Luck v Secretary of Services Australia [2022] FCAFC 195 | Case summary

The consequences of s 60 of the Bankruptcy Act 36 Section 60 provides: 60 Stay of legal proceedings (1) The Court may, at any time after the presentation of a petition, upon such terms and conditions as it thinks fit: (a) discharge an order made, whether before or after the commencement of this subsection, against the person or property of the debtor under any law relating to the imprisonment of fraudulent debtors and, in a case where the debtor is imprisoned or otherwise held in custody under such a law, discharge the debtor out of custody; or (b) stay any legal process, whether civil or criminal and whether instituted before or after the commencement of this subsection, against the person or property of the debtor: (i) in respect of the non-payment of a provable debt or of a pecuniary penalty payable in consequence of the non-payment of a provable debt; or (ii) in consequence of his or her refusal or failure to comply with an order of a court, whether made in civil or criminal proceedings, for the payment of a provable debt; and, in a case where the debtor is imprisoned or otherwise held in custody in consequence of the non-payment of a provable debt or of a pecuniary penalty referred to in subparagraph (i) or in consequence of his or her refusal or failure to comply with an order referred to in subparagraph (ii), discharge the debtor out of custody. (2) An action commenced by a person who subsequently becomes a bankrupt is, upon his or her becoming a bankrupt, stayed until the trustee makes election, in writing, to prosecute or discontinue the action. (3) If the trustee does not make such an election within 28 days after notice of the action is served upon him or her by a defendant or other party to the action, he or she shall be deemed to have abandoned the action. (4) Notwithstanding anything contained in this section, a bankrupt may continue, in his or her own name, an action commenced by him or her before he or she became a bankrupt in respect of: (a) any personal injury or wrong done to the bankrupt, his or her spouse or de facto partner or a member of his or her family; or (b) the death of his or her spouse or de facto partner or of a member of his or her family. Note: See also subsection 5(6). (4A) Notwithstanding paragraph (1)(b), this section does not empower the Court to stay any proceedings under a proceeds of crime law. (5) In this section, action means any civil proceeding, whether at law or in equity. 37 Section 60 concerns the effect of bankruptcy on property and proceedings. It provides for circumstances where the court may intervene and discharge an order (s 60(1)(a)) and stay any legal process (s 60(1)(b)) including until a trustee makes an election (s 60(2)). In addition, s 60(3) deems proceedings to have been abandoned where the trustee does not make an election to proceed within 28 days after notice of the action is served on him or her. The DHS contends that this is the circumstance here. Ms Luck claims, to the contrary, that her proceedings are caught by the exception under s 60(4) such that there can be no deemed abandonment arising from the inaction of the trustee. 38 The parties agree that an appeal is within the meaning of "action" in s 60(5): Cummings v Claremont Petroleum NL (1996) 185 CLR 124 at 130 per Brennan CJ, Gaudron and McHugh JJ. 39 It is uncontentious that Ms Luck was the subject of a sequestration order on 4 April 2017 by the Federal Circuit Court of Australia. Ms Luck was unsuccessful on appeal in relation to the sequestration order before the Full Court (Luck v University of Southern Queensland [2018] FCAFC 102) and was refused special leave to appeal to the High Court (Luck v University of Southern Queensland [2019] HCASL 20). As a result, on or about 5 June 2019, the DHS served notice of the appeal in this case on the Official Trustee in Bankruptcy, the trustee of Ms Luck's bankrupt estate. 40 Although Ms Luck's present appeal proceedings predated her bankruptcy, the Official Trustee did not elect to prosecute or discontinue Ms Luck's appeal. Accordingly, the DHS submits that the trustee is deemed by s 60(3) to have abandoned the proceeding and, on the basis of abandonment, the appeal should be dismissed, or alternatively summarily dismissed. 41 The DHS submits that the deemed abandonment which occurs by force of s 60(3) "destroys the trustee's right to pursue the action" even though the underlying cause of action is not necessarily extinguished. Subject then to the operation of s 60(4), Ms Luck has no standing to prosecute an appeal in her name: Cummings at 137-138. 