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

[2010] HCATrans 74

[2010] HCATrans 074

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, 24 MARCH 2010, AT 10.07 AM

Copyright in the High Court of Australia

__________________

MS G. LUCK appeared in person.

MS LUCK:   Excuse me, your Honour, I have got a few minutes, if you would not mind, getting organised because I have got quite a lot to organise.

HER HONOUR:   Yes, very well, Ms Luck.

MS LUCK:   Thank you.

MS H.M. SYMON, SC:   May it please the Court, I appear for the respondents in M50/2009.  (instructed by Australian Government Solicitor)

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

HER HONOUR:   Yes, thank you.  Ms Luck, the two matters which have been called ‑ ‑ ‑

MS LUCK:   I am not ready, your Honour, please, I am not ready.

HER HONOUR:   I am sorry, I thought you were about to sit down.

MS LUCK:   I have a very heavy load that I have to get organised now.

HER HONOUR:   Very well.  You tell me when you are ready, Ms Luck.

MS LUCK:   Thank you very much.  I will.  Also, your Honour, I must hand to the other parties my outlines of submissions which I had not time to get them to them, so they might like to have them first while I get further organised and they can read through them.

HER HONOUR:   Very well.  That is a good idea.  Hand over your written submissions and they can read them.  Do you have a copy for me?

MS LUCK:   You have one, your Honour.  That was filed in the Court.

HER HONOUR:   That is the document you are referring to.  Thank you.

MS LUCK:   Yes, your Honour.  M85 I have not done much except put a basic outline of the issues that I want to put before the – for the directions, your Honour.

HER HONOUR:   Yes, thank you.  We do not seem to have any recent submissions in M85.

MS LUCK:   No, I have not made any and, your Honour, actually I think you will have to give me one of those back, because I brought four, two for the – look, there is not much there, your Honour.  Sorry, Ms Musolino.

HER HONOUR:   Yes, thank you for that, Ms Luck.

MS LUCK:   Thank you.  This was just a last minute thing I did just so that I have got some idea of where I am going in that respect, your Honour.

HER HONOUR:   Yes, thank you.

MS LUCK:   It was not a proper submission as such, just a literal outline.

HER HONOUR:   Thank you.

MS LUCK:   Actually, I think I might have handed out an M50 one too many, because I have not got one for myself.  As I say, it was only one party in respect of that one.  I am sorry to do that to you.  Thank you.  Sorry, your Honour, I had it all organised but, as inevitably happens when one is in a hurry I have got it all a little mixed up.

HER HONOUR:   Are you ready to proceed now in relation to matters Nos M50 and M65?

MS LUCK:   Yes, your Honour.

HER HONOUR:   In those two matters you filed a summons dated 29 October 2009 and in that summons you sought extensions of time within which to file and serve a summary of argument and a draft notice of appeal.

MS LUCK:   Yes, your Honour, I did.

HER HONOUR:   Then you have filed written submissions dated 22 March 2010 and it appears from that that you are now asking that both the matters be adjourned indefinitely.  Have I understood your application?

MS LUCK:   This is for M?

HER HONOUR:   M50 and M65.

MS LUCK:   Both of them, yes, your Honour.  Okay.  No, I am not asking for an adjournment indefinitely, your Honour.  I am asking for an adjournment which is the only practical course to take in respect of these two special leave applications because of all the further applications I have been forced to make in the Court in respect of some of these matters, in particular, the M65 matter.  Also there is another associated matter, M50 – M52, rather, that is also for removal as the appeal was not heard and the matter has been stayed down in the Federal Court.  The further application that I made in M85, which was a show cause matter ‑ ‑ ‑

HER HONOUR:   Are you wanting to address on all matters at the moment, are you?

MS LUCK:   No, but I am trying to bring together the reasons why an adjournment is necessary, your Honour.

HER HONOUR:   Very well.

MS LUCK:   All of these matters in the High Court at the moment that I have been forced to bring due to the, I believe, unjust and unfair decisions made against me in the lower courts and the Administrative Appeals Tribunal, have a thread of common issues upon which I maintain that my cases all turn which are ones that I have sought to have consolidated – the issues consolidated and why I have brought the removals of the other matters to the High Court to have the High Court determine those common questions of law and constitutional issues that are very serious and important in some cases, and I believe in every case, because the matters are all constitutional matters.

HER HONOUR:   Well, it would be very difficult to make any assessments about any application for consolidation in the absence of having summary of argument and a draft notice of appeal in these matters.

MS LUCK:   Yes, your Honour, but I have given some through correspondence to the Court in all my applications and you would be able to see, your Honour, that I have not been negligent or been lazy or not done anything in respect of these matters.  Admittedly the matters are not necessarily – the work I have had to do has not been directed at the special leave – it has been directed at those two special leave applications in the common questions of law on which those two matters turn.

HER HONOUR:   My point is that the correct sequence in which to do things is to file a summary of argument and a draft notice of appeal and, as you foreshadowed, at some stage you want to make a formal application to consolidate certain matters.

