Luck v The Deputy Registrar of the High Court of Australia and Ors

[2013] HCATrans 86

[2013] HCATrans 086

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Melbourne       No M11 of 2012

B e t w e e n -

GAYE LUCK

Plaintiff

and

THE DEPUTY REGISTRAR (RM) OF THE HIGH COURT OF AUSTRALIA – MELBOURNE OFFICE OF THE REGISTRY

First Respondent

THE ATTORNEY‑GENERAL OF THE COMMONWEALTH OF AUSTRALIA

Second Respondent

THE COMMONWEALTH OF AUSTRALIA

Third Respondent

THE DEPUTY REGISTRAR (DW) OF THE HIGH COURT OF AUSTRALIA – MELBOURNE OFFICE OF THE REGISTRY

Fourth Respondent

THE SENIOR REGISTRAR OF THE HIGH COURT OF AUSTRALIA

Fifth Respondent

THE PRINCIPAL REGISTRAR OF THE HIGH COURT OF AUSTRALIA

Sixth Respondent

Application for order to show cause

GAGELER J

TRANSCRIPT OF PROCEEDINGS

AT MELBOURNE ON TUESDAY, 23 APRIL 2013, AT 11.00 AM

Copyright in the High Court of Australia

____________________

MS G. LUCK appeared in person.

MS F.L. McKENZIE:   I appear for the second and third defendants, as the Court pleases.  (instructed by Australian Government Solicitor)

HIS HONOUR:   Thank you very much.  Ms Luck, there is before me a summons filed 22 April 2013.

MS LUCK:   Yes, sir.

HIS HONOUR:   Do you seek to proceed with that summons?

MS LUCK:   I do, but I also seek to proceed with my – that is an additional summons, your Honour.  I thought that because of the difficulties that have transpired with obtaining freedom of information through the Attorney‑General’s Office and his Department, both, and originally with the High Court but the High Court did provide me with certain documents.  I am not convinced they are all that I wanted but they were certainly the bulk of what I was requiring so anything can be done through an internal review on that matter.  But the documents that I required from the Attorney‑General were very much involved in – were required to prove considerable events that have occurred between me and the Attorney‑General’s Office or whatever.  However, your Honour, I still wish to proceed with the original application which is, I think, for today.  You received my submissions, your Honour, yesterday?

HIS HONOUR:   Yes, I have.

MS LUCK:   Look, I first of all want to apologise for the lateness of this but as you can imagine with the subpoenas, I have a subpoena, I could not get the documents I was looking for and I did want to bring this on and answer the questions that I needed to answer.  Then there was an issue which I feel is very important to bring up because it relates to you, your Honour.  The file was, according to the original directions that were given by you according to a letter I received from the Sydney Registry informing me that you had directed on 12 February that the file, the M11/12 file, was to be transferred to Sydney.

I was written a letter from the Deputy Registrar Griffin up in Sydney and anyway when I got the letter I was a bit annoyed, or surprised and annoyed because I had not had an opportunity to actually inspect the file or search it.  The file in this particular case is the evidence.  It actually contains or should contain or does not contain evidence specifically relating to the duties that have been failed by the various - one particular party defendant in this case and that was in relation to 3 February.

So the evidence that I have been trying to gather in respect of that, which I tried to obtain as you would see from the subpoenas I am seeking to be directed to the Attorney‑General that I am seeking to obtain evidence of the security which I asked for - actually requested that you make an order on 11 February when we were here last with directions but that was not addressed and I wished it had been because I would not have been subjected to all this since then. 

However, it was not happening, it did not happen, and now I am here and the subpoenas will produce that, I presume.  They are using all sorts of ridiculous delays and they are incompetent in the way they have handled the FOI application, the second defendant’s officers and Department. 

So I do not think there is going to be any joy for me in seeking to continue – I will continue with the FOI process but the documents should be, if it is necessary, if you feel it is necessary and they probably will have to be produced if you actually issue the orders that I am seeking with the evidence and whatever I have got to put before you today.  So the file contained this evidence or did not contain the evidence. 

When it was transferred to Sydney I was not happy because I wanted to inspect it.  I was notified by one of the staff in Sydney, the Registrars in Sydney, that it was transferred under your directions.  I wrote back to the person who wrote to me and asked them and I said well look, I would have liked notice and I wanted to have a look and can you send it back so that I can have a look and the next minute I know I am dealing with another – the most Senior Registrar or Deputy Registrar in the Sydney Court I believe - I do not know because I have not been there, and he was so rude and acted in the same fashion that was typical of what I experienced and why I am here today. 

He then wrote to me and told me that there were no such directions from you because I expected that there should be something written from you or some document that informed me, that gave me that as my right to inspect them.  Then I went through and there are letters in there that I actually filed with the latest affidavit which you are talking about with the subpoenas and so on that has actually got that evidence in there.

But, your Honour, look, to me with the way that it was done that – well, he told me there were no directions from you.  One Registrar told me there were.  There was nothing in writing.  Nobody produced anything.  So I see that as very misleading and a rather deceptive manner in which this file disappeared, and because it is evidence it makes it even more suspect.  I still have not seen it.  I still have not got the opportunity to have a look at what original documents are in there because I have evidence now because I also filed a recording of 3 February incident here at the Registry with the Court.  I think that it was received yesterday, and may I ask your Honour if you have read that – not read it, have you had access to that recording and heard it?

HIS HONOUR:   I have your affidavit of 19 April filed yesterday and to it is exhibited as GL07 what I believe to be either a DVD or a CD.

MS LUCK:   A CD.

HIS HONOUR:   I have not played that audio recording for the reason that it has not yet been admitted into evidence.  When it is admitted into evidence I will of course examine that.

MS LUCK:   How is that not - is that not a filed – it is a filed affidavit.  It is admitted to evidence, is it not?

HIS HONOUR:   That happens in open court.

MS LUCK:   For everything?

HIS HONOUR:   Yes.

MS LUCK:   So all the documents that I filed have no relevance whatsoever?  I cannot say that that is my evidence that I filed?

HIS HONOUR:   You can and when it is received into evidence it will be evidence before me which I will take into account in my deliberations. 

MS LUCK:   I do not understand.  I have never experienced ‑ ‑ ‑

HIS HONOUR:   Ms Luck, there are two stages.  One is that you file any documents or other real evidence upon which you propose to rely with the Registry.  The documents or other things are then physically with the Registry of the Court.  In open court in a hearing you then read affidavits - that is the technical word - you read the affidavit and you tender the exhibits and at that time they are formally in evidence before the Court and will be taken into account.

MS LUCK:   All right, thank you.  I will be doing that, sir.  So this is going to delay processes.  That is all.  But then again you may not need that, but I suspect that you will, because I could not get the evidence from the Attorney‑General.  Not only that, it was not as good as the recording, it is not as substantial as the recording evidence.  The evidence there - it shows or it does not show anything actually.  You can hear of the circumstances all quite clearly of the issues that I have actually made reference to in my submissions that I sent yesterday.

But I must say, your Honour, that it is – and this is why and I do not particularly want to play it into the Court.  I do not want to actually produce the recording to be heard in Court and I understand Ms McKenzie would object to that anyway.  As a person who is involved in the recording I do not particularly want it played in Court and I do not think anybody else involved in it would either.  But it is important to hear it as well – if you get it transcribed which is quite easy for the Court to do for your benefit, your Honour, it would not have the same impact as hearing it.

HIS HONOUR:   If it is admitted into evidence, I will be able to play it and will play it from beginning to end and take it into account.

MS LUCK:   But it will not be necessarily played in Court.  It is enough that all parties have heard it – is that correct?

HIS HONOUR:   Subject to what Ms McKenzie might have to say.

MS LUCK:   Okay, if she wants it heard or whatever, I do not mind.

HIS HONOUR:   If any evidence is admitted in Court, I will examine it either by reading it or listening to it in due course.

