Decision on standing
17 The first question we consider is what is the duty of the Ombudsman, an order to fulfil which is sought by Mr McGuirk under s 65 of the Supreme Court Act.
18 There is no duty under the Ombudsman Act on the Ombudsman to undertake any investigation or to complete any investigation that has been undertaken: s 13(3). However, it is arguable that, once the Ombudsman has commenced an investigation, he or she should not discontinue the investigation without making a decision to do so. In relation to an investigation into police conduct, the Ombudsman must have regard to the public interest in deciding whether to discontinue it (s 13(4A)); while in relation to other investigations, the Ombudsman may have regard to such matters as he or she thinks fit (s 13(4)(a)). It could be argued that some reasons for discontinuing would be so foreign to the role of the Ombudsman that discontinuing for those reasons would be to act in bad faith within s 35A; and that in substance is what Mr McGuirk wishes to argue in this case.
19 It is also arguable that where an investigation has proceeded to the stage where the Ombudsman has actually found that conduct is of a kind described in s 26(1), then the Ombudsman has a duty to make and issue a report. In this case, such a finding may possibly have been made; but any such finding was subject to challenge in the earlier Supreme Court proceedings as being vitiated by denial of procedural fairness and apprehension of bias. If it were now shown in these proceedings that such a finding had been made, and if it were sought to compel the Ombudsman to make and issue a report on that basis, it would be necessary to notify the plaintiff in the earlier proceedings of this, and this person would presumably be entitled to raise the same objections of denial of procedural fairness and apprehension of bias. (It is extremely unlikely that the terms of settlement of the earlier proceedings could preclude this.)
20 Thus, possibly relevant duties under s 65 of the Supreme Court Act are a duty not to act in bad faith in discontinuing an investigation, and a duty to make a report once an adverse finding has actually been made. The question then is, is Mr McGuirk "personally interested" in the Ombudsman's fulfilment of either of those duties.
21 In our opinion, that question does depend on the principles discussed in Australian Conservation Foundation v The Commonwealth and Onus v Alcoa; and that in turn raises the question whether Mr McGuirk has an interest in the fulfilment of that duty beyond that of other members of the public. In our opinion, that depends on whether he is affected by fulfilment or non-fulfilment of that duty "in comparison with the public at large … to a substantially greater degree or in a significantly different manner": Australian Conservation Foundation v the Commonwealth at [188] per Brennan J. This affectation need not be financial, but must be more than "an emotional or purely intellectual interest": Australian Conservation Foundation v The Commonwealth at [182] per Gibbs J.
22 The factors relied on by Mr McGuirk set out in par [8] above, particularly the factors numbered (1) to (3), and also the proceedings referred to in par [10] above (which it would seem were in contemplation at the time of the proceedings before the primary judge), could possibly, considered in isolation, be regarded as giving him an interest beyond that of the public in general. The question then is whether he is affected in a way which is substantial or significant, having regard to the features of the Ombudsman Act pointed out by Mr Stern and the other considerations we have referred to.
23 It is true that, if the Ombudsman completed and issued the report, if the report contained material useful to Mr McGuirk in his dispute with the University of New South Wales, and if this report was made available to him, he could be assisted in his dispute with the University of New South Wales and in vindicating his reputation.
24 However, the Ombudsman has no obligation to complete the investigation and make a report (at most there is an obligation not to act in bad faith in terminating an investigation), at least unless the Ombudsman has already made a finding within s 26(1), in which case questions of denial of procedural fairness and apprehension of bias could again be raised by the plaintiff in the previous Supreme Court proceedings; and Mr McGuirk has no entitlement to receive a copy of any report or any information from the Ombudsman. His interest is limited to the possibility that (1a) the Ombudsman chooses to complete and issue a report, or else (1b) the Ombudsman is obliged to do so under s 26 and objections of denial of procedural fairness and apprehension of bias are overcome; and (2a) the Ombudsman issues the report to a person within s 26(3) who in turn chooses to act so as to make a copy available to Mr McGuirk, or is compelled to do so pursuant to the Freedom of Information Act 1989 or (2b) the Ombudsman chooses to issue a copy of a report to a person within s 26(4) who chooses to act so as to make a copy available to Mr McGuirk.
25 In our opinion, even if it were shown the Ombudsman had acted in bad faith in terminating the investigation or in not issuing a report following an adverse finding, it is at best speculative as to whether the Ombudsman would then choose to make a report or be compelled to do so over objections of denial of procedural fairness and apprehension of bias. Having regard to this and to the lack of any right in Mr McGuirk to receive any information from the Ombudsman or to receive any report (if one were completed), in our opinion, despite the factors referred to in pars [8] and [10] above, the interest of Mr McGuirk beyond that of the public in general is insufficiently significant and/or substantial to make him "personally interested" within s 65. In our opinion, it is not reasonably open to contend that his interest is sufficient to confer standing.