FEDERAL COURT OF AUSTRALIA

Luck v Chief Executive Officer of Centrelink (No 2) [2008] FCA 2020

GAYE LUCK v CHIEF EXECUTIVE OFFICER OF CENTRELINK and SECRETARY OF DEPARTMENT OF HUMAN SERVICES

VID 488 of 2008

TRACEY J

15 OCTOBER 2008

MELBOURNE

THE COURT ORDERS THAT:

1.          The application that Justice Tracey withdraw from hearing the proceeding be refused.

2.          Leave to appeal from the order made in paragraph 1 of the Orders made herein on 20 August 2008 be refused.

3.          The Orders made on 20 August 2008 numbered 2, 3 and 4 be vacated.

4.          The Applicant file and serve any submissions in response to the Respondent’s submissions on or before 3 December 2008.

Note:    Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
The text of entered orders can be located using eSearch on the Court’s website.

REASONS FOR JUDGMENT

1                     On 30 June 2008 the applicant filed an application for an order of review in the Court.  It named the first respondent as Jeff Whalan, Chief Executive Officer of Centrelink, and as second respondent, the Secretary of the Department of Human Services.  The application was said to be made under s 19 of the Federal Court of Australia Act 1976 (Cth) and the Administrative Decisions Judicial Review Act 1977 (Cth).  It sought judicial review of a range of decisions made by Centrelink in relation to the applicant and, in particular, decisions that, when contacting Centrelink, she was required to deal with particular officers and no one else for specified periods.  The matter came on for directions in July and again on 20 August 2008.  The respondents objected to the competency of the proceeding and filed written submissions in support of the objection.

2                     On 20 August 2008, I ordered that the name of Jeff Whalan be removed from the title of the first respondent.  I also fixed a timetable within which the applicant was given the opportunity to file and serve any submissions that she may have been minded to file in response to the submissions made by the respondents in support of their notice of objection to competency.  That timetable gave the applicant until 26 September 2008 to file submissions and there was also provision made for any answering submissions by the respondents to be filed on or before 10 October 2008.  The matter was listed for hearing this morning at 10.15 am.

3                     In the event it was not able to be called on at 10.15 am because an appeal bench, of which I was a member, had not completed its business by that time.  The hearing commenced later in the morning.  The applicant has not filed any submissions in response to the respondent’s submissions relating to the competency of the appeal.  Nor has she sought in a timely way, at least, any enlargement of time within which to make those submissions.  By notice of motion which is undated, but which was filed in the court on 13 October 2008, the applicant seeks an order that I withdraw from the matter on the ground of actual bias, prejudgment of the matter and lack of procedural fairness said to have been demonstrated in both this matter and a proceeding which I determined last week, namely, VID 464 of 2008. 

4                     This morning Ms Luck developed submissions in support of an order of the kind sought in the notice of motion.  She contended that I had prejudged the outcome of the present proceeding, that I had demonstrated actual bias and that I had done so in a number of ways.  As to prejudgment she submitted that when, on 20 August 2008, I made an order removing Jeff Whalan as a named respondent but leaving “Chief Executive Officer of Centrelink” as the first respondent I had prejudged the outcome of the case, and in some way absolved Mr Whalan of any responsibility for any actions that the applicant sought to impugn.  As already noted, the applicant had the opportunity to attend had she so wished on 20 August, and, had she done so, she would have been heard in opposition to the application for removing Jeff Whalan as respondent.

5                     He was removed because he was not at that time, and nor had he been for some considerable period, the Chief Executive Officer of Centrelink.  Had he remained the first respondent and had some or all of the complaints made by the applicant been sustained at trial it would not assist the applicant at all to have Mr Whalan nominated as the first respondent because any orders made against him as Chief Executive Officer of Centrelink would be unenforceable: he would not be in a position, given that he is not the Chief Executive Officer, to give effect to any such orders.  No redress was sought against Mr Whalan other than in his former capacity.  It is therefore, very difficult to appreciate how it can be asserted that, in removing Mr Whalan’s name (but not the office which he formerly held) the applicant is in any way prejudiced.

6                     In support of the claim of actual bias, the applicant complains that I have failed, on a number of occasions, to grant adjustments required by her to the court’s procedural timetable.  In particular, she referred to a requirement of hers that matters be relisted at a time suitable to her.  I reject this complaint.  The applicant has had plenty of time to respond to the argument that was raised in support of the objections to competency.  She has chosen not to put on submissions.  There have been many adjustments made to assist her.  The matter was listed at 10.15 am this morning to assist her.  It was listed on a Wednesday because she advised the court she was not, for some unstated reason, available on Tuesdays and the case was listed a week apart from two other matters in which she is involved in order that she was not required to prepare for hearings on successive days.

7                     Her next complaint is that, in some way, she has been discriminated against on the basis of her disability.  I understand that to be a reference to the matter just dealt with, namely, the failure to grant adjustments which she requires.  I say no more about that as an independent ground.  She next referred to the fact that pro bono counsel allocated to her, in order to assist her in preparation and argument of this and other cases, were lacking in necessary experience.  The choice of pro bono counsel was not a matter for me.  My role was simply to direct that a Registrar make inquiries of counsel, who may have been willing to accept a retainer to act on behalf of the applicant in this matter.  It was entirely a matter for the Registrar to determine to whom a request should be directed.  In the event two barristers were invited to assist.  Both expressed a willingness to do so.  Ms Luck objected to them both on the basis that she did not consider them to have the necessary experience.  The result was that those counsel sought leave to withdraw from their retainers and that leave was granted.

