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 & Ors
[2011] HCATrans 288
[2011] HCATrans 288
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 & DOCKET JUSTICE IN FCA MATTERS VID464/2008, VID476/2008, VID488/2008 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 & THE SEVENTH DEFENDANT ABOVE, & 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 APPEALS 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
Directions hearings
CRENNAN J
TRANSCRIPT OF PROCEEDINGS
AT MELBOURNE ON WEDNESDAY, 12 OCTOBER 2011, AT 10.14 AM
Copyright in the High Court of Australia
__________________
MS H.M. SYMON, SC: If your Honour pleases, I am assuming that is matter M85 of 2009 in which I appear for the sixth, seventh and ninth defendants, Centrelink, the Department of Human Services and the Commonwealth with my learned friend, MR A.J. PALMER. (instructed by Australian Government Solicitor)
HER HONOUR: It might be convenient if we call all the matters over just to take the appearances.
MS H.M. SYMON, SC: In the second matter, your Honour, M10 I appear for the Department of Human Services, who is the first respondent, with MR A.J. PALMER. In M52, which is the Centrelink matter, I appear for the respondent, Centrelink, and I appear for the third defendant, the Commonwealth, in M110, which is the Australian Human Rights Commission matter, in all matters with MR A.J. PALMER. (instructed by Australian Government Solicitor)
MR C.J. HORAN: If the Court pleases, I appear in matter No M85 of 2009 for the eighth defendant, which is the University of Southern Queensland. (instructed by Clayton Utz, Lawyers)
MR J.P. MOORE: If your Honour pleases, I appear in M85 for the nineteenth defendant, Auscript Pty Limited. (instructed by Norton Rose Australia)
HER HONOUR: Yes, thank you. I should record that in M85 of 2009 submitting appearances have been filed for the first to fourth, tenth, eleventh and sixteenth defendants and also for the fifth and eighteenth defendants and also for the twelfth to fifteenth and seventeenth defendants. In M10 of 2010, submitting appearances have been filed for the second and third respondents and in M110 of 2009, a submitting appearance has been filed for the first and second defendants. Yes, Ms Symon.
MS SYMON: Thank you, your Honour. Your Honour, there are on foot filed on behalf of my clients in each of the various proceedings summonses pursuant to rule 27.09.4 for a permanent stay of the various proceedings on the basis that they are vexatious or an abuse of process and because they fail to show a cause of action.
HER HONOUR: Yes. Now, I think I am right to recall that there have from time to time been written submissions filed which identify the arguments to be made in support of those various summonses and my request of you, Ms Symon, is this. Would you be able to give me the dates of each set of written submissions and indicate when you do the matter to which they refer?
MS SYMON: Yes, your Honour. There is a summary of argument which relates to the proceedings in M85 of 2009 and M10 of 2010 and they are dated 16 April 2010. Then there is a second summary of argument filed by my various clients which is directed to the summonses in M52 of 2009 and M110 of 2009, and that was filed 20 May 2010.
HER HONOUR: Now, when you say second, you just mean a separate summary of argument?
MS SYMON: A separate summary of argument, yes, your Honour.
HER HONOUR: Yes. Not a supplementary?
MS SYMON: No. It is directed to the ‑ ‑ ‑
HER HONOUR: To those other two matters.
MS SYMON: Yes.
HER HONOUR: Dated 20 June 2010?
MS SYMON: Dated 20 May 2010 is its filing date and it is dated the same date.
HER HONOUR: Yes, 20 May 2010. Does that exhaust the written summaries?
MS SYMON: Yes, from my clients, your Honour.
HER HONOUR: From your clients, yes. Thank you.
MS SYMON: Does your Honour want an indication of the summaries from the other parties?
HER HONOUR: In due course I will get that. They are on notice that I will be asking for them.
MS SYMON: Yes, your Honour. If I could speak to the summary of argument which deals with the M85 and M10 matter first, your Honour. The summary of argument is organised around the legal principles and so what I proposed to do was to explain to your Honour the history of the proceedings which underlie the show cause application in M85 and the removal application in M110 and that will give your Honour an understanding of and perhaps a different way of coming into the argument which one finds in the summary of argument.
HER HONOUR: Yes, thank you.
MS SYMON: Perhaps by way of background I should say that the show cause applications in each case are variously applications in relation to decisions made by, in the case of my clients at least, judges of the Federal Court and so it is important, in our submission, for your Honour to understand the nature of the decisions which are sought to be the subject of review in this Court, and indeed removal. In respect of the M85 matter, there is an affidavit of Peta Heffernan filed in support and it may be convenient for your Honour to go to appendix A and B of that affidavit which summarises the various steps in the underlying proceedings.
HER HONOUR: Just one moment. Yes, sorry, Peta Heffernan in matter number?
MS SYMON: M85, your Honour.
HER HONOUR: Thank you. What was the date of filing, Ms Symon?
MS SYMON: It is sworn 16 April 2010, your Honour. Your Honour will see at the end of the affidavit but before the exhibits there are two appendixes, A and B.
HER HONOUR: I am just still tracking it down. You will understand, Ms Symon, that the papers are voluminous.
MS SYMON: Yes, indeed, your Honour.
HER HONOUR: I have now located it.
MS SYMON: I just wonder if we have a clean copy at the Bar table.
HER HONOUR: Sorry about the time that took, but, as I say, the papers are voluminous. Yes, I have that.
MS SYMON: Thank you, your Honour. I am asking your Honour to go to appendixes A and B which are at the end of the affidavit but before the exhibits commence.
HER HONOUR: Yes, I have those.
