FEDERAL COURT OF AUSTRALIA

Luck v Chief Executive Officer of Centrelink [2017] FCAFC 92

ORDERS

THE COURT ORDERS THAT:

1.    The appeal be dismissed with costs.

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

REASONS FOR JUDGMENT

THE COURT:

Introduction

1    This is an appeal against orders made by the primary judge upholding the respondent’s objection to competency and dismissing an application by the appellant (Ms Luck) for review of a decision by the respondent, pursuant to the Administrative Decisions (Judicial Review) Act 1977 (Cth) (the ADJR Act). Ms Luck, who appeared for herself before us and before the primary judge, also seeks leave to appeal against the refusal of the primary judge to adjourn the hearing of her application before him pending the outcome of an application in a proceeding under s 40 of the Judiciary Act 1903 (Cth), and his Honour’s refusal to recuse himself from conducting the trial on the ground of ostensible bias. Although Ms Luck did not file an application for leave to appeal, by order made on 23 December 2016 the notice of appeal is to be treated as if it made such an application.

2    The decision in respect of which Ms Luck brought her application under the ADJR Act was notified to her by letter dated 3 June 2008 (the 3 June 2008 decision).

3    The letter, from a Centrelink Area Manager, omitting formal parts, read:

I refer to your contacts with Centrelink over the past 6 months recently on 7 May 2008. On 24 December 2007, 1 May 2008 and 7 May 2008 you spoke with Centrelink Call staff regarding your Centrelink entitlements and on all 3 occasions it has been reported that you were not prepared to listen when an explanation was being offered. It has been noted that on 7 May 2008 the call was terminated after 2 warnings, due to you yelling at the staff member.

Because of your unacceptable behaviour, I have decided that you can contact Centrelink only by telephone, fax or email, when you need to access our services or when you have a query about any of the payments or services to which you are entitled.

These arrangements will be in place for three months until 28 August 2008 and their duration will be reviewed on a regular basis. You will be advised when the review will occur and you will be given the opportunity to contribute.

Please call 136150 if you want to talk about what happened on any of the dates mentioned or if you have any queries about any of their information contained in this this letter. You may ask another person to do so on your behalf. If you want to take this option you will need to authorise this person, in writing to us, to talk to Centrelink on your behalf.

I am asking you to behave with respect and courtesy in your telephone contact or in any future dealings with Centrelink.

4    Ms Luck filed her application for an order of review on 30 June 2008. As the primary judge explained, “[t]he reason that it was not heard until late April 2015 is because of other applications in related proceedings, which were made by Ms Luck, to Full Courts and to the High Court, and which were not resolved until relatively recently”: Luck v Chief Executive Officer of Centrelink [2015] FCA 1234 at [2] (Luck).

5    When the matter came on for hearing before the primary judge on 27 April 2015, Ms Luck:

(1)    made an oral application to the judge that he should disqualify himself from conducting the trial of the proceeding on the ground of ostensible bias, notwithstanding the fact that Ms Luck had made the same application to his Honour on 4 April 2014 at a directions hearing and it had been refused (see Luck v Chief Executive Officer of Centrelink [2014] FCA 345); and

(2)    relied on an interlocutory application filed on 20 April 2015 applying for an adjournment of the hearing pending the outcome of her application to the High Court under s 40 of the Judiciary Act 1903 (Cth), which went to the constitutionality of a provision of the Defence Force Discipline Act 1982 (Cth) (the DFDA) and a provision of the Disability Discrimination Act 1992 (Cth) (the DDA), amongst others.

6    The primary judge refused both applications: as to the bias application, see Luck [2015] FCA 1234 at [5]-[14]; as to the adjournment application, see Luck [2015] FCA 1234 at [15].

7    For reasons set out below, the appeal is to be dismissed.

PRELIMINARY MATTERS

8    We will turn to each of the questions concerning the respondent’s objection to competency under the ADJR Act, the bias ground and the adjournment ground below. Before doing so however it is necessary to deal with three preliminary questions that arise.

