Luck v The Deputy Registrar (RM) of the High Court of Australia - Melbourne Office of the Registry and Ors

[2013] HCATrans 166

[2013] HCATrans 166

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 Defendant

THE ATTORNEY‑GENERAL OF THE COMMONWEALTH OF AUSTRALIA

Second Defendant

THE COMMONWEALTH OF AUSTRALIA

Third Defendant

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

Fourth Defendant

THE SENIOR REGISTRAR OF THE HIGH COURT OF AUSTRALIA

Fifth Defendant

THE PRINCIPAL REGISTRAR OF THE HIGH COURT OF AUSTRALIA

Sixth Defendant

Application for an order to show cause

GAGELER J

TRANSCRIPT OF PROCEEDINGS

AT MELBOURNE ON MONDAY, 5 AUGUST 2013, AT 11.05 AM

Copyright in the High Court of Australia

____________________

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

HIS HONOUR:   Thank you, Ms McKenzie.  The matter should be called three times outside the Court.

MS G. LUCK appeared in person.

HIS HONOUR:   Yes.

MS LUCK:   Excuse me, your Honour, I am sorry, I have just got to get a few things organised, do you mind?  Is that all right? 

HIS HONOUR:   Take your time.  Ms Luck, could you face me for a moment please?

MS LUCK:   Sorry.

HIS HONOUR:   What I propose to do is allow you a few minutes to prepare yourself.  I will adjourn for five minutes.

MS LUCK:   Thank you, your Honour.

AT 11.07 AM SHORT ADJOURNMENT

UPON RESUMING AT 11.12 AM:

HIS HONOUR:   We proceed to deal with matter No M11/2012.

I have before me two summonses.  There is a summons by the second defendant filed on 3 June 2013, the hearing of which has been adjourned to today, and there is a further and more recent summons filed by the plaintiff, Ms Luck, on 1 August, that has a return date to be fixed.  Ms McKenzie, how do you propose that we proceed today?

MS McKENZIE:   Your Honour, I propose that the second defendant’s summons be heard first and that that would dispose of the need to hear Ms Luck’s summons.

HIS HONOUR:   Thank you.  Ms Luck, what do you propose?

MS LUCK:   First of all – and you will have to excuse me, your Honour, firstly, I am extremely unwell and I am dealing with only what I can deal with now, which as far as I am concerned, according to - Mr Grey sent me a note, a letter saying that this particular summons will be heard today and is listed for today, the summons that I filed on 1 August, and as well as the substantive matter, as well as all the other four matters that were listed which I could not cope with. 

So I wanted to tell you now that I believe I am in danger.  My blood pressure, I suspect, is very, very high and I was estimating that I would be able to put on my summons because I was not aware that the other parties were going to have that summons heard.  Their summons was for incompetency and they want to dismiss the whole matter, M11/2012, on the basis of incompetency.  Is that correct?

HIS HONOUR:   I do not know what you are talking about.

MS LUCK:   Well, the summons that Ms McKenzie is talking about wanting to have heard first ‑ ‑ ‑

HIS HONOUR:   Yes.

MS LUCK:   ‑ ‑ ‑ that is to dismiss this M11 matter - that they seek to dismiss it on the grounds of incompetency.

HIS HONOUR:   Incompetency does not appear to be a correct characterisation.

MS LUCK:   Sorry.  Thank you.

HIS HONOUR:   They seek to have it dismissed summarily, that is, without proceeding to a final hearing.

MS LUCK:   Well, I am not able to argue that other than to argue what I have got in my summons here – and I think that it would be illogical that when I have made my submissions in regard to the summons for directions, which I was led by Mr Grey to believe it was being heard today, and I have got a document to show so ‑ ‑ ‑

HIS HONOUR:   You should tender that document.

MS LUCK:   Could you please wait, your Honour, I was not expecting to tender that document?

HIS HONOUR:   Yes.

MS LUCK:   I am, honestly, your Honour, really – I am not even sure I can cope with any of this today and I wanted to go straight ahead, give you the submissions and I would then, I am afraid, have to seek adjournment because I am scared for my welfare.  Sorry, your Honour, there were quite a of emails exchanged and I am not sure – emails ‑ ‑ ‑

HIS HONOUR:   Take your time, Ms Luck, and you can sit down if you wish.

MS LUCK:   Thank you very much.  The first one he sent back was at 2.06 pm on 1 August stating that “You will note that the summons has been formally listed, return date to be fixed, however, I am awaiting confirmation from the judge that it too can be listed on Monday, 5 August at 10.30am” – seem to be in this one.  No, it is not in this one I do not think.  Yes, sorry.  On 5.04 pm on 1 August, Mr Grey writes “I advise that the enclosed summons for directions will be listed for hearing before Justice Gageler at 10.30 am on Monday, 5 August at the High Court, Level 35.”

HIS HONOUR:   Thank you.  What is the date of that?

MS LUCK:   That is 1 August, and it is at 5.04 pm, and a copy went to me and to Mr Kasper Maat at AGS.

HIS HONOUR:   Thank you.

MS LUCK:   So, your Honour, that was how I was prepared and, as you know, I was unable to appear in the four listings made, against my wishes and against any possibility of me appearing earlier this morning, which is causing me more distress than this would have if those had not been listed and I would not be in this condition and unable to answer all the proper issues that I need to.  I did write a letter to you that I asked to make my submissions in writing because I could not appear and the reason that I was in the Court Registry because the actual appearance, appearing and being heard in these matters was, and is, so stressful that it endangers my life.

So, your Honour, that has caused me to be even more distressed than I need be to give this - which is the one I was prepared for and the one that was listed for today and I was aware of months ago when I sent my medical certificates to the Court to show that my serious and acute, life‑threatening illness was not something that I could make any decisions based just on the fact that I was ill.  I could not do anything, and now I am here doing the best I can to only deal with the things that I am able to deal with and I find I am inundated with horrendous amounts of volumes of hearings and abuse, in my view, and I think, your Honour, that if I could put my submissions forward for the – that actually does not say that the summons for the other party was going to be heard.  It says the substantive matter was going to be heard, so mine should go first.

HIS HONOUR:   Thank you.

MS LUCK:   In which case ‑ ‑ ‑

HIS HONOUR:   Thank you, Ms Luck, I have heard ‑ ‑ ‑

MS LUCK:   Can I do that then? 

HIS HONOUR:   No, you wait for my ruling on which goes first.

MS LUCK:   Just, please, I have not finished them.  This summons, could I just direct a question to the other party?  This rule, 25.03.3(a), that is a

summary dismissal, is it, and on the grounds of - what basis is there to seek the dismissal?

HIS HONOUR:   Ms Luck, you have been on notice of that application for a very long time.  You have had an opportunity to read the ‑ ‑ ‑

MS LUCK:   When was this filed?

HIS HONOUR:   ‑ ‑ ‑ High Court Rules.

MS LUCK:   This was filed the day I had a heart attack, your Honour.

HIS HONOUR:   You have had for a very long time the submissions ‑ ‑ ‑

MS LUCK:   I have been recovering from illness, your Honour, I am still not recovered.  I am here because I take my duties as a litigant very seriously, and if you are going to take that sort of a tone against me now about my disabilities and about not being able to cope then I will have to have this matter adjourned right now because I cannot deal with it.  I am not well enough to be putting up with suggestions that I have not done anything about things that I have known about.  It was filed on the day I had a heart attack and was taken to hospital in an ambulance, your Honour. 

