McGuirk v NSW Ombudsman

Ombudsman Act 1974 (NSW) LEGISLATION CITED : Protected Disclosures Act 1994 (NSW) Supreme Court Act 1971 (NSW)

AIMPE v Secretary, Department of Transport (1986) 13 FCR 124 Australian Conservation Foundation v Commonwealth (1980) 146 CLR 493 Cameron v HREOC (1993) 46 FCR 509 Coco v The Queen (1994) 179 CLR 427 ECAJ v Scully (1998) 79 FCR 537 CASES CITED : Electrolux v AWU (2004) 221 CLR 309 Onus v Alcoa (1981) 149 CLR 27 P.S.A v F.C.U (1991) 173 CLR 132 Project Blue Sky v ABA (1998) 194 CLR 355 Saraswati v R (1991) 172 CLR 1 Tooheys Ltd v Minster for Business and Consumer Affairs (1981) 54 FLR 421

PARTIES : Plaintiff: Gerard Michael McGUIRK Defendant: NSW OMBUDSMAN

COUNSEL : Plaintiff: Self represented Defendant: P.R. Garling SC

SOLICITORS : Plaintiff: Self represented Defendant: M. Adofaci (NSW Ombudsman)

IN THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION ADMINISTRATIVE LAW LIST

JUDGMENT 1 HIS HONOUR: Gerard McGuirk filed a summons on 4 January 2007 seeking relief against the NSW Ombudsman. The relief Mr McGuirk sought was an order of the Court in the nature of mandamus requiring the Ombudsman to report into allegations relating to certain current and former officers of the University of New South Wales. The Ombudsman had terminated the investigation into these reports on 7 December 2006. 2 The Ombudsman moves the Court (notice of which was filed on 7 February 2007) for orders dismissing the proceedings. After some initial skirmishes the matter was listed for hearing on 2 July 2007 and thereafter by some further written submissions and affidavits, because Mr McGuirk was unaware, despite some notice earlier given, that at least one major issue in the proceedings was his standing to bring the proceedings, to be dealt with on a preliminary basis together with his application for leave. One such notice of that issue was a facsimile from the Court of 5 July 2007. The matter was listed on two further occasions. The Complaints to the Ombudsman 3 Mr McGuirk's complaints relate to a failure of the Ombudsman to report on certain allegations relating to the alleged maladministration and corrupt conduct at the University of New South Wales. Mr McGuirk, having worked for a significant period of time in the private sector, commenced employment with the University in February 1998. 4 Mr McGuirk raised issues of maladministration with the Director of Internal Audit at the University on 30 May 2001. Mr McGuirk then raised these issues with the Vice-Chancellor and the Chancellor on 3 December 2001, and, because he did not receive a response, with the members of the University Council on 18 December 2001. Further complaints were made to various officers of the University in the following period from 2002 to at least 2003. 5 After 2003, Mr McGuirk made complaint to various members of State Parliament including the Chair of the Committee on the Office of the Ombudsman and Police Integrity Commission. These complaints were made during 2004, 2005 and 2006. Mostly the focus of the complaints was the delay in the report of the Ombudsman into certain complaints. Mr McGuirk describes it in the following terms (paragraph 47 of his affidavit of 22 June 2007): "I have monitored the conduct by the NSW Ombudsman of his investigation of complaints made in regard to the UNSW for almost five years. During that time I have gathered many thousands of pages of documents related to this investigation, other incidences (sic) of financial mismanagement at the UNSW and at other Australian Universities." 6 It is necessary to detail the complaints to the Ombudsman in issue in these proceedings. The first relevant complaint to the Ombudsman was in December 2000. It was lodged by a staff member, other than Mr McGuirk, and related to allegations of maladministration. The staff member was not, on the evidence, acting on behalf of Mr McGuirk. Nor did the complaint relate to Mr McGuirk, his position at the University, or the University's treatment of Mr McGuirk. The complaint did not affect Mr McGuirk in any direct or indirect manner. 7 The Ombudsman reported on this complaint in February 2002 and found that two officers of the University were involved in wrongdoing. The report, like the complaint that gave rise to it, did not relate to Mr McGuirk. He was not one of the officers said to have been involved in any wrongdoing, nor were there any findings adverse to Mr McGuirk, that related to his conduct or that, on their face, affected him in any way. 8 The second set of relevant complaints were lodged in 2002. In May and June 2002 a staff member, again not Mr McGuirk, filed four complaints alleging that the University had mishandled internal complaints about staff members, which internal complaints had been made by other staff. 