Ogawa, An application by

[2005] HCATrans 460

[2005] HCATrans 460

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 FRIDAY, 29 JULY 2005, AT 12.27 PM

(Continued from 28/7/05)

Copyright in the High Court of Australia

HIS HONOUR:   Ms Ogawa, I am sorry that you were kept waiting for so long but there was an earlier proceeding in this Court and I did not have access to the courtroom so that is the reason that it has taken a time to come to your case this morning.

MS OGAWA:   Yes, your Honour.

HIS HONOUR:   Now, I received this morning through the Registry an affidavit sworn by you dated 29 July 2005 which annexed three documents.

MS OGAWA:   Yes.

HIS HONOUR:   The first document was the report of a listing in the Federal Court before Justice Weinberg dated 17 December 2003.

MS OGAWA:   Yes.

HIS HONOUR:   The second document was a transcript of proceedings before Justice Marshall dated 2 February 2004.

MS OGAWA:   Yes.

HIS HONOUR:   The third document is a transcript before Justice Marshall of 4 May 2004.  So they are the documents you have placed before me.

MS OGAWA:   Yes. 

HIS HONOUR:   I notice that in your application to the Federal Court, the one that was refused, that carries a document reference number which is different, file number – court file number which is different from the court file number in the matter in which Justice Weinberg granted the direction for pro bono assistance.  Justice Weinberg made that order according to the document in your affidavit of yesterday in Federal Court proceeding No Q136 of 2003.

That is also the proceeding in the matters before Justice Marshall in the annexures to the affidavit of 29 July, so that all of those documents bear the court file reference Q136 of 2003, but in the submissions which you have filed in the Federal Court which you handed up to me yesterday they bear the reference QUD245 of 2004 and the application which you made to the Federal Court, which was rejected for filing and which is the subject of these proceedings, bore that file reference, that is to say, QUD245 of 2004.  So it is not at all clear to me, on the evidence, what relevance it is that in Q136 of 2003 Justice Weinberg made a direction that you be granted pro bono assistance whereas your proceedings in the Federal Court appear to be QUD245 of 2004.

MS OGAWA:   Yes.  Those two proceedings are the same proceedings concurrently on parallel currently before the Court.  To resolve the parallel there was a proceeding that in order to resolve the parallel I made a submission which I handed up to your Honour yesterday.

HIS HONOUR:   That is true but you know all these things but I do not know these things and I cannot act on material that is not before me in evidence, that is to say, in an affidavit, that explains the matters that you are just now saying. 

MS OGAWA:   Yes.

HIS HONOUR:   The relevance of this is that the actual direction given by Justice Weinberg was that you be given pro bono assistance pursuant to Order 80 up to and including trial.  Now, on the face of the document that would mean up to and including trial in Q136 of 2003, not up to and including trial in QUD245 of 2004.

MS OGAWA:   QUD136 of 2003 does not go to trial because that has already disappeared.  Why - because that the Justice Marshall order the transfer, so there is no QUD – Q136 of 2003.  It is transferred to the Federal Magistrate Court where there is no pro bono assistance.  Because of that I bring the proceedings back to the Federal Court.  That is QUD245 of 2004.  In that matter I seek that – I want to seek the Order 80 referral which I have.

HIS HONOUR:   That ‑ ‑ ‑

MS OGAWA:   Justice Weinberg’s order is stick to me, not stick to Q136 of 2003.  That is the decision – well, not the decision but that is what Justice Hayne explained in this Court, so Order 80 is stick to me and the matter and not that case - now case filed.

HIS HONOUR:   You say Justice Hayne decided that in this Court.  I do not know of Justice Hayne’s decision.

MS OGAWA:   Well, did not decide, mentioned it, explained that everybody misunderstood that the Order 80 disappeared upon the transfer, however Order 80 was made for me and for the matter and so the matter has not been heard so the Order 80 is still in effect.  That is what his Honour said.

HIS HONOUR:   Well, you say that, but you have not put Justice Hayne’s decision before me.  I mean, I have to say to you I am a very busy person ‑ ‑ ‑

MS OGAWA:   Yes, I ‑ ‑ ‑

HIS HONOUR:    ‑ ‑ ‑ and I am having to decide this matter without proper assistance and I do not know anything about what Justice Hayne has said and you have not drawn that to my attention.

