Minogue v Gloster

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 plaintiff’s claim as inappropriate and/or untenable.[1] By the remaining grounds, the plaintiff sought:
[1]Civil Procedure Act 2010, s 63(2)(c).

(a) an order granting leave to commence civil proceedings for judicial review;

(b) a declaration that Mr Gloster acted in bad faith when responding to the plaintiff’s complaints as set out above;

(c) a declaration that Mr Gloster’s action in bad faith had the effect of unlawfully limiting the operation of the s 47(1)(j) of the Corrections Act 1986 right to make a complaint concerning prison management to the Ombudsman.

The plaintiff relied on two affidavits sworn by him on 12 May 2017 and 10 July 2017. With respect to the first affidavit, I admitted paragraphs 1–5, the first sentence of paragraph 7, paragraphs 8–11, paragraph 13 and exhibit CM01 into evidence. The remaining paragraphs of that affidavit were argumentative and were treated as part of the plaintiff’s written submission.
In respect of the plaintiff’s second affidavit, I admitted paragraphs 1, 10, 11–13 (inclusive) and exhibit CM02 into evidence. Paragraphs 2–9, which were argumentative, were treated as part of the plaintiff’s written submission. When invited to demonstrate that the matters referred to in paragraphs 14–38 of that affidavit constituted evidence that is relevant in the proceeding, the plaintiff was unable to do so. I was not persuaded that the matters deposed to in those paragraphs were relevant to a fact in issue in the proceeding and ruled those matters to be inadmissible.
In particular, the plaintiff sought to tender a document described as a research report. The document was entitled ‘Does the Ombudsman’s office in Victoria act in bad faith when responding to complaints from prisoners? – a longitudinal ethnographic research report’. Nothing in this report could rationally affect an assessment of the probability that Mr Gloster acted in bad faith when he made the decision that is recorded in his letter of 3 April 2017. Had I been persuaded that the report was admissible under s 56(1) of the Evidence Act 2008 it would have been necessary to consider whether the evidence was excluded by the operation of s 76 that provides that evidence of an opinion is not admissible to prove the existence of a fact about the existence of which the opinion was expressed.
Section 13 of the Ombudsman Act 1973 states that the principal function of the Ombudsman is to inquire into or investigate any administrative action taken by or in an authority, save for certain excluded matters. The plaintiff invited me to read this function in conjunction with s 47(1)(j) of the Corrections Act 1986 that provided that every prisoner has ‘the right to make complaints concerning prison management to … the Ombudsman’.
Part IV of the Ombudsman Act gives the Ombudsman a discretion to conduct an investigation under the Act on a complaint.
The evidence established that the defendant treated the complaint seriously and dealt with it on its merits. The plaintiff did not submit that the defendant refused to deal with the complaint in the exercise of any statutory power or exclusion. Rather, the plaintiff contended that the decision was made in bad faith because Mr Gloster ‘deliberately and dishonestly’ reformulated the plaintiff’s complaint into a complaint about the legal validity of decisions taken by the governor or other officers based on their ‘working titles’.
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.
The plaintiff did not attempt to demonstrate jurisdictional error in Mr Gloster’s decision.[2] Assuming, without deciding, that the statutory text indicates a legislative intent to exclude applications for judicial review,[3] for the reasons that follow I was not satisfied that there was substantial grounds for the contention that Mr Gloster had acted in bad faith.
[2]Kirk v Industrial Court(NSW) (2010) 239 CLR 531.
[3]Applicants A1 and A2 v Brouwer (2007) 16 VR 612, 632 [80]; Ainsworth v The Ombudsman (1988) 17 NSWLR 276; Bare v Independent Broad-based Anti-corruption Commission (2015) 48 VR 129, 165-166 [105]-[106].
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:[4]
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.
[4](2002) 194 ALR 749, 756 [43]-[48] (citations omitted).
Subject to a qualification to the ninth proposition, this review and summary of the case law was adopted in Minister for Immigration and Multicultural Affairs v SBAN.[5] That qualification was to state that there is no such thing as deemed or constructive bad faith. Where wrongful intent is in issue, reckless indifference may be the equivalent of intent. The test is subjective and the inquiry is directed to the actual state of mind of the decision maker. As the Full Court noted, defects in the decision making process that are equally explicable as the result of obtuseness, overwork, forgetfulness, irritability or other human failings not inconsistent with an honest attempt to discharge the decision maker’s duty will usually not be sufficient to base a finding of bad faith.
[5][2002] FCAFC 431 [8].
The plaintiff contended that on a fair and proper reading of the correspondence between him and the defendant it was evident that in his response Mr Gloster misrepresented the plaintiff’s ‘cogently made and concisely expressed complaint’ of December 2016 so it could be dismissed without an inquiry or investigation being made. He submitted that Mr Gloster employed the straw man fallacy, a tactic used in argument to misrepresent another’s position by making it appear implausible so it can be more easily rebutted or dismissed. Further, the plaintiff contended that Mr Gloster had used the straw man fallacy deliberately and dishonestly. He contended that it was not open to regard Mr Gloster’s reframing of the plaintiff’s complaint as an honest mistake. Rather, I should conclude that the straw man fallacy was deployed by guile and trickery.
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’.