MS SYMON: Each of the appendices summarises the steps in a different underlying proceeding. Appendix A summarises the steps in what we refer to as the Centrelink FOI proceedings and the material which is summarised in the appendix your Honour will find in paragraphs 5 to 19 of the affidavit, which I do not propose to take your Honour to. I will speak to them by reference to the appendix.
The appendix, your Honour will see, starts with a proceeding in the Social Security Appeals Tribunal. Your Honour will that from the third column, but from the affidavit your Honour will see that the story begins in 2005 when the plaintiff made an FOI application to Centrelink for access to documents and in relation to that request, there were some requests not responded to within the requested time and so under the provisions of the Freedom of Information Act there was a deemed refusal of the request for access.
So leaving that aside, the plaintiff then commenced proceedings for review of certain decisions made by Centrelink with regard to pensions and allowances in the Social Security Appeals Tribunal and your Honour will see from the appendix that there were decisions made the Social Security Appeals Tribunal in July 2007. There ensued an appeal to the AAT from that decision and in part the AAT’s decision was to remit the questions of some of the pensions and allowances back for further decision. So that is where that proceedings lies.
The plaintiff then took up the FOI application again on 28 February 2008 and sought in the AAT a review in respect of the deemed refusals from 2005 which was apparently for the purpose of obtaining evidence for the further hearing in the Social Security Appeals Tribunal.
Now, the matters which have now been carried forward were the subject of directions made by the AAT on 9 May 2008 and 13 May 2008 and those directions were that the name of Centrelink as shown on the application to the AAT for review of that FOI decision be corrected and the other matter that the AAT dealt with and which has been carried forward is that it identified the date of Centrelink’s deemed refusal for the purposes of the FOI Act. Those are the directions which were sought to be appealed by the plaintiff in an application for an extension of time to appeal which came before Justice Tracey and he refused the application on 8 October 2008, not surprisingly, holding that there was no jurisdiction to deal with any appeal because the decisions sought to be reviewed were interlocutory ones.
Nevertheless, there was an appeal to the Full Federal Court from Justice Tracey’s refusal of the application which was filed on 28 October 2008 following an application for an adjournment that was listed to be heard in the sittings in August 2009, but that was overtaken by the plaintiff’s application in this Court for removal of the appeal to the Full Federal Court. That is matter M52 which was filed on 4 June 2009, and then before that matter proceeded, this application to show cause was filed on 16 September 2009.
The application for removal, M52, your Honour will appreciate is the subject of one of the separate summonses under rule 27.09. So two of the summonses, one dealing with an application for removal of M52 and one dealing with the application to show cause in M85, find their origins in this Centrelink FOI proceeding and the purported appeal to the Full Federal Court from Justice Tracey’s decision refusing leave to appeal the interlocutory orders of the AAT.
So in relation to those matters, your Honour, we would observe that the substantive matter of the plaintiff’s eligibility for certain pensions and allowances still remains to be dealt with, so that that matter of 20 August 2007 in respect of decisions made in October 2006 and June 2007 remains to be dealt with and, indeed, the review under the Freedom of Information Act also has not proceeded. That is an application made on 28 February 2008. Instead, what the plaintiff has sought to prosecute are hopeless appeals, in our submission, from interlocutory orders made by the AAT in the FOI proceedings and on top of that, rather than pursue an appeal filed in the Full Court in respect of the matters, she has made applications to this Court, first for removal and then to show cause.
So in terms of matters we have set out in our summary of argument at paragraph 5, which we say are the sort of principle basis for stay of the proceeding on the basis that it is vexatious and an abuse of process, what we find is applications which are made entirely without merit because they concern interlocutory orders, that there has been continual delay by the filing of new proceedings before others are heard. There is the prosecution of issues which are far removed from the substantive disputes and multiple proceedings in respect of this same issue.
In addition to that, in this proceeding there have been costs orders made at every stage which are likely to remain unsatisfied. We set out the material and principles in relation to that submission in paragraphs 14 to 17 of our summary of argument relying on Ogawa v University of Melbourne which is cited there.
So that is the Centrelink FOI proceeding insofar as orders are sought in the show cause application relating to the decisions made by Justice Tracey and the decision of the Full Federal Court. M85 also concerns decisions made in what we have called the Centrelink AD(JR) proceeding and that is the subject of the summary in appendix B to Ms Heffernan’s affidavit in the M85 matter. The detail of what is summarised there your Honour finds in paragraphs 20 to 36 of Ms Heffernan’s affidavit. That proceeding begins with decisions made by Centrelink as to the manner in which the plaintiff should contact Centrelink staff.
Centrelink made three decisions in respect of the plaintiff’s contact with its staff: one on 31 July 2006 which was effective for 12 months; another on 10 August 2007 which was effective to November 2007; and a third on June 2008 which was effective to 28 August 2008 and, as your Honour will appreciate, all of those orders are now spent. The last of those Centrelink decisions was not spent when the plaintiff initiated a proceeding in this Court on 30 June 2008 seeking a review of the Centrelink decision of 28 August.
HER HONOUR: Is it 28 June?
MS SYMON: Sorry, yes. It was commenced on 30 June in the Federal Court. I am sorry, I should start that whole sentence again, your Honour. The application that was made for an order for review of the Centrelink decision was made on 30 June 2008 in the Federal Court and was listed in Justice Tracey’s docket. Your Honour sees that in the first line of the summary at appendix B. It is proceeding 488/2008.
HER HONOUR: Yes, I see.
MS SYMON: Now, his Honour made interlocutory orders on three dates which are now the matters which the plaintiff has sought to take forward. On 20 August 2008 his Honour made an order to amend the title of the proceeding and the amendment that was ordered was to remove Jeff Whalan from the composite title of the Centrelink respondent because Jeff Whalan was not relevantly the CEO of Centrelink at the time.
