Sutton v State of South Australia No. Scgrg-97-1726 Judgment No. S6630

[1998] SASC 6630

SUTTON V STATE OF SOUTH AUSTRALIA

This is an appeal against a determination of the Equal Opportunity Tribunal made on 26 November 1997. 

The appeal is brought pursuant to s98 of the Equal Opportunity Act which provides that the appeal to this court shall be ‘conducted as a review’ of the Tribunal’s decision.

I note that in the case of Smith v Saint John Ambulance (1992) 166 LSJS 231 at 232 there is a discussion in the judgment of Cox J as to meaning of the phrase ‘conducted as a review’ as used in s98. I notice that Cox J adopted a view of that section which was propounded by Matheson J and I am grateful to adopt the same approach.

The order under appeal was made by a Tribunal presided over by a Judge of the District Court and, accordingly, the appeal is regulated by the Supreme Court Rule 96.04. 

On 19 March 1998 Bleby J, acting under this rule, determined the subject matter of the appeal to be of such a nature as not to warrant the attention of the Full Court and, as a result, the matter has come before me. 

The appeal is not a rehearing, but a review of the Tribunal’s decision.  In my opinion, it is necessary that the appellant should be required to demonstrate some error in the Tribunal’s decision.

Mrs Sutton complained to the Commissioner of Equal Opportunity as to conduct of the Ombudsman and the complaint was referred to the Tribunal. Mrs Sutton bases her complaint upon s9(1) of the Whistleblowers Protection Act which came into operation on 20 September 1993. Section 9(1) of that Act reads as follows:

"A person who causes detriment to another on the ground, or substantially on the ground, that the other person or a third person has made or intends to make an appropriate disclosure of public interest information commits an act of victimisation."

I might say that various of the words used in that section have been the subject of definition but I need not deal with any of the definitions.  What I am particularly concerned with is the words ‘causes on the ground or substantially on the ground.’

Mrs Sutton alleges that she was victimised by the Ombudsman in his handling of an investigation in relation to a matter involving Mrs Sutton and the Department of Community Welfare, more recently the Department of Family and Community Services. 

Mrs Sutton and her husband in 1987 sought out a child in Chile for the purposes of adoption, but this process was allegedly frustrated by the Department of Community Welfare acting as the delegate for the Minister of Immigration.  The child was removed from the care of Mr and Mrs Sutton in March 1989 and they have not since seen the child, although the matter has remained a bone of contention with Mrs Sutton who considers that the Department did not provide appropriate support for the intended adoption.   The child was adopted by another family in October 1990. 

Mrs Sutton has taken a number of steps to ventilate the issue.  In 1989 Mrs Sutton took the matter up with the Ombudsman, and in 1991 the Ombudsman discontinued his investigation after concluding that there was no basis upon which he could form an opinion that the Department’s actions were unreasonable or wrong or that there was evidence of maladministration. 

In July 1994 Mrs Sutton sought to reopen the matter, but the Ombudsman declined. In May 1995 Mrs Sutton purported to make a ‘disclosure’ to the Ombudsman under the Whistleblowers Protection Act. The Ombudsman treated the subject matter of this disclosure as having already been fully investigated in 1990 and 1991. He intimated that the material then supplied to him did not provide reason to consider reopening the investigation. In his letter dated 26 June 1995 the Ombudsman gave reasons for his decision and stated that no new information of substance was forthcoming. In any event, he had regard to effluxion of time since the events.

The complainant now asserts that she made an ‘appropriate disclosure’ to the Ombudsman in terms of s5(2) of the Whistleblowers Protection Act and that she has been ‘victimised’ in terms of the Ombudsman’s action.

The Ombudsman, in dealing with this matter, did so in accordance with the provisions of the Ombudsman Act 1972. The Tribunal held that there was no act of victimisation within s9 of the Whistleblowers Protection Act. The Tribunal considered that the Ombudsman properly discharged his responsibilities in accordance with the Ombudsman Act and that the terms of s9 had not been satisfied.