In his complaint, the plaintiff stated that the Corrections Act 1986 defined ‘governor’ to mean ‘governor of a prison’ and that the word is used throughout the Act to describe a person with power to manage a prison. Although a governor has powers, duties and functions that are provided for by the statute and which are of a public and governmental nature, the policy of Corrections Victoria is to allow its officers who exercise such powers, duties and functions to abandon the title of that public office as it was provided for in the statute and to employ ‘idiosyncratic private titles’ that are not found in the Corrections Act and have no meaning under law.
The plaintiff requested that the investigation of his complaint address two questions:
(a)Is it contrary to law for the whole of the public office, when exercising the statutory powers of the office, to abandon the title of that public office as it was provided for and enacted by the Parliament in the statute, for a title that they personally prefer?
(b)Does the abandoning of the statutory title of a public office tend to cause confusion and uncertainty as to the jurisdiction and lawfulness of all decision making processes associated within the statutory power of that public office holder?
In his second letter, the plaintiff asserted that he had effectively done the investigation and presented the documentary evidence that supported his complaint.
When recording his decision, Mr Gloster made several findings. First, decisions taken by a person appointed as ‘governor’ under the Corrections Act are not invalid ‘simply for the reason that they use a different working title, such as general manager’. It is the ‘substance of the appointment from which the governor obtains their authority, not the form of the title under which they may operate’.
Secondly, the lawfulness of the delegation of powers is not affected by the working title of the officer. Mr Gloster concluded that he did not ‘consider that Corrections Victoria had acted in a way that was unlawful, unreasonable, or wrong under the Ombudsman Act’.
Careful consideration of this correspondence does not support the plaintiff’s contention that in reframing the plaintiff’s complaint for the purposes of his response, Mr Gloster employed a straw man fallacy. He identified, and answered, the gravamen of the complaint.
That conclusion is sufficient to dispose of the plaintiff’s allegation of bad faith.
The plaintiff’s argument was that the Ombudsman is the sole administrative mechanism for accountability and empowers the Ombudsman to investigate and enquire into any impugned conduct. The Corrections Act provides broad statutory powers over the management, security and welfare of prisoners, who are a marginalised social group vulnerable to abuses of power. Section 47(1)(j) of the Corrections Act permits prisoners to complain about selected public officials. Bad faith has permeated the Ombudsman’s office to an extent that prejudices a prisoner’s ability to receive fair treatment. Prisoner wellbeing is compromised if a complaint is not considered in good faith. The legitimate discharge of the Ombudsman’s powers in dealing with the plaintiff’s complaint was undermined by bad faith such that the private clause contained in s 29 of the Act did not apply.
The plaintiff submitted that evidence of the defendant’s bad faith was prima facie clear from the defendant’s letters to the plaintiff. Mr Gloster deliberately and dishonestly reformulated his complaint to dismiss it without further investigation. No reasonable person acting in good faith would have recast the plaintiff’s complaint the way Mr Gloster did. When the plaintiff challenged how his complaint was handled, a review was refused on demonstrably false reasons.
I am not persuaded by this submission. Circumstances demonstrating a lack of good faith simply by reliance on the written reasons for decision under review are rare and extreme. This case falls well short of the standard identified in the authorities. There is no basis to infer any personal fault or dishonesty on the part of Mr Gloster. Further, were I to conclude that Mr Gloster had not appropriately reframed the substance of the plaintiff’s complaint, in this respect mere error or irrationality on his part does not demonstrate a lack of good faith. When invited to identify Mr Gloster’s actual state of mind, the plaintiff could not point to anything in the evidence that was inconsistent with an honest attempt on his part to discharge his duty other than his ‘straw man’ interpretation.
Although Mr Gloster did not identify the precise source of power in the Ombudsman Act under which he was acting, it was not necessary for him to do so. The validity of his action depended on whether a relevant power existed,[6] and his conduct was authorised under either s 13A or s 15B of the Act.
[6]Johns v ASC (1993) 178 CLR 408, 426.
Although not strictly necessary, two further observations are apposite. First, s 41(1)(j) preserves and protects the right of prisoners to make complaints to the authorities identified in the subsection according to the available mechanisms. The subsection confirms that a prisoner is within the class of persons who may make a complaint under s 15 of the Ombudsman Act about prison management but s 41(1)(j) does not affect the operation of the Ombudsman Act.
Secondly, statutory rights granted to prisoners by the provisions of the Corrections Act are construed in accordance with the terms of the statutory text and well established principles of statutory construction. Such rights are not construed as subject to any limitation that might be fashioned out of the language found in s 7(2) of the Charter of Human Rights and Responsibilities Act 2006. That section provides that human rights, as set out in part 2 of the Act, may only be reasonably limited under law in accordance with that section. An inquiry under the Charter is altogether different from discerning the true construction of a section of the Corrections Act.
The plaintiff’s application is dismissed.

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[2017] VSC 523

6 DECEMBER 2017