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High Court of Australia Transcripts |
Last Updated: 20 October 2011
IN THE HIGH COURT OF AUSTRALIA
Office of the Registry
Melbourne No M85 of 2009
B e t w e e n -
GAYE LUCK
Plaintiff
and
FEDERAL COURT OF AUSTRALIA
First Defendant
CHIEF JUSTICE OF THE FEDERAL COURT OF AUSTRALIA
Second Defendant
PRINCIPAL REGISTRAR OF THE FEDERAL COURT OF AUSTRALIA
Third Defendant
THIRD DOCKET JUSTICE IN FEDERAL COURT OF AUSTRALIA MATTER VID444/2008
Fourth Defendant
DEAKIN UNIVERSITY ABN 56 721 584 203
Fifth Defendant
CHIEF EXECUTIVE OFFICER OF CENTRELINK
Sixth Defendant
SECRETARY OF THE DEPARTMENT OF HUMAN SERVICES (COMMONWEALTH)
Seventh Defendant
UNIVERSITY OF SOUTHERN QUEENSLAND
Eighth Defendant
COMMONWEALTH OF AUSTRALIA
Ninth Defendant
FOURTH DOCKET JUSTICE IN FEDERAL COURT OF AUSTRALIA MATTER VID444/2008 & DOCKET JUSTICE IN FCA MATTERS VID464/2008, VID476/2008, VID488/2008 VID357/2009 AND VID65/2010
Tenth Defendant
JUSTICE IN PLAINTIFF’S REFUSED FEDERAL COURT OF AUSTRALIA APPLICATION OF 28/09/09 FOR AN ORDER OF REVIEW OF DECISIONS OF AAT, AAT DEPUTY PRESIDENT & THE SEVENTH DEFENDANT ABOVE, & SENIOR PRESIDING JUSTICE IN THE PLAINTIFF’S FCA APPEAL MATTER VID899/2008 IN RESPECT OF THE EIGHTH DEFENDANT ABOVE
Eleventh Defendant
ADMINISTRATIVE APPEALS TRIBUNAL
Twelfth Defendant
PRESIDENT OF THE ADMINISTRATIVE APPEALS TRIBUNAL
Thirteenth Defendant
PRINCIPAL REGISTRAR OF THE ADMINISTRATIVE APPEALS TRIBUNAL
Fourteenth Defendant
PRESIDING MEMBER IN ADMINISTRATIVE APPEALS TRIBUNAL MATTER V2009/3331
Fifteenth Defendant
VICTORIAN DISTRICT REGISTRAR OF THE FEDERAL COURT OF AUSTRALIA
Sixteenth Defendant
DISTRICT REGISTRAR (MELBOURNE) OF ADMINISTRATIVE APPEALS TRIBUNAL
Seventeenth Defendant
CHIEF EXECUTIVE OFFICER OF DEAKIN UNIVERSITY ABN 56 721 584 203
Eighteenth Defendant
AUSCRIPT AUSTRALASIA PTY LTD ACN 110 028 825
Nineteenth Defendant
Office of the Registry
Melbourne No M10 of 2010
B e t w e e n -
GAYE LUCK
Applicant
and
SECRETARY OF THE DEPARTMENT OF HUMAN SERVICES
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
ADMINISTRATIVE APPEALS TRIBUNAL DEPUTY PRESIDENT
Third Respondent
Office of the Registry
Melbourne No M52 of 2009
B e t w e e n -
GAYE LUCK
Applicant
and
CHIEF EXECUTIVE OFFICER OF CENTRELINK (FREEDOM OF INFORMATION PRINCIPAL OFFICER)
Respondent
Office of the Registry
Melbourne No M110 of 2009
B e t w e e n -
GAYE LUCK
Plaintiff
and
AUSTRALIAN HUMAN RIGHTS COMMISSION
First Defendant
PRESIDENT OF AUSTRALIAN HUMAN RIGHTS COMMISSION
Second Defendant
COMMONWEALTH OF AUSTRALIA
Third Defendant
Directions hearings
CRENNAN J
TRANSCRIPT OF PROCEEDINGS
AT MELBOURNE ON THURSDAY, 13 OCTOBER 2011, AT 2.17 PM
Copyright in the High Court of Australia
__________________
HER HONOUR: In each of these four proceedings, a summons has been filed seeking orders pursuant to r 27.09.4 of the High Court Rules 2004 (Cth). In each matter, the plaintiff or applicant, as the case may be, is Ms Luck.
Rule 27.09.4 of the High Court Rules provides:
Where a proceeding generally, or any claim in a proceeding:
(a) does not disclose a cause of action;
(b) is scandalous, frivolous or vexatious; or
(c) is an abuse of the process of the Court
the Court or a Justice may stay the proceeding or a claim made in the proceeding or may give judgment in the proceeding or in relation to a claim made in the proceeding.
