Ogawa, Ex parte - Re Marshall & Ors
[2004] HCATrans 404
[2004] HCATrans 404
IN THE HIGH COURT OF AUSTRALIA
Office of the Registry
Melbourne No M169 of 2004
In the matter of -
An application for Writs of Prohibition, Mandamus and Certiorari against THE HONOURABLE SHANE MARSHALL, A JUDGE OF THE FEDERAL COURT
First Respondent
FEDERAL MAGISTRATE MAURICE PHIPPS
Second Respondent
THE HONOURABLE ANTHONY NORTH, A JUDGE OF THE FEDERAL COURT
Third Respondent
UNIVERSITY OF MELBOURNE
Fourth Respondent
Ex parte –
MEGUMI OGAWA
Applicant/Prosecutor
HAYNE J
(In Chambers)
TRANSCRIPT OF PROCEEDINGS
FROM BRISBANE BY VIDEO LINK TO MELBOURNE
ON WEDNESDAY, 13 OCTOBER 2004, AT 9.31 AM
Copyright in the High Court of Australia
__________________
MS M. OGAWA appeared in person.
MR M.C. GARNER: May it please your Honour, I appear for the fourth respondent, the University of Melbourne. (instructed by Minter Ellison)
HIS HONOUR: The Deputy Registrar informs me that she has a certificate certifying that the first three respondents will abide by any order of the Court save as to costs. Now, Ms Ogawa.
MS OGAWA: Yes. I do not know why the University is here this morning. The Registrar informed me that the University seek leave to appear in this proceeding, but I am not sure whether the leave is granted.
HIS HONOUR: It seems to me, Ms Ogawa, that where you seek various forms of relief against, firstly, three judicial officers, but also the University of Melbourne, it is open to the University of Melbourne to appear to contend that the relief you seek should not be granted. So it seems to me, unless you can show to the contrary, that the University of Melbourne may appear this morning. Is there anything you want to say against that?
MS OGAWA: Last night about 8 o’clock University of Melbourne sent me by email the outline of submissions and unsigned affidavit, but unfortunately, because it is last night, I do not have time to read it through, so I am not in the position to be able to argue against the University quite well this morning. One more thing is that usually when I check the transcript after the proceedings, I have a lot of things I could not understand. Usually, judges bear in mind that I am not an English speaker, so they take into account. Perhaps 70 per cent I can understand, but for the University’s representative I only could understand 10 per cent or 20 per cent of most stuff. I want to ask the interpreter to interpret the University’s representative’s statements one by one. Is that allowed?
HIS HONOUR: If you wish to use the services of an interpreter, I will have the interpreter sworn or affirmed and we will see whether and when it is appropriate to use the services of an interpreter. There is, I believe, an interpreter present with you in Brisbane, is there not?
MS OGAWA: Next to me, yes, he is.
YUJI OTAKI affirmed as interpreter:
HIS HONOUR: Yes, thank you, Mr Otaki. If you would be good enough to take a seat and we will ask you to interpret some matters when that becomes necessary, but for the moment let us see whether we can proceed without your services.
THE INTERPRETER: Yes, I understand. Thank you, your Honour.
HIS HONOUR: Ms Ogawa, what do you now seek to do? Do you wish to proceed with your application?
MS OGAWA: Yes, but if your Honour considers appropriate, but I am not in a position to ‑ ‑ ‑
HIS HONOUR: No, Ms Ogawa. Ms Ogawa, let us take this one step at a time.
MS OGAWA: Yes.
HIS HONOUR: Do you wish to proceed with your application this morning?
MS OGAWA: If your Honour considers it is appropriate.
HIS HONOUR: Yes.
MS OGAWA: What I want to make clear is that I am not in a position to be able to argue against what University brought before the Court. I received the submissions last night and did not have time to go through the cases they referred to. Of course, I am not a lawyer, so even if I have time what I can do is quite limited, so ‑ ‑ ‑
HIS HONOUR: Well, Ms Ogawa, let us go forward at least some steps and see where we get to. As I understand it, you rely upon two affidavits, firstly, your affidavit of 23 September 2004 and there is a further affidavit of 6 October 2004. Is that right?
MS OGAWA: Yes, that is correct, your Honour.
HIS HONOUR: Let me just ask Mr Garner, is there any objection to the reception of those affidavits, Mr Garner?
MR GARNER: No, your Honour.
HIS HONOUR: Very well. Now, Ms Ogawa, in your affidavit of 6 October you give an amended draft order nisi. Does that record the application that you wish to make this morning?
MS OGAWA: Yes.
HIS HONOUR: Now, I have read your affidavit of 6 October. I have read your affidavit of 23 September. I have read a deal of the exhibits to your affidavit of 23 September, but do not pretend that I have read them line by line. Now, what is it that you wish to say in support of your application for orders nisi?
MS OGAWA: I think the situation is quite odd. If the proceedings were stayed in the Federal Court, the matter would have gone to trial with the assistance of the pro bono lawyer, but, because the matter is transferred to the Federal Magistrates Court, it will not be heard, and I am sure the federal magistrate struck out a considerable part of my second further amended statement of claim, because federal magistrate granted leave to replead. People said there is no substantial injustice, but unfortunately there is no one who can help me replead in the Federal Magistrates Court and the University seems to exhibit my old statement of claim, which clearly demonstrates my struggle to improve my statement of claim. Actually, what I can do is already – I already did.
Justice Marshall intended to let the proceedings survive, then his Honour wanted to transfer, but the consequence is the other way around and I cannot understand why I have to give up submitting my thesis at this moment simply because Justice Marshall misunderstood that the same pro bono assistance is available in the Federal Magistrates Court, which is not the case. So I came here to ask your Honour to help me.
HIS HONOUR: Yes.
MS OGAWA: What happened is that in Victoria pro bono lawyers are not available, although‑ ‑ ‑
HIS HONOUR: In Victoria pro bono lawyers are available, or are not?
