Fitzwarryne v Commonwealth Ombudsman

Case [2022] FedCFamC2G 482

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA

(DIVISION 2)

Fitzwarryne v Commonwealth Ombudsman [2022] FedCFamC2G 482

File number(s): CAG 44 of 2019
Judgment of: JUDGE HUMPHREYS
Date of judgment: 21 June 2022
Catchwords: ADMINISTRATIVE LAW – Judicial review – objection to competency – whether application out of time – whether conduct under review was in connection with a ‘decision to which’ the ADJR Act applies – application dismissed.
Legislation:

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

Public Service Act 1999 (Cth) s 13

Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth) r 13.06
Cases cited:

Fitzwarryne v Commonwealth Ombudsman [2020] FCCA 1696

Griffith University v Tang (2005) 221 CLR 99

Division: Division 2 General Federal Law
Number of paragraphs: 53
Date of last submission/s: 13 June 2022
Date of hearing: 6 June 2022
Place: Parramatta
Solicitor for the Applicant: No appearance
Counsel for the Respondent: Ms Taggart

ORDERS

CAG 44 of 2019

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN:

PAUL FITZWARRYNE

Applicant
AND:

COMMONWEALTH OMBUDSMAN

Respondent

ORDER MADE BY:

JUDGE HUMPHREYS

DATE OF ORDER:

21 JUNE 2022

THE COURT ORDERS THAT:

1.The application is dismissed.

Note: The form of the order is subject to the entry in the Court’s records.

Note: The Court may vary or set aside a judgment or order to remedy minor typographical or grammatical errors (r 17.05(2)(g) Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 17.05 Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth).

REASONS FOR JUDGMENT

JUDGE HUMPHREYS

INTRODUCTION

  1. The applicant, Mr Paul Fitzwarryne, is aggrieved. The applicant is an amateur yachtsman. The applicant claims to have been branded a cheat and defamed during the course of a dispute with the Canberra Yacht Club (“CYC”) and Yachting Australia (“YA”) over the classification of the yacht ‘Alcheringa’ as not being class compliant for a “Hartley 18 ¾ rigged yacht” but rather an “individually modified class yacht”.

  2. The applicant claims this latter classification resulted in the yacht receiving a significant handicap for the 2010 Winter Series with the CYC held on Lake Canberra. The handicap made the yacht uncompetitive.

  3. It is to be noted that the applicant is not the owner of the yacht, that being a Mr Neil Brown.  Mr Brown gave permission to the applicant to use the boat and to race it in Canberra in events under the auspices of the CYC. Following the death of his wife, Mr Brown subsequently disposed of the yacht for ‘spare parts’ in 2012.

  4. Having presumably exhausted his rights of review with the CYC and YA, the applicant has subsequently sought novel and collateral ways to re-agitate his dispute to achieve vindication and what he sees as ‘justice’.

  5. In so doing, the applicant has been drawn into disputes with various other bodies including the respondent, the Commonwealth Ombudsman.

  6. The…

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AGLC
Fitzwarryne v Commonwealth Ombudsman [2022] FedCFamC2G 482
Case
[2022] FedCFamC2G 482
Decision Date

CaseChat Overview and Summary

The matter before the Court involves a challenge by the applicant, Fitzwarryne, against the decision of the Commonwealth Ombudsman, the respondent, not to investigate further into a complaint about the classification of a yacht. The applicant contends that the decision not to investigate was unreasonable and that there was a failure to properly consider his complaint regarding the classification of the yacht, which he claims disregarded the obligations of the yacht association to the federal government. The case was heard in the Federal Court of Australia.

The primary legal issue before the Court was whether the applicant's application for judicial review was lodged outside the statutory time limit under the Administrative Decisions (Judicial Review) Act 1977 (ADJR Act). The Court also needed to determine if the decision in question was a reviewable decision under the ADJR Act. The Court considered the statutory provisions under the ADJR Act regarding the time limits for making an application for judicial review, and whether the letters sent by the respondent to the applicant constituted reviewable decisions.

The Court found that the applicant's application for judicial review was indeed made outside the statutory time limit. The Court held that the letter of 6 October 2017 did not contain a reviewable decision under the ADJR Act as it was a notification that no further action would be taken over and above the 2014 investigation. Regarding the letter of 21 October 2014, the Court considered that it might be a decision that attracts jurisdiction under the ADJR Act but did not need to form a concluded view on this matter as it was not necessary. The Court rejected the applicant's argument that time did not commence to run because he requested a statement of reasons, holding that the letter of 2014 clearly set out the reasons for the decision, and the applicant's dissatisfaction with those reasons did not extend the time available for the lodgement of an application. Consequently, the Court dismissed the application as it was out of time.

