Ogawa, Ex parte - Re University of Melbourne

[2004] HCATrans 565

[2004] HCATrans 565

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry         
  Melbourne  No M193 of 2004

In the matter of -

An application for Writs of 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

TIM CONNARD, A REGISTRAR OF THE FEDERAL COURT

Fifth Respondent

THE HONOURABLE SUSAN KENNY, A JUDGE OF THE FEDERAL COURT

Sixth Respondent

Ex parte –

MEGUMI OGAWA

Applicant/Prosecutor

Office of the Registry         
  Melbourne  No M200 of 2004

In the matter of -

An application for Writs of Mandamus, Prohibition and Certiorari against JAMIE WOOD, A REGISTRAR OF THE FEDERAL COURT

First Respondent

THE HONOURABLE SUSAN KIEFEL, A JUDGE OF THE FEDERAL COURT

Second Respondent

THE HONOURABLE JOHN DOWSETT, A JUDGE OF THE FEDERAL COURT

Third Respondent

FEDERAL MAGISTRATE MAURICE PHIPPS

Fourth Respondent

THE HONOURABLE SUSAN KENNY, A JUDGE OF THE FEDERAL COURT

Fifth Respondent

UNIVERSITY OF MELBOURNE

Sixth Respondent

Ex parte –

MEGUMI OGAWA

Applicant/Prosecutor

HEYDON J

(In Chambers)

TRANSCRIPT OF PROCEEDINGS

FROM BRISBANE AND MELBOURNE BY VIDEO LINK TO CANBERRA

ON THURSDAY, 9 DECEMBER 2004, AT 8.45 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 respondent.  (instructed by Minter Ellison)

HIS HONOUR:   Before we begin, the Deputy Registrar has certified that she has been informed by the District Registrar of the Federal Court that Justices Marshall, North and Kenny and Deputy Registrar Connard, who have been named as respondents in M193 of 2004, will abide by any decision of the Court save as to costs. 

The Deputy Registrar also certifies that she has been informed by the District Registrar of the Federal Court that Justices Kiefel, Dowsett and Kenny and District Registrar Wood, who have been named as respondents in M200 of 2004, will abide by any decision of the Court save as to costs.  She further certifies that she has been informed by the Registrar of the Federal Magistrates Court that Federal Magistrate Phipps, who has been named as the respondent in both M193 of 2004 and M200 of 2004, will submit to the order of this Court save as to costs.

Ms Ogawa, I have read your affidavits of 26 October 2004 and 22 November 2004, which you have filed in M193 of 2004 and I have also read your affidavit of 19 November 2004, which you filed in M200 of 2004.  Those affidavits and the exhibits to them are admitted into evidence.  Do you want to add anything?

MS OGAWA:   Yesterday I sent to Registrar a summary of argument in the matter of M157 and M194 of 2004.  That is the special leave application pending the hearing in this Court and dealing with the same matter.

HIS HONOUR:   I have that.

MS OGAWA:   Also I sent a ‑ ‑ ‑

HIS HONOUR:   I have got that.

MS OGAWA:   Yes, a page from that Federal Court website.  That is the application – of course, my application in the Federal Magistrates Court are struck off; not whole lot but considerable part are struck out.  I brought the same thing to the Federal Court and passed it to registrar and judge to file it.  I have not receive – I did not receive sealed copy at that moment, so I sent the web page, which is already registered.

What happen is that those applications are in a series of applications.  The first one is already heard by this Court in the matter of M169 of 2004.  What happen is that I had already referral in the Federal Court up to and including trial.  That direction was outstanding but transferred to the Federal Magistrate Court.  When Marshall J ordered the transfer – the same pro bono is available in the Federal Magistrate Court, so I do not have to worry about it, but unfortunately that has not happened.  So I apply this Court to bring the proceedings back to the Federal Court, but Justice Hayne said last time was that pro bono order is still ineffective in the Federal Magistrate Court.  So all Justice Marshall said – what Justice Marshall said was correct.  So there is no error of jurisdiction.  I can go back to the Federal Magistrate Court and can have a pro bono lawyer.