On 7 October 2011, Ms Luck wrote to the Court and sought that I recuse myself from hearing each of these matters “on the ground of actual issue bias”. No particulars in support of this application were provided. Nor has there been any written or oral submission made in support of the application. That application in respect of each matter is refused.
In that correspondence Ms Luck also informed the Court that she would not be appearing on the hearing of any summonses in the following terms:
“I remain unable to interact with the Court or the Parties in respect of these matters, following filing and serving of this letter and application and provision of medical certificates by facsimile and request that any correspondence that flows from this is kept to a bare minimum and I will appropriately respond following a period in which I will have had the opportunity to process and grieve my late mother’s death and recover and recuperate from recent and current traumatic personal events.”
In a further letter also dated 7 October 2011, Ms Luck stated that she would not be appearing because of her disabilities but retained the right to appear at a later date when certified by health practitioners as fit to so do. Invoking the Disability Discrimination Act 1992 (Cth) and the United Nations Convention on the Rights of Persons with Disabilities, Ms Luck requested that each of the four matters under consideration (and a number of other matters) be adjourned or stayed.
Reliance was placed on a medical certificate of Dr Leow dated 23 August 2011 which referred to Ms Luck's “disability anxiety and depression” and recommended that Ms Luck have a further period of adjustment and recovery before being able to undertake the stress involved in legal matters. That reference to a further period is best understood in the context of all the medical certificates which have been provided, the history of which I will go to in due course.
Reliance was also placed on a medical certificate provided on 1 April 2011 filed in Court on 24 August 2011.
What follows is an outline of the factual and procedural background of each matter following the order in which Ms Luck instituted the various proceedings.
I now turn to M52 of 2009. This proceeding was commenced by Ms Luck on 4 June 2009. It is an application for removal seeking an order, pursuant to s 40 of the Judiciary Act 1903 (Cth), removing part of the cause pending in the Federal Court of Australia between Ms Luck and the respondent in proceeding number VID898 of 2008.
That proceeding in the Full Court of the Federal Court is an appeal against the decision of the primary judge (Tracey J) refusing an application for an extension of time within which to commence a proceeding. The hearing has been adjourned to a date to be fixed following the determination of this application in this Court. In this Court Ms Luck ultimately seeks to challenge certain decisions and determinations made by the Administrative Appeals Tribunal reviewing decisions of Centrelink in relation to applications made by Ms Luck under the Freedom of Information Act 1982 (Cth) in 2005. Importantly, Ms Luck’s substantive application before Centrelink concerning her eligibility for certain pensions or allowances remains on foot.
In her application to this Court, Ms Luck seeks a number of declarations and an order that proceeding VID898 of 2008 be consolidated with various other proceedings in the Federal Court.
The declarations seek relief based on grounds alleging apprehension that the primary judge might not be impartial or unprejudiced in deciding the matter, that the primary judge ought to have disqualified himself from the hearing of the primary proceeding (VID464 of 2008), that his Honour’s failure to do so was not a proper exercise of judicial power under Ch III of the Constitution and that his Honour should not hear any further matters involving Ms Luck.
Ms Luck asserts that the grounds for the apprehension of partiality and prejudice are based on the fact that the primary judge had considerable involvement with and was employed as a legal advisor to the Commonwealth Government prior to his appointment to the Federal Court. She further alleges that there are grounds for her apprehension of partiality as the primary judge (in his role as a Major General of the Australian Defence Force and Judge Advocate General) and the respondent were directly responsible to the same Minister at the time of the hearing of the matter VID464 of 2008.
Ms Luck also alleges that she was denied her right to extra time for making submissions in that proceeding and that illnesses from which she suffers were exacerbated due to the adverse judgments made in her absence from the hearing, which she could not attend due to her disabilities. She also asserts that she was denied her entitlement to a fair and public hearing due to the “questionable manner” in which she was referred for pro bono assistance, the withdrawal of that assistance and the primary judge’s later denial of a referral for further pro bono assistance.
By affidavits and correspondence filed on 5 June 2009, 17 July 2009 and 29 October 2009, Ms Luck sought extensions of the time for filing and serving her summary of argument under the High Court Rules. The basis upon which she so applied was her disabilities.
On 20 May 2010, the respondent filed a summons, supported by an affidavit, seeking orders that the application for removal, filed by Ms Luck on 4 June 2009, be stayed pursuant to r 27.09.4 of the High Court Rules and that Ms Luck pay the respondent’s costs associated with the application for removal. In a summary of argument dated 20 May 2010 the respondent raised the same complaints about the initiating process which were raised in argument before me yesterday.
