FEDERAL COURT OF AUSTRALIA

Luck v Secretary, Department of Human Services (No 3) [2016] FCA 100

ORDERS

THE COURT ORDERS THAT:

1.    The applicant’s interlocutory application dated 23 October 2015 be dismissed.

2.    On or before 1 March 2016, the applicant file and serve any submission in relation to the costs of the application, and any affidavits in support.

3.    If the applicant files and serves any submission in relation to costs pursuant to Order 2, then on or before 8 March 2016, the respondents file and serve any submission in relation to the costs of the application, and any affidavits in support.

4.    Should no submission as to costs be made pursuant to Order 2, the applicant pay the respondents’ costs of the interlocutory application.

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

REASONS FOR JUDGMENT

BROMBERG J:

1    On 8 January 2010, the second respondent (AAT), constituted by the third respondent (Forgie DP), made a decision in relation to several requests by the applicant (Ms Luck), made pursuant to the Freedom of Information Act 1982 (Cth) for documents held by the first respondent (DoHS) (Luck v Department of Human Services [2010] AATA 6). Ms Luck appealed the AAT’s decision under s 44 of the Administrative Appeals Tribunal Act 1975 (Cth). The appeal (VID65/2010) was allocated to Tracey J. On 30 July 2014, Tracey J dismissed an application by Ms Luck for a stay, and upheld the DoHS’s notice of objection to competency (Luck v Secretary, Department of Human Services (No 2) [2014] FCA 798). His Honour dismissed VID65/2010.

2    Ms Luck appealed. A Full Court of this Court (Collier, Griffiths and Mortimer JJ) allowed Ms Luck’s appeal in part (Luck v Secretary, Department of Human Services [2015] FCAFC 111), and ordered that her matter be remitted for the hearing of questions (o), (u) and (aa) in her notice of appeal filed on 4 February 2010. Those questions of law were set out, so far as the Full Court considered relevant, at [36]–[38] of the Full Court’s judgment, as follows:

[36]    Question of law “o” in the notice of appeal dated 4 February 2010 to which the first ground of appeal refers was stated in the following terms:

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?

[37]    Question of law “u” to which the first ground of appeal also refers was in form very long, because Ms Luck has reproduced in the last part of the question the terms of her FOI request. In substance, the question is contained in the opening lines, which read:

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 …

[38]    Question of law “aa” to which the second ground of appeal refers was relevantly stated as follows:

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 …

3    On remittal of the appeal by the Full Court, VID65/2010 was allocated to my docket, and was listed for directions on 29 October 2015. On 23 October 2015 Ms Luck filed an interlocutory application (interlocutory application). The interlocutory application was also listed for directions on 29 October 2015. By her interlocutory application, Ms Luck sought these orders:

1.    That his Honour, Justice Bromberg, disqualify himself from the hearing and determination of this matter on the ground that the applicant and a fair minded lay observer (the public) could reasonably apprehend that he might not bring an impartial and unprejudiced mind to the deciding of the matters, which are the Constitutional matters that arise in this proceeding and are pending in the High Court of Australia in the applicant’s matters M49/2015, M50/2015, M53/2015, M215/2015, M216/2015 and M217/2015:—

a.    The doctrine of the separation of the judicature, the executive, and the legislature, was breached by the Court and his Honour, Justice Bromberg, in the matter of Luck v University of Southern Queensland (No 4) [2011] FCA 433 when performing the executive government function of determining whether the applicant was entitled to a grant of reasonable adjustments, as requested of the Registrar and Victorian District Registrar of the Federal Court, in writing, on numerous occasions prior to hearings, pursuant to her rights under the Disability Discrimination Act 1992 and the United Nations Convention on the Rights of Persons with Disabilities.

b.    That the concept of judicial immunity does not exclude the operation of section 29 of the Disability Discrimination Act 1992 (Cth).

“… a person who performs any function or exercises any power under a Commonwealth law or for the purposes of a Commonwealth program or has any other responsibility for the administration of a Commonwealth law or the conduct of a Commonwealth program …”?

2.    That the hearing and determination of this matter Gaye Luck v Secretary of Department of Human Services and Others VID65/2010 be stayed or adjourned pending the hearing and determination of the applicant’s Application for Removal of a Cause Luck v Secretary of the Department of Human Services and Ors M215/2015, from the Federal Court of Australia in respect of this matter, filed on18 September 2015 in the Melbourne Office of the High Court Registry, and in respect of the applicant’s Application for Special Leave to Appeal to the High Court of Australia in the matters of Gaye Luck v Chief Executive Officer, Centrelink (Freedom of Information Principal Officer) M216/2015 and M217/2015.

(formatting as in original)

4    Although the interlocutory application was set down on 29 October 2015 for directions only, Ms Luck requested that it be heard on that day. In the absence of objection from the respondents, that course was adopted and Ms Luck made oral submissions. She also made submissions in an affidavit lodged with the interlocutory application, in submissions dated 29 October 2015, and in further submissions also dated 29 October 2015.

5    For reasons that follow, I decline to make the orders sought and I dismiss Ms Luck’s application.

Apprehended bias

6    Proposed order 1 is predicated upon an allegation of apprehended bias. At some points during the hearing of Ms Luck’s interlocutory application, she verged on alleging actual bias, but ultimately she confirmed that her application was based only on apprehended bias. I will say nothing further about actual bias.

7    The leading authority in relation to apprehended bias remains Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337 wherein, at [6], Gleeson CJ, McHugh, Gummow, and Hayne JJ set out the test as follows:

… a judge is disqualified if 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 is required to decide.

8    Their Honours continued (at [8]) as follows:

The apprehension of bias principle admits of the possibility of human frailty. Its application is as diverse as human frailty. Its application requires two steps. First, it requires the identification of what it is said might lead a judge (or juror) to decide a case other than on its legal and factual merits. The second step is no less important. There must be an articulation of the logical connection between the matter and the feared deviation from the course of deciding the case on its merits. The bare assertion that a judge (or juror) has an "interest" in litigation, or an interest in a party to it, will be of no assistance until the nature of the interest, and the asserted connection with the possibility of departure from impartial decision making, is articulated. Only then can the reasonableness of the asserted apprehension of bias be assessed

9    The continuing authority of that passage has very recently been confirmed in Isbester v Knox City Council (2015) 89 ALJR 609 at [21]–[22] (Kiefel, Bell, Keane and Nettle JJ).

Background to the interlocutory application

10    Ms Luck’s application arose out of my involvement in earlier proceedings in this Court, being matters VID 476 and 899 of 2008, each entitled Luck v University of Southern Queensland, and which I dealt with together (2008 proceedings). On 21 April 2011, I dismissed the 2008 proceedings for want of prosecution (Luck v University of Southern Queensland (No 4) [2011] FCA 433) (2011 judgment). Paragraphs [3]–[22] of the 2011 judgment set out the procedural history of my involvement in the 2008 proceedings. Some of the more salient aspects of that history are as follows.

11    The 2008 proceedings were first listed for directions before me on 9 March 2010. Ms Luck had made application for their removal to the High Court, and sought the stay or adjournment of the 2008 proceedings until the determination of the removal applications. I adjourned the matters, and listed them for a further directions hearing on 25 June 2010. On 3 June 2010, Ms Luck sought a further adjournment for two months, based on a medical condition and so that she could pursue her removal applications. A doctor’s certificate was provided. The respondent neither consented to nor opposed the adjournment. I adjourned the proceedings and re-listed them for a directions hearing on 1 October 2010.