On 15 October 2008, his Honour Justice Tracey refused to withdraw on the plaintiff’s application and also refused leave to repeal the order removing Jeff Whalan from the composite title of the first respondent, Centrelink. On 10 December 2008, his Honour refused application which was then made for leave to appeal two earlier Centrelink decisions of July 2006 and August 2007 on the basis that they were spent. He struck out the Department of Human Services as a respondent, it not having any involvement in the decision, and made orders for costs.
The plaintiff again sought to take those matters forward by appealing the three sets of interlocutory orders made by Justice Tracey and she filed a purported appeal in the Full Court on 22 January 2009. Pending the dealing with that appeal, Justice Tracey stayed the hearing of the substantive proceedings, that is the order for review of the Centrelink decisions, and before the matter was finally determined, the Full Court dealt with and dismissed as incompetent an application that Justices Moore and Bennett recuse themselves from the Full Court hearing the matter.
Ultimately, the purported appeal was dismissed on 15 May 2009. The court noted that the purported appeal was incompetent because no leave to appeal had been sought or obtained. It dealt with the merits in any event, dismissing any application that might be found for leave to appeal on the basis that the decisions of the trial judge were not attended by sufficient doubt to warrant a grant of leave and there was no substantial injustice, your Honour recalling that the substance of what was sought to be appealed was the change in the title of the proceeding and a refusal of an application in respect of Centrelink orders which were spent.
That decision of the Full Federal Court has been the subject of an application for special leave to appeal filed in this Court on 4 June 2009. That is matter M50 of 2009 in which your Honour made orders deeming the matter to be abandoned on 20 April this year, possibly 2010, your Honour. Time moves fast. Yes, 20 April 2010. So the only matter which now remains alive in this Court is the application to show cause in M85. So, as your Honour will appreciate, that M85 application to show cause picks up the orders that the plaintiff has sought to have dealt with in both the Centrelink FOI proceeding and the Centrelink AD(JR) proceeding.
I am told that your Honour deemed the matter abandoned on 28 April 2010, not 20 April. I may not have summarised your order as accurately as I might have, your Honour, but perhaps we can leave it that the matter is now deemed abandoned as a result of the orders that your Honour made on 28 April. So that is the ‑ ‑ ‑
HER HONOUR: So that is the background to M85?
MS SYMON: M85, yes, your Honour.
HER HONOUR: And to some extent, M52?
MS SYMON: Yes, your Honour. Again we would observe, in terms of the grounds relied on in our summary of argument, that there is again an underlying substantive issue which, being the review of the Centrelink decision, remains pending. So the matters which are sought to be prosecuted are now far removed from the substantive issues in the proceeding and, of course, the Centrelink proceeding concerns a decision which is now spent in any event. So ultimately there is little or not utility in that substantive proceeding and that what is sought to be prosecuted is what we would submit are trivial matters in relation to the title of the proceeding and an attempt to seek review of the proceedings which were well and truly spent at the time the initial application to the Federal Court was filed.
If I could turn then to our second summary of argument, your Honour, and deal with the history of the matters which are the subject of the arguments set out there. Firstly, in relation to M10, which is an application for removal of an appeal to the Federal Court to this Court, in respect of M10 there is a separate affidavit filed by Ms Heffernan, which I do not propose to take your Honour to, but simply want your Honour to be aware of it.
The substantive matter which was appealed to the Federal Court was a decision of the AAT refusing review of a decision by the Department of Human Services and the decision that the Department of Human Services made was to grant the applicant access to documents as requested by her under the Freedom of Information Act. So, in our submission, the proceeding is vexatious throughout because it is pointless the applicant seeking to appeal a decision in her favour.
So M10 is a matter of fairly short compass, and that matter is dealt with in our initial summary of argument, the one of April 2010. The second summary of argument deals with M52 and M110. M52 I have already touched on, your Honour, which is the removal application in respect of interlocutory orders made in the Centrelink FOI proceeding. M110 is also the subject of a separate affidavit filed by Ms Heffernan, again I do not propose to take your Honour to it.
M110 is a show cause application whose starting point appears to be notification to the plaintiff by Centrelink that she was not eligible for a pensioner education supplement and there ensued a complaint to the Australian Human Rights Commission of discrimination which the Australian Human Rights Commission dealt with, in particular, advising the plaintiff of exemptions in the Disability Discrimination Act which permitted otherwise discriminatory provisions in the Social Security Act.
There was some further correspondence and reiteration by the Human Rights Commission that the alleged discrimination was not unlawful and, finally, termination of the plaintiff’s complaint. The plaintiff did not then take up the matter by an application to the Federal Court or the Federal Magistrates Court which she was entitled to do under the provisions of the Australian Human Rights Commission Act, but rather she has proceeded immediately to this Court with a show cause application.
So, your Honour, that is the history of the various proceedings and, as I indicated to your Honour, our summaries of argument are based around grounds on which, in our submission, the Court ought to find the proceedings vexatious and an abuse of process. They are set out at paragraph 5 of the summary of argument dealing with M85 and M10 and the same grounds, your Honour, are picked up and referred to at paragraph 6 of the M52 and M110 summary of argument. The grounds are not developed in the summary of argument and I will not rehearse them again, your Honour.
HER HONOUR: I have that in front of me, yes.
MS SYMON: Simply to run through the substance of the grounds which, in our submission, is apparent from the history that I have outlined, namely, that the applications lack merit, they are an instrument of delay, they are far removed from the underlying disputes, there are multiple applications or proceedings in respect of the same issues, costs orders are unlikely to be satisfied, the Court would, in the ordinary exercise of its discretion, refuse to issue the writs sought in the show cause applications and the proceedings are not appropriate for removal to the High Court.
