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[2015] FCAFC 75
respondent. The appellant's interlocutory applications dated 22 April 2015 for stays or adjournments pending High Court removal, and the further adjournment applications made on 1 May 2015, were dismissed....
Gaye Luck asked the Full Federal Court to put two long-running appeals on hold. One appeal concerned whether she could challenge procedural steps taken by the Administrative Appeals Tribunal on her Centrelink FOI request; the other concerned whether the Tribunal had jurisdiction over her later Department of Human Services FOI request. She had already obtained multiple delays over seven years while she ran parallel High Court cases. In April 2015 she filed applications to move both appeals to the High Court and asked the Federal Court to stay them in the meantime. She then wrote to the Court saying she was in too much pain from long-term heart and other conditions to do any more work and needed three months off, supported by a letter from her doctor. The Court had already delayed the hearing until 10.30 am, excused her from preparing chronologies and appeal books, and shifted work to the respondents. Despite these accommodations she did not attend the 21 May 2015 hearing. The three judges decided the delays had gone on long enough. They ruled that a stay was unnecessary because the High Court removal applications were unlikely to succeed—the same complaints about the trial judge had already been rejected several times—and the ordinary appeal process could decide the FOI issues. On the health request they found the doctor's letter too vague: it did not prove she could not prepare short written submissions, it dealt with old conditions rather than a new crisis, and it was not sworn evidence. The judges noted that Ms Luck's own choice to keep starting new High Court applications had multiplied her workload, and that the underlying disputes were now years old and relatively narrow. Continuing to tie up judges and government lawyers would be unfair to other litigants and disproportionate. They dismissed the stay and adjournment requests, ordered her to pay costs, but gave her until mid-June to send written arguments on one appeal so the Court could decide the substantive matters on the papers if she wished.
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Ms Gaye Luck lodged Freedom of Information requests with Centrelink in 2005 and with the Department of Human Services in 2009. Those requests led to Administrative Appeals Tribunal proceedings in which the Tribunal made various procedural directions, refused leave to amend applications, and ultimately determined it lacked jurisdiction to conduct merits review. Ms Luck sought to challenge those steps by proposed appeals under s 44 of the Administrative Appeals Tribunal Act 1975 (Cth) and applications under the Administrative Decisions (Judicial Review) Act 1977 (Cth). Tracey J refused an extension of time in the 2008 matter on the basis that the proposed appeal was bound to fail, and in the 2014 matter dismissed the s 44 appeal after upholding an objection to competency because the notice of appeal disclosed no question of law.
Both matters then entered the appellate stream of the Federal Court as VID 898 of 2008 and VID 512 of 2014. Over the ensuing years the appeals were listed and relisted on at least five occasions, each time adjourned at Ms Luck's request or because of fresh High Court proceedings she had commenced. Mortimer J assumed case management in early 2015 and made orders on 30 January 2015 fixing the appeals for hearing in the May 2015 Full Court sittings. Those orders took account of Ms Luck's requests for accommodations as a litigant in person with disabilities, including later start times and limits on the number of matters per day.
On 21 April 2015, while preparation was well advanced, Ms Luck filed applications in the High Court under s 40 of the Judiciary Act 1903 (Cth) to remove both appeals (and other matters) to that Court. She simultaneously filed interlocutory applications in the Federal Court seeking stays of the two appeals pending determination of the removal applications. On 1 May 2015 she sent correspondence seeking, in the alternative, a three-month adjournment on health grounds. That correspondence attached a letter from Dr Priscilla Leow dated 30 April 2015 certifying that Ms Luck suffered from severe acute cardiac symptoms in 2013, experienced ongoing mental and physical symptoms exacerbated by stress, and required a three-month period of treatment and recovery. The letter also referred to post-traumatic and adjustment disorder, the need for assistive technology, and the involuntary nature of raised speech when anxious.
The Full Court (Collier, Griffiths and Mortimer JJ) directed the filing of submissions on the stay applications and made further accommodations: extension of time for written submissions in VID 898 of 2008, relief from filing a chronology, allocation of appeal-book preparation to the respondents, and a hearing start time no earlier than 10.30 am. Ms Luck did not file the directed submissions. On 18 May 2015 she emailed the Court repeating that she was incapable of preparing or appearing. Nettle J, sitting in the High Court, dismissed her applications for a stay of the Federal Court appeals on 19 May 2015. When the matters were called on 21 May 2015 Ms Luck did not appear. The Full Court heard and dismissed the interlocutory applications that day, published written reasons on 1 June 2015, ordered costs against her, and granted a final four-week period within which she could file written submissions on the VID 898 of 2008 appeal.
The Full Court began from the proposition that the orderly administration of justice required consideration of whether a stay was necessary to preserve the subject matter of the litigation or to avoid practical difficulties for the High Court. Drawing on the summary in Birdon Pty Ltd v Houben Marine Pty Ltd [2011] FCA 1217 at [10], the Court held that a stay would be justified only where refusal would render any High Court relief nugatory or create a risk that the appellant could not be restored substantially to her former position. The Court found none of those criteria satisfied. The subject matter—whether Tracey J erred in refusing an extension of time or in dismissing an incompetent s 44 appeal, and whether he should have disqualified himself on the basis of his prior role as Judge Advocate General—could be determined in the Federal Court's appellate jurisdiction. Removal under s 40 was described as exceptional; the High Court itself had said in Bienstein v Bienstein (2003) 195 ALR 225 at [45] that such orders interfere with lower-court processes and should be made only for important issues requiring its urgent decision.
The Court further considered that the removal applications had little or no prospect of success. The constitutional arguments concerning Tracey J had been rejected by three prior Full Courts and by the High Court itself in related proceedings. No fresh constitutional issue arose in these two appeals that could justify removal. Accordingly, the stays were refused at paragraph [40].
