Luck v Secretary, Department of Human Services (No 2)

In Luck v Secretary, Department of Human Services (No 2), the appellant sought to challenge the decision of the respondent to refuse his application for a disability support pension. The appellant, represented by his legal team, lodged an interlocutory application for the primary judge to recuse themselves due to an alleged apprehended bias. The case was heard in the Federal Court of Australia, where the primary judge dismissed the appellant's application for recusal.

The court had to decide whether a fair-minded lay observer might reasonably apprehend bias in the primary judge based on the material provided by the appellant. This involved applying the test established in Ebner v Official Trustee in Bankruptcy, which requires an assessment of whether the circumstances could give rise to a reasonable apprehension of bias in the mind of a lay observer. The court examined the material presented by the appellant and considered whether it was sufficient to establish a real danger of partiality.

After thorough examination, the court found that the material provided by the appellant did not substantiate a reasonable apprehension of bias. The court concluded that a fair-minded lay observer, having considered the matters put forward by the appellant, would not reasonably apprehend that the primary judge was biased. Accordingly, the application for recusal was dismissed.

The court dismissed paragraph 2 of the appellant's interlocutory application dated 24 July 2019, affirming that no bias could be reasonably apprehended. The entry of orders was governed by Rule 39.32 of the Federal Court Rules 2011.