Luck v CEO of Centrelink & Anor.doc; University of Southern Queensland
[2009] HCATrans 232
[2009] HCATrans 232
IN THE HIGH COURT OF AUSTRALIA
Office of the Registry
Melbourne No M50 of 2009
B e t w e e n -
GAYE LUCK
Applicant
and
CHIEF EXECUTIVE OFFICER OF CENTRELINK
First Respondent
SECRETARY OF DEPARTMENT OF HUMAN SERVICES
Second Respondent
Office of the Registry
Melbourne No M65 of 2009
B e t w e e n -
GAYE LUCK
Applicant
and
UNIVERSITY OF SOUTHERN QUEENSLAND
Respondent
Summonses for extension of time
CRENNAN J
TRANSCRIPT OF PROCEEDINGS
AT MELBOURNE ON WEDNESDAY, 16 SEPTEMBER 2009, AT 10.18 AM
Copyright in the High Court of Australia
__________________
MS G. LUCK appeared in person.
MS P.J. HEFFERNAN: Your Honour, I appear on behalf of both respondents in M50 of 2009. (instructed by Australian Government Solicitor)
MR J.D. PIZER: Your Honour, I appear on behalf of the University of Southern Queensland. (instructed by Clayton Utz)
HER HONOUR: I have read the affidavit of 26 June 2009 in support of the relief sought in the summons dated 26 June 2009 and I have read the certificates of Dr Varney and Dr Leow. Ms Luck, I understand that your application today includes an application to extend the time to file and serve a summary of argument and draft notice of appeal and also for leave to file a summary of argument of more than 10 pages, up to 20 pages.
MS LUCK: Yes, your Honour. I am sorry, I need to get my documents. Your Honour, I am making the submission here, if you would not mind, for the two parties in one because they are for the same ‑ ‑ ‑
HER HONOUR: They have been called together.
MS LUCK: Yes, and they are for exactly the same relief. Your Honour, yes, I am seeking to have extension of time for the summaries of arguments and the problem has been in the past where I have been unable, due to the difficulties I experience medically and through my disabilities, and I have not felt very comfortable with the fact that I have sought adjustments, which I am doing now – reasonable adjustments under the Disability Discrimination Act. These are a right I have as a disabled person. I am a disabled pensioner and I have supported all my arguments on the basis that I am disabled. In this case, when I filed the documents in the High Court for these matters, that is M50 and M65 of 2009, I had been so inundated with work and difficulties with the court below and the matters below that I was exhausted and I also suffer from serious symptoms from my illnesses. I have had recent injuries and operations and I have had following on from them difficulties and so when I sought to have it filed by, I think it was 31st August that I sought to attempt to get those done, I was seeking to have a rest in between so I did not address those issues until further down.
In the meantime, I was addressing the issues in the Federal Court. I was seeking to obtain access to the files of the court. Now, as you know, I am seeking a disqualification of a judge in the matters – all three matters – three matters, two of them are here in this particular instance and on the basis of these problems that I face in my claims and grounds in the Federal Court, I obviously required access to the files of the court. They have not been forthcoming very easily. I have only just recently been granted access, minus some.
I appreciate that I can probably go ahead now and do some work to get the summaries of arguments done, but up until only yesterday, and still I have got issues with another of the matters in the Federal Court that was not currently into the High Court but it is now. I have just filed an application for an order to show cause and the two parties here are also parties to that application to show cause. That relates also to the other matter, VID 444 of 2008 in the Federal Court, and because I have found it necessary to do this, that has been really – I have been subjected to some very difficult situations where I have not been able to make submissions down there either. So this is why – it does not just stop with two cases here ‑ ‑ ‑
HER HONOUR: What sort of extension are you asking for, Ms Luck?
MS LUCK: I am asking, your Honour, to – an extension of time I am seeking is probably – I could probably manage – you see, I also have studies at university which I am obligated to do and it is coming up to assessment so ‑ ‑ ‑
HER HONOUR: Well, I had in mind 28 days – another four weeks.
MS LUCK: I think the two of them it could be difficult but I am also going to be seeking extension of time for serving and filing some of the documents in the other matter and that is M85, the matter that has just been filed. So given – and I also have a removal of cause matter, which is M52 which is also requiring summaries of arguments. I could, perhaps, attempt it and I would happily do that, but I have just had a recent injury that I am currently being treated for which is I fell and I damaged my shoulder which means that I am in severe pain and I do not sleep very well. I am very, very much in pain generally.