On the health-based adjournment application the Court applied the statutory imperative in s 37M of the Federal Court of Australia Act 1976 (Cth) and the discretionary factors identified in Sali v SPC Ltd (1993) 116 ALR 625 and Aon Risk Services Australia Pty Ltd v Australian National University (2009) 239 CLR 175. It examined four matters: the explanation for the adjournment, the appellant's choices to date, detriment to other parties, and detriment to other litigants and the Court's publicly funded resources. The medical letter was found unpersuasive for several reasons set out at paragraph [48]. It was not verified on affidavit, a defect noted in earlier decisions involving the same appellant and the same doctor. It referred to conditions existing since at least 2013 without identifying any recent worsening connected to the preparation required for the 21 May hearing. It did not explain why the appellant could not file written submissions when the Court had already relieved her of preparing chronologies, appeal books and copies of authorities. The Court observed that the volume of litigation was, to a significant degree, of the appellant's own making through repeated collateral applications; the medical advice did not suggest any reduction in that volume.
The Court weighed the seven-year delay in VID 898 of 2008, the repeated accommodations already granted, and the narrow scope of the underlying FOI disputes. It concluded that further adjournment would be disproportionate and would undermine public confidence in the judicial system by prioritising one litigant's claims over the claims of others waiting for hearing. Paragraph [52] expressly invoked the need for finality so that Court resources were not unduly consumed by a single litigant. The judges noted that the appellant's arguments were already well known from prior proceedings and that written submissions remained a feasible option. For those reasons both the stay and the adjournment applications were dismissed.
Before this judgment the law on stays pending High Court removal was settled by Bienstein v Bienstein and applied in Federal Court decisions such as Luck v University of Southern Queensland [2011] FCA 1335 (Kenny J). A removal application did not operate as an automatic stay; the lower court retained power to proceed and could have regard to the apparent weakness of the removal application. The principles governing adjournments were authoritatively stated in Aon Risk Services, which emphasised that delay causes irreparable prejudice even if costs are ordered, that court time is a publicly funded resource, and that proportionality and efficient case management must be weighed. Sali v SPC Ltd had already directed attention to the effect of adjournments on other litigants.
This judgment did not change those principles. Instead it illustrated their application in the concrete setting of protracted litigation brought by a serial self-represented litigant who repeatedly sought collateral High Court relief and advanced health-based adjournment requests supported by unsworn medical letters. The Court reinforced that medical evidence must address the critical question whether the condition prevents effective participation in the specific tasks required. It also gave prominence to the statutory overlay of s 37M(2), requiring that powers be exercised to facilitate the quick and inexpensive resolution of disputes. After the judgment, practitioners could point to it as an example of how chronic litigant behaviour, cascading stay applications, and generalised medical certificates are likely to be weighed against the public interest in finality and the efficient allocation of judicial resources. The principles themselves remained unchanged; their practical boundaries were more clearly marked.
Paragraph [32] quotes Rares J in Birdon and then states: "We respectfully agree with his Honour's summary of the approach to be taken." In plain English the Court is saying it will only pause a case if stopping is the only way to stop the High Court from being unable to give meaningful relief later.
At paragraph [37] the Court adopts Kenny J's earlier observations: "the mere making of an application under s 40 … does not preclude this Court from proceeding … Only where the issues are important and require this court's urgent decision should the court make an order for removal." Translation: filing paperwork in the High Court does not freeze the Federal Court; the High Court does not want to become a general overseer of every lower-court dispute.
Paragraph [48] contains the key rejection of the medical evidence: "The medical evidence is unpersuasive. It is not verified on affidavit … there is nothing in the letter concerning any recent development, exacerbations, or new diagnoses … the amount of preparation … is in that sense a self-fulfilling prophecy." In everyday language the judges are saying the doctor's letter is too vague, too old, and does not prove she cannot write a submission; much of her workload is caused by her own choice to keep starting new cases.
Paragraph [52] states: "To ensure that the resources of this Court are not unduly consumed with the claims of one litigant over others … these appeals should be heard and determined. Their merit does not improve with delay." Translation: one person's disputes cannot be allowed to tie up the system forever; if the arguments are good they will still be good after seven years.
Paragraph [55] concludes that the appellant "has elected to draw a line in the sand concerning what she will agree to do, and what she will not. That is a matter for her, but this Court will not delay the hearing and determination of her appeals any longer." Plain English: she has chosen not to do any more work; the Court will not keep postponing the case because of that choice.
This precedent is triggered when a litigant, especially a self-represented one with a history of multiple proceedings, seeks a stay of Federal Court appeals pending a late-filed s 40 removal application that raises arguments already rejected in earlier litigation. It is also engaged where an adjournment is sought on medical grounds and the supporting evidence is a letter (rather than an affidavit) that refers to chronic rather than acute conditions, fails to link the condition to the specific tasks required for the hearing, and does not explain why written submissions remain impossible despite prior procedural accommodations.
The judgment is particularly apt where the underlying dispute concerns narrow administrative-law or FOI matters that have already consumed years of court and respondent resources, where the litigant has previously obtained multiple adjournments, and where the Court has already shifted preparatory burdens away from the litigant. Fact patterns involving "cascading" stay applications—seeking to adjourn one proceeding because of another collateral proceeding that itself is stayed pending yet another application—will attract close scrutiny under the proportionality analysis derived from Aon and s 37M.
The judgment itself records that identical medical letters from the same doctor had been rejected in earlier proceedings involving the same appellant. The Full Court noted at paragraph [48] that the evidentiary shortcomings had been "highlighted in earlier cases" such as Luck v University of Southern Queensland (No 2) [2013] FCA 1141 and Luck v University of Southern Queensland (No 4) [2011] FCA 433. The present decision therefore stands as a further instance of consistent treatment rather than a new departure.
The reasoning on s 37M and proportionality has been applied in subsequent Federal Court decisions managing self-represented litigants who advance generalised health claims without specific evidence. The emphasis on the self-fulfilling nature of collateral High Court proceedings has guided case management where litigants seek repeated stays on the basis of unresolved special-leave or removal applications. The judgment's insistence that medical certificates must address the "critical question" of inability to participate effectively echoes the approach taken by Lindgren J in NAKX v Minister for Immigration [2003] FCA 1559, which the Court expressly approved at paragraph [49]. No subsequent court has cast doubt on the principles; the decision is treated as a routine application of Aon and Bienstein to a persistent litigant.
The judgment leaves open precisely what level of medical detail will suffice in future applications. While it insists the evidence must be "specific" and address effective participation, it does not prescribe whether a report from a specialist, verification on affidavit, or independent medical examination is required in every case. The boundary between reasonable accommodation for disability and impermissible indefinite delay remains case-specific.
