Fitzwarryn v Commonwealth Ombudsman

[2020] FCCA 1696

FEDERAL CIRCUIT COURT OF AUSTRALIA

FITZWARRYN v COMMONWEALTH OMBUDSMAN [2020] FCCA 1696

Catchwords:
ADMINISTRATIVE LAW – Complaint against processes of the Commonwealth Ombudsman – applicant claiming to seek relief on behalf of third party – re-classification of boat – whether “administrative decision” – whether “person aggrieved – whether grounds for judicial review –  decision made under an enactment – whether complaint related to a decision of substantive character – applicant seeking review of merits rather than error of law - lack of evidence – failure to identify ground(s) of review – application dismissed.

Legislation:

Administrative Decisions (Judicial Review) Act 1977 (Cth), ss.3, 5, 11, 13.

Cases cited:

Argos Pty Ltd v Corbell, Minister for the Environment and Sustainable Development (2014) 254 CLR 394

Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321

Griffith University v Tang (2005) 221 CLR 99

Applicant: PAUL FITZWARRYN

Respondent: COMMONWEALTH OMBUDSMAN

File Number: CAG 44 of 2019

Judgment of: Judge WJ Neville

Hearing date: 11 March 2020

Date of Last Submission: 29 May 2020

Delivered at: Canberra

Delivered on: 7 July 2020

REPRESENTATION

Solicitors for the Applicant:	Self-represented
Solicitors for the Respondent:	Australian Government Solicitor

ORDERS

1. The Application as amended on 5^th March 2020 be dismissed.

2. Absent any application within 14 days of the date of these Orders, being by 21 July 2020, there will be no Order as to Costs.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT Canberra

CAG 44 of 2019

Paul Fitzwarryn

Applicant

And

Commonwealth Ombudsman

Respondent

REASONS FOR JUDGMENT

Introduction

1. This matter concerns an Application under the Administrative Decisions (Judicial Review) Act 1977 (Cth) (“the Act”). There is a nautical background to the proceeding because the issues in dispute, certainly from the Applicant’s perspective, arise primarily from the re-classification of a boat, the Alcheringa.  The Applicant crewed for some time on this boat and based on the significant verve and passion he brought to the matter, is a close friend of its owner, Mr Brown.

2. The Alcheringa was built in 1968.  She was a “family cruising motor sailer”.  The boat was later “individually modified” whereby her rating was substantially increased and declared by the Applicant, for the purposes of sailing in the 2010 Winter Series with Canberra Yacht Club, as a “class compliant” “Hartley 18’¾ rigged boat.” 

3. A dispute ensued between various yacht clubs regarding the relevant “rating” for this boat.  Although of obvious importance to the Applicant, for the purposes of the current Application, I need not canvass the detail of that dispute.  The focus must be elsewhere, namely on the various processes, primarily in the Office of the Commonwealth Ombudsman, about which the Applicant complains.  Unfortunately, it was not always clear (a) what the precise contours and parameters of the Applicant’s complaint were, (b) precisely to whom, or about what “process”, he railed against, and (c) what relief he sought (or might be appropriate) given the disparate nature of the grievances he outlined in his material.

4. The Applicant clearly and volubly feels morally aggrieved because of what he contends have been slights of one kind or another visited upon him, and or his friend, Mr Brown, the owner of Alcheringa.  Regrettably, there are many legal impediments to him succeeding in his Application. Perhaps the most obvious and immediate, among many legal hurdles noted in these reasons, is the significant obstacle of whether he satisfies the definition of being a person relevantly “aggrieved” under s.3(4) of the Act.

5. Broadly speaking, although the issue, as described by the Applicant, relates to a decision regarding the re-classification of the Alcheringa in 2010, it is intertwined with a complaint he lodged with the Commonwealth Ombudsman in 2014.  The complaint related to what the Applicant contends was improper conduct by Sport Australia (formerly the Australian Sports Commission) in (a) the alleged failure to ensure compliance with funding obligations by grant recipients (such as Yachting Australia), and (b) the alleged inaccurate reporting on same, including compliance with its Member Protection Policy (“MPP”).  The Applicant contended that Sport Australia (“SA”) provided a “false, misleading and incorrect response” to the [then] Sports Minister in February 2013 as to whether Yachting Australia (“YA”) had complied with its obligation when it re-classified Alcheringa as individually modified.  At the time, the boat held a valid Class A Certificate of “full class rule compliance.”

6. The Applicant further contended that he would not have sailed on the Alcheringa in 2010 unless, among other things, she was “fully rule compliant.”[1]  It is unclear how such a statement relates to either or both (a) the alleged grievance that he now seeks to have remedied, and (b) how it assists the Court in determining what, if any, relief should be granted.

   [1] See par.6 of the Applicant’s extensive Grounds of Review in his Application, filed 15^th July 2019.

7. At paragraphs 2 and 3 of the Amended Originating Application, filed 5^th March 2020, the Applicant stated (emphasis added):

   [2] In February 2013 to ensure natural justice for the boat Alcheringa, Senator the Hon Kate Lundy, the then Minister for Sport, asked Sport Australia (SA) if YA had complied with its Sports Investment Agreement to “implement and enforce its MPP and procedures to ensure natural justice and procedural fairness” when in August 2010 it had reclassified the boat Alcheringa as “individually modified” from the class rules and substantially increased her rating.…

   [3] What SA should have correctly informed the Minister was YA had multiple times breached the MPP and its Code of Conduct, when for false reasons officials published Alcheringa had been competing as modified from the class rules.  The defamation intended to discredit me after I had advised YA a committee was flagrantly breaching the MPP.  The response by SA did not answer the Minister’s specific question and was deceptively misleading and incorrect.

8. Regrettably, no documentation was provided by the Applicant in support of these diverse and serious contentions.  Regrettably too, throughout his filed documentation, the Applicant proceeded primarily by way of assertion and submission.  This is not to challenge the truthfulness of what the Court has been told, although I confess that there was often a very tight amalgam of matters combined in the narrative provided by the Applicant.  However, there is no sworn evidence, nor is there any documentary or other evidence, upon which the Court can relevantly rely.  The only documentation provided beyond the Amended Application, Response and submissions, are the copies of detailed replies given to the Applicant by the Ombudsman that are Annexures 1-3 to the Response, filed 25^th March 2020. 

9. For ease of reference, and because the letter of primary complaint is the lengthy response from Ms Hennessy, dated 6^th October 2017, Annexures 1 – 3 to the Response are annexed to these reasons.

10. For the reasons that follow, the Application must be dismissed.  Absent any Application within 14 days, there should be no Order as to costs.

Grounds of review

1. Notwithstanding what is set out by the Applicant, the actual grounds for review appear to be the following matters taken from the Amended Application, filed 5^th March 2020.

