Ogawa, An application by
[2005] HCATrans 607
[2005] HCATrans 607
IN THE HIGH COURT OF AUSTRALIA
Office of the Registry
Brisbane No B34 of 2005
In the matter of –
An application by MEGUMI OGAWA for leave to issue a proceeding
KIRBY J
TRANSCRIPT OF PROCEEDINGS
FROM BRISBANE BY VIDEO LINK TO SYDNEY
ON MONDAY, 15 AUGUST 2005, AT 10.36 AM
(Continued from 29/7/05)
Copyright in the High Court of Australia
MS M. OGAWA appeared in person.
MR B.T. PORTER: If the Court pleases, I appear for the District Registrar of the Queensland District Registry of the Federal Court of Australia. (instructed by Australian Government Solicitor)
HIS HONOUR: I am grateful to you for coming along this morning and I appreciate the assistance which you have provided. I have a note from the Registrar of this Court that the University of Melbourne to whom I directed that notice of this application should be given and the opportunity to appear if it wished to do so has received that intimation but does not intend to appear on this application. There is a Japanese interpreter present in Brisbane, I understand. What is your name?
THE INTERPRETER: My name is….., your Honour.
HIS HONOUR: You are an interpreter from the Japanese language into the English language and vice versa?
THE INTERPRETER: Yes, I am qualified both ways.
HIS HONOUR: Thank you. Maybe you could just sit there for a moment and we can see how we go without the need for an interpreter because Ms Ogawa has appeared before me previously and we were able to manage, but if at any time Ms Ogawa needs the assistance of the interpreter she can indicate that and we will then proceed with that assistance and I will have you sworn.
THE INTERPRETER: Thank you. Very well, your Honour.
HIS HONOUR: Yes, thank you very much.
Ms Ogawa, I understand that another affidavit has been filed by you and because of a function in the Supreme Court of New South Wales which I was attending I have not received this affidavit before the beginning of the day. Let us, therefore, get clear the material that is before me. I have an affidavit of 15 August 2005 which you have sworn.
MS OGAWA: Yes.
HIS HONOUR: Has a copy of that affidavit been given to Mr Porter?
MS OGAWA: Yes. Yesterday I sent it by email, but unsworn version because I swore this morning but I provide it to the other side. They already have it.
HIS HONOUR: Yes, I understand. Do you have any objection?
MR PORTER: Your Honour, there is just one point about that. I have not seen the exhibits to it, only the text, although the exhibits do not seem extensive.
HIS HONOUR: No. Would you make available copy of the exhibits to Mr Porter and his instructing solicitor?
MS OGAWA: Yes. All exhibits should be in the file called the correspondence folder related to QUD245 or 4 in the Federal Court but I can provide the original of the exhibit to the other side now, of course,….. Your Honour, because the registrar swore in her affidavit that there is correspondence filed – when I – last time when I saw your Honour on the first day, on 28 July, I telephoned the registrar and asked the registrar to come to the Court. At that moment the registrar responded that she has no recollection about anything in this matter but that she seems to have managed to create – produce the affidavit by looking at the correspondence folder. I want to inspect the ‑ ‑ ‑
HIS HONOUR: That is not necessarily inconsistent. There are many things that people do in life that they do not recollect, but when they see the file and the documents that prompts their memory.
MS OGAWA: Yes. I do not say it is inconsistent but because our folder seems to have extensive information in this matter, including the information which I do not know – did not know – I wanted to inspect the file – folder – and I told it to the other side yesterday and this morning counsel said to me that I should ask, apply. Well, so I want to apply to the Court – well ‑ ‑ ‑
HIS HONOUR: Yes. I am just reading now the affidavit sworn 15 August 2005 and I must ask Mr Porter whether or not he has any objection to this affidavit, now having received the exhibits.
MR PORTER: Not for the purposes of today, no, your Honour, there is not an objection.
HIS HONOUR: Yes, thank you very much. I read the affidavit of Megumi Ogawa sworn 15 August 2005. Is there any other affidavit material that you wish to put before me, Ms Ogawa?
MS OGAWA: No, I do not have at this stage but because the other side provided me with the affidavit and submissions after the close of business on Friday and the writing and English – for me it is – I need a significant time to write in English, so, by no means this affidavit is complete so if the further information is needed that is – I want to prepare it in a separate affidavit later but as long as your Honour does not require further information at this stage I do not have any affidavit any more other than this one.
HIS HONOUR: You earlier swore an affidavit of 4 April 2005 and that affidavit is before me now.
MS OGAWA: Yes.
HIS HONOUR: That was tendered in the last proceedings, I think.
MS OGAWA: Yes.
HIS HONOUR: Certainly, it is now before me. In addition to those affidavits there is an affidavit of Caroline Reynolds which has been sworn by Deputy District Registrar Reynolds which is dated 12 August 2005. I take it, Mr Porter, you read that affidavit?
MR PORTER: I do, your Honour.
HIS HONOUR: Yes. Is there any objection to that affidavit, except for the point that you have raised, Ms Ogawa, that you say that the affidavit is not complete but, other than that, do you object to the affidavit or any of its content?
MS OGAWA: To the other side affidavit?
HIS HONOUR: Yes.
MS OGAWA: No, your Honour.
HIS HONOUR: Thank you. Mr Porter, do you wish to cross‑examine Ms Ogawa on her affidavits or not?
MR PORTER: No, your Honour.
HIS HONOUR: Thank you. Ms Ogawa, do you wish to cross‑examine Ms Reynolds on her affidavit or not?
MS OGAWA: Well, I am not a lawyer so I cannot ‑ ‑ ‑
HIS HONOUR: I realise that but this is just the procedure that I have to follow.
MS OGAWA: Yes, but ‑ ‑ ‑
HIS HONOUR: When affidavits are tendered the first question is, is there any objection and the second question is whether the other party wishes to cross‑examine the deponent. Do you wish to cross‑examine Ms Reynolds?
MS OGAWA: Well, at this moment I do not have particular question but I may have to ask her a question later. It depends on what sort of information your Honour requires.
HIS HONOUR: If you wish to ask a question later you can apply for that but normally we have to get the evidentiary basis of the case clear before we go into the submissions, so I really think you have to decide that now.
