2FEDERAL COURT OF AUSTRALIA
Fitzwarryne v Commonwealth Ombudsman [2023] FCA 175
Appeal from: Fitzwarryne v Commonwealth Ombudsman [2022] FedCFamC2G 482 File number: NSD 834 of 2022 Judgment of: RARES J Date of judgment: 15 February 2023 Legislation: Administrative Decisions (Judicial Review) Act 1977 (Cth) ss 5(1), 11(1)(c), (3)
Ombudsman Act 1976 (Cth) ss 4(2), 5(1)(a), 6(1)(b)(iii)
Public Service Act 1999 (Cth)
Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 rr 1.07, 27.03
Federal Circuit Court Rules 2001 r 42.03
Cases cited: Bienstein v Bienstein (2003) 195 ALR 225
Fitzwarryne v Commonwealth Ombudsman [2020] FCCA 1696
Fitzwarryne v Commonwealth Ombudsman [2022] FedCFamC2G 482
Griffith University v Tang (20050 221 CLR 99
Jackamarra v Krakouer (1998) 195 CLR 516
Regina v Secretary of State for the Home Department; Ex parte Mehta [1975] 1 WLR 1087
Division: General Division Registry: New South Wales National Practice Area: Administrative and Constitutional Law and Human Rights Number of paragraphs: 44 Date of hearing: 15 February 2023 Counsel for the Applicant: Applicant did not appear but relied on written submissions Counsel for the Respondent: Ms C Taggart Solicitor for the Respondent: Australian Government Solicitor ORDERS
NSD 834 of 2022 BETWEEN: PAUL FITZWARRYNE
Applicant
AND: COMMONWEALTH OMBUDSMAN
Respondent
ORDER MADE BY:
RARES J
DATE OF ORDER:
15 FEBRUARY 2023
THE COURT ORDERS THAT:
1.The application for an extension of time be dismissed.
THE COURT NOTES THAT:
2.The respondent does not apply for an order for costs.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
REASONS FOR JUDGMENT
(Revised from the transcript)RARES J:
This is an application for an extension of time in which to appeal from the decision of the Federal Circuit and Family Court of Australia (Division 2), given on 21 June 2022 that dismissed the application by the applicant, Paul Fitzwarryne, under the Administrative Decisions (Judicial Review) Act 1977 (Cth) (ADJR Act) as incompetent because he had not lodged it within 28 days of any decision or conduct that he either had sought to challenge or sought an extension of time in which to do so, and any such decision or conduct was, in any event, not reviewable under that Act under s 11(3): Fitzwarryne v Commonwealth Ombudsman [2022] FedCFamC2G 482.
INTRODUCTION
Mr Fitzwarryne is an elderly man who retired from the public service over 20 years ago at the age of 65. He has difficulties reading and hearing, based on the information in the material before me. This included contacting his home by telephone this morning to speak to him, but only being able to speak to his wife. During the course of that telephone call, Mrs Fitzwarryne said that her husband had asked not to appear. She asserted that he had sent a submission by registered post to the Court on Friday, 10 February 2022. However, inquiries of the Registry that my associate has made have not discovered any material that has yet been…
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- AGLC
- Fitzwarryne v Commonwealth Ombudsman [2023] FCA 175
- Case
- [2023] FCA 175
- Decision Date
CaseChat Overview and Summary
The court considered whether Mr Fitzwarryne had adequate notice of the hearing despite his claims of not reading his emails. The court referred to the Federal Court Rules 2011, which state that a party who provides an email address agrees to receive documents at that email address. The court also noted that Mr Fitzwarryne had engaged in discussions with his wife regarding the hearing, indicating that he was aware of the proceedings. Additionally, the court examined the principles outlined in Jackamarra v Krakouer and Regina v Secretary of State for the Home Department; Ex parte Mehta, which emphasise the importance of a respondent's right to retain a judgment and the need to assess the merits of the case before extending time.
In conclusion, the court found that Mr Fitzwarryne had proper notice of the hearing and that extending the time for lodging an appeal would cause substantial injustice to the respondent. The court dismissed the application for an extension of time. The court also noted that the respondent did not apply for an order for costs.
ORDERS:
1. The application for an extension of time be dismissed.
THE COURT NOTES THAT:
2. The respondent does not apply for an order for costs.
Orders
Orders of the court
1. The application for an extension of time be dismissed.
THE COURT NOTES THAT:
2. The respondent does not apply for an order for costs.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
Background
Background to the litigation
Full text does not contain this section.
Evidence
Evidence Before The Court
Full text does not contain this section.
Decision
Reasons for decision
Ratio Decidendi
Legal Principle Established
He concluded the application saying:The result of a Judicial Decision that the Application had competence and substance, could ensure that Mr. Neil Brown, a true sportsman, receives justice in the form which is being sought. Mr. Neil Brown always (i) competed in compliance with ‘the recognized principles of sportsmanship and fair play’ and (ii) ensured that Alcheringa was ‘maintained to comply with her class rules and her measurement certificate remained valid’. CONSIDERATION I am satisfied that Mr Fitzwarryne had adequate notice of the hearing today by emails sent to his email address in his application for an extension of time. Although the application for an extension of time specified a street address as his address for service, Mr Fitzwarryne also provided an email address in it. The Federal Court Rules 2011 provide in r 11.01(5):If the party is not represented by a lawyer but provides an email address, the party agrees to receive documents at the email address. Mr Fitzwarryne certainly became aware of the hearing today, even accepting his wife’s assertion that he did not read his emails and she did not assist him with them, despite the extensive use of, obviously, a computer in preparing his documentation. That is because, on 3 February 2023, Ms Scott of the Ombudsman’s solicitors spoke with Mrs Fitzwarryne who asked Ms Scott to confirm in an email the listing for today and to put other information about it in that email. When speaking on the phone link this morning, Mrs Fitzwarryne said, nonetheless having requested that communication by email, her husband did not read his emails. Mr Fitzwarryne seemingly discussed matters with her in the background on the phone link. I am not satisfied that he was unaware of the hearing today and that he has not had proper notice of the hearing. An application for an extension of time to lodge an appeal puts at risk what Brennan CJ and McHugh J described in Jackamarra v Krakouer (1998) 195 CLR 516 at 519–520 [3]–[4] (and see also further Kirby J at 539–543 [66]), as the vested right of a respondent to retain the judgment. Their Honours said that such matters are usually dealt with in the way in which Lord Denning MR described in Regina v Secretary of State for the Home Department; Ex parte Mehta [1975] 1 WLR 1087 at 1091E–F:We often like to know the outline of the case. If it appears to be a case which is strong on the merits and which ought to be heard, in fairness to the parties, we may think it is proper that the case should be allowed to proceed, and we extend the time accordingly. If it appears to be a flimsy case and weak on the merits, we may not extend the time. We never go into much detail on the merits, but we do like to know something about the case before deciding whether or not to extend the time. In addition, an applicant for leave to appeal must establish that the decision in question is attended with sufficient doubt, and that substantial injustice would flow if leave to appeal were not granted: Bienstein v Bienstein (2003) 195 ALR 225 at 231 [29] per McHugh, Kirby and Callinan JJ.