2. In paragraphs 10 – 12 of his Amended Application for Judicial Review filed 5^th March 2020, the Applicant set out the bases for the review(s) sought in the following terms (emphases added):

   (a)At par.10, the Applicant confirmed that he was seeking relief on behalf of Mr Brown (who has not filed anything in the proceeding). It is, therefore, unclear on what basis the Applicant can bring proceedings on behalf of Mr Brown and himself.  The Applicant said that he sought judicial review “of the administrative decision of 9^th October 2017 by Ms Tricia Hennessy on behalf of the Ombudsman”.[2]  He continued (emphasis added):

   [2] Annexure 2 to the Ombudsman’s Response, filed 25^th March 2020, is a copy of Ms Hennessy’s letter to the Applicant, dated 6^th October 2017.  The Court has not been provided with any decision, record or other evidence, notably by the Applicant, dated “9^th October 2019”.  Unless otherwise advised, I proceed in these reasons on the basis that there has been a typographical error by the Applicant and that the relevant “document/administrative decision” about which complaint is made is the letter from Ms Hennessy, dated 6^th October 2017 (Annexure 2 to the Response).

   I therefore requested the Ombudsman under the ADJR Act s.13(1) to provide a statement setting out findings of fact, evidence and reasons on why Ombudsman’s officers made the incorrect assumption the dispute on Alcheringa’s class rule compliance had been raised and settled under the YA Member Protection Policy.  However his legal officials failed to do so as required by ADJR Act s.13(2). Thus my Application is not out of time under ADJR Act 2.11(3)(c).

   (b)At par.11, the Applicant confirmed that he was not seeking a review of “decisions made by YA” as “the Commonwealth Ombudsman has no such authority.”  But, he continued (emphasis added):

   I am seeking a review of the decisions of Sport Australia, which as a government agency is part of the Commonwealth Department of Health, can be subject to an investigation by the Ombudsman if a complaint is lodged;

   (c)At par.12, the Applicant stated (emphasis added):

   My Application to the Federal Circuit Court is on the basis the Commonwealth Ombudsman made an incorrect administrative decision on a complaint to him, as it was based on the incorrect assumption the August 2010 dispute on the class rule compliance of Alcheringa was handled and settled under the YA Member Protection Policy and procedures. Therefore the order sought under the ADJR Act s.16(1)(b) is for the Federal Circuit Court to order the Commonwealth Ombudsman to reconsider the verdict of 9^th October 2017 on my complaint of February 2014…

3. In summary, doing the best that I can to disentangle the various complaints and the history of them, in my view the formal complaint to be considered in the Application before this Court relates only to the “decision” found in the letter from Ms Hennessy to the Applicant, dated 6^th October 2017 (not 9^th October 2017 as indicated by the Applicant).  Further, I consider the matter only in terms of the Applicant, which is to confirm that, because there is nothing from Mr Brown to indicate even his awareness of the proceeding, it is procedurally impossible to have any regard to any alleged involvement by him in the matter.

4. Notwithstanding the matters set out in his Amended Application, in his written submissions (filed 8^th April 2020) the Applicant said (pars.7.2 and 7.3) that he included in his Application for relief the “decision” of Ms Siuta, dated 21^st October 2014, which is Annexure 1 to the Response filed on 25^th March 2020.  He did so essentially on the basis that the “decision” of Ms Hennessy of 6^th October 2017 was a review of Ms Siuta’s earlier 2014 decision.

5. It should be noted that, notwithstanding the complaints against SA and the allegedly false and misleading information given to the Minister set out in pars.2 and 11 of the Amended Application, no relief is formally sought against SA. Certainly, no section of the Act was identified that would entitle the Applicant to seek review of any decision made by SA apparently in or around either 2010 or 2013. As identified by the Respondent, there has not been any application by the Applicant to seek an extension of time for any such review.

6. Similarly, no relief is sought in relation to the allegedly negligent (or worse) conduct of YA regarding the re-classification of the Alcheringa.  In such circumstances, and the exclusion of those (SA and YA) who are, at one level in the eyes of the Applicant, “the [alleged] primary culprits”,[3] it follows that the only entity left standing, quite some time after the events in question, available to the Applicant against whom relief can or might be sought, is the Commonwealth Ombudsman.  Hence this Application.

   [3] I use this language, not to impute any guilt or culpability but simply because the Applicant himself contended that the response by SA to the Minister was “deceptively misleading and incorrect.”  Against YA, the Applicant contended that he had been “defamed” and deliberately discredited.

The Applicant’s submissions

1. The Applicant’s submissions, filed 8^th April 2020, were as follows:

   1. In February 2013, in an attempt to ensure justice for Alcheringa, Senator the Hon Kate Lundy, the then Minister for Sport, asked the now Sport Australia (SA) if YA when in August 2010 reclassifying Alcheringa, had complied with its Sports Investment Agreement

   2. SA’s response failed to answer the Minister’s question, but instead was misleading and incorrect. What SA advised the Minister was that, YA had stated a complaint ’was handled appropriately under the respective rules of YA’. However this was a complaint lodged on 26 November 2009, settled within 2 weeks, and not related to the reclassification of Alcheringa. SA should have correctly informed the Minister there had been multiple breaches of YA’s MPP and its Code of Conduct, The most probable reason for SA deceiving the then Minister for Sport, and subsequent Ministers, was to cover-up its failure to meet the requirement to monitor compliance funding agreement obligations.

   3. A function of the Ombudsman under the Ombudsman’s Act 1976 section 5(1) is to safeguard the community in its dealings with the Federal Government. Hence in February 2014 I lodged a complaint with the Ombudsman that, SA had provided a falsely misleading and incorrect response to the then Minister of Sport’s February 2013 inquiry,

   4. My complaint was first investigated by Mr Michal Tucker, Investigating Officer, but on 8 September 2014 Ms Helen Fleming, Senior Assistant Ombudsman, considered his finding inadequate. My complaint was then investigated by Ms Waleria Suita, Senior Investigating Officer. Her investigation was also significantly inadequate as rather than reviewing the SA response, she incorrectly assumed the ongoing dispute on the August 2010 compliance of Alcheringa with the class rules had been decided under the MPP and its procedures, Hence on 21 October 2014, she inappropriately concluded the falsely misleading and incorrect SA response ‘was reasonable in the circumstance’, thus the Ombudsman ‘cannot be critical of the information SA passed to the Minister’s Office’

   5. A competent investigation would have shown all available evidence was there had been no implementation of the MPP. Thus there was no MPP Part E ‘Confidential record’ which was required when a MPP protest has been lodged.

   6. After I advised the Ombudsman of Ms Waleria Suita’s fundamental error, Ms Tricia Hennessy, Director Operations South, decided being by an experienced officer, her finding the MPP had been implemented must be correct, thus no further action would be taken on my complaint. Ms Hennessy did not take into account there had been a fundamental error by Ms Suita, and did not advise me of my right to seek a judicial review of her decision.

   7. On 18 October 2017 the then Assistant Minister to the Prime Minister, Senator the Hon James McGrath, advised me ‘complainants have the right to seek external review of decisions made by the office of the Commonwealth Ombudsman. I therefore requested the Ombudsman under the ADJR Act s13(1) to provide a statement in writing setting out findings of fact, evidence and reasons why Ombudsman’s officers made the incorrect assumption. However his legal officials failed to do so:

   7.1 I accept Senator the Hon James McGrath’s opinion a decision of the Ombudsman can be dealt with under the ADJR Act, rather than the Respondent’s opinion the order sought under ADJR Act section16(1) is outside the Court’s powers.