MS LUCK:   I do not have any objection to it being played in Court genuinely, you know, like, if it is needed.  Simply it is not something that I think is necessary given that we all have a copy, it can be heard privately and that is it, and then there are no issues involved with other people either that may be - everyone embarrassed over it.  So it does not really matter.  Okay, as long as I can get that received into evidence and you can hear it I would be very grateful.  Now, when can I get that done?  So that the first opportunity you have in the middle of whatever to listen to it because I am referring to this evidence today.  I suppose that you can do that afterwards if you make a decision based on today.  You can take it out of the Court before you make the judgment or decisions and hear it before then.  Is that correct?

HIS HONOUR:   I can reserve my decision and then I can consider all submissions and all evidence and produce a decision in due course.

MS LUCK:   Thank you, your Honour, then I will go on with what I am submitting.

HIS HONOUR:   Ms Luck, can I just understand what we are doing?  Today has been set down for a final hearing of your second amended application for an order to show cause.

MS LUCK:   That is right, your Honour.

HIS HONOUR:   Third.

MS LUCK:   I am sorry, I should have corrected you.

HIS HONOUR:   No, my associate has corrected me.

MS LUCK:   My second amended summons and the third amended application.

HIS HONOUR:   Third amended application for an order to show cause.  You have filed yesterday a summons that seeks certain procedural directions.  Now, if you want me to deal with that summons, the orderly way of dealing with it will be for me to consider that summons first before I go on to the final hearing of your third amended application for an order to show cause.  If you do not need to rely on that summons, if you do not seek the procedural orders, we can go straight to the final hearing.

MS LUCK:   I believe that – I mean, I would like those - what happens, sir, if today I put forward all my arguments, I am satisfied that I have proved to you or established that the duties were public and that the duties of the defendants were public and that they failed or refused to do them or perform them and I show to your satisfaction today – well, you might not say today but through my submissions, what happens then?  This is also one of the issues that is problematic here in my cases because - and this is what I am very concerned about because the file has gone missing with the evidence in it.  That is number one issue, and I have been misled by the Court, by the Registrars or whatever. 

Now my issue of the constitutional questions of law and the various judges who heard and been involved in decisions that are related to disability discrimination and there is only X amount left in the Court.  I understand that Justice Heydon has gone and now the previous Chief Justice of the Federal Court – I cannot recall his name – has been appointed to the High Court.  This is another problem because technically there is some rule of necessity where two Judges can sit in a Full Court.  I think Ms Musolino pointed that out to me some years ago or something and I would not mind confirmation as to whether that is correct or not.

That would then – because you were one of the three, with the new Judge come in, one of the two that were able to hear my cases.  The problem lies now with, even though – and I wish I knew his - could you please tell me the new Judge’s name, please, the one here in the Court?  He was appointed in March when Justice Heydon left, the previous Chief Justice of the Federal Court.

HIS HONOUR:   I can tell you that the Judge you are referring to is Justice Keane.

MS LUCK:   Justice Keane; thank you.  Before Justice Keane was appointed, which was only last month, there was you and Justice Kiefel – I think that is how you pronounce it; I do not know – and you two were the only two available to hear my matters because of the issues that had previously – now, when this new judge has been appointed, and these are some of the things that relate back to the Attorney‑General, who is responsible for appointing and putting forward the judges, that I had a matter in the High Court which is the subject of one of these appeals that were deemed abandoned, and that was headed with the Chief Justice as a first party, first defendant.

This was disturbing for me because I thought well, I think that my matters have been dismissed summarily, like they were, because of these other issues that are political or whatever.  I am very concerned about this issue because the Chief Justice of the Federal Court should have been on that.  But as this particular judge who is now appointed to the High Court is not the person who was the Chief Justice at that time when I had my issues with the Federal Court, he is not necessarily biased because of the fact that he was not involved.

However, his title is not a good thing.  I am going through this, your Honour, so that I can make my submissions without being afraid that the end result will be all these other issues that affect the judgments against me – judgments for me or against me; whatever they are – because of this apprehended bias, which it is, and it is actually – it has been a bit actual as well.  I do not want to go into that issue at the moment but, as I understand it ‑ ‑ ‑

HIS HONOUR:   May I just interrupt you for a moment to make clear what I am asking.  The only matter before me today is matter No M11 of 2012.

MS LUCK:   Yes, sir.

HIS HONOUR:   What has been listed for hearing today, and what I am prepared to hear on a final basis, receiving all evidence, subject to objections and reserving my decision, is the third amended application for an order to show cause.  You have filed yesterday a summons which seeks procedural directions.  The only question I am asking is whether you wish to proceed with that summons because, if you do, the orderly way of proceeding would be to deal with that first before we go on to the final hearing.

MS LUCK:   Yes, sir, I understand that, but because of these other issues – and I have actually asked for an order to deal with the constitutional questions first; clearly that is not going to happen.  But the issues remain.  I do not want to go ahead and order all these things or do this when it is just not going anywhere because there is not going to be any judges up there from the Full Court that can hear this when you issue those orders that I want.

I am not apprehending bias from you, your Honour, but I cannot help apprehending bias from the Court.  The fact that I want you to issue those orders, and I say 100 per cent I can show you why.  Now, when you issue those orders, what I am going to be faced with after that?  That is what I was getting to so that I could tell you whether I wanted to go ahead with the subpoenas.  What happens here now, after I have submitted all my submissions, made all my submissions, provided you with the evidence, pointed to it, asked you to take it – what is it called; admit it into the Court?  You have to make a decision, which I expect that you would make to show cause, to issue an order to show cause against the various parties, defendants, then what happens from there, sir?

HIS HONOUR:   I will be making final orders as a result ‑ ‑ ‑

MS LUCK:   Yes, but what is the process after you have done that?  Say you make an order to issue the ‑ ‑ ‑

HIS HONOUR:   I will either ‑ ‑ ‑

MS LUCK:   I know what orders you can make, sir.  I am asking you if you make the orders that I want, which are to issue the orders to show cause, or you can actually – I understand too that within this hearing today you can find ‑ ‑ ‑

HIS HONOUR:   I can make final orders.

MS LUCK:   Yes.

HIS HONOUR:   I would propose to make final orders one way or the other, that is, you are seeking mandamus, prohibition, certiorari and injunctions.

MS LUCK:   That is right, yes.

HIS HONOUR:   If you win, I will make one or more of those orders.  If you lose, I will dismiss the application.

MS LUCK:   So you will not be ordering – I understood if you order them to show cause that means that goes before a Full Court, yes?

HIS HONOUR:   No.  I am hearing the application today ‑ ‑ ‑

MS LUCK:   For an order to show cause.

HIS HONOUR:   ‑ ‑ ‑ on a final basis; I am hearing your application for final relief.

MS LUCK:   So I am not getting an opportunity to get an order for them to show cause.  Is that what you are saying?

HIS HONOUR:   What I am saying is ‑ ‑ ‑

MS LUCK:   Because that is not how I understand ‑ ‑ ‑

HIS HONOUR:   ‑ ‑ ‑ by a document ‑ ‑ ‑

MS LUCK:   If I want an order for them to show cause, which is what I am here for, then you have to issue that order to show cause which then means they have to come forward and before a Full Bench have to argue why they did not do what they were supposed to do.  I know that, sir.  I know that is what I expect from an order to show cause – not just to have my decision finalised here, unless you dismiss it.  I mean, you can order that the orders I sought in my summons for them not to show cause but to actually perform their duty.  You can do that, I understand, yes?

HIS HONOUR:   I do not need first to make an order to show cause.  That is made clear by the rules.

MS LUCK:   You can actually order them to perform their duty ‑ ‑ ‑

HIS HONOUR:   Correct.

MS LUCK:   Or prohibit them from doing - or quashing their orders or decisions.

HIS HONOUR:   Correct.

