Luck v Secretary, Services Australia [2025] FCAFC 26

Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

1. Prior to April 2024, the appellant (Ms Luck) received an age pension and a mobility allowance pursuant to the Social Security Act 1991 (Cth). The mobility allowance is a payment to assist people who have difficulty using public transport with their travel costs to work, to study or to look for work.
2. On 2 April 2024, Services Australia wrote to Ms Luck advising that her mobility allowance would stop on 25 June 2024 because she was not working enough hours to be eligible for the payment. The letter included a statement to the effect that Ms Luck could ask Services Australia to review the decision, and that if she did not agree with the review officer's decision she could seek review in what was then the Administrative Appeals Tribunal (now the Administrative Review Tribunal).
3. On 3 May 2024, Services Australia wrote to Ms Luck concerning her age pension entitlement. The letter asked for certain information to "help [Services Australia] make the right decision about [her] Age Pension" (the age pension letter). The age pension letter was headed "Request for information" and stated that it was requesting information under s 63 of the Social Security (Administration) Act 1999 (Cth).
4. On 10 May 2024 Ms Luck commenced proceedings under the Administrative Decisions (Judicial Review) Act 1977 (Cth) (the ADJR Act), seeking judicial review of three instances of what she termed "Decision & Conduct" and one instance of "Proposed Decision & Conduct". As summarised by the primary judge (at J [1]), these were as follows.

(a) Cancelling her mobility allowance by correspondence dated 2 April 2024;

(b) Not seeking critical information from her, prior to cancelling her mobility allowance;

(c) Sending correspondence to her titled "request for information" dated 3 May 2024 which she says included a threat to cease her age pension; and

(d) Sending that same correspondence dated 3 May 2024 which she says proposed to unreasonably cease her age pension unless specific information was provided.

1. The first respondent (the Secretary) filed an interlocutory application on 9 August 2024 seeking orders that:

(a) the question whether the proceeding should be dismissed under s 10(2)(b)(ii) and/or s 16(1) of the ADJR Act, and the residual discretion of the Court to decline to grant constitutional writ relief, be determined as a preliminary issue; and

(b) the proceeding be dismissed pursuant to r 30.02(b) of the Federal Court Rules 2011 (Cth) (the Rules).

1. The argument advanced by the Secretary was, in short, that the proceeding should be dismissed on the ground that adequate provision was made under other legislation for review of the impugned decisions and conduct, and that this point should be determined at the threshold rather than at the end of the case.
2. Following a hearing on 23 September 2024, the primary judge in substance upheld this argument. On 3 October 2024 his Honour made the following orders.
   1. The Court determine, as a preliminary issue, the question of whether the proceedings should be dismissed pursuant to ss 10(2)(b)(ii) and 16(1) of the [ADJR Act] and the Court's residual discretion to decline to grant prerogative writ relief.

2. The preliminary issue be determined in favour of the respondents.

3. The proceeding be dismissed with costs.

1. Ms Luck filed a notice of appeal on 4 October 2024.
2. The appeal was listed for hearing on 7 March 2025. When the matter was called, Ms Luck did not appear. The Secretary's counsel made an oral application under r 36.75(1)(a)(i) of the Rules, that the appeal should be dismissed. We determined that the appeal should be dismissed. We also dismissed two interlocutory applications in the appeal. We also gave notice that the Court would, after Ms Luck has been given the opportunity to be heard, give consideration to making certain orders under the provisions of the Federal Court of Australia Act 1976 (Cth) relating to vexatious litigants (the vexatious litigant issue). We made some procedural orders in respect of that issue.
3. Other than to observe that Ms Luck is no stranger to litigation in this Court, having filed over 50 unsuccessful applications since 2000, these reasons do not canvass the vexatious litigant issue. Otherwise they explain briefly why the orders of 7 March 2025 were made.