   7.2 The Respondent incorrectly claimed my Amended Originating Application (AOA) for an Order under the ADJR Act was unclear what decision it applied to as it mentioned a ‘decision’ by both Ms Waleria Siuta and Ms Tricia Hennessy. The AOA specifically stated the request related to Ms Hennessy’s decision, while the outcome of Ms Siuta’s inadequate work was referred to in the AOA as ‘concluding’ not a ‘decision’.

   7.3 I disagree that, my AOA does not state the reason for the requested Order. It says it is for an Order on the 2017 decision of Ms Hennessy on Ms Suita’s 2014 conclusion.

   7.4 The Respondent says there is a ‘discretion under section 6(1) of the Ombudsman Act 1976 to not investigate a complaint’. However the Respondent provided no evidence for this to apply to the AOA. I believe there no reason not to investigate.

   7.5. I disagree with the Respondent, and believe Ms Tricia Hennessy’s letter dated 6 October 2017 (received on the 9th) effectively contained a decision that Ms Siuta’s conclusion being by an experienced officer, was accepted as being correct thus and ‘no further action will be taken in relation to this matter,’ and ‘the files are closed’.

   7.6 I disagree that the decision of Ms Hennessy is not reviewable under the ADJR Act. I believe my application to the Court was submitted within time under the ADJR Act S13 (2), as the Respondent refused to provide a written statement of findings of fact, evidence and reason why a fundamental incorrect assumption had been made

   7.7 I do not accept the Respondent’s opinion that, although the Minister for Sport was only provided by SA with two falsely misleading statements and an incorrect one, the Ombudsman’s incorrect decision that SA’s deception of the Minister“ was “reasonable in the circumstances’’, is not one to which the ADJR Act applies.

   7.8 I disagree with his prejudgment of the Court’s decision, in claiming my request ‘had no reasonable chance of success’. I believe my request was justified being based on the documentary evidence of AS’s deceiving the then Minister for Sport.

   7.9 The Respondent is incorrect that I was not harmed by the August 2010 YA defamation of Alcheringa which resulted in me being accused of cheating. As the Racing Rules of Sailing rule 46 nominated ‘Person in charge’, I had responsibility for compliance with rule 2 ‘Fair Sailing’, and rule 78 ‘Compliance with Class Rules’, and had done so. As a result of YA’s false accusations to SA about me, I gave up competing until my name was cleared; an action to date costing me some $15,000.

   8. The Order sought under the ADJR Act section16(1)(b) is for the Court to order the Ombudsman to reconsider the decision of 6 October 2017 relating to my February 2014 complaint so he can make one based on evidenced facts not an incorrect assumption. This would be the first vital step to end the ten year gross injustice to Mr Neil Brown, the owner of Alcheringa, an innocent victim of YA’s deceit and multi-million dollar fraud.

The Respondent’s submissions

1. The Respondent’s submissions, filed 8^th April 2020, were as follows:

   1. By an Amended Originating Application (AOA) filed on 5 March 2020, the Applicant seeks judicial review of certain findings and actions of staff within the office of the Respondent. The Respondent submits that the AOA is incompetent for the reasons stated in the Response filed on 25 March 2020, and should be dismissed with costs.

   2. By way of brief factual background, in February 2014, the Applicant lodged a complaint with the Respondent’s office regarding the Australian Sports Commission (ASC) and its handling of the Applicant’s complaint against Yachting Australia (YA), arising from YA’s reclassification of the boat Alcheringa as “individually modified”. The Applicant alleged that ASC employees provided incorrect information to the then Minister for Sports, Minister Kate Lundy, following her request for information on YA’s compliance with its Sports Investment Agreement with the Commonwealth government.

   3. The Respondent investigated the Applicant’s complaint and in May 2014, informed the Applicant that the complaint would not be further investigated, as the Respondent was satisfied that the ASC had acted consistently with its obligations. Upon further investigation, on 21 October 2014, a different officer within the Respondent’s office found that the Respondent could not be critical of the information the ASC passed to the Minister and informed the Applicant that a better outcome could not be achieved through further investigation (see Annexure 1 of Response). Following a further complaint by the Applicant that staff within the Office of the Respondent breached the Public Service Act 1999, on 6 October 2017, a different officer within the Respondent’s office wrote to the Applicant informing him that the Respondent’s staff had dealt with his complaint against the ASC in a reasonable manner.

   4. Under section 6(1) of the Ombudsman Act 1976, the Respondent has a broad discretion to decide not to investigate a complaint, or not investigate a complaint further, and the Respondent accepts that such a decision may be a decision that is reviewable under the Administrative Decisions (Judicial Review) Act 1977 (ADJR Act). However, the AOA does not identify with sufficient specificity the decision to which the ADJR Act is said to apply. Rather, the Applicant asks this Court to conduct merits review of particular findings or comments made in the Respondent’s correspondence of 21 October 2014 and 6 October 2017.

   5. At any rate, the letter of 6 October 2017 does not contain a decision amenable to review under the ADJR Act as it is a response to the Applicant’s complaint regarding the Respondent’s staff. Turning to the correspondence of 21 October 2014, even if read generously as containing a “decision” that can be reviewed under the ADJR Act, the application is out of time by some 4 years and 6 months. This is a significant delay. Neither the Originating Application nor the AOA was lodged within the ‘prescribed period’ within the meaning of sections 11(1)(c) and 11(3)(a) of the ADJR Act. Moreover, the Applicant has not filed an application for an extension of time in accordance with rule 42.03 of the Federal Circuit Court Rules 2001 (Rules).

   6. Insofar as the AOA states that the application is not out of time because the Respondent failed to provide a statement of reasons as requested, the Respondent considers that the ‘decisions’ referred to in the AOA are not decisions to which s 13 of the ADJR Act applies because they include ‘findings of facts, a reference to the evidence or other material on which these findings were based and the reasons for the decision’ (s 13(11)(b)). The Respondent gave notice of this to the Applicant on 28 September 2018. The requirements of rule 42.03 are stated in mandatory terms however the Applicant has failed to comply with them.

   7. The substance of the AOA is also fundamentally misconceived. At [11], the Applicant states that he is “seeking review of the decisions of [the ASC]…” by requiring the Respondent to investigate his complaint against them. Not only does this fail to identify a decision of the Respondent, it also does not state the ground(s) on which the Applicant says a decision should be reviewed under s 5(1) of the ADJR Act, or otherwise state the basis on which any decision of the Respondent is affected by legal error.

   8. Rather, the AOA asks the Court to reconsider the merits of the original complaint he made to the Respondent about the ASC: for example, at [6], an allegedly incorrect finding of fact that the relevant dispute had been decided under a Member Protection Policy. Judicial review is concerned with the legality of the decision under review, not with the merits of the decision: Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 272. In this case, there is nothing before the Court capable of suggesting that a decision of the Respondent is affected by any of the matters listed at s 5(1) of the Act. Even if the Respondent’s decision is wrong in the manner alleged (that is, the decision is allegedly based on an incorrect assumption about a factual matter: [11], AOA), that is no basis to invoke the Court’s jurisdiction under the ADJR Act to review the decision for legal error. In the absence of identification of legal error, the AOA is not competent. The Applicant essentially seeks a different/favourable outcome for his complaint to the Respondent against the ASC. This does not provide a legitimate basis for judicial review. The AOA therefore has no reasonable prospects of success. As such, there is no basis for the Court to grant leave to file the application out of time.

