Ogawa, An application by

[2005] HCATrans 457

[2005] HCATrans 457

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 THURSDAY, 28 JULY 2005, AT 9.32 AM

Copyright in the High Court of Australia

MS M. OGAWA appeared in person.

HIS HONOUR:   Ms Ogawa, you are in Brisbane this morning I understand; is that correct?

MS OGAWA:   Yes, good morning, your Honour.

HIS HONOUR:   You do not have an interpreter but I understand that you may be able to proceed with the application without an interpreter; is that correct?

MS OGAWA:   Yes, I think so.

HIS HONOUR:   Yes.  Well, we will just take it slowly and if you have any problems we will deal with that difficulty when it arises.  Now, you are the application for leave to issue a proceeding?

MS OGAWA:   Yes.

HIS HONOUR:   That arises because Justice Callinan made an order under rule 6.07 of the High Court Rules that your process in this Court not be issued without the leave of a Justice and so the matter has been referred to me and you are asking that I exercise the leave of the Court to permit you to bring the proceedings.  Is that correct?

MS OGAWA:   Yes.

HIS HONOUR:   Very well.

MS OGAWA:   What happened is, your Honour, there is a long history behind the process which I am seeking to issue.  I first came to Australia as a…..scholar to undertake research in copyright law for a PhD at the University of Queensland on 21 November 1999.  In my first three years of study I published five articles in…..journals in Australia and Japan and won an award from the University of Queensland and a research grant from a Japanese foundation and was appointed an editorial contributor of an Australian journal and a research fellow of a Japanese University.

On 21 November 2001 I transferred to the University of Melbourne which provided me with a scholarship for living expenses and another scholarship for fee remission.  I decided to transfer since amongst others the University of Melbourne was famous in my research area and the University of Melbourne promised me to provide me with a supervisor in the area of my research, but I had a dispute with the University of Melbourne.

My first supervisor, Associate Professor Megan Richardson, repeatedly told me to go back to Japan and when I objected to her statement she withdrew as my supervisor.  After the withdrawal of Associate Professor Megan Richardson I did not have another supervisor for three months, but the next supervisor, Professor Sam Ricketson, compelled me to have an unusual form of supervision meeting and I made a complaint about his discretionary ‑ ‑ ‑

HIS HONOUR:   Can I just interrupt you at this stage ‑ ‑ ‑

MS OGAWA:   Sorry.

HIS HONOUR:   ‑ ‑ ‑ because whilst it is relevant for me to know a little bit about the background, I am not here today to deal with all of the issues in the case.  The only issue I am asked to deal with is the issue of whether you should have leave to file the proceedings in this Court.

MS OGAWA:   File the – issue the proceedings.  This proceeding is that order nisi or show cause application to file my notice of motion in the proceeding in the Federal Court.  In the notice of motion I seek pro bono assistance which I believe I am entitled to.

HIS HONOUR:   I know that.  I have read that ‑ ‑ ‑

MS OGAWA:   Yes.

HIS HONOUR:   ‑ ‑ ‑ but what is left out, I have no affidavit or indication of what happened when you presented your document to the Federal Court.

MS OGAWA:   Federal Court simply ‑ ‑ ‑

HIS HONOUR:   Under Order 80 of the Federal Court Rules there is provision, which is quite unusual, made for the court to appoint or to refer out to legal assistance.  You have to make that application, as I read Order 80 rule 4, to the court or a judge of the Federal Court and:

The Court or a Judge may, if it is in the interests of the administration of justice, refer a litigant to the Registrar for referral to a legal practitioner on the Pro Bono Panel for legal assistance. 

Now, your application to the Federal Court does not seem to have followed that course.  Your application is dated 7 March 2005; is that correct?

MS OGAWA:   I think so.  Yes, your Honour.

HIS HONOUR:   The application is that the applicant be granted pro bono assistance up to and including trial.

MS OGAWA:   Yes.

HIS HONOUR:   Now, strictly speaking, the application should be for a judge to refer you to the registrar for referral to a legal practitioner on the Pro Bono Panel, but as you are not legally represented I would expect that that mistake would be fixed up within the registry, but I have no information whatever, none at all, as to what happened when you presented this document of 7 March to the registrar of the Federal Court in Brisbane.  There is no basis at all.

MS OGAWA:   Simply did not accept for filing.