MS OGAWA: Well, then I want to ask one question to Registrar ‑ ‑ ‑
HIS HONOUR: You wish to ask one question of Ms Reynolds, is that right?
MS OGAWA: Yes.
HIS HONOUR: Mr Porter, is Deputy District Registrar Reynolds present in the court in Brisbane?
MR PORTER: She is, your Honour, yes.
HIS HONOUR: I repeat that I appreciate the assistance of the Deputy Registrar coming forward. Could she come forward to a point where I can see her so that Ms Ogawa can ask her the question that she says she wishes to ask?
MR PORTER: Yes. Certainly she can, your Honour. I am just thinking about the practicalities of that.
HIS HONOUR: Maybe she can come and stand next to you. I think that is the best arrangement.
MR PORTER: Yes.
HIS HONOUR: Ms Deputy Registrar Caroline Reynolds, you appear in Brisbane. You are the Deputy District Registrar of the Federal Court of Australia and your given address is 119 North Quay, Brisbane in the State of Queensland.
CAROLINE REYNOLDS, sworn:
HIS HONOUR: Ms Ogawa, you have a question that you wish to ask Deputy Registrar Reynolds?
MS OGAWA: Yes.
It seems that in this affidavit you managed to write about the telephone conversation which there seems to be no memo attached to it. In paragraph 14 you wrote ‑ ‑ ‑
HIS HONOUR: Do you have a copy of the affidavit, Registrar Reynolds?---I do, your Honour.
Yes. Just look at paragraph 14.
MS OGAWA:
I advised Ms Ogawa by telephone on 31 January 2005, that Cooper J had declined to re-allocate the matter.
HIS HONOUR: What is the question, Ms Ogawa?
MS OGAWA: How did you know that you advised me?---On a lot of these documents there is handwritten notations of mine which record the basics of a telephone conversation. Some of them have not come through clearly on the documents that have been provided but I have other copies in which I can read what the handwritten notation is, if that would assist?
Yes. Is there any other things recorded on the notation in relation to the telephone conversation on this day?---Your Honour, may I just go back and get another piece of paper from my file?
HIS HONOUR: Yes, certainly.
THE WITNESS: Thank you. I have got a handwritten notation here. It is not very clear. Would you like me to read it?
HIS HONOUR: Could you read it on to the record? Is that convenient?‑‑‑Yes. It is a handwritten note ‑ ‑ ‑
So far as is material to paragraph 14?---Yes. It is a handwritten notation on an email that I received from Ms Ogawa dated 22 January 2005 which I printed out. There is a note that I requested the file and that is dated 24th of
the 1st, then there is a handwritten note “…..Megumi Ogawa. Advised her that I had spoken to Cooper J late last week and he declined to reallocate the matter, nor was there any reason why she should have a copy of my memo to the judge re the pro bono referral” and then it is my initials and it is the date, 31 January.
MS OGAWA: So it is clearly written that that Cooper J suggested to you not to you pass that memo to me?---Yes. Would you like to see this document?
HIS HONOUR: I did not hear the answer?---Yes, would she like to see this handwritten document?
Yes. Show the handwritten document to Ms Ogawa.
MS OGAWA: Yes, thank you, very much.
HIS HONOUR: The document is returned to Ms Reynolds.
MS OGAWA: So, in your affidavit, on that advice, you took out of some of that fact in the note – you did not write everything which you had in memo?---No. My affidavit was restricted to the Order 80 referral. I tried to restrict my comments to that issue.
Well, that is all, your Honour.
HIS HONOUR: Yes, thank you very much, Ms Ogawa. Thank you, Ms Reynolds. You may resume your seat behind Mr Porter.
THE WITNESS WITHDREW
HIS HONOUR: There are no further questions on the affidavit, Ms Ogawa?
MS OGAWA: No, no further questions.
HIS HONOUR: Thank you very much. I read the affidavit of Caroline Reynolds which is sworn 12 August 2005. Do you have any other evidentiary material that you wish to place before the Court, Mr Porter?
MR PORTER: No, your Honour.
HIS HONOUR: Yes, thank you very much. Do you have any evidence in reply to the affidavit of Ms Reynolds, Ms Ogawa, other than the affidavit of 15 August 2005 which I have already read?
MS OGAWA: No. No, your Honour.
HIS HONOUR: Thank you. That is the evidence then that is before the Court. Now, I will ask for your submissions. Would you like to make your submissions now, please, Ms Ogawa?
MS OGAWA: Yes. I am sure your Honour already read my affidavit of 15 August ‑ ‑ ‑
HIS HONOUR: I have read it very quickly. I notice that in the affidavit you say in paragraph 10:
His Honour Justice Kirby informed me that if there was an Order 80 referral which had effect in the matter of QUD245 of 2004, my notice of motion would be futile and it could be the reason for the Registrar’s rejection.
I am not sure exactly what I said in that respect. It will be in the transcript. However, what I was endeavouring to do was to point to the fact that mandamus, which is the order under the Constitution of Australia that you have sought, is not granted if to grant it would be futile, if it does not lead anywhere.
MS OGAWA: Yes.
HIS HONOUR: Is there anything else that you wish to say about your affidavit of 15 August?
MS OGAWA: Well, in the affidavit from paragraph 13 and after I said that my side of the chronology of the event in relation to my request for a pro bono referral this is effectively to insert the relevant facts which the Registrar did not include in her chronology in her affidavit. My chronologies start on 6 January.
HIS HONOUR: Yes.
MS OGAWA: On 6 January I requested the Registrar to provide me with a copy of your memo referred to in the memorandum of Cooper J. My request continues. On 22nd I further requested and on 23rd after considering Cooper J’s memo which apparently only considered the Registrar’s memo and the Registrar’s memo apparently contained a number of errors of fact. Even I try to correct it his Honour did not accept my explanations and, of course, that is not based on evidence or anything and because of that I requested the relocating of the matter because Justice Cooper before the hearing of the matter already arrived at some conclusions.