12    On 30 September 2010, Ms Luck sought a further adjournment, on the same grounds. The respondent consented. I adjourned the directions hearing to 8 December 2010. On 19 November 2010, Ms Luck sought a further adjournment, again on the same grounds. The respondent did not consent. It proposed orders to prepare the matter for hearing. Ms Luck did not respond to those proposed orders or propose alternative orders. The Court informed the parties that, in the absence of consent that the matters should be adjourned, the 8 December 2010 directions hearing would proceed. There was no consent, so the directions hearing did proceed. Ms Luck did not appear. I made orders requiring the filing and service of submissions and affidavits (see Luck v University of Southern Queensland (No 3) [2010] FCA 1402), and listing the matter for hearing on 31 March 2011. At [6] of my reasons for judgment, I said, “should an application in proper form be made to set aside the orders that I will make today, and should such an application be made before 1 March 2011, I will list and hear such application.” The date for hearing was subsequently changed to 21 April 2011.

13    On 1 February 2011, Ms Luck sent to the Court and to the respondent a letter, enclosing a doctor’s certificate, seeking an adjournment of the proceedings pending the hearing and determination of her removal application. In a manner typifying much of the correspondence received from Ms Luck, the letter included 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.

14    On 4 February 2011, an email containing the following was sent by the Court to Ms Luck:

Please be advised that his Honour is not willing to consider any application for vacation of the trial of your matter, currently listed to be heard on 21 April 2011, unless a formal application is made by way of notice of motion with supporting affidavit.

15    On 18 February 2011, Ms Luck replied saying that she had provided a medical certificate covering her grounds for absence of action in progressing the proceedings. On 21 February 2011, further correspondence went from the Court to Ms Luck saying, inter alia, this:

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 [sic] 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.

16    On 21 February 2011 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.

17    Further correspondence followed, including in an email from Ms Luck dated 12 April 2011. Ms Luck asserted that she was unable to comply with a requirement that her application be supported by affidavit, and asserted that such a requirement was in breach of the domestic and international human rights law, and in particular the Disability Discrimination Act 1992 (Cth) (DDA) and the United Nations Convention on the Rights of Persons with Disabilities. She said that she sought “concessions and reasonable adjustments in respect of the form in which [she] make[s] [her] applications.” She indicated that her seeking of concessions, adjustments, adjournments, stays, and time extensions was on the basis of her disabilities, in accordance with her rights under the DDA.

18    Throughout the course of the correspondence Ms Luck provided medical certificates of various dates, including 9 November 2009, 2 June 2010, 15 September 2010, 17 November 2010, 31 January 2011, and 1 April 2011. It is not necessary to set out their content.

19    My dispositive reasoning in the 2011 judgment was at [26]–[32]. As Ms Luck relied upon the content of those paragraphs in the current interlocutory application, it is convenient to set them out more or less in full:

[26]    Ms Luck’s conduct is in default of O 35A r 2(1) paragraph (a) by her failure to comply with the orders made on 8 December 2010. She is also in default at paragraph (b) of that rule due to her failure to attend the directions hearing on 8 December 2010. Given that it is now some 14 months since her notices of motion were issued and that Ms Luck has failed to take any step to progress those proceedings, she has in my view, failed to prosecute the proceedings with due diligence in breach of paragraph (f) of r 2(1) of O 35A. I have taken into account the following matters in deciding to exercise my discretion in favour of the dismissal of the proceedings.

[27]    Ms Luck’s conduct demonstrates an inability or unwillingness to cooperate with the Court. On one view her conduct, particularly the content and tone of her correspondence with the Court may be regarded as high-handed, disrespectful and defiant. As the authorities to which I have referred say, there is no requirement of intentional default or contumelious conduct. It is not necessary for me to make any such findings. It is sufficient that I be satisfied, as I am, that Ms Luck’s conduct indicates “an inability or unwillingness to cooperate with the Court and the other party or parties in having the matter ready for trial within an acceptable period.”

[28]    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.

[29]    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.

[30]    Prejudice to the respondent is another factor which I have taken into account. 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.

[31]    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. … 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. … 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.

[32]    Lastly I take into account the need to bring finality to this 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.

20    Ms Luck did not seek to appeal that judgment within time, but did apply for an extension of time to file a notice of appeal. That application was dismissed (Luck v University of Southern Queensland [2011] FCA 1335), Kenny J holding (at [29]) that “[t]he appeal that Ms Luck would bring against his Honour’s judgment has no prospect of success.”

21    Ground (aa) of VID65/2010 and the apprehended bias aspect of Ms Luck’s interlocutory application both refer to disability discrimination and reasonable adjustments. For context, I have set out below the definitions of “direct disability discrimination” and “indirect disability discrimination,” as found in ss 5-6 of the DDA:

5    Direct disability discrimination

(1)    For the purposes of this Act, a person (the discriminator) discriminates against another person (the aggrieved person) on the ground of a disability of the aggrieved person if, because of the disability, the discriminator treats, or proposes to treat, the aggrieved person less favourably than the discriminator would treat a person without the disability in circumstances that are not materially different.

(2)    For the purposes of this Act, a person (the discriminator) also discriminates against another person (the aggrieved person) on the ground of a disability of the aggrieved person if:

(a)    the discriminator does not make, or proposes not to make, reasonable adjustments for the person; and

(b)    the failure to make the reasonable adjustments has, or would have, the effect that the aggrieved person is, because of the disability, treated less favourably than a person without the disability would be treated in circumstances that are not materially different.

(3)    For the purposes of this section, circumstances are not materially different because of the fact that, because of the disability, the aggrieved person requires adjustments.

6    Indirect disability discrimination

(1)    For the purposes of this Act, a person (the discriminator) discriminates against another person (the aggrieved person) on the ground of a disability of the aggrieved person if:

(a)    the discriminator requires, or proposes to require, the aggrieved person to comply with a requirement or condition; and

(b)    because of the disability, the aggrieved person does not or would not comply, or is not able or would not be able to comply, with the requirement or condition; and

(c)    the requirement or condition has, or is likely to have, the effect of disadvantaging persons with the disability.

(2)    For the purposes of this Act, a person (the discriminator) also discriminates against another person (the aggrieved person) on the ground of a disability of the aggrieved person if:

(a)    the discriminator requires, or proposes to require, the aggrieved person to comply with a requirement or condition; and

(b)    because of the disability, the aggrieved person would comply, or would be able to comply, with the requirement or condition only if the discriminator made reasonable adjustments for the person, but the discriminator does not do so or proposes not to do so; and

(c)    the failure to make reasonable adjustments has, or is likely to have, the effect of disadvantaging persons with the disability.

(3)    Subsection (1) or (2) does not apply if the requirement or condition is reasonable, having regard to the circumstances of the case.

(4)    For the purposes of subsection (3), the burden of proving that the requirement or condition is reasonable, having regard to the circumstances of the case, lies on the person who requires, or proposes to require, the person with the disability to comply with the requirement or condition.

22    Finally, by way of background, I set out the conduct of which ground (aa) complains. Ms Luck’s application in the AAT was lodged in July 2009. In August 2009, DoHS wrote to the AAT querying its jurisdiction to determine Ms Luck’s application. Following an exchange of correspondence as between DoHS, Ms Luck, and the AAT as to whether the AAT did have jurisdiction, the AAT listed the matter for an “Interlocutory hearing – Jurisdiction question” on 23 October 2009. Ms Luck sought that the hearing be adjourned pending the hearing and determination of certain High Court proceedings, and for reason of her ill health. The AAT declined to adjourn its hearing of the jurisdictional question: the hearing went ahead on 23 October 2009 and Ms Luck did not appear.

