FEDERAL COURT OF AUSTRALIA

Luck v University of Southern Queensland [2011] FCA 1335

THE COURT ORDERS THAT:

1.    The applicant’s application for an adjournment or stay be refused.

2.    The applicant’s application for an extension of time in which to institute an appeal against the judgment of the Honourable Justice Bromberg delivered on 21 April 2011 be refused.

3.    The applicant’s application for an extension of time, which was filed on 1 December 2011, be otherwise dismissed.

4.    The applicant pay the respondent’s costs of and incidental to this proceeding.

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

REASONS FOR JUDGMENT

The applications

1    The applicant, Gaye Luck, has applied for an extension of time under Rule 36.05 of the Federal Court Rules 2011 (Cth) (“the Rules”) in order to file a notice of appeal. Ms Luck, who is self-represented, appeared in person at the hearing on 15 December 2011. The University of Southern Queensland, the respondent in these proceedings, opposed Ms Luck’s application. The University was represented by Ms Philippa Mitchell of Clayton Utz, the respondent’s solicitors.

2    Also at the hearing on the afternoon of 15 December 2011, Ms Luck applied for an adjournment of the hearing of her application for an extension of time, essentially upon the ground that she had, some hours before, filed applications for removal of these proceedings to the High Court of Australia pursuant to s 40 of the Judiciary Act 1903 (Cth). The stated grounds included that “common matters for determination … arise under sections 75 and 76 of the Constitution, under treaties”, Commonwealth legislation, and various international instruments. The University opposed Ms Luck’s adjournment application.

3    In both proceedings, Ms Luck has filed an affidavit sworn by her on 1 December 2011 in support of her extension of time application. Amongst other things, Ms Luck has deposed as follows:

1.    She is in a state of financial hardship and in receipt of various Centrelink benefits.

2.    She suffers from chronic and acute illnesses (supported by medical certificates), as a result of which “for the past 17 months, [she has] been very ill and unable … to interact with the Courts and parties in respect of progressing [her] litigation which [she has] afoot in the Federal and High Courts”.

3.    She has recovered to the extent that she is attempting to undertake her duties again, although she “continue[s] to require the necessary reasonable adjustments granted to [her], as confirmed by Dr Leow in her medical certificate dated 30 November 2011 as provided to the Registrar”.

4.    She has special needs entitling her to reasonable adjustments in accordance with the Disability Discrimination Act 1992 (Cth), the Human Rights and Equal Opportunity Commission Act 1986 (Cth) and nominated international instruments, and under the Rules.

4    Further, Ms Luck deposed that:

The ground for not having filed these appeals is that I have been too ill to progress my matters and I have filed in the Registry, my applications seeking adjournments and stays in these matters, and provided notifications of my illness and inability to comply with oppressive orders and directions, all supported by Medical Certificates by registered practitioners, on numerous occasions, including in my affidavit of 5 February 2010, and on 3 June 2010, 19 November 2010 and 5 April 2011 and directed specifically to Justice Bromberg.

The questions involved are these matters, in both cases:

a.    Whether I was denied natural justice and statutory human rights as provided for by the Disability Discrimination Act 1992, the United Nations Convention on the Rights of Persons with Disabilities, the Australian Human Rights Commissions Act 1986 and the Articles of the Covenants and Treaties attached thereto and the International Covenant on the Economic, Social and Cultural Rights, by the Justice in his failure to grant me reasonable adjustments without proving that unjustifiable hardship was caused to any party other than myself, and in his judgment of 21 April 2011 to dismiss my Notices of Motion seeking review of decisions made in the processing and decision making of the Taxation of Bill of Costs and related issues pending in the Federal Court of Australia, all containing disability discrimination issues, while I was too ill to appear or conduct my proceedings?

b.    Whether the Justice erred in domestic and international law?

c.    Whether the Justice misapplied or did not consider the relevant human rights law to my circumstances?