42 The purpose of s 60(4) is to be gleaned from its words (and that of its cognate provision under s 116(2)(g)), as recognised by Allsop P, as the Chief Justice then was, in Moss v Eaglestone [2011] NSWCA 404; 83 NSWLR 476 at [64], namely that the distinction in s 60(4) and s 116(2)(g) between person and property is a substantive one: … It was a distinction made by courts and judges of the highest authority who declared it to be unjust and harsh that the estate of the bankrupt and the participating creditors should be swelled and advantaged by a wrong to the person or reputation of the bankrupt. 43 Section 116(2)(g)(i) excludes, from the property which is divisible among creditors, "any right of the bankrupt to recover damages or compensation … for personal injury or wrong done to the bankrupt". It therefore picks up the same language as in s 60(4). 44 The purpose of s 60 was canvassed by Gray J in Re Lofthouse (In the matter of Guss) [2001] FCA 25; 107 FCR 151 at [18]-[20]: 18 Section 60 is an adjunct to the scheme of the Act whereby the property of a bankrupt passes to the bankrupt's trustee consequent upon a sequestration order. By s 58 of the Act, the property of a bankrupt vests forthwith in the Official Trustee or a trustee in bankruptcy when a debtor becomes a bankrupt. That section has the effect of vesting in the trustee in bankruptcy all rights of action in pending proceedings commenced by the bankrupt. Even if it be the case that property of which a bankrupt is a bare trustee for someone else does not pass to the trustee in bankruptcy (because such property is not available for distribution to the bankrupt's creditors), it does not follow that s 60 must be construed as excluding proceedings brought by the bankrupt as trustee. 19 Section 60 is not the provision that vests the right of action in the trustee in bankruptcy. It has a different, and in some respects wider, role. It operates to stay pending proceedings unless the trustee elects to prosecute or discontinue them. It also provides the machinery for a defendant or other party to a pending proceeding to force the making of an election. It is directed towards the protection of the bankrupt's creditors, by preventing the unnecessary dissipation of the assets of the estate in fruitless litigation. In my view, s 60 also has the purpose of protecting a defendant or other party to a pending proceeding. A defendant or other party to a pending proceeding suffers an immediate detriment upon the plaintiff becoming a bankrupt. The detriment is that if the defendant or other party should be successful in the proceeding, and should obtain an order that the plaintiff pay the costs of the proceeding, the order will be effectively unenforceable because of the bankruptcy. The rationale behind s 60(2) and (3) is therefore, at least in part, to protect those whom the bankrupt has been suing. Such protection would be lost if the word "action" in s 60 were to be construed as excluding a proceeding in which the bankrupt has sued as a trustee for someone else. 20 In my view, s 60 has been enacted deliberately as a broad provision, so as to encompass any proceeding brought by a bankrupt before bankruptcy. The exceptions have been expressed quite narrowly. The intention is that, once a bankruptcy occurs, no further costs should be incurred in a proceeding unless the trustee in bankruptcy makes an election to continue the proceeding. If such an election is made, the trustee in bankruptcy will ordinarily become substituted as plaintiff in the pending proceeding, in the capacity of trustee in bankruptcy for the former plaintiff. The trustee in bankruptcy will thereby become liable for the costs of the proceeding in the event that it is unsuccessful and a costs order is made in favour of the defendant in the proceeding or some other party to it. The trustee in bankruptcy may be entitled to an indemnity in respect of those costs out of the bankrupt estate, as expenses of the administration of the estate, to the extent to which the estate has assets. The trustee in bankruptcy will obviously consider whether continuing to prosecute the proceeding will be likely to have any benefit to the estate of the bankrupt, and therefore to the bankrupt's creditors. One of the elements that the trustee in bankruptcy will take into account is whether the bankrupt is suing in a personal capacity or some other capacity, particularly that of trustee for someone else. If the bankrupt has sued as trustee for another person, and the estate will not benefit, the trustee in bankruptcy would no doubt usually elect not to continue to prosecute the proceeding. This would protect any defendant, and perhaps other parties to the proceeding, with respect to costs. Of course, it may impact on the beneficiary of the trust of which the bankrupt claims to be trustee. The beneficiary may be forced to institute proceedings in his or her own right to enforce the trustee's legal right, as can be done where there are "exceptional circumstances". See Lamru Pty Ltd v Kation Pty Ltd (1998) 44 NSWLR 432. (Emphasis added) 45 Consequently, in circumstances such as the present, where the