The Tribunal canvassed a number of possible arguments but its decision eventually turned, as I see it, on the following statement to be found at p6 of the Tribunal’s reasons:

"We are unable to agree, assuming the Ombudsman did cause the detriment alleged to the complainant, that his action in causing the detriment was on the ground or substantially on the ground of the complainant’s disclosure. On the evidence before us it is clear that the Ombudsman refused to investigate the alleged disclosure, not because it was a disclosure, but because he considered that he had previously investigated it and that no new matters had been raised. This course was open to the Ombudsman under the legislation - the Ombudsman Act 1972. The Ombudsman had no duty to investigate a disclosure made under the Whistleblowers Protection Act. The Ombudsman's action was not motivated by the alleged disclosure of 1995. We found Mr Fuss to be a most helpful and truthful witness, whose evidence supports the documents in this regard, and our conclusion."

And on p7 I note that the Tribunal, under the heading ‘Proper Inquiry by the Ombudsman’ made the following observation:

"We reject the suggestion that the Ombudsman refused to properly investigate Mrs Sutton's complaints against the Department of Community Welfare.  The course the Ombudsman took was open to him in the circumstances and was not unreasonable in the circumstances of the complaint and the co-operative attitude of the Department.  The complainant was given an opportunity to challenge the tentative findings of the Ombudsman, following his investigation." 

In essence, the Tribunal based its decision upon a finding that the Ombudsman's actions in 1995, in terms of the letter dated 26 June 1995, were referable to a view within the office of the Ombudsman that the matters had already been fully investigated. 

The Tribunal has investigated the motives of the Ombudsman and has not been prepared to make a finding of fact which would found an argument for the application of s9 of the Whistleblowers Protection Act. In order to succeed upon this appeal, the appellant faces three hurdles, in essence.

Mrs Sutton must establish:

1. that there was an appropriate disclosure of public interest information;

1. that the Ombudsman had caused detriment to her by his actions consequent upon that disclosure; and

1. that the detriment was caused by him on the ground, or substantially on the ground, that she had made an appropriate disclosure. 

The Tribunal has certainly based its decision on the absence of a relevant ground in terms of s9. There was another basis on which the Tribunal may have acted, as Ms McLean pointed out, but I need not pursue any alternative basis for the decision.

In dealing with evidence as to whether there were grounds within, or whether there was evidence of a ground within s9, the Tribunal accepted the evidence of Mr Fuss as a truthful witness and the Tribunal obviously treated his evidence as providing a foundation for a factual finding.

Against this background, I have enquired from Mrs Sutton as to how she would wish to proceed with her appeal.  I have read the written argument which she has submitted and I have heard the way in which she would wish to call further evidence with the aid of Mr King, whom she wishes to use as her agent for the purposes of the appeal.

I have examined Mr King for the purposes of ascertaining whether there are special circumstances which, in the interests of justice, would militate in favour of him being allowed to conduct the appeal on Mrs Sutton's behalf. See Galladin Pty Ltd v Aimnorth Pty Ltd 60 SASR 145, 146-148 per Perry J.

Having heard how Mr King would wish to proceed and having considered his foreshadowed submission, I have reached the conclusion that I should not permit him to proceed with the conduct of the appeal; and I have enquired from Mrs Sutton as to how she would deal with the matter and I have drawn out from her her arguments. 

There is a finding of fact by the Tribunal standing in the path of the appellant.  In accordance with principle, due regard should be had to the findings of fact by the Tribunal.  The Tribunal has made a finding of credibility as regards Mr Fuss and it has had the advantage of seeing the witness.  The Tribunal does not appear to have failed to use or to have misused that advantage. 

However, Mrs Sutton would seek to challenge Mr Fuss's evidence and she would seek to have him called again to the witness box.  I am not prepared to allow that in the course of a review, bearing in mind the nature of the process which I am undertaking.  I am satisfied that there is nothing which Mrs Sutton is able to advance which would persuade me to interfere with the Tribunal’s finding in the relevant respect.  I would not be disposed to allow further evidence to be called on the appeal. 

In these circumstances, I am satisfied that there is no need to allow Mr King the opportunity to represent Mrs Sutton.  He would not be able usefully to advance Mrs Sutton's interests in such a way as to promote the interests of justice.  I decline to hear Mr King but I am grateful to him for his generosity in volunteering his support for Mrs Sutton and, of course, I have fully heard Mrs Sutton herself on the point which I have identified as being the crucial one.  Having investigated the grounds of appeal, I am of the opinion that Mrs Sutton is unable to displace the essential finding of fact by the Tribunal.  Accordingly, the appeal will be dismissed.