MS OGAWA: Are not available, although Weinberg J directed…..referral a pro bono lawyer was not found in Victoria, so I asked Justice Marshall to refer me to Queensland. The Queensland registrar, Cherie???, told me that just one line in writing is sufficient to invoke the process of referral if the Victoria send one line to Queensland, Queensland registrar can find the pro bono lawyer for me. That is what I was informed.
So I told that to Justice Marshall and asked him to refer me to the Queensland pro bono list and what Justice Marshall said to me was yes, he will do it, but after the security for costs. After the security for costs, his Honour said that because the same pro bono assistance is available even in the Federal Magistrates Court, the Federal Court introduced a new policy that unless I pay the fee for video link Federal Court will dismiss my application. So all his Honour said is that the only way to allow me to go to the trial is – two trials for the proceedings to the Federal Magistrates Court, but unfortunately in the Federal Magistrates Court pro bono referral is not available.
Justice Marshall misunderstand because the Federal Magistrates Court is the national court, the same as the Federal Court. There should be a national pro bono scheme, but unfortunately there is not, no agreement in Queensland. And it does not make sense to ask a pro bono lawyer in New South Wales or South Australia or whatever, because I am in Queensland and that matter is in Victoria.
In Victoria federal magistrate could find pro bono lawyer only for transfer motion. There it said that they will assess me and transfer the proceeding back to the Federal Court, but that is all they could do. The federal magistrate did not agree to transfer the proceedings back to the Federal Court. What his Honour said is that nothing is changed since Justice Marshall ordered the transfer, but it is clearly Justice Marshall’s understanding that pro bono lawyers are available in Federal Magistrates Court or Federal Magistrates Court does not have – what is the word – rules imposing fees for video link. Those I am sure they are not fact.
HIS HONOUR: Can I just ask you about one aspect of the referral for appointment of pro bono counsel. Justice Weinberg directed ‑ ‑ ‑
MS OGAWA: Pro bono ‑ ‑ ‑
HIS HONOUR: Just a moment, Ms Ogawa. Justice Weinberg directed in ‑ ‑ ‑
MS OGAWA: Pro bono assist – the applicant be granted ‑ ‑ ‑
HIS HONOUR: Ms Ogawa, just be quiet and listen to me for a moment. Exhibit MO‑4 to your first affidavit records that Justice Weinberg directed that you be granted pro bono assistance pursuant to Order 80 of the Federal Court Rules up to and including the trial of your application, the trial of the whole proceedings.
MS OGAWA: Yes.
HIS HONOUR: Do I understand you to tell me that pro bono counsel could not be found who would accept that retainer?
MS OGAWA: At that moment, that is correct. In Victoria it was not possible. Therefore I requested Justice Marshall to refer me to Queensland list. Then Justice Marshall agreed to do so after the security for costs.
HIS HONOUR: And I understand you to tell me that in Queensland pro bono counsel could not be found to take your matter through to trial. Is that right?
MS OGAWA: Not correct.
HIS HONOUR: Yes.
MS OGAWA: Justice Marshall did not refer me to Queensland list, so Queensland registrar did not get pro bono lawyer. If Justice Marshall refer me to the Queensland list, Queensland registrar would find the pro bono lawyer for me.
HIS HONOUR: The position seems to me to be, and correct me if I am wrong, that there is a direction that you be granted pro bono assistance, attempts are made to comply with that direction but are unsuccessful. Is that right?
MS OGAWA: At that moment, that is correct. So I requested Justice Marshall to refer me to the ‑ ‑ ‑
HIS HONOUR: I understand that you then made further requests, but the attempt to give effect to the direction of Justice Weinberg was an attempt that was made but did not succeed. Is that right?
MS OGAWA: Well, partially, attempt was made but not wholly, because there is a Queensland possibility and I requested Justice Marshall to do so. Justice Marshall said his Honour would do after the security for costs and his Honour did not do.
HIS HONOUR: Yes.
MS OGAWA: His Honour ordered a transfer, but his Honour when ordering the transfer said that the same pro bono assistance is available in Federal Magistrates Court and Registrar Connard is the person who is in charge. His Honour made sure that Registrar Connard would find pro bono lawyer for me, but that was not correct. At that time, when Justice Marshall ordered the transfer, Registrar Connard is no longer in charge of the pro bono referral. Registrar Connard had been in charge, but no longer when Justice Marshall ordered the transfer.
So Justice Marshall obviously did not check pro bono situation with Registrar Connard, but because Justice Marshall knew that at some stage Registrar Connard was in charge and Justice Marshall must have believed that the same pro bono referral be available in Federal Magistrates Court, but that is misunderstanding. That small misunderstanding had a ripple effect and became a huge problem that I could not maintain the proceedings.
That is quite unfair, I think. I cannot see why I have to give up my degree because Justice Marshall just misunderstand, one small misunderstanding. This can be easily corrected by your Honour. If your Honour put me back to Federal Court, every problem will be resolved and the trial will be heard. A trial will be held and dispute will be resolved.
HIS HONOUR: Yes, is there anything else you wish to say?
MS OGAWA: Not at this moment. Perhaps it is better that I will listen to what the University will say.
HIS HONOUR: Yes.
MS OGAWA: But the point is University and I both oppose the transfer order from Federal Court to Federal Magistrates Court. University also wanted to be in the Federal Court.
HIS HONOUR: Yes.
MS OGAWA: Yes, that is all that I wish to say at this moment.
HIS HONOUR: Yes, thank you, Ms Ogawa. Yes, Mr Garner.
MR GARNER: Your Honour, the University has filed and served an affidavit of Emma Louise Murphy. That is…..to your Honour’s file.
HIS HONOUR: Yes. Is there any objection, Ms Ogawa, to my reading the affidavit of Emma Louise Murphy?
MS OGAWA: Actually, some of the facts I want to dispute – should I explain it now?
