McGuirk v NSW Ombudsman

[2008] NSWCA 357

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 the basis that, if the Court took the view that there were errors by the primary judge that, subject to other questions raised by the respondent, could warrant leave to appeal, there would be an opportunity given for further submissions on the other questions.

Circumstances

7 The background to the proceedings was set out as follows in the judgment of the primary judge:

[3] Mr McGuirk’s complaints relate to a failure of the Ombudsman to report on certain allegations relating to the alleged maladministration and corrupt conduct at the University of New South Wales. Mr McGuirk, having worked for a significant period of time in the private sector, commenced employment with the University in February 1998.

[4] Mr McGuirk raised issues of maladministration with the Director of Internal Audit at the University on 30 May 2001. Mr McGuirk then raised these issues with the Vice-Chancellor and the Chancellor on 3 December 2001, and, because he did not receive a response, with the members of the University Council on 18 December 2001. Further complaints were made to various officers of the University in the following period from 2002 to at least 2003.

[5] After 2003, Mr McGuirk made complaint to various members of State Parliament including the Chair of the Committee on the Office of the Ombudsman and Police Integrity Commission. These complaints were made during 2004, 2005 and 2006. Mostly the focus of the complaints was the delay in the report of the Ombudsman into certain complaints. Mr McGuirk describes it in the following terms (para 47 of his affidavit of 22 June 2007):

I have monitored the conduct by the NSW Ombudsman of his investigation of complaints made in regard to the UNSW for almost five years. During that time I have gathered many thousands of pages of documents related to this investigation, other incidences (sic) of financial mismanagement at the UNSW and at other Australian Universities.


[6] It is necessary to detail the complaints to the Ombudsman in issue in these proceedings. The first relevant complaint to the Ombudsman was in December 2000. It was lodged by a staff member, other than Mr McGuirk, and related to allegations of maladministration. The staff member was not, on the evidence, acting on behalf of Mr McGuirk. Nor did the complaint relate to Mr McGuirk, his position at the University, or the University’s treatment of Mr McGuirk. The complaint did not affect Mr McGuirk in any direct or indirect manner.

[7] The Ombudsman reported on this complaint in February 2002 and found that two officers of the University were involved in wrongdoing. The report, like the complaint that gave rise to it, did not relate to Mr McGuirk. He was not one of the officers said to have been involved in any wrongdoing, nor were there any findings adverse to Mr McGuirk, that related to his conduct or that, on their face, affected him in any way.

[8] The second set of relevant complaints were lodged in 2002. In May and June 2002 a staff member, again not Mr McGuirk, filed four complaints alleging that the University had mishandled internal complaints about staff members, which internal complaints had been made by other staff.

[9] Two further complaints were made about the same general subject matter, namely, the handling of internal staff complaints by the University and the treatment by the University of the complaints and complainants. These two further complaints were lodged with the Ombudsman in August 2003. Once more the complainant to the Ombudsman was not Mr McGuirk.

[10] Further, as with the first complaint, none of the six that comprise the second set of relevant complaints involve or relate to Mr McGuirk. He is not the complainant; he is not adversely affected by the complaint; his conduct is not impugned; he neither benefits nor suffers as a direct result of the conduct about which complaint is made, nor as a result of its correction or reversal by the Ombudsman or the University.

[11] In relation to the second set of complaints, no report has issued from the Ombudsman, it is the issue of that report that Mr McGuirk seeks to have this Court require by an order in the nature of mandamus.

[12] Further to the above, Mr McGuirk, on 26 March 2002, rang the Ombudsman to discuss his situation with the University. His employment with the University had been terminated by the University effective from 31 March 2002. The discussion with the Ombudsman’s Office centred on the allegations of maladministration by Mr McGuirk and whether such allegations fell within the Protected Disclosures Act 1994 (NSW). Mr McGuirk wrote, following that discussion, to the then Vice-Chancellor of the University. The letter is dated 28 March 2002.

[13] On 14 May 2002 Mr McGuirk lodged a formal complaint to the Ombudsman alleging that he (Mr McGuirk) had been the subject of detrimental action following the making of protected disclosures (ie victimisation). I shall refer to this as the Victimisation Complaint.

[14] The allegation of maladministration by Mr McGuirk was, in essence, an objection to the transfer by the University, of the Master of Business and Technology Program (MBT) from the Faculty of Engineering to the Faculty of Commerce and Economics, and “the integrity of the decision-making process”.