I would like to give my submissions and I would like to give them first because - just in case I am not well enough afterwards then whatever happens I have done what is necessary.  You have - the other party knows what I am putting forward.  I should not even be doing what I am doing now.  I should not have to deal with this.  I just ‑ ‑ ‑

HIS HONOUR:   Thank you.

MS LUCK:   I am sorry, your Honour, you make your ruling.

HIS HONOUR:   Thank you, Ms Luck. 

This matter was last before me on 23 April 2013.  On that day, having indicated that I proposed to proceed to the final hearing of the third amended application for an order to show cause I acceded, over the objection of counsel for the Attorney‑General of the Commonwealth, to an application by Ms Luck for an adjournment of that hearing.  Amongst the orders I made on that day were orders to adjourn the hearing of the third amended application for an order to show cause to 17 June 2013 and to direct that the Attorney‑General file any application for a summary disposition of the principal proceeding on or before 3 June 2013, that application to be made returnable on 17 June 2013.

In accordance with the second of those orders, the Attorney‑General, by summons filed on 3 June 2013, returnable on 17 June 2013, has sought orders that the third amended application for an order to show cause be dismissed pursuant to rule 25.03.3 or, alternatively, that there be judgment pursuant to rule 27.09.4 of the High Court Rules in relation to the claims made by the plaintiff in the third amended application for an order to show cause.

On 13 June 2013, I made a direction pursuant to rule 8.04.3 of the High Court Rules directing a Deputy Registrar to draw up, sign and seal an order in accordance with the terms of the written consent of Ms Luck and the Attorney‑General that the hearing of the third amended application for an order to show cause and of the summons by the Attorney‑General be adjourned to 10.30 this morning.

By summons filed on 1 August 2013, marked with a return date yet to be fixed, Ms Luck sought a range of procedural orders relating to the hearing of the third amended application for an order to show cause.  By those orders she sought, and continues to seek, in effect, that the substantive hearing be conducted in stages and that she be granted what she describes as “reasonable control” over when and for how long she appears at each stage of the hearing.  By email to her on 1 August 2013, a Deputy Registrar advised her that the summons would be listed for hearing before me at 10.30 today.

The circumstances are therefore that there is now listed for hearing before me this morning a summons that the Attorney‑General filed on 3 June 2013 seeking summary dismissal of the principal proceedings and a summons that Ms Luck filed on 1 August 2013 seeking various procedural orders in relation to the conduct of the substantive hearing of the third amended application for an order to show cause. 

Sensible case management requires that the Attorney‑General’s summons for summary dismissal be determined first.  The making of either of the orders sought in that summons would terminate the proceedings on the third amended application for an order to show cause, thereby negating any need for consideration of the process by which a final hearing might run.  I therefore propose to hear and determine the Attorney‑General’s summons first and I stand over the plaintiff’s summons filed 1 August 2013 for hearing and determination, if necessary, following the hearing and determination of the Attorney‑General’s summons of 3 June 2013.

Those are the directions I make.

MS LUCK:   Your Honour, I do not even have before me any opportunity to respond to this summons.  I am not prepared to do it and I am unable to

do it and I seek that this – I do not even understand what you mean by “stand over”, or whatever you call it, and I do not understand what – I do not know what the rules are for 27.09.04 and so you have two choices.  Could you please explain or get somebody to get up and tell me what I am supposed to be dealing with here - that you are just denying me any rights at all?  Because of my disability I am unable to deal with the extensions of time to be heard, to do anything.  Can you tell me what are these rules, please?  Could you ask the other party to explain to me what are the consequences of these rules when you make this party be able to have their summons heard first?

HIS HONOUR:   I do not propose to provide you with any legal advice.

MS LUCK:   I did not ask you for legal advice, I asked you to ask the other parties to explain to me what are the consequences – what they are asking for, because I have not got the rules in front of me and I am in the High Court of Australia being heard by the rest of the world, being denied because I have been ill and had a heart attack recently, being denied an opportunity to even understand or put forward what I am entitled to do at this hearing without having a summary dismissal sought by the Attorney‑General when I have a submission here for the summons that should be heard - if that is what I was told it should be heard - you cannot stop me hearing that now, that would be a complete travesty of justice.

HIS HONOUR:   Will you sit down for a moment, please?  The position is, Ms Luck, that I have made a procedural ruling.  The effect of that procedural ruling is that I will now proceed to hear and determine the summons that was filed by the Attorney‑General on 3 June 2013.  I will give you a full opportunity to respond to the orders sought in that summons.  What I propose to do is to adjourn again for 10 minutes and when I return, subject to any submissions the parties might make, I propose to proceed to hear Ms McKenzie’s submissions in relation to that summons.

MS LUCK:   Your Honour, I ‑ ‑ ‑

HIS HONOUR:   Adjourn the Court.

AT 11.31 AM SHORT ADJOURNMENT

UPON RESUMING AT 11.49 AM:

HIS HONOUR:   We will proceed to hear the Attorney‑General’s summons of 3 June 2013.  Yes, Ms McKenzie.

MS McKENZIE:   If your Honour pleases, I should read the affidavit in support of the summons.

HIS HONOUR:   Thank you.

MS McKENZIE:   It is made by Karst Hinderik Maat on 3 June 2013.

HIS HONOUR:   Thank you.

MS McKENZIE: By summons, I seek dismissal of the plaintiff’s application pursuant to rule 25.03.3(a) of the High Court Rules or, alternatively, I seek that the Court give judgment for the defendants which would also result in dismissal of the plaintiff’s application pursuant to rule 27.09.04 of the Rules.

HIS HONOUR:   Thank you.

MS McKENZIE:   The arguments are those in the submissions in the substantive matter which were dated 10 April.  I think they might have been filed on 11 April 2013.

HIS HONOUR:   Yes, thank you, I have read those submissions.

MS McKENZIE:   Does your Honour wish me to go through them?

HIS HONOUR:   No, there is no need for that to occur.  One thing that I do need to be clear about is the material to which I should be having regard.  The nature of your application is that you need to take Ms Luck’s principal application at its highest.

MS McKENZIE:  Yes.

HIS HONOUR:   You have helpfully filed a court book which contains most of the evidence that has been filed by Ms Luck in the principal proceedings.  I just want to be sure that I have identified all of it.  Do you have that court book and does Ms Luck have that court book?

MS McKENZIE:   Yes, your Honour.

HIS HONOUR:   There is an affidavit at tab 2, which is Ms Luck’s affidavit of 3 February 2012.

MS McKENZIE:   Yes.

HIS HONOUR:   There is an affidavit at tab 3.  It is her affidavit of 8 February 2012.

MS McKENZIE:   Yes.

HIS HONOUR:   There is then what is said in the index to be an affidavit of 17 February 2012.  I think that does not correspond precisely to any affidavit that has been filed.  There is an affidavit of 2 March 2012 which is in very similar but not identical terms.

MS LUCK:   Excuse me, your Honour, would you, please - I got to tab 3.

HIS HONOUR:   I am now looking at tab 6, Ms Luck.

MS McKENZIE:   Your Honour, the affidavit at tab 6 is dated 17 February.

HIS HONOUR:   It does not bear a “Filed” stamp.

MS McKENZIE:   Yes.

HIS HONOUR:   There is an affidavit of 2 March 2012 which does appear on the file and is very similar. 

MS McKENZIE:   Yes.

HIS HONOUR:   What I propose to do is to have regard to the filed document.

MS McKENZIE:   Yes, I am indebted to your Honour.  I included the 17 February one out of caution in case it had been filed.  It was a little confusing to work through the documents.  So if it has not been filed I would not seek for it to be noted as evidence that your Honour ought to be considering.

