Federal Court of Australia

Luck v Commonwealth of Australia [2025] FCA 68

ORDERS

THE COURT ORDERS THAT:

1.    The applicant’s interlocutory application dated 28 January 2025 is dismissed.

2.    Costs of the applicant’s interlocutory application dated 28 January 2025 are reserved.

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

REASONS FOR JUDGMENT

DOWLING J

1    By her interlocutory application the applicant, Ms Luck, seeks, amongst other matters, that I disqualify myself from hearing this proceeding and that it be referred to a Full Court of this Court.

2    The proceeding seeks judicial review of the Commonwealth Attorney-General’s decision not to intervene in another proceeding brought by Ms Luck which is identified by the matter number VID411/2024. I published orders and reasons in VID411/2024 on 3 October 2024: see Luck v Secretary, Services Australia [2024] FCA 1158. By those orders and reasons I dismissed the application in that matter. I did so pursuant to ss 10(2)(b)(ii) and 16(1) of the Administrative Decisions (Judicial Review) Act 1977 (Cth) and the Court’s residual discretion to decline to grant prerogative writ relief because Ms Luck had other adequate review options available. Ms Luck has lodged an appeal against that decision, that appeal has matter number VID1050/2024.

3    Ms Luck’s application for my disqualification is said to arise as the result of the apprehension of bias caused by: (a) my orders, reasons and conduct in VID411/2024; (b) alleged issues with my appointment; and (c) what was described as “systemic issues of discrimination”.

4    Ms Luck’s application for referral to a Full Court is said to be based upon: (a) the matter being “of significant public importance” involving “systemic failures in the judicial handling of disability-related cases” and a “substantial constitutional question requiring referral to the Full Court”; and (b) “serious concerns” about my impartiality. Ms Luck not only seeks that the proceeding be referred to a Full Court but also that the Full Court be made up of judges who are not on what she describes as “my exclusion list of the Federal Court judges” and who “have no prior involvement in [Ms Luck’s] related cases”.

5    The respondents neither consent to nor oppose the application for disqualification. They make submissions only on the applicable principles. The respondents submit that it is not appropriate to refer this matter to a Full Court.

6    For the reasons that follow I refuse the application for disqualification and refuse to refer the matter to a Full Court. I will list the matter for further case management to determine the next steps to be taken in respect of Ms Luck’s originating application.

BIAS and litigant in person principles

Bias

7    In Ebner v Official Trustee in Bankruptcy [2000] HCA 63; 205 CLR 337, Gleeson CJ, McHugh, Gummow and Hayne JJ explained the fundamental principle that the common law system of adversarial trial requires the trial to be conducted by an independent and impartial tribunal. That principle will be infringed in a case of actual bias: see: Ebner at [3]-[5]. Ms Luck makes no allegation of actual bias.

8    A judge may also be disqualified from hearing or determining a case where a reasonable apprehension of bias exists. 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 that the judge is required to decide: Ebner at [6]. It should be noted that the observer is taken to be reasonable and that the person observed is “a professional judge whose training, tradition and oath or affirmation require [the judge] to discard the irrelevant, the immaterial and the prejudicial”: see Johnson v Johnson [2000] HCA 48; 201 CLR 488 at [12] per Gleeson CJ, Gaudron, McHugh, Gummow and Hayne JJ citing McHugh JA in Vakauta v Kelly (1988) 13 NSWLR 502 at 527 as adopted in Vakauta v Kelly [1989] HCA 44; 167 CLR 568 at 584 – 585 per Toohey J.

9    The apprehension of bias principle is justified by the fundamental principle that a trial is to be conducted by an independent and impartial tribunal. That principle is so important that even the appearance of departure from it is prohibited in order to prevent the undermining of the integrity of the judicial system: see Ebner at [7].

10    The application of the apprehension of bias test requires two steps:

(1)    first, there must be identification of the matters that raise the relevant apprehension that a decision-maker might decide a case other than on its legal and factual merits; and

(2)    second, there must be an articulation of the logical connection between, on one hand, those matters and, on the other hand, the feared deviation from the course of deciding the case on its merits.

See Ebner at [8]; British American Tobacco Australia Services Ltd v Laurie [2011] HCA 2; 242 CLR 283 at [32]-[48] per French CJ; Isbester v Knox City Council [2015] HCA 20; 255 CLR 135 at [21] per Kiefel, Bell, Keane and Nettle JJ and MZAOL v Minister for Immigration and Border Protection [2019] FCAFC 68 at [82]-[83] per Bromberg, Farrell and Davies JJ.