MS LUCK:   Well, I have sought that on every one of my – I consider that I have made those formal applications.  Obviously, the issue now is – for the benefit of all the parties, including the Court, it would be, in my view, the most logical process now for me to adjourn the matters that surround the M85 matter which brings all parties and to provide the Court for the – because none of those matters – if I put my time into making special leave arguments, which I could not do properly until I have actually determined all the common questions of law properly and done my research and put them together for the satisfaction of the Court, to sidestep now and to go through all the special leave arguments that may very well incorporate and include all the questions of law and the constitutional questions of law – the common questions of law, it would be much more practical, given the complexity and the volume of the matters.

I am one person.  I cannot do all those things in the timeframe that would suit the Court.  What I could do appropriately and in my circumstances of disability, it would, in my view, be much more logical and much easier for me and more expedient for me to spend the time I have in preparing a document that brings together all the common questions of law, identifying them from which matter they come from and making a proper document, an outline of my arguments and submissions that I intend to make for the determination by the Full Court of those common questions of law. 

To go and spend time on each and every individual one of the matters that are not – that turn on those questions would seem to me to be oppressive for me and it would not be of benefit to the Court, because it could be two years before I have done all those and then done the common questions of law.  I understand that all the parties here want to expedite this matter but I have not got the ability or the means or wherewithal to do all that work and then after all that work come back to the common questions of law.  That just seems to me would be an unreasonable way to handle the matter.  So naturally I am seeking to have the adjournment of the matters.

I have identified in most of them – I am not saying I have done it in all because I have had to file documents in time, which was difficult for me to do anyway and with the amount of work that had to be done to make outlines of arguments and so on, I could not do it, not when I have been constantly harassed and discriminated and victimised by some of the parties that are here.

I am also a student at university where I am being grossly and abusively treated and I cannot handle that emotionally or psychologically or physically and therefore I am seeking an injunction to prevent these and restrain these issues – there is a couple of them, including with the AAT, which is the M10 matter, for an injunction today, which I would like to deal with after this naturally.

These matters are on my – are detrimental to me.  They are causing me an ongoing and suffering – pain and suffering and they are causing me great distress and inability to cope with the things that I think are most important here in the Court.  I believe I have sort of got to the point where I have gathered the whole lot together for the Court’s benefit so they can see where I stand.  I have filed many – I have filed numerous – I would not say many, but numerous of the constitutional – notice of constitutional matters to the Attorneys‑General.  I still have a couple of those to go, but the matter M85 has been served on the Attorneys‑General last week and I have affidavits here of service for those today.

In the scheme of things, your Honour, it seems to me that I would want to – definitely want to get the adjournments made and also in lieu of the fact that I want to get the consolidation of those common questions of law.  I mean, that is up to you, your Honour, how you manage it, and as these are all relevant to each other and each of the parties are in the M85 matter, I would hope that you could put the situation in a – put me in a situation where I can cope with the work.

HER HONOUR:   It seems to me the proper course is to file your summaries of argument and your draft notices of appeal because that will then put the Court in a better opportunity to consider any application you wish to make to consolidate the matters.  In the absence ‑ ‑ ‑

MS LUCK:   I cannot do that, your Honour.

HER HONOUR:   In the absence of those materials it is not possible for the Court to respond to what ‑ ‑ ‑

MS LUCK:   I am not asking for consolidation then, your Honour.  I am asking for an adjournment of those matters now for the ‑ ‑ ‑

HER HONOUR:   So that you can apply subsequently for a consolidation order in ‑ ‑ ‑

MS LUCK:   So that I can provide to the Court a document upon which they then would be able to see the correlation between all matters, the basis of why I say they are common questions of law and constitutional matters, which they are.  There is not one of these matters that is not somehow connected in each and every one of them because of the specific judicial judgments and the judges in the cases, the various reasons under the Disability Discrimination Act, the Privacy Act and the Federal Court of Australia Act and the AAT Act and the Freedom of Information Act and all the international covenants and the Human Rights and Equal Opportunity Act.

These are the fundamental laws which I am claiming have been breached and the common questions of law and the constitutional questions of law come from these issues and so it would be appropriate, as I said, to prepare the document, then, with that document, seek to, if the Court so pleases, to consolidate if not the entire matters, but the issues to remove the specific issues or parts of them that are relevant, as I have sought in my applications, to bring them all to the Court to take that action, if the Court, as I said, so pleases. 

I think that it would be for my sake as one person – as you can see, I have got many respondents here who have many resources and powers and the abilities to do anything that is necessary to come one at a time against me and I am here already – and I see this as really quite a difficult and unfair process where I am forced to deal with, before I get to the Court – as you can see, I have got so much more.

These gentlemen and ladies here are completely au fait with the system, with the processes.  They are professionals.  They know exactly what they want to do and how to do it.  They have got everyone to run around after them to help them and prepare the documents.  Ma’am, I do this all myself and under the circumstances of disability that I am suffering from, it is extraordinary to have done it, and it is also taking a very serious toll on me, especially if one cannot stop the abuses that I am being subjected to on a daily basis by some of the parties.