MS LUCK:   Excuse me, your Honour.

HIS HONOUR:   Yes, Ms Luck.

MS LUCK:   This book is entirely from the other side viewpoint.  This is not a settled index on this book.  There is nothing about it that you can say is correct until I have actually put forward what I need to and go through this in detail to make sure that everything that was in here is – well, I know

for a fact there are numerous missing items – well, not numerous, but some missing items of crucial importance that were filed and sent to the Court.

You, sir, must have in your – on the bench up there – the documents that - Mr Grey sent me a copy of the file.  The file index – now, that should, to some degree, be what is applicable in this case.  But I had not – and I am not prepared to be able to point – I have not even got the documents, some of the documents - I cannot carry any more documents.  I am restricted at this point in time and I need to go through this.  I actually sent a letter to Mr Matt Grey.  It is one of the reasons why I wanted to put forward my arguments about the summons that I have filed and served on the other party - was so that these things can be done in a proper order as any other trial should be done.

HIS HONOUR:   Thank you, Ms Luck.

MS LUCK:   What I meant to say here was that these affidavits - some affidavits are of crucial importance that are not in here.  I cannot tell you the details but I know from previously looking because I have not been able to study or examine anything in the last couple of months.

HIS HONOUR:   Thank you, Ms Luck.  Ms McKenzie, I note what you say about the affidavit that is mentioned at item 6 of your index.  There is then an affidavit at item 12, a further affidavit at item 16 and, I think, missing – at least in my review of the file – is reference to an affidavit of 19 April 2013 which has two exhibits.  Ms Luck will have an opportunity to say whatever she wishes in a moment.

MS McKENZIE:   Yes.

HIS HONOUR:    But is that the material to which I should be having regard?

MS McKENZIE:   Yes, your Honour.  This book was prepared on the 17th.

HIS HONOUR:   Yes.  Yes, thank you.  Ms McKenzie, thank you, I have looked at that material and I have read your previous submissions.  Thank you.

MS McKENZIE:   If your Honour pleases.

HIS HONOUR:   Ms Luck.

MS LUCK:   Yes, your Honour.

HIS HONOUR:   This is your opportunity to draw to my attention any material you say I should be taking into account in determining the summons.

MS LUCK:   Well, I cannot tell you that, your Honour, I ‑ ‑ ‑

HIS HONOUR:    Just listen to me for a moment.  This is your opportunity as well to make such submissions as you wish to make in relation to the summons.

MS LUCK:   Your Honour, I would like to submit the reasons why I am unable to deal with this now.  That is the first thing I must do.  Your Honour, I want to have my submissions made in respect of the reasons I cannot do this brought to the Court’s attention and to the other party’s attention because the significance of illness and disability for a litigant in the Court is much greater than is given any consideration to by the Court or the other parties.  I would like to say that I was unable to appear at the earlier hearings of this matter, that were listed beforehand, because I am a person with disabilities and to appear to be heard, as is my right, would be contrary to medical advice provided to myself and to the Court prior to the hearing of this matter.

It has caused me extreme distress to have been put through that without need and without consideration of me at all as a person with disabilities.  I want to bring the Court’s attention to the Australian National Disabilities Strategy 2010‑2020 – the NDS – for which the Commonwealth Attorney‑General, which is the second defendant, and his Department are responsible.  In that document in the introduction it states:

This Strategy provides an opportunity to make clear the shared national vision for people with disability and to outline the future directions of public policy. 

Australians with disability have significantly worse life outcomes compared to others or to people with disability in similar countries.

People with disability are more likely to experience:

·   relatively poor health

·   lower levels of participation in education, training and employment

·   social exclusion

·   lack of access to goods, services and facilities

·   ongoing discrimination. 

These poor outcomes provide the impetus for a significant increase in effort from all governments, the community and business.  Equal participation by people with disability in Australian life will enrich life for all Australians. 

Under clause 2 of the NDS, in the area of rights, protection, justice and legislation, the desired outcome is that people with disability have their rights promoted, upheld and protected and that although “Australia has had a rights‑oriented focus in relation to disability for many years” which “is demonstrated in Australia’s Disability Discrimination Act 1992” and “implicit in Australia’s ratification” of the Convention on the Rights of Persons with Disabilities:

people with disability continue to face discrimination in many areas of their lives.  The Strategy seeks to promote awareness and understanding of the rights of people with disability, improve responses to people with disability in the justice system, ensure their safety and enable them to participate fully in the economic, civic and social life of our nation. 

In the area of rights, protection, justice and legislation, Policy Direction 1 is aimed at increasing “awareness and acceptance of the rights of people with disability” and:

While Australia has had rights‑focused legislative protections for people with disability for many years, more can be done to promote widespread awareness and acceptance of the rights of people with disability in practice.

Policy Direction 2 is aimed at removing “societal barriers preventing people with disability from participating as equal citizens” as those barriers:

can stand in the way of people exercising their rights as citizens, including within the political and justice systems.

Policy Direction 3 is aimed at ensuring “People with disability have access to justice” as:

Greater awareness is needed by the judiciary, legal professionals and court staff of disability issues.

Because:

Effective access to justice for people with disability on an equal basis with others requires appropriate strategies, including aids and equipment, to facilitate their effective participation in all legal proceedings.

Policy Direction 4 is aimed at keeping “People with disability to be safe from violence, exploitation and neglect” and “a range of evidence which suggests that people with disability are more vulnerable to” such conduct and:

fare worse in institutional contexts where violence may be more common.  People with disability are more likely to be victims of crime and there are also indications that women face increased risk.

Policy Direction 5 is aimed at:

More effective responses from the criminal justice system to people with disability who have complex needs or heightened vulnerabilities -

as those:

with disability who have complex needs, multiple disability and multiple forms of disadvantage face even greater obstacles within the justice system.

My experience in these circumstances with the listing by the High Court of four additional matters for hearing, Luck v Principal Officer of Victorian Police and Anor, M65 of 2013 and M66 of 2013, Luck v Principal Officer of Department of Justice and Anor, M67 of 2013, and Luck v University of Southern Queensland and Anor on the same day – that is M112 of 2009 – on the same day as the hearing of the important constitutional matter, this matter, Luck v Deputy Registrar RN of the High Court of Australia - Melbourne Office of the Registry and Ors, M11 of 2012, in the knowledge that I was unable to cope with appearing to be heard at these hearings, following my numerous reasonable adjustment requests due to my current and acute life‑threatening disabilities, is evidence of the very serious need for the Australian State and Territory Governments to strongly, publicly and urgently enforce the necessary outcomes as directed in the NDS.

I am distressed now in light of my better understanding of the intent of the National Disability Strategy that the second defendant, the Attorney‑General, in the matter of Luck v Deputy Registrar of the High Court of Australia and Ors, submitted here in Court on 23 April 2013 that in response to my requests for reasonable adjustments and being relieved of compliance with the High Court Rules on the basis of my disabilities and my rights under the Disability Discrimination Act 1992 and the United Nations Convention on the Rights of Persons with Disabilities, in point 21 he stated – the second defendant stated that “If it is sought, the plaintiff should not be given relief from compliance with any aspects of the rules”.

Again, I am forced to bring attention to my disabilities in the public arena when seeking to be granted the rights I legitimately expect to be granted under the Disability Discrimination Act 1992, the United Nations Convention on the Rights of Persons with Disabilities, the Australian Human Rights Commission Act 1986 and the articles and covenants and treaties attached thereto, the Equal Opportunity Act 2010 (Vic) and the Charter of Human Rights and Responsibilities Act 2006 (Vic) and the International Covenant on the Economic, Social and Cultural Rights.

