McGuirk v NSW Ombudsman

CITATION:

McGuirk v NSW Ombudsman [2007] NSWSC 1286

HEARING DATE(S):

2 July 2007, 26 July 2007

 
JUDGMENT DATE : 

13 November 2007

JURISDICTION:

Supreme Court

JUDGMENT OF:

Rothman J

DECISION:

(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.

CATCHWORDS:	ADMINISTRATICE LAW – mandamus – duty of Ombudsman to report – duty to conclude investigation – privative clause – locus standi – insufficient interest to initiate or continue proceedings – no interest greater than public – summary judgment – proceedings dismissed.
LEGISLATION CITED:	Ombudsman Act 1974 (NSW) Protected Disclosures Act 1994 (NSW) Supreme Court Act 1971 (NSW)
CASES CITED:	AIMPE v Secretary, Department of Transport (1986) 13 FCR 124 Australian Conservation Foundation v Commonwealth (1980) 146 CLR 493 Cameron v HREOC (1993) 46 FCR 509 Coco v The Queen (1994) 179 CLR 427 ECAJ v Scully (1998) 79 FCR 537 Electrolux v AWU (2004) 221 CLR 309 Onus v Alcoa (1981) 149 CLR 27 P.S.A v F.C.U (1991) 173 CLR 132 Project Blue Sky v ABA (1998) 194 CLR 355 Saraswati v R (1991) 172 CLR 1 Tooheys Ltd v Minster for Business and Consumer Affairs (1981) 54 FLR 421
PARTIES:	Plaintiff: Gerard Michael McGUIRK Defendant: NSW OMBUDSMAN
FILE NUMBER(S):	SC 30002/2007
COUNSEL:	Plaintiff: Self represented Defendant: P.R. Garling SC
SOLICITORS:	Plaintiff: Self represented Defendant: M. Adofaci (NSW Ombudsman)

IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION
ADMINISTRATIVE LAW LIST

ROTHMAN J

13 NOVEMBER 2007

30002/07 Gerard Michael McGUIRK v NSW OMBUDSMAN

JUDGMENT

1 HIS HONOUR: Gerard McGuirk filed a summons on 4 January 2007 seeking relief against the NSW Ombudsman. The relief Mr McGuirk sought was an order of the Court in the nature of mandamus requiring the Ombudsman to report into allegations relating to certain current and former officers of the University of New South Wales. The Ombudsman had terminated the investigation into these reports on 7 December 2006.

2 The Ombudsman moves the Court (notice of which was filed on 7 February 2007) for orders dismissing the proceedings. After some initial skirmishes the matter was listed for hearing on 2 July 2007 and thereafter by some further written submissions and affidavits, because Mr McGuirk was unaware, despite some notice earlier given, that at least one major issue in the proceedings was his standing to bring the proceedings, to be dealt with on a preliminary basis together with his application for leave. One such notice of that issue was a facsimile from the Court of 5 July 2007. The matter was listed on two further occasions.

The Complaints to the Ombudsman

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…