Knight v Commonwealth Ombudsman

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.

MCELWAINE J: 1 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. 2 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] AATA 2504 (Tribunal decision). In support of his application, Mr Knight relies upon his affidavit made on 14 November 2022. In it he commences with a summary of the background facts which are not in dispute. Broadly, Mr Knight claims to have been the subject of physical and psychological abuse during the period that he attended the College. In November 2012, the Australian government established the Defence Abuse Response Taskforce (Taskforce), with authority to consider historical abuse claims within the ADF and to authorise reparation payments of up to $50,000 if it found a complaint to be plausible. 3 On 26 November 2013, Mr Knight submitted an application to the Taskforce based on his treatment at the College. On 13 January 2015, his claim was assessed and found to be plausible. However, Mr Knight did not receive any payment from the scheme for the reason that in June 2015, the responsible Minister directed the Taskforce not to make reparation payments to incarcerated complainants. The operation of the scheme was explained by Bromberg J in dismissing Mr Knight's application for judicial review concerning that direction: Knight v Commonwealth of Australia [2016] FCA 1160. 4 The present complaints of Mr Knight concern two freedom of information requests submitted to the Department of Defence on 14 and 21 August 2016 pursuant to the Freedom of Information Act 1982 (Cth). Mr Knight sought access to documents that had been considered by the Taskforce in assessing his application, including copies of written complaints from other members of the ADF in relation to alleged mistreatment at the College. In response, certain documents were provided, but with redactions. Mr Knight unsuccessfully sought review of the redaction decisions by application to the Australian Information Commissioner. The reasons of the Commissioner on each application were published on 31 August and 4 October 2017: Julian Knight and Attorney-General's Department (Freedom of Information) [2017] AICmr 79 (31 August 2017) and Julian Knight and Commonwealth Ombudsman (Freedom of Information) [2017] AICmr 94 (4 October 2017). From those determinations, Mr Knight made separate review applications to the Tribunal. The applications were consolidated and heard together. Mr Knight appeared remotely before the Tribunal at a hearing on 3 May 2021. He gave evidence in the form of various affidavits and made submissions. 5 The Tribunal dismissed each review application for the reasons that it published in the Tribunal Decision. There is no precise evidence as to when Mr Knight first received a copy of the decision of the Tribunal. It is clear however that he did receive it prior to 8 August 2021 when, on that day, he sent hand written correspondence to the Registrar of this Court. His letter reads: Dear Registrar, Please be advised that I wish to appeal parts of the decision of the AAT (FOI division) in Knight v Commonwealth Ombudsman (File Nos 2017/5456 and 2017/6279) handed down on 26 July 2021. I would appreciate it if you would send me templates of the forms necessary to file an appeal against an FOI decision of the AAT. Please not also note that I am currently in a prison management unit without access to computer facilities, so I may not be able to file my proposed appeal within any statutory time limit for lodging appeals. In relation to the swearing of affidavits and current Covid-19 restrictions, would you please advise whether it is possible for you to witness the swearing of affidavits remotely (i.e. over a video link). Thank you for your assistance. 6 Mr Knight does not give evidence as to what, if any, response he received from the Registrar. He does, however, reference a different proceeding that he has commenced against the State of Victoria relating to his imprisonment which together with "this proceeding" he explains has been delayed: [D]ue to my self-representation, and as a direct result of my lack of access to computer and printing facilities and to legal resources (e.g. prisoners do not have access to the Internet). For instance, I have sometimes only had access to prison computer facilities on a monthly basis (I do not have access to my own computer). In relation to printing facilities, I was unable to have documents printed between 20 June 2022 and 31 October 2022. These issues are already the subject of interlocutory proceedings before the Honourable Justice Anderson in the proceeding Knight v G4S Custodial Services Pty Ltd & State of Victoria. That prayer for interlocutory relief is currently awaiting a listing for hearing. The continuing problem of my lack of access to reasonable facilities has been compounded by repeated lockdowns of Port Phillip Prison since March 2020 due to Covid-19 and to violent incidents in the prison. 