I suffer severely for the discrimination against, and harassment of, me by the authorities purported to be those responsible for ensuring that the rights of the disabled are granted and complied with in private and prior to appearing before a court so that I am given the equal opportunity as I appear at the Bar table on a par with the respondent and defendant parties, rather than seeking, under duress, to be granted those reasonable adjustments required as a person with disabilities publicly before the Court and the world.

The manner in which I have been treated by the justice systems of the State of Victoria and the Commonwealth of Australia as a disabled person is a national disgrace.  Your Honour, I have more submissions in respect of that but I felt that it was important to bring to the attention of the Court and to the defendants that there are processes in all other areas of government and authorities that relate specifically to the granting of reasonable adjustments and none of them involve publicly exposing oneself again to the whole world about them before they are given them.

You, sir, in one respect I believe you are in a position now of bias because you have prejudged a case which – several cases actually, all of my cases are causes that involve disability discrimination and abuse and harassment and victimisation and you have ignored the proper protocol for dealing with, according to the law, the international law and our law, the Disability Discrimination Act, in granting me my rights as a disabled person to reasonable adjustments without subjecting me to detriment and disadvantage, humiliation and I actually - I am finding it very difficult to comprehend what has happened to me.

I should not be here listening and having to deal with this issue in public.  This should have been decided in the High Court in this particular case, in the High Court by the Chief Executive Officer as an administrative decision based on the same sort of decisions that are made for every single employee of the government and each and every single government department has a policy for reasonable adjustments and there are special processes which are properly gone through, not what I have been subjected to here.  It is - it is a national disgrace and I am the victim of it. 

Your Honour, I have further submissions to make in respect of the summons that I expect I will be entitled to have heard after this, but in regard to the arguments which the defendants have made for summary dismissal, as I asked the defendant’s representative before in the adjournment, have they any sworn affidavits of any evidence that supports their cases.  There is none.  There is none.  They have been provided with – and this is the problem, your Honour, that I am unable – until I – and this all goes in – if I was able to have my summons heard before you decide it I could put this in a – I could make the submissions now that I would make for my summons which is my arguments against why this should not be dealt with in this manner because none of the things that would normally have transpired for a final hearing of such an important constitutional matter have been in place. 

I have not been given the normal opportunities to prepare.  I have been ill as well, not been given any reasonable adjustments, just continually bombarded with listings and harassment from the courts below.  Those listings that were made today in the Victorian Department of Justice and the Victorian Police are issues which you have prejudged by failing to give me my reasonable adjustments in this Court.  So I say to you, your Honour, you are – I apprehend bias and that you are not fit to hear those matters and the matter that is involved in my third amended application and my second amended summons are issues which require an impartial, competent, independent tribunal to hear in respect of disability discrimination.

You have now made judgments that are placing you in a position of not being able to be impartial when you make those decisions.  So the matter cannot now go on and be heard and they have not given any facts, they have given no evidence that my case is not competent or should be summarily dismissed.  They claim that I have made all these allegations but I have actually sworn evidence of all these allegations.  I have not got the evidence.  They are refusing to give me, you refuse to subpoena it.

Now, unless I have that evidence I cannot properly make my arguments and in any court of law in any land that has a Westminster system has a right to be able to produce and adduce evidence to support their arguments in a reasonable state of affairs.  I have not been given that opportunity, nothing.  And you, sir, you called my request for freedom of information when I made it into a subpoena because they were not providing me with the documents that I saw under Freedom of Information and I used the same scope.

Your Honour, I am not going to make any more submissions unless I can just read them off here because I want to put my submissions in a proper order, in a manner that sounds intelligent and not all over the place because you have set it up so that I cannot do what I want to do and then, your Honour, the way you have listed these matters has completely put me in a terrible state.  I have pains in my chest this morning.  Before I even left home my blood pressure was far too high to even come out the door, and I came because of my responsibilities that I take so seriously here.  I have provided medical evidence of my condition. 

So instead of allowing me the reasonable adjustments that were necessary to keep me safe, which the strategy, the National Disability Strategy dictates that should be done and should be – I get this.  So, your Honour, for the summons I am going to make in opposition to their summary dismissal summons and seeking of orders and the basis on which they were seeking them was there is no cause, there is no cause or action.  It is vexatious.  What are the other terms?  Vexatious, frivolous or – I cannot recall the other term, but it is a defamatory term that if you dismiss either of those matters under those two rules of the Court. 

There is no specific set.  You just do it as though I was all of those things and in my view is inadequate that they cannot specify which of the problems that they are saying arises because they cannot point to any because they have not got any answers to it and they cannot defend their case and that is why they are asking for this summary dismissal.

They have not produced any evidence.  They have not produced anything except hearsay basically.  They have actually specified some of the facts of the matter that I have brought forward, but they have not got anything to counter those and you have in – I am not sure how it was – when I gave you the CD disc last time I was here I had to read - and what happens is the affidavit is ready and the material is taken in and read into evidence - is that correct - the expression that is used?

HIS HONOUR:   It is certainly the way in which a proceeding would proceed on a final hearing.

MS LUCK:   So when I was here last time you took the recording but you did not actually read it into evidence but you noted that it was filed - I cannot recall the actual ‑ ‑ ‑

HIS HONOUR:   Filed as an exhibit, yes.

MS LUCK:   Filed as an exhibit rather than read in as evidence.

HIS HONOUR:   Yes.

MS LUCK:   Right, okay.  Well, that is evidence that I have that can be backed up and supported by witnesses and if this case is of such – and this is a constitutional matter where discrimination is involved and that is the issue.  One of the major issues here is that they have not argued one single issue of importance of the constitutional questions of law that are sought to be answered in my third amended application and my second amended summons. 

So, for the most part, they have no real arguments to put forward. In this matter I have applied, and pursuant to the Constitution and the Judiciary Act 1903, the High Court of Australia Act 1979 and the High Court Rules and Regulations for orders to show cause, orders for certiorari and prohibition directed to the Commonwealth of Australia, various Registrars of the High Court of Australia in Melbourne and Canberra Offices of the Registry and to the Commonwealth Attorney‑General, those being officers of the Commonwealth, in respect of their denial of the plaintiff’s rights under domestic and international human rights legislation and conventions, namely the Disability Discrimination Act 1992, the Australian Human Rights Commission Act 1986 and the treaties scheduled thereto, the International Covenant on Civil and Economic Rights, the Universal Declaration of Human Rights, the Declaration of the Rights of Disabled Persons and the United Nations Convention on the Rights of Persons with Disabilities and in respect of the conduct of defendants to which Part III, Division 3 of the Crimes Act 1914 (Cth), Chapter 2 of the Criminal Code and sections 568 to 12, 12A, 24, 29, 29A, 39, 41 to 43 and 131 of the Disability Discrimination Act 1992 (Cth) applied whereby in respect of that legislation the plaintiff was denied equality before the law to the application of the laws of natural justice and procedural fairness which was required by those laws to be granted to the plaintiff by the defendants when making their decisions, determinations, directions and orders in the administrative and judicial processing of the plaintiff’s proceedings in the High Court of Australia and by the second, third, fifth and sixth defendants in response to the plaintiff’s complaints made of such failings.