appeal was commenced by Ms Luck before the date of the sequestration order, the appeal cannot now be revived by Ms Luck in her name given the operation of s 60(3). In Primelife Corporation Ltd v Buffalo [2008] FCA 1742, Jessup J referred to the judgment of the Full Court in Fuller v Beach Petroleum NL [1993] FCA 453; 43 FCR 60 and said, at [35]: … I read this passage as recognising that it is a policy of s 60 that a respondent to a proceeding previously commenced by a bankrupt should not be subjected to the risk of sustaining further costs in that proceeding. It follows, in my view, that the abandonment of such a proceeding under subs (3) should, as a matter of law, be regarded as bringing it to an end finally, without any prospect of revival. If it were possible, notwithstanding such an abandonment, for the trustee of a bankrupt estate (or the bankrupt himself or herself after discharge) to apply for the reinstatement of the proceeding, the respondent could never confidently close the file, as it were. 46 Similarly, in Garrett v Federal Commissioner of Taxation [2015] FCA 665; 233 FCR 226 at [35], Kenny J drew attention to the purpose of s 60(2), which the DHS submitted assists one's interpretation of s 60(4), namely its intention is to protect a successful respondent from losing the practical opportunity to recover costs: Whilst Lofthouse 107 FCR 151 and Duckworth 261 FLR 185 did not specifically deal with the issue arising in this case, they nonetheless provide firm support for the propositions referred to at [27] above: namely, that s 60(2) is intended to protect a successful respondent from losing the practical opportunity to recover costs and applies to any action instituted by the bankrupt before bankruptcy, irrespective of whether there is a connection between the action and the bankrupt estate beyond the fact that the bankrupt had commenced the action before becoming a bankrupt. Re Lofthouse 107 FCR 151 and Duckworth 261 FLR 185 do not support the supposed implied limitation on pre-bankruptcy actions begun by the bankrupt that are subject to s 60(2). The interpretation of s 60(2) in Re Lofthouse 107 FCR 151 and Duckworth 261 FLR 185 should be applied in deciding whether that provision should be construed to apply to Mr Garrett's application for leave to institute an appeal under s 37AR of the Federal Court Act. 47 Accordingly, this application depends upon the characterisation of Ms Luck's substantive claim, namely whether it can be characterised as one "in respect of any personal injury or wrong done to the bankrupt": s 60(4). 48 Proceedings that have been held to be "in respect of any personal injury or wrong done to the bankrupt" include: (a) Moss, in which an action for professional negligence against a solicitor in relation to a failure to plead a case of defamation in earlier litigation was excluded from s 60(2) by the operation of s 60(4). Allsop P reviewed the legislative history and authorities relating to s 60(4), and concluded that it reflects a distinction of long standing between actions relating to rights to the person and rights concerning property. Only if the personal hurt or wrong is inseverable from a claim relating to property will it fall outside the scope of s 60(4); (b) Sheehan v Brett-Young & Ors (No 3) [2016] VSC 39, where the Supreme Court of Victoria held that claims based on malicious prosecution and misfeasance in public office against the applicant were excluded from the operation of s 60(2) by s 60(4); and (c) Fisher v Transport for NSW [2016] NSWSC 1888, where the Supreme Court of NSW concluded that an appeal on a question of law from an administrative tribunal was a proceeding in respect of a wrong done to a bankrupt under s 60(4), where the tribunal had affirmed a decision to cancel a licence on the ground that the applicant was not a fit and proper person on the basis of their character and behaviour. Justice McCallum reasoned, at [37]: If this was an action for damages for defamation arising from the publication of an imputation that Mr Fisher is not a fit and proper person to engage in his chosen occupation of a bus driver, the decision in Moss v Eaglestone would hold that the action fell within the exception in s 60(4) … It seems to me that, for coherence, the law should similarly regard an action seeking to impugn an administrative finding that Mr Fisher is not a fit and proper person to engage in the occupation of a bus driver to be an action "in respect of" a personal injury or wrong. 49 These authorities reveal that the exception applies to that narrow class of action where it relates to the "personal" - the injury is one to the person, their character, or feelings. 