FEDERAL COURT OF AUSTRALIA

Luck v University of Southern Queensland [2014] FCAFC 135

THE COURT ORDERS THAT:

1.    The appeal be dismissed.

2.    The Appellant pay the First Respondent’s costs of and incidental to the appeal.

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

REASONS FOR JUDGMENT

INTRODUCTION

1    The appellant, Gaye Luck, appeals from a judgment of this Court (Luck v University of Southern Queensland (No 2) [2013] FCA 1141 (“Luck v USQ No 2”)). At first instance Ms Luck applied for judicial review of four decisions made by or on behalf of the first respondent, the University of Southern Queensland (“the University”). The learned primary judge upheld the University’s objection to the competency of Ms Luck’s application on the basis that the Federal Court did not have jurisdiction to review the University’s decisions.

2    Ms Luck is a self-represented litigant but she is no stranger to the courts. She is well versed in litigation having appeared in a range of proceedings and appeals in different courts and tribunals. A quick search reveals many applications made by her including: Luck v Deakin University [2008] FCA 1781, Luck v University of Southern Queensland [2009] FCA 479, Luck v Chief Executive Officer, Centrelink [2009] FCAFC 54 (“Luck v Centrelink”), Luck v University of Southern Queensland (2009) 109 ALD 66, Luck v Deakin University [2009] FCA 1032, Luck v The Deputy Registrar (RM) of the High Court of Australia - Melbourne Office of the Registry and Ors [2013] HCATrans 166, Luck v Independent Broad-based Anti-corruption Commission (Review and Regulation) [2013] VCAT 1805, and Luck v Secretary, Department of Human Services (No 2) [2014] FCA 798.

3    Ms Luck presented detailed written and oral submissions in support of the appeal and there was no indication that she required assistance from the Court in doing so. This is not a matter where the Court was required to assume the burden of endeavouring to ascertain the rights of a party which are obfuscated by his or her own advocacy: Neil v Nott (1994) 121 ALR 148 at 150 (“Neil”) per Brennan, Deane, Toohey, Gaudron and McHugh JJ.

4    Although the title of the appeal indicates that the Chief Executive Officer of the University is the second respondent he or she is not a party to the proceeding. On 26 May 2009 Ms Luck sought to join the Chief Executive Officer by filing an amended application but the application had not been decided by the primary judge prior to his dismissal of the proceeding on 1 November 2013.

5    For the reasons we set out below the appeal must be dismissed, and Ms Luck must pay the first respondent’s costs.

The FACTS AND PROCEDURAL BACKGROUND

The University decisions under review

6    Ms Luck was enrolled at the University as an external disabled student undertaking a concessional workload in a Bachelor of General Studies from July 1998. Her enrolment was suspended by notice from the Acting Vice Chancellor, Professor Graham Baker, on 7 February 2006. In broad terms the decisions about which Ms Luck complains all flow out of this suspension.

7    Each of the parties filed a detailed chronology setting out a range of background and contextual matters surrounding Ms Luck’s suspension. While we have considered the events and details contained in these chronologies the matters they set out are not central to the issues to be decided by the Court and it is unnecessary to canvass them.

8    The four decisions of the University upon which Ms Luck’s application for judicial review focuses relate to the suspension of her enrolment and refusal to re-enrol her , namely:

(a)    a decision of the Acting Vice Chancellor of the University on 7 February 2006 to suspend Ms Luck’s enrolment for semester 1 of 2006;

(b)    a decision made by the University on 24 April 2006 (communicated by its lawyer) informing Ms Luck that, until the Vice Chancellor was satisfied that Ms Luck had complied with certain requests made by him, her enrolment in semesters 2 and 3 of 2006 would remain suspended;

(c)    a decision made by the University on 13 or 16 February 2009 (communicated by its lawyer) informing Ms Luck that until the Vice Chancellor was satisfied that she had complied with his requests, her enrolment would remain suspended; and

(d)    the decision made by the University on 26 February 2009 (communicated by its lawyer) that the University was not obliged, pursuant to section 13 of the Administrative Decisions (Judicial Review) Act 1977 (Cth) (“ADJR Act”), to provide Ms Luck with a statement of reasons for the decision made on 13 or 16 February 2009;

(collectively “the Decisions”).