7 The respondent does not challenge this evidence. Notably however, Mr Knight does not give any direct evidence which explains why he failed to file his notice of appeal from the Tribunal decision within the 28 day time period specified at s 44(2A) of the Administrative Appeals Tribunal Act 1975 (Cth) (AAT Act) or why he was not able to file his notice of appeal and his application for an extension of time until 23 December 2022. 8 The respondent opposes an extension of time. An extension may be granted "in the interest of justice" pursuant to s 44(2B) of the AAT Act. 9 On 22 March 2023, and at my direction, correspondence was sent by the Victorian registry to Mr Knight and the legal representative for the respondent inviting submissions as to whether the present application could be determined on the papers and by reference to written submissions. That procedure was agreed to. I have the benefit of the applicant's written submissions dated 8 May 2023 and for the respondent dated 9 June 2023. In considerable detail, Mr Knight in his submissions addresses the contended errors of law that he seeks to agitate upon his appeal. He makes no submissions about what is, presently, the threshold issue being the exercise of my discretion to grant an extension of time for the filing of his notice of appeal. The respondent's submissions address in detail the history of the matter, the grounds of review relied upon by Mr Knight before the Tribunal, the asserted errors of law and the question of delay. 10 In my view it is only necessary to address the length of the delay and whether Mr Knight has provided any adequate explanation. The principles that guide the exercise of the discretion to grant an extension of time are well-settled. They were conveniently summarised by Colvin J in VXQB v Child Support Registrar [2021] FCA 48 at [28]-[32]: Where the Court is entrusted with a discretion to grant an extension of time within which to bring an appeal certain principles are generally recognised as providing guidance as to how such a discretion should be exercised: Norbis v Norbis (1986) 161 CLR 513 at 519 (Mason and Deane JJ), 537 (Brennan J). Subject to any specific provision in the statute conferring the right to appeal, provisions that confer power on the Court to extend the time for an appeal require an evaluation to be made as to where the interests of justice lie in the circumstances of the particular case. Recognising that the nature of that power is not to be confined by judicial elaboration or refinement in particular cases, reference is often made to the relevance of the principles set out in Hunter Valley Developments Pty Ltd v Cohen, Minister for Home Affairs and Environment (1984) 3 FCR 344 at 348-349 which were summarised by Perry J in Jamal v Secretary, Department of Social Services [2017] FCA 916 at [11] in the following terms: (1) An extension of time will not be granted unless the Court is positively satisfied that it is proper to do so. (2) The applicant must show an acceptable explanation of the delay and that it is fair and equitable in the circumstances to extend time. (3) Any prejudice to the respondent is a material factor militating against the grant of an extension, although the absence of prejudice does not, without more, suffice to justify the grant of an extension of time. (4) The merits of the substantive appeal, if leave were granted, are properly to be taken into account. In evaluating whether there is sufficient merit in a point for the purpose of considering whether to allow an application for an extension of time, the merits are to be assessed in a fairly rough and ready way and in most cases will be based upon the statement of the applicant's case: Jackamarra v Krakouer (1998) 195 CLR 516 at [9]. It is not an occasion where the parties are expected to present elaborate arguments. Therefore, both parties should approach the application accordingly. It follows that an applicant who has quite properly confined its submissions on the extension of time application to stating the nature of the case that it wishes to present should not be deprived of an opportunity to present more detailed argument by a refusal of an extension for the reason that the case lacks merit based on a more elaborate assessment. For that reason it has been said that the task of the Court on such applications is to determine where the best interests of justice lie and in doing so proposed grounds should be evaluated at a reasonably impressionistic level: MZABP v Minister for Immigration and Border Protection [2015] FCA 1391; (2015) 242 FCR 585 at [62] (upheld on appeal MZABP v Minister for Immigration and Border Protection [2016] FCAFC 110); and as applied in Singh v Minister for Immigration and Border Protection [2017] FCAFC 195 at [21]; and Guo v Minister for Immigration and Border Protection [2018] FCAFC 34 at [27]. It is unlikely to be in the interests of justice to grant an extension of time where an appeal would have little or no prospects of success, given the additional resources that would impose upon the parties and Court, and the impact on other Court users: see at first instance in MZABP at [62] (approved on appeal at [38]). 