Fitzwarryne v Commonwealth Ombudsman
[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
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”.
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.
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.
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’.
In so doing, the applicant has been drawn into disputes with various other bodies including the respondent, the Commonwealth Ombudsman.
The applicant alleges that the classification decision in respect of the Alcheringa breached YA’s Sport Investment Agreement with the Commonwealth government which required YA’s “inherent compliance with its Australian Trailerable Yacht and Sports Boat Rule” (“ATYSBR”).
The applicant made a series of complaints to various bodies, including the then Minister for Sport (“Minister”), and the Australian Sports Commission (“ASC”) regarding his contention that the classification of the yacht was wrong. The ASC provided advice to the Minister, which the applicant alleges did not answer the critical question and only provided a minimal one-page draft containing three false/irrelevant points.
In February 2014, the applicant lodged a complaint with the Commonwealth Ombudsman against the ASC. On 6 October 2017, the Commonwealth Ombudsman determined “it could not be critical of the response provided by the ASC to the Minister”, and closed their investigation file. The applicant complains that the investigation officers of the Commonwealth Ombudsman did not assess and review the subject of his complaint, that being if YA had incorrectly reclassified the yacht as an “individually modified boat”. The applicant complains that the Commonwealth Ombudsman officers did not act with due care and diligence as required by section 13 of the Public Service Act 1999 (Cth).
On 15 July 2019, the applicant commenced proceedings in this Court seeking judicial review of the decision of the Ombudsman. On 5 March 2020, the applicant filed an amended Initiating Application.
The applicant clarified the basis upon which he seeks a review of the decision as follows:
11. I am not seeking a review of the decisions made by YA as the Commonwealth Ombudsman has no such authority. I am seeking a review of the decisions of Sport Australia, which as a government agency is part of the Commonwealth Department of Health portfolio, can be subject to investigation by the Ombudsman if a complaint is lodged.
12. 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 an 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 orders sought under the ADJR Act s16 (1)b) is for the Federal Circuit Court to order the Commonwealth Ombudsman to reconsider the verdict of 9 October 2017 on my complaint of February 2014. The order would not go beyond the powers of the Federal Circuit Court, as authorised by the Federal Circuit Court Rules 2011.
The matter was heard before the Court in March 2020 with a judgement being delivered on 7 July 2020: (see; Fitzwarryne v Commonwealth Ombudsman [2020] FCCA 1696).
Judge Neville found firstly that the applicant had clearly been provided with relevant reasons for the conclusions reached by the Ombudsman’s office at each stage of the review process he initiated.
Secondly, His Honour found that neither the conduct of the processes undertaken by the either the Commonwealth Ombudsman or the earlier provision of the information provided to the Minister came within a decision under s 3(1) or a relevant decision in s 3(2) of the Administrative Decisions (Judicial Review) Act 1977 (Cth) (“ADJR Act”). Further, the applicant failed to identify any grounds of review in accordance with s 5(1) of the ADJR Act. Finally, His Honour concluded that the applicant was not a ‘person aggrieved’ under s 3(4) of the ADJR Act.
The applicant appealed the judgement to the Federal Court of Australia. On 21 June 2021, the Federal Court approved consent orders that found in favour of the applicant and remitted the matter back to this Court for rehearing. The basis for the consent orders were that the applicant had not been given a proper opportunity to provide evidence before the Judge Neville.
The task of again considering the applicant’s complaints now falls to me.
NOTICE OF OBJECTION AS TO COMPETENCY
On 3 February 2022, the Commonwealth Ombudsman lodged a fresh Notice of Objection to Competency.
The grounds of objection are as follows:
1. The Application is substantially out of time. The Application was not lodged within the ‘prescribed period’ within the meaning of s 11(1)(c) and 11(3)(a) of the Administrative Decisions (Judicial Review) Act 1977 (ADJR Act) and the applicant has not filed an application for extension of time or affidavit in accordance with rule 29.03 of the Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth).
