INTRO: This is the fifth article of a series of five articles concerning Mr Knight’s legal case challenge of 2023 against the Australian Government’s Defence Force Ombudsman due to its failure in due process of Mr Knight’s legitimate reparations claim in 2013 for the Defence abuse he suffered at Duntroon in 1987.

The outline of this case is provided in the following webpage article, which is filed on this website under the menu heading ‘legal-battles/knight-v-dfo-2023-2024/‘.

The related articles to this legal case in order are:

The Australia Government’s all powerful Defence Force Ombudsman (D.F.O.) represented by a King’s Counsel backed by a team of lawyers of the Australian Government Solicitor (AGS) firm, having bottomless pockets all funded by Australian taxpayers. Mr Knight being unable to obtain legal counsel, denied by the prison system a computer and Internet access, makes this another ‘David & Goliath’ contest.

PART 3 OF 3

Applicant: Mr Julian Knight

Political Prisoner of the Victorian Parliament since 8 May 2014

Incarcerated in maximum security of Port Phillip Prison

Date of Lodgement: 20 April 2023

Representation: Self-represented [legal counsel unattainable]

Respondent: Defence Force Ombudsman

A branch of the Commonwealth Ombudsman, a Department of the Australian Government

Representation: Tim M. Begbie KC, J. A. Lucas, Madisen Anne Scott

Australian Government Solicitors

Date Lodged: 16 February 2024 [Just 11 days before the Date of Hearing]

Registry: Federal Court of Australia (Victoria)

File Number: VID 364/2023

Date of Hearing: Monday, 4 March 2024 [Adjourned from 29 November by Applicant]

Respondent’s Paragraph #3

By application filed on 24 May 2023 , Mr Knight seeks mandamus and a declaration on the basis that his renewed complaint is not an ‘excluded complaint’.

In essence he argues that his original complaint was not ‘dealt with’ by the D.A.R.T. because it did not complete a process of finally determining all possible outcomes: see [29]-[38] of his Further Written Submissions dated 19 January 2024 (AS).

Other arguments raised by Mr Knight, which go to questions of whether the D.F.O. can or should take particular action in relation to his renewed complaint , are misconceived: the D.F.O. has not considered, and refused to take, any particular action; the D.F.O. has concluded that no such function is available under the Regulations.

Applicant’s Rebuttal #3h:

The Respondent here is repeating itself from its submission paragraph #2.

The Respondent makes a baseless assertion that Mr Knight’s two new complaints to the DFO in his letter of 16 March 2023 are somehow “misconceived”. It is incoherent and false.

In Mr Knight’s letter:

Fact 1: New Complaint #1

Fact 2: New Complaint #2

Quod erat demonstrandum!

Is the D.F.O. asserting back is white or that white is somehow black? The logical conclusion from the D.F.O.’s quick auto-rejection response to Mr Knight of 21 March 2023 is that the D.F.O. hasn’t even read Mr Knight’s letter, and indeed refuses to read it.

Applicant’s Rebuttal #3i:

It is correct that “the D.F.O. has not considered, and refused to take, any particular action”. Hence the justification or Mr Knight to escalate his complaint from the D.F.O. political QANGO to the Federal Court of Australia, aka proper Judiciary.

That “the D.F.O. has concluded that no such function is available under the Regulations” is a false conclusion. This comment by the Respondent is also vague. What part and section of the Ombudsman Regulations?

Applicant’s Rebuttal #3j:

No, Mr Knight’s two complaints are not the “same substance”. There is a stark difference between Mr Knight’s claim for reparations payment to the D.A.R.T. and his two new complaints to the D.F.O.

This has already been rebutted by the Applicant in the Applicant’s Rebuttals #1a, 1b, 1f, 1g, and 2a. For clarification to this Court, copy of Mr Knight’s original claim to the DART is also provided below on the following page.

Applicant’s Rebuttal #3k:

The Respondent’s constructed reliance upon the following statement is patently wrong.

The Respondent is again repeating its submitted paragraphs #1 and #3. These are fully rebutted by the Applicant in the Applicant’s Rebuttals #3d and #3e.

The D.A.R.T. had NOT “dealt with” Mr Knight’s claim. Both DART chairs went out of the way on multiple occasions to contrive ministerial denial of Mr Knight’s claim for reparation payment.

Further Mr Knight’s claim was not a complaint.

Copy of Mr Knight’s original claim form to the D.A.R.T. dated 26 November 2013

Respondent’s Paragraph #4

“To succeed in this application Mr Knight must demonstrate two things.

First, he must make good his statutory construction argument that a complaint will only have been ‘dealt with’ if the D.A.R.T. had ‘completed’ its process by finally determining which of the various outcomes he should receive.

Second, if he succeeds on that construction point, Mr Knight must also show, as a matter of fact, that the D.A.R.T. had not completed that process.”

Applicant’s Rebuttal #4a:

Here the Respondent presumes it can flippantly direct and usurp the Federal Court’s Justice Button’s decision making.

The Respondent’s representative Mr Tim M. Begbie KC, may be a Kings Counsel, but he’s not a judge yet and not the presiding judge in this case.

Applicant’s Rebuttal #4b:

Again, this “dealt with” argument is fully rebutted by the Applicant in the Applicant’s Rebuttals #3d and #3e. The Respondent is repeating its submitted paragraphs here yet again.

The D.A.R.T. awarded Mr Knight no outcomes whatsoever. The D.A.R.T.’s rejection letter dated 26 May 2016 verifies as a matter of fact, that the D.A.R.T. had not completed that process. This is the key extract of letter to Mr Knight by the D.A.R.T’s then Executive Director Kirsty Windeyer:

Applicant’s Rebuttal #4c:

In is noted that letter, Kirsty Windeyer’s email contact details are located at ag.gov.au, being the Australian Government’s Attorney- General Office. The street address if that of the Australian Government Solicitor (AGS).

So, Kirsty Windeyer was simultaneously working for three organisations:

The D.A.R.T.
The AGS and
The Attorney-General.

So, a busy person. A perceive conflict of interest exists here.

Respondent’s Paragraph #5

“Neither argument can be made good. As to the first, a consideration of text, context and purpose denies Mr Knight’s construction.

‘Dealt with’ does not point to a need for some form of prescriptive, specific, final treatment of a complaint; it requires no more than that the complaint was in fact received and handled by the D.A.R.T.

As to the second, even if ‘dealt with’ did require the D.A.R.T. to complete a process of deciding what outcome or outcomes Mr Knight should receive, it can be seen that this occurred.”

Applicant’s Rebuttal #5a:

Again, this “dealt with” argument is fully rebutted by the Applicant in the Applicant’s Rebuttals #3d and #3e. The Respondent is repeating its submitted paragraphs here yet again.