Ms Luck’s bankruptcy     

9    The first preliminary question arises because approximately three weeks before the hearing of this appeal, on 4 April 2017, a sequestration order was made against the estate of Ms Luck by Judge Kelly of the Federal Circuit Court of Australia.

10    In April 2017, on Ms Luck’s application, North J ordered pursuant to r 36.08 of the Federal Court Rules 2011 (Cth) that “the proceedings under the sequestration order of Judge Kelly…be stayed pending the determination of [Ms Luck’s appeal against the making of the sequestration order]”.

11    The Court has the “power to grant a stay, pending the hearing of an appeal against a sequestration order, of some or all of the proceedings or steps which would otherwise be taken as a consequence of the sequestration order…”: Coleman v Lazy Days Investments Pty Ltd (1994) 55 FCR 297 at 301E. It was that power that North J exercised in April 2017. This proceeding is not a proceeding under the sequestration order, so it is unaffected by the stay order.

12    An issue does arise, however, under s 60 of the Bankruptcy Act 1966 (Cth) (the Bankruptcy Act). It provides, relevantly, as follows:

Stay of legal proceedings

(1)  The Court may, at any time after the presentation of a petition, upon such terms and conditions as it thinks fit:

(a)     discharge an order made, whether before or after the commencement of this subsection, against the person or property of the debtor under any law relating to the imprisonment of fraudulent debtors and, in a case where the debtor is imprisoned or otherwise held in custody under such a law, discharge the debtor out of custody; or

(b)    stay any legal process, whether civil or criminal and whether instituted before or after the commencement of this subsection, against the person or property of the debtor:

(i)    in respect of the non-payment of a provable debt or of a pecuniary penalty payable in consequence of the non-payment of a provable debt; or

(ii)  in consequence of his or her refusal or failure to comply with an order of a court, whether made in civil or criminal proceedings, for the payment of a provable debt;

and, in a case where the debtor is imprisoned or otherwise held in custody in consequence of the non-payment of a provable debt or of a pecuniary penalty referred to in subparagraph (i) or in consequence of his or her refusal or failure to comply with an order referred to in subparagraph (ii), discharge the debtor out of custody.

(2)     An action commenced by a person who subsequently becomes a bankrupt is, upon his or her becoming a bankrupt, stayed until the trustee makes election, in writing, to prosecute or discontinue the action.

(3)  If the trustee does not make such an election within 28 days after notice of the action is served upon him or her by a defendant or other party to the action, he or she shall be deemed to have abandoned the action.

(4)  Notwithstanding anything contained in this section, a bankrupt may continue, in his or her own name, an action commenced by him or her before he or she became a bankrupt in respect of:

(a)  any personal injury or wrong done to the bankrupt, his or her spouse or de facto partner or a member of his or her family; or

...

13    Section 116(1)(b) and (2)(g)(i) of the Bankruptcy Act provide as follows:

Property divisible among creditors

(1)  Subject to this Act:

…

(b)  the capacity to exercise, and to take proceedings for exercising all such powers in, over or in respect of property as might have been exercised by the bankrupt for his or her own benefit at the commencement of the bankruptcy or at any time after the commencement of the bankruptcy and before his or her discharge…

…

 is property divisible amongst the creditors of the bankrupt.

(2)  Subsection (1) does not extend to the following property:

…

(g)  any right of the bankrupt to recover damages or compensation… 

(i) for personal injury or wrong done to the bankrupt, the spouse or de facto partner of the bankrupt or a member of the family of the bankrupt…

…

and any damages or compensation recovered by the bankrupt (whether before or after he or she became a bankrupt) in respect of such an injury or wrong or the death of such a person;

…

14    It follows, as the parties recognised, that this proceeding is stayed by force of s 60(2) of the Bankruptcy Act until the trustee makes an election or the time limit in s 60(3) expires, unless s 60(4) operates to permit Ms Luck to continue the proceeding in her own name.