1. On 13 January 2025, Ms Luck filed an interlocutory application seeking that Rofe and Kennett JJ recuse themselves from determining the appeal (the recusal application). The recusal application was listed for hearing on the same day as the substantive appeal. Each of their Honours considered the matter individually and reached the view that they should not recuse themselves. However, in the light of QYFM v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2023] HCA 15; 97 ALJR 419 it is necessary for the Full Court as constituted for an appeal to consider whether, as so constituted, it has jurisdiction to determine the appeal. Because the potential disqualification of a judge has implications for the Court's jurisdiction, we considered it appropriate to consider the substance of the recusal application even though Ms Luck did not file any written submissions or appear on the return of the application.
2. The recusal application contained text in the nature of submissions which we understand to be the basis on which Ms Luck sought recusal. She had previously written to the Registry asking Rofe and Kennett JJ to disqualify themselves voluntarily. To the extent that the issues advanced in that letter were not taken up in Ms Luck's interlocutory application, we proceed on the basis that they are not pressed.

1. In the recusal application Ms Luck said the following in relation to Rofe J.

Grounds for Recusal

Justice Rofe's continued involvement in this appeal raises serious concerns about judicial impartiality and procedural fairness. Her refusal to recuse herself in related matters, such as [citation redacted], highlights a broader systemic issue of judicial allocation in cases involving significant public interest. While this case does not involve pharmaceutical interests, the improper allocation of Justice Rofe to this matter, despite her history of handling cases with contentious conflicts of interest, undermines the public's confidence in the impartiality of the judiciary.

The Applicant submits that Justice Rofe's assignment to this appeal reflects systemic issues within the Federal Court's allocation process. These systemic issues are further evidenced by her refusal to recuse herself despite formal complaints made against her conduct in unrelated but high-profile matters. The perception of bias is compounded by her role in VID1050/2024, which involves significant constitutional and statutory questions directly affecting public confidence in judicial independence.

Arguments for Recusal

The Applicant contends that the reasonable apprehension of bias arises from Justice Rofe's history of decisions in cases where public and media scrutiny raised concerns about her impartiality. These concerns are relevant in the current appeal, given its focus on breaches of procedural fairness, systemic discrimination, and judicial independence.

The principles established in Ebner v Official Trustee in Bankruptcy [2000] HCA 63; (2000) 205 CLR 337 are directly applicable. A fair-minded observer might reasonably apprehend that Justice Rofe's involvement in this matter compromises the appearance of judicial impartiality, particularly in light of:

1. Her refusal to recuse herself in prior cases despite well-documented conflicts of interest.

2. The improper allocation of this matter to her, despite the overlapping systemic issues and the Commonwealth's involvement as a respondent.

These concerns are not speculative but are grounded in the Applicant's experience with systemic judicial allocation issues, as seen in VID839/2024, VID870/2024, and VID1273/2024. This pattern of improper judicial assignments reflects broader failures in the administration of justice and warrants Justice Rofe's recusal to preserve public confidence.

1. The case referred to in the first paragraph of this extract does not exist. The judgment with the medium neutral citation referred to is a completely different matter which did not involve Rofe J. We apprehend that the reference may be a product of hallucination by a large language model. We have therefore redacted the case name and citation so that the false information is not propagated further by artificial intelligence systems having access to these reasons.
2. The three proceedings listed in the last paragraph are proceedings commenced by Ms Luck which have been resolved or are docketed to other Judges of the Court. To the extent that anything to do with these proceedings is said to constitute a reason why an apprehension of bias might prevent Rofe J sitting in this matter, the references are at best misconceived.
3. Otherwise the grounds and arguments raised by Ms Luck give no particularity as to any reason why it is contended that her Honour is disqualified from deciding this matter. The application has no substance and should be rejected.

1. In the recusal application Ms Luck said the following in relation to Kennett J.

Grounds for Recusal

Justice Kennett's prior employment with the Australian Government Solicitor (AGS) and the Attorney-General's Department creates a reasonable apprehension of bias in matters involving the Commonwealth, particularly where the AGS represents the Respondents. As Counsel Assisting the Solicitor-General, Justice Kennett had extensive involvement in advising and representing government interests. This prior association creates an inherent conflict of interest in cases where the Commonwealth is a respondent party.

Further, the AGS's continued representation of the Respondents in VID1050/2024, led by Ms. Heffernan, exacerbates concerns of impartiality. The overlap between Justice Kennett's previous role and the Respondents' legal representation undermines the Applicant's confidence in a fair hearing.

Arguments for Recusal

Justice Kennett's involvement in this appeal contravenes the principles of judicial independence and impartiality enshrined in Ebner v Official Trustee in Bankruptcy [2000] HCA 63; (2000) 205 CLR 337. A fair-minded observer might reasonably apprehend bias given:

1. His long-standing ties to the Commonwealth as a senior legal advisor and his direct involvement with the AGS.

2. The AGS's role as legal representative for the Respondents, creating a perceived overlap between judicial and executive interests.