Closure of File

[15] On 15 November 2002, the Ombudsman’s Office wrote to Mr McGuirk notifying that his file was closed. Although written in an indirect style, the letter informed Mr McGuirk “formally” that the investigation officer was “closing your file”. It referred to a previous meeting with Mr McGuirk and a meeting with the Vice-Chancellor, and stated that the Ombudsman’s Office “has decided that in view of our efforts in two related UNSW cases we currently have on foot, our resources would be best concentrated in those cases rather than in pursuing your complaint as a separate case”.

[16] Mr McGuirk did not seek to review the decision to close the file opened as a result of his complaint; the effect of which was to terminate any inquiry or investigation in relation thereto.

[17] As earlier stated, Mr McGuirk continued to write to the Ombudsman and provides the Ombudsman with details of the action Mr McGuirk was taking in relation to the University. The Ombudsman’s Office, more fully than previously, explained the reasons for terminating his complaint file. In the letter dated 9 September 2003, the Ombudsman’s Office explained its jurisdiction and policy to Mr McGuirk. It explained to Mr McGuirk that its jurisdictional limits did not allow it to investigate or to report on matters relating to the appointment or employment of a person or affecting a person on account of his/her position as an officer or employee.

[18] Further, the Ombudsman’s Office explained, as to the transfer of the MBT Program from the Faculty of Engineering to Commerce/Economics, that the Ombudsman’s Office did not involve itself in the exercise of a discretion that was reasonably open to it.

[19] Mr McGuirk continued to write to the Ombudsman’s Office. On gaining no satisfaction he wrote to the Chair of the Parliamentary Committee on the Office of the Ombudsman and the Police Integrity Commission. He also agitated with them the finalisation of the complaints by others, as he did with the Ombudsman. Further, Mr McGuirk wrote to members of the NSW Parliament seeking to agitate the issue of the report into the relevant complaints. Questions were asked in Parliament on these issues, presumably at the behest of Mr McGuirk.

8 The applicant gave the Court a further explanation of what he contended to be his personal interest in the performance of the Ombudsman’s duties in the finalisation of the report in question. He said

(1) That his complaint of May 2002 related to the same person as the complaints being considered by the Ombudsman;

(2) That this person was responsible for the termination of his employment with the university;

(3) That the Ombudsman took the course of selecting some complaints against that person, not including his, as representative of all complaints;

(4) That the Ombudsman prepared a report in respect of those complaints;

(5) That on 13 June 2006 the person subject of the complaints brought proceedings in the Supreme Court seeking an injunction against the person with the conduct of the investigation proceeding further on the ground of denial of procedural fairness and apprehension of bias;

(6) That in December 2006, the Ombudsman informed the complainants whose complaints he was investigating that he was discontinuing the investigation, because the problems at the university had been solved and the subjects of the complaints had moved elsewhere, and because, by reason of the Supreme Court proceedings, it would be a considerable time before he could release the report; and that the proceedings were then settled in early 2007. An extract from the Ombudsman’s letter to the complainants was set out as follows in par [36] of the primary judge’s judgment:


It is our standard practice in circumstances where the objectives of an investigation are met and it appears to us the agency involved has taken real steps to satisfy the recommendations of this Office and to remedy the matters that led to the complaints, to consider carefully whether there is any further benefit or purpose in continuing the investigation. In light of the matters outlined above and the fact that I would be precluded from finalising any report for an undetermined period of time (possible up to one year) I have, after careful consideration, decided to discontinue the investigation into your complaint. Given the change of personnel at the university, the introduction of new improved complaint handling procedures and substantial compliance with my proposed recommendations I am satisfied that the investigation has led to significant and positive outcomes.

9 The applicant also says that, since the decision of the primary judge, he had commenced proceedings against the university as vicariously liable for the conduct of the person the subject of his complaint; and that the material in the Ombudsman’s report would be highly relevant to those proceedings.

Statutory provisions

10 The question of standing of the applicant is raised by s 65 of the Supreme Court Act 1970, which is as follows:

65 Order to fulfil duty

(1) The Court may order any person to fulfil any duty in the fulfilment of which the person seeking the order is personally interested.

(2) The Court may, on terms, make an interlocutory order under subsection (1) in any case where it appears to the Court just or convenient so to do.

(3) The powers of the Court under this section are in addition to any other powers of the Court.