Ms Luck subsequently sought an adjournment of the proceeding for a period of at least two months. The basis on which Ms Luck sought an adjournment was illness. A medical certificate expressed to be for two months from Dr Priscilla Leow dated 2 June 2010 stated that Ms Luck’s medical conditions were exacerbated by stress associated with legal proceedings.
That medical certificate built upon earlier medical certificates, one from Dr Leow dated 28 October 2009 expressed to be for a period of two months by reference to a number of medical conditions. There was another from Dr William Varney dated 9 November 2009, which explained Ms Luck’s medical conditions and indicated she would need extensions of time to complete necessary tasks in relation to legal proceedings.
Following Dr Leow’s medical certificate dated 2 June 2010, Dr Leow provided a further medical certificate dated 9 July 2010 expressed to extend the earlier certificate for another month, that is until 2 September 2010. Dr Leow also stated that at the end of that period the applicant would need a further period of several weeks before attending to preparation in relation to her various legal proceedings. Copies of these medical certificates were provided to the respondent.
On 9 June 2010, the hearing of the respondent’s summons was adjourned until 8 September 2010. On that return the following orders were made:
It had been indicated by letter dated 2 September 2010 to the Court that the respondent did not oppose such orders being made.
Pursuant to those orders of 8 September 2010, by letter dated 14 July 2011, the respondent sought to have the matter listed for mention or directions to enable the respondent’s application to be listed for hearing. Directions were made on 14 September 2011, which included the adjournment of the hearing of the respondent’s summons to 12 October 2011.
I turn now to M85 of 2009. 12 October 2011 was also the date fixed for hearing of various summonses, described below, seeking orders that the proceeding be stayed or dismissed.
Submitting appearances have been filed earlier by the first to fourth, tenth, eleventh and sixteenth defendants. By letter dated 5 October 2011, the Australian Government Solicitor advised the Court that the twelfth to fifteenth and seventeenth defendants submit to any orders made by the Court. A letter dated 15 September 2011 has also been received from solicitors acting for the fifth and eighteenth defendants. Those defendants will take no further part in the proceeding and they do not seek any costs or other order against the plaintiff. Further, they will abide by any order of the Court.
This proceeding was commenced by an application for an order to show cause filed on 16 September 2009 by Ms Luck, which was subsequently amended on 21 October 2009 and 18 March 2010. The substantive relief sought is mandamus and other prerogative relief, as well as declarations and injunctions, against some nineteen defendants in relation to certain Federal Court proceedings (VID444 of 2008, VID464 of 2008, VID476 of 2008, VID488 of 2008, VID898 of 2008, (the subject of the removal proceeding, M52 of 2009 discussed earlier), VID899 of 2008, VID357 of 2009, VID54 of 2009 and VID65 of 2010).
The numerous grounds upon which relief is sought include, but are not limited to, the following: that various defendants failed to perform their duties in accordance with legislation, including the Federal Court of Australia Act 1976 (Cth) and the Administrative Appeals Tribunal Act 1975 (Cth); that they acted beyond their jurisdiction; that they failed to take relevant considerations into account; that their decisions were affected by bias and errors of law; that Ms Luck’s legitimate expectations that she would be accorded natural justice and procedural fairness and that the defendants would make their decisions in accordance with particular legislation were not met; and that the defendants failed to consider her rights and special needs and that the defendants have breached and misapplied the law.
Two further matters should be noted. First, in seeking relief, Ms Luck asserts in general terms that all defendants should be enjoined so as to restrain all of them “from engaging and proposing to engage in conduct which promotes further victimisation of [Ms Luck] by colluding to defeat [Ms Luck’s] case by unfair means.” Secondly, in ground (g) of the grounds on which the relief is claimed Ms Luck asserts that she has been prejudiced in her person and property and states that “the errors in law of the Defendants can be inferred from the facts and circumstances stated in the supporting affidavits and certifications of Identifying Exhibits filed in this proceeding and in [Ms Luck’s] associated High court of Australia proceedings M50 of 2009, M52 of 2009, M65 of 2009, M112 of 2009, M8 of 2010, M9 of 2010 and M10 of 2010.”
By affidavits filed on 21 October 2009 and 29 October 2009, Ms Luck added a number of defendants to the matter and sought an extension of time within which to file supporting affidavits. In both affidavits Ms Luck deposed that she suffered from various illnesses. Ms Luck filed a notice of a constitutional matter on 18 March 2010.
On 24 March 2010, orders were made for the further hearing, on 9 June 2010, of Ms Luck’s request for an extension of time and directions given for a timetable within which to file and serve supporting affidavits. Leave was granted to the fifth defendant, in accordance with r 3.01.2 of the High Court Rules, to amend its appearance from a submitting appearance. Orders for the filing and serving of documents in relation to a foreshadowed application under r 27.09.4 and the hearing of such an application were made. Further orders were also made for the filing of documents and hearing of an application by Ms Luck for urgent injunctive relief in relation to the fifth and the eighteenth defendants.
On 29 March 2010, Ms Luck applied for these injunctions and also made an application for me to disqualify myself on the grounds of bias. These applications were refused on 1 April 2010. Ms Luck made an application for special leave to appeal from these orders. Special leave to appeal was refused by a Full Court of this Court on 16 June 2010.
On 1 April 2010, Ms Luck’s application to be relieved from compliance with the High Court Rules in respect of the format or presentation of the affidavit and other documents filed on 29 March 2010, or any document filed in the future in respect of this matter, was also refused. However, Ms Luck was granted leave to amend documents already filed to ensure that they conformed with the High Court Rules.
On 16 April 2010, the sixth, seventh and ninth defendants filed a summons seeking orders that Ms Luck’s application for an order to show cause, as amended, be stayed pursuant to r 27.09.4 of the High Court Rules. This was supported by an affidavit sworn by Ms Peta Jane Heffernan on 16 April 2010. A summary of argument was also filed dated 16 April 2010.
On the same day, the eighth defendant also filed a summons seeking orders that Ms Luck’s application as amended, insofar as it relates to the eighth defendant or to proceedings VID476 of 2008, VID899 of 2008 and VID357 of 2009 in the Federal Court, be dismissed or permanently stayed under r 27.09.4. This was supported by an affidavit sworn by Ms Philippa Jane Mitchell on 16 April 2010. A summary of argument was also filed on that date. It can be noted that Ms Mitchell swore a second affidavit on 28 September 2011 which was filed together with a supplementary summary of argument of the same date.
On 2 June 2010 the nineteenth defendant also filed a summons seeking orders that Ms Luck’s application, as amended, and insofar as it relates to the nineteenth defendant, be dismissed or permanently stayed under r 27.09.4. That application by summons was supported by an affidavit of Mr David Guthrie sworn on the same date and a summary of argument also dated 2 June 2010.
The eighth and nineteenth defendants also sought alternative orders that they be removed as parties to Ms Luck’s amended application pursuant to r 21.05.1(a) of the High Court Rules.
By letter to the Court dated 3 June 2010, Ms Luck sought an adjournment of the hearing of the summonses for a period of at least two months on the basis of illness. The medical certificate of 2 June 2009 from Dr Leow referred to before was relied upon. The defendants indicated by letter to the Court that they did not object to further adjournment.
On 9 June 2010, the hearing of the sixth, seventh, eighth, ninth and nineteenth defendants’ respective summonses was adjourned as was Ms Luck’s application for an extension of time in which to file and serve supporting affidavits, until 11 August 2010.
On 11 August 2010, the further hearing of these summonses, and Ms Luck’s application for an extension of time, was adjourned to a date to be fixed, with liberty to restore the matter to the list on 14 days’ written notice. Costs were reserved. The application for adjournment was based on the medical certificate of Dr Leow dated 9 July 2009 to which reference has already been made. The orders were not opposed.
On 23 August 2011, by letter to the Deputy Registrar (with a copy to Ms Luck), the eighth defendant’s solicitors asked for the matter to be restored to the list for mention or directions to enable the eighth defendant’s application for summary dismissal to be listed for hearing. The sixth, seventh and ninth defendants’ solicitors made the same request, in respect of their summonses, by letter dated 24 August 2011. On numerous occasions since the filing of the sixth, seventh, eighth, ninth and nineteenth defendants’ respective summonses, Ms Luck has sent letters to this Court advising that she remains unable to progress the matter due to the state of her health. Medical certificates as described earlier were attached in the course of that correspondence.
Directions were made on 14 September 2011, which included an adjournment of the hearing of the various summonses to 12 October 2011.
I turn now to M110 of 2009. This matter comes before the Court by reason of a request for listing for directions, made by the third respondent on 14 July 2011, pursuant to orders made on 15 September 2010. The first and second defendants have filed submitting appearances.
The proceeding was commenced by the filing of an application for an order to show cause on 4 December 2009 by Ms Luck. Ms Luck’s application relates to the handling by the first defendant of complaints lodged by Ms Luck with the first defendant on or about 29 October 2008 alleging that she had been discriminated against in relation to certain Centrelink payments because of discriminatory provisions in certain enactments.