MS LUCK:   So you can do that from this case today.

HIS HONOUR:   That is my intention, to hear it on that basis.

MS LUCK:   All right.  I think I had better give my submissions in the substantive matter.  Is there anything to stop me, you making those orders even after I have got – no, I will go ahead with the subpoenas and get those dealt with today and the return of the file, because one way or another ‑ ‑ ‑

HIS HONOUR:   We will deal with your summons first.

MS LUCK:   Okay, the recent summons for the subpoenas and the ‑ ‑ ‑

HIS HONOUR:   We will deal with your summons first.

MS LUCK:   Right.

HIS HONOUR:   Then we will see where we are at.  So your summons ‑ ‑ ‑

MS LUCK:   I appreciate your tolerance here.  I am not familiar with this particular type of matter in that I have actually submitted it in the Court before.  I was never given an opportunity to earlier.  So I will now go to the summons of yesterday.

HIS HONOUR:   Ms Luck, may we do this again in an orderly way ‑ ‑ ‑

MS LUCK:   You take it, sir, and I will do what you say.

HIS HONOUR:   You move on your summons filed 22 April 2013 and I need to know what evidence ‑ ‑ ‑

MS LUCK:   Do you mind if I sit down, your Honour, please?

HIS HONOUR:   Please do.  I just need to identify the evidence on which you rely on that summons.  I am not talking about the substantive application; I am just talking about the orders you seek in that summons.  You have filed an affidavit of 19 April.

MS LUCK:   That is correct.

HIS HONOUR:   You filed that yesterday.  I take it that you seek to rely on that in relation to the summons?

MS LUCK:   I do, yes, but that was not – I had already written to you, your Honour, which I was told would never get to you – no letters I write, even if they are not addressed to you, to the registrars asking them to be forwarded to you.  I was told I am unable to do that.

HIS HONOUR:   So you rely on that ‑ ‑ ‑

MS LUCK:   When I put in a letter I put in numerous reasons why I wanted the Attorney‑General’s and originally the Principal Registrar’s subpoenas directed to those people, for the reasons in those letters, which they should be attached to – which is in some way the way I got to the evidence.  Unfortunately, your Honour, my mail did not arrive to the respondents and so they have not got – they have had a look and they had actually got, because I was sending copies of emails to the Attorney‑General, they have actually got the documents that I have sent to you or asked to be forwarded on to you at the Registry.  So they have been in receipt – they have not got those actual documents that I have filed.  They have had a look – I have shown them – and they can see that the material on GL08 is basically the same material as they have anyway.  So there is nothing that they do not know about.

HIS HONOUR:   All right.  In relation to your summons, you rely on your affidavit of 19 April, filed yesterday, and do I take it that you seek to tender exhibit GL07 and exhibit GL08 for me to take into account on the hearing of your summons?

MS LUCK:   The GL07, I would not expect you to need that to make the orders for the subpoenas to issue.

HIS HONOUR:   What about GL08?

MS LUCK:   GL08 without doubt, because in that there was also documents there that I asked to be forwarded to you explaining – and I am just going through to look at it now.  I do not know; I cannot recall.  Basically, your Honour, I actually talked about it before.  I can show you documents.  I had not filed them.  They were letters in regard to the freedom of information.  I just did not feel that that was essential to getting the subpoena.  I wrote to them in March, early March, under freedom of information request.

They responded eventually, nearly at the very last moment.  I had asked them in my letters that it was very important because it was in relation to the hearing of the matter and they knew that.  So they did not provide them and then they have come back and said – and I find it interesting that they say, “There’s too many documents.  It would be an unreasonable diversion of the resources of the other operations of the Attorney‑General’s Department”.

Then when I have got through that and I asked them and they said, “Well, we can have a consultation process and you can revise your thing”, I suddenly got these two huge boxes from the High Court who found that it is not that difficult – okay, it was probably a large job, but if the High Court can do it with all the cases they have here, the Attorney‑General, unless they have been talking about me and doing stuff about me for a long, long time over huge volumes of paper, they cannot possibly have anywhere near the amount; they have got a couple of hundred‑odd pages or something.  They have said, “No, we’re not going to do that now.  You can revise your request”.

So my next question to them was, “Well, can you tell me whether?” because my freedom of information request said, as it does on the subpoena, “documents in the possession of the Attorney‑General and the Department”.  So they then write back and say, “We aren’t dealing with your request”.  They had accepted it, by the way, and they had waived the fees.  So they had accepted the wording of it, which was identical, basically, to that that you have got there in the subpoenas, apart from the fact I requested it under the Freedom of Information Act and so on; it is section 15.

So they write back and they say, “Well, we’re not going to deal with that.  You should have made a separate request.  Now you can either go and do this or do this”.  I said, “Look, I’m not accepting your incompetence.  You’ve accepted this.  It says quite clearly in the office of the Attorney‑General and the Department you have an obligation anyway to transfer it”.  That is where we are at now.  I have not heard back since I wrote back and told them that.

Believe me, your Honour, I have vast experience of FOI requests and this is just the beginning of a very, very painful and horrendous process where I am never, ever going to get anywhere and I am never going to get what I am entitled to.  I have asked for personal documents, your Honour, in the same order as I have done these subpoenas and the ones that are very crucial to this matter.  The personal documents, I believe you would see that the negligence of the second defendant and his Department in actually conducting any sort of proper inquiry into my complaints, having received all the constitutional notices, notices of constitution, the issues involved in my cases that were basically stemming from, from the very word go, disability discrimination.

The second defendant’s portfolio covers human rights and in particular the Human Rights Commission Act, the Disability Discrimination Act, all of the treaties, the seven core treaties.  This role office of the second defendant had an absolute duty to have at least examined what on earth I was talking about over the years.  This is going back – and I have got evidence of it.  I have not got the best evidence which he will have, which is what I want from him.  I should not say “him” - I am sorry – from the second defendant – because there was a her as well.

So I want to get those documents to support my case.  I want them anyway for the personal documents because I want to know how they have gone so long and totally ignored and done nothing to prevent the – we are here today basically because the first law officer of Australia has failed a subject – subject A of the Queen, of the Commonwealth and an Australian citizen.  Admittedly I was not an Australian citizen until 2007 but I was a British subject and a permanent resident and I was still entitled to the protection of the law in this country and I did not get it.

So I say that this freedom of information process is going to cause me more duress and harassment and victimisation of me.  I do not believe they have got any genuine excuse and I contacted the office of the information commissioner and I spoke to a person there and asked them, look, and they already said in their freedom of information response they actually said that they were to complete it, to complete the processing of my – so they have even started the processing, they have collated all the documents. 

Now, they are going to say that for somebody to look through those couple of hundred pages, when I have got boxes from the High Court who has much less resources than the Attorney‑General’s offices, you know, I mean, I must admit that it is a big job for this High Court which does not have vast numbers of employees and so on to do this sort of work.  So I consider that to be just an obfuscation and I do not want that to continue.  I want to get the documents and I have got a feeling that this may not be finished today, your Honour, in the final hearing. 

I do not know whether we can complete everything to first of all now that I am talking about it that I do not think that – I would really like to see what I could use in a much more concrete fashion.  I say I can show that the Attorney‑General – if it was to show cause, you can make orders to one not the other though, can you not?  You can make each order, so you could ask one of them to show cause or you could order the doing duty to others.

HIS HONOUR:   Let us just take one step at a time.  At the moment I am hearing your summons.

MS LUCK:   Okay.  I just can see that if you order the subpoenas ‑ ‑ ‑

HIS HONOUR:   At the moment I am just identifying the evidence on which you rely.

MS LUCK:   Yes, okay.  Now, I can show you these documents if you would like to have a look at them, the freedom of information requests.

HIS HONOUR:   I will look at whatever is properly put before me.  Let me just deal with what I have at the moment.  I have your affidavit of 19 April.  Ms McKenzie, do you have any objection to that affidavit being read on the application constituted by the summons?