15    We were informed by counsel for the respondent that the respondent had not notified, and, as we apprehend it, does not presently intend to notify, Ms Luck’s trustee in bankruptcy for the purposes of s 60(3), and that the 28-day period within which the trustee must elect to prosecute or discontinue the action has not commenced to run.

16    Both Ms Luck and the respondent contended that Ms Luck’s application under the ADJR Act for review of the 3 June 2008 decision was “an action commenced by…her before…she became a bankrupt in respect of…any personal injury or wrong done to the bankrupt…” within the meaning of s 60(4)(a) of the Bankruptcy Act.

17    There is no question that an application for leave to appeal is an “action” within the meaning of s 60(2): see Sarkis v Moussa (2012) 262 FLR 359 at [31]-[37] per Beazley JA. So too is an appeal: see Cummings v Claremont Petroleum NL (1996) 185 CLR 124 at 130 per Brennan CJ, Gaudron and McHugh JJ.

18    The question that arises here is whether an application for judicial review under s 5 of the ADJR Act seeking the review of a decision that is alleged to be made under an enactment is an action “in respect of any personal…wrong done to the bankrupt”.

19    In Cox v Journeaux (No 2) (1935) 52 CLR 713 at 721, Dixon J said of the then equivalent provision (s 63(3) of the Bankruptcy Act 1924 (Cth)) that “[t]he test appears to be whether the damages or part of them are to be estimated by immediate reference to pain felt by the bankrupt in respect of his mind, body or character and without reference to his rights of property”.

20    As Lockhart J explained in Faulkner v Bluette (1981) 52 FLR 115 at 119:

The common thread running through [the common law cases that preceded the 1883 English Bankruptcy Act] is that where the primary substantial right of action is direct pecuniary loss to the property or estate of the bankrupt, the right to sue passes to the trustee notwithstanding that it may have produced personal inconvenience to the bankrupt… Where the essential cause of action is the personal injury done to the person or feelings of the bankrupt the right to sue remains with the bankrupt.

(Citations omitted.)

21    In Moss v Eaglestone (2011) 83 NSWLR 476 at 486-494, Allsop P (as the Chief Justice then was) traced the legislative history of ss 60 and 116 of the Bankruptcy Act and their English equivalents. We need not repeat it. It is sufficient for present purposes to note that that legislative history and the plain words of ss 60(4) and 116(2)(g)(i) make clear, as his Honour observed (at [64]), that:

…the distinction [in those sections] between person and property is a substantive one. It was a distinction made by courts and judges of the highest authority who declared it to be unjust and harsh that the estate of the bankrupt and the participating creditors should be swelled and advantaged by a wrong to the person or reputation of the bankrupt.

22    It also follows from the terms of those provisions that the question of whether the action is “in respect of any personal injury or wrong done to [the bankrupt applicant]… require[s] the substance of the matter to be examined”: Moss v Eaglestone (2011) 83 NSWLR 476 at [65].

23    In Moss v Eaglestone (2011) 83 NSWLR 476, the Court of Appeal held that an action for defamation, being a wrong to a person’s reputation, is an action in respect of a personal injury or wrong, and that there was no sound reason in logic or policy why a claim for the loss of such a chose in action should enure for the benefit of the creditors when the primary claim did not: at [8], [65], [81] and [82].

24    In Fisher v Transport for NSW (2016) 316 FLR 72; [2016] NSWSC 1888, McCallum J held that an application for judicial review by a bankrupt bus driver of a decision to cancel his authority as a bus driver fell within the exception in s 60(4) because the notion of “personal injury or wrong” might include an adverse administrative decision: Fisher v Transport for NSW (2016) 316 FLR 72; [2016] NSWSC 1888 at [36].