The first adjournment and recusal application

9    On 8 October 2013 Ms Luck filed a notice of motion seeking a stay or adjournment of proceedings and recusal of the primary judge on the ground of bias (“the first adjournment and recusal application”). On 11 October 2013 his Honour refused both the application for adjournment and for recusal (Luck v University of Southern Queensland [2013] FCA 1064 (“Luck v USQ No 1”)). In summary his Honour held that:

(a)    the appellant’s application for leave to appeal to the High Court was not an obstacle to the hearing and determination of the University’s objection to competency as the outcome of the High Court proceeding had no bearing on the case before the Court;

(b)    there was no basis for any suggestion that his Honour’s statutory office of Judge Advocate General of the Australian Defence Force interfered in any way with the performance of his judicial responsibilities; the role did not make him answerable to the executive and he did not profit from the role; and

(c)    being briefed by the Commonwealth during his Honour’s previous occupation as a barrister might not raise a reasonable apprehension of bias in a fair-minded lay observer that he might not bring to bear an impartial mind to the resolution of the questions that he was required to decide.

10    Upon dismissal of this application on 11 October 2013 the primary judge commenced to hear the University’s objection to competency. However, on the application of Ms Luck the hearing was adjourned and fixed for 1 November 2013.

The second adjournment and recusal application

11    On 30 October 2013 Ms Luck filed an interlocutory application (“the second adjournment and recusal application”) returnable on 1 November 2013. The application sought, again:

(a)    a stay or adjournment of the proceeding:

(i)    pending the outcome of a leave application to a Full Bench of the High Court from a single judge of that Court; and

(ii)    pending a three month rest and recovery period in an effort to alleviate the symptoms of Ms Luck’s medical conditions; and

(b)    recusal of Tracey J on the basis of bias.

Ms Luck sought the three month rest and recovery period in purported reliance on the Disability Discrimination Act 1992 (Cth) (“DD Act”) and the United Nations Convention on the Rights of Persons with Disabilities.

12    On 1 November 2013 Ms Luck did not appear to prosecute her interlocutory application for adjournment and recusal, or to oppose the objection to competency, and the primary judge conducted the hearing in her absence. His Honour dismissed the second application for adjournment and recusal, upheld the objection to competency and dismissed the substantive proceeding.

the Reasons of the primary judge

13    The learned primary judge first noted (at [1]-[3]) that the Court had commenced to hear the University’s objection to the competency of the proceeding on 11 October 2013 but that Ms Luck had sought an adjournment and sought that his Honour recuse himself for bias. His Honour noted that he had refused those applications and counsel for the University had begun her submissions in support of the University’s objection to competency. Then, as his Honour said, (at [3]):

Almost immediately Ms Luck advised the Court that she was unwell and in no fit state to deal with the arguments. I invited counsel for the University to provide Ms Luck with a further copy of the University’s written submissions in support of its application and adjourned the further hearing of the application until [1 November 2013]. Ms Luck advised the Court that this fixture was suitable to her.

The second adjournment application

14    In relation to the second adjournment application dated 30 October 2013, his Honour noted (at [4]) that two of the grounds were the same grounds which he had rejected on 11 October 2013, and that the third ground was that Ms Luck needed a “three month period of rest and recovery” before the matter proceeded.

15    In relation to the first two grounds for adjournment his Honour said (at [8]-[10]):

The proceeding was commenced by Ms Luck in 2009. The University promptly filed a notice of objection to competency. There matters have rested for over four years. This has occurred because of a succession of adjournments occasioned by health problems experienced by Ms Luck, the hearing and determination of a related matter between the parties, the hearing and determination of an appeal from the primary decision in that matter and a series of applications made, by Ms Luck, to the High Court. One of those applications was an application for removal of this proceeding into the High Court. It was refused by Gageler J on 5 August 2013: see at [2013] HCA Trans 163.

Ms Luck now seeks yet another adjournment on untenable grounds.

I rejected two of those grounds when they were advanced at the last hearing. I do so again for the same reasons and because the renewed attempt by Ms Luck to rely on these grounds seeks to traverse the earlier orders in circumstances which have not changed in any material way.

16    His Honour then turned to the third ground of Ms Luck’s second adjournment application (at [11]-[17]) and said:

[11] The third ground relates to Ms Luck’s state of health and her capacity to prosecute the proceeding. The two medical certificates are in substantially the same terms. Neither of them has been verified. They suggest that Ms Luck suffers from certain medical conditions which impede her capacity to prosecute a number of cases such as the present which she has pending before various Courts. Ms Luck, has, on previous occasions, objected to any publication of the details of her medical conditions. As a result I will not be more particular about the nature of those conditions. What may, however, be said is that these conditions are said to restrict Ms Luck’s ability to conduct litigation and that it is likely that, were she to attempt to do so, this would have a deleterious effect on her health.

