McKechnie v Victorian Ombudsman
[2024] VSC 451
•31 July 2024
| 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 Victoria per s 27(1) of the Act before deciding not to take further action?
No.
The Ombudsman applies for summary judgment.[3] Given that leave has been refused, it is unnecessary to consider this application.
[3]By summons filed on 19 June 2024.
Originating Motion
In his originating motion filed on 20 February 2024 (‘originating motion’), Mr McKechnie identifies the decision for review as the Ombudsman’s decision:
… to refuse to enquire into or to investigate a complaint raised with the Victorian Ombudsman by the plaintiff [on] 7 February 2024 relating specifically to the filing with the Prothonotary in the Supreme Court of Victoria, an interlocutory application dated 8 January 2024, made by the plaintiff in the proceeding S ECI 2023 03095...[4]
[4]Originating motion, [1].
The originating motion identifies the primary question as follows:
Is the Victorian Ombudsman (first defendant), as a consequence of the effects of schedule 2, 7(c) on s 13(1)(a)(b) and s 13AA(2) of the Ombudsman’s Act 1973, rendered without jurisdiction to enquire into or investigate a complaint raised against the Prothonotary’s function of filing?[5]
[5]Ibid, [2].
Materials
Mr McKechnie relies on his affidavits dated 12 February 2024 and 7 July 2024 (‘McKechnie 12 Feb 24 affidavit’ and ‘McKechnie 7 Jul 24 affidavit’ respectively).[6]
[6]These affidavits were unsworn. In the course of the hearing, Mr McKechnie gave evidence they were true and correct and I accept his evidence.
The Ombudsman relies on the affidavit of Mr Ben Calder, an inhouse legal practitioner, affirmed on 19 June 2024 (‘Calder affidavit’).
Both Mr McKechnie and the Ombudsman made oral and written submissions.
The Prothonotary (the second defendant) is not an active participant in this proceeding.
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?
Mr McKechnie says the Ombudsman, in coordination with the Prothonotary, acted in bad faith by misinterpreting Schedule 2, s7(c) of the Act. In particular, he refers to misinterpreting the word ‘relate’. He says this was a reckless exercise of power that circumvents Parliament’s intention that the Prothonotary be subject to limited oversight by the Ombudsman. Mr McKechnie says that the Ombudsman persisted in its interpretation without reference to any authority despite discussions with him since 2021. He relies on the Macquarie Dictionary definition of ‘relate’.
Mr McKechnie says that, despite his suggestion, the Ombudsman has refused to apply to the Supreme Court of Victoria per s 27(1) of the Act.
Consideration
I find that Mr McKechnie has not established a substantial ground for the contention that the Ombudsman acted in bad faith per s 29(2) of the Act. Section 29(2) provides:
(2)No civil or criminal proceedings shall be brought against the Ombudsman or any of the Ombudsman's officers in respect of any act referred to in subsection (1) without the leave of the Supreme Court, and the Supreme Court shall not give leave unless it is satisfied that there is substantial ground for the contention that the person to be proceeded against has acted in bad faith.
I gratefully adopt the following principles given by J Dixon J in Minogue v Gloster:
14.Section 29 of the Ombudsman Act requires that a plaintiff obtain the leave of this Court in order to contend in a proceeding that an Ombudsman’s officer is liable, whether on the ground of want of jurisdiction or on any other ground, because his actions in considering the plaintiff’s complaint were done in bad faith. Section 29(2) stipulates that the Court shall not give leave unless it is satisfied that there is a substantial ground for the contention that Mr Gloster had acted in bad faith.
…
16.The principles that apply to determine whether there was substantial ground for that contention were summarised by the Full Court of the Federal Court of Australia in SBBS v Minister for Immigration and Multicultural and Indigenous Affairs:
First, an allegation of bad faith is a serious matter involving personal fault on the part of the decision-maker. Second, the allegation is not to be lightly made and must be clearly alleged and proved. Third, there are many ways in which bad faith can occur and it is not possible to give a comprehensive definition. Fourth, the presence or absence of honesty will often be crucial.