   9. Finally, while the Applicant was able to lodge with the Respondent a complaint against the ASC, the AOA does not specify the ground on which it said that the Applicant was “a person aggrieved” (s 3(4), ADJR Act) by any decision of the Respondent. It does not follow from the mere fact that the Applicant lodged a complaint with the Respondent that he will be taken to be aggrieved by any decision deemed by him to be unfavourable. The AOA discloses only that the Applicant sailed on Alcheringa in 2010. That boat was owned by another person: Mr Neil Brown. Without more, the Court could not be satisfied that the Applicant is properly a ‘person aggrieved’ in the sense that his interests are adversely affected by the decision.

Outline of principle

1. I proceed in two stages: first, I set out some basal principle from a number of High Court decisions. Secondly, I pose and answer a series of questions, by reference to the Act, with a view to providing the simplest pathway to the conclusion that the Application must fail and therefore be dismissed. Unless otherwise required, all references are to the provisions in the Administrative Decisions (Judicial Review) Act 1977 (Cth) – hereafter “the Act”.

2. First, in Australian Broadcasting Tribunal v Bond (“ABT v Bond”), Mason CJ outlined the considerations or indicia as to what constitute a “decision” for the purposes of the Act. His Honour said (emphasis added):[4]

   [4] Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321 at 336 – 337. Brennan and Deanne JJ agreed separately with the judgment of Mason CJ.

   [26] The definition in s.3(1) does not elucidate significantly the meaning of the word "decision" as it is used in the ADJR Act. It is clear that a "decision to which this Act applies" must be a decision of an administrative character, that it may be made in the exercise of a discretion, and that it must be made under an enactment. But these characteristics provide little guidance as to the meaning of the word "decision" upon which the definition in s.3(1) is based”

   …

   [29] The fact that the ADJR Act is a remedial statute providing for a review of administrative action rather than some form of appeal from final decisions disposing of issues between parties indicates that no narrow view should be taken of the word "decision". In this respect it is significant that s.5 does not speak of "final decision"

   …

   [30] Nonetheless other considerations point to the word having a relatively limited field of operation.  First, the reference in the definition in s.3(1) to "a decision of an administrative character made ... under an enactment" indicates that a reviewable decision is a decision which a statute requires or authorizes rather than merely a step taken in the course of reasoning on the way to the making of the ultimate decision.  Secondly, the examples of decision listed in the extended definition contained in s.3(2) are also indicative of a decision having the character or quality of finality, an outcome reflecting something in the nature of a determination of an application, inquiry or dispute or, in the words of Deane J., "a determination effectively resolving an actual substantive issue".  Thirdly, s.3(3), in extending the concept of "decision" to include "the making of a report or recommendation before a decision is made in the exercise of a power", to that extent qualifies the characteristic of finality.  Such a provision would have been unnecessary had the Parliament intended that "decision" comprehend every decision, or every substantive decision, made in the course of reaching a conclusive determination. Finally, s.3(5) suggests that acts done preparatory to the making of a "decision" are not to be regarded as constituting "decisions" for, if they were, there would be little, if any, point in providing for judicial review of "conduct" as well as of a "decision"

   …

   [32] The policy arguments do not, in my opinion, call for an answer different from that dictated by the textual and contextual considerations. That answer is that a reviewable "decision" is one for which provision is made by or under a statute. That will generally, but not always, entail a decision which is final or operative and determinative, at least in a practical sense, of the issue of fact falling for consideration. A conclusion reached as a step along the way in a course of reasoning leading to an ultimate decision would not ordinarily amount to a reviewable decision, unless the statute provided for the making of a finding intermediate decision, might accurately be described as a decision under an enactment.

   [33] Another essential quality of a reviewable decision is that it be a substantive determination. With the exception of s.3(2)(g), the instances of decision mentioned in s.3(2) are all substantive in character. Moreover, the provisions in sub-ss.(1), (2), (3) and (5) of s.3 point to a substantive determination…

3. For completeness, I should also note two comments by Toohey and Gaudron JJ in the same judgment in ABT v Bond, first in relation to the operation of s.5 of the Act, and secondly, in relation to one specific element under s.5(1)(f) of the Act. As to the former, at 377, their Honours said (internal citations omitted; emphasis added):

   [25] It does not follow that, because s 5 is not confined to acts involving the exercise of or a refusal to exercise a substantive power, the acts which constitute a decision reviewable under s 5 of [the ADJR Act] are at large. They are confined by the requirement in s 3(1) that they be made 'under an enactment'. A decision under an enactment is one required by, or authorized by, an enactment.… The decision may be expressly or impliedly required or authorized… If an enactment requires that a particular finding be made as a condition precedent to the exercise of or refusal to exercise a substantive power, a finding to that effect is readily characterized as a decision 'under an enactment'. However, it is otherwise with respect to findings which are not themselves required by an enactment but merely bear upon some issue for determination or some issue relevant to the exercise of a discretion. Findings of that nature are not themselves 'decisions under an enactment'; they are merely findings on the way to a decision under an enactment.

4. At 384, their Honours said (emphasis added; internal citations omitted):

   [46] For an error of law to constitute a ground of review under s.5(1) of the ADJR Act it is necessary that "the decision (involve) an error of law": s.5(1)(f).For an error of law to be involved in a decision something more than the mere occurrence of error is necessary. The error must have contributed to the decision in some way or, at the very least, it must be impossible to say that it did not so contribute. Conversely, an error is not involved in a decision if it did not contribute to the decision or if the decision must have been the same regardless of the error. Thus, to show that an error of law is involved in a decision it is necessary, at the very least, to show that the decision may have been different if the error had not occurred. This approach may be compared with the operation of the rules of natural justice where an allegation is made to which a person has no opportunity to respond.

5. In Griffith University v Tang (2005) 221 CLR 99, the High Court commented, among other things, on what features characterised the making of a decision “under an enactment” by reference to s.3 of the Act. At [79] and [80], Gummow, Callinan and Heydon JJ said (internal citations omitted):[5]

   [79] The decision so required or authorised must be "of an administrative character". This element of the definition casts some light on the force to be given by the phrase "under an enactment". What is it, in the course of administration, that flows from or arises out of the decision taken so as to give that significance which has merited the legislative conferral of a right of judicial review upon those aggrieved?

   [80] The answer in general terms is the affecting of legal rights and obligations. Do legal rights or duties owe in an immediate sense their existence to the decision, or depend upon the presence of the decision for their enforcement? To adapt what was said by Lehane J in Lewins, does the decision in question derive from the enactment the capacity to affect legal rights and obligations? Are legal rights and obligations affected not under the general law but by virtue of the statute?

   [5] See also the comments at [92] in relation to the relevance of the existence of, or expectation of impact upon, “substantive rights under the general law.”

6. Finally, in Argos Pty Ltd v Corbell (Minister for the Environment and Sustainable Development) (“Argos Pty Ltd v Corbell”), the High Court discussed at some length the criteria for a person to satisfy the definition of a “person aggrieved.”[6]  Different approaches to this issue came from the joint judgment of French CJ and Keane J, with Gageler J largely agreeing in a separate judgment, and the joint judgment of Hayne and Bell JJ taking a slightly different approach.  On the facts of the case before the High Court the result was largely the same.