That is making my – I could handle this without those things.  I could handle this and I could probably do a lot more than I am, but whilst I am dealing with those things, it incapacitates me no end, especially when dealing with those issues at the University each day.  I feel ill.  I am distressed beyond belief.  Anyway, I do not want to go there because it distresses me just talking about it.

So naturally I would like to have the Court agree to adjourning those matters in this case, M50 and M65, specifically for the purpose, along with all the other adjournments that may be necessary, to get those common questions of law together.  Then, your Honour, it would be quite satisfactory for me.  You would find that I will produce in a reasonable amount of time all the things that the Court needs, but I need to have a couple of injunctions made first or some sort of action taken to prevent these other things that prevent me from acting and behaving and conducting myself in accordance with my duties and responsibilities to this Court. 

So that is my – the orders that I seek is that – and I also seek orders in M50 that pursuant to High Court of Australia rule 4.02 for an applicant to be granted reasonable adjustments as requested of and negotiated with the Court, as an unrepresented disabled person, in respect of any periods of time fixed by or under the High Court Rules for the time of hearings and the filing, serving or its submissions of documents in this proceeding and related proceedings, in the Court and on the respondents pursuant to the applicant’s expectations that the respondents and the Court will comply with the provisions of the Disability Discrimination Act 1992, the Australian Human Rights Commission Act 1986 and the treaties scheduled thereto and the United Nations Convention on the Rights of Persons with Disabilities and the International Covenant on Civil and Political Rights; and, two, that this matter be adjourned pending the consolidation of the applicant’s other High Court matters, M85/2009, M52/2009, M65/2009, M112/2009, M8/2010, M9/2010 and M10/2010 for the determination of constitutional and common questions of law and the complete disposal of these questions by the Full Court; and, three, that the administrative and judicial files in Federal Court of Australia proceedings, VID488/2008 and VID54/2008 be removed into the High Court pending the consolidation of the applicant’s other High Court matters, M85/2009, M52/2009, M65/2009, M112/2009, M8/2010, M9/2010 and M10/2010 for the determination of the constitutional and common questions of law, and the complete disposal of these questions by the Full Court; and, four, that the costs be reserved.

Your Honour, for M65 the orders I seek are that pursuant to High Court of Australia rule 4.02 for the applicant to be granted reasonable adjustments as requested of and negotiated with the Court, as an unrepresented disabled person, in respect of any periods of time fixed by or under the High Court Rules for the timing of hearings and the filing, serving or submission of documents in this proceeding and related proceedings, in the Court and on the respondents pursuant to the applicant’s expectations that the respondents and the Court will comply with the provisions of the Disability Discrimination Act 1992, the Australian Human Rights Commission Act 1986 and the treaties scheduled thereto and the United Nations Convention on the Rights of Persons with Disabilities and the International Covenant on Civil and Political Rights; and, two, that this matter be adjourned pending the consolidation of the applicant’s other High Court matters, M85/2009, M50/2009, M52/2009, M112/2009, M8/2010, M9/2010 and M10/2010 for the determination of constitutional and common questions of law, and the complete disposal of these questions by the Full Court; that the pending matters in Federal Court of Australia – this is number three, sorry – relating to the review of the deputy district registrar’s decisions to issue taxation certificates in the appeal proceeding, VID899/2008, the High Court of Australia matter M8/2010 and the primary proceedings VID476/2008 and the High Court proceeding M9/2010, be stayed pending the determination of the consolidation of the applicant’s other High Court matters, M85/2009, M50/2009, M52/2009, M112/2009, M8/2010, M9/2010 and M10/2010 for the determination of the constitutional and common questions of law, and the complete disposal of those questions by the Full Court; and, four, that the administrative and judicial files in Federal Court of Australia proceedings VID476/2008 and VID899/2008 be removed into the High Court pending the consolidation of the applicant’s other High Court matters, M85/2009, M52/2009, M65/2009 – M50/2009, not M65, sorry – M112/2009, M8/2009, M9/2009 – sorry, M8/2010, M9/2010 and M10/2010 for the determination of constitutional and common questions of law, and the complete disposal of these questions by the Full Court; and, five, that the costs be reserved.

Your Honour, I would like to go back to the number three, the pending matters in the Federal Court in regard to the taxation certificates.  Those matters are being progressed in the court below.  The Judge Bromberg adjourned the matter until May.  I sought a stay until these matters were resolved and disposed of by the High Court.  This is a very – I think it is a very – the motives behind agitating these taxation certificate matters are quite inappropriate in the circumstances of my – in my circumstances and in the circumstances of all the matters in the High Court already filed.  I appreciate that in situations where – most commercial situations that any judgments made against a litigant for costs are not stayed in the court below because there is a special leave to appeal application and so on.

I understand that that is probably quite a logical process for the respondents when they have been found to – when the costs have been awarded against the applicant that they pursue that as vigorously as they feel necessary.  In my circumstances, the respondents were provided – and there are two notices of motion that I have sought to have the issues removed to the High Court in M8 and M9 and those notices of motion are reviewing the decisions of the registrars to issue the taxation certificates and to proceed with that process, and I have just been served with another taxation certificate for VID476 and a demand made on me for the costs.