On 31 January I telephoned the Registrar and I again requested memo. The Registrar informed me that Cooper J had said to her that she did not need to give it to me and now Registrar Reynolds confirmed that his Honour instructed her to say that, and the ‑ ‑ ‑
HIS HONOUR: Yes. What Registrar Reynolds has just told the Court in her evidence is entirely consistent with what you have set out in paragraph 33 of your affidavit.
MS OGAWA: Yes, and on 1 February 2005, because of Registrar’s information – well, Justice Cooper told her that I should not – the memo – your memo – Justice Cooper considered it is not provided to me. Then, I decided to try an FOI request and sent an email to the principal registrar. I am sure that request was forwarded to Registrar Reynolds as well. 1 February, also, I requested the registrar to bring my Order 80 to some other judge because at that moment Melbourne University had a new vice‑chancellor and I was very sure that new vice‑chancellor considered the current existing litigation. I sent a letter to new vice‑chancellor what happened and I just wanted to have a supervisor to submit my thesis. That is ‑ ‑ ‑
HIS HONOUR: Now, Ms Ogawa, can I tell you what is concerning me because then you can address that issue?
MS OGAWA: Yes.
HIS HONOUR: You have sought the constitutional writ of mandamus from this Court.
MS OGAWA: Yes.
HIS HONOUR: That writ is a discretionary remedy. It is not given as of right as in some circumstances prohibition can be granted. It is a discretionary remedy.
MS OGAWA: Yes.
HIS HONOUR: I now have before me much more information than I previously had on the earlier occasions, both from you and from the registrar of the Federal Court in Queensland concerning the circumstances of the case and that shows that two judges of the Federal Court, Justice Cooper, first, and Justice Kiefel, second, considered the matter and did not consider that it was necessary or appropriate for a registrar of that court to receive your fresh application in QUD in order to have it placed before the Court.
When I read that evidence, the conclusion that I tentatively draw is that this is simply the procedural decisions of judges of the Federal Court in the exercise of their administrative powers under the rules of that court and exercising their discretions in that court which this Court would not normally get involved in. We would not normally become the supervisors of the registries of the Federal Court or of the judges of the Federal Court in dealing with the registrar of that Court.
It is just too particular for us as the final Court of the nation to become involved in and it is too discretionary, it is too much a matter of practice and procedure for the High Court of Australia to become involved. So what I would like you to address is why you say that an order for mandamus should issue in such a matter where it has gone through the registrar of the Federal Court and two judges of the Federal Court in determining that your application should not be received in that court.
MS OGAWA: Yes, your Honour. The registrar is saying that she just forwarded it to judges but – well, I did not know the existence of the second judge but reading Kiefel J’s memo, Kiefel J simply relied upon Cooper J, and Cooper J, the first judge, decided not to allow a pro bono referral for me based on the registrar’s memo. His Honour considered the registrar’s memo, not my request and the registrar’s memo obviously contained numerous errors of fact. I swore in my affidavit, that is clear, that Justice Cooper did not consider my request, but even registrar’s memo contained ‑ ‑ ‑
HIS HONOUR: But the memo from – can I just ask you to pause? The memo from Justice Cooper of 20 December 2004, do you have that memo? It is exhibited.
MS OGAWA: Yes.
HIS HONOUR: It is exhibit CR3 to the affidavit of Deputy District Registrar Reynolds and in that memo Justice Cooper says:
There is no material which persuades me that this applicant should receive pro bono assistance. She has received pro bono assistance in the past.
That is accurate.
The claim which she has filed in this Court was struck out in part in the Federal Magistrates Court in Melbourne. She did not disclose that fact when she filed her application in this Court or when she sought the appointment of pro bono representation.
MS OGAWA: That is not correct. I filed the evidence in my affidavit. That is not correct.
HIS HONOUR: But is it a fact that your application was struck out in the Federal Magistrates Court?
MS OGAWA: Well, there are overlaps. Actually, the statement of claim in the Federal Magistrates Court and the Federal Court is basically identical. I tendered, your Honour ‑ ‑ ‑
HIS HONOUR: Yes, but was it struck out? Was it struck out in the Federal Magistrates Court in Melbourne as Justice Cooper says?
MS OGAWA: Well, include the paragraphs which was struck out. I tender, your Honour, my submission to the Federal Court in relation to that…..when I turn up to the last hearing, so what is in the overlap can be clearly found in my – in the document which I already tendered to your Honour last time.
HIS HONOUR: Justice Cooper goes on to say:
She does not explain why she did not appeal the strike‑out or replead in her existing proceedings.
MS OGAWA: That is not correct, either. I request document which Registrar Reynolds exhibited, so I did not exhibit, clearly includes that – those information. So, registrar, from scratch, when filing my application knew all those facts and also when I requested to Order 80 I again made it clear. So, everything is in it. So, Cooper J’s allegation is clearly unsubstantiated, unfortunately. Why? Because Cooper J only referred to the registrar’s memo and I suspect registrar’s memo had that sort of description but that is not right. That is not correct.
HIS HONOUR: His Honour says:
To do so would be to ignore what happened in the Federal Magistrates Court in Melbourne as if it did not now exist. It is now clear that the applicant has filed the claim in this Court in the hope that she will not be wholly or partly struck out again . . .
Ms Ogawa is a postgraduate law student. She argued her recent visa appeal in the Full Court herself. She writes legal articles for publication. She has not disclosed whether or not she has means to obtain private representation and, if not, whether she has sought legal aid and the result of that application.
So, these ‑ ‑ ‑
MS OGAWA: Those informations are already provided to the court. I provided the detailed financial statement to obtain the fee waiver, including the Federal Court judgment.
HIS HONOUR: I understand what you say but these are matters relevant to a decision by a Federal Court judge as to whether you are deserving of a fresh pro bono order.
MS OGAWA: Yes.
HIS HONOUR: You say that this Court should reach a different view but if it is within the power of the Federal Court judge and he takes into account relevant matters then this Court would ‑ ‑ ‑
MS OGAWA: Irrelevant matters?
HIS HONOUR: ‑ ‑ ‑ this Court would not be sitting here to review a decision of a Federal Court judge on such a determination. It is just too small and particular.
