FEDERAL COURT OF AUSTRALIA
Knight v Commonwealth Ombudsman [2023] FCA 868
File number(s): VID 783 of 2022 Judgment of: MCELWAINE J Date of judgment: 31 July 2023 Catchwords: PRACTICE AND PROCEDURE – application for extension of time for the filing of a notice of appeal from a decision made by the Administrative Appeals Tribunal – where application is 16 months out of time – where delay is very substantial and unexplained for the most part – no question of principle – application dismissed Legislation: Administrative Appeals Tribunal Act 1975 (Cth) s 44 Cases cited: Comcare v A’Hearn (1993) 45 FCR 441
Hunter Valley Developments Pty Ltd v Cohen (1984) 3 FCR 344
Julian Knight and Attorney-General’s Department (Freedom of Information) [2017] AICmr 79 (31 August 2017)
Julian Knight and Commonwealth Ombudsman (Freedom of Information) [2017] AICmr 94 (4 October 2017)
Knight v Commonwealth of Australia [2016] FCA 1160
Knight v Commonwealth Ombudsman (Freedom of Information) [2021] AATA 2504
R v Knight [1989] VR 705
Division: General Division Registry: Victoria National Practice Area: Administrative and Constitutional Law and Human Rights Number of paragraphs: 17 Date of last submission/s: 8 May 2023 (Applicant)
9 June 2023 (Respondent)Date of hearing: Determined on the papers Counsel for the Applicant: The Applicant appeared in person Counsel for the Respondent: Ms K McInnes Solicitor for the Respondent: Australian Government Solicitor ORDERS
VID 783 of 2022 BETWEEN: JULIAN KNIGHT
Applicant
AND: COMMONWEALTH OMBUDSMAN
Respondent
ORDER MADE BY:
MCELWAINE J
DATE OF ORDER:
31 JULY 2023
THE COURT ORDERS THAT:
1.The application filed on 23 December 2022 is dismissed.
2.The applicant is to pay the respondent’s costs as agreed or failing agreement to be assessed by a Registrar of the Court on a lump sum basis pursuant to r 40.02(b) of the Federal Court Rules 2011 (Cth).
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
REASONS FOR JUDGMENT
MCELWAINE J:
A lesser known fact about Mr Julian Knight (Mr Knight or the applicant) is that he attended the Royal Military College Duntroon (College) as a member of the Australian Defence Force (ADF) between 13 January and 10 July 1987. Shortly thereafter on 9 August 1987, he murdered seven people and injured 19, in what became known as the Hoddle Street Massacre. On 10 November 1988, Hampel J sentenced the applicant to seven terms of life imprisonment for murder and 10 years of imprisonment on 46 counts of attempted murder with a fixed minimum non-parole period of 27 years: R v Knight [1989] VR 705. The applicant remains in custody.
What is presently before the Court is Mr Knight’s application filed on 23 December 2022 by which he seeks an extension of time for the filing of a notice of appeal from a decision made by the Administrative Appeals Tribunal (Tribunal) on 26 July 2021: Knight v Commonwealth Ombudsman (Freedom of Information) [2021]…
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- AGLC
- Knight v Commonwealth Ombudsman [2023] FCA 868
- Case
- [2023] FCA 868
- Decision Date
CaseChat Overview and Summary
The primary legal issue before the court was whether the applicant's substantial delay in filing the notice of appeal could be justified, particularly given the absence of a convincing explanation for the delay. The court needed to determine whether the delay was acceptable under the circumstances and whether the applicant's reasons were sufficient to warrant an extension of time. Additionally, the court considered the principles of procedural fairness and the importance of timely justice.
The court found that the applicant's delay was both very substantial and largely unexplained, amounting to 16 months past the due date. Despite the applicant's arguments, the court was not persuaded that the delay could be justified. The applicant did not present a convincing explanation for the delay, nor did they demonstrate any mitigating factors that could warrant an extension. The court emphasised the importance of adhering to procedural timelines to maintain the integrity of the judicial process. As a result, the application for an extension of time was dismissed. The applicant was also ordered to pay the respondent's costs as agreed, or to be assessed if the parties could not agree on the amount.
Orders
Orders of the court
1. The application filed on 23 December 2022 is dismissed.
2. The applicant is to pay the respondent’s costs as agreed or failing agreement to be assessed by a Registrar of the Court on a lump sum basis pursuant to r 40.02(b) of the Federal Court Rules 2011 (Cth).
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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