Fitzwarryne v Commonwealth Ombudsman

Introduction 2 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 received by the Court. When I asked Mrs Fitzwarryne to see if she could email that material, she declined and said that her husband wished to have the matter proceed on the basis of what was before me. 3 The trial judge heard the application on 6 June 2022. That occurred after I had made a consent order in 2021 setting aside the decision of a judge of the Federal Circuit Court, as it then was (Fitzwarryne v Commonwealth Ombudsman [2020] FCCA 1696), on the basis that Mr Fitzwarryne had not received procedural fairness. 4 The trial judge based his decision on two grounds, first, Mr Fitzwarryne was well out of time to seek judicial review when he lodged his application under the ADJR Act in the Federal Circuit Court on 15 July 2019; and, secondly, the conduct of the Commonwealth Ombudsman, the respondent, complained of did not comprise a decision or other conduct that was capable of being reviewed under the Act. 5 Mr Fitzwarryne complained of three possible decisions that the Ombudsman had made which he argued were capable of review, namely: (1) the decision of the Ombudsman on 21 October 2014 , after further investigation, to finalise Mr Fitzwarryne's complaint about the Australian Sports Commission, and an earlier review by an officer of the Ombudsman in relation to that complaint, because the Ombudsman by his delegate could not identify any better outcome that realistically could be achieved through further investigation (the 2014 letter); (2) the decision of the Ombudsman made on 6 October 2017 that no further action would be taken in relation to the matter because Mr Fitzwarryne's previous complaint had been thoroughly assessed and reviewed by two experienced investigation officers of the Ombudsman (the 2017 letter); and (3) the decision of 28 September 2018 to reject Mr Fitzwarryne's application of 28 August 2018 for a statement of reasons for the earlier decisions that the Ombudsman communicated by the detailed 2014 and 2017 letters (the 2018 letter).

The 2014 Letter 6 In the 2014 letter, the Ombudsman informed Mr Fitzwarryne that there was no power to deal with any complaint about Yachting Australia, or its conduct, and that the Ombudsman's jurisdiction was only over Commonwealth Government agencies, such as the Commission. The 2014 letter informed Mr Fitzwarryne that the role of the Ombudsman was to assess whether the agency had acted consistently with its legislative and procedural obligations in all of the circumstances. It stated that, after reviewing the funding agreement that Yachting Australia had with the Commission, the officer was satisfied that it did not give the Commission a more interventionist role than outlined by another officer who had corresponded with Mr Fitzwarryne earlier. The 2014 letter stated that, under a funding agreement, the Commission could expect a sporting body to design and implement a member protection policy but that disputes relating to the rules of a sport remained for the individual body to resolve within the framework of its policy. The Ombudsman found that the Commission had checked whether the dispute had been settled using Yachting Australia's member protection policy. The Ombudsman stated that the fact that one party remained disappointed with its outcome did not mean that the process was unreasonable, or that the Commission had a greater power to intervene. The 2014 letter referred to further information that the Commission had provided to the Minister, including the requirement for Yachting Australia to implement a policy, that the Commission was not a regulatory body and that sporting disputes had to be addressed by the relevant funded body, such as Yachting Australia, within its policy, and that the Commission had sought advice from Yachting Australia about how it had handled the issue. The 2014 letter stated: On the information available, none of these points are untrue or unreasonable in light of the circumstances. We cannot be critical of the information the ASC passed to the Minister's office. As I cannot identify any better outcome we can realistically achieve through further investigation, at this point we have finalised your complaint. (emphasis added) 7 It is not necessary to summarise the 2017 or 2018 letters here.

