Luck v Principal Officer of Victoria Police and Anor

[2013] HCATrans 164

[2013] HCATrans 164

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Melbourne       No M65 of 2013

No M66 of 2013

B e t w e e n -

GAYE LUCK

Applicant

and

PRINCIPAL OFFICER OF VICTORIA POLICE

First Respondent

VICTORIA POLICE

Second Respondent

Summons

GAGELER J

TRANSCRIPT OF PROCEEDINGS

AT MELBOURNE ON MONDAY, 5 AUGUST 2013, AT 10.42 AM

Copyright in the High Court of Australia

HIS HONOUR:   I note that there is no appearance for either party.  The matter should be called three times outside the Court.

COURT OFFICER:   Ms Luck will not be appearing.

HIS HONOUR:   I note that there is no appearance for either party. 

In each of these matters, Nos M65/2013 and M66/2013, I have listed before me today a summons dated 16 July 2013, an affidavit of 12 July 2013, a further affidavit of 5 August 2013, and a letter from the applicant, Ms Luck, being a three‑page letter, also of 5 August 2013.  I also have before me provided by the Registry a letter dated 1 August 2013 from the Victorian Government Solicitor’s Office indicating that the first and second respondents take no position on the summonses.

I propose to proceed to deal with the summonses in the absence of an appearance by any party.  I read the affidavits to which I have referred, and I admit into evidence in the respective applications the letter from Ms Luck of 5 August 2013, which will be exhibit 1, and the letter from the Victorian Government Solicitor’s office, which will become exhibit 2.

EXHIBIT 1:   Exhibit 1……Letter from Ms G. Luck dated 5 August 2013

EXHIBIT 2:   Exhibit 2……Letter from Victorian Government Solicitor’s
   Office dated 1 August 2013

I now proceed to deal with the summonses.

Ms Gaye Luck sought access under the Freedom of Information Act 1982 (Vic) to data and records held by Victoria Police. She commenced various proceedings in the Victorian Civil and Administrative Tribunal. In one of those proceedings, the Tribunal ordered Victoria Police to process one of her requests for access to documents. In another proceeding, the Tribunal dismissed her application for review of a decision by Victoria Police to refuse access to certain documents. She sought leave to appeal from both of those decisions to the Court of Appeal of the Supreme Court of Victoria.

On 17 May 2013, the Court of Appeal constituted by Nettle and Neave JJA dismissed those applications for leave to appeal, giving one set of reasons for so doing.  What appears from those reasons is that, on the day before the applications for leave to appeal were to be heard by the Court of Appeal, Ms Luck sought an adjournment of the hearing.  She referred to a pending complaint to the Victorian Equal Opportunity and Human Rights Commission, alleging discrimination by the Supreme Court of Victoria and other parties.  She also referred to various medical symptoms which she said made her unable to appear.  She did not appear at the hearing.  The Court of Appeal noted that she had offered no medical evidence in support of her application for an adjournment, and found her absence not to be satisfactorily explained.

On 14 June 2013, Ms Luck filed applications in this Court for special leave to appeal from the decisions of the Court of Appeal dismissing her applications for leave to appeal. As she was unrepresented, rule 41.10 of the High Court Rules 2004 applied in each application. Rule 41.10.3 required her to file written cases by 12 July 2013. She failed to comply with that requirement, and each application for special leave to appeal was taken to be abandoned by operation of rule 41.10.4.1.

By summonses dated 16 July 2013, Ms Luck has sought orders for extensions of time within which to file her summaries of argument and related documents in the applications for special leave to appeal.  The summonses are supported by affidavits of 12 July 2013, in which Ms Luck deposes, amongst other things, to being unable to manage the filing of the requisite documents by reason of having been under great physical duress and suffering severe pain recently due to health problems, as evidenced by a medical certificate, to which she refers.  The adequacy of the medical evidence to support that assertion is not something I need to determine.

The summons having been listed for hearing today and that having been notified to Ms Luck, Ms Luck objects by letters I have admitted into evidence and by an affidavit of today’s date to “the summons being determined today.”  That is in circumstances where she has previously requested of a Deputy Registrar that the summonses be dealt with “on the papers” before today.  In those circumstances, I do not accept that there is shown to be sufficient reason for not proceeding to deal with the summonses today.  In particular, I do not accept that Ms Luck has been unable, in the circumstances that have occurred, to advance in support of the summonses any submissions that she wishes to place before the Court.

The two summonses are in substance applications for the reinstatement of the applications for special leave to appeal to which they relate.  The applications for reinstatement are not opposed and it must be said that Ms Luck has moved promptly following the deemed abandonment.  It is nevertheless necessary for the reinstatement to be ordered in the discretion of the Court that sufficient grounds appear for the affirmative exercise of discretion that that entails.  It must at the very least appear that the making of the order for reinstatement would have some utility.  I am not satisfied of the utility of an order for reinstatement in either of the present cases.

The Court of Appeal’s decision was one of procedure which turned on the particular facts concerning the adequacy of Ms Luck’s explanation for her non‑appearance before it.  The Court of Appeal’s reasons disclose no legal error.  No question of principle is raised.  Nor do the interests of justice commend a grant of special leave to appeal in the circumstances of the particular cases.

Were either of the applications for special leave to appeal to be reinstated, it would have no prospects of success.  Accordingly, reinstatement would in each case be futile, and will be refused.

The order that I make in each matter, M65 and M66 of 2013, is that the summonses dated 16 July 2013 be dismissed.

AT 10.53 AM THE MATTERS WERE CONCLUDED