The Respondent here is becoming pedantic and verbose in some obsession with the term “dealt with”.

Factually, the D.A.R.T. patently failed to deal with Mr Knight’s claim and provided no outcomes to Mr Knight, except for its outright rejection of his claim of a retrospective contrived basis that was outside its Terms of Reference.

Respondent’s Paragraph #6

PART II RELEVANT FRAMEWORK – THE D.A.R.T. ANO THE D.F.O.

“Before turning to Mr Knight’s substantive argument that the renewed complaint had not been ‘dealt with‘ by the D.A.R.T. it is first necessary to outline the functions of the D.A.R.T. and the subsequent conferral of related functions on the D.F.O.”

Applicant’s Rebuttal #6a:

Again, this “dealt with” argument is fully rebutted by the Applicant in the Applicant’s Rebuttals #3d and #3e. The Respondent is now descending into blathering.

Respondent’s Paragraph #7

“The D.A.R.T. was a time-limited executive body established on 26 November 2012 as part of the Government’s response to an independent review into allegations of abuse in Defence, alleged to have occurred prior to 11 April 2011: CB 574-575.”

Applicant’s Rebuttal #7a:

Yes, “the D.A.R.T. was a time-limited executive body established on 26 November 2012 as part of the Government’s response to an independent review into allegations of abuse in Defence, alleged to have occurred prior to 11 April 2011”.

Mr Knight’s proven historical abuse in Defence indeed occurred prior to 11 April 2011 during 1987 at RMC Duntroon.

Its’ charged outcomes…

“The DART was created to provide Defence personnel who have complained of physical abuse, sexual abuse, harassment or bullying, with an avenue for resolution through counselling, reparation payment, participation in a restorative engagement process and other more traditional means, such as administrative sanctions or criminal action.”

[SOURCE: Minister for Defence, Senator the Hon David Johnston, media release on the D.A.R.T. 26 November 2014, https://www.minister.defence.gov.au/media-releases/2014-11-26/minister-defence-defence-abuse-response-taskforce-report ]

For the convenience of this Federal Court of Australia, a full copy of this media release is reproduced below. The timing of this media release was during the 2 ½ years that the DART stalled with Mr Knight’s abuse claim. Mr Knights abuse claim had at that time still not been dealt with by the D.A.R.T.

The D.A.R.T. failed to provide claimant Mr Knight with an avenue for resolution through:

Counselling
Reparation payment
Participation in a restorative engagement process, and
Administrative sanctions or criminal action (against his assailants at RMC Duntroon).

The DART accepted Mr Knight’s abuse in Defence occurred. Mr Knight’s Defence abuse claim was deemed by the D.A.R.T.’s 8-page internal Assessment Note 13 January 2015 to be:

“Eligible”
“In Scope”
“Plausible”
“Multiple Physical Abuse”
“Multiple Workplace Harassment and Bullying”
“Serious”

However, in Mr Knight’s case the DART failed absolutely. It failed to respond to Mr Knight’s claim for some 2 ½ years.

The D.A.R.T. failed to comply with its Terms of Reference. It abrogated its charged responsibilities toward Mr Knight.

In Mr Knight’s case, the D.A.R.T. failed to work “tirelessly” nor demonstrated “empathy and compassion” toward Mr Knight. Rather it ignored him for the most part and then conspired to outright reject his claim and deny him any of these abuse resolution outcomes.

“The Government is determined to ensure that the Taskforce’s terms of reference be fully and independently discharged.”

The D.A.R.T. completely failed to ensure this in Mr Knight’s case.

“The Attorney-General and Minister for Defence have appointed the current Deputy Chair of the Taskforce, Mr Robert Cornall AO to lead the Taskforce and accelerate its work. As a former Secretary of the Attorney-General’s Department, Mr Cornall brings a wealth of experience to this position.”

The D.A.R.T. completely failed to ensure this in Mr Knight’s case.

“The Government believes strongly that perpetrators and those who failed to act against them should be accountable but we are also mindful that any process should not re-traumatise victims.

The D.A.R.T. completely failed to ensure this in Mr Knight’s case.

“The DART will continue to provide support to those who have contacted it.”

The D.A.R.T. completely failed to ensure this in Mr Knight’s case.

The D.A.R.T.’s two chairs in succession displayed extreme prejudice toward Mr Knight.

Both separately wrote to Australian Government ministers on multiple occasions with ultimatums. They concocted a secret plot to target Mr Knight on a retrospective contrived basis of Mr Knight specifically being an incarcerated claimant in order to then deny any reparations payment to Mr Knight. In Mr Knight’s case, the D.A.R.T. was in no way independent. This has been revealed in Respondent’s submitted annexures “MAS-2”, “MAS-3”, “MAS-4”].

These two D.A.R.T. agency heads refused to deal with Mr Knight’s claim under this spurious retrospectively excuse irrelevant to the D.A.R.T. Terms of Reference.

PART 2: FUNCTIONS of D.A.R.T.

Respondent’s Paragraph #8:

“The D.A.R.T. was established to assess and respond to individual cases of alleged historical abuse in Defence.

It was, by design, a highly discretionary and informal body. It did not make formal factual findings, did not make legally binding determinations, did not conduct investigations or inquiries and did not give directions to Defence or anyone else.

However, it could assist with a range of outcomes for individuals who made complaints of abuse, which might not otherwise have been available through legal or administrative processes: CB 222-3. Significantly, it was able to make reparation payments under the Defence Abuse Response Scheme: CB 245.”

Applicant’s Rebuttal #8a:

This paragraph #8 starts off as a repeat of the Respondent’s paragraph #7.

If the D.A.R.T. was established “to assess and respond to individual cases of alleged historical abuse in Defence”, then the successive D.A.R.T. chairs certainly found a means of not dealing with Mr Knight legitimate claim outside the D.A.R.T.s Terms of Reference.

The Respondent is quite wrong and misguided claiming that the D.A.R.T. “was, by design, a highly discretionary and informal body.”

No, it had Terms of Reference, not so discretionary as to make up its own rules as it went along to suit the chairs’ ulterior motives, which is what happened in Mr Knight’s case.

The Respondent is quite wrong and misguided claiming that the D.A.R.T. “did not make formal factual findings, did not make legally binding determinations, did not conduct investigations or inquiries and did not give directions to Defence or anyone else.”

The DART’s 8-page ‘Assessment Note’ of Mr Knight’s claim (a copy filed with this Court by the Applicant) did exactly that. It makes formal factual findings. It recommended conducting investigations/inquiries by Defence into Mr Knights alleged assailants. In MAS-2, MAS-3 the two DART chars didn’t just give directions to “Defence or anyone else”; indeed, both the D.A.R.T. chairs issued separate written ultimatums to the then Minister for Defence, and Minister for Justice and Attorney General designed to deny Mr Knight any reparation payment.