HIS HONOUR: The question is whether you object to my receiving the affidavit, or any part of the affidavit, of Ms Murphy.
MS OGAWA: I am not a lawyer, but I cannot understand the implication of that.
HIS HONOUR: Well, the question is, do you say that any parts of her affidavit are irrelevant or inadmissible?
MS OGAWA: Inadmissible?
HIS HONOUR: That is, not complying with the rules of evidence that apply to this sort of application.
MS OGAWA: Well, I do not know the rules of evidence, but some of the facts appearing in this affidavit are not correct, so I do not want your Honour to take it into consideration.
HIS HONOUR: Yes.
MS OGAWA: The first thing is that the University seems to allege that I consent to order of transfer from Federal Court to Federal Magistrates Court. I exhibited in my affidavit that transcript of 4 May. I never consented. I am not in a position to be able to make any judgment whether that order is ‑ ‑ ‑
HIS HONOUR: I understand that point, yes. What is the next point?
MS OGAWA: Also, University says that federal magistrate did not receive my affidavit dated 14 July in which I clearly indicate that pro bono assistance is not available in the Federal Magistrates Court, but I have email from – I actually send it to the Federal Magistrates Court and filed it and I have an email from the associate to the Federal Magistrates Court dated 3 August 2004. They wrote that: “I am writing in reference to the affidavit dated 14 July 2004 and to the notice of motion dated 16 July 2004”. There are sealed copies on the file which have been date stamped 16 July 2004.
So federal magistrate had my affidavit in which I swear that pro bono assistance is not available. That affidavit is on file and federal magistrate was in the position to be able to consider, when he considered the transfer, the availability of the pro bono ‑ ‑ ‑
HIS HONOUR: I may be mistaken, Ms Ogawa, but I think that the point that is made in the University’s affidavit by Ms Murphy is that they, the University, did not have the affidavit. At the moment, I am not immediately clear why anything in particular turns on that for the purpose of disposing ‑ ‑ ‑
MS OGAWA: University ‑ ‑ ‑
HIS HONOUR: Ms Ogawa, be quiet when I am speaking.
MS OGAWA: Sorry, your Honour, there ‑ ‑ ‑
HIS HONOUR: No, Ms Ogawa, you will remain quiet while I am speaking. Do you understand?
MS OGAWA: Yes, I understand, sorry.
HIS HONOUR: Yes. Now, I understand the University to dispute whether you served the affidavit on it. That is not a point which seems to me to loom very large in the disposition of the present application. Is there any other point that you wish to make about the affidavit of Ms Murphy?
MS OGAWA: One more thing is that – no, those two facts are the facts which I think are incorrect.
HIS HONOUR: Yes, thank you. The affidavit of Ms Murphy will be received, Mr Garner. Yes, Mr Garner.
MR GARNER: Thank you, your Honour. Your Honour, could I say at the outset there are two somewhat unusual aspects about this application. The first has been adverted to by Ms Ogawa, and that is that the transfer order made by the first respondent on 4 May 2004, which she seeks to have quashed, was in fact made at his Honour’s own initiative and was opposed by the University.
HIS HONOUR: It was made over the protests of both parties.
MR GARNER: It was, your Honour.
HIS HONOUR: It is at least a basis on which I should proceed.
MR GARNER: Yes, your Honour.
HIS HONOUR: I understand that.
MR GARNER: And similarly, the order of the second respondent, Federal Magistrate Phipps, made on 27 July, refusing Ms Ogawa’s application to retransfer the matter, was not opposed or consented to by the University.
MS OGAWA: I am sorry to interrupt, but I want to check – I want to ‑ ‑ ‑
HIS HONOUR: No, you will not interrupt. Ms Ogawa, you will not interrupt. You will sit down ‑ ‑ ‑
MS OGAWA: I want to confirm what she said. This is the time I need an interpreter.
HIS HONOUR: Ms Ogawa, please resume your seat and remain silent. I will call on you when it is your turn to speak.
MS OGAWA: But what did she say?
HIS HONOUR: Sit down. Yes, Mr Garner.
MS OGAWA: I need an interpreter.
HIS HONOUR: Go on, Mr Garner.
MR GARNER: Notwithstanding those matters, your Honour, the University does oppose Ms Ogawa’s application to this Court. Since the transfer of the proceeding to the Federal Magistrates Court, a number of steps have been taken by the parties. Ms Ogawa sought leave to and filed a second further amended statement of claim. The University made application to strike out ‑ ‑ ‑
HIS HONOUR: Yes, I understand all that, but I understand also that both parties wanted the matter to stay in the Federal Court. That has not been the result and now the matter is proceeding in the Federal Magistrates Court. The immediate question for me is whether the orders nisi, which Ms Ogawa seeks, should go.
MR GARNER: I understand, your Honour. I was simply explaining the University’s position, but your Honour is clearly well appraised of that. The second matter I wanted to mention briefly, your Honour, was this, that Ms Ogawa in her materials makes a number of allegations relating to conversations with officers of the Federal Court. My client is not in a position to respond to those allegations in any way, your Honour, and that again is the somewhat unusual feature of the matter.
Your Honour, if I may turn to the application. Ms Ogawa’s circumstances, as she has outlined to your Honour this morning, are no doubt difficult, but do not give rise or demonstrate any grounds for the prerogative relief that she seeks in this application. Your Honour, I have filed with the Court last evening by facsimile an outline of submissions.
HIS HONOUR: Yes, I have read that.
MR GARNER: That was also served on Ms Ogawa. Your Honour, the outline notes that there are two orders, in effect, which Ms Ogawa challenges and I have outlined those orders to your Honour. The draft order nisi contains or seeks eight orders. The first five relate to the order made by the first respondent on 4 May 2004 and they either directly challenge that order or are based on the proposition that that order is null and void. That is orders 1 to 5 that are sought in the draft order nisi. Orders 6 and 7 sought in the draft order nisi relate to the order made by the second respondent on 27 July and again are founded on the proposition that that order was null and void.
