Luck v University of Southern Queensland

[2009] FCA 479

FEDERAL COURT OF AUSTRALIA

Luck v University of Southern Queensland [2009] FCA 479

PRACTICE AND PROCEDURE – application by an appellant to a member of a Full Court to disqualify himself from sitting on the hearing of her appeal for reason of his prior acceptance of instructions from clients who had retained the same firm of solicitors as had been retained by the respondent

Held:  Application dismissed

Luck v University of Southern Queensland (No. 2) [2008] FCA 1594
Luck v University of Southern Queensland [2008] FCA 1582
Livesey v New South Wales Bar Association (1983) 151 CLR 288
Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337

GAYE LUCK v UNIVERSITY OF SOUTHERN QUEENSLAND

VID 899 of 2008

GRAHAM J
7 MAY 2009
SYDNEY VIA VIDEO LINK TO MELBOURNE

IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY	VID 899 of 2008

ON APPEAL FROM A SINGLE JUDGE OF THE FEDERAL COURT OF AUSTRALIA

BETWEEN:	GAYE LUCK Appellant
AND:	UNIVERSITY OF SOUTHERN QUEENSLAND Respondent

JUDGE:	GRAHAM J
DATE OF ORDER:	7 MAY 2009
WHERE MADE:	SYDNEY VIA VIDEO LINK TO MELBOURNE

THE COURT ORDERS THAT:

1.The appellant’s application made ore tenus to Graham J to disqualify himself from sitting on the hearing of the appeal, be dismissed.

Note:Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

The text of entered orders can be located using eSearch on the Court’s website.

IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY	VID 899 of 2008

ON APPEAL FROM A SINGLE JUDGE OF THE FEDERAL COURT OF AUSTRALIA

BETWEEN:	GAYE LUCK Appellant
AND:	UNIVERSITY OF SOUTHERN QUEENSLAND Respondent

JUDGE:	GRAHAM J
DATE:	7 MAY 2009
PLACE:	SYDNEY VIA VIDEO LINK TO MELBOURNE

REASONS FOR JUDGMENT

1. Gaye Alexandra Luck is the appellant in proceedings VID 899 of 2008, in which the respondent is the University of Southern Queensland.  In the appeal she challenges decisions reached by the primary judge on 22 October 2008.  One of the judgments delivered by the primary judge on that day, Luck v University of Southern Queensland (No. 2) [2008] FCA 1594, considered an application made by Ms Luck that the primary judge should disqualify himself from hearing the matter which was before him in proceeding VID 476 of 2008.

2. The other judgment given on the same day, namely 22 October 2008, was the primary judge’s judgment in Luck v University of Southern Queensland [2008] FCA 1582, in which his Honour refused an application for adjournment of the hearing of VID 476 of 2008 and ordered that an appeal from the Administrative Appeals Tribunal, which was then before his Honour, be dismissed with costs.

3. I have been assigned, as a judge of this Court, to sit with two other judges on the appeal which Ms Luck brings from the judgments of the primary judge. 

4. On 1 May 2009, Ms Luck filed a Notice of Motion in the appeal in this matter in which she sought the disqualification of various judges, including Moore, Rares, Tracey and Bennett JJ, although the only relevant part of that Notice of Motion was contained in paragraph 2 in which she sought an order in relation to disqualification of Rares J.  Her motion, filed 1 May 2009, has been heard by Rares J, who has declined to disqualify himself from participating in the hearing of the appeal.

5. When Ms Luck announced her appearance earlier this afternoon, she indicated that she wished to seek an order that I also disqualify myself from participating in the hearing of the appeal.  The basis on which my disqualification has been sought is that during my career as a barrister-at-law I, on occasions, was instructed by the same firm of solicitors as presently act as the solicitors for the respondent to the appeal, namely, the University of Southern Queensland.  It is also suggested that a relevant matter is the fact that, according to Ms Luck, I also acted on the instructions of the Australian Government Solicitor from time to time, that firm being the solicitors for the Commonwealth of Australia in other proceedings which were addressed by the primary judge and in which judgments were delivered which are the subject of other appeals to differently constituted Full Courts. 

6. As Mason, Murphy, Brennan, Deane and Dawson JJ said in Livesey v New South Wales Bar Association (1983) 151 CLR 288 at 294:

   ‘… [I]t would be an abdication of judicial function and an encouragement of procedural abuse for a judge to adopt the approach that he should automatically disqualify himself whenever he was requested by one party so to do on the grounds of a possible appearance of pre-judgment, or bias regardless of whether the other party desired that the matter be dealt with by him as the judge to whom the hearing of the case had been entrusted by the ordinary procedures and practice of the particular court.’

7. Where, in the absence of a suggestion of actual bias, and there is no such suggestion made by Ms Luck in this case, a question arises as to the independence or impartiality of a judge, then a judge is to be disqualified if a fair-minded lay observer might reasonably apprehend that the judge might not bring an impartial mind to the resolution of the question the judge is required to decide.  That principle gives effect to the requirement that justice should both be done, and be seen to be done (per Gleeson CJ and McHugh, Gummow and Hayne JJ, in Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337 (‘Ebner’) at [6]).

8. Application of the bias principle requires two steps.  First, it requires an identification of what it is said might lead a judge to decide a case other than on its legal and factual merits.  The second step is no less important.  There must be an articulation of the logical connection between the matter and the feared deviation from the course of deciding the case on its merits.  The bare assertion that a judge has an “interest” in litigation, or an interest in a party to it will be of no assistance until the nature of the interest and the asserted connection with the possibility of departure from impartial decision making, is articulated.  Only then can the reasonableness of the asserted apprehension of bias be assessed (per Gleeson CJ and McHugh, Gummow and Hayne JJ in Ebner at [8]).

9. In the course of her submissions, on the application made ore tenus that I should disqualify myself, Ms Luck said words to the effect “I can understand why you wouldn't disqualify yourself,” referring to me.  She also said in the course of her submissions, that she saw me as being “non-biased” or words to that effect.

10. If the mere making of an insubstantial objection were sufficient to lead a judge to decline to hear or decide a case, the system would soon reach a stage where, for practical purposes, individual parties could influence the composition of the bench.  That would be intolerable (see per Gleeson CJ and McHugh, Gummow and Hayne JJ in Ebner at [20]).

11. In my opinion, no case has been made out or asserted by Ms Luck which might reasonably lead a fair-minded lay observer to apprehend that I might not bring an impartial mind to the resolution of the questions that I will be called upon to decide as a member of the Full Court hearing Ms Luck’s appeal in matter number VID 899 of 2008. 

12. I dismiss Ms Luck’s application made ore tenus and decline to disqualify myself.

I certify that the preceding twelve (12) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Graham.

Associate:

Dated:        12 May 2009

The Appellant appeared in person.

Counsel for the Respondent:	J D Pizer
Solicitor for the Respondent:	Clayton Utz

Date of Hearing:	7 May 2009
Date of Judgment:	7 May 2009