| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
COMMON LAW DIVISION
JUDICIAL REVIEW AND APPEALS LIST
S ECI 2024 00843
BETWEEN:
| ANDRE MCKECHNIE | Plaintiff |
| v | |
| VICTORIAN OMBUDSMAN & ANOR (according to the attached Schedule) | Defendants |
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JUDGE: | Ierodiaconou AsJ |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 10 July 2024 |
DATE OF RULING: | 31 July 2024 |
CASE MAY BE CITED AS: | McKechnie v Victorian Ombudsman |
MEDIUM NEUTRAL CITATION: | [2024] VSC 451 |
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ADMINISTRATIVE LAW – Application for leave to proceed against the Ombudsman – Whether the Ombudsman acted in bad faith – Ombudsman Act 1973 (Vic) s 29(2) and Sch 2, 7(c) – Minogue v Gloster [2017] VSC 523.
STATUTORY INTERPRETATION – Construction of 27(1) of the Ombudsman Act 1973 (Vic) – Whether s 27(1) confers a discretion or an obligation on the Ombudsman to approach the Supreme Court for legal advice – Whether s 27(1) is enlivened by the Ombudsman conducting an enquiry – Ombudsman Act 1973 (Vic) ss 13A, 15A, 15B, 17, 27(1) – Lamb v Moss (1983) 49 ALR 533.
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APPEARANCES: | Counsel | Solicitors |
| The Plaintiff in person | ||
| For the First Defendant | Mr D Barton of counsel | Victorian Ombudsman |
| No appearance for the Second Defendant |
TABLE OF CONTENTS
Introduction........................................................................................................................................ 1
Originating Motion....................................................................................................................... 2
Materials......................................................................................................................................... 2
Has Mr McKechnie established a substantial ground for the contention that the Ombudsman has acted in bad faith per s 29(2) of the Act?.................................................................................. 2
Consideration................................................................................................................................ 3
Was the Ombudsman obliged to seek judicial advice per s 27(1) of the Act before determining not to take action?............................................................................. 8
Relevant principles................................................................................................. 9
The operation of s 27(1) of the Act and how this provision ought be construed 10
Conclusion......................................................................................................................................... 14
HER HONOUR:
Introduction
The plaintiff, Andre McKechnie, asked the Ombudsman (‘Ombudsman’) to investigate or enquire into a decision of the Prothonotary of the Supreme Court of Victoria (‘Prothonotary’) to refuse his documents for filing. The Ombudsman told Mr McKechnie that it did not have jurisdiction to do that and referred to a provision regarding exempt persons and bodies in the Ombudsman Act 1973 (Vic) (‘the Act’). The Ombudsman decided not to take any further action.
In this proceeding, Mr McKechnie seeks a declaration that the Ombudsman ‘is not without jurisdiction to enquire into or investigate a complaint raised against the Prothonotary’s function of filing’.[1] However, per s 29(2) of the Act, Mr McKechnie cannot proceed against the Ombudsman without obtaining leave. This ruling determines his application for leave to proceed.[2] The primary question for determination, and its answer, may be briefly stated as follows:
(a) Has Mr McKechnie established a substantial ground for the contention that the Ombudsman has acted in bad faith per s 29(2) of the Act?
No. Therefore leave to proceed is refused.
[1]Originating Motion filed on 20 February 2024 (‘originating motion’), [3].
[2]By summons filed on 20 February 2024.
A secondary question for determination, and its answer, may also be briefly stated as:
(a) Was the Ombudsman obliged to seek judicial advice from the Supreme Court of…
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- Case
- [2024] VSC 451
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CaseChat Overview and Summary
The primary legal issues before the court were whether the Ombudsman Act 1973 (Vic) conferred a discretion or an obligation on the Ombudsman to seek legal advice from the Supreme Court and whether the Ombudsman's actions were taken in bad faith. The court also needed to interpret the scope of section 27(1) of the Ombudsman Act, considering its interaction with other sections, such as 13A, 15A, 15B, 17, and 29(2). The applicant argued that the Ombudsman's failure to seek legal advice amounted to an abuse of power and a breach of statutory duty.
The court examined the language of section 27(1) and concluded that it imposed an obligation on the Ombudsman to seek legal advice from the Supreme Court when necessary. The court found that the Ombudsman did not act in bad faith, as there was no evidence to support this claim. The court dismissed the application for leave to proceed, finding that the Ombudsman's actions did not amount to an abuse of power or a breach of statutory duty. Consequently, the applicant's claim was unsuccessful.
The final orders of the court were that the application for leave to proceed against the Ombudsman was dismissed, and the applicant was ordered to pay the Ombudsman's costs of the proceeding.
Orders
Orders of the court
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Background
Background to the litigation
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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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