HIS HONOUR:   That was presumably on the basis that it was not in correct form because you are asking for a grant of pro bono assistance and the correct procedure, as I have explained to you, in Order 80 rule 4 is if the court considers that it is in the interests of the administration of justice to refer you to a registrar for referral to a legal practitioner, and that is the way you should go about it.

MS OGAWA:   Well, unfortunately that is irrelevant for the reason when the registrar refused this motion for filing and the order I sought in my notice of motion ‑ ‑ ‑

HIS HONOUR:   Can I just say again I think if that is the only reason that the registrar should, you being unrepresented, have endeavoured to get you to bring the motion into proper form, but at least on the face of the document the notice of motion is not in a proper form and you are coming to the highest court in this country and it would not, I think, be appropriate for this Court to be fixing up retrospectively the form of your application because the application is asking to be granted pro bono assistance whereas what you have to do is ask that you be referred to the registrar for referral to a legal practitioner.  It is all set out in Order 80 which you refer to in paragraph 1 of your notice of motion.

MS OGAWA:   Well, your Honour, the term I sought the order in my notice of motion is the exact term which Justice Weinberg once made an Order 80 referral for me in the proceedings.

HIS HONOUR: Yes, but that is because he is a judge of the Federal Court. He refers you to the registrar for pro bono legal assistance because he has that power under Order 80 rule 4. There is a technical problem and I will explain it to you. The technical problem is that mandamus, which is the writ under the Constitution that you have sought, is only issued to command an officer of the Commonwealth such as the registrar of the Federal Court to perform a duty.

Now, if you have not put the document in proper form, then you have not sought him to perform the duty because he has no duty, none at all, until a judge of the Federal Court in his or her discretion refers the matter to the registrar.  It is a technical problem that you have not made the application in the correct form, having first got over the obstacle of getting a judge of the Federal Court to exercise a discretion.  Until that discretion is exercised there is no duty that can be commanded to be performed under the writ of mandamus.  Do you understand what I have just said to you?

MS OGAWA:   Well, I suspect your Honour misunderstood, that I am seeking your Honour to issue the mandamus against a registrar to refer me to a pro bono lawyer.

HIS HONOUR:   Well, I do not misunderstand it at all.

MS OGAWA:   The subject is not really that.

HIS HONOUR:   I do not misunderstand it at all.  I know that is what you want but it is not what you asked the registrar to do.

MS OGAWA:   Just file the notice of motion.  That is what I asked the registrar.

HIS HONOUR:   Yes, but the notice of motion that you filed jumped the step of having the Federal Court make the discretionary decision that the matter should be referred to the registrar.  You have to ask yourself why is that in the Rules, why is it there.  The answer is it is in the Rules because many people will ask for pro bono assistance and it is in the Rules to provide a filter so that the Federal Court will decide that the case is one suitable to go to the registrar or not suitable, and you have tried to jump that step.

MS OGAWA:   Well, I did not.  Well, I asked if this notice of motion is filed then judge know that I am asking that judge to refer me to the Pro Bono Panel – well, just to refer me to the Pro Bono Panel.

HIS HONOUR:   No, you have not.  That is not what you asked at all.  What you have asked is that you be granted pro bono assistance.  I know that is at the end of the road, but you have to make the request at the step before that.  Now, myself, I think the registrar, if that was the problem, should have assisted you to bring your notice of motion into proper form and I will not ‑ ‑ ‑

MS OGAWA:   That is not ‑ ‑ ‑

HIS HONOUR:   ‑ ‑ ‑ say any more about that because the registrar is not here, so I do not want to criticise the registrar, but ‑ ‑ ‑

MS OGAWA:   That is not the reason, your Honour.  This litigation has a long history.

HIS HONOUR:   Well, I do not know what the reason is.  I do not know what the reason is.  You have not provided me with any affidavit material.

MS OGAWA:   Well, sir, I was providing the reason.  Your order ‑ ‑ ‑

HIS HONOUR:   No, but you are not providing the reason at all.  You are making a statement.

MS OGAWA:   But that will go to the reason ‑ ‑ ‑

HIS HONOUR:   Well, you should know enough, if you are making an application and you want to have evidence and reasons before a judge to act upon, they cannot just be made from the Bar table as a statement; they have to be in an affidavit.  It has to be evidence.

MS OGAWA:   Then I will swear – if that is required, I will make an affidavit and swear ‑ ‑ ‑

HIS HONOUR:   Yes, but you want to take me back into the whole long history of your case and I do not have the responsibility today to decide that whole long history.  What I need to know is what was the reason that the registrar refused your notice of motion.  Was a reason given to you at the time or not?

