Smeaton v Ombudsman Victoria (General) [2009] VCAT 2771

Proceeding dismissed under Section 75 of the Victorian Civil and Administrative Tribunal Act 1998.

1. Mr Smeaton is aggrieved at the treatment of his wife's WorkCover claims. He has fought his battle through many forums including a number of proceedings in this Tribunal, complaints to the Ombudsman, applications to the Shadow Minister for WorkCover and so on
2. In the course of Mr Smeaton's campaign, as I earlier noted, he took his grievances to the Ombudsman. The Ombudsman carried out an investigation and provided a report to Mr Smeaton which Mr Smeaton disagrees with.
3. In an earlier proceeding in this Tribunal, namely proceeding G637/2008 Mr Smeaton sought an order against the Ombudsman of Victoria under Section 39 of the Freedom of Information Act 1982 for a correction to be made to the report. Section 39 states:

Where a document containing information relating to the personal affairs of a person (including a deceased person) is released to the person who is the subject of that information (or in the case of a deceased person, that person's next-of-kin) that person shall be entitled to request the correction or amendment of any part of that information where it is inaccurate, incomplete, out of date, or where it would give a misleading impression.

1. Elsewhere in the statute the Tribunal is given a power to review a response to a request under Section 39. The Ombudsman has responded to Mr Smeaton's request by a refusal to amend and by making a finding that in the Ombudsman's view the report is not inaccurate, incomplete, out of date or that it would give a misleading impression.
2. In Proceeding G637/2008 at a directions hearing, Deputy President Coghlan ordered on 3 October, 'Application for review is struck out'. She included a note at the foot of the order 'The Tribunal has no jurisdiction to correct and/or update the Ombudsman's report'. Mr Smeaton has now commenced a further proceeding, G916/2009 where he seeks the same relief.
3. Ms Stockley on behalf of the Ombudsman seeks an order under Section 75 of the Victorian Civil and Administrative Tribunal Act 1998 that this proceeding be dismissed on the ground that it is frivolous, vexatious, lacking in substance or otherwise an abuse of process. She contends that Mrs Coghlan's conclusion that the Tribunal lacks jurisdiction to review the Ombudsman's report or order its correction is appropriate. Accordingly in the face of a lack of jurisdiction the appropriate order to make is that the proceeding be dismissed. She says further that the proceeding is vexatious in so far as it seeks to reopen an issue that has already authoritatively been determined in a previous proceeding, namely G637/2008. She relies on Section 29A of the Ombudsman Act 1973 which provides inter alia:

(1) The Freedom of Information Act 1982 does not apply to a document that is in the possession of the Ombudsman or any officer of the Ombudsman, to the extent to which the document discloses information that relates to -

(b) an enquiry under Part IIIA to determine whether an investigation should be conducted; or

(c) an investigation under Part IV; or

(d) a report made under Part IV; or

(e) a recommendation made under Part IV.

1. Ms Stockley contends that the Ombudsman's report falls squarely within this exemption because its release would disclose information that relates to a complaint, it is itself a report made under Part IV and it necessarily would disclose on release of an investigation under Part IV. Mrs Coghlan apparently proceeded on the basis that Section 39 of the Freedom of Information Act was enlivened only where a document had been released to a person seeking correction under the terms of the Freedom of Information Act. Mr Smeaton received his copy of the Ombudsman's report under Section 24 of the Ombudsman Act which provides for the Ombudsman to report if appropriate to a person who has lodged a complaint.
2. Mr Smeaton observes that a number of things have occurred since Mrs Coghlan's determination. First, he says Member Proctor in this Tribunal has made findings under Section 39 of the Freedom of Information Act relative to a document that is reported on by the Ombudsman which are favourable to Mr Smeaton's view and at odds with the determination made by the Ombudsman. Secondly he says he has obtained a copy of the Ombudsman's report from one of the agent insurers under the WorkCover scheme, namely CGU, so to the extent that there is a requirement under Section 39 that the subject document be released under the Freedom of Information Act that requirement has been satisfied and satisfied since Mrs Coghlan made her determination. He says that at every turn he is confronted with the Ombudsman's report and persons such as the Minister for WorkCover have responded to his letters of grievance and complaint by saying that the matters raised have been investigated and reported upon by the Ombudsman and no further action is required. Therefore in his view it is essential in the interests of justice that he have the opportunity to correct the Ombudsman's report which he says now stands condemned on this point by the findings of Member Proctor in this Tribunal.
3. According to Mr Smeaton it is only just that this step can be taken. It may be, a matter upon which I express no opinion, that justice in a broad sense is on Mr Smeaton's side. The question that arises for my determination is not what justice as an abstract concept requires but what are the limits of this Tribunal's jurisdiction. I turn first to the issue whether the determination made by Mrs Coghlan forecloses the continuation of the present proceeding. The order which she made was that the proceeding should be struck out and struck out on the ground of a lack of jurisdiction. So much appears from her order and the note which I have quoted. An order of struck out is not by its nature a final determination. In my decision in Bradd v State Revenue Office [2006] VCAT 867 I collected the authorities which sand for that proposition. Hence leaving to one side issues as to whether the concepts of issue estoppel or res judicata apply to administrative determinations in a List such as this at all, an order of strike out cannot create a res judicata or an issue estoppel. On the other hand however, independently of those doctrines, a party who repeatedly raises the same issue before a Court or Tribunal after it has already been determined may be regarded as engaging in an abuse of process. I refer to the decision of the New South Wales Court of Appeal in Russo v Kogarah City Council [1999] NSWCA 303; (1999) 105 LGERA 290. It will not be the same issue of course if there has been a material change since the determination in question has been made such that the issue is not in truth the same issue as was previously determined.
4. The question is whether that is the case here and I propose to consider that question in the context of a determination of the wider issue as to whether jurisdiction exists relative to correction of Ombudsman's report. A report by the Ombudsman is exempt from the operation of the Freedom of Information Act 1982 by virtue of the provisions of Section 29A of the Ombudsman Act which I quoted above or to quote Section 29A more accurately, the Freedom of Information Act does not apply to it. In my view those words are wide enough to exclude from impingement upon an Ombudsman's report not only the provisions in the Freedom of Information Act relative to the release of documents but also to the provision in Section 49 for corrections to personal information contained in a document. That being the case it seems to me that the precise circumstances in which this report came into Mr Smeaton's possession are neither her nor there. Accordingly, his receipt of a copy of the report from CGU makes no difference and in no way undermines the determination that Mrs Coghlan made that inviting the Tribunal to correct the Ombudsman's report is inviting it to exceed its jurisdiction. Moreover since the issue is one of jurisdiction and not merit, the fact that an event which in a broad sense improves the merits of Mr Smeaton's contention that the Ombudsman's report is wrong, namely the findings of Member Proctor cannot be a material consideration. It seems to me in a broad sense that Section 29A is part of a wider principle and that wider principle is that Ombudsman in making his reports is the ultimate judge of what is right. If the Ombudsman makes a legal error he may be subject to judicial review by the Supreme Court; but there is nothing in any statute that gives this Tribunal a role of reviewing the Ombudsman's reports and the Ombudsman's investigations. It would be quite wrong I think to use or attempt to use Section 39 of the Freedom of Information Act to clothe this Tribunal with jurisdiction which it plainly does not have.
5. Accordingly I propose making the order sought by the respondent which is that the proceeding be dismissed under Section 75 of the Victorian Civil and Administrative Tribunal Act 1998.