Knight v Defence Force Ombudsman

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FEDERAL COURT OF AUSTRALIA

Knight v Defence Force Ombudsman [2024] FCA 474

File number(s): VID 364 of 2023
Judgment of: BUTTON J
Date of judgment: 9 May 2024
Catchwords: ADMINISTRATIVE LAW – judicial review – where Ombudsman Regulations 2017 (Cth) (Regulations) excluded Respondent from taking specific action with respect to “excluded complaints” – where “excluded complaint” one previously “dealt with” by the Defence Abuse Response Taskforce (the DART) – where Applicant previously made complaint to the DART – whether previous complaint “dealt with” by the DART, such that renewed complaint is an “excluded complaint” – whether Regulations direct that Respondent has function of investigating complaints about handling of complaints previously made to the DART – application dismissed
Legislation:

Administrative Decisions (Judicial Review) Act 1977 (Cth) ss 3, 5

Federal Court of Australia Act 1976 (Cth) s 21

Judiciary Act 1903 (Cth) ss 39B, 78B

Ombudsman Act 1976 (Cth) ss 4, 6, 8D, 19C, 19F, 19X, 19ZS, 19ZX, 20P, 24, 25, 33, 38

Ombudsman Amendment (Functions of the Defence Force Ombudsman) Regulation 2016 (Cth) (repealed)

Ombudsman Amendment (Functions of the Defence Force Ombudsman) Regulations 2017 (Cth) (repealed)

Ombudsman Regulations 2017 (Cth) ss 13, 14, 14B

Corrections Act 1986 (Vic) s 74AA
Cases cited:

Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321

Cabell v Markham (1945) 148 F 2d 737

ENT19 v Minister for Home Affairs (2023) 410 ALR 1; [2023] HCA 18

Fitzwarryne v Commonwealth Ombudsman [2023] FCA 175

Griffith University v Tang (2005) 221 CLR 99

Polo/Lauren Company L.P. v Ziliani Holdings Pty Ltd (2008) 173 FCR 266; [2008] FCAFC 195

SZTAL v Minister for Immigration and Border Protection (2017) 262 CLR 362; [2017] HCA 34

Thiess v Collector of Customs (2014) 250 CLR 664; [2014] HCA 12

WACB v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 210 ALR 190; [2004] HCA 50
Division: General Division
Registry: Victoria
National Practice Area: Administrative and Constitutional Law and Human Rights
Number of paragraphs: 119
Date of last submission/s: 19 April 2024
Date of hearing: 4 March 2024
Counsel for the Applicant: The Applicant appeared in person
Counsel for the Respondent: Mr T Begbie KC with Ms J Lucas
Solicitor for the Respondent: Australian Government Solicitor

ORDERS

VID 364 of 2023
BETWEEN:

JULIAN KNIGHT

Applicant
AND:

DEFENCE FORCE OMBUDSMAN

Respondent

ORDER MADE BY:

BUTTON J

DATE OF ORDER:

9 MAY 2024

THE COURT ORDERS THAT:

1.The amended originating application is dismissed.

2.The Respondent is to advise the Court and the Applicant by 14 May 2024 if he seeks a costs order.

3.If the Respondent seeks a costs order, the parties are to file written submissions limited to two pages by 21 May 2024 following which costs will be determined on the papers.

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


REASONS FOR JUDGMENT

BUTTON J:

Overview of Mr Knight’s application

  1. The Applicant (Mr Knight) commenced this proceeding against the Defence Force…

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Details
Case
[2024] FCA 474
Decision Date

CaseChat Overview and Summary

In Knight v Defence Force Ombudsman, the applicant, Mr Knight, sought judicial review of a decision by the Respondent, the Defence Force Ombudsman, that his complaint was an “excluded complaint” and could not be assessed. The complaint was made under the Ombudsman Regulations 2017 (Cth) (Regulations), which exclude complaints previously “dealt with” by the Defence Abuse Response Taskforce (DART). The central issue was whether the DART had “dealt with” Mr Knight’s 2013 complaint, rendering his 2023 complaint an “excluded complaint”. The applicant contended that the DART had not fully considered the range of available outcomes, particularly those other than reparation payments, for his 2013 complaint. The court held that the term “dealt with” did not require the DART to make specific determinations about all potential outcomes. The ordinary and natural meaning of the term, considered in its statutory context, did not necessitate such an extensive process. The court dismissed Mr Knight’s application for judicial review, concluding that the 2013 complaint had indeed been “dealt with” by the DART.