d.    Whether I had cause to apprehend issues bias (disability discrimination) in respect of the making of any decisions, determinations, Orders or Directions by the Federal Court of Australia whilst the applicant’s proceedings filed in the High Court remained afoot, as the Federal Court and its officers are parties to the proceeding Gaye Luck v Federal Court of Australia and Ors M85/2009 (now on appeal from a single justice of the High Court) matter M149/2011, and as to the determinations yet to be made by the High Court, of the common questions of law that encompass that proceeding and my other matters, pending in the High Court, those being Application for Special Leave to Appeal Gaye Luck v University of Southern Queensland M65/2009, now appeal M148/2011, the Application for Special Leave to Appeal Gaye Luck v Chief Executive Officer of Centrelink and Anor M50/2009, now appeal M146/2011, the Application for Removal Gaye Luck v Chief Executive Officer of Centrelink (FOI Principal Officer) M52/2009, now appeal M147/2011 and Application for an Order to Show Cause Gaye Luck v Federal Court of Australia and Ors M85/2009, now M149/2001 and Application for Removal Gaye Luck v University of Southern Queensland and Anor M112/2009 and Application for Removal for pending appeal in the Federal Court of Australia from AAT, Gaye Luck v Secretary of Department of Human Services M10/2010, now appeal M151/2011.

e.    Whether the appellant and the public most likely entertained a reasonable apprehension that the primary judge in these matters, Justice Tracey and the appeal judges brought impartial and unprejudiced minds to the deciding of the matters?

f.    Whether the hearing of the Federal Court of Australia proceeding VID476/2008, by the primary judge, the Tracey J, and his refusal to disqualify himself from the matter on my claim of an alleged breach of the separation of powers, my apprehended bias and the apparent interest the justice had in the matter, was a proper exercise of the judicial power under Chapter III of the Constitution?

Ms Luck’s description of the contents of the proposed notices of appeal that accompanied her application for an extension of time may be accepted.

5    In opposing Ms Luck’s extension of time application, the respondent University relied on the affidavit of Philippa Jane Mitchell sworn on 14 December 2011. As noted above, Ms Mitchell also appeared at the hearing on 15 December 2011. Ms Mitchell’s affidavit set out, in summary, steps taken by Ms Luck in other proceedings in which it was involved between 21 April 2011, when the judgments Ms Luck seeks to challenge were delivered, and 1 December 2011, when Ms Luck instituted the present proceedings. Ms Mitchell annexed relevant correspondence to her affidavit.

Judgments sought to be appealed

6    The judgments in respect of which Ms Luck seeks an extension of time in which to appeal were made by a Judge of this Court on 21 April 2011. In each proceeding, his Honour made orders dismissing Ms Luck’s notice of motion of 5 February 2010, with costs. By way of these motions, Ms Luck had sought review of various decisions made by Registrars of the Court. These decisions were as follows:

    a decision on 30 September 2009, refusing to grant an extension of time in which to file and serve a notice of objection to the University’s bill of costs filed in VID 476 on 5 June 2009;

    a decision on 18 January 2010, refusing to make orders in Ms Luck’s favour, dispensing with compliance with O 62 r 46(3) of the Rules; adjourning the taxation of costs in VID 476; or waiving the fee payable for the taxation of costs in VID 476.

    a decision on 22 January 2010, refusing to make orders in Ms Luck’s favour, dispensing with compliance with O 62 r 46(3) of the Rules; adjourning the taxation of costs in VID 476; or waiving the fee payable for the taxation of costs in VID 899 of 2008;

    a decision on 1 February 2010, issuing a Certificate of Taxation in VID 899 of 2008; and

    a decision on 15 March 2010, issuing a Certificate of Taxation in VID 476 of 2008.