“Significantly, it was able to make reparation payments under the Defence Abuse Response Scheme”. But not so specifically in Mr Knight’s legitimate claim case.

An extract of the DART’s website regarding its declared Outcomes for Defence abuse claimants is provided for the convenience of this Federal Court of Australia.

In fact, in Mr Knight’s claim case, the D.A.R.T. provided no such outcomes. It was a prejudiced and political decision. His Defence abuse claim was effectively swept under the carpet.

Respondent’s Paragraph #9:

“The D.A.R.T. was only able to act on complaints that fell within the scope of its Terms of Reference: CB 233.

The evidentiary threshold for the assessment of complaints was that of ‘plausibility’: CB 233, CB 238.

Where a complaint was in scope and found to be plausible, it was open to the D.A.R.T. to consider various possible outcomes including:

a one-off reparation payment of up to $50,000 under the Scheme;
a referral for free counselling under the Defence Abuse Counselling Program;
participation in the Defence Abuse Restorative Engagement Program;
referral of appropriate matters to civilian police for their assessment and possible investigation and prosecution; and
referral to the Chief of the Defence Force (CDF) for administrative and/or disciplinary sanction or management action: see CB 244-254.”

Applicant’s Rebuttal #9a:

Please refer to Applicant’s Rebuttal #7a and #8a, as relevant here.

Respondent’s Paragraph #10:

“The D.A.R.T. was not required to reach a decision on particular outcomes. Rather it was acknowledged that complainants ‘may receive one or any combination of these outcomes, depending on their circumstances’: CB 244.”

Applicant’s Rebuttal #10a:

Please refer to Applicant’s Rebuttal #7a and #8a, as relevant here.

The Defence Force Ombudsman’s functions

Respondent’s Paragraph #11

“The D.F.O. was established in 1986, with general investigation functions for Defence related complaints: see Part llA of the Ombudsman Act 1976 (Cth).

Those general functions did not include making reparation and were not expressed by reference to the kind of outcomes which were available through the D.A.R.T.”

Applicant’s Rebuttal #11a:

The Respondent’s reference back to 1986 is well outdated. Whoever wrote this paragraph is will out of touch by some three decades.

In the D.A.R.T.’s Final Report of March 2016 at page 53 under Chapter 9.1 ‘Post-Taskforce legacy issues’, the D.A.R.T. proposed that “ongoing legacy issues” be handed over to the Defence Force Ombudsman (the D.F.O.) which reads as follows:

Then from December 2016, the D.F.O. continued the task of making “reparations payments to survivors of the most serious forms of abuse in the ADF”, as follows:

SOURCE: “Defence Reparation abuse reports still increasing, but clock is ticking’ media article in the Canberra Weekly, by Newstime Media, 28 April 2022, https://canberraweekly.com.au/defence-reparation-abuse-reports-still-increasing-but-clock-is-ticking/

Just because the Australian Government wound up the DART in 2016, that hasn’t mean that abuse in Defence has magically been resolved. Indeed, “The total number of reports received since 1 December 2016 to 30 November 2023 is 4986.” [Commonwealth Ombudsman website]

The functions of the D.A.R.T. continue to be handled by the D.F.O. but to a far lesser extent.

Citing the D.F.O. website, as at 23 November 2023, the following report indicates that reparation payments are continuing to be made by Defence based upon recommendations put to it by the DFO.

Defence abuse hasn’t gone away.

So once again the Respondent is completely wrong with its asserted facts.

[Source: ‘Defence-Force-Ombudsman-Reporting-Abuse-in-Defence-Statistics-to-30-November-2023’]

Respondent’s Paragraph #12:

The D.A.R.T. concluded on 30 June 2016.

Thereafter, the D.F.O. was given similar functions, but on a statutory basis. This was initially by amendments to the Regulations, which commenced on 1 December 2016.¹

Those functions were brought into their current form by amendments which commenced on 16 December 2017. ²

NOTES:

Ombudsman Amendment (Functions of the Defence Force Ombudsman) Regulations 2016.
Ombudsman Amendment (Functions of the Defence Force Ombudsman) Regulations 2017.

Applicant’s Rebuttal #12a:

In Mr Knight’s complaint case, the D.F.O. has not dealt with Mr Knight’s two new complaints.

The D.F.O. has failed to follow the Ombudsman Regulation 2017 for new complaints.

The D.F.O. has wrongly misconstrued Mr Knight’s two new complaints to be a claim.

Respondent’s Paragraph #13

As a result of these amendments, the D.F.O. functions under the Regulations now include reviewing certain categories of abuse complaints, and taking actions to address such complaints where the D.F.O. is satisfied that the abuse is reasonably likely to have occurred.

Applicant’s Rebuttal #13a:

See Applicant’s Rebuttal #12a.

Respondent’s Paragraph #14

In particular, s 14 of the Regulations now provides relevantly as follows in relation to ‘new complaints’:

Conferral of functions on Defence Force Ombudsman – new complaints etc.

(1) For the purposes of paragraph 19C(l)(a) of the Act, the Defence Force Ombudsman has:

(a) the function of taking appropriate action to respond to a new complaint of abuse made by a complainant if the Defence Force Ombudsman is satisfied that the abuse is reasonably likely to have occurred, including any of the following actions:

(i) facilitating counselling for the complainant;

(ii) using a process to address or resolve the complaint, facilitated by the Defence Force Ombudsman or another person, such as an alternative dispute resolution process or a restorative engagement conference;

(iii) making a recommendation to the Defence Department in respect of the complaint;

(iii a) if the complaint is covered by subsection (1 B) -making recommendations under section 14A in respect of the complaint;

(iv) deciding not to take, or to continue to take, action in response to the complaint; and

(1A) A complaint is a new complaint if:

(a) the complaint is about abuse engaged in by a member of Defence; and

(b) either:

(i) the complaint is made to the Defence Force Ombudsman on or after the amendment day; or

(ii) the complaint was made to the Defence Force Ombudsman on or after

1 December 2016 but before the amendment day and, immediately before the amendment day, the complaint had not been finally dealt with; and

(c) the complaint is not an excluded complaint.

Whether a complaint to the D.F.O. is a ‘new complaint’ turns on the following definition of ‘excluded complaint’ in s 5:

excluded complaint means a complaint that:

(a) was previously made to, and dealt with by, the Defence Abuse Response Taskforce; or

(b) is the same in substance as a complaint that was previously made to, and dealt with by, the Defence Abuse Response Taskforce.

Applicant’s Rebuttal #14a:

The Respondent is regurgitating the legislation.

