Luck v Secretary, Services Australia

Case [2025] FCAFC 26

FEDERAL COURT OF AUSTRALIA

Luck v Secretary, Services Australia [2025] FCAFC 26

Appeal from: Luck v Secretary, Services Australia [2024] FCA 1158
File number: VID 1050 of 2024
Judgment of: ROFE, HESPE AND KENNETT JJ
Date of judgment: 7 March 2025
Date of publication of reasons: 13 March 2025
Catchwords:

PRACTICE AND PROCEDURE – where appellant failed to appear at appeal hearing – whether appeal should be dismissed pursuant to r 36.75(1)(a)(i) of the Federal Court Rules 2011 (Cth)

PRACTICE AND PROCEDURE – where appellant filed interlocutory application seeking that two judges recuse themselves from determining the appeal – whether the Full Court as constituted has jurisdiction to determine the appeal

PRACTICE AND PROCEDURE – where appellant filed interlocutory application seeking stay of proceeding pending determination of recusal application – where appellant failed to appear at hearing – whether interlocutory application should be dismissed
Legislation:

Administrative Decisions (Judicial Review) Act 1977 (Cth) ss 10(2)(b)(ii), 16(1)

Disability Discrimination Act 1992 (Cth)

Federal Court of Australia Act 1976 (Cth) ss 37AO(2)(a), 37AO(2)(b), 37AR; Pt VAAA Div 2

Social Security Act 1991 (Cth)

Social Security (Administration) Act 1999 (Cth) s 63

Federal Court Rules 2011 (Cth) rr 30.02(b), 36.75
Cases cited:

Bienstein v Bienstein [2003] HCA 7; 195 ALR 225

QYFM v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2023] HCA 15; 97 ALJR 419
Division: General Division
Registry: Victoria
National Practice Area: Administrative and Constitutional Law and Human Rights
Number of paragraphs: 36
Date of hearing: 7 March 2025
Counsel for the appellant: The appellant did not appear
Counsel for the respondents: C E A Hibbard
Solicitor for the respondents: Australian Government Solicitor

ORDERS

VID 1050 of 2024
BETWEEN:

GAYE LUCK

Appellant
AND:

THE SECRETARY, SERVICES AUSTRALIA

First Respondent

COMMONWEALTH OF AUSTRALIA

Second Respondent

ORDER MADE BY:

ROFE, HESPE AND KENNETT JJ

DATE OF ORDER:

7 MARCH 2025

THE COURT NOTES THAT:

A.The appellant is to be provided notice that the Full Court intends to make orders (proposed orders) in the following terms:

1.Pursuant to s 37AO(2)(a) of the Federal Court of Australia Act 1976 (Cth) (the Act):

a.all current proceedings instituted by Ms Gaye Luck in this Court be stayed; and

b.Ms Luck be prohibited from continuing any current proceedings in this Court without making an application for leave to continue.

2.Pursuant to s 37AO(2)(b) of the Act, Ms Luck be prohibited from instituting proceedings in this Court without making an application for leave to institute proceedings in accordance with s 37AR of the Act.

3.At the time of filing any application pursuant to s 37AR of the Act, or any other application, Ms Luck pay the sum of $200 to the Registrar as security for costs, to be held by the Court in a non-interest-bearing account.

THE COURT ORDERS THAT:

1.The interlocutory application dated 13 January 2025 be dismissed.

2.Pursuant to r 36.75(1)(a) of the Federal Court Rules 2011 (Cth) (the Rules), the interlocutory application dated 6 February 2025 be dismissed.

3.Pursuant…

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AGLC
Luck v Secretary, Services Australia [2025] FCAFC 26
Case
[2025] FCAFC 26
Decision Date

CaseChat Overview and Summary

The case of Luck v Secretary, Services Australia involved Ms Luck, the appellant, who was contesting a decision made by Services Australia. The dispute was heard by the Full Court of the Federal Court of Australia, which was tasked with considering several procedural and jurisdictional issues raised by the appellant. These issues included whether the appeal should be dismissed due to the appellant's failure to appear at the hearing, whether the Full Court had the jurisdiction to hear the appeal given the recusal application, and whether the interlocutory application for a stay should proceed despite the appellant's absence.

The central legal issues the court had to address were whether the appellant's absence justified the dismissal of the appeal under rule 36.75(1)(a) of the Federal Court Rules 2011, and whether the Full Court had the jurisdiction to determine the appeal considering the recusal application made by the appellant. Additionally, the court had to consider the merits of the interlocutory application for a stay of the proceedings filed by the appellant.

In its reasoning, the court found that the appellant's former employment with the Commonwealth, which was a matter of public record and ended in 1998, did not establish a basis for the apprehension of bias. The court concluded that the appellant's arguments regarding systemic issues in judicial appointments lacked clarity and did not provide a sufficient reason to disqualify any judge from hearing the appeal. Consequently, the recusal application was dismissed. Regarding the interlocutory application, the court held that the appellant's failure to appear at the hearing warranted the dismissal of this application under rule 36.75 of the Federal Court Rules 2011. The court also dismissed the appeal itself under the same rule due to the appellant's absence.

