FEDERAL COURT OF AUSTRALIA

Luck v Secretary, Department of Human Services (No 3) [2019] FCA 1335

ORDERS

THE COURT ORDERS THAT:

1.    Paragraph 1 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)

O’CALLAGHAN J:

1    This is an application by the appellant that I should recuse myself from hearing the appeal commenced by the appellant on 2 September 2016, which was originally to be heard today. The appellant submits that I should recuse myself because a fair-minded lay observer might reasonably apprehend that I might not bring an impartial mind to the resolution of the issues in the appeal.

2    The relevant principles governing an application such as this are well established. As the plurality said in Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337 at 344-345, [6]:

Where, in the absence of any suggestion of actual bias, a question arises as to the independence or impartiality of a judge (or other judicial officer or juror), as here, the governing principle is that, subject to qualifications relating to waiver (which is not presently relevant) or necessity … 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. That principle gives effect to the requirement that justice should both be done and be seen to be done, a requirement which reflects the fundamental importance of the principle that the tribunal be independent and impartial.

3    As their Honours went on to explain in that case at 345, [8]:

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 … 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 the merits.

4    The law is also clear that an objection to a particular judge sitting should not prevail unless it is based on a substantial ground. As the plurality said in Ebner v Official Trustee in Bankruptcy (2001) 205 CLR 337 at 348, [19]:

Judges have a duty to exercise their judicial functions when their jurisdiction is regularly invoked and they are assigned to cases in accordance with the practice which prevails in the court to which they belong. They do not select the cases they will hear, and they are not at liberty to decline to hear cases without good cause. Judges do not choose their cases; and litigants do not choose their judges. If one party to a case objects to a particular judge sitting, or continuing to sit, then that objection should not prevail unless it is based upon a substantial ground for contending that the judge is disqualified from hearing and deciding the case.

5    In this case, the appellant says that I should recuse myself because when the appeal last came on for hearing before a Full Court comprised of Justices Kerr and Moshinsky, and myself, on 26 May 2017, I had an exchange with Ms Maud, counsel for the respondent, in relation to the appellant’s application for an adjournment of the appeal. I should add that the appellant did not appear at that hearing and that the adjournment was subsequently granted. The passage of transcript upon which the appellant relies appears at page 6 of the transcript of that hearing. The passage in full, which includes parts of a passage not referred to in the appellant’s submissions, is as follows:

O’CALLAGHAN J: You are in a difficult position, aren’t you, because Ms Luck is saying, “I do have this medical report, but you, the judges, can’t see it,” and, ordinarily, one might draw the inference the medical report does not justify her claims in such a circumstance, but I say you’re in an awkward position because you know what’s in it and we don’t. And you can’t even really address that question without disclosing that which she insists you not disclose.

MS MAUD: No. All I can say is that - - -

O’CALLAGHAN J: But you may say that it’s an improper thing to do and should be taken into account in deciding whether to grant an adjournment or not.

MS MAUD: Yes. And I do say that, your Honour. I also say that there is no reason why Ms Luck would not have provided the medical certificate to this court.

6    And I won’t read the rest of that part of Ms Maud’s submission. I then say:

O’CALLAGHAN J: So you say that she can’t have the benefit of the claim she makes in her affidavit without us being able to test them against the certificate that she refuses to produce.

MS MAUD: Yes.

7    As I have said, despite that exchange, and despite the fact that the appellant did not appear, and did not produce a medical certificate, the adjournment that she sought was, in fact, granted. The appellant has made written submissions in relation to the recusal question and has also made oral submissions this morning. As I understood the appellant’s oral submissions, they are entirely consistent with [4] of the appellant’s outline of submissions dated 12 August 2019. That paragraph reads as follows:

The comments made by his Honour Justice O’Callaghan, at the hearing on 25 June 2017, would seem to be made as obiter dicta, but the appellant submits that those comments disclosed his Honour’s strong view in favour of the judiciary’s assumption of jurisdiction to exercise a power of the executive, to decide whether or not the appellant was entitled to a grant of her reasonable adjustments rights under the DDA, [the Disability Discrimination Act 1992 (Cth)] an Act of Parliament that is administered by the Attorney-General of Australia, and, as such, those comments (premature conclusion in the appellant’s view) caused the appellant to reasonably apprehend and fear that a departure from impartial decision-making was inevitable, and as much of this matter turns on that Constitutional issue, as stated in the appellant’s Notice of Constitutional Matter, filed on 22 September 2016 and served on the Attorneys General on 30 September 2016, and again with an update on 11 August 2019, his Honour should recuse himself forthwith.

8    That constitutional argument is also summarised in paragraph 3(h) of the appellant’s written submissions. In my view, nothing about the exchange that occurred between me and Ms Maud at the hearing on 26 May 2017 that I have set out above would suggest to a fair-minded lay observer that I might not bring an impartial mind to the issues in this appeal. Accordingly, consistently with the well-established principles that I have referred to above, I decline to recuse myself from the hearing of this appeal, and I will make an order that paragraph 1 of the appellant’s application be dismissed.

Associate:

Dated:    21 August 2019