Knight v Defence Force Ombudsman

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FEDERAL COURT OF AUSTRALIA

Knight v Defence Force Ombudsman [2025] FCA 1098

File number: VID 1299 of 2024
Judgment of: MOSHINSKY J
Date of judgment: 11 September 2025
Catchwords: ADMINISTRATIVE LAW – judicial review – where the applicant made a complaint to the Defence Force Ombudsman (DFO) regarding the handling of an earlier complaint made by the applicant to the Defence Abuse Response Taskforce – where the DFO decided not to take any steps in response to the fresh complaint – whether the DFO failed to perform his statutory function of “dealing with” the applicant’s complaint and thereby fell into jurisdictional error – application dismissed
Legislation:

Administrative Decisions (Judicial Review) Act 1977 (Cth), s 5

Judiciary Act 1903 (Cth), s 39B

Ombudsman Act 1976 (Cth), s 19C

Ombudsman Regulations 2017 (Cth), ss 5, 14

Cases cited:

Australian Competition and Consumer Commission v Coles Supermarkets Australia Pty Ltd [2014] FCA 1405

Forster v Jododex Australia Pty Ltd [1972] HCA 61; 127 CLR 421

Knight v Defence Force Ombudsman [2024] FCA 474; 182 ALD 397

Division: General Division
Registry: Victoria
National Practice Area: Administrative and Constitutional Law and Human Rights
Number of paragraphs: 73
Date of last submissions: 1 August 2025
Date of hearing: 18 June 2025
Counsel for the Applicant: The applicant appeared for himself
Counsel for the Respondent: Ms K McInnes
Solicitor for the Respondent: Australian Government Solicitor

ORDERS

VID 1299 of 2024
BETWEEN:

JULIAN KNIGHT

Applicant
AND:

DEFENCE FORCE OMBUDSMAN

Respondent

ORDER MADE BY:

MOSHINSKY J

DATE OF ORDER:

11 SEPTEMBER 2025

THE COURT ORDERS THAT:

1.The application be dismissed.

2.There be no order as to costs.

Note:   Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.


REASONS FOR JUDGMENT

MOSHINSKY J:

Introduction

  1. The applicant, who served in the Australian Regular Army from 12 January 1987 to 24 July 1987, seeks judicial review of a decision of the respondent, the Defence Force Ombudsman (the DFO).

  2. By letter dated 23 May 2024, the applicant wrote to the DFO (the 2024 Complaint) complaining about the way an earlier complaint to the Defence Abuse Response Taskforce (DART) had been dealt with.  The 2024 Complaint was expressed to be made pursuant to the Ombudsman Act 1976 (Cth) and s 14(1)(d) of the Ombudsman Regulations 2017 (Cth) (the Regulations).

  3. Section 19C(1)(a) of the Ombudsman Act relevantly provides that the functions of the DFO are to investigate complaints made to him or her under the Act and “to perform such other functions as are conferred on him or her by … the regulations”.

  4. Section 14(1) of the Regulations relevantly provides that, for the purposes of s 19C(1)(a) of the Act, the DFO has:

    (d)the function of dealing with any matter relating to complaints previously made to, and dealt with by, the Defence Abuse Response Taskforce.

  5. By letter dated 1 October 2024 (the October 2024 DFO Letter), the DFO (by a delegate) notified the applicant that he had decided…

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Details
Case
[2025] FCA 1098
Decision Date

CaseChat Overview and Summary

The applicant, who is currently serving a life sentence for the 1987 Hoddle Street shootings, filed a complaint with the Defence Force Ombudsman (DFO) regarding the handling of his 2013 complaint to the Defence Abuse Response Taskforce (DART). The applicant claimed that the DFO did not "deal with" his complaint, thereby falling into jurisdictional error. The Federal Court was tasked with determining whether the DFO failed to perform his statutory function by not adequately addressing the applicant’s complaint.

The key legal issue before the court was whether the DFO properly discharged his statutory obligation to "deal with" the applicant’s complaint. This required an interpretation of the phrase "dealing with" under section 14(1)(d) of the relevant regulations. The applicant argued that the DFO did not genuinely address his complaint, particularly in relation to his inability to access counselling services through Open Arms while incarcerated. The DFO contended that the applicant's complaint was adequately handled despite not taking further action.