11    A conclusion of apprehended bias is not to be reached lightly: Ebner at [19]-[20].

12    The mere fact that a judge has made findings of fact or law adverse to a party in a previous decision does not give rise to a reasonable apprehension of bias: Ogbonna v CTI Logistics Ltd [2022] FCA 227 at [23] per Jackson J; Quach v Marks (No 2) [2021] FCA 922 at [15] per Abraham J.

Litigants in person

13    I am cognisant of the fact that Ms Luck is a litigant in person. I have endeavoured to allow for any difficulties that circumstance places upon Ms Luck. The role of the court in those circumstances has been variously considered. In Minogue v Human Rights and Equal Opportunity Commission [1999] FCA 85; 84 FCR 438 at 445-446 Sackville, North and Kenny JJ cited with approval Rajski v Scitec Corporation Pty Ltd (Unreported, Court of Appeal, NSW, Full Court, No CA 146 of 1986, 16 June 1986) where Samuels JA said at 14:

In my view, the advice and assistance which a litigant in person ought to receive from the court should be limited to that which is necessary to diminish, so far as this is possible, the disadvantage which he or she will ordinarily suffer when faced by a lawyer, and to prevent destruction from the traps which our adversary procedure offers to the unwary and untutored. But the court should be astute to see that it does not extend its auxiliary role so as to confer upon a litigant in person a positive advantage over the represented opponent ... At all events, the absence of legal representation on one side ought not to induce a court to deprive the other side of one jot of its lawful entitlement ... An unrepresented party is as much subject to the rules as any other litigant. The court must be patient in explaining them and may be lenient in the standard of compliance which it exacts. But it must see that the rules are obeyed, subject to any proper exceptions. To do otherwise, or to regard a litigant in person as enjoying a privileged status, would be quite unfair to the represented opponent.

Part of the same passage was cited with approval by the High Court in Nobarani v Mariconte [2018] HCA 36; 265 CLR 236 at [47] per Kiefel CJ, Gageler, Nettle, Gordon and Edelman JJ.

BIAS CONSIDERATION

Alleged apprehended bias from orders and reasons in VID411/2024

14    Ms Luck submits that my orders and reasons in VID411/2024 (Luck v Secretary, Services Australia [2024] FCA 1158), which resulted in that matter being dismissed, creates a reasonable apprehension of bias.

15    VID411/2024 was determined largely on the submissions of the parties and I was not called upon to make an assessment of Ms Luck’s credibility or demeanour in the witness box. The determinative issue in VID411/2024, namely whether Ms Luck had other adequate review options available, is not an issue in this proceeding. As I say above, VID411/2024 is now the subject of an appeal by Ms Luck. That appeal is to be heard in March 2025.

16    Ms Luck alleges my orders and reasons in VID411/2024 give rise to an apprehension of bias because they:

(1)    “failed to engage” or address particular issues;

(2)    demonstrate “prejudgment” in relation to issues of systemic discrimination and procedural unfairness; and

(3)    reflect “judicial overreach” into executive function breaching the Constitution.

17    In the context of the first step in the test for apprehended bias, I understand those matters to be an articulation of the matters that are said to raise an apprehension that I might decide the case other than on its legal and factual merits. There was very little articulation of those alleged failures. On the material and submissions before me I do not accept there were such failures. In any event, and assuming some failure, Ms Luck did not explain the second step in the test for apprehended bias, namely the logical connection between those matters above and the feared deviation from the course of deciding this case on its merits.

18    The existence of an error in VID411/2024, if there was one, does not establish a logical connection to a feared deviation from the course of deciding this proceeding on its merits. That is especially so where the issues in VID411/2024 are not the issues in this proceeding. My orders and reasons in VID411/2024 do not of themselves give rise to a reasonable apprehension of bias. In Re JRL: Ex Parte CJL [1986] HCA 39; 161 CLR 342 Mason J said at 352:

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”…

19    There is nothing in the material or submissions before me that establishes any prejudgment let alone firmly establishes it. There is nothing to establish the proposition that a fair-minded lay observer might reasonably apprehend that I might not bring an impartial mind to the resolution of this proceeding because, by my orders and reasons in VID411/2024, I determined a different proceeding, on a different issue, against Ms Luck.