MS OGAWA:   Well, there was a reason given to me.  What the reason said is that, given the history of this litigation, we cannot ignore that previous history.  That is the reason of the registrar, actually so as the judge.

HIS HONOUR:   Now, that may be so, but has the judge of the Federal Court ever made a decision that it is in the interests of the administration of justice to refer you to the registrar for the Pro Bono Panel?  Have you ever got over that step?

MS OGAWA:   He did.  Justice Weinberg did on 17 December 2003.

HIS HONOUR:   Well, where is that decision?  You do not put that decision before me.

MS OGAWA:   I can provide – I can swear an affidavit and provide to your Honour ‑ ‑ ‑

HIS HONOUR:   Well, it is not here and I need to have that because at the moment you are at the doorway and you do not get in the door unless the Federal Court or a judge of the Federal Court makes a decision under Order 80 rule 4 to, in the interests of justice, refer you to the registrar for referral to a legal practitioner.

MS OGAWA:   Yes, Justice Weinberg made.

HIS HONOUR:   Now, in your document you say “pursuant to Order 80 and/or directions made by Justice Weinberg on 17 December 2003 and/or representations made by Justice Marshall on 2 February 2003 and 4 May 2004” but you do not provide me with any of those documents.  I had inquiries made to see if I could find those documents, but they are not available.  Unless you put them before me, I do not have the basis on which to consider your application.

MS OGAWA:   A notice of motion supported by affidavit, that affidavit includes that exhibit of the transcript of those days ‑ ‑ ‑

HIS HONOUR:   What date is that affidavit?  All I have is an affidavit of you dated 4 April 2005 ‑ ‑ ‑

MS OGAWA:   No, sometime in March 2005.

HIS HONOUR:   ‑ ‑ ‑ and it refers to Justice Hayne, Justice Marshall, Justice Keifel and Justice Weinberg, but it does not attach any orders or directions which any of those judges have made pursuant to Order 80 rule 4 in the case of the Federal Court judges.

MS OGAWA:   The affidavit is sworn sometime in March 2005.  I only have a copy here in unsigned version so I cannot identify the date but the affidavit was made sometime in March.  The exhibit exhibiting the court record of the directions in which Justice Weinberg’s order is recorded as well as ‑ ‑ ‑

HIS HONOUR:   Is that filed in the High Court or is that filed in the Federal Court?

MS OGAWA:   Federal Court.

HIS HONOUR:   Well, why would I have that?  I am a judge of the High Court.

MS OGAWA:   Yes, I know but the affidavit of the matter – affidavit I swore supporting the notice of motion should be before your Honour.

HIS HONOUR:   Well, you have not put it before me.  Unless you put it before me, it is not before me.  Judges in this country act on the evidence that the parties put before them.  They do not go rummaging around looking for the evidence themselves.  As it happens, I directed that I be given copy of the one matter that you referred to which is on the Internet, namely the decision of Justice Marshall, and I have that, but that is about the security for costs issue and is not ‑ ‑ ‑

MS OGAWA:   That is different.

HIS HONOUR:   Very different.  It has nothing to do with the case, but you ‑ ‑ ‑

MS OGAWA:   Yes, Justice Marshall’s direction appeared in the transcript of 4 May as well as 2 February which exhibited to my affidavit in March 2005 in the matter of ‑ ‑ ‑

HIS HONOUR:   I have the direction of 4 May.  Where in that transcript – rather, I have the transcript of 4 May.  Where in that transcript does Justice Marshall consider the interests of the administration of justice and refer you to the registrar for referral to a legal practitioner on the Pro Bono Panel?  Where is that in that transcript?

MS OGAWA:   Well, Order 80 is already made by Justice Weinberg in the same proceeding.  Justice Marshall simply confirms that I will be able to – I will be able to be granted pro bono assistance.

HIS HONOUR:   Well, I cannot proceed with this matter without the order that you say was made by Justice Weinberg and you really should have known that you would have to put that before me if you were relying on an order having been made under Order 80 rule 4(1) of the Federal Court Rules.

MS OGAWA:   Well, I thought that it is in the affidavit ‑ ‑ ‑

HIS HONOUR:   Well, it is not in the affidavit.

MS OGAWA:   ‑ ‑ ‑ together with that transcript.