25    In our opinion, an application for judicial review under s 5 of the ADJR Act of the type made by Ms Luck in this case, concerning a decision which she alleges impugns her character in various different ways, is, as both parties agreed, not a right of action that passes to the trustee in bankruptcy. The trustee has no interest in it. It is, rather, a right of action (if it be a right of action) that relates to the appellant’s “person or feelings” and thus remains with her. She may therefore maintain the appeal in her own name and the Court may hear it.

Whether leave to appeal required in respect of objection to competency

26    The second preliminary question is whether leave to appeal is required. Counsel for the respondent submitted that the appeal against the primary judge’s decision to uphold the objection to competency is an interlocutory decision and that Ms Luck needs leave to appeal: citing SZAJB v Minister for Immigration and Citizenship (2008) 168 FCR 410 at [23] per French J (as he then was) and Minogue v Williams [2000] FCA 125 at [18] per Ryan, Merkel and Goldberg JJ. Ms Luck submitted that the decision is a final one and that leave to appeal is not necessary: citing Lloyd Werft Bremerhaven GmbH v Owners of Ship “Zoya Kosmodemyanskaya” (1997) 79 FCR 71 (Zoya Kosmodemyanskaya).

27    Section 24(1A) of the Federal Court of Australia Act 1976 (Cth) provides that an appeal shall not be brought from a judgment that is an interlocutory judgment unless the Court or a judge gives leave to appeal. Whether a decision dismissing an application on the ground that it is incompetent is interlocutory and requires leave, or final such that no leave is required, depends upon whether the finding of want of jurisdiction flows from a finding on the merits. As French J (as he then was) observed in SZAJB v Minister for Immigration and Citizenship (2008) 168 FCR 410 at [23]:

Where a court holds that it lacks jurisdiction to entertain an application and that the application is to be dismissed as incompetent, the dismissal order effectively disposes of the proceedings in the court in which the application is brought. The order does not “finally dispose of the rights of the parties” in the sense necessary to characterise it as a final judgment. It simply means that the court in which the proceeding is brought lacks the authority to deal with it. It says nothing about the rights which the party seeks to vindicate. It may be that an application has been brought in the wrong court. So an application may be brought in the Federal Magistrates Court which exceeds the subject matter value by which the relevant jurisdiction of that court is defined. An order dismissing the application as incompetent would not finally dispose of the rights of the parties to it. They would simply have to go somewhere else. Similarly, an application brought before the Federal Court may be dismissed as incompetent on the basis that it lies outside the jurisdiction conferred by statute upon this Court. In the case of judicial review proceedings it may be that the matter could be entertained in the High Court in the exercise of the original jurisdiction conferred upon it by s 75(v) of the Constitution. The character of the order dismissing an application as incompetent is illustrated by these examples. It does not for that reason alone decide the rights or liabilities in issue. There may be a case like Zoya Kosmodemyanskaya…where the finding of want of jurisdiction flows from a finding on the merits. So if the finding of want of jurisdiction depends upon findings of jurisdictional fact fatal to the merits of the claim, then it may be said to be a final judgment.

(Emphasis added. See too the judgment of Allsop J, as the Chief Justice then was, at [68] and Tracey J at [114] agreeing.)

28    As Taylor J said in Hall v Nominal Defendant (1966) 117 CLR 423 at 439, “[a] great deal has been said concerning the distinction between final and interlocutory orders”: see more recently, by way of example only, SZGAP v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 1785; 227 ALR 683 at [30]-[67]; and Alexakis v Secretary, Department of Education, Employment and Workplace Relations [2009] FCAFC 124 at [19]-[28].

29    Confining ourselves to the particular order in this case (see Hall v Nominal Defendant (1966) 117 CLR 423 at 439), it seems to us sufficiently clear that the order made by the primary judge dismissing her proceeding disposed of Ms Luck’s right to bring any relevant proceeding under the ADJR Act in respect of the 3 June 2008 decision and that that order was based on a finding of want of jurisdiction that was fatal to the merits of her claim (see [32]-[38] below). It is therefore a final decision and it is not necessary for Ms Luck to seek leave to appeal against it.