HER HONOUR: I am trying to ‑ ‑ ‑
MS LUCK: I do not know what to say, your Honour.
HER HONOUR: ‑ ‑ ‑ just work out what your application precisely is.
MS LUCK: I know. I would like, if you could make it for 28 days, but more importantly – and this is why I sought this particular application – was to save the Court and the respondents time and money I was asking that the – because in the special leave applications I understand that it has to come before a Judge for anything like an adjournment or whatever or extensions of time ‑ ‑ ‑
HER HONOUR: Every appearance before the Court does cost money, so I am very concerned to accurately establish what amount of time you need.
MS LUCK: Yes.
HER HONOUR: I have to hear from the other parties, of course, but I am concerned to ensure, so far as I can, that an extension of time is one within which you can achieve what you want to achieve.
MS LUCK: Well, to be honest, your Honour, I am not sure that I could achieve it because I have got to do my work for the assessments and stuff at the university as well and that is – my latest matter there is 12 October. Now, I am pretty sure that I – to be honest, I probably would seek to go to the end of October and then I may be able to do all of them.
HER HONOUR: Well, you would understand if you got such a long extension of time it would be very important to adhere to that timetable.
MS LUCK: Yes, your Honour.
HER HONOUR: In other words, you could not keep coming back to Court after getting what would be a very generous extension and expect to get further extensions.
MS LUCK: Your Honour, I have to say ‑ ‑ ‑
HER HONOUR: You would need to give some attention to this litigation in order to get it in order to be dealt with.
MS LUCK: Your Honour, I do tend to it. Honestly, I do. But I would like to say also and bring to the Court’s attention that the Disability Discrimination Act provides for a person in my situation to get reasonable adjustments. Now, unless there is an unjustifiable hardship imposed on the persons granting the disability discrimination – the reasonable adjustments - your Honour, I cannot see that regardless of how long it took me as a disabled person with only two hands and being human, I have a lot of work because of this court litigation. Now, I did not bring these frivolously or vexatiously. These are matters whereby my other human rights have been – I have been deprived of human rights by the respondents and by the other parties, defendants and so on.
Now, these parties are huge organisations with numerous resources and power. I am one individual, disabled person and if I am forced to come to a hearing and I am unable to provide the submissions because of my injuries and my pain and suffering, I would ask the Court what would you do? Is that a reasonable adjustment to say – and I am not – I agree that perhaps October is the end, but I do not want to go and cause myself further injury by attempting to do so. Believe me, every single stressful situation, physically, emotionally, mentally causes further disfigurement of my body and the progression of this disease that I have, or one of them. You know, I have numerous medical conditions.
HER HONOUR: Well, perhaps the best course is to hear from the other sides. I now understand, and they understand, that your application is to extend the time until the end of October and we all understand the reasons you advance to support that application are reasons connected with your health. So if you would like to sit down for a moment. I do not mind in which order you address. Yes, Mr Pizer.
MR PIZER: Thank you, your Honour. The University does not oppose the application for an extension that is made by Ms Luck so long as her application will be deemed to be abandoned if her written case and draft notice of appeal are not filed by the end of October.
HER HONOUR: Yes.
MR PIZER: That is all I wish to say.
HER HONOUR: You want a self‑executing order?
MR PIZER: Yes, we do, bearing in mind, of course, that under the rules at the moment the application is deemed to be abandoned unless you make an order to the contrary.
HER HONOUR: Yes.
MR PIZER: So we do not have a difficulty with you making an order to the contrary this morning, but would ask that you extend the time for the operation of the rule to the end of October. If the Court pleases.
HER HONOUR: Yes, thank you. Yes, Ms Heffernan.
MS HEFFERNAN: Your Honour, I am actually instructed by both respondents to oppose the extension of the special leave application of M50 of 2009. Certainly, I hear what the applicant is saying. Both my clients are just concerned about the ongoing applications for extensions in these matters and we did agree to a lengthy extension about a month or so ago when we agreed for the time to be extended from 2 July to 31 August. While we are obviously in the Court’s hands as to whether the Court allows a further extension to 31 October, we are concerned that, notwithstanding that it may be that my clients may not be required to make any response to the summary of argument given that it is a special leave application involving an unrepresented applicant, but at the same time, given that it is an appeal from a judgment of an interlocutory nature or based on an interlocutory judgment, there is still a substantive application to be heard, depending on what the High Court’s judgment is. We just do not want to delay the matter too long.