The Court further noted that even if the October 2017 letter was considered as the decision sought to be reviewed, the Originating Application filed on 15 July 2019 was still out of time. The Court, while acknowledging it was not strictly necessary to consider the matter further, noted that the second ground relied upon by the respondent also supported the dismissal of the application.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

Section 13(11)(b) of the ADJR Act reads as follows reads as follows:(1) In this section, decision to which this section applies means a decision that is a decision to which this Act applies, but does not include:…(a) a decision that includes, or is accompanied by a statement setting out, findings of facts, a reference to the evidence or other material on which those findings were based and the reasons for the decision… The letter of 21 October 2014 to the applicant from the respondent stated inter alia: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 bodies can be expected to design and implement a Member Protection Police (MPP), but disputes pertaining to the rules of the sport remain for the individual authority to resolve, within the framework of the MP. The fact that one party remains disappointed with the outcome does not mean that the process was unreasonable, or that the ASC has a greater power to intervene. The letter of 6 October 2017 outlines the history of the original 2017 complaint and then deals with the assertion that the staff of the respondent acted inappropriately and breached the Public Service Act 1999 (Cth). It noted that the complaint had been assessed and reviewed by two experienced Investigation Officers and that no further investigation would take place. The Court is satisfied that the second letter is not one of a character that s 13(1)(b) of the ADJR Act applies, as it was not a decision as such, but a notification that no further action would be taken over and above the 2014 investigation. In terms of the 2014 letter, the Court is satisfied this was a decision that might attract jurisdiction under the ADJR Act, however the Court forms no concluded view, as it is not necessary to do so at this point. The Court rejects the assertion of the applicant that time did not commence to run, as he requested a statement of reasons. The letter of 2014 clearly set out the reasons the respondent relied upon for taking no further action. The fact that the applicant is dissatisfied as to the reasons given is not a matter that can be used to extend the time available for the lodgement of an application to this Court under the ADJR Act. In these circumstances the application is out of time. As no extension of time has been sought the Court is satisfied the application is incompetent and should be dismissed for this reason alone. The Court notes that even if the decision sought to be reviewed, as asserted by the applicant was October 2017 letter advising the respondent would not investigate the matter further, then the Originating Application filed with the Court on 15 July 2019 was still well out of time Whist strictly not necessary to deal with the matter further, given the history of the matter, it is appropriate to consider the second ground relied upon by the respondent.

Ratio Decidendi

Legal Principle Established

The applicant takes issue with the further finding in October 2017 when a senior officer of the respondent stated, “In my view your complaint was thoroughly assessed and reviewed by two experienced investigating officers and no further action will be taken”. The applicant complains there has been no investigation of his complaint that the Minister had been advised that the reclassification decision of the yacht had disregarded YA’s obligation to the federal government. CONSIDERATION This dispute essentially revolves around a decision by the CYC and YA to classify the Alcheringa as an individually modified yacht rather than a Hartley 18 ¾ rig. The applicant was not the owner of the yacht. The applicant claims, however, that he is an ‘aggrieved person’. The Respondent first asserts that the Originating Application for judicial review by this Court under the ADJR Act was made out of time. Sections 11(1)(c) and 11(3)(a) of the ADJR Act are as follows:Manner of making applications(1)An application to the Federal Court or the Federal Circuit and Family Court of Australia (Division 2) for an order of review:…(c) shall be lodged with a Registry of the court concerned and, in the case of an application in relation to a decision that has been made and the terms of which were recorded in writing and set out in a document that was furnished to the applicant, including such a decision that a person purported to make after the expiration of the period within which it was required to be made, shall be so lodged within the prescribed period or within such further time as the court concerned (whether before or after the expiration of the prescribed period) allows.…(3)The prescribed period for the purposes of paragraph (1)(c) is the period commencing on the day on which the decision is made and ending on the twenty-eighth day after:(a) if the decision sets out the findings on material questions of fact, refers to the evidence or other material on which those findings were based… (emphasis added). The above indicates that the time for the lodgement of an Initiating Application to this Court is 28 days from the date of the decision. The Court may extend that time is an application for an extension of time is made. No such application has been made. The respondent asserts that the last action by them, being a letter of 6 October 2017, first does not contain a reviewable decision under the ADJR Act. In terms of the correspondence of 21 October 2014, even if read generously as containing a ‘decision’ that can be reviewed under the ADJR Act, it was submitted that the application is out of time by some 4 years and 6 months. In so far as the applicant asserts that the application is not out of time, as the respondent failed to provide a Statement of Reasons, the respondent submits the ‘decisions’ referred to are not decisions which s 13 of the ADJR Act applies because they include “findings of fact, a reference to the evidence or other materials on which the findings were based and the reasons for the decision”.