Luck v Chief Executive Officer of Centrelink & Anor; Luck v University of Southern Queensland

[2010] HCATrans 116

[2010] HCATrans 116

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, 28 APRIL 2010, AT 10.12 AM

Copyright in the High Court of Australia

__________________

MR A.J. PALMER:   If it please the Court, I appear for the respondents in matter M50/2009.  (instructed by Australian Government Solicitor)

HER HONOUR:   Yes, thank you.  Just before the appearances are taken, I will have the matter called outside.

COURT OFFICER:   No appearance.

HER HONOUR:   Thank you.  Yes, Mr Palmer, I have noted your appearance.

MR C.J. HORAN:   If it please the Court, I appear for the respondent in matter M65/2009.  (instructed by Clayton Utz, Lawyers)

HER HONOUR:   Yes, thank you.  Can I inquire whether either of you have received copies of letters of the applicant sent to the Court bearing the dates 21 April 2010, 27 April 2010 and 28 April 2010?

MR PALMER:   Your Honour, we do have a copy of 28 April and my instructor is just checking whether we have 21 April, but we do not have 27 April.

HER HONOUR:   Yes, thank you.

MR HORAN:   For myself, your Honour, we have several letters of 21 April, one of which deals with the present applications and some other correspondence dealing with other proceedings.  I have just seen a letter of today’s date, but we also have not seen a letter dated 27 April.

HER HONOUR:   Yes.  So you have the 21st and the 28th?

MR HORAN:   Yes, your Honour.

MR PALMER:   As do we, your Honour.

HER HONOUR:   As do you, yes.  Well, if I can make reference to the letter of 28 April, you will see that on the first page there are applications made by the applicant seeking extensions of time as would allow the prior hearing of a summons in M26/2010 and seeking that the proceeding be stayed or adjourned pending the hearing of the summons in M26/2010.  As I understand the correspondence, the whole of it, like applications are sought in both M50 and M65, although only M65 is specifically mentioned in that letter, but that is my understanding of the position.  So I would be assisted if you would address me in the light of the application.

MR PALMER:   Yes.  Thank you, your Honour.  The position of the respondents in the Centrelink matter is that the proceedings should now be dismissed or deemed abandoned with costs, the reasons for that being simply to do with the amount of time this has gone on.  The application was filed on 4 June 2009 and there have been a series of extensions of time.  Your Honour made some fairly strong remarks to the applicant on 16 September about the need for compliance with timelines and raising concerns about the amount of money that all the appearances and so on were generating for the respondents, and informing Ms Luck that she could not keep coming back to Court after getting generous extensions and getting further extensions.

The position that you indicated, your Honour, was 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.  Your Honour, there then were further extensions which Ms Symon in the hearing before your Honour did not oppose the grant of the further extension but made it conditional on that consent to the grant of further extensions on the basis that it then be a self‑executing order and that if there was non‑compliance with it, that they would then be deemed dismissed.

HER HONOUR:   As I understand it, there has been an appearance on behalf of your clients on each occasion when the matter has come before the Court.  Is that right?

MR PALMER:   Yes, that is correct, your Honour.  Ms Symon on the last occasion said that she did not oppose the grant of yet another extension, but that the time had come for that order to be a self‑executing one.  Your Honour instead took the path of arranging for this hearing shortly after the deadline of 23 April in order to see what had happened.  No summaries have been provided.  The reasons put forward by Ms Luck, in my submission, are not adequate explanation as to why 11 months after the filing of the application in this matter there is still no summary of argument.  It is a costly process for Centrelink to keep coming and having to appear as well as dealing with correspondence on the matter and it is an appropriate point at this stage for the matter to be dismissed or deemed abandoned and for costs to be awarded. 

HER HONOUR:   Yes.

MR PALMER:   I could say more, your Honour, but I feel that it has probably all been said before in previous hearings before you.

HER HONOUR:   Thank you, Mr Palmer.  Mr Horan.

MR HORAN:   Your Honour, we also oppose any further extension of time or any stay or adjournment of the special leave application and seek orders that the application now be deemed abandoned pursuant to rule 41.10.4.  The application that is made in the correspondence for an extension or stay appears to relate to the newly instituted proceeding, M26/2010, which is the notice of appeal from your Honour’s orders on 1 April 2010.  Now, as far as I can make out, that application was for urgent interlocutory relief against the fifth and eighteenth respondent.  The University of Southern Queensland was not present on that day.  The orders sought did not concern us.  The notice of appeal seeks, in addition to setting aside your Honour’s orders, many other orders which rope in the various other proceedings that have been instituted by the applicant.  