Alleged apprehended bias by conduct in VID411/2024

20    Ms Luck alleges that my conduct in the carriage and determination of VID411/2024 creates a reasonable apprehension of bias in this proceeding because:

(1)    I failed to consider Ms Luck’s stay application in VID411/2024 before dismissing that proceeding;

(2)    I was unfair in my handling of unspecified procedural matters in VID411/2024;

(3)    I was unfair in relation to Ms Luck’s reliance on incorrect authorities in VID411/2024; and

(4)    I did not provide unspecified disability accommodations in VID411/2024.

I address each of these matters below.

Consideration of Ms Luck’s stay application

21    Ms Luck commenced proceeding VID411/2024 on 10 May 2024. No application was made to stay the decision the subject of that application at that time. Ms Luck later made application for a stay on 25 July 2024. Before that time, the respondents had foreshadowed an application to dismiss the proceedings. Again, before the stay application was filed, and on 18 July 2024, I made orders for the filing and timetabling of the respondents’ dismissal application. That dismissal application was heard on 23 September 2024. The stay application was listed to be heard after the dismissal application and on 4 October 2024. I made orders and published reasons dismissing the proceeding on 3 October 2024. There was then no need to determine the stay application.

22    That course was consistent with the Court’s overarching purpose to facilitate the just resolution of disputes as quickly, inexpensively and efficiently as possible. I reject the submission that the failure to deal with the stay application in VID411/2024 in those circumstances gives rise to any apprehension of bias in this proceeding.

Handling of procedural matters

23    Ms Luck submits that my procedural decisions in VID411/2024 reflected a pattern of judicial disregard for disability rights that would give rise to an apprehension of bias in this proceeding. The only example of such a procedural decision given by Ms Luck was the failure to consider the stay application. It was not explained how that decision demonstrated a disregard for disability rights. In any event, for the reasons explained above, I reject the submission that the failure to deal with the stay application in VID411/2024 gives rise to any apprehension of bias in this proceeding.

Incorrect authorities

24    Ms Luck alleges that I was unfair in relation to her reliance on incorrect authorities in VID411/2024, and that that unfairness gives rise to an apprehension of bias in this proceeding.

25    In reviewing Ms Luck’s written submissions in VID411/2024, there were two authorities that my chambers could not locate. My associate wrote to Ms Luck (copying in the solicitors for the respondents) in the following terms:

Dear Ms Luck,

I refer to the above matter and your written submissions dated 12 August 2024 and 23 September 2024. The Court has been unable to locate two authorities that you rely on in your submissions:

1.    Nicholson v Heaven [2000] FCA 191

Referred to in 12 August 2024 submissions at page 5.

Referred to in 23 September 2024 submissions at pages 6, 11, 12 and 26.

I note you attribute the decision to French J at pages 6 and 12 but then to Finkelstein J at page 26.

2.    Victoria v Humphries (2013) 228 FCR 145

Referred to in 23 September 2024 submissions at pages 9 and 26.

These references appear to be incorrect. Please provide a copy of the correct authority including paragraph references by 4pm tomorrow, 1 October 2024.

26    Ms Luck responded on 1 October 2024 and relevantly said:

…I write to acknowledge and apologize for the incorrect citation in the applicant's submissions, as flagged in your email below. Upon review, it has come to my attention that the case Nicholson v Heaven [2000] FCA 191 was cited erroneously. The confusion arose during the applicant’s research, as Nicholson v Heaven and Earth Gallery Pty Limited (1994) 57 IR 50 was mistakenly referenced as being relevant to the procedural fairness issues in this case.

Nicholson v Heaven and Earth Gallery Pty Limited does have some relevance in respect of the principles of procedural fairness, particularly in employment contexts where issues of inadequate notice and opportunity to respond are central. However, the case does not specifically address the administrative law and jurisdictional error issues required in the present matter, and thus the incorrect citation of Nicholson v Heaven was inappropriate. I apologize for this oversight.

To correct this, the applicant now relies on Craig v South Australia (1995) 184 CLR 163, a High Court authority that clarifies the principles of jurisdictional error applicable to both inferior courts and administrative decision-makers, including statutory authorities.