30    In so far as the grounds of appeal relating to the recusal and adjournment are concerned, leave to appeal is required (see [39]-[46] and [47]-[50] below).

Late filed notice of appeal

31    The only other preliminary point that arose at the hearing was that Ms Luck late filed her notice of appeal. The respondent, quite properly, conceded that it suffered no prejudice and was content to argue the appeal on the merits, despite the absence of any explanation by Ms Luck for the (relatively short) delay.

CONSIDERATION

Grounds of appeal

Objection to competency – ADJR Act

32    In our opinion, the 3 June 2008 decision – which amounted to no more than that for a three month period from 28 June 2008 Ms Luck was permitted to make contact with Centrelink employees only by phone, fax or email – was not a decision made under an enactment, for the reasons given by the primary judge. It was, as the primary judge found, made with reference to “reference instructions” contained in an internal Centrelink document entitled the “People Handbook” (the Handbook). That document “was not expressed to have been (nor was it) made under any express statutory authority. The Handbook took the form of a guide prepared by managers to ensure the occupational, health and safety of the respondent’s employees”: Luck [2015] FCA 1234 at [31].

33    The primary judge relied on the following passage from the decision of the plurality of the High Court in Griffith University v Tang (2005) 221 CLR 99 at [89] per Gummow, Callinan and Heydon JJ:

The determination of whether a decision is “made ... under an enactment” involves two criteria: first, the decision must be expressly or impliedly required or authorised by the enactment; and, secondly, the decision must itself confer, alter or otherwise affect legal rights or obligations, and in that sense the decision must derive from the enactment. A decision will only be “made ... under an enactment” if both these criteria are met. It should be emphasised that this construction of the statutory definition does not require the relevant decision to affect or alter existing rights or obligations, and it will be sufficient that the enactment requires or authorises decisions from which new rights or obligations arise. Similarly, it is not necessary that the relevantly affected legal rights owe their existence to the enactment in question. Affection of rights or obligations derived from the general law or statute will suffice.

34    Applying that reasoning, the primary judge held (at [38]):

…the Handbook did not have statutory force. Nor did any of its contents (including those relating to the means by which clients could communicate with Centrelink) create, alter or impose any legal rights, duties or liabilities on Centrelink officers or Ms Luck. Ms Luck had no right, either under statute or otherwise, to communicate with the Centrelink office in any particular manner. The decision which she seeks to have reviewed did not deprive her of the ability to claim or receive benefits or to raise queries relating to her social welfare entitlements.

35    In our view, his Honour’s reasoning is, with respect, correct and his Honour was right to uphold the objection to competency and dismiss the proceeding.

36    Ms Luck contends that the 3 June 2008 decision was a decision made “under an enactment” for the purposes of the ADJR Act because:

(1)    it was a decision made “under an Act” (see para (a) of the definition of “enactment” in s 3), by reason of being a decision under ss 6A and 8 of the Commonwealth Services Delivery Agency Act 1977 (Cth) (CSDA);

(2)    alternatively, it was a decision made “under an instrument” (para (c) of the definition of “enactment” in s 3) by reason of being a decision under the Handbook: relying on the decision of the Full Court in Chittick v Ackland (1984) 1 FCR 254.

37    Both contentions must be rejected. It was not a decision made under the CSDA for the reasons given by the primary judge: see Luck [2015] FCA 1234 at [33]-[39].