   [6] Argos Pty Ltd v Corbell (2014) 254 CLR 394.

7. Summarily, at [33], French CJ and Keane J said (internal citations omitted):

   [33] Standing to challenge a decision under the ADJR Act is determined by s.3B(1) of the Act; but the authorities which address the question of standing under the general law afford some assistance in understanding the kinds of interest which may be relevant and the kinds of effect that may be regarded as adverse. In Bateman's Bay Local Aboriginal Land Council v Aboriginal Community Benefit Fund Pty Ltd, speaking of the sufficiency of an interest required to support an application for a declaration or injunction under the general law, Gaudron, Gummow and Kirby JJ said:

   "Upon the true construction of its subject, scope and purpose, a particular statute may establish a regulatory scheme which gives an exhaustive measure of judicial review at the instance of competitors or other third parties. An example is the special but limited provision by the legislation considered in Alphapharm Pty Ltd v SmithKline Beecham (Australia) Pty Ltd for judicial review of successful applications for registration. However, the circumstance that the plaintiff conducts commercial activities in competition with those which it seeks to restrain is not necessarily insufficient to provide it with a sufficient interest in the subject matter of the action". (footnote omitted)

8. At [37] – 40], their Honours discussed “directness, remoteness and proximity” as possible factors in determining whether someone is relevantly a “person aggrieved.”  And at [41] – [48], their Honours discussed issues related to “interests and relevant considerations” regarding the same subject.  In the result, their Honours held that the owners of businesses affected by a new commercial development were relevantly affected and, thereby, they satisfied the criteria as persons aggrieved.  It was the direct impact upon the businesses that satisfied the criteria.  On the other hand, the landlord of the premises out of which those businesses were conducted was found not to be a “persona aggrieved”, seemingly on the basis that his interests were indirect and there was no certainty of him being adversely impacted by the proposed development.

9. For their part, Hayne and Bell JJ said, at [63]:

   The difference between the two claims can be expressed in several different ways. Earlier in these reasons it was expressed as a difference between "would result" and "might result". But the same ideas can be expressed by reference to "direct" as opposed to "indirect" effects, or by describing one consequence as more "remote" than another. None of these expressions is, or should be, used as if it were a term of art having a single fixed meaning. And none of these expressions is, or should be, used as if, divorced from the context in which it is used, it provides a satisfactory, self-contained explanation of the application of the statute. Each is used as a means of describing the qualitative judgment that is made.

10. At [67] and [68], their Honours also said (internal citations omitted):

    [67] Often, perhaps very often, the connection between decision, interests and asserted effect will be obvious and evidently relevant. But that may not always be so, and in such a case it will be necessary to identify both the interest of the applicant relied on, and whether it is adversely affected by the decision, having regard to the proper construction and application of the Act under which the impugned decision was made.

    [68] Reference is not made to the Act under which the decision is made for the purpose of giving some different meaning to the words of s.3B(1)(a) of the ADJR Act. Rather, reference to the Act under which the decision is made will elucidate whether there is, in the circumstances of the decision in question, a relevant and sufficient connection between the decision, the applicant's interests and the asserted effect on those interests to show that the applicant is a "person aggrieved" by the decision.

11. For completeness, it is important to note also the summary provide by Gageler J, at [76]:

    To draw a conclusion that a person meets the statutory description of "a person whose interests are adversely affected" by a decision requires: first, identification of a decision of the designated kind; second, examination of the legal or practical operation of that decision; and, third, the making of a judgment that the legal or practical operation of the decision has been to result in an adverse effect on identified interests of the person. The nature of the requisite interests, and the nature and degree of the requisite adverse effect, depend on the statutory context in which the description appears.

12. Unfortunately, there was a significant dearth of authority in the submissions provided to the Court.  Certainly, no submission referred to any of the High Court decisions noted here.  I turn then to the relevant questions to determine the current Application.

Consideration & disposition

1. The first matter to note, as I did earlier in these reasons, is the lack of relevant evidence before the Court.  While there is frequent reference in submissions and in the Amended Application and Response to various matters, the only specific evidence before the Court are the three letters that are annexed to the Response, filed 25^th March 2020.  This is also to say that the Applicant, while providing a rich narrative of the history of events and his assertions and contentions about them, provided no evidence at all about the matters complained of.

2. Secondly, upon consideration of the three letters in question – from Ms Suita (dated 21^st October 2014), Ms Hennessy (dated 6^th October 2017), and Ms Phillips (dated 28^th September 2018) – in my view there is no basis for the complaints by the Applicant. Certainly, none of the complaints relevantly come within the terms of the Act. A number of matters may be observed about this correspondence.

3. The letter from Ms Suita in fact referred to two earlier investigations conducted by the Ombudsman.  Mr Tucker seems to have conducted some review of the original complaint by the Applicant (but there are no details of either of these matters), while Ms Fleming had reviewed Mr Tucker’s original lines of inquiry.  It was following Ms Fleming’s review that “further questions of the ASC [Australian Sports Commission]” were undertaken.  Curiously, the Applicant never referred to the original review by Mr Tucker – nor did the Ombudsman other than in the letter from Ms Suita.

4. As Ms Suita’s letter to the Applicant made plain, certain questions were put to the ASC.  The ASC responded.  The responses noted in the letter led the Ombudsman to conclude as follows:

   a) On the information available, none of these points are untrue or unreasonable in light of the circumstances.  We cannot be critical of the information the ASC passed to the Minister’s office.

   b) As I cannot identify any better outcome we can realistically achieve through further investigation, at this point we have finalised your complaint.

   c) I acknowledge that you may still be disappointed with the situation as it stands…

5. As earlier identified, it is the second letter from the Ombudsman, the detailed note from Ms Hennessy, which is the primary focus of the Applicant and his complaint to this Court.  This letter was a response to a complaint lodged by the Applicant on 12^th May 2016.  The complaint identified was as follows:

   … that staff from the Office of the Commonwealth Ombudsman breached the Public Service Act 1999 when they investigated your earlier complaint …. You asserted that staff did not carry out their duties with care and diligence as required by the Public Service Code of Conduct and section 13 of the Public Service Act 1999. You consider that you were treated unfairly and unreasonably by employees of this office.

6. Ms Hennessy noted that, following his inquiries, Mr Tucker had concluded that the ASC had acted consistently with its obligations in relation to the Applicant’s complaint and “could not identify any more that our Office could expect the ASC to do to investigate YA’s decision-making process.”[7] The Applicant did not agree with Mr Tucker’s conclusion.  In consequence, Mr Tucker re-considered his decision but concluded that he would not change it because, in his view, the ASC had met its legislative and procedural obligations regarding the Applicant’s complaint.

   [7] Annexure 2 to the Response (the letter from Ms Hennessy to the Applicant, 6^th October 2017, p.1).

7. Ms Hennessy further noted that Mr Tucker, in a letter dated 21^st May 2014, confirmed that certain allegations regarding the boat Alcheringa were in fact tested and retracted by YA, which meant that YA met its obligations to the ASC by providing this appeal option.