…

In addition, the applicant asserts that the respondents’ failure to properly investigate the facts and their reliance on unverified assumptions demonstrate reckless disregard for the applicant's legal rights. Such conduct could be viewed as indicative of bad faith, particularly in light of the importance of procedural fairness in administrative decision-making, as emphasized in Minister for Immigration and Ethnic Affairs v Teoh (1995) 183 CLR 273…

27    The email attached an unreported copy of Craig v South Australia (1995) 184 CLR 163 and Minister for Immigration and Ethnic Affairs v Teoh (1995) 183 CLR 273. Ms Luck’s email did not address her reference to “Victoria v Humphries (2013) 228 FCR 145”.

28    In my reasons in VID411/2024 (Luck v Secretary, Services Australia [2024] FCA 1158) I addressed “Nicholson v Heaven” at [42] and relevantly said:

… An authority by that name with that citation does not appear to exist. The authority with that citation (Western Australia v Ward) does not stand for the proposition contended for by Ms Luck. My chambers forwarded correspondence to Ms Luck seeking a copy of the authority cited by her. Ms Luck did not provide the authority but rather said that the authority was a mistaken reference to “Nicholson v Heaven and Earth Gallery Pty Limited (1994) 57 IR 50” which she explained “does not specifically address the administrative law and jurisdictional error issues required in the present matter”.

29    Then at [48] I addressed “Victoria v Humphries” and said:

Ms Luck cited “Victoria v Humphries (2013) 228 FCR 145” in support of her claim that the Secretary’s conduct was discriminatory, disproportionate and unjust. That authority was described in her list of authorities as “per Kenny and Besanko JJ at [45]-[55].” An authority by that name or with that citation does not appear to exist. The authority at that page of that volume of the Federal Court Reports (Kerrison v Melbourne City Council) does not stand for the proposition contended for by Ms Luck. My chambers forwarded correspondence to Ms Luck seeking a copy of the authority cited by her. Ms Luck did not provide the authority.

30    Ms Luck complained in this application that she had responded to my chambers in respect of both cases, and given my judgment did not reflect that, that gave rise to an apprehension of bias in this proceeding. I reject that complaint. My judgment accurately recorded that Ms Luck did not respond in respect of the so called “Victoria v Humphries” decision.

31    There was also a submission by Ms Luck that I had denigrated her use of Artificial Intelligence. My chambers sought to obtain the veracity of the authorities relied upon. My reasons reflected that query and the response. I reject the submission that the concerns raised about the authorities in VID411/2024 give rise to an apprehension of bias in this proceeding.

Disability accommodation

32    Ms Luck submits that my treatment of disability accommodations creates an apprehension of bias. I understood Ms Luck to be complaining that my treatment of disability accommodations in VID411/2024 gives rise to an apprehension of bias in this proceeding. Ms Luck did not identify any accommodations that I refused. I am not aware of any. I reject the submission that this matter provides any basis giving rise to an apprehension of bias.

Conclusions on conduct in VID411/2024

33    In those circumstances I am not satisfied that any of the matters raised about my conduct in VID411/2024, either individually or cumulatively, give rise to an apprehension of bias in this proceeding. I note that in exchanges during the hearing Ms Luck conceded that she had “no problem with [my] conduct [during VID411/2024] except for [my judgment].” I repeat that my judgment in VID411/2024 does not of itself give rise to a reasonable apprehension of bias in this proceeding.

My appointment

34    Ms Luck submits that the transparency of my appointment to the Court is itself a sufficient basis giving rise to an apprehension of bias and requires my disqualification. Ms Luck submitted that I was “appointed at the same time as another judge by the Attorney-General prior to the – prior to the transparent processes they’re apparently going through. I don’t know whether they have”. Ms Luck did not otherwise explain the transparent processes. Ms Luck did not explain the connection between that process and the feared deviation from the course of deciding this proceeding on its merits. I am not satisfied that this matter gives rise to an apprehension of bias.

Systemic issues of discrimination

35    Ms Luck alleges that there are “systemic breaches of procedural fairness and disability discrimination within the Federal Court”. Ms Luck submits the Court’s “procedural barriers, lack of reasonable adjustments and failure to provide accessibility measures constitute systemic indirect discrimination”. Ms Luck says these matters give rise to an apprehension of bias by me in this proceeding.

36    Again, Ms Luck did not identify in any detail the alleged breaches of procedural fairness and disability discrimination. Ms Luck has not explained the logical connection between those alleged “systemic issues of discrimination” and the fear of a deviation from the course of deciding this proceeding on its merits. I reject the submission that such “systemic issues” exist, or that they give rise to an apprehension of bias in this proceeding such that I should be disqualified.