In this paragraph the Respondent appears to be wrongly asserting that Mr Knight’s new complaint is somehow an old complaint. This is factually incorrect.

The D.A.R.T. failed to deal with Mr Knight’s claim for reparation payment. The Applicant has rebutted this false asserting in the Applicant’s Rebuttal #2a, #3d, and #3e.

The DFO failed to deal with Mr Knight’s two new complaints. The Respondent has a continuing problem with distinguishing “claim” from “complaint” in Mr Knight’s case

Respondent’s Paragraph #15:

In this way, the statutory provisions preclude the D.F.O. from taking any of the actions under s 14(1)(a) – including recommending that a reparation payment be made – to address an abuse complaint which has previously been ‘dealt with’ by the D.A.R.T. .³

NOTES:

(3) As to reparation, see s (1)(a)(iiia), (1B) and 14A. Note that the power in s 148 to recommend reparation payments for ‘old complaints’ has no application to the present case because it only relates to complaints made to the D.F.O. on or after 1 December 2016 but before the ‘amendment day’ of 16 December 2017: see s 14B(2)(a). been considered or handled by the D.A.R.T. . In other words, ‘dealt with’ is used in an ordinary and general way, not in a technical or prescriptive way.

Applicant’s Rebuttal #15a:

The D.A.R.T. failed to deal with Mr Knight’s claim for reparation payment. The Applicant has rebutted this false assertion in the Applicant’s Rebuttal #2a, #3d, and #3e.

The DFO failed to deal with Mr Knight’s two new complaints.

The Respondent is engaging in pedantic verbosity with the term ‘Dealt With’.

Respondent’s Paragraph #16:

It would appear uncontroversial that Mr Knight’s renewed complaint is the same in substance as his complaint to the D.A.R.T. .

There is additional material which expands on his complaint to the D.A.R.T. but does not raise new complaints.

It also discusses events which post-date D.A.R.T. ‘s involvement, such as associated court proceedings , but these are not complaints about abuse suffered by Mr Knight when he was a member of Defence.

As such, Mr Knight’s characterisation of his complaint as being a ‘renewed complaint’ is accurate, and properly reflects that it is the same in substance as his complaint to the D.A.R.T. .

Applicant’s Rebuttal #16a:

Refer to the Applicant’s Rebuttal #15a

Respondent’s Paragraph #17:

The live issue is whether that renewed complaint had been ‘dealt with’ by the D.A.R.T.

As already noted, this raises first a statutory construction question as to the meaning of ‘dealt with’ and, second a factual question as to whether the D.A.R.T. ‘s handling of Mr Knight’s complaint can be seen to fall within that statutory meaning.

Applicant’s Rebuttal #17a:

Refer to the Applicant’s Rebuttal #15a:

Respondent’s Paragraph #18:

Mr Knight’s proposed declaration indicates that ‘dealt with’ requires that ‘the complaint process was completed by D.A.R.T. ‘: see application at order 2.

This meaning is developed further in his submissions as being ‘the completion of the process whereby the D.A.R.T. determined which of the various outcomes the complainant should receive’: AS [36].

For the reasons developed below, ‘dealt with’ does not have so prescriptive a meaning. It does not look to, or depend upon, an analysis of the D.A.R.T. ‘s processes or the particular outcomes afforded.

Rather, it is concerned with the more basic question of whether a particular complaint that was made to the D.A.R.T. can be seen to have been considered or handled by the D.A.R.T.

In other words, ‘dealt with’ is used in an ordinary and general way, not in a technical or prescriptive way.

Applicant’s Rebuttal #18a:

Refer to the Applicant’s Rebuttal #15a.

Respondent’s Paragraph #19:

The well-established principles of statutory construction also govern the construction of regulations. In ENT19 v Minister for Home Affairs (2023) 410 ALR 1, Gordon, Edelman, Stewart and Gleeson JJ summarised those principles as follows at [86]:

“… 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 the legislative history and extrinsic material.” (footnotes omitted)

Applicant’s Rebuttal #19a:

Refer to the Applicant’s Rebuttal #15a.

This is indulgent irrelevant and pedantic waffle and simply wasting the Court’s time.

Respondent’s Paragraph #20:

Applying those principles, Mr Knight’s construction is denied by the text, context and purpose of s 14 of the Regulations.

Applicant’s Rebuttal #20a:

Refer to the Applicant’s Rebuttal #15a.

More indulgent vague and irrelevant and pompous waffle and again wasting the Court’s time.

Respondent’s Paragraph #21:

Statutory text: Beginning with the words used, the term ‘dealt with’ is telling. In the absence of a statutory definition the ordinary and natural meaning of a term will generally be preferred ‘unless it is plain that Parliament intended it to have some different meaning’.⁴

Here the ordinary and natural meanings do not suggest that any particular level of finality or thoroughness is required in order to say that something has been ‘dealt with’. On the contrary, they indicate that a thing will be ‘dealt with’ if it has been in some way handled or engaged with. Dictionaries give the following definitions:

Deal/dealt means: – ‘To conduct oneself towards persons’; ⁵ ‘To take part in, have to do with, occupy oneself, do business, act ; ‘ To have to do with (a thing) in any way; to busy or occupy oneself, to concern oneself with’ ; ‘ (a) to deal with: to act in regard to, administer, handle, dispose in any way of (a thing). (b) to handle effectively; to grapple with; to take successful action in regard to.’ ⁶

Deal with/dealt with means: – ‘to occupy oneself or itself with’ ; ‘to take action with respect to; handle’ ; ‘to take effective action with respect to; handle successfully’ ;7 ‘to deal with: to act towards (a person), to treat (in some specified way).’⁸

NOTES:

(4) Masson v Parsons (2019) 266 CLR 554 at [26] (Kiefel CJ, Bell, Gageler, Keane, Nettle and Gordon JJ).

(5) Macquarie Dictionary (online at 8 February 2024), ‘deal’ (def 1).

(6) Oxford English Dictionary (online 8 February 2024), ‘deal’ (def II, 11.14 and 11.16 respectively) .

(7) Macquarie Dictionary (online at 8 February 2024), ‘deal with’ (def b, c and d respectively).

(8) Oxford English Dictionary (online 8 February 2024), ‘deal’ (def ll.17a).

Applicant’s Rebuttal #21a:

Refer to the Applicant’s Rebuttal #15a.

The Respondent is engaging in pedantic verbosity with the term ‘Dealt With’.

Respondent’s Paragraph #22:

It is noteworthy that the provision uses ‘dealt with’ rather than some other more obviously directive and fixed expression, such as ‘decided by’ or ‘determined by’ or ‘resolved by’ or ‘finalised by’ the D.A.R.T. , or ‘addressed by the D.A.R.T. in accordance with its Terms of Reference’.