11 Relevant provisions of the Ombudsman Act 1974 include s 12, which provides that, subject to certain exceptions, “Any person … may complain to the Ombudsman about the conduct of a public authority”.

12 Also relevant are ss 13, 16, 17, 19, 24, 26, 29, 34, 35A and 35B. Those provisions are as follows:

13 Decision for investigation

(1) Where it appears to the Ombudsman that any conduct of a public authority about which a complaint may be made under section 12 may be conduct referred to in section 26, the Ombudsman may, whether or not any person has complained to the Ombudsman about the conduct, make the conduct the subject of an investigation under this Act.

(2) Subsection (1) has effect notwithstanding anything in any Act passed before the passing of this Act.

(3) The Ombudsman may discontinue an investigation under this Act.

(4) Where any person has complained to the Ombudsman under section 12 about the conduct of a public authority, the Ombudsman, in deciding whether to make that conduct the subject of an investigation under this Act or whether to discontinue an investigation commenced by him or her under this Act:


(a) may have regard to such matters as he or she thinks fit, and

(b) without limiting paragraph (a), may have regard to whether, in his or her opinion:


(i) the complaint is frivolous, vexatious or not in good faith,

(ii) the subject-matter of the complaint is trivial,

(iii) the subject-matter of the complaint relates to the discharge by a public authority of a function which is substantially a trading or commercial function,

(iv) the conduct complained of occurred at too remote a time to justify investigation,

(v) in relation to the conduct complained of there is or was available to the complainant an alternative and satisfactory means of redress, or

(vi) the complainant has no interest or an insufficient interest in the conduct complained of.


(4A) In deciding whether to discontinue an investigation of police conduct, the Ombudsman shall have regard to the public interest.

(5) Notwithstanding any other provision of this section, the Ombudsman shall not investigate the conduct of a public authority, being a local government authority, if that conduct is subject to a right of appeal or review conferred by or under an Act unless the Ombudsman is of the opinion that special circumstances make it unreasonable to expect that right to be or to have been exercised.

16 Notice of investigation

(1) Upon the Ombudsman deciding to make the conduct or police conduct of a public authority the subject of an investigation under this Act, the Ombudsman shall give notice of the decision:


(a) where there is a complainant, to the complainant,

(b) to the head of the public authority and, if practicable, to the public authority, and

(c) as prescribed.


(2) A notice under this section must be in writing, must describe the conduct or police conduct the subject of the investigation and must, so far as practicable, identify the public authority.

17 Privacy

An investigation under this Act shall be made in the absence of the public.

19 Inquiries

(1) In an investigation under this Act, the Ombudsman may make or hold inquiries.

(2) For the purposes of any inquiry under this section, the Ombudsman has the powers, authorities, protections and immunities conferred on a commissioner by Division 1 of Part 2 of the Royal Commissions Act 1923 and that Act (section 13 and Division 2 of Part 2 excepted) applies to any witness summoned by or appearing before the Ombudsman in the same way as it applies to a witness summoned by or appearing before a commissioner, but section 11 (2) of that Act shall have effect subject to section 21 of this Act.

(3) A witness appearing before the Ombudsman is to be paid such amount as the Ombudsman determines, but not exceeding the amount that would be payable to such a witness if he or she were a Crown witness subpoenaed by the Crown to give evidence.

24 Persons to be heard

(1) In an investigation under this Act, the Ombudsman shall give an opportunity to make submissions on the conduct or police conduct the subject of the investigation:


(a) if practicable, to the public authority whose conduct or police conduct it is, and

(b) to any other person given notice under section 16.

(2) Where, in an investigation under this Act, the Ombudsman considers that there are grounds for adverse comment in respect of any person, the Ombudsman, before making any such comment in any report, shall, so far as practicable:


(a) inform that person of the substance of the grounds of the adverse comment, and

(b) give the person an opportunity to make submissions.


(3) Subsection (2) does not apply in relation to a report under section 28.

26 Report of investigation

(1) Where, in an investigation under this Act, the Ombudsman finds that the conduct the subject of the investigation, or any part of the conduct, is of any one or more of the following kinds:


(a) contrary to law,

(b) unreasonable, unjust, oppressive or improperly discriminatory,

(c) in accordance with any law or established practice but the law or practice is, or may be, unreasonable, unjust, oppressive or improperly discriminatory,

(d) based wholly or partly on improper motives, irrelevant grounds or irrelevant consideration,

(e) based wholly or partly on a mistake of law or fact,

(f) conduct for which reasons should be given but are not given,

(g) otherwise wrong,
the Ombudsman is to make a report accordingly, giving his or her reasons.

