Luck v Principal Officer of Department of Justice and Anor

[2013] HCATrans 165

[2013] HCATrans 165

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Melbourne       No M67 of 2013

B e t w e e n -

GAYE LUCK

Applicant

and

PRINCIPAL OFFICER OF DEPARTMENT OF JUSTICE

First Respondent

DEPARTMENT OF JUSTICE

Second Respondent

Summons

GAGELER J

TRANSCRIPT OF PROCEEDINGS

AT MELBOURNE ON MONDAY, 5 AUGUST 2013, AT 10.53 AM

Copyright in the High Court of Australia

MS R.E.V. WALSH:   I appear for the Department of Justice, your Honour.  (instructed by DLA Piper Australia)

HIS HONOUR:   Thank you.  The matter should be called three times outside the Court.

COURT OFFICER:   There will be no appearance by Ms Luck.

HIS HONOUR:   Very well.  I have before me in this matter, M67 of 2013, a summons dated 16 July 2013, an affidavit of 12 July 2013, a further affidavit of 5 August 2013 and a letter of 5 August 2013 from Ms Luck.  What I propose to do, Ms Walsh, subject to anything you might have to say, is to deal with the summons, read in that respect the two affidavits, and admit the letter into evidence as Exhibit 1.

MS WALSH:   Yes, your Honour, we consent to that.

HIS HONOUR:   I understand the position of your clients is that the application is not opposed.  Is that correct?

MS WALSH:   That is correct, your Honour.

HIS HONOUR:   Thank you, Ms Walsh.

Ms Gaye Luck sought review in the Victorian Civil and Administrative Tribunal of the refusal to grant her access under the Freedom of Information Act 1982 (Vic) to documents held by the Victorian Department of Justice. At a directions hearing before Vice President Macnamara, she refused to comply with a direction to turn off a recording device. The Vice President adjourned the hearing until she complied. The Vice President returned after a short time, but she had left the premises. Upon an ex parte application by the respondents’ counsel, the Vice President struck out the application in reliance on s 78 of the Victorian Civil and Administrative Tribunal Act 1998 (Vic) on the basis that, by refusing to comply with a direction and by leaving the hearing, Ms Luck had conducted the proceeding vexatiously.

Ms Luck sought leave to appeal to the Court of Appeal of the Supreme Court of Victoria.  The Court of Appeal was constituted for that purpose by Nettle and Ashley JJA.  Ms Luck filed written submissions, but did not attend the hearing.  Two days before the scheduled hearing, she sought an adjournment.  She referred to a proceeding that she had instituted in the Victorian Equal Opportunity and Human Rights Commission alleging discrimination by the Supreme Court of Victoria.  She also provided a letter from a general practitioner describing certain medical conditions and a need for discretion in deciding the pace and nature of the work necessary for the fulfilment of her litigation obligations.

The Court of Appeal was of the view that the general practitioner’s letter did not state that Ms Luck was unable to attend the hearing, and that even if it had, it would not have been persuasive because it was not the expert opinion of a psychiatrist.  The Court of Appeal proceeded to determine the application for leave to appeal in her absence, though having full regard to her written submissions.

The numerous proposed grounds of appeal to the Court of Appeal concerned mainly an allegation that the Tribunal lacked jurisdiction to strike out the proceeding. The Court of Appeal acknowledged that there was some doubt about the scope of the power conferred by s 78 of the Victorian Civil and Administrative Tribunal Act, and in particular, as to whether that power extended to striking out a proceeding in circumstances such as those that occurred in Ms Luck’s case.

Without deciding that issue, the Court of Appeal held that even if the Tribunal’s decision was attended by sufficient doubt to warrant a grant of leave to appeal, the decision was not productive of substantial injustice or any injustice.  It concluded that leave to appeal should be refused for that reason.  The Court of Appeal emphasised that for the Tribunal to have struck out Ms Luck’s application was not to have dismissed it, and so she could bring a fresh application.

The Court of Appeal’s decision was given on 24 May 2013.  On 14 June 2013, Ms Luck filed an application for special leave to appeal from it.  As she was unrepresented, rule 41.10 of the High Court Rules applied.  Rule 41.10.3 required her to file her written case by 12 July 2013.  In the absence of compliance with that requirement, the application for special leave to appeal was taken to be abandoned by operation of rule 41.10.4.1.

By summons dated 16 July 2013, Ms Luck sought orders for an extension of time within which to file her summaries of argument and related documents in the application for special leave to appeal from the decision of the Court of Appeal.  The summons is supported by an affidavit of 12 July 2013 in terms very similar to those filed by Ms Luck in support of summonses filed on the same day in matters Nos M65 and M66 of 2013, with which I have just now dealt.

As in those matters, I do not find it necessary to determine the adequacy of medical evidence to support the assertion of Ms Luck that she was unable to meet the timetable set by the rules because of her health.  As in those matters, the summons in form seeking an extension of time was listed for hearing before me today in circumstances where Ms Luck had previously communicated to the Registry of the High Court that she desired to have the summons dealt with “on the papers” in advance of today.

I take into account the material set out in the letter that I have admitted as Exhibit 1, being Ms Luck’s letter of 5 August 2013, and I take into account the contents of her affidavit also of 5 August 2013.  I do not accept that the letter or the affidavit disclose any sufficient basis for me not proceeding to deal today with the summons Ms Luck previously indicated she was content to be dealt with “on the papers”.

The summons is in substance an application for the reinstatement of the application for special leave to appeal that has been deemed to be abandoned.  The application is not opposed, and while it must be said that Ms Luck has moved promptly following the deemed abandonment, it must also be said that such reinstatement, if it were to occur, would be futile.

The decision of the Court of Appeal was one of discretion made in the exercise of settled principles. Its reasons for decision demonstrate an appreciation of those principles and display no error in their application. Given the way the Court of Appeal dealt with the issue, this would not be an appropriate vehicle to consider the scope of s 78 of the Victorian Civil and Administrative Tribunal Act.

No question of principle suitable for the determination of this Court is raised, nor are the interests of justice engaged in the circumstances of the particular case.  If the application for special leave to appeal were to be reinstated, it would not have realistic prospects of success.  The summons is therefore to be dismissed.

The order I make is that the summons be dismissed.

MS WALSH:   If your Honour pleases.

AT 11.04 AM THE MATTER WAS CONCLUDED