8                     A third attempt was made to secure the services of counsel to assist the applicant.  This barrister was undoubtedly qualified to provide the advice which she sought.  For reasons, to which the court is not privy, there was a disagreement between them which led to that member of counsel also seeking leave to withdraw.  In the circumstances in which he felt unable professionally to continue that leave was granted.  It is, therefore, not acceptable to the court to have it suggested that it was in some way involved in the choice and allocation of counsel, much less the way in which counsel and the applicant interacted after the registry had arranged for such retainers to be provided.

9                     It is next said that my actual bias is demonstrated by the fact that, last week, I decided another case involving the applicant and Centrelink, in a manner adverse to the applicant.  The fact that a different case involving different grounds, albeit with the same parties, was decided adversely to the applicant, can have no bearing on the question of whether the court can approach the present application in a fair minded way. 

10                  There was one other matter that was adverted to by the applicant in argument that requires a response.  It was that is that she was forced on for two hearings on 20 August 2008, and, for that reason, was unable and unwilling to attend court on that day.  It should be recorded that all that was fixed for that day, which was a directions day, were two matters.  They were both listed for procedural directions.  Neither was fixed for final argument.  They were matters that could reasonably be expected to have been dealt with in a matter of minutes, in order that appropriate directions could be given with a view to bringing them on for trial.

11                  In dealing with this application to disqualify myself, I am required to determine whether a reasonable bystander, or fair minded lay observer, would conclude that I might not bring, or might not have brought, thus far, an impartial mind to the resolution of the proceeding that is listed for hearing today.  Applying that test, and for the reasons which I have expounded, I reject the application. 

12                  By notice of motion, filed on 13 October 2008, the applicant seeks an order that leave to appeal be granted from an order which I made on 20 August 2008, to remove the name Jeff Whalan from the composite title of the first respondent, which was at that time, “Jeff Whalan, Chief Executive Officer of Centrelink”.  Leave to appeal is necessary because the decision which I made at a directions hearing on that day was interlocutory in nature.  Accordingly, as required by O 52, r 10(2A)(b) of the Federal Court Rules, Ms Luck was required by notice of motion to seek leave to appeal within seven days.  The application which is made today is plainly out of time, and no reason is given on affidavit or otherwise for the delay.

13                  From the bar table it is said that some attempt was made to file a notice of appeal, and, again from the bar table, I am told that was done, or attempted to be done in the second week of September.  But beyond that I have no understanding of why it was that a timely application was not made.  The application that is made on notice today being plainly out of time, and there being no reason demonstrated why that is so, much less why it should be accepted and dealt with out of time, is enough to lead to its rejection.  In any event, I do not consider that it has been established that the decision which I made on 20 August 2008, is attended by sufficient doubt to warrant it being reconsidered by the Full Court, or that any substantial injustice would result if leave were refused, supposing the decision to be wrong:  see Décor Corporation Pty Ltd v Dart Industries Inc (1991) 33 FCR 397.

14                  I have come to this view having regard to the three grounds that were advanced in argument which I was told would be relied on in the proposed appeal from my decision.  The first was that there was a denial of natural justice because, in some way, I had prejudged the matter, presumably before 20 August.  The second was that there had been an absence of procedural fairness, given that the applicant was not present when the order was made.  As to the first point, there was no prejudgment.  I had no prior notice of the application, made on behalf of the first respondent on 20 August, that the name Jeff Whalan be removed from the case title.  I dealt with it on that day on the simple basis that Mr Whalan was not, at that time, and had not for some time, been the Chief Executive Officer of Centrelink, and that there would be no disadvantage occasioned to the applicant by the removal of his name.  For reasons which I have given earlier in this judgment, it would, in fact, have operated to the potential disadvantage of Ms Luck if Mr Whalan’s name had remained on the record.

15                  The third ground was unreasonableness.  This ground was not developed, and for it to succeed it would have been necessary for Ms Luck to establish that the order was so unreasonable that no reasonable person could have made it.  For the reasons which I have explained, the order was appropriate in the circumstances, and, far from having potentially disadvantageous consequences for the applicant, had potential benefits for her were she successful in the application proper.  I therefore refuse leave to appeal from the order that I made on 20 August 2008, to remove the name Jeff Whalan from the title of the first respondent. 

16                  The applicant moves the court for an extension of time within which to file and serve submissions, and a vacation of the date fixed for the hearing of submissions on the respondent’s objection to the competency of the proceeding.  The respondents do not object to the making of the orders sought. 

17                  Accordingly, I make the following orders.  The orders made on 20 August 2008, numbered 2, 3 and 4, be vacated and, in lieu thereof, it be ordered that the applicant file and serve any submissions in response to the respondent’s submissions on or before 3 December 2008.

Associate:

Dated:         5 March 2009