23    After the hearing, the AAT sent to Ms Luck a transcript of the hearing and invited her to make written submissions. Ms Luck did so. Her submissions alleged, inter alia, that it was wrong for the AAT to have conducted the hearing and that it should adjourn any further consideration of the matter including the issue of its jurisdiction. The AAT declined to so adjourn, and went on to determine the question of its jurisdiction. Its decision contains consideration and rejection of Ms Luck’s submission that it ought effectively to stay its determination of the matter for reasons including Ms Luck’s medical condition. Ground (aa) is, in essence, an allegation that, by proceeding in that way, the AAT and Forgie DP engaged in disability discrimination against Ms Luck. As the Full Court that remitted the question said at [51], it may be a complaint about a denial of procedural fairness.

Identification of what might lead me to decide the case other than on its merits

24    The first step in the Ebner analysis is to identify “what it is said might lead [me] to decide a case other than on its legal and factual merits.” Due to the discursiveness of Ms Luck’s application and supporting submissions, that is not an entirely straightforward task. It is clear, however, that Ms Luck has based her application on an apprehension that, because of my involvement in the 2008 proceedings, I might have pre-judged issues that arise in this proceeding. There is no reliance placed by Ms Luck on any suggestion of apprehended bias based on personal interest. The real essence of Ms Luck’s submissions and this aspect of her application is, I think, at [17] of her first 29 October 2015 submissions, which is similar to [11] of her affidavit filed in support of her interlocutory application, and provides as follows:

The [interlocutory judgment] clearly contained matter that was similar in nature to the subject matter of the appellant’s appeal from the Administrative Appeals Tribunal in matter VID65/2010 and hence the reason for the question of law “aa” being remitted for trial, and it is clear that his Honour has a pre-formed opinion on the subject matter and should therefore disqualify himself automatically.

25    The written submissions did not identify with precision what was the “subject matter,” nor how it was that it was “similar in nature” to the subject matter of the 2011 judgment. However, there are a few salient passages in Ms Luck’s oral submissions that assist in understanding her application, as follows (emphasis added):

MS LUCK:    … I do want to make it clear that whatever you do in relation to this matter will be from, what I understand to be – I apprehend, bias and any reasonable person in the public would apprehend bias given your views on my disabilities and on your refusal to grant me any disability, reasonable adjustments … .

…

MS LUCK:    But I say that you should not sit on any directions at all, because you cannot direct me or direct us, the parties, in relation to submissions and timing of submissions when you’ve already preformed and prejudged my circumstances as to whether I’m entitled to disability reasonable adjustments.

…

MS LUCK:    Your role, sir, with all due respect, should not need to decide prior to me standing here before you with the subject matter of this case that you’ve already said that I’m a hopeless case and I’m a liar and I’m not disabled and I really don’t want to do what the court wants.

HIS HONOUR:    Well, when was that ever said, Ms Luck?

MS LUCK:    Well, that was basically in that case.

HIS HONOUR:    When was it ever said, Ms Luck?

MS LUCK:    You didn’t say the words “liar” but it’s implied.

HIS HONOUR:    No.

MS LUCK:    And you’ve implied that I was contumelious even if you didn’t say it. ...

…

MS LUCK:    … So that’s the constitutional matter that can’t be severed, because no judge can sit in your position and take this case, because – because most importantly, the AAT case was of such an extraordinary nature in regard to the disability discrimination and the disability issues and the exposure of all my private, sensitive material, which I asked to be removed, to have it – I’ve had that happen in the High Court, by the way, your Honour. There is a precedent that – and both with Gageler and Crennan JJ, where they obliterated all – and told the court they weren’t allowed to publish any of that, of my material, my doctors names, everything.

26    The relevance of the final passage, dealing with the alleged conduct of the AAT, seems to be related to Ms Luck’s written submissions dated 29 October 2015, at [12] and [16]:

The applicant provided personal and sensitive material by way of medical certificates and private information in correspondence addressed to the relevant executive officer, (the Registrar, through whom the Commonwealth acts) to be used only for the administrative determination of a grant of reasonable adjustments, not as a litigious discussion topic for exposure to the public by citation of the contents of those medical certificates and correspondence in the reasons for judgments made by the judiciary in its disposal of the applicant’s applications for stays or adjournments …

His Honour allowed the appellant’s personal and sensitive health information to be published to the world, contrary to her rights under the Australian human rights legislation, the United Nations Convention on the Rights of Persons with Disabilities and he failed to have respect for her inherent dignity, individual autonomy, including freedom to make her own choices and he failed to respect her independence.

27    It seems to me that Ms Luck raises three issues. First, her interlocutory application expressly raises the issue of whether the constitutional separation of powers prohibits members of the judiciary from determining reasonable adjustments claims and other associated issues (Constitutional issue). Although Ms Luck’s oral submissions did not develop this as going to an allegation of pre-judgment, I cannot see that it could possibly go to any other basis for apprehended bias. I will treat the allegation as being that I have prejudged the Constitutional issue.

28    Second, though Ms Luck’s interlocutory application does not itself raise this allegation, her written and oral submissions allege that I have pre-judged these issues:

(a)    whether and to what extent Ms Luck has disabilities, or whether Ms Luck ought to have reasonable adjustments consequent upon her disabilities (disabilities issue); and

(b)    an issue relating to the propriety of exposing Ms Luck’s personal information (personal information issue).

29    Third, while I have already mentioned the personal information issue in the context of the pre-judgment allegation, the passages quoted at [26] above do not seem to me to relate or relate exclusively to pre-judgment. They contain complaint about disclosure of personal information in the 2011 judgment. While not directly put, it is possible that Ms Luck advanced her personal information submissions not (or not only) in support of a pre-judgment allegation, but instead (or in addition) in support of a submission that my conduct departed from what was proper to such a degree that the reasonable bystander might apprehend that I had my heart set against Ms Luck as a litigant and was antipathetic to her, and therefore that I might not bring a fair and unprejudiced mind to any claim she brought (antipathy issue).

30    I will address those issues in turn.

Pre-judgment of the Constitutional issue

31    Ms Luck made submissions in relation to whether the determination of a claim for reasonable adjustments was an executive or judicial function, whether judicial immunity applied in relation to determination, by a judge, of a claim for reasonable adjustments, and whether judges of the Court, the Court itself, or both, were “officers of the Commonwealth”. As I understand Ms Luck’s apprehended bias allegation on this point, it is that the constitutional separation of powers prohibits members of the judiciary from determining reasonable adjustments claims, that in the 2011 judgment I determined a reasonable adjustments claim, and that the reasonable bystander might therefore apprehend that I have a pre-formed view as to the Constitutional issue and might not bring an impartial mind to that issue and related issues so far as they arise in this proceeding.

32    There is a very short answer: no constitutional issue arises in VID65/2010. Ground (aa) concerns whether Ms Luck was the subject of disability discrimination or procedural unfairness by the AAT and Forgie DP, not whether the AAT and Forgie DP were empowered to determine, or constitutionally precluded from determining, reasonable adjustment claims. Even if I did have a pre-formed view concerning the Constitutional issue, there can be no rational connection between any such view and the determination of ground (aa). The submission of apprehended bias based upon the Constitutional issue is without merit.

33    Two other reasons why this submission must fail can be shortly stated: first, the 2011 judgment contained no consideration of or conclusions in relation to the Constitutional issue, so the reasonable bystander would not apprehend a pre-existing view; second, even if the reasonable bystander would so apprehend, that is not a sufficient basis for thinking that I might not bring a fair and unprejudiced mind to the issue if it arose in this application (c.f. ResMed Ltd v Australian Manufacturing Workers’ Union (2015) 232 FCR 152 at [33] and [35], quoted below).