The court held that the DFO did indeed "deal with" the complaint, even if no further action was taken. The applicant's contention that the DFO made a factual error in assuming he could access counselling services was found to be relevant, but it did not change the outcome. The court concluded that the DFO’s decision not to take additional action did not constitute a failure to "deal with" the complaint, as the phrase was interpreted to mean that the complaint was addressed or handled. The application was dismissed, and no order was made regarding costs.

The court's decision underscores the importance of correctly interpreting statutory language and understanding the scope of administrative functions within the context of judicial review. The court found that the DFO's actions, while not resulting in any further steps, still constituted a proper handling of the complaint under the statutory framework.

Orders

Orders of the court

1. The application be dismissed.

2. There be no order as to costs.

Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

Background

Background to the litigation

In the DFO’s supplementary submission, the DFO contended that the applicant’s 4 July 2025 affidavit was inadmissible on the basis that the evidence was not before the DFO at the time of the Decision, and the grounds of review are not such as to make the evidence relevant. In my view, in circumstances where the applicant contends that the DFO did not “deal” with his 2024 Complaint, and one of the aspects of his contention is that the DFO made a factual error in assuming that he was “able to seek to access counselling services without charge through Open Arms”, the evidence in the applicant’s affidavit is relevant to a matter in issue. Accordingly, I will admit the applicant’s 4 July 2025 affidavit into evidence.Background facts Between 12 January 1987 and 24 July 1987, the applicant served in the Australian Regular Army. For most of that period, he served as a junior staff cadet at the Royal Military College, Duntroon. The applicant alleges that, during his service at Duntroon, he was subjected to various and constant acts of “bastardisation” by senior staff cadets. He also alleges that he was physically injured on three occasions as a result of actions by senior staff cadets. On 9 August 1987, the applicant was arrested in Melbourne following his commission of a mass shooting that became known as the “Hoddle Street shootings”. The applicant subsequently pleaded guilty to seven counts of murder and 46 counts of attempted murder. He was sentenced in 1988 to a term of life imprisonment with a minimum non-parole period of 27 years. The applicant’s submissions state that his entitlement to parole was removed in 2014 by way of ad hominem legislation and that he remains in prison. On 26 November 2012, the DART was established. The terms of reference of the DART were to investigate alleged abuse in the Australian Defence Force occurring prior to April 2011. On 26 November 2013, the applicant submitted a Personal Account regarding his experiences at Duntroon to the DART (the 2013 Complaint). This was 94 pages in length (plus 13 attachments) and included an account of his experiences of “bastardisation” and physical injuries. The applicant also submitted an Application for Reparation Payment form to the Defence Abuse Reparation Scheme (DARS). On 13 January 2015, a DART Assessor drafted an Assessment Note in relation to the applicant’s Personal Account. The DART Assessor found that the applicant’s complaint contained an account of abuse that was plausible and raised plausible mismanagement by Defence of a plausible report of abuse. On 26 June 2015, the Chair of the DART informed the applicant of the following in relation to his application for a reparation payment:The Taskforce has been awaiting directions from the Minister for Defence and the Minister for Justice in relation to applications from complainants who are incarcerated or on parole following their incarceration.The Taskforce has recently received advice from the Ministers that the Taskforce should not make reparation payments to incarcerated complainants or persons currently on parole. As a result of that decision, you are not eligible to receive a reparation payment from the Taskforce.