38    And on the instruments point, the decision in Chittick v Ackland (1984) 1 FCR 254 is of no assistance to Ms Luck. On the contrary, the Full Court in that case made clear (at 264 per Lockhart and Morling JJ) that “to qualify as an instrument for the purposes of the [ADJR Act] the document must be of such a kind that it has the capacity to affect legal rights and obligations”. As the primary judge explained, the Handbook in question here was no such thing. The Handbook was a “reference instruction” and was not said to be, nor was it, made under any statutory authority. That much is readily apparent from the terms of the Handbook, and in particular those parts of it quoted by the primary judge (at [30]). It follows that the 3 June 2008 decision was not made under an enactment and the primary judge was correct so to hold, for the reasons his Honour gave: Luck [2015] FCA 1234 at [36]-[39].

Recusal

39    In Michael Wilson & Partners Ltd v Nicholls (2011) 244 CLR 427, the plurality of the High Court observed (at [86] per Gummow ACJ, Hayne, Crennan and Bell JJ) that “an application for leave to appeal against the rejection of an application that a judge not hear a matter due to apprehended bias may well be a case where the usual criteria would require leave to be granted…” (citation omitted). As the Full Court said in GlaxoSmithKline Australia Pty Ltd v Reckitt Benckiser Healthcare (UK) Ltd [2013] FCAFC 150 (at [31] per Allsop CJ, Middleton and Katzmann JJ):

[that] observation assumes that there is some doubt about the judge’s decision. It may be accepted that substantial injustice would result if leave were refused and the decision below is wrong. The real question is whether there is sufficient doubt as to the correctness of the decision to justify a grant of leave.

40    We approach the application for leave to appeal against the decision of the primary judge refusing to recuse himself in the same way in this case.

41    In our view, the primary judge was correct. His decision is not attended by any doubt. His Honour’s principal reasons for refusing to recuse himself from hearing the application before him are contained in his earlier decision in Luck v Chief Executive Officer of Centrelink [2014] FCA 345, which are incorporated by reference into his Honour’s reasons in Luck [2015] FCA 1234 at [6].

42    In Luck v Chief Executive Officer of Centrelink [2014] FCA 345, the primary judge dealt with the question as follows (at [3]-[8]):

[3] Ms Luck advanced her ostensible bias arguments on two bases. The first was that, in listing three proceedings in which she was the applicant for directions on the same day and maintaining the listings over her subsequent objection, I had failed to provide her with reasonable adjustments to which she said she was entitled under the [DAA]. Ms Luck asserted that for medical reasons (for which she produced no evidence), she was unable to cope with three matters on the same day.

[4] The purpose of the directions hearing, in each case, was to ensure that the proceeding which had languished in my docket for many years whilst appeals and applications had been pursued elsewhere by Ms Luck, ultimately unsuccessfully, were brought on for trial as soon as reasonably possible. The present proceeding had been commenced in 2010. When the directions hearings were listed I anticipated that they would (as turned out to be the case) be of relatively short duration. Far more time was spent this morning on the disqualification application than was spent on the submissions relating to directions in the three proceedings combined.

[5] Ms Luck also submitted that my recusal was warranted because of my appointment as Judge Advocate General of the Australian Defence Force which, she said, made me “answerable” to members of the Executive Branch of the Commonwealth Government including the Minister for Defence. She referred to the provisions of ss 179 and 196A of the [DFDA]. Section 179 of the DFDA provides that the Judge Advocate General is to be appointed by the Governor-General. Section 196A of the DFDA requires the Judge Advocate General to provide the Minister for Defence with a report each year. The Minister is required to cause a copy of the report to be laid before each House of Parliament.

[6]    The test to be applied when an application is made for the disqualification of a judicial officer on the grounds of ostensible bias is well known. It is whether a fair minded lay observer might reasonably apprehend that the judge might not bring an impartial mind to the resolution of the question which the judge was required to decide: see Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337 at 344.

[7]    In the absence of evidence of incapacity there was no occasion for me to vary the listing of the three proceedings, in which Ms Luck was the applicant, for directions on the same day. On the contrary, the consecutive fixtures were intended to avoid multiple attendances by Ms Luck and unnecessary expense to the respondents, two of whom had common representation. I did not anticipate, as proved to be the case, that there would be any contentious issues relating to the making of relevant directions. A reasonable observer would have had no occasion to apprehend that I might not have brought an impartial mind to the resolution to any questions which might arise at the directions hearing or at trial.