Pre-judgment of the disabilities issue

34    In this connection, Ms Luck’s argument seems to me to proceed in two ways. The first way in which the argument is put starts from the allegation that my 2011 judgment might be seen by the reasonable bystander to reveal that I have a pre-formed view as to whether Ms Luck is disabled or disabled to the extent she asserts. The argument continues that, so far as the issue arises in ground (aa) of VID65/2010 whether Ms Luck is disabled, the reasonable bystander might apprehend that I might not bring an impartial mind to its resolution.

35    The second way, which is related, relies upon an allegation that my 2011 judgment was, in effect, a decision denying Ms Luck’s request for reasonable adjustments. Ms Luck put it in this way, at [10] of her 29 October 2015 submissions:

… the primary judge, by refusing to grant the stays and adjournments sought by the applicant in circumstances where a formal request had been made to the relevant executive officer of the Federal Court in accordance with the DDA, for reasonable adjustments, which request had not yet been processed, was in effect, making a decision denying the request. …

The argument is that, because in my 2011 judgment I impliedly denied a request for adjustments made by Ms Luck to “the relevant executive officer”, I have pre-judged the issue that arises in ground (aa) as to whether the AAT should have allowed Ms Luck reasonable adjustments.

36    This aspect of Ms Luck’s claim relies upon a finding that the reasonable bystander might conclude that I had a pre-formed view as to whether Ms Luck was disabled or disabled to the extent asserted, or that I had a pre-formed view as to whether reasonable adjustments should be made for Ms Luck. If the reasonable bystander might reach either conclusion, or both of them, it would remain to establish the rational connection between the pre-formed view or views and a feared deviation from the proper determination of ground (aa) of VID65/2010.

37    I do not accept that the reasonable bystander would reach either conclusion. Nor do I accept that there is a requisite rational connection.

38    The 2011 judgment contains no findings concerning, nor the expression of a view (concluded or otherwise) as to the extent or nature of, any disability suffered by Ms Luck. Nor is there consideration of, findings concerning, or views expressed as to whether reasonable adjustments ought to be made for her because of her disabilities. The 2011 judgment dealt with a dismissal of proceedings for want of prosecution, and nothing more. In so doing, the judgment did deal with the form of the information provided by Ms Luck as to her medical condition. I held that the information provided had not been provided in proper form. I concluded that, as a result, the respondent in that case had been denied the opportunity to test the veracity of the conclusions asserted in medical certificates relied upon by Ms Luck. I also concluded, accepting the content of the medical certificates provided, that the Court had been denied the opportunity to evaluate the prospect of Ms Luck being able to prosecute her proceeding at a future time. Those conclusions neither expressly nor impliedly contain any expression of a view as to the nature or extent of Ms Luck’s disabilities.

39    The 2011 judgment does not deal with any request made by Ms Luck for reasonable adjustments. I accept that the effect of the judgment was to deny Ms Luck the vacation of the hearing that she requested. But there is nothing in the judgment to suggest that any such denial was the result of any conclusion or view reached as to Ms Luck’s disabilities or her need for reasonable adjustments as a result of those disabilities. I do not accept that a reasonable bystander might apprehend that I had any pre-formed view about either of those issues. Ms Luck might respond that the questions of whether she was disabled and whether she should have reasonable adjustments were raised by her correspondence and should have been determined. But, if that were correct (about which I do not express a view) it would not be to the point. A rational connection between the determination of an issue and an apprehension of bias based on pre-judgment of a similar issue later arising requires that the issue actually have been considered on the first occasion, not merely that it ought to have been considered.

40    Or, Ms Luck might respond that even if the 2011 judgment does not explicitly contain findings that she is not disabled or should not have reasonable adjustments, it implicitly involves those findings. I do not agree that the 2011 judgment contains implicit findings about disabilities or reasonable adjustments, but assuming it does (or that the reasonable bystander might think that it did), the rational connection is nevertheless absent as between any such implicit findings and a feared deviation from properly approaching the determination of the issues that arise in this application. What is required is an apprehension that I might not approach those issues, as they arise in VID65/2010, with a fair and unbiased mind. Even if I had formed a view as to Ms Luck’s disability or as to whether reasonable adjustments ought to have been made for her in relation to the 2008 proceeding, there is no basis for thinking I might not bring an impartial and unprejudiced mind to the question of whether, in the AAT proceeding, Ms Luck was subjected to disability discrimination or procedural unfairness by being denied reasonable adjustments, as asserted in ground (aa). The reasonable bystander would not so apprehend. That follows from what Jessup, Buchanan and Wigney JJ said in ResMed at [33] and [35]:

[33]    In Re JRL; Ex parte CJL (1986) 161 CLR 342 (JRL), Mason J, in a passage which has since been cited on very many occasions, said (at 352):

It seems that the acceptance by this Court of the test of reasonable apprehension of bias in such cases as Watson and Livesey has led to an increase in the frequency of applications by litigants that judicial officers should disqualify themselves from sitting in particular cases on account of their participation in other proceedings involving one of the litigants or on account of conduct during the litigation. It needs to be said loudly and clearly that the ground of disqualification is a reasonable apprehension that the judicial offıcer will not decide the case impartially or without prejudice, rather than that he will decide the case adversely to one party. There may be many situations in which previous decisions of a judicial officer on issues of fact and law may generate an expectation that he is likely to decide issues in a particular case adversely to one of the parties. But this does not mean either that he will approach the issues in that case otherwise than with an impartial and unprejudiced mind in the sense in which that expression is used in the authorities or that his previous decisions provide an acceptable basis for inferring that there is a reasonable apprehension that he will approach the issues in this way. In cases of this kind, disqualification is only made out by showing that there is a reasonable apprehension of bias by reason of prejudgment and this must be “firmly established”: Reg. v. Commonwealth Conciliation and Arbitration Commission; Ex parte Angliss Group; Watson; Re Lusink; Ex parte Shaw. Although it is important that justice must be seen to be done, it is equally important that judicial officers discharge their duty to sit and do not, by acceding too readily to suggestions of appearance of bias, encourage parties to believe that by seeking the disqualification of a judge, they will have their case tried by someone thought to be more likely to decide the case in their favour.

(Emphasis added.) (Footnotes omitted.)

…

[35]    In Helljay Investments Pty Ltd v Deputy Commissioner of Taxation (1999) 74 ALJR 68; 166 ALR 302, Hayne J, sitting as a single judge also referred to the passage from JRL and then said (at [12]):

[12]    The principles about apprehension of bias must be understood in the context of a judicial system founded in precedent and directed to establishing, and maintaining, consistency of judicial decision so that like cases are treated alike and principles of law are applied uniformly. The bare fact that a judicial offıcer has earlier expressed an opinion on questions of law will therefore seldom, if ever, warrant a conclusion of appearance of bias, no matter how important that opinion may have been to the disposition of the past case or how important it may be to the outcome of the instant case. Fidelity to precedent and consistency may make it very likely that the same opinion about a question of law will be expressed in both cases. But that stops well short of saying that the judicial offıcer will not listen to and properly consider arguments against the earlier holding. As Lush J said in Ewert v Lonie:

Every reasonable man knows that consistency in decision is one of the aims of judicial or quasi-judicial institutions, but if he is exercising his quality of reasonableness he does not suppose that a tribunal will refuse to entertain or will fail to give proper attention to a submission opposed to its former decision merely because it is so opposed. In this case, the reasonable onlooker might have thought that the appellants would not have much chance of succeeding, but this is not the same thing as feeling or believing that they would not get a proper hearing. It is not a characteristic of the law’s reasonable man either to be irrationally suspicious of every institution or authority or to think that every cynical appraisal represents an absolute truth.