MS OGAWA: Well, I came here because registrar’s memo is the one Cooper J decided and all those facts alleged in those are – must be based on the registrar’s memo because it is different from the fact and I already provided the facts when I requested in my letter, so, obviously Cooper J did not consider my request, did not consider the true facts and did not consider evidence. His Honour obviously based – reached the decision based on the registrar’s memo. The problem is, your Honour, registrar’s memo does not exist. I tendered evidence from the principal registrar’s letter. It says that “Reference to your memo” – “your memo” means registrar’s memo – “might have been made by error as no memo was prepared by the Deputy Registrar”. Is it not…..your Honour - Cooper J considered, based on the ‑ ‑ ‑
HIS HONOUR: It may be a reference by Justice Cooper to the fact that the Registrar has sent into the judge, with the file, a request as to whether she should accept the filing of your fresh application for pro bono assistance. That would not be unusual just to send the file into a judge and ask whether or not the file should be received for filing purposes in the Federal Court.
MS OGAWA: Well, if registrar can make a memo whatever she wants to write that is not the true fact, then present it to a judge, then judge cannot make a decision based on the registrar’s memo which is not really truth, then none of the litigant can go into the court as long as registrar does not want to allow the litigant can get into the court and, for this case, because of the long history of pro bono problem, registrar does not want me to go into the court.
It is the registrar from scratch who did not refer me to a pro bono panel in Victoria. That is why I did not have a pro bono lawyer. Well, Justice Hayne said everybody misunderstand. Everybody misunderstand on the transfer the – my pro bono referral seems to have….. That is a misunderstanding. That is what Justice Hayne said but whatever Justice Hayne said, Federal Court judges and Federal Court registrar believes that the Order 80 has already disappear and they do not want me to file anything in relation to Order 80.
HIS HONOUR: They do not say that, but they say Order 80 exists in the earlier proceedings, which is Q136, I think it is, not in the current proceedings which is QUD.
MS OGAWA: Well, if it is so, then I want to ask Order 80 referral. There is a case I think I tendered to your Honour - Paramasivam v Randwick City Council [2005] FCA 369.
HIS HONOUR: Yes, I have that.
MS OGAWA: The paragraphs I referred to in my affidavit, that said that in fact Sackville J ruled that registrar does not have a power to refer a case to a judge unless registrar form a requisite opinion. Requisite opinion is that a notice of motion on its face abuse of process or frivolous or vexatious. Well, if there is no Order 80, the new Order 80 should be considered then ‑ ‑ ‑
HIS HONOUR: Yes, but can I ask you this. Listen to me, please, listen to me. You originally made the application in the earlier proceedings. You were granted by Justice Weinberg the Order 80 direction.
MS OGAWA: Yes.
HIS HONOUR: But then, over your objection, the matter was remitted to the Federal Magistrates Court.
MS OGAWA: Yes.
HIS HONOUR: You then ultimately brought a new proceeding in the Federal Court which, at least on the face of things, appears to be an attempt to challenge the decision of the Federal Court to remit the matter to the Magistrates Court and having done that, it would be open to the Federal Court to take the view that you cannot, by making a fresh application for an Order 80 direction, effectively challenge a decision which was made by Justice Marshall to remit your proceedings to the Federal Magistrates Court.
MS OGAWA: Well, if that is the thought that the federal registrar formed, then my application should have not been filed, because that is the abuse of process. But the filing on application was – well, did not have problem – well, actually had a consideration, long time, but it is filed by the registrar under the direction of Justice Kiefel. The filing the same application which on its face appears to be the challenge of the former Federal Court decision is not abuse of process, but the seeking Order 80 referral looks – constitute abuse of process. It is most odd.
HIS HONOUR: Yes.
MS OGAWA: I filed affidavit evidence. I disclose all the matter when I filed the application and, in fact, it is registrar who suggested that why do you not file the same application in the Federal Court if you cannot maintain the proceeding in the Federal Magistrates Court. That was considered by Justice Kiefel, the same judge as who directed rejection of the filing on my notice of motion. Justice Kiefel formed the view, okay, this application should be filed. Then why application does not constitute abuse of process then, but filing the notice of motion seeking Order 80 constitute an abuse of process? It is inconsistent. Rather, should be other way round. So the reason is not that parallel proceedings, your Honour. The reason is registrar’s memo.
HIS HONOUR: Yes.
MS OGAWA: And registrar’s memo does not exist and obviously registrar’s memo contain lots of errors of fact. I want to correct it, but I could not because Registrar Philip Kellow informed me there is no such memo. Then what Justice Cooper considered? Obviously his Honour did not consider my request. My letter includes all information which Justice Cooper alleged that the information is not provided – not disclosed by me. That is not correct. All the information is disclosed. So, your Honour, this is a big problem. Implication is huge. Not this particular for my case. Registrar has an obligation to file the notice of motion if it is not on its face abuse of process or frivolous or vexatious. This notice of motion was not on its face an abuse of process or frivolous or vexatious. Technically that is the only issue in this case.
Registrar breached obligation to file my notice of motion. Of course I came here not just a technical reason. This is the highest Court of this country. I came here because the registrar said that she just followed the two judge, why it is wrong? I did not know the existence of the second judge, but the second judge simply relied on the first judge and the first judge decided not to allow pro bono referral for me based on the registrar’s memo.
The registrar’s memo must have contained numerous errors of fact, but I could not correct the errors before Cooper J, because I did not know the existence of the registrar’s memo before Cooper J made a decision. Cooper J only considered the registrar’s memo and decided that I should not have a pro bono lawyer, although this Court, Justice Hayne considered that I should have a pro bono lawyer.
No consideration was given by Justice Cooper to any evidence, of course, because I did not have an opportunity to give any evidence. I was not asked to provide any information and even when I wrote to the registrar, Justice Cooper’s reply was nothing was changed. One may wonder what was in the registrar’s memo? Is that not a natural question? Then I got an answer from the principal registrar. Memo does not exist. If this was the case, what did Cooper J consider when deciding to refuse my pro bono referral, your Honour? I wanted to ask a judge of the Federal Court to consider my request for a pro bono referral. There is a very good reason I came back to this Court and there is a very good reason that I need a pro bono lawyer.