7    The procedural background was set out in his Honour’s reasons for judgment of 21 April 2011 (see Luck v University of Southern Queensland (No 4) [2011] FCA 433 at [3] - [16]) as follows:

3.    The proceedings were first listed for directions on 9 March 2010. Prior to the directions hearing, Ms Luck made applications for removal of these proceedings to the High Court (M8 of 2010 and M9 of 2010) (“the High Court applications”). Ms Luck sought the stay or adjournment of these proceedings pending the determination of those applications by the High Court. On 9 March 2010, I granted an adjournment and listed a further directions hearing for 25 June 2010.

4.    On 3 June 2010, the Court received correspondence from Ms Luck seeking a stay or further adjournment of the hearing of these proceedings for two months due to her medical condition and so she could pursue her applications in the High Court. The correspondence was accompanied by a doctor’s certificate.

5.    On 21 June 2010, the respondent informed Ms Luck and the Court that it neither consented to nor opposed that application and on 21 June 2010 I granted an adjournment and listed a further directions hearing for 1 October 2010.

6.    On 30 September 2010, correspondence was sent by Ms Luck to the respondent’s solicitor requesting an adjournment on the same grounds as the earlier application. On the same day the respondent informed Ms Luck and the Court that it consented to that application noting that there had been no progress in the pursuance of Ms Luck’s matters in the High Court and foreshadowing that on the next occasion, the respondent would ask the Court to order a timetable for the completion of procedural steps and to require strict compliance with that timetable. On 30 September 2010 I adjourned the directions hearing to 8 December 2010.

7.    On 19 November 2010, the Court received correspondence from Ms Luck requesting a further stay or adjournment on the same grounds as the earlier applications. By letter dated 22 November 2010, sent via email the following day, the respondent informed Ms Luck and the Court that it would not consent to that application and proposed consent orders to prepare the matter for hearing which took into account the most recent matters raised in the most recent medical certificate provided by Ms Luck, and informed Ms Luck that if her consent was not received, the respondent would seek those orders be made at the hearing on 8 December 2011. Ms Luck did not respond.

8.    On 6 December 2010, the Court’s Acting Manager of Client Services, informed the parties by email that in the absence of consent the directions hearing listed for 8 December 2010 would proceed.

9.    On 8 December 2010, the matter came on for directions and Ms Luck failed to appear. The respondent sought orders in the terms proposed in its correspondence of 22 November 2010. I delivered a short ex tempore judgment (Luck v University of Southern Queensland (No. 3) [2010] FCA 1402) and made the following orders:

1.    The applicant file and serve by 1 March 2011 written submissions and any further affidavits upon which she intends to rely in support of her notice of motion dated 5 February 2010.

2.    The respondent file and serve by 22 March 2011 written submissions and any affidavits upon which it intends to rely in response to the applicant’s notice of motion dated 5 February 2010.

3.    The matter be listed for hearing on 31 March 2011 and

4.     Costs be reserved.

10.    On 14 December 2010, the Court varied the date of hearing to 21 April 2011 and advised the parties.     On 20 December 2010 the respondent served the applicant with a copy of the orders made on 8 December 2010 together with my … reasons for judgment and an email noting the change of listing date for the final hearing.

11.    On 1 February 2011, Ms Luck sent the Court and the respondent a letter (enclosing a medical certificate dated 31 January 2011) in which she again sought an adjournment of these proceedings pending her recovery and the hearing and determination of the High Court matters. In a manner typical to much of the correspondence received from Ms Luck, the letter ended with the following statement:

I will not be interacting with the courts or the parties or undertaking related work following filing and serving of this letter and medical certificate by facsimile, and request that any correspondence that flows from this is kept to the bare minimum, and I will appropriately respond after my period of rest and recuperation.

12.    In response to that correspondence on 4 February 2011 Ms Luck was contacted by the Court and informed that any application for the vacation of the trial would only be considered if she filed a notice of motion and supporting affidavit. On 21 February 2011, Ms Luck was further informed in the following terms:

If you seek to rely on your medical condition as a ground for not pursuing your action, including by seeking to vacate the trial listed for 21 April 2011 and, or requiring that the Court not communicate with you, then the Court will require evidence on affidavit as to your medical condition and your unfitness to press your application. The presentation of a medical certificate not supported by an affidavit from the medical practitioner concerned will not suffice for that purpose.