Delay 8 Even if Mr Fitzwarryne's complaint or one of them could be characterised as flowing from the 2018 letter seeking a statement of reasons, that occurred nearly 10 months after the 2017 letter had informed him that the Ombudsman would not further consider his complaint. 9 Under s 11(1)(c) of the ADJR Act, an application to, relevantly, the then Federal Circuit Court had to be lodged with the registry of the Court in relation to a decision that had been made and the terms of which were recorded in writing and set out in a document furnished to an applicant within the prescribed time fixed under s 11(3) or such further time as the Court allowed. Relevantly, s 11(3) provided: (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 and gives the reasons for the decision - the day on which a document setting out the terms of the decision is furnished to the applicant; or (b) in a case to which paragraph (a) does not apply: (i) if a statement in writing setting out those findings, referring to that evidence or other material and giving those reasons is furnished to the applicant otherwise than in pursuance of a request under subsection 13(1) not later than the twenty-eighth day after the day on which a document setting out the terms of the decision is furnished to the applicant - the day on which the statement is so furnished; (ii) if the applicant, in accordance with subsection 13(1), requests the person who made the decision to furnish a statement as mentioned in that subsection - the day on which the statement is furnished, the applicant is notified in accordance with subsection 13(3) of the opinion that the applicant was not entitled to make the request, the Federal Court or the Federal Circuit and Family Court of Australia (Division 2) makes an order under subsection 13(4A) declaring that the applicant was not entitled to make the request or the applicant is notified in accordance with subsection 13A(3) or 14(3) that the statement will not be furnished; or (iii) in any other case - the day on which a document setting out the terms of the decision is furnished to the applicant. (emphasis added) 10 Thus, on any view, even if each of the 2014 and 2017 letters, which set out what the Ombudsman had concluded and found, in the course of reviewing, respectively, Mr Fitzwarryne's complaint and request for reconsideration, did not amount to a sufficient statement of reasons, the 2018 letter explained why, in the exercise of his discretion under s 13(5), the Ombudsman refused to provide any further reasons, namely that Mr Fitzwarryne's 2018 request had not been made within a reasonable time after the earlier two decisions had been made and, in any event, within 28 days after the 2017 letter. 11 On 7 September 2022, Mr Fitzwarryne filed the application for an extension of time. That was dated 19 July 2022 in which he noted that he did not intend to serve the Ombudsman with it. In his affidavit for an extension of time, he asserted that he had completed his notice of appeal and signed it on 15 July 2022 but that, on 19 July 2022, the Court advised him that he had lodged the wrong form, being form 15, and should have used form 121. He asserted that he immediately used the correct form and, on 19 July 2022, resubmitted it to the Court's registry, when he was then advised that he had had to file a notice of appeal within 28 days after the judgment appealed against had been given, not the date of authentication set out in the published reasons for judgement. Mr Fitzwarryne asserted that, being well into his late 80s, because of "substantial stress trying for twelve years to obtain justice from the defamation published on 17 August 2010", he had suffered a major incident on September 2021 requiring his hospitalisation from which he had not yet fully recovered, causing him to lose mobility and hearing and much of his vision. He asserted numerous matters about the circumstances leading to his initial complaint to the Ombudsman that generated the proceedings before the Federal Circuit Court. 12 However, Mr Fitzwarryne gave no reason at all as to why it took him from 19 July 2022 until 7 September 2022 to file with the Court the application for an extension of time, being a delay of a further one and a half months. That was in the circumstances where Mr Fitzwarryne was bringing the application for an extension of time against the trial judge's decision that he had not made out a case for being granted an extension of time in the Federal Circuit Court which to seek judicial review under the ADJR Act of the decisions of which he complains. 13 As I have noted, the trial judge found that the application below was incompetent.

The basis for this application 14 The underlying grievance which Mr Fitzwarryne seeks to agitate appears in its most recent emanation in a document that he has not filed with the Court but which he sent to the Ombudsman on 5 January 2023, headed 'Revised Notice of Appeal to the Federal Court' (the revised notice of appeal). It repeats much of his earlier contentions but includes new information that I infer he wishes that I consider, as I have. 15 On 23 January 2023, the solicitor for the Ombudsman informed Mr Fitzwarryne that that document had been received and noted that the revised notice of appeal had not been filed. She said, "We encourage you to file a copy of that document to ensure it is before the Court at the hearing on 15 February 2023", and provided further information on how to file documents in the court by a hyperlink to the letter. 16 The revised notice of appeal is a lengthy document containing assertions, arguments and claims with no attempt to formulate any ground of error in the trial judge's reasons or any basis from which a ground of appeal can readily be discerned. 17 It commenced with statements that a Mr Neil Brown owned a sailing boat called Alcheringa and that, at all times, Mr Brown ensured that the boat complied with all applicable rules and regulations while being raced in the Australian Capital Territory. 