Ms Luck seeks an order that the defendants show cause why a writ of mandamus or an injunction should not be issued, directed to the first and second defendants to perform their duty in accordance with various legislation, including the Australian Human Rights Commission Act 1986 (Cth), and international instruments scheduled to that Act. Ms Luck also seeks an order that the defendants show cause why a writ of certiorari or an injunction should not be issued to be directed to the first and second defendants, removing into the High Court to be quashed the decisions made by the second defendant on 14 April 2009 and 12 July 2009. She also seeks an inquiry into her complaints alleging that acts and practices of Centrelink were contrary to human rights law and that certain provisions in various pieces of legislation are contrary to human rights law, and that any results of such an inquiry be reported to the Minister. Ms Luck also sought to have the time extended for filing and serving supporting affidavits and outlines of submission.
Ms Luck alleges that the first and second defendants, in making their decisions regarding her complaints against Centrelink, failed to perform their duties in accordance with various legislation, including the Australian Human Rights Commission Act and the Disability Discrimination Act, and international instruments, including the International Covenant on Economic and Cultural Rights and Declaration of the Rights of Disabled Persons. Ms Luck’s allegations include allegations that the first and second defendants, in making their determinations, failed to have regard to human rights, failed to follow requisite procedures, failed to take relevant considerations into account, took irrelevant considerations into account, improperly exercised discretionary power and breached rules of natural justice and procedural fairness.
On 20 May 2010, the third defendant filed a summons seeking orders that the application for an order to show cause filed on 4 December 2009 be stayed pursuant to r 27.09.4 of the High Court Rules. A summary of argument of the same date set out the complaints about the initiating process which were the subject of submissions made on 12 October 2011.
On 9 June 2010, orders were made adjourning the further hearing of the third respondent’s summons dated 20 May 2010 until 15 September 2010, and reserving costs. On 15 September 2010, orders were made that the hearing of the matter be adjourned to a date to be fixed, and that the parties have liberty to restore the matter to the list on 14 days’ written notice. Costs were reserved. The circumstances in which those orders were made are that Ms Luck based her applications for adjournments on illness, and the medical certificates already described had been supplied and circulated to the respondents. The orders were not opposed.
Pursuant to those orders of 15 September 2010, by letter dated 14 July 2011, the third respondent sought to have the matter listed for a mention or directions to enable the third respondent’s application to be listed for hearing. The matter was listed for directions on 14 September 2011, the return date for hearing being fixed for 12 October 2011.
I turn now to M10 of 2010. This matter comes before the Court as a result of a request for listing for directions, made by the first respondent on 14 July 2011, pursuant to orders made on 18 August 2010. The matter was brought before the Court for directions on 14 September 2011, and listed for hearing on 12 October 2011. By letter dated 5 October 2011, the Australian Government Solicitor has advised the Court that the second and third respondents submit to any orders made by the Court.
The proceeding was commenced by 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, filed on 15 February 2010. The Federal Court proceeding relates to a decision of an officer of the first respondent regarding a number of freedom of information requests made by Ms Luck in early 2009 and the subsequent refusal by the second respondent to review that decision on the basis that it did not have jurisdiction to do so. In addition to an order for removal Ms Luck has sought other orders, including various declarations and also orders that the second respondent and Federal Court provide relevant files to the High Court.
The grounds upon which Ms Luck relies include allegations that she was denied a reasonable opportunity to make submissions prior to hearing or to present her case, that the second respondent had jurisdiction to review Ms Luck’s application for review of the respondent’s decisions, that the second respondent’s decisions and determinations were affected by bias, that Ms Luck was denied natural justice and was subject to disability discrimination by the second and third respondent’s refusal to grant extensions of time and adjournments of hearings, and that various procedural requirements were not complied with.
Ms Luck filed a notice of a constitutional matter on 9 March 2010.
On 19 February 2010, Ms Luck filed an amended summons seeking a number of urgent orders. On 24 March 2010, orders were made that the application for interlocutory injunctions directed against the second and third respondents and contained in the amended summons dated 19 February 2010 be dismissed with costs. It was also ordered that on or before 16 April 2010, the first respondent file any application under r 27.09.4 together with supporting affidavits and a summary of argument. Further orders were made for the application for a stay to be heard, and the further hearing of the amended summons of 19 February 2010 was adjourned, until 9 June 2010.
Ms Luck applied for special leave to appeal in relation to the refusal to grant the interlocutory relief sought. Special leave to appeal was refused by a Full Court of this Court on 16 June 2010.
On 16 April 2010, the first respondent filed a summons seeking orders that the application for removal filed by Ms Luck on 15 February 2010 be stayed pursuant to r 27.09.4 of the High Court Rules.
On 9 June 2010, orders were made adjourning the hearing of the first respondent’s summons dated 16 April 2010, and the applicant’s summons dated 19 February 2010, until 18 August 2010. On 18 August 2010, orders were made that the hearing of both summonses be adjourned to a date to be fixed, and that the parties have liberty to restore the matter to the list upon 14 days’ written notice. Costs were reserved. The circumstances were the illness of Ms Luck and the provision of medical certificates already described.
