FEDERAL COURT OF AUSTRALIA

Luck v Secretary, Department of Human Services [2014] FCA 1060

THE COURT ORDERS THAT:

1.    The time in which the applicant can apply for leave to appeal from the orders of the Court made in VID 65 of 2010 on 30 July 2014 be extended to 1 September 2014.

2.    Subject to paragraph 4, leave to appeal from paragraphs 2, 3 and 4 of the Court’s orders in VID 65 of 2010 made on 30 July 2014 is granted.

3.    Leave to appeal is otherwise refused.

4.    The grant of leave to appeal is limited to the following matters:

4.1    Whether the primary judge erred in upholding the first respondent’s objection to competency in relation to questions “o” and “u” of the applicant’s Notice of Appeal dated 4 February 2010;

4.2    Whether the primary judge erred in upholding the first respondent’s objection to competency in relation to question “aa” of the applicant’s Notice of Appeal dated 4 February 2010 only insofar as that question relies on the application of Disability Discrimination Act 1992 (Cth) to the way the Tribunal deal with Ms Luck’s review application;

4.3    Whether the approach taken by the primary judge at [26]-[34] of his reasons for judgment was open to him in determining an objection to competency application;

4.4    Whether the primary judge erred in finding that there was an onus on the applicant in the determination of the first respondent’s objection to competency application; and

4.5    Whether the primary judge erred in not considering the application and operation of the 14 day time limit in r 33.30(1) of the Federal Court Rules 2011 (Cth).

5.    On or before 15 December 2014, the applicant is to attend an appeal case management conference with a Registrar of this Court in order to formulate a notice of appeal which is in accordance with paragraph 4 of these orders, and with these reasons for judgment.

6.    On or before 15 January 2015, the applicant is to submit a notice of appeal for filing, such notice of appeal only to be accepted for filing if it complies with the limits on the grant of leave set out in paragraph 4 of these orders

7.    It is a condition of the grant of leave to appeal that the applicant comply with the process set out in paragraphs 5 and 6 of these orders.

8.    The requirement for compliance with r 36.03(a)(ii) with respect to the applicant’s notice of appeal is dispensed with.

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

REASONS FOR JUDGMENT

1        Ms Luck seeks an extension of time in which to bring an application for leave to appeal from the orders of the primary judge, Tracey J, made on 30 July 2014. The proceeding in which the orders were made is an appeal under s 44 of the Administrative Appeals Tribunal Act 1975 (Cth). By those orders the primary judge dismissed an interlocutory application by Ms Luck for a stay and adjournment of her proceeding. He also dismissed her appeal on the basis of upholding the first respondent’s objection to the competency of the appeal. Ms Luck submitted, and the first respondent agreed, that if leave to appeal was required her application should be treated as an application for leave to appeal as well as an application for an extension of time. I have proceeded on that basis.

2        For the reasons set out below, I find Ms Luck has an acceptable explanation for the delay in seeking leave to appeal. I consider an extension of time should be granted and she should be granted limited leave to appeal from the orders of the primary judge in relation to the objection to competency. Leave should not be granted in respect of the primary judge’s orders refusing her application for a stay and an adjournment, or his refusal to disqualify himself.

RELEVANT FACTS AND HISTORY OF THE PROCEEDING

3        The proceeding before the primary judge was commenced in 2010. It has been affected by significant delays due to applications made by Ms Luck to the High Court and consequent applications by her for this proceeding to be adjourned pending the outcome of her High Court proceedings. Until the orders which are the subject of these applications, the Court and the first respondent have accommodated her requests about the timing at which her matters were to be dealt with in this Court.

4        The underlying subject matter of the proceeding is several applications by Ms Luck under the Freedom of Information Act 1982 (Cth) (the FOI Act) for documents held by the Department of Human Services.

5        Ms Luck’s dissatisfaction with the way her applications had been dealt (or not dealt) with by the Department led her to file an application for review in the Administrative Appeals Tribunal on 16 July 2009. In her application she identified a series of requests under the FOI Act she had made to the Department on 
20 January 2009, 9 and 16 February 2009 and 10 and 23 March 2009, and a review application she had made on 24 March 2009. Ms Luck also attached a copy of a letter dated 22 May 2009 and signed by Dr Gary Rumble, General Counsel, in the Department. Dr Rumble’s letter relevantly stated:

I refer to your letter dated 20 January 2009 and to your requests since that date in which you sought access to the documents included in the statement made by the Department of Human Services (DHS) under section 9 of the Freedom of Information Act 1982.

I have enclosed a CD containing the documents (in PDF format) that are listed in the statement that DHS has been able to locate. The details of those documents are set out in Attachment A.

As a result of the delay in finalising your request, I have decided to provide you with the documents at no charge.

…

6        Fairly shortly thereafter, on 21 August 2009, the Department wrote, through its legal representatives, to the Tribunal querying whether it had jurisdiction on the review.

7        The Department’s letter suggested that the letter from Dr Rumble did not appear to constitute a decision capable of being reviewed by the Tribunal under the FOI Act because it did not appear to fall within the categories of documents set out in s 55(1) of that Act. The Department also suggested that Dr Rumble’s letter did not appear to review an earlier decision and therefore was not a reviewable decision for the purposes of the FOI Act. In other words, Ms Luck had not undertaken the required internal review process before going to the Tribunal.

8        Given its view about the Tribunal’s lack of jurisdiction, the Department stated it would not lodge the documents it would otherwise have been required to lodge pursuant to s 37 of the AAT Act, unless the Tribunal instructed it to do so.

9        Without entering into a debate about the precise process followed by the Tribunal once the Department raised this objection, it is clear the Tribunal decided to hold a hearing at that stage to “explore whether the Tribunal has jurisdiction or power to review any decision of which Ms Luck seeks review” and gave reasons for that decision, even though it was of the view it had no legal obligation to give those reasons: see Luck and Department of Human Services (2009) 50 AAR 403; [2009] AATA 800 at [2].

10        The Tribunal held the hearing it had foreshadowed on 23 October 2009, having given its reasons on 19 October 2009. By this stage, Ms Luck had issued proceedings in the High Court in relation to a number of proceedings filed by Ms Luck in the Federal Court, naming a number of respondents. On 21 October 2009, Ms Luck filed an amended application in the High Court adding four additional respondents, all being members or officers of the Tribunal, including the Tribunal member who had made the decision to hold a jurisdiction hearing and who had given reasons in Luck and Department of Human Services (2009) 50 AAR 403; [2009] AATA 800.