18 Mr Fitzwarryne's real complaint is, or centres around, that he claimed that, on 17 August 2010, Yachting Australia had published on its website that Alcheringa had been reclassified, from 1 August 2010, as having been individually modified and had been given an increased handicap rating which he said "implied Mr. Neil Brown had not 'competed in compliance with the recognised principles of sportsmanship and fair play'". He asserted that it was not possible for Mr Brown to lodge a complaint under the policy because the sport services manager of Yachting Australia had claimed there was no record of who had made the decision about the publication and change of handicap. 19 Mr Fitzwarryne complained that, as a result of his agitations, in November 2012, the Commission began an investigation into whether Yachting Australia had complied with the sports investment agreement under which it received funding from the Commonwealth. He said that, in April 2013, the Commission had reported to the then Minister for Sport, Senator the Hon Kate Lundy, in response to her inquiries that the matter had been dealt with appropriately in accordance with the respective rules of Yachting Australia. However, Mr Fitzwarryne complained that the Commission had failed to investigate independently whether the rules of Yachting Australia had been observed. 20 The revised notice of appeal asserted that the Ombudsman had a function under s 5(1) of the Ombudsman Act 1976 (Cth) to investigate actions of a Commonwealth department or agency and that he had complained to the Ombudsman in February 2014 "to seek justice for Mr. Neil Brown" because the Commission had provided an inappropriate response to Minister Lundy when she requested information about the handicapping issue. 21 He complained that the decision of a delegate of the Ombudsman, the subject of the 2014 letter, amounted to a failure to investigate compliance with Yachting Australia's rules and incompetency in asking the Commission for a copy of the sports investment agreement. 22 He also complained that the 2017 letter gave rise to a grievance because "[i]f the Investigation Officers had acted competently, they would have quickly noted that none of the [relevant requirements] for reclassification or rerating had occurred", and that the decisions about which the Minister had inquired in 2013 were invalid. He complained that the Ombudsman's delegates had investigated the wrong issue, "not whether the [Commission] had given Minister Lundy an inappropriate response", but, rather, if they had reported correctly, they would have informed the Minister that the rules of Yachting Australia in the relevant respects had not been followed. 23 He asserted that the ADJR Act applied and that he was a person aggrieved because Mr Brown had requested him "to obtain justice through the Commonwealth Ombudsman" who had, through "lack of care and diligence", "unfairly rejected" his complaint and failed to comply with his obligations under the Public Service Act 1999 (Cth). 24 He complained that he could not attend the hearing on 6 June 2022 as to the competency of his application, which the trial judge decided on 21 June 2022, due to his medical condition, but had set out in a statutory declaration of 31 May 2022 what he thought was evidence. He complained that the trial judge "failed to state what he thought the Applicant was seeking and why to grant justice to Mr. Neil Brown was against the law". He asserted that the "defamatory publication of 17 August 2010 should have been retracted [scil: redacted] with an apology. However, this did not happen", and "in an attempt to secure justice for Mr. Neil Brown, a true sportsman, in February 2014 I lodged a complaint with the Commonwealth Ombudsman concerning a Government agency failing to 'act with integrity and treat people fairly'". 25 He asserted that the "evidence" showed that: Mr Brown owned Alcheringa, and had been defamed in August 2010 by the publication on Yachting Australia's website and all attempts to have that publication retracted and his reputation restored had failed, which he, Mr Fitzwarryne, had been "pursuing justice without being able to afford legal representation ever since"; and the decisions concerning Alcheringa "were unauthorized, invalid and incorrect" and, therefore, the Commission had not acted fairly and reasonably because it had misinformed the Minister, so that his Honour was in error in dismissing the application. 26 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 27 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. 28 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. 29 I am not satisfied that he was unaware of the hearing today and that he has not had proper notice of the hearing. 30 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. 31 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. 32 Mr Fitzwarryne's affidavit in support of the extension of time reveals that he was substantively ready to file the appeal on 19 July 2022. There is no explanation whatever in that affidavit as to why he failed to lodge the documents electronically with the Court until 7 September 2022. 33 The Ombudsman accepts that, other than losing the benefit of the vested right to retain the benefit of the orders made by the trial judge on 21 June 2022, he would suffer no prejudice if an extension were given. Nonetheless, the Ombudsman contends that no basis for granting the extension appears in any of the material Mr Fitzwarryne has put before the Court. I agree. In addition, I do not consider that there is any reason to doubt the correctness of the decision of the trial judge. 