Another open question is the precise weight to be given to a litigant's "election" to pursue multiple collateral proceedings when assessing proportionality. The Court viewed the volume of litigation as largely self-created, yet it did not lay down a bright-line rule that any litigant who has sought High Court relief on more than a defined number of occasions forfeits further adjournments. Finally, the interaction between s 37M and the Disability Discrimination Act 1992 (Cth) and the UN Convention on the Rights of Persons with Disabilities—expressly mentioned by the appellant but not analysed in depth—may require fuller consideration in a future case where more compelling medical evidence is presented. These questions ensure that the decision, while decisive on the facts before the Court, leaves room for nuanced application in different circumstances.
Division: GENERAL DIVISION
In VID 898 of 2008 Counsel for the Appellant: The Appellant did not appear
Solicitor for the Respondent: Australian Government Solicitor
In VID 512 of 2014 Counsel for the Appellant: The Appellant did not appear
Solicitor for the First Respondent: Australian Government Solicitor
Counsel for the Second Respondent: The Second Respondent filed a submitting appearance save as to costs
Counsel for the Third Respondent: The Third Respondent filed a submitting appearance save as to costs
IN THE FEDERAL COURT OF AUSTRALIA VICTORIA DISTRICT REGISTRY GENERAL DIVISION VID 898 of 2008
JUDGES: COLLIER, GRIFFITHS AND MORTIMER JJ DATE OF ORDER: 21 MAY 2015 WHERE MADE: MELBOURNE
IN THE FEDERAL COURT OF AUSTRALIA VICTORIA DISTRICT REGISTRY GENERAL DIVISION VID 512 of 2014
STEPHANIE ANN FORGIE (AS DEPUTY PRESIDENT OF THE AAT)
JUDGEs: COLLIER, GRIFFITHS AND MORTIMER JJ DATE OF ORDER: 21 may 2015 WHERE MADE: MELBOURNE
IN THE FEDERAL COURT OF AUSTRALIA VICTORIA DISTRICT REGISTRY GENERAL DIVISION VID 898 of 2008
JUDGEs: COLLIER, GRIFFITHS AND Mortimer JJ DATE: 1 JUNE 2015 PLACE: MELBOURNE
IN THE FEDERAL COURT OF AUSTRALIA VICTORIA DISTRICT REGISTRY GENERAL DIVISION VID 512 of 2014
STEPHANIE ANN FORGIE (AS DEPUTY PRESIDENT OF THE AAT)
JUDGEs: COLLIER, GRIFFITHS AND Mortimer JJ DATE: 1 JUNE 2015 PLACE: MELBOURNE
SUMMARY 1 By applications dated 22 April 2015, the appellant, Ms Gaye Luck, applied for orders to stay or adjourn the appeal proceedings VID 898/2008 and VID 512/2014, listed to be heard together before the Full Court on 21 May 2015. Ms Luck sought stays of each appeal pending the hearing and determination of her applications to remove these appeals to the High Court. By correspondence filed on 1 May 2015, Ms Luck further sought a three-month adjournment of appeal proceedings VID 898/2008 and VID 512/2014 on the basis that she required time for treatment and recovery in connection with a medical condition, during which time she said she would be unable to take steps in these proceedings. 2 On 21 May 2015 we dismissed those applications. We now set out our reasons for the orders we made.
A BRIEF HISTORY OF THESE APPEALS 3 The underlying subject matter of both appeals concerns several, separate applications made by Ms Luck in 2005 (in the case of VID 898/2008) and 2009 (in the case of VID 512/2014) under the Freedom of Information Act 1982 (Cth) (the FOI Act) for documents held by Centrelink and the Department of Human Services respectively. Both appeals have been attended by very significant delays due to applications made by Ms Luck to the High Court and consequent applications by her for these appeals to be adjourned pending the outcome of her High Court proceedings. 4 Mortimer J was assigned to case manage the preparation of the appeals. Case management orders were made in both appeals on 30 January 2015 preparing the appeals for hearing in the May 2015 Full Court sittings, including filing submissions and appeal books. Both parties cooperated in the making of these case management orders, and the orders were made taking into account Ms Luck's submissions about the various "accommodations" she needed in order to be able properly to conduct her appeals as a litigant in person and, she submitted, as a person with disabilities. 5 As at the date of making our orders dismissing the applications, while Ms Luck had filed an outline of submissions in her appeal in VID 512/2014, she has not filed an outline of her submissions in VID 898/2008. This outline was initially due on 23 April 2015, with an extension subsequently granted on 4 May 2015 to 13 May 2015. Instead, as events transpired, Ms Luck indicated to the Court in her correspondence of 1 May 2015 that she was no longer able to undertake any further tasks in these appeals. She confirmed this in a subsequent email to the Victorian Registry of this Court on 18 May 2015, to which we refer in more detail at [26] to [29] below. On 21 May 2015, Ms Luck did not appear when the appeals were called on. The Court proceeded in her absence on these applications. Having made orders on those applications, the Court proceeded to deal with the two appeals themselves.
Appeal proceeding VID 898/2008 6 In appeal proceeding VID 898/2008, the appellant appeals from the judgment of a single judge of this Court, Tracey J, on 8 October 2008: Luck v Chief Executive Officer of Centrelink [2008] FCA 1506. The underlying proceeding concerns a proposed appeal under s 44 of the Administrative Appeals Tribunal Act 1975 (Cth) (AAT Act) and a proposed application under the Administrative Decisions (Judicial Review) Act 1977 (Cth) (AD(JR) Act). There is a question, raised by the respondent, whether Ms Luck needs leave to appeal in this proceeding. 7 The primary judge refused an application by Ms Luck for an extension of time within which to appeal against and seek judicial review of certain decisions and determinations made by the Administrative Appeals Tribunal on 13 May 2008, on the basis that the proposed appeal was bound to fail and the application under the AD(JR) Act had no reasonable prospects of success. The present appeal, and the originating process before the primary judge for an extension of time, arises in the unusual circumstances of the Tribunal having not yet proceeded to a final hearing of Ms Luck's FOI review application. That is because what Ms Luck has sought to appeal and have reviewed in this Court are directions made by the Tribunal seeking to prepare the merits review for hearing, refusal of leave by the Tribunal to amend her originating merits review application and certain other procedural decisions taken by the Tribunal. 8 The VID 898/2008 appeal was first listed by order of Ryan J dated 3 February 2009 for hearing by the Full Court in the May 2009 sittings. The hearing of this appeal has subsequently been relisted or adjourned on no fewer than five occasions: by order of Gray J in April 2009 listing the appeal for hearing in the August 2009 sittings; by order of Finn, Sundberg and Edmonds JJ in July 2009 listing the appeal for hearing in the November 2009 sittings; by order of Jacobson, Gordon and Jagot JJ in November 2009 adjourning the appeal to a date to be fixed following the determination of a High Court removal proceeding brought by Ms Luck in 2009; by order of Gray J in April 2012 further adjourning or staying the appeal pending the determination of other High Court proceedings brought by Ms Luck in 2012; and by order of Marshall J in October 2013 adjourning the hearing of this appeal still further pending the hearing and determination of a further High Court proceeding brought by Ms Luck in 2013. In each case the reason for the adjournment has been an application by Ms Luck, or because of other proceedings initiated by Ms Luck.