11        Amongst the relief sought by Ms Luck in the High Court against the Tribunal respondents was a stay of her proceedings in the Tribunal until the High Court had dealt with her application. She also sought an injunction, amongst other matters, restraining the Tribunal from holding a jurisdiction hearing in her review application against the Department of Human Services. The Tribunal (see Luck and Department of Human Services (2010) 51 AAR 265; [2010] AATA 6 at [11]) described the grounds of Ms Luck’s High Court application thus:

The grounds of relief sought are, in the briefest of summaries, that the defendants have failed to perform their duties in accordance with enactments including the AAT Act, failed to accord Ms Luck natural justice or procedural fairness, failed to take into account relevant considerations in the exercise of their powers, improperly exercised their discretions, have been affected by bias, failed to give her access to documents to which she was entitled and failed to take account of Ms Luck’s special needs.

12        Although Ms Luck had sought an injunction against it, the Tribunal maintained its listing of the jurisdiction hearing for 23 October 2009. Ms Luck wrote to the Tribunal more than once, including on the morning of 23 October 2009, seeking an adjournment or stay on a variety of grounds, including her health, the existence of the High Court proceedings and the “abuses I have been subjected to by the AAT”, which meant, she stated, she was “traumatised by the very thought of appearing at such an unfair hearing, as that which is listed for 23 October 2009”. She provided some medical certificates to the Tribunal. She made it clear she would not attend the hearing that day, which is what transpired. The Tribunal proceeded with the hearing, which was attended by the Department’s legal representatives, but did not make a decision that day. Instead it arranged for a transcript of the hearing to be sent to Ms Luck and gave her an opportunity to make any further submissions she wished to by 16 November 2009. Ms Luck took up that opportunity and made further written submissions, maintaining the position she had adopted before, including repeating that the Tribunal had jurisdiction on the review but should not proceed until the resolution of her High Court proceedings. She concluded her submission to the Tribunal by stating:

I am unable to cope with any further communication in this matter, for the time being, due to the post traumatic symptoms it produces in me as a result of the recent and past abuses of me by the AAT and its officers and I attach current medical certificates.

13        The Tribunal published its decision on 8 January 2010: Luck and Department of Human Services (2010) 51 AAR 265; [2010] AATA 6. It decided it should proceed to determine its jurisdiction even though the applicant had initiated proceedings in the High Court and found it did not have jurisdiction to review a decision made in Dr Rumble’s letter on 22 May 2009. It also decided that if the earlier requests made by Ms Luck on 20 January 2009, 9 February 2009, 16 February 2009, 10 March 2009 and 23 March 2009 would have, by operation of the FOI Act, resulted in any deemed decisions, then those decisions had been overtaken by the decision of Dr Rumble on 22 May 2009, which dealt with all Ms Luck’s previous applications, rendering any failure to make a decision (and the deeming provisions) no longer relevant: at [79].

14        Further, the Tribunal decided, in the circumstances it had found to exist, the Department was not obliged to comply with the provisions of s 37(1) of the AAT Act and lodge documents for the purposes of the review (at [84]). It is unnecessary to address the Tribunal’s reasons in any more detail for the purposes of Ms Luck’s applications before me. Suffice to say the Tribunal’s reasons were detailed, and contained an analysis of relevant statutory provisions and applicable law.

15        On 4 February 2010, the applicant filed an appeal to this Court from the Tribunal’s decision. Her notice of appeal was long, and contained 48 questions of law. Some questions were short, however others displayed complicated sentence structures and propositions which are, I have found, difficult to follow.

16        On 15 February 2010, the applicant sought to remove her s 44 appeal to the High Court, pursuant to s 40 of the Judiciary Act 1903 (Cth). That application for removal was dismissed by the High Court on 13 October 2011: Luck v Federal Court of Australia [2011] HCATrans 290. The applicant subsequently sought to challenge the dismissal of her removal application, including through a special leave application, without success: see Luck v Deputy Registrar (RM) of the High Court of Australia — Melbourne Office of the Registry [2013] HCATrans 166 (5 August 2013); Luck v Deputy Registrar (RM) of the High Court of Australia — Melbourne Office of the Registry [2014] HCASL 33 (6 March 2014).

17        As the primary judge’s reasons note at [8], and as the chronology attached to his reasons reveals, Ms Luck’s various applications in the High Court, and her requests for adjournment and postponement of the s 44 appeal, were the reasons the proceeding was not the subject of active case management for trial until 2014. After the High Court’s decision on 6 March 2014, the primary judge resumed active case management of the proceeding.

18        On 31 March 2014, Ms Luck wrote to the Federal Court Registry requesting that a directions hearing which had been listed for 4 April 2014 be vacated on the basis that three of her matters were listed before the primary judge on the same day and she was unable to cope with the volume of issues and the matters listed. The primary judge did not accede to that request and a directions hearing was conducted on that day.

19        At the directions hearing on 4 April 2014, Ms Luck made an oral application that the primary judge recuse himself on the ground of ostensible bias, on two bases. First, she contended that by maintaining the listing of her three matters over her objections about her inability to cope with three matters on one day, the primary judge had failed to provide her with “reasonable adjustments” to which she said she was entitled under the Disability Discrimination Act 1992 (Cth). Second, the primary judge’s appointment as Judge Advocate General of the Australian Defence Force, Ms Luck said, made him “answerable” to members of the executive branch of the Commonwealth government including the Minister for Defence.

20        The primary judge refused that application and gave reasons: Luck v Secretary, Department of Human Services [2014] FCA 344. He fixed the appeal for trial on 30 July 2014. When he did so, what was fixed for trial on 30 July 2014 was the entirety of the appeal under s 44 of the AAT Act.

21        However, on 6 June 2014 the Department filed, together with its primary submissions on the s 44 appeal, a notice of objection to competency. The Department’s submissions addressed both the merits of the s 44 appeal and the basis for the objection to competency.

22        In between the commencement of the proceeding on 4 June 2010 and the filing of this objection to competency, the Federal Court Rules were repealed and replaced. In contrast to the previous Rules, the 2011 Rules contain specific provisions concerning the filing of objections to competency in relation to appeals under s 44 of the AAT Act: see r 33.30 of the Federal Court Rules 2011 (Cth). Those provisions include a time limit, expressed in mandatory language, for the filing of such objections: see r 33.30(1). A period of 14 days from the service of any notice of appeal is prescribed. Ms Luck relied on these provisions in her application before me.