[12] The August certificate identified certain conditions which would need to be satisfied before Dr Leow would approve of Ms Luck appearing in Court and conducting her cases. There is no evidence before the Court to suggest that these conditions had been satisfied at the time Ms Luck appeared on 11 October 2013. Whether they were or not Ms Luck, on that occasion, argued her applications for almost two hours and only advised the Court that she was not able to continue when those applications had been refused.

[13] The more recent certificate, that dated 25 October 2013, concludes that it is necessary for Ms Luck “to take a significant break from her current stresses for a period of at least three months to rest and recover mentally and physically.”

[14] In a proceeding between the same two parties in 2011 Ms Luck also sought adjournments and “reasonable adjustments”. She supported these applications and resisted the summary dismissal of the proceeding under Order 35A of the Federal Court Rules 2011 (Cth), relying on a series of certificates which had been signed by Dr Leow. These certificates were also unverified. They certified that Ms Luck suffered from some of the same conditions which are referred to in the two certificates on which she presently seeks to rely. The earlier certificates also refer to the stress which the conduct of litigation imposed on Ms Luck. Having considered the medical certificates in the earlier proceeding Bromberg J observed that:

“These proceedings are, according to Ms Luck’s doctor, a significant stressor upon Ms Luck. Whilst the certificates in each case provide hope that in a month or two from the date of the certificate Ms Luck will recover, that expectation does not eventuate and the impression that is left by the certificates is that Ms Luck may not be in a position to prosecute these proceedings either at all, or in the foreseeable future.”

See: Luck v University of Southern Queensland (No 4) [2011] FCA 433 at [29].

[15] As can be seen, Ms Luck’s medical conditions and the impact of those conditions on her ability to conduct litigation have changed little over the past two years.

[16] I have little confidence that Ms Luck will be willing and, perhaps, able to deal with the objection to competency at any time in the foreseeable future. She is the moving party and it is not fair to the respondent to have this litigation continue indefinitely. Neither, would it appear, to be in Ms Luck’s interests to continue to be burdened by the need to prosecute this and other proceedings.

[17] The Court has an obligation to facilitate the just resolution of disputes according to law as quickly, inexpensively and efficiently as possible: see ss 37M and 37N of the Federal Court of Australia Act 1976 (Cth) (“the Act”). This proceeding has lingered in the list for far too long. The interests of justice require that it be determined. If the objection to competency has substance, as I consider it does, the University’s objection should be ruled on without further delay.

The application for recusal

17    His Honour did not expressly set out his reasons for refusing the application for recusal but said (at [10]) that he rejected it “for the same reasons and because the renewed attempt by Ms Luck to rely on these grounds seeks to traverse the earlier orders [of 11 October 2013] in circumstances which have not changed in any material way”. It follows that his Honour’s reasons are as we have summarised them at [9(b) and (c)] above.

The objection to competency

18    The learned primary judge then considered the University’s objection to competency and noted that Ms Luck had the burden of establishing the competence of her application: rule 31.05(2) of the Federal Court Rules 2011 (Cth) (“the Rules”). His Honour noted that Ms Luck had not discharged this burden.

19    His Honour explained (at [19]):

The Federal Court is a court of limited jurisdiction. By s 19(1) of the Act it “has such original jurisdiction as is vested in it by laws made by the Parliament.” The Parliament there referred to is the Commonwealth Parliament. As a result the Court only has jurisdiction to deal with those matters in respect of which jurisdiction has been conferred on it by an Act of that Parliament.

20    The primary judge then explained that Ms Luck sought judicial review of the Decisions under the ADJR Act and the Judiciary Act 1903 (Cth) (“Judiciary Act”) which provide for judicial review of Commonwealth administrative decisions. However, as his Honour noted (at [22]):

(a)    each of the Decisions the subject of the application was made by an officer, employee or agent of the University acting in that capacity;

(b)    the University was created and incorporated pursuant to the University of Southern Queensland Act 1998 (Qld) (“USQ Act”); and

(c)    each of the Decisions were made directly or indirectly under that Act.

21    His Honour held (at [23]) that the Decisions were not decisions to which the ADJR Act applied as:

(a)    section 3(1) of the ADJR Act requires that a decision to which the ADJR Act applies must be made under an “enactment” which is defined in that section as “an Act”;

(b)    section 38(1) of the Acts Interpretation Act 1901 (Cth) provides that the word “Act” in Commonwealth legislation means an Act of Commonwealth Parliament; and

(c)    the USQ Act under which the decisions of the University were made is not an Act of Commonwealth Parliament.