The fifth proposition is that the circumstances in which the court will find an administrative decision-maker had not acted in good faith are rare and extreme. This is especially so where all that the applicant relies upon is the written reasons for the decision under review.
Sixth, mere error or irrationality does not of itself demonstrate lack of good faith. Bad faith is not to be found simply because of poor decision-making. It is a large step to jump from a decision involving errors of fact and law to a finding that the decision-maker did not undertake its task in a way which involves personal criticism.
Seventh, errors of fact or law and illogicality will not demonstrate bad faith in the absence of other circumstances which show capriciousness.
Eighth, the court must make a decision as to whether or not bad faith is shown by inference from what the tribunal has done or failed to do and from the extent to which the reasons disclose how the tribunal approached its task.
Ninth, it is not necessary to demonstrate that the decision-maker knew the decision was wrong. It is sufficient to demonstrate recklessness in the exercise of the power.
…
19.The plaintiff submitted that his complaint, properly read, was that Corrections Victoria decided to not use the title of the public office of ‘governor’ of a prison notwithstanding that the use of that title was specifically debated and decided upon by Parliament. This administrative decision was ‘tending to cause confusion and uncertainty as to the decision making processes within the Victorian prison system’. He described the confusion and uncertainty to which he referred as being about ‘the jurisdiction and lawfulness of all decision making processes’. [7]
(citation omitted)
[7][2017] VSC 523, [14], [16], [19].
There is no evidence to support Mr McKechnie’s assertions of bad faith. Rather, the evidence before me discloses the Ombudsman acting patiently, carefully and honestly with Mr McKechnie. The Ombudsman made a considered decision based on internal legal advice. The reasons for the decision were relayed to Mr McKechnie, both by telephone and in writing.
On 10 January 2024, Mr McKechnie contacted the Ombudsman’s Office to raise his concerns about the Registry of the Supreme Court. The Ombudsman’s Office made a file note recording the discussion. The writer stated that Mr McKechnie believed that filing applications and answering the phone were administrative, and not judicial or quasi-judicial functions. The writer recorded that she advised Mr McKechnie of the action to be taken before making an assessment of his concerns. This action was to review legal advice previously received on the question of jurisdiction over the Registry of the Supreme Court and that Mr McKechnie would be advised of the outcome.[8]
[8]Exhibit “BC-1” to the affidavit of Ben Calder affirmed 19 June 2024 (‘Calder affidavit’), 5.
On 12 January 2024, the Ombudsman’s Office recorded another discussion with Mr McKechnie with the writer’s file note including the following:
On the matter of the Registry, advised I had spoken to Legal and we discussed that the filling of documents is a quasi-judicial function and my understanding is this is because the process is closely related to proceedings. The decision to accept or not accept phone calls is administrative and I intend to make enquiries on this. Purpose of enquiries to is understand if this was a decision of the Registry and if it is something they can do and is reasonable in the circumstances.
C asked for a list of functions of the Registry that are within the jurisdiction of VO. Advised this is generally difficult to provide as it could change on the circumstances of the issue being raised. C also asked for what definition of quasi-judicial VO are relying on the make this decision. Advised I would need to clarify this with legal.
C said would call back if able.
…
C is concerned the prison is interfering/blocking his communication to the Court. C believes the Executive and judiciary are not working appropriately. When the Prothonotary are involved and where there has been a single point of contact things seem to work fine. C feels the when the coalface officers are dealing with his complaints things go ‘awry’. C feels officers are finding ways to avoid doing things they are supposed to. C’s issues with the prisons and the courts/VO started 7 years ago when his legal mail was opened and reviewed and the Prison told VO they were able to do this.
C has 8 proceedings on foot across the Supreme Court, Court of Appeal and VCAT. C will be in court soon, no date as he has not received the papers, and will need to explain to the judge the issues with documents and likely bring the Ombudsman in to the matter. C still doesn’t have the USB from VLA that was sent on 11 or 12 December, and only just received a USB from the Victorian Government that was sent/received 22 December.