The key legal issues in this case involved the interpretation of the term “dealt with” as it appeared in the definition of “excluded complaint” in the Regulations. The court applied principles of statutory construction, emphasizing the importance of the text, context, and purpose of the legislation. It was determined that the term “dealt with” did not demand a comprehensive examination of all possible outcomes by the DART. The decision underscored the necessity of considering the ordinary meaning of statutory language and its application within the broader legislative framework. The court further clarified that the DART’s role was to assess whether a complaint met the thresholds for reparation payments, not to explore all potential outcomes. This understanding led to the conclusion that Mr Knight’s 2013 complaint had been sufficiently addressed by the DART, making his 2023 complaint an “excluded complaint” under the Regulations.

Orders

Orders of the court

1. The amended originating application is dismissed.

2. The Respondent is to advise the Court and the Applicant by 14 May 2024 if he seeks a costs order.

3. If the Respondent seeks a costs order, the parties are to file written submissions limited to two pages by 21 May 2024 following which costs will be determined on the papers.

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

Background

Background to the litigation

I will return in due course to the detail concerning the 2013 complaint, but the short point behind Mr Knight’s contention that that complaint had not been “dealt with” by the DART was that it was put on hold at some point, and then the responsible Ministers directed the DART not to make reparation payments to certain persons, including persons convicted of a “serious crime”, being one with a maximum sentence of over 10 years. Mr Knight was then advised by the DART that he was therefore ineligible for a reparation payment under the Scheme. Mr Knight contended that the Decision constituted an improper exercise of the power conferred on the Respondent, and/or involved an error of law for the purposes of s 5(1)(e) and (f) of the ADJR Act.Facts Mr Knight was a junior staff cadet at the Royal Military College, Duntroon, between 13 January 1987 and 10 July 1987. Mr Knight was subjected to what he described as “various and constant acts of ‘bastardization’ by senior staff cadets” and was physically injured on three occasions by senior staff cadets, while he was a junior staff cadet at Duntroon. After an altercation with his cadet Company Sergeant Major in a Canberra nightclub on 31 May 1987, Mr Knight was issued a “show cause” notice by the Duntroon Board of Study on 3 June 1987. Mr Knight tendered his resignation on 18 June 1987. On 9 August 1987, Mr Knight was arrested in Melbourne following his commission of a mass shooting, known as the “Hoddle Street shootings”. Mr Knight pleaded guilty to seven counts of murder and 46 counts of attempted murder. On 10 November 1988, Mr Knight was sentenced to life imprisonment, with a minimum non-parole term of 27 years. However, s 74AA of the Corrections Act 1986 (Vic) has the effect of preventing the Adult Parole Board from ordering that Mr Knight be released other than in limited circumstances, effectively removing the possibility of parole. On 26 November 2013, Mr Knight made the 2013 complaint. In making that complaint, he submitted a detailed — 94 page — narrative detailing his experiences at Duntroon, and applied for a reparation payment. The form Mr Knight filled out included, as question 68, “What, if anything, would you like from the Taskforce?”. Nothing was noted by Mr Knight in answer to that question. Mr Knight provided additional information by several further letters. Mr Knight also completed a one page “Application for Reparation Payment Form”, a copy of which was provided to the Court following the hearing of this matter. The Respondent confirmed he did not object to this document being admitted into evidence. In a letter dated 1 September 2014, Mr Knight asked for an update as to the stage the DART was at in processing his “Personal Account and [his] Application for Reparation Payment”. From these materials, it is not apparent that Mr Knight sought, or expressed any interest in, responses other than a reparation payment (such as counselling or a restorative engagement conference).

