Luck v Secretary, Department of Human Services

Outstanding interlocutory applications 5 My immediate role in this proceeding is to case manage, and, where appropriate, determine, the eight interlocutory applications outstanding in the proceeding. Seven of the outstanding interlocutory applications were made by Ms Luck. They comprise the following: (1) interlocutory application dated 15 May 2019, which seeks orders granting: (a) leave to appeal the Kerr Recusal Decision; and (b) an extension of time to comply with procedural orders (for the filing of submissions and a list of authorities and legislation) made by Moshinsky J on 19 May 2017; (2) interlocutory application dated 5 July 2019, which seeks an order amending the orders of Moshinsky J made on 25 June 2019 such that the Full Court would hear Ms Luck's application for leave to appeal the Kerr Recusal Decision; (3) interlocutory application dated 24 July 2019, which seeks an order, amongst others, that the Commonwealth Attorney-General be joined to the proceeding; (4) interlocutory application dated 1 August 2019, which seeks an order that the Commonwealth of Australia be joined to the proceeding; (5) application to amend Ms Luck's notice of appeal, as identified in paragraph 16 of Ms Luck's written submissions dated 12 August 2019; (6) interlocutory application dated 21 August 2019, which seeks a declaration that Ms Luck has been denied natural justice and orders granting: (a) leave to appeal the O'Callaghan Recusal Decision; (b) leave to appeal the Snaden Recusal Decision; (c) the joinder of the Principal Registrar of the Federal Court to the proceeding; (d) the joinder of the Chief Executive Officer of the Federal Court to the proceeding; and (7) interlocutory application dated 21 November 2019, which seeks orders that: (a) the Full Court hear and determine: (i) each of the applications set out above; and (ii) an application by Ms Luck for a declaration that her appeal was commenced by her in relation to "a personal injury or wrong" done to her for the purposes of s 60(4)(a) of the Bankruptcy Act 1966 (Cth); and (b) my recusal from this proceeding should I not determine her interlocutory application dated 21 November 2019 without taking further submissions from the parties. 6 On 4 December 2019, the first respondent, the Secretary of the Department of Human Services (Secretary), lodged her own interlocutory application. It relevantly seeks the dismissal of Ms Luck's appeal from the decision of Bromberg J on the basis of a want of prosecution or, alternatively, on a summary basis. 7 A case management hearing was listed on 6 December 2019 for the parties to address me on procedural orders in advance of the consideration and determination of these interlocutory applications. In advance of the hearing, Ms Luck provided to the Court a minute of proposed orders in which she sought an order from me that the Full Court itself hear the interlocutory applications made by her in the proceeding. The Secretary had also provided a minute of proposed orders in which she proposed certain procedural orders in relation to the hearing of outstanding interlocutory applications by a single judge of the Court.

Recusal application 8 In the course of the case management hearing, Ms Luck applied for my recusal from the proceeding. I discerned four alleged bases for my recusal from her oral submissions. Each are considered in turn below after summarising the legal principles relevant to a recusal application.

Relevant principles 9 A judge is disqualified from hearing or determining a case where he or she possesses actual bias: Ebner v Official Trustee in Bankruptcy [2000] HCA 63; 205 CLR 337 (Ebner) at [5] per Gleeson CJ, McHugh, Gummow and Hayne JJ. This includes "where a judge has been influenced by partiality or prejudice in reaching his decision" or "where it has been demonstrated that a judge is actually prejudiced in favour of or against a party": In re Medicaments and Related Classes of Goods (No 2) [2001] 1 WLR 700 at [38] per Lord Phillips of Worth Matravers MR, for the Court of Appeal. 10 A judge will also be disqualified from hearing or determining a case where a reasonable apprehension of bias exists. The relevant question is whether a fair-minded lay observer might reasonably apprehend that I might not bring an impartial mind to the resolution of the questions that I am required to decide in this proceeding. The application of this test requires two steps: (1) first, there must be identified the matter or matters upon which arises the relevant apprehension that a decision-maker might decide a case other than on its legal and factual merits; and (2) second, there must be an articulation of the logical connection between, on one hand, that matter or those matters and, on the other hand, the feared deviation from the course of deciding the case on its merits. See Ebner at [8]; British American Tobacco Australia Services Ltd v Laurie [2011] HCA 2; 242 CLR 283 at [32]-[48] per French CJ; Isbester v Knox City Council [2015] HCA 20; 255 CLR 135 at [21] per Kiefel, Bell, Keane and Nettle JJ and MZAOL v Minister for Immigration and Border Protection [2019] FCAFC 68 at [82]-[83] per Bromberg, Farrell and Davies JJ. 11 Ms Luck made no allegation of actual bias. Each of her alleged grounds for my recusal were based on an apprehension of bias.