Appeal proceeding VID 512/2014 9 In appeal proceeding VID 512/2014, Ms Luck appeals from orders dated 30 July 2014, in a separate proceeding: Luck v Secretary, Department of Human Services (No 2) [2014] FCA 798. These orders were made by Tracey J, this proceeding having also been allocated to his Honour's docket. The proceeding in which the orders were made was an appeal under s 44 of the AAT Act. His Honour dismissed an interlocutory application by Ms Luck for a stay and adjournment of her proceeding. He also dismissed her s 44 appeal on the basis of upholding the first respondent's objection to the competency of the appeal, finding that Ms Luck's notice of appeal did not identify any questions of law and therefore the Court had no jurisdiction. 10 The Tribunal had decided, after the respondent had raised the matter, that it did not have jurisdiction to review the decisions Ms Luck had identified in her review application to the Tribunal. The Tribunal's decision was taken in the midst of injunction and stay applications against the Tribunal and its officers by Ms Luck in the High Court. These events are recounted in more in detail in the decision on Ms Luck's application for leave to appeal from Tracey J's orders, decided by Mortimer J in October 2014, which led to this appeal, albeit with the grounds available to Ms Luck being limited by Mortimer J's grant of leave: see Luck v Secretary, Department of Human Services [2014] FCA 1060. 11 As in VID 898/2008, in VID 512/2014, until the orders made on 30 July 2014 which are the subject of this appeal, the Court and the first respondent had accommodated Ms Luck's requests about the timing and manner with which this Court should deal with this proceeding. The nature and extent of these extensive accommodations is set out in Mortimer J's decision at [15]-[17], as well as in Tracey J's original reasons (see Luck v Secretary, Department of Human Services (No 2) [2014] FCA 798 at [8]-[10] and the attached chronology).
THE APPELLANT'S APPLICATIONS FOR STAY AND ADJOURNMENT OF THESE APPEALS
Ms Luck's first applications for stay or adjournment 12 On 21 April 2015, Ms Luck filed applications in the Melbourne Registry of the High Court to remove the present two appeals (together with other proceedings commenced by Ms Luck in this Court) to the High Court pursuant to s 40 of the Judiciary Act 1903 (Cth) (Judiciary Act). The timing of these removal applications by Ms Luck should be noted: they were made well into the final stages of preparation for the hearing of these appeals, and only a month before the date allocated for the hearing of the appeals. 13 Ms Luck also sought from the High Court the stay or adjournment of these appeals pending the hearing and determination of her application for special leave to appeal to the High Court in respect of other proceedings in this Court brought by Ms Luck and also determined by Tracey J (Luck v University of Southern Queensland (No 2) [2013] FCA 1141; from which Ms Luck appealed unsuccessfully to the Full Court of this Court: Luck v University of Southern Queensland [2014] FCAFC 135). The removal proceedings bear the proceeding numbers M52/2015 in respect of VID 898/2008 and M51/2015 in respect of VID 512/2014. 14 On 22 April 2015, Ms Luck also filed interlocutory applications in both VID 898/2008 and VID 512/2014 seeking a stay or adjournment of these proceedings pending the hearing and determination of her applications to remove these appeals to the High Court. That is, Ms Luck has sought stays and adjournments of these appeals from both the High Court and from this Court. 15 On 23 April 2015, the parties were advised that the two applications filed in this Court for stay or adjournment of VID 898/2008 and VID 512/2014 would be made returnable on 21 May 2015, at the same time the appeals themselves were listed to be heard together. The parties were also advised: In the event Ms Luck is unsuccessful in her interlocutory applications, their Honours intend to deal with Ms Luck's appeals, VID512/2014 and VID898/2008 on Thursday, 21 May 2015, after the hearing and determination of Ms Luck's interlocutory applications. The parties should prepare for 21 May 2015 on that basis. 16 Also on 23 April 2015, the Court directed that the appellant file and serve submissions by 14 May 2015 on why the Court should stay the present appeals pending the outcome of her applications to the High Court. The Court also directed that Centrelink and the Department file and serve submissions in response by 18 May 2015. 17 Ms Luck did not file any submissions in support of her stay applications pursuant to the directions made on 23 April 2015. Giving Ms Luck the benefit of the doubt, we proceed on the basis that she intends to rely, insofar as they are relevant to the question of stay or adjournment, upon the grounds and evidence set out in support of the two removal applications and supporting affidavits in the High Court, which she had enclosed with the applications filed in this Court for stay or adjournment. In the affidavits, both sworn on 21 April 2015, the terms of which are substantially similar, Ms Luck stated: My substantive ground for seeking an order for a stay or an adjournment of this matter and my other matters below, is one whereby constitutional matters require determination by the High Court in respect of the validity of the determinations of the sitting primary judge and the Full Court of the Federal Court, and in addition, I reasonably apprehend institutional bias toward me, and a fair minded lay observer (the public) could reasonably apprehend that the Federal Court and the primary judge might not bring impartial and unprejudiced minds to the deciding of the matters, because of the constitutional issues raised and the continued failure of the Court to grant my numerously and formerly requested reasonable adjustments pursuant to my rights under the Disability Discrimination Act 1992 and the United Nations Convention of the Rights of Persons with Disabilities, for times and numbers of appearances at Court, which, for reasons specifically related to my disabilities, I have repeatedly requested be after 10:30am and generally not for more than one matter per day.