9 Two further complaints were made about the same general subject matter, namely, the handling of internal staff complaints by the University and the treatment by the University of the complaints and complainants. These two further complaints were lodged with the Ombudsman in August 2003. Once more the complainant to the Ombudsman was not Mr McGuirk. 10 Further, as with the first complaint, none of the six that comprise the second set of relevant complaints involve or relate to Mr McGuirk. He is not the complainant; he is not adversely affected by the complaint; his conduct is not impugned; he neither benefits nor suffers as a direct result of the conduct about which complaint is made, nor as a result of its correction or reversal by the Ombudsman or the University. 11 In relation to the second set of complaints, no report has issued from the Ombudsman, it is the issue of that report that Mr McGuirk seeks to have this Court require by an order in the nature of mandamus. 12 Further to the above, Mr McGuirk, on 26 March 2002, rang the Ombudsman to discuss his situation with the University. His employment with the University had been terminated by the University effective from 31 March 2002. The discussion with the Ombudsman's Office centred on the allegations of maladministration by Mr McGuirk and whether such allegations fell within the Protected Disclosures Act 1994 (NSW). Mr McGuirk wrote, following that discussion, to the then Vice-Chancellor of the University. The letter is dated 28 March 2002. 13 On 14 May 2002 Mr McGuirk lodged a formal complaint to the Ombudsman alleging that he (Mr McGuirk) had been the subject of detrimental action following the making of protected disclosures (i.e. victimisation). I shall refer to this as the Victimisation Complaint. 14 The allegation of maladministration by Mr McGuirk was, in essence, an objection to the transfer by the University, of the Master of Business and Technology Program (MBT) from the Faculty of Engineering to the Faculty of Commerce and Economics, and "the integrity of the decision-making process". Closure of File 15 On 15 November 2002, the Ombudsman's Office wrote to Mr McGuirk notifying that his file was closed. Although written in an indirect style, the letter informed Mr McGuirk "formally" that the investigation officer was "closing your file". It referred to a previous meeting with Mr McGuirk and a meeting with the Vice-Chancellor, and stated that the Ombudsman's Office "has decided that in view of our efforts in two related UNSW cases we currently have on foot, our resources would be best concentrated in those cases rather than in pursuing your complaint as a separate case". 16 Mr McGuirk did not seek to review the decision to close the file opened as a result of his complaint; the effect of which was to terminate any inquiry or investigation in relation thereto. 17 As earlier stated, Mr McGuirk continued to write to the Ombudsman and provides the Ombudsman with details of the action Mr McGuirk was taking in relation to the University. The Ombudsman's Office, more fully than previously, explained the reasons for terminating his complaint file. In the letter dated 9 September 2003, the Ombudsman's Office explained its jurisdiction and policy to Mr McGuirk. It explained to Mr McGuirk that its jurisdictional limits did not allow it to investigate or to report on matters relating to the appointment or employment of a person or affecting a person on account of his/her position as an officer or employee. 18 Further, the Ombudsman's Office explained, as to the transfer of the MBT Program from the Faculty of Engineering to Commerce/Economics, that the Ombudsman's Office did not involve itself in the exercise of a discretion that was reasonably open to it. 19 Mr McGuirk continued to write to the Ombudsman's Office. On gaining no satisfaction he wrote to the Chair of the Parliamentary Committee on the Office of the Ombudsman and the Police Integrity Commission. He also agitated with them the finalisation of the complaints by others, as he did with the Ombudsman. Further, Mr McGuirk wrote to members of the NSW Parliament seeking to agitate the issue of the report into the relevant complaints. Questions were asked in Parliament on these issues, presumably at the behest of Mr McGuirk. Legislative Scheme 20 The Office of Ombudsman is established under section 6 of the Ombudsman Act 1974 (NSW). Other officers are created to assist the Ombudsman in performing functions. Each of those officers are appointed by the Ombudsman. Section 12 of the Act allows any person to complain to the Ombudsman about the conduct of a public authority. 