I have sought today in the summons, which I have to address because it actually addresses the reasons why they should not be allowed to have this matter summarily dismissed, so, your Honour, I sought that in the course of the hearing and determination of this matter each of the orders sought by the plaintiff in the third amended application for an order to show cause and in this and my second amended summons and each of the questions and issues of law as set out in the third amended application for an order to show cause and second amended summons be considered and answered and a determination made as to whether each order sought is granted or refused.

I will add there, your Honour, that as they have no arguments at all for those matters technically you should be finding this matter in favour of me, of my case, because they have not even got an argument.  They have not even put forward anything.  They have not even responded in any way to the serious constitutional questions of law.  I do not believe that can be done in a hearing of this nature.  It needs to be a much longer process of preparation and so on by all parties, and so far that has not occurred. 

I have also sought that this summons for directions be heard on 5 August, today, the summons for directions that I sought, because it involved all these issues that cannot be summarily dismissed, and a schedule of the progression of the matter be established in conjunction with the plaintiff’s request for reasonable adjustments. 

Your Honour informed the Court that you intended to finally hear this application for an order to show cause in this matter and to date only one directions hearing has been had, on 11 February, prior to the premature final hearing of the matter on 23 April, which was adjourned due to the plaintiff’s distress and trauma at having her summons heard on that date, seeking further directions dismissed and being denied her right to subpoena the necessary evidence required to support her case and arguments in respect of the various defendants about whom the plaintiff makes her claims of breaches of criminal legislation by the defendants and which was refused by your Honour on the ground that the scope of the plaintiff’s personal and sensitive material sought to be subpoenaed was oppressive, that scope being practically identical to the scope of the FOI requests made to the second defendant in the Department of the Attorney‑General by the plaintiff on 8 March 2013 seeking a grant of access to the plaintiff’s personal and sensitive material, collected, used, disclosed and kept in the possession, and constructive possession of the second defendant and his Department.

The plaintiff was refused, in both cases, the grant of access to that material sought by her under the Freedom of Information Act 1982, another right to which she is entitled and has been denied, in breach of the privacy principles and the Privacy Act 1988, causing an interference with her privacy.

The matter of the final hearing was adjourned for further – this is for this substantive part of this hearing today - the matter of that final hearing was adjourned for further hearing today of the plaintiff’s summons for directions of 1 August 2013 following the plaintiff’s acute and life‑threatening illness experienced in early June 2013, and for which the plaintiff has provided the Court with medical certificates in respect of the requirement that the plaintiff’s medical practitioner must approve the conditions under which the plaintiff prepares, makes submissions and appears for hearing at Court in any of her matters. 

The plaintiff has sought on at least 150 occasions, approximately 70 by affidavit and 80 by letter to the High Court of Australia Registrars, that she be granted reasonable adjustments in accordance with her rights under the Disability Discrimination Act 1992, the Declaration on the Rights of Persons with Disabilities and the United Nations Convention on the Rights of Persons with Disabilities. Those numbers do not include the hundreds of times she has sought orders for such reasonable adjustments in her formal filed and sealed documents for each of her cases afoot in the High Court.

Over many years since 2000 she has sought reasonable adjustments from the federal and State courts and tribunals that no more than one of her matters be listed for hearing on the same day unless she consents because she knows she is capable of coping with it, and no more than one of her matters listed for hearing per week unless she consents because she knows she is capable of coping with it, to prevent a work overload and stress upon her which, when such a situation occurs, exacerbates her medical conditions and endangers her life and health. 

The listing of the hearing of the four additional matters today with M11/2012 on 5 August was done so by the Court with only two days’ notice given to the plaintiff in the knowledge that she had recently had a serious life‑threatening illness which her medical practitioner had advised the Court prevented her from appearing until the medical practitioner was satisfied that the plaintiff would not be in any danger. 

The plaintiff subsequently provided to the Court on 31 July 2013 updated medical advice from her medical practitioner and confirmed by her psychologist that a reasonable adjustment required was that the plaintiff had control over the staging of her submissions and preparations for the progression of her cases.

HIS HONOUR:   Ms Luck, can I just interrupt for a moment?  The medical evidence to which you are referring is of what date, please?

MS LUCK:   I am not referring to evidence.

HIS HONOUR:   I see.

MS LUCK:   It is not a filed a document, it is not being supported by an affidavit, apart from my wording in the affidavit that it is been provided to the Court.

HIS HONOUR:   Are you proposing to rely on any medical ‑ ‑ ‑

MS LUCK:   I am not sure what I will do ‑ ‑ ‑

HIS HONOUR:   ‑ ‑ ‑ evidence?

MS LUCK:   ‑ ‑ ‑ because I think this is a major issue, and it is one of the big issues that I believe is what I want to come to this Court for in the special leave applications.

HIS HONOUR:   If you are proposing to rely on any medical evidence, please identify it specifically.

MS LUCK:   The medical certificate, the last one I – this is not one that I want to specifically file in the Court, but it is one that has been provided to the Registry for the appropriate administrative functions that should be carrying out for reasonable adjustments.

HIS HONOUR:   Are you asking me to take it into account?

MS LUCK:   Of course.  I mean, it is the same as me – it is a received document, your Honour, that is how it would be – like the letters that I cover my documents, they are in your file, but they are received documents.  Like, I have got - they have put a “Received” stamp on them.  So if you insist – I personally do not think that it is – I am not – my arguments are based around the fact that you should not be making decisions about my reasonable adjustments.  So can we go back to that later, your Honour, and I will provide any evidence if we have ‑ ‑ ‑ 

HIS HONOUR:   Just pause for a moment, please.  You can certainly take your time to make any submissions you wish to make on the summons by the Attorney‑General.  You can make procedural submissions, you can make substantive submissions, but that is what we are dealing with, the summons by the Attorney‑General.  If you wish me to take into account any medical evidence, you have to specifically identify that medical evidence.

MS LUCK:   Excuse me.  The latest medical certificate that was received by the Registry of the High Court was dated 11th of the 6th, and I am not mentioning any names of doctors either, your Honour.

HIS HONOUR:   Are you asking me to have regard to that document, are you?

MS LUCK:   Well, sir, if I make any names – they – no, that is my private information and I do not want to express it in the open Court.  It can be supressed or whatever, but one way or another I am not mentioning my doctors’ names and those – I just – this whole issue, it is beginning to distress me and offend me actually.  I should not have to discuss this, I am giving my submissions about my disabilities and the conduct of the Court in respect of those requests.  It is not for me to be harassed about my disability, who did it, who answered them.  This is something that should be dealt with in the Registry before I ever stand before you in a – this is the inequality, your Honour, please.

Do they have to stand up and provide medical evidence that they cannot limp in here or do something?  Your Honour, this is what is so offensive about it and I am sorry, but I do not want to go any further with the - regard to that and if, after I have given my submissions, without becoming distressed because it is an offensive, undignified, humiliating experience and it has been perpetuated since 2000, for 13 years, and now I have a heart attack and then I have to come here and be subjected to it yet again.  

I am sorry, your Honour, I want to go on with my submissions which are all relevant to this issue, which is you having allowing this party to put their submissions to summarily dismiss a constitutional matter that is full of evidence, affidavits, medical certificates, all documented, sworn and filed in order over a year and a half now.  You have got it all, your Honour.  They have got nothing, except the book that they put together and omitted the things that are of real importance, the ones that will show the case that I have against the parties. 