22    His Honour then considered whether, in the present case, the judicial review jurisdiction of the Federal Court under ss 39B(1) or (1A) of the Judiciary Act was enlivened. His Honour held (at [25]-[26]) that:

(a)    the jurisdiction conferred on the Federal Court by section 39B(1) of the Judiciary Act is confined to review of decisions made by “officers of the Commonwealth” and that the officers, employees and agents of the University could not be considered officers of the Commonwealth;

(b)    the Decisions sought to be reviewed by Ms Luck did not arise under the Constitution or involve its interpretation under section 39B(1A)(b); and

(c)    section 39B(1A)(c) confers jurisdiction on the Court only with respect to matters arising under any laws of the Commonwealth whereas the case concerned a decision arising Queensland State law.

His Honour held that the Federal Court had no power under ss 39B(1) and (1A) of the Judiciary Act to review the Decisions.

23    His Honour then dealt with any suggestion that the Decisions were made indirectly under other Commonwealth legislation. He explained (at [27]):

Lest there be any suggestion that any of the impugned decisions were made indirectly under other Commonwealth legislation and, in particular, legislation providing for the granting of Commonwealth funds to the University, I would refer to the reasons of Rares J (with whom North J agreed) in Luck v University of Southern Queensland [2009] FCAFC 73 at [113]-[126]. In those passages his Honour dealt with an argument, advanced by Ms Luck, that the University was an “agency” for the purposes of the Freedom of Information Act 1982 (Cth). His Honour there explained that the University was a body corporate performing State functions pursuant to State law and that that remained the case even if (which is not presently the case) such an employee was empowered by Federal legislation to perform some Commonwealth functions.

24    His Honour upheld the objection to competency and dismissed Ms Luck’s application.

The appeal

25    On 12 November 2013 Ms Luck filed a Notice of Appeal against his Honour’s orders of 1 November 2013 dismissing the second adjournment and recusal application, and against the dismissal of the substantive proceeding.

26    At the commencement of the hearing of the appeal, Ms Luck applied for Justice Perry to recuse herself on the ground of apprehended bias, given her Honour’s voluntary role as a squadron leader with the Royal Australian Air Force Legal Specialist Reserves. Justice Perry refused that application and gave ex tempore reasons for her ruling.

27    The issues before the Court are best categorised as raising the following five issues for consideration:

1.    Whether the primary judge should have recused himself on the ground of bias or should have not heard and determined the proceeding on the basis of:

(a)    a breach of the separation of powers doctrine by the primary judge due to his role as Judge Advocate General;

(b)    a breach of the separation of powers doctrine by reason of the Court’s and primary judge’s performance of an executive function under the DD Act;

(c)    comments made by the primary judge in separate matters that were allegedly adverse to Ms Luck; and

(d)    the primary judge having been regularly briefed by the Commonwealth as counsel during his former career as a barrister;

2.    Whether the primary judge erred in finding that the Decisions were made under the USQ Act rather than a Commonwealth enactment and therefore that the ADJR Act and the Judiciary Act did not apply;

3.    Whether the primary judge erred in finding that the University or its decision-makers were not officers of the Commonwealth for the purposes of the Judiciary Act;

4.    Whether the primary judge erred in failing to determine the application for leave to join the purported second respondent as a party; and

5.    Whether the appellant was denied natural justice.

28    While there are some further issues put forward by the appellant, they are secondary to these five issues and do not require determination.

consideration

Issue 1: Whether the primary judge should have recused himself?

The primary judge’s former role as counsel for the Commonwealth and current role as Judge Advocate General

29    The appellant’s contention that the primary judge should have recused himself from hearing Ms Luck’s case is not new. The same argument was raised by Ms Luck and determined against her in a previous matter before this Court: Luck v Centrelink at [81]-[83] per Moore, Lindgren and Bennett JJ.

30    Ms Luck contends that the primary judge’s position of Judge Advocate General, as appointed under ss 179 and 180 of the Defence Force Discipline Act 1982 (Cth) (“Defence Force Discipline Act”), is a breach of the separation of powers doctrine. She contends that the primary judge:

(a)    is carrying out an executive role as a Major General of the Army with direct reporting responsibility to the Minister for Defence; and

(b)    misinformed the parties about the nature of this role during the course of the hearing and in his judgment given on 11 October 2013, as well as in judgments and hearings on 4 April 2014 in two other matters.