Given that I provided to the respondents last year a statement of financial circumstances, and it is clear I am impecunious, but not only impecunious but I am also limited in assets to the very enormous degree, the process that they have embarked upon by pressing me and pressing me and pressing it through the court seems to me rather illogical when the knowledge that they have no chance of actually achieving what they are progressing the matters for and that there are questions of the judge’s decisions in the first place to make the constitutional issues that have been brought before the High Court that are questioning the judge’s decisions in that matter and then there is also the matters of the notice of motion M8 and M9 being brought to the High Court also questioning the rights, my rights, which were disability discrimination rights or disability discrimination legislation, law and human rights, that they have agitated this knowing that I suffer from disabilities and that I have sought reasonable adjustments in all the cases for extensions of time and because I cannot cope with the volume of work and the effects it has on me, to me – and I have read some of these authorities about abuse of process and, in my view, because I am the victim of these acts and I do say I am a victim of the acts of discrimination and victimisation and, of course, that is one of the questions – these are the questions that the High Court will eventually determine, I say that this is verging on abuse of process that they keep pursuing it.

I also consider the fact that the judges taking no note of these circumstances when they refuse to make their stays – because that was really all that was required to make it reasonable and appropriate for somebody in my position, to stay it until such time as these matters were heard in the High Court and determined - if they are so sure that they have got the right to these costs, surely they can allow the High Court to make these judgments that determine whether those judgments that were – you know, the orders made against me for the costs should be upheld if they are so correct.  They should not need to pursue it and pursue it and pursue it against a disabled person who quite clearly cannot – (a) they cannot recover the costs at this time and, two, they are damaging me by forcing me to act and to make documents and to do all the work that is involved to go to the lower court whilst I am dealing with these questions in the higher court.

It seems to me victimisation as well, that they are continually detrimenting me on the basis that I have these actions and that I have threatened them with – and asserted my rights under these human rights laws.  So I would ask that in fairness and for equality before the law for myself that these matters are stayed properly, not just adjourned, until they can bring me back in May when I am in the midst of coming here because I have got to deal with all the issues that I have to deal with here.  So that I am not constantly put under so much pressure I will have a nervous breakdown, which has been very close very recently.  I have been seeking medical attention for this. 

So that, I think, is – I would just like to offer an authority though it does not necessarily relate because this matter is actually a matter that is a lawful – just excuse me – for them to bring, a lawful matter for them to bring for money.  But it seems to me that the same principles would apply in – excuse me one minute – this is in Re Majory [1955] Ch 600 at pp 623 to 624.

HIS HONOUR:   Do you wish to read that out to me?

MS LUCK:   It is only a very short passage, your Honour, “bringing proceedings to use them as a means of obtaining some advantage for which they were not designed”.  This was from – I am not sure of the judge in that case.  Then further in Goldsmith v Sperrings Ltd [1977] 1 WLR 478 at pp 498 to 499, and see also Verawa (1911) 13 CLR 35 at 91 and this just was – I read this in a book called Civil Procedure – Commentary Materials (2009) Colban et al, 4th edition, and it said further on “or some collateral advantage beyond what the law offers”.  This was related to bringing proceedings in these cases. 

Well, I consider that these are being used to gain some advantage which to them would be completely ruining me, making me unable to cope with the amount of work.  I cannot possibly do the necessary research to fulfil the requirements of the High Court while I am dealing with these matters in the lower court.  I believe that these matters in the High Court are of great import.  Not only are they of great import to me, but they are of public interest and that factor in itself would seem to me to – they should be complying with these sorts of precedents as they are and do know, or their legal representatives do know that this is wrong to continue to pursue this in a person like myself, a litigant like myself.

As they are in the knowledge of my disabled and impecunious circumstances, and it was provided for them in the financial position that I gave to them, it just seems to me that the agitating of that matter – and on top of it, the judge’s decisions in this matter for the costs are questionable given the circumstances and the filings I have done in the High Court, and I think it is oppressive conduct.

For that reason, I ask that you stay them properly pending the determination of the hearings of the common questions of law because they also relate to disability.  That is another issue, your Honour, that they do relate specifically to the disability adjustment issues.  Also, in that particular matter there are economic discriminatory issues too.  So to keep forcing me into the lower court would be unfair, your Honour, and I ask that you make that stay.  Again, on M65 I have provided a submission to the Court of basically an outline of the facts in there. 