A number of such expressions are found in the Act, so can be · expected to have been used had that been the intended effect.⁹

NOTES:

9 See eg ss 24(1) and 25 (‘determined by’ a tribunal); 19X(6)(e); 19ZS(7)(a); 20ZX(8)(a) (‘decided’ under a particular section) ; 20P(a) (‘resolved to the complainant’s satisfaction’) .

Applicant’s Rebuttal #22a:

Refer to the Applicant’s Rebuttal #15a.

The Respondent is engaging in obsessive pedantic verbosity with the term ‘Dealt With’.

Respondent’s Paragraph #23:

It is also noteworthy that the drafters did not use adjectives which would have · demanded a particular type or degree of ‘dealing with’.

This is especially so given that in s 14, and related provisions, the Regulations refer to complaints to the D.F.O. which have or have not been ‘finally dealt with’: see ss 14(1A)(ii) above, and 14B(2)(b).

Had the definition of ‘excluded complaint’ been intended to only exclude those complaints where (to use Mr Knight’s words) D.A.R.T. had ‘completed’ the complaint process, it might be expected that the drafters would have used the same expression ‘finally dealt with’.

Applicant’s Rebuttal #23a:

Refer to the Applicant’s Rebuttal #15a.

The Respondent is engaging in obsessive pedantic verbosity with the term ‘Dealt With’.

Respondent’s Paragraph #24:

The more general sense in which ‘dealt with’ is used is also reinforced by the way in which that same unqualified expression is used elsewhere.

Section 14(1)(d) gives the D.F.O. a broad function of ‘dealing with any matter relating to complaints previously made to, and dealt with by, the Defence Abuse Response Taskforce’ (emphases added).

Were Mr Knight’s construction to be preferred, the italicised words would limit this obviously broad investigative function to only those matters which related to complaints that had been fully and completely dealt with by the D.A.R.T.

In order for this D.F.O. function to be enlivened it would not be enough for the D.A.R.T. to have received and in some way processed or handled the complaint.

And equally, the underlined words would impose some unspecified limit of completion or finality on how the D.F.O. dealt with that complaint.

Neither limit would seem a sensible one, whereas using ‘deal with’ in its ordinary and natural sense affords the broad and flexible function which would appear to have been intended.

Applicant’s Rebuttal #24a:

Refer to the Applicant’s Rebuttal #15a.

The Respondent is engaging in obsessive pedantic verbosity with the term ‘Dealt With’.

Respondent’s Paragraph #25:

A similar picture emerges from the use of ‘dealt with’ in the Act itself (which, as explained, is part of the context for the construction of the Regulations).

In particular, various provisions address the discretion or opinion of the Ombudsman about not addressing complaints where they could be ‘more conveniently or effectively dealt with by’ another body, authority or part of an Act.¹⁰

Likewise, a non-prescriptive and general use of that term can be seen in s 8D where it is used to describe an arrangement whereby investigations are to be ‘dealt with jointly by the Ombudsman and the Australian Federal Police’. ‘Dealt with’ here sensibly carries its general meaning of

NOTES:

10 See, ss 6(4D)(b), 6(6)(b), 6(9)(b) , 6(11A)(b), 6(13)(b), 6(20)(b), 6(21)(b), 6A(1)(a)(ii), 68(1)(a)(ii), 6C(1)(a)(ii), 6D(4)(b), 6E(1)(a)(ii), 6F(1)(b), s 19P(b)(ii), 19ZK(3), 20K(1), 20L(1), 20ZQ(1 ).

being considered/handled by another body, rather than a technical meaning of being exhaustively considered and addressed under all available processes of that body.

Applicant’s Rebuttal #25a:

Refer to the Applicant’s Rebuttal #15a.

The Respondent is engaging in obsessive pedantic verbosity with the term ‘Dealt With’.

Seriously? The Respondent’s representative is clearly miking its hourly fee to the D.F.O. at taxpayers’ expense.

Respondent’s Paragraph #26:

Finally, and for completeness, it might be noted that ‘dealt with’ does not have some settled legal or technical meaning.

While its meaning will always depend upon its particular context, it is an expression that has been seen to be used in a broad and general way, not a technical and particular one.¹¹

NOTES:

(11) See eg R v Luscombe (1999) NSWCA 365 at [20] and [37] (Spigelman CJ, Dunford and Adams JJ).

Applicant’s Rebuttal #26a:

The D.A.R.T. failed to deal with Mr Knight’s claim for reparation payment. The Applicant has rebutted this false asserting in the Applicant’s Rebuttal #2a, #3d, and #3e.

The DFO failed to deal with Mr Knight’s two new complaints.

The Respondent is engaging in pedantic verbosity with the term ‘Dealt With’.

Respondent’s Paragraph #27:

Context and purpose: It is important to consider the context and purpose for the ‘excluded complaint’ limitation on the D.F.O.’s abuse response functions.

Those functions involve, broadly speaking, ensuring that complaints that were not able to be put before the D.A.R.T. are still able to be addressed in some way, now by the D.F.O., notwithstanding that the D.A.R.T. has ended.

This transfer of the D.A.R.T. ‘s functions to the D.F.O. through an amendment to the Regulations was first recommended by the D.A.R.T. itself in Chapter 14 (‘Legacy Issues’) of its ‘Report on abuse in Defence’ provided to Government on 26 November 2014: see CB 277-280.

That recommendation was accepted, and the extrinsic materials accompanying the amendments to the Regulations reflect that intention, as well as the intention that D.F.O. would not be authorised to take appropriate action to respond to a complaint that was previously made to, and dealt with by, the D.A.R.T. .¹²

NOTES:

(12) Explanatory Statement to the Ombudsman Amendment (Functions of the Defence Force Ombudsman) Regulation 2016, p 1; Explanatory Statement to the Ombudsman Amendment (Functions of the Defence Force Ombudsman) Regulations 2017 .

Applicant’s Rebuttal #27a:

The D.A.R.T. failed to deal with Mr Knight’s claim for reparation payment. The Applicant has rebutted this false assertion in the Applicant’s Rebuttal #2a, #3d, and #3e.

The DFO failed to deal with Mr Knight’s two new complaints.

The Respondent is engaging in pedantic verbosity with the term ‘Dealt With’.

Respondent’s Paragraph #28:

That context provides the obvious explanation for why the Regulations have a broad exclusion for complaints that were handled by the D.A.R.T.

Plainly enough, it was not the intention of Government to give complainants a second opportunity to agitate the same complaint again, or to obtain further or different outcomes in respect of such a complaint.

The tight statutory categories of ‘new complaint’, ‘excluded complaint’ and ‘old complaint’ stand against any such understanding of the D.A.R.T. ‘s functions.

And no such purpose can be found in the relevant extrinsic materials.

