Luck v Federal Court of Australia & Ors; Luck v Secretary of the Department of Human Services & Ors; Luck v Chief Executive Officer of Centrelink (FOI Principal Officer); Luck v Australian Human Rights Commission &...

[2011] HCATrans 261

[2011] HCATrans 261

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Melbourne  No M85 of 2009

B e t w e e n -

GAYE LUCK

Plaintiff

and

FEDERAL COURT OF AUSTRALIA

First Defendant

CHIEF JUSTICE OF THE FEDERAL COURT OF AUSTRALIA

Second Defendant

PRINCIPAL REGISTRAR OF THE FEDERAL COURT OF AUSTRALIA

Third Defendant

THIRD DOCKET JUSTICE IN FEDERAL COURT OF AUSTRALIA MATTER VID444/2008

Fourth Defendant

DEAKIN UNIVERSITY ABN 56 721 584 203

Fifth Defendant

CHIEF EXECUTIVE OFFICER OF CENTRELINK

Sixth Defendant

SECRETARY OF THE DEPARTMENT OF HUMAN SERVICES (COMMONWEALTH)

Seventh Defendant

UNIVERSITY OF SOUTHERN QUEENSLAND

Eighth Defendant

COMMONWEALTH OF AUSTRALIA

Ninth Defendant

FOURTH DOCKET JUSTICE IN FEDERAL COURT OF AUSTRALIA MATTER VID444/2008 AND DOCKET JUSTICE IN FCA MATTERS VID464/2008, VID476/2008, VID488/08 VID357/2009 AND VID65/2010

Tenth Defendant

JUSTICE IN PLAINTIFF’S REFUSED FEDERAL COURT OF AUSTRALIA APPLICATION OF 28/09/09 FOR AN ORDER OF REVIEW OF DECISIONS OF AAT, AAT DEPUTY PRESIDENT AND THE SEVENTH DEFENDANT ABOVE, AND SENIOR PRESIDING JUSTICE IN THE PLAINTIFF’S FCA APPEAL MATTER VID899/2008 IN RESPECT OF THE EIGHTH DEFENDANT ABOVE

Eleventh Defendant

ADMINISTRATIVE APPEALS TRIBUNAL

Twelfth Defendant

PRESIDENT OF THE ADMINISTRATIVE APPEALS TRIBUNAL

Thirteenth Defendant

PRINCIPAL REGISTRAR OF THE ADMINISTRATIVE APPEALS TRIBUNAL

Fourteenth Defendant

PRESIDING MEMBER IN ADMINISTRATIVE APPEALS TRIBUNAL MATTER V2009/3331

Fifteenth Defendant

VICTORIAN DISTRICT REGISTRAR OF THE FEDERAL COURT OF AUSTRALIA

Sixteenth Defendant

DISTRICT REGISTRAR (MELBOURNE) OF ADMINISTRATIVE APPEALS TRIBUNAL

Seventeenth Defendant

CHIEF EXECUTIVE OFFICER OF DEAKIN UNIVERSITY ABN 56 721 584 203

Eighteenth Defendant

AUSCRIPT AUSTRALASIA PTY LTD ACN 110 028 825

Nineteenth Defendant

Office of the Registry
  Melbourne  No M10 of 2010

B e t w e e n -

GAYE LUCK

Applicant

and

SECRETARY OF THE DEPARTMENT OF HUMAN SERVICES

First Respondent

Administrative Appeals Tribunal

Second Respondent

ADMINISTRATIVE APPEAL TRIBUNAL DEPUTY PRESIDENT

Third Respondent

Office of the Registry
  Melbourne     No M52 of 2009

B e t w e e n -

GAYE LUCK

Applicant

and

CHIEF EXECUTIVE OFFICER OF CENTRELINK (FREEDOM OF INFORMATION PRINCIPAL OFFICER)

Respondent

Office of the Registry
  Melbourne  No M110 of 2009

B e t w e e n -

GAYE LUCK

Plaintiff

and

AUSTRALIAN HUMAN RIGHTS COMMISSION

First Defendant

PRESIDENT OF AUSTRALIAN HUMAN RIGHTS COMMISSION

Second Defendant

COMMONWEALTH OF AUSTRALIA

Third Defendant

Office of the Registry
  Melbourne  No M8 of 2010
  No M9 of 2010

B e t w e e n -

GAYE LUCK

Applicant

and

UNIVERSITY OF SOUTHERN QUEENSLAND

Respondent

Directions hearings

CRENNAN J

TRANSCRIPT OF PROCEEDINGS

AT MELBOURNE ON WEDNESDAY, 14 SEPTEMBER 2011, AT 10.14 AM

Copyright in the High Court of Australia

____________________

MS P.J. HEFFERNAN:   Your Honour, I appear for the sixth, seventh and ninth defendants in M85/2009.  In M52/2009 I appear for the first respondent.  In M110/2009 I appear for the Commonwealth of Australia, the defendant, and in M10/2010 I appear for the first respondent, the Secretary of the Department of Human Services.  (instructed by Australian Government Solicitor)

MS P.J. MITCHELL:   May it please the Court, I appear for the eighth defendant in M85/2009.  I do not appear in any other matters, your Honour.  (instructed by Clayton Utz, Lawyers)

MR S.F. GRANT:   Your Honour, I appear for the fifth defendant and the eighteenth defendant in matter M85/2009.  (instructed by McCabe Terrill)

MR D.R. GUTHRIE:   If your Honour pleases, I appear for the nineteenth defendant in M85/2009, Auscript.  (instructed by Norton Rose Australia)

HER HONOUR:   My understanding is these matters have been brought forward for directions today.  Have any of you a timetable that you have proposed, or shall I give an indication of what might be a suitable timetable in each of these matters?