C requested to sort ‘some of this out now’ with regards to the legal material he is missing. I advised I first need to review’ the complaints previously dealt with as I would not be taking action on issues already dealt with. C requested some urgency be applied. Call cut out at this point.[9]
[9]Ibid, 6.
On 2 February 2024, the Ombudsman’s Office recorded another discussion with Mr McKechnie with the writer’s file note including the following:
Advised I had update about the legal advice regarding judicial and quasi-judicial. The specific wording in sched 2 &(c) says ‘relates to’ a judicial function, and the leagl [sic] team have advised any function which relates to the running of a case would be related to a judicial or quasi judicial [sic] function and therefore out of VO jurisdiction.
C asked for a list of functions that are in or out of JU, advised this was not possible and we would assess on a case by case basis.
C disagreed with the assessment of the Legal team and would now be seeking leave to the Supreme Court on the matter.[10]
[10]Exhibit “BC-1” to the Calder affidavit, 7.
On 7 February 2024, Mr McKechnie contacted the Ombudsman’s office requesting the Ombudsman investigate a refusal of filing documents by the Registry, referencing proceeding 2023 03095 dated 8 January 2024. The Ombudsman’s Office recorded that he was informed:
Declined as filing in outside VO’s jurisdiction as per previous legal advice. C is researching to find definitions of quasi-judicial in legislation or case law. Advised the decision of legal is based only on the wording of the Ombudsman Act 1973.
Advised C I would send a letter declining the approach.[11]
[11]Ibid, 8.
On 9 February 2024, the Ombudsman’s Office recorded another discussion with Mr McKechnie with the writer’s file note including the following:
Continued discussion about why VO can be contacted by other agencies with 1800 numbers can’t be. C queried VO’s role in determining if a policy is unlawful, advised while VO can draw an opinion, generally only a Court could determine if a policy was unlawful. C explained the Affidavits he referred to are for an ongoing matter relating to 1800 numbers, going to trial on 29 February, C requested matter be kept open until after this. Explained while the case is not open, I will note I am open to giving further consideration at a point the affidavits are provided.
C is seeking to challenge issue of the registry of the Supreme Court filing on the basis the decision was arbitrary because VO hasn’t relied upon anything. C requested VO consider exercising power under section 27 to clarify jurisdiction with the Court. Advised would get back to C with an answer.
Advised that the Court Services Vic has provided me a response in which the Supreme Court agreed VO does not have jurisdiction. C requested this information, agreed to provide a summary and email a copy to Mr Cyprys.
C queried CSV powers over SCV - advised I understood them to be the employer of court staff and the overseer of sorts over administrative matters.
…
Confirmed decision about jurisdiction over the Supreme Court regarding filing was based only on the reading of the Ombudsman Act, the advice from the Court was received later.[12]
[12]Exhibit “BC-1” to the Calder affidavit, 9 – 10.
On 9 February 2024, the Ombudsman wrote to Mr McKechnie stating the following (‘Ombudsman 9 Feb 24 letter’):
Your complaint about the Registry of the Supreme Court
I refer to your telephone call dated 7 February 2024 in which you requested the Victorian Ombudsman investigate the Registry of the Supreme Court (‘the Court’). You advise the Court has refused to file documents relating to reference C ESI 2023 03095 on 8 January 2024.
In our conversation, I advised I am declining to take further action regarding this matter because the filing of documents by the Court is outside of the Ombudsman’s jurisdiction. This decision is based on the advice received from the Legal team within the office of the Victorian Ombudsman regarding the application of Schedule 2 section 7(c) of the Ombudsman Act 1973 (‘the Act’).
Because the filing of documents is a function related to the running of a case, it is a function which relates to a judicial or quasi-judicial function of the court. The Court is exempt from the Ombudsman Act with regard to refusal to file your documents.
