FEDERAL COURT OF AUSTRALIA

Luck v University of Southern Queensland [2013] FCA 1064

THE COURT ORDERS THAT:

1.    The further hearing of the respondent’s objection to competency be adjourned to 1 November 2013.

2.    Costs reserved.

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

REASONS FOR JUDGMENT

1    The present proceeding was commenced by Ms Gaye Luck in 2009. She seeks judicial review of four decisions made by the respondent University. Those decisions were:

    A decision of the Acting Vice Chancellor on 7 February 2006 to suspend Ms Luck’s enrolment;

    A decision made by a lawyer employed by the University on 24 April 2006 informing Ms Luck that, until the Vice Chancellor was satisfied that the applicant had complied with certain requests made by him, her enrolments in semesters two and three of that year would remain suspended;

    A decision made by a lawyer employed by the respondent University on 13 or 16 February 2009 informing the applicant that, until the Vice Chancellor was satisfied that she had complied with his requests, her enrolment would remain suspended; and, possibly

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

2    Judicial review was sought under both the ADJR Act and the Judiciary Act 1903 (Cth) (“the Judiciary Act”).

3    The University promptly filed a notice of objection to competency.

4    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.

5    That application was considered by Gageler J on 5 August 2013. His Honour refused Ms Luck’s application and dismissed her summons. In the course of doing so, his Honour said:

“The principles governing orders for removal were stated in Bienstein v Bienstein (2003) 195 ALR 225 at 234. Because orders for removal interfere with the processes of the courts hearing the proceedings sought to be removed, they are made only when the issues are important and require this Court’s urgent decision.

The issues raised in the proceedings sought to be removed are not of that character. The allegation of apprehended bias on the part of Tracey J, in particular, falls to be determined according to well-established principles in the first instance before Tracey J himself.

The application for removal, if it were reinstated, would have no prospects of success. Reinstatement would therefore be futile and will be refused. The summons is therefore dismissed.”

See at [2013] HCA Trans 163 at 5.

6    Ms Luck has sought leave to appeal to a Full Court of the High Court from Gageler J’s decision. That application remains to be determined.

7    Ms Luck has sought an adjournment of the hearing of the present application pending the outcome of her application for leave to appeal.

8    The University contends that the hearing of the objection to competency should proceed. Ms Luck responded that the further hearing of the present application should be stayed because of the serious arguments which she proposes to advance in the High Court, relating to the separation of powers under the Australian Constitution between the executive and judicial branches of Government.

9    In argument this afternoon she 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.

10    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.

11    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.

12    In my view Ms Luck’s application for leave to appeal is not an obstacle to the hearing and determination of the objection to competency. If she presses these arguments in the High Court, they may or may not have a bearing on the outcome of other cases. They will not bear on this case.

13    Ms Luck then submitted that I should recuse myself from hearing the University’s application on the grounds of ostensible bias. She submitted that disqualification was warranted first, because of my appointment as Judge Advocate General, and secondly, because, as counsel, I had been briefed on many occasions by the Australian Government Solicitor to appear on behalf of Commonwealth Government agencies.

14    The test to be applied when such an application is made is well known. It is whether a fair minded lay observer might reasonably apprehend that the judge might not bring an impartial mind to the resolution of the question the judge was required to decide: see Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337 at 344.

15    Ms Luck made a similar application when I was dealing with the related proceeding between her and the University. I rejected that application: see Luck v University of Southern Queensland (No 2) [2008] FCA 1594. None of the grounds relied on on this occasion were advanced then. They were, however, raised when she appealed to the Full Court from my decision in that proceeding. The Full Court rejected this ground of her appeal: see Luck v University of Southern Queensland [2009] FCAFC 73. I reject this renewed application for the same reasons. See also Luck v Chief Executive Officer, Centrelink [2009] FCAFC 54 in which a differently constituted Full Court also found that my recusal was not warranted because, when at the bar, I had acted for Commonwealth agencies on instructions from the Australian Government Solicitor.

16    Having made these rulings I invited counsel for the University to make her submissions in support of the University’s objection to competency. As she commenced to do so Ms Luck rose and said that she was unwell and in no fit state to deal with these 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 to 1 November 2013.

Associate:

Dated:    11 October 2013