23        On 28 July 2014, Ms Luck filed an interlocutory application in the appeal. She applied for a stay or adjournment of the appeal pending the determination by a Full Court of this Court of her appeal in VID 1158 of 2013 Gaye Luck v University of Southern Queensland, which was listed for hearing on 22 August 2014. The basis for her application was that in that appeal she was advancing the same arguments about the primary judge’s disqualification as she had raised before him on 4 April 2014.

24        Alternatively, she sought the vacation of the 30 July 2014 hearing date for her s 44 appeal and an extension of time to file submissions responding to the Department’s objection to competency. She sought this on the basis of an affidavit sworn by her which stated relevantly:

the appellant has had several crises, recently, that have arisen in her person life, that affect the lives of individuals of her extended family, for whom she is responsible…

25        The primary judge’s reasons record that Ms Luck was advised on 29 July 2014 that the Department opposed both of her interlocutory applications.

26        On 30 July 2014, at 11am (being a starting time Ms Luck submitted met her special needs) the matter was called on before the primary judge. I have read the transcript of that proceeding, as I advised the parties I would. Ms Luck made submissions in support of her interlocutory application. The Department’s legal representative then made submissions, to which Ms Luck replied. The primary judge then delivered judgment refusing to grant a stay or adjournment and dismissing the interlocutory application.

27        The Department’s legal representative asked if the primary judge would then deal with the Department’s objection to competency, and the primary judge indicated that was what he proposed to do. The following exchanges then took place:

…HIS HONOUR: Indeed. I now propose to deal with your objection to competency and you can proceed on the basis that I have read the notice the written submissions that you filed with it.

MS HEFFERNAN: Thank you, your Honour.

MS LUCK: I haven’t got a copy of that with me, your Honour.

HIS HONOUR: Well …

MS LUCK: I haven’t got anything with me, your Honour. In fact, I think it best I go, because there’s no point me being here. You’re just going to dismiss the case and I’m going to have nothing to say.

HIS HONOUR: Well, Ms Luck …

MS LUCK: And I didn’t think it was necessary for me to go through innumerable times, thousands of medical certificates showing the state of my health. That hasn’t changed, it gets progressively worse, and your Honour, because you’re going to go ahead with this hearing, knowing full well that I’m unable to deal with it, I will ask your Honour to excuse me, because it is not going to be of any benefit to me, except that I’m going to end up hysterically unhappy and distressed. So forgive me, your Honour, I’m leaving, and I will be appealing whatever happens now, and it will be probably consolidated with whatever is happening in the other matter.

HIS HONOUR: Well, that’s a matter for you, Ms Luck.

MS LUCK: Yes. Well, I’m sorry, your Honour, but I’m not going to stand here and be subjected to this abuse. Thank you, your Honour, goodbye.

HIS HONOUR: Yes, Ms Heffernan.

MS HEFFERNAN: Does your Honour wish me to continue as before?

HIS HONOUR: I beg your pardon?

MS HEFFERNAN: Did your Honour want that I continue with the application?

HIS HONOUR: Yes, I do.

…

28        After hearing short submissions from the Department’s legal representative, not long before 12pm the primary judge said that he expected to be in a position to hand down his decision on the objection to competency at 4pm and adjourned the Court until then. The hearing resumed at 4pm, whereupon the primary judge delivered judgment in the proceeding and pronounced the orders which are now the subject of Ms Luck’s application before me.

29        On 1 September 2014, the applicant sought to lodge an appeal. She deposed in her affidavit in support of her application before me, and I accept, that she believed she had 28 days in which to lodge an appeal and that she was unaware she would need leave to appeal from the orders and judgment of the primary judge. Even if she was acting on the mistaken belief she had a period of 28 days, filing the appeal documents on 1 September 2014 still left her five days out of time.

30        There is clear Full Court authority that a decision upholding an objection to competency and dismissing a s 44 appeal on that basis is characterised as an interlocutory decision: see SZAJB v Minister for Immigration and Citizenship (2008) 247 ALR 510; [2008] FCAFC 75 at [23] per French J. Therefore, the time in which any such application for leave to appeal must be lodged is 14 days: see r 35.13 of the Federal Court Rules.

31        Ms Luck applied at the hearing for leave to have her application treated as an extension of time in which to seek leave to appeal, and an application for leave to appeal if such leave were needed. The first respondent did not object to the application being dealt with on that basis and I indicated during the hearing I would do so.

32        Accordingly, these reasons deal with both the application for an extension of time and the application for leave to appeal.

33        In doing so, I need to consider not only the primary judge’s reasons on 30 July 2014, but also his reasons given ex tempore on 4 April 2014 for not recusing himself on the grounds of ostensible bias.

THE PRIMARY JUDGE’S REASONS

34        The reasons given by the primary judge on 4 April 2014 for not recusing himself relevantly stated:

This proceeding came on for directions this morning. Immediately after the directions hearing commenced Ms Gaye Luck made an oral application without notice that I should disqualify myself from conducting both the directions hearing and the trial of the proceeding on the ground of ostensible bias.

I refused the application and advised the parties that I would give my reasons later. These are those reasons.

Ms Luck advanced her ostensible bias arguments on two bases. The first was that, in listing three proceedings in which she was the applicant for directions on the same day and maintaining the listings over her subsequent objection, I had failed to provide her with reasonable adjustments to which she said she was entitled under the Disability Discrimination Act 1992 (Cth). Ms Luck asserted that for medical reasons (for which she produced no evidence), she was unable to cope with three matters on the same day.

The purpose of the directions hearing, in each case, was to ensure that the proceeding which had languished in my docket for many years whilst appeals and applications had been pursued elsewhere by Ms Luck, ultimately unsuccessfully, were brought on for trial as soon as reasonably possible. The present proceeding had been commenced in 2010. When the directions hearings were listed I anticipated that they would (as turned out to be the case) be of relatively short duration. Far more time was spent this morning on the disqualification application than was spent on the submissions relating to directions in the three proceedings combined.