If judge considers that based on the evidence, the conclusion must have been different. But I could not do that. Why? Because registrar made a memo and submit to a judge. Judge only considered and made a decision based on registrar’s memo. Even I know that now, the registrar’s memo contains lots of errors, I cannot correct because registrar’s memo does not exist. This is very strange case and I am sure quite a number of ‑ ‑ ‑
HIS HONOUR: Yes, I think you are now repeating yourself, Ms Ogawa. I think you are repeating yourself. You have said that now three times.
MS OGAWA: I am sorry, yes, might be so. This is not the first document that has been rejected by the registrar insofar as I am aware. All my documents ‑ ‑ ‑
HIS HONOUR: Well, this is the only document that I am dealing with and I do not need to and do not want to go into other documents unless they are relevant to this one.
MS OGAWA: Okay, right, okay, all right. But all other document rejected is related to Order 80 pro bono referral.
HIS HONOUR: Yes.
MS OGAWA: So there is a – well, do not say systematic, but there is a repeated practice. Same thing is happening.
HIS HONOUR: Yes.
MS OGAWA: When I try to – when I try to ‑ ‑ ‑
HIS HONOUR: I think you are repeating yourself now, so I do not think there is any need for you to do that.
MS OGAWA: Okay, yes.
HIS HONOUR: Now, Ms Interpreter, I understand that you have to leave the Court at 11.30 or thereabouts for the purpose of proceeding to another obligation.
THE INTERPRETER: Yes, your Honour.
HIS HONOUR: I think we have been able to manage quite effectively with Ms Ogawa in the English language and, therefore, when you have to leave you are excused.
THE INTERPRETER: Thank you very much, your Honour.
HIS HONOUR: You might just have a word with Ms Ogawa in case there is anything that she feels that she needs to say with an interpreter that she has not already said to me. Would you just ask her that now before you leave so that whilst you are here I have your assistance?
THE INTERPRETER: Yes. Ms Ogawa informs me that the main issue she has is in comprehending what the other side may submit.
HIS HONOUR: I see. Well, perhaps you can wait for as long as you can whilst Mr Porter addresses the Court and then quietly explain what he says if Ms Ogawa needs any help.
THE INTERPRETER: Yes, your Honour.
HIS HONOUR: And if she does need help I will ask Mr Porter to pause so that what he has said can be interpreted to Ms Ogawa.
THE INTERPRETER: Thank you.
HIS HONOUR: Yes, Mr Porter.
MR PORTER: Your Honour, there must be no problem about that because my instructions from the registrar were to appear in response to your Honour’s request in the transcript on the last occasion to be informed as to the reasons why the particular motion in question in this case was not accepted by the registrar. Deputy Registrar Reynolds’ affidavit deals with that. As your Honour may have inferred, there is a lot of different dealings going on between Ms Ogawa and various courts of the Commonwealth, but we tried to constrain ourselves to that which was relevant to today. Beyond that, your Honour, unless there is any matter in which you seek my particular assistance, I would have no submissions further to make.
HIS HONOUR: In relation to Justice Cooper’s memo which seems to be the key to the refusal of the deputy registrar to accept the application which is before this Court ‑ ‑ ‑
MR PORTER: Ultimately that is so, yes.
HIS HONOUR: ‑ ‑ ‑ you have heard Ms Ogawa today say that the reference there at the beginning, in the very first line, to a memo is incorrect because no memo exists. Could you help me on that? Does a memo exist?
MR PORTER: Yes, I can, your Honour. It is quite true. The reference by his Honour to a memo is incorrect in the sense of communicating that there is some substantial document prepared by Deputy Registrar Reynolds. That is incorrect. There is not any separate such document. What occurred is sworn to directly by Deputy Registrar Reynolds in her affidavit and it is at paragraphs 5 and 6, your Honour, of her affidavit.
HIS HONOUR: Yes.
MR PORTER: Shall I just leave your Honour to read that?
HIS HONOUR: Yes.
MR PORTER: And that is it, your Honour. So what went to Justice Cooper was ‑ ‑ ‑
HIS HONOUR: Can I explain what concerns me in the matter?
MR PORTER: Yes, your Honour.
HIS HONOUR: It is this, that Ms Ogawa originally made application in the Federal Court in proceedings which she had commenced in that court against the University of Melbourne framed under the Trade Practices Act and in contract. She applied to that court and Justice Weinberg gave a direction under Order 80, and she was the beneficiary of that direction. In the ordinary course she would have had pro bono assistance in that court for the purpose of getting her pleading into correct order.
MR PORTER: Yes, your Honour.
HIS HONOUR: But then the matter went before Justice Marshall for two reasons: first, for an order for security for costs which had been made by Melbourne University and that was ultimately rejected, but then his Honour took his own initiative and referred the matter down to the Federal Magistrates Court, which I have been informed by Ms Ogawa, results effectively in her loss of the Order 80 pro bono direction in the Federal Court, that the pro bono scheme is one peculiar to the Federal Court and therefore effectively transferring the matter to the Magistrates Court deprived her of the benefit of an order that would have advantaged her in the Federal Court and that since then she has been trying to get back to the Federal Court in order that she can either (a) enjoy the pro bono direction given by Justice Weinberg if it is still alive, as Justice Hayne seemed to think, or (b) get a new order in the new proceedings, the QUT proceedings, for assistance in those proceedings, but that these will not be accepted.
Now, what worries me is that this is a kind of catch‑22 situation that Ms Ogawa, having got the direction in the Federal Court, effectively then lost it by being remitted to the Magistrates Court and she says she cannot put her pleading into proper order without the assistance of a trained lawyer, not herself being legally qualified in this country and her first language not being English. Although she has sought to get the Order 80 direction renewed, the registrar will not accept her application for that purpose and the registrar has the directions from Justice Cooper twice and Justice Kiefel more recently.
So what concerns me is whether or not the refusal to accept the application for a fresh order in the new proceedings commenced in the Federal Court is based upon incorrect or misunderstood or insufficiently examined factual premises, as indicated in the memo of Justice Cooper of 20 December which Ms Ogawa contests.
Now, that is a long question, but it outlines where I currently stand in understanding the matter and anything that you can say by reference to the affidavit of Deputy Registrar Reynolds, or the affidavit of Ms Ogawa, will be of assistance to me and I will be grateful for it.