13.    The Court has received various further responses from Ms Luck asserting her right to dictate how and when the Court will proceed with her matters. On 21 February Ms Luck sent a response to the Court in the following terms:

I find this correspondence harassing and traumatising and do not expect it to continue.  When the time comes for my medical certificate to expire or be renewed, I will consider the circumstances at that time in accordance with the status of my disabilities. I seek all concessions, adjustments, adjournments, stays and time extensions on the basis of my disabilities in accordance with my rights under the Disability Discrimination Act 1992.

Please cease this communication as it is not essential or necessary at this time.

14.    On 5 April 2011, the Court received further correspondence from Ms Luck, via the respondent’s solicitors requesting a further adjournment or stay of the proceedings on similar grounds to the previous applications and accompanied by a further doctor’s certificate.

15.    On 12 April 2011 the Court contacted Ms Luck via email re-advising her in the same terms as the 21 February 2011 email. Ms Luck responded in the following terms:

I write to inform you that I am unable to comply with the oppressive direction, I presume made by his Honour via Courtney Davey on 21 February 2011 and attached in the form of an email received today from Ms Davey.  I have also notified his Honour via the same means, on several occasions, that I seek concessions and reasonable adjustments in respect of the form in which I make my applications.

I have provided certification from Dr Leow and Dr Varney and clearly, as a disabled person, I am entitled to be granted my rights under the Disability Discrimination Act 1992 and the United Nations Convention on the Rights of Persons with Disabilities.

The only difference between the form directed by his Honour, i.e., affidavit, and my application in writing with qualified certification, is the amount of distress, trauma, pain and suffering I must endure to make it.  The initial reason for my seeking adjournments or stays due to my ill health, in June last year, was based on the traumas I suffered at the hands of the Courts and parties and the refusal to grant my disability rights to reasonable adjustments. 

His Honour’s refusal to accept my requests for the grant of my rights is a breach of domestic and international human rights law, and I consider it to be a persistent form of victimisation and harassment, and request that it be ceased immediately.

I am unable, as a self represented litigant, at this stage, due to my certified medical conditions, to cope with the preparation of any formal documents in regard to this matter, nor am I able to obtain the necessary authorised signature/s to formalise the documents, as it causes me to be further traumatised, and likely to extend the period of time I will be unable to comply with these oppressive directions.

Please forward this information on to his Honour.

16.    There is also evidence before me that Ms Luck has failed to take steps to progress her applications in the High Court.

8    His Honour went on to describe, in some detail, the various medical reports that Ms Luck had sent the Court – all indicating that Ms Luck was, at the relevant time, unable to pursue the litigation in which she was involved: see Luck v University of Southern Queensland (No 4) [2011] FCA 433 at [17]-[22].

9    His Honour’s reasons for judgment show that his decision was made under O 35A of the Federal Court Rules 1979 (Cth) and in accordance with Welsh v Digilin Pty Ltd (2008) 250 ALR 13 (“Welsh v Digilin”) at [12]-[14], in which the Full Court stated:

The power conferred by [O 35A r 3(1)] is discretionary, and, as observed by Wilcox and Gummow JJ in [Lenijamar Pty Ltd v AGC (Advances) Limited (1990) 27 FCR 388 at 395-396] in relation to a precursor to this rule:

The power given by the rule is conditional on one circumstance only: the failure of a party to comply with an order of the court directing that party to take a step in the proceeding. There is no requirement of intentional default for contumelious conduct, although the attitude of the applicant to the default and the Court’s judgment as to whether or not the applicant genuinely wishes the matter to go to trial within a reasonable period will usually be important factors in weighing the proper exercise of the discretion. There is no requirement of “inordinate or inexcusable delay” on the part of the applicant or the applicant’s lawyers, although any such delay is likely to be a significant matter. There is no requirement of prejudice to the respondent, although the existence of prejudice is also likely to be significant. …

Their Honours continued:

The discretion is unconfined, except for the condition of non-compliance with a direction. Two situations are obvious candidates for the exercise of the power: cases in which the history of non-compliance by an applicant is such as to indicate an inability or unwillingness to co-operate with the court and the other party or parties in having the matter ready for trial within an acceptable period and cases – whatever the applicant’s state of mind or resources – in which the non-compliance is continuing and occasioning unnecessary delay, expense or other prejudice to the respondent. (Lenijamar (1990) 27 FCR at 396).