His Honour said I am entitled, but that sort of key word is, of course, disappear from the transcript.  In any event, those are not orders of the court, so nothing could happen.  So I again applied this time.  Federal Court wrote a nice letter.  So it evidences that the Registrar did not find a lawyer.  If they try to find I am sure they could help find.  So I have to ask your Honour again to bring the proceeding back to the Federal Court.  As soon as I will sit down perhaps the other party will stand up and say that the proceeding does not have to go back to the Federal Court, but whatever other party says, that is not correct.  Evidence is that I do not have pro bono lawyer.  It is impossible to obtain the pro bono systems in the Federal Magistrate Court.

I do not know what Australian law is like, so I made all sorts of application hoping some of them may correct way to apply this sort of problem.  The M193 is the first one…..quash the transfer order.  Then everything go back to that point where transfer has not been made.  Then I can get the pro bono systems and amend the statement of claim and go to trial.  If it is not possible, I want your Honour to bring the person back to the Federal Court by my special leave application.  That is…..from the order, dismissing my motion by notice seeking order to transfer the proceeding back to the Federal Court.  That motion was put before the Federal Magistrate and he did not agree.

If it is not possible, please stop the proceeding of the Federal Magistrate Court - that is the application M200.  That itself does not help me at all, but because I persuaded the registrar and the judge of the Federal Court and they accept for filing of the same application.  Federal Court will look after me.  Those are the application to me.  That is all, your Honour.

HIS HONOUR:   Yes, thank you.  You have nothing more to say?

MS OGAWA:   No.

HIS HONOUR:   Very well, thank you.  Just have a seat.

There are two applications before the Court in its original jurisdiction.  The first, matter No M193 of 2004, is an application for orders nisi supported by two affidavits of the applicant, respectively dated 26 October and 22 November 2004.  The second, matter No M200 of 2004, is an application for orders nisi supported by an affidavit of 19 November 2004.

A central concern of the applicant is her claim that a direction of Justice Weinberg dated 17 December 2003, made in proceedings in which the applicant sued the University of Melbourne in the Federal Court of Australia, and which are numbered Q136 of 2003, has not been complied with.  That direction is recorded as follows:

“The court directs that:

1.        The applicant be granted pro bono assistance pursuant to Order 80 of the Federal Court Rules, up to and including trial.”

The power to make that direction is found in Order 80 rule 4 sub‑rule (1).

Another concern of the applicant is that Justice Marshall transferred the Federal Court proceedings to the Federal Magistrates Court on 4 May 2004.  The present applications are two, among many sets of proceedings, seeking to have the litigation returned to the Federal Court of Australia and seeking pro bono assistance in that court.

The orders sought in each application are orders to show cause why prerogative writs, of the kind referred to in section 75(v) of the Constitution, should not be issued. It is thus necessary for the applicant to demonstrate arguable grounds of jurisdictional error. It is not enough merely to challenge the merits of the decisions which led to the orders complained of.

Turning to the orders sought by the applicant in M193 of 2004, paragraph 1 of the draft order nisi requires the respondents to show cause why a writ of mandamus should not be directed to the fifth respondent, Tim Connard, described as a Registrar of the Federal Court, to attempt to arrange for legal assistance, presumably pursuant to Justice Weinberg’s direction of 17 December 2003.

Among the evidence filed by the applicant is a letter to her from a deputy registrar of the Federal Court dated 22 October 2004.  It was not in evidence before Justice Hayne in earlier proceedings in this Court, M163 of 2004, which he heard on 13 October 2004.  That letter establishes that Mr Connard had arranged in succession two barristers to assist the applicant.  The first terminated his pro bono retainer because, according to the barrister, the applicant had made accusations rendering it impossible for him to act.  The second ceased to act because, according to him, the applicant had requested him to cease acting.