ORDERS:
1. The interlocutory application dated 13 January 2025 is dismissed.
2. Pursuant to r 36.75(1)(a) of the Federal Court Rules 2011 (Cth), the interlocutory application dated 6 February 2025 is dismissed.
3. Pursuant to r 36.75(1)(a) of the Rules, the Notice of Appeal dated 4 October 2024 is dismissed.
4. The appellant is to pay the respondents' costs of and incidental to the appeal.
5. By 30 May 2025, the appellant must file any material upon which she intends to rely to oppose the making of the proposed orders and notify the Registry in writing whether she wishes to have an oral hearing in relation to whether the proposed orders should be made.
6. If no notification is made pursuant to order 5(b), the issue as to whether the proposed orders should be made is to be dealt with on the papers by the Full Court.
7. Any oral hearing in relation to the making of a vexatious proceedings order under Pt VAAA, Div 2 of the Act is to be listed for hearing by the Full Court on a date to be fixed following 30 May 2025.

Orders

Orders of the court

1. The interlocutory application dated 13 January 2025 be dismissed.

2. Pursuant to r 36.75(1)(a) of the Federal Court Rules 2011 (Cth) (the Rules), the interlocutory application dated 6 February 2025 be dismissed.

3. Pursuant to r 36.75(1)(a) of the Rules, the Notice of Appeal dated 4 October 2024 be dismissed.

4. The appellant pay the respondents’ costs of and incidental to the appeal.

5. On or by 30 May 2025, the appellant:

a. file any material upon which she intends to rely to oppose the making of the proposed orders; and

b. notify the Registry in writing as to whether she wishes to have an oral hearing in relation to whether the proposed orders ought to be made by the Full Court.

6. If no notification is made pursuant to order 5(b), the issue as to whether the proposed orders ought to be made be dealt with on the papers by the Full Court.

7. Any oral hearing in relation to the making of a vexatious proceedings order under Pt VAAA, Div 2 of the Act is to be listed for hearing by the Full Court on a date to be fixed following 30 May 2025.

Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

The argument appears to boil down to the fact that his Honour was formerly employed as a government lawyer for the Commonwealth (which is a party to the appeal). That employment is a matter of public record, as is the fact that it ended in 1998. It does not provide a basis upon which a fair-minded observer could apprehend that his Honour might be unable to decide the present case on its merits: Bienstein v Bienstein [2003] HCA 7; 195 ALR 225 at [33] (McHugh, Kirby and Callinan JJ).Conclusion Ms Luck’s arguments also hint at what are suggested to be “systemic” issues relating to judicial “appointments” or “assignments”. Whatever these might be, there is no explanation of how they might disqualify an individual Judge from sitting on the appeal. The underlying proposition appears to be that the court in which Ms Luck has chosen to litigate is unable to determine the proceedings brought by her. What the Court is supposed to do about this alleged problem is a mystery. There is no reason why the Court as presently constituted should not decide the appeal. Accordingly, we dismissed the recusal application.Failure to appear and dismissal under r 36.75 of the Rules Rule 36.75 provides as follows.36.75 Absence of party(1)If a party is absent when an appeal is called on for hearing, the opposing party may apply to the Court for an order that:(a) if the absent party is the appellant:(i) the appeal be dismissed; or(ii) the hearing be adjourned; or(iii) the hearing proceed only if specified steps are taken; or(b) if the absent party is the respondent:(i)the hearing proceed generally or in relation to a particular claim for relief in the appeal; or(ii) the hearing be adjourned; or(iii) the hearing proceed only if specified steps are taken.(2)If a hearing proceeds in a party's absence and during or at the conclusion of the hearing an order is made, the party who was absent may apply to the Court for an order:(a) setting aside or varying the order; and(b) for the further conduct of the hearing. On 6 February 2025 Ms Luck filed an interlocutory application seeking a stay of her own proceedings pending the determination of the recusal application and what she described as “the constitutional challenge concerning systemic judicial and executive misconduct across related proceedings” (the stay application). She was informed by email on 10 February 2025 that this application would be heard along with the substantive issues in the proceeding on 7 March 2025. Later on 10 February 2025 Ms Luck sent an email to the Registry complaining about this approach to the matter and asserting that no final hearing should occur (and she should not be expected to file submissions) until the stay application was resolved. Ms Luck’s written submissions in chief and chronology in the appeal were due on 7 February 2025. Neither was filed. On 13 February 2025 Ms Luck wrote to the CEO and Principal Registrar of the Federal Court of Australia (the CEO). Ms Luck also filed a document which was in the form of an affidavit but in substance also sought certain orders. The orders were:a.That this appeal proceeding in Luck v The Secretary, Services Australia and Anor (VID1050/2024) be stayed or adjourned until May 2025, when I will be able to progress the matter according to law and in accordance with the reasonable adjustments process.b.That no further substantive or case management orders be made in this matter until my reasonable adjustments request has been fully considered and implemented.c.That the Federal Court acknowledge its obligation under the [Disability Discrimination Act 1992 (Cth), the Convention on the Rights of Persons with Disabilities and the International Covenant on Civil and Political Rights] to provide reasonable adjustments for disabled litigants.d.That the CEO of the FCA, as the executive arm of government, determine the appropriate adjustments and notify the Court accordingly.

Ratio Decidendi

Legal Principle Established

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