In a further conversation dated 9 February 2024, you requested the Ombudsman exercise it’s power under section 27 of the Act to make an application to the Court to clarify the Ombudsman's jurisdiction over the Registry of the Supreme Court. I have raised your request with our Legal Team. I can advise the Ombudsman’s position is there is no question to be answered and we will not be making an application to the Court on this matter.
I advised in our discussion I had received a preliminary response from Court Services Victoria regarding questions I posed about the Court’s decision to refuse your phone calls. In my enquiries, I outlined my understanding that the Ombudsman does not have jurisdiction with regard to the filing of documents. In its response, Cout Services Victoria stated;
Your request notes that members of staff of a registry of a court are exempt from the Ombudsman's jurisdiction to the extent their functions relate to a judicial or quasi-judicial function of the court. We acknowledge your observation that complaints about filing of documents in relation to court matters are outside the Ombudsman's jurisdiction.
I have taken this to mean that the Court and Court Services Victoria, accept and agree with the assessment of jurisdiction.
This concludes my consideration of this matter. If you have any queries, please contact me on the prisoner free call line (*#05) on the agreed contact days.[13]
[13]Exhibit “BC-1” to the Calder affidavit, 11 – 12.
On 4 March 2024, the Ombudsman wrote to Mr McKechnie stating:
As part of this case file, we discussed your complaint to the Victorian Ombudsman about the filing of documents by the Court. I confirmed the Victorian Ombudsman's position, that this issue was outside of our jurisdiction as per Schedule 2 of the Ombudsman Act 1973, in a letter dated 9 February 2024. I have since received a copy of your originating motion to the Court, dated 9 February 2024, and have notified our Legal team. We will await further information about the Courts decision on this submission.[14]
[14]Ibid, 13.
The correspondence and notes of telephone conversations[15] above show there was no reckless exercise of power. The lack of authorities cited by the Ombudsman in support of its interpretation does not indicate bad faith. The Ombudsman did not make a rash decision but rather considered its legal position and obtained further information before making a decision.
[15]Ibid, 5 – 15.
I doubt whether the Prothonotary’s function is judicial or quasi-judicial per Schedule 2, s7(c). However, as Mr McKechnie concedes in his written submissions, that alone would not constitute bad faith.
Turning now to a secondary question.
Was the Ombudsman obliged to seek judicial advice per s 27(1) of the Act before determining not to take action?
Section 27(1) of the Act provides:
Application to Supreme Court
(1)Where in the course of an investigation under this Act the question arises as to whether the Ombudsman has jurisdiction to conduct the investigation, the Ombudsman or the party subject to the investigation, may make an application to the Supreme Court for a determination of that question, and on the application the Court may make such order as it considers proper. (emphasis added)
The Act received Royal Assent on 17 April 1973 and commenced operation on 30 October 1973. Given that the Act predates the enactment of the Interpretation of Legislation Act 1984 (the ‘IOL Act’), s 45 of the IOL Act — which provides a statutory meaning of the word ‘may’ in the context of Victorian statutes enacted post 1984— does not apply. It is therefore necessary to consider relevant case law and statutory interpretation principles to determine whether s 27(1) confers a discretion or an obligation.
Since enacted, there have only been a handful of cases in Victoria that have considered s 27(1) of the Act.[16] Although these cases have considered jurisdictional issues, they have not specifically considered the question of whether this provision confers a discretion or an obligation on the Ombudsman to approach the Court for judicial advice if a jurisdictional issue arises. Thus, these authorities offer little assistance as to the operation and proper construction of s 27(1).
Relevant principles
[16]Booth v Dillon (No 1) [1976] VR 291; Glenister v Dillon (No 2) [1977] VR 151; Booth v Dillon (No 3) [1977] VR 143; Nisselle v Brouwer (2007) 16 VR 296; Glass v President of the Legislative Council [2016] VSC 507.
A provision in a statute which uses the word ‘may’ is prima facie permissive.[17] The starting position is that if a provision states that a person ‘may’ do something, they have a discretion whether or not to do it.
[17]Ward v Williams (1955) 92 CLR 496, 505 (the Court), approving Ex parte Gleeson [1907] VLR 368, 373 (Cussen J).