50 One helpful, pithy way in which Ms Luck described her action, was as follows: If the cause of action in this case is examined, that being the reason why I was seeking to access, under FOI, documents in the possession of the first respondents, both personal and other documents related to my rights and obligations which directly relate to my eligibility for, and responsibilities in regard to the receipt of Social Security benefits and my entitlement to the services offered by the Respondent and its agencies. and it is necessary to refer back to the causes in my cases Luck v CEO Centrelink & Anor VID488/2008 and Luck v University of Southern Queensland VID476/2008, whereby exchanges of communications between the respondents in both cases, in relation to my enrolment in courses, units and programs at the University, involved serious errors and misrepresentations, including in relation to the obligations of the University and Centrelink in respect of the Data-matching Program (Assistance and Tax) Act 1990 which caused me to be denied certain benefits by Centrelink and resulting in suspension of me from the courses, units and programs of the University. I sought FOI documents relating to my personal documents and to other documents, from which I stated clearly in my FOI request dated 20 January 2009 (typo error with date 20 January 2008) filed with my Application to the AAT on 16 July 2009 51 Ms Luck contends her proceedings comprise an action in respect of "[a] personal injury or wrong done" to her which she asserts constitutes a denial of "her personal and human rights" not related to her property rights, given: (a) her "Review Rights" under s 27A of the AAT Act, include an implied right under s 2A of that Act - that the Tribunal would act, amongst other things, in a "fair, just" way in carrying out its functions; (b) her "Review Rights" include a "right to access information" under ss 3 and 11 of the FOI Act; (c) her "Review Rights" constitute "human rights" as recognised under the Australian Human Rights Commission Act 1986 (Cth) and constitute rights recognised under the Disability Discrimination Act 1992 (Cth) (DDA), by reason of the objects of the DDA, including with particular emphasis to the elimination, as far as possible, discrimination against persons on the grounds of disability in a number of areas, including "existing laws" and "the administration of Commonwealth laws and programs: and "ensure, as far as practicable, that persons with disabilities have the same rights to equality before the law as the rest of the community and promote recognition and acceptance within the community of the principle that persons with disabilities have the same fundamental rights as the rest of the community; (d) her "Review Rights" are consistent with rights recognised under the Convention on the Rights of Persons with Disabilities. Opened for signature 13 December 2006, 2515 UNTS 3 (entered into force 3 May 2009) as contained in Articles 1 (Purpose), 2 (Definitions), 4 (General Obligations), 5 (Equality and non-discrimination), 12 (Equal recognition before the Law), 13 (Access to justice), 20 (Personal mobility), 21 (Freedom of expression and opinion, and access to information) and 22 (Respect for privacy). 52 Ms Luck catalogued 30 personal injuries and wrongs done to her "causing pain felt by [her] in respect of her mind, body and character" being the manner in which "damages or part of them are to be estimated" when a proceeding is for "any personal injury or wrong". In obiter dicta in Cox v Journeaux (No 2) [1935] HCA 48; (1935) 52 CLR 713 at 721, Dixon J observed that this formulation, as articulated by Ms Luck, "appears" to be the test. The test will however only be enlivened if there is "injury which remains actionable at the suit of the bankrupt" 53 Quite understandably, Ms Luck submits that the wrongs done to her are intensely personal because they arise out of her request for personal information and her subsequent requests for reasonable adjustments on account of her disability. 54 The wrongs may be summarised as follows: (a) the DHS: (i) breached its obligations under the FOI Act and the Convention by misleading and deceiving Ms Luck into believing she would be granted access to the information she sought; (ii) failed to give her access to her requests which included inspection of the information at an authorised Information Access Office, pursuant to s 28 of the FOI Act; (iii) failed to comply with s 37(1) of the AAT Act; (iv) misled and deceived the Tribunal and the Deputy President by informing them at the hearing on 23 October 2009 that it had no more relevant documents than those attached to Ms Luck's application for review; (v) provided communications and documents sent between the DHS, the Tribunal, and the Deputy President (between 23 October 2009 and 7 January 2010), including a transcript of the hearing held on 23 October 2009; (vi) notifying Ms Luck, on or about 8 January 2010, of the orders of the Tribunal and the Deputy President relating to its jurisdiction and that the DHS was not obliged to comply with s 37 of the AAT Act; and (vii) providing the reasons of the Tribunal and the Deputy President dated 8 January 2020, which are alleged to breach her rights to privacy in respect of her medical conditions, and publishing them on the internet, (b) the Tribunal: (i) required her to pay an application fee if she did not provide her health care card; (ii) failed to enforce the law such that she did not receive the "T" documents (or s 37 documents) (c) the DHS, the Tribunal, and the Deputy President of the AAT produced correspondence (between 23 July 2009 and 23 October 2009) in relation to the DHS' assumption of its power to determine the jurisdiction of the Tribunal and the Deputy President and notifying her of such; (d) the Tribunal and the Deputy President of the AAT: (i) listed a jurisdictional hearing for 23 October 2009 rather than the substantive application for review and conducting that hearing in the absence of Ms Luck; and (ii) refused to grant Ms Luck a reasonable adjustment by way of an adjournment of the hearing on 23 October 2009. 55 This summary reveals the difficulty Ms Luck faces in establishing that the pain felt by her in respect of her mind, body and character caused by the alleged wrongs is actionable. 56 The international human rights obligations under the international human rights treaties to which Ms Luck referred in her submissions, being the Convention and the International Covenant on Civil and Political Rights, opened for signature 16 December 1966, 999 UNTS 171 (entered into force 23 March 1976) (ICCPR), are only partially incorporated into Commonwealth domestic legislation. The scope of rights given protection by statute is narrower than that protected by international human rights law. Furthermore, there is no right of direct access to a court or tribunal to enforce compliance with human rights obligations, nor to prosecute for breach. Neither the DDA, the Australian Human Rights Commission Act 1996 (Cth) (AHRC Act), nor the Privacy Act 1988 (Cth) create private causes of action. The Privacy Act enables an individual to complain about an act or practice that may be an interference with the privacy of the individual (s 36(1)) but the relief available under the Act is limited to public interest declarations (Part VI) and the imposition of civil penalties (Part VIB) or criminal sanctions. Part IIB of the AHRC Act governs claims for redress under the DDA. Proceedings may only be instituted in this Court for relief arising from a claim under the DDA, where a complaint has been lodged with the Australian Human Rights Commission (AHRC) and that complaint has been terminated by the President or her delegate: AHRC Act s 46PO (3A); Picos v Australian Federal Police [2015] FCA 118 at [36]-[40]. If a complaint is not resolved by the AHRC during a conciliation process or is terminated on a basis which allows it to proceed, only then may enforcement proceedings be commenced in the Federal Court of Australia or the Federal Circuit and Family Court of Australia. Section 46PO(4)(d) of the AHRC Act provides that a court may make an order requiring a respondent to pay damages by way of compensation for any loss or damage suffered because of unlawful discrimination by the respondent. 57 The statutory wrongs created by Commonwealth anti-discrimination are sui generis; they are not the same as torts. In Commissioner of Police v Mohamed [2009] NSWCA 432 at [47]-[48], Baston JA said: 47 [t]he submission that a complaint under the Anti-Discrimination Act gives rise to an action in tort is of limited assistance. In Australian Postal Commission v Dao (1985) 3 NSWLR 565 at 604-605 McHugh JA described an action under the Anti-Discrimination Act as "an action in tort", but in a context in which he was considering the operation of s 64 of the Judiciary Act 1903 (Cth) in rendering a Commonwealth authority liable to suit under the Anti-Discrimination Act. That description, as noted by Spigelman CJ in Russell, was adopted from the judgment of Lee J in Allders International Pty Ltd v Anstee (1986) 5 NSWLR 47 at 65: see Russell at [55]. In considering the application of the Law Reform (Vicarious Liability) Act 1983 (NSW) to a cause of action under the Anti-Discrimination Act, the Chief Justice said "it is not accurate to describe proceedings by way of complaint before a tribunal as a 'right of action'": at [71]. Rather, his Honour preferred the reasoning of Menhennitt J in Philip Morris Ltd v Ainley & Inc Nominal Defendant [1975] VR 345 at 349 that "an action of tort is one in which the remedy is a common law cause of action although the right being enforced in the action may be a right created by either the common law or statute: at [72]. 