In our view these comments apply with equal force to the discretion which the court is presently required to exercise under order 35A rule 3(1) ...

10    Plainly enough, this statement of principle was equally applicable to O 35A r 2(1) and his Honour was bound to apply it. In so doing, his Honour held that Ms Luck was in default of O 35A r 2(1)(a) by reason of her failure to comply with the orders made on 8 December 2010. His Honour further held that Ms Luck was also in default of O 35A r 2(1)(b) because of her failure to attend the directions hearing on 8 December 2010; and that, since some 14 months had passed since the notices of motion had been filed and Ms Luck had failed to take any step to progress the proceedings, Ms Luck had failed to prosecute the proceedings with due diligence in breach of O 35A r 2(1)(f).

11    In the exercise of discretion, his Honour took account of the following matters:

1.    Ms Luck’s demonstrated inability or unwillingness to cooperate with the Court;

2.    the prejudice to the University; and

3.    the need to bring finality to the litigation and “the Court’s obligation to facilitate the just resolution of disputes according to law as quickly, inexpensively and efficiently as possible: ss 37M and 37N of the Federal Court Act”.

12    As to the first-mentioned consideration, his Honour said (at [27]- [29]):

Ms Luck’s lack of cooperation is manifested by her refusal to deal with her asserted need for more time through a proper application to the Court. The medical certificates provided by Ms Luck are not verified. Given their number and nature, the respondent is entitled to test the veracity of the conclusions contained in them. Far more critically, and accepting the content of those certificates for the moment, the respondent and the Court needs to be put in the position of knowing what, if any, prospect there is that Ms Luck will, in the future, be in a position to prosecute these proceedings. The medical certificates make it clear that Ms Luck’s medical condition has a close connection with and is adversely affected by her need to prosecute these proceedings.

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. The fundamental point, however, is that Ms Luck’s uncooperative conduct has failed to put the Court in the position to know what her future capacity to prosecute these proceedings truly is.

13    As to the second-mentioned consideration, his Honour said (at [30]-[31]):

The respondent has orders for the payment of its costs, which it is entitled to pursue. In practical terms, it is precluded from doing so whilst the process by which those costs were taxed remains under challenge. That preclusion is an advantage to Ms Luck, aided by her inability to progress these proceedings.

I also take into account the nature of the proceedings and whether the claim appears to have substance. I refer in that respect to Lenijamar Pty Ltd at 402. In essence this is a fight over costs which have been taxed in the sum of some $50,000. The process by which those costs were taxed is challenged, but on the material before me, including by reference to what I regard to be the persuasive written submissions provided by the respondent, Ms Luck’s challenge has no apparent likelihood of success. Even if Ms Luck was successful and the process was to be redone, at best the end result for Ms Luck may be some reduction in the sum to be paid by her by way of costs. In the circumstances, and on the assumption that the medical certificates are correct, there is a real prospect that the pursuance of these proceedings by Ms Luck may well do her more harm than good, even if she should succeed.

The parties’ submissions

14    At the hearing on 15 December 2011, Ms Luck supported her application for an adjournment by reference to various claims, including the following:

1.    The applications for removal under s 40 of the Judiciary Act 1903 (Cth) were made because of the constitutional issues arising in these proceedings. In this connection, Ms Luck referred to Harris v Caladine (1991) 172 CLR 84, asserting that “by … dismissing those matters [his Honour] has actually invalidated the power that the registrar has had in the first instance to make those decisions”.

