Gaye Luck v Principal Officer of Peninsula Health & Anor Gaye Luck v Principal Officer of Peninsula Health

[2015] HCASL 207

GAYE LUCK

v

PRINCIPAL OFFICER OF PENINSULA HEALTH & ANOR

GAYE LUCK

v

PRINCIPAL OFFICER OF PENINSULA HEALTH & ANOR

[2015] HCASL 207
M55/2012
M56/2012

1. The applicant has filed applications seeking removal to this Court pursuant to s 40 of the Judiciary Act 1903 (Cth) of two proceedings pending in the Supreme Court of Victoria, SCi 2753/2012 and SCi 2756/2012, which are applications for leave to appeal from decisions of the Victorian Civil and Administrative Tribunal ("VCAT") made on 30 March 2012 (reasons given on 17 April 2012) in relation to the applicant's freedom of information requests.

2. In each proceeding, the applicant alleges that VCAT erred, inter alia, in refusing to adjourn the hearing of the proceedings, and in continuing with the hearing of the proceedings in her absence, in breach of her rights as a person with a disability to be accorded reasonable adjustments under the Disability Discrimination Act 1992 (Cth) and the Convention on the Rights of Persons with Disabilities (2007).

3. The basis of the applications for removal of the proceedings to this Court is that the Supreme Court of Victoria is said to have acted towards the applicant so as to signify that there was an apprehension it would not act impartially towards her in the above matters, and, therefore, would infringe the requirements of Ch III of the Constitution.

4. As well as an order to remove the proceedings to this Court, the applicant also seeks, inter alia, a stay of the Supreme Court proceedings pending the hearing and determination of these matters and of other matters which are said to involve related questions of constitutional law arising under Ch III of the Constitution "and section 75 in relation to the laws in force because of Chapter 1, sections 51 and 52 of the Constitution"; orders joining the following additional respondents to these removal applications: the Supreme Court of Victoria, the Chief Justice of the Supreme Court of Victoria, VCAT, Senior Member R Davis of VCAT, the President of VCAT, the Chief Executive Officer of VCAT, the Principal Registrar of VCAT, the "Victorian Attorney General"; the State of Victoria, the "Victorian Minister for Human Services", the "Victorian Minister for Health & Ageing", the "Victorian Minister for Mental Health", the "Director of Office of Fair Trading Business Affairs, Victorian Department of Justice"; and orders that the respondents and prospective respondents show cause "why a writ of mandamus or an injunction should not be issued out of this Court ... to perform their duties in accordance with domestic and international law".

5. The applicant has written to the Registry requesting that Nettle J not be involved in the determination of these applications.  As has been explained in relation to the applicant's other applications for removal (Matter Nos M30/2012, M32/2012 and M58/2012), it is neither necessary nor appropriate to accede to that request.

6. These applications were filed in 2012 and since then the applicant has requested and received extensions of time based on her claims of ill health and because there were other matters pending before the Court which the applicant insisted should be determined first:  Luck v The Deputy Registrar (RM) of the High Court of Australia - Melbourne Office of the Registry & Ors[1], Luck v University of Southern Queensland & Anor[2], Luck v Principal Officer of Victoria Police & Anor[3] and Luck v Principal Officer of Department of Justice & Anor[4].  Those matters were, however, determined by the Full Court on 6 March 2014 and so it is now appropriate to deal with these applications.

   [1][2014] HCASL 33.

   [2][2014] HCASL 34.

   [3][2014] HCASL 35.

   [4][2014] HCASL 36.

7. The applicant has requested leave to file amended summaries of argument and amended applications for removal, as well as an extension of time to file lists of authorities and statutes.  Leave is refused as we do not consider that the interests of justice require it, given the views we have formed about the substantive matters.

8. These applications for removal are without merit. The applicant has not advanced an arguable basis for the contention that any of the respondents' alleged or anticipated acts would infringe any provision of Ch III of the Constitution or any right or immunity implied by Ch III of the Constitution; and, even if the applications did disclose an arguable constitutional issue, it would be wrong in cases like these to remove the proceedings to this Court at this stage of the proceedings. As McHugh, Kirby and Callinan JJ observed in Bienstein v Bienstein[5]:

   "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. Not only do orders removing proceedings interrupt the processes of the lower courts but they deny this court the benefit of the reasons of the lower courts on the constitutional issues and allow parties to bypass the special leave and leave requirements of the Judiciary Act. 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."

   [5](2003) 195 ALR 225 at 234 [45]; [2003] HCA 7.

9. Pursuant to rr 26.06.3 and 41.11.1 of the High Court Rules 2004 (Cth), we direct the Registrar to draw up, sign and seal an order dismissing the applications.

G.A.A. Nettle
11 November 2015 M.M. Gordon