MS HEFFERNAN:   With respect to us, we are happy to listen to what your Honour had envisaged.

HER HONOUR:   Well, I imagine it is convenient to have the four matters heard together because it is possible that evidence in one may be treated as evidence in another.  What I would propose in each of the four matters that have been listed today is – perhaps I will mention some dates as possibilities.  That on or before Friday, 16 September the respondents, or defendants as the case may be, file any further material in support of the respective summonses. 

The second direction in a timetable might be that on or before Friday, 23 September, the applicant, or the plaintiff, as relevant, file any material in reply.  The third direction that I would have in contemplation would be that outlines of written submissions be exchanged by the parties by 4 pm on Monday, 26 September next.  The fourth direction would be that the relevant summonses be heard at 10.15 on possibly Wednesday, 28 September and that the costs of today be reserved.

MR GRANT:   Your Honour, just speaking obviously for the fifth and eighteenth defendants, we are not involved or have not brought on a summons to strike out, so we do not anticipate that we would be taking any step in line with those orders.

HER HONOUR:   Yes.

MR GRANT:   They are really matters for other parties.

HER HONOUR:   It is a timetable in relation to the summonses.

MR GRANT:   Thank you, your Honour.

HER HONOUR:   Yes.  But obviously you will be on notice and I daresay may attend, as you have done from time to time.

MR GRANT:   Thank you, your Honour.

HER HONOUR:   There is just a query being made at the moment about that return date which I had in mind.

MS MITCHELL:   Thank you, your Honour.  The one point I would like to raise is in relation to proposed order 3.  I think the parties – or at least the developed defendants and respondents have, for the most part, already filed summaries of argument.  I wondered if that order might be made “if any further summaries of argument or outlines of submissions ought to be filed”.

HER HONOUR:   Yes.  All I had in mind is you may wish to update those previous outlines.

MS MITCHELL:   Thank you, your Honour.

HER HONOUR:   That is all I had in mind, so they would supplement what has already been filed because there has been quite a lapse of time since the last affidavit material was filed.

MS MITCHELL:   It has, your Honour, yes.  Thank you for that indication.  In that case, the eighth defendant would be happy with those orders.

HER HONOUR:   Yes.  Yes, Ms Heffernan.

MS HEFFERNAN:   Your Honour, generally I do not personally have an issue with the directions.  I must admit I am a bit embarrassed because I did not expect they would be listed at such an early stage and I had ascertained counsel’s availability for October to December inclusive, but not that day and we have counsel briefed.  I mean, subject to that, I am happy for those orders.  That was my only worry and that is my problem ‑ ‑ ‑

HER HONOUR:   Well, you will appreciate that Ms Luck gave an indication that she was not well enough to attend today.

MS HEFFERNAN:   That is correct.

HER HONOUR:   There may be, in those circumstances, some wisdom in having the hearing date a little later.  I was simply floating possibilities.

MS HEFFERNAN:   Sure, no, that is fine.

HER HONOUR:   Now, when you talk about October, the week commencing the 10th to the 14th and the week commencing the 17th to the 21st would both be weeks when I was in Melbourne.  We could, for example, aim to have it heard perhaps Wednesday, the 12th, something along those lines.  We were talking about October being your preference.

MS HEFFERNAN:   That is correct.  Wednesday, the 12th, that is a date on which both my counsel are available, your Honour, but that is obviously subject to the other parties as well.

HER HONOUR:   Yes.  All right, I will hear from Mr Guthrie.

MR GUTHRIE:   Yes, your Honour, that suits my counsel better.  He is not available on the 28th, but he is available on the 12th.

HER HONOUR:   On 12 October.  Yes, very well.  Having regard to that, the time for outlines could be enlarged a little.  I suppose it does not concern anyone at the Bar table particularly, but I will just give some consideration to that. 

In matter No M52/2009 the directions I make are:

1.On or before Friday, 16 September 2011, the respondent file any further material in support of the summons dated 20 May 2010.

2.On or before Friday, 23 September 2011, the applicant file any material in reply.

3.Outlines of written submissions, if any, be exchanged by the parties by 4 pm on Wednesday, 28 September 2011.

4.The respondent’s summons be heard at 10.15 am on Wednesday, 12 October 2011.

5.Costs be reserved.

In matter No M85/2009:

1.On or before Friday, 16 September 2011:

(a)The sixth, seventh and ninth defendants file any further material in support of their summons filed on 16 April 2010;

(b)The eighth defendant file any further material in support of its summons filed on 16 April 2010; and

(c)The nineteenth defendant file any further material in support of its summons filed on 2 June 2010.