These concerns are heightened by Justice Kennett's appointment to this matter despite the Commonwealth's central role as a respondent. The Applicant submits that the pattern of judicial appointments in related matters, including VID1273/2024, reflects systemic failures to ensure impartial judicial processes in cases involving the Commonwealth.

The reasonable apprehension of bias in this matter is further substantiated by the Commonwealth's overlapping involvement across multiple proceedings, including VID411/2024, VID1050/2024, and VID1273/2024. Justice Kennett's recusal is necessary to ensure that the appeal is heard by an independent and impartial bench, free from any perception of executive influence or conflict of interest.

1. One of the proceedings referred to in the last paragraph of the argument is this matter and another is the proceeding from which Ms Luck has appealed. The third is a separate proceeding commenced by Ms Luck which is before another Judge of the Court.
2. The argument appears to boil down to the fact that his Honour was formerly employed as a government lawyer for the Commonwealth (which is a party to the appeal). That employment is a matter of public record, as is the fact that it ended in 1998. It does not provide a basis upon which a fair-minded observer could apprehend that his Honour might be unable to decide the present case on its merits: Bienstein v Bienstein [2003] HCA 7; 195 ALR 225 at [33] (McHugh, Kirby and Callinan JJ).

1. Ms Luck's arguments also hint at what are suggested to be "systemic" issues relating to judicial "appointments" or "assignments". Whatever these might be, there is no explanation of how they might disqualify an individual Judge from sitting on the appeal. The underlying proposition appears to be that the court in which Ms Luck has chosen to litigate is unable to determine the proceedings brought by her. What the Court is supposed to do about this alleged problem is a mystery.
2. There is no reason why the Court as presently constituted should not decide the appeal. Accordingly, we dismissed the recusal application.

Failure to appear and dismissal under r 36.75 of the Rules

(1) If a party is absent when an appeal is called on for hearing, the opposing party may apply to the Court for an order that:

(i) the appeal be dismissed; or

(ii) the hearing be adjourned; or

(iii) the hearing proceed only if specified steps are taken; or

(b) if the absent party is the respondent:

(i) the hearing proceed generally or in relation to a particular claim for relief in the appeal; or

(ii) the hearing be adjourned; or

(iii) the hearing proceed only if specified steps are taken.

(2) If a hearing proceeds in a party's absence and during or at the conclusion of the hearing an order is made, the party who was absent may apply to the Court for an order:

(a) setting aside or varying the order; and

(b) for the further conduct of the hearing.

1. On 6 February 2025 Ms Luck filed an interlocutory application seeking a stay of her own proceedings pending the determination of the recusal application and what she described as "the constitutional challenge concerning systemic judicial and executive misconduct across related proceedings" (the stay application). She was informed by email on 10 February 2025 that this application would be heard along with the substantive issues in the proceeding on 7 March 2025. Later on 10 February 2025 Ms Luck sent an email to the Registry complaining about this approach to the matter and asserting that no final hearing should occur (and she should not be expected to file submissions) until the stay application was resolved.
2. Ms Luck's written submissions in chief and chronology in the appeal were due on 7 February 2025. Neither was filed.
3. On 13 February 2025 Ms Luck wrote to the CEO and Principal Registrar of the Federal Court of Australia (the CEO). Ms Luck also filed a document which was in the form of an affidavit but in substance also sought certain orders. The orders were:
   1. That this appeal proceeding in Luck v The Secretary, Services Australia and Anor (VID1050/2024) be stayed or adjourned until May 2025, when I will be able to progress the matter according to law and in accordance with the reasonable adjustments process.
   2. That no further substantive or case management orders be made in this matter until my reasonable adjustments request has been fully considered and implemented.
   3. That the Federal Court acknowledge its obligation under the [Disability Discrimination Act 1992 (Cth), the Convention on the Rights of Persons with Disabilities and the International Covenant on Civil and Political Rights] to provide reasonable adjustments for disabled litigants.
   4. That the CEO of the FCA, as the executive arm of government, determine the appropriate adjustments and notify the Court accordingly.
4. Ms Luck deposed to suffering certain disabilities and sought, from the CEO, "reasonable adjustments" under the Disability Discrimination Act 1992 (Cth) (the DD Act). Ms Luck stressed that this approach was being made to the CEO, as an officer of the Executive Government, and not to the Court. A Registrar responded to Ms Luck on behalf of the CEO on 18 February 2025.
5. In her affidavit Ms Luck also deposed to having received a medical certificate expressing the opinion of her doctor that she needed at least two months for rest and recuperation. However, no such certificate was annexed to the affidavit or otherwise put before the Court. Ms Luck said in her affidavit that this was because the viewing of private medical information by a judge would create an apprehension of bias.
6. On 26 February 2025, in response to an email from the Secretary's solicitors concerning the bundle of authorities for the hearing, Ms Luck sent an email to the solicitors and the Registry with the heading "GAYE LUCK IS OUT OF OFFICE ON MEDICAL LEAVE UNTIL MAY 2025 (REFER CEO OF FCA- PROPER RECIPIENT OF MEDICAL EVIDENCE)". The email said:

Gaye Luck is currently on medical leave as per medical report/certificate provided to the CEO of FCA on 13 February 2025 supporting requests for reasonable adjustments pursuant to rights under the Disability Discrimination Act 1992 (Cth) and further an application for stay or adjournment was made via affidavit sworn on 12 February 2025 and filed on 13 February 2025 in VID1050/2024 and VID1273/2024, and as such, Ms Luck will not be engaging in correspondence or legal proceedings involving the Federal Court of Australia during this period.

Any further communications, demands, or procedural actions disregarding this medical leave will constitute discrimination, harassment, and victimisation in violation of the Disability Discrimination Act 1992 (Cth), the Convention on the Rights of Persons with Disabilities, the International Covenant on Civil and Political Rights, the Charter of Human Rights and Responsibilities Act 2006 (Vic), and the Rome Statute of the International Criminal Court and the International Principles and Guidelines on Access to Justice for Persons with Disabilities. Any continued contact will be documented as evidence of ongoing systemic discrimination, harassment and victimisation, and legal misconduct, and appropriate and relevant action taken.

No further responses will be provided except in relation to the CEO's response regarding reasonable adjustments requested on 13 February 2025, and due by 28 February 2025.

(Emphasis in original.)

1. This was the last communication received from Ms Luck in connection with this matter.
2. There are five points that emerge from this.
3. First, Ms Luck's request for "reasonable adjustments" was made to the administrative staff of the Court and expressly not to the Court as constituted for this appeal. No application has been made to delay the hearing on the footing that that request still requires a response. We make no comment as to whether the request properly invokes rights or obligations under the DD Act or as to its merits.
4. Secondly, it is obvious from the correspondence referred to above that Ms Luck was aware of the listing and chose not to attend the hearing or file written submissions.
5. Thirdly, Ms Luck has made no formal approach to the Court to have the hearing vacated on the ground that a medical condition prevents her from appearing. This would be readily forgiven in the case of a litigant in person with little or no experience of court processes. However, Ms Luck is a very experienced litigant who is not reticent in filing long and detailed applications and affidavits. Instead of applying to the Court to vacate the hearing, she has purported to make that decision herself.
6. Fourthly, the Court has before it no medical evidence to support the assertion that Ms Luck is medically unfit to appear (and that she will not be able to appear until May 2025). It is claimed that a medical certificate exists, but it has been withheld from the Court. The reason given for refusing to provide the (alleged) medical certificate - that it would give rise to an apprehension of bias in any judge who saw it - is obviously devoid of merit. Ms Luck's own assertion of unfitness is not a sufficient basis to adjourn the hearing.
7. Fifthly, we see no reason to doubt the correctness of the decision of the primary judge that is the subject of the appeal. We therefore do not consider that dismissal of the appeal works any injustice to Ms Luck. Moreover, the gravamen of that decision is that there are non-judicial processes available to Ms Luck that can review the impugned administrative decisions on their merits and reverse them if they are wrong.
8. For these reasons, we considered that further commitment of public resources (in the form of the Court's time, and legal costs incurred by the respondents) was not justified. The appropriate action in the light of Ms Luck's failure to appear was to dismiss the stay application and the appeal.

I certify that the preceding thirty-six (36) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justices Rofe, Hespe and Kennett.