Pursuant to orders of 18 August 2010, by letter dated 14 July 2011, the first respondent sought to have the matter listed for a mention or directions to enable the first respondent’s application to be listed for hearing. The matter was subsequently listed for directions on 14 September 2011, the return date for hearing being fixed for 12 October 2011.
Before turning to deal further with each matter in more detail, by reference to submissions made on 12 October 2011, it should be noted that Ms Luck has written to the Court several times since orders were first made adjourning these matters to a date to be fixed as described earlier. She has informed the Court in that correspondence that her medical condition continues to make her presence in the Court impossible. Medical certificates from Dr Leow dated 17 November 2010, 31 January 2011, 1 April 2011 and 23 August 2011 have been provided to the Court. The certificate of November recorded the fact that Ms Luck’s mother died on 20 June 2010. Both the November and January certificates referred to the need for a further two months in order for Ms Luck to be able to proceed. The April certificate referred to the need for a few months for further recovery, and the August certificate said that a further period of adjustment was required. Most recently, on 22 September 2011 and, as mentioned before, on 7 October 2011, Ms Luck wrote to the Court reiterating that she is too unwell to attend court proceedings at present, but that she intends to enliven these matters and appear in court when she is well enough. These considerations need to be balanced against the summonses seeking final determination of these matters. It must be borne in mind that a year has now passed since orders were made adjourning each matter, to a date to be fixed, based on Dr Leow’s certification that Ms Luck would need “a period of adjustment and recovery of several weeks” after 2 September 2010, before attending to tasks associated with litigation initiated by her.
From the date of the filing of the summaries of argument in support of each of the various summonses, Ms Luck has been on notice of the detail of the applications made seeking relief under r 27.09.4 in each of the proceedings under consideration.
Whilst it may involve some repetition in these reasons, it is convenient to turn now to deal separately with each proceeding.
I now return to M52 of 2009. It should be noted that the matters which have been carried forward into the Federal Court concern two directions made by the Administrative Appeals Tribunal on 9 May 2008 and 13 May 2008. Those directions were that the name of Centrelink as shown on the application to the Administrative Appeals Tribunal for review of Centrelink’s decision concerning freedom of information be corrected and that the Administrative Appeals Tribunal identify the date of a deemed refusal of Centrelink for the purposes of the Freedom of Information Act.
The respondent submits that the application for removal filed by Ms Luck is vexatious and an abuse of process. It has been argued that the application lacks merit, is an instrument of delay and is far removed from the underlying dispute. The respondent also relies on the fact that Ms Luck has brought multiple applications or proceedings in respect of the same issues and that she is unlikely to be able to satisfy any costs orders against her. The interrelationship between this and other proceedings initiated by Ms Luck is undeniable. Furthermore, the respondent submits that this is not an appropriate case for removal to this Court pursuant to s 40 of the Judiciary Act because the removal would interfere with the processes of the courts hearing the proceedings relating to Ms Luck’s freedom of information requests; deny this Court the benefit of reasons of the lower courts on the alleged constitutional issues; and allow Ms Luck to bypass the special leave and leave requirements of the Judiciary Act. Moreover, the respondent contends, the issues raised by Ms Luck in the removal application are not sufficiently important as to require this Court’s urgent decision. Finally, the respondent maintains that in the absence of an intelligible identified constitutional point, this Court’s authority Bienstein v Bienstein [2003] HCA 7; (2003) 195 ALR 225 should be followed, and the application for removal should be refused.
Orders should be made today in accordance with the respondent’s application for the following reasons. First, Ms Luck’s removal application lacks merit and has no prospects of success. It does not contain any arguable ground in support of the orders sought. As explained it concerns interlocutory orders far removed from substantive issues. Such particulars as can be gleaned from material filed by Ms Luck demonstrate no intelligible link between the matters complained about and the orders sought. There is nothing in the removal application as constituted, or in the prosecution of the proceedings by Ms Luck, which would suggest that the issues agitated are sufficiently important to require this Court’s urgent decision so as to warrant an order for removal. From at least 2 June 2010, Dr Leow has indicated that Ms Luck’s medical conditions are adversely affected by the legal proceedings which she has initiated. The latest certificate does not place the Court in any position to make any assessment of when Ms Luck will be in a position to prosecute any of the four legal proceedings under consideration.