Your Honour, the fourth respondent opposes the applicant’s application on three bases. First, it is submitted that this Court has no jurisdiction to grant certiorari quashing the 4 May 2004 transfer order made by the first respondent. Secondly, and in any event, it is submitted that there are no arguable grounds upon which the Court could give the applicant the relief she seeks in this application. Thirdly, it is submitted that there are discretionary considerations which would, in any event, militate strongly against the grant of the relief sought by the applicant. Can I turn to the first of those grounds, your Honour, and these are dealt with in paragraph 7 of the outline and following.
HIS HONOUR: The key to it lies in paragraph 11, does it not, in the last sentence of paragraph 11 of your outline:
orders for prohibition and mandamus . . . assume that the 4 May 2004 transfer order is valid.
Is that right?
MR GARNER: That is a portion of it, your Honour.
HIS HONOUR: Because it seems to me that if that is the premise, it is a flawed premise.
MR GARNER: No, your Honour, that deals with paragraphs 6 and 7 only. To go back a step, your Honour, and your Honour is no doubt very familiar with the principles, what is set out in the preceding paragraphs is that the power to grant certiorari quashing the 4 May 2004 transfer order can only be exercised if it is necessary to effectuate the grant of some other aspect of the Court’s jurisdiction.
HIS HONOUR: That is a very large proposition that might require some amplification. It seems to me that if it is arguable that prohibition should go in respect of the order, certiorari to quash might also go in respect of it.
MR GARNER: Well, your Honour was referring me to paragraphs 6 and 7 of the draft order nisi. That is the separate order – that relates to the separate order made by Federal Magistrate Phipps, and the point made in paragraph 11 is this, your Honour. That is, in effect, an alternative order. What Ms Ogawa effectively says, as I apprehend the draft order nisi, is this, that the original transfer order ought to be quashed. That is paragraphs 1 to 5. But in the alternative – I will go back a step, your Honour – in the event that it is quashed, it would follow that the Federal Magistrates Court never had jurisdiction to make any orders, and that therefore any orders made by the federal magistrate ought also to be quashed. That is paragraph 4 of the draft order nisi.
So that is her first argument. Paragraphs 6 and 7 are in the alternative and say that if the first transfer order is valid and effective, then Ms Ogawa seeks to quash the order made by the federal magistrate refusing to retransfer the matter.
HIS HONOUR: Well, it would be a very bold step, I think, to refuse orders nisi on the grounds of no jurisdiction to grant relief sought. That would entail the proposition that it is unarguable that this Court is unable to grant the relief which is sought; a very large proposition, Mr Garner, which seems to me to be erecting for yourself a hurdle of immense proportions to pass over. You may find it more useful to pass to the second of the grounds that you put forward, namely, no arguable ground.
MR GARNER: If your Honour pleases. Your Honour, can I then deal with the prohibition order sought in paragraph 1 of the draft order nisi. In my submission, there were no arguable grounds in support of that and, indeed, the order is misconceived. The order seeks prohibition prohibiting the first respondent from further proceeding upon the transfer order. The transfer order having been made, the first respondent became functus officio and there is no potential for the first respondent to further proceed upon that order. In my submission, that order, by its own terms, is untenable and, in my submission, was really a construct to enable the certiorari order to be sought by ‑ ‑ ‑
HIS HONOUR: This seems to be restating in other words this first ground that you propound, namely, no jurisdiction. As I say, I do not know that that is especially productive.
MR GARNER: Well, there are two aspects, your Honour.
HIS HONOUR: You say in paragraph 21, “no jurisdictional error”. Now, do you maintain that proposition?
MR GARNER: Yes, your Honour.
HIS HONOUR: Yes. Well, let us examine that.
MR GARNER: Your Honour, that flows from the submission that in order to obtain the mandamus and the prohibition that are sought, Ms Ogawa must demonstrate that there are grounds to quash the 4 May order and the only available ground to her is jurisdictional error. Your Honour, that follows from what was said by Justice McHugh in the case of Ex parte Durairajasingham, which I have referred to in the outline. So one then turns to the question of whether or not there was jurisdictional error.
HIS HONOUR: Why is that point not concluded by section 32AB, in particular, 32AB(2)(b):
The Court may transfer a proceeding . . .
(b) on its own initiative.
It has jurisdiction to do what it did.
MR GARNER: In my submission, it is concluded, your Honour. There was clear jurisdiction to have made the transfer order. Ms Ogawa advances ‑ ‑ ‑
HIS HONOUR: Is there any excess of jurisdiction?
MR GARNER: In my submission, no, your Honour, and nor is that effectively submitted by Ms Ogawa. Ms Ogawa, as I apprehend her application, seeks to argue that there was some overriding duty on the judge imposed by section 22 of the Federal Court of Australia Act which prevented him, as it were, from exercising the clear power that was vested in him under section 32AB of the Act.
Now, that argument I have dealt with, your Honour, in paragraphs 22 and following of the outline. In my submission, it is misconceived at a number of levels. Does your Honour require me to develop that?
HIS HONOUR: It seems to me the answer you have, be it good or be it bad, is that there is jurisdiction there and no demonstrated arguable ground of excess of jurisdiction.
MR GARNER: Yes, your Honour.
HIS HONOUR: It is either good or bad.
MR GARNER: Well, your Honour, perhaps I should briefly deal with the section 22 argument in any event.
HIS HONOUR: That seems to be an argument that says the discretion to exercise the power not only might have, but should have, been exercised otherwise than it was, because the controversy would better have been determined in the Federal Court of Australia.
MR GARNER: Yes, your Honour, so at its highest it would be an argument alleging error of law rather than jurisdictional error, that is, the failure to take into account what Ms Ogawa says were relevant considerations, being the assertion that there was no pro bono assistance available in the Federal Magistrates Court.