If I could turn more fully to the last two of those matters, your Honour, and speak to them in the context of the show cause application, M85 of 2009, and explain to your Honour why we say no cause of action is disclosed by that matter. As your Honour will obviously be aware, the constitutional writs which are sought in the show cause application are prohibition, mandamus and injunction and the writs of certiorari are only available in the case of jurisdictional error and this Court has found that jurisdictional error includes a failure to accord natural justice.
In the M85 matter, the relief broadly sought is in respect of the performance by various judicial and quasi-judicial and administrative officers of their duties to accord procedural fairness and also apparently to comply with a variety of specified statutes. I do not know if your Honour would be assisted by going to the document itself.
HER HONOUR: Just as you please, Ms Symon.
MS SYMON: It might be simpler if I speak to it, your Honour. It is a very complicated document and perhaps it might be easier for your Honour to come to that oneself rather than – so I will speak to it rather than try and go to the specifics of it. One of the reasons a cause of action is not disclosed – and this is a small reason which I will deal with early – is that insofar as Centrelink, DHS or the Commonwealth are concerned, there is a deal of relief which does not appear to concern them, although they are named in various paragraphs and relief is sought against them.
There are a number of paragraphs which involve complaints and proceedings as to Deakin University and not my clients and so at the very least we say that there ought to be a permanent stay in regard to those paragraphs as far as my clients are concerned, and they are paragraphs (b), (c), (d), (l), (p) and (q) of the M85 show cause application.
Then if I could observe this generally, your Honour. The application generally speaks of and seeks relief requiring the proper exercise of power or the according of procedural fairness but it does so in general terms and the plaintiff does not identify any decisions which are alleged to have been made in excess of jurisdiction or in breach of the requirements of procedural fairness other than by date or the number of the court proceeding in question.
There is no particular of any way in which the various defendants are said to have acted in excess of jurisdiction. Neither is there any indication of the way in which the various defendants have failed to comply with the requirements of natural justice or to accord procedural fairness. There are no particulars of decisions which are alleged not to be in compliance with various statutes referred to.
So when your Honour comes to the document, your Honour will see there are a great many statutes referred to, in particular, human rights and disability discrimination statutes, but precisely the provisions that are relied on or how the provisions play out in the context of a show cause application is not explained. Similarly, to the extent that any decisions are identified, there is no indication of how it is suggested that they do not comply with these various statutes and, ultimately, it does not appear how any failure to not comply with a statute would constitute a jurisdictional error in any event.
As your Honour has already appreciated, the relief that is sought is in respect of either decisions from which no legal consequences flow, the prime example being the early decision to grant the applicant access to documents under FOI and the subsequent refusal of leave to appeal on appeals in respect of that matter.
The other matter which of course is relevant to the question, your Honour, is the existence of appeals which are already afoot in the Full Court of the Federal Court in the Centrelink FOI proceeding and the Federal Court proceeding in the Department of Human Services matter, which is M65 of 2020. That is a matter that concerns my learned friend, Mr Horan’s client.
The other show cause application, your Honour, is M110 of 2009 which suffers from the same defects, your Honour, so I will not rehearse them again. In relation to that matter, though, of course, it is important as well that the plaintiff failed to exercise her rights of appeal to the Federal Magistrates Court or the Federal Court of Australia in respect of the Human Rights Commission’s decision and because of the existence of the other proceedings, it is our submission that the Court would, as a matter of discretion, refuse to issue the constitutional writs which are sought and although it is a matter of discretion, we say the matter is clear.
So there are two bases on which we put the failure to show a cause of action point, your Honour, firstly, that there is no cause of action disclosed on the face of the document and, secondly, on the basis that the existence of proceedings in respect of the various matters is a clear basis upon which the Court would refuse the constitutional writs sought in any event.
Finally, your Honour, if I could say something briefly about the removal applications and the principles applicable there. We rely on the decision in Bienstein v Bienstein which is a 2003 decision of this Court, and the principles are summarised at paragraph 22 of the summary of argument in the M85 and M10 matters and repeated in the summary of argument at paragraph 7 of the M52 and M110 summary of argument, repeated by
reference back to the earlier one. The principles that one finds in the Bienstein Case indicate that these proceedings are not ones which are appropriate for removal to the High Court.
They are not appropriate for four reasons. Firstly, that removal would interfere with the process of the courts which are hearing the various appeals. Secondly, removal would deny this Court the benefit of the reasons of the lower courts. It would allow the plaintiff to bypass the special leave and leave requirements of the Judiciary Act and, as the histories indicate, your Honour, the issues raised are not sufficiently important as to require any urgent decision of this Court such as would justify coming in in favour of the proceedings which are started in the lower courts. More particularly and critically, there is no identified constitutional point in either of the show cause applications and that would be a clear reason for the application for removal to be refused.
So again, your Honour, in both those applications for removal, that is M52 of 2009 and M10 in respect of the Department of Human Services matter, there is no cause of action or to the extent that a cause of action is disclosed, it is a frivolous and vexatious one and hopeless. If your Honour pleases.
HER HONOUR: Yes, thank you, Ms Symon. Yes, Mr Horan.
MR HORAN: May it please the Court. The University of Southern Queensland moves on a summons dated 16 April 2010 and, by that summons, seeks an order to dismiss or permanently stay the proceeding M85 of 2009 insofar as it relates to the University or to Federal Court proceedings to which the University is or was a party.
HER HONOUR: You have previously filed summary of argument?
MR HORAN: Yes. There are two summaries. There is a summary of argument dated 16 April 2010 and a supplementary summary of argument dated 28 September 2011. There are two affidavits that accompany those summaries – an affidavit of Philippa Jane Mitchell sworn 16 April 2010 and an affidavit of Philippa Jane Mitchell sworn 16 September 2011.