(1) Failure to make orders sought 12 The first, and primary, alleged basis for my recusal was that I failed to make the orders sought by Ms Luck at the case management hearing. 13 The first paragraph of Ms Luck's most recent interlocutory application (dated 21 November 2019) sought an order that the Full Court be constituted to hear and determine her outstanding interlocutory applications in the proceeding. That interlocutory application also sought the following order: 2. In the event that his Honour, Justice Anderson, will not determine this application without taking further submissions from the parties for the hearing and determination of the specific issues within paragraphs 1(a) to 1(j) above, the appellant also makes application for his recusal from this matter, on the grounds that he has been named for two reasons in the appellant's Table of Precluded Judges, filed on 21 August 2019. I will return below to the reference to the "Table of Precluded Judges". 14 Although the condition precedent for an application for my recusal was expressed in this application as a failure to receive further submissions from the parties, it was clear from Ms Luck's oral submissions at the case management hearing that the key basis for her seeking my recusal was the fact that I refused to make the orders sought by her at that case management hearing, namely an order that the Full Court (not a single judge) hear her outstanding interlocutory applications. 15 The purpose of the case management hearing on 6 December 2019 was simply to determine procedural orders in advance of a subsequent separate hearing of the outstanding interlocutory applications. Ms Luck's central submission at the case management hearing was that I do not have jurisdiction to hear the interlocutory applications as a single judge of the Court. Her view is that only the Full Court can hear those matters. At this preliminary stage, in the absence of full argument on that question, I have not formed a view as to whether Ms Luck's submission is correct or incorrect. That is a view that I will form after giving Ms Luck and the Secretary an appropriate opportunity to make submissions in relation to that question. My decision to not determine that question at the case management hearing is not a valid basis for establishing that a fair-minded lay observer might reasonably apprehend that I might not bring an impartial mind to the resolution of the questions that I am required to determine in this proceeding. 16 For these reasons, the first ground for my recusal is dismissed.

(2) Correspondence from chambers 17 The second alleged basis for my recusal was a particular aspect of correspondence received by the parties, including Ms Luck, from my chambers in advance of the case management hearing. 18 On 7 October 2019, my associate sent an email to the parties that commenced as follows: Dear Parties, … The proceeding will be listed for a case management hearing before Justice Anderson at 10.15 a.m. on 6 December 2019. Given the medical diagnoses and financial hardship currently experienced by the appellant according to her affidavits, Justice Anderson is of the view that it is important to justly resolve the appeal as quickly, inexpensively and efficiently as possible. His Honour views it important to resolve the outstanding interlocutory disputes in the proceeding so that the Full Court can hear the appellant's appeal. The purpose of the case management hearing in December is to agree on procedural orders for the purposes of Justice Anderson hearing the outstanding interlocutory disputes in this proceeding … 19 Ms Luck submitted at the case management hearing that the third paragraph extracted above constituted direct disability discrimination by my chambers and I and evidenced a partiality against her interests in the proceeding. 20 In affidavits filed in the proceeding and in correspondence to the Court, Ms Luck has referred on numerous occasions to her medical diagnoses and financial hardship, as well as her dissatisfaction with what she views as unnecessary delay in the proceeding. The relevant paragraph in the correspondence from my chambers to the parties, as now impugned by Ms Luck, was simply intended to acknowledge these concerns and to provide an expression of willingness to address her applications in an efficient manner, as had been requested by her. This correspondence does not give rise to a reasonable apprehension on the part of a fair-minded lay observer that I might not decide the issues for my consideration in this proceeding other than on their legal and factual merits. 21 For these reasons, the second ground for my recusal is dismissed.