2.    She was concerned about the possibility that the judges of this Court would be biased against her. Another judge of this Court (who ruled on Ms Luck’s original substantive claim) had, so Ms Luck said, wrongly refused to disqualify himself. Ms Luck maintained that what she described as the judge’s army connection had the effect that the judge “was answering to the same Minister as the Centrelink CEO”.

3.    She had been victimised by judges of the Court, who had failed to accommodate her medical needs, as evidenced by medical certificates.

4.    She had significantly less resources than the respondent University.

5.    She suffered from post-traumatic stress disorder and an adjustment disorder and thus required reasonable adjustments. She recorded that it was “extremely disappointing that in not one single one of my applications or requests for reasonable adjustments in the whole period of time before this court” had her rights under the Disability Discrimination Act 1992 (Cth) ever been addressed.

6.    If the application for a stay or adjournment were refused, then she would (so she said) have to appeal that decision. This would create more work, and she had already paid fees for the removal applications.

15    Although initially unwilling to address her application for an extension of time, Ms Luck ultimately advanced various claims in support of this application, including as follows:

1.    She had been ill for about the past year and therefore unable to pursue litigation. Ms Luck stated that she had been able to cope only since about September this year, when she was “slowly being able to manage things”. Ms Luck said:

For 14, 15 months or 18 months, I have been unfit to look at or do anything in this realm. So, to suggest that I was deliberately not doing anything and being contumelious and all this is ridiculous because I couldn’t do it.

2.    She had been very dutiful and has not been in any way negligent in the care and conduct of her matters. She had kept the Court informed of her medical condition, especially by providing medical certificates.

3.    She had filed an affidavit on 5 February 2010 annexing medical certificates, with her notice of motion of that date.

4.    She had not abandoned her proceedings in the High Court (as set out in Ms Luck’s letter dated 7 December 2011 to the High Court Registrar).

5.    She is well enough to conduct her litigation now. That is, according to Ms Luck, although she is not one hundred per cent better, she is well enough to conduct her case given the appropriate reasonable adjustments.

6.    The judge against whose judgment she sought to appeal had made appealable errors that could clearly be identified. That is, according to Ms Luck had a legitimate expectation that, when she continually notified the Court and kept it informed of her circumstances and her illness and disabilities, that she would be heard on her motions. Her complaint was that, in these circumstances, she was not heard.

7.    The University’s solicitors continually pushed the Court and the judge should never have allowed them to keep bringing the matter on when Ms Luck was not fit.

8.    The delay occasioned the University no hardship.

9.    Based on her accounting background, Ms Luck maintained that the costs order in the amount of $50,000 was too high and that this is a serious issue. The University’s solicitors created unnecessary documents, thus giving rise to unnecessary costs. Ms Luck, if given the opportunity, could (so she said) reduce the costs bill by 30% - 40%. She disagreed with his Honour that any difference to the costs bill would only be marginal. In her view, there was no need to hurry, because the likelihood of the University actually recovering their costs from her was very limited.

10.    She is a disabled person; and wished to protect her rights under Commonwealth legislation, international instruments and the Charter of Human Rights and Responsibilities Act 2006 (Vic).

11.    She reaffirmed her belief that she was correct to initiate the litigation in this Court and elsewhere and, given a trial, she would succeed on her claims, but had been prevented from doing so for procedural reasons. If the High Court were ultimately to find in her favour, then, according to Ms Luck, the initial judgment on her original claim would by nullified and the costs borne by the University and not by her.

16    At this point, I note too that, Ms Luck provided the Registrar of this Court with a copy of a letter from her medical practitioner, Dr Priscilla Leow, dated 30 November 2011 in which Dr Leow indicated that Ms Luck continued to suffer from symptoms that affected her ability to pursue litigation.