So, your Honour, can I finish, because all this is relevant, thank you?  I will produce the evidence if you need it after I have finished.  If you – you are taking into consideration not when and how or what is wrong with me or my disabilities, or who made those reports, it is the fact that I am a person with disabilities, end of story.  I have a right to certain things because of that, and that is written in the strategy, the National Disability Strategy.  That is what it is all about, so that I do not have to go through this.  I am sorry.  Please, I would like to finish because I am beginning to get pains in my chest and I do not want to die before I have finished. 

Now, I was mentioning the hundreds of times that I have provided these documents and asked for the requests and I might add that in nearly every single one of those nearly all of those hundreds of times that I have made reasonable requests to – reasonable adjustment requests I provided medical certification.  This is where I believe I got up to. 

The plaintiff subsequently provided to the Court on 31 July 2013 updated medical advice from her medical practitioner which was dated the – it was not the 11th.  Now, I have got it all wrong.  That was not the 11th, it was the 11th of the 6th and it was 30 July.  The last one was 30 July, and it was sent to Mr Matt Grey and he had those and he informed me that they had been passed onto you.

HIS HONOUR:   The document, Ms Luck, is on the file.  Do you wish me to take it into account?

MS LUCK:   Not in this particular moment, no.  I mean, I want you to take it into account ‑ ‑ ‑

HIS HONOUR:   In what way?

MS LUCK:   ‑ ‑ ‑ simply on the basis that I have told you that it is there and you have seen it.  There is no – it is not – I am not providing evidence here.  I am giving a submission, sir.

HIS HONOUR:   Go ahead.

MS LUCK:   Okay – that a reasonable adjustment prior was that the plaintiff had control over the staging of her submissions and preparations for the progression of her cases and she informed the Court in numerous correspondences between 31 July 2013 and 2 August 2013 that she was unable to appear for the four additional matters because she could not cope with the stress involved as these matters would cause her to suffer great trauma and distress if they remained listed. 

They remained listed and the refusal to remove them from the list for hearing was an act done with complete disregard for the plaintiff’s request for reasonable adjustment and her medical practitioner’s advice, in breach of the Court and the Court’s officer’s duty to comply with all applicable Australian laws observing legislation and regulations. 

In this case, section 6 of the Disability Discrimination Act 1992 applies and the Court has proposed to and required the plaintiff to comply with a requirement or a condition, that of appearing before the Court, for the plaintiff, and because it was necessary for the plaintiff in her circumstances of disability to be granted reasonable adjustment to not be subjected to such stresses that would endanger her life by making a more suitable time for her to appear for the hearing of the matters when she could do so with the approval of her medical practitioner, and the Court has refused to make those reasonable adjustments, and as such has had the effect of disadvantaging the plaintiff by denying her rights under numerous common law, domestic and international law provisions to be heard by a competent, independent and impartial tribunal, which amounts to indirect discrimination against the plaintiff in addition to the harassment and victimisation of her, an offence under section 42 of the Disability Discrimination Act 1992, prior to the listed hearings on 5 August, by the threats to subject the plaintiff to the detriment of listing matters for hearing when it was known she could not appear, thereby denying her the right to be heard because she has made allegations that the Court and officers of the Court have done acts that are unlawful by reason of a provision of Part 2 of the Disability Discrimination Act 1992.

In the event that the four additional matters remained listed and heard today, on 5 August 2013, when the plaintiff could not appear on disability grounds, the plaintiff has actually been subjected to detriment in respect of this matter and the four additionally listed matters. 

The plaintiff expected, when she previously made the hundreds of requests for reasonable adjustments to the Court, as a self‑represented disabled person with special needs due to disability and, as confirmed by medical practitioners’ certificates provided to the courts, to be relieved of compliance with the Rules pursuant to High Court Rules 2.02 - 2.02 and 4.02 in respect of any periods of time fixed by or under the High Court Rules for the timing of hearings and the filing, serving or submission of documents in this proceeding and the later proceedings in the Court and on the defendants, that that defendants and the Court would have complied with the provisions of the Disability Discrimination Act 1992 and the Australian Human Rights Commission Act 1986 and the treaty scheduled thereto and the United Nations Convention on the Rights of Persons with Disabilities and the International Covenant on Civil and Political Rights in a manner which was in accord with the principle stated in the National Disability Strategy which adopted those principles set out in Article 3 of the Convention on the Rights of Persons with a Disability, those being respect for inherent dignity, individual autonomy including freedom to make one’s own choices and independence of persons.

Such conduct by the defendants and the Court must be undertaken as part of the administrative functions and policies of the Court, where disability reasonable adjustment sought by individuals of the public are privately processed in a formal and properly documented manner by the Chief Executive Officer of the Court, or delegate, to determine the nature of the adjustments, their reasonability and evidence of such, and whether any unjustifiable hardship could be caused to any party, then an official grant or refusal of the reasonable adjustment sought, as is outlined in the Australian Government Department Reasonable Adjustment Policies for Workplace Employees - for Workplace – sorry, employees of the Court have had entitlements to such policies, but the disabled litigant is subjected to undignified and public humiliation in being required to seek such reasonable adjustments from a judge in public who is not qualified to make such assessments of all the circumstances, nor should they be in such a position to hold a biased view of the litigant prior to the hearing of a matter before the purported competent, independent and impartial tribunal.

Now, the reasonable adjustments that the plaintiff required were, in this case, to be relieved from compliance with the rules and granted reasonable control over how much time she spends appearing before the Court and how often she is able to appear as it is not possible for the plaintiff to proceed in this matter without staging the hearing in consideration of the various issues, claims and questions of law in this matter, so that the plaintiff is provided with sufficient time to make proper and comprehensive preparations for each issue given that she is a disabled lay person who has been refused legal and counsel advice for the very important constitutional questions of law in respect of her matters afoot in the High Court by PILCH and the Victorian Bar Association on discriminatory grounds. 

The plaintiff be relieved from – that was (a) – (b) the plaintiff be relieved from compliance with the rules and granted reasonable control over the staging of her submissions and appearances in accordance with her reasonable estimates of time required for preparation in respect of each question and issue of law and claims made based on her known level of tolerance to physical and mental stresses which inevitably cause her to experience post‑traumatic stress and adjustment disorder symptoms in relation to the issues in question in this matter and taking into consideration the further stresses inflicted upon her personal circumstances by refusals of the Victorian and Australian Governments and their agencies to grant access to her personal information, collected and kept by them, and access to government information relating to decisions made by them that affect the public. 

The plaintiff be relieved of - (c), the plaintiff be relieved of compliance with the Rules to have documents of the plaintiff which are transmitted by facsimile to the Registries of the Court accepted for filing on that day of faxing provided the correct original document is received by mail by the Registry in question for sealing or stamping within a reasonable period of time and (d) the plaintiff be given leave when necessary and upon request for the grant of reasonable adjustments as required. 

Now, your Honour, that is one of the problems that exists in (c) which was the one in regard to the faxes.  I mean, this is a procedural matter but it is – we are dealing here with the Attorney‑General, the second defendant, and the Commonwealth Government.  They administer the rules – they administer the Court, they administer the policies of the Court, most of them, the functional policies of the Court, not the judicial side.  That is the separation of powers.  It is the Executive Government.  This is where you, making decisions in regard to my reasonable adjustments, is also ‑ the power is being exercised improperly because you are not the executive supposed to be dealing with the National Disability Strategy in the things that are supposed to emanate from that directly. 

If you do not mind me saying, your Honour, I believe your role as a Judge here, in this particular case with regard to the disability reasonable adjustments is that the Chief Executive Officer, he administers the executive and administrative functions of the Court and assists the judiciary with their functions as well. But this is a policy that is Australia wide that affects – it is a Disability Discrimination Act under a United Nations Convention incorporating the United Nations Convention that is an international matter.