[8]    My appointment as Judge Advocate General was made, pursuant to the DFDA, by the Governor-General in Council. My eligibility for appointment depended on me being either a judge of this Court or of a State Supreme Court: see s 180 of the DFDA. By s 181(1) of the DFDA it is provided that, for all purposes, the Judge Advocate General’s service in that role “shall be taken to be service as the holder” of his or her judicial office. I have an obligation to furnish the Minister with an annual report for the purpose of that report being tabled in the Commonwealth Parliament. None of these statutory requirements make me “answerable” to the Executive Government or could give rise to a reasonable apprehension of bias. In this regard I note that, in a Full Court appeal in another proceeding, Ms Luck advanced a similar argument although it had not been raised with me at first instance. The Full Court rejected her argument that my appointment as Judge Advocate General gave rise to a reasonable apprehension of bias: see Luck v University of Southern Queensland [2009] FCAFC 73.

43    By the time the second recusal application was made, the primary judge had ceased to be the Judge Advocate General of the Australian Defence Force (on 29 July 2014). His Honour added the following reasons in light of that change (at [9]-[14]):

[9]     Although I continue to hold the rank of Major General in the Army, I am on the list of retired officers. I have no active participation in the affairs of the Army, and have not done so since the end of July last year.

[10]     Despite Ms Luck’s apprehension to the contrary, I have no administrative or any other role in the military. I would add this: even when I did exercise the powers of the Judge Advocate General under [the DFDA] I had no association whatsoever with the Department of Human Services, or Centrelink, or any of the officers of those bodies, which are the subject of the present proceeding.

[11]     Ms Luck raised an additional matter relating to remuneration. She said that I am the beneficiary of what she described as some form of emolument by way of allowance.

[12]     The answer to that misapprehension is that, since my retirement, I have not been in receipt of any moneys by way of allowance or otherwise in relation to any military service. I have no financial interest in the outcome of this proceeding.

[13]     Another matter that was raised in oral argument by Ms Luck was that I had an interest in the outcome in the proceeding, because, as it was put, I am effectively the subject matter of the constitutional objection. The constitutional objection, as argued, was an objection that, in providing, in s 180, for the qualifications of a person to serve as Judge Advocate General, the DFDA was invalidated by operation of the Boilermakers’ doctrine. Even if that be right, the consequence would be that that section would be held to be unconstitutional. That finding would have no bearing at all on my capacity to sit as a judge of this Court, and to deal with matters such as the present that come before me as a judge of the Court.

[14]     I would also note that some similar arguments have been raised before two Full Courts, one in 2009 and one in 2014, and in both cases the arguments were unanimously rejected. In the latter case, applications to the High Court were refused: see Luck v University of Southern Queensland (2009) 176 FCR 268; Luck v University of Southern Queensland (2014) 145 ALD 1; Luck v University of Southern Queensland & Anor [2015] HCASL 136. See also the recent decision of another Full Court in Luck v Secretary, Department of Human Services [2015] FCAFC 111 at [22].

44    In our opinion, Ms Luck did not advance any valid reason why any aspect of the primary judge’s decision was wrong.

45    Before leaving the question of recusal, we note that Ms Luck has on three previous occasions unsuccessfully sought to recuse the same primary judge from hearing other proceedings in which she was the applicant, including in another proceeding in which she had sought unsuccessfully to challenge two earlier similar notifications given to her by Centrelink. She has already appealed twice to the Full Court against the refusal of the same primary judge to recuse himself, on substantially similar grounds arising out of his Honour’s holding of the office of Judge Advocate General: see Luck v University of Southern Queensland [2014] FCAFC 135; 145 ALD 1 at [29]-[36]; and Luck v Chief Executive Officer, Centrelink [2009] FCAFC 54 at [81]-[84]. See also Luck v University of Southern Queensland (2009) 176 FCR 268 at [51] per Graham J and [80]–[83] and [95] per Rares J, where other grounds were alleged.