2. Further or in the alternative, the conduct which the applicant seeks review is not conduct reviewable under the ADJR Act as the conduct does not arise in connection with “a decision to which” the ADJR Act applies. Specifically, there is no decision the respondent could make which would confer, alter or otherwise affect legal rights or obligations: Griffith University v Tang (2005) 221 CLR 99 at [80], [89].
3. Not pressed.
PROCEDURAL HISTORY
The matter first came before me on 4 February 2022 for a Directions Hearing. The applicant did not appear. Prior to the hearing, the applicant forwarded to my Associate an email advising he was in his late 80’s, had recently suffered a very serious injury. As result, the applicant had lost most of his hearing and sight. The applicant stated that he was unable to participate in the Directions Hearing but “agree[d] to accept any decision of the Court”. Accordingly, the Court made orders setting the matter for a Competency Hearing on 2 June 2022. The applicant was ordered to file any evidence he wished to reply upon together, with an outline of submissions, 28 days prior to the Competency Hearing.
These orders were not complied with. However, just prior to the hearing, the Court received an 11 page document that was in the form of a Statutory Declaration dated 31 May 2022. That document contained a mix of assertions and what appeared to be submissions. The Court, with the consent of the respondent, received the document on the basis that it was submissions but not evidence.
On the day of the hearing the applicant did not appear. The applicant had been sent an invitation to attend by video conferencing link to assist. The applicant sent an email to my Associate again advising of his inability to participate in the hearing due to his medical conditions. The applicant stated however, “I hereby agree to accept any decision made by His Honour Doug Humphreys OAM at that hearing”.
In the circumstances, noting the previous correspondence from the applicant as to his difficulties in appearing personally even via a video conferencing facility, with the consent of the respondent, the Court determined to proceed with the hearing pursuant to r 13.06(e) of the Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth) (“the Rules”) which relevantly provides:
Default of appearance of a party
1. If a party to a proceeding is absent from a hearing (including a first court date), the Court or a Registrar may do any of the following:
...
e)Proceed with the hearing generally or in relation to any claim for relief in the proceeding.
THE RESPONDENT’S EVIDENCE AND SUBMISSIONS
The respondent relied upon an Affidavit of Ms Polly Porteous affirmed 26 May 2022 which annexed a copy of the relevant documents and correspondence between the applicant and the respondent.
On behalf of the respondent it was submitted that the true remedy being sought by the applicant was vindication as to his complaint regarding the classification of the Alcheringa by YA as an “individually modified yacht” rather than a “Hartley 18’ Plywood ¾ rig yacht”. This was not a remedy that was within the power of the Ombudsman or Sports Australia to grant. It was submitted that Sports Australia has no power to oversee rule compliance by YA of the type complained about by the applicant.
It was first submitted that the application for judicial review was outside the time limit contained within s 11(1)(c) and 11(3)(a) of the ADJR Act.
Second, the conduct complained which the applicant seeks review is not conduct reviewable under the ADJR Act, as the conduct does not arise in connection to a “decision to which” the ADJR Act applies. There was no decision the Ombudsman could make which would confer, alter or otherwise affect legal rights or obligations.
THE APPLICANT’S SUBMISSIONS
No admissible evidence was provided by the applicant in support of his contentions. The main document the applicant provided to the Court in relation to the current hearing was a Statutory Declaration dated 31 May 2022, which consisted of assertions and submissions.
The applicant seeks to link the decision of YA in relation to the yacht to a breach of the funding agreement by the SA with YA, on the basis that YA was under an obligation to “adopt, implement and enforce “Member Protection Policies” (“MPP”). The applicant asserts SA was under an obligation to ensure Commonwealth funds were used appropriately and not give the Minister incorrect or misleading information.
The applicant asserts that when he complained to SA about his dispute with YA, he was told that SA had “no obligation to monitor compliance with its grants therefore no action would be taken against YA for its apparent fraud of the Federal Government”. The Court interprets this latter remark to not complying with a MPP Policy as the fraud alleged by the applicant.
The applicant complains that incorrect information was provided by SA to the Minister. This included first, that the dispute had been dealt with appropriately and in accordance with the respective rules of YA. Secondly, that “SA does not intervene in the complaint handling process of sport particularly at a local district or state level”. The applicant says his complaint related to compliance with the funding agreement and there was no MPP complaint.