(2) In a report under this section, the Ombudsman may recommend:


(a) that the conduct be considered or reconsidered by the public authority whose conduct it is, or by any person in a position to supervise or direct the public authority in relation to the conduct, or to review, rectify, mitigate or change the conduct or its consequences,

(b) that action be taken to rectify, mitigate or change the conduct or its consequences,

(c) that reasons be given for the conduct,

(d) that any law or practice relating to the conduct be changed,

(d1) that compensation be paid to any person, or

(e) that any other step be taken.

(3) The Ombudsman shall give a report under this section:


(a) to the responsible Minister,

(b) to the head of the public authority whose conduct is the subject of the report, and

(c) where the public authority is employed under the Public Sector Management Act 1988, to the Premier’s Department.


(4) The Ombudsman may give a copy of a report under this section:

(a) where the investigation arises out of a complaint to the Ombudsman, to the complainant,

(b) to the public authority to whose conduct the report relates.

(5) The person to whom a report is given under subsection (3) (b) may, and on request by the Ombudsman shall, notify the Ombudsman of any action taken or proposed in consequence of a report under this section.

29 Report to complainant or the relevant person

(1) Where the Ombudsman investigates the conduct of a public authority pursuant to a complaint made under section 12 or investigates police conduct, the Ombudsman:


(a) may from time to time report to the complainant on the progress of the investigation,

(b) shall report to the complainant on the results of the investigation, and

(c) may make such comments to the complainant on the investigation and its consequences as he or she thinks fit.

(2) Where the Ombudsman carries out any other kind of investigation, the Ombudsman:


(a) may from time to time report to the complainant, or the person who made the disclosure or allegation that led to the investigation, on the progress of the investigation, and

(b) may report to the complainant, or the person who made the disclosure or allegation that led to the investigation, on the results of the investigation, and

(c) may make any comments to the complainant, or the person who made the disclosure or allegation that led to the investigation, on the investigation and its consequences that the Ombudsman thinks fit.

34 Disclosure by Ombudsman or officer

(1) The Ombudsman shall not, nor shall an officer of the Ombudsman, disclose any information obtained by the Ombudsman or officer in the course of the Ombudsman’s or officer’s office, unless the disclosure is made:


(a) where the information is obtained from a public authority, with the consent of the head of that authority or of the responsible Minister,

(b) where the information is obtained from any other person:


(i) with the consent of that person, or

(ii) for the purpose of proceedings with respect to the discipline of police officers before the Commissioner of Police or the Government and Related Employees Appeal Tribunal,


(b1) to a police officer, the Department of Community Services or any other public authority that the Ombudsman considers appropriate in the circumstances if the information relates to the safety, welfare or well-being of a particular child or young person (or a class of children or young persons),

(b2) to any person if the Ombudsman believes on reasonable grounds that disclosure to that person is necessary to prevent or lessen the likelihood of harm being done to any person (but only if the Ombudsman also believes on reasonable grounds that there is a risk of harm (including self-harm) being done to any person),

(b3) for the purpose of any proceedings under Division 2 of Part 5 of the Freedom of Information Act 1989 arising as a consequence of a determination made by the Ombudsman under section 24 or 43 of that Act,

(b4) for the purpose of any proceedings under section 167A of the Police Act 1990,

(c) for the purpose of any proceedings under section 37 or under Part 3 of the Royal Commissions Act 1923 or Part 4 of the Special Commissions of Inquiry Act 1983,

(c1) to a police officer (or any other investigative authority that the Ombudsman considers appropriate) for the purpose of making any inquiry, or carrying out any investigation, to determine whether any proceedings referred to in paragraph (c) should be instituted, or

(d) for the purpose of discharging his or her functions under this or any other Act.
Maximum penalty: 10 penalty units.

(2) Subsection (1) does not prevent the Ombudsman from furnishing any information relating to:


(a) a matter arising under a law of another State, the Commonwealth or a Territory of the Commonwealth, or

(b) an undertaking that is or was being carried out jointly by New South Wales and another State, the Commonwealth or a Territory of the Commonwealth,
to a person exercising under a law of that other State, the Commonwealth or that Territory, as the case may be, functions similar to those exercised by the Ombudsman under this Act.