MS McKENZIE:   No, your Honour, on the understanding that Ms Luck is not seeking to tender the audio recording.

HIS HONOUR:   Not on this application.

MS McKENZIE:   Yes.  We have not been given a copy of the audio recording or nor have we received a copy of the second exhibit.  My instructor and I had a very brief look at the second exhibit and it appears to contain correspondence which we have already seen but we do not have a copy of it.  I do not object to it being ‑ ‑ ‑

HIS HONOUR:   All right.  The affidavit of 19 April is read and exhibit GL08 to that affidavit is admitted on the application constituted by the summons and marked exhibit 1 on that application. 

EXHIBIT 1:          Affidavit of 19 April and exhibit GL08 thereto.

HIS HONOUR:   Now, Ms Luck is there any other evidence you seek to place before me in relation to the summons?

MS LUCK:   I think I probably should.  I have not got copies or anything, your Honour.  I ran out of paper, I ran out of everything.

HIS HONOUR:   We will cope.

MS LUCK:   I am just looking for the last letter.  I hope I printed it off, decision‑maker.  That was 5 April, a long time ago.  I do not want to give you all – it is not relevant to the – you know, there is only a couple of things that you need.  You can have all of it but the thing is that we would have to get it copied and I do not really want to put that sort of – okay.

HIS HONOUR:   I do not want anything that is not relevant to your application.

MS LUCK:   It is relevant, it is all related to the FOI requests which is why I am asking for the subpoena and, believe me, everything that I do seems to involve numerous pieces of paper and tons and tons of writing and I am just trying to get you a copy that you can – sorry.  That is for the other one, there were two.  The second one which is the one for the security, I have not told you about that one.  That one they said – here it is.  Look, your Honour, do I need to show you the freedom of information request?  You can see the wording of that on the subpoenas.  That is the exact wording that I used.  I have got to find it but I have got here, this is one for the small one, the one for the security.  So if I can hand those up but I will need to get them back.  I suppose I do not actually but I have to get them for the other party as well.

HIS HONOUR:   You should first show them to Ms McKenzie.

MS LUCK:   I am sorry.  You probably have already got all that as the second defendant’s office.  They are just the responses to my freedom of information.  I am trying to find the freedom of information.  No, they are not.  That is what his Honour is asking you.  You had better have a quick look at them before because they are related to ‑ ‑ ‑

MS McKENZIE:   I object to these being handed up.

MS LUCK:   Why?

MS McKENZIE:   I submit, your Honour, that even though I did not object to the affidavit being tendered, I am attempting to be pragmatic about the running of this matter but I will be submitting that what is in the affidavit is not relevant and that the order sought and the summons ought not to be granted in any event, primarily on the basis that they are not relevant to the substantive application before the Court.  So, on that basis any further correspondence just being handed up loose is not going to assist.

HIS HONOUR:   So your objection is simply on the ground of relevance?

MS McKENZIE:   Yes.

HIS HONOUR:   I will receive the document to rule on the objection.

MS LUCK:   While you are looking at these I will try and find the freedom of information on the personal documents.

HIS HONOUR:   Perhaps – well, we will just ‑ ‑ ‑

MS LUCK:   These are for the security documents, the second smaller summons - subpoena.  They are responses to my request which are in the wording of what you have already got there.

HIS HONOUR:   I propose to admit these documents on the basis that they are relevant to explaining the basis on which the plaintiff seeks one of the orders sought in the summons.  There are two documents.  One is an email from GAL to Frances Brown sent 11 April 2013 at 7.32 pm.  The other is an email of two pages from Andra Eisenberg to Frances Brown of 11 April 2013 at 2.09 pm.  They will be received and together marked exhibit 2.

EXHIBIT 2:(1)  Email from GAL to Frances Brown sent 11 April 2013.

(2)  Email from Andra Eisenberg to Frances Brown of 11 April 2013.

MS LUCK:   I have got – so will I be able to get these – I can actually send them to the - the first letter there on 4 April that actually contains my original – that is a letter from them in response, my original freedom of information request.  So you can actually see that they have accepted it as such and I am going to look for more later material which is here.

HIS HONOUR:   Well, we will not do this in dribs and drabs, Ms Luck.  You find the documents you want to rely on and I will consider them.

MS LUCK:   Thank you, sorry, I am terribly sorry.  I just was not anticipating this.  Sir, I am afraid to say that I do not have the latest correspondence from – but I have enough to - it still has to go in and I can always submit the other in an affidavit later.

HIS HONOUR:   No, you cannot.  This is the opportunity to put before me anything you want me to take into account on the summons.

MS LUCK:   Well, that will do, that will have to do because I believe – I could not bring all the files I have got, I just cannot carry them and my recent correspondence.  That is the beginning of the personal information and it takes us to the point where they have extended me 14 days and they have made a further extension.

HIS HONOUR:   Would you show those documents first to Ms McKenzie?

MS LUCK:   Sorry.  It is just the ongoing correspondence.

MS McKENZIE:   Is that part of that bundle?

MS LUCK:   Yes, they are all part of this one.  The only trouble is I have not got the latest ones - but the only difference between that and – anyway, it does not matter, the fact is that they are just not giving me any – and it will give you at least proof that I have made the request, they have been rejected, they are now giving me time to revise it and so on, so that is enough to make it – it is a process that it is going through and it will also tell you why they refused it in the first place, so it is evidence sufficient.  That is all I can provide today, your Honour, but I can say that judging from – I am just so sorry, I just do not – did not think to bring the latest material.  I tried to get everything together and it just is not easy.

HIS HONOUR:   So you tender those documents?

MS LUCK:   Yes, I want them to go ‑ ‑ ‑

HIS HONOUR:   Ms McKenzie?

MS McKENZIE:   I object on the same basis.

HIS HONOUR:   I admit them on the same basis.  They will be marked exhibit 3.

EXHIBIT 3:          (1)  Email from Logan Tudor to GAL, dated 11 April 2013 at 5.17 pm.

(2)Letter from Ms Luck to the Freedom of Information decision‑maker at the Attorney‑General’s Department, 3‑5 National Circuit, Barton dated 5 April 2013.

(3)Letter from Ms Luck to the same decision‑maker, dated 4 April 2013.

(4)Email from Logan Tudor to recipient designated [email protected] sent 4 April 2013 at 10.15 am, to which is attached a letter from Logan Tudor, Legal Officer, FOI and Privacy Section, Attorney‑General’s Department to Ms Luck.  The letter is dated 4 April 2013.

MS LUCK:   Exhibit 1 was GL08, yes?

HIS HONOUR:   That is correct.

MS LUCK:   Exhibit 2 was the subpoena for security.

HIS HONOUR:   To be clear what I am marking exhibit 3, it is four documents.  One is an email from Logan Tudor to GAL, dated 11 April 2013 at 5.17 pm.  Another is a letter from Ms Luck to the Freedom of Information decision‑maker at the Attorney‑General’s Department, 3‑5 National Circuit, Barton.  The letter is dated 5 April 2013.  Another is a letter from Ms Luck to the same decision‑maker, dated 4 April 2013.  The fourth document is an email from Logan Tudor to recipient designated [email protected] sent 4 April 2013 at 10.15 am, to which is attached a letter from Logan Tudor, Legal Officer, FOI and Privacy Section, Attorney‑General’s Department to Ms Luck.  The letter is dated 4 April 2013.

MS LUCK:   Sir, could I say something?  If there is anything on the back of those letters, because I ran out of paper, if there is anything on the back of those documents ‑ ‑ ‑

HIS HONOUR:   We will have the exhibit marked and it will be handed back ‑ ‑ ‑

MS LUCK:   On the front copies – on the front pages only, please.

HIS HONOUR:   There will be just one sticker marking the exhibit.