8. Ms Hennessy noted that Ms Fleming concluded, pursuant to a review which she conducted, that a further investigation was warranted.  Two issues only were to be the subject of the review that was conducted by Ms Suita: (a) the terms of the funding agreement between the ASC and YA, and (b) the brief provided by the ASC to the then Minister.  Ms Hennessy then recorded the outcome of Ms Suita’s investigation.  Among other things, it was recorded by Ms Suita that the ASC was not a regulatory body, and that sporting disputes must be addressed by the relevant body within the Member’s Protection Policy (“MPP”).

9. Among other things, Ms Hennessy noted to the Applicant that (a) the role of the Ombudsman’s office was to examine administrative actions of Commonwealth agencies and to form a view about whether those agencies [sic] were reasonably open to them to make, and (b) the Applicant’s complaint was subject to further internal review, “a non-statutory process that provides dissatisfied complainants with an opportunity to seek a fresh evaluation of a decision made by another officer.  A review is not a re-investigation of a complaint, but rather looks at the process adopted by the original Investigation Officer.”[8]

   [8] See Annexure 2 to the Response (the letter from Ms Hennessy to the Applicant, 6^th October 2017, p.3).

10. Ms Hennessy did not agree with the Applicant’s assertion that the staff of the Ombudsman’s office “did not deal with the complaint appropriately.”  She said further that she was “unable to see that our normal assessment and investigation procedures were not followed in relation to the handling” of the Applicant’s original complaint.  This was in circumstances where Ms Hennessy confirmed that she had “read through the files” relating to the complaint.

11. After noting a number of times that, in her view, proper processes by staff of the Ombudsman’s office were undertaken in conducting the investigation into the Applicant’s complaint, Ms Hennessy concluded:

    In summary, it is my view that your previous complaint was thoroughly assessed and reviewed by two experienced Investigation Officers from this Office and that no further action will be taken in relation to the matter…  

12. Regarding the third letter, from Ms Phillips (dated 28^th September 2018, Annexure 3 to the Response), it is sufficient to note the following.

13. First, it confirmed that the letter of Ms Hennessy provided sufficient reasons in confirming that proper processes were carried out by the Ombudsman’s Office when inquiring into the Applicant’s complaint.  Ms Hennessy’s letter provided “sufficient information outlining our findings of fact, the evidence relied upon and reasons for our decision.”[9]

    [9] Annexure 3 to the Response (letter dated 28^th September 2018, p.1).

1. Secondly, after noting that detailed written reasons had been provided throughout the investigation processes, Ms Phillips’ letter concluded as follows:

   a) s.13(5) of the ADJR Act provides that a request for reasons in relation to a written decision may be refused if not made within 28 days after that decision, and

   b) s.13(11)(b) of the ADJR Act provides a statement of reasons will not apply to a decision where that decision includes a statement setting out findings of fact, evidence and reasons.

2. For the reasons given, Ms Phillips declined to provide the Applicant with a statement of reasons.

3. Subject to what is said below, in my view, on the face of the only evidence before the Court, the letter of Ms Hennessy plainly deals only with the processes of investigation conducted by the Ombudsman’s Office into the complaint(s) of the Applicant. As such, those internal reviews regarding investigative processes do not come within the terms of the Act.

4. Accordingly, I agree with the paragraphs of the letter from Ms Phillips set out above; the Applicant was clearly provided with relevant reasons for the conclusions reached by the Ombudsman’s Office at each stage of the processes of review that he initiated.

Is there a relevant “decision” under s.3(2)?

1. Section 3(2) of the Act relevantly provides:[10]

   [10] See also ss.3(3) and 3(5), the former relating to “provision … made under an enactment”; the latter refers to “conduct.”

   In this Act, a reference to the making of a decision includes a reference to:

   (a)    making, suspending, revoking or refusing to make an order, award or determination;

   (b)    giving, suspending, revoking or refusing to give a certificate, direction, approval, consent or permission;

   (c)     issuing, suspending, revoking or refusing to issue a licence, authority or other instrument;

   (d)    imposing a condition or restriction;

   (e)     making a declaration, demand or requirement;

   (f)   retaining, or refusing to deliver up, an article; or

   (g)    doing or refusing to do any other act or thing;

   and a reference to a failure to make a decision shall be construed accordingly.

2. By reference to the outline of principles by the High Court in ABT v Bond, particularly that there be a “substantive determination”, in my view, under none of the correspondence – the three letters at Annexures 1 – 3 of the Response (now annexed to these reasons similarly) – is there a relevant “decision” that determines any “substantive rights.”  The complaints made to the Ombudsman, while having a foundation in some earlier-in-time grievances relating to decisions and matters of process by YA and SA, according to what is set out in the Amended Application, the complaints to and about the Ombudsman relate to the processes undertaken and the results of them.  Neither the processes undertaken, nor the results of them, in the light of ABT v Bond (and other matters noted below), relevantly relate to any decision as comprehended by the Act.

3. Further, the so-called complaint against SA, insofar as it is properly discernible, relates essentially to the provision of allegedly incorrect information to the Minister of the day. As such, the provision of information does not relevantly constitute a “decision” for the purposes of the Act.

4. Accordingly, both (i) the conduct and processes by the Ombudsman, and (ii) the earlier provision of information by SA to the Minister, do not relevantly come within the definition of “decision” in s.3(1) of the Act.

5. On this basis, the Application must fail and be dismissed.

Are there grounds of review identified under s.5(1) of the Act?

1. Section 5(1) of the Act provides as follows (emphasis added):

   A person who is aggrieved by a decision to which this Act applies that is made after the commencement of this Act may apply to the Federal Court or the Federal Circuit Court for an order of review in respect of the decision on any one or more of the following grounds:

   (a)    that a breach of the rules of natural justice occurred in connection with the making of the decision;

   (b)    that procedures that were required by law to be observed in connection with the making of the decision were not observed;

   (c)     that the person who purported to make the decision did not have jurisdiction to make the decision;

   (d)    that the decision was not authorized by the enactment in pursuance of which it was purported to be made;

   (e)     that the making of the decision was an improper exercise of the power conferred by the enactment in pursuance of which it was purported to be made;

   (f)       that the decision involved an error of law, whether or not the error appears on the record of the decision;

   (g)    that the decision was induced or affected by fraud;

   (h)    that there was no evidence or other material to justify the making of the decision;

   (i)       that the decision was otherwise contrary to law.

2. The Applicant does not identify any ground of review specified in s.5(1). Failure to comply with the requirements of the Act, per s.5(1), in my view, is fatal to the Application. It is not for the Respondent, or the Court, to guess at the grounds of review that the Applicant would wish to be addressed. Generalised complaints about the processes undertaken by the Ombudsman do not satisfy the requirements of s.5(1) of the Act.

3. Because of this conclusion, it is unnecessary to consider whether s.5(2) of the Act and the matters set out in s.5(1)(e), which relate to an “improper exercise of power”. In any event, no such claim was articulated by the Applicant.

4. Accordingly, the failure to identify grounds of review in accordance with s.5(1) of the Act means that the Application must fail and be dismissed.

Is the Applicant a “person aggrieved” under s.3(4)?