21 An investigation is entitled to be undertaken when it appears to the Ombudsman, on complaint or otherwise, that corrupt, unreasonable or invalid acts have occurred: see section 13(1) and section 26 of the Act. The Ombudsman is entitled to discontinue an investigation: section 13(3) of the Act. The precise terms of section 26 of the Act, about which the Ombudsman must be satisfied before the jurisdiction to investigate under section 12 is enlivened, are not presently relevant. 22 If the Ombudsman were to find, in an investigation, that the conduct is of the kind referred to in section 26 of the Act, the Ombudsman is to report accordingly, giving reasons. The report is given to the responsible Minister (section 26(3)(a) of the Act); the head of the public authority whose conduct was investigated (section 26(3)(b) of the Act); in the case of the public service, to the Premier (section 26(3)(c) of the Act); and, where the investigation arises out of a complaint, the Ombudsman may give a copy to the complainant (section 26(4) of the Act). It follows that the Ombudsman may elect not to provide a copy to the complainant. 23 Where the Ombudsman investigates a complaint, under section 12 of the Act, the Ombudsman may give progress reports to the complainant and must give a final report to said complainant: see section 29(1)(a) and (b) of the Act. 24 Lastly it is relevant, in examining the legislative scheme governing the functioning of the Ombudsman, to note that investigations by the Ombudsman are not public investigations and are required to be made in the absence of the public: section 17 of the Act. The Jurisdiction of the Court 25 As earlier stated, Mr McGuirk moves the Court for prerogative relief. The Ombudsman moves the Court for summary dismissal. 26 The provisions of section 35A of the Ombudsman Act grants to the Ombudsman an immunity from suit or prosecution and provides that the Ombudsman "shall not … be liable, whether on the ground of want of jurisdiction or on any other ground, to any civil or criminal proceedings" in respect of acts performed in that capacity unless performed "in bad faith". 27 The terms of section 35A of the Ombudsman Act should be repeated: "(1) The Ombudsman shall not, nor shall an officer of the Ombudsman, be liable, whether on the ground of want of jurisdiction or on any other ground, to any civil or criminal proceedings in respect of any act, matter or thing done or omitted to be done for the purpose of executing this or any other Act unless the act, matter or thing was done, or omitted to be done, in bad faith. (2) Civil or criminal proceedings in respect of any act or omission referred to in subsection (1) shall not be brought against the Ombudsman or an officer of the Ombudsman without the leave of the Supreme Court. (3) The Supreme Court shall not grant leave under subsection (2) unless it is satisfied that there is substantial ground for the contention that the person to be proceeded against has acted, or omitted to act, in bad faith." 28 The legislature, in enacting section 35A of the Act, has promulgated a privative clause of some width. While leave is capable of being obtained from the Supreme Court, such leave may be granted only if the Court is satisfied that there is a "substantial ground for the contention" of bad faith. Sub-section (3) of section 35A of the Act supports the construction that leave is required under section 35A(2) for proceedings alleging bad faith and that, otherwise, no proceedings of the kind may be commenced, nor may leave be granted in relation to them. 29 The courts generally read privative clauses very strictly and in a way that narrows the restrictions on the jurisdiction of the courts. This is an example of the approach taken to any diminution of fundamental rights: see Coco v The Queen (1994) 179 CLR 427; Electrolux v AWU (2004) 221 CLR 309. 30 On one view the privative clause restricts only those cases where the Ombudsman is acting outside the permitted area: "Judicial review on the ground of excess or want of jurisdiction is available when a body purportedly acting in exercise of jurisdiction has no jurisdiction to act in the particular way. Judicial review on that ground stands in contrast with judicial review on the ground of a wrongful failure or refusal to exercise jurisdiction. In the former case, there is no jurisdiction to exercise; in the latter, there is jurisdiction but no exercise of it." ( P.S.A v F.C.U (1991) 173 CLR 132 at 142, per Brennan J). The joint judgment of Dawson and Gaudron JJ made the point succinctly:

"A failure to exercise jurisdiction is a jurisdictional error, although, prima facie, it is not an error involving an excess of or want of jurisdiction." ( P.S.A v F.C.U , supra, at 160). Likewise the minority were of the same view as to the general position: see Deane J at 148 and McHugh J at 164. 31 If one then applied to the privative clause (section 35A) the aid to construction that the words "or any other ground" should be understood by their association with "want of jurisdiction", the words then take on the meaning "however framed" or have that effect. Such an approach would restrict the privative clause to prohibition but not other relief. Such a result would be odd, to say the least. It would have the effect that an error of law could be challenged and the decision quashed (section 69 of the Supreme Court Act 1971 (NSW)) and that you could require action to be taken; but you could not prohibit action from being taken. The difficulty with such an approach is that almost any action in excess of jurisdiction such as to warrant prohibition would involve an error of law warranting certiorari as a result of which mandamus would issue. Thus, if "restricted" in the way suggested, no restriction would, in law, eventuate except as to the form of the remedy. 32 Further, if the provision were so restricted, the Ombudsman would be liable in damages for various causes of action. No other immunity exists under the Act for the conduct of the Ombudsman. 33 It seems, therefore, that the better approach is to construe the section so that there is an immunity from being "liable … to any civil or criminal proceedings" and the words "whether on the ground of want of jurisdiction or on any other ground" should be given their ordinary wide meaning. This accords, in my view, with a consistent approach to the intention and purpose of the legislature: Project Blue Sky v ABA (1998) 194 CLR 355. Further, it accords with the traditional approach that prohibition (an order prohibiting action in want of jurisdiction) is the least likely to be excluded and shows that the legislature intended every ground of challenge (except bad faith) to be unavailable. 34 Such an approach requires that challenges be confined to an allegation of bad faith and that such an allegation may not be brought without leave of the Court. 35 Another reason why the legislature was least likely to exclude prohibition alone is the enactment of section 35B of the Act. That is a specific provision allowing proceedings in circumstances where a question arises as to the jurisdiction of the Ombudsman to conduct an investigation. Standing: The Issue 36 According to Mr McGuirk, the Ombudsman discontinued the inquiry into the relevant complaints on 7 December 2006 and wrote to each of complainants on that date informing them of the decision and the reasons for it. Mr McGuirk extracts some of those reasons in his affidavit of 22 June 2007 at paragraph 78 and attaches as Annexure U one such letter. The letter addresses a number of matters of history, the preliminary recommendations of the Ombudsman and the actions taken by the University in implementing those recommendations. It notes the significant alteration to the personnel at senior management and above at the University. The Ombudsman notes in the letter: "It is our standard practice in circumstances where the objectives of an investigation are met and it appears to us the agency involved has taken real steps to satisfy the recommendations of this Office and to remedy the matters that led to the complaints, to consider carefully whether there is any further benefit or purpose in continuing the investigation. In light of the matters outlined above and the fact that I would be precluded from finalising any report for an undetermined period of time (possible up to one year) I have, after careful consideration, decided to discontinue the investigation into your complaint. Given the change of personnel at the university, the introduction of new improved complaint handling procedures and substantial compliance with my proposed recommendations I am satisfied that the investigation has led to significant and positive outcomes." 37 No complainant has sought to challenge the discontinuance of the investigation. Nor has the University. Mr McGuirk does; but does he have a right to do so? 38 The answer to the foregoing question depends upon the provisions of the Act and the common law rules relating to a party's standing to institute proceedings seeking judicial review. 39 Mr McGuirk submits that, in essence, the challenged discontinuance is in relation to complaints against officers of the University for their treatment of "whistleblowers" and the complaints procedure of the University. 40 These same officers (and University), he alleges, took detrimental action against Mr McGuirk, also in a "whistleblower" context, and therefore he has an interest beyond the general public. Mr McGuirk says that the failure to report (or conclude the investigation) "greatly diminishes his ability to re-establish his personal and professional standing in the higher education sector, and to re-establish his career more generally". 41 This is very similar to "tendency reasoning". It follows this path: Mr McGuirk has a complaint about his treatment by the University after making a complaint to the Ombudsman; others have the same general complaint type; if the other complaints were investigated fully and subject to report (presumably establishing, not dismissing, those complaints), then the officers (and University) would be shown to have acted, in other circumstances, consistently with the kind of conduct that Mr McGuirk alleges, and Mr McGuirk can then justify to future employers (or potential employers) and colleagues his complaint and treatment. 42 Further, Mr McGuirk submits that the Ombudsman's failure "to reveal the truth … greatly undermines the position of [Mr McGuirk] in regard to any current or future negotiations and/or legal action involving himself and the University of New South Wales." Standing: The Principles 43 Were these proceedings being pursued under section 35B of the Act (the provision allowing a question as to the jurisdiction to investigate to be pursued in this Court), then there is a specific provision on the standing to take the proceedings. The Act allows such a proceeding to be pursued by the Ombudsman, or any interested party. The Act (section 35B(3)) provides: "35B(3) For the purposes of subsection (1), the following persons are interested parties: (a) the public authority the conduct of which is the subject of the investigation or proposed investigation, (b) the head of that public authority, (c) if the investigation arises from the making of a complaint under section 12 (1), the complainant." 44 Unless one takes the view that these specific provisions negate any general capacity to be a person interested (see Saraswati v R (1991) 172 CLR 1), these provisions do not exclude others but merely include certain designated persons or bodies. One example will suffice. Can it be suggested that, in circumstances where a particular officer or employee of a public authority is subject to complaint (some form of corruption, say), that the object of the complaint (and, almost by definition, the person most likely to be affected by any investigation or report) would not be a person interested within section 35B of the Act. I think not. The terms of section 35(3) of the Act are inclusive and declaratory, not exclusive and limiting. 45 Even for the purposes of section 35B of the Act, it is any "interested person" within the well-understood meaning of that term that may apply to the Court. 46 The general rule is that a member of the public, without any greater interest, may not enforce a public duty or restrain the exercise of executive power: Australian Conservation Foundation v Commonwealth (1980) 146 CLR 493 at 526.