48 However one characterises the cause of action under the Anti-Discrimination Act, it does not involve the creation of a general law duty of care, of the kind discussed in Hill, Tame and Sullivan. Nor does it give rise to the kind of policy questions which affect the scope of such a duty. Rather, its scope is to be identified as a matter of statutory interpretation. If the Parliament seeks to subject the Police Force to statutory prohibitions, with civil remedies for breach, the courts must apply the statute, which is not in any sense contingent upon the existence of a general law duty of care, nor on matters of legal principle which underlie the existence or absence of such a duty. Accordingly, submissions based on these authorities should be rejected. 58 Ms Luck frankly informed the Court that she has never brought any complaint before the AHRC with respect to any of the purported "treatment" she has received. Any opportunity that she may have had to pursue such a complaint has long since passed. It cannot be accepted that Ms Luck's action is one under the Australian human rights legislation. Ms Luck is precluded from bringing any claim under the DDA in this Court without first having made a complaint to the AHRC and that complaint being terminated by the President or her delegate of the AHRC: s 46PO of the AHRC Act. 59 Further, at no stage of the proceedings has Ms Luck sought to frame her cause of action as one for damages. During the hearing, Ms Luck informed the Court candidly that she made no claim for damages as part of her initial claim to the Tribunal. Rather, she described her underlying claim as being one for "documents", not damages. Unlike the circumstances in Fisher, and as submitted by the DHS, nothing done by any of the respondents in relation to her application for production of documents impugned her character such that her claim became analogous with one for defamation. Further, as the DHS contended there was no evidence that the purpose of Ms Luck's request related to employment or income. Her request was for what might be described in broad terms as various manuals and documents relating to the policies and procedures of the DHS. 60 Likewise, the obiter dicta of the Full Court in Luck v Chief Executive Officer of Centrelink [2017] FCAFC 92; 251 FCR 295 at [25] that Ms Luck's application for judicial review under s 5 of the Administrative Decisions (Judicial Review) Act 1977 (Cth) was "a right of action (if it be a right of action) that relates to the appellant's "person or feelings" and thus remains with her" do not assist. The impugned decision in that case was one which prevented Ms Luck from entering Centrelink's premises for three months, thereby allegedly impugning her character in various different ways. The Court upheld the decision at first instance that decision was not reviewable, it not having been made "under an enactment". 61 In Garrett, the applicant sought judicial review of the validity of tax assessments and the existence or quantum of prior tax debts. In determining whether the applicant was able to continue the proceedings because of s 60(4), Kenny J considered whether Mr Garrett's claim fell within the species of an action in respect of "any personal injury or wrong" and concluded that it was not, at [39]: When Mr Garrett's application and statement of claim is examined, it is clear that the action was not in respect of "any personal injury or wrong" as that phrase has been interpreted by the authorities. Mr Garrett sought judicial review on the basis that the respondent Commissioner and other public officers have misconducted themselves with respect to his taxation liabilities. His proposed appeal is in respect of the primary judge's disposition of that judicial review proceeding. This is not an action of a kind to which s 60(4) applies: cf Bryant v Commonwealth Bank of Australia (1997) 75 FCR 545 at 564 per O'Loughlin and Merkel JJ. Whilst this judicial review proceeding was brought to an end at first instance on the making of the vexatious proceedings order and not on any other basis, this does not convert Mr Garrett's proposed appeal against this order into an action in respect of a "personal injury or wrong" under s 60(4) of the Bankruptcy Act. Nor does Mr Garrett's asserted reliance on claimed human rights issues under the Human Rights and Equal Opportunity Commission Act 1986 (Cth) and Charter of Human Rights and Responsibilities Act 2006 (Vic) or his assertion that he has suffered "damages to mind and body" from the respondents' asserted unconscionable conduct and criminal acts, which apparently related to his judicial review proceeding. 