HER HONOUR: Yes.
MR HORAN: To the extent that proceeding M85 of 2009 remains on foot following today’s hearing, the University also seeks an order under rule 21.05.1 that the University be removed as a party.
HER HONOUR: Just give me the details of that proceeding.
MR HORAN: One of the orders sought in the summons which is, to a large extent, consequential on our application for summary dismissal of the proceeding insofar as it relates to the University is also to seek an order removing the University as a party under rule 21.05.1.
HER HONOUR: Yes.
MR HORAN: Now, that assumes that some issues in the proceeding remain alive following today’s hearing.
HER HONOUR: Yes, I see.
MR HORAN: The University’s summons is directed only to the relief claimed in the application that relates to the University.
HER HONOUR: Yes, forgive me, I will just turn up the summons. Yes, thank you, I understand how the orders fit together.
MR HORAN: I should raise as preliminary issues - your Honour, there has been some correspondence that I believe has been sent to the Court and some of the parties leading up to today’s hearing in which the plaintiff, in essence, seeks that your Honour recuse yourself from the hearing of these applications and also seeks an adjournment – or a further adjournment of the hearing of these applications.
HER HONOUR: Yes.
MR HORAN: It will be necessary for your Honour, before dealing with the applications made by the defendant’s summons, to address those issues. They have not been made in a conventional form, nor supported by evidence in a proper form, but, nonetheless, they are raised in correspondence. Insofar as the matter of disqualification is concerned, I would simply note that the ground that is given in the correspondence is that your Honour should recuse yourself on the ground of what is called “actual issue bias” but no particulars are given of that contention.
I note that a similar application was made by the plaintiff previously in this proceeding and your Honour refused that similar application on 1 April 2010, which was on the hearing of an application for interlocutory relief against the Deakin defendants. The plaintiff sought leave to appeal from that ruling of your Honour and that application for leave to appeal was dismissed by Chief Justice French and Justice Bell on 16 June 2010.
Now, there have been other applications of a similar nature made, for example, in proceeding M65 of 2009, which was a special leave application. That was made and refused on 28 April 2010 and a survey of the history of these proceedings shows that at virtually every level in the Federal Court applications have been made for disqualification of the various judges, but relevantly to the present application, precisely the same issue was raised before your Honour on 1 April and that application was refused and the application for leave to appeal was dismissed. There is no indication that anything has changed since that date that would require any different outcome today.
In relation to the adjournment it is sought for similar reasons as previously in relation to the plaintiff’s medical condition and reliance is placed on medical certificates, the latest of which, I believe, is dated 23 August 2011 and which expresses the view that the plaintiff requires a further period of adjustment and recovery of a few months. It is in a similar form to the certificates that have been issued on previous occasions. The same medical issues have been raised by the plaintiff since at least mid‑2010.
The evidence of the plaintiff’s medical condition is not in a suitable form, nor is it able to be tested by the Court, and his Honour Justice Bromberg in the Federal Court dealt with a similar issue in April of this year and formed the view that the court was unable to assess, on the material before it, the prospect that the plaintiff would be in a position to prosecute the proceeding at any time in the future and, for that reason, his Honour proceeded to dismiss the notices of motion that were before him, notwithstanding similar requests and similar medical evidence that were put before the court.
Now, taking into account what, in my submission, are the clear merits of the summonses by the University and by the other defendants, there is nothing in the correspondence from the plaintiff or in the medical certificates which would warrant any further adjournment being granted in relation to the hearing of these applications.
Proceeding to the merits of the application for summary relief, the amended application for an order to show cause in M85 of 2009 largely seeks relief relating to the Federal Court proceedings against Deakin University, that is the fifth and eighteenth defendants, and that relevant proceeding is VID444/2008. Now, along the way the plaintiff has brought in a number of other parties in a number of other Federal Court proceedings and it is in that fashion that the University of Southern Queensland finds itself a defendant to the application.
I wanted to briefly go through the paragraphs of the application that concern the University and make submissions in relation to each as to why there is no cause of action shown against the University. Does your Honour have the amended application?
HER HONOUR: What is the date of that, Mr Horan?
MR HORAN: It was amended on 18 March 2010.
HER HONOUR: Yes, I have that.
MR HORAN: The first paragraph that concerns the eighth defendant is paragraph (a) of the relief claimed, which is on page 4, and that seeks an order that a number of defendants, including the University, show cause why a writ of mandamus should not be issued against various Federal Court judges and officers in relation to a number of specified proceedings in the Federal Court. Those proceedings include, as well as the proceedings which have already been mentioned by Ms Symon, the University of Southern Queensland proceedings, which are VID476/2008, VID899/2008 and VID357/2009.
Now, in essence, what this paragraph is seeking is to require the various judges who were hearing those proceedings to perform their judicial duties in accordance with the law and to accord procedural fairness to the plaintiff and, as has already been mentioned, there are no particulars given in the application of any alleged failure to perform those duties or to accord procedural fairness, nor does the application identify any particular decision or action in respect of which mandamus is sought.
The critical matter for today’s application, so far as the University is concerned, is that in relation to the two proceedings, VID476/2008 and VID899/2008, those proceedings have come to an end, both in the Federal Court and on an application for special leave to this Court.
Your Honour may recall the underlying issue in the USQ proceedings was whether or not – it arose out of a request for access to documents from the University under the FOI Acts, both in Queensland and at Commonwealth level, and the issue in those two proceedings was whether or not the AAT had jurisdiction under the Commonwealth FOI Act to review a deemed decision by the University to refuse access to the documents requested. That turned on whether or not the University was a prescribed authority and an agency for the purposes of the Commonwealth FOI Act.