(3) Previous determination of "Luck Constitutional Recusal Grounds" 22 The third alleged basis for my recusal was referred to in passing at the case management hearing but had been further detailed in material previously filed by Ms Luck. This basis had been foreshadowed in an affidavit sworn by Ms Luck on 21 August 2019 and filed in the proceeding. The affidavit exhibited a table that included the name of the Chief Justice and every judge of this Court. This is the "Table of Precluded Judges" which was referred to in the second order sought by Ms Luck in her interlocutory application dated 21 November 2019, as extracted above at [13]. 23 In the "Table of Precluded Judges", Ms Luck specified the identity of the judicial members that should be precluded from sitting in this proceeding and, where relevant, a summary of the reasons for their preclusion. The table indicated that I should be precluded from sitting for two reasons, one of which was an "Apprehension of Bias due to Previous Determinations of Luck Constitutional Recusal Grounds" (emphasis in original). 24 Ms Luck's affidavit explained this basis for recusal as follows: 12. To support my table, I have performed research on Federal Court Website under Current Judges, Jade Barnet, Austlii and in my Commonwealth Portal Files, to inform myself of the various matters which have been dealt with by each Judge. 13. Due to such a volume of cases, the main source of my searches was by entering the terms "(judges name) J" and "medical" and "Luck", and the results are as laid out in the table. 14. I have not listed each of the cases against each judge … but they can be confirmed on those websites with the same search terms in respect of those judges who have dealt with medical certificates and adjournments and extensions of time, which causes me to reasonably apprehend that those judges might not bring an impartial mind to making the decision, as they have undertaken to determine such an issue and therefore they must believe that it is within their power to decide what reasonable adjustments can be granted to a person with disabilities and have therefore prejudged that specific issue which I assert should not be so. 25 My understanding of these paragraphs (as applied to me) is that Ms Luck is critical of the fact that I have previously determined cases which involved applications for adjournments or extensions of time, or my published reasons for judgment otherwise referred to a "medical certificate". It is unsurprising that the input of the particular search terms utilised by Ms Luck returned results that include reasons for judgment for decisions that I have previously made. I have previously heard and determined applications for extensions of time. I have also previously referred to a "medical certificate" in the course of my reasons for judgment. However, in doing so, I have not distinguished myself from other judges of the Court. Most, if not every, judge of this Court is required to hear similar applications or deal with proceedings in which it will be necessary to refer to a medical certificate. 26 This ground is not a valid basis for my recusal. To start, it is not clear why my determination of these particular forms of matters in the past would demonstrate, in the words of Ms Luck, that "I must believe that it is within [my] power to decide what reasonable adjustments can be granted to a person with disabilities". Moreover, even if that premise was accepted, there is no logical basis for why that would give rise to a reasonable apprehension that I might decide the relevant questions in this case on a basis other than their legal and factual merits. Even assuming that my participation in this proceeding would require me to hear and determine legal or factual issues similar to those that I have determined previously in unrelated proceedings, that, by itself, does not give rise to a reasonably apprehension in a fair-minded lay observer that I might not bring an impartial mind to the resolution of the questions in this proceeding: ALA15 v Minister for Immigration and Border Protection [2016] FCAFC 30 at [41] per Allsop CJ, Kenny and Griffiths JJ. 27 For these reasons, the third ground for my recusal is dismissed.

(4) Alleged lack of transparency in appointment of judges 28 The fourth alleged basis for my recusal was also detailed in Ms Luck's "Table of Precluded Judges". The table specified that I should also be precluded from sitting in this proceeding because of an "Apprehension of Bias due to lack of transparency in Appointments by Attorney General of Justices since 20/12/17". 29 Ms Luck explained this basis for my recusal in her affidavit dated 21 August 2019 as follows: 17. The [Table of Precluded Judges] contains the names of judges who have been appointed by the current Attorney General who was appointed on 20 December 2017. The article in the Sydney Morning Herald on 9 March 2019 (refer my affidavit and exhibit "GL06" of 24 July 2019) has given me reason to apprehend that these judges might not bring an impartial mind to the making of decisions about the issue of whether the Judiciary can assume the jurisdiction of the Executive and exercise its power to decide whether or not the appellant was entitled to the grant of reasonable adjustment rights under the Disability Discrimination Act 1992 (Cth), an Act of Parliament that is administered by the Attorney General of Australia. 30 The article referred to in this paragraph, as exhibited to Ms Luck's affidavit sworn on 24 July 2019, was published on 9 March 2019 on the Sydney Morning Herald's website. The article alludes to concerns held by some regarding the transparency of judicial appointments made by the current Commonwealth Attorney-General. My commission of appointment as a judge of the Federal Court of Australia was signed and sealed by the Governor-General and the current Commonwealth Attorney-General on 4 April 2019: see, generally, s 6(1)(a) of the Federal Court of Australia Act 1976 (Cth). My appointment as a judge commenced on 6 May 2019. 31 Having read the Sydney Morning Herald article, it is not clear to me why its contents would give rise to an apprehension in the mind of a fair-minded lay observer that judges commissioned during the tenure of the current Commonwealth Attorney-General would "not bring an impartial mind to the making of decisions about the issue of whether the Judiciary can assume the jurisdiction of the Executive and exercise its power to decide whether or not the appellant was entitled to the grant of reasonable adjustment rights under the Disability Discrimination Act 1992 (Cth)". 32 As my commission as a judge post-dated the Sydney Morning Herald article, the article made no specific reference to me. A purpose of the article is evidently to raise the concerns of some with the current process of judicial appointments. However, the process by which federal judges are appointed is longstanding and, in any event, bears no logical connection with the particular concerns of partiality raised by Ms Luck. The article does not give rise to a reasonable apprehension on the part of a fair-minded lay observer that I might not decide the issues for my consideration in this proceeding other than on their legal and factual merits. 33 For these reasons, the fourth ground for my recusal is dismissed.

Conclusion 34 For these reasons, I dismissed the application by Ms Luck that I recuse myself from the proceeding. I certify that the preceding thirty-four (34) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Anderson.