Luck v Commonwealth of Australia

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FEDERAL COURT OF AUSTRALIA

Luck v Commonwealth of Australia [2025] FCA 68

File number(s): VID 1273 of 2024
Judgment of: DOWLING J
Date of judgment: 11 February 2025
Catchwords: PRACTICE AND PROCEDURE – application for disqualification – application for referral to Full Court – applications refused.
Legislation: Federal Court of Australia Act 1976 (Cth), ss 20, 25, 37M
Cases cited:

Binetter v Deputy Commissioner of Taxation [2012] FCA 377; 128 ALD 10

British American Tobacco Australia Services Ltd v Laurie [2011] HCA 2; 242 CLR 283

Ebner v Official Trustee in Bankruptcy [2000] HCA 63; 205 CLR 337

Frugtniet v Secretary, Department of Social Services [2021] FCAFC 127; 285 FCR 159

Isbester v Knox City Council [2015] HCA 20; 255 CLR 135

Johnson v Johnson [2000] HCA 48; 201 CLR 488

Minogue v Human Rights and Equal Opportunity Commission [1999] FCA 85; 84 FCR 438

Nobarani v Mariconte [2018] HCA 36; 265 CLR 236

Ogbonna v CTI Logistics Ltd [2022] FCA 227

Quach v Marks (No 2) [2021] FCA 922

Rajski v Scitec Corporation Pty Ltd (Unreported, Court of Appeal, NSW, Full Court, No CA 146 of 1986, 16 June 1986)

Re JRL: Ex Parte CJL [1986] HCA 39; 161 CLR 342

Vakauta v Kelly (1988) 13 NSWLR 502

Vakauta v Kelly [1989] HCA 44; 167 CLR 568
Division: General Division
Registry: Victoria
National Practice Area: Administrative and Constitutional Law and Human Rights
Number of paragraphs: 46
Date of hearing: 3 February 2025
Counsel for the Applicant The applicant appeared in person
Solicitor for the First Respondent Ms L Cameron of Australian Government Solicitor

 

ORDERS

VID 1273 of 2024
BETWEEN:

GAYE LUCK

Applicant

AND:

COMMONWEALTH OF AUSTRALIA

First Respondent

COMMONWEALTH ATTORNEY GENERAL

Second Respondent

ORDER MADE BY:

DOWLING J

DATE OF ORDER:

11 FEBRUARY 2025

THE COURT ORDERS THAT:

1.The applicant’s interlocutory application dated 28 January 2025 is dismissed.

2.Costs of the applicant’s interlocutory application dated 28 January 2025 are reserved.

Note:   Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.


REASONS FOR JUDGMENT

DOWLING J

  1. By her interlocutory application the applicant, Ms Luck, seeks, amongst other matters, that I disqualify myself from hearing this proceeding and that it be referred to a Full Court of this Court.

  2. The proceeding seeks judicial review of the Commonwealth Attorney-General’s decision not to intervene in another proceeding brought by Ms Luck which is identified by the matter number VID411/2024. I published orders and reasons in VID411/2024 on 3 October 2024: see Luck v Secretary, Services Australia [2024] FCA 1158. By those orders and reasons I dismissed the application in that matter. I did so pursuant to ss 10(2)(b)(ii) and 16(1) of the Administrative Decisions (Judicial Review) Act 1977 (Cth) and the Court’s residual discretion to decline to grant prerogative writ relief because Ms Luck had other adequate review options available. Ms Luck has lodged an appeal against that decision, that appeal has matter…

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Details
Case
[2025] FCA 68
Decision Date

CaseChat Overview and Summary

In Luck v Commonwealth of Australia, the applicant, Ms Luck, sought the disqualification of the judge and a referral of the matter to a Full Court. Ms Luck raised concerns about alleged breaches of procedural fairness and disability discrimination, claiming they justified her request. The court was tasked with determining whether these concerns provided a sufficient basis for the judge's disqualification and the referral of the case to a Full Court. Additionally, the court had to evaluate Ms Luck's arguments regarding the orders and reasons provided in a previous case, VID411/2024, which she believed demonstrated an apprehension of bias.