MS LUCK:   They are my documents, sir, I need copies of those, so I need those back.

HIS HONOUR:   It will then be handed back to you so that you can inspect it.

MS LUCK:   Okay.  Your Honour, actually, I think that we need to admit that recording because in that recording the security officers – which is related to these subpoenas - that is the first one that I gave you, the first exhibit, exhibit No 2, that subpoena that I am seeking for that one relates to the recording where the security officers – one of them actually spoke to me and made commentary about the situation, and if you are going to make subpoenas – anyway, I just wanted to tell you that, that there is evidence on that recording and I do believe that it should be admitted to show that that is substantially one of the reasons why I want the information and the subpoena from the Attorney‑General, because the recording ‑ ‑ ‑

HIS HONOUR:   You seek on the application constituted by the summons to tender GL07?

MS LUCK:   GL07 as well, yes, because it relates to – two security guards were called and this is information and actual documentation.  I have actually got High Court footage of them, but that is footage only, and so ‑ ‑ ‑

HIS HONOUR:   All right.  You are seeking ‑ ‑ ‑

MS LUCK:   ‑ ‑ ‑ it is relevant to the – it is relevant to all issues here.

HIS HONOUR:   You are seeking to tender GL07?

MS LUCK:   Yes, please.  I can – and they should get a copy in the mail today, but they say they have got it ‑ ‑ ‑

HIS HONOUR:   Ms McKenzie, this is sought to be tendered simply on the application, the interlocutory application, constituted by the summons.

MS McKENZIE:   Yes, I submit, your Honour, that the plaintiff has not established how the audio recording relates to any of the orders sought on the summons.  Other than that I have not heard the audio recording and I would object on the basis that I do not know what is in it.  I cannot inspect it.  I believe it goes for at least an hour.

MS LUCK:   It is a lot of nothing in it too because there was not something – no dialogue or anything, but it definitely ‑ ‑ ‑

HIS HONOUR:   Ms Luck, you will get your chance.

MS LUCK:   Sorry, I do not mean to interrupt.

MS McKENZIE:   So I cannot make any submission based on the contents of it other than what Ms Luck is submitting it will be useful for, and on that basis ‑ ‑ ‑

HIS HONOUR:   Your point is simply that you do not have adequate notice?

MS McKENZIE:   Yes.

HIS HONOUR:   Ms Luck, do you need, for the purposes of this application, to establish anything more than the fact of the audio recording?

MS LUCK:   No, sir, that would be fine, and that I have – it is noted that that I have claimed that there is evidence in there that relates to this particular subpoena.

HIS HONOUR:   Thank you.  That is sufficiently established by the paragraph of your affidavit that refers to the existence of the audio recording.

MS LUCK:   Thank you.

HIS HONOUR:   You do not need to tender GL07 to establish the existence of the audio recording.

MS LUCK:   Okay.

HIS HONOUR:   Now, is there anything else you wish ‑ ‑ ‑

MS LUCK:   So that is not admitted?

HIS HONOUR:   No, but the fact of the audio recording is evidence before me.

MS LUCK:   I think that, your Honour, apart from me speaking about it ‑ ‑ ‑

HIS HONOUR:   Of course.

MS LUCK:   ‑ ‑ ‑ there is not really much – I cannot prove that I need it except that I have not – as to the seriousness of this matter ‑ ‑ ‑

HIS HONOUR:   You will get an opportunity in a moment.

MS LUCK:   I see.  I thought you were asking me if there was anything more.

HIS HONOUR:   I am asking you if there is anything more.  You can tell me in your own words.

MS LUCK:   Not physical material at this stage, your Honour.

HIS HONOUR:   Thank you.

MS LUCK:   I cannot think of any.

HIS HONOUR:   There are the two draft subpoenas that are on the file.  They should be marked.  I will mark the – or admit them into evidence for the purposes of this application.  The draft subpoena of four pages addressed to the Attorney‑General of the Commonwealth will be exhibit 4.

EXHIBIT 4:         Draft subpoena, four pages, addressed to Attorney‑General of the Commonwealth.

HIS HONOUR:   The draft subpoena of two pages will be exhibit 5.

EXHIBIT 5:          Draft subpoena, two pages.

HIS HONOUR:   Ms McKenzie, do you have any evidence you wish to place before me in relation to the summons?

MS McKENZIE:   No, your Honour.

HIS HONOUR:   Thank you.  Ms Luck, are you ready now to make any submissions you wish to make to me in support of the orders sought in the summons?

MS LUCK:   Your Honour, as usual, I have been seeking to be relieved from compliance with the rules as a reasonable adjustment pursuant to the Disability Discrimination Act as a person with disabilities and the United Nations Convention on the Rights of Persons with Disabilities, and I have provided to the Court on numerous occasions, and can direct you to it within the documents that are filed already - would you like me to do that, sir?  The medical certificates, which I do not – and that is something I would like to establish at the very beginning of this hearing, and it was dealt with by Justice Crennan in a previous one, is that where any necessity to name medical persons or practitioners or anything to do with any of my disabilities should not be published, your Honour.  They are personal information that is not necessary to be, you know, published in transcripts or whatever, so could you please make an order for that for this whole – for any of this matter?

HIS HONOUR:   If it arises, I will.  There is no evidence before me on this application of that nature.

MS LUCK:   No, well, I am just going to point to it, that is why – that is why I am bringing it up, because my first order there is seeking compliance – relief from compliance with the rules based on my rights under the Disability Discrimination Act and the United Nations Convention on the Rights of Persons with Disabilities, and wherever the time may be needed to extend or I am physically not capable of doing something or I need to use my digital note taker which I am using, your Honour, I need to have those reasonable adjustments granted to me.

So that is why when I make an order sought that is what I have to do, I have to see this every time because nobody has ever made a decision in the High Court, and I am talking about procedurally in the Registry by the – because basically the Executive Officer, the Chief Executive Officer, or the Principal Registrar should have made a decision and granted me those things from the first day that I requested them and that has not occurred.

So because that has not occurred and I now want to point to something that is related to my medical details that are personal and sensitive information, your Honour, according to the Privacy Act, I would like to make sure that when that is pointed to if you need me to – any further details ever in this case, which is inevitable because there is disability discrimination issues throughout the case, it is important that you make that order. 

I cannot recall what it is called, but Justice Crennan made it in – it may be even in those documents you gave me today.  Is that – no, it would have been in earlier – you see, I was not at that hearing; that was one of the things she did.  She made it in the matters of – it would have been in the matters heard – I cannot remember when, but M65 of 2009, M85 of 2009 ‑ ‑ ‑

HIS HONOUR:   Are you looking at the document now that records the order?

MS LUCK:   I was given this by the defendants, and it is just a document with various names of the cases that were decisions relating to this, but they are not in actual fact relating to this.  This case is nothing to do with those decisions, it is do with the deemed abandonment of the notices of appeal on those decisions.  Anyway, she made an order to the public or to whoever was listening or to the journalists, if anyone is taking any notes or anything, and also in the transcript, was not published, any of these personal details about my illnesses or about the doctor’s names and so on.

So I would ask that you make an order like that because I am going to point to medical certificates that I have used in this and that supports – you asked me if I have got any evidence to support the first – or the orders I am just about to show you so I have to ask you about that.  I do not know what the name of the order is called.  Is it a – I do not know, but she said to – that it should not go out, that should not be published, those particular details.  So I am pointing to medical certificates and – so can you make that order, your Honour, before I tell you about this because this also relates to the whole case in general?

HIS HONOUR:   You have not tendered to me on this application any medical certificates.

MS LUCK:   I am pointing to them, they have been filed, and there is some – they are in here, in the court book.

HIS HONOUR:   We have just been through this.  We are dealing with your summons first and you have identified for me the material you want me to take into account on your summons.

MS LUCK:   Well, I want you to take this into account, your Honour.