Third, that the issue of compliance was “addressed effectively with the owner, Mr Brown”. The applicant contends that is false. The applicant asserts the response of SA to then then Minister should have been that YA was in breach of its funding agreement. The Court notes no evidence has been provided from Mr Brown in this regards by the applicant or the respondent. The only material supplied by the applicant is bare assertion contained within his Statutory Declaration.
The applicant asserts that his complaint to the respondent in February 2014, was that YA was in breach of its funding obligations. The applicant asserts that the response made by SA to the then Minister, that the yacht had not been classified in accordance with relevant YA rules, was incorrect.
The applicant takes issue with the response he received from the Ombudsman in 2014, including that the allegation (that the yacht did not comply with relevant rules) was tested and redacted when Mr Brown (the owner) provided independent measurements. The Ombudsman concluded that YA had met its minimum obligations to SA by providing such an appeal mechanism. The applicant claims this finding was checked by a more senior officer who found it inadequate.
The applicant claims when the matter was further investigated, the benchmark by which the matter was considered was not the relevant funding agreement of SA with YA as at the time the dispute arose, but a subsequent agreement. The applicant complains that the conclusion by the Ombudsman that “We cannot be critical of the information the SA passed to the Minister” was inappropriate. The applicant asserts that no attempt was made to investigate if the Minister had been deceived by SA in respect of the rating requirements.
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”.
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.
The second ground relied upon by the respondent is that the ADJR Act does not apply as there is no decision the Respondent could make that would confer, alter or otherwise affect legal rights or obligations. The respondent relied upon Griffith University v Tang (2005) 221 CLR 99 at [80] and [89]. The cited paragraphs read as follows (citations omitted):
[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?
[89] The determination of whether a decision is "made ... under an enactment" involves two criteria: first, the decision must be expressly or impliedly required or authorised by the enactment; and, secondly, the decision must itself confer, alter or otherwise affect legal rights or obligations, and in that sense the decision must derive from the enactment. A decision will only be "made ... under an enactment" if both these criteria are met. It should be emphasised that this construction of the statutory definition does not require the relevant decision to affect or alter existing rights or obligations, and it will be sufficient that the enactment requires or authorises decisions from which new rights or obligations arise. Similarly, it is not necessary that the relevantly affected legal rights owe their existence to the enactment in question. Affection of rights or obligations derived from the general law or statute will suffice.
The essential dispute in this matter rises and falls in relation to the classification of the yacht as an individually modified yacht. That decision is not within the power of the Ombudsman to change, given it has no authority over YA in relation to disputes of this nature. Nor does SA. The applicant asserts in his Statutory Declaration that the complaint he seeks reviewed is the decision of October 2017, not to review the 2014 complaint further. The applicant relies upon correspondence to him from the then Assistant Minister to the Prime Minister of 16 October 2017 that he had the right to seek external review by the Court and to request a statement of reasons.
Whilst this advice is correct in a broad sense, it does not create a legal right of review by this Court other than that conferred by the ADJR Act. The applicant’s claim that he seeks the 2017 decision, if it be a decision, to be the subject of a review by the Court seeks to mischaracterise the real nature of the relief ultimately being sought by the applicant, that being a merits review of the classification decision in relation to the yacht by the CYC and YA.
The Court is satisfied the funding agreement, which the applicant asserts is the real nature of his complaint, does not give rise to any legal right on the part of the applicant. The MPP, which the applicant claims to have been breached, arose through a funding agreement between SA and YA. It was not pursuant to any enactment or made under any enactment. The second ground relied upon by the respondent also succeeds.
CONCLUSION
The applicant seeks justice for a grievous wrong that he believes has been perpetrated on him. The Court cannot offer the applicant justice in the form he seeks, all it can do and has done is apply the law.
The application is dismissed for the reasons stated above. The Court will hear the parties as to costs.
I certify that the preceding fifty-three (53) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Humphreys. Associate:
Dated: 21 June 2022
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