Evidence

Evidence Before The Court

In my view, for the reasons that follow, the applicant’s contentions are not made out. Although the DFO declined to take any action, the DFO did “deal with” the 2024 Complaint. It follows that the application is to be dismissed.The hearing and the evidence The applicant represented himself at the hearing. At the hearing, the applicant relied on his affidavit dated 14 October 2024 and the documents in a Court Book. In addition, the applicant tendered a number of documents. The DFO did not tender any additional material. During the hearing, the applicant made submissions to the effect that, as a prisoner in a Victorian jail, he is unable to access the internet and his ability to make telephone calls is restricted. Therefore, he submitted, as a practical matter, he is unable to access counselling services through Open Arms (a counselling service for veterans and families) as assumed by the DFO in the October 2024 DFO Letter. In order to provide a proper evidentiary foundation for these submissions, at the conclusion of the hearing I made orders for the filing and service of additional material. Pursuant to those orders, the applicant prepared and filed a further affidavit dated 4 July 2025, together with a further submission, and the DFO filed a supplementary submission on 1 August 2025 (but dated 2 August 2025). The applicant indicated on 5 August 2025 that he did not wish to file a reply submission. In the DFO’s supplementary submission, the DFO contended that the applicant’s 4 July 2025 affidavit was inadmissible on the basis that the evidence was not before the DFO at the time of the Decision, and the grounds of review are not such as to make the evidence relevant. In my view, in circumstances where the applicant contends that the DFO did not “deal” with his 2024 Complaint, and one of the aspects of his contention is that the DFO made a factual error in assuming that he was “able to seek to access counselling services without charge through Open Arms”, the evidence in the applicant’s affidavit is relevant to a matter in issue. Accordingly, I will admit the applicant’s 4 July 2025 affidavit into evidence.Background facts Between 12 January 1987 and 24 July 1987, the applicant served in the Australian Regular Army. For most of that period, he served as a junior staff cadet at the Royal Military College, Duntroon. The applicant alleges that, during his service at Duntroon, he was subjected to various and constant acts of “bastardisation” by senior staff cadets. He also alleges that he was physically injured on three occasions as a result of actions by senior staff cadets. On 9 August 1987, the applicant was arrested in Melbourne following his commission of a mass shooting that became known as the “Hoddle Street shootings”. The applicant subsequently pleaded guilty to seven counts of murder and 46 counts of attempted murder. He was sentenced in 1988 to a term of life imprisonment with a minimum non-parole period of 27 years. The applicant’s submissions state that his entitlement to parole was removed in 2014 by way of ad hominem legislation and that he remains in prison.

Decision

Reasons for decision

On 9 May 2024, Button J delivered judgment in the 2023 Proceeding: Knight v Defence Force Ombudsman [2024] FCA 474; 182 ALD 397 (the 2024 Judgment). Her Honour dismissed the application. As set out later in these reasons, her Honour made observations at [107] rejecting a position that had been adopted by the DFO in correspondence with the applicant that he (the DFO) had “no authority to consider” the handling of the 2013 Complaint. Her Honour said that considering the handling of the 2013 Complaint fell within the function conferred on the DFO by s 14(1)(d) of the Regulations.The 2024 Complaint On 23 May 2024, the applicant made the 2024 Complaint. The 2024 Complaint takes the form of a letter dated 23 May 2024 from the applicant to the DFO. The letter commences:In light of the judgment of the Honourable Button J in Knight v Defence Force Ombudsman [2024] FCA 474, I wish to lodge a fresh complaint pursuant to the Ombudsman Act 1976 (Cth) and s.14(l)(d) of the Ombudsman Regulations 2017 (Cth), regarding the way my complaint to the Defence Abuse Response Taskforce (DART) was dealt with by the DART.It is my understanding from reading paragraph 107 of Her Honour's judgment (see below) that, contrary to the advice previously given to me, the DFO does have the authority to consider a complaint relating to how the DART dealt with a complaint. I would appreciate it if you would advise me, first, whether you agree with this reading of Her Honour’s judgment and, second, if you do agree, what action you are able to take in response to such a complaint.I made a complaint to the DART in 2013, which included an application for a reparation payment. My complaint concerned bastardization I was subjected to as a junior staff cadet at the Royal Military College (RMC), Duntroon, in 1987 (including physical assaults). My complaints were found to be within scope, plausible and accompanied by mismanagement by Defence. In spite of this assessment, I was denied a reparation payment and I did not receive any other outcome.During the prosecution of the proceeding Knight v Defence Force Ombudsman in the Federal Court of Australia (Case No VID 364 of 2023) it was revealed that (a) the relevant Ministers’ direction that I not receive a reparation payment was instigated by the DART, and (b) the DART considered other outcomes but dismissed all of them without any consultation with me.(Emphasis added.) The balance of the applicant’s letter provides details of how (he contended) the DART dealt with the 2013 Complaint. The balance of the letter is arranged under three headings:(a)“I was denied a reparation payment”;(b)“I was denied any other outcome”; and(c)“I was not consulted by the DART”. I will now outline each section of the complaint. In the first section, the applicant notes that when the DARS was established in 2012, its guidelines contained a section dealing with reparation payments made to “a person who is a prisoner”. The applicant states that, on 28 May 2014, after he submitted his application for a reparation payment, the Chair of the DART wrote an unsolicited letter to the Minister for Defence and the Attorney-General regarding the applicant and two other incarcerated claimants. (This is the letter referred to at [26] above.) The applicant writes that, at the time when the Chair wrote the letter, there was no public outcry about reparation payments being made to prisoners. The applicant’s letter then states:The relevant Ministers subsequently issued a directive that no reparation payments should be made to anyone convicted of a serious crime. By the time this directive was issued in 2016 the cohort of affected claimants was only myself and the only other still incarcerated claimant. My belief is that no attempt was made to determine how many of the claimants who had already received a reparation payment had been convicted of a serious crime. Myself and the other incarcerated claimant were amongst the last, if not the last, of claimants to have our applications determined. Neither application was referred to the independent Reparation Payments Assessor.I am not concerned with the legality of the Ministers’ directive. Aside from finding that an action or inaction was contrary to law, I understand that you may alternatively find that it was unjust, oppressive or improperly discriminatory, unreasonable (including unreasonable delay, procedural deficiencies, flawed processes), based wholly or partly on a mistake of law or fact, or otherwise, in all the circumstances, wrong. I suggest that it is open to you to find that all of these complaints applied to the manner in which my complaint was dealt with by the DART.

