Keeping It Out of Court
First resort: reconsideration
Reconsideration is where a different decision-maker within the original decision-making body considers your application afresh. Reconsideration is an internal process and does not require appeal to outside body, but only to the original decision-making body.
Internal review, or reconsideration, is simply a second exercise of the decision making power of a person within the organisation that was responsible for the original decision. An example of this would be a university student applying for a reconsideration of the marks they received on an exam or essay. This sort of internal review should be sought by asking for information from the contact point of that organisation. If you are denied a right to a reconsideration, contact the Ombudsman. You must seek reconsideration before contacting the Ombudsman or attempting to initiate judical or merits review.
Taking a complaint to the Ombudsman is the quickst and cheapest way to seek resolution to your situation. The Ombudsman is an impartial arm of government intended to ensure that administrative powers are carried out fairly, justly and according to law. Unlike other means of appeal, such as to a review tribunal, the Magistrates Court or even the Supreme Court, the Ombudsman does not cost the complainant any money. All other avenues of appeal are expensive and time consuming. Before making a decision to appeal to a court or tribunal, consider contacting the Office of the Ombudsman, either at state or federal level, depending on the body which made the decision you are appealing, to gain an understanding of whether you have any likelihood of success at a higher level.
An ombudsman review is concerned with the fairness and reasonableness of the decision. While an Ombudsman has wide investigative powers, the possible outcomes are limited as the Ombudsman can only make recommendations to correct the government practices that may have contributed to an incorrectly made decision, or to the treatment of an individual in the decision-making process. A decision maker or decision making body does not have to follow those recommendations for improvement, although these recommendations often are followed. The only avenue of appeal from an Ombudsman’s decision is to the Supreme Court, and that is only with the consent of the Supreme Court. This is a procedural limitation. An Ombudsman investigation can take longer than the 28 day window of time in which an appeal can come before the Magistrates Court Appeal Division. This Court has no discretion to extend that time. It is a strict time period.
The Supreme Court has a discretion to allow an appeal and to extend the time period in which a complaint may be brought. However, an appeal from the Ombudsman to the Supreme Court is unlikely to succeed, unless the Office of the Ombudsman has no jurisdiction to investigate the complaint. In all other situations the Ombudsman will only refuse to investigate complaints over which it has jurisdiction if:
- that the matter raised in the complaint is trivial;
- that the complaint is frivolous or vexatious or is not made in good faith;
- that the aggrieved person does not have a sufficient interest in the matter raised in the com plaint; or
- that, having regard to all the circumstances of the case, the investigation, or the continuance of the investigation, of the matter raised in the complaint is unnecessary or unjustifiable. (s21, Ombudsman Act 1978)
If the Ombudsman has made this decision, it is unlikely that an appeal to the Supreme Court would extend the 28 day limitation period, or if an appeal is allowed that it will incur much beyond expense for the complainant, if th Ombudsman has determined the matter to be trivial, frivolous or vexatious.