34 Mr Fitzwarryne's application under the ADJR Act to the Federal Circuit Court was lodged well out of time in respect of each of the three matters which he may have claimed could be characterised as a decision that might potentially be reviewable under that Act. The trial judge was correct to find that Mr Fitzwarryne had not applied for an extension of time in which to commence the proceedings under s 11 of the ADJR Act, or in accordance with what is now r 27.03 of the Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (the 2021 Rules), or its analogue r 42.03 in the Federal Circuit Court Rules 2001 which provided: 42.03 Application for extension of time (1) A person who wants to apply for an extension of time within which to lodge an application for an order of review under paragraph 11(1)(c) of the AD(JR) Act must file an application for an extension of time, in accordance with the approved form. (2) An application for an extension of time must be accompanied by: (a) an affidavit stating: (i) briefly, but specifically, the facts on which the application relies; and (ii) why the application was not filed within time; and (b) a draft application that complies with rule 42.02. (emphasis added) 35 Under r 1.07 of the 2021 Rules, the trial judge could have dispensed with compliance with those rules in the interests of justice. Mr Fitzwarryne did not seek for the Court below to do so, and it is difficult to discern any basis as to why it should have, where he was on notice of what the problem with his application was. He was aware that he required an extension of time and that the trial judge was dealing with an objection as to competency because he did not have, and had not sought, one. He did not provide any intelligible basis as to why he had delayed so long in bringing his proceeding below, even if one took as the foundation of his claim for judicial review the Ombudsman's refusal to provide any further reasons in September 2018. 36 Moreover, in my opinion, it is pellucid that in the 2018 letter the Ombudsman provided adequate reasons and findings of fact for the exercise of his discretion not further to investigate a complaint under s 6(1)(b)(iii) of the Ombudsman Act which provides: (1) Where a complaint has been made to the Ombudsman with respect to action taken by a Department or by a prescribed authority, the Ombudsman may, in his or her discretion, decide not to investigate the action or, if he or she has commenced to investigate the action, decide not to investigate the action further: … (b) if, in the opinion of the Ombudsman: … (iii) an investigation, or further investigation, of the action is not warranted having regard to all the circumstances. 37 In my opinion, it is impossible to discern any arguable basis on which the Ombudsman erred in the exercise of the discretion conferred by s 6(1)(b)(iii), and, therefore, it is difficult to see what it is that was reviewable under the ADJR Act. 38 In addition, the trial judge correctly concluded that Mr Fitzwarryne had not identified how any of the three decisions which appear to have been the subject of his complaint about the Ombudsman's performance of his functions under the Ombudsman Act gave rise to any legal right or obligation attracting any capacity in Mr Fitzwarryne to complain under the ADJR Act as a person aggrieved by a decision under the Ombudsman Act within the meaning of s 5(1) of the ADJR Act. In particular, Mr Fitzwarryne had not identified what error in the performance of his functions the Ombudsman made, as opposed to expressing a mere disagreement with each decision on the merits. 39 The trial judge was correct to find that Mr Fitzwarryne had not identified a legal right or obligation or other identifiable interest sufficient to evidence his status as a person aggrieved: Griffith University v Tang (2005) 221 CLR 99 at 130-131 [89]-[90] per Gummow, Callinan and Heydon JJ. Their Honours said that the determination of whether a decision was made under an enactment involved two criteria, namely, first, whether the decision was expressly or impliedly required or authorised by the enactment, and, secondly, that the decision itself had to confer, alter or otherwise affect legal rights or obligations, and, in doing so, had to derive from the enactment. 40 The Ombudsman's functions were to investigate complaints under s 4(2) and to perform such other functions as conferred on him by the Ombudsman Act. Section 5(1)(a) created a function that, subject to the Act, the Ombudsman had to investigate action, being action that related to a matter of administration taken by, relevantly, a prescribed authority, such as the Commission, in giving advice to a Minister, and in respect of which a complaint had been made. But, critically, the Ombudsman Act gave the Ombudsman a power under s 6(1)(b)(iii) to form an opinion in his discretion not to investigate the action further where investigation or further investigation was not warranted having regard to all the circumstances. 41 No legal right or obligation of Mr Fitzwarryne was in play in the Ombudsman's determinations of the complaints. Moreover, as Mr Fitzwarryne's revised notice of appeal made clear, as had the original notice of appeal, he was seeking to agitate some grievance he perceived that Mr Brown (not Mr Fitzwarryne) to have had about Yachting Australia's decisions, and some asserted defamation of Mr Brown, again not of Mr Fitzwarryne. I am unable to see any basis on which it could be concluded that the trial judge made an error in concluding that the funding agreement, which Mr Fitzwarryne asserted was the real source of his complaint, or any other subject that Mr Fitzwarryne raised, gave rise to any legal rights or obligations of or affecting Mr Fitzwarryne. 42 In my opinion, there is no reason to doubt the correctness of the decision of the trial judge to dismiss the proceeding below for want of jurisdiction. I am also not satisfied that any, let alone any substantial, injustice would be caused by refusing to extend the time for Mr Fitzwarryne to file an appeal in this Court.

Conclusion 43 In my opinion, the proposed appeal the subject of the application for an extension of time was incapable of succeeding. The application for an extension of time must be dismissed. 44 I note that the Ombudsman does not apply for an order for costs. I certify that the preceding forty-four (44) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Rares.