Indeed, the only example there given of complaints that had not been ‘dealt with’ by the D.A.R.T. was matters which ‘did not meet the registration date under the D.A.R.T. ‘;¹³ in other words, complaints which were not considered or handled by the D.A.R.T. at all.

NOTES:

(13) Explanatory Statement to the Ombudsman Amendment (Functions of the Defence Force Ombudsman) Regulation 2016, p 1. and the (non-exhaustive) :outcomes available to it were, themselves, generally informal and flexible. In some cases, it may be expected to have considered and progressed, or partially progressed, a range of options, but in ways that were adapted to the complaint and the complainant. There was also an established internal reconsideration process in respect of most decisions to allow the opportunity for a complainant to provide D.A.R.T. with additional information that could lead to reconsideration of a decision: CB 238. Accordingly, it was inherently a body that might ‘deal with’ complaints in a wide variety of ways , and to a wide variety of end points. It is unsurprising that the Regulations did not adopt a prescriptive conception of a process that had been completed or finally dealt with.

Applicant’s Rebuttal #28a:

The D.A.R.T. failed to deal with Mr Knight’s claim for reparation payment. The Applicant has rebutted this false assertion in the Applicant’s Rebuttal #2a, #3d, and #3e.

The Respondent is engaging in pedantic verbosity with the term ‘Dealt With’.

Respondent’s Paragraph #29:

Moreover, it is important to recall the nature and context of how the D.A.R.T. handled complaints.

As an executive body operating under broad terms of reference, it did not have some prescriptive or defined standard against which to assess whether it had ‘completed’ its handling of a complaint.

By design it was a flexible and informal body, and the (non-exhaustive) :outcomes available to it were, themselves, generally informal and flexible. In some cases, it may be expected to have considered and progressed, or partially progressed, a range of options, but in ways that were adapted to the complaint and the complainant. There was also an established internal reconsideration process in respect of most decisions to allow the opportunity for a complainant to provide DART with additional information that could lead to reconsideration of a decision: CB 238. Accordingly, it was inherently a body that might ‘deal with’ complaints in a wide variety of ways , and to a wide variety of end points. It is unsurprising that the Regulations did not adopt a prescriptive conception of a process that had been completed or finally dealt with.

Applicant’s Rebuttal #29a:

The D.A.R.T. failed to deal with Mr Knight’s claim for reparation payment. The Applicant has rebutted this false assertion in the Applicant’s Rebuttal #2a, #3d, and #3e.

The Respondent continues relentless engaging in pedantic verbosity with the term ‘Dealt With’.

Respondent’s Paragraph #30:

Significant difficulties would arise were Mr Knight’s construction to be adopted.

If the D.F.O. were required to consider whether the processing of a complaint had been ‘completed’ by the D.A.R.T. , in the sense for which Mr Knight argues, it would need to conduct a close review of the D.A.R.T. ‘s handling of that complaint in order to assess whether the D.F.O. could, or could not, progress it in accordance with the D.F.O.’s statutory functions.

A detailed and evaluative assessment of this kind, which necessarily falls to be made in the absence of any fixed or certain standard, is an implausible condition for the exercise of the D.F.O.’s statutory functions.

Indeed, noting the historical and informal nature of the D.A.R.T. it may not be possible for the D.F.O. to make such an assessment.

For example, the D.F.O. might be called on to make evaluative decisions about the extent to which counselling had been ‘completed’ where that possibility had been left on the basis that the complainant had said that they would ‘think about it’.

Applicant’s Rebuttal #30a:

The D.A.R.T. failed to deal with Mr Knight’s claim for reparation payment.

The D.F.O. failed to deal with Mr Knight’s two new complaints.

The Respondent continues relentless engaging in pedantic verbosity with the term ‘Dealt With’ and confusing “claim” with “complaint”.

The Respondent here is engaging in hypothetical conjecture. Such waffle is irrelevant to Mr Knight’s two new complaints.

Respondent’s Paragraph #31:

To resolve questions of these kinds may in some cases make the D.F.O.’s examination of the D.A.R.T.’s handling of a complaint a detailed and onerous exercise.

This is distinctly at odds with the less burdensome standard that the D.F.O. is required to apply to the assessment of the complaint itself – whether it is ‘reasonably likely to have occurred’: s 14(1)(a).

Applicant’s Rebuttal #31a:

The D.A.R.T. failed to deal with Mr Knight’s claim for reparation payment.

The D.F.O. failed to deal with Mr Knight’s two new complaints.

If it is onerous then so be it. Is D.F.O. not up to the task insufficient resources, competency and budget?

Respondent’s Paragraph #32:

For all of the above reasons, the statutory intention is plain – ‘dealt with’ is to be given its ordinary and natural meaning and requires no more than that the D.A.R.T. considered and processed the complaint.

Applicant’s Rebuttal #32a:

The Respondent continues relentless engaging in pedantic verbosity with the term ‘Dealt With’ and confusing “claim” with “complaint”.

Respondent’s Paragraph #33:

Turning to the facts, it is abundantly clear that Mr Knight’s original complaint was considered and processed by the D.A.R.T. . It is enough to give the following brief summary of how the D.A.R.T. dealt with that complaint.

(a). By facsimile bf 26 November 2013 Mr Knight lodged an Application for a Reparation Payment Form, together with a statutory declaration and his personal account: OB · 15-160. Mr Knight sent follow up correspondence about that application for reparation: CB 174, 175,·599.

(b). In September and October 2014, the D.A.R.T. engaged with ACT Policing, consistent with its function of referring potential criminal matters to civilian police, to provide information in relation to Mr Knight’s complaint: CB 192-197.

(c). On 14 January 2015 an assessment of Mr Knight’s complaint was finalised. Consistent with the D.A.R.T. ‘s Terms of Reference, that assessment determined which of his complaints were within scope and plausible: CB 592.

(d). On 5 March 2015, the Chair of D.A.R.T. , Mr Robert Cornall AO, wrote to the former Minister for Justice recommending that no reparation payment be made to Mr Knight and recording why, in his view, certain other outcomes were likely to be inappropriate: see affidavit of Madisen Anne Scott dated 16 February 2024, Annexure MAS-3, p 16.

On 15 June 2015, the D.A.R.T. advised Mr Knight that Ministers had directed that it could not make reparation payments to incarcerated complainants and that, as a result, he was not eligible for reparation: CB 600.

(f). On 21 July 2015 the D.A.R.T. finalised an Administrative and/or Disciplinary Sanction Recommendation Report in which the Chair of the D.A.R.T. concluded that Mr Knight’s complaint did not warrant referral to CDF, in accordance with D.A.R.T. ‘s criteria for non-referral: CB 602.