Ratio Decidendi

Legal Principle Established

The applicant submitted that, as a prisoner, he is unable to access the internet and is subject to restrictions on telephone numbers he can call. He submitted that he is therefore unable to seek or obtain counselling services through Open Arms, and that the first bullet point at the bottom of page 2 of the October 2024 DFO Letter is factually incorrect.Consideration In essence, the applicant contends that the DFO failed to perform his statutory function of “dealing with” the 2024 Complaint (being a matter relating to a complaint previously made to, and dealt with by, the DART, namely the 2013 Complaint) and thereby fell into jurisdictional error. In order to evaluate this contention, it is necessary first to construe the words “dealing with” in s 14(1)(d) of the Regulations. In the 2024 Judgment, Button J set out the relevant principles of statutory construction (at [57]) and then considered the construction of both the expression “dealt with” (in s 5 of the Regulations) and the expression “dealing with” (in s 14(1)(d) of the Regulations). In the present case, neither party took issue with her Honour’s construction of those expressions. I will now outline the construction adopted by her Honour. One of the issues raised in the proceeding before Button J was whether the DART had “dealt with” the applicant’s 2013 Complaint (within the meaning of the definition of “excluded complaint” in the Regulations). The applicant contended in that proceeding that the DART had not done so because the words “dealt with” required the DART to have made a specific determination about each of a range of outcomes. Button J rejected that construction at [55]. Her Honour considered that that conclusion arose from the ordinary and natural meaning of the expression “dealt with” and the relevant historical and legislative context: at [56]. Her Honour stated at [59]:As a matter of ordinary language, when the expression “dealt with” is used in respect of an item, it means that item has been addressed or handled by the body charged with dealing with it. Her Honour then considered (at [60]-[70]) a number of contextual factors that tended against the construction advanced by the applicant in that proceeding. Her Honour then considered whether, in any event, based on the documents in evidence, the applicant’s 2013 Complaint had been “dealt with” by the DART (on the basis that all outcomes had been considered by the DART): see [71]-[72]. Her Honour concluded, at the end of [73], that if (contrary to what she considered to be the proper construction of “dealt with”) it was necessary that the DART address all possible outcomes in relation to the applicant’s complaint in order for it to have “dealt with” that complaint, the DART had done so. Her Honour therefore concluded (at [74]) that, on either view, the applicant’s 2013 Complaint had been “dealt with” by the DART. It followed that the 2013 Complaint was an “excluded complaint”.