Ms Luck's second adjournment applications 18 On 1 May 2015, Ms Luck filed correspondence with the Court, the effect of which appeared to be informal applications for an adjournment of three months in both appeals: I will be unable to undertake any further tasks in respect of these matters, as I am currently suffering severe pain and cannot cope with the physical and mental stress and extreme discomfort of doing the work required of me to complete my litigation related tasks. I will be unable to meet the requisite filing, serving and submission tasks, or appear at Court for about three months, in accordance with my doctor's recommendations for my treatment and recovery. I am also going through preparatory procedures and assessments for a serious operation to amputate part of, and possibly my entire great toe. I have attached a copy of my current medical certificate, which provides an explanation of my unfortunate circumstances. In addition to my application of 21 April 2015 for a stay or adjournment pending the hearing and determination of my Removal Applications by the High Court, in these matters, M51/2015 and M52/2015, and my Special Leave to Appeal Application in matter Gaye Luck v University of Southern Queensland and Anor M116/2014 and subsequently the appeal if granted, I make application to have these matters adjourned until I am able to undertake the work necessary, which, if given some time for treatment, rest and recuperation, I expect will be within the next three months. I have attached my submissions for the hearing of my stay application in the matter of Luck v CEO of Centrelink and Anor VID488/2008, made in person (under great duress) on 27 April 2015, in which I submitted the same fundamental grounds as I do in these matters, as the primary judge heard and determined these matters, hence a stay should be made pending the High Court's determination of the issue of the validity of the primary judge's role as a Federal Court Justice at the same time as he performed his role as Judge Advocate General of the Defence Force, in which he was responsible directly to a Minister of the Australian Government. 19 Attached to that correspondence were copies of a letter dated 30 April 2015 from a Dr Priscilla Leow, which was addressed "To Whom It May Concern", and submissions filed by Ms Luck in proceeding VID 488/2008 entitled Luck v Chief Executive Officer of Centrelink and Anor. 20 The correspondence from Dr Leow stated in part: This is to certify that Ms Luck suffered from severe acute symptoms relating to her heart and was referred for acute assessment for myocardial infarction at a local hospital on 3 June 2013. … She seeks accommodation of reasonable adjustments due to the stresses continually induced by matters which exacerbate her symptoms, both mental and physical. She is now unable to cope with multiple tasks in her daily life, including her litigation duties. She requires a 3-month period of treatment and recovery before an assessment of her capacity to return to her usual duties. Her physical disabilities necessitate the use of assistive technology by way of digital note-taker, as well as extensions of time, when she finds herself incapable of performing the tasks required of her. Over time, I have observed that when Ms Luck is anxious and stressed, she speaks loudly and agitatedly and I have accepted that this is an involuntary response she has developed over many years of her condition of the post traumatic and adjustment disorder. 21 The remainder of the letter sets out some of the detail of Ms Luck's medical conditions, which we need not reproduce in our reasons. 22 On the next business day, 4 May 2015, the parties were advised: The Court has already made additional directions to accommodate Ms Luck's application for a stay of these two appeals. Ms Luck has not withdrawn these applications and the directions made on 23 April [2015] remain operative. The appellant is to file submissions in support of her applications by 14 May and the respondents are to file submissions by 18 May. The Court does not propose at this time, and before the hearing of the appeals, to grant the 3 month adjournment sought by Ms Luck. It will however, hear any adjournment application Ms Luck wishes to make on the day scheduled for the appeals, at the same time it proposes to deal with Ms Luck's stay applications. In addition, the Full Court considers some further modifications to the preparation for the appeals should be made, given the difficulties Ms Luck has expressed in her correspondence. Directions giving effect to those modifications are enclosed with this correspondence. Although these directions do make some further accommodation for Ms Luck, the directions are not only for Ms Luck's benefit. Rather, they are intended to ensure the Court has the material it needs for the scheduled appeals on 21 May 2015 at 11 am [sic]. … The parties should ensure they comply with all the Court's directions. Ms Luck is expected to appear on 21 May 2015, and will be able to address the Court orally on her applications for a stay and adjournment. The Court will consider those applications and make a ruling. If either of those applications are successful, orders and directions will be made accordingly. If the applications are rejected, the appeals will proceed. 23 The directions made on 4 May 2015 included directions: extending the time for Ms Luck to file and serve her outline of submissions in VID 898/2008, originally due on 23 April 2015, to 13 May 2015; relieving Ms Luck from the requirement to file and serve a chronology of events; requiring that the respondents, rather than Ms Luck, prepare Part C of the appeal books; and that Ms Luck not be required to supply copies to either the respondents or the Court of authorities on which she relied. 24 Those directions supplemented the case management orders made previously on 30 January 2015 which provided that the respondents rather than Ms Luck prepare copies of a joint folder of authorities. Other accommodations by the Court, following concerns raised by Ms Luck on 21 April 2015 about the conflicting numbers, times and dates of her various matters listed for hearing in this Court, included vacating the case management conference in these appeals originally listed for 28 April 2015 (on the basis that any case management matters needing to be addressed could be dealt with on the papers) and accommodating Ms Luck's request that the hearing on 21 May 2015 commence no earlier than 10.30 am.
The respondents' submissions on the stay and adjournment applications 25 On 18 May 2015, pursuant to the Court's directions, the respondent in VID 898/2008 and first respondent in VID 512/2014 (collectively, the respondents) filed joint submissions opposing Ms Luck's applications for stay or adjournment of these appeals. In brief, the respondents submitted: (1) First, no live issues involving the Constitution were raised in these appeals. (2) Second, s 40 of the Judiciary Act 1903 (Cth) does not, in terms, prevent this Court from proceeding with the appeals: Luck v University of Southern Queensland [2011] FCA 1335 at [18]-[20] per Kenny J; Ponnambalam v The State of Western Australia [2013] WASCA 101 at [9]-[10] (per McClure P, Buss and Newnes JJA agreeing). The respondents referred to the decision of the High Court in Bienstein v Bienstein (2003) 195 ALR 225; [2003] HCA 7 at [45]: "Only where the issues are important and require this court's urgent decision should the court make an order for removal". Citing the decision of Kenny J in Luck v University of Southern Queensland [2011] FCA 1335 at [20], the respondents contended that it was permissible for this Court to consider the prospects of success of the removal applications, and submitted that the removal applications were unlikely to succeed. (3) Third, insofar as stay or adjournment was sought pending the determination of Ms Luck's special leave application in relation to the Full Court decision in Luck v University of Southern Queensland [2014] FCAFC 135, the Constitutional issues raised in that matter did not arise in the present appeals.