It is axiomatic that legal proceedings must be conducted fairly and justly. That fairness and justice applies to all parties, whether or not persons are represented by others. It has long been recognised that justice delayed is justice denied. Part of the requisite fairness and justice involves the timely prosecution of proceedings, once they have been instituted. Whilst Ms Luck is representing herself and suffers certain medical conditions, those circumstances have to be considered alongside the circumstance that the respondent faces serious claims which have not been properly or intelligibly particularised or advanced. A point has been reached in this proceeding, against a background of manifold indulgences to Ms Luck, where Ms Luck cannot be allowed to continue the proceeding without occasioning injustice to the respondent. It is because that point has been reached that I decline Ms Luck’s application to adjourn or stay this proceeding. When I refer later in these reasons to incorporating, with necessary adjustments, my reasons concerning the requirements of justice and fairness, it is to this section that I refer.
Secondly, the multiplicity of proceedings filed in relation to the applicant’s freedom of information requests to Centrelink and the strong certainty that Ms Luck is unable to prosecute them in a timely and intelligible manner, and the likelihood that she will not be able to satisfy any costs orders made against her are indicators that this application is vexatious and an abuse of process.
In reaching a decision in respect of the respondent’s summons, I have taken into account all the competing considerations including the consideration that Ms Luck has stated that she could not attend the hearing on 12 October 2011, or otherwise take any steps in the proceeding, because of her disabilities.
In all of the circumstances, the proceeding is vexatious and an abuse of process and the application for removal filed by Ms Luck on 4 June 2009 should be dismissed pursuant to r 27.09.4 of the High Court Rules.
Accordingly, I make the following orders:
I now return to M85 of 2009. This proceeding not only traverses ground covered by the proceeding to which reference has just been made, it also concerns three decisions made by Centrelink as to the manner in which Ms Luck should contact Centrelink staff, all of which are now spent.
The sixth, seventh and ninth defendants submit that the amended application for an order to show cause is vexatious and an abuse of process. In particular, those defendants argue that the application lacks merit, is an instrument of delay and is far removed from the underlying dispute. They rely also on the fact that Ms Luck has brought multiple applications or proceedings in respect of the same issues and that she is unlikely to be able to satisfy any costs orders against her. They argue further that the constitutional writs sought by Ms Luck are only available in the case of jurisdictional error and that the Court would, in the ordinary exercise of its discretion, refuse to issue a constitutional writ where a plaintiff (a) has failed to engage the appellate jurisdiction provided by s 73 of the Constitution, (b) is effectively seeking to bypass the primary means envisaged by the Constitution for the correction of alleged judicial error, and (c) is effectively seeking to circumvent the legislative arrangements that have been adopted requiring that special leave first be obtained in appeals to this Court.
The eighth defendant submits that the show cause application as amended should be dismissed or permanently stayed on the basis of all three grounds set out in r 27.09.4. In particular, the eighth defendant argues that the show cause application does not identify, or sufficiently particularise, any decisions, actions or conduct on the part of the eighth defendant which could form the basis of a cause of action against it in relation to proceedings VID476 of 2008, VID899 of 2008 or VID347 of 2009. In relation to proceedings VID476 of 2008 and VID899 of 2008, the eighth defendant also alleges an abuse of process on the basis that Ms Luck has already engaged or applied to engage the appellate jurisdiction of the Court in respect of those proceedings. Furthermore, the eighth defendant argues that certain parts of Ms Luck’s amended application are directed towards the eighth defendant even though the relief sought is not sought against, or in relation to, the eighth defendant and does not relate to proceedings, decisions or actions to which the eighth defendant is a party or in which it has an interest. Finally, the eighth defendant seeks an order that Ms Luck’s application for a stay of proceedings VID476 of 2008, VID899 of 2008 and VID357 of 2009 be dismissed. The former two proceedings were dismissed by a single judge of the Federal Court on 21 April 2011, and the latter proceeding has been stayed.
The nineteenth defendant maintains that Ms Luck has not properly invoked any valid original jurisdiction of this Court. It further argues that Ms Luck’s amended application for an order to show cause fails to identify any relevant conduct by the nineteenth defendant which discloses a cause of action against it. The nineteenth defendant submits that, in any event, the claim against it is frivolous, vexatious and an abuse of process. It submits that the only role it had in relation to the matters about which Ms Luck complains was as the audio recorder and transcript provider in the Federal Court. As a copy of the relevant judgment is available on AustLII and the copyright in relation to the audio recording is not held by the nineteenth defendant, the nineteenth defendant contends that there are no grounds for any cause of action against it.
The amended application lacks merit and has no prospects of success as it does not disclose intelligible causes of action against any of the various defendants. Allegations that duties in accordance with various statutes have not been performed are made without any particulars of either jurisdictional errors or want of procedural fairness. It is impossible to discern from the amended application any facts, matters or circumstances which would give rise to the relief sought.
