Luck v Secretary, Department of Human Services

REASONS FOR JUDGMENT 1 This proceeding came on for directions this morning. Immediately after the directions hearing commenced Ms Gaye Luck made an oral application without notice that I should disqualify myself from conducting both the directions hearing and the trial of the proceeding on the ground of ostensible bias. 2 I refused the application and advised the parties that I would give my reasons later. These are those reasons. 3 Ms Luck advanced her ostensible bias arguments on two bases. The first was that, in listing three proceedings in which she was the applicant for directions on the same day and maintaining the listings over her subsequent objection, I had failed to provide her with reasonable adjustments to which she said she was entitled under the Disability Discrimination Act 1992 (Cth). Ms Luck asserted that for medical reasons (for which she produced no evidence), she was unable to cope with three matters on the same day. 4 The purpose of the directions hearing, in each case, was to ensure that the proceeding which had languished in my docket for many years whilst appeals and applications had been pursued elsewhere by Ms Luck, ultimately unsuccessfully, were brought on for trial as soon as reasonably possible. The present proceeding had been commenced in 2010. When the directions hearings were listed I anticipated that they would (as turned out to be the case) be of relatively short duration. Far more time was spent this morning on the disqualification application than was spent on the submissions relating to directions in the three proceedings combined. 5 Ms Luck also submitted that my recusal was warranted because of my appointment as Judge Advocate General of the Australian Defence Force which, she said, made me "answerable" to members of the Executive Branch of the Commonwealth Government including the Minister for Defence. She referred to the provisions of ss 179 and 196A of the Defence Force Discipline Act 1982 (Cth) ("the DFDA"). Section 179 of the DFDA provides that the Judge Advocate General is to be appointed by the Governor-General. Section 196A of the DFDA requires the Judge Advocate General to provide the Minister for Defence with a report each year. The Minister is required to cause a copy of the report to be laid before each House of Parliament. 6 The test to be applied when an application is made for the disqualification of a judicial officer on the grounds of ostensible bias is well known. It is whether a fair minded lay observer might reasonably apprehend that the judge might not bring an impartial mind to the resolution of the question which the judge was required to decide: see Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337 at 344. 7 In the absence of evidence of incapacity there was no occasion for me to vary the listing of the three proceedings, in which Ms Luck was the applicant, for directions on the same day. On the contrary, the consecutive fixtures were intended to avoid multiple attendances by Ms Luck and unnecessary expense to the respondents, two of whom had common representation. I did not anticipate, as proved to be the case, that there would be any contentious issues relating to the making of relevant directions. A reasonable observer would have had no occasion to apprehend that I might not have brought an impartial mind to the resolution to any questions which might arise at the directions hearing or at trial. 8 My appointment as Judge Advocate General was made, pursuant to the DFDA, by the Governor-General in Council. My eligibility for appointment depended on me being either a judge of this Court or of a State Supreme Court: see s 180 of the DFDA. By s 181(1) of the DFDA it is provided that, for all purposes, the Judge Advocate General's service in that role "shall be taken to be service as the holder" of his or her judicial office. I have an obligation to furnish the Minister with an annual report for the purpose of that report being tabled in the Commonwealth Parliament. None of these statutory requirements make me "answerable" to the Executive Government or could give rise to a reasonable apprehension of bias. In this regard I note that, in a Full Court appeal in another proceeding, Ms Luck advanced a similar argument although it had not been raised with me at first instance. The Full Court rejected her argument that my appointment as Judge Advocate General gave rise to a reasonable apprehension of bias: see Luck v University of Southern Queensland [2009] FCAFC 73. 9 It was for these reasons that I refused Ms Luck's application. I certify that the preceding nine (9) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Tracey.