I wanted to say that these are some of the common questions of law that we might be able to at least give you some idea, your Honour, of what – these are only some and they may vary to some degree in each case, but the fundamentals are there.  That is under 9 on my submission for M65.  At the heart of the proceedings are the following questions, some of which are common to the High Court matters M85, M50, M52 as well, M112 and M10/2010 and M8 and M9:

a.Whether the respondent was required by law to have granted access to the documents (personal information student record) sought to be accessed by the applicant because of her entitlement, as a Commonwealth Supported Student, under the Higher Education Support Act 2003 and the Privacy Act 1988 and requested by the applicant under section 15 of the Freedom of Information Act 1982 (Cth) on 15 June 2006 and 16 or 17 August 2006?

b.If not, whether the respondent was required or authorised to refuse to provide the applicant with access to that record under the applicable provisions of any law of the Commonwealth that provides for access by persons to documents, that being, in this case, the Freedom of Information Act 1982 (Cth)?

c.That being a requirement, was the respondent a public and prescribed authority for the purpose of the Freedom of Information Act 1982 (Cth)?

d.Was the respondent obliged under section 29 of the Administrative Appeals Tribunal Act 1975 as the decision maker of the decision that was the subject of the applicant’s valid application for review, to furnish to the applicant the documents pursuant to section 37 of that Act, prior to a hearing, within 28 days of the lodgement and filing of the application documents by the applicant and the proper constitution of the Tribunal?

e.Did the Administrative Appeals Tribunal have jurisdiction to review the decisions of 15 June 2006 and 17 August 2006?

f.Did the respondent breach the Higher Education Support Act 2003 and the privacy principles of the Privacy Act 1988 and interfere with the privacy of the applicant?

They, your Honour, are very loosely formed questions that may seem insignificant at this point, but when incorporated into all the matters in my hearings, including the M50, M52, M65, in particular those matters, and then again, because the Justice that was hearing all of those matters, your Honour, was also allocated, following my filings in the High Court, to the VID444 matter, which is the fifth defendant in M85.  He was also allocated to the M10 matter, which was the VID65/2010 in the Federal Court and he was also allocated to VID357/2009 in the Federal Court also, which is another matter which this M65 – the parties here, the University of Southern Queensland are a party in that matter.

So the fact that all those matters involve the questionable, in my view, the questionable judgments and decisions made in those matters - these particular questions of law, the common questions of law are very relevant because several of those came from the AAT, which is where these began – some of these began and, therefore, these questions might sound trivial at the High Court level, but when included in the Chapter III bias issues that I have in regard to the judicial reasoning and judgments and so on made below, they are not. 

So, your Honour, in that respect I do not think that it is necessary to go through the details and the facts of these matters to save time, as you have got them and the parties all know them, but I did want to point out those particulars grounds upon which I seek the stay and the adjournments and the – and I must say that I would not be able to handle – I would not be able to handle it.  I would not be able to handle – if you refuse the adjournments that I – or however you deal with it, if I cannot do the questions of law first, it will be a long, long time before I can complete the entire process. 

I do not think that would be fair to me, especially – well, there are some injunctions that need to be made, your Honour, that rely on some of these questions of law to be answered, which means that they would have to be interim injunctions for the time period.  So one cannot make injunctions of that nature if that be the Court’s desire – and then extend these timeframes for such a long time as to when I would be able to get them done because there are numerous outlines of arguments that are necessary, not just in this case, but there are the other cases that I have in the High Court, all relevant.  So I would ask that you allow me to the document first

that provides for the necessary consolidation, if that be the case.  I will now close with that and I presume the other parties would like to say something on these two matters.

HER HONOUR:   Yes, thank you, Ms Luck.  Yes, Ms Symon, if you address me on the two issues, one is the adjournment and the second the orders staying pending matters in the Federal Court that are sought.

MS SYMON:   In regard to the second, your Honour, the orders sought with regard to the Federal Court matters do not concern my client.  So I perhaps will not address you on those.  Insofar as M50 is concerned, I am not sure if your Honour has an outline of submissions which arrived yesterday?

HER HONOUR:   Yes, I do.

MS SYMON:   My client’s positions are set out in paragraphs 23 to 26 and insofar as M50 is concerned, we do not oppose the granting of yet another extension of time for the filing of the summary of argument and a draft notice of appeal, but, in our submission, the time has come for that order to be a self‑executing one.  We understand Ms Luck’s application to adjourn the matter off further pending an application for consolidation of all matters, but as your Honour has already indicated, the best way for the commonality of the matters to emerge is by the filing of the documents which the Court Rules require.  I do not know if your Honour wishes us to state our position with regard to the other matters.

HER HONOUR:   No, I think that can be left for the moment, in relation to M10 and M85.

MS SYMON:   Yes.

HER HONOUR:   I have read your submissions.

MS SYMON:   Yes.

HER HONOUR:   Yes, very well.  I will hear from Mr Horan.  Mr Horan, it sounds like you are the appropriate person to address in relation to both matters?

MR HORAN:   Yes, your Honour.  In relation to the adjournment, as is the case with the respondent in M50, the University does not oppose the grant of a further and final extension of time to file a written case and draft notice of appeal and that extension – or compliance with that rule should be done irrespective of any question of adjournment.  In other words, the applicant should comply with the rules for the filing of those documents within an appropriate time.  The times that have been suggested in each of the respondents’ submissions are a period of two to three weeks and it may be appropriate for the timeframes to be staggered so that the applicant does not have to deal with both matters by the same deadline and can deal with the filing of the written case and draft notice of appeal in each matter separately. 

