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

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

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.
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.”
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.
The Applicant clearly and volubly feels morally aggrieved because of what he…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Fitzwarryn v Commonwealth Ombudsman

Details

AGLC: Fitzwarryn v Commonwealth Ombudsman [2020] FCCA 1696
Case: [2020] FCCA 1696
Decision Date: 7 July 2020

CaseChat Overview and Summary

This matter came before Wj Neville J of the Federal Circuit Court of Australia, concerning an application for judicial review of a decision made by the Commonwealth Ombudsman. The applicant sought to bring the proceedings on behalf of himself and a Mr Brown, and claimed to be seeking relief from an "administrative decision" made by an officer of the Ombudsman on 9th October 2017, which he alleged was based on an incorrect assumption regarding a dispute about a boat's class rule compliance. The applicant also indicated an intention to review decisions of Sport Australia, asserting that as a government agency, it could be subject to investigation by the Ombudsman.

The primary legal issues before the Court were whether the applicant was a "person aggrieved" by the Ombudsman's decision for the purposes of the relevant Act, and whether the complaint related to a decision of a substantive character that was amenable to judicial review. The applicant's stated intention was to have the Court order the Ombudsman to reconsider a previous verdict on his complaint.

Wj Neville J reasoned that the applicant had not provided sufficient evidence to establish his standing as a "person aggrieved." The Court noted that the applicant was seeking relief on behalf of Mr Brown, who had not filed any documentation in the proceeding, making it unclear on what basis the applicant could represent him. Furthermore, the Court found that the applicant had no legal or otherwise recognised interest in the boat in question, rendering his position analogous to that of a landlord in the context of the *Argos Pty Ltd v Corbell* litigation. Consequently, the applicant was not considered a "person aggrieved" under the Act.

As the Court determined that the applicant failed to meet the threshold of being a "person aggrieved," the application was dismissed on this ground. The Court also accepted the submissions of the Respondent generally. Absent any application within 14 days, there were no orders as to costs.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

In paragraphs 10 – 12 of his Amended Application for Judicial Review filed 5th 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 9th 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 25th March 2020, is a copy of Ms Hennessy’s letter to the Applicant, dated 6th October 2017. The Court has not been provided with any decision, record or other evidence, notably by the Applicant, dated “9th 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 6th 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 9th October 2017 on my complaint of February 2014… 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 6th October 2017 (not 9th 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.

Decision

Reasons for decision

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. 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. 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. More generally, and in addition to what is set out in these reasons, I accept the submissions of the Respondent. For the reasons given, the Amended Application filed by the Applicant on 5th March 2020, must be dismissed. Absent any application within 14 days, there shall be no Order as to costs.

Ratio Decidendi

Legal Principle Established

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