31    As his Honour said on 11 October 2013 in Luck v USQ No 1 (at [10]-[11]), and incorporated by reference into his reasons of 1 November 2013:

Ms Luck was also inclined to suggest that, in some way, my appointment as Judge Advocate General of the Australian Defence Force, and as a member of the Army Reserve, in some way also impinged on the separation of powers. As I explained to her, I do nothing that requires me to be answerable to the executive in my capacity as Judge Advocate General. I am required annually to report to Parliament on the status of the military justice system. I am not in receipt of any payment in respect of my duties as Judge Advocate General, or a member of the Defence Force, because I am not permitted, under the Constitution, to hold more than one office of profit under the Crown at the same time.

There is, accordingly, no basis for any suggestion that my holding of that statutory office interferes in any way with the performance of my judicial responsibilities in this Court.

32    It is uncontroversial that “the ability of Parliament to confer non-judicial power on a judge of a Ch III Court.…has the potential, if it is not kept within precise limits, to undermine the doctrine in the Boilermakers’ Case”: Wainohu v New South Wales (2011) 243 CLR 181 (“Wainohu”) at [78] per Gummow, Hayne, Crennan and Bell JJ citing Mason and Deane JJ in Hilton v Wells (1985) 157 CLR 157 (“Hilton v Wells”) at [81].

33    However, such limits are observed if the non-judicial function:

(a)    is carried out in public save to the extent that general considerations of justice otherwise require;

(b)    is manifestly free of outside influence; and

(c)    results in a report or other outcome which can be assessed according to its own terms.

Wainohu at [94] per Gummow, Hayne, Crennan and Bell JJ, citing Gaudron J in Wilson v Minister for Aboriginal & Torres Strait Island Affairs (1996) 189 CLR 1 at 25-25.

34    In our view the learned primary judge’s role as Judge Advocate General does not require him to be answerable to the executive, as he is merely required to report to Parliament annually on the status of the military justice system. The primary judge’s role does not involve any payment in respect of his duties. In our view it is clear that his Honour’s role as Judge Advocate General and/or within the Army Reserve operates safely within the limits referred to by the High Court in Wainohu and Hilton v Wells.

35    The test to be applied by the learned primary judge when faced with the application on 1 November 2013 was whether a fair-minded lay observer might reasonably apprehend that he might not bring an impartial mind to the resolution of the question he was required to decide: Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337 at [6] per Gleeson CJ, McHugh, Gummow and Hayne JJ.

36    In our view the learned primary judge’s former engagement as counsel for the Commonwealth and his role as Judge Advocate General of the Australian Defence Force does not mean that a fair-minded lay observer might reasonably apprehend he might not bring an impartial mind to a dispute involving the executive branch of government. We again note that this issue was dealt with by an earlier Full Court (Luck v Centrelink at [81]-[83]) and we respectfully endorse their Honours’ decision. We can see no basis for this ground of appeal.

The alleged breach of the separation of powers doctrine by reason of the primary judge’s performance of an executive function under the Disability Discrimination Act

37    Section 5 of the DD Act relevantly provides:

Direct disability discrimination

(1)    For the purposes of this Act, a person (the discriminator) discriminates against another person (the aggrieved person) on the ground of a disability of the aggrieved person if, because of the disability, the discriminator treats, or proposes to treat, the aggrieved person less favourably than the discriminator would treat a person without the disability in circumstances that are not materially different.

(2)    For the purposes of this Act, a person (the discriminator) also discriminates against another person (the aggrieved person) on the ground of a disability of the aggrieved person if:

(a)    the discriminator does not make, or proposes not to make, reasonable adjustments for the person; and

(b)    the failure to make the reasonable adjustments  has, or would have, the effect that the aggrieved person is, because of the disability, treated less favourably than a person without the disability would be treated in circumstances that are not materially different.

38    Section 4 of the DD Act defines “reasonable adjustment” as:

…an adjustment to be made by a person is a reasonable adjustment unless making the adjustment would impose an unjustifiable hardship on the person.

39    Section 29 of the DD Act provides:

Administration of Commonwealth laws and programs

It is unlawful for a person who performs any function or exercises any power under a Commonwealth law or for the purposes of a Commonwealth program or has any other responsibility for the administration of a Commonwealth law or the conduct of a Commonwealth program, to discriminate against another person on the ground of the other person’s disability in the performance of that function, the exercise of that power or the fulfilment of that responsibility.

40    Ms Luck contends that in dealing with her application for an adjournment the primary judge was performing an executive function in responding (or not responding) to her request for “reasonable adjustments” under the DD Act, and that this gave rise to a breach of the separation of powers, and therefore a reasonable apprehension of bias on the part of the primary judge.

41    We do not accept this contention. At least in the performance of judicial functions, judicial officers are not subject to the DD Act and any claim of discrimination would be precluded by the principle of judicial immunity: Fingleton v The Queen (2005) 227 CLR 166 at [36]-[39] per Gleeson CJ citing Sirros v Moore [1975] QB 118 at [132] per Lord Denning MR; Yeldham v Rajski (1989) 18 NSWLR 48. In our view a complaint in respect of actions taken or not taken in the exercise of a jurisdiction conferred on a Chapter III judge cannot found an action under the DD Act.

42    Ms Luck though maintains that she is not asserting a discrimination claim against the learned primary judge. Rather, Ms Luck seems to contend that in considering her application for “reasonable adjustments” under the DD Act, his Honour improperly exercised executive power and breached the doctrine of separation of powers. Ms Luck contends that an administrative officer within the Court, such as the Court’s Chief Executive Officer or his delegate, should have instead considered the adjournment application.

43    We do not agree. His Honour’s decision to refuse the adjournment was made in dealing with the interlocutory application filed on 30 October 2014. In dealing with that application his Honour was exercising judicial power in granting or refusing the adjournment of a matter before the Court. His Honour was not exercising executive power.

44    Nor did his Honour treat the adjournment application as an application for “reasonable adjustments” under the DD Act. In Luck v USQ No 1 (at [9]) in relation to the first adjournment application his Honour explained:

In argument this afternoon [Ms Luck] stressed that the judiciary must be absolutely separate from the other two arms of government. She argued that that separation was impermissibly impinged upon by the need for the Court to perform the executive function of determining whether to provide reasonable adjustments to her, as required by the Disability Discrimination Act 1992 (Cth), when sought by her in the Court. She stressed that the requirement for the provision of such adjustments were a matter that fell under the legislation, on the executive government. That may or may not be right, but Ms Luck makes no request for any reasonable adjustments to be accorded for her in relation to the present proceeding, and the matter has been argued by her fully and at length this afternoon. (Emphasis added.)

In Luck v USQ No 2 (at [14]) in relation to the second adjournment application, while noting that Ms Luck sought “reasonable adjustments” the primary judge did not deal with the application by reference to that request.

45    We do not consider that there has been any breach of the separation of powers doctrine in his Honour dealing with the second adjournment application. Nor can we see how his Honour’s decision on that application provides any basis upon which he could properly be asked to recuse himself.

The alleged “adverse comments” made by the primary judge

46    Ms Luck alleges that the learned primary judge made “adverse comments” to her in previous cases before his Honour. In this regard she relies on his Honour’s reasons in Luck v Chief Executive Officer of Centrelink (No 2) [2008] FCA 2020 at [6]-[7] and Luck v Chief Executive Officer of Centrelink (2008) 107 ALD 538 at [20].

47    Our review of his Honour’s remarks in the first of these matters shows that his statement represented his assessment, reasonably stated, of the merits of Ms Luck’s application for an adjournment in that case. This does not indicate that fair-minded lay observer might reasonably apprehend that his Honour might not bring an impartial mind to the matter then before him. If merely declining an adjournment application operates to disqualify a judge from hearing a case involving that party, the court system would soon reach a stage where, for practical purposes, individual parties could influence the composition of the bench.

48    In the second of these matters his Honour was dealing with an application for an extension of time within which to bring proceedings under the ADJR Act. His Honour refused to extend time because he considered the application had no reasonable prospects of success. Without going to the details of the decision, it gives no indication of bias and is consistent with common sense. Without more, the fact that his Honour decided against Ms Luck, in a case involving different parties and brought on different grounds, does not mean that a fair-minded lay observer might reasonably apprehend that his Honour might not bring an impartial mind to the resolution of the question his Honour was required to decide in the present case. Ms Luck did not advance anything more.

49    In our view, none of the matters raised by Ms Luck, assessed individually or cumulatively, might raise a reasonable apprehension of bias in a fair minded lay observer. We are satisfied that the primary judge did not err in refusing to recuse himself.

Issue 2: Whether the primary judge erred in finding that the Decisions were made under the USQ Act rather than a Commonwealth enactment (and therefore that the ADJR Act and the Judiciary Act did not apply)?

50    In order for the jurisdiction of the Federal Court to be enlivened by the ADJR Act or the Judiciary Act, the Decisions sought to be reviewed must have been made pursuant to, or have arisen under, a law of the Commonwealth.

51    Ms Luck contends that the proceeding is a matter arising under the Higher Education Funding Act 1988 (Cth) (“HEFA”) or the Higher Education Support Act 2003 (Cth) (“HESA”) and that the primary judge wrongly held that the Decisions were made pursuant to the USQ Act. She argues that the Decisions were made pursuant to the HEFA and/or the HESA on the basis that these statutes contain obligations that bound the University with respect to various matters.

52    We do not agree. While the HEFA and the HESA are central pieces of legislation relating to higher education in Australia they were primarily enacted in order to facilitate Commonwealth funding and support of higher education in Australia through payments to education providers and financial assistance to students: section 2A of the HEFA; section 3.1 of the HESA. Although they impose certain obligations on educational institutions they make no provision for decisions by a university suspend or cancel the enrolment of students.

53    Decisions concerning the admission, enrolment and discipline of students are to be made pursuant to the USQ Act and related legislation. Section 56 of the USQ Act confers jurisdiction on the University council to make university statutes with respect to various matters including the admission, enrolment and discipline of students. Section 7.9 of the ‘Student Discipline Policy for General Misconduct Policy and Procedure’ states:

A body empowered to suspend or terminate the enrolment of a student may direct that the suspension or termination be set aside or deferred upon the conditions that the body decides.

54    While it has not been established that the decision to suspend the enrolment of Ms Luck was made under this university statute, it is clear that the USQ Act envisages that matters of University administration including enrolment and disciplinary matters are to be governed directly or indirectly by this Act.

55    In our view the learned primary judge was correct in deciding that the Decisions sought to be reviewed were made pursuant to the USQ Act rather than under either the HEFA or the HESA.

Issue 3: Whether the primary judge erred in finding that the University or its decision-makers were not officers of the Commonwealth for the purposes of the Judiciary Act?

56    Ms Luck contends that the decision made by the University was made by an “officer of the Commonwealth” for the purposes of section 75(v) of the Constitution and section 39B(1) of the Judiciary Act.

57    This Court has no jurisdiction to consider the application insofar as it is made under section 75(v) of the Constitution. That provision confers original jurisdiction on the High Court rather than on this Court with respect to matters “in which a writ of Mandamus or prohibition or an injunction is sought against an officer of the Commonwealth”. However, this Court has coextensive jurisdiction pursuant to s 39B(1) of the Judiciary Act.

58    Ms Luck contends that the University’s exercise of federal functions under the HEFA and/or the HESA makes the University an “officer of the Commonwealth” for the purposes of section 39B(1) of the Judiciary Act. We do not agree. Whether a person or body is an “officer of the Commonwealth” is not determined by reference to the exercise of federal power but rather to a connection to the Commonwealth that involves “an ‘office’ of some conceivable tenure, and connotes an appointment, and usually a salary”: R v Murray & Cormie; Ex parte Commonwealth (1916) 22 CLR 437 at 452 per Isaacs J. See also Clarkson v Commonwealth of Australia [2006] FCA 1348 at [27] per Finn J.

59    In our view officers, agents and employees of the University do not meet these criteria and do not possess the requisite relationship with the Commonwealth so as to constitute “officers of the Commonwealth” within the meaning of section 39B of the Judiciary Act. We note that the University is a body corporate created, incorporated and administered under the USQ Act, which is Queensland legislation. The fact that some obligations are imposed on the University by federal legislation such as the HEFA and the HESA is an insufficient basis to characterise the University or its agents or employees as officers of the Commonwealth for the purposes of section 39B(1) of the Judiciary Act.

Issue 4: Whether the primary judge erred in failing to determine the application for leave to join the second respondent as a party?

60    Ms Luck contends that the failure of the primary judge to hear and determine her application for leave to join the Chief Executive Officer of the University as a respondent to the proceeding gave rise to an error of law.

61    Ms Luck’s application for leave to file a Further Amended Application to join the Chief Executive Officer was filed on 26 May 2009. The University’s objection to the competency of the application was filed on the same day.

62    On 1 November 2013 the learned primary judge reached the view that it was in the interests of justice for the objection to competency to be ruled on without further delay and considered there was no need to hear and determine the purported joinder of the second respondent prior to doing so.

63    In our view this was a proper exercise of the primary judge’s discretion, and we can discern no appealable error in his Honour’s approach. We note that the joinder of the Chief Executive Officer as the second respondent could not have invested Ms Luck’s underlying application with competency and allowing the proposed amendment would have been of no utility. We reject this ground of the appeal.

Issue 5: Whether the appellant was denied natural justice?

64    Ms Luck claims that she was denied fairness, transparency, equality before the law, freedom from bias, and the right to be heard, in the hearing of the second adjournment and recusal application. She contends that she was denied natural justice but her submissions do not elaborate on this contention. We have addressed them by making some assumptions as to the matters which might be said to underpin the contention.

