Issue 5: Whether the appellant was denied natural justice?
64 Ms Luck claims that she was denied fairness, transparency, equality before the law, freedom from bias, and the right to be heard, in the hearing of the second adjournment and recusal application. She contends that she was denied natural justice but her submissions do not elaborate on this contention. We have addressed them by making some assumptions as to the matters which might be said to underpin the contention.
65 First, to the extent that any breach of natural justice is said to have arisen due to bias on the part of the primary judge these claims have been addressed above. In our view they have no basis.
66 Second, it may be noted that Ms Luck was in default of r 5.22(a) and (c) as she did not file an affidavit in support of her adjournment application although an affidavit was appropriate (see r 17.01(1)(b)), and again when she failed to appear on 1 November 2013 to prosecute her application. She appears to have taken the erroneous view that she was entitled to an adjournment and was not required to present evidence or argument as to why an adjournment should be granted. We do not consider that Ms Luck can make an adjournment application unsupported by an affidavit, not appear to prosecute the application, and then properly assert a lack of natural justice.
67 Third, the learned primary judge's reasons indicate that he properly considered the adjournment application. His Honour apparently accepted that Ms Luck failed to appear at the hearing on 1 November 2013 due to the medical conditions set out in a short medical report attached to her application. Notwithstanding her failure to appear to prosecute the adjournment application the primary judge gave detailed consideration to the issues: Luck v USQ (No 2) at [4]-[17].
68 His Honour noted that the objection to competency was filed in May 2009 and had not yet been determined more than four years later. His Honour also considered Ms Luck's medical conditions noting that they appeared to have changed little over the past two years.
69 Ultimately, his Honour had little confidence that Ms Luck, as the moving party, would be willing and able to deal with the objection to competency at any time in the foreseeable future. His Honour considered the interests of justice including what was required by ss 37M and 37N of the Federal Court of Australia Act 1976 (Cth), and said (at [17]):
This proceeding has lingered on the list for far too long. The interests of justice require that it be determined. If the objection to competency has substance, as I consider it does, the University's objection should be ruled on without further delay.
70 The Courts have long recognised that in having regard to the interests of justice the rights of both parties to the litigation must be considered: Watson v Watson (1968) 12 FLR 164 at 166 per Asprey JA; see also Sali v SPC Ltd and Another (1993) 116 ALR 625 at 636 per Toohey and Gaudron JJ to which Dawson, Gaudron and McHugh JJ made reference in the State of Queensland v J L Holdings Pty Limited (1997) 189 CLR 146 at 154. It may be accepted that the illness of a party will usually be sufficient to entitle him or her to an adjournment unless prejudice can be shown: see Neil at 151 per Brennan, Deane, Toohey, Gaudron and McHugh JJ. But, as the learned primary judge noted, the proceeding had been on foot for four years and was the subject of an objection to competency by the University which, on its face, was well founded. Ms Luck's health problems were long-standing and there was no evidence as to when those difficulties would be sufficiently alleviated in order to allow the matter to proceed. In these circumstances we can see no error in his Honour's decision to proceed and determine the objection to competency.
71 The precise requirements of natural justice are flexible and are determined by reference to the circumstances of a particular case rather than to a fixed body of rules: Mobil Oil Australia Pty Ltd v Federal Commissioner of Taxation (1963) 113 CLR 475 at 504 per Kitto J. As Tucker LJ said in Russell v Duke of Norfolk [1949] 1 All ER 109 at 118:
The requirements of natural justice must depend on the circumstances of the case, the nature of the inquiry, the rules under which the tribunal is acting, the subject matter that is being dealt with, and so forth.
See also R v Commonwealth Conciliation and Arbitration Commission; Ex parte Angliss Group (1969) 122 CLR 546 at 552 per Barwick CJ, McTiernan, Kitto, Taylor, Menzies, Windeyer and Owen JJ.
72 The requirements of natural justice did not preclude his Honour from determining the adjournment application and the objection to competency in Ms Luck's absence. The determination of the objection to competency was a straightforward legal issue which had been outstanding for more than four years. In our view it was appropriate for his Honour to deal with it on the date to which Ms Luck consented.
73 Fifth, we note that his Honour's decision to refuse the adjournment application and to hear the objection to competency was an exercise of discretion. We cannot see any basis for a conclusion that the primary judge acted upon a wrong principle, allowed extraneous or irrelevant matters to guide or affect him, mistook the facts, or did not take into account some material consideration: House v The King (1936) 55 CLR 499 at 505 per Dixon, Evatt and McTiernan JJ. There is no proper basis to interfere with his Honour's decision.
74 We can see no breach of natural justice.