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Federal Court of Australia - Full Court |
Last Updated: 19 June 2009
FEDERAL COURT OF AUSTRALIA
Luck v University of Southern Queensland [2009] FCAFC 73
ADMINISTRATIVE LAW – extent of
jurisdiction of the Administrative Appeals Tribunal under s 55(1)(a) of the
Freedom of Information Act 1982 (Cth) to review decisions or deemed
decisions upon requests for access to documents – requests made to a
University incorporated
under a State Act – where respondent is not an
agency within the meaning of s 4(1) of the Freedom of Information Act
1982 (Cth)
PRACTICE AND PROCEDURE – allegation of
apprehended bias against primary judge – whether a fair minded lay
observer might reasonably apprehend
that the judge might not bring an impartial
mind to the resolution of the proceedings
PRACTICE AND PROCEDURE
– whether a judgment for one party against another under s 31A of
the Federal Court of Australia Act 1976 (Cth) is interlocutory within the
meaning of s 24(1A) – whether, absent an order giving leave to
appeal, a purported appeal should be dismissed as incompetent – whether
jurisdiction
cannot be conferred upon the Court by
consent
Held: Leave to appeal
refused.
Acts Interpretation Act 1901 (Cth)
s 38
Administrative Appeals Tribunal Act 1975 (Cth) ss 25,
44
Federal Court of Australia Act 1976 (Cth) ss 24, 31A
Federal
Court Rules O 80
Freedom of Information Act 1982 (Cth) ss 4, 11,
15, 55, 56
Higher Education Funding Act 1988 (Cth) ss 78,
112
Higher Education Support Act 2003 (Cth) ss 13-1, 16-1, 16-5,
16-10, 16-15, 19-1, 19-50, 238-1
Adam P
Brown Male Fashions Pty Ltd v Philip Morris Inc [1981] HCA 39; (1981) 148 CLR 170
cited
Agar v Hyde (2000) 201 CLR 552 cited
Allesch v Maunz
[2000] HCA 40; (2000) 203 CLR 172 cited
Berowra Holdings Pty Limited v Gordon
[2006] HCA 32; (2006) 225 CLR 364 discussed
Bienstein v Bienstein [2003] HCA 7; (2003) 195 ALR 225
cited
Bloch v Bloch [1981] HCA 56; (1981) 180 CLR 390 cited
Bonnell v Deputy
Commissioner of Taxation (No 5) [2008] FCA 991 cited
Cockrell v
Minister for Immigration and Citizenship [2009] FCA 444 cited
Concrete
Pty Limited v Parramatta Design and Developments Pty Limited [2006] HCA 55; (2006) 229 CLR
577 cited
Decor Corporation Pty Ltd v Dart Industries Inc [1991] FCA 655; (1991) 33
FCR 397 applied
Dent v Australian Electoral Commissioner [2008] FCAFC 111; (2008) 249
ALR 523 discussed
Ebner v Official Trustee in Bankruptcy [2000] HCA 63; (2000) 205
CLR 337 applied
General Steel Industries Inc v Commissioner for Railways
(NSW) [1964] HCA 69; (1964) 112 CLR 125 cited
Jefferson Ford Pty Limited v Ford Motor
Company of Australia Limited [2008] FCAFC 60; (2008) 167 FCR 372 discussed
Keynes v
Rural Directions Pty Ltd (No 2) [2009] FCA 567 cited
Luck v Chief
Executive Officer, Centrelink [2009] FCAFC 54 followed
Pham v
Secretary, Department of Employment and Workplace Relations [2007] FCAFC 179
cited
Re Cram; Ex parte NSW Colliery Proprietors’ Association
Limited [1987] HCA 28; (1987) 163 CLR 117 cited
Re Luck [2003] HCA 70; (2003) 203 ALR 1
discussed
Sali v SPC Ltd [1993] HCA 47; (1993) 67 ALJR 841 cited
Simundic v
University of Newcastle [2007] FCAFC 144 discussed
State of Queensland
v J L Holdings Pty Limited [1997] HCA 1; (1997) 189 CLR 146 cited
Stead v State
Government Insurance Office [1986] HCA 54; (1986) 161 CLR 141 cited
The Owners of The
Ship "Shin Kobe Maru" v Empire Shipping Co Inc [1994] HCA 54; (1994) 181 CLR 404
cited
Walton v Gardiner (1993) 177 CLR 378 cited
Watson v Watson
(1968) 70 SR (NSW) 203 cited
White Industries Limited v Federal
Commissioner of Taxation [2007] FCA 511; (2007) 160 FCR 298 discussed
Wills v
Australian Broadcasting Corporation (2009) 173 FCR 284 discussed
Zoia
v Commonwealth Ombudsman Department [2007] FCAFC 143; (2007) 240 ALR 624 discussed
GAYE LUCK v UNIVERSITY OF SOUTHERN
QUEENSLAND
VID 899 of 2008
NORTH, GRAHAM AND RARES
JJ
19 JUNE 2009
MELBOURNE
THE COURT ORDERS THAT:
1. The application for leave to appeal in the ‘Notice of Appeal Amended’ filed on 11 March 2009 be dismissed.
2. The purported appeal be dismissed as incompetent.
3. The applicant pay the respondent’s
costs.
Note: Settlement and entry of orders is dealt with in Order 36 of the Federal
Court Rules.
The text of entered orders can be located using eSearch on the
Court’s website.
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ON APPEAL FROM A SINGLE JUDGE OF THE FEDERAL COURT OF
AUSTRALIA
|
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BETWEEN:
|
GAYE LUCK
Appellant |
|
AND:
|
UNIVERSITY OF SOUTHERN QUEENSLAND
Respondent |
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JUDGES:
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NORTH, GRAHAM AND RARES JJ
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DATE:
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19 JUNE 2009
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PLACE:
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MELBOURNE
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REASONS FOR JUDGMENT
NORTH J
1 Ms Luck, who is the moving party before the Court, made a request for access to documents from the respondent, the University of Southern Queensland (the University), under the Freedom of Information Act 1982 (Cth) (the Act). When the University did not respond to her request she applied to the Administrative Appeals Tribunal to review the deemed refusal of her request. The Tribunal determined that it did not have jurisdiction to entertain the review. Ms Luck then appealed to a single judge of this Court.
2 The University then filed a motion, notice of which was given on 28 July 2008, for orders under s 31A(2) of the Federal Court of Australia Act 1976 (Cth) dismissing the proceeding on the ground that Ms Luck had no reasonable prospect of successfully prosecuting the proceeding. At the hearing of the motion she applied to the primary judge that he disqualify himself from hearing the motion on the ground of apprehended bias. The primary judge rejected this application. He then determined the motion in favour of the University. He held that the Tribunal correctly concluded that it did not have jurisdiction to hear the application for review. The primary judge ordered that the appeal be dismissed with costs.
3 Ms Luck then filed a notice of appeal against the orders made by the primary judge. In its amended form the notice of appeal also seeks leave to appeal from the orders made by the primary judge.
4 I have read the draft reasons for judgment of Rares J and gratefully adopt the detailed description of the facts and the statutory scheme set out at [60]-[87] both inclusive thereof.
5 In my view there are two critical issues which arise for determination by the Court. The first issue is whether the primary judge erred in refusing to disqualify himself. For the reasons expressed by Rares J at [80]-[83] both inclusive and [95] the primary judge made no appellable error in refusing to disqualify himself from hearing the motion.
6 The second issue is whether the primary judge erred in holding that Ms Luck had no reasonable prospect of successfully prosecuting the proceeding for the reason that the Tribunal had no jurisdiction to hear her application for review.
7 Where a person requests access to a document under the Act and the request is refused, the Tribunal has power to review that decision (s 55(1)(a) of the Act). The power extends to a deemed refusal (s 56(1) of the Act). A request in question must be to obtain access to a document of an agency and must be made to the agency (s 15 of the Act). "Agency" is defined relevantly to mean a prescribed authority and "prescribed authority" is also defined (s 4(1) of the Act). I agree with Rares J that the respondent is not a prescribed authority within subss (a) or (c) of the definition of prescribed authority for the reasons which he gives at [113]-[126] both inclusive. It follows that the Tribunal had no jurisdiction under s 55 of the Act to entertain an application for review of the deemed decision of the University to refuse Ms Luck access to documents.
8 Thus, the challenges to the orders of the primary judge are bound to fail. In those circumstances if leave to appeal is required, it should be refused. If leave is not required, the appeal should be dismissed.
9 I am not inclined to venture into an examination of the question whether
leave is required in the circumstances of this case.
The University consented
to leave being granted, if required. Further, Ms Luck was not legally
represented and the question
was not the subject of any submission or argument
by either of the parties. Ultimately, resolution of that issue is
unnecessary. If leave is required, it would not be
granted. If leave is not required the appeal would be dismissed. On either
view Ms Luck
cannot succeed. Similar to the course taken by the Full Court in
Zoia v Commonwealth Ombudsman Department (2007) 240 ALR 624; [2007] FCAFC
143, in these circumstances where the notice of appeal filed is plainly devoid
of merit it is preferable to deal with the matter on the
merits and dismiss the
appeal with costs. An examination of the question whether leave is required is
best left to a case in which
the outcome depends on a resolution of the matter
and in which full argument is heard by the Court.
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I certify that the preceding nine (9) numbered paragraphs are a true copy
of the Reasons for Judgment herein of the Honourable Justice
North.
|
|
ON APPEAL FROM A SINGLE JUDGE OF THE FEDERAL COURT OF
AUSTRALIA
|
|
BETWEEN:
|
GAYE LUCK
Appellant |
|
AND:
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UNIVERSITY OF SOUTHERN QUEENSLAND
Respondent |
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JUDGES:
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NORTH, GRAHAM AND RARES JJ
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DATE:
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19 JUNE 2009
|
|
PLACE:
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MELBOURNE
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REASONS FOR JUDGMENT
GRAHAM J
INTRODUCTION
10 Gaye Alexandra Luck who is named as the ‘Appellant’ in a Notice of Appeal filed 28 October 2008 in proceeding VID 899 of 2008 is a litigant in person, but not one who is without experience in litigation. She was born on 25 February 1952.
Ms Luck was the person referred to as Gaye Alexandra Mary Luck in Re Luck [2003] HCA 70; (2003) 203 ALR 1, a judgment of McHugh ACJ, Gummow and Heydon JJ in relation to an appeal from Gleeson CJ, exercising the original jurisdiction of the High Court to control its own processes. Ms Luck had sought to issue a Writ of Summons in the High Court naming 32 defendants including judges of the High Court, the Supreme Court of Victoria and the Federal Court of Australia, the Attorney-General of the Commonwealth, medical officers and an unnamed telephonist employed by the Federal Police.
McHugh ACJ, Gummow and Heydon JJ summarised the position in that case at [2] of their reasons for judgment as follows:
‘[2] ... Chief Justice Gleeson held that the statement of claim disclosed no cause of action against any defendant, a holding with which we entirely agree. Not only does the writ and statement of claim fail to disclose any recognisable cause of action against any individual defendant, but they seek to join as defendants in one action many people who have nothing in common except that the applicant claims that each of them has tortured her.’The judgment of the High Court is not without significance for the purposes of the present ‘appeal’.