Ms Luck also submitted that my recusal was warranted because of my appointment as Judge Advocate General of the Australian Defence Force which, she said, made me “answerable” to members of the Executive Branch of the Commonwealth Government including the Minister for Defence. She referred to the provisions of ss 179 and 196A of the Defence Force Discipline Act 1982 (Cth) (“the DFDA”). Section 179 of the DFDA provides that the Judge Advocate General is to be appointed by the Governor-General. Section 196A of the DFDA requires the Judge Advocate General to provide the Minister for Defence with a report each year. The Minister is required to cause a copy of the report to be laid before each House of Parliament.

The test to be applied when an application is made for the disqualification of a judicial officer on the grounds of ostensible bias 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 which the judge was required to decide: see Ebner v Official Trustee in Bankruptcy [2000] HCA 63; (2000) 205 CLR 337 at 344.

In the absence of evidence of incapacity there was no occasion for me to vary the listing of the three proceedings, in which Ms Luck was the applicant, for directions on the same day. On the contrary, the consecutive fixtures were intended to avoid multiple attendances by Ms Luck and unnecessary expense to the respondents, two of whom had common representation. I did not anticipate, as proved to be the case, that there would be any contentious issues relating to the making of relevant directions. A reasonable observer would have had no occasion to apprehend that I might not have brought an impartial mind to the resolution to any questions which might arise at the directions hearing or at trial.

My appointment as Judge Advocate General was made, pursuant to the DFDA, by the Governor-General in Council. My eligibility for appointment depended on me being either a judge of this Court or of a State Supreme Court: see s 180 of the DFDA. By s 181(1) of the DFDA it is provided that, for all purposes, the Judge Advocate General’s service in that role “shall be taken to be service as the holder” of his or her judicial office. I have an obligation to furnish the Minister with an annual report for the purpose of that report being tabled in the Commonwealth Parliament. None of these statutory requirements make me “answerable” to the Executive Government or could give rise to a reasonable apprehension of bias. In this regard I note that, in a Full Court appeal in another proceeding, Ms Luck advanced a similar argument although it had not been raised with me at first instance. The Full Court rejected her argument that my appointment as Judge Advocate General gave rise to a reasonable apprehension of bias: see Luck v University of Southern Queensland [2009] FCAFC 73.

It was for these reasons that I refused Ms Luck’s application.

35        The reasons given by the primary judge on 30 July 2014 dealt with three matters.

36        His Honour dealt first with Ms Luck’s application for an adjournment of the 30 July 2014 hearing, and her alternative application for a stay of the proceeding pending the determination of her appeal in VID 1158 of 2013. On that issue he referred to his 4 April 2014 decision, and added that he did not consider Ms Luck’s re-agitation of her bias allegations against him in the Full Court warranted a stay. He also rejected Ms Luck’s arguments based on the administration of human rights legislation.

37        He then considered her adjournment application. Having attached to his reasons for judgment a detailed chronology of the course of the proceeding he found (at [8]-[10]):

Her alternative claim seeks yet a further delay of the hearing so that she can prepare a response to the first respondent’s objection to competency. This application must be seen in the context of the history of the proceeding. I attach to these reasons a chronology which records the procedural history of the appeal. There have been multiple delays caused by Ms Luck’s failure to appear, avowedly, because of her poor health. Long delays have also occurred whilst she pursued unsuccessful applications and appeals in the High Court. Once the High Court proceedings were finally resolved this appeal was fixed for hearing. As already noted, this occurred on 4 April 2014. Ms Luck has been aware of the respondent’s objection to competency and the reasons for it for almost two months. Her application for a further adjournment was made just two days ago.

9    The application was supported by an affidavit in which Ms Luck deposed that she suffers from various chronic and acute illnesses. No medical evidence was provided and no attempt was made by Ms Luck to explain why her ill health prevented her from responding to the first respondent’s objection to competency today. In her affidavit she also made reference to “several crises, recently, that [had] arisen in her personal life” which she said had prevented her from preparing her submissions for the hearing. Again, she failed to provide any evidence which explained the linkage between the crises and her inability to prepare for the hearing.

In my view Ms Luck has had more than ample time to prepare to deal with the first respondent’s contentions. She has not established any proper basis for an adjournment. Her application must be refused.

…

38        Having then set out the nature of the Tribunal’s decision, Ms Luck’s s 44 appeal and the objection to competency arguments, his Honour stated (at [23]-[26]):

…

Once the first respondent had filed the objection to competency, Ms Luck carried the burden of establishing the competency of her application: see Federal Court Rules, Rule 31.05(2). Her withdrawal has meant that she has not assumed this burden.

I accept the first respondent’s submission that none of Ms Luck’s “questions of law” is a “pure question of law” as described by the Full Court in Birdseye. Many raised questions of fact or combined questions of fact and law. Most lacked the precision required by the Federal Court Rules, Rule 33.12(2)(b).

I do not pause to analyse the deficiencies in each of the 48 so called questions of law. This is because, in appropriate cases, the Court has been prepared to frame questions of law which might found its jurisdiction and be answered in a way that would reveal any error affecting the decision of the Tribunal: see, for example, Birdseye at 61. Some allowance may be afforded unrepresented litigants: see Kowalski v Chief Executive Officer, Medicare Australia (2010) 185 FCR 42 at 51 (Mansfield J). I am conscious, in this case, that Ms Luck has not been legally represented and may have had difficulty in crafting the necessary questions of law. It is implicit in what I have just said that I accept that, had she had the benefit of legal advice, it would have been possible for her to draw appropriate questions of law relating to the three determinations of the Tribunal which she wishes to challenge. Those questions would have been far fewer in number than those appearing in her notice of appeal.

I, therefore, proceed immediately to consider whether the Tribunal’s reasons disclose any appealable legal error. I have concluded that they do not.

…

39        Reflecting his conclusion at [26] of his reasons, the primary judge then explained why he had concluded that the Tribunal’s reasons disclose no appealable error. His Honour concluded his reasons by stating:

…

In the absence of any demonstrated appealable error on the part of the Tribunal Ms Luck’s purported appeal to this Court under s 44 of the AAT Act would have failed, even had appropriate questions of law been framed. The objection to competency must be upheld.

MS LUCK’S SUBMISSIONS

40        Ms Luck made oral submissions in support of her applications before me. She confirmed that the submissions she makes on this application about the ground of ostensible bias against the primary judge are the same she has made in previous proceedings, including the matter which is currently reserved before the Full Court. Appropriately, she accepted that the nature of her arguments having been put to the Court on several occasions did not need to be developed in oral submissions again.