HIS HONOUR: As to that, it seems to me there is a direction of Justice Weinberg that she be given pro bono assistance. As things stand, it is not yet apparent to me exactly why that assistance has not yet been afforded. Ms Ogawa says no one in Victoria will take it. Ms Ogawa says there is no capacity to resort to the Queensland profession. That is the basis on which I have to decide on it. I must say, I am a little surprised that there is no one in Victoria who would take a pro bono reference of this kind through to trial.
MR GARNER: Is your Honour talking about a reference in the Federal Magistrates Court?
HIS HONOUR: No. Well, there seems to be this understanding developing in this litigation that all things change once there has been remitter to the Magistrates Court. But the order of Justice Weinberg is not set aside or revoked. There is a direction made in this proceeding that Ms Ogawa have pro bono assistance up to and including trial. Now, the fact that the proceeding is later transferred to the Federal Magistrates Court does not seem to me, at first sight at least, to mean that that order ceases to have effect. The order has effect according to its terms. Now, either pro bono assistance can be obtained or it cannot, but Ms Ogawa tells me it cannot.
MR GARNER: Your Honour, as I say, my client is not in a position to controvert that assertion by Ms Ogawa, but, if it be correct, it would apply equally if the matter were still before the Federal Court.
HIS HONOUR: Just so.
MR GARNER: Her circumstance would be no different.
HIS HONOUR: And it does seem to me that the parties, both sides in this litigation, may wish to consider whether it is appropriate to make one last attempt to give effect to that direction that Ms Ogawa have pro bono legal assistance. At first blush, it would seem to me that although Ms Ogawa is in Queensland, because the proceeding is pending in Victoria, one would expect ordinarily the assistance to come out of Victoria, because this is assistance up to and including trial. But these are matters into which I cannot go on this application without trampling into the merits of the thing, when all I am concerned with is application for constitutional and associated relief.
It does seem to me that the parties may wish to consider – it is a matter entirely for them, but they may wish to consider whether there is one last chance to get this case back on to some sort of rails, and part, at least, of Ms Ogawa’s grievance or complaint – well founded, ill founded, partly well founded, partly ill founded, I do not know and I cannot inquire – is, “I don’t have legal assistance”. Now, if Ms Ogawa wants to control that legal assistance, that seems to present her with a great problem, because the assistance that is to be provided is under the pro bono scheme. If she wants to say, “I will have X, not Y, and the person I have must be in Brisbane, nowhere else”, that seems to me to present rather large difficulties.
Again, I am treading into the underlying merits of this matter, which are not before me and about which I have far too little information to express any view. All I do is present a question to which you should make no answer. Those instructing you and those instructing them may do with it what they will.
MR GARNER: If your Honour pleases. Your Honour, it is clear, in my submission, that there was no excess of jurisdiction, nor was there any error of law, and, indeed, if there had been error of law, it would not give rise to the relief sought in this application in any event. His Honour, when he made the transfer order, was faced with a situation where there was a pro bono referral scheme in the Federal Magistrates Court. There was the extant direction made by Justice Weinberg ‑ ‑ ‑
HIS HONOUR: It is the extant direction that matters.
MR GARNER: Accordingly, there was no basis for his Honour to have given consideration to the arguments that are now contended by Ms Ogawa in her draft order nisi.
HIS HONOUR: Does it follow that like arguments are advanced in respect of the subsequent orders refusing to retransfer?
MR GARNER: Yes, your Honour, indeed. And, indeed, the same answer to that is that the federal magistrate clearly had the power to determine that application and the power to refuse it under the equivalent provision in the Federal Magistrates Act and the Federal Magistrates Court Rules. Again, your Honour, for the reasons which we have just discussed, there was no excess of jurisdiction or error of law involved in that dismissal.
HIS HONOUR: Yes. Now, it would seem to me that if you are down to your third category of reasons, those founded in discretion, you would have to go so far as to say that the discretion could only be exercised one way. Again, that is a very large mountain to climb.
MR GARNER: I accept that, your Honour, and I rely on the second of the bases. The third is there for completeness, but I hear what your Honour says about that ground.
HIS HONOUR: Yes. Thank you, Mr Garner.
MR GARNER: If your Honour pleases.
HIS HONOUR: Now, Ms Ogawa, two things. First, you have heard what I have said about the direction of Justice Weinberg. That is not something into which I can go more than I have. The second thing is that the answers that the University make against you can be reduced to this single answer. The Federal Court had the power to send this matter to the Federal Magistrates Court. The Federal Magistrates Court had the power to refuse to send it back to the Federal Court. Whether those decisions were right or wrong, they were made according to proper process. Now, that is the principal point you have to answer. What do you want to say in answer to it?
MS OGAWA: Well, the University argue the general case. Generally, Federal Court has power to order the transfer of the proceedings to the Federal Magistrates Court and generally Federal Magistrates Court keep the case in hand, have power to do so. But for this particular case, it is different from most other cases. For most other cases, “order the transfer” simply
means a different forum. The forum might be different, but still go to the trial. But for my case, if the transfer is made, the matter will not be heard, will not go to trial.
Justice Marshall, if he wants to dismiss my case, if he thinks that my case should not be heard, he should have dismissed the case. He had ample opportunity, because the University applied a security for costs and argued that this case does not have merits. Justice Marshall did not accept those and knocked back the security for costs. Especially, when ordering the transfer, his Honour said that to avoid the risk not to go to trial his Honour wanted to order the transfer, because that is the way, in his Honour’s belief at that moment, to actually allow me to proceed my case. But that did not happen. It is not the case. It is not the reality.