If the documents are not filed by the further extended date, the rules provide that the application will be deemed to be abandoned and, on one view, the application is already deemed to be abandoned for failure to comply with the previous extension of time, of course subject to any further extension that might be granted today.  In relation to the second matter, the stay of orders in the Federal Court, the only live issue before the Federal Court in the two matters, VID476 and VID899, is the issue of taxation of costs.

HER HONOUR:   That is 476 and 489, is it?

MR HORAN:   VID899.  The first is the proceeding before Justice Tracey and the second was the proceeding before the Full Court.  The registrar has issued certificates for the taxation of costs.  The Federal Court has before it an application for review of the registrar’s decision which I am instructed has been adjourned until 26 June 2010 and that on that date, if the applications for removal, which are the subject of proceedings M8 and M9, are still undetermined, the parties were invited to enter consent orders for the further adjournment of those applications for review.  His Honour Justice Bromberg declined to order a stay of the costs orders, but the matter remains before the Federal Court only insofar as there is an application to review the registrar’s decision in relation to taxation.

Insofar as there is a suggestion that there are common questions arising in the special leave application and the other matters, as your Honour has noted, that issue is best determined in the light of the written case and draft notice of appeal to be filed in support of the special leave application, but that of the questions that are identified in the applicant’s submission, it is really only questions (c) and (e) that arise from the decisions below, and that is the jurisdictional question as to whether or not the Administrative Appeals Tribunal had jurisdiction to review a deemed decision to refuse the request for access under the Commonwealth freedom of information legislation.  The other questions, whatever might be the position in the other proceedings, do not arise in the special leave application.

So, in summary, the only order that I would submit needs to be made today is an order for a further extension to an appropriate date beyond

which the application will be deemed to be abandoned if the documents are not filed in accordance with the Rules.

HER HONOUR:   Thank you, Mr Horan.  Yes, Ms Luck, anything in reply?

MS LUCK:   Yes, your Honour.  In regard to this, also, it seems to me staggering when I have had such difficulty with the Federal Court and that I have brought these matters because of the not only judicial – I consider, not only the judicial or the administrative abuses inflicted on me.  I am a disabled student – a disabled person and student entitled to disability adjustments by the court, by any person or organisation or agency involved in these sorts of matters and I have been denied those. 

I have been, I believe, inflicted with further and further victimising acts to harm me, to prevent me from bringing my case and, as the Federal Court are the parties in – the first defendant in the M85 matter and various other officers of the Federal Court are also included – for these very reasons, for the bias reasons, for the discrimination reasons, for the interferences in my privacy reasons, for those reasons, the court continues down there to inflict on me these difficulties to make my cases difficult for me in the High Court, and I suspect that they are actually acting in collusion with the respondents to further harm me.

I appreciate that this is a very serious thing to say about a court of this land, but the reality is, why, when I have written to the High Court – the Federal Court chief justice to ask him, request of him, that any matters further, since my filings in the High Court, were not allocated to judges that had been previously involved, including and specifically Justice Tracey, each of these matters that are related and that are clearly questionable, in my view, but they are matters filed in the High Court, why would I continually have these allocated to these cases?  Admittedly the ones for ‑ ‑ ‑

HER HONOUR:   The only point in reply with which you are required to deal is Mr Horan’s point.

MS LUCK:   Yes.

HER HONOUR:   He has said that in the matters before the Federal Court, VID476 and 899, the only outstanding matters are taxation of costs.  He has also indicated or referred to the fact that the Federal Court has power to grant adjournments in respect of their matters.

MS LUCK:   Yes, your Honour, but ‑ ‑ ‑

HER HONOUR:   So do you have a reply ‑ ‑ ‑

MS LUCK:   Yes, I do, and my whole point is that I am sickened by dealing – the effects on me, having to deal with the Federal Court below are continually harming me further.  I am entitled, with disability, reasonable adjustment, that I am not forced to deal with those victimisers of me or harassers of me or whatever.  My whole point here is that they should be stayed for my sake and my health and then that will be something I can deal with in the High Court where I am not subjected to that sort of abuse.  So I appreciate that it is a rather horrible thing to have to bring to the Court’s attention, but it is the reality and I appreciate that.

HER HONOUR:   But that is your submission?

MS LUCK:   Yes.

HER HONOUR:   Thank you, Ms Luck.

MS LUCK:   And M8 and M9 are also disability discrimination common questions.

HER HONOUR:   These two matters are both applications for special leave to appeal which come before the Court today by reason of a summons in each matter filed by the applicant on 29 October 2009 seeking extensions of time within which to file and serve a summary of argument and a draft notice of appeal.

In M50, the applicant filed an application for special leave 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.  The applicant filed a summons on 26 June 2009 seeking an extension of time in which to file and serve a summary of argument and draft notice of appeal. 

In M65, the applicant filed an application for special leave on 26 June 2009 against the whole of the judgments of the Full Court of the Federal Court of Australia given on 19 June 2009.  On the same date 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. 