41        Ms Luck submitted, in substance, that the passage in the primary judge’s reasons about how she came to leave the hearing on 30 July 2014 was not accurate. She submitted that having made her submission on the adjournment and the stay application, she was not “on top of” the material on the objection to competency. She contended the primary judge did not ask her why she was not prepared, did not put to her any concerns he had about her affidavit or ask her in any more detail why she needed an adjournment. She stated she was not cross-examined on the basis she set out in her affidavit about why an adjournment was required. She made it clear the adjournment was about her obligations to a person she had guardianship duties over, and not about her own health. She also submitted she did refer the primary judge to her argument about an alternative provision in the FOI Act giving the Tribunal jurisdiction to review. She submitted that the deeming provisions of the FOI Act overrode the requirement for there to have been an internal review.

42        Ms Luck emphasised that the currently reserved Full Court decision in VID 1158 of 2013 is the first time her constitutional arguments have been fully heard and argued. She submitted that if the University of Southern Queensland is not a government agency, then that makes her bias arguments in the present proceeding (where the first respondent is a government agency) all the stronger.

43        Ms Luck submitted that in any event and separately from the bias issues, she has real prospects of success on the errors around how the primary judge dealt with her s 44 appeal. Ms Luck submitted that all of her matters are always rejected because of jurisdiction, or at a summary dismissal stage. She does not believe it is fair or just that her proceedings are always dealt with on the basis of such issues, and she never has a trial of her allegations.

44        When it was suggested to her that the primary judge had in fact taken a favourable approach to her appeal by examining the Tribunal’s reasoning for himself, Ms Luck disagreed. She submitted the primary judge’s error was that if any one of the 48 questions was a question of law then it was unnecessary for him to take the “favourable” approach to Ms Luck and examine the Tribunal’s decision for himself — Ms Luck submitted she was entitled to have the appeal under s 44 dealt with in the usual way.

45        Ms Luck identified in her written submissions, and orally, that questions “u” and “v” in the notice of appeal were “pure” questions of law about the Tribunal’s decision on jurisdiction, and the parts of the primary judge’s reasons where he assesses the jurisdiction arguments for himself were an impermissible approach.

46        Ms Luck also submitted in her written submissions that questions “a”, “j”, “o”, “w”, “z”, “aa”, “bb”, “qq” and “vv” were questions of law. The rest of the questions, she submitted, were either mixed questions of law and fact or questions of fact.

47        Ms Luck submitted the primary judge did not give reasons for rejecting each of the questions of law, but should have. Ms Luck relied on Hunter v Transport Accident Commission (2005) 43 MVR 130; [2005] VSCA 1 to support this proposition. She emphasised that if even one of the questions was a question of law, then the primary judge should have dismissed the objection to competency and given Ms Luck her full appeal under s 44.

48        Ms Luck then made submissions about the effect of r 33.30(1) and the limit of 14 days on filing an objection to competency, which she contended was a mandatory limit. She added that the first respondent did not refer to or file an objection to competency at the April directions hearing, instead not filing it until the Secretary’s submissions on the appeal were filed. When asked whether she made a submission about r. 33.30(1) to the primary judge, Ms Luck stated that she had not, because she did not know about the rule at that time. There is no reason to doubt what Ms Luck says in that respect.

49        In reply, Ms Luck submitted that the primary judge went on and decided her arguments in a final way, which he should not have done.

FIRST RESPONDENT’S SUBMISSIONS

50        The first respondent also supplemented the written submissions with oral submissions. Ms Heffernan for the Secretary submitted that, because the s 44 appeal was lodged in 2010, the 2011 Federal Court Rules were not in place and did not apply to this proceeding. She then submitted that Ms Luck bore the onus of proving the appeal was competent after a notice was filed. However, she appeared to accept this submission was based on r. 33.30(2) and, if the 2011 rules did not apply, that submission could not be made. The first respondent accepted that nothing about objections to competency under the Federal Court Rules was raised before the primary judge.

51        The first respondent confirmed there was no evidence before the primary judge, or this Court, about why the objection to competency was filed when it was.

52        The first respondent submitted that the primary judge was entitled to exercise his discretion to refuse the application for stay and adjournment on the basis of the evidence before him, without further inquiry of Ms Luck. On its face there was no linkage between Ms Luck’s evidence of a crisis, and the nearly two-month period (from 6 June 2014) she had to prepare for the 30 July 2014 hearing including responding to the objection to competency.

53        The first respondent accepted the primary judge did not give reasons about each question of law, but submitted that it was clear from his reasons that the primary judge had examined each question. The first respondent pointed to [24] of his Honour’s reasons where he said:

…

I accept the first respondent’s submission that none of Ms Luck’s “questions of law” is a “pure question of law” as described by the Full Court in Birdseye. Many raised questions of fact or combined questions of fact and law. Most lacked the precision required by the Federal Court Rules, Rule 33.12(2)(b).

…

54        The first respondent also relied on those parts of the primary judge’s reasons (at [25]-[34]) where his Honour examined the Tribunal’s reasoning for himself to determine whether the Tribunal’s reasons disclose any appealable error. The first respondent submitted this exercise was one favourable to Ms Luck, in the sense that the primary judge took account of her being self-represented and examined the Tribunal’s reasoning independently. The first respondent submitted this was an appropriate approach in the circumstances, given what the primary judge was doing was looking at the Tribunal’s reasons to see if there was a way to frame a question of law.

55        Finally, the first respondent submitted the Court should determine the bias arguments for itself, and that the existence of the reserved decision in VID 1158 of 2013 did not preclude a single judge on an extension of time application from determining the strength of the arguments.

CONSIDERATION

56        The discretion conferred upon the Court to grant an extension of time is available in order to “do justice between the parties”: Gallo v Dawson (1990) 93 ALR 479 at 480 per McHugh J.

57        In considering whether to extend the time in which a notice of appeal may be filed, the Court takes into account any explanation for the delay, any prejudice to the respondent or other parties which might be occasioned if the extension of time were granted and the prospects of success of the appeal if an extension of time were to be granted. These considerations were set out in Hunter Valley Developments Pty Ltd v Cohen (1984) 3 FCR 344 at 348-349 per Wilcox J and have been applied consistently in this Court. This list is not exhaustive: the Court has a broad discretion and in a given case there may be other factors specific to the circumstances of an individual party which should be considered. For example, on this application Ms Luck relied on the fact she suffered from a number of medical conditions and had a disability (or disabilities) within the meaning of the Disability Discrimination Act. Those matters are, I accept, capable of being relevant to the exercise of the Court’s discretion. In this case I do not need to consider them as I am satisfied on the basis of the general factors in Hunter Valley Developments that an extension of time should be granted.