It is a matter that comes under section 75 of the Constitution under foreign affairs and I can cite an authority if I go and look. I cannot recall the name of the judge who specified that - the authority itself, but it was one I found on the Human Rights Commission site - that it is an international issue and therefore, when it comes to – in any workplace, the disability reasonable adjustments have to be ‑ people have to make requests, file forms, somebody is allocated to dealing with those things in every department of the government. It is done in that manner.

Because I am standing in front of you - I should be here beside this defendant and their representative without your knowledge, without your input or anything to do with me having a disability unless it is to argue a case that I have been injured and the disability is going to cost that much or it is – you know, I have got impairment of this level or so on and so forth.  My disability is already the issue in the Court.  My complaints from below are issues of disability and I want this stopped here and you cannot stop it any more because you are no longer impartial. 

Therefore, what should happen is that the Chief Executive Officer of the Court or tribunal or wherever it is - they are quasi‑judicial tribunals or judicial tribunals, I make my letters to the Court – when I file my document – technically I believe you should not even know that I am disabled.  You should not see the letter or there should be some way that I could make that privately – the reasonable adjustment.  There should be, you know, on the website and you go in and you say - and there is a section that says “reasonable adjustments” and they have disability action plans that all are supposed to deal with these things and they do and in the Victorian Department of Justice, which is why I am in the Court over these special leave applications, is they actually specify that aids - and as it does in the National Disability Strategy. 

These strategies and various accommodations and things must be put in place so that when I walk in that door there I should not be having to deal with this.  I should be with this lady exactly the same.  You should not know that I am disabled and I have got reasonable adjustments.  What should be told to you, in this case, where I am sitting ‑ that is, if it was a physical, you know like in this court below it was in relation to disability – using assistive technology, right, and that means that assistive technology could be a walking stick, a wheelchair, it could be anything but – and which means that the reasonable adjustment must be granted so that that person can come into the Court with that reasonable adjustment being the aid and the judge treats – it is exactly the same – both parties the same. 

In this case, where I am seeking to have extra time and things like that which, of course, there is no way that nobody can be involved in that, so everybody has to have some – it has to be considered whether justifiable hardship is going to be caused.  In my case, if I was to set up the program whereby a person could seek disability - reasonable adjustments in the High Court, I would say that I have to make those requests to a specific officer.  They would then assess my requests, ask for whatever evidence they required to determine whether that was a reasonable adjustment and that would include medical certification and whatever, but this is one individual person that is private – it is like applying for a job or anything else.  It is my sensitive and private information.  It should not be something I have to do this with. 

So then they would then under the – being a delegate of the Chief Executive Officer, they would then make a decision that, yes, this person is eligible for – eligible to receive and be granted those reasonable adjustments because they are not going to cause anybody unjustifiable hardship.  Then the judges – the judge specific to that case or perhaps more than that, that is what is put - whenever I go to the Court my name is immediately associated with those – but only by the people within the Court - that those reasonable adjustments are allowed. 

That means that when you know, the judge knows that I have reasonable adjustments in the way that I make my submissions or can manage timeframes and so on that is the only thing that is – I should know when I come to this Court that you have to make those under the law.  How we work them out or how that is done should be not distressing the person, should be automatically given with the greatest benefit which is what all these beneficial laws involve.  You would not then have any decision making – the only decision‑making power you would have in regard to reasonable adjustments is how long and whether I can convince you sufficiently that my circumstances are that I can go that far or take so long or, you know, that are reasonable.

Ms Luck next seeks mandamus in relation to the first defendant’s refusal to accept for filing her proposed second amended application and associated documents on 17 August 2012. The salient difference between the proposed second amended application and the third amended application, in respect of which the Attorney‑General’s summons is brought, is that Justice Hayne was named in the second amended application as the seventh defendant. Ms Luck proposed to seek writs of mandamus and prohibition directed to Justice Hayne in relation to his Honour’s direction, pursuant to rule 6.07, that the Registrar refuse to file her application for special leave to appeal against the decision of Justice Kenny.

Section 75(v) of the Constitution does not confer jurisdiction to issue constitutional writs directed to a Justice of the High Court. As was recognised in R v Murray and Cormie; Ex parte The Commonwealth (1916) 22 CLR 437 at 453, and has been recognised and applied on a number of occasions since, the inherent nature of prohibition and mandamus, the constitutional writs for which section 75(v) provides, requires that the officer to whom they are directed be someone who is not a member of the tribunal to which the application for their issue is made. The evidence does not establish the reason for the first defendant’s refusal to file the document in question. What is clear is that no purpose could now be served by an order directed to facilitating the filing of that document. The proposed second amended application is overtaken by the third amended application, and to the extent that it would have sought relief not now claimed, that relief, being directed to Justice Hayne, could not in any circumstances have been granted. There is accordingly no arguable basis upon which the relief sought against the first defendant by prayer (a) could be granted.

By prayer (b), Ms Luck seeks a writ of mandamus or an injunction directed to the fourth defendant on the basis of the fourth defendant’s refusal on 3 February 2012 to accept for filing Ms Luck’s application for special leave to appeal from the decision of Justice Kenny. That application, being one for special leave to appeal from a decision of a single judge of the Federal Court, was plainly outside the jurisdiction of the High Court by operation of section 33(2) of the Federal Court of Australia Act 1976 (Cth). The fourth defendant sought in relation to it a direction under rule 6.07. The direction subsequently in fact given by Justice Hayne pursuant to that rule meant that the application could not be accepted for filing thereafter without the leave of a Justice. The fourth defendant was, accordingly, thereafter duty‑bound to refuse to file the document without the leave of a Justice. Ms Luck’s attempt to characterise the refusal to file as “fabricat[ing] evidence” is, again, without any foundation.

Ms Luck makes additional allegations about the conduct of the fourth defendant on the occasion of refusing to file the application for special leave to appeal.  She alleges that the fourth defendant engaged in intimidating and threatening conduct, caused her, Ms Luck, loss, damage and disadvantage, and discriminated against, victimised and harassed her.  Taken at their highest, the allegations could not be relevant to the grant of mandamus or an injunction.  The relief sought against the fourth defendant by prayer (b) therefore lacks an arguable foundation.

By prayer (c), Ms Luck seeks a writ of mandamus or an injunction directed to the fifth and sixth defendants.  One alleged basis for the relief so claimed appears to be that the fifth and sixth defendants made “decisions, determinations, directions and orders in the administrative and judicial processing of the plaintiff’s proceedings”.  The precise decisions, determinations, directions and orders are not identified.  To the extent Ms Luck bases her claim against the fifth and sixth defendants on conduct of the first and fourth defendants, the claim should not succeed in circumstances where the claims in respect of the first and fourth defendants themselves do not succeed.

The second alleged basis for the relief claimed is to compel the sixth defendant to institute proper and thorough investigations into the circumstances of Ms Luck’s complaints of discrimination, harassment and victimisation.  Among the various instruments Ms Luck lists in prayer (c), only the High Court Service Charter deals in any way with the Principal Registrar responding to complaints about Registry staff.  It indicates that the Principal Registrar will endeavour to respond within five days to complaints that have not been resolved within a local Registry.  It may be accepted that the publication of a service charter falls within the sixth defendant’s broad statutory power to do all things that are necessary or convenient to be done for or in connection with the performance of his or her functions, which include exercising control over the Registry.  So much is clear from sections 19(2) and 30(2) of the High Court Act 1979 (Cth), but a service charter, having been published, does not itself create any public duty, performance of which can be compelled by mandamus.