"It is quite clear that an ordinary member of the public, who has no interest other than that which any member of the public has in upholding the law, has no standing to sue to prevent the violation of a public right or to enforce the performance of a public duty. There is no difference, in this respect, between the making of a declaration and the grant of an injunction. The assertion of public rights and the prevention of public wrongs by means of those remedies is the responsibility of the Attorney-General, who may proceed either ex officio or on the relation of a private individual. A private citizen who has no special interest is incapable of bringing proceedings for that purpose, unless, of course, he is permitted by statute to do so." ( Australian Conservation Foundation , supra, 146 CLR at 526)

"Depending on the nature of the relief which he seeks, a plaintiff will in general have a locus standi when he can show actual or apprehended injury or damage to his property or proprietary rights, to his business or economic interests (as to which see New South Wales Fish Authority v. Phillips and perhaps to his social or political interests. ( Australian Conservation Foundation , supra, 146 CLR at 547) "In this difficult field there is one proposition which may be stated with certainty. It is that a mere belief or concern, however genuine, does not in itself constitute a sufficient locus standi in a case of the kind now under consideration. I entirely agree with Gibbs J. when he says that 'A belief, however strongly felt, that the law generally, or a particular law, should be observed, or that conduct of a particular kind should be prevented, does not suffice to give its possessor locus standi'." ( Australian Conservation Foundation , supra, 146 CLR at 548) 47 The approach of the High Court in Australian Conservation Foundation was confirmed in Onus v Alcoa (1981) 149 CLR 27. Gibbs CJ there said: "Moreover, ideal rules as to standing would not fail to take account of the fact that it is desirable, in an adversary system, that the courts should decide only a real controversy between parties each of whom has a direct stake in the outcome of the proceedings. The principle which has been settled by the courts does attempt a reconciliation between these considerations. That principle was recently stated in Australian Conservation Foundation Inc. v. The Commonwealth . A plaintiff has no standing to bring an action to prevent the violation of a public right if he has no interest in the subject matter beyond that of any other member of the public; if no private right of his is interfered with he has standing to sue only if he has a special interest in the subject matter of the action." ( Onus , at 35-36) 48 In order to have standing, Mr McGuirk must show that if he were successful in the action in this Court, the orders would confer upon him some benefit or advantage greater than the public or that it would relieve him of a detriment or disadvantage in a manner greater than the general public: Onus, supra, at 75-76 per Brennan J. 49 In this case, if Mr McGuirk were successful then orders would be made requiring the Ombudsman to complete an investigation and report on matters of which Mr McGuirk did not complain, in which he is not mentioned, and which will not affect him. It may affect persons with whom he had another dispute. 50 The test for relevant interest is objective, not subjective. A person does not become interested merely because she/he feels aggrieved: Cameron v HREOC (1993) 46 FCR 509 per Beaumont and Foster JJ. Mr McGuirk must show a grievance suffered beyond the general public: Tooheys Ltd v Minster for Business and Consumer Affairs (1981) 54 FLR 421. 51 That is not to say that "interest" cannot be representative or derivative: see Cameron, supra, at 519, per French J; AIMPE v Secretary, Department of Transport (1986) 13 FCR 124 (per Gummow J); ECAJ v Scully (1998) 79 FCR 537 (per Wilcox J); but it cannot be solely emotional. 