The Federal Court generally have power to order the transfer, but the Federal Court should not use transfer in place of the dismissal of the case. Justice Marshall did not intend to dismiss the case, but for this particular case order the transfer means not a different forum. Order the transfer means the dismissal of the case, and this has obviously exceeded the power of the Federal Court. If the matters remain in the Federal Court, it go to trial, but for now it is Federal Magistrates Court. It does not go to trial. It clearly demonstrates that the case is in the wrong court. There was some error and that error is not error of the ground but error of jurisdiction, because if the case is in Federal Court the matter is heard.
So I am not in a position to be able to argue more, but in a democratic country everybody can access to the court and to be heard and Australia did not exclude foreigners from that “everybody”. Security for costs is knocked back. Federal Court tried to allow me to go to the trial. So for this case, for this particular case, Federal Court does not have power or authority to order the transfer. That is my contention. Justice Marshall is not functus officio, because of Justice Marshall’s transfer order. The problem is still continuing, so I am not sure whether I could answer it.
The matter was in the wrong court. There was some error. That error must be jurisdictional, because, if the matter is in the Federal Court, the matters go to trial. That is the only thing I can say.
HIS HONOUR: Yes, thank you very much, Ms Ogawa.
The applicant, Ms Megumi Ogawa, is a post‑graduate law student. She arrived in Australia in November 1999 to undertake study for the degree of Doctor of Philosophy in Law at the University of Queensland. In November 2001 she transferred her studies to the University of Melbourne. A dispute arose about who would act as Ms Ogawa’s supervisor in her research for and writing of her thesis for the degree of Doctor of Philosophy.
In September 2003 Ms Ogawa commenced a proceeding against the University of Melbourne in the Queensland District Registry of the Federal Court alleging unconscionable conduct and misleading and deceptive conduct contrary to Parts IVA and V of the Trade Practices Act 1974 (Cth). In November 2003, on the motion of the University of Melbourne, Justice Kiefel of the Federal Court transferred the proceeding to the Victorian Registry of that court. The matter came on for directions before Justice Weinberg in December 2003. Justice Weinberg then directed that Ms Ogawa be granted pro bono assistance pursuant to Order 80 of the Federal Court Rules up to and including the trial of the proceedings she had instituted.
So far as the material filed in the present application reveals there is at least some uncertainty about precisely what steps were taken to give effect to this direction of Justice Weinberg. In particular, there appears to be some uncertainty, at least in Ms Ogawa’s mind, about whether assistance was sought from members of the Victorian profession or members of the Queensland profession. It may be that Ms Ogawa sought not only to influence the choice of practitioner to whom reference would be made, but also sought to require the practitioner concerned practise principally in Queensland, but these are matters not clearly revealed in the evidence before me.
Ms Ogawa tells me that, as she understood it, no person could be found in Victoria who would provide the assistance contemplated by the direction of Justice Weinberg and, as she understands it, there is no equivalent scheme in Brisbane by which assistance could be provided to her.
Be all this as it may, if, as Ms Ogawa appears to contend, the reference required by Justice Weinberg’s direction has not yet been made, it is not immediately apparent to me why, despite the intervention of the subsequent events to which I will shortly refer, effect could not still be given to his Honour’s direction. For present purposes, what is important is that if there has been any want of compliance with that direction, it is not on account of any refusal to attempt to give effect to it. It may be that it stems from difficulties presented by Ms Ogawa but, as I have already indicated, that is a matter about which I can form no concluded view.
In May 2004 Justice Marshall of the Federal Court ordered of his own motion that the proceeding be transferred to the Federal Magistrates Court. That order was made pursuant to section 32AB of the Federal Court of Australia Act 1976 (Cth) which provides, in part:
(1) If a proceeding is pending in the Court, the Court may, by order, transfer the proceeding from the Court to the Federal Magistrates Court.
(2) The Court may transfer a proceeding under subsection (1):
(a) on the application of a party to the proceeding; or
(b) on its own initiative.
Ms Ogawa and the University of Melbourne both contend that the transfer ordered by Justice Marshall was ordered despite objection of both the University and herself.
On the day following the order made by Justice Marshall Ms Ogawa sought to apply to the Federal Court for orders retransferring the proceeding from the Federal Magistrates Court back to the Federal Court in its Queensland District Registry. A judge of the Federal Court directed the registrar not to accept that application for filing and it was not filed. On 11 June 2004 the matter then pending in the Federal Magistrates Court was listed for directions in that court before Federal Magistrate Phipps. It appears that shortly before that date Ms Ogawa either filed or sought to file notice of motion seeking orders from the Federal Magistrates Court retransferring the proceeding back to the Federal Court.
When the matter came on for directions on 11 June 2004, Ms Ogawa told Federal Magistrate Phipps that she wished to withdraw her motion and to amend her statement of claim. Federal Magistrate Phipps gave Ms Ogawa leave to file an amended statement of claim, gave directions about any application which the University might make to strike out that statement of claim or otherwise to apply for summary disposition of the proceeding and fixed the time at which any such application should be heard.
On 9 July 2004 Ms Ogawa filed a further amended statement of claim. On the next day Ms Ogawa indicated to the solicitors for the University that she again intended to apply for an order that the proceeding be transferred back to the Federal Court of Australia. On 12 July 2004 Ms Ogawa filed notice of motion seeking such an order.
The University gave notice of motion to strike out Ms Ogawa’s amended statement of claim. Both this application and the application which Ms Ogawa had filed seeking retransfer of the proceedings to the Federal Court came on for hearing before Federal Magistrate Phipps on 27 July 2004. Counsel appeared pro bono for Ms Ogawa in connection with the application to retransfer the proceeding to the Federal Court, but did not appear on the pleading motion. The application to transfer the proceeding to the Federal Court was dismissed. The University’s application to strike out the pleading was adjourned for hearing on 5 August. On 5 August argument was heard in the Federal Magistrates Court about the application to strike out the pleading.