The “fair and unprejudiced mind” which must be brought to bear upon the determination of litigation is, as the Court said in R v Commonwealth Conciliation and Arbitration Commission; Ex parte Angliss Group, “not necessarily a mind which has not given thought to the subject matter or one which, having thought about it, has not formed any views or inclination of mind upon or with respect to it”.

(Emphasis added.) (Footnotes omitted.)

41    Let it be accepted, for the sake of the argument, that the reasonable bystander might apprehend that I had given thought to and formed a view in the 2008 proceedings as to Ms Luck’s disabilities and her need for reasonable adjustments. There is nothing that has been “firmly established” to connect that with a feared deviation from the proper course of deciding VID65/2010. That is because existing views as to fact or law—especially those formed in a particular context and on particular (and limited) evidence, in previous proceedings—may be and often are departed from. There is nothing in the 2011 judgment to suggest that I would not listen to or properly consider Ms Luck’s arguments to the effect that she does have disabilities, that she did require adjustments, and that the AAT discriminated against her or denied her procedural fairness. There is nothing to suggest that I would bring anything other than an impartial and fair mind to the resolution of those issues as they arise in VID65/2010. In short, a pre-existing view is not the same thing as pre-judgment of an issue.

42    Finally, the interlocutory judgment did not contain any finding that Ms Luck was a liar, that she was a hopeless case, that she was not disabled, or that she had acted contumeliously. Nor could those findings be implied, especially as it was expressly said that no finding of intentional default or contumelious conduct was made. Rather, the finding that was made was this: “Ms Luck’s conduct indicates ‘an inability or unwillingness to cooperate with the Court and the other party or parties in having the matter ready for trial within an acceptable period.’” There is no rational connection between that finding, made only in the context of those proceedings and on the basis of the evidence available to me, and any feared deviation from the course of deciding the present matter on its merits.

Pre-judgment of the personal information issue

43    I reiterate that Ms Luck’s complaint in this regard was that she had “provided personal and sensitive material by way of medical certificates and private information in correspondence addressed to the relevant executive officer, (the Registrar, through whom the Commonwealth acts) to be used only for the administrative determination of a grant of reasonable adjustments, not as a litigious discussion topic for exposure to the public by citation of the contents of those medical certificates and correspondence in the reasons for judgments made by the judiciary in its disposal of the applicant’s applications for stays or adjournments.”

44    If it is correct that, in including in the 2011 judgment reference to what Ms Luck calls her “personal and sensitive health information”, I acted contrary to the instruments Ms Luck identified, and failed to respect Ms Luck’s inherent dignity and individual autonomy (including the freedom to make her own choices), and her independence, that would be most regrettable. I should add, however that Ms Luck did not herself treat her health information as confidential, as I will shortly explain. But, as with the Constitutional issue, there is a short answer to a pre-judgment allegation based on this issue: the issue does not arise in VID65/2010. None of the grounds involve questions of the lawfulness or otherwise of the release of personal information, or any other questions about the release of personal information. There is no “logical connection between [those matters] and the feared deviation from the course of deciding [VID65/2010] on its merits.” Ms Luck did not advance any connection, or any basis upon which the reasonable bystander might apprehend, based on my having included personal information in the 2011 judgment, that I might bring anything other than a fair and unprejudiced mind to this proceeding.

The antipathy issue

45    It is possible that Ms Luck’s submissions concerning personal information were made not in support of an allegation of pre-judgment of a relevant issue, but instead in support of a allegation that my conduct departed from what was proper to such a degree that the reasonable bystander might apprehend that I had my heart set against Ms Luck as a litigant, and therefore that I might not bring a fair and unprejudiced mind to any claim she brought. Consideration of that submission requires assessment of the factual issue raised by Ms Luck, namely, whether her provision of medical certificates was only for the administrative determination of a grant of reasonable adjustments, and not as a “litigious discussion topic.”

46    It is true that Ms Luck’s letters were mostly addressed to persons employed within the Court’s registry (e.g., the “Victorian District Registrar”). But, that was not always the case. Correspondence was sometimes directly with my chambers. And, when correspondence did go to Registry staff, it contained statements and directions to this effect:

For these reasons I make application to the Federal Court for matters VID476/2008 and VID899/2008 to be adjourned … .

Please forward these application letters and medical certificate to the Court today.

(3 June 2010)

Please find attached my Application … to Justice Bromberg whereby I sought to have my matters … stayed or adjourned … . For these reasons I make application to the Federal Court for matters … to be adjourned … .

Please forward this application letter and medical certificate to the Court today.

(19 November 2010)

Please find attached my Application of today to Justice Bromberg whereby I seek to have my matters … stayed or adjourned … . For these reasons I make application to the Federal Court for matters … to be adjourned … .

Please forward this application letter and medical certificate to the Court today.

(1 February 2011)

Attached for filing today, please find my application to the Court, addressed to Bromberg J, in respect of all of my matters … .

Please forward my attached letter and medical certificate to the Full Court and the Court today.

(5 April 2011)

47    In a few cases, the covering letter to the Registry enclosed a letter addressed specifically to “The Honourable Justice Bromberg,” and containing words to the effect that Ms Luck made application to me for an adjournment of proceedings (see, e.g., letters dated 19 November 2010, 1 February 2011, and 5 April 2011). So, I would not accept the submission that the letters were for administrative purposes only and that it was somehow irregular that they came to be considered by me. They were applications for adjournments of hearings, specifically intended by Ms Luck to be put before and considered by me, and to be considered on the basis of the material that Ms Luck included with those letters.

48    The same observation can be made in relation to the medical certificates themselves. I have already noted that Ms Luck expressly requested that they be brought to my attention in relation to applications for adjournment of proceedings. What is more, they were said to be provided “for filing”, “for filing and service”, or “as evidence of [her] health circumstances” (see, e.g., letters dated 3 June 2010, 19 November 2010, 1 February 2011, and 5 April 2011), in support of what Ms Luck described as being applications for adjournments. In no case was it requested that any letters or attached medical certificate be kept confidential or suppressed.

49    My 2011 judgment referred to material that had been put before me in support of requests for adjournments, in circumstances where the party relying on that information had not requested any suppression or confidentiality regime.

50    Even if, in that circumstance, a reasonable bystander would think I should nevertheless have appreciated Ms Luck’s sensitivity to the publication of the health information provided, a reasonable bystander would not apprehend any ill will and that, as a consequence, I might have an antipathy to Ms Luck. As a result, a reasonable bystander would not apprehend that I might bring a partial mind to the resolution of VID65/2010.

Should the proceeding be stayed?

51    Ms Luck’s interlocutory application identified three applications that she said were relevant to her application for a stay: an application in the High Court (M215/2015) for removal of VID65/2010 to the High Court, and two applications for special leave (M216/2015 and M217/2015), in respect of proceedings that Ms Luck identified in her interlocutory application as “Gaye Luck v Chief Executive Officer, Centrelink (Freedom of Information Principal Officer)”.

52    But Ms Luck’s focus was overwhelmingly on the application for removal of proceedings rather than on her applications for special leave. The special leave applications themselves were not put before me and I have no knowledge of their content or substance. I was not told which judgments they related to beyond their title. Ms Luck’s written submissions did not refer to the special leave applications. In oral submissions, Ms Luck likewise did not say anything concerning her special leave applications beyond reading out the second order that she sought. Further, Ms Luck sought to distinguish Luck v Chief Executive Officer of Centrelink [2015] FCAFC 75 (Centrelink Adjournment case), being a judgment that considered whether to stay an appeal pending applications in the High Court, on this basis (emphasis added):

MS LUCK:    That’s not a removal application, your Honour. That’s a special leave application. This particular matter is a removal application. Special leave is a different situation, your Honour, but the two – they heard the two together, the Full Court, and - - -

All of those matters indicate that Ms Luck did not seriously rely upon her special leave applications in support of her interlocutory application.