However, there may be instances where the word ‘may’ does not confer a discretion, but confers a power or an obligation which must be exercised in certain circumstances. This is particularly the case when the word ‘may’ in a particular provision is coupled with a ‘duty’ which must be exercised.[18] Ultimately, ‘the particular context of the words and the circumstance’ of the provision and the objects of the relevant statute must be considered in order to make this assessment.[19]
[18]Ward v Williams (1955) 92 CLR 496, 505 (the Court), quoting Julius v Lord Bishop of Oxford (1880) 5 App Cas 214, 235 (Lord Selborne); Finance Facilities Pty Ltd v Federal Commissioner of Taxation (1971) 127 CLR 106, 134 (Windeyer J; Barwick CJ agreeing).
[19]Finance Facilities Pty Ltd v Federal Commissioner of Taxation (1971) 127 CLR 106, 134 (Windeyer J; Barwick CJ agreeing), approved in Mitchell v The Queen (1996) 184 CLR 333, 345 (the Court) and Leach v The Queen (2007) 230 CLR 1, [38].
In Lamb v Moss[20], the Federal Court of Australia held the relevant principles were as follows:
(1)The word “may” is always permissive or facultative in its meaning, and is never obligatory.
(2)Prima facie, when the word “may” is used to confer a power, the exercise of the power is not compulsory.
(3)However, the contrary may emerge from the enactment by which the power is granted; although the word “may” is always permissive in a particular enactment its operation may be such as to oblige the court to act. This may appear in a number of ways; for example, from the general scope and objects of the enactment, the nature or purpose of the power, the character of the person or tribunal to whom or to which the power is given or of the functions of that person or tribunal, the conditions upon which the power is exercisable, and/or the identity of the person or class of persons for whose benefit the power is conferred.[21]
The operation of s 27(1) of the Act and how this provision ought be construed
[20](1983) 49 ALR 533 (‘Lamb v Moss’).
[21]Lamb v Moss, 549.
As a preliminary point, s 27(1) contains a necessary pre-condition which must first be satisfied in order for the provision to be enlivened. That is, the provision may only be enlivened when the Ombudsman has embarked ‘in the course of an investigation under the Act … ‘. If an investigation by the Ombudsman into the impugned conduct has not commenced, s 27(1) will not confer either the Ombudsman or the ‘party subject to the investigation’ with the power to approach the Court for judicial advice.
There is an important statutory distinction between conducting an ‘enquiry’ and conducting an ‘investigation’.
Section 13A of the Act states:
13A Conducting of enquiries
(1)The Ombudsman may conduct an enquiry for the purpose of determining whether—
(a) an investigation under this Act should be conducted; or
(b)the matter (other than a public interest complaint) may be resolved informally.
(emphasis added)
Section 15B of the Act states:
15B Investigation of complaints
Subject to sections 15 and 15A, the Ombudsman may conduct an investigation under this Act on a complaint.
Relevantly, s 15A of the Act states:
15A Ombudsman may refuse to deal with certain complaints
(1)The Ombudsman may refuse to deal with a complaint if the Ombudsman considers—
(a)the subject-matter of the complaint is trivial; or
(b)the complaint is frivolous or vexatious or is not made in good faith; or
(c)the complaint lacks substance or credibility; or
(ca)that dealing, or continuing to deal with the complaint is unnecessary or unjustifiable, having regard to all the circumstances of the case; or
Finally, s 17 of the Act states:
17 Procedure relating to investigations
(1) Before conducting an investigation under this Act, the Ombudsman must inform the following in writing of the Ombudsman's intention to conduct the investigation—
(a) the complainant or the person who made the relevant public interest complaint; and
(b) the principal officer (if any) of the authority or public interest disclosure entity to which the investigation relates;
As is evident from the relevant provisions extracted above, simply conducting an enquiry into the impugned conduct as alleged by a complainant does not amount to an investigation, and therefore does not enliven s 27(1).