On 10 August Ms Ogawa applied to the Federal Court for what was called “an urgent order for the stay of the proceeding in the Federal Magistrates Court”. Justice North dismissed that application with costs. On 3 September 2004 Federal Magistrate Phipps delivered reasons for decision in relation to the University’s application to strike out Ms Ogawa’s pleading. He ordered that a considerable part of the pleading should be struck out, but that Ms Ogawa should have leave to file and serve a further amended statement of claim within a limited time.
On 8 September 2004 Ms Ogawa filed and served notice of motion in the Federal Court seeking leave to appeal from the orders which Federal Magistrate Phipps had made on 3 September dismissing her application for orders retransferring the proceeding to the Federal Court. She had earlier, on 2 August 2004, filed and served a like notice of motion. Both applications were dismissed by Justice Kenny on 1 October 2004.
On 7 September 2004 Ms Ogawa filed in this Court an application for special leave to appeal from what was described as “the whole of the judgment of the Federal Court of Australia given on 10 August 2004”. That order was the order of Justice North rejecting Ms Ogawa’s application for a stay of the proceedings in the Federal Magistrates Court. That application for special leave to appeal is still pending.
On 27 September 2004 Ms Ogawa filed an affidavit in this Court in support of an application for orders nisi for constitutional writs and associated relief directed to Justice Marshall, Federal Magistrate Phipps, Justice North and the University of Melbourne. On 6 October 2004 Ms Ogawa filed a further affidavit exhibiting an amended draft order nisi and it is convenient to deal with the matter by reference to that later statement of the relief which she would seek and the grounds upon which she would seek it.
It is necessary to record both the relief which Ms Ogawa would seek and the grounds upon which she would seek it. She seeks prohibition to Justice Marshall prohibiting him from further proceeding on the order of 4 May 2004 transferring the proceeding then pending in the Federal Court to the Federal Magistrates Court.
She seeks mandamus to Justice Marshall requiring him “to execute the outstanding pro bono referral under Order 80 of the Federal Court Rules”. She seeks certiorari to quash the order of Justice Marshall made on 4 May 2004, which is the order transferring the proceeding to the Federal Magistrates Court.
She then seeks certiorari to quash the orders made by Federal Magistrate Phipps, apparently to quash all of the orders made by his Honour. She further seeks certiorari to quash the order of Justice North made on 11 August 2004 which is the order refusing the stay and which is the order the subject of her application for special leave to appeal.
She further seeks prohibition directed to Federal Magistrate Phipps prohibiting him from further proceeding on his order of 27 July 2004 dismissing her motion of 12 July seeking transfer of the proceeding back to the Federal Court and she seeks mandamus to Federal Magistrate Phipps requiring him to consider and determine according to law that notice of motion of 12 July 2004.
Recognising that, at least in some respects, she makes this application outside the time fixed by the Rules of this Court within which application must be made for mandamus, she further applies for an order extending the time within which that relief might be given.
She propounds seven grounds in support of her application. It is as well to set them out verbatim, notwithstanding their length. They are as follows:
1. The First Respondent –
I interpolate Justice Marshall –
had no jurisdiction or exceeded jurisdiction to make an order dated 4 May 2004 transferring the proceeding to the Federal Magistrates Court for this case because:
(a) The First Respondent was obliged by s.22 of the Federal Court of Australia Act 1976 (Cth) to grant remedies in every matter before the Court in respect of a legal or equitable claim properly brought forward;
(b) In order to discharge that obligation, the First Respondent was required not to make a transfer order if the Federal Magistrates Court is unable to grant remedies either by legislative restriction or otherwise to which any of the parties appears to be entitled; and
(c) The Federal Magistrates Court is unable to grant remedies to the Applicant/Prosecutor irrespective of her entitlement for this case because:
(i) the Applicant/Prosecutor is unable to advance her claim without pro bono assistance; and
(ii) in the Federal Magistrates Court (unlike the Federal Court), there is no pro bono assistance scheme available for the Applicant/Prosecutor who is resident in Queensland.
(iii) the Federal Magistrates Court in fact could not find a pro bono counsel for the Applicant/Prosecutor for the Fourth Respondent’s pleading motion or any further proceedings.
2. The First Respondent is not functus officio in respect of the matter because:
(a) the pro bono referral which was:
(i) directed by Justice Weinberg on 17 December 2003; and
(ii) further represented by the First Respondent in person, through Ms Catherine Symons, the Associate to the First Respondent, and Registrar Tim Connard on 2 February 2004, 3 March 2004, 10 March 2004 and 4 May 2004.
has not been executed; and
(b) the Second Respondent has been hearing in effect only the Fourth Respondent’s claim in the proceeding as a result of the purported order of the First Respondent dated 4 May 2004.
3. There is an outstanding pro bono referral for the Applicant/Prosecutor which is unable to be executed in the Federal Magistrates Court but is able to be executed in the Federal Court.
4. The consequence of the order of the transfer dated 4 May 2004 made by the First Respondent is manifestly contrary to the intention of the First Respondent in that:
(a) The first Respondent stated to the effect that Registrar Tim Connard of the Federal Court would find a pro bono counsel for the Applicant/Prosecutor even though the matter was transferred to the Federal Magistrates Court. However, the Federal Magistrates Court did not have a pro bono referral agreement which allowed either Registrar Tim Connard or the Federal Magistrates Court to arrange pro bono assistance for the Applicant/Prosecutor;
(b) The First Respondent stated to the effect that the Federal Magistrates Court did not have a policy which the Federal Court had which required the Applicant/Prosecutor to pay the fees for videolink for a trial. However, according to the Second Respondent, the Federal Magistrates Court might well have the same policy as the Federal Court;
(c) The First Respondent stated to the effect that the transfer of the proceeding from the Federal Court to the Federal Magistrates Court was the only way to avoid the substantial risk that the Applicant/Prosecutor would not be able to actually proceed with the application. However, the transfer of the proceeding has resulted in making it impossible for the Applicant/Prosecutor to actually proceed with the application even before a trial; and
(d) The First Respondent stated to the effect that the Federal Magistrates Court would have an earlier hearing than the First Respondent who could not hear the application before next year. However, the transfer of the proceeding has resulted in making it impossible for the Applicant/Prosecutor to actually proceed with the application even before a trial.
