FEDERAL COURT OF AUSTRALIA

Luck v University of Southern Queensland (No 2) [2013] FCA 1141

THE COURT ORDERS THAT:

1.    The applicant’s interlocutory application filed on 30 October 2013 be dismissed.

2.    The proceeding be dismissed.

3.    The applicant pay the respondent’s costs of the proceeding.

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

REASONS FOR JUDGMENT

1    On 11 October 2013 the Court commenced hearing an objection to the competency of the present proceeding which had been filed by the respondent University.

2    At the beginning of the hearing Ms Luck made applications that it be adjourned and that I should disqualify myself from hearing both the application and the proceeding on the ground of ostensible bias. I refused these applications: see Luck v University of Southern Queensland [2013] FCA 1064.

3    After my rulings on these preliminary matters had been delivered counsel for the University began her submissions in support of the University’s objection to competency. 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 today. Ms Luck advised the Court that this fixture was suitable to her.

4    On 30 October 2013 Ms Luck filed an interlocutory application in which she sought “a stay or adjournment” of the proceeding on three grounds. Two of those grounds were the same grounds which I had rejected on 11 October 2013. The third ground was that she needed a “three month period of rest and recovery” before the matter proceeded.

5    No affidavit was filed in support of Ms Luck’s application. She did, however, forward to the Registry two medical certificates signed by Dr Priscilla Leow, one dated 30 August 2013 and the other 25 October 2013.

6    When the adjourned hearing was called on this morning Ms Luck failed to appear.

7    The University submitted that the hearing should proceed in Ms Luck’s absence. For the reasons which follow I determined to proceed with the hearing.

8    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.

9    Ms Luck now seeks yet another adjournment on untenable grounds.

10    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.

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.

18    Once the University filed its objection to competency, Ms Luck carried the burden of establishing the competency of her application: see Federal Court Rules, Rule 31.05(2). That burden has not been taken up.

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    In the present proceeding Ms Luck has sought judicial review of certain decisions made by the University. Review was sought under two Acts of the Commonwealth Parliament. They were the Administrative Decisions (Judicial Review) Act 1977 (Cth) (“the ADJR Act”) and the Judiciary Act 1903 (Cth) (“the Judiciary Act”).

21    The four decisions which Ms Luck seeks to impugn were identified in her application as being:

    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 she 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 University on 13 or 16 February 2009 informing Ms Luck 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 employed by the University on 26 February 2009 that the University was not obliged, pursuant to s 13 of the ADJR Act to provide Ms Luck with a statement of reasons for the decision made on the 13 or 16 February 2009.

22    It is immediately to be noted that each of these decisions was made by an officer, employee or agent of the University acting in that capacity: cf Re Cram; Ex parte NSW Colliery Proprietors’ Association Limited (1987) 163 CLR 117 at 127. The University of Southern Queensland was created and incorporated pursuant to the University of Southern Queensland Act 1998 (Qld) (“the USQ Act”). The “decisions” which Ms Luck wishes to challenge were all made directly or indirectly under that Act.

23    The ADJR Act provides for review, by this Court, of decisions to which that Act applies: see s 5(1). Such decisions are identified in s 3(1) of the ADJR Act. An essential element of the definition is that a reviewable decision must be made under an “enactment”. An “enactment” is, in turn, defined to mean “an Act”. Section 38(1) of the Acts Interpretation Act 1901 (Cth) provided that, unless the contrary intention appears, a reference to the word “Act” in Commonwealth legislation means an Act of the Parliament of the Commonwealth. The USQ Act is not an Act of the Commonwealth Parliament. It follows that the ADJR Act had no relevant application. Although the Court has jurisdiction under the Act that jurisdiction did not extend to the review of decisions of the kind which Ms Luck wishes to challenge.

24    This Court’s judicial review jurisdiction under s 39B of the Judiciary Act is, relevantly, co-extensive with that of the High Court. It derives from s 75(v) of the Constitution. Section 39B relevantly provides that:

“(1)    Subject to subsections (1B), (1C) and (1EA), the original jurisdiction of the Federal Court of Australia includes jurisdiction with respect to any matter in which a writ of mandamus or prohibition or an injunction is sought against an officer or officers of the Commonwealth.

(1A)    The original jurisdiction of the Federal Court of Australia also includes jurisdiction in any matter:

(a)    in which the Commonwealth is seeking an injunction or a declaration; or

(b)    arising under the Constitution, or involving its interpretation; or

(c)    arising under any laws made by the Parliament, other than a matter in respect of which a criminal prosecution is instituted or any other criminal matter.”

25    The jurisdiction conferred on the Court by s 39B(1) relates to matters in which specified forms of relief are sought against “an officer or officers of the Commonwealth.” Such “officers” are either persons appointed, paid, controlled and removable by the Commonwealth, or persons appointed by the Commonwealth to exercise some function for the Commonwealth: see R v Murray and Cormie; Ex parte The Commonwealth (1916) 22 CLR 437 at 452, 464 and 471; R v Drake-Brockman; Ex parte National Oil Pty Ltd (1943) 68 CLR 51 at 58-9. None of the relevant employees of the University satisfied any of these criteria. It follows that this Court has no power to review their decisions.

26    I turn next to s 39B(1A). This subsection does not assist Ms Luck. The Commonwealth is not a moving party. The matter is not one arising under the Constitution or involving its interpretation. As already noted the power to make the impugned decisions arose under Queensland State law and not under any Commonwealth legislation and, once made, the decisions were not given any force by any Commonwealth legislation.

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.

28    The University’s objection to competency should be upheld. Ms Luck’s application is not competent and must be dismissed: see Federal Court Rules, Rule 31.05(5).

Associate:

Dated:    1 November 2013