Now, the proceeding was dismissed summarily by Justice Tracey on 22 October 2008 and leave to appeal was refused by the Full Court on 19 June 2009. There was then an outstanding issue in relation to taxation of costs but that was resolved on 21 April 2011 by Justice Bromberg who dismissed the notices of motion seeking review of various decisions in relation to taxation of costs.
The application for special leave which I mentioned, M65 of 2009, was for special leave from the Full Court’s refusal of leave to appeal and that was deemed abandoned on 26 May 2010 pursuant to orders made by your Honour on 28 April 2010 which required the plaintiff to file her summary of argument by that date.
Recently, on 14 September 2011, your Honour dismissed applications for removal of the matters that were before Justice Bromberg into this Court and that was in matters M8 and M9 of 2010, so those matters are now also dealt with. So there is no longer any live proceeding before the Federal Court, nor any live issue arising out of that proceeding and, in circumstances where the plaintiff has exhausted her rights under the appellate processes in the Federal Court and in this Court, it is an abuse of process, in my submission, for her to now seek further relief in the original jurisdiction of this Court and the Court would ultimately exercise a discretion to refuse to grant relief for that reason alone.
The third proceeding that concerns USQ that is mentioned in paragraph 1(a) of the application is VID357/2009. That proceeding is currently on foot before the Federal Court. It relates to an application for review of certain decisions made by the University or its officers and employees relating to an application for enrolment in a particular unit of a course. The University has objected to the competency of the application under both the AD(JR) Act and section 39B of the Judiciary Act. The proceeding has been stayed by the Federal Court pending the determination of M85 and ‑ ‑ ‑
HER HONOUR: Is that before his Honour Justice Tracey?
MR HORAN: Yes. So I think the current position is that the proceeding is on foot, but subject to that stay. In the past the University has been content to allow the proceeding to be stayed pending the resolution of this proceeding, but the University now will be seeking to discharge that stay and have the matter heard and determined and have the objection to competency brought on. But again, there is nothing in paragraph 1(a) of the application which specifies any particular aspect of those proceedings which involved a denial of natural justice or a breach of the requirements of procedural fairness and one would expect that, to the extent there was anything of that nature, it would be capable of being raised in the proceeding or on appeal in that proceeding.
So that deals with paragraph 1(a). I can be much shorter in relation to the other paragraphs that deal with the University. The second group of paragraphs that affect the University are paragraphs 1(b), 1(f) and 1(h). Now, these are directed to defendants which include the eighth defendant, the University. However, the relief that is sought, which is respectively mandamus, certiorari and prohibition, does not relate to the University nor to any proceedings to which the University is a party.
Paragraph 1(b) seeks mandamus directed to Federal Court judges and officers in relation to access by the plaintiff to her personal information record and as far as I can make sense of paragraphs 1(f) and 1(h), they seek certiorari and prohibition respectively in relation to decisions made by Federal Court judges and officers in the Deakin proceeding, VID444/2008. So that there is really no interest that the University, the eighth defendant, has and notwithstanding that those paragraphs seek to order the University to show cause why that relief should not be granted, there is really no substantive matter raised against the University in that relief.
The third group are paragraphs 1(m), 1(n) and 1(o). These seek relief against all defendants in relation to what is variously described as:
conduct which promotes further victimisation of the Plaintiff by colluding to defeat the Plaintiff’s case by unfair means.
(n)A declaration that the Plaintiff was entitled to be granted reasonable adjustments by the Defendants . . .
(o)A declaration that the Plaintiff was subjected to disability discrimination –
Now, no particulars are given of any alleged conduct of any of the defendants, but in relation to my client there is no conduct of the University which is identified as involving any alleged victimisation or disability discrimination or failure to grant reasonable adjustments to the plaintiff and, in the absence of those particulars, there is no reasonable cause of action shown by those paragraphs for relief against the University. Alternatively, in the absence of any particulars, those paragraphs are scandalous, frivolous or vexatious or an abuse of process.
Finally, there is a paragraph 1(u) which seeks a stay of a list of Federal Court proceedings, including the three proceedings I have mentioned earlier. Now, in relation to VID476 and VID899/2008, those proceedings are now completed so there is no basis on which any stay is necessary or possible.
In relation to VID357, as I mentioned, that is still on foot. It is currently stayed before the Federal Court and in due course the matter of whether or not that stay should continue will be agitated before Justice Tracey. In my submission, that is the appropriate place in which the future conduct of that proceeding should be addressed and there is no basis
on which that proceeding should be stayed by this Court, especially in connection with the High Court proceedings that are mentioned in paragraph 1(u) which, by and large, have nothing to do with the issues raised in VID357/2009.
So that is a proceeding which can proceed before the Federal Court. The plaintiff will have rights of appeal, subject to any leave requirements in relation to any decisions made by the Federal Court in that proceeding and that paragraph does not raise an arguable – or any basis on which a stay should be granted.
Now, just in conclusion, the summary of argument filed on behalf of the University makes mention of the case of Mbuzi v Hall [2010] QSC 359, paragraphs 25 to 28, where the position of an unrepresented litigant was addressed. I would respectfully adopt the observations that were made in that case which are to the effect that the plaintiff is, notwithstanding that she is unrepresented or self‑represented, required to conduct her proceedings expeditiously and should not be allowed to disregard the Rules of Court or to conduct litigation in a matter which is unjust to the other parties and contrary to the interests of justice.
In the present case these proceedings have been on foot before this Court for a substantial amount of time. Over the last 12 to 18 months no steps have been taken by the plaintiff to prosecute the matters. The time has come, from the viewpoint of the University of Southern Queensland, for its involvement in the proceeding to be brought to an end by an order under rule 27.09.4. If the Court pleases.