HIS HONOUR:   Well, it is not in an affidavit in the High Court.  It may be in some documents in the Federal Court, but I do not get the Federal Court materials.  I just deal with the matters you put before me in the High Court.

MS OGAWA:   Yes, in the High Court affidavit I must have exhibited Federal Court affidavit and in the Federal Court affidavit there should be the court order, Weinberg J made Order 80.  That is exhibited.

HIS HONOUR:   What date is that affidavit?

MS OGAWA:   Sorry?

HIS HONOUR:   What date is your affidavit to which you say you have annexed as an exhibit the order of Justice Weinberg?  I only have two affidavits by you.  One of them is dated 4 April 2005 which has an exhibit but that exhibit is your application for special leave to appeal to this Court – it has nothing to do with this present problem – and another affidavit also sworn 4 April which does not annex any exhibit.

MS OGAWA:   Well, I can provide you, your Honour, a copy of the direction court record in which Justice Weinberg’s Order 80 is recorded and ‑ ‑ ‑

HIS HONOUR:   I think you had better do that and I think it would also be better if I had the registrar or some representative of the registrar of the Federal Court before me because otherwise I do not really understand what happened in this matter.  It may be that it is some misunderstanding or it may be that it is some technical problem in the way you formulated the application of the notice of motion of 7 March 2005 which was rejected by the registrar of the Federal Court.  I just do not know.  I do not know.  And until I know, I cannot grant you an order nisi.  Do you understand?

MS OGAWA:   Yes.  Yes, I understand.

HIS HONOUR:   It is very important that you should understand that you will not get an order nisi unless I understand why the registrar of the Federal Court refused the notice of motion, but the reason seems to be that the notice of motion was not in proper form.  It did not ‑ ‑ ‑

MS OGAWA:   Well, that is not the reason, your Honour.  This litigation has a long history and first it started in September 2003 and ‑ ‑ ‑

HIS HONOUR:   That may be a reason why the judge of the Federal Court has not ordered that the matter be referred to the registrar for referral to a legal practitioner on the Pro Bono Panel.  Maybe they do not think that there is any substance in it and therefore consider that referral to a pro bono lawyer would be futile.  Do you understand the word “futile”?  A waste of time.

MS OGAWA:   Yes, but that is not so simple and if that is the case a court would have dismissed my whole lot of application two years ago and my case is still in the court after two years.  Twenty judges inspect my statement of claim on application and none of them said it should be dismissed.

HIS HONOUR:   Just before I came into Court I received, I think from you, two documents which were sent ‑ ‑ ‑

MS OGAWA:   Yes.

HIS HONOUR:   ‑ ‑ ‑ by email or fax.  One of them was an article which you had written in a journal, I have not had the time to read that, but the other was a submission made by you in the Federal Court of Australia concerning an application to dismiss your proceeding summarily on the basis that it was futile or vexatious.  What happened to that proceeding?  Did that proceeding get heard in the Federal Court?

MS OGAWA:   I am sure it is heard but not yet decided.  It is heard in April but judgment reserved.  This is actually the second proceeding in the same matter.  The first matter I brought in the Federal Court in September 2003, the matter was transferred from one judge to the other, from one registry to the other registry, and from one court to the other court.  They are currently in the Federal Magistrates Court which has not been heard and in the Federal Magistrates Court it cannot proceed with the proceedings, so I had to bring the proceeding back to the Federal Court.

HIS HONOUR:   Well, it sounds to me as though Justice Weinberg has made any order or observation he made in the earlier proceedings and not in the later proceedings that you referred to; is that correct?

MS OGAWA:   Yes.

HIS HONOUR:   I just do not know how – I mean, you are obviously an intelligent person and you speak quite good English and your documents are perfectly understandable and in good form - I just do not know how you expect me, as a judge of the final court of this country, working under very great pressure, to decide your case without the necessary information on what is the background to the refusal by the registrar of your application.  All I can say is when I look at the document it is not in the correct form that is required for Order 80 rule 4 because unless the Federal Court or a judge of the Federal Court has already decided that it is in the interests of the administration of justice to refer you to the registrar, then you first have to get that direction and unless you have ‑ ‑ ‑

MS OGAWA:   To get the directions I have to move the court.

HIS HONOUR:   Exactly.

MS OGAWA:   And to move the court, I need to file a notice of motion.