HIS HONOUR:   You want to tender further evidence in respect of the summons?

MS LUCK:   Well, I do not know what it is called, but I know I want to point to these medical certificates that support my first order, if you would not mind.

HIS HONOUR:   All right.

MS LUCK:   They have already been tendered.  They have been tendered 15 million times – that is an exaggeration – and they have been tendered not only that by – they have been tendered in a court book that is convenient and why I brought the court book because it is much more convenient than trying to drag all my files which are huge big arch files and so on.  So if I can refer you to this as tendering the evidence ‑ ‑ ‑

HIS HONOUR:   If you identify them first ‑ ‑ ‑

MS LUCK:   I will, but can you make the order that you are not going to – that it should not be published because I do not want my doctors’ names or this particular material to be released?  It is totally ‑ ‑ ‑

HIS HONOUR:   Identify them for me, please, first?

MS LUCK:   They are related to a certificate of identifying exhibit.

MS McKENZIE:   May I interrupt, your Honour?

HIS HONOUR:   Go ahead.

MS McKENZIE:   It might assist on this point.  The first order sought in the summons is that your Honour’s directions made on 11 February for the time for filing of affidavits and submissions be extended.

HIS HONOUR:   Yes.

MS McKENZIE:   Ms Luck has filed some affidavit material that your Honour has already heard about and submissions were I think filed yesterday.  I do not object to those submissions being filed late and so I do not think there is any order necessary in relation to order 1, certainly not medical evidence required in relation to that.  I do not think there is anything else Ms Luck has filed that was not in accordance with your Honour’s directions or that was late, and given that this is final hearing, if she is seeking to file anything after today I would object to that.

HIS HONOUR:   Thank you.  Ms Luck, you have heard what Ms McKenzie has to say.  Are you seeking to file anything that has not already been filed?

MS LUCK:   Well, I do not know, your Honour.  I cannot say that at this stage.  I do not think this hearing will be over today.  I mean, there is no point going through this subpoena process and getting the documents if we cannot adjourn it after we have got enough or whatever to do.  I do not understand what is going on, you know.  I mean, I appreciate that I asked for the subpoenas but I did not anticipate that you were going to make a decision today and I actually assumed that there would be – I want the orders to show cause made because I do not think, sir, with all due respect, that you can make a decision based on the evidence that is there at the moment that they could provide. 

If I put all my submissions through – I do not know.  Look, your Honour, I do not know whether I want to file anything.  By the end of the day we might not have finished and I may say to you and you may even agree that if there is something that I have got at home that may be helpful that I have not brought in because I have got – only got two hands and one bag and a crippled body actually.  I mean, it may not look like it to you but I can tell you I am in a lot of pain a lot of the time and I do not want to explain away why I have not got documents.  It is pretty obvious I do not have a huge office with humungous amounts of people working and filing and photocopying.  I do all this, me, and I tell you what.  Anyway, it does not matter.  I just do not know, I cannot say.

HIS HONOUR:   It is entirely a matter for you.  If you want to put before me on this application a medical certificate and to seek a non‑publication order in respect of that medical certificate you can make that application.

MS LUCK:   Thank you, I am doing it, because that begins the whole thing knowing that we can then discuss any of these issues which may be discussed without me fearing that I am going to have my whole world exposed.

HIS HONOUR:   First, you should point me to the document.

MS LUCK:   The document is a certificate of identifying exhibit with an affidavit related to the date of – that is the one, and it is also relevant to this matter, of course – 25 May the affidavit is dated and it is on pages 228 and goes through to 239, and there are several medical certificates there.  So from here on I can speak about this or if you want me to ask any - I do not need to.

HIS HONOUR:   No, let us do this formally like we have done the rest of it.

MS LUCK:   Yes, okay.

HIS HONOUR:   If you want the medical certificate before me, tender the medical certificate and ask for a non‑publication order.

MS LUCK:   Sir, I wish to tender pages 228 to 239 of the defendant’s court book which is under tab 6 which was an affidavit – it looks as though they have not got sworn ones in there but they were sworn – 17 February and there was an exhibit with GL03 which occurred on 17 February 2012 and this comes into that in M11/12.

HIS HONOUR:   All right, I am looking ‑ ‑ ‑

MS LUCK:   So that exhibit GL03 ‑ ‑ ‑

HIS HONOUR:   Do you want to tender exhibit GL03?

MS LUCK:   Well, yes.

HIS HONOUR:   Where do I find that?

MS LUCK:   The whole of GL03 is under tab 6, page 163 with the affidavit through to 239.  So I have to really tender all this?  So is that what I am supposed to be doing now because it is all relevant?  Yes sir, I will tender them.

HIS HONOUR:   Thank you.

MS LUCK:   So rather than you put that down, I will start with 1 and 2 and 3 and 4 and 5 and 6.

HIS HONOUR:   Just wait a moment, please.  You are seeking to tender what I think are two things.  One is exhibit GL03 which goes from pages 223 through to ‑ ‑ ‑

MS LUCK:   No, no, sorry, your Honour.  GL03 in this matter is - with the affidavit is in tab 6 and it goes from 163 through to 239 and that is a lot of documentation which is actually referred to in the ‑ ‑ ‑

HIS HONOUR:   The affidavit or the draft affidavit that appears in the court book of 17 February appears not to have been sworn.

MS LUCK:   It was sworn, your Honour, and I do not know how this happened actually, how they got those documents but I can assure you they were sworn and I will produce them.

HIS HONOUR:   There is a document on the file which is an affidavit of 1 March which appears to be in identical terms.  So it appears that the – it may be that the document appearing in the court book at page 163 was not sworn on 17 February ‑ ‑ ‑

MS LUCK:   There it is.  No, I have not got it here.

HIS HONOUR:   ‑ ‑ ‑ but it was sworn on 1 March.

MS LUCK:   I relied on theirs and I know that I swore that.  I believe that – I would say that it was sworn on – but I cannot say, but anyway it is a draft one for the moment.

HIS HONOUR:   Well no, I am going to admit something into evidence if you want to have evidence before me of your medical condition.

MS LUCK:   Okay, we will only get the one at the end.

HIS HONOUR:   We will admit only a final ‑ ‑ ‑

MS LUCK:   On the original – what I was going to do, yes.

HIS HONOUR:   ‑ ‑ ‑ affidavit or an original exhibit.

MS LUCK:   No, we will go from page 228 to 239 and that is the affidavit - sworn affidavit of 26 May 2010 and do you want to do them separately or both together, the affidavit with the certificate of identifying exhibit as one exhibit?

HIS HONOUR:   Well, you have the affidavit as ‑ ‑ ‑

MS LUCK:   That was altogether, that was GL05 in M50.

HIS HONOUR:   My practice is to read affidavits and to admit exhibits.  It may sound formal, but that is the way we do it.

MS LUCK:   What do I say to you?  That I want to read my affidavit and admit my exhibit?

HIS HONOUR:   You want to read your affidavit of – GL05, yes.

MS LUCK:   I would like to do that on pages 228 to 239, please.

HIS HONOUR:   Thank you, Ms Luck.  You seek to have it admitted on the basis that this is evidence of your medical condition which you say is relevant to the reasonable adjustment you seek under order 1 of the summons?

MS LUCK:   That is correct.

HIS HONOUR:   Ms McKenzie?

MS McKENZIE:   I do not object.

HIS HONOUR:   Thank you.  I read the affidavit of Ms Luck of 25 May 2010 and I admit exhibit GL05 which will be given the marking exhibit ‑ ‑ ‑

MS LUCK:   Your Honour, that is of matter M50.  That is in another matter.

HIS HONOUR:   I am sorry.

MS LUCK:   That is all right.  It was just a medical certificate used ‑ ‑ ‑

HIS HONOUR:   Thank you so much.  What I will do then is I will admit that affidavit as an exhibit in these proceedings.  Thank you.  So I do not read the affidavit of 25 May 2010.  I admit that as an exhibit in these proceedings.  Thank you, Ms Luck.  It will be given the marking exhibit 6 and the exhibit to that affidavit will be treated as part of exhibit 6. 