Conclusions on apprehended bias

37    In all of those circumstances, none of the submissions above, individually or cumulatively, provide a proper basis for a conclusion that a fair-minded lay observer might reasonably apprehend that I might not bring an impartial mind to the resolution of the questions that I am required to decide in this proceeding.

Referral to a Full Court

38    Ms Luck seeks that this proceeding be referred to a Full Court. Ms Luck does not identify the mechanism for that referral. As I say above, Ms Luck also seeks that that Full Court should be comprised of judges that are not on her “exclusion list” and who have no prior involvement in her related cases.

39    Section 20(1) of the Federal Court of Australia Act 1976 (Cth) provides that, except as otherwise provided by the Act or any other Act, the original jurisdiction of the Court shall be exercised by a single judge.

40    Section 20(3) of the Act provides that certain applications within a proceeding (such as applications to extend time, amend or stay) are to be heard by a single judge unless the Judge directs that such applications be heard and determined by a Full Court. That section has no application here because Ms Luck seeks to have the entire proceeding referred to a Full Court (not an application within it).

41    Section 25(6) of the Act provides that a single judge may state any case or reserve any question concerning a matter for the consideration of a Full Court. Ms Luck does not propose a case stated or particular question for referral. In those circumstances that section has no application.

42    Section 20(1A) of the Act provides that, if the Chief Justice of the Federal Court considers that a matter in the original jurisdiction of the Court is of sufficient importance, she may direct that the jurisdiction of the Court in that matter, or part of that matter, be exercised by a Full Court. That is a power to be exercised by the Chief Justice and not otherwise by a single judge.

43    In circumstances where none of those provisions empower me to refer a matter to a Full Court it might properly be said that the application made to me is incompetent. However, construing Ms Luck’s submissions in the most generous way, I will treat her application for referral to a Full Court as an application to me to refer the matter to the Chief Justice and seek that the Chief Justice exercise her power under s 20(1A): see for example Binetter v Deputy Commissioner of Taxation [2012] FCA 377; 128 ALD 10 at [17] per Rares J.

44    I do not consider that it is appropriate to refer the matter to the Chief Justice or to seek that the Chief Justice exercise her power under s 20(1A) of the Act. First, having considered all of the matters raised by Ms Luck’s originating application, I do not consider that the matter is of sufficient importance or significance to justify such a referral. Second, I do not consider that such a referral would be an efficient use of the judicial and administrative resources of the Court: see s 37M of the Act. Third, as to Ms Luck’s “serious concerns” about my impartiality as a reason for referring the matter to a Full Court, for the reasons set out above I do not accept the basis for those concerns. Fourth, insofar as Ms Luck alleges that there are “systemic breaches of procedural fairness and disability discrimination within the Federal Court” justifying such a referral, I do not find that there is a proper basis for that allegation. Fifth, in otherwise considering all of the circumstances of the proceeding there is nothing to justify such a referral.

Further submissions of ms luck

45    After the hearing, and without leave of the Court, Ms Luck filed two further sets of written submissions on 7 and 10 February 2025. The document filed on 7 February 2025 was described by Ms Luck as “a copy of my oral submissions document from which I worked and made my submissions at the hearing”. The document filed on 10 February 2025 was described by Ms Luck as the “Applicant’s Written Submissions” and explained as the “submissions provide a structured and fully expanded account of the grounds for recusal, addressing the substantive issues that were raised during the hearing”. Insofar as those documents reflect the submissions made at the hearing the arguments are addressed above. Where they intend to raise new or “expanded” grounds I have not had regard to those submissions. The High Court has stated that the time and place to present argument is at the hearing, and that communications to the court after the hearing without leave should not be made. Those principles have been applied by the Full Court of this Court, and by other intermediate courts of appeal: see Frugtniet v Secretary, Department of Social Services [2021] FCAFC 127; 285 FCR 159 at [85] and the cases there cited.

DISPOSITION

46    In all of those circumstances I do not consider that there is a proper basis for me to disqualify myself from hearing this matter. I do not consider it appropriate to refer the matter to the Chief Justice to seek that she exercise her power to refer the matter to a Full Court. Ms Luck’s interlocutory application is dismissed. Ms Luck sought to have the costs of her interlocutory application reserved. The respondents consent to that course. I will reserve costs. I will list the matter for a case management hearing, at a time suitable to the parties and the Court, to timetable further steps in the proceeding.

Associate:

Dated:    11 February 2025