High Court applications to stay these appeals 26 On 18 May 2015, three days prior to the hearing of these applications, Ms Luck sent an email to the Victorian Registry of this Court, copied to the Deputy Registrar of the High Court, to the respondents' solicitors and to the Chambers of Mortimer J, who has been case managing these matters. 27 The correspondence concerned, first, bankruptcy proceedings (MLG 737/2015) issued in the Federal Circuit Court against Ms Luck, and a proposed adjournment of those proceedings pending a further appeal (VID 189/2015) by Ms Luck to a Full Court of this Court, which relates to her unsuccessful attempts to have the bankruptcy notice issued against her set aside. That appeal is scheduled to be listed in the August 2015 Full Court sittings. However, in this correspondence, Ms Luck also sought a stay of her appeal in VID 189/2015, pending her special leave application from the Full Court's decision in VID 1158/2013 (Luck v University of Southern Queensland [2014] FCAFC 135). That is, although the appeal in VID 189/2015 was given by Ms Luck as the reason for adjourning the bankruptcy proceedings against her in the Federal Circuit Court, rather than pressing on with that appeal, she sought in turn that it be stayed pending her special leave application. This is not the first time Ms Luck has made what might be described as cascading applications for stays and adjournments in various proceedings. 28 Ms Luck notes in this correspondence that "the Federal Court has refused to stay or adjourn the matter of VID189/2015". That is a correct statement: on 4 May 2015, Beach J refused Ms Luck's stay and adjournment applications in VID 189/2015. Ms Luck also states however that "the Federal Court has refused to stay or adjourn … matters VID 898/2008, VID 512/2014 …". That is not entirely correct. We did not grant a three-month adjournment immediately to Ms Luck prior to the hearing of the appeals, as she had sought. However Ms Luck's applications for stay and adjournment were listed to be heard and determined on 21 May 2015 and are the subject matter of this judgment. 29 Further, in this correspondence, Ms Luck asserts that "I am not capable, due to disability (medical certificate provided), at this time, of managing any appearances before the Court or undertaking work that is necessary and required to prepare for and make comprehensive and proper submissions to the Court, either written or oral". That is the reason she gives for consenting to the adjournment of the bankruptcy proceedings, and, we infer, it is the basis on which she has agreed to the High Court determining her stay applications on the basis of the written material. 30 On 19 May 2015, Nettle J heard and dismissed with costs Ms Luck's applications in the High Court to stay the present appeals, on the basis that he was not persuaded of any need or justification for a stay: Luck v University of Southern Queensland [2015] HCATrans 125. As at the date of judgment on 21 May 2015 and the date of publishing these reasons, Ms Luck's applications to remove these appeals to the High Court have not yet been listed for hearing or determination.
RESOLUTION OF THE STAY AND ADJOURNMENT APPLICATIONS 31 We do not consider it is in the interests of the administration of justice for the stays sought by Ms Luck to be granted. Nor do we consider we should adjourn the appeals for the period of three months she seeks, or for any lesser period.
The stay applications 32 What Ms Luck seeks is to put these appeals on hold until the High Court has determined her removal applications. Nettle J found on 19 May 2015 that there was no need or justification for such a stay. That is also our view. In Birdon Pty Ltd v Houben Marine Pty Ltd [2011] FCA 1217, Rares J said (at [10]): It is necessary to have regard to the orderly administration of justice in considering whether to grant interlocutory relief in aid of an application for special leave to appeal to the High Court: Paringa Mining & Exploration Co plc v North Flinders Mines Ltd (1988) 165 CLR 452 at 458 per Mason CJ, Brennan and Gaudron JJ. The jurisdiction of this Court, and the High Court, for this purpose is concurrent. The question for decision is whether or not the refusal of interim relief would render nugatory an appeal to the High Court, were special leave granted (Paringa 165 CLR at 459-460). The principles on which the High Court will grant such an injunction in aid of an application for special leave to appeal were also discussed in the much cited judgment of Brennan J in Jennings Construction Ltd v Burgundy Royale Investments Pty Limited [No 1] (1986) 161 CLR 681 at 683-684. Similar considerations apply to an application for a stay, as Spigelman CJ noted in Minister for Local Government v South Sydney City Council (No 3) [2002] NSWCA 327 at [10]-[13]. These considerations were summarised by Ipp J, with whom Pidgeon J agreed, in the Full Court of the Supreme Court of Western Australia in Hamersley Iron Pty Ltd v Lovell (No 2) (1998) 20 WAR 79 at 85D as follows: Generally speaking, the court will only stay proceedings when it is necessary to preserve the subject matter or integrity of the litigation or where refusal of a stay could create practical difficulties in the relief available to the High Court, or where there is a real risk that it will not be possible for a successful appellant to be restored substantially to his former position if the judgment against him is executed. 33 We respectfully agree with his Honour's summary of the approach to be taken. In Birdon at [11], Rares J also referred to s 37M of the Federal Court of Australia Act 1976 (Cth) (the FCA Act), and the need for the Court's powers (including powers such as the power to grant a stay) to be exercised so as to facilitate the just resolution of disputes according to law, and to do so as quickly, inexpensively and efficiently as possible. As his Honour noted, pursuit of that objective requires the Court to consider the efficient and effective use of judicial resources, as well as the resources of the parties. Generally, some proportionality should be maintained between what is at stake in the proceeding and the cost and time taken to resolve it. 34 The subject matter of Ms Luck's litigation, whether it is removed to the High Court or remains in this Court to be dealt with on the appeals, is threefold. In relation to VID 512/2014, it is whether Tracey J was in error to make orders dismissing her proceeding on the basis of an objection to competency. In relation to VID 898/2008, it is whether Tracey J was in error in dismissing Ms Luck's application for an extension of time within which to appeal against and seek judicial review of the determinations made by the Administrative Appeals Tribunal on 13 May 2008, on the basis that the proposed appeal and application had no reasonable prospects of success. Third, in relation to VID 898/2008 only (given the limits on the grant of leave to appeal in VID 512/2014: see Luck v Secretary, Department of Human Services [2014] FCA 1060), the subject matter of the appeal extends to Ms Luck's repeated contentions about why it was unlawful, or alternatively, inappropriate for Tracey J in particular to hear and determine the applications, because of the position formerly held by Tracey J as Judge Advocate General of the Australian Defence Force under the Defence Force Discipline Act 1982 (Cth). 