EXHIBIT 6:          Affidavit of 25 May 2012 and exhibit to that affidavit.

HIS HONOUR:   I understand that you seek an order that the contents not be published, is that correct, insofar as they refer to the detail of your medical condition?

MS LUCK:   Yes, your Honour, in anything to do with my medical information regarding my doctors’ names or addresses or anything to do with them or me in regard to my disabilities be expunged. 

HIS HONOUR:   I am not sure we would go so far as anything to do with your disabilities.

MS LUCK:   No, no.  Perhaps if I am talking about it, your Honour, and it is a necessity, I can actually say to you well, I would prefer that you would put that order on that if I do not like it.

HIS HONOUR:   Let us do it that way.

MS LUCK:   No ‑ ‑ ‑

HIS HONOUR:   If it occurs to you that there is particular information ‑ ‑ ‑

MS LUCK:   Perhaps you should tell me when you think it would be appropriate to publish it and if I say no, we can discuss it then, and leave it that the disability ‑ ‑ ‑

HIS HONOUR:   We will make no order for the moment.  You have liberty to apply for an order if you so choose.

MS LUCK:   Okay.  So you are accepting that now as - the thing is ‑ ‑ ‑

HIS HONOUR:   It is an exhibit before the Court.

MS LUCK:   Are you satisfied with that for the purposes of that, because otherwise you may want to discuss it because that is what it says ‑ ‑ ‑

HIS HONOUR:   I can read it.

MS LUCK:   Okay.  So the next thing is when it comes to the direction or order to be made to return the file in this matter, I refer to GL08 and all the documents in that and also, then here again, this is very important because I need to look in that file to see what is – the only trouble is, your Honour, I want to admit this into evidence, but it is the whole thing which gives you - this is actually what was actually on - the day that it was happening on 3 February 2012.  This is what I was filing in that particular - the issue in relation to the fourth defendant.  I put it together afterwards. 

I served this on the respondents, the same documents.  I then sent this by Platinum Express Post to the High Court of Australia – it has got the number on here and everything – on the sixth of the second, which was the day after.  It is pages 1 to 196 and it is tabbed to show how the thing should have looked when it was put.  If the first defendant had been doing it, it would have been in this order properly, but it was very stressful and the whole thing was a shemozzle.  But anyway, that then we sent back.  I sent this with a letter covering it and an index.  That document – the whole thing – was sent back and I have actually, in evidence here, that I would like to admit, that was actually the persons in the office when they got this took copies of it and ‑ ‑ ‑

HIS HONOUR:   Just explain to me what paragraph of your summons you are addressing now.

MS LUCK:   The order to return the file from Sydney to Melbourne.  I am sorry - paragraph 2.

HIS HONOUR:   Paragraph 2; thank you.  You are aware that the file is in Court at the moment?

MS LUCK:   No, I was not, but I imagined it would be.  I will try and have a look.  I do not know whether I am going to be in any fit state after this to have a look and to deal with the people here.  There are a lot of issues that just need addressing before I go looking at the file at the moment.

HIS HONOUR:   I understand that you are telling me that you need to look at the file ‑ ‑ ‑

MS LUCK:   Yes.  But that is not relevant.  That I can look at, but if it is left in Melbourne – I do not care how you do it; I do not care whether you order it to be transferred back.  If there was no direction in the first place then probably it would be just left here, but then again ‑ ‑ ‑

HIS HONOUR:   I understand what you are trying to say.

MS LUCK:   But then again if you are going to be - I do not know when the next time this is going to be - if we are going to finish today and if we do not finish today then you will need it anyway.  So there are a lot of things.  I am not concerned about that; I am concerned about the fact that I may need to admit this and it might be reasonable, if we do not finish today and then we come back next time, I do it.  That is why I said I do not know what is going to happen today, whether I can admit any after today, because it may not be finished today and I am tipping it will not be, just knowing how much time there is and the things that need to be gone through.  This is a complex case.  There are numerous defendants; there is numerous evidence to be admitted.

HIS HONOUR:   We are dealing with your summons and I understand what you are asking me for in paragraph 2.

MS LUCK:   Yes, so this particular document was sent back to me and I have information in here that indicates that although they sent it back and said, “We’ve got what we want and we’ve got what was filed” they have actually copied off the index that I provided and made some comments and marks on it.  Now, that is another thing.  This document here is mine.  It is a document that belongs to me.  When it is not filed in the Court they are not allowed to touch it or take copies of it.  When I go to the Registry and I hand over a document and they take it out the back to decide whether they are going to accept it or not for filing, they have no right to make any copies of it; it is copyright to me then.  It is only when the Court actually receives it, files it, stamps it and does everything else that they have a right to touch it.

MS LUCK:   You did not dismiss my summons, did you?  Excuse me?

HIS HONOUR:   The issue of subpoenas.  If you are asking me ‑ ‑ ‑

MS LUCK:   Excuse me, did you dismiss my summons, your Honour?

HIS HONOUR:   I dismissed your summons.

MS LUCK:   Right.  I am seeking an adjournment.  Thank you very much.  I will come back to the Court when I have got the evidence.  Perhaps if you do not like the way that I cannot tell you a date, perhaps you could ask the defendant’s lawyers when they are going to produce my freedom of information because then you can make a date for me, and that is it.  I cannot stand any more of this, it is making me so ill, so you would like – your Honour, you please question them as to when they think they might get the FOI information.  If they are not able to tell you, then you can make any date you like and it will be when it gets there, I will get there.

HIS HONOUR:   Ms McKenzie, you have heard what has transpired.

MS McKENZIE:   Yes, your Honour.

HIS HONOUR:   There will need to be an adjournment, but the proceedings need to be brought to a conclusion on an adjourned date.

MS LUCK:   I would like an application for an order to show cause to be heard properly and to have the opportunity to have them show cause.  So do not make a final date please, your Honour, because that is unfair, it is prejudgment and it is inappropriate.  Thank you.

HIS HONOUR:   Ms McKenzie, what I am inclined to do, subject to any submissions you may wish to put and anything further Ms Luck may have to say, is adjourn the principal proceeding for a relatively short period, and Ms Luck will need to make a decision as to whether or not she will pursue the application on a final basis at the resumption of the hearing, and you perhaps will need to consider your position in the event that she chooses not to proceed.

MS LUCK:   I will be proceeding, your Honour, whenever.  I will not have you dismiss this case, which is precisely what is going to happen anyway, but you are not going to dismiss it without having heard the evidence and seen and done everything that is appropriate in the case.  I am just absolutely staggered that this can go on in a high court of a country.

HIS HONOUR:   Now, do you wish to put anything to me in relation to the process that should be followed?

MS McKENZIE:   Yes, your Honour, I oppose the adjournment request on the basis that Ms Luck has had ample time to obtain evidence that she might require for this case and on the basis that the evidence as it is does not disclose a cause of action for the reasons set out in my submissions, and that the evidence will – she is relying on the subpoena that your Honour has already ruled on and it is clear that that was a fishing expedition, in my submission, so there is not a particular document or piece of information that Ms Luck has identified that relates to a claim which is a cause of action.  So I oppose it on that basis.

HIS HONOUR:   Yes.  Ms Luck, is there anything further you wish to say?

MS LUCK:   Yes, your Honour, I cannot come again till July and by that time – that is one, two – maybe June, late June, but that gives the second defendant plenty of time to produce results on the freedom of information matters that are not fishing expeditions - they are rights, ma’am, that I have, as I have a right for his Honour to make those orders to get the subpoenaed documents so that this case can be heard properly and ‑ ‑ ‑

HIS HONOUR:   Why can you not come again until July?