At the hearing on 16 September 2009, the applicant was granted an extension of time until 30 October 2009 to file and serve a summary of argument and draft notice of appeal in both M50 and M65.  On 29 October 2009, the applicant filed a further summons in each matter for a further extension of time within which to file and serve a summary of argument and draft notice of appeal “to a date upon which the applicant in her circumstances would be able to reasonably have prepared a comprehensive and thorough document suitable for the standards of the honourable Court”.

The applications for extension of time are supported by a medical certificate of Dr Priscilla Leow dated 28 October 2009 which stated that the applicant would require ongoing medical treatment for the next three months, that is until the end of January 2010, and the applicant was “too distressed to ‑ ‑ ‑

MS LUCK:   Excuse me, your Honour.  I object to you citing my medical reports here.  I do not expect you to name them or speak about them.  They are privacy information.  They were not to be spoken here.  I am sorry, your Honour.  This is a case where I have – M10, where I am seeking an injunction for precisely what you have just done.

HER HONOUR:   This is the evidence, as I understand it, upon which you wish to rely.

MS LUCK:   My evidence – my medical condition is not the evidence in this Court.  This is not for the evidence of this.  This is – my medical certificate does not need to be exposed to the public for any – the reason that I have provided the Court with a medical certificate is specifically for an adjournment or not.  If you choose not to give me an adjournment, so be it.  You say so.  But if you choose to give me one, there is no need at all for the details of my medical certificates to be exposed to the public and it is an offence in my view that you should do so.

I appreciate that – and in this case because I am here to seek an injunction for somebody who has done this in the lower court and published it for the world and now you have also done that and I ask you to strike out all relevance to my medical certificate from your judgment.  Whatever you say, your Honour, if you speak about my medical certificate you have to get my consent.

HER HONOUR:   Do you wish to rely on your medical certificate in ‑ ‑ ‑

MS LUCK:   I wish to rely on the medical certificate for an adjournment.  The adjournment is not the question in stake here.  This is not – my physical condition, what my medical certificates have said are not – you are not in a position to argue about the medical certificate contents.  The only thing that you have to say is yes, you will agree to the doctor’s requests and say that you give me one or you do not.  If you do not, there is no need for you to go through why I need it.

That is my personal, private information.  You can read it.  The respondents can read it, but it is not necessary to tell the world who my doctors are and what my conditions are.  If I do that it is a different story, your Honour, but for you to do it, it is entirely wrong and I ask that you strike that out of your judgment.  I do not consent to my medical, personal, sensitive information being supplied to the public and I would ask that you make it private.  Whatever you have to do, do what it is that removes it from that.

If I am here on a tort case because I have got an injury to do this or do that and I am claiming money for it, this is a Disability Discrimination Act 1992 right I have to an adjournment, a reasonable adjustment or whatever it is that I am required to have. It is not the duty of any person – if this is an administrative thing, Ms Musolino or the Judge if you want to do, you can ask me to provide more if you are not satisfied with what the doctor said. You can ask me to go and have further examinations to ensure that that is correct, but I am sorry, Ma’am, but you are not entitled to expose my personal, sensitive information to the public for something that is not in question here.

My adjournment is in question, not my medical conditions.  The adjournment either is or is not.  If you do not want to give me an adjournment based on – and you did not, I might add, in your judgment prior to saying that, you did not say in any of your previous commentary that I had actually sought an extension of time as a reasonable adjustment under the Disability Discrimination Act and I would ask that you do so if you are going to refer to my adjournment or medical certificates as they are, medical certificates, without names of doctors, without my conditions.

I would ask that you do that, your Honour.  I do not know what law it is that says that I am entitled to privacy of those personal things.  It is the Privacy Act actually.  I ask for them to be made private and if there is a Court rule or Court thing that I can ask for it to be made private, I am making that request, please, your Honour.

HER HONOUR:   Ms Symon, do you have any submissions to make in response to what I take to be an application for a confidentiality direction?

MS SYMON:   I do not have any objection to it, your Honour.

HER HONOUR:   Yes, thank you.  Mr Horan?

MR HORAN:   No, we do not oppose that.

HER HONOUR:   No objection. 

MS LUCK:   Yes, thank you, your Honour.

HER HONOUR:   I will continue to read my judgment, without interruption from you, if I may, Ms Luck, because I will ‑ ‑ ‑

MS LUCK:   There will be no need further, your Honour.

HER HONOUR:   ‑ ‑ ‑ make a confidentiality direction in relation to that part of my judgment.

MS LUCK:   Thank you.

HER HONOUR:   I will just go back to the commencement of the sentence.

The applications for extension of time are supported by a medical certificate of Dr Priscilla Leow dated 28 October 2009 which stated that the applicant would require ongoing medical treatment for the next three months, that is until the end of January 2010, and the applicant was “too distressed and too unwell to cope with any demands which she finds traumatic, apart from basic requirements of daily living ‑ ‑ ‑

MS LUCK:   Your Honour, please, this is a public court.  I am sorry, your Honour, this is a public court.  There are public here and you are doing it.