58        The same principles apply to an extension of time application in respect of an interlocutory decision: see Mehmood v Attorney-General (Cth) [2013] FCA 406 at [5]-[6] per Foster J.    

59        The discretion to grant leave to appeal conferred by s 24(1A) of the Federal Court of Australia Act 1976 (Cth) is also broadly expressed: see generally DÉcor Corporation Pty Ltd v Dart Industries Inc (1991) 33 FCR 397 at 399. In Cement Australia Pty Ltd v Australian Competition and Consumer Commission (2010) 187 FCR 261; [2010] FCAFC 101, the Full Court stated (at [20]):

Leave to appeal against an interlocutory order will usually be granted only where the applicant is able to show that the order occasions substantial prejudice to the applicant and there is a reasonable argument that the order should be set aside: DÉcor Corporation Pty Ltd v Dart Industries Inc (1991) 33 FCR 397.

60        As I set out at [31] above, the first respondent accepted it was appropriate for me to treat the documents filed by Ms Luck as an application for leave to appeal from the primary judge’s decision, although they are not expressed in those terms.

61         I am satisfied Ms Luck had provided a reasonable explanation for the delay in filing her application for leave to appeal. The proper characterisation of a decision as interlocutory or final can be opaque even to experienced lawyers. She deposed, and I accept, that she believed she had 28 days, because she did not appreciate the primary judge’s description was interlocutory. These matters are accepted in substance by the first respondent in its submissions. On an appeal as of right the time limit is 21 days: see r 36.03. When Ms Luck filed her documents, she would have been out of time by in any event. It does appear Ms Luck was somewhat confused about the applicable time limits generally. I do not consider that confusion should disqualify her from the grant of an extension of time. Although she represented herself, and is not a lawyer, Ms Luck is experienced in litigation generally, and in this Court in particular. The evidence reveals that she conducts her proceedings conscious of her obligations to meet time limits, and seeks extensions where she feels she needs to. She is not a person who unilaterally or regularly disregards time limits.

62        The delay is short, a matter of 19 days. The first respondent does not submit there is any prejudice caused to it by the grant of an extension of time. These matters, together with the possible, but confined, issues about the way the primary judge dealt with aspects of the objection to competency, persuade me it is in the interests of the administration of justice for an extension of time to be granted.

63        On the application for leave to appeal, most of Ms Luck’s contentions are not made out.

64        First, I do not consider the primary judge’s exercise of discretion in relation to the stay and adjournment is attended by sufficient doubt to warrant the grant of leave to appeal.

65        Ordinarily, an appellate Court will not interfere with an exercise of discretion by a primary judge unless the judge:

acts upon a wrong principle, if he allows extraneous or irrelevant matters to guide or affect him, if he mistakes the facts, if he does not take into account some material consideration, then his determination should be reviewed and the appellate court may exercise its own discretion in substitution for his if it has the materials for doing so.

House v The King (1936) 55 CLR 499 at 505.

66        I am not satisfied there is any such error in the approach taken by the primary judge.

67        The considerable length of time in which the proceeding had been held in abeyance was due to Ms Luck’s conduct in issuing proceedings in the High Court. Her requests for adjournments had been accommodated by this Court and the first respondent over several years. The principles of case management under which the Court operates, such as s 37M of the Federal Court Act, require the Court to ensure that matters are dealt with effectively and without undue delay, as well as fairly. Fairness includes, in this circumstance, fairness to the first respondent as well as to Ms Luck.

68        Ms Luck had more than three-and-a-half months’ notice of the 30 July 2014 hearing date, and knew when her submissions needed to be filed. The only matter new to her was the objection to competency. She had approximately seven weeks’ notice of that. Had she informed the Court and the first respondent very shortly after 6 June 2014, when the first respondent filed her objection and submissions, that she had difficulties in dealing with the objection, this may have been capable of affecting consideration of an adjournment. If she had produced detailed evidence about the difficulties which would impede her answering the objection to competency over the full seven-week period, perhaps that may also have made a difference. However, in the circumstances of an application made only two days before the hearing, on evidence consisting of only a few lines and no detailed explanation, the manner in which the primary judge exercised his discretion was in my respectful opinion well open to him. In a case which had been delayed for years at Ms Luck’s request because of her conscious decisions to issue other proceedings, the primary judge was entitled to take the view that very cogent reasons, on adequate evidence, would be required to justify further adjournments.

69        Second, on the question of Ms Luck’s arguments about the primary judge’s refusal to recuse himself, I consider the primary judge was entitled to take the approach he did. In my respectful opinion, the primary judge was justified in considering that the question of Ms Luck’s allegations of bias against him had been determined by the Full Court in 2009 in Luck v University of Southern Queensland (2009) 176 FCR 268; [2009] FCAFC 73, and by him subsequently on more than one occasion. His Honour was entitled in my opinion to adhere to the considered view he had taken, and explained in reasons, on previous occasions. He was therefore also entitled to proceed in a manner which did not involve further postponing Ms Luck’s proceeding because in another appeal she repeated and continued to press those arguments before a Full Court.

70        Beyond expressing this conclusion, I consider it is inappropriate in the current circumstances for a single justice of this Court on an application for leave to appeal to express any view on the merits of Ms Luck’s arguments while a Full Court of this Court is reserved on the very same question, involving the same applicant and the same primary judge. Ms Luck’s application for leave to appeal can be adequately dealt with on the basis I have set out in [69], together with my consideration of her other arguments. Ms Luck accepted in oral submissions that this aspect of her leave application should be “neutral” in terms of the Court’s consideration, and depended on the outcome of the Full Court decision.

71        Third, I reject most of Ms Luck’s contentions about the way in which the primary judge dealt with the first respondent’s objection to competency, and her contentions about the correctness of the primary judge’s conclusion that Ms Luck’s notice of appeal under s 44 of the AAT Act did not raise a question of law. I am, however, satisfied that there are some discrete issues where it is arguable that Ms Luck’s notice of appeal did raise a question of law. I am also satisfied there are some discrete issues about the objection to competency process adopted in relation to Ms Luck’s s 44 appeal.