5. The First Respondent’s order dated 4 May 2004 transferring the proceeding to the Federal Magistrates Court is not appealable.
6. The Second Respondent exceeded jurisdiction to make the purported order dated 27 July 2004 dismissing the Applicant/Prosecutor’s notice of motion dated 12 July 2004 seeking the transfer of the proceeding of the matter of MZ463 of 2004 back to the Federal Court in that:
(a) the Second Respondent considered that the Applicant/Prosecutor was required to establish the change of the circumstance since the proceeding had been transferred from the Federal Court by the order of the First Respondent dated 4 May 2004 and there is no law which imposes such requirement upon the Applicant/Prosecutor;
(b) the Second Respondent failed to have regard to:
whether the resources of the Federal Magistrates Court are sufficient to hear and determine the proceeding which the Federal Magistrate was required to have regard to by s.39(4)(c) of the Federal Magistrates Act 1999;
the interests of the administration of justice which the Federal Magistrate was required to have regard to by s.39(4)(d) of the Federal Magistrates Act 1999; and
the wishes of the parties which the Federal Magistrate was required to have regard to by the Federal Magistrates Rules 8.02(4)(e) and s.39(4)(a) of the Federal Magistrates Act 1999,
in that the Second Respondent failed to take into consideration that:
(i) the Applicant/Prosecutor is unable to advance her claim without pro bono assistance;
(ii) Justice Weinberg directed on 17 December 2003 that the Applicant/Prosecutor be granted pro bono assistance up to and including trial;
(iii) Justice Marshall promised the Applicant/Prosecutor on 4 May 2004 that Registrar Tim Connard of the Federal Court would find a pro bono counsel for the Applicant/Prosecutor even though the matter was transferred to the Federal Magistrates Court;
(iv) in the Federal Magistrates Court (unlike the Federal Court), there is no pro bono assistance scheme available for the Applicant/Prosecutor who is resident in Queensland;
(v) the Federal Magistrates Court in fact could not find a pro bono counsel for the Applicant/Prosecutor for the Fourth Respondent’s pleading motion or any further proceedings; and
(vi) the Fourth Respondent did not oppose the transfer of the proceeding back to the Federal Court.
7. The Second Respondent’s order dated 27 July 2004 dismissing the Applicant/Prosecutor’s notice of motion dated 12 July 2004 seeking the transfer of the proceeding of the matter of MZ463 of 2004 back to the Federal Court is not appealable.
None of these grounds is shown to be arguable. The Federal Court has power of its own motion to order the transfer of a proceeding pending in the Federal Court to the Federal Magistrates Court. Whether, as Ms Ogawa would wish to contend, this was not a proper case in which to make such an order is a challenge to the merits of the decision reached, not an allegation of want of jurisdiction or excess of jurisdiction.
In oral argument Ms Ogawa submitted that if the proceeding remained pending in the Federal Magistrates Court it would not go to trial whereas, had it remained pending in the Federal Court, it would have been able to be prosecuted to conclusion at trial. This contention appears to conflate two separate steps. The reference which Ms Ogawa makes to difficulties about the proceeding going to trial in the Federal Magistrates Court may be intended as a reference to the consequences that followed from the orders of Federal Magistrate Phipps striking out large parts of the applicant’s pleading. It is to be noted in that respect that Federal Magistrate Phipps gave Ms Ogawa leave to file an amended statement of her claim.
It may be, however, that Ms Ogawa intends by this submission to point to the difficulties which she contends she is having in obtaining appropriate pro bono assistance while the matter remains in the Federal Magistrates Court. In this respect, it is enough to say that the affidavit material which Ms Ogawa advances does not reveal an arguable case that there has been any refusal to give effect to the direction made by Justice Weinberg in December 2003 that Ms Ogawa be provided pro bono assistance up to and including the trial of her proceeding.
As I have said, there may appear to have been some difficulties encountered in carrying that direction into effect. It may be – again I emphasise I reach no conclusion about this – that Ms Ogawa may have contributed to those difficulties, but there is no sufficient evidence which would demonstrate that it is arguable that there has been any refusal to give effect to that direction. Absent evidence of a refusal to give effect to the direction, no case for mandamus is arguable.
It is, in these circumstances, not necessary – and in my opinion it would be undesirable – to consider the further difficult questions that may then have emerged about the availability of mandamus to remedy a refusal to give effect to the direction of Justice Weinberg. There being no evidence of refusal, the questions about the availability of mandamus are questions that need not be addressed. Nor do I consider that there is any reason to conclude that it is arguable that Federal Magistrate Phipps exceeded jurisdiction or lacked jurisdiction in dismissing Ms Ogawa’s application for an order retransferring the proceeding to the Federal Court.
There being no arguable ground for the relief which Ms Ogawa seeks, her application for orders nisi must stand dismissed. Accordingly, the application is dismissed.
MR GARNER: Your Honour, I would seek the costs of the application.
HIS HONOUR: Yes. Ms Ogawa, there is an application for costs. Is there any basis upon which you can resist that?
MS OGAWA: This is order nisi ex parte application so I do not think this is appropriate case to award costs.
HIS HONOUR: Yes, thank you. The University of Melbourne was given notice of the application for orders nisi and appeared to resist the grant of that relief. In those circumstances, I am of the opinion that the proper order to make is application for order nisi dismissed with costs. I will certify for the attendance of counsel.
Adjourn the Court.
AT 10.53 AM THE MATTER WAS CONCLUDED
Key Legal Topics
Areas of Law
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Civil Procedure
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Insolvency
Legal Concepts
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Abuse of Process
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Stay of Proceedings
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Injunction
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Jurisdiction
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