53    Further, even if the special leave applications were relied upon it would be difficult for me to assess their significance in the context of this application, as I know very little about them. I infer from their title that they relate to the judgments of Collier, Griffiths and Mortimer JJ in the Centrelink Adjournment case and Luck v Chief Executive Officer of Centrelink (No 2) [2015] FCAFC 112. That is consistent with order 2 of the application for removal, set out so far as is relevant below (bold emphasis added):

That this proceeding [VID65/2010] be consolidated with the pending proceedings in the High Court of Australia, the applicant’s application for Special Leave to Appeal in Gaye Luck v Chief Executive Officer of Centrelink (Freedom of Information Principal officer) M /2015; VID898/2008; …

I have not been made aware that any application for special leave has been lodged in relation to Luck [2015] FCAFC 111, being the judgment that remitted VID65/2010 to me. While the Centrelink Adjournment case involved the making of interlocutory orders in relation to VID512/2014, being the same matter that was finally determined in Luck [2015] FCAFC 111, where the final judgment in that matter is not itself the subject of a special leave application (so far as I know), it is difficult to see that the outcome of the special leave applications could have any bearing on the matters in issue in this proceeding.

54    For the above reasons, my consideration of this aspect of Ms Luck’s application will focus on the import of her removal application in the High Court, and the import of her special leave applications will be dealt with secondarily and will be necessarily constrained by the limited information available to me.

55    In written submissions, Ms Luck said this (at [19]):

The matter should be stayed pending the hearing and determination of the appellant’s Removal Application M215/2015, as has occurred in the matter of Gaye Luck v University of Southern Queensland and Anor VID189/2015, in which his Honour, Justice Jessup, on 14 August 2015, ordered the matter to be stayed pending the hearing and determination of my Removal Application M49/2015 pending in the High Court.

56    A materially-identical submission was made in Ms Luck’s affidavit lodged in support of her interlocutory application. Her second 29 October 2015 submissions did not address the issue. In oral submissions, Ms Luck submitted as follows:

MS LUCK:    … In [M215] of 2015, I have advanced some arguments in regard to the applications for stay or adjournment of the proceedings … three questions of law, your Honour, that are now before you for trial, they are – the issues before the High Court in the constitutional matters was relating to the judicial immunity in regard to disability discrimination and the Disability Discrimination Act and … the validity of the primary judge’s determinations, given his dual role as – when he was performing on the bench as the Justice of the Federal Court at the same time as answering to a Minister in his role as the Judge Advocate General, which was an executive role. …

MS LUCK:    So those are the two major questions of law before the High Court, and they cut across all of these matters that Tracey J was involved in determining. Now, the problem here lies in that, of course, the Federal Court, several Federal Courts, Full Courts, have not very persuasively answered those questions. In fact, some of them haven’t even answered them at all or discussed them or determined them. They have merely followed on with some other … each one of them has followed on the first one without going through the process of – I will just ..... a precedent here. This is a – in regard to the Full Courts following each other and yourself and any other judge that follows the Full Court, which was quite surprising in that his Honour Justice Jessup did not.

Relevantly, Ms Luck’s submissions continued as follows:

MS LUCK:    … [T]hese constitutional matters should not have been – where they were pending in the High Court … they should have been stayed pending their determination. And if the court wants to do that, the High Court wants to dismiss them, that is entirely an original jurisdictional determination by the High Court that should be doing it, not the Federal Court taking over the power of the High Court.

57    I take the view that Ms Luck is really making two submissions: first, that in order to avoid usurping the jurisdiction of the High Court I am obliged to grant her a stay; second, even if I am not so obliged I should do so anyway in the exercise of my discretion. I will deal with those issues separately.

Am I bound to stay the substantive proceeding?

58    Standing in the way of any submission that I am bound to stay this matter is that, on previous occasions, judges of this Court have declined to stay Ms Luck’s matters where (as here) she had sought a stay consequent upon a removal application in the High Court (see Centrelink Adjournment case and Luck [2011] FCA 1335 (USQ Adjournment case)). In the USQ Adjournment case, Kenny J said the following at [19]–[20]:

[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.

59    All but the final few sentences of [20] was quoted and adopted in the Centrelink Adjournment case, along with observations of Rares J in Birdon Pty Ltd v Houben Marine Pty Ltd [2011] FCA 1217 concerning stays pending the determination of special leave applications. The Full Court also referred to Nettle J’s disposition of applications by Ms Luck seeking that certain Federal Court proceedings (including VID898 of 2008 and VID512 of 2014, the appeals the subject of the Centrelink Adjournment case) be stayed. His Honour declined to stay the matters (Luck v University of Southern Queensland [2015] HCATrans 125). So did the Full Court in the Centrelink Adjournment case (at [40]).

60    Ms Luck submitted that a single judge of this Court was not bound to follow decisions of Full Courts where the Full Court had not exposed its reasons for decision. She said that Jessup J had declined to follow the Centrelink Adjournment case. She relied upon Wurridjal v the Commonwealth of Australia (2009) 237 CLR 309 wherein French CJ said this (at [71]):

Although decisions of this Court about overruling its own prior decisions have referred to the identification of “error” in the previous decision, it does not follow that it is always necessary to make a finding that a prior decision was erroneous in order to justify overruling it. …

61    That dictum is limited to the High Court’s departure from its own decisions. So, too, is the judgment of Isaacs J in Australian Agricultural Company v Federated Engine-Drivers and Firemen’s Association of Australasia (1913) 17 CLR 261, upon which Ms Luck also relied. Neither provides a basis for my departing from a judgment of a Full Court of this Court. It is surely axiomatic that a court is bound by statements of principle as laid down as part of the relevant law by a court higher in the hierarchy of the same juristic system: Favelle Mort Limited v Murray (1976) 133 CLR 580 at 591 (Barwick CJ); Lipohar v the Queen (1999) 200 CLR 485 at [46] (Gaudron, Gummow and Hayne JJ). And, in any event, the Full Court in the Centrelink Adjournment case did expose its reasons, from paragraphs [32]–[40]. I reject the submission that I am obliged to stay this substantive proceeding.

62    Ms Luck relied upon Jessup J having stayed the hearing of an appeal (in VID189/2015) from the judgment of Davies J in matter VID61/2015 (Luck v University of Southern Queensland [2015] FCA 286), pending the determination by the High Court of Ms Luck’s application for the removal of VID189/2015 into that Court. While written reasons for his Honour’s Orders were not published, a transcript of 14 August 2015 was available. It suffices to say here that I read Jessup J not as having considered himself bound to stay VID189/2015, but as having done so in the exercise of his discretion. His Honour’s Orders provide no reason for acceding to a submission that I am bound to stay VID65/2010.

Should a stay be granted?

63    Turning now to the exercise of discretion, in light of Ms Luck’s reliance upon Jessup J’s reasoning in VID189/2015, some context to that matter should be given.