HIS HONOUR:   Yes, but in order to file the notice of motion you have to ask for the right thing and what you have asked for is a grant of pro bono assistance.  Technically what you have to ask for is that you be referred to the registrar for referral to a legal practitioner on the Pro Bono Panel, and you did not do it in that form.  Now, myself, I repeat, if that is the only problem in your application that ought to have been fixed up with a litigant in person by the registrar himself ‑ ‑ ‑

MS OGAWA:   Obviously that is not the reason.

HIS HONOUR:   ‑ ‑ ‑ but I do not know what other reason exists for refusing your application, if any.

MS OGAWA:   Well, should have not been refused so that I came to this Court.  Well, the reason they consider is obviously the history of this matter.  However, that cannot be the reason – that should not be the reason to refuse to file my notice of motion so ‑ ‑ ‑

HIS HONOUR:   Well, it depends on whether an order has already been made by a judge of the Federal Court that you be referred to the registrar.  You say Justice Weinberg has made that direction but you do not bother to put that before me.  I just do not ‑ ‑ ‑

MS OGAWA:   Well, I am prepared to produce immediately the evidence – well, I do not have with me, in front of me now, but I have it.  It is filed in the High Court in a different matter, so even the High Court Registry can get it.  But of course I will produce that and send it to your Honour’s Chambers immediately.

HIS HONOUR:   I do not get all the files of the High Court.  I just get this file and I am only considering one little part of your case.  I am considering whether, pursuant to Justice Callinan’s direction, you should have leave to issue these proceedings.  At the moment I do not know why the proceedings were not issued out of the Federal Court and until I know that I am not really in a position to consider whether there was a duty which could be the subject of an order for mandamus directed to the registrar.  Do you understand where we both stand?

MS OGAWA:   Yes, I understand.

HIS HONOUR:   Where you stand and where I stand?

MS OGAWA:   Well, perhaps what I have to do is to photocopy the court record of Justice Weinberg’s order and also ask a registrar of the Federal Court to come to the High Court.

HIS HONOUR:   Well, you have to certainly provide the order, if any, or direction given by Justice Weinberg.  In your motion you also refer to what you say are representations by Justice Marshall on 2 February 2003 and 4 May 2003 but, again, you have not bothered to put those before me.

MS OGAWA:   Well, those are in the transcript.

HIS HONOUR:   Well, I have the transcript of 4 May 2003 but I do not have any transcript of 2 February 2003, so what you will have to do on the next occasion is to provide with an affidavit the transcript of 2 February 2004 and you had better supply also a copy of the transcript of 4 May 2004 annexed to your affidavit together with annexed to the affidavit the direction or order made by Justice Weinberg of 17 December, all of those matters that you refer to.

MS OGAWA:   Yes.

HIS HONOUR:   You had better also include in your affidavit anything that was said to you when you presented your document to the Federal Court for filing.  If anything was said explaining why filing was refused, then you had better put that on the record in the affidavit.  Do you understand that?

MS OGAWA:   Yes, I see, your Honour.

HIS HONOUR:   Very well.  Well, I will hear the rest of this case tomorrow morning at 11 o’clock.  Can you get your affidavit done by that time?

MS OGAWA:   Well ‑ ‑ ‑

HIS HONOUR:   Next week I will be in Canberra the whole week in a very busy week.  The following week I will be in Adelaide the whole week and, therefore, I want to deal with this matter as quickly as possible.  Can you get your affidavit filed by tomorrow morning or not?

MS OGAWA:   I will be able to.

HIS HONOUR:   I will resume the hearing of this application tomorrow morning at 11 o’clock and a video link will be established to the Federal Court Building in Brisbane for that purpose.  In the meantime you should swear the affidavit annexing the three documents that you refer to in your notice of motion so that they will be before me and any other material that is relevant, including any statement of any kind that was made to you by the person or persons who refused to accept the filing of your application for pro bono assistance.  If you do that by early tomorrow morning, that can be sent down here.  I will read it before 11 o’clock.  Then we will continue this hearing at 11 o’clock tomorrow.  Is that understood?

MS OGAWA:   Yes.  Yes, I will.

HIS HONOUR:   You will be here tomorrow morning at 11 o’clock?

MS OGAWA:   Yes.

HIS HONOUR:   Yes.  Thank you very much, Ms Ogawa.  We will adjourn the hearing of the Court until that time.

MS OGAWA:   Thank you very much, your Honour.

AT 10.06 AM THE MATTER WAS ADJOURNED
UNTIL FRIDAY, 29 JULY 2005