35 A stay of the appeals pending removal is not necessary to preserve the subject matter of these appeals. The subject matter is capable of being determined in the exercise of this Court's appellate jurisdiction and that is the ordinary forum for its determination. Removal to the High Court is exceptional. 36 Further, there are no practical difficulties for the High Court in considering the removal applications if a stay of the appeals is not granted by this Court. The determination by Nettle J on 19 May 2015 makes this clear: Luck v University of Southern Queensland [2015] HCATrans 125. If the High Court considered a stay was required in order that it determine the removal applications, it would have granted one itself. 37 Finally, we note the following observations by Kenny J in Luck v University of Southern Queensland [2011] FCA 1335 at [19]-[20], where Ms Luck also sought stays pending High Court removal applications: After hearing the parties on 15 December 2011 and bearing in mind their submissions, I am of the clear view that the applications for extension of time should not be adjourned (or the proceedings stayed) whilst the removal applications are determined. First, it is clear that the mere making of an application under s 40 of the Judiciary Act 1903 (Cth) does not preclude this Court from proceeding to consider interlocutory or final issues in a proceeding in relation to which the removal application is made. Secondly, I have borne in mind the observations of the High Court itself in Bienstein v Bienstein (2003) 195 ALR 225 at 234 [45], in which it was said: Orders for removal interfere with the processes of the courts hearing the proceedings sought to be removed. Only where the issues are important and require this court's urgent decision should the court make an order for removal. … The s 40(1) power to remove is not intended to convert this court into a court exercising a general supervisory jurisdiction over lower courts. In light of this, after perusing the removal applications filed by Ms Luck in the High Court and considering her submissions, it seems to me a real likelihood that the High Court, on the removal application, might well decline to make an order for removal. 38 We respectfully adopt her Honour's observations and consider them applicable to the current circumstances. We also consider Ms Luck's removal applications have little or no prospects of success, especially given that the question of Ms Luck's challenges to Tracey J hearing and determining her proceedings in this Court has been rejected three times by Full Courts of this Court, including recently: see Luck v Chief Executive Officer, Centrelink [2009] FCAFC 54; Luck v University of Southern Queensland (2009) 176 FCR 268; [2009] FCAFC 73; Luck v University of Southern Queensland [2014] FCAFC 135. 39 Aside from the allegations concerning Tracey J, there is nothing else in these two appeals which could reasonably justify removal under s 40 of the Judiciary Act. The High Court has previously determined that Ms Luck's allegations concerning Tracey J are not appropriate for removal: see Luck v University of Southern Queensland [2013] HCATrans 163 (5 August 2013) per Gageler J, special leave to appeal from Gageler J's decision refused: Luck v University of Southern Queensland [2014] HCASL 34 (6 March 2014). 40 Our views as to the prospects of success of the removal applications, while not determinative, confirm our opinion that stays of these appeals should not be granted.
The adjournment applications 41 These applications are based on Ms Luck's current health conditions, and her claimed inability to manage both the preparation and appearances necessary to conduct her appeals and make proper submissions. She relies on the letter dated 30 April 2015 from Dr Leow, to which we have referred above. 42 In considering an application for an adjournment, issues particular to the parties and the circumstances of the case must be considered. The Court must also determine how the grant or refusal of an adjournment will promote the overarching purpose of the civil practice and procedure provisions governing the exercise of its jurisdiction, here its appellate jurisdiction, including the objectives in s 37M(2) of the FCA Act, to which we have referred earlier in these reasons in summary form. 43 These objectives set out in statutory form some of the considerations earlier expressed as conditioning a discretion to adjourn a hearing. In Sali v SPC Ltd (1993) 116 ALR 625 at 629, Brennan, Deane and McHugh JJ said the Court is entitled to be conscious of the "effect of an adjournment on court resources and the competing claims by litigants in other cases awaiting hearing in the court as well as the interests of the parties". 44 In Aon Risk Services Australia Pty Ltd v Australian National University (2009) 239 CLR 175; [2009] HCA 27, the plurality of the High Court recognised four matters which should, in the circumstances of that particular case, have been taken into account by the Court when exercising its discretion whether to grant an adjournment so as to allow substantial amendments to be made to the statement of claim. Those factors were: the explanation for the adjournment sought (at [108]), the parties' choices to date in the litigation (and the consequences of those choices) (at [112]), the detriment to other parties, and the detriment to other litigants in the Court (at [114]). 45 In Aon at [5], French CJ referred to the broader considerations at work in considering an adjournment application: In the proper exercise of the primary judge's discretion, the applications for adjournment and amendment were not to be considered solely by reference to whether any prejudice to Aon could be compensated by costs. Both the primary judge and the Court of Appeal should have taken into account that, whatever costs are ordered, there is an irreparable element of unfair prejudice in unnecessarily delaying proceedings. Moreover, the time of the court is a publicly funded resource. Inefficiencies in the use of that resource, arising from the vacation or adjournment of trials, are to be taken into account. So too is the need to maintain public confidence in the judicial system. 46 The plurality in Aon expressed a similar opinion at [93]: [T]he rules concerning civil litigation no longer are to be considered as directed only to the resolution of the dispute between the parties to a proceeding. The achievement of a just but timely and cost-effective resolution of a dispute has an effect upon the court and upon other litigants. 