52 The principles that govern standing to take proceedings do not allow for the circumstance that the writing of letters because of concern creates an interest. For my own part, were it relevant, I would take the view that a person required to be heard or consulted was a person with sufficient interest (see Australian Conservation Foundation, per Murphy J at 556, in dissent), but that would not include Mr McGuirk: see section 24 of the Act. The Ombudsman has no requirement (nor discretion) even to provide Mr McGuirk with a copy of the report: see section 26(3) and (4) of the Act; and section 34 of the Act, which creates a criminal offence for the Ombudsman to disclose any information obtained except in certain restricted situations. Conclusion 53 Mr McGuirk does not have standing to bring these proceedings. However genuine is his concern and "interest", it is not an interest sufficient in law to allow these proceedings to continue. 54 The issues of his treatment as a "whistleblower" were matters raised in his complaint, which was discontinued on 15 November 2002. It was that investigation and/or complaint in which Mr McGuirk had a relevant interest, but he did not pursue it. 55 If I be wrong in that view, I take the view that mandamus is not available because of the provisions of section 35A of the Act. The Ombudsman is not exercising judicial power and no occasion arises for consideration of the effect, if any, of the provisions of section 73 of the Constitution on the operation of a privative clause. 56 In these proceedings, even if mandamus were available, it would not, on the basis of that presented, be granted. There is an express power or jurisdiction to discontinue an investigation: section 13(3) of the Act. Unless, it can be shown, at least at this stage arguably, that section 13(3) does not apply, or that the decision to discontinue was vitiated by the circumstances of its exercise, no order for mandamus would issue because there would subsist no duty to perform. 57 If the proceedings were dependent on leave being granted pursuant to section 35A(2), I would refuse leave because I am not satisfied that there is a substantial ground for any contention that the Ombudsman has acted (in discontinuing the investigation), or omitted to act (in not reporting), in bad faith. 58 Mr McGuirk has insufficient interest, and insufficient prospects of success, to be granted leave, if the Court is capable of going beyond section 35A of the Act. He has no interest recognised by the law: "But a mere 'interest in a problem,' no matter how longstanding the interest and no matter how qualified the organization is in evaluating the problem, is not sufficient by itself to render the organization 'adversely affected' or 'aggrieved' within the meaning of the APA. ... But if a 'special interest' in this subject were enough to entitle the Sierra Club to commence this litigation, there would appear to be no objective basis upon which to disallow a suit by any other bona fide 'special interest' organization, however small or short-lived. And if any group with a bona fide `special interest' could initiate such litigation, it is difficult to perceive why any individual citizen with the same bona fide special interest would not also be entitled to do so. The requirement that a party seeking review must allege facts showing that he is himself adversely affected does not insulate executive action from judicial review, nor does it prevent any public interests from being protected through the judicial process. It does serve as at least a rough attempt to put the decision as to whether review will be sought in the hands of those who have a direct stake in the outcome." ( Sierra Club v Morton (1972) 405 U.S. 727 at 739-740, cited with approval by Mason J in Australian Conservation Foundation at 548-549) 59 I make the following orders:

(ii) To the extent necessary, leave to commence or continue these proceedings against NSW Ombudsman be refused;

(iii) The plaintiff shall pay the costs of the defendant of and incidental to these proceedings, as agreed or assessed.

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