Luck v University of Southern Queensland and Anor

[2013] HCATrans 163

[2013] HCATrans 163

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Melbourne       No M112 of 2009

B e t w e e n -

GAYE LUCK

Applicant

and

UNIVERSITY OF SOUTHERN QUEENSLAND ABN 40 234 732 081

First Respondent

CHIEF EXECUTIVE OFFICER OF UNIVERSITY OF SOUTHERN QUEENSLAND

Second Respondent

Summons

GAGELER J

TRANSCRIPT OF PROCEEDINGS

AT MELBOURNE ON MONDAY, 5 AUGUST 2013, AT 10.30 AM

Copyright in the High Court of Australia

MS P.J. MITCHELL:   May it please the Court, I appear on behalf of the respondents.  (instructed by Clayton Utz Lawyers)

HIS HONOUR:   Thank you, Ms Mitchell.  I note that there is as yet no appearance for the applicant.  The matter should be called three times outside the Court.

COURT OFFICER:   No appearance by Ms Luck.

HIS HONOUR:   I note that there is no appearance by the applicant. 

I have before me today in this matter, M112 of 2009, a summons filed on 16 July 2013 and an affidavit in support of that summons filed on the same day and dated 12 July 2013.  I also have before me an affidavit filed today dated 4 August 2013 and have been provided through the Registry with a letter of 5 August 2013 from the applicant, it being a three‑page letter directed to the proceedings today.  Ms Mitchell, do you have those documents?

MS MITCHELL:   I do, your Honour.

HIS HONOUR:   What I would proposed to do, subject to you suggesting a different course, is to deal with the summons, to read the two affidavits and to have the letter marked as exhibit 1 on the summons.

MS MITCHELL:   No objections to that, your Honour.

HIS HONOUR:   That is the course that I take.

EXHIBIT:     Exhibit 1…..Letter from applicant dated 5 August 2013

HIS HONOUR:   I do not need to hear from you, Ms Mitchell, thank you.

MS MITCHELL:   May it please the Court.

HIS HONOUR: On 11 December 2009, Ms Gaye Luck filed an application for an order under section 40 of the Judiciary Act 1903 (Cth) removing into this Court part of a cause pending in the Federal Court of Australia. The underlying cause in the Federal Court is an application for an order of review in which Ms Luck is applicant and in which the University of Southern Queensland and its Chief Executive Officer are respondents.

Rule 26.03 of the High Court Rules 2004 required Ms Luck to file and serve a summary of argument within 28 days after filing her application for an order for removal. The effect of rule 41.13, as applied by rule 26.06, was that her failure to do so was to result in the application being deemed to be abandoned six months after it was filed unless the Court or a Justice or Registrar had otherwise ordered or directed. Ms Luck applied for and was granted by a Deputy Registrar several extensions of time for the filing and service of her summary of argument, the last of which expired on 3 May 2013. She failed to file her summary of argument by 3 May 2013 and the application was accordingly deemed to be abandoned on that date.

There is before me today a summons dated 16 July 2013 by which Ms Luck seeks orders for an extension of time within which to file her summary of argument and other documents in the application.  The summons is supported by an affidavit of the same date in which Ms Luck refers to several proceedings in which she is involved and attributes her previous failure to file her case to acute and chronic illness which she says has been exacerbated by the ongoing trauma inflicted on her by parties, governments, courts and tribunals.  Following the filing of the summons, Ms Luck requested of a Deputy Registrar that it be dealt with “on the papers” before today.

The summons having been listed for hearing and determination today, Ms Luck objects, by a letter of today’s date, which I have had marked as an exhibit in these proceedings, to me dealing with the summons in Court today.  She also apparently relies in that respect on an affidavit sworn by her on 4 August 2013.  I do not accept the letter or the affidavit as advancing a sufficient reason in light of her previous attitude as to why the summons should not be determined today.  I do not accept in the absence of specific medical evidence that her health would have been placed in jeopardy by appearing before me today and I do not accept, if that be the burden of her submission, that she has had inadequate time to put forward in support of her summons whatever submissions and material she might see fit.

The summons is in substance an application for the reinstatement of the principal application deemed to be abandoned on 3 May 2013. I proceed to consider it on that basis. The discretion to extend the time for doing an act under the High Court Rules is, as McHugh J said in Gallo v Dawson (1990) 93 ALR 479 at 480:

given for the sole purpose of enabling the Court to do justice between the parties.

The exercise of the discretion to reinstate an application that has been abandoned is informed by the length of, and any explanation, for the delay leading to the abandonment and by the current state of readiness of the proceeding for substantive determination.  It is also informed by the prospects of the application’s success.  In particular, time will not be extended unless the proposed application has some prospect of success.

Against that background, it is convenient to consider the merits of the proposed application for removal.  The application for removal is supported by an affidavit of 9 December 2009 which sets out the background to that application.  The cause, part of which is sought to be removed, was commenced in the Federal Court as an application for an order of review filed in that court on 11 May 2009.  An amended application for an order of review was filed on 26 May 2009.  The application for an order of review in the Federal Court seeks to challenge what is identified as a decision of the University of Southern Queensland not to accept or process the applicant’s application for enrolment in a particular course of study.

Seeking to invoke the jurisdiction of the Federal Court under section 39B of the Judiciary Act 1903 (Cth) and the Administrative Decisions (Judicial Review) Act 1977 (Cth), Ms Luck raises in the application to the Federal Court a large number of administrative law grounds on which she seeks to challenge that decision. Those grounds include error of law, want of jurisdiction, denial of procedural fairness, taking into account an irrelevant consideration, failing to take into account a relevant consideration, exercising a power for an improper purpose, unreasonableness, absence of evidence, fraud and bad faith. She also alleges breach of contract and breach of various statutes.

I do not propose to consider the merits of the application for an order of review, but only the merits of the application for an order for removal into the High Court.  The making of the application for an order for removal appears to have followed the Registry of the Federal Court writing to the parties to the application for an order of review in the Federal Court advising that the application for an order of review was listed for directions on 11 December 2009 before Tracey J.  The grounds on which an order for removal was sought in this Court by the application Ms Luck now seeks to have reinstated include claims that there is a reasonable apprehension of bias on the part of Tracey J based on the circumstances that Tracey J had heard previous proceedings involving Ms Luck, had served as Judge Advocate General of the Australian Defence Force and had, prior to his appointment as a judge of the Federal Court, acted as counsel for the Commonwealth.  The cause, part of which is sought to be removed, is also said to be interrelated to other proceedings to which Ms Luck is a party pending in the High Court.

The principles governing orders for removal were stated in Bienstein v Bienstein (2003) 195 ALR 225 at 234. Because orders for removal interfere with the processes of the courts hearing the proceedings sought to be removed, they are made, only where the issues are important and require this Court’s urgent decision.

The issues raised in the proceedings sought to be removed are not of that character.  The allegation of apprehended bias on the part of Tracey J, in particular, falls to be determined according to well‑established principles in the first instance before Tracey J himself. 

The application for removal, if it were reinstated, would have no prospects of success.  Reinstatement would therefore be futile and will be refused.  The summons is therefore to be dismissed.

The order I therefore make is that the summons is dismissed.

MS MITCHELL:   May it please the Court.

AT 10.42 AM THE MATTER WAS CONCLUDED