The evidence filed by Ms Luck in any event establishes that the sixth defendant responded to her complaints dated 6 and 9 February 2012 concerning the events of 3 February 2012 by referring the complaints to the fifth defendant, who wrote to Ms Luck concerning them on 15 February 2012.  Nothing in that correspondence discloses any arguable basis for the relief sought against the fifth and sixth defendants in prayer (c), nor is there anything else in the evidence to support that relief.

By prayer (d), Ms Luck seeks a writ of mandamus or an injunction directed to the sixth defendant.  The basis of the claim is that on 17 August 2012, when she attempted to file her proposed second amended application, a Registrar was not in attendance at the Registry during business hours when she attended to conduct her business with the Court.  Ms Luck deposes to attending the Melbourne office of the Registry at 9.40 am on 17 August 2012 and being advised that due to the first defendant being in Court it would not be possible for Ms Luck to file her documents then.  She deposes to having left her documents with a staff member, attended a medical appointment elsewhere and returned at 2 pm.  She says that the documents still had not been filed at that time and she left and returned just after 3 pm when the first defendant then attended to her documents and refused to file them.  The circumstances to which Ms Luck deposes are regrettable but disclose no basis for the relief sought against the sixth defendant by prayer (d). 

By prayer (e), Ms Luck seeks a writ of mandamus or an injunction directed to the Attorney‑General as second defendant.  One basis on which relief is sought is to compel the Attorney‑General to “review and, where necessary, revoke” certain legislation and to “ensure that all governments of Australia, the courts and judiciary apply international and domestic laws and the rules of natural justice and procedural fairness”.  She identifies no source of lawful power, let alone duty, to undertake these actions.

Another basis for the relief sought is to compel the Attorney‑General to perform the Attorney‑General’s duty to investigate formal complaints made between 2000 and 2012.  Again, she identifies no source for the alleged duty.  There is no arguable basis for the relief sought by prayer (e). 

By prayer (f), Ms Luck seeks writs of certiorari or injunctions to quash the “decisions” made by the first defendant on 10 November 2011, 5 December 2011 and 23 December 2011 and to quash the decision of the fourth defendant on 3 February 2012.  The so‑called “decisions” of the first defendant were not decisions but letters of correspondence explaining the operation of the High Court Rules.  For the same reason that mandamus would be refused under prayer (a), certiorari would also be refused.  The fourth defendant correctly refused to accept for filing the proposed application for special leave to appeal against the decision of Justice Kenny on 3 February 2012.  For reasons already given in respect of the refusal of mandamus under prayer (b) certiorari would also be refused. 

By prayer (g), Ms Luck seeks writs of prohibition or injunctions directed to the first, fourth, fifth and sixth defendants prohibiting them from acting upon the “decisions” of the first defendant and the decision of the fourth defendant dealt with in prayer (f).  For the same reasons, prohibition would be refused.

By prayer (h), Ms Luck seeks writs of prohibition or injunctions directed to the first, fourth, fifth and sixth defendants prohibiting them from acting upon a direction of Justice Hayne given pursuant to rule 6.07 directing the Registrar to refuse to file Ms Luck’s application for special leave to appeal from the decision of Justice Kenny. The present application is not an appropriate vehicle for Ms Luck to seek to call into question the direction given by Justice Hayne, which is unquestionably to be obeyed. Prohibition would inevitably be refused.

Prayer (i) and prayer 2, are conveniently dealt with together.  By prayer 2 Ms Luck seeks “an order for the appropriate disposal of the common constitutional questions of law for determination” in respect of her “numerous matters now afoot in the High Court of Australia”.  By prayer (i), she seeks relief from compliance with the High Court Rules in relation to filing the “documents necessary for consolidation with this matter for the determination of the common constitutional questions of law” in her asserted associated matters in the High Court.

The so‑called “common constitutional questions of law”, which Ms Luck sets out in four subparagraphs over more than four pages in the third amended application for an order to show cause, are prolix, in part unintelligible and appear to concern a large number of matters not the subject of any evidence that she has filed with the Court.  It is unnecessary to set out in detail the questions to which Ms Luck seeks answers.  There is no basis for making the order sought in prayer 2 and it would inevitably be refused.  It follows that the relief sought in prayer (i) would be of no utility.

In prayer 3, Ms Luck describes “further difficulties” which appear to concern vague and unparticularised allegations of bias on the part of Justices of the High Court, those difficulties being raised by the “constitutional” issues sought to be ventilated by the relief sought in prayer 2.  To the extent Ms Luck actually seeks any relief by this prayer, it is plainly dependent upon the fate of prayer 2.  For reasons I have given in relation to prayer 2, prayer 3 would be refused.

By prayer 4, Ms Luck seeks an order “that a separate declaration is made by a competent, independent and impartial court or tribunal after fair and public hearings are had in respect of the constitutional questions of law relating to the human rights violations” which she claims.  This prayer must suffer the same fate as prayer 3. 

By prayer 5, Ms Luck seeks “leave to appeal in this matter”.  The reference to “this matter” appears to be a reference to her application for special leave to appeal from the decision of Justice Kenny.  Leave is expressly sought in terms of an “order that, following a separate declaration being made” “after fair and public hearings are had in respect of the constitutional questions”; that is, the order sought is predicated upon the grant of the relief sought in prayers 2 and 4.

By prayer 6, Ms Luck seeks leave to file and serve documents in the six applications for leave to appeal taken to have been abandoned by operation of the High Court Rules.  As those proceedings are taken to have been abandoned, and there is no application for reinstatement of those proceedings, leave to file and serve would inevitably be refused. 

By prayer 7, Ms Luck seeks a declaration that she was “entitled to be granted reasonable adjustments by the defendants, in accordance with her legitimate expectations in respect of the provisions of the Disability Discrimination Act 1992” and various international instruments. This would be a bare and abstract declaration in respect of past events. No basis for making it is disclosed.

By prayer 8, Ms Luck seeks an order directing the first defendant to file and issue her proposed second amended application and associated documents.  For reasons given in relation to prayer (a), which sought a writ of mandamus to achieve the same result, the relief must inevitably be refused. 

By prayer 9, Ms Luck seeks costs.  By prayer 10, she seeks such judgment or order as the Court thinks fit.  By prayer 11, she purports to reserve the right to add, amend or delete the particulars in the matter in accordance with leave granted or with the rules.  In the circumstances, none of these prayers for relief arises.

For the reasons I have given I am satisfied that there is no arguable basis for granting any of the relief Ms Luck seeks in the third amended application for an order to show cause. The third amended application for an order to show cause will therefore be dismissed pursuant to rule 25.03.3. It is unnecessary to address the alternative order sought by the Attorney‑General that there be judgment for the defendants pursuant to rule 27.09.4 of the High Court Rules in relation to the claims made by Ms Luck.

The order that I would make is that the application be dismissed. 

You seek costs, Ms McKenzie, in the summons of 3 June 2013, is that application pressed?

MS McKENZIE:   Yes, your Honour.

HIS HONOUR:   Is there anything in particular to say about reserved costs?  There were costs reserved on a number of occasions.

MS McKENZIE:   Including all reserved costs, your Honour.

HIS HONOUR:   Very well.  The orders that I would make are:

1. Application dismissed;

2. The plaintiff pay the costs of the second defendant of and incidental to the application, including reserved costs.

The Court will now adjourn.

AT 3.28 PM THE MATTER WAS CONCLUDED