The court first examined Ms Luck's claims of procedural unfairness and disability discrimination, which she alleged constituted systemic issues within the Federal Court. However, the court found that Ms Luck did not detail the alleged breaches or establish a logical connection between these issues and the apprehension of bias. Consequently, the court rejected the notion that systemic issues existed or that they justified a conclusion of apprehended bias. The judge concluded that none of the submissions provided a proper basis for concluding that a fair-minded observer might reasonably apprehend bias.

Further, the court addressed Ms Luck's request to refer the matter to a Full Court. It noted that statutory provisions do not empower a single judge to refer an entire proceeding to a Full Court. While Ms Luck's application could be construed as a request for the judge to refer the matter to the Chief Justice, the judge found no basis for such a referral. The matter was deemed neither of sufficient importance nor efficiency to warrant the use of judicial resources. Moreover, the court did not accept Ms Luck's concerns about the judge's impartiality or the systemic allegations as valid grounds for referral.

The court concluded that the application for disqualification and referral was dismissed. Costs of the interlocutory application were reserved, pending further consideration.

Orders

Orders of the court

1. The applicant’s interlocutory application dated 28 January 2025 is dismissed.

2. Costs of the applicant’s interlocutory application dated 28 January 2025 are reserved.

Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Again, Ms Luck did not identify in any detail the alleged breaches of procedural fairness and disability discrimination. Ms Luck has not explained the logical connection between those alleged “systemic issues of discrimination” and the fear of a deviation from the course of deciding this proceeding on its merits. I reject the submission that such “systemic issues” exist, or that they give rise to an apprehension of bias in this proceeding such that I should be disqualified.Conclusions on apprehended bias In all of those circumstances, none of the submissions above, individually or cumulatively, provide a proper basis for a conclusion that a fair-minded lay observer might reasonably apprehend that I might not bring an impartial mind to the resolution of the questions that I am required to decide in this proceeding.REFERRAL TO A FULL COURT Ms Luck seeks that this proceeding be referred to a Full Court. Ms Luck does not identify the mechanism for that referral. As I say above, Ms Luck also seeks that that Full Court should be comprised of judges that are not on her “exclusion list” and who have no prior involvement in her related cases. Section 20(1) of the Federal Court of Australia Act 1976 (Cth) provides that, except as otherwise provided by the Act or any other Act, the original jurisdiction of the Court shall be exercised by a single judge. Section 20(3) of the Act provides that certain applications within a proceeding (such as applications to extend time, amend or stay) are to be heard by a single judge unless the Judge directs that such applications be heard and determined by a Full Court. That section has no application here because Ms Luck seeks to have the entire proceeding referred to a Full Court (not an application within it). Section 25(6) of the Act provides that a single judge may state any case or reserve any question concerning a matter for the consideration of a Full Court. Ms Luck does not propose a case stated or particular question for referral. In those circumstances that section has no application. Section 20(1A) of the Act provides that, if the Chief Justice of the Federal Court considers that a matter in the original jurisdiction of the Court is of sufficient importance, she may direct that the jurisdiction of the Court in that matter, or part of that matter, be exercised by a Full Court. That is a power to be exercised by the Chief Justice and not otherwise by a single judge. In circumstances where none of those provisions empower me to refer a matter to a Full Court it might properly be said that the application made to me is incompetent. However, construing Ms Luck’s submissions in the most generous way, I will treat her application for referral to a Full Court as an application to me to refer the matter to the Chief Justice and seek that the Chief Justice exercise her power under s 20(1A): see for example Binetter v Deputy Commissioner of Taxation [2012] FCA 377; 128 ALD 10 at [17] per Rares J. I do not consider that it is appropriate to refer the matter to the Chief Justice or to seek that the Chief Justice exercise her power under s 20(1A) of the Act. First, having considered all of the matters raised by Ms Luck’s originating application, I do not consider that the matter is of sufficient importance or significance to justify such a referral. Second, I do not consider that such a referral would be an efficient use of the judicial and administrative resources of the Court: see s 37M of the Act. Third, as to Ms Luck’s “serious concerns” about my impartiality as a reason for referring the matter to a Full Court, for the reasons set out above I do not accept the basis for those concerns. Fourth, insofar as Ms Luck alleges that there are “systemic breaches of procedural fairness and disability discrimination within the Federal Court” justifying such a referral, I do not find that there is a proper basis for that allegation. Fifth, in otherwise considering all of the circumstances of the proceeding there is nothing to justify such a referral.FURTHER SUBMISSIONS OF MS LUCK