11 Mr Knight's application fails at the second hurdle in that he provides virtually no evidence which explains the very considerable delay between the making of the Tribunal decision on 26 July 2021 (there being no doubt that he had it by at least 8 August 2021) and his failure to lodge an appeal within 28 days thereafter, save for the fact that as at 8 August 2021 he was unable to access computer facilities in order to obtain an electronic version of a notice of appeal. Although he foreshadowed in his letter to the Registrar that by reason of that difficulty he may not be able to file an appeal within time, he does not in his affidavit state how long that difficulty persisted. To the extent to which he touches on the question of delay in his affidavit, his explanation is limited to the fact that prisoners do not have access to the Internet, although "sometimes" monthly he does have access to "prison computer facilities". He does not go further by explanation of what period is "sometimes" or how frequently within the relevant period he did have computer access. He offers no explanation as to why, for example, he was unable to prepare a hand written notice of appeal which document he could have filed by post pursuant to r 2.21(1)(b) of the Federal Court Rules 2011 (Cth). Nor does Mr Knight offer an explanation as to how he was able to access the required forms for an application to extend time, a notice of appeal from the Tribunal and a supporting affidavit, each of which were obviously computer generated and filed by him in December 2022. 12 There are other omissions in Mr Knight's evidence that relate to the very substantial period of delay from expiry of the initial 28 day period to the ultimate filing of his application to extend time on 23 December 2022 - a period of 16 months. The only explanation offered by Mr Knight for delay within that period concerns an inability to have documents printed between 20 June 2022 and 31 October 2022 together with his evidence that he only "sometimes" had access to prison computer facilities on a monthly basis. He does not descend to any particularity by way of plausible explanation when, clearly, he knew there was a time limit. 13 In the often cited decision of Wilcox J in Hunter Valley Developments Pty Ltd v Cohen (1984) 3 FCR 344 at 348, his Honour said: It is a pre-condition to the exercise of discretion in his favour that the applicant for extension show an "acceptable explanation of the delay" and that it is "fair and equitable in the circumstances" to extend time (Duff at 485; Chapman v Reilly unreported (Federal Court of Australia, Neaves J., 9 December 1983) at 7) 14 That statement must now be read in light of the Full Court decision in Comcare v A'Hearn (1993) 45 FCR 441 where the Court ( Black CJ, Gray and Burchett JJ) at 444 said: Although it is to be expected that such an explanation will normally be given, as a relevant matter to be considered, there is no rule that such an explanation is an essential pre-condition. 15 In this matter the delay is very substantial and unexplained for the most part. The applicant was clearly aware, during the initial 28 day period, that a time limit may be applicable to the filing of any appeal from the Tribunal decision. Although the applicant has provided some explanation as to his initial difficulty in filing a notice of appeal before the expiry of the 28 day period from publication of the Tribunal decision, he has failed to address why he could not have filed some form of hand written notice of appeal before expiry of that period. It is even more unsatisfactory that the applicant has chosen not to address why he was unable to make an application to extend time within the 16 month period between September 2021 and December 2022. Whilst I accept that the fact of incarceration within this period presented some difficulties for the applicant, when compared to other litigants, that fact alone fails to explain the very substantial period of delay. Although the respondent does not assert any prejudice by reason of the delay, that fact of itself is not sufficient to enliven my discretion. 16 On the paucity of material presented by the applicant, I am not positively satisfied that it is proper to grant an extension of time. The evidence is insufficient for me to make findings of fact in order to be satisfied that it is in the interests of justice that the extension sought by the applicant be granted in this case. That factor is so significant in the exercise of my discretion that I need not give consideration to the question whether any of the proposed grounds of appeal have merit. It goes to the fundamental question of why the applicant should be permitted to agitate an appeal, despite expiry of the appeal period, where he has failed to offer any adequate explanation for his delay and where evidence relevant to an explanation is entirely within his knowledge. 17 Accordingly, I order as follows: