FEDERAL COURT OF AUSTRALIA

Luck v University of Southern Queensland (No 2) [2008] FCA 1594

GAYE LUCK v UNIVERSITY OF SOUTHERN QUEENSLAND

VID 476 of 2008

TRACEY J

22 OCTOBER 2008

MELBOURNE

THE COURT ORDERS THAT:

1.                  The applicant’s application that Tracey J disqualify himself from hearing and determining this proceeding is refused.

Note:    Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

REASONS FOR JUDGMENT

1                     There is before the Court an adjourned application by the University of Southern Queensland (“the USQ”) for summary judgment in this proceeding.  By notice of motion, which is undated but which was filed in the Court on 20 October 2008, the applicant applies for an order that I withdraw from the further hearing of the matter, on the grounds:

“… of actual bias, prejudgment and lack of procedural fairness demonstrated against the applicant in respect of this matter and other matters, VID464/2008, VID488/2008”

2                     A similar application was made to me on 5 September 2008, in the present proceeding and the application was then rejected.  When it was renewed this morning I told the applicant that I would not revisit that ruling, but that I would hear her on any events which had occurred since 5 September 2008, on which she wished to rely.  Her submissions, this morning, were founded on the reasons I had given for refusing her earlier application.  She referred to no event that has occurred since 5 September 2008 in support of her present application.  I do not consider that there can be any proper basis for me to disqualify myself by reason of what I said in explaining my reasons for refusing her earlier disqualification application.

3                     I do not propose to re-canvas what I said in those reasons; although, because the applicant has this morning relied on things that she asserts were said in the course of those reasons, I propose to publish as an annexure to this ruling a statement of the reasons given orally on 5 September 2008. 

4                     I wish to add only this.  The applicant suggests that what I said in my earlier reasons relating to the conduct of counsel assigned to assist her under O 80 of the Federal Court Rules, suggested that I had had extra curial contact with counsel over the matter.  This did not occur.  Insofar as my judgment on 5 September 2008 was based on the dealings between counsel and Ms Luck, I relied on what she told me had passed between them and on what, in my view, was evident from the nature of the referral to counsel.  It is to be borne in mind that what was referred to counsel was Ms Luck’s appeal and the USQ’s application for summary judgment.  It was referred so that counsel could advise Ms Luck as to the legal efficacy of the submissions which had, by then, been filed, in writing, and in which the USQ’s advanced legal argument in support of the proposition that the Administrative Appeals Tribunal (“the Tribunal”) was unquestionably correct in ruling that it lacked jurisdiction to deal with the application before it from Ms Luck.  In my view, it was obvious that counsel, in those circumstances, was not required or obliged to look at any of the documents that had been generated in the course of the application to the USQ, under the Freedom of Information Act 1982 (Cth), because what had brought the matter to the Tribunal was an alleged deemed refusal by the USQ to respond to a request for documents from Ms Luck.  By definition there had been no ruling on the merits of any document.  There was, therefore, no occasion for counsel to look at documents that had been sought and obtained under freedom of information legislation and the other documents to which I referred in the reasons which I gave on 5 September 2008. 

5                     For those reasons I reject the application made in paragraph 1 of the applicant’s notice of motion, filed on 20 October 2008.

ANNEXURE

RULING MADE ON 5 SEPTEMBER

6                     Ms Luck, the applicant in this proceeding, seeks that I disqualify myself from hearing it and two other proceedings in which she is a party which are listed before me at present.  It is inappropriate that any application be made in respect of other matters that are before me, given that there are, in those matters, different respondents who are not seized of the proposal to make this application and plainly could not be heard on such an application, it having been made orally and without notice this morning.  Accordingly, I propose to deal with the application only insofar as it relates to this particular proceeding.

7                     Ms Luck seeks to have me disqualify myself from dealing with the matter for four reasons.  The first is that I did not arrange at the outset of the proceeding for her to receive pro bono advice covering the full range of matters which she says arise in the proceeding.  The second is that I declined to direct that a further pro bono referral be made after two counsel, to whom such referrals had already been made pursuant to certificates which I directed should issue, sought to and were granted leave to withdraw from further obligations to Ms Luck under O 80.  The third reason was that I did not consent to an adjournment of another matter.

8                     And the fourth was that, in another matter I, having agreed to a consent adjournment, directed that that adjournment be to a date on which another matter in which Ms Luck was involved was listed for directions, and that the fact that two matters were listed together for directions was not appropriate, having regard to her medical condition; and that the time at which those matters were fixed for directions was inconvenient to her, having regard to her health.

9                     The test to be applied when an application of this kind is made is whether a reasonable observer of the proceeding would harbour a reasonable apprehension that the trier of fact would not bring an unprejudiced mind to bear on the application when it was to be heard by the court.  In my view, there is no reasonable basis for an apprehension of that kind arising in the present matter.

10                  It is first to be borne in mind that the proceeding is one that, at the outset at least, will involve a very narrow legal issue.  Ms Luck alleges that the Tribunal erred in law by determining that it did not have jurisdiction to deal with an application made to it by her.  That application was an application to review a deemed decision made by a Queensland authority under Queensland and Commonwealth freedom of information legislation refusing her access to certain documents in the possession of the respondent.

11                  The Tribunal determined that it did not have jurisdiction to entertain the application and the respondent wishes to submit that, in the circumstances, the Tribunal was correct.  That is either right as a matter of law, or it is not.  Detailed written submissions have been filed and served by the respondent in support of the proposition.  The advancement of that proposition does not require any reference to the detail of the application, the documents sought, the reasons for refusal, and matters of that kind.  They will only become relevant issues if Ms Luck succeeds in establishing, as a matter of law, that the Tribunal did have jurisdiction.  And if and when that does happen, the matter will be remitted to the Tribunal and it will be for the Tribunal to consider those issues.

12                  The result is that there was no occasion for pro bono advice to the extent demanded by Ms Luck, nor was there a requirement that counsel to whom the reference was made examine all of the minutiae of the freedom of information application in order to give Ms Luck the advice that was needed in order to respond to the objection taken by the respondent to the efficacy of this purported appeal. 

13                  As to whether it was or was not appropriate to grant adjournments to particular times at which hearings in other matters were also listed, I say simply that the business of the Court must proceed, and it cannot and will not be dictated by demands of litigants in circumstances where there is no evidence other than mere assertion as to an applicant’s capacity to attend and appear.

14                  I note that an objection is taken to my having granted an adjournment in another proceeding.  That adjournment was granted to 20 August 2008.  On that day there was another matter in which Ms Luck was involved fixed for a directions hearing.  The fixing of the other matter in conjunction with it was, in the view of the Court, a matter of convenience so that Ms Luck would not have to make an additional journey to the Court.  The issues raised in the two directions hearing were confined, and in the event, they were dealt with in a matter of minutes.

15                  Ms Luck also complains that I will not direct that further pro bono assistance be sought on behalf of Ms Luck under O 80 of the Rules of Court.  This is a decision which I have come to, having regard to what has occurred in relation to the two referrals that have already occurred.  In particular, the most recent referral, which was made to one of the leading specialists at the Victorian Bar in matters of freedom of information, who readily apprehended the legal issue that was involved and was prepared to give advice on it.  He said that it was not necessary for him, in order to give that advice, to look at the minutiae of the application.  He was plainly right in that.  There is, as I have already indicated, a narrow legal question to be resolved at this stage.

16                  The advice could readily have been given without resort to the detail of the application, and counsel was entirely within his rights to say that he would proceed on that basis.  That did not suit Ms Luck.  She accused him of being likely to give biased advice and, in those circumstances, he very properly determined that he would not continue and sought leave to withdraw.

17                  In those circumstances, I do not propose to give any further directions.  More importantly for present purposes, my decision not to do so is not indicative of bias in the necessary sense.  Accordingly, the application is rejected.

Associate:

Dated:         23 October 2008