1. Section 3(4)of the Act provides as follows (emphasis added):

   In this Act:

   (a) a reference to a person aggrieved by a decision includes a reference:

   (i) to a person whose interests are adversely affected by the decision; or

   (ii) in the case of a decision by way of the making of a report or recommendation—to a person whose interests would be adversely affected if a decision were, or were not, made in accordance with the report or recommendation; and

   (b) a reference to a person aggrieved by conduct that has been, is being, or is proposed to be, engaged in for the purpose of making a decision or by a failure to make a decision includes a reference to a person whose interests are or would be adversely affected by the conduct or failure.

2. In the light of the tests and general principles set out in Argos Pty Ltd v Corbell, because the Applicant has no legal, or other legally recognised, interest in the boat Alcheringa, in my view, the Applicant’s position, at its highest, is analogous to the landlord in the Argos litigation. As such, he is not a “person aggrieved” for the purposes of the Act.

3. Because of the finding that the Applicant is not a “person aggrieved” under the Act, for this reason, the Application must fail and be dismissed.

4. More generally, and in addition to what is set out in these reasons, I accept the submissions of the Respondent.

Conclusion

1. For the reasons given, the Amended Application filed by the Applicant on 5^th March 2020, must be dismissed.  Absent any application within 14 days, there shall be no Order as to costs.

I certify that the preceding sixty-one (61) paragraphs are a true copy of the reasons for judgment of Judge WJ Neville

Associate: 

Date: 7 July 2020

ANNEXURE 1

Level 1, 441 St Kilda Rd, Melbourne VIC 3004
 GPO Box 442, Canberra ACT 2601
Phone [phone] ■ Fax [phone]
[email protected]

ref: 2014-700298

21 October 2014

Mr Paul Fitzwarryne
PO Box 7024
YARRALUMLA ACT 2600

Dear Mr Fitzwarryne

I am writing in relation to our further investigation of your complaint about the Australian Sports Commission (ASC). Pursuant to Ms Helen Fleming’s (Senior Assistant Ombudsman) review of Mr Mitchell Tucker’s initial decision, we agreed to ask further questions of the ASC. In particular, we asked for more detail about:

-its funding agreement with Yachting Australia (YA).

-the nature of the information it passed to the then-Minister for Sport.

It is important I stress that we only have jurisdiction over Commonwealth Government agencies, such as the ASC. We assess whether the agency has acted consistently with its legislative and procedural obligations, and reasonably in all of the circumstances.

After reviewing the Sport Investment Agreement (the ‘funding agreement’), I am satisfied that it does not give the ASC a more interventionist role than that already outlined by Mr Tucker. That is, individual sporting authorities can be expected to design and implement a Member Protection Policy (MPP), but disputes pertaining to the rules of the sport remain for the individual authority to resolve, within the framework of the MPP. The ASC checked whether the dispute was settled using the MPP. The fact one party remains disappointed with the outcome of that process does not mean the process was unreasonable, or that the ASC has a greater power to intervene.

The ASC has also now provided further detail of what information it gave to the Minister about this matter. With reference to the Ministerial correspondence you received, I note the Minister’s advice that:

-it is a requirement for YA to implement an MPP.

-the ASC is not a regulatory body, and sporting disputes must be addressed by the relevant body within the MPP.

-the ASC sought advice from YA about how it handled the issue.

On the information available, none of these points are untrue or unreasonable in light of the circumstances. We cannot be critical of the information the ASC passed to the Minister’s office.

As I cannot identify any better outcome we can realistically achieve through further investigation, at this point we have finalised your complaint.

I acknowledge that you may still be disappointed with the situation as it stands. Unfortunately, I do not consider our office can provide further assistance. It is open to you to pursue any other options that you consider might alleviate your concerns.

Consistent with our policy that we will review a decision only once, we will file but not necessarily respond to any further correspondence we receive from you about this matter. We will be happy to assist you with any new and substantive issues that are within our jurisdiction and that are unrelated to this complaint.

Yours sincerely

W. Siuta
Senior Investigation Officer

ANNEXURE 2

Our ref: 2016-504502

6 October 2017

Dr Paul Fitzwarryne
PO Box 7024
YARRALUMLA ACT 2600

Dear Dr Fitzwarryne

I am writing in response to the complaint that you lodged on 12 May 2016 that staff from the Office of the Commonwealth Ombudsman breached the Public Service Act 1999 when they investigated your earlier complaint (our reference 2014-700298). You asserted that staff did not carry out their duties with care and diligence as required by the Australian Public Service Code of Conduct and section 13 of the Public Service Act 1999. You consider that you were treated unfairly and unreasonably by employees of this Office.

I acknowledge receipt of further correspondence that you sent to this Office in relation to your complaint between May 2016 and August 2017.

I would like to sincerely apologise for my delay in responding to your complaint.

I will endeavour to address your concerns in this letter. I will start by briefly outlining your earlier complaint.

Previous complaint 2014-700298
In February 2014 you complained to this Office about the Australian Sports Commission’s (ASC) handling of your complaint to it regarding Yachting Australia (YA). You alleged that ASC employees provided incorrect information in a brief to the then Minister for Sport, Senator the Hon Kate Lundy, following a request by her for information on YA’s compliance with its Sport Investment Agreement with the Commonwealth Government.

Mitchell Tucker investigated your complaint and made enquiries with the ASC. In a written decision dated 6 May 2014 Mr Tucker explained that he had decided not to further investigate your complaint because he did not think it would achieve a better result. After reviewing all of the available information Mr Tucker was satisfied that the ASC had acted consistently with its obligations in relation to your complaint, and could not identify any more that our Office could expect the ASC to do to investigate YA’s decision-making process.

You indicated that you did not agree with Mr Tucker’s decision. In a letter dated 12 May 2014 Mr Tucker advised that he had reconsidered his decision and decided not to change it because he was satisfied that the ASC had met its legislative and procedural obligations in regard to your complaint, and could not identify any more that our Office could realistically expect it to do. He explained that you had the option to request a review of his decision and explained how you could find out more about the review process.

Mr Tucker wrote to you again on 21 May 2014 in response to further correspondence received from you. He acknowledged that you remained of the view our Office should be critical of the ASC for passing false information from YA to the then Minister of Sport. Mr Tucker reiterated that our Office’s role was limited to assessing the ASC’s actions against its legislative and procedural obligations. He stated that he was satisfied the ASC met its obligation by passing information from YA to the Minister, and that it was not generally the ASC’s role to question to veracity of that information. Mr Tucker advised that he was also satisfied that the ASC met its obligations regarding YA’s Member Protection Policy (MPP).

In his letter of 21 May 2014 Mr Tucker also commented that allegations made about the yacht Alcheringa were tested and later retracted when independent measurements were provided, and therefore YA met its minimum obligations to the ASC by providing such an appeal option. Mr Tucker stated that, having reviewed all of the information, he was unaware of any practical impediment on participation of the yacht at that time. He acknowledged that the affected parties may have felt harassed, embarrassed, or defamed by the process, and appreciated that such an outcome was unfortunate, however in his view it was beyond the effective control of the ASC. He suggested that you contact the Minister’s office if you considered that the ASC should be tasked with a different or more investigative function.