LEAVE TO APPEAL FROM INTERLOCUTORY JUDGMENTS
11 The High Court pointed out that it was not necessary to discuss the merits of Ms Luck’s claims in any detail because she was seeking to appeal against an interlocutory order, a class of order that required the grant of leave to appeal, and none had been granted. The High Court ordered that Ms Luck’s appeal be struck out as incompetent. At [12]-[13], McHugh ACJ, Gummow and Heydon JJ said:
‘[12] Even if Ms Luck had sought leave to appeal against the decision of Gleeson CJ, we would have refused her application. An application for leave should establish both that the decision, the subject of the proposed appeal, is sufficiently doubtful to warrant a grant of leave and that it is in the interests of the administration of justice for this court to hear it. [13] The writ of summons that Ms Luck attempted to file does not disclose a cause of action against any of the 32 defendants listed. A grant of leave would be futile because an appeal would have no prospect of success.’12 In her ‘Notice of Appeal Amended’ filed in the appeal presently before the Court, on 11 March 2009, numerous orders were sought by Ms Luck which were set out on pages 21-24 inclusive of the appeal book. These included:
‘3. ORDERS SOUGHT:-a. That leave to appeal be granted, if necessary;
b. that the appeal be upheld;
c. that the orders of the primary Judge appealed from be revoked in lieu thereof, the following further orders be made:...’
13 Ms Luck’s Notice of Appeal filed 28 October 2008 and her ‘Notice of Appeal Amended’ filed 11 March 2009 acknowledged that the judgments of the primary judge may have been interlocutory, thus requiring her to obtain leave to appeal from those judgments for her intended appeal to be competent.
14 In my opinion, the 22 October 2008 judgment of the primary judge dismissing her appeal (Luck v University of Southern Queensland [2008] FCA 1582), to which further reference will be made shortly, was interlocutory. Accordingly, an appeal could not be brought from that judgment ‘unless the Court or a Judge gives leave to appeal’ under s 24(1A) of the Federal Court of Australia Act 1976 (Cth) (‘the Federal Court Act’).
15 The usual test for determining whether an order is final or interlocutory is whether the order, as made, finally determines the rights of the parties in a principal cause pending between them. That question is answered by determining whether the legal effect of the judgment is final or not. If the legal effect of the judgment is final, it is a final order; otherwise it is an interlocutory order (see per McHugh ACJ, Gummow and Heydon JJ in Re Luck at [4]).
16 An order is an interlocutory order when it stays or dismisses an action or refuses leave to commence or proceed with an action because the action is frivolous, vexatious, an abuse of the process of the court or does not disclose a reasonable cause of action (per McHugh ACJ, Gummow and Heydon JJ in Re Luck at [9]).
17 In my opinion, an order dismissing an action for want of jurisdiction is no different from an order dismissing an action because it is frivolous, vexatious, an abuse of the process of the court or does not disclose a reasonable cause of action. Similarly, in a case where summary judgment is given for a respondent in the absence of the full and complete factual matrix and full argument thereon, the Court being satisfied that the moving party has no reasonable prospect of successfully prosecuting the proceeding (see per Spender J, Gilmour J concurring, in Zoia v Commonwealth Ombudsman Department [2007] FCAFC 143; (2007) 240 ALR 624 at [14] and [19] and per French J as his Honour then was at [26].) As the Explanatory Memorandum circulated by authority of the Attorney-General in relation to the Migration Litigation Reform Bill 2005 (Cth) and the Second Reading Speeches thereon in the House of Representatives and the Senate reveal, the purpose of s 31A of the Federal Court Act was to strengthen the powers of the Court to give summary judgment in dealing with ‘unmeritorious’ proceedings and ‘unsustainable’ cases.
MS LUCK’S FREEDOM OF INFORMATION REQUEST
18 The genesis of the present proceeding lies in a letter dated 17 August 2006 sent by Ms Luck to the ‘Freedom of Information Decision Maker, University of Southern Queensland, Toowoomba Qld 4350’. Under the heading ‘RE: ACCESS SOUGHT UNDER FREEDOM OF INFORMATION ACT 1982 (FROM A FEDERAL EDUCATION PROVIDER AND AGENT OF FEDERAL GOVERNMENT)’, Ms Luck’s letter commenced:
‘1. In accordance with Section 15 and 20 of the Freedom of Information Act 1982 (Cth) (the Cth Act)/ Section 25 and 30 of the Freedom of Information Act 1992 (Qld) (the Act) I make a formal request for access by way of provision of an opportunity to inspect, and a printed copy of, all documents ... which relate to the process of enrolment, assessment, studentship of me, Gaye Alexandra Luck ... and my consultations with USQ officers at University of Southern Queensland between the dates of 15th June 2006 and the date at which you provide access in 2006, including all phone call commentary, recordings and records, incoming and outgoing correspondence, internal correspondence, referrals, staff emails, notes, memos, reports, books, papers, records, record of enrolments and assessments of 2005 Courses ...’
19 By an APPLICATION FOR REVIEW OF DECISION filed 13 March 2008 in the Administrative Appeals Tribunal, Ms Luck instituted matter No. 2008/1091 in the Tribunal.
20 The use of highlighting on the copy of the APPLICATION FOR REVIEW OF DECISION which has been reproduced in the Appeal Book at pages 83-85 makes it difficult to discern all of the words included against the heading ‘REASONS FOR APPLICATION’ in the APPLICATION FOR REVIEW OF DECISION. However, it is apparent that the reasons included:
‘I wish this matter to be joined with matter 2008/0861 - Gaye Luck and Centrelink FOI, as this documentation for which I have been refused access is the primary evidentiary documentation that Centrelink based its decision to cancel my Pensioner Education Supplement and Mobility Allowance and that is AAT matter 2007/3968.’RELEVANT LEGISLATION
21 Section 15(1) of the Freedom of Information Act 1982 (Cth) (‘the FOI Act’) relevantly provided:
‘15(1) ... a person who wishes to obtain access to a document of an agency or an official document of a Minister may request access to the document.’
22 The significant issue in Ms Luck’s case is whether her request of 17 August 2006 was a request to an ‘agency’ within the meaning of the FOI Act.
23 The definition section in the FOI Act is section 4. It included the following:
‘4(1) In this Act, unless the contrary intention appears:...agency means a Department, a prescribed authority or an eligible case manager.
...
enactment means, ...
(a) an Act;(b) an Ordinance of the Australian Capital Territory; or
(c) an instrument (including rules, regulations or by-laws) made under an Act or under such an Ordinance and includes an enactment as amended by another enactment.
...
officer, in relation to an agency, includes a member of the agency or a member of the staff of the agency.
...
prescribed authority means:
(a) a body corporate, or an unincorporated body, established for a public purpose by, or in accordance with the provisions of, an enactment or an Order-in-Council, other than ...
...
... (3) A person shall not be taken to be a prescribed authority: ...(c) subject to subsection (3), the person holding, or performing the duties of, an office established by an enactment or an Order-in-Council; ...
(b) by virtue of his or her holding, or performing the duties of:
(ii) an office the duties of which he or she performs as duties of his or her employment as an officer of a Department or as an officer of or under a prescribed authority;...
...’
24 An ‘Act’ within the meaning of s 4(1) of the FOI Act means an Act passed by the Parliament of the Commonwealth (see s 38 of the Acts Interpretation Act 1901 (Cth)).
25 The University of Southern Queensland was incorporated under the University of Southern Queensland Act 1988 (Qld) (a State Act) and not by, or in accordance with the provisions of any enactment of the Parliament of the Commonwealth of Australia.
26 The University of Southern Queensland accepts that the Secretary of the Department of Education, Employment and Workplace Relations holds an office established by the Public Service Act 1999 (Cth), an enactment within the meaning of paragraph (c) of the definition of ‘prescribed authority’ in s 4 of the FOI Act.
27 By s 238-1(2) of the Higher Education Support Act 2003 (Cth) the Secretary of the Department was empowered to delegate the Secretary’s powers under Division 209 of that Act, to reconsider certain decisions made by a higher education provider (within the meaning of s 16-1 of the Higher Education Support Act), to a review officer (within the meaning of s 19-50(2) of the Higher Education Support Act) of the higher education provider. (A similar power of delegation was contained in s 112(3)-(5) of the Higher Education Funding Act 1988 (Cth).)
28 Under ss 16-1, 16-5, 16-10 and 16-15(1) the University of Southern Queensland was a higher education provider within the meaning of the Higher Education Support Act.
29 Section 19-50(2) made provision for the appointment of a review officer of a higher education provider as follows:
(a) the chief executive officer of the provider; or (b) a delegate of the chief executive officer of the provider;‘19-50(2) A review officer of a higher education provider is a person, or a person included in a class of persons, whom:
has appointed to be a review officer of the provider for the purposes of reviewing decisions made by the provider relating to assistance under Chapter 3.’
30 It is apparent from the provisions of the Higher Education Support Act to which reference has been made that the University of Southern Queensland as a higher education provider within the meaning of that Act could appoint natural persons to be review officers within the meaning of s 19-50(2). However, without proceeding to address whether there has been any relevant delegation by the Secretary of the Department to a review officer of the University of Southern Queensland, it is apparent that the University of Southern Queensland was not itself a prescribed authority within the meaning of the FOI Act nor could it serve as a delegate of the Secretary as a prescribed authority.
31 It follows that Ms Luck’s request of 17 August 2006 to obtain access to documents of the University of Southern Queensland could not have been a request within the meaning of s 15(1) of the FOI Act.
32 Had Ms Luck’s request been made to an agency in accordance with s 15(1) of the FOI Act, it would have been open to her to contend that there had been a deemed decision refusing to grant her access to documents in accordance with s 56(1) of the FOI Act on the assumption that a notice of a decision on her request had not been received by her within the prescribed period under that section. And, s 55(1)(a) of the FOI Act made provision for applications for review to be made to the Administrative Appeals Tribunal in respect of decisions refusing to grant access to documents in accordance with requests under s 15.
33 By her Application for Review of Decision filed 13 March 2008 in the Administrative Appeals Tribunal in matter No. 2008/1091 Ms Luck applied, although out of time, for review of the decision deemed pursuant to s 56(1) of the FOI Act to have been made, in her submission, to refuse her access to the documents sought.
THE AAT HEARING
34 The hearing of Ms Luck’s application for review of decision before the Administrative Appeals Tribunal was conducted by telephone conference on 9 May 2008. At pages 45 - 46 of the transcript the following relevantly appears:
...‘MS LUCK: ... I submit ... that the USQ is an agency as defined in section 4 of the FOI Act, Commonwealth, a prescribed authority as defined under the ... subsection (c) [referring to (c) of the definition of ‘prescribed authority’] ... and that includes the persons involved in the data production and the submission of documents ... - electronic or otherwise between the universities and the Department of Education ...