46    The recusal grounds of appeal are without merit and we accordingly refuse the application for leave to appeal.

Adjournment

47    A decision to refuse an adjournment is interlocutory: see Marketing Advisory Services (MAS) v Football Tasmania Ltd [2002] FCAFC 165; 42 ACSR 128 at [27]. Leave to appeal from such a decision is therefore necessary: Federal Court of Australia Act 1976 (Cth), s 24(1A).

48    In order to grant leave, it must be shown that in all the circumstances the decision is attended by sufficient doubt to warrant its being reconsidered by the Full Court and that substantial injustice would result if leave were refused, supposing the decision to be wrong: see Décor Corp Pty Ltd v Dart Industries Inc (1991) 33 FCR 397; and Apache Northwest Pty Ltd v Newcrest Mining Ltd (2009) 182 FCR 124 at [24].

49    Ms Luck could not identify any valid reason why the primary judge’s discretion miscarried. Nor could she point to any prejudice caused to her by reason of the refusal of her application. We accordingly refuse leave to appeal the primary judge’s decision to refuse Ms Luck’s application to adjourn the trial that commenced on 27 April 2015.

50    In any event, the primary judge was clearly correct to refuse Ms Luck’s application for an adjournment, because, as his Honour identified, “any ruling that the High Court might ultimately make in respect of [the constitutionality of a provision of the DFDA and a provision of the DDA, amongst others]… [could] have no bearing on [the primary judge’s] capacity, sitting as a judge of this Court, to deal with the [application for judicial review]”: Luck [2015] FCA 1234 at [15].

Other grounds of appeal

51    Ms Luck’s notice of appeal also raised other grounds of appeal. They can be dealt with briefly.

52    Proposed ground of appeal no. 3 sought to raise a number of different complaints, of which it is sufficient to say that they do not arise because the primary judge held, correctly in our view, that the Court has no jurisdiction to hear Ms Luck’s application.

53    Proposed ground no. 7 concerned an interlocutory order made by the primary judge in December 2008, in respect of which time to seek leave to appeal has long since run and which, in any event, has nothing to do with the decision sought to be appealed from.

54    Finally, Ms Luck’s notice of appeal asserted that she was “denied natural justice”. That submission was neither particularised nor pursued.

Fresh evidence

55    Ms Luck sought to introduce into evidence two print-outs from the website of the Department of Defence, in aid of a submission that the primary judge had received payments or allowances during his tenure as Judge Advocate General. The respondent objected to the tender.

56    We refuse to admit that evidence: first, because it is fresh evidence and no explanation was given as to why it was not material that could have been put before the primary judge; and secondly, because it seems to us that having read the material sought to be relied upon, it has no bearing on any relevant issue.

Discretion

57    The 3 June 2008 decision was communicated nine years ago and ceased to have effect three months later. In those circumstances the challenge to the validity of the decision is moot. Assuming, contrary to the finding above, that the decision was made under an enactment, the question of whether the Court should exercise jurisdiction in such circumstances would arise: see Civil Aviation Safety Authority v Administrative Appeals Tribunal [2001] FCA 1319 at [15]-[16] per Cooper J.

58    Ultimately, when asked about it by the Court, the appellant could not tell us what order she would seek, if we were to decide that the primary judge ought to have dismissed the respondent’s objection to competency. She was also unable to specify any form of available relief. In those circumstances, even if we had decided that the Court had jurisdiction and that a ground of relief had been made out, it is difficult to see how the Court could have granted relief to Ms Luck in any event.

CONCLUSION

59    For the foregoing reasons, the appeal is dismissed with costs.

Associate:

Dated:    7 June 2017