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

The focus of Mr Knight’s application is a decision of the Respondent dated 21 March 2023, which was conveyed to Mr Knight by letter dated 21 March 2023 (the Decision). The gravamen of the Decision was that the detail and substance of Mr Knight’s report dated 16 March 2023 (the 2023 complaint) was substantially the same as the report he made to the Defence Abuse Response Taskforce (the DART) dated 26 November 2013 (the 2013 complaint). The Respondent stated in the letter dated 21 March 2023 that “[u]nder the Ombudsman Regulations 2017 … a report which is the same [in] substance as a report made under the DART is considered an excluded complaint” and, on that basis, told Mr Knight that his 2023 complaint could not be assessed. Mr Knight takes a different view and contended that the term “dealt with” is to be construed in a particular manner (addressed further below) and that his 2013 complaint had not been “dealt with”, and his 2023 complaint was therefore not an “excluded complaint”. That contention was advanced principally on the basis that the DART had not considered and determined whether outcomes other than a reparation payment should be made available to Mr Knight. As I will explain, Mr Knight was rendered ineligible for a reparation payment due to a decision taken at the Ministerial level to exclude (ultimately) Mr Knight and two other complainants who had been convicted of a serious crime. Mr Knight fell into that category because, in 1988, he pleaded guilty to seven counts of murder and 46 counts of attempted murder, and was later sentenced to life imprisonment in respect of each count of murder. The DART was a taskforce established on 26 November 2012 by the then Attorney-General and Minister for Defence to respond to complaints of sexual and other forms of abuse by Defence personnel prior to 11 April 2011. The DART was established as an executive body as part of the Government’s response to an independent review into allegations of abuse in Defence. The Scheme was governed by guidelines issued by the Government on 10 April 2013 (the Guidelines). The Guidelines addressed the making of reparation payments. They stated that the purpose of the Scheme was to “establish a mechanism by which a monetary payment may be made by the Department of Defence to persons who in the opinion of the Reparation Payments Assessor may have, plausibly, suffered abuse whilst employed in Defence” (cl 1.5.1). As a matter of practice, where a complaint was within the DART’s Terms of Reference, and met the evidentiary threshold of “plausibility”, the available outcomes were not confined to the making of a reparation payment, but included one or more of: a one-off reparation payment of up to $50,000; referral for free counselling; participation in the restorative engagement program; referral of matters to civilian police; and referral to the Chief of the Defence Force (CDF) for administrative and/or disciplinary sanction or management action. Outcomes other than the making of a reparation payment were referred to by the parties, and are referred to in these reasons, as other outcomes.

Ratio Decidendi

Legal Principle Established

In response, Mr Knight took issue with the Respondent’s submissions that the enquiry did not call for a direct response and was answered by the terms of the new decision. He said further that:(a)his correspondence and litigation were directed to reparation because that was the only outcome in respect of which he had received a determination;(b)again, while there may have been some internal consideration of other outcomes, he was not consulted about them; and(c)the DART’s internal reconsideration processes were directed towards whether the complaint was accepted or the range and extent of the outcomes provided, and that he did complain about the one outcome he was informed of (being reparation).Consideration of the “dealt with” issues In my view, the expression “dealt with”, as it is used in the definition of “excluded complaint” in the Regulations, does not bear the meaning contended for by Mr Knight. In particular, it does not, properly construed, require that the DART have made a specific determination about each of the full range of potential outcomes that may be offered to a complainant whose complaint meets the thresholds established under the Scheme. That conclusion arises from the ordinary and natural meaning of the expression and the relevant historical and legislative context. The principles of construction applicable here are well settled and not controversial. They do not need extensive repetition here. The key principles to be applied to the present application are as follows:(a)The starting point in construing a statutory provision is the text of the statute itself. At the same time, however, regard must be had to its context and purpose: SZTAL v Minister for Immigration and Border Protection (2017) 262 CLR 362; [2017] HCA 34 at [14] (Kiefel CJ, Nettle and Gordon JJ); see also at [37]–[39] (Gageler J).(b)Where a term is not defined in the legislation, its ordinary and natural meaning, understood in context, must be considered: WACB v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 210 ALR 190; [2004] HCA 50 at [37] (Gleeson CJ, McHugh, Gummow and Heydon JJ). In determining that meaning, it can be helpful to have recourse to dictionary definitions of the undefined phrase, but they are not conclusive: Polo/Lauren Company L.P. v Ziliani Holdings Pty Ltd (2008) 173 FCR 266; [2008] FCAFC 195 at [24] (Black CJ, Jacobson and Perram JJ). In other words, a fortress must not be made out of the dictionary: Cabell v Markham (1945) 148 F 2d 737 at 739 (Judge Learned Hand), endorsed in Thiess v Collector of Customs (2014) 250 CLR 664; [2014] HCA 12 at [23] (French CJ, Hayne, Kiefel, Gageler and Keane JJ).(c)The settled principles of statutory construction apply equally to the construction of regulations. In this regard, Gordon, Edelman, Steward and Gleeson JJ held in ENT19 v Minister for Home Affairs (2023) 410 ALR 1; [2023] HCA 18 at [86] that (citations omitted): Regulations are to be construed according to the ordinary principles of statutory construction. The starting point for the ascertainment of the meaning of a provision is its text, while at the same time regard is to be had to its context and purpose. Of course, the statutory context of regulations includes the Act under which the regulations were made and are sustained. Context should be regarded at the first stage and not at some later stage and it should be regarded in its widest sense, including by reference to legislative history and extrinsic material.