of motion came before Rothman J on 2 July 2007 and 26 July 2007. The primary judge gave his decision on them on 13 November 2007, making orders as follows:

(i) The proceedings be dismissed;

(ii) To the extent necessary, leave to commence or continue these proceedings against NSW Ombudsman be refused;

(iii) The plaintiff shall pay the costs of the defendant of and incidental to these proceedings, as agreed or assessed.

5 The applicant seeks leave to appeal from those orders. To the extent that the primary judge based his decision on a view that the applicant did not having standing to bring the proceedings, the applicant challenges that finding. To the extent that the primary judge based his decision on other matters, the applicant contends that he was denied procedural fairness.

6 The application was heard as a leave application on 3 November 2008. Full submissions were received on the question of standing, and on the question whether the applicant was denied procedural fairness; and the Court’s decision was reserved on…