MS LUCK:   Because I cannot, I have got too many other matters happening, and I am exhausted and I am sick.  I can come – if you go from 17 June – no ‑ from 17 June onwards would be all right.  Well, I have got to give them time to send the documents because I told you before, your Honour, the process they do to me and the things they inflict on me to give me what I am entitled to is disgusting and it never ends, and I will end up in the information commissioners, and how long do you think that is going to take, your Honour?  Instead, you could order them, you could order these subpoenas to be issued and that would be the end of the story and we would not be delaying it one day, your Honour.  I cannot understand why you cannot do that ‑ ‑ ‑

HIS HONOUR:   I am sorry, Ms Luck, are you telling me that you are able to proceed today?

MS LUCK:   No.  If you ordered the subpoenas I would be able to proceed today because I would not be feeling this disgusting, gut‑wrenching distaste of this place, and if you ordered the subpoenas I will manage to collect my thoughts and then give you all that you need so that I can then – at a later date we can come back for a short finish‑off period or something if you are not satisfied with the evidence I produce, but I am not taking the risk at the end of this day that you will not take into account all the evidence that I can produce in regard to criminal matters that I am a victim of, and that is the problem, your Honour.

If you were in a criminal court now you could not refuse me those subpoenas, and that is what I am saying, is that this is irregular, that you are not ordering those subpoenas, and I have given you an opportunity to do it again.  I have cited the Crimes Act, I will cite the actual sections if you like, and I can point to the document, show you that until I get that evidence from those people that witnessed it you can say anything you like.  That person out there in the office, she can tell as many lies as she likes and tell the false witnesses – bear false witness to everything, which she has done, and I cannot do anything about it because the file has probably been completely and utterly interfered with now and I would like my documents – copies of those documents back and I want the original affidavit too.  That was not to be submitted, they were only for making copies for the Court, your Honour, in the exhibits.  I needed those documents.  They were the only documents I have.  I did not have copies ‑ ‑ ‑

HIS HONOUR:   Ms Luck, let us deal with the application for ‑ ‑ ‑

MS LUCK:   I make it after 17 June, I will arrange another hearing, and then at that date if it is not correct or things are not right or I am ill or anything can happen between then – perhaps there should be some other way of dealing with it.  This will be dismissed if I do not seek to bring evidence ‑ ‑ ‑

HIS HONOUR:   We could accommodate 17 June.

MS LUCK:   After 10.30, your Honour, please.  And again I make a request to have those documents ready for me when I leave here today.  I cannot go without them.  I need to see that I got the documents back that I gave to you – copies – the copies that you are going to take from them or the staff.  Now, that is another problem, I cannot go out there and deal with these people but I have to, and I should never have ever had to come back and deal with people who have done these things to me.  And then having written to the Principal Registrar, asking him to make appropriate arrangements, still there was nothing.  I am inflicted with this every time I come here, and they are the people looking at those documents.  This is insane.  You are taking into evidence, your Honour, that you will not allow me to get separately or outside and you are putting it with the already tainted, tampered with evidence in the file and giving the people who tampered with it the opportunity to continue tampering with it.

HIS HONOUR:   You are asking for the return of the documents that have not been filed but which you tendered on the ‑ ‑ ‑

MS LUCK:   Exhibits.

HIS HONOUR:   ‑ ‑ ‑ application today.

MS LUCK:   So all those now are going to be useless, are they, because you dismissed the summons?

HIS HONOUR:   You are asking for the return of what I think are exhibits ‑ ‑ ‑

MS LUCK:   No, just a minute, your Honour.

HIS HONOUR:   Two, three ‑ ‑ ‑

MS LUCK:   I admitted them into evidence.  I wasted a lot of time doing this.  Now, because you – on that summons, with that affidavit, correct?

HIS HONOUR:   I am asking what you are asking for.

MS LUCK:   I asked you, sir, is that what I did?  I tendered all those and you admitted them to the Court on that summons and then you dismissed the summons.  Is that correct?  So those documents never were needed, were they?  They were not – now, so you are not even going to stick them in the file there, you are going to give them back to me because you dismissed the summons.  Is that correct?

HIS HONOUR:   I am asking what you are asking for.

MS LUCK:   I want to know what happens to those documents in the file.  This is very important, your Honour.

HIS HONOUR:   They will remain on the file unless I make an order that they ‑ ‑ ‑

MS LUCK:   But they are not related to anything, are they?

HIS HONOUR:   Unless I make an order that they be returned to you.  Are you asking me to make an order that they be returned to you?

MS LUCK:   I am asking that they be copied for the Court file and returned to me, the originals, because they were admitted to the Court in the file on that basis, because I said to you when I gave them to you these are my originals, I need copies – I need to have them copied and returned to me.

HIS HONOUR:   Are you asking for copies or originals?

MS LUCK:   No, I want the originals.  The Court can have the copies.  So I do not understand.  You have got me to do all that admitting it and then dismissed my summons.  So those documents that I admitted relating to that particular summons was just a waste of time, was it?  We just stood here doing that telling me how I should do it so that you could dismiss it.  It is insanity.  I am sorry.  It is just an abuse of process; that is what it is. 

HIS HONOUR:   This morning I made orders, amongst other things, dismissing a summons dated 22 April 2013 by which the plaintiff sought certain subpoenas directed to the Attorney‑General.  The third amended application for an order to show cause then came before me for final hearing this afternoon in accordance with the order that I made on 11 February 2013. 

Ms Luck, at the commencement of that hearing, sought two things.  She sought that I revisit the ruling that I made on the summons this morning insofar as it rejected her application for the issue of subpoenas.  I do not propose to accede to that application.  I have made my ruling.  The summons is dismissed.  She also sought an adjournment of the application.  In part, she seeks an adjournment because of dissatisfaction with the ruling I made this morning.  It is likely that that dissatisfaction will remain at whatever time a final hearing might be had. 

Her application is also based in part on distress that she says she is feeling and that is apparent to me from her behaviour at the Bar table.  She says that she is unable to continue with the hearing today in the circumstances that have occurred.  She has indicated that she would be available to proceed on a resumed hearing of her principal application if it were set down for hearing in Melbourne on Monday, 17 June after 10.30 am.  Her application for an adjournment is opposed by Ms McKenzie who says that Ms Luck has had ample opportunity to prepare her case and who wishes to submit that the material Ms Luck has indicated she proposes to put before the Court by way of evidence at a final hearing is insufficient to establish the relief she claims.  I form no view as to the sufficiency of the proposed evidence as it currently stands. 

The appropriate application to found a submission of the kind Ms McKenzie makes would be an application for summary dismissal under rule 27.09 of the High Court Rules.  I do not propose to entertain an application of that nature today, one, because it would be without notice and, two, because in the circumstances that have occurred Ms Luck finds herself in a distressed state. 

What I propose to do is make the following orders:

1.Adjourn the hearing of the third amended application of an order to show cause to 17 June 2013 at 11.00 am before me in Melbourne.

2.Reserve the costs of the hearing today.

3.Direct that the second defendant file any application for summary disposition of the principal proceedings on or before 3 June 2013 to be made returnable on 17 June 2013 at 11.00 am.

4.Direct that the originals of exhibits 2, 3 and 7, admitted on the hearing of the summons dated 22 April 2013, be returned to Ms Luck and that copies of those exhibits be kept on the file.

MS LUCK:   And, your Honour, some affidavits I would like to submit if I get evidence from the parties between now and then.

HIS HONOUR:   I am not proposing to make any orders for affidavits, Ms Luck. 

MS LUCK:   I will just submit them when I am here again, the same story.  Thank you.

HIS HONOUR:   Ms McKenzie, do you have any comments on those orders?

MS McKENZIE:   No, your Honour.

HIS HONOUR:   I make those orders.  The Court will now adjourn.

AT 3.24 PM THE MATTER WAS ADJOURNED