And each of these acts [the Higher Education Funding Act, the Higher Education Support Act, the taxation law and the Data Matching Act, as she referred to them] establishes the office of a Commonwealth officer, an officer that can be considered a Commonwealth officer, and is considered a Commonwealth officer while performing duties for that function and for that particular purpose
And so ... the agency – USQ is an agency. And on that basis I say again that this tribunal has the power to hear this matter ...’
35 On 29 May 2008 Senior Member G. D. Friedman decided Ms Luck’s Application for Review of Decision in matter No. 2008/1091. In his reasons for decision the Senior Member observed that the object of the FOI Act as specified in s 3(1) was ‘to extend as far as possible the right of the Australian community to access to information in the possession of the Government of the Commonwealth ...’ He proceeded to determine that the Administrative Appeals Tribunal did not have jurisdiction to review the (deemed) decision of the University of Southern Queensland whereupon he dismissed the application.
MS LUCK’S APPEAL TO THE FEDERAL COURT
36 By a Notice of Appeal filed 26 June 2008 in proceeding VID 476 of 2008 Ms Luck appealed to this Court from the decision of the Senior Member. That Notice of Appeal was superseded by a ‘Notice of Appeal Amended’ which she filed on 28 July 2008 (referred to in the index to the Appeal Book as having been filed on 26 June 2008).
37 Under s 44(1) of the Administrative Appeals Act 1975 (Cth) (‘the AAT Act) it was open to a party to a proceeding before the Administrative Appeals Tribunal to ‘appeal to the Federal Court of Australia, on a question of law, from any decision of the Tribunal in that proceeding.’
38 In her ‘Notice of Appeal Amended’ Ms Luck identified 38 matters said to constitute questions of law. These included:
‘c. Whether the applicant [Ms Luck] made a freedom of information request for access to documents to the respondent [the University of Southern Queensland] pursuant to s15 Freedom of Information Act 1982?...
u. Whether the Tribunal had jurisdiction to review and determine the application lodged with the Tribunal on 13 March 2008 for review of the respondent’s decision deemed made on 16 September 2006, immediately upon the filing, numbering and processing of the application by the Registry and properly constituting the Tribunal with Senior Member G. D. Friedman, in accordance with the provisions of the Administrative Appeals Tribunal Act 1975?
...’
39 By a Notice of Motion filed 28 July 2008 the University of Southern Queensland sought an order that proceeding VID 476 of 2008 be dismissed pursuant to s 31A(2) of the Federal Court Act on the basis that Ms Luck had no reasonable prospect of successfully prosecuting it.
40 Before the said Notice of Motion was heard and determined Ms Luck filed a Notice of Motion on 20 October 2008 in which she sought an order for the ‘withdrawal of Justice Tracey from this matter on the ground of actual bias, prejudgment and lack of procedural fairness demonstrated against the applicant, in respect of this matter and other matters VID464/2008, VID488/2008’ and other relief of a procedural nature.
41 A similar application, that the primary judge recuse himself, had been made by Ms Luck in proceeding VID 476 of 2008 on 5 September 2008. That application was rejected, the primary judge’s reasons being recorded in an annexure to the primary judge’s reasons for judgment of 22 October 2008 on Ms Luck’s Notice of Motion filed 20 October 2008 (see Luck v University of Southern Queensland (No. 2) [2008] FCA 1594). On 22 October 2008 the primary judge ordered that Ms Luck’s application filed 20 October 2008, that he disqualify himself from hearing and determining the proceeding, also be refused (see Luck v University of Southern Queensland (No. 2) [2008] FCA 1594).
42 The substantive matter before the primary judge on 22 October 2008 was the respondent’s motion for summary judgment under s 31A of the Federal Court Act. Summary judgment had been sought on the ground that the applicant had no reasonable prospect of successfully prosecuting her appeal and that any appeal would be hopeless and bound to fail.
43 The respondent’s Notice of Motion was made returnable on 1 August 2008. On that day Ms Luck failed to appear whereupon the matter was stood over to 5 September 2008, when she did appear. After the primary judge declined to disqualify himself on 5 September 2008, the respondent’s Notice of Motion was adjourned for hearing on 22 October 2008.
44 The primary judge made a direction requiring Ms Luck to file and serve any written submissions in opposition to the respondent’s Notice of Motion on or before 3 October 2008. She failed to file any such submissions but, in her Notice of Motion filed 20 October 2008, sought further time in which to file written submissions and a further adjournment of the hearing of the respondent’s Notice of Motion. Those prayers for relief were opposed by the respondent.
45 After dealing with Ms Luck’s application to the primary judge that he should recuse himself on 22 October 2008, his Honour proceeded to address Ms Luck’s application for further time in which to file written submissions in respect of the respondent’s notice of motion and a further adjournment of the hearing of that motion (see transcript of 22 October 2008 at p14 et seq). Relevantly, for present purposes, the transcript recorded at pages 17-22:
COUNSEL FOR THE RESPONDENT: ‘... The alternative relief that she [Ms Luck] seeks is that there be an adjournment of the hearing of the notice of motion together with a revision of the timetable for the filing of service (sic) of material. I only propose to deal with the alternative now because that is what is contained in the [Ms Luck’s] notice of motion. Our position is that the appellant [Ms Luck] is fully aware of the case that the respondent seeks to put and that she has been given a reasonable opportunity to answer the submissions that have put (sic) by the respondent. ...’HIS HONOUR:
‘... It occurs to me that there is a degree of overlap between the issues raised on Ms Luck’s notice of motion and your [the respondent’s] notice of motion. If your [the respondent’s] argument in support of your notice of motion is right and the consequence is that the purported appeal is bound to fail, then that would be a factor that would weigh very heavily against the granting of Ms Luck’s adjournment application. ...COUNSEL FOR THE RESPONDENT:
‘... I was proposing to make some very brief oral submissions in support of our position’HIS HONOUR:
‘Well, it is probably convenient that you do now and then Ms Luck can reply to the entirety of your submissions.’MS LUCK:
‘Your Honour, I can’t. I’m sorry, I can’t. I have no submissions to make and I would rather – I require an adjournment. ... I don’t want to make any submissions today. I have none to make. ... I just don’t want to be here. ... ... I’m not going to be forced to give submissions ... I can’t do what I’m entitled to do and I haven’t had an equal opportunity. ... I haven’t had advice. I’m not in a position to put forward these arguments. ...’ ... COUNSEL FOR THE RESPONDENT: ‘... As your Honour is well aware, the respondent seeks summary judgment under section 31A of the Federal Court of Australia Act, on the basis that the appellant has no reasonable prospect of successfully prosecuting the appeal. ... the respondent ... was established under section 4 of the University of Southern Queensland Act 1998 ... ... ... Of course ... the University of Southern Queensland Act is a Queensland Act and we would submit that the respondent ... is not an agency for the purposes of the Commonwealth FOI Act ... ... ... on 29 May 2008, the Commonwealth tribunal decided that it didn’t have jurisdiction to entertain the application for review. It therefore dismissed the application. ... As your Honour is well aware the AAT is a creature of statute. Its jurisdiction is limited. It may only review a decision if the Commonwealth enactment confers jurisdiction upon it to do so. ... ... ... we say ... the respondent has not made a decision that the AAT was authorised to review ... the claim that a deemed decision has been made under that provision [s 56 of the FOI Act] is without substance. ... section 56 will only deem a decision to be made if certain preconditions are met. ... one such precondition is that a request has been made to an agency in accordance with section 15 of the Commonwealth FOI Act. ... this precondition will only be satisfied if the recipient of the request is a Commonwealth agency, as that word is defined in section 4 of the Commonwealth Act. ... the respondent, a Queensland university, is not an agency of that kind. It follows ... that the respondent has not made a decision, whether it be an actual decision or a deemed decision, that the AAT was authorised to review. ... The tribunal’s decision to dismiss that application was, therefore, plainly correct. Moreover this appeal is hopeless and bound to fail, or at the very least the appellant has no reasonable prospect of successfully prosecuting it. It should therefore be summarily dismissed, pursuant to section 31A(2) of the Federal Court of Australia Act. ...’MS LUCK:
‘Your Honour, I have some arguments that I can’t give you because I have nothing to back them up. I have not had time, for the reasons I’ve outlined on numerous occasions about the – my inability to cope with preparing all this. I’ve had other cases that I have to deal with which are relevant to this one and I just haven’t been able to do it. I know that this is wrong and I know that what [counsel for the respondent] says is incorrect. ... As I said – and this is the only thing I can say that will prevent this from being dismissed, and I think that this is the most important thing – is that there is no evidence produced by the respondents at this stage that proves that they are not an agency. ... I’m not making my submissions, your Honour, ... because I can’t and I’ve explained that and I don’t want this to be finished here. So that if it does go to appeal and you find in my favour in this particular instance, then you will see all the things that they need to provide that would prove that they are either not an agency or I provide to show that they are. Right now, I’m not prepared for providing evidence and I can’t, because I can’t even put my arguments in a succinct fashion because I haven’t had time to research them. That is all I can say, is that there is not enough evidence on their part to say that my case will fail. In fact, I know that it won’t fail if I’m allowed the time and the necessary processes to argue this at trial. ... So I would say, your Honour, please dismiss their notice of motion and have this matter sent to appeal so that it can be properly tried and that I can have the opportunity to put forth arguments that will substantiate my claims which I believe that I will be able to do, given the right amount of time. ...’THE CURRENT ‘APPEAL’
46 Ms Luck’s ‘Notice of Appeal Amended’ is confined to ‘appeals’ from the judgments of the primary judge given on 22 October 2008 being Luck v University of Southern Queensland (No. 2) [2008] FCA 1594 and Luck v University of Southern Queensland [2008] FCA 1582. From a sequential point of view the first judgment of 22 October 2008 was Luck v University of Southern Queensland (No. 2).