64    As it appears from the transcript of 14 August 2015, on 17 April 2015, shortly after Ms Luck lodged an appeal from the judgment of Davies J, she sought the removal of that appeal to the High Court. Ms Luck submitted to Jessup J that constitutional issues were raised both in VID189/2015 and in an application for special leave that she had lodged (M116/2014) from a different judgment (Luck v University of Southern Queensland (2014) 145 ALD 1) in a different matter (VID1158/2013). Her argument in the special leave application was, she said, that every judgment of Tracey J was vitiated by (inter alia) a failure by Tracey J to recuse himself and a breach of the constitutional separation of powers. It followed, so Ms Luck said, that every judgment that had its genesis in a judgment of Tracey J was undermined and susceptible to quashing by constitutional writ. In VID61/2015, Davies J had declined to set aside a bankruptcy notice based upon costs awarded against Ms Luck in other proceedings including VID476/2008 (in which Tracey J delivered judgment) and VID899/2008 (an appeal from Tracey J’s judgment). Therefore, Ms Luck said, the judgment of Davies J had its genesis in Tracey J judgments, it was thus undermined, VID189/2015 was in that way connected with M116/2014, and VID189/2015 should be stayed pending the determination of M116/2014 and of her application for removal of VID189/2015.

65    Before Jessup J, the respondents relied upon the Centrelink Adjournment case, which had been published on 1 June 2015. It is apparent from the transcript of 14 August 2015 that Jessup J considered that case distinguishable. Regrettably, the apparent point of distinction arose because Jessup J had been misled (inadvertently, no doubt) by the respondent in relation to the status and circumstances of the Centrelink Adjournment case. Jessup J asked the parties what had happened to the appeals in VID898/2008 and VID512/2014 subsequent to the Full Court having determined not to grant a stay. Ms Luck appears to have said that judgment had been reserved. The respondent said that they had not been heard, and in fact had not even been listed. Ms Luck was right. The appeals had been heard on 21 May 2015—the same day as the hearing of the stay application—and judgment was reserved. Judgments in both appeals were, in fact, delivered only one week after the hearing before Jessup J, on 21 August 2015.

66    So, his Honour knew that on 1 June 2015 the Full Court had published reasons in the Centrelink Adjournment case, in which it refused to grant a stay of the appeals in VID898/2008 and VID512/2014. But his Honour was under the misapprehension that those appeals had not yet been set down for hearing. That is why his Honour asked this question:

HIS HONOUR:    The question of whether an appeal should actually go ahead and be heard and dealt with while there’s a section 40 application pending in the High Court wasn’t dealt with in [the Centrelink Adjournment case], was it?

MS MITCHELL:    Not in that particular proceeding. No, your Honour.

That was a wrong answer. The Full Court did deal with that issue: indeed, it had heard the substantive appeals on the same day as the stay application, and it handed down judgments in the substantive appeals three months later. Similarly, Jessup J said this:

HIS HONOUR:    … if this court actually hears and determines this appeal [i.e., VID189/2015] next week, it will be exercising the very jurisdiction which the applicant has applied to have exercised by the High Court, which is different from the Centrelink case, if I can call it that, that you handed up.

MS MITCHELL:    Yes, your Honour.

HIS HONOUR:    That was simply, it seems to me, concerned with the stay of the appeal proceeding and I don’t – I see that in a quite different category, that if the stage in which the question arises is early in the piece – and I can well understand the court not wanting to put everything on hold on the off-chance that a section 40 removal application might be made. …

Again, the apparent distinction was based on a misapprehension of the status of VID512/2014 and VID898/2008.

67    The apparent distinction between VID189/2015 and the Centrelink Adjournment case was illusory. Nor is this case distinguishable, in point of principle, from the Centrelink Adjournment case. Ms Luck’s application falls to be considered according to the principles set out in that case. They include that I am to have regard to these matters:

(1)    Whether a stay is necessary to preserve the subject matter of this proceeding (Centrelink Adjournment case at [35]; Birdon at [10]);

(2)    Whether refusal of a stay could create practical difficulties in relief available to the High Court (Centrelink Adjournment case at [36]; Birdon at [10]);

(3)    The likelihood of success of the removal application in the High Court (Centrelink Adjournment case at [38]–[40]; USQ Adjournment case at [19]–[20]), taking into account that orders for removal interfere with courts’ usual processes and should only be removed where the issues are important and require the High Court’s urgent determination (Centrelink Adjournment case at [37]–[38]; USQ Adjournment case at [19]–[20]; Bienstein v Bienstein (2003) 195 ALR 225 at [45]); and

(4)    Section 37M of the Federal Court of Australia Act 1976 (Cth) (Centrelink Adjournment case at [33]).

Whether a stay is necessary to preserve the subject matter of this proceeding

68    The issues in VID65/2010, limited to the grounds remitted by the Full Court, are whether the AAT erred in failing to require DoHS to provide Tribunal documents under s 37 of the Administrative Appeals Tribunal Act 1975 (Cth), whether the AAT erred in denying jurisdiction to review those of the DoHS’s decisions of which Ms Luck sought review, and whether the AAT and Forgie DP subjected Ms Luck to disability discrimination (which raises issues of procedural fairness). If Ms Luck is successful or partially so on the substantive appeal, the matter may be remitted to the Tribunal. If she is unsuccessful or partially so, she may appeal. The subject matter of VID65/2010 is not in any way threatened if it is determined in this Court, rather than in the High Court. The existence of the removal application provides no basis for staying VID65/2010.

69    Similarly, to the extent that Ms Luck relies upon the pendency of her special leave applications, for reasons give above at paragraphs 52–54 above, I cannot see that special leave being granted would affect the progress of VID65/2010. The special leave applications provide no basis for staying VID65/2010.

Whether refusal of a stay could create practical difficulties in relief available to the High Court

70    If I were to hear and determine VID65/2010 before the High Court determined Ms Luck’s application for removal of the cause, the removal application would be otiose, in that there would no longer be anything to remove: Bienstein at [39]; Re Stubberfield’s Application (1996) 70 ALJR 646 at 647 (McHugh J). The consequence would appear necessarily to be that the removal application would be dismissed (Stubberfield at 647). Thus, the consequence of my determining VID65/2010 would be to take the matter out of the High Court’s hands, unless it earlier determined to remove the proceeding. That consideration would carry great weight with me, were it not for the presence of two additional factors.

71    Principally, as I explain below, I consider Ms Luck’s removal application to have no prospect of success. Furthermore, Ms Luck’s removal application will not become nugatory unless and until I determine VID65/2010. That will not happen before 2 March 2016 at the earliest, that being the date upon which this matter is listed for hearing. In the meantime, Ms Luck’s removal application in the High Court seeks, as proposed order 3, that VID65/2010 be stayed. It is open to the High Court, should it wish to prevent my rendering application M215/2015 nugatory, to grant that stay. Ms Luck may choose to approach the High Court seeking an earlier determination of (at least) that aspect of her application on the basis of the risk that her removal application will become otiose, absent determination by the High Court of the stay application, by my determining VID65/2010. If Ms Luck does that forthwith and the High Court lists her application for a stay on a date later than 2 March 2016, I would refrain from delivering judgment in this matter until the High Court has determined the stay application.

72    As to the special leave applications, I cannot see, based on the information available to me, that my determination of VID65/2010 prior to their determination would have any impact upon the relief available in the High Court.

The likelihood of success of the applications in the High Court

73    In my opinion, there is no prospect that Ms Luck’s removal application will be successful. Section 40 of the Judiciary Act 1903 (Cth) depends upon the identification of a cause, or part of a cause, pending (relevantly) in a federal court. The difficulty for Ms Luck, which I see as being insurmountable, is that none of the ten questions she identifies in her removal application are pending in VID65/2010, and so they cannot attract the operation of s 40.