47 Whether examined on the basis of factors particular to the parties in these appeals, or the basis referred to at [43]-[46] above, we do not consider an adjournment should be granted to Ms Luck. 48 Her medical evidence is unpersuasive. It is not verified on affidavit, a matter which has been highlighted in earlier cases in which Ms Luck has unsuccessfully relied on similarly worded assessments by Dr Leow: see for example Luck v University of Southern Queensland [2014] FCAFC 135 at [16], referring to Luck v University of Southern Queensland (No 2) [2013] FCA 1141 at [11]-[17] (in turn discussing Luck v University of Southern Queensland (No 4) [2011] FCA 433). Dr Leow's letter in this proceeding refers to conditions Ms Luck has suffered since at least 2013. There is nothing in the letter concerning any recent development, exacerbations, or new diagnoses. The treatment to which it refers appears to be treatment Ms Luck has been undergoing for some time, and at least since 2009: see Luck v Chief Executive Officer, Centrelink [2009] FCAFC 54 at [23]. It is unclear what Dr Leow means by "litigation duties". No "duty" is imposed on Ms Luck in relation to litigation: rather, she has elected to bring multiple proceedings in this Court, and in other courts, challenging a variety of decisions which generally relate to applications (such as FOI applications) she has chosen to make. Ms Luck herself compounds the amount of litigation she has to deal with by applications such as repeated stay and removal, and special leave, applications to the High Court. The amount of preparation for hearings, interlocutory applications and appeals she needs to undertake is in that sense a self-fulfilling prophecy. Despite the underlying subject matter of all Ms Luck's litigation concerning events which happened many years ago, and flowed from choices she made to make certain applications, Dr Leow says nothing about whether she has recommended to Ms Luck any voluntary reduction in her litigation in order to assist her to recover her health. 49 There is nothing in Dr Leow's letter which suggests Ms Luck's conditions have worsened, and certainly not in any way which could be said to be connected to what she must do in the month leading up to 21 May 2015 to prepare for these two appeals: see generally the observations of Lindgren J in NAKX v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 1559 at [6]-[8] where his Honour said (in relation to medical certificates which certified an applicant as unfit to attend for work): The medical certificates are quite unsatisfactory. They do not address the critical question whether, and if so why, the medical condition would prevent the appellant from travelling to the Court and participating effectively in a court hearing. I do not accept that either of the medical conditions referred to would make the sufferer 'unable to attend court' - apparently each was able to attend upon the medical practitioner. If the certificates were meant to say that the medical condition would prevent the sufferer from participating effectively in a court hearing, they do not in fact say that and do not explain why the medical condition would have that effect. 50 The absence of any such specific evidence about how her conditions are affecting preparation is particularly relevant given the extensive accommodations already made for Ms Luck in terms of preparation, and the shifting of some of the preparation burden (such as appeal books) to the respondents. It is also to be noted that, inconsistently with Dr Leow's assessment, Ms Luck was able as recently as 8 May 2015 to file in the High Court a 12 paragraph affidavit dated 7 May 2015, which in substance was her submission in support of her applications in that Court to stay these appeals. 51 These matters have been on foot in this Court for a long time: in the case of VID 898/2008, for seven years. Their longevity in this Court is because of Ms Luck's own decision-making about other litigation she seeks to conduct, and appeals she seeks to bring, combined with what we view as a remarkably tolerant and generous history (by various respondents and the Court) of acquiescing in Ms Luck's requests for postponements, adjournments, extensions of time and other accommodations. What is at stake through the subject matter of the appeals (undetermined and/or historical FOI applications, and issues about Tracey J's role in the Australian Defence Force already determined adversely to Ms Luck on more than one occasion) has become entirely disproportionate to the resources which are being consumed by Ms Luck's litigation - both the Court's publicly funded resources, and the publicly funded resources of the respondents. 52 To ensure that the resources of this Court are not unduly consumed with the claims of one litigant over others, to ensure the Court can effectively dispose of cases before it and to ensure that some finality can be achieved to claims made in this Court, these appeals should be heard and determined. Their merit does not improve with delay: either Ms Luck's arguments are persuasive or they are not. 53 Finally, given what Ms Luck has herself said about the impact of this litigation on her own wellbeing, we cannot see how it is in her own interests to further delay these appeals. She has been given considerable accommodation in the preparation of these appeals, both with longer periods for preparation and by being relieved of some tasks entirely, and having others assigned to the respondents. We consider her arguments are as well prepared as they will ever be. 54 We acknowledge Ms Luck has not filed written submissions in VID 898/2008, but as part of our orders on 21 May 2015 we granted her a further and final indulgence by giving her four weeks from 21 May 2015 in which to file any written submissions she wishes to make in VID 898/2008 and a further two weeks from then for the respondent to respond. As we have said, the subject matter of these appeals are legal arguments that either Ms Luck has run many times before, or with which she has had years to come to terms, including for example having the benefit of decisions such as the leave to appeal decision from Mortimer J: see Luck v Secretary, Department of Human Services [2014] FCA 1060. Ms Luck's correspondence and material in fact shows great familiarity with the issues in these appeals. 55 In our opinion, if Ms Luck is given yet another extension, there is no reasonable basis to believe she cannot make submissions in writing. Despite what Dr Leow says, Ms Luck has continued to file documents and correspondence at length with this Court, and the High Court. On the basis of the evidence before us, it seems to us Ms Luck, rather than being physically unable to do any more, has elected to draw a line in the sand concerning what she will agree to do, and what she will not. That is a matter for her, but this Court will not delay the hearing and determination of her appeals any longer.
CONCLUSION 56 The applications for stay and adjournment were accordingly dismissed. 57 We see nothing in the material which would cause us to make anything other than the usual orders as to costs. I certify that the preceding fifty-seven (57) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justices Collier, Griffiths and Mortimer.
Luck
Chief Executive Officer of Centrelink
[2013] HCATrans 163
[2014] HCASL 34
[2015] HCATrans 125
[2013] WASCA 101
(2009) 239 CLR 175
(2003) 195 ALR 225
(2009) 176 FCR 268
The appellant's interlocutory applications dated 22 April 2015 for stays or adjournments pending High Court removal, and the further adjournment applications made on 1 May 2015, were dismissed. The appellant was ordered to pay the costs of the respondent in VID 898/2008 and the first respondent in VID 512/2014. The appellant was granted leave to file written submissions on the VID 898/2008 appeal by 4 pm on 18 June 2015, with the respondent to file any reply by 4 pm on 2 July 2015.
(1993) 116 ALR 625
(1988) 165 CLR 452
(1986) 161 CLR 681
(1998) 20 WAR 79
[2009] HCA 27