62 Notably, as can be seen from the end of the above extract, her Honour considered like assertions by Mr Garrett to that of Ms Luck regarding his reliance of claimed human rights issues. Assertions of having suffered "damages to mind or body" are not sufficient to bring the action under the scope of s 60(4). Attention must be given to the word "action" defined in s 60(5), namely "any civil proceeding, whether at law or in equity". Justice Kenny considered the same earlier argument in her Honour's judgment at [24]: Want v Moss 10 LR (NSW) 274, Daemar 12 NSWLR 45, Cummings 185 CLR 124 and Sarkis v Moussa 262 FLR 359 indicate that the word "proceeding" in s 60(5) bears a meaning generally co-incident with its ordinary meaning and, in particular, co-incident with the definition of proceeding in s 4 of the Federal Court Act. The ordinary meaning of the word "proceeding" was mentioned earlier (at [11] above). In the Federal Court Act, s 4, the word "proceeding" is defined as "a proceeding in a court, whether between parties or not, and includes an incidental proceeding in the course of, or in connexion with, a proceeding, and also includes an appeal". An application under s 37AR of the Federal Court Act, for leave to institute an appeal that is subject to a vexatious proceeding order, falls within this definition. This indicates that not only is Mr Garrett's current application properly characterised as a "civil proceeding" within s 60(5) but also as an "action" within s 60(2). It is only if there is some implied additional requirement, such as some further connection with the bankrupt's estate, that the application could fall outside s 60(2). 63 That the character of Ms Luck's action was not sufficient to bring it within the scope of s 60(4) can be seen from the primary judge's summary (he used the term "recasting") of the three matters which had been remitted to him (Luck No 4 [2016]) at [3]: first, the Administrative Appeals Tribunal ("AAT") was wrong to deny that it had jurisdiction (ground u); second, the AAT was wrong to have failed to require the Department of Human Services ("DoHS") to provide Ms Luck with the documents contemplated by s 37(1)(b) of the Administrative Appeals Tribunal Act 1975 (Cth) ("AAT Act") (ground o); third, the AAT and the third respondent ("Forgie DP") denied Ms Luck procedural fairness by refusing to grant her extensions of time and adjournments (ground aa). 64 As to the first question, the primary judge held the Tribunal was correct to hold that its ability to review a decision is dependent on it having been given jurisdiction by statute, relevantly to Ms Luck's claims, pursuant to s 55 of the FOI Act. No such jurisdiction having been conferred on the Tribunal, it did not err in concluding that it lacked jurisdiction: Luck No 4 [2016] at [18]-[19]. Although this conclusion was sufficient to dispose of the question, the primary judge undertook an analysis, on the basis of all the documents available to him, of whether there were any decisions made by the DHS that were reviewable and of which Ms Luck sought review. The primary judge concluded that there were no decisions meeting both of those criteria: Luck No 4 [2016] at [86]. This question, as remitted to the primary judge, cannot be characterised as one giving rise to an action for a personal injury or wrong. 65 As to the second question, the essence of the complaint before the primary judge was that the Tribunal was not entitled to have permitted the DHS to delay compliance with or ignore its requirement to lodge the documents contemplated by s 37(1)(b). Having already determined that the Tribunal lacked jurisdiction, the underlying premise of the complaint fell away: Luck No 4 [2016] at [91]. Further, the primary judge held that Ms Luck had failed to identify which documents, had they been before the Tribunal, would have led to a different outcome: Luck No 4 [2016] at [96]. Similarly, this question, as remitted to the primary judge, cannot be characterised as one giving rise to an action for a personal injury or wrong. 66 As to the third question, the primary judge concluded that it was unnecessary to decide the question because unless the Tribunal actually had jurisdiction to deal with Ms Luck's application, which it did not, a procedurally fair hearing would necessarily have resulted in the same conclusion. Consequently, there was no utility to the relief sought: Luck No 4 [2016] at [112]. The question of whether a person has been denied procedural fairness is not one giving rise to an action for a personal injury or wrong. 67 The irresistible conclusion is that the pain felt by Ms Luck in respect of her mind, body and character said to be caused by the injuries inflicted and wrongs done to her by the DHS, the Tribunal, and the Deputy President are simply not actionable and certainly did not form the basis of any pleaded cause of action in the proceedings before the primary judge. Her application was, and always has been, one for judicial review. 68 That being so, there is in fact no extant action in respect of any personal injury or wrong done to Ms Luck which could be continued in her name. As such, the appeal is deemed to be abandoned by force of s 60(3) and it should be summarily dismissed pursuant to s 25(2B) of the FCA Act.

Luck v Secretary of Services Australia

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