In the alternative, your Honour, I am happy to, if your Honour is minded to grant the extension, we would also seek an order along the lines of what has been sought by the respondent in M51 of 2009, which is effectively if the applicant does not file the summary by 31 October, then it is deemed to be dismissed.
HER HONOUR: Yes.
MS HEFFERNAN: I am not sure – there were two other orders sought by the applicant. I am not sure whether your Honour wants me to address those two orders or not.
HER HONOUR: The only other order apart from granting an extension of time would be that I would grant leave to file a summary of argument not exceeding 20 pages.
MS HEFFERNAN: Yes, we would not oppose that, your Honour.
HER HONOUR: Yes.
MR PIZER: Nor would we.
MS HEFFERNAN: I think there was one other order about Order 44 ongoing adjustments, but ‑ ‑ ‑
HER HONOUR: Now, they would need to be dealt with in Court.
MS HEFFERNAN: That is fine, your Honour.
HER HONOUR: Yes. Anything further, Ms Luck.
MS LUCK: Yes, I do, your Honour. In fact, I never did get to give my full submission before the other parties made theirs. First of all, again I bring your attention to the fact that a reasonable adjustment is required under the Disability Discrimination Act by the Court, by also the parties who are here who are also obliged under the law in my case, as I am a client of both of them, to extend to me those disability reasonable adjustments.
Now, the M65 matter, the University of Southern Queensland matter, they have me on their enrolment record as a disabled student whereby they are obliged to extend to me numerous extensions of time. I have actually had over a year of extensions of times to file assessments, assignments and so on.
Now, apparently that does not have any – I mean, I know that the representative is here, but he is only representing the instructions of the University of Southern Queensland and putting those forward, which indicates to me that they are also – and I consider that if this was considered an abandoned matter at the end of the period that you are going to, or you may extend it to, without further opportunity to make reasonable adjustments under the law, that would be an abuse of me and it would be in breach of the disability discrimination law by not only the Court, but by the respondents as well.
HER HONOUR: Ms Luck, I have to indicate to you that litigation does need to be conducted in a timely manner. Memories fade and all sorts of events can take place if delays occur, which means that access to justice is less perfect than if a matter is dealt with speedily. So it is important that there are time limits and that the time limits are obeyed. Now, I will be giving you an extension of time until 31 October. It is a very generous extension of time ‑ ‑ ‑
MS LUCK: Could I finish, your Honour, please, with all due respect?
HER HONOUR: Yes, you can, but ‑ ‑ ‑
MS LUCK: I have other things to say about it which I did not get to say before.
HER HONOUR: Yes, you can, but I want to indicate to you that there will come a point where it will be necessary to possibly deal with this matter on the basis of a self‑executing order if material is not provided. There is the need to concentrate on a summary of argument and a draft notice of appeal in this matter and the extension which I have foreshadowed is an extension of the order of six weeks.
MS LUCK: Yes, your Honour. Can I go on, please?
HER HONOUR: Yes.
MS LUCK: I have a precedent here – Doyle v Chief of General Staff (1982) 42 ALR 283 which was for an extension of time for a student – no, I beg your pardon, for someone in the Defence Force. It was an extension of time for the filing of documents or coming to the court. In actual fact, that is not the one I wanted to cite actually. I am sorry, I made a mistake. I have been very distressed trying to get all this organised. However, there is one – it is a university student precedent. It is in a well‑known case. It has been mentioned in my arguments in the Federal Court – for an extension of time to file a statement of claim and that was extended over numerous times over a year. It was a lengthy one because of the illness of the student. So their disability rights were considered.
There is also another matter in regard – in particular to the respondent in M50. I have sought review of decisions made in regard to access to freedom of information documents from the Department of Human Services which, again, have been denied me in proper form. I have an AAT matter awaiting hearing on that. Those documents go to the very basis of the questions in that matter – M50 of 2009. That is another reason why the respondent, Ms Heffernan, is opposing the order for an extension of time here because when the documents come through and it goes through the AAT and they have to provide the documents that they have been retaining from me, or withholding from me, they will be found to have – it relates to the question of whether the Secretary of the Department of Human Services is a party to the Centrelink matter and the decisions ‑ ‑ ‑
HER HONOUR: This is not the occasion to talk about the details of the matter.