(2A) Subsection (1) does not operate to render admissible in evidence in any proceedings any document that would not have been so admissible if this section had not been enacted.

(3) Without limiting the operation of subsection (1) (a), in the application of subsection (1) to and in respect of information received in the course of an investigation under this Act of police conduct, the reference in that subsection:


(a) to a public authority—shall be construed as a reference to a police officer,

(b) to the head of that authority—shall be construed as a reference to the Commissioner, and

(c) to the responsible Minister—shall be construed as a reference to the Minister administering the Police Act 1990.

(4) If:


(a) the Ombudsman, or an officer of the Ombudsman, is to give evidence before, or to produce the whole or any part of a document to, the Joint Committee, and

(b) the evidence proposed to be given, or the whole or any part of the document proposed to be produced, would disclose information obtained by the Ombudsman or officer, in the course of his or her office, from a public authority or other person, and

(c) the public authority or other person has informed the Ombudsman or officer that the information is confidential,
the Ombudsman or officer must make a request under section 31H (1) for the evidence to be taken in private or for a direction to be given that the document, or part of the document, be treated as confidential.


(5) In the case of information obtained from a public authority or other person as referred to in subsection (4), a reference in section 31H to the consent in writing of a witness, in relation to the disclosure or publication of evidence, is to be construed as a reference to the consent in writing of the public authority or other person.

35A Immunity of Ombudsman and others

(1) The Ombudsman shall not, nor shall an officer of the Ombudsman, be liable, whether on the ground of want of jurisdiction or on any other ground, to any civil or criminal proceedings in respect of any act, matter or thing done or omitted to be done for the purpose of executing this or any other Act unless the act, matter or thing was done, or omitted to be done, in bad faith.

(2) Civil or criminal proceedings in respect of any act or omission referred to in subsection (1) shall not be brought against the Ombudsman or an officer of the Ombudsman without the leave of the Supreme Court.

(3) The Supreme Court shall not grant leave under subsection (2) unless it is satisfied that there is substantial ground for the contention that the person to be proceeded against has acted, or omitted to act, in bad faith.

35B Application to Supreme Court

(1) Where any question arises as to the jurisdiction of the Ombudsman to conduct an investigation or proposed investigation (whether under this or any other Act), the Ombudsman, or any interested party, may apply to the Supreme Court for a determination of that question.

(2) On an application made under subsection (1) the Supreme Court may make such order as it considers appropriate.

(3) For the purposes of subsection (1), the following persons are interested parties:


(a) the public authority the conduct of which is the subject of the investigation or proposed investigation,

(b) the head of that public authority,

(c) if the investigation arises from the making of a complaint under section 12 (1), the complainant.

(3A) For the purposes of subsection (1), the following persons are interested parties in relation to the investigation of a community services complaint within the meaning of Part 4 of the Community Services (Complaints, Reviews and Monitoring) Act 1993:

(a) a service provider or a provider of a visitable service that is the subject of the investigation or proposed investigation,

(b) the chief executive or principal officer of that service provider or service,

(c) if the investigation arises from the making of a complaint under that Act, the complainant.

(4) This section has effect notwithstanding section 35A.

Decision of primary judge

13 On the question of standing, the primary judge said this:

[39] Mr McGuirk submits that, in essence, the challenged discontinuance is in relation to complaints against officers of the University for their treatment of “whistleblowers” and the complaints procedure of the University.

[40] These same officers (and University), he alleges, took detrimental action against Mr McGuirk, also in a “whistleblower” context, and therefore he has an interest beyond the general public. Mr McGuirk says that the failure to report (or conclude the investigation) “greatly diminishes his ability to re-establish his personal and professional standing in the higher education sector, and to re-establish his career more generally”.

[41] ……

[42] Further, Mr McGuirk submits that the Ombudsman’s failure “to reveal the truth … greatly undermines the position of [Mr McGuirk] in regard to any current or future negotiations and/or legal action involving himself and the University of New South Wales.”