You then requested that Mr Tucker’s decision be reviewed. Ms Helen Fleming, Senior Assistant Ombudsman Operations Branch, reviewed the decision and on 8 September 2014 concluded that further investigation was warranted. Ms Fleming decided that this further investigation should focus on two issues only - the terms of the funding agreement that the ASC had with YA, and the brief provided by the ASC to the then Minister. Ms Fleming referred your complaint to Ms Waleria Suita, Senior Investigation Officer, for further investigation of the two issues identified.

Ms Suita made additional enquiries of the ASC and ultimately concluded that further investigation of your complaint was not warranted. She advised you of this in writing on 21 October 2014 and outlined the reasons for her decision. Ms Suita advised that after reviewing the Sport Investment Agreement she was satisfied that it did not give the ASC a more interventionist role than that already outlined by Mr Tucker. She noted that individual sporting authorities can be expected to design and implement a MPP, but disputes pertaining to the rules of the sport remain for the individual authority to resolve, within the framework of the MPP. Ms Siuta noted that the fact one party remains disappointed with the outcome of a process does not mean the process was unreasonable or that the ASC has greater power to intervene.

Ms Suita also explained that the ASC had provided further detail about the information it gave to the Minster about the matter. Referring to the ministerial correspondence you received, Ms Suita noted the Minister’s advice that it is a requirement for YA to implement a MPP, and that the ASC is not a regulatory body and sporting disputes must be addressed by the relevant body within the MPP. She also noted that the ASC sought advice from YA about how it handled the matter. Ms Suita advised that in her view our Office could not be critical of the information the ASC passed on to the Minister’s office.
As she could not identify any better outcome that could be realistically achieved through further investigation Ms Suita decided to finalise your complaint.

Complaint about breach of Public Service Act 1999
I have read through the files relating to your earlier complaint and reflected on the correspondence you sent to us between May 2016 and August 2017, in which you outlined your belief that staff from this Office acted inappropriately when assessing your complaint and that they breached the Public Service Act 1999.

The role of our Office is to examine the administrative actions of Commonwealth agencies and to form a view about whether those agencies were reasonably open to them to make. Mr Tucker and Ms Siuta concluded that the actions of the ASC in relation to your matter were reasonable in the circumstances. Your complaint was subject to additional assessment by Ms Suita through our internal review mechanism, a non-statutory process that provides dissatisfied complainants with an opportunity to seek a fresh evaluation of a decision by another officer. A review is not a re-investigation of a complaint, but rather looks at the process adopted by the original Investigation Officer. It is our practice that a decision will only be reviewed once. There are no further internal review processes available.

Although I appreciate that the subject of your earlier complaint is very important to you and that you hold strong views about it, I do not agree with your assertion that our staff did not deal with the complaint appropriately. I am unable to see that our normal assessment and investigation procedures were not followed in relation to the handling of complaint 2014-700298, or that you were not provided with adequate explanations for the decisions that were reached. The fact that our staff reached a conclusion that disappointed you or did not meet your expectations does not of itself mean that the officers who dealt with the complaint did not meet expected behaviours or that they committed any breaches of legislation. Furthermore, although I appreciate that you may disagree, it is my view that you are seeking to revisit and reopen a matter that our Office has already carefully considered and dealt with.

I am sorry that your experience of Mr Tucker’s assessment of your complaint and Ms Suita’s further investigation of his decision following review was not to your satisfaction. However, I consider that appropriate processes were followed and our staff dealt with your complaint in a reasonable manner consistent with the usual investigation practices of our Office. Although you may not agree with the decisions reached in relation to your complaint it does not mean that they are wrong.

In summary, it is my view that your previous complaint was thoroughly assessed and reviewed by two experienced Investigation Officers from this Office and that no further action will be taken in relation to the matter.  All of the files relating to or arising out of your complaint about the ASC have been closed. Any further correspondence that we receive from you about this matter will be read but we will not reply unless new issues are raised that we consider warrants our action.

I apologise again for my delay in responding to you and thank you for your patience.

Yours sincerely

Tricia Hennessy
Director – Operations South

ANNEXURE 3

2016-504502

28 September 2018

Dr Paul Fitzwarryne
PO Box 7024
YARRALUMLA ACT 2600

Via email to: [email protected]

Dear Dr Fitzwarryne

Request for a statement of reasons

We refer to your correspondence dated 28 August 2018, received by our Office on 4 September 2018, requesting a statement of reasons pursuant to section 13 of the Administrative Decisions (Judicial Review) Act 1977 (‘the ADJR Act’). In your correspondence you refer to having previously made this request to this Office in correspondence dated 5 July 2018. We have conducted a thorough search of our records and have been unable to locate any record of having received that correspondence.

Complaint 2016-504502

You were informed in our decision letter dated 6 October 2017 of the final outcome of your complaint (reference 2016-504502) regarding the conduct of our investigation of your original complaint about the Australian Sports Commission (reference 2014-700298). You alleged that you were treated unfairly and unreasonably by our Office and acted in breach of the Public Service Act 1999.

Our Office found that all appropriate processes were followed during the investigation, internal review and further investigation of your original complaint, and that the investigating officers dealt with your complaint in a reasonable manner.

We have attached to this letter the decision letter dated 6 October 2017. In our view, the decision letter provides you with sufficient information outlining our findings of fact, the evidence relied upon and reasons for our decision. We also note that your request for a statement of reasons was made more than 28 days after we provided you with this letter, contrary to the timeframe stipulated in s 13(5) of the ADJR Act.

Complaint 2014-700298

You were informed of the preliminary decision in the investigation of complaint 2014-700298 in our letter dated 6 May 2014. Our office proposed to finalise the investigation on the basis that we were satisfied the Australian Sports Commission had acted consistently with its obligations. You provided further submissions on 12 May 2014 in response to our preliminary decision and the final outcome of the investigation, consistent with the preliminary decision, was provided to you in our decision letter dated 12 May 2014.

You made a number of further submissions throughout May 2014 in response to our decision letter, in particular you advised of your intention to seek an internal review of the investigation outcome. In response, a further letter dated 21 May 2014 was provided to you reiterating our Office’s findings as per the original decision letter.

You were informed in a letter dated 8 September 2014 that further investigation of your complaint would be conducted by our Office. You were informed of the outcome of that further investigation in a letter from our Office dated 21 October 2014.

We have attached the above-mentioned letters to this email. In our view, these letters, both individually and collectively, provide you with sufficient information regarding the investigation of your complaint, including providing you with our findings of fact, the evidence relied upon and reasons for the decisions made.

Decision in response to your request

In our view, as we have provided you with detailed written decisions throughout the investigation of both of your complaints, we do not consider that you are not entitled to a statement of reasons under s 13 of the Administrative Decisions (Judicial Review) Act 1977 (the ADJR Act).
In particular, we note:

(a)s 13(5) of the ADJR Act provides that a request for reasons in relation to a written decision may be refused if not made within 28 days after that decision, and

(b)s 13(11)(b) of the ADJR Act provides a statement of reasons will not apply to a decision where that decision includes a statement setting out findings of fact, evidence and reasons.

For these reasons, we decline to provide you with a statement.

Yours sincerely

Jessica Phillips
Legal Officer, Legal Team
Commonwealth Ombudsman
Influencing systemic improvement in public administration