Minogue v Gloster - [2017] VSC 523

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE
COMMON LAW DIVISION
JUDICIAL REVIEW AND APPEALS LIST

S CI 2017 01847

CRAIG MINOGUE	Plaintiff
v
ANDREW GLOSTER (IN HIS CAPACITY AS AN OMBUDSMAN ACT OFFICER)	Defendant

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JUDGE:	JOHN DIXON J
WHERE HELD:	MELBOURNE
DATE OF HEARING:	31 AUGUST 2017
DATE OF JUDGMENT:	6 DECEMBER 2017
CASE MAY BE CITED AS:	MINOGUE v GLOSTER
MEDIUM NEUTRAL CITATION:	[2017] VSC 523

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JUDICIAL REVIEW AND APPEALS — Ombudsman — Plaintiff sought judicial review of rejection by Ombudsman of Plaintiff’s complaint —Whether leave should be granted to bring proceeding due to officer acting in bad faith —Whether bad faith arguable — Leave refused —Ombudsman Act 1973 s 29.

STATUTES — Statutory interpretation — ‘Governor’ of a prison — Whether use of alternative title by the holder of that office was contrary to law, unreasonable or had a tendency to cause confusion and uncertainty as to jurisdiction and lawfulness of decision making processes in Victorian prison system — Corrections Act 1986.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	In Person
For the Defendant	Ms S Gory	Victorian Government Solicitor’s Office

HIS HONOUR:

The plaintiff is incarcerated at Barwon Prison where he is serving a term of imprisonment. Mr Gloster is a senior investigation officer with the Victorian Ombudsman and a delegate of that office.
On 14 December 2016, the plaintiff complained to the Ombudsman that Corrections Victoria had taken administrative action that was contrary to law, unreasonable and tending to cause confusion and uncertainty as to the jurisdiction and lawfulness of all decision making processes within the Victorian prison system that are made by persons exercising the wide powers of a Corrections Act 1986 ‘governor’. A collection of prison-related documents that were said to demonstrate the confusion and uncertainty that had been created by abandonment of the lawful title of the public office of governor of a prison was annexed to the letter. By a further letter dated 12 March 2017, the plaintiff, in substance, restated his complaint and sought a response.
On 3 April 2017, the defendant responded to both letters. He concluded that Corrections Victoria had not acted in a way that was unlawful, unreasonable or wrong.
On 5 April 2017, the plaintiff wrote to the Ombudsman seeking a review of the defendant’s decision. The plaintiff complained that Mr Gloster had acted in bad faith in dealing with his complaint. He maintained then, as he does now, that Mr Gloster dishonestly recast his complaint in a straw man way so as to easily knock it over. Particular objection was taken, and is now maintained, to the use by Mr Gloster of the words ‘meaningless’ and ‘legally invalid’.
On 27 April 2017, the Assistant Ombudsman, conducting that review, rejected the plaintiff’s complaint.
On 17 May 2017, the plaintiff applied for judicial review of Mr Gloster’s decision. That application was made against Mr Gloster rather than the Ombudsman.
At the commencement of the hearing I struck out two grounds of the…

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.

Continue reading Minogue v Gloster

Details

AGLC: Minogue v Gloster [2017] VSC 523
Case: [2017] VSC 523
Decision Date: 6 DECEMBER 2017

CaseChat Overview and Summary

The case of Minogue v Gloster involved the plaintiff seeking judicial review of the decision by the Ombudsman to reject their complaint. The plaintiff argued that the Ombudsman's decision was flawed due to the officer's alleged bad faith and sought leave to bring the proceeding on this basis. The court was required to determine whether the plaintiff's argument of bad faith was arguable and whether leave should be granted for the judicial review.

The court considered the statutory framework under which the Ombudsman operates, particularly the Ombudsman Act 1973 section 29. The plaintiff argued that the officer acted in bad faith, which would provide grounds for leave to be granted. However, the court found that the plaintiff had not established that the bad faith was arguable. The court emphasised the threshold for granting leave in judicial review cases, which requires a significant arguable case.

Consequently, the court refused to grant leave to the plaintiff to bring the proceeding for judicial review. The court held that the plaintiff had not demonstrated that the alleged bad faith was sufficiently arguable to warrant judicial intervention. The court's reasoning was based on the high threshold for granting leave in judicial review cases and the need to establish a significant arguable case.

No further orders were made by the court as the application for leave was refused.

Orders