MS OGAWA:   Well, but your Honour only considers that the notice of motion in QUD245 of 04 should be filed or not.

HIS HONOUR:   That is true but I have to decide that against a background that some direction was given in Q136 of 2003 by Justice Weinberg.

MS OGAWA:   Yes.

HIS HONOUR:   And you tell me that something that Justice Hayne in this Court has said is relevant to the continuance of that direction in matter No 245 of 2004.  Now, I do not know that and it has not been put before me and I have not got it.

MS OGAWA:   It is not in the judgment.  In the proceedings his Honour just mentioned it so it is not the…..Court order.  If it is Court order probably I did not have a problem but it is not the Court order.  Justice Hayne mentioned it.

HIS HONOUR:   When you presented your document in matter QUD245 of 2004 to the Federal Court Registry did the registrar give any reason for refusing in that matter to receive the filing of the document?

MS OGAWA:   I cannot recollect so yesterday I asked the registrar.  The registrar does not have any recollection either so the document was just not filed.

HIS HONOUR:   Well, it was just not filed but why was it not filed?  Why was it not received by the registrar of the Federal Court?

MS OGAWA:   Because in my understanding this case has a long history and as soon as ‑ ‑ ‑

HIS HONOUR:   I know it has a long history.  I know it has a long – but you see, I am left in a position where I have to try to guess.  One possibility is that the Federal Court registrar took the view that it is a waste of the Court’s time for you to apply for pro bono legal assistance because you already have a direction from a judge of the Federal Court that orders that and therefore it is a waste of time.  If it is futile and a waste of time an order for mandamus will not issue out of this Court.

Another possible interpretation is that your application for a pro bono assistance in QUD245 of 2004 is just another way of trying to dispute the decision of the registrar, or rather of Justice Marshall, to refer Q136 of 2003 to the Federal Magistrates Court.

MS OGAWA:   Yes.  But there is no pro bono in Federal Magistrate Court so that is why I am in strife for more than a year.  I have not been represented for more than a year.  When Justice Marshall ordered the transfer that is the end of the story.

HIS HONOUR:   When did Justice Marshall order the transfer to the Federal Magistrates Court?

MS OGAWA:   That is 4 May.  Annexure – annex No 3 is the transcript of that.  On page 2, line 20 his Honour started:

There is an outstanding pro bono referral which would mean that if the matter proceeded further in this Court - and indeed, I think, even if it was transferred - Registrar Connard would have the same responsibility, that is, to as soon as possible seek to find pro bono counsel to assist you in the next step.

At the end his Honour also confirmed on page – from last line of page 5:

I will have my associate inform Registrar Connard as to this order - he is also a registrar of the Federal Magistrates Court - and have her let him know that it’s my wish that he expedite pro bono counsel for Ms Ogawa with a view to advising her on whether the existing statement of claim needs further amendment.

So ‑ ‑ ‑

HIS HONOUR:   Do you say that the pro bono assistance scheme is not available in the Federal Magistrates Court?

MS OGAWA:   No, Federal Magistrates Court generally does not provide a pro bono in the matter other than migration or human rights.

HIS HONOUR:   Do they have ‑ ‑ ‑

MS OGAWA:   It just is not ‑ ‑ ‑

HIS HONOUR:   Do they have rules or a rule similar to Order 80?

MS OGAWA:   Yes, but there is no agreement between Federal Magistrate Court to Queensland legal profession.  So in the Federal Magistrates Rules there is a rule but the rule is just a nominal rule, it does not – it cannot be applicable to my case.

HIS HONOUR:   The problem I have is that (a) I have not seen Justice Hayne’s decision or transcript or anything that his Honour has said.  You are now referring to it as raising a matter that is relevant, and (b) as far as I am aware, on the face of the document, the direction given by Justice Weinberg that you be given pro bono assistance was in an earlier proceeding which by order of the Federal Court was referred to the Federal Magistrates Court.

MS OGAWA:   Yes.

HIS HONOUR:   And then, somehow, you seem to have begun another proceeding which appears to challenge that reference to the Federal Magistrates Court.

MS OGAWA:   Yes.

HIS HONOUR:   And you have come back to the Federal Court and sought to reagitate the matter in that court and now to seek another fresh order under Order 80 rule 4 and that leads ‑ ‑ ‑

MS OGAWA:   Because to explain - to defend the respondent’s notice of motion, properly explain to the Court that why the Federal Court proceedings should go ahead I wanted to take advice.