On going through the orders that are set out in the notice of appeal and the summons in M26/2010, again virtually all of them have no bearing upon the University of Southern Queensland.  The only manner in which the University is involved in that proceeding is again in relation to the issue of consolidation of proceedings whereby Ms Luck attempts to consolidate with that notice of appeal all of the other High Court proceedings she has instituted and, indeed, all of the Federal Court proceedings which she seeks to remove into this Court. 

Your Honour may be aware that in the order nisi proceeding, M85/2009, the University of Southern Queensland has filed a summons seeking dismissal of the claims against it on the basis that virtually none of the relief seeks any substantive orders against the University as eighth defendant in that matter.  In the light of all of that, the interest of the University of Southern Queensland in M26/2010 and all of these other proceedings is very peripheral and in light of that, we cannot see any reason why the special leave application in M65/2009 should be deferred pending all of these other proceedings.

The documents, the written case and draft notice of appeal, are now nine months out of time.  The consequences of failing to meet the further extended deadline has been made clear to the applicant on the last two occasions that the matter has been listed before your Honour.  The delay, in my submission, is not excused by any of the other proceedings that have been instituted by the applicant, most of which do not directly concern the respondent in M65/2009. 

For all of those reasons, it is difficult to see why the applicant has failed to file any documents in compliance with the rules, particularly in light of the barrage of correspondence and applications that have been filed in the other proceedings.  So for all of those reasons, the time has come for an order putting an end to this application and, of course, without prejudice to any right that the applicant may have to bring the matter back before your Honour or before other judges in an attempt to reinstate the matter, but, in my submission, it would not be appropriate to simply adjourn the proceeding or to grant a further extension of time when the rules, on their face, already deem the application to have been abandoned for failure to comply with the deadlines.  If your Honour pleases.

HER HONOUR:   Yes, thank you.  I will stand the matter down for approximately 10 minutes or so.

AT 10.25 AM SHORT ADJOURNMENT

UPON RESUMING AT 10.52 AM:

HER HONOUR:   These two matters, M50/2009 and M65/2009 are special leave applications which come before the Court today by reason of orders made on 24 March 2010.

In M50 an application for special leave to appeal was filed on 4 June 2009 against the whole of the judgments of the Full Court of the Federal Court of Australia given on 7 and 15 May 2009.  Rule 41.10.3 required that a summary of argument and draft notice of appeal be filed by 2 July 2009.  On 26 June 2009, the applicant filed a summons seeking an extension of time in which to file and serve a summary of argument and draft notice of appeal. 

In M65 the application for special leave to appeal was filed on 26 June 2009 against the whole of the judgment of the Full Court of the Federal Court of Australia given on 19 June 2009.  Rule 41.10.3 required that a summary of argument and draft notice of appeal be filed by 24 July 2009.  Also on 26 June 2009, the applicant filed a summons seeking an extension of time in which to file and serve a summary of argument and a draft notice of appeal.

At the hearing of the applications for extensions of time on 16 September 2009, the applicant was granted an extension of time until 30 October 2009 in which to file and serve a summary of argument and draft notice of appeal in both matters.  On 29 October 2009, the applicant filed a further summons in each matter seeking further extensions of time within which to file and serve a summary of argument and draft notice of appeal.  In each case the applicant relied upon medical certificates in order to support her applications for extensions of time. 

These summonses were heard together on 24 March 2010 and the following orders were made in each matter:

1.On or before 4.00 pm on Friday, 23 April 2010, the applicant file and serve a summary of argument and a draft notice of appeal.

2.Adjourn the further hearing of the summons dated 29 October 2009 until 10.15 am on Wednesday, 28 April 2010.

3.Reserve the costs of today.

The applications requesting extensions of time in the summonses dated 29 October 2009 were not opposed.  However, the first and second respondents in M50, Centrelink and the Secretary of the Department of Human Services, and the respondent in M65, the University of Southern Queensland, requested at the hearing on 24 March 2010 that the applications for special leave be deemed abandoned if the deadlines fixed by the Court were not complied with.  At the hearing on 24 March 2010, consideration of those requests was postponed until today’s hearing.

The applicant has failed to file or serve a summary of argument or draft notice of appeal in either matter.  On 30 March 2010, the applicant faxed a letter in each matter to the Deputy Registrar indicating that she would not be able to comply with order 1 made by the Court on 24 March 2010.  On 21 April 2010, the applicant faxed two letters to the Deputy Registrar addressed to the Full Court seeking a stay or adjournment in each matter.  In the second matter the applicant relevantly said:

I have been reminded by the Deputy Registrar that hearings were adjourned until 28 April 2010 for matters M50/2010 and M65/2010. 