17    The University argued that it was inappropriate to adjourn the hearing or stay the proceedings pending the determination of Ms Luck’s applications for removal, and that no extension of time should be granted. Amongst other things, the University contended that:

1.    The issues that Ms Luck apparently sought to raise by her removal applications could be dealt with in this Court. The relief that Ms Luck sought was properly sought by way of appeal. In any event, the issues that were said by Ms Luck to be “constitutional issues” were not properly described as constitutional issues. There was no basis shown, so it submitted, that should persuade me to leave consideration of such issues to the High Court on a removal application.

2.    If an adjournment or stay of the kind sought by Ms Luck were granted, then the extension of time application would likely be delayed for some significant period – a result inconsistent with the general principle that applications for extensions of time be made and dealt with promptly.

3.    Ms Luck failed to provide a reasonable explanation for the delay in filing a notice of appeal. According to the University, Ms Luck was, at the relevant time, actively taking steps in other litigation in which the University was involved.

4.    His Honour gave Ms Luck ample opportunity to put her case, including several adjournments; and there is no doubt as to the correctness of the judgments she seeks to challenge. The prospects of success on any appeal are low.

Consideration

Adjournment application

18    A question has arisen as to whether to adjourn Ms Luck’s applications for extension of time until after the hearing of Ms Luck’s application to the High Court for removal under s 40 of the Judiciary Act 1903 (Cth).

19    After hearing the parties on 15 December 2011 and bearing in mind their submissions, I am of the clear view that the applications for extension of time should not be adjourned (or the proceedings stayed) whilst the removal applications are determined. First, it is clear that the mere making of an application under s 40 of the Judiciary Act 1903 (Cth) does not preclude this Court from proceeding to consider interlocutory or final issues in a proceeding in relation to which the removal application is made. Secondly, I have borne in mind the observations of the High Court itself in Bienstein v Bienstein (2003) 195 ALR 225 at 234 [45], in which it was said:

Orders for removal interfere with the processes of the courts hearing the proceedings sought to be removed. Only where the issues are important and require this court’s urgent decision should the court make an order for removal. … The s 40(1) power to remove is not intended to convert this court into a court exercising a general supervisory jurisdiction over lower courts.

20    In light of this, after perusing the removal applications filed by Ms Luck in the High Court and considering her submissions, it seems to me a real likelihood that the High Court, on the removal application, might well decline to make an order for removal. The applications for removal were, moreover, only made some hours before the extension of time applications were due to be heard. Ms Luck gave no prior notice to the respondent University that she was minded to take this course. Finally, as the University submitted, the delay occasioned by an adjournment of the kind Ms Luck seeks would be uncertain, and extension of time applications such as these are properly made and determined expeditiously.

Extension of time

21    The Rules currently provide that an appellant must file a notice of appeal within 21 days after the date of the judgment or orders from which the appeal is brought: see Rule 36.03. The former Rules contained the same provision: see O 52 r 15. If leave to appeal is necessary because the judgment is interlocutory (see Federal Court of Australia Act 1976 (Cth), s 24(1A)), then leave to appeal must now be sought within 14 days after the date of the judgment: see Rule 35.13. The former Rules also contained a similar, but not identical, provision: see O 52 r 5.

22    If Ms Luck did not require leave to appeal (which I doubt), then the Rules required her to file a notice of appeal no later than 12 May 2011. If leave was necessary, then an application for leave to appeal was required to be filed no later than 5 May 2011. In either case, Ms Luck is many months out of time.

23    The Court has treated the factors referred to by Wilcox J in Hunter Valley Developments Pty Ltd v Cohen (1984) 3 FCR 344 (in respect of applications for extension of time under s 11 of the Administrative Decisions (Judicial Review) Act 1977 (Cth)) as relevant to a decision whether to extend time in which to appeal, namely:

(1)    The application should not be granted unless the Court is satisfied that it is proper to do so; and the prescribed period is not to be ignored.

(2)    An acceptable reason for the delay is expected and would normally be required.