In his reasons for judgment for his decision that he should not disqualify himself from hearing and determining the proceeding the primary judge said:
‘[2] A similar application was made to me on 5 September 2008, in the present proceeding and the application was then rejected. When it was renewed this morning I told the applicant that I would not revisit that ruling, but that I would hear her on any events which had occurred since 5 September 2008, on which she wished to rely. Her submissions, this morning, were founded on the reasons I had given for refusing her earlier application. She referred to no event that has occurred since 5 September 2008 in support of her present application. I do not consider that there can be any proper basis for me to disqualify myself by reason of what I said in explaining my reasons for refusing her earlier disqualification application. ... [4] I wish to add only this. The applicant suggests that what I said in my earlier reasons relating to the conduct of counsel assigned to assist her under O 80 of the Federal Court Rules, suggested that I had had extra curial contact with counsel over the matter. This did not occur. ...’47 The annexure to the primary judge’s reasons for judgment in Luck v University of Southern Queensland (No. 2) included the following:
‘[7] Ms Luck seeks to have me disqualify myself from dealing with the matter for four reasons. The first is that I did not arrange at the outset of the proceeding for her to receive pro bono advice covering the full range of matters which she says arise in the proceeding. The second is that I declined to direct that a further pro bono referral be made after two counsel, to whom such referrals had already been made pursuant to certificates which I directed should issue, sought to and were granted leave to withdraw from further obligations to Ms Luck under O 80. The third reason was that I did not consent to an adjournment of another matter. [8] And the fourth was that, in another matter I, having agreed to a consent adjournment, directed that that adjournment be to a date on which another matter in which Ms Luck was involved was listed for directions, and that the fact that two matters were listed together for directions was not appropriate, having regard to her medical condition, and that the time at which those matters were fixed for directions was inconvenient to her, having regard to her health.’48 His Honour proceeded to state in his reasons referrable to his decision not to disqualify himself, of 5 September 2008:
‘[9] The test to be applied when an application of this kind is made is whether a reasonable observer of the proceeding would harbour a reasonable apprehension that the trier of fact would not bring an unprejudiced mind to bear on the application when it was to be heard by the court. In my view, there is no reasonable basis for an apprehension of that kind arising in the present matter.’49 The correct test to be applied when confronted by Ms Luck’s applications that he should disqualify himself, no matter being advanced which would warrant a finding of actual bias, was whether a fair-minded lay observer might reasonably apprehend that the judge might not bring an impartial mind to the resolution of the question the judge was required to decide. This principle gives effect to the requirement that justice should both be done, and be seen to be done (see Ebner v Official Trustee in Bankruptcy [2000] HCA 63; (2000) 205 CLR 337 (‘Ebner’) at [6]).
50 If the mere making of an insubstantial objection were sufficient to lead a judge to decline to hear or decide a case, the system would soon reach a stage where, for practical purposes, individual parties could influence the composition of the bench. That would be intolerable (see per Gleeson CJ, McHugh, Gummow and Hayne JJ in Ebner at [20]).
51 In my opinion, the primary judge did not fall into error by declining to disqualify himself from hearing and determining Ms Luck’s appeal from the decision of the Senior Member in the Administrative Appeals Tribunal. Nothing was raised by Ms Luck that would warrant a finding that a fair-minded lay observer might reasonably apprehend that the primary judge might not bring an impartial mind to the resolution of Ms Luck’s appeal. In addition I would respectfully endorse the decision of the Full Court on the matters to which it recently drew attention in relation to the primary judge’s independence in Luck v Chief Executive Officer, Centrelink [2009] FCAFC 54 especially at [81]-[84].
52 Furthermore, the primary judge did not, in my opinion, fall into error by declining to grant Ms Luck an adjournment of the hearing of the respondent’s motion for summary judgment (see Luck v University of Southern Queensland [2008] FCA 1582 at [9]- [10]).
The paramount duty of a court is to see that justice is done. In doing justice, courts have recognised that the rights of both parties to the litigation must be considered (per Asprey JA in Watson v Watson (1968) 70 SR (NSW) 203 at 206; see also Sali v SPC Ltd [1993] HCA 47; (1993) 67 ALJR 841 to which Dawson, Gaudron and McHugh JJ made reference in the State of Queensland v J L Holdings Pty Limited [1997] HCA 1; (1997) 189 CLR 146 at 154).
53 In reaching his conclusion that Ms Luck’s appeal should be dismissed, the primary judge observed in Luck v University of Southern Queensland [2008] FCA 1582 that the purported appeal brought by Ms Luck was bound to fail. At [12] his Honour said:
‘[12] ... Ms Luck’s request was made to the USQ. It is not a Minister. Nor is it an "agency". An agency is defined in s 4 of the FOI Act to mean "a Department, a prescribed authority or an eligible case manager." The USQ is none of these things. It is not a Commonwealth Department of State. It is not established under a Commonwealth enactment or for the purposes of a Commonwealth Act. It is established under a Queensland Act, the University of Southern Queensland Act 1998 (Qld). It is not "an eligible case manager". That being so there has been no refusal deemed or actual of Ms Luck’s request for access to documents held by the USQ. As a result s 55(1) of the FOI Act and s 25 of the AAT Act do not confer jurisdiction of (sic) the Tribunal to hear and determine Ms Luck’s application to it. No other source of jurisdiction has been suggested. There was, therefore, no decision, made by USQ, which the AAT had jurisdiction to review: see Shi v Migration Agents Registration Authority [2008] HCA 31; (2008) 248 ALR 390 at [132]. [13] The Tribunal, was therefore, correct in law in holding that it lacked jurisdiction and in exercising its powers under s 42A(4) of the AAT Act. ...’54 In the absence of a grant of leave to appeal under s 24(1A) of the Federal Court Act, Ms Luck’s appeal from the judgment of the primary judge in Luck v University of Southern Queensland [2008] FCA 1582 would be incompetent. In my opinion the decision of the primary judge was not attended with sufficient doubt to warrant its reconsideration by a Full Court. Given the statutory provisions to which reference has been made above it is clear that Ms Luck had no reasonable prospect of successfully prosecuting her purported appeal from the decision of the Senior Member of the Administrative Appeals Tribunal (see Decor Corporation Pty Ltd v Dart Industries Inc [1991] FCA 655; (1991) 33 FCR 397 at 398-400). A grant of leave would be futile.
55 Before concluding these reasons for judgment I wish to make some observations in relation to Order 80 of the Federal Court Rules. Order 80 deals with ‘COURT APPOINTED REFERRAL FOR LEGAL ASSISTANCE’. If I have understood Ms Luck’s submissions in relation to legal assistance that may be provided under Order 80, she takes the view that the Court has a responsibility to a person such as herself to ensure that assistance which is provided is that of a specialist in the relevant field and that of a practitioner who is acceptable to her. In my opinion Ms Luck’s perception as to the Court’s obligations is totally misconceived. Firstly, the Court is under no obligation. Order 80 finds its place in the Rules as an aid to the administration of justice. It recognises that some litigants will be unable to retain legal practitioners to represent themselves at their own expense, that some litigants will be unable to secure legal aid and that there may be a pool of legal practitioners who would be willing to provide legal assistance to litigants, who would otherwise be unrepresented, without charging any professional fees for their assistance.
My understanding of Order 80 is that it provides a mechanism whereby litigants may be provided with legal assistance by legal practitioners who, through acts of goodwill, are prepared to make their services available and, at the same time, ensures that the services of the pool of worthy volunteers is not engaged in inappropriate circumstances. The scheme for the provision of legal assistance to litigants is a voluntary one as the words ‘Pro Bono’ clearly indicate.
A legal practitioner who has agreed to participate in the scheme and whose name is included on the Pro Bono Panel is not obliged to accept a referral but if he or she does so then, in normal circumstances, the practitioner will be obliged to provide assistance to the litigant in accordance with the referral.
56 It is important to note that nothing in Order 80 requires the Court to make a referral or to consider a litigant’s case for referral (see rule 1(5)). If a Referral Certificate has been issued, the Registrar must attempt to arrange for the legal assistance mentioned in the Certificate to be provided to the litigant by a legal practitioner on the Pro Bono Panel. I would emphasise that the critical word in rule 4(4) is ‘a’ legal practitioner on the Pro Bono Panel. A litigant who is the beneficiary of the scheme has no right to require referral to a particular legal practitioner or a legal practitioner with particular skills, but the Registrar may refer a litigant to a particular legal practitioner if the practitioner has agreed to accept the referral (see rule 4(5)).
57 In my opinion Ms Luck’s perception that she has rights to have legal assistance provided to her and that such assistance should be that of a particular legal practitioner with particular skills, is totally misconceived.
58 Since preparing the foregoing reasons, I have had the advantage of reading the reasons for judgment, in draft, of Rares J with which I am in complete agreement.
59 In my opinion, Ms Luck’s application for leave to appeal in
proceedings VID 899 of 2008 should be dismissed. Her purported
appeal should
also be dismissed as incompetent. Ms Luck should be ordered to pay the
respondent’s costs.
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I certify that the preceding fifty (50) numbered paragraphs are a true copy
of the Reasons for Judgment herein of the Honourable Justice
Graham.
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Associate:
Dated: 19 June 2009
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IN THE FEDERAL COURT OF AUSTRALIA
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VICTORIA DISTRICT REGISTRY
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VID 899 of 2008
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ON APPEAL FROM A SINGLE JUDGE OF THE FEDERAL COURT OF
AUSTRALIA
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BETWEEN:
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GAYE LUCK
Applicant |
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AND:
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UNIVERSITY OF SOUTHERN QUEENSLAND
Respondent |
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JUDGES:
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NORTH, GRAHAM AND RARES JJ
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DATE:
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19 JUNE 2009
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PLACE:
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MELBOURNE
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REASONS FOR JUDGMENT
RARES J
60 Ms Gaye Luck filed a notice of appeal in the original jurisdiction of the Court purportedly under s 44 of the Administrative Appeals Tribunal Act 1975 (Cth). She sought to appeal from a decision of the Administrative Appeals Tribunal made on 29 May 2008 that dismissed her application for review of a decision not to grant her access to documents under the Freedom of Information Act 1982 (Cth). She claimed that decision was deemed to have been made by the University of Southern Queensland on 16 September 2006. The tribunal had held that it had no jurisdiction to review a "decision" of the University under the Administrative Appeals Tribunal Act because it was not a "prescribed authority" within the meaning of the Freedom of Information Act. The primary judge dismissed the appeal on the basis that there was no reasonable prospect of Ms Luck successfully prosecuting it, within the meaning of s 31A of the Federal Court of Australia Act 1976 (Cth).
61 Ms Luck filed what purported to be a notice of appeal from the orders of the primary judge which she has since amended. The amended notice of appeal sought leave to appeal, if necessary, as well as orders declaring that the primary judge was affected by apprehended or actual bias and had erred in determining that the appeal from the tribunal should be summarily dismissed.
NATURE OF MS LUCK’S CASE HEARD BY THE PRIMARY JUDGE
62 Ms Luck wrote to the University on 15 June 2006 seeking access to documents under both s 15 of the Freedom of Information Act and its Queensland analogue. She did not seek then or later to enforce any rights she might have had under the Queensland Act in any of the proceedings she had instituted before the tribunal, the primary judge or this Full Court. Her complaint was related solely to an asserted failure of the University to grant her access to the documents under the Commonwealth Act.
63 After engaging in a number of items of correspondence with the University, Ms Luck ultimately sent a letter dated 17 August 2006 addressed to the "Freedom of Information Decision Maker" at the University seeking access to the documents under s 15 of the Freedom of Information Act and its State analogue. When the University failed to deal with that request within 30 days, Ms Luck asserted that, pursuant to s 56(1) of the Freedom of Information Act, the principal officer of the University was deemed to have made a decision to refuse to grant her access to the documents. The deemed refusal created by s 56(1) reflects the duty of an agency under the Act to take all reasonable steps to enable an applicant who has made a request to be notified of a decision not later than 30 days after that request has been made (see s 15(1) and (5)(b)). In turn, s 11 of the Freedom of Information Act gives every person a legally enforceable right to obtain access in accordance with that Act to a document of an agency, other than certain excepted documents which do not arise for consideration in this matter.
