The Ombudsman v Laughton [2005] NSWCA 339 This decision has been amended. Please see the end of the judgment for a list of the amendments.
HEARING DATE(S):
30 September 2005
JUDGMENT DATE:
30 September 2005
JUDGMENT OF:
Spigelman CJ at 1 and 52; Handley JA at 28; Basten JA at 39
DECISION:
1. Appeal dismissed with costs
CATCHWORDS:
ADMINISTRATIVE LAW - Particular persons and bodies - Ombudsman - Immunity of - Where applicant for position in Ombudsman's office appealed decision to appoint another person - Whether immunity extends to matters of internal administration - Ombudsman Act 1974, s32, s35A - Government and Related Employees Appeal Tribunal Act 1980, s20 - STATUTES - Interpretation - Maxim - Generalia specialibus non derogant - Discussion - Purposive Construction - Interpretation Act 1987, s33
The Ombudsman (Appellant) Robert Leslie Laughton (Respondent)
FILE NUMBER(S):
CA 40446/2005
COUNSEL:
PR Garling SC (Appellant) SC Crawshaw SC and AA Hatcher (Respondent)
SOLICITORS:
Sparke Helmore (Appellant) Jones Staff & Co (Respondent)
LOWER COURT JURISDICTION:
Government and Related Employees Appeals Tribunal
LOWER COURT FILE NUMBER(S):
PSP/25 of 2005
LOWER COURTJUDICIAL OFFICER:
Senior Chairperson Lynch
40446/05
SPIGELMAN CJ HANDLEY JA BASTEN JA
30 SEPTEMBER 2005
THE OMBUDSMAN v ROBERT LESLIE LAUGHTON
Judgment
1 SPIGELMAN CJ: The respondent, Mr Laughton, was an unsuccessful applicant for a position in the office of the Ombudsman. He sought to appeal to the Government and Related Employees…
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.
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AGLC
The Ombudsman v Laughton [2005] NSWCA 339
Case
[2005] NSWCA 339
Decision Date
CaseChat Overview and Summary
The Administrative Decisions Tribunal (ADT) had dismissed an application by Mr Laughton, who had sought to appeal the Ombudsman's decision to appoint another person to a position within the Ombudsman's office. Mr Laughton then appealed to the Court of Appeal of New South Wales. The central dispute concerned whether the Ombudsman, in making decisions regarding internal administrative appointments, was immune from review by the Government and Related Employees Appeal Tribunal (GREAT).
The Court of Appeal was required to determine whether section 32 of the *Ombudsman Act 1974* (NSW), which conferred immunity on the Ombudsman, extended to decisions concerning internal administrative matters, such as the appointment of staff. This involved considering the interaction between the *Ombudsman Act 1974* and the *Government and Related Employees Appeal Tribunal Act 1980* (NSW), particularly section 20 of the latter, which provided for appeals to GREAT. The Court also had to interpret the relevant statutory provisions, including considering the maxim *generalia specialibus non derogant* and the principles of purposive construction under the *Interpretation Act 1987* (NSW).
The Court of Appeal held that the immunity conferred by section 32 of the *Ombudsman Act 1974* was intended to protect the Ombudsman from being compelled to disclose information obtained in the course of investigations, and did not extend to decisions of internal administration. The Court reasoned that the purpose of the immunity was to safeguard the integrity of the Ombudsman's investigative functions, not to shield the Ombudsman from accountability in employment matters. Applying the principle of purposive construction, the Court found that the *Ombudsman Act 1974* did not intend to override the general right of appeal provided by the *Government and Related Employees Appeal Tribunal Act 1980* in relation to employment disputes. The appeal was therefore dismissed.