Insofar as Ms Luck refers to material she has filed in this proceeding and cross-refers to material she has filed in seven other proceedings as allowing inferences to be drawn as to the facts and circumstances which demonstrate errors of law of the defendants that technique is wholly inappropriate for the just and fair conduct of litigation. In any event, it is not possible to glean from materials Ms Luck has placed before the Court in this and other proceedings any proper and adequate particulars of the case which each of the 19 defendants has to meet. I incorporate, with necessary changes, all that was said before in matter No 52 of 2009 in relation to the need for fairness and justice in the conduct of legal proceedings.
Furthermore, the fact that Ms Luck has filed applications for removal, sought leave to appeal in this Court and appealed to the Federal Court in relation to various Federal Court proceedings to which this application to show cause is directed, which has the effect of delaying proceedings, is an indication that the application is vexatious and is an abuse of process.
In reaching a decision in respect of the various summonses and in respect of allegations made against defendants who have filed submitting appearances, I have taken into account all the competing considerations including the consideration that Ms Luck has stated that she could not attend the hearing on 12 October 2011 or otherwise take steps in the proceeding because of her disabilities.
In all of the circumstances, the proceeding is vexatious and an abuse of process. Pursuant to r 27.09.4, Ms Luck’s show cause application must be dismissed.
The orders I make are:
I return now to M110 of 2009. It should be noted that Ms Luck failed to exercise her rights of appeal to the Federal Magistrates Court or the Federal Court of Australia in respect of the decision of the Human Rights Commission which forms the basis of this proceeding.
The third defendant submits that the application to show cause is vexatious and an abuse of process. In particular, the third defendant maintains that the application borders on the unintelligible; the application lacks merit in that it is clear that the alleged discrimination was not unlawful discrimination; Ms Luck has failed to identify any defect or error in the first defendant’s decision to terminate her complaints or to identify any way in which the first defendant denied her natural justice or procedural fairness; and Ms Luck is unlikely to be able to satisfy any costs orders against her.
The third defendant submits that the High Court would, in the ordinary exercise of its discretion, refuse to issue the writs sought in the application to show cause on the basis that Ms Luck has failed to identify any jurisdictional error, which would include any want of procedural fairness and has failed to exercise alternative rights of review or appeal open to her.
Ms Luck has not provided any particulars of how the various decisions made by the first and second defendants infringe the legislation and international instruments she sets out and pursuant to which she makes claims against the defendants. Her assertions do not disclose any error on the part of the first and second defendants which would warrant ordering the relief sought by her. Ms Luck’s application fails to disclose an intelligible cause of action against any of the defendants. 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 coming to a decision in respect of the third defendant’s application by summons and in respect of other defendants who have filed submitting appearances, I have taken into account all competing considerations including the consideration that Ms Luck has stated that she could not attend the hearing on 12 October 2011 or otherwise take any steps in the proceeding because of her disabilities.
In all of the circumstances the proceeding is vexatious and an abuse of process. Ms Luck’s application for an order to show cause must be dismissed, pursuant to r 27.09.4 of the High Court Rules.
Accordingly, I make the following orders:
I return now to M10 of 2010. It should be noted that the matter carried forward into the Federal Court was a decision of the Administrative Appeals Tribunal refusing review of a decision by the Department of Human Services. The decision made by the Department of Human Services was to grant Ms Luck access to documents as requested by her under the Freedom of Information Act. In other words, the decision was in Ms Luck’s favour.
The first respondent submits that the application for removal is vexatious and an abuse of process. It is argued that the application lacks merit, is an instrument of delay and is far removed from the underlying dispute. The first respondent further notes that Ms Luck has brought multiple applications or proceedings in respect of the same issues and that she is unlikely to be able to satisfy any costs orders against her. Further it is submitted that, with reference to the decision of this Court in Bienstein v Bienstein, this proceeding is not an appropriate case for removal to the High Court as the removal would interfere with the process of the courts hearing these proceedings; removal would deny this Court the benefit of the reasons of the lower courts on any alleged constitutional issues; removal would allow the applicant to bypass the special leave and leave requirements of the Judiciary Act; and the issues raised by Ms Luck in the removal application are not sufficiently important as to require this Court’s urgent attention.
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.
Ms Luck has also filed an order to show cause on 16 September 2009, amended on 21 October 2009 and 18 March 2010 (M85 of 2009), which seeks writs of mandamus or an injunction in relation to the Federal Court proceeding. The filing of multiple applications regarding essentially the same matter also show that this application is vexatious and an abuse of process. In forming a conclusion in respect of the first respondent’s application I have taken into account all the competing considerations including Ms Luck’s statement that she could not attend the hearing on 12 October 2011 or take any steps in the proceedings because of her disabilities.
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.
The orders I make are:
Adjourn the Court.
AT 3.17 PM THE MATTERS WERE CONCLUDED
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