Luck v Principal Registrar and Chief Executive Officer of the Federal Court of Australia

[2024] FCA 1161

FEDERAL COURT OF AUSTRALIA

Luck v Principal Registrar and Chief Executive Officer of the Federal Court of Australia [2024] FCA 1161

File number:	VID 870 of 2024
Judgment of:	WHEELAHAN J
Date of judgment:	26 September 2024
Date of publication of reasons:	3 October 2024
Catchwords:	PRACTICE AND PROCEDURE — application for disqualification – application refused.
Legislation:	Federal Court of Australia Act 1976 (Cth) ss 17, 17(1A)
Cases cited:	Ebner v Official Trustee in Bankruptcy [2000] HCA 63; 205 CLR 337
Division:	General Division
Registry:	Victoria
National Practice Area:	Administrative and Constitutional Law and Human Rights
Number of paragraphs:	6
Date of hearing:	26 September 2024
Counsel for the Applicant:	The applicant appeared in person

REASONS FOR JUDGMENT

VID 870 of 2024

BETWEEN:

GAYE LUCK

Applicant

AND:

PRINCIPAL REGISTRAR AND CHIEF EXECUTIVE OFFICER OF THE FEDERAL COURT OF AUSTRALIA

Respondent

WHEELAHAN J:

1. The applicant has requested written reasons for my refusal to disqualify myself from hearing this proceeding, upon the applicant making an application to that effect at a case management hearing on 26 September 2024. These are my written reasons.

2. At the case management hearing, I foreshadowed to the applicant that I proposed to fix a date for the hearing of this proceeding, together with the hearing of the applicant’s interlocutory application seeking amendment of her originating application for judicial review.

3. The applicant made a submission to the Court that the fact that people were observing the hearing by video link raised questions concerning a reasonable apprehension of bias, citing Ebner v Official Trustee in Bankruptcy [2000] HCA 63; 205 CLR 337. The applicant submitted that in order to observe the proceedings the persons had to contact my executive assistant in accordance with the notice in the daily list, which was in the usual form. The applicant submitted that this perception of bias arose because my executive assistant was “answerable” to the respondent, being the Chief Executive Officer of the Court. The applicant expressed a belief that the respondent was watching the proceeding by the video link.

4. The applicant also foreshadowed an application for summary judgment in the proceeding on the ground that the respondent had not appeared. The foundation for this application was not established, because a submitting notice had been filed, which I arranged to have printed and given to the applicant during a five-minute adjournment.

5. The applicant submitted that the Court should give her a list of the names of the persons watching the proceeding. I declined this request. Upon declining that request, the applicant submitted that I should disqualify myself. As to that application, I refused to disqualify myself. I gave short reasons stating that the Court operates according to the open justice principle, where under s 17 of the Federal Court of Australia Act1976 (Cth), proceedings are conducted in open court unless authorised by the Act or the rules. I referred also to s 17(1A) of the Act which provides that proceedings in open court include where the proceedings are accessible to members of the public by video link, and stated that members of the public are entitled to view the proceedings by video link. I concluded that the fair-minded lay observer referred to in Ebner would have no reason to think that the Court might not bring a fair and impartial mind to the resolution of this proceeding because a video link has been made available for persons to view the proceedings.

6. The application that I disqualify myself was refused, and I then proceeded to hear submissions and make orders in relation to the hearing of the proceeding and the interlocutory application, which I fixed for 9 October 2024 at 11.00 am. I also informed the applicant that on that occasion she should be prepared to address the Court as to why the proceeding should not be permanently stayed as an abuse of process.

I certify that the preceding six (6) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Wheelahan.

Associate:

Dated:       3 October 2024