MS LUCK: No, but it is a reason for the – it is a ground for them to want to get rid of my case and to not extend the time. Now, as you ‑ ‑ ‑
HER HONOUR: I have indicated that despite the opposition from Ms Heffernan I am proposing to grant the extension of time. So, I am not, I must say to you, particularly assisted by further arguments about granting it because I have already indicated that I will grant ‑ ‑ ‑.
MS LUCK: But I do not accept that that is the end of it.
HER HONOUR: ‑ ‑ ‑ the extension of time.
MS LUCK: I appreciate your Honour’s assistance there but I do not accept that that – and I have to go back to the Disability Discrimination Act. The fact is ‑ ‑ ‑
HER HONOUR: Well, I understand your point ‑ ‑ ‑
MS LUCK: Now, please, your Honour, there is a provision that unless a reasonable adjustment causes any unjustifiable hardship to the respondents or to the Court, then I must be granted it.
HER HONOUR: We are not debating that any more, Ms Luck, is my point to you. You are being granted it. I am not assisted by further argument about an extension of time when I have given an indication that I will be granting the extension sought. So I am not assisted by ‑ ‑ ‑
MS LUCK: Well, I did not seek that time, your Honour. I said that I may be able to do it by then, but I do not want to feel at this point – and I will do my best to get it done, but I have got serious problems health wise that I have to attend to various operations and all sorts of things that ‑ ‑ ‑
HER HONOUR: If you do not meet the time limit, that will be something that will have to be dealt with by the Court on another day, not today.
MS LUCK: Okay, your Honour. Yes, thank you very much.
HER HONOUR: It is a very important and serious matter to meet the time limit.
MS LUCK: I understand that and I understand that though it might make the cases imperfect if it goes on for any length of time, we must remember that the reasonable adjustments granted toward me are to a person who is
also imperfect and for that reason I am allowed those reasonable adjustments. That is what the Court and the respondents should keep in mind ‑ ‑ ‑
HER HONOUR: Well, originally this matter was to be done by 31 August, as I understand it.
MS LUCK: Well, your Honour, things have happened.
HER HONOUR: Now, Ms Luck, you have until 31 October to attend to this task.
MS LUCK: I appreciate that, your Honour.
HER HONOUR: Now, if you would sit down now, please.
MS LUCK: Yes, your Honour. Thank you. I presume that you will not be ordering that the Registrar has the power to extend to me any ‑ ‑ ‑
HER HONOUR: No, I will not be ordering that. It is a matter for the ‑ ‑ ‑
MS LUCK: ‑ ‑ ‑ for filing or serving or anything like that.
HER HONOUR: No, it is a matter for the Court.
MS LUCK: Thank you, your Honour.
HER HONOUR: I will indicate that I will not make a self‑executing order today, but these matters may be reaching a stage where that would be an appropriate order to make. I will not make it today. What I will do for today in both matters will be:
1.Extend the time for the applicant to file and serve a summary of argument and draft notice of appeal to 4 o’clock on 31 October 2009.
2.The applicant is granted leave to file a summary of argument not exceeding 20 pages.
3.Reserve the costs.
MR PIZER: Yes, your Honour.
HER HONOUR: I indicate to you, Ms Luck, that a possibility will occur next time, if this timetable is not adhered to, that a self‑executing order may be made.
MS LUCK: Your Honour.
MR PIZER: Might I just indicate to you, your Honour, according to my electronic diary 31 October falls on a Saturday.
HER HONOUR: I beg your pardon – till 30 October then. That is Friday, the last working day. Thank you.
MR PIZER: Thank you, your Honour.
HER HONOUR: It was just mentioned in argument.
MR PIZER: It was and I did not check it until now.
HER HONOUR: Thank you for that. Thank you, Ms Luck.
MS LUCK: Thank you, your Honour.
MS HEFFERNAN: Thank you, your Honour.
HER HONOUR: Adjourn the Court.
AT 10.44 AM THE MATTER WAS ADJOURNED
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