72        Without embarking on any analysis of the approach taken in this Court to appeals under s 44 of the AAT Act, it cannot be doubted that the Court’s jurisdiction is dependent upon the identification of a question of law: TNT Skypak International (Aust) Pty Ltd v Federal Commissioner of Taxation (1988) 82 ALR 175 at 178 per Gummow J.

73         At [45] and [46] above I have set out the questions in the notice of appeal that Ms Luck submitted did raise questions of law. In my opinion, Ms Luck has an arguable case in relation to three of the questions she identified. The first is question “u” in her notice of appeal.

74        Question “u” in form is very long. That is because Ms Luck has reproduced in the last part of the question the terms of her FOI request. It is tolerably clear the question concerns the Tribunal’s jurisdiction. In substance, and read fairly, the question is contained in the first seven or eight lines. Those lines state:

Whether the Administrative Appeals Tribunal had jurisdiction to review the respondent’s decisions made and deemed made in response to the requests made by the applicant pursuant to section 15 and 25 of the Freedom of Information Act 1982 (Cth) on 20 January 2009, 9 February 2009, 16 February 2009, 10 March 2009 and 23 March 2009 and a formal request for an internal review made on 24 March 2009…

75        Question “v” is related to question “u”. It states:

Whether the Tribunal had jurisdiction to review and determine the application lodged with the Tribunal on 16 July 2009 for review of the respondent’s decisions deemed made between 20 January 2009 and on or about 22 May 2009, immediately upon the filing, numbering and processing of the application by the Registry and properly constituting the tribunal with Deputy President Forgie, in accordance with the provisions of the Administrative Appeals Tribunal Act 1975?

…

76        This question is in my opinion another way of raising the correctness of the Tribunal’s finding about its jurisdiction. Leave need not be granted in respect of the primary judge’s decision on both questions.

77        Question “o” in the s 44 notice states:

Whether the Tribunal was required to give notice to the respondent under s 29, of the Administrative Appeals Tribunal Act 1975, as the decision maker of the decision that was the subject of the applicant’s valid application, to furnish to the applicant the documents pursuant to section 37 of that Act, upon lodgement and filing of the application documents and properly constituting the Tribunal?

78        The provision of the s 37 statement and documents to Ms Luck was also the subject of the Tribunal decision. The Tribunal took the view in its reasons that the obligation in s 37(1) was engaged only if there was “in fact” a reviewable decision: at [85]. Having found there was an issue raised about the existence of any reviewable decision and that the Tribunal’s Registrar took steps under s 42A(4) of the AAT Act, the Tribunal concluded the obligation under s 37(1) did not arise. Ms Luck sought to contest that finding on appeal, and in question “o” contended that obligation arose on filing of her application with the Tribunal. Her focus on the Tribunal’s failure to require the first respondent to comply with s 37(1) is apparent also from questions “p”, “q” and “r” of the s 44 notice, although there is no need to grant leave in respect of the primary judge’s decision on those questions, as there is at least an argument that question “o” was capable of being seen as a question of law.

79        In her submissions before me, Ms Luck also identified question “z” as a question of law. It provides:

Whether the applicant was denied natural justice and her right to be heard in accordance with the rules of natural justice and at a fair and public hearing by a competent, independent and impartial tribunal established by law, in accordance with Articles 7, 10 and 21 of the Universal Declaration of Human Rights and Article 14 of the International Covenant on Civil and Political Rights.

80        Question “z” should probably be read with question “t”, which states:

Whether the applicant was given a reasonable opportunity to present her case and, in particular, to inspect any documents, or be informed of any ground not relied on by the parties or raised at the hearing, to which the Tribunal proposed to have regard in reaching decisions in the proceeding, and to make submissions in relation to those documents prior to the hearing of 23 October 2009 and to make submissions in relation to the grounds, subsequent to the hearing and prior to reaching of the decisions in the proceeding by the Tribunal and the Deputy President on 8 January 2010?

81        Both these questions raise procedural fairness arguments. I have previously expressed the opinion that a broad allegation of denial of procedural fairness in a s 44 notice of appeal will not necessarily mean the appeal is an appeal on a question of law: see Avetmiss Easy Pty Ltd v Australian Skills Qualifications Authority [2014] FCA 314 at [79]-[84]. In my opinion, the notice must provide some particular allegation about the circumstances said to constitute the denial of procedural fairness, in order to connect the subject matter of the appeal with the Tribunal’s decision, or the process adopted leading to that decision. Despite the questions framed by Ms Luck invoking the terms “natural justice” and “reasonable opportunity to present her case”, the primary judge’s decision in relation to these and other procedural fairness questions in Ms Luck’s notice of appeal was in my respectful opinion correct.

82        The third question on which I propose to grant leave is question “aa”, although I propose to limit the ambit of the grant of leave on this question. This is a question based in part on an alleged denial of procedural fairness, but it is also based on a contention about the scope of the Tribunal’s obligations in dealing with people with disabilities. That question states:

Whether the applicant was subject to disability discrimination by the Tribunal and the Deputy President in relation to the refusal of the Deputy President to refuse the applicant’s rights to the grant of extensions of time and adjournments of hearings as reasonable adjustments in accordance with the provisions of the Disability Discrimination Act 1992 and the Articles of the United Nations Convention on the Rights of Persons with Disabilities, the Australian Human Rights Commission Act 1986, the Covenants and Treaties scheduled thereto, and the International Covenant on Civil and Political Rights?

83        There may be a legitimate focus in this question on whether and, if so, how, the Disability Discrimination Act applies to the Tribunal in the discharge of its functions under the AAT Act. Recalling the Tribunal is not exercising judicial power, the argument Ms Luck makes may be distinct from the one she has made on several occasions in relation to the exercise of discretionary powers by judges of this Court in the management of her proceedings in this Court. The question also asks whether the reasonable adjustments provisions of the Disability Discrimination Act apply to the way the Tribunal deals with extensions of time and adjournments and, if so, how that Act should have been applied by the Tribunal in relation to Ms Luck and her review application. It is no part of the Court’s task on this application to assess the strength or merits of the contention in question “aa”. However, in my opinion it is arguable it raises a question of law in relation to the application of the Disability Discrimination Act, but not in relation to the other legislation and international instruments referred to, which have an insufficient connection with the decision made by the Tribunal and the discharge of its functions under the AAT Act.

