McKechnie v Victorian Ombudsman - [2024] VSC 451

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

---

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

---

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.

---

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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Keep reading for free

Create a free CaseChat account to read McKechnie v Victorian Ombudsman and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2024] VSC 451
Decision Date: 31 July 2024

CaseChat Overview and Summary

The case of McKechnie v Victorian Ombudsman involved the applicant seeking leave to proceed with an action against the Ombudsman, alleging that the Ombudsman acted in bad faith. The matter was heard in the Supreme Court of Victoria. The applicant, McKechnie, contended that the Ombudsman breached statutory obligations under the Ombudsman Act 1973 (Vic) by failing to seek legal advice from the Supreme Court, and that this breach was in bad faith.

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