FEDERAL COURT OF AUSTRALIA

Luck v Secretary, Department of Human Services (No 2) [2019] FCA 1290

ORDERS

THE COURT ORDERS THAT:

1.    Paragraph 2 of the appellant’s interlocutory application dated 24 July 2019 is dismissed.

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

REASONS FOR JUDGMENT

(Revised from transcript)

SNADEN J:

1    By an interlocutory application dated 24 July 2019, the appellant, Ms Luck, seeks (amongst other things) that I recuse myself from hearing an appeal that she has instituted in this court. Her application was supported by an affidavit sworn on that same date, and by written submissions dated 12 August 2019. These reasons—and the order made in consequence of them—address only so much of that application as was directed to the request that I not continue to hear the present appeal.

2    The application is—or, at least, was—premised upon an article that was published in the Sydney Morning Herald newspaper on 9 March 2019, following the public announcement of my appointment to this court. A copy of that article was attached to Ms Luck’s supporting affidavit. It alludes to certain relationships that I am understood to have or to have had with various Australian politicians.

3    During this morning’s hearing, Ms Luck indicated that she no longer felt (or, in any event, did not feel or now feel) that the matters that were the subject of that article were sufficient to warrant my recusal. I, therefore, say nothing further about its content.

4    Ms Luck does, though, advance another reason as to why I should disqualify myself from hearing her appeal. She has identified two cases in which I have sat—one alone and one as a member of a full court—and in which applications for adjournments on the grounds of health or asserted incapacity were heard and dismissed: Maere v Minister for Home Affairs [2019] FCAFC 121 (Davies, O’Bryan and Snaden JJ); and Bellou v Victoria University [2019] FCA 812 (Snaden J). Ms Luck’s submission was that it should be seen from those decisions that I have exhibited a belief that such adjournment applications may be determined by the judicial, rather than executive, arm of government. Ms Luck is of the view that adjournment applications of that sort are not competent to be determined by the judiciary. That is a contention that she intends to advance in this appeal.

5    The legal principles governing recusal are well established. At issue is whether a fair-minded lay observer might reasonably apprehend that I might not bring an impartial mind to the resolution of the question that I am required to decide in this appeal: Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337, 344 (Gleeson CJ, McHugh, Gummow and Hayne JJ). Application of that test requires two steps. First, there must be identified the matter or matters upon which arises the relevant apprehension that a decision-maker might decide a case other than on its legal and factual merits. Second, there must be an articulation of the logical connection between that matter or those matters (on the one hand) and the feared deviation from the course of deciding the case on its merits (on the other).

6    My involvement in previous decisions in which adjournment applications made on the basis of asserted incapacity were heard and denied is not a circumstance that reasonably grounds any apprehension that I will approach Ms Luck’s appeal with anything but an open and impartial mind. In neither of the cases that she cites was there any argument advanced that the court was not competent to determine the adjournment application that was made. Both involved late-stage applications supported by medical evidence that I might politely describe as “thin”. As an aside (and acknowledging that it doesn’t squarely grapple with Ms Luck’s point), in one of them, a similar adjournment application was made only a short time later, supported by more fulsome evidence, and I granted it: Bellou v Victoria University (No 3) [2019] FCA 940 (Snaden J).

7    Regardless, it cannot fairly be said that, because I didn’t determine previous matters consistently with submissions that weren’t made, I’ve somehow exhibited any sense of prejudgment of any issue that Ms Luck seeks to agitate by this appeal. But even if submissions similar to those that Ms Luck intends to advance in this appeal had been made and rejected in those cases, that, too, would fall well short of a basis for submitting that a reasonable lay observer might apprehend that I would, or might, decide this matter on any basis other than its merits. Judges have occasion to consider and decide matters of legal principle regularly. That’s an obvious incident of the job. Inevitably, when we do so, there is a winner and a loser; and rarely will the loser be happy about the result. Other litigants, including future litigants, might also not be happy with the result and might well consider that it’s wrong.

8    Be that as it may, I know of no authority—and none was advanced—that stands for the proposition that a judge, having heard and determined a particular point in a given case, might, thereafter and for the remainder (or, indeed, for any portion) of his or her commission, be thought ineligible to decide the same point in a later case; or, more accurately, might be impugned as someone who is, or might be, animated by improper prejudgment, or who is, or might be, otherwise inclined to decide the question in any way other than on its merits. Given the volume of legal questions that arise repeatedly for determination in this court, it is no overstatement to say that such a state of affairs, were it to exist as Ms Luck contends, would overwhelm the proper administration of justice. The proposition that Ms Luck advances is not known to the law.

9    For those reasons and with respect, Ms Luck’s invitation that I recuse myself, or otherwise not continue to hear her appeal, is declined.

Associate:

Dated:    16 August 2019