14 The primary judge referred to s 35B(3) of the Ombudsman Act, and expressed the view that this provision was inclusive, not exclusive, as to the category of “interested party” referred to in s 35B(1); and that this category was the same as the well understood category of an interested person at general law. He referred to Australian Conservation Foundation v The Commonwealth (1980) 146 CLR 493 and Onus v Alcoa of Australia Ltd (1981) 149 CLR 27; and he continued:

[48] In order to have standing, Mr McGuirk must show that if he were successful in the action in this Court, the orders would confer upon him some benefit or advantage greater than the public or that it would relieve him of a detriment or disadvantage in a manner greater than the general public: Onus , supra, at 75–76 per Brennan J.

[49] In this case, if Mr McGuirk were successful then orders would be made requiring the Ombudsman to complete an investigation and report on matters of which Mr McGuirk did not complain, in which he is not mentioned, and which will not affect him. It may affect persons with whom he had another dispute.

[50] The test for relevant interest is objective, not subjective. A person does not become interested merely because she/he feels aggrieved: Cameron v HREOC (1993) 46 FCR 509 per Beaumont and Foster JJ. Mr McGuirk must show a grievance suffered beyond the general public: Tooheys Ltd v Minster for Business and Consumer Affairs (1981) 54 FLR 421.

[51] That is not to say that “interest” cannot be representative or derivative: see Cameron , supra, at 519, per French J; AIMPE v Secretary, Department of Transport (1986) 13 FCR 124 (per Gummow J); ECAJ v Scully (1998) 79 FCR 537 (per Wilcox J); but it cannot be solely emotional.

[52] The principles that govern standing to take proceedings do not allow for the circumstance that the writing of letters because of concern creates an interest. For my own part, were it relevant, I would take the view that a person required to be heard or consulted was a person with sufficient interest (see Australian Conservation Foundation , per Murphy J at 556, in dissent), but that would not include Mr McGuirk: see s 24 of the Act. The Ombudsman has no requirement (nor discretion) even to provide Mr McGuirk with a copy of the report: see s 26(3) and (4) of the Act; and s 34 of the Act, which creates a criminal offence for the Ombudsman to disclose any information obtained except in certain restricted situations.

Conclusion

[53] Mr McGuirk does not have standing to bring these proceedings. However genuine is his concern and “interest”, it is not an interest sufficient in law to allow these proceedings to continue.

[54] The issues of his treatment as a “whistleblower” were matters raised in his complaint, which was discontinued on 15 November 2002. It was that investigation and/or complaint in which Mr McGuirk had a relevant interest, but he did not pursue it.

Submissions on standing

15 Mr McGuirk referred to the matters set out in par [8] above; and he submitted that the primary judge did not direct his mind to the proper interpretation of the phrase “personally interested” in s 65 of the Supreme Court Act. He referred to Executive Council for Australian Jewry v Scully (1998) 79 FCR 537 and Alinta LGA Limited v Mine Subsidence Board [2008] HCA 17; (2008) 82 ALJR 826 at [54]; and also to the consideration of the meaning of the words “personally interested” by Hutley JA in Bilbao v Farquhar [1974] 1 NSWLR 377 at 380. He submitted that the authorities supported the proposition that he was “personally interested” in the fulfilment by the Ombudsman of his duty (should such exist) to finalise his investigations and report into the conduct of certain senior officers of the University of New South Wales.

16 Mr Stern for the Ombudsman submitted that investigations by the Ombudsman were private (s 17); that Mr McGuirk was not a person entitled to receive a report from the Ombudsman (ss 26, 29); that disclosure of information by the Ombudsman to Mr McGuirk was prohibited (s 34); and that Mr McGuirk was not an interested party within s 35B, which was a good indication of what person could be considered as being “personally interested” within s 65 of the Supreme Court Act.

Decision on standing

17 The first question we consider is what is the duty of the Ombudsman, an order to fulfil which is sought by Mr McGuirk under s 65 of the Supreme Court Act.

18 There is no duty under the Ombudsman Act on the Ombudsman to undertake any investigation or to complete any investigation that has been undertaken: s 13(3). However, it is arguable that, once the Ombudsman has commenced an investigation, he or she should not discontinue the investigation without making a decision to do so. In relation to an investigation into police conduct, the Ombudsman must have regard to the public interest in deciding whether to discontinue it (s 13(4A)); while in relation to other investigations, the Ombudsman may have regard to such matters as he or she thinks fit (s 13(4)(a)). It could be argued that some reasons for discontinuing would be so foreign to the role of the Ombudsman that discontinuing for those reasons would be to act in bad faith within s 35A; and that in substance is what Mr McGuirk wishes to argue in this case.