STATUTORY SCHEME
64 Ms Luck’s application to the tribunal could only have been valid if the University were an agency within the meaning of definitions in s 4 of the Freedom of Information Act. First, an agency is defined as meaning a "Department, a prescribed authority or an eligible case manager". Ms Luck accepted that the University is neither a department nor an eligible case manager within that definition. That concession was correct. Next, s 4(1) of the Freedom of Information Act defines prescribed authority as follows:
"prescribed authority means:(ii) a body that, under subsection (2), is not to be taken to be a prescribed authority for the purposes of this Act; or(a) a body corporate, or an unincorporated body, established for a public purpose by, or in accordance with the provisions of, an enactment or an Order-in-Council, other than:(i) an incorporated company or association; or
(iv) the Legislative Assembly of the Northern Territory or the Executive Council of the Northern Territory; or (v) the Legislative Assembly of the Territory of Norfolk Island; or(iii) the Australian Capital Territory House of Assembly; or
(vi) a Royal Commission; or(vii) the Commission of inquiry;
(i) a body established by the Governor-General or by a Minister; or (ii) an incorporated company or association over which the Commonwealth is in a position to exercise control;(b) any other body, whether incorporated or unincorporated, declared by the regulations to be a prescribed authority for the purposes of this Act, being:
(c) subject to subsection (3), the person holding, or performing the duties of, an office established by an enactment or an Order-in-Council; or
(d) the person holding, or performing the duties of, an appointment declared by the regulations to be an appointment the holder of which is a prescribed authority for the purposes of this Act, being an appointment made by the Governor-General, or by a Minister, otherwise than under an enactment or an Order-in-Council.
(3) A person shall not be taken to be a prescribed authority: ......
(b) by virtue of his or her holding, or performing the duties of:
(ii) an office the duties of which he or she performs as duties of his or her employment as an officer of a Department or as an officer of or under a prescribed authority; (iii) an office of member of a body; or (iv) an office established by an enactment for the purposes of a prescribed authority."(i) a prescribed office;
65 An enactment is defined, relevantly, as meaning "an Act". In s 38(1) of the Acts Interpretation Act 1901 (Cth), unless the contrary intention appears, the use of the word "Act" is a reference to an Act of the Parliament of the Commonwealth.
PROCEEDINGS BEFORE THE TRIBUNAL
66 Ms Luck filed an application with the tribunal on 13 March 2008 for review of what she claimed was the deemed refusal by the University to grant access to the documents she had sought under s 56 of the Freedom of Information Act. Of its own motion, the tribunal listed the proceedings for an interlocutory hearing to consider whether it had jurisdiction to entertain her application for review. That came to be heard by a senior member of the tribunal on 9 May 2008. Ms Luck and the solicitor for the University appeared on that occasion and made submissions. Ms Luck initially asserted that the tribunal had jurisdiction simply because she had made her application to it for review. She said:
"The jurisdiction of the tribunal is established by my proper request and my proper application to the tribunal ... the jurisdiction was established when it was filed."67 However, Ms Luck then argued that the University was an agency within the meaning of par (c) of the definition of prescribed authority in s 4 of the Freedom of Information Act. Just as the tribunal was about to give its decision, Ms Luck asserted that the senior member should not do so because she feared his decision may be biased. That led to the senior member adjourning and informing the acting president of the tribunal of a submission made by Ms Luck that the tribunal should be reconstituted before determining its jurisdiction. The acting president dismissed that application.
68 Then, the senior member gave reasons on 29 May 2008 holding that the tribunal did not have jurisdiction. He said that the tribunal was established under Commonwealth legislation and could only review decisions provided for in an enactment. He held that because the University was constituted under the University of Southern Queensland Act 1998 (Qld) it was an agency or body created under Queensland law and that the tribunal did not have jurisdiction to review its decisions. The tribunal dismissed Ms Luck’s application under s 42A(4) of the Administrative Appeals Tribunal Act.
THE PROCEEDINGS BROUGHT BY MS LUCK BEFORE THE PRIMARY JUDGE
69 Ms Luck filed her appeal from the tribunal’s decision on 26 June 2008. The primary judge managed the proceedings (which were VID 476 of 2008), as docket judge, together with two other proceedings brought by Ms Luck. The circumstances and history of another of those proceedings (VID 488 of 2008) are set out in the reasons of Moore, Lindgren and Bennett JJ in Luck v Chief Executive Officer, Centrelink [2009] FCAFC 54. The latter proceedings sought review under the Administrative Decisions (Judicial Review) Act 1977 (Cth) of three decisions which Ms Luck complained had been made by Centrelink and the Secretary of the Department of Human Resources. The third set of proceedings (VID 464 of 2008) were brought by Ms Luck, also against the Chief Executive Officer, Centrelink, as an appeal from the tribunal. Ms Luck has also brought yet another set of proceedings, but that is in the docket of a different judge of the Court and is not relevant here.
70 Ms Luck had asked the primary judge to set down her three matters on different dates for directions hearings to accommodate both her difficulties as a litigant in person and as a person claiming to be disabled by various medical conditions.
71 During directions hearings on 4 July 2008, his Honour proposed that in proceedings VID 464 of 2008 the Chief Executive Officer prepare contentions of fact and law in opposition to Ms Luck’s application for an extension of time and serve them on her two weeks hence. The primary judge explained that this was because he had no idea of what the proceedings before the tribunal involved and he had seen no documents.
72 Ms Luck asked the primary judge to refer her for pro bono assistance under O 80 of the Federal Court Rules in the three proceedings. On 11 July 2008 his Honour referred particular aspects of each of those three proceedings for legal assistance under O 80. He made a reference for assistance in respect of the present proceedings for Ms Luck to receive advice in relation to her notice of appeal from the tribunal. During the period following the initial limited referral for O 80 assistance, Ms Luck sought to have the grant broadened in each matter. Subsequently, in late July 2008 his Honour broadened the nature of the legal assistance for which each referral was made so as to provide Ms Luck with advice in relation to all aspects of each proceeding.
73 At about the same time, in late July 2008, the first counsel assisting her under O 80 in these proceedings accepted instructions. Also, in late July 2008 the University filed a notice of motion seeking dismissal of the proceedings pursuant to s 31A(2) of the Federal Court of Australia Act on the basis that Ms Luck had no reasonable prospect of successfully prosecuting them, since the tribunal lacked jurisdiction. Shortly afterwards the University filed an outline of submissions in support of its motion. On about 30 or 31 July 2008, Ms Luck terminated her first counsel’s instructions in the University’s proceedings and sought an adjournment of the directions hearing in those proceedings that had been fixed for 1 August 2008.
74 Ms Luck did not appear on 1 August 2008, having said in a letter to the Court that she was unable to do so for medical reasons. The primary judge adjourned the proceedings to 5 September 2008 for hearing. On the same day, his Honour made another O 80 referral of the proceedings (VID 476 of 2008) to counsel. Soon after a second counsel indicated a willingness to assist her pro bono. Ms Luck began to correspond with him. Again, that counsel was not able to gain her confidence and, within a few days, he also withdrew from providing her with assistance.
MS LUCK’S DISQUALIFICATION APPLICATIONS TO THE PRIMARY JUDGE
75 On 5 September 2008, Ms Luck asked the primary judge to disqualify himself from hearing the proceedings on the ground that he had exhibited either actual or apprehended bias. She relied on assertions that his Honour should not have made directions and orders setting timetables in the various proceedings with which he expected her to comply when she claimed that she was a disabled person to whom the Disability Discrimination Act 1992 (Cth) applied. She also complained that his Honour had not issued a further referral certificate for pro bono assistance, despite Ms Luck’s assertions of her own blamelessness in the breakdown of her relations with both counsel who had withdrawn from assisting her. His Honour refused her application that he disqualify himself and gave oral reasons for that ruling. Later he published that ruling in writing when giving another judgment on 22 October 2008, in which he refused, again, to disqualify himself: Luck v University of Southern Queensland (No 2) [2008] FCA 1594.
76 In his ruling of 5 September 2008, his Honour noted that Ms Luck’s application for disqualification had extended to the other two proceedings which had not been listed before him on that day. He noted that Ms Luck had advanced four reasons for her allegation that he was biased namely, his Honour’s alleged failure:
(1) at the outset of the proceedings to arrange for her to receive pro bono advice covering the full range of matters which she claimed arose;(2) to direct a further pro bono referral, after the two counsel had sought and been granted leave to withdraw from further obligations to Ms Luck under O 80;
(3) to grant an adjournment of another of Ms Luck’s proceedings;
(4) to list yet another of her proceedings separately from the third after the former had been adjourned by consent. His Honour had stood the adjourned ones over to a common date with the third proceeding, a course Ms Luck regarded as inappropriate by reason of her medical condition: Luck (No 2) [2008] FCA 1594 at [7]- [8].
77 His Honour applied the test that whether a reasonable observer of the proceedings would harbour a reasonable apprehension that the trier of fact would not bring an unprejudiced mind to bear on Ms Luck’s application when it was to be heard by him. The primary judge concluded, that there was no reasonable basis for an apprehension of that kind which could arise in her proceedings. As he noted, the issue before him involved a simple question of statutory construction. And, he said that it did not require pro bono counsel to consider the underlying detailed factual matters which, if jurisdiction were established, the tribunal would have to consider in reviewing the University’s deemed refusal to provide her access to documents under the Freedom of Information Act.
78 His Honour observed that the Court must manage the matters before it in an appropriate way and could decide, properly, to adjourn a matter to a date on which other matters would also be listed. He observed that an individual litigant could not dictate to the Court how it should conduct or list matters where there was no evidence beyond a mere assertion as to that litigant’s inability or capacity to attend and appear. His Honour noted that he had adjourned another of Ms Luck’s proceedings for directions to 20 August 2008 so that it could be heard with a short directions hearing in a different matter of Ms Luck’s. He said that he had done this as a matter of convenience so that Ms Luck would not have to make an additional journey to court in circumstances where the issues in the two directions hearings where confined.
79 His Honour noted that the second referral for pro bono assistance in the University’s proceedings had been to one of the leading freedom of information specialist counsel at the Victorian Bar. The referral for assistance was of Ms Luck’s application to challenge the tribunal’s ruling that it lacked jurisdiction and of the University’s application under s 31A of the Federal Court of Australia Act based on its contention that Ms Luck’s proceeding had no reasonable prospect of success. The primary judge concluded that the second counsel had readily apprehended the legal issue involved and was prepared to give advice on it. He did this based on what, in any event, was obvious and on what Ms Luck had informed his Honour had passed between her and that counsel. Counsel had said that it was not necessary for him in order to give that advice to look at the minutiae of the application to the tribunal. As his Honour said, counsel was plainly right. He noted that that advice did not suit Ms Luck and she then accused counsel of being likely to give biased advice. In those circumstances the second counsel sought, and was granted leave, to withdraw from the referral. His Honour declined to give any further directions for Ms Luck to have assistance.