74    I repeat that the issues in VID65/2010 are, per grounds (o), (u), and (aa), three only: whether the AAT erred in failing to require DoHS to provide Tribunal documents under s 37 of the Administrative Appeals Tribunal Act 1975 (Cth); whether the AAT erred in denying jurisdiction to review those of the DoHS’s decisions of which Ms Luck sought review; and, whether the AAT and Forgie DP subjected Ms Luck to disability discrimination (which raises issues of procedural fairness). In particular, no issue as to how Tracey J earlier dealt with VID65/2010 is (or could be) before me, and no issue as to how the Full Court on appeal from Tracey J dealt with the appeal is (or could be) before me.

75    Ms Luck’s application in M215/2015 sets out 10 purported “Constitutional questions of law.” Questions (a) and (b) concern the Full Court’s conduct. Questions (c) and (i) complain of both the Full Court’s conduct and Tracey J’s. Questions (d)–(g) relate only to Tracey J’s conduct. None of those questions can or do arise in VID65/2010. Question (h) raises whether judicial immunity excludes the operation of s 29 of the DDA: that does not arise in this appeal from the AAT. Question (j) queries whether Ms Luck has been denied natural justice. While that question does not expressly mention Tracey J or the Full Court on appeal from Tracey J, in the context of all nine of the other questions relating to either or both of Tracey J and the Full Court, I read question (j) as also so relating. Thus, none of the questions that are set out in Ms Luck’s removal application are questions that arise in VID65/2010. In that case, the removal application must fail.

76    It is worth also noting that many of the issues that Ms Luck identifies in her removal application—especially those complaining of Tracey J’s conduct—have been dealt with by previous Full Courts, have been the subject of unsuccessful special leave applications, and have been the subject of unsuccessful removal applications. In particular I refer to Luck (2014) 145 ALD 1 and to the High Court’s refusal to grant special leave to appeal against that judgment, on the basis that the application “[did] not advance any reason to doubt the correctness of the conclusions reached by the Full Court of the Federal Court” (Luck v University of Southern Queensland [2015] HCASL 136). It seems to me unlikely that the High Court would now hold that the same issues, if they did arise in VID65/2010, require the High Court’s urgent determination.

77    Finally, I observe that the issues that do arise in VID65/2010 have previously been the subject of a removal application to the High Court, which removal application was unsuccessful. Application M10/2010 in the High Court was filed 15 February 2010 (i.e., shortly after Ms Luck’s notice of appeal in VID65/2010 was filed). It was “an application for an order pursuant to s 40 of the Judiciary Act for removal of the whole of the cause pending in the Federal Court of Australia, VID65 of 2010” (Luck v Federal Court of Australia [2011] HCATrans 290 at lines 382–385). On 13 October 2011, Crennan J said as follows in the course of giving reasons for dismissing the application (Luck [2011] HCATrans 290 at lines 767–780 and 793–795) (emphasis added):

This proceeding lacks merit and has no prospects of success. Assertions made by Ms Luck cover a multitude of grounds as to why there should be an order for removal in this matter, however, significant parts of these assertions are formulaic. Ms Luck does not particularise how the decisions, determinations and conduct on the part of the various respondents breach the principles of law to which she refers. Accordingly, it is not possible to discern any intelligible cause of action in respect of any of the respondents. There is nothing in the application as constituted, or in Ms Luck’s prosecution of the proceeding, which would suggest that the issues are sufficiently important so as to require the Court’s urgent attention and warrant an order for removal. Further, for the purposes of this proceeding, I incorporate, with necessary changes, all that has been said before in matter No 52 of 2009 in relation to the need for fairness and justice in the conduct of legal proceedings.

…

In all of the circumstances the proceeding is vexatious and an abuse of process. The application for removal filed by Ms Luck on 15 February 2010 should be dismissed pursuant to r 27.09.4 of the High Court Rules

78    Those remarks applied to an application for removal of the whole cause in VID65/2010, including (of course) grounds (o), (u), and (aa). Where the High Court has once before determined not to remove this matter (including grounds (o), (u), and (aa)), and also determined that the removal proceeding was vexatious and an abuse of process, it seems to me highly unlikely (to say the least) that, more than four years later, the High Court will now determine that the matters are sufficiently important as to require the High Court’s urgent attention.

79    It is not necessary (nor, probably, is it appropriate) for me to consider the likelihood of success in the special leave applications. For reasons I have given above, on the information available to me, they appear to have no bearing on VID65/2010.

Section 37M

80    I take into account the need for the Court’s powers to be exercised so as to facilitate the just resolution of disputes according to law, and to do so as quickly, inexpensively, and efficiently as possible. These matters are relevant, but not determinative. I have already said that I consider Ms Luck’s removal application to have no prospect of success. If that is right, then to stay this matter pending the determination of the removal application would delay, for no benefit, the progress of this matter. The prospect of determining VID65/2010 before the High Court determines Ms Luck’s removal application, thus removing the subject matter of that application, would be of concern to me if I thought that there was any real prospect that the High Court would grant the application, but I do not. On balance, it therefore seems to me that s 37M considerations militate against the grant of a stay.

Disposition—stay

81    I start by saying that the present stay application is distinguishable from the application in the Centrelink Adjournment case on three bases. First, there, the argument that there were constitutional questions involving the conduct of Tracey J, which could be removed to the High Court, was available, but not so here: there the Full Court was sitting on an appeal from Tracey J, whereas I am not. Second, there, Nettle J had declined to stay the Full Court appeal pending the High Court’s consideration of the removal application, which moved the Full Court to likewise refuse a stay; here, there is no comparable refusal by the High Court to stay VID65/2010. Third, there, Ms Luck made her removal applications “well into the final stages of preparation for the hearing of [the] appeals” (Centrelink Adjournment case at [12]); here, Ms Luck’s removal application was lodged not long after the remittal and before preparation for hearing of VID65/2010 really got underway. A further distinction might have been that, in the Centrelink Adjournment case, Ms Luck did not appear to rely upon the pendency of special leave applications. But, as is apparent from what has been said above, the pendency of special leave applications has not been significant in this application and so that distinction is largely one without a difference.

82    The first of those distinctions makes this a stronger case for refusing a stay than was the Centrelink Adjournment case. The second and third distinctions, while they move in the other direction, do not (in my mind) outweigh the first. In the case of the second, I note in particular that, as explained above, it remains open to the High Court to grant Ms Luck’s application for a stay (if it is that way minded) and thus to preserve the subject matter of Ms Luck’s removal application. In light of the foregoing, where the Full Court refused a stay, it would be hard for me to hold that a stay is here appropriate.

83    In any event, I have independently reached the conclusion that a stay is inappropriate on the basis of the various factors considered underneath previous subheadings. Of those, the only one that might count in favour of a stay is the prospect of rendering the removal application to the High Court an empty application by prior determination of VID65/2010. But, that factor is of diminished weight because, in my view, there is no prospect of the removal application being successful, and because the High Court can prevent that outcome if it is so minded. The other matters considered above militate against a stay. On balance, I consider that it is not in the interests of justice to grant a stay pending Ms Luck’s removal and special leave applications, and I decline to do so.

Conclusion

84    Ms Luck’s application will be dismissed.

85    Neither party made submissions as to costs. I am not aware of any circumstance that would warrant departure from the usual order that costs follow the event. But, I will give Ms Luck an opportunity to make submissions (supported by affidavit, if she desires), within 14 days, in support of a different order. In the event Ms Luck makes such submissions, the respondents will have 7 days to respond (again supported by affidavit, if they desire). Assuming there is no objection, and if the issue of costs appears to be appropriate to deal with on the papers, I will deal with it on the papers. In the absence of submissions in support of a different costs order, I will order that Ms Luck pay the respondent’s costs of this application.

Associate:

Dated:    16 February 2016