I cannot, due to the trauma and ill health caused to me by Crennan, J’s treatment of me and the issue bias demonstrated in her judgments, appear before her and I have also been subjected to such abuse by the Fifth and Eighteenth Defendants in matter M85/2009, I am unable to cope with the hearings and as there are also two again listed for one day, I request that the hearing of them is stayed or adjourned pending the hearing of M26/2010 Summons of 9 April 2010 for consolidation of my matters and I have an orderly and suitable schedule for production of the necessary documents for the Full Court.  I am sure that it will be a great deal less traumatic and I will feel that I have been accorded the fairness and equality before the law.

It can be noted that M50 and M65 are proceedings of 2009, not 2010.  The applicant sent a further letter of 27 April 2010 to the Senior Registrar of the Court which dealt with the applications before the Court today.  In that letter the applicant relevantly stated:

A hearing is being had tomorrow, 28 April 2010, before Crennan J in the matters of M50/2009 and M65/2009 and I have made it known to the Full Court in respect of those matters, that I cannot, due to my ill health and being the current subject of terrible victimisation, undertake the work required to prepare my summaries of arguments and draft notices of appeal in those matters and have them filed and served by the due date and I have sought to be relieved from compliance with the Rules and also informed the Full Court that I cannot appear tomorrow as I have been severely traumatised by Crennan, J and will not endanger my life to appear again before her, as I have sought her disqualification which she has refused.  I have sought a stay or an adjournment of the proceedings pending the hearing of Summons M26/2010.  The parties are seeking an order for abandonment and when I discovered today that the Deputy Registrar has done nothing about making any of my submissions known, I am convinced that such abusive orders will be made, as so far, nothing has been done by the Court to stop these ongoing crimes against me, regardless of the material evidence I have filed and submitted to the Court.

Two bundles of documents were attached to this letter and they included three medical certificates dated 9 November 2009, 15 January 2010 and 30 March 2010.  The most recent of these certificates referred to chronic illnesses suffered by the applicant.  The applicant has faxed a further letter to the Court dated 28 April 2010 in which she relevantly states:

I write to inform the Court that, due to my illness worsened in recent weeks by the traumatic events relating to my matters currently afoot in the High Court, I am unable to appear before Justice Crennan today in this matter for fear of further endangering my life and health.

The applicant in her various communications to the Court has indicated she seeks a stay or adjournment in relation to the matters currently before the Court so that her summons in M26/2010 is heard prior to these matters.  In her letter of 28 April 2010, the applicant seeks the following:

1.The necessary extension of time to file and serve my Summary of Argument and Notice of Appeal in this matter, as would be required to allow for the prior hearing of my Summons in M26/2010;

2.Justice Crennan’s recusal from this matter on the ground of bias;

3.That this proceeding be stayed or adjourned pending the hearing of my Summons in M26/2010.

4.That I be provided with a transcript of the hearing as soon as practicable following the hearing.

The respondents in these matters have received copies of the letters of 21 and 28 April 2010.  The applicant did not appear today to make any oral submissions in support of her applications.  The applicant presently has 11 current matters before the Court and since the last hearing date in respect of M50 and M65, she has filed two notices of appeal being matters M26/2010 and M27/2010. 

The first and second respondents in M50, Centrelink and the Secretary of the Department of Human Services, and the respondent in M65, the University of Southern Queensland, have each opposed the grant of further time to the applicant or any stay or adjournment and have sought orders that the respective special leave applications be deemed to be abandoned in accordance with rule 41.10.4.  Appearances have been made by the respondents on each occasion when these matters have come before the Court. 

It was submitted by the respondents in M50 that it is a costly process to be involved in litigation, to deal with correspondence and to appear on numerous occasions upon which extensions of time have been sought.  It was submitted by the respondent in M65 that its interest in M26/2010 is peripheral.  All respondents submitted that by reason of the effluxion of time since the matters were initiated, it is now appropriate that each matter be deemed to be abandoned.

In all the circumstances, I am not persuaded that it is appropriate to stay or adjourn either of the proceedings dealt with today pending the hearing of the summons in M26/2010.  However, I will allow the applicant a further and final 28 days within which to file a summary of argument and draft notice of appeal in each matter on the condition that if such material is not filed, the application in each case will be deemed to be abandoned. 

The orders I make in each of M50/2009 and M65/2009 are:

1.The applicant’s application by letter dated 28 April 2010 that I disqualify myself for bias is refused.

2.The applicant’s application by  letter dated 28 April 2010 that the matter be stayed or adjourned pending the hearing of a summons in M26/2010 is refused.

3.Unless on or before 4.00 pm on 26 May 2010 the applicant files and serves a draft notice of appeal and a summary of argument in support of the application for special leave to appeal the application will be deemed to be abandoned.

4.The applicant to pay the costs of today of the respondents in the case of M50 and the respondent in the case of M65 and any costs reserved.

Adjourn the Court.

AT 11.05 AM THE MATTER WAS ADJOURNED