2.On or before Friday, 23 September 2011, the plaintiff file any material in reply.

3.Outlines of written submissions, if any, be exchanged by the parties by 4 pm on Wednesday, 28 September 2011.

4.The sixth, seventh, eighth, ninth and nineteenth defendants’ summonses and the plaintiff’s request for an extension of time within which to file supporting affidavits be heard at 10.15 am on 12 October 2011.

5.Costs be reserved.

The directions I make in matter No M10/2010:

1.On or before Friday, 16 September 2011, the first respondent file any material in support of its summons dated 16 April 2010.

2.On or before Friday, 23 September 2011, the applicant file any material in reply.

3.Outlines of written submissions, if any, be exchanged by the parties by 4 pm on Wednesday, 28 September 2011.

4.The first respondent’s summons be heard at 10.15 am on 12 October 2011.

5.Costs be reserved.

The directions I make in matter No M110/2009:

1.On or before Friday, 16 September 2011, the third defendant file any material in support of its summons dated 20 May 2010.

2.On or before Friday, 23 September 2011, the plaintiff file any material in reply.

3.Outlines of written submissions, if any, be exchanged by the parties by 4 pm on Wednesday, 28 September 2011.

4.The third defendant’s summons be heard at 10.15 am on Wednesday, 12 October 2011.

5.Costs be reserved.

HER HONOUR:   Nothing further?

MS HEFFERNAN:   Not from our side, your Honour.

MR GRANT:   Nothing further, your Honour.

MR GUTHRIE:   Nothing further, your Honour.

MS MITCHELL:   Your Honour, one matter which is not actually on the list - your Honour, when we wrote to the Court on 5 September we actually asked the Registry to have available to you the files in two other of Ms Luck’s matters, which were not listed today, being M8/2010 and M9/2010.

HER HONOUR:   Yes, I have seen those matters.

MS MITCHELL:   Yes, your Honour.  Our concern with those matters is that the – if you have seen the correspondence we attached to that letter which was dated 20 May that was sent to the Registry some time ago, those two matters are applications for removal to this Court of proceedings then current in the Federal Court of Australia.  The proceedings before the Federal Court of Australia were dismissed by orders of Justice Bromberg on 21 April 2011.  In those circumstances, the proceedings M8/2010 and M9/2010 would appear to be, effectively, empty proceedings since there is nothing left to be removed. 

We are instructed to actually seek if the Court would be willing to actually perhaps list those matters or should dismiss those matters simply because there is nothing left for those matters to do.  I am not sure if your Honour would be willing to hear us on that today or whether it might be more appropriate to list those two matters to also be listed on 12 October so that those can be brought before the Court.  We are simply seeking orders to have those matters dismissed.

HER HONOUR:   Yes.  Well, perhaps if you are happy for them to be dealt with on the 12th, it means that Ms Luck then has notice of your application.

MS MITCHELL:   Certainly, your Honour, that might be more appropriate in that respect.  We have not actually formally put an application before the Court to bring the matter on. 

HER HONOUR:   No.

MS MITCHELL:   We were not sure if it would be necessary in the circumstances to file a summons or not, but we were interested to see if the Court would be ‑ ‑ ‑

HER HONOUR:   From what you say the matters ought to be dismissed because there is no matter pending which would be the subject matter of any proceedings.

MS MITCHELL:   That is exactly my client’s position, your Honour.

HER HONOUR:   Yes.  So on one view perhaps no further costs should be incurred in relation to those matters.

MS MITCHELL:   That is simply our concern, your Honour, yes.

HER HONOUR:   Is the only order you seek a dismissal?

MS MITCHELL:   That is the only order we seek.  No order as to costs would be sought.

HER HONOUR:   No order as to costs.

MS MITCHELL:   Yes.

HER HONOUR:   Well, it seems to me appropriate in all the circumstances to dismiss each of those matters today.

MS MITCHELL:   I have actually prepared some draft orders to that effect, if your Honour was willing to consider them.

HER HONOUR:   Yes, certainly.

MS MITCHELL:   I am happy to hand those up if your Honour would be willing to look at them.

HER HONOUR:   Yes, thank you for that.

MS MITCHELL:   Thank you, your Honour.

HER HONOUR:   In matter Nos M8/2010 and M9/2010, I have noted that applications were filed by Ms Luck on 9 February 2010 which were applications for removal to which the University of Southern Queensland was a party.  By letter dated 20 May 2011, Clayton Utz, Solicitors, advised the Registry that Justice Bromberg of the Federal Court of Australia had, on 21 April 2011, handed down judgment in both those matters.  That has been confirmed this morning in Court. 

As there is no longer any matter pending in the Federal Court, the jurisdiction of this Court pursuant to section 40 of the Judiciary Act is no longer engaged.  Accordingly, it is appropriate that orders be made.  The orders I now make are:

1.The applications be dismissed.

2.There be no orders as to costs.

MS MITCHELL:   Thank you, your Honour.  May it please the Court.

HER HONOUR:   Nothing further?  Adjourn the Court.

AT 10.33 AM THE MATTERS WERE ADJOURNED