HER HONOUR: Yes, thank you, Mr Horan. Yes, Mr Moore.
MR MOORE: If your Honour please.
HER HONOUR: Do you have anything to say about the recusal application?
MR MOORE: Yes, I do. Your Honour, I adopt the submissions of my learned friend, Mr Horan, and make the positive submission that that application is baseless and should be rejected.
HER HONOUR: Yes. Do you have a submission to make about the adjournment application?
MR MOORE: Yes, very briefly. I, again, adopt the submissions of my learned friend, Mr Horan. Just to elaborate a little bit on one aspect of that application that Mr Horan referred to, he referred to a decision of Justice Bromberg. Might I hand up for your convenience, your Honour, a copy of that decision even though it already is exhibited to an affidavit on a court file.
HER HONOUR: Yes, very well.
MR MOORE: Thank you. Your Honour, this is the decision of Justice Bromberg on 21 April 2001 in VID899/2008. Just for the record, this precise decision and the reasons for it are exhibited to the affidavit of Sally Sheppard sworn 16 September 2011 and filed in M85. It is exhibit 26 to that affidavit.
HER HONOUR: Thank you.
MR MOORE: Can I just draw your Honour’s attention to what Justice Bromberg said in that case? Firstly, at paragraph 22 his Honour noted that the most recent certificate:
was provided by Ms Luck, again from Dr Leow. That certificate recommends a further period of adjustment –
and his Honour dealt with that certificate in paragraphs 28, 29 and 30 saying that despite a requirement to put proper evidence before the court this was not proper evidence:
are not verified. Given their number and nature, the respondent is entitled to test the veracity of the conclusions contained in them. Far more critically, and accepting the content of those certificates for the moment, the respondent and the Court needs to be put in the position of knowing what, if any, prospect there is that Ms Luck will, in the future, be in a position to prosecute these proceedings. The medical certificates make it clear that Ms Luck’s medical condition has a close connection with and is adversely affected by her need to prosecute these proceedings.
Then, going over the page, paragraph 29:
These proceedings are, according to Ms Luck’s doctor, a significant stressor upon Ms Luck. Whilst the certificates in each case provide hope that in a month or two from the date of the certificate Ms Luck will recover, that expectation does not eventuate and the impression that is left by the certificates is that Ms Luck may not be in a position to prosecute these proceedings either at all, or in the foreseeable future. The fundamental point, however, is that Ms Luck’s uncooperative conduct has failed to put the Court in the position to know what her future capacity to prosecute these proceedings truly is.
30 Prejudice to the respondent is another factor which I have taken into account. The respondent has orders for the payment of its costs, which it is entitled to pursue. In practical terms, it is precluded from doing so whilst the process by which those costs were taxed remains under challenge. That preclusion is an advantage to Ms Luck, aided by her inability to progress these proceedings.
Those observations, with respect, apply mutatis mutandis in this proceeding. The proceedings are, in my respectful submission, for reasons which I will advance and which have already been advanced by my learned friends, unmeritorious and vexatious and it is highly likely, in my submission, that any costs orders that are made by Ms Luck will go unsatisfied and costs continue to be incurred by the defendants. So for those reasons, in my respectful submission, your Honour should dismiss the application for an adjournment or a stay.
Your Honour, might I mention just one other preliminary matter. My client, Auscript Australasia Pty Ltd, is a service provider providing transcription services to the court and I am instructed that the client is in Court today providing transcription services to the Court. In the circumstances, including the unmeritorious nature of the proceedings against my client, in my respectful submission, the fact that it is in Court today as a service provider providing transcription services to the Court is no reason why this Court should not hear and determine my client’s application. Your Honour, Auscript has filed a summons in M85 of 2009. The summons is dated 2 June 2010 seeking the same relief as the University of Queensland seeks.
HER HONOUR: Shall I keep out the amended application to show cause?
MR MOORE: Yes, please, your Honour. Your Honour, the summons of Auscript is supported by an affidavit sworn by David Robin Guthrie on 2 June 2010 and a summary of argument was filed on that same date in support of the summons.
HER HONOUR: Yes, thank you.
MR MOORE: All dated 2 June 2010. Your Honour, many of the same observations that are made by my learned friend, Mr Horan, as to the amended application apply with equal force to my client’s position. Can I just flag the paragraphs of the amended application that deal with my client? They are paragraphs 1(b), 1(l) on page 9, 1(n) and (m) on page 10 and (t) at the bottom of page 10 going over to page 11.
HER HONOUR: Yes, thank you.
MR MOORE: The only paragraph in the grounds section of the application that appears to deal with my client, the nineteenth defendant, Auscript, specifically named in paragraph 2(d) on page 12 and there are some other paragraphs that mention the defendants generally – (b), (g) and (h). So none of that, not a single paragraph in the amended application gives any hint as to what act or omission by Auscript is complained about by Ms Luck. That in itself, in my respectful submission, warrants the application being dismissed.
For the assistance of the Court, Auscript has filed an affidavit setting out the history of its involvement with Ms Luck and highlighted those facts which appear to have given rise to Ms Luck’s application against Auscript. Does your Honour have a copy of Mr Guthrie’s affidavit of 2 June 2010? I have a copy that I can hand up.
HER HONOUR: Just give me a moment, I will be able to turn it up. Yes, I have that.
MR MOORE: Thank you, your Honour. The affidavit on the front page sets out the history of Auscript’s involvement in this proceeding. On 18 March, the plaintiff filed an amended application for the proceeding initially instituted in 2009 and that amended application named Auscript and paragraph 6 over the page says that:
Auscript is a private company incorporated according to law.