65    First, to the extent that any breach of natural justice is said to have arisen due to bias on the part of the primary judge these claims have been addressed above. In our view they have no basis.

66    Second, it may be noted that Ms Luck was in default of r 5.22(a) and (c) as she did not file an affidavit in support of her adjournment application although an affidavit was appropriate (see r 17.01(1)(b)), and again when she failed to appear on 1 November 2013 to prosecute her application. She appears to have taken the erroneous view that she was entitled to an adjournment and was not required to present evidence or argument as to why an adjournment should be granted. We do not consider that Ms Luck can make an adjournment application unsupported by an affidavit, not appear to prosecute the application, and then properly assert a lack of natural justice.

67    Third, the learned primary judge’s reasons indicate that he properly considered the adjournment application. His Honour apparently accepted that Ms Luck failed to appear at the hearing on 1 November 2013 due to the medical conditions set out in a short medical report attached to her application. Notwithstanding her failure to appear to prosecute the adjournment application the primary judge gave detailed consideration to the issues: Luck v USQ (No 2) at [4]-[17].

68    His Honour noted that the objection to competency was filed in May 2009 and had not yet been determined more than four years later. His Honour also considered Ms Luck’s medical conditions noting that they appeared to have changed little over the past two years.

69    Ultimately, his Honour had little confidence that Ms Luck, as the moving party, would be willing and able to deal with the objection to competency at any time in the foreseeable future. His Honour considered the interests of justice including what was required by ss 37M and 37N of the Federal Court of Australia Act 1976 (Cth), and said (at [17]):

This proceeding has lingered on the list for far too long. The interests of justice require that it be determined. If the objection to competency has substance, as I consider it does, the University’s objection should be ruled on without further delay.

70    The Courts have long recognised that in having regard to the interests of justice the rights of both parties to the litigation must be considered: Watson v Watson (1968) 12 FLR 164 at 166 per Asprey JA; see also Sali v SPC Ltd and Another (1993) 116 ALR 625 at 636 per Toohey and Gaudron JJ to which Dawson, Gaudron and McHugh JJ made reference in the State of Queensland v J L Holdings Pty Limited (1997) 189 CLR 146 at 154. It may be accepted that the illness of a party will usually be sufficient to entitle him or her to an adjournment unless prejudice can be shown: see Neil at 151 per Brennan, Deane, Toohey, Gaudron and McHugh JJ. But, as the learned primary judge noted, the proceeding had been on foot for four years and was the subject of an objection to competency by the University which, on its face, was well founded. Ms Luck’s health problems were long-standing and there was no evidence as to when those difficulties would be sufficiently alleviated in order to allow the matter to proceed. In these circumstances we can see no error in his Honour’s decision to proceed and determine the objection to competency.

71    The precise requirements of natural justice are flexible and are determined by reference to the circumstances of a particular case rather than to a fixed body of rules: Mobil Oil Australia Pty Ltd v Federal Commissioner of Taxation (1963) 113 CLR 475 at 504 per Kitto J. As Tucker LJ said in Russell v Duke of Norfolk [1949] 1 All ER 109 at 118:

The requirements of natural justice must depend on the circumstances of the case, the nature of the inquiry, the rules under which the tribunal is acting, the subject matter that is being dealt with, and so forth.

See also R v Commonwealth Conciliation and Arbitration Commission; Ex parte Angliss Group (1969) 122 CLR 546 at 552 per Barwick CJ, McTiernan, Kitto, Taylor, Menzies, Windeyer and Owen JJ.

72    The requirements of natural justice did not preclude his Honour from determining the adjournment application and the objection to competency in Ms Luck’s absence. The determination of the objection to competency was a straightforward legal issue which had been outstanding for more than four years. In our view it was appropriate for his Honour to deal with it on the date to which Ms Luck consented.

73    Fifth, we note that his Honour’s decision to refuse the adjournment application and to hear the objection to competency was an exercise of discretion. We cannot see any basis for a conclusion that the primary judge acted upon a wrong principle, allowed extraneous or irrelevant matters to guide or affect him, mistook the facts, or did not take into account some material consideration: House v The King (1936) 55 CLR 499 at 505 per Dixon, Evatt and McTiernan JJ. There is no proper basis to interfere with his Honour’s decision.

74    We can see no breach of natural justice.

conclusion

75    For these reasons the appeal must be dismissed, and Ms Luck must pay the first respondent’s costs.

Associate:

Dated:    15 October 2014