In this proceeding, it is clear that the Ombudsman had refused, on multiple occasions, to commence an investigation into the impugned conduct of the Prothonotary. This was confirmed by the Ombudsman in the Ombudsman 9 Feb 24 letter, with this correspondence explicitly stating that the Ombudsman would not ‘take further action’ in relation to the matter.[22]
[22]Exhibit “BC-1” to the Calder affidavit, 11 – 12.
The evidence clearly demonstrates that the Ombudsman was conducting enquiries into the impugned conduct of the Prothonotary. Upon making these enquiries, the Ombudsman refused to deal with Mr McKechnie’s complaint, and chose not to formally commence an investigation pursuant to s 15B of the Act.
It is evident that the Ombudsman had not, pursuant to s 17 of the Act, formally written to either the complainant or the Prothonotary (the party subject to the investigation) that it intended to conduct an investigation. Therefore, section 27(1) could not have been enlivened.
Nevertheless, for the sake of completeness, even if the Ombudsman had chosen to embark upon an investigation into the impugned conduct of the Prothonotary, the power conferred by s27(1), which allows the Ombudsman to make an application to the Court for determination of a jurisdictional question, ought to be construed as being discretionary in nature.
The language of the provision and in particular the word ‘may’ in this context is permissive, and not coupled with a duty that must be exercised. That is, s 27(1) does not import an obligation or a requirement on the Ombudsman to make an application to the Court for a determination each time a jurisdictional issue arises during an investigation.
Part IV, div 1, div 1A, div 2, div 2A, div 2B and particularly Schedule 2 of the Act comprehensively establish the scope of the jurisdiction of the Ombudsman, and the circumstances where the Ombudsman would not have jurisdiction to investigate the administrative action of certain authorities or ‘exempt persons’. Section 27(1) is only engaged if it is unclear from the Act whether the Ombudsman may have jurisdiction to investigate or when a party subject to the investigation challenges the jurisdiction of the Ombudsman to investigate.
Importantly, the power conferred in s 27(1) is not solely confined to the Ombudsman, but is also conferred on the ‘party subject of the investigation’, which permits that party to approach the Court to seek a determination on the jurisdictional issue. Indeed there are a number of authorities where the party subject to the investigation has applied for judicial advice.[23] The power for a party the subject of an investigation to apply for judicial advice is consistent with the provision being permissive in nature. Section 27(1) does not confer an obligation or require the Ombudsman to make an application to the Court each time a jurisdictional question arises.
[23]Booth v Dillon (No 1) [1976] VR 291; Glenister v Dillon (No 2) [1977] VR 151; Booth v Dillon (No 3) [1977] VR 143; Nisselle v Brouwer (2007) 16 VR 296.
If s 27(1) were read as conferring an obligation that requires the Ombudsman to approach the Court for judicial advice each time a jurisdictional question arises, this would be contrary to the main objectives of the Act as set out in s 2A. That is, it would be costly and inefficient.
Ultimately, the nature and scope of the power conferred under s 27(1) lies with either the Ombudsman or the party subject to the investigation to exercise. Both parties have the discretion to make an application to the Court to determine a jurisdictional issue, should they choose to do so ‘at any time in the course of an investigation’.
Finally, for completeness, a complainant certainly cannot request or compel the Ombudsman to approach the Court for determination of a jurisdictional issue. The power promulgated in s 27(1) does not permit a complainant to do so.
Conclusion
Leave to proceed is refused.
At the hearing, the parties made submissions as to costs. The Ombudsman sought there be no order as to costs. Mr McKechnie sought his costs, including the costs of his agents. Mr McKechnie is the losing party and should not be awarded costs. Given that the Ombudsman does not seek costs, I will make no order as to costs. I will make orders to this effect.
SCHEDULE OF PARTIES
| S ECI 2024 00843 | |
| BETWEEN: | |
| ANDRE MCKECHNIE | Plaintiff |
| - v - | |
| VICTORIAN OMBUDSMAN | First Defendant |
| PROTHONOTARY OF THE SUPREME COURT OF VICTORIA | Second Defendant |