19 It is also arguable that where an investigation has proceeded to the stage where the Ombudsman has actually found that conduct is of a kind described in s 26(1), then the Ombudsman has a duty to make and issue a report. In this case, such a finding may possibly have been made; but any such finding was subject to challenge in the earlier Supreme Court proceedings as being vitiated by denial of procedural fairness and apprehension of bias. If it were now shown in these proceedings that such a finding had been made, and if it were sought to compel the Ombudsman to make and issue a report on that basis, it would be necessary to notify the plaintiff in the earlier proceedings of this, and this person would presumably be entitled to raise the same objections of denial of procedural fairness and apprehension of bias. (It is extremely unlikely that the terms of settlement of the earlier proceedings could preclude this.)

20 Thus, possibly relevant duties under s 65 of the Supreme Court Act are a duty not to act in bad faith in discontinuing an investigation, and a duty to make a report once an adverse finding has actually been made. The question then is, is Mr McGuirk “personally interested” in the Ombudsman’s fulfilment of either of those duties.

21 In our opinion, that question does depend on the principles discussed in Australian Conservation Foundation v The Commonwealth and Onus v Alcoa; and that in turn raises the question whether Mr McGuirk has an interest in the fulfilment of that duty beyond that of other members of the public. In our opinion, that depends on whether he is affected by fulfilment or non-fulfilment of that duty “in comparison with the public at large … to a substantially greater degree or in a significantly different manner”: Australian Conservation Foundation v the Commonwealth at [188] per Brennan J. This affectation need not be financial, but must be more than “an emotional or purely intellectual interest”: Australian Conservation Foundation v The Commonwealth at [182] per Gibbs J.

22 The factors relied on by Mr McGuirk set out in par [8] above, particularly the factors numbered (1) to (3), and also the proceedings referred to in par [10] above (which it would seem were in contemplation at the time of the proceedings before the primary judge), could possibly, considered in isolation, be regarded as giving him an interest beyond that of the public in general. The question then is whether he is affected in a way which is substantial or significant, having regard to the features of the Ombudsman Act pointed out by Mr Stern and the other considerations we have referred to.

23 It is true that, if the Ombudsman completed and issued the report, if the report contained material useful to Mr McGuirk in his dispute with the University of New South Wales, and if this report was made available to him, he could be assisted in his dispute with the University of New South Wales and in vindicating his reputation.

24 However, the Ombudsman has no obligation to complete the investigation and make a report (at most there is an obligation not to act in bad faith in terminating an investigation), at least unless the Ombudsman has already made a finding within s 26(1), in which case questions of denial of procedural fairness and apprehension of bias could again be raised by the plaintiff in the previous Supreme Court proceedings; and Mr McGuirk has no entitlement to receive a copy of any report or any information from the Ombudsman. His interest is limited to the possibility that (1a) the Ombudsman chooses to complete and issue a report, or else (1b) the Ombudsman is obliged to do so under s 26 and objections of denial of procedural fairness and apprehension of bias are overcome; and (2a) the Ombudsman issues the report to a person within s 26(3) who in turn chooses to act so as to make a copy available to Mr McGuirk, or is compelled to do so pursuant to the Freedom of Information Act 1989 or (2b) the Ombudsman chooses to issue a copy of a report to a person within s 26(4) who chooses to act so as to make a copy available to Mr McGuirk.

25 In our opinion, even if it were shown the Ombudsman had acted in bad faith in terminating the investigation or in not issuing a report following an adverse finding, it is at best speculative as to whether the Ombudsman would then choose to make a report or be compelled to do so over objections of denial of procedural fairness and apprehension of bias. Having regard to this and to the lack of any right in Mr McGuirk to receive any information from the Ombudsman or to receive any report (if one were completed), in our opinion, despite the factors referred to in pars [8] and [10] above, the interest of Mr McGuirk beyond that of the public in general is insufficiently significant and/or substantial to make him “personally interested” within s 65. In our opinion, it is not reasonably open to contend that his interest is sufficient to confer standing.

CONCLUSION

26 Having regard to the view we have expressed on standing, it is not necessary for us to consider whether Mr McGuirk was denied procedural fairness in respect of other aspects of the case. Our conclusion is that there are insufficient prospects of success on the question of standing to justify the grant of leave to appeal.

27 For those reasons, in our opinion the application for leave to appeal should be refused with costs.

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