(g). On 4 September 2015 Mr Knight commenced proceedings in the Federal Court in relation to that decision that he was not eligible for reparation: CB 9 at [19]; CB 607. The Commonwealth subsequently offered to reconsider that decision and engaged extensively with Mr Knight about that reconsideration: CB 607-656.

(h). On 5 May 2016 a new ministerial direction was given that applicants convicted of a serious crime were not entitled to a reparation payment: CB 657. Mr Knight’s application was reconsidered in line with this direction: CB 660. On 20 May 2016 he was advised by the D.A.R.T. of a preliminary determination that he was not eligible for reparation: CB 661. Mr Knight corresponded with the D.A.R.T. about that preliminary determination: CB 663-667.

(i). On 8 June 2016 the D.A.R.T. advised Mr Knight that it had made a final decision that he was not eligible for a reparation payment: CB 669.

(j). Mr Knight subsequently pressed his Federal Court proceedings on the limited basis that he challenged the final decision as being contrary to the Constitution; this was dismissed: see Knight v Commonwealth of Australia [2016] FCA 1160.

Applicant’s Rebuttal #33a:

No, turning to the facts, it is abundantly clear that The D.A.R.T. failed to deal with Mr Knight’s claim for reparation payment. The Applicant has rebutted this false assertion in the Applicant’s Rebuttal #2a, #3d, and #3e.

The DFO failed to deal with Mr Knight’s two new complaints.

(b). The Respondent here clearly has privileged access to the DART records yet has provided no evidence to this Federal Court of the D.A.R.T. engaging with ACT Policing nor providing information in relation to Mr Knight’s complaint.

(c). No, the Respondent has its fact wrong again. The D.A.R.T. ‘Assessment Note’ was not dated 14 January 2015. It was in fact dated 13 January 2015.

That Assessment note was NOT finalised. At page 8, under ‘Complainant Liaison’, the complainant was not contacted, nor did the DART Crime Group action the abuse. Also At page 8, under ‘Other Referral Action’, the DART Administrative Action Officer did not action the items checked þ for follow up in relation to the alleged abusers.

The DART failed to communicate its Assessment Note to Mr Knight. An extract of page 8 follows:

(d). The Applicant has rebutted this issue in the Applicant’s Rebuttal #3e. The actions by both DART Chairs Roberts-Smith then Cornall separately writing ultimatums indeed to the two ministers of the Crown was well outside the D.A.R.T.’s Terms of Reference. There is no evidence provided by the Respondent that any minister of the Crown directed the DART not to make reparation payment to Mr Knight because due to his unrelated subsequent incarceration. The only evidence supplied by the Responded in its annexures “MAS-2”, “MAS-3”, and “MAS-4” were “views”, not a directive. The D.A.R.T. letter to Mr Knight was contrived by the D.A.R.T.

This is the key relevant extract at page 5 of the D.A.R.T. Chair Cornall’s letter of 5 March 2015 to the Minister for Justice The Hon Michael Keenan MP and Minister for Defence (The Hon Kevin Andrews MP).

Respondent’s Annexure “MAS-3″, at page 5.

This is a copy of both the same Ministers’ reply letter to the D.A.R.T. Chair Cornall dated 24 June 2015.

The minister’s reply was merely a “view”. It was not a directive.

On 20 May 2016 the D.A.R.T. Executive Director Kirsty Windeyer wrote the following to Mr Knight.

This statement is incorrect. It was not 15 June 2015, that the D.A.R.T. advised Mr Knight that Ministers had directed that it could not make reparation payments to incarcerated complainants and that, as a result, he was not eligible for reparation. The letter was a year later on 20 May 2016. The Respondent is repeatedly incorrect with its facts.

(Space here allowed for Mr Knight to comment about the voracity or otherwise of the other statements (f) – (j) made by the Respondent).

Respondent’s Paragraph #34:

In those circumstances, there is no substance at all to Mr Knight’s contention that the D.A.R.T. had not ‘dealt with’ his complaint because it had not completed its consideration of all available outcomes: see AS [36].

The only apparent basis for that submission is Mr Knight’s correspondence to the D.A.R.T. on 14 July 2015 in which he asked whether he was ‘also precluded from receiving other outcomes’: see AS [20] and CB 601.

While that specific question does not appear to have received a direct reply from the D.A.R.T. , this provides no basis for suggesting that the D.A.R.T. ‘s handling of his complaint remained incomplete. So much can be seen from the following.

Applicant’s Rebuttal #34a:

This is a very confused constructive interpretation by the Respondent.

The D.A.R.T. failed to deal with Mr Knight’s claim for reparation payment. It failed to consider or provide any outcomes to Mr Knight, as previously rebutted in the Applicants Rebuttal #8A. It failed to reply to Mr Knight.

Yet again, the Respondent is repeatedly confusing “claim” with “complaint”.

The Respondent is engaging in pedantic verbosity with the term ‘Dealt With’.

Respondent’s Paragraph #35:

First, Mr Knight’s one-line query did not call for a direct response.

The query was made in the context of the original decision that he was not entitled to reparation.

That decision was reconsidered, and in terms which were clearly only referable to the question of reparation, not other outcomes.

As such, the query was clearly answered by the terms of the new decision.

Second, it is quite clear from Mr Knight’s application , correspondence and court proceedings that his central concern throughout was as to reparation rather than other outcomes. It is unsurprising therefore that the D.A.R.T. ‘s communications and records were primarily directed to this.

Third, in any event it is clear from the above summary that D.A.R.T. did actively consider other outcomes , actioning some (in its communications with ACT Policing) and not others.

Finally, given Mr Knight’s history of dealing with the D.A.R.T. and his related litigation, it is noteworthy that he did not correspond with the D.A.R.T. in terms which suggested a concern about lack of finality, that he did not seek to utilise the D.A.R.T. s internal reconsideration processes, and that he did not litigate to seek, for example, mandamus.

Applicant’s Rebuttal #35a:

Refer to the Applicant’s Rebuttal #34A. There is no evidence provided that the DART communicated at all with ACT Policing about Mr Knight’s Defence abuse claim.

Respondent’s Paragraph #36:

As a result, there can be no doubt that the D.F.O. was correct to conclude that Mr Knight’s complaint had been ‘dealt with’ by the D.A.R.T.

That conclusion is correct when ‘dealt with’ is given its intended ordinary meaning of being considered and processed.

And it would equally be correct even if Mr Knight’s technical and prescriptive construction were to be adopted.

Applicant’s Rebuttal #36a:

Refer to the Applicant’s Rebuttal #34A. The D.A.R.T. failed to deal with Mr Knight’s claim for reparation payment. The Applicant has rebutted this false assertion in the Applicant’s Rebuttal #2a, #3d, and #3e.