Ratio Decidendi

Legal Principle Established

I am cognisant of the fact that Ms Luck is a litigant in person. I have endeavoured to allow for any difficulties that circumstance places upon Ms Luck. The role of the court in those circumstances has been variously considered. In Minogue v Human Rights and Equal Opportunity Commission [1999] FCA 85; 84 FCR 438 at 445-446 Sackville, North and Kenny JJ cited with approval Rajski v Scitec Corporation Pty Ltd (Unreported, Court of Appeal, NSW, Full Court, No CA 146 of 1986, 16 June 1986) where Samuels JA said at 14: In my view, the advice and assistance which a litigant in person ought to receive from the court should be limited to that which is necessary to diminish, so far as this is possible, the disadvantage which he or she will ordinarily suffer when faced by a lawyer, and to prevent destruction from the traps which our adversary procedure offers to the unwary and untutored. But the court should be astute to see that it does not extend its auxiliary role so as to confer upon a litigant in person a positive advantage over the represented opponent ... At all events, the absence of legal representation on one side ought not to induce a court to deprive the other side of one jot of its lawful entitlement ... An unrepresented party is as much subject to the rules as any other litigant. The court must be patient in explaining them and may be lenient in the standard of compliance which it exacts. But it must see that the rules are obeyed, subject to any proper exceptions. To do otherwise, or to regard a litigant in person as enjoying a privileged status, would be quite unfair to the represented opponent. Part of the same passage was cited with approval by the High Court in Nobarani v Mariconte [2018] HCA 36; 265 CLR 236 at [47] per Kiefel CJ, Gageler, Nettle, Gordon and Edelman JJ.BIAS CONSIDERATIONAlleged apprehended bias from orders and reasons in VID411/2024 Ms Luck submits that my orders and reasons in VID411/2024 (Luck v Secretary, Services Australia [2024] FCA 1158), which resulted in that matter being dismissed, creates a reasonable apprehension of bias. VID411/2024 was determined largely on the submissions of the parties and I was not called upon to make an assessment of Ms Luck’s credibility or demeanour in the witness box. The determinative issue in VID411/2024, namely whether Ms Luck had other adequate review options available, is not an issue in this proceeding. As I say above, VID411/2024 is now the subject of an appeal by Ms Luck. That appeal is to be heard in March 2025. Ms Luck alleges my orders and reasons in VID411/2024 give rise to an apprehension of bias because they:(1)“failed to engage” or address particular issues;(2)demonstrate “prejudgment” in relation to issues of systemic discrimination and procedural unfairness; and(3)reflect “judicial overreach” into executive function breaching the Constitution. In the context of the first step in the test for apprehended bias, I understand those matters to be an articulation of the matters that are said to raise an apprehension that I might decide the case other than on its legal and factual merits. There was very little articulation of those alleged failures. On the material and submissions before me I do not accept there were such failures. In any event, and assuming some failure, Ms Luck did not explain the second step in the test for apprehended bias, namely the logical connection between those matters above and the feared deviation from the course of deciding this case on its merits.