Mr Connard then granted leave to that barrister to cease to act, pursuant to Order 80 rule 8.  Mr Connard is recorded as having decided that Justice Weinberg’s direction has been discharged.  Whatever the truth of what the barrister said, once Mr Connard granted leave under Order 80 rule 8 he made an order within jurisdiction, having the effect of discharging Justice Weinberg’s direction.  Hence, there is no arguable ground for the relief sought in paragraph 1 of the draft order nisi.

Paragraph 3 of the draft order nisi calls on the respondents to show cause why a writ of certiorari should not go to Justice Marshall quashing his order of 4 May 2004, transferring Q136 of 2003 to the Federal Magistrates Court.  Paragraph 2 of the draft order nisi appears to be a related order of mandamus.  The applicant has already challenged Justice Marshall’s order of 4 May 2004.  Justice Hayne rejected her challenge on 13 October 2004 in proceedings M163 of 2004.  It is an abuse of process to have renewed it.

In any event, Justice Marshall was acting within jurisdiction.  Further, it seems that those orders are sought only to facilitate the order of mandamus sought against Registrar Connard:  see the applicant’s affidavit of 26 October, paragraphs 33 and 34, which reveal an assumption that Justice Weinberg’s direction of 17 December 2003 can only be given effect to while Q136 of 2003 is in the Federal Court.  That is not so.  In any case, as explained above, that direction has been discharged.

Paragraph 4 of the draft order nisi calls on the respondents to show cause why a writ of certiorari should not issue to quash an order of Federal Magistrate Phipps in MZ463 of 2004.  By that order of 3 September 2004, the Magistrate dismissed an application by the applicant for orders retransferring her proceedings against the University of Melbourne to the Federal Court.  The order which the applicant is seeking should not be made since the Magistrate had jurisdiction to make the order of 3 September 2004.  What is more, to seek it is an abuse of process since Justice Hayne declined to make a similar order on 13 October 2004.

Paragraph 5 of the draft order nisi calls on the respondents to show cause why a writ of certiorari should not be issued to quash orders of Justice North on 11 August 2004.  On or about that day Justice North made orders refusing the applicant’s application to stay the proceedings in the Federal Magistrates Court.

Paragraph 6 is in similar terms, and relates to orders of Justice Kenny on 1 October 2004.  On that day she refused the applicant leave to appeal against orders made in the Federal Magistrates Court.

The grounds on which these orders are sought are obscure.  It may be that they rest on the assumption that if Justice Marshall’s transfer order of 4 May 2004 is void and should be quashed, any orders made in the transferred proceedings are void or liable to be quashed.  That assumption would be incorrect, even if Justice Marshall’s order were to be quashed, which it should not be.  A similar application in relation to Justice North’s orders was refused by Justice Hayne on 13 October 2004, rendering the present application an abuse of process in that respect.

Paragraph 7 of the draft order nisi seeks an extension of time in relation to mandamus.  In the circumstances this issue does not arise.  It follows that the orders sought in M193 of 2004 should be refused for the foregoing reasons. 

A further reason for refusing some of those orders is that so far as the orders of the Federal Court and the Federal Magistrates Court complained of are capable of being challenged on appeal, that process should be employed rather than the process of seeking constitutional writs from this Court.  Indeed, since the applicant has in fact employed the process of appeal, that renders her institution of parallel proceedings in the original jurisdiction of this Court an abuse of process.

In addition, some of the orders of which the applicant complains are directed to procedural disputes, which are relatively minor, although it is true that the applicant does not see them that way. It would be unusual for the Court to exercise its discretion to grant section 75(v) relief in matters of that kind.

Turning to the orders sought in M200 of 2004, paragraph 1 of the draft order nisi calls on the respondents to show cause why a writ of mandamus should not be directed to Mr Wood, a Federal Court registrar, to consider and determine according to law a notice of motion filed