80 The primary judge expressed the test for ascertaining apprehended bias infelicitously because he said the question depended on whether "... a reasonable observer of the proceeding would harbour a reasonable apprehension". In Ebner v Official Trustee in Bankruptcy [2000] HCA 63; (2000) 205 CLR 337 at 334 [6] Gleeson CJ, McHugh, Gummow and Hayne JJ said:
"... a judge is disqualified if a fair-minded lay observer might reasonably apprehend that the judge might not bring an impartial mind to the resolution of the question the judge is required to decide." (emphasis added)81 Although his Honour used the language of "would" rather than "might", in the context of giving ex tempore reasons, he was undoubtedly correct to have rejected the allegation. It was baseless and no fair minded and informed lay observer could possibly or might reasonably have apprehended that the primary judge might not bring an impartial mind to the resolution of Ms Luck’s application. And, if the primary judge had used an incorrect test, no different result could have been reached (had the correct test been applied) than to find that first, he should not disqualify himself and, secondly, the tribunal did not have jurisdiction. Thus, any error in his Honour’s expression or application of the test could not have affected the legal validity of his conclusions or the fairness of the proceedings: Stead v State Government Insurance Office [1986] HCA 54; (1986) 161 CLR 141 at 147 per Mason, Wilson, Brennan, Deane and Dawson JJ.
82 I am of opinion that nothing his Honour said on 5 September 2008 provided any basis on which a fair minded and informed lay person observer might form a reasonable apprehension of bias (as explained in Ebner 205 CLR at 334 [6]) on his Honour’s part and he was correct to reject it. It follows that there is no substance in Ms Luck’s assertions of apprehended, let alone actual, bias in the matters she first put to him.
83 Ms Luck renewed her application for his Honour’s disqualification when the matter came on for hearing on 22 October 2008. He rejected it again publishing his earlier ruling of 5 September 2008 as an annexure to his reasons. The primary judge noted that when he gave his earlier ruling he had relied on what Ms Luck had told him had passed between her and counsel who had been assigned under O 80 to assist her. As his Honour noted, the question whether Ms Luck would be entitled to the documents she sought, if the tribunal had jurisdiction, was not relevant to the issue referred to, and there was no need for counsel to look at any large number of documents. His Honour did not err in rejecting the application to disqualify himself from hearing and determining the proceedings on 22 October 2008: Luck (No 2) [2008] FCA 1594.
THE SUBSTANTIVE PRIMARY JUDGMENT
84 Next, on 22 October 2008, the primary judge heard the University’s motion. His Honour considered the tribunal’s brief reasons for holding that it did not have jurisdiction. His Honour noted that he had made directions on 5 September 2008 that Ms Luck file and serve any written submissions in opposition to the University’s notice of motion on or before 3 October 2008 and had fixed that motion for hearing on 22 October 2008. His Honour recorded that Ms Luck had not filed any submissions in compliance with those directions but, on 20 October 2008, she had sought further time in which to file submissions and an adjournment. The University opposed any adjournment.
85 His Honour said that the Court would normally be sympathetic to the predicament of an unrepresented litigant faced with the need to prepare legal submissions but he was bound, also, to have regard to the interests of the other parties when determining whether or not to accede to further requests for time for preparation. He noted Ms Luck’s claim that she needed additional time because of certain medical conditions from which she suffered, the demands of her academic study and the pressure of work associated with other cases in which she was involved. However, he determined that if the purported appeal were bound to fail, there would be little to be gained by granting yet another adjournment. He came to the view that the purported appeal was bound to fail and that Ms Luck’s application for an adjournment ought be refused.
86 The primary judge held that the tribunal did not have jurisdiction to entertain Ms Luck’s application under s 25(1) of the Administrative Appeals Tribunal Act and s 55(1) of the Freedom of Information Act. He concluded that s 56(1) of the Freedom of Information Act operated to create a deemed refusal to grant access to documents only if the relevant request had been made to an agency or a Minister within the meaning of s 4 of that Act. He found that the University was not a Minister, a department, a prescribed authority or an eligible case manager. The primary judge determined that the University had not been established under a Commonwealth enactment, or for the purposes of a Commonwealth Act, but had been established under the University of Southern Queensland Act, a State Act. He found that, in those circumstances, s 55(1) of the Freedom of Information Act and s 25 of the Administrative Appeals Tribunal Act did not confer jurisdiction on the tribunal to hear and determine Ms Luck’s application to it and that no other source of jurisdiction had been suggested. Accordingly, his Honour concluded that there was no decision made by the University of Queensland that the tribunal had jurisdiction to review: Luck v University of Southern Queensland [2008] FCA 1582 at [12].
87 His Honour also observed that Ms Luck’s purported appeal had little prospect of success because her notice of appeal did not identify questions of law which could form the subject matter of the appeal. His Honour, however, decided the motion under s 31A of the Federal Court of Australia Act on the substance of Ms Luck’s claim. There was no contested evidence involved. The issue concerned the straight forward question of law, namely whether the tribunal lacked jurisdiction to entertain Ms Luck’s application. The primary judge concluded that the answer was clear and that the proposed appeal had no reasonable prospects of success and was bound to fail. He found that it should therefore be dismissed under s 31A and so ordered: Luck [2008] FCA 1582 at [15]- [16].
MS LUCK’S PURPORTED APPEAL TO THIS COURT
88 It has been necessary to set out at some length the procedural history of this matter because of the nature of Ms Luck’s assertions that the proceedings below miscarried. As can be seen, Ms Luck has produced vast amounts of paper and taken considerable court time in litigating this simple jurisdictional issue. She is clearly an intelligent person with some appreciation of legal issues. Ms Luck informed the Full Court, and I accept, that she has written about 100 letters to the Registry of the Court in respect of her various matters recently. This has added an unnecessary and inappropriate burden on the Court and its officers.
89 Ms Luck claimed that in her submissions to the Full Court she would be able to show that the University was a prescribed authority for the purposes of the Freedom of Information Act because there would be delegations by the Secretary of the Department of Education, Employment and Workplace Relations for the purposes of the Higher Education Support Act 2003 (Cth), the Higher Education Funding Act 1988 (Cth) and "through other legislation such as tax law, the Privacy Act 1988, the Data Matching Programme (Assistance and Tax) Act 1990". In her written submissions in reply, Ms Luck argued that the University was an agency for the purposes of the Freedom of Information Act. She said that it was a corporation for the purposes of s 57A of the Corporations Act 2001 (Cth). Next, she argued that the University was obliged to comply with the requirements of the Higher Education Support Act under s 238-1(2) and (3) of that Act because the Secretary could delegate in writing to a review officer of a higher education provider the Secretary’s powers under Div 209 to reconsider certain reviewable decisions made by the provider under the Act. She contended that the University became an "agency" because, in so doing, the delegate had to comply with directions of the Secretary (s 238-1(3)). She argued that the University, as a corporation, was responsible vicariously for the conduct of its officers. These contentions were not put by her to the primary judge. She also asserted that the tribunal had been biased in coming to its decision. That last submission is groundless and needs no further consideration.
90 During the course of the hearing, Ms Luck asked that we stay the proceedings pending her filing an application for removal into the High Court. She told us that the application for removal proposed to challenge the refusals of Graham J and Rares J to disqualify themselves for the reasons that they gave separately on 7 May 2008: Luck v University of Southern Queensland [2009] FCA 479 and [2009] FCA 521. The Full Court refused that stay. It was not appropriate to interrupt the business of the Court in that way.
ISSUES FOR CONSIDERATION
91 Ms Luck’s arguments have no reasonable prospect of success and the primary judge was correct to dismiss her proceedings against the University. Ms Luck’s complaints of apprehended and actual bias against the primary judge are baseless and vexatious. The tribunal lacked jurisdiction to hear the application for review brought by Ms Luck. My reasons for these conclusions follow.
92 The present purported appeal also raises an important question of practice and procedure for the Court. It is appropriate to determine it here, despite the University’s consent to a grant of leave. I am of opinion that it is not appropriate for the Court to act on that consent. The proceedings were foredoomed to fail and were an abuse of the process of the Court for that reason: Walton v Gardiner (1993) 177 CLR 378 at 393 per Mason CJ, Deane and Dawson JJ. The exercise of the Court’s summary powers under s 31A of the Federal Court of Australia Act to dismiss proceedings or give judgment against an applicant cannot be appealed from under s 24 of that Act without leave. The statutory criterion in s 24(1A) of the Act limits the ability of parties with a long purse or litigious disposition to bring appeals in interlocutory matters by requiring them to obtain a grant of leave to appeal. Ms Luck required leave to appeal from his Honour’s order dismissing her proceedings on the basis that they had no reasonable prospect of succeeding, as that dismissal was interlocutory.
93 This will resolve the conflicting views expressed by members of the Full Court in Jefferson Ford Pty Limited v Ford Motor Company of Australia Limited [2008] FCAFC 60; (2008) 167 FCR 372. Such proceedings can consume, as these have, substantial amounts of judicial time, court administrative resources and occasion significant disruption and expense to other parties.
(1) Apprehended bias of the primary judge
94 An intermediate appellate court dealing with an allegation of apprehended bias, coupled with other discrete grounds of appeal, must deal with the issue of bias first: Concrete Pty Limited v Parramatta Design and Developments Pty Limited [2006] HCA 55; (2006) 229 CLR 577 at 611-612 [117] per Kirby and Crennan JJ (with whom Gummow A-CJ at 581-582 [3] expressly agreed on this point). Kirby and Crennan JJ said that this issue must be decided first, since actual or apprehended bias strikes at the validity and acceptability of the trial and its outcome. They said that the party making the allegation should be put to an election on the basis that if the allegation of apprehended bias were made out, a retrial would be ordered, irrespective of possible findings on other issues.
95 I have already found that the primary judge did not err in rejecting the allegations of bias which Ms Luck put to him. Subsequently, she sought to raise before us further allegations of bias against his Honour. Another Full Court constituted by Moore, Lindgren and Bennett JJ rejected those same allegations in Luck [2009] FCAFC 54 at [82]- [83]. Ms Luck had relied on the new allegations to establish a claim that his Honour was biased in her attempt to appeal from the decisions the primary judge had made in proceedings VID 488 of 2008. Ms Luck’s new allegations were that the primary judge first, had undertaken work when counsel for the Australian Government and, secondly, had been appointed in December 2008 as President of the Defence Force Discipline Appeal Tribunal. Moore, Lindgren and Bennett JJ found that a reasonable and informed lay person would not think that these new allegations taken individually or cumulatively would render his Honour to be predisposed to decide in favour of the respondent and against Ms Luck in the primary proceeding. I agree with their Honours’ conclusion that these new allegations should also be rejected in these proceedings, because no fair minded and informed lay person might reasonably apprehend having regard to any of those matters, separately or collectively, that the primary judge might not bring an impartial mind to the resolution of Ms Luck’s matter: Ebner 205 CLR at 334 [16] and see too: Luck [2009] FCA 479 at [10] per Graham J and [2009] FCA 521 at [5]- [6] at [18]-[20] per myself (see too [81]-[82] above).
(2) Does Ms Luck require leave to appeal because the matter is interlocutory?