(3)    Any prejudice to the respondent, including any prejudice in defending the proceedings occasioned by the delay, is a material factor militating against the grant of an extension.

(4)    The mere absence of prejudice is not enough to justify the grant of an extension.

(5)    The merits of the appeal are properly to be taken into account in considering whether an extension of time should be granted.

See, for example, SZQBI v Minister for Immigration and Citizenship [2011] FCA 1388 at [17] and Franich v Secretary, Department of Families, Housing Community Services and Indigenous Affairs [2011] FCA 1362 at [20].

24    Since nothing turns on the point, in so far a necessary, I treat Ms Luck’s application for an extension of time as including an application for an extension of time in which to seek leave to appeal: see Rule 35.14; compare O 52 r 5(3) of the former Rules. Similar considerations govern a decision whether to extend time in which to apply for leave to appeal, including the likelihood of leave being granted (bearing in mind the test as stated in Décor Corporation Pty Ltd v Dart Industries Inc (1993) 33 FCR 397 at 399).

Merits of the proposed appeal

25    I turn immediately to the merits of the proposed appeal. In the present case, this consideration is critical to any extension of time application made by Ms Luck. If the court forms the view that the prospects of success on the appeal are negligible, then the court will not grant an extension of time in which to appeal. Similarly, if the court forms the view that the proposed appeal is most unlikely to be characterised as attended by sufficient doubt to warrant its reconsideration, then the court will not grant an extension of time in which to seek leave to appeal.

26    There can be no doubt that a condition for the exercise of the discretion conferred by O 35A r 2 was satisfied at the time his Honour exercised his discretion under O35A r 3(1). Thus, in order to succeed, Ms Luck would be required to challenge this exercise of discretion. That is, Ms Luck would need to show some error in the application of relevant principles, the taking into account of irrelevant considerations or the failure to take into account relevant considerations in order to establish that there has been some error of law: see Welsh v Digilin at 19 [16] citing House v R (1936) 55 CLR 499.

27    As already stated, his Honour applied the relevant principles. The three considerations to which he had regard were, plainly enough, relevant to the exercise of his discretion: see above at paragraph [11]. It was therefore open to his Honour to have regard to them. His Honour did not have regard to an irrelevant consideration.

28    Furthermore, when his reasons for judgment are read as a whole, it is evident that his Honour reached his decision in the light of the background set out at [3] – [22] of his reasons, including Ms Luck’s conduct of the proceedings in this Court and the various medical certificates sent by her to the Court, and the medical conditions and prognoses to which they referred: see pars [7] – [8] above.

29    When his Honour’s reasons for judgment and Ms Luck’s submissions of 15 December 2011 are compared, it is tolerably clear that they cover the same general ground. Ms Luck’s real point is that his Honour ought not to have exercised his discretion against her. Ms Luck adheres to this view very strongly. Notwithstanding the vigour with which she has stated her case, the fact remains that it was open to his Honour in the circumstances disclosed to him to form a contrary view and to exercise his discretion as he did. The appeal that Ms Luck would bring against his Honour’s judgment has no prospect of success.

30    For the reasons stated, I would not grant an extension of time, whether to file a notice of appeal or apply for leave to appeal, because I am of the view that an appeal (and application for leave to appeal) would likely fail. There is, therefore, no utility in granting any extension of time, whether to appeal or to seek leave to appeal.

31    As already noted, Ms Luck explained that she had been unable to pursue the litigation in this Court for most of the past year on account of illness, although she had made some recovery since about September this year and believed that, with appropriate reasonable adjustments, she is now well enough to manage her litigation. I accept that Ms Luck has been ill and even now is not in good health. These considerations cannot, however, overcome the inutility of any appeal.

32    As will be seen, the respondent University made no particular submission on the subject of prejudice and focussed (as I have done) on the question of the merits of the appeal.

33    For the reasons stated, I would refuse Ms Luck’s application for an adjournment or stay and Ms Luck’s application for an extension of time, with costs.

Associate:

Dated:    23 December 2011