MR PORTER: Your Honour, I think that rather turns on – the significance of what your Honour has put to me turns, I think, a great deal on whether the referral made by Justice Weinberg had in fact been given effect to.
HIS HONOUR: There is no doubt that Justice Weinberg did make a direction under Order 80, is there?
MR PORTER: There is not, your Honour. His Honour did make such a direction and the significance, I think ‑ ‑ ‑
HIS HONOUR: And since then Ms Ogawa has been trying to get the benefit of that direction either in the Federal Court or in the Federal Magistrates Court, but she has not been able to do so.
MR PORTER: Your Honour, that second part of the proposition your Honour put to me is a little difficult for me to deal with strictly according to Hoyle for this reason. Can I start from my proposition that what your Honour puts to me is particularly significant if Justice Weinberg’s direction has not been given effect to. I am aware that there is material touching on that matter which has not been put before your Honour today and, frankly, because it did not seem sufficiently relevant to the particular issue arising today, but there is material dealing with that.
HIS HONOUR: Can I say to you, Mr Porter, that it would be an easy thing for me in the High Court of Australia to say we just do not want to get involved in this matter because it is a very particular matter in the registry of the Federal Court and judges of the Federal Court have examined it and, as a matter of discretion, the High Court of Australia would never get involved in a matter like this.
MR PORTER: Yes, your Honour.
HIS HONOUR: That is a relatively simple way to dispose of this application for mandamus. But looking beyond that slightly superficial way to deal with the problem and looking at the substance of the problem from what I have before me, I am just concerned that on the face of the material I presently have, Ms Ogawa had the benefit of the direction under Order 80 and then the matter was, against her wish and I understand against the wish of the University of Melbourne, remitted to the Magistrates Court and then she loses the benefit of that order.
MR PORTER: Yes.
HIS HONOUR: Now, if there is something that throws light on that fact, well, maybe I should have that, but at the moment it looks as if she had the order, she has lost it, she needs it, she wants it and she is trying to get back to where she was when she enjoyed the order from Justice Weinberg.
MR PORTER: Yes. Well, your Honour, looking at it from that substantive point of view, all I can say is that I do have instructions about that. It has not been put in material before your Honour today because there are a great number of things which could be tangentially relevant to this. I accept what your Honour says that when one looks at the substance of it, that is important.
All I can say for the purpose of today is that I have instructions about it. My instructions are to the effect that effect was attempted to be given to that direction. A couple of people were appointed and ultimately the registrar took the view that – I will not say any more about it without it being in material, that those appointments and the things that subsequently followed resulted in that referral being completed and discharged.
HIS HONOUR: Well, if it was completed and discharged, that would be very relevant to the substance of Ms Ogawa’s claim that she has been the beneficiary of a direction under Order 80 and has somehow lost it because it was sent back to the Magistrates Court.
MR PORTER: Yes.
HIS HONOUR: So I think I may need, or the decision‑maker may need this.
MR PORTER: Yes.
HIS HONOUR: Now, I have just been reading the decision of Justice Sackville in the case of Paramasivam v Randwick City Council.
MR PORTER: Yes.
HIS HONOUR: I think you have a copy of that decision.
MR PORTER: I do, your Honour.
HIS HONOUR: And you will see that Justice Sackville refers to various legal authorities including authorities of Justice Millett, now Lord Millett, in England, about the rather strict position in law of the right of a litigant to have process received in a court of law. I am referring to the quotation from Seven Network Ltd v News Ltd which is on page 11 of Justice Sackville’s reasons and his reference to the formulation of the principle by Justice Millett in Lonrho Plc v Fayed (No 2) and it states there:
A plaintiff is entitled to pursue a claim in these courts however implausible and however improbable his chances of success. Unless the defendant can demonstrate shortly and conclusively that the plaintiff’s claim is bound to fail or is otherwise objectionable as an abuse of process of the court, it must be allowed to proceed to trial.
Now, that is a principle which I have always understood to be the principle governing registrars of courts in this country and I am sure that it would be the approach that Deputy Registrar Reynolds would certainly ordinarily take to an application to file process. But it does mean that if process is tendered, there are only rare and clear cases where it should not be allowed to get before a judge.
Now, the question is whether Justice Cooper, and perhaps Justice Kiefel applying what Justice Cooper said, have not been sufficiently attentive to that principle. It may be that when it gets before the judge the judge will throw it out on its merits, but stopping a person from getting before a judge is something that can only happen in the rare circumstances that Justice Millett has expressed and which I understand to be the correct law.
MR PORTER: Yes.
HIS HONOUR: So that is where I stand at the moment. I am just left in a state of doubt that the memorandum from Justice Cooper is entirely factually accurate or complete, or whether there is not something that is missing from the data that brings the case up to the very strict principle which is expressed in the Seven Network Case which Justice Sackville applied.
MR PORTER: Yes. Your Honour, my instructions are to set out the position but I think it is appropriate for me to try to assist you in this way. It seems to me that technically the question does not really involve Justice Cooper’s decision, focusing for the moment on what is sought, which is a mandamus directed to the registrar to accept the particular motion.
HIS HONOUR: Exactly.
MR PORTER: The reason I make that submission is that the registrar provided the document to Justice Kiefel, this is following the Justice Cooper process. Justice Kiefel gave the registrar a direction and under the rules, when a judge gives a direction a registrar is required to comply with it and I refer to the specific rules in my outline in the Federal Court Rules, your Honour. So, if the question before the Court is a question of ‑ ‑ ‑
HIS HONOUR: But Justice Kiefel appears to have relied on the memorandum from Justice Cooper. Is that not correct?
MR PORTER: Yes.
HIS HONOUR: In her Honour’s direction to the registrar she referred to what Justice Cooper had said – I am referring to what is exhibit CR13 to the affidavit of Deputy District Registrar Reynolds and that says:
The matter has been raised and argued before Cooper J who determined that an authorisation for pro bono assistance was not appropriate.
Now, is that strictly correct? Was it argued before Justice Cooper?