HER HONOUR:   I will make a direction in relation to this.

MS LUCK:   But there are people here – the public.  You are not supposed to speak about those things, please.  This is a public hearing.  I am sorry, your Honour.  It is wrong.  You just – do not mention the name of the doctor or any relationship to that medical certificate, apart from the fact that it is a date, the date in the medical certificate.  Thank you.

HER HONOUR:   Thank you.  “Further stress and emotional trauma will exacerbate the symptoms and progress of her medical conditions.”  An application for a direction that this section of my reasons concerning Dr Priscilla Leow be confidential has been made by Ms Luck during the course of the reading of these reasons.

MS LUCK:   Your Honour ‑ ‑ ‑

HER HONOUR:   There is no objection to the grant of a direction that that section be confidential.  I make that direction.  By written submissions filed in this Court on 22 March 2010 the applicant now requests that both matters be adjourned.  In M65 she also seeks orders staying pending matters in the Federal Court of Australia and an order that files in such matters be removed into the High Court.  The essential basis on which the applicant seeks those orders is that she is conducting litigation in the High Court and is unable to attend to litigation in both courts and is oppressed by the multiple proceedings which she is pursuing. 

In those matters before the Federal Court, VID476 and VID899, the only outstanding matters are taxation of costs.  Each of the Federal Court and this Court has the ability to ensure that respective proceedings are conducted without oppression, including by the grant of adjournments as appropriate.  I decline to grant the stays sought.

The applicant has foreshadowed that she will in the future specifically identify common questions of law in a number of her matters currently before the High Court of Australia, being M52 of 2009, M85 of 2009, M112 of 2009, M8 of 2010, M9 of 2010 and M10 of 2010 which she will seek to have consolidated.

As summaries of argument have not been filed in any of these matters the Court is unable to make any assessment of the applicant’s current requests.  There are no formal applications on foot in respect of consolidation, but the application for consolidation has been foreshadowed in an outline of argument.  There is no material presently before the Court upon which a decision respecting consolidation might be made.

For the Court to be able to assess an application for consolidation, it would be necessary for the Court to understand the detail of each of those matters which would be facilitated by the filing of a summary of argument and draft notice of appeal in each matter as required by the Court Rules. 

The application in each summons dated 29 October 2009 requesting extensions of time are not opposed, save that the first and second respondents in M50, Centrelink and the Department of Human Services, and the defendant in M65, the University of Southern Queensland, have asked that the applications for special leave be deemed abandoned if the deadlines fixed by this Court today are not complied with.  I will postpone consideration of those requests until the next return date of the summons.

In all the circumstances, I propose to grant an extension of time in each matter so as to ensure that the applicant has a further opportunity to file and serve a summary of argument and a draft notice of appeal.  Those orders do not preclude the applicant from taking such steps as she wishes in any consolidation of matters before this Court.

The orders I make in each matter are:

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.

May I just indicate to those persons present in Court that I remind them that there has been a confidentiality order made in respect of a certain section of my reasons for judgment.

AT 11.18 AM SHORT ADJOURNMENT

UPON RESUMING AT 11.54 AM:

HER HONOUR:   Before dealing with matter M85, I want to return for a moment to matters M50 and M60.  Consistent with Ms Luck’s application that the portion of my reasons in M50 and M60 dealing with medical evidence be marked confidential, there will need to be a direction that the medical evidence exhibits in each matter also be marked confidential so as to avoid the possibility that a person searching the file has access to that material.  Do you have any objection to me making that direction, Ms Symon?

MS SYMON:   No, your Honour.

HER HONOUR:   What about you, Mr Horan?

MR HORAN:   No, your Honour.

HER HONOUR:   Ms Luck, you have not applied for that direction, but I propose to add to the orders already made in M50 and M60, I propose to direct that exhibit GL04-M50 in M50 and exhibit GL02-M65 in M65 be marked “Confidential”.  

MS LUCK:   Your Honour, I do not expect that.  I expected that those – the information that I provided to the Court today or for any of the time that I submitted – I filed these documents in an affidavit.  That means that they are on the record which is a different situation than what I will be coming to later.  The fact that they are – this here is the High Court and there is a transcript and it goes out to the whole world and that it is not necessary, the only reason I filed those is so that I can continue to have the Court support my requirements and also they are to some degree relevant in this case.  But the actual details of those are not.  The essence of the law is that I am entitled to disability adjustments because of a disability.  I only have to provide to the Court or to anyone asking for them evidence that I have what I say, the reasonable requirement.

HER HONOUR:   The exhibits have now been marked “Confidential”.

MS LUCK:   Yes, but I do not necessarily expect them to be marked like that in the – I suppose it is better that way, anyway, in the ‑ ‑ ‑

HER HONOUR:   I think it is consistent with what you want, Ms Luck.

MS LUCK:   Yes, your Honour.

HER HONOUR:   There is no objection to it.  Thank you.

MS LUCK:   Thank you, your Honour.

HER HONOUR:   We will proceed now with M85.

AT 11.57 AM THE MATTERS WERE ADJOURNED