84        I do not proceed in detail through the remainder of the questions of law set out in the notice of appeal, or referred to by Ms Luck. I have considered them all. Many, as Ms Luck has conceded and the primary judge adverted to, raise factual matters. The factual matters are not in any discernible sense tied to a challenge to the Tribunal’s fact finding which may be permissible under s 44. Some other questions are so generally expressed as not to disclose any sufficient connection with the Tribunal’s decision and reasoning process: for example, question “jj”: “Whether the Tribunal failed to take a relevant consideration into account in the exercise of a power”. There are quite a number of questions of this nature.

85        Ms Luck is correct to submit that if her notice of appeal identified one question of law, then the Court had jurisdiction under s 44 of the AAT Act. The jurisdiction would, if found, be limited to answering that question.

86        Whether ultimately Ms Luck would have succeeded in her s 44 appeal is not the subject matter of this application. It may not have been, in my respectful opinion, an appropriate matter for the primary judge to deal with (as he did at [26]-[34] of the reasons) in determining the objection to competency application.

87        The primary judge did not purport to determine the s 44 appeal itself. To do so, he would have had to find the Court had jurisdiction under s 44, and that was, expressly, what he found not to be the case. Nor was the primary judge determining a summary dismissal application.

88        As the orders reflect, the primary judge only determined the first respondent’s objection to competency. I accept without hesitation his Honour adopted that approach at [26]-[34] in the belief it was an approach favourable to Ms Luck as a self-represented litigant. Nevertheless, whether the reasoning in those paragraphs could form part of permissible reasoning process on an objection to competency application is, in my respectful opinion, a matter for determination by a Full Court.

89        I consider it arguable that questions “u”, “o” and “aa” read fairly and in the context of the notice of appeal as a whole, may state questions of law sufficient to found the Court’s jurisdiction under s 44 of the AAT Act. To that extent there is an issue whether the primary judge was correct to uphold the objection to competency in its entirety.

90        Further, there is the question of the application of r 33.30 to Ms Luck’s s 44 appeal. Despite the first respondent’s submissions before me that the operation of the rule was not raised with the primary judge, it appears his Honour independently turned his mind to how the Federal Court Rules applied to the first respondent’s objection to competency. At [23] of his Honour’s reasons he stated:

Once the first respondent had filed the objection to competency, Ms Luck carried the burden of establishing the competency of her application: see Federal Court Rules, Rule 31.05(2). Her withdrawal has meant that she has not assumed this burden.

91        It is unclear why his Honour’s reasons refer to r 31.05(2). Rule 31.05 deals with applications under the Administrative Decisions (Judicial Review) Act 1977 (Cth). Perhaps the explanation is that Ms Luck’s notice of appeal does refer to the AD(JR) Act, in the sense that the introductory paragraph of the notice of appeal states:

TAKE NOTICE that the Applicant appeals fully from the decisions and determinations of the Administrative Appeals Tribunal constituted by Deputy President Forgie made on the 8 January 2010 in the Administrative Appeals Tribunal matters V2009/3331, at Melbourne, pursuant to section 44 of the Administrative Appeals Tribunal Act 1975, the Federal Court of Australia Act 1976, Rules and Regulations, and the Administrative Decisions (Judicial Review) Act 1977, the Freedom of Information Act 1982 (Cth), where by the Tribunal decided….

92         The first respondent’s notice of objection to competency is expressed in the grounds to be a notice issued in relation to the Court’s jurisdiction under s 44 of the AAT Act, although it refers to r 36.72(1), which provides for objections to competency on general appeals. Another explanation is that his Honour intended to refer to r 33.30, being the rule in the 2011 Rules which deals with appeals from the Administrative Appeals Tribunal.

93        The process of filing a notice of objection to competency under the former Federal Court Rules existed only for applications under the AD(JR) Act (see Federal Court Rules 1979 (Cth) O 54) and applications under the Migration Act 1958 (Cth) (see the former O 54B). In Yao v Secretary, Department of Education, Employment and Workplace Relations [2010] FCA 18 at [11]-[12], Perram J found that the assumption in previous decisions that those rules might extend to an objection to competency process in respect of Tribunal appeals (then governed by O 53) was incorrect, and that any purported notice of objection to competency filed in respect of a s 44 appeal would itself be incompetent.

94        Further, it appears that, even under the former rules where an objection to competency process was available, it has been held the onus was on the respondent to demonstrate the appeal was incompetent: see WACB v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 80 ALD 69; [2004] HCA 50 at [9] per Gleeson CJ, McHugh, Gummow and Heydon JJ . The 2011 Rules, in r 33.30(2), reverse that position.

95        The first respondent has submitted r 33.30 did not apply at all because this proceeding was commenced well before the 2011 Rules came into effect. It is unnecessary for the purposes of Ms Luck’s applications before me to inquire further into these matters. It is sufficient to find that both the application and operation of the 2011 Rules to the first respondent’s objection to competency in this proceeding is unclear, as is the availability of an objection to competency process under the former Rules (if they are held to apply).

96        By the objection to competency being upheld, Ms Luck lost the opportunity to have her appeal against the Tribunal’s decision determined at a final hearing, after full argument. In the context of the legal issues to which I have referred, I am satisfied that is sufficient prejudice to her to warrant the grant of leave to appeal.

97        I propose to grant Ms Luck leave to appeal on a limited basis. She will be granted leave to appeal in respect of the primary judge’s conclusions on the objection to competency in relation to questions “o” and “u”of the s 44 notice of appeal, and question “aa”” insofar as it is a question about the application and operation of the Disability Discrimination Act to the Tribunal, and to the discharge of its functions in respect of her review application. She will also be granted leave to appeal on the matters to which I have referred in [86] and [95]. Leave to appeal will otherwise be refused.

98        My conclusion will require a complete redrafting of Ms Luck’s proposed notice of appeal, which on any view is in an unsatisfactory form. I propose to direct her to attend a case management conference with a Registrar of this Court, in order that the Registrar may assist Ms Luck to formulate a notice of appeal limited to the matters on which I have granted her leave to appeal. I consider that to be the most effective and efficient way in which to ensure the Full Court has before it an appropriately confined notice of appeal from the primary judge’s decision, and the first respondent is put fairly and clearly on notice of the matters to which it must respond in the appeal, and only those matters. Ms Luck’s compliance with this process is a condition of the grant of leave to appeal. Any failure to comply may expose her to the possibility of the revocation of the grant of leave to appeal.

Associate:

Dated:    3 October 2014