HIS HONOUR:   You wanted to what?

MS OGAWA:   Take advice to properly explain to the court why the matter has to be in the Federal Court not in the Federal Magistrate Court.

HIS HONOUR:   I understand that, but that presents two problems.

MS OGAWA:   Yes.

HIS HONOUR:   Problem No 1 is, if you are entitled to commence again in the Federal Court, on the view that Justice Hayne has given there is already an order for pro bono assistance in that court and, therefore, to make an order again would be futile and if it is futile you are not entitled to mandamus because there is no duty in a public official to do things that are futile or unnecessary.

MS OGAWA:   …..

HIS HONOUR:   Secondly, if that is not a correct view then your application in the Federal Court is simply an attempt to challenge the decision of Justice Marshall and to refer the matter to the Magistrates Court and there is no way that the High Court of Australia is going to grant mandamus to permit you to challenge that order in an indirect fashion in this Court.  We are not going to get involved in matters of that kind.  They are purely procedural matters of lower courts.  This is the final court of this country.

I am sure it would be the same with the final court in Japan.  They would not get involved in procedural matters of whether a case should go in the level two or level one court.  That would be a matter for those courts to sort out.

MS OGAWA:   Yes, but the transferring – my notice of motion is not to transfer the proceeding.  My notice of motion is just to seek the Order 80 referral.

HIS HONOUR:   I realise that but I have tried to explain to you that on either way you look at it that presents problems.  If you already have an order under Order 80 in the Federal Court there is no need for another one, but if you need another one then getting the other one is simply ancillary to an attempt to refuse to accept the decision of Justice Marshall transferring the matter to the Federal Magistrates Court from the Federal Court.

MS OGAWA:   Well, it is not a matter of accept or not accept.  Justice Marshall said that the pro bono assistance is available in the Federal Magistrate Court.  In effect – in that sense that is what his order – his order says on the transfer but in fact it did not happen.

HIS HONOUR:   It may not have happened but that is not something that I am concerned with because I am only addressing a document which was attempted to be filed in the Federal Court.

MS OGAWA:   Yes.

HIS HONOUR:   Do you have a copy of Justice Hayne’s transcript?

MS OGAWA:   No, not here, but Justice Hayne’s understanding is not everybody else’s understanding.  That is why I have not had pro bono referral.

HIS HONOUR:   That may be so but I am sitting in the High Court of Australia.  Justice Hayne is a Justice of the High Court of Australia and it would be normal for a Justice of the High Court of Australia to pay respect to a colleague and see what the colleague has said, if anything, that is relevant to a matter that is now returned before me.

MS OGAWA:   Yes.

HIS HONOUR:   I think I had better have a look at what Justice Hayne said on the transcript of the proceedings before him.

MS OGAWA:   Yes.

HIS HONOUR:   You have no objection to my doing that, I assume?

MS OGAWA:   No, I do not have any objection.

HIS HONOUR:   And then I will decide whether or not I can determine this matter on the evidence that you have placed before me.  If I consider I can, then I will either grant the order nisi or I will give reasons why I do not grant the order nisi.

MS OGAWA:   Yes.

HIS HONOUR:   Or, if I consider that I am uncertain and would be assisted by any assistance or submissions on behalf of the Registrar of the Federal Court then I will direct that the Federal Court Registrar be notified so that on some future day he or she or a representative for the registrar of the Federal Court can come before this Court and explain the reasons for the refusal of your application.  At the moment I am left in a state where I have to guess what those reasons are.

MS OGAWA:   I am sorry about that.

HIS HONOUR:   I will simply reserve my decision at this stage and I will look at the decision or the transcript before Justice Hayne.  I will then either give a direction for this matter to be re‑listed with notice to the respondents or I will list the matter for the purpose of announcing my decision and if the decision is to reject the application, to give reasons for that course.  If the decision is to accept the application, then reasons would not normally be given; the Court would simply issue the order nisi for the writ of mandamus.  Do you follow?

MS OGAWA:   Yes.

HIS HONOUR:   The Court will now adjourn and you will be notified in due course of the further listing of this matter, either for decision or for further argument.  The Court will adjourn.

MS OGAWA:   Thank you very much.

AT 12.48 PM THE MATTER WAS ADJOURNED