The D.F.O. failed to deal with Mr Knight’s two new complaints. The Respondent is repeating its pedantic verbosity with the term ‘Dealt With’.

PART 4: OTHER MATTERS

Respondent’s Paragraph #37:

Mr Knight’s other arguments:

Ground 1 of the application, and Mr Knight’s submissions at A_S [39]-[45], are misconceived insofar as they go to questions of whether the D.F.O. can or should take particular action in relation to his renewed complaint.

The D.F.O. has not assessed his complaint or refused to take any particular action under s 14(1)(a). Rather, as Mr Knight’s Ground 2 recognises, the D.F.O. has concluded that the renewed complaint is an ‘excluded complaint’.

That being so, the D.F.O. has no statutory basis to take actions in relation to that complaint.

Jurisdiction – s 788 notice and notice of objection to competency.

Applicant’s Rebuttal #37a:

Respondent’s Paragraph #38:

On 8 December 2023 the D.F.O. gave notice under s 788 of the Judiciary Act 1903.

The constitutional issue is whether s 33 of the Act is a privative clause which purports to oust the Federal Court’s jurisdiction under s 39B of the Judiciary Act 1903.

The D.F.O. does not contend that s 33 purports to operate in that way, and accepts that judicial review of the Decision is available under s 39B.

No Attorney-General has, to date, indicated an intention to intervene.

Applicant’s Rebuttal #38a:

Respondent’s Paragraph #39:

For completeness, and to ensure no error as to jurisdiction, the D.F.O. says that in so far as the application is brought under the Administrative Decisions (Judicial Review) Act 1977 (Cth) (ADJR Act) it is not amenable to review.

As set out in the D.F.O.’s notice of objection to competency filed on 22 September 2023, the Decision is not a decision to which the ADJR Act applies.

This is because even if the renewed complaint was not an ‘excluded complaint’, the action available to the D.F.O. under s 14(1)(a) of the Regulations is not action which would confer, alter or otherwise affect legal rights or obligations: such action only involves non-binding and non-enforceable recommendations: see Griffith University v Tang (2005) 221 CLR 99 at [80], [89]; Fitzwarryne v Commonwealth Ombudsman [2023] FCA 175 at [39]-[40].

Applicant’s Rebuttal #39a:

The Federal Court of Australia is indeed the appropriate jurisdiction in Mr Knight’s case in which the subject civil matter in dispute owes its existence to a federal statute. In Mr Knight’s case that federal statute is the Ombudsman Act (Cth) 1972, as provided in Part IIA ‘Establishment, functions, powers and duties of the Defence force Ombudsman’, as well as under the Ombudsman Regulations (Cth) 2017 in Part 3 s (14) and (14A) that provide for ‘new complaints’.

In Mr Knight’s case centres upon his two new complaints in his letter dated 16 March 2023 to the D.F.O. The two extracts below:

So, res ipsa loquitur.

It has been demonstrated in detail by the Applicant in the Applicant’s Rebuttal #2a that the DFO’s immediate 1-page ‘auto-rejection’ letter of reply to Mr Knight was “loaded with falsehoods” and various misinterpretations and misuse of terms by the letter’s author known only as ‘Susan’ so conveying a level of incompetence.

This same matter was rebutted in the Applicant’s Rebuttal #3b.

For the convenience of the Court another copy of that critical letter is provided below:

As a consequence, Mr Knight is aggrieved by the decision made by this statutory body (the D.F.O.) to even consider his two new complaints.

Under the Administrative Decisions (Judicial Review) Act (Cth) 1977, Part 5 ‘Applications for review of decisions’ the following apply in Mr Knight’s case:

(1) A person who is aggrieved by a decision to which this Act applies that is made after the commencement of this Act may apply to the Federal Court or the Federal Circuit and Family Court of Australia (Division 2) for an order of review in respect of the decision on any one or more of the following grounds:

(a) that a breach of the rules of natural justice occurred in connection with the making of the decision;

(b) that procedures that were required by law to be observed in connection with the making of the decision were not observed;

(e) that the making of the decision was an improper exercise of the power conferred by the enactment in pursuance of which it was purported to be made;

(f) that the decision involved an error of law, whether or not the error appears on the record of the decision;

(h) that there was no evidence or other material to justify the making of the decision;

(j) that the decision was otherwise contrary to law.

(2) The reference in paragraph (1)(e) to an improper exercise of a power shall be construed as including a reference to: (b) failing to take a relevant consideration into account in the exercise of a power;

(e) an exercise of a personal discretionary power at the direction or behest of another person;

(j) any other exercise of a power in a way that constitutes abuse of the power.

(3) The ground specified in paragraph (1)(h) shall not be taken to be made out unless:

(a) the person who made the decision was required by law to reach that decision only if a particular matter was established, and there was no evidence or other material (including facts of which he or she was entitled to take notice) from which he or she could reasonably be satisfied that the matter was established; or

(b) the person who made the decision based the decision on the existence of a particular fact, and that fact did not exist.

PART 5: ORDERS

Respondent’s Paragraph #40:

For the reasons explained in these submissions, the application should be dismissed.

In view of Mr Knight’s ongoing incarceration, the D.F.O. does not seek costs.

Applicant’s Rebuttal #40a:

The Applicant is reassured that the D.F.O. does not seek any costs in this case. It is highlighted that both the D.F.O. and its legal representative AGS are funded out of bottomless taxpayer funds.

Applicant’s Rebuttal #41: Criticism of the Respondent’s submission approach

Finally, it is noted in having read through the considerable 40 paragraphs submitted by the Respondent to this Court over 11 pages, (filed last minute) that quantity has mattered more than quality and accuracy.

The Respondent’s submission is dominated by multiple errors of fact, baseless premises and assertions, and convoluted deductive arguments that are mostly invalid, faulty reasoning, fallacy of irrelevance and false conclusions, et al.

It must be said that this reading has been reminiscent of from Monty Python’s Flying Circus TV comedy skit the “Argument Clinic” from 1972 (image below).

Now having completed this exhaustive task of the Applicant rebutting the Respondent’s submission, it is realised that extensive pedantic repetition by the Respondent’s legal representative AGS also seems to have been the order of the day. Those 40 submitted paragraphs, without the repetition relating to the same issues, could instead have been condensed to fewer than ten paragraphs.

Some 32 of the Respondent’s submission paragraphs repeat just two argument topics, namely:

(A). The “Dealt With” obsessive verbosity – being paragraphs 2, 3, 5, 14, 15, 16, 17, 18, 21, 22, 23, 24, 25, 26, 28, 32, 33, 34, 36)

(B). The Role of the D.A.R.T. – paragraphs 1, 6, 7, 8, 9, 10, 11, 12, 27, 29, 30, 31, 37)

End of Submission