MR PORTER: Your Honour, I can only speculate as to what her Honour meant but being aware of what is in the affidavit material, what I infer her Honour was referring to was not to actually the fixing of a hearing as such, but to the fact that Ms Ogawa sent a letter into the registry, Justice Cooper made a ruling and then Ms Ogawa put in further material which Justice Cooper considered and did not change his ruling. That is the only material I can direct your Honour to which I think would inform someone making the observation her Honour makes that your Honour has just referred to.
HIS HONOUR: Mr Porter, this is an application to the High Court of Australia and you would appreciate, and I am sure Ms Ogawa does, that we are all pretty busy.
MR PORTER: Very much so, your Honour.
HIS HONOUR: Originally it seemed to me that, burdensome though it was, we had to assume the responsibility of deciding the application first because it was before the High Court and second, because it could be embarrassing to the Federal Court to have to sort out the matter which would touch upon whether judges of that court had misunderstood the facts and got the facts wrong.
MR PORTER: Yes, your Honour.
HIS HONOUR: However, when I read Justice Sackville’s reasons in Paramasivam v Randwick City Council, you will be aware that his Honour was effectively reconsidering what earlier the registrar and Justice Jacobson of the Federal Court had done.
MR PORTER: I am aware of that, your Honour.
HIS HONOUR: I wonder whether the efficient thing for me to do, if it is a course that is available to me, is to remit the matter to the Federal Court so that the facts can be sorted out and consideration given to Ms Ogawa’s application for mandamus and then, if that still leaves her discontented and does not lead to the matter being resolved, it can then come up to the High Court in a more appropriate vehicle with an application for special leave to appeal after the facts have been fully found and the matter has been explored in the Federal Court where, in a sense, it properly belongs to sort out the correctness of what has been happening in the Registry of the Federal Court. Do you have any submissions as to whether that would be an inappropriate or appropriate course for me to take, because that is what I am presently minded to do having read Justice Sackville’s reason in Paramasivam?
MR PORTER: Your Honour, may I just take some instructions.
HIS HONOUR: Certainly.
MS OGAWA: Your Honour, during that moment can I submit one thing?
HIS HONOUR: Just a moment. Sit down please.
MR PORTER: Your Honour, the registrar is conscious that your Honour has expressed some concerns that this is not a particularly good vehicle for resolving those sorts of matters. If your Honour was minded to take the course your Honour has proposed obviously the district registrar will not object to it and it seems to me that if your Honour has concerns about the matter, the matter is better heard in what is more ordinarily a trial court than your Honour’s Court.
HIS HONOUR: Well, you tell me that there are factual materials that are not before me now and the question I have to face, having had this matter before me now three times, is whether I stand it over for a fourth time to get the factual material so that the facts can be fully and properly determined or whether the course that is more appropriate is for me to remit the cause to the Federal Court for the purpose of determining the application which Ms Ogawa has made to this Court.
I think it is probably a better use of the time of this Court and, in a sense, more seemly, that the matter should in the first instance be dealt with in the Federal Court and then, if need be, if issues of principle are raised, then it can be reviewed in this Court in the normal way by way of appeal process, not by me trying to sort out the facts for myself dribs and drabs.
MR PORTER: Your Honour, I think, and I think the district registrar agrees that it is probably the best course to remit it. It is probably indisputable that it is a more efficient use of your Honour’s Court’s time and I think it is also a case which is, in my respectful submission, uniquely appropriate to be considered by the Federal Court. I think a particular reason for that is this, your Honour. I sought to persuade your Honour that what may or may not have occurred with respect to Justice Cooper and indeed Justice Kiefel is irrelevant to the issue that is raised by the notice to show cause on the basis that the question is, was the district registrar’s decision to reject the motion, that is the question, was that lawful and if the district registrar acted in accordance with a direction under the judge in respect of the rule, then it is lawful. But, your Honour has drawn attention to Paramasivam which does raise the question about what on the face of a document means and that in particular is something which I think the Federal Court in particular needs to sort out.
HIS HONOUR: I will hear what Ms Ogawa has to say about it. Would you have a look at the provisions of the Judiciary Act which authorise me to remit the matter to the Federal Court and when I come back to you I would be grateful if you could tell me the powers that I have in that respect and confirm that I have such powers to remit this matter to the Federal Court for the facts to be found and the law to be applied by that court rather than, in the first instance, by this Court.
MR PORTER: Yes.
HIS HONOUR: Thank you, Mr Porter. Ms Ogawa, you have heard what I have been saying to Mr Porter and the course that I am considering. What do you wish to say about that?
MS OGAWA: I think I understand what your Honour said and I think that is probably, in the normal circumstances, the best course for me as well, but for this particular case, your Honour, I have to draw your Honour’s attention to two points. If the matter is remitted back to the Federal Court it is likely to go to the same judge as already make some sort – already formed some sort of pre-determination.
HIS HONOUR: I would not think that would happen. In the normal course it would go to a judge who has had no connection with the case whatsoever, just as in Paramasivam the matter went to Justice Sackville and not back to Justice Jacobson, so I do not think you need be concerned about that because if it did go to the same judge, that would raise issues of procedural fairness which I am sure the Federal Court would wish to avoid so you need not worry about that.
MS OGAWA: If so, perhaps there is nothing that I will say but there is no possibility of special leave for me because I do not have money and the High Court now change the rule and requires the fees so if the matter is remitted back to the Federal Court the matter will never come back unless the other side bring it, but this is ex parte application, only I am the applicant so matter cannot come back to this Court so I have to ask your Honour to take it into consideration.
HIS HONOUR: I am sure there must be procedures under the Rules of this Court for people who have no funds whatever to bring matters to the Court. I would certainly hope that that is so.
MS OGAWA: No, actually from 1 July this year, only a month ago, High Court regulation is changed. Unless even I get fee waiver, fee is just reduced to a third of normal and not whole fee can be waived so I cannot come back to the High Court.
HIS HONOUR: That matter lies in the future. In the meantime, we have to decide what has to be done. Mr Porter has said there is information known to him and in his instructions that is not before me and rather than bring the matter back for a fourth time to the High Court, I am minded to send the matter to the Federal Court so that the facts can be found and the law applied on your application in the first instance by that court. Now, Mr ‑ ‑ ‑
MS OGAWA: Yes, I can understand and as long as your Honour take into account that my possibility that I come back to this Court is almost nil then ‑ ‑ ‑
HIS HONOUR: Well, I take that into account, but I do not accept that it is impossible for people who have no funds to come to the High Court and I will make inquiries about that because even in Victorian England people who were paupers could bring cases to the courts and I would certainly hope that that is still so in this country.