96 The primary judge’s principal decision was made pursuant to s 31A(2) of the Federal Court of Australia Act. He found that Ms Luck had no reasonable prospect of successfully prosecuting the proceeding. As an alternative to her claim to appeal as of right Ms Luck sought leave to appeal from the primary judge’s order that had been made under s 31A of the Federal Court of Australia Act. The University informed the Court that it consented to leave being granted if it were necessary.
97 The Parliament provided in s 24(1A) of the Federal Court of Australia Act that an appeal from an interlocutory judgment of a single judge of the Court shall not be brought unless another judge or the Court gives leave. The grant of leave to appeal is a jurisdictional condition that depends on the Court or a judge being satisfied that it is appropriate. Jurisdiction does not derive from consent of parties. It is important that the basis on which the Court’s power to deal with a matter in its appellate jurisdiction be identified. If leave to appeal is required, the Court must be satisfied that the primary judge’s decision is sufficiently doubtful to warrant the grant of leave and that substantial injustice would result if leave were refused: Bienstein v Bienstein [2003] HCA 7; (2003) 195 ALR 225 at 231 [29] per McHugh, Kirby and Callinan JJ.
98 These are important considerations going to the administration of justice by the Court not merely in this matter but generally: Décor Corporation Pty Ltd v Dart Industries Inc [1991] FCA 655; (1991) 33 FCR 397 at 398-400 per Sheppard, Burchett and Heerey JJ. As they said, the Parliament evinced a policy in s 24(1A) of the Federal Court of Australia Act against the bringing of interlocutory appeals except where the Court, acting judicially, finds reason to grant leave. And, their Honours pointed out that when the Court comes to exercise that discretion on a particular application, it has to have regard to the important distinction to be observed between an interlocutory decision given on a point of practice or procedure and an interlocutory decision determining a substantive right, where leave will be more readily granted: Décor 33 FCR at 399-400; see also Adam P Brown Male Fashions Pty Ltd v Philip Morris Inc [1981] HCA 39; (1981) 148 CLR 170 at 177 per Gibbs CJ, Aickin, Wilson and Brennan JJ. Generally, unless some control is kept by the Court over the former category of interlocutory proceedings, litigants with considerable resources or litigious dispositions could at will transfer all exercises of discretion in interlocutory applications from a judge exercising the Court’s powers summarily to dispose of litigation that ought never to have been instituted into substantive claims before a Full Court. Of course, each case must depend upon its own circumstances. Moreover, when the Court considers the question of the grant of leave to appeal, it will be attentive to the substantive context in which the primary judge determined the matter.
99 The finding by the primary judge here that the tribunal had no jurisdiction was not made at a final hearing, but on the basis of the power given under s 31A(2) of the Act. His Honour found that the application had no reasonable prospects of success. In the circumstances of a case like the present that finding is in substance, or analogous to, the dismissal of proceedings on the ground that they are frivolous, vexatious, an abuse of the process of the Court or do not disclose a reasonable cause of action. Such a dismissal is interlocutory: Re Luck [2003] HCA 70; (2003) 203 ALR 1 at 3-4 [9]- [12] per McHugh A-CJ, Gummow and Heydon JJ. Italicisation
100 In some situations, a decision to strike out a pleading as disclosing no reasonable cause of action may be arrived at in an area of law which is developing so as to provide a vehicle for the test of that question on appeal, before the parties are committed to an expensive trial. That may or may not avoid the need to deal with a theoretical, and thus irrelevant, issue: cp Agar v Hyde (2000) 201 CLR 552 at 577-578 [64]-[65] per Gaudron, McHugh, Gummow and Hayne JJ. In other cases, the proceedings will be so obviously hopeless that it would be an abuse of the process of the Court to permit them to proceed: Walton 177 CLR at 393. The Court must balance and assess any injustice that would result from the order sought to be appealed from, in determining whether or not leave ought be granted. In the present case the application to the primary judge was baseless and foredoomed to fail. It was an abuse of the process of the Court. It was properly dismissed summarily because it had no prospect of success. No injustice to Ms Luck could be occasioned by a refusal of leave in such a case: see Adam P Brown 148 CLR at 177.
101 In my opinion, a judgment or order under s 31A(2) that determines that an applicant has no reasonable prospect of successfully prosecuting a proceeding is interlocutory. I have held that s 31A requires a prediction of the outcome of a trial on the merits and is not an actual adjudication of those merits: Jefferson Ford 167 FCR at 388 [45]. I examined the nature of an order under s 31A in that judgment. I concluded that proceedings may still be dismissed or judgment given under s 31A on the ground that the claim or defence is hopeless or bound to fail, as well as on the express ground in the section that there is no reasonable prospect of successfully prosecuting or defending the proceeding.
102 In addition, I examined the legislative history of s 31A in Jefferson Ford 167 FCR at 391-392 [57]-[63]. I referred to the explanatory memorandum circulated by the Attorney-General for the Migration Litigation Reform Bill 2005 which became Act No 137 of 2005, by which s 31A was inserted into Federal Court of Australia Act. The explanatory memorandum suggested that the inclusion of the new section in the Act would strengthen the power of the Court "to deal with unmeritorious proceedings by broadening the grounds upon which a court could summarily dispose of the proceedings".
103 And, in White Industries Limited v Federal Commissioner of Taxation [2007] FCA 511; (2007) 160 FCR 298 at 310-312 [50]- [60], Lindgren J discussed the legislative history and purpose for enacting s 31A and its cognate provisions. He said, and I agree, that the intention of the Parliament in enacting s 31A:
"... was to lower the bar for obtaining summary judgment (including summary disposal) below the level that had been fixed by such authorities as Dey v Victorian Railways Commission [1949] HCA 1; (1949) 78 CLR 62 at 91-92, and General Steel Industries Inc v Commissioner for Railways (NSW) [1964] HCA 69; (1964) 112 CLR 125 at 129-130."104 In Berowra Holdings Pty Limited v Gordon [2006] HCA 32; (2006) 225 CLR 364 at 371 [15] Gleeson CJ, Gummow, Hayne, Heydon and Crennan JJ said that once the procedural law had been engaged, all parties to the litigation were subject to it. They held that a defendant may challenge the strength of the plaintiff’s alleged case at an interlocutory level by seeking to have a plaintiff’s action struck out for failure to disclose a reasonable cause of action, or dismissed as incompetent. And, they observed that the invocation of jurisdiction ordinarily enlivens the authority of the Court in question, at least in the first instance, to determine whether it has jurisdiction: Berowra Holdings 225 CLR at 371 [16]. The test under s 31A is akin to those tests.
105 A number of Full Courts have now said in obiter dicta that an order under s 31A was interlocutory and leave was required under s 24(1A) to appeal from it. In Simundic v University of Newcastle [2007] FCAFC 144 at [12] and [14], Allsop, Lander and Siopis JJ said that an order under s 31A is interlocutory and that:
"The appellant’s proceeding was dismissed because the primary judge found that the Court lacked jurisdiction, and therefore it followed that no reasonable cause of action was disclosed. The order dismissing the proceedings, however, is not a final order ...." (Simundic [2007] FCAFC 144 at [12])And, they held that the primary judge was right to dismiss the proceedings summarily under s 31A: Simundic [2007] FCAFC 144 at [21]. Ms Luck’s proceedings before this Full Court are in the same category and are indistinguishable from the facts in Simundic [2007] FCAFC 144.
106 In Zoia v Commonwealth Ombudsman Department [2007] FCAFC 143; (2007) 240 ALR 624 at 627 [19] Spender J held that an order under s 31A was interlocutory and, in the absence of leave, an appeal was incompetent. French J, in agreeing, said that there would seem to be little doubt that such a judgment dismissing proceedings on the ground that there was no reasonable prospect of successfully prosecuting them was interlocutory, but whether interlocutory in form or not, it was final in substance and ordinarily the threshold to be crossed for obtaining leave to appeal against such a judgment was not high: Zoia (2007) 240 ALR at 629 [26]. Gilmour J agreed with Spender J. Their Honours applied the decision of McHugh A-CJ, Gummow and Heydon JJ in Re Luck [2003] HCA 70; (2003) 203 ALR 1: see too Cockrell v Minister for Immigration and Citizenship [2009] FCA 444 at [3]- [4] per Perram J.
107 Finkelstein J, who dissented, asserted in Jefferson Ford 167 FCR at 378-379 [10]-[13] that the previous decisions of Full Courts in Simundic [2007] FCAFC 144, Pham v Secretary, Department of Employment and Workplace Relations [2007] FCAFC 179 and Zoia [2007] FCAFC 143; 240 ALR 624 could be ignored as not being a considered opinion or put to one side as having no precedential value. Gordon J agreed with that part of Finkelstein J’s reasons: Jefferson Ford 167 FCR at 417 [173]. He did this because of cases in other courts to which he referred based on the English Rules of Court and some Australian analogues for summary judgment, first developed in the nineteenth century: Jefferson Ford 167 FCR at 377-378 [3]-[8].
108 The construction of s 31A must have regard to its legislative purpose as an evident expansion of the Court’s powers. Mason CJ, Brennan, Deane, Dawson, Toohey, Gaudron and McHugh JJ in The Owners of The Ship "Shin Kobe Maru" v Empire Shipping Co Inc [1994] HCA 54; (1994) 181 CLR 404 at 421 (citations omitted) said:
"It is quite inappropriate to read provisions conferring jurisdiction or granting powers to a court by making implications or imposing limitations which are not found in the express words"109 Subsequently, in Dent v Australian Electoral Commissioner [2008] FCAFC 111; (2008) 249 ALR 523 at 531 [28] French, Tamberlin and Mansfield JJ said obiter that they were not to be taken as endorsing the views expressed by Finkelstein J and Gordon J in Jefferson Ford 167 FCR at [2]-[13] and [159]-[191]. They noted that there were two Full Court decisions to the opposite effect, namely that a decision dismissing proceedings under s 31A was interlocutory and referred to Zoia [2007] FCAFC 143; 240 ALR 624 and Pham [2007] FCAFC 179. They also referred to my remarks in Jefferson Ford at 167 FCR at 386-319 [42]-[56]. Next, in Wills v Australian Broadcasting Corporation (2009) 173 FCR 284 at 290 [28]-[30], with Emmett J’s express agreement, I observed that an order under s 31A determining that a claim or defence has no reasonable prospects of success is interlocutory. In my opinion, Finkelstein J and Gordon J should have followed the views expressed in the prior decisions of the other Full Courts on s 31A. No subsequent judgment on s 31A has suggested that their view should be followed.
110 In Jefferson Ford 167 FCR at 407-408 [128] Gordon J construed the word "may" in s 31A(1) and (2) as being used in its empowering sense, not in a discretionary sense. Her Honour demonstrated in that part of her reasons that once the moving party on a motion under s 31A had established that the other party had no reasonable prospect of successfully prosecuting or defending the claim or proceedings, the Court had to give the moving party the remedy it sought as provided in s 31A. In other words, once the Court had reached such a finding, the moving party was entitled to judgment in accordance with it. On the other hand, in Bonnell v Deputy Commissioner of Taxation (No 5) [2008] FCA 991 at [81], Graham J held that the word "may" in s 31A confers a discretion: see too Keynes v Rural Directions Pty Ltd (No 2) [2009] FCA 567 at [46]- [47] per Besanko J. It is not necessary to reach a final view on this issue in order to deal with this matter.
111 Nonetheless, the Court retains a discretion whether or not, and when, to entertain an application under s 31A. For example, it may be more appropriate to deal with the matter on a final basis. And, as Barwick CJ observed in General Steel Industries Inc v Commissioner for Railways (NSW) [1964] HCA 69; (1964) 112 CLR 125 at 130:
"... great care must be exercised to ensure that under the guise of achieving expeditiously finality a plaintiff is not improperly deprived of his opportunity for the trial of his case by the appointed tribunal. On the other hand, I do not think that the exercise of the jurisdiction should be reserved for those cases where argument is unnecessary to evoke the futility of the plaintiff’s claim. Argument, perhaps even of an extensive kind, may be necessary to demonstrate that the case of the plaintiff is so clearly untenable that it cannot possibly succeed."112 In arriving at the requisite state of satisfaction that the threshold in s 31A has been met to warrant relief being granted to the moving party, the Court necessarily exercises a judicial assessment. It makes an evaluation of the material before it, both of fact and law. The assessment which is made is, often, of the nature of a predictive judgment as to the outcome of the proceedings: see Jefferson Ford 167 FCR at 388 [45]. In other cases, the matter may be so clear that it requires no sense of prediction, but flows as a matter of law. The present is such a case.
(3) Was the University an agency for the purposes of the Freedom of Information Act?
113 The University was a body corporate that had been approved as a higher education provider under Div 16 of the Higher Education Support Act (by force of its being listed in the Act as a Table A provider pursuant to s 16-5(1)). A higher education provider was required by s 19-50(1) to appoint a review officer to undertake a review of decisions made by the provider under s 36-22 or relating to assistance under Ch 3 of the Act. A review officer was defined as a person, or a person included in a class of persons, whom the chief executive officer of the provider, or a delegate of that chief executive, had appointed to be a review officer (s 19-50(2)). The Secretary had power under s 238-1(2) and (3) to delegate to such a review officer the Secretary’s powers under Div 209 of the Act to reconsider reviewable decisions made by the provider under s 36-22 or relating to Ch 3. In exercising those powers a delegate had to comply with directions of the Secretary (s 238-1(3)).
114 Ms Luck argued that a review officer was a prescribed authority within the meaning of the definition in s 4 of the Freedom of Information Act. Ms Luck principally relied on an argument that a review officer was a person holding or performing duties of an office established by an enactment within the meaning of par (c) of the definition of prescribed authority. She also argued that the University was vicariously liable for decisions by a review officer in its employ.
115 The University is a body corporate, because s 4(2)(a) of the University of Southern Queensland Act so provides. Because it is not a body corporate established by or in accordance with the provisions of an Act of the Parliament of the Commonwealth, it cannot be a prescribed authority within the meaning of par (a) of the definition of prescribed authority. There is no evidence that the University or any of its employees had been declared by any regulation to be a prescribed authority pursuant to pars (b) and (d) of the definition.
116 Here, a review officer could only be an employee of the University. The University is a body corporate performing State functions pursuant to State law. The objects of the Higher Education Support Act included that it had been enacted to support, among others, universities established under State law, as bodies "... empower[ed] ... to achieve their objectives as autonomous institutions" (s 2-1(b)) and to provide for the Commonwealth to give them, and their students, financial support (ss 3-1, 3-5, 3-10). Because the University was an approved higher education provider it could receive grants under the Act (see s 13-1). Importantly, s 19-1(2) provided that Div 19 (which included s 19-50) "... does not of its own force require a higher education provider to do any act or thing". This recognised that the requirement in s 19-50 that the University appoint a review officer did not, of itself, establish an office in the University. Rather, s 19-50 operated as a statutory condition affecting the exercise of the discretion of the Executive Government of the Commonwealth to provide funding to autonomous higher education providers depending on whether they appointed review officers themselves.
117 By force of s 19-50 of the Higher Education Support Act, a higher education provider must appoint a person as a review officer to discharge particular functions within the provider’s own organisation. But the review officer does not hold an office established by that Act. Once the University appoints a person as a review officer, that person is an employee of the University holding a position or office within its own organisation as established by the University of Southern Queensland Act. Even if a review officer is made a delegate of the Secretary under s 238-1(2) of the Higher Education Support Act, he or she will perform Commonwealth functions in his or her capacity as an officer of the State body, being the University. This was explained by Mason CJ, Wilson, Brennan, Deane, Dawson, Toohey and Gaudron JJ in Re Cram; Ex parte NSW Colliery Proprietors’ Association Limited [1987] HCA 28; (1987) 163 CLR 117 at 127 where they said:
"State officers perform State functions pursuant to State law, and may additionally, if so authorized and empowered, perform Commonwealth functions."118 It follows that a review officer of the University does not hold or perform the duties of any office established by the Higher Education Support Act, even if the Secretary made a delegation to him or her under s 238-1(2).
119 Even if that analysis were wrong, the University is not the person holding or performing the duties of an office established by an Act, such as a review officer whom it appoints. Rather, the individual appointed as review officer is the only person who could be suggested as meeting the description in par (c) of the definition of "prescribed authority" in s 4 of the Freedom of Information Act when considering Ms Luck’s argument. However, that definition, itself, distinguishes between bodies corporate and unincorporate and individuals. The function of a review officer is to review an act or omission in the internal administration of the University by another of its officers. Thus, the review officer is distinct from the person whose decision he or she is to review (see also s 19-55 of the Higher Education Support Act which provides that the review officer of the provider must not review a decision that he or she was involved in making and is to be senior to the original decision-maker).
120 Ms Luck sued the University. It could not be classified as a, or the, person performing the duties of a review officer so as to make it a prescribed authority.
121 Ms Luck also relied on ss 78 and 112 of the Higher Education Funding Act. A similar system of delegation as in the Higher Education Support Act was provided in s 112 of the Higher Education Funding Act 1998. Under s 112(2) the Secretary may delegate certain of his or her powers, under ss 106L and 106M, to a review officer of an institution (including the University). Although the latter two sections are in Chapter 5A of that Act, s 106ZA also made the provisions of s 78 applicable to Chapter 5A. Ms Luck referred to s 78(3). That provided that, for the purposes of s 78, even though a person be not appointed or employed by the Commonwealth, he or she would be taken to be employed by it if he or she "performs services for the Commonwealth".
122 Importantly, s 78 is a secrecy provision relating to the administration of the taxation laws. It prevented disclosure of any information divulged to or obtained by a person (including a review officer) under or for the purposes of Chapters 4 and, relevantly, 5A of the Higher Education Funding Act. If Ms Luck were correct that s 78 applied to the University, the section prohibited the University and its officers divulging to any second person, including a court (see s 78(5)), any information it or they received for the purposes of performing the powers conferred under any delegation by the Secretary.
123 The purpose of s 78 identified in the deeming in s 78(3) was to impose obligations of confidentiality and criminal liabilities on anyone who received confidential information (as defined in s 78(2)) as if they were an employee of the Commonwealth. The terms of s 78(3) do not create an office for the purposes of or within the meaning of par (c) of the definition of "prescribed authority" in s 4(1) of the Freedom of Information Act. Ms Luck’s argument should be rejected.
124 Ms Luck did not articulate any argument in respect of other statutory provisions to which she merely referred in a general way. I need not consider them. There is no evidence of any delegation by the Secretary of any powers under any Commonwealth Act to any review officer in the University. Nor did Ms Luck attempt to adduce any such evidence, despite the University’s written submissions noting that she had not made any application to do so. And, as the University noted in its submissions, the Secretary’s powers of delegation, under s 238 of the Higher Education Support Act and other Acts on which Ms Luck relied, is to a person, not to a body corporate such as the University. There is no evidence that the University had received any delegation under s 238-1(2). In that situation there is no basis to suggest that the University performs any duties of the Secretary or exercises any of the Secretary’s powers under the relevant Acts to bring it within the definition of a prescribed authority in the Freedom of Information Act.
125 The University also argued that a review officer under the Higher Education Support Act fell within the exception in s 4(3)(b)(ii) of the Freedom of Information Act. That was because when the review officer performed the duties of his office even as a delegate under s 238-1(2) and (3) of the Higher Education Support Act, he or she did so as an employee of the University which was not a prescribed authority within the last words of the exception in s 4(3)(b)(ii). That excepted an individual who performed the duties of an office established under an Act (such as the suggested delegate under s 238-1(2)) from being a prescribed authority by virtue of holding his or her office or performing his or her duties, and the review officer did so as a duty of his or her employment as an officer of or under a prescribed authority. For the reasons I have given the University is incapable of being a prescribed authority. The exception in s 4(3)(b)(ii) applies to an individual who performs "duties of his or her employment ... as an officer of or under a prescribed authority". If the Secretary was the prescribed authority referred to in s 4(3)(b)(ii), then:
• if the University were the review officer, it would not perform any duties of employment as "an officer of or under" the Secretary;• if an employee of the University were the review officer, he or she also would not perform any duties of employment as "an officer of or under" the Secretary.
126 For these reasons, it is not arguable that the University could fall within the definition of prescribed authority for the purposes of the Freedom of Information Act. Nor could it be vicariously liable for any such review officer in the way Ms Luck asserted.
127 Ms Luck also argued that the primary judge should not have refused her application for an adjournment on 22 October 2008. That application was without substance and his Honour was entitled in the circumstances to reject it for the reasons he gave: cp Bloch v Bloch [1981] HCA 56; (1981) 180 CLR 390 at 395-396 per Wilson J with whom Gibbs CJ, Murphy and Aickin JJ agreed; Allesch v Maunz [2000] HCA 40; (2000) 203 CLR 172 at 186 [40] per Gaudron, McHugh, Gummow and Hayne JJ; see too Sali v SPC Ltd [1993] HCA 47; (1993) 116 ALR 625 at 628-629 per Brennan, Deane and McHugh JJ.
128 The tribunal was correct to have dismissed Ms Luck’s application to it for want of jurisdiction. The primary judge correctly dismissed her application as having no reasonable prospect of success. The assertions in Ms Luck’s argument are unsupported by the statutory provisions on which she relied or by evidence. Her proceedings, viewed substantively, do not disclose any reasonable prospect that they could succeed, were leave to appeal granted. The arguments advanced by Ms Luck are without foundation.
CONCLUSION
129 For these reasons Ms Luck required leave to appeal which should be refused. Her purported appeal is incompetent and must be dismissed with costs.
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I certify that the preceding seventy (70) numbered paragraphs are a true
copy of the Reasons for Judgment herein of the Honourable
Justice Rares.
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Associate:
Dated: 19 June 2009
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Counsel for the Respondent:
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Mr J Pizer
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Solicitor for the Respondent:
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Clayton Utz
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