Paragraph 9 sets out what is obviously well known:
Auscript provides recording and transcription services to state and federal courts . . . Litigants in those courts and tribunals are able to obtain copies of transcripts from Auscript for a fee. Impecunious litigants in Federal Court proceedings are able to read transcripts of the proceedings in which they are involved at the Registry of the Federal Court.
10. Auscript has not previously been a defendant or a respondent to any action brought by the plaintiff in any court or tribunal –
although there have been, as your Honour knows, a large number of them. Then the relevant – or what appear to be suggested are relevant facts.
11. On 17 September 2009, Auscript recorded the handing down of a judgment by the Honourable Justice Marshall in a proceeding in the Federal Court of Australia, being proceeding VID 444 of 2008 between the plaintiff and Deakin University, the 5th defendant [in] the current proceeding. The judgment was Luck v Deakin University [2009] FCA 1032 and is publicly available on the Australasian Legal Information Institute website.
That is the Deakin University proceeding that your Honour has heard and it appears to be a complaint in that proceeding about Ms Luck’s dealings with the University. Following that judgment, on 21 November, the plaintiff wrote to Auscript in which she appeared to make a request for the actual recording – the audio recording ‑ ‑ ‑
HER HONOUR: Yes. These are the conversations then with Ms Trickett?
MR MOORE: Yes, and then Ms Trickett of Auscript told the plaintiff, “Well, I’m sorry, we can’t give you the audio recordings because you need to contact the Federal Court if you want to make application for the actual audio recordings” and the reason why you need to contact the court in such a situation is explained in this affidavit in paragraph 14 – it is because copyright vests immediately and exclusively in the Federal Court, so the Federal Court like most courts, if not all courts, retains exclusive control over the audio recordings of proceedings before it and decides for itself when, if ever, a litigant is entitled to the actual audio recording.
So that is what appears to us to be the background that has led to us being joined and, in my respectful submission, that background only needs to be stated for the conclusion to be reached that there is no cause of action whatsoever against Auscript and the service provider, and no legitimate complaint could be made by Ms Luck for the refusal to provide her with the audio recordings and the instruction to her to ask the Federal Court if the court was willing to release the audio recording to her.
So that then takes me to the summary of argument which I will briefly summarise. There are three grounds why the proceeding against Auscript ought to be dismissed. Firstly, this Court, in my respectful submission, does not have original jurisdiction which the plaintiff has purported to invoke under any of the Acts, the Privacy Act, the Human Rights Act and the Disability Discrimination Act. Those Acts provide for relief, if applicable, which can be made in a court, but not the High Court in its original jurisdiction. In my respectful submission, this Court does not have accrued or associated jurisdiction as well to permit an application under those Acts in the present circumstances to be joined to M85.
Secondly, as I have said, there was complete failure by Ms Luck to identify the alleged conduct of Auscript in relation to which relief is sought and to provide any particulars at all of any alleged contravention by Auscript of any of those Acts. I should say, your Honour, that the very judgment that was handed down by Justice Marshall on that date in September explained to Ms Luck that the Privacy Act only applies to agencies and the University was not an agency and, similarly, Auscript is also not an agency to which that Act applies.
Finally, for the reasons I have outlined, there is complete, in my respectful submission, want of merit in the proceeding being brought against Auscript. Your Honour, I have a form of order proposed by Auscript and if that is of assistance I could hand that up.
HER HONOUR: Yes, thank you. Did you show the minute to your learned friends?
MR MOORE: My learned friends at the Bar table, yes, have this. It reflects the summons but it does not provide for the removal of Auscript as a party. I am not sure whether that is really necessary if the proceeding is against Auscript.
HER HONOUR: Well, you would make a cognate argument to that made by Mr Horan.
MR MOORE: Yes.
HER HONOUR: That if something survives you would seek removal.
MR MOORE: Yes. Unless there are any questions, your Honour, those are my submissions.
HER HONOUR: No, thank you. Ms Symon, I wanted to, just for the sake of completion, check whether you wish to say anything about the recusal application or the adjournment application. I mean, implicitly, you have proceeded on the basis that you resist the adjournment application, but I just wanted to make an inquiry as to whether you wish to say anything specific.
MS SYMON: No, I do not seek to add anything to the submissions of our learned friend, if your Honour pleases, save to adopt them and thank them for them.
HER HONOUR: Thank you.
MS SYMON: Could I, perhaps, in relation to proposed orders, your Honour, suggest that the form – well, any orders, with respect, might appropriately be made in the same form. I notice that the summonses are in slightly different terms. Ours seeks a permanent stay. The University of Southern Queensland seeks a stay or dismissal.
HER HONOUR: I think Mr Horan’s client seeks a stay or dismissal, yes.
MS SYMON: This order is drafted in terms of a dismissal. Might I indicate that this form of order would be appropriate, in our submission,
subject to the addition of the removal of the names of any parties against whom the M85 proceeding would not proceed in the event that there are parties left. I think Deakin University would be left if each of the applications made by the parties before your Honour today were to be accepted. So it would be appropriate then to remove the names of the various parties. Insofar as that applies to the other matters in which I appear today, I would seek an order that the name of the party be removed. For example, the Commonwealth, who is the third defendant in the Australian Human Rights Commission act – it would be appropriate that the name of that party be removed leaving the Australian Human Rights Commission defendants ‑ ‑ ‑
HER HONOUR: You are referring now to some of the submitting appearances.
MS SYMON: Yes, your Honour.
HER HONOUR: Yes, thank you. I will take time to consider the submissions made. I would expect that judgment would be delivered by 2.15 tomorrow. There will be no requirement for attendance by counsel.
Adjourn the Court.
AT 11.46 AM THE MATTERS WERE ADJOURNED
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