MS OGAWA: Well, as long as your Honour take into consideration I do not have any particular objection.
HIS HONOUR: Mr Porter, is it section 40(2) of the Judiciary Act?
MR PORTER: Your Honour, I think it is section 44(1) actually, but is not 40(2), and I hesitate to differ with your Honour about this ‑ ‑ ‑
HIS HONOUR: I am only asking your assistance.
MR PORTER: I thought section 40 dealt with matters arising under the Constitution specifically and 44(1) ‑ ‑ ‑
HIS HONOUR: Yes, just let me read that section. Yes, why is it not section 44(2)?
MR PORTER: I think it probably is, your Honour, if this matter is picked up by 38(a), (b), (c) or (d).
HIS HONOUR: Let us have a look at that.
MR PORTER: Section 38(e) I think, your Honour.
HIS HONOUR: It is certainly 38(e).
MR PORTER: Yes, quite so.
HIS HONOUR: And that is not referred to in 44(2) but that then takes us back to 44(1) ‑ ‑ ‑
MR PORTER: And the Federal Court certainly has jurisdiction under 39B, of course, your Honour.
HIS HONOUR: That is right. Yes, well in view of the fact that you have no submission to make contrary to the remittal of the matter by this Court to the Federal Court of Australia and in view of the fact that Ms Ogawa makes no submission contrary to that course, although she asks me to keep in mind the difficulty that she may later face if the position arises in bringing the matter back to this Court, I am minded to remit the matter under section 44(1) of the Judiciary Act 1903 (Cth) to the Federal Court in order that the further proceedings in the matter shall be as directed by the Federal Court of Australia.
The reasons for taking that course sufficiently appear in the transcript of today’s hearing. They include the fact that it is disclosed on this, the third listing of the matter in the High Court, that there is additional factual material which the registrar would wish to place before the Court before it reached a decision on the application by the applicant for mandamus.
In these circumstances, rather than bringing the matter back for a fourth time to this Court, it is appropriate and more efficient that the matter be remitted to the Federal Court so that the facts may be found and the relevant law applied to the application of the applicant by that court in the first instance. That would leave any further consideration of the matter by this Court to the appellate process if that were deemed necessary.
MR PORTER: Your Honour, may I mention one thing of a housekeeping nature that might need to be dealt with specifically.
HIS HONOUR: Yes.
MR PORTER: This matter is before your Honour because, as you might recall, your Honour, it began as an ex parte application for leave to issue a proceeding.
HIS HONOUR: It did.
MR PORTER: Your Honour, I wonder if it is desirable to at least make clear that, as I infer, your Honour is providing, that at least the leave exist to issue the proceeding because otherwise, when it comes back before the Federal Court there may be a debate about whether it is further hearing of the leave to issue application or a hearing of the underlying application. In any event, I think it might need to be dealt with one way or the other.
HIS HONOUR: Yes. Do you have any comment or objection to that course, Ms Ogawa? I think it is one that protects you, that is to say, that I give leave to issue the proceedings so that it is those proceedings which by that leave is issued that is then remitted to the Federal Court.
MS OGAWA: Yes, well, I do not understand, so if the Court pleases.
HIS HONOUR: I will explain it to you. The matter that is before me is formally an application for leave to issue proceedings. That was necessary because Justice Callinan ordered that, without leave of a Justice, the proceedings should not proceed in the High Court. Therefore, in order to have proceedings in the High Court susceptible to be remitted to the Federal Court, it is necessary for me to give leave for the issue of the proceedings. Mr Porter has very correctly drawn that need to my attention. I am therefore minded to give such leave so that the proceedings may be issued in this Court, but then they will be immediately remitted to the Federal Court to be heard and determined in that court. The facts will then be found and the law will be applied. You might win or you might lose. But in the first instance it will be dealt with in the Federal Court.
MS OGAWA: Yes, I understand.
HIS HONOUR: So you ask me to give that leave.
MS OGAWA: Yes, your Honour.
HIS HONOUR: I give leave for the issue of the applicant’s proceedings in this Court. I order that such proceedings be remitted immediately to the Federal Court of Australia in accordance with section 44(1) of the Judiciary Act 1903 (Cth).
Mr Porter, I think I should say to you that the High Court has said on a number of occasions that normally courts and tribunals should submit to the orders of the High Court. However, this was an instance, as it seemed to me, where it was appropriate and certainly helpful to this Court, for the registrar of the Federal Court of Australia to attend in order to provide materials and to provide the assistance that you have been giving me. Accordingly, I would want to make it clear that I have appreciated the assistance that I have received from the Federal Court and specifically from the deputy district registrar. I am sure that a way will be found within the Federal Court itself, as was done in the case of Paramasivam, for that assistance to be continued to the judge of the Federal Court who will now hear the matter by remittal from this Court.
MR PORTER: Yes, thank you, your Honour.
HIS HONOUR: As to costs, what, if anything do you ask me to do in this Court, Mr Porter?
MR PORTER: Your Honour, perhaps the best course is just to reserve them and make that part of the remitter.
HIS HONOUR: Very well. Do you have any objection to that course, Ms Ogawa?
MS OGAWA: Well, how about no order as to costs.
HIS HONOUR: No, it is appropriate to provide for costs.
MS OGAWA: Each party bear own costs, how about this?
HIS HONOUR: No, I think it is appropriate to simply make the order of remittal reserving to the Federal Court of Australia the disposition of the costs of the proceedings in this Court of today. There would be no costs of the earlier proceedings because, in those proceedings, Ms Ogawa appeared on her own. This does not mean that the costs will be ordered against Ms Ogawa. It simply means that I am not determining those costs today but remitting them to the Federal Court.
MS OGAWA: Thank you, your Honour.
HIS HONOUR: Very well. The orders which I have just made are the orders of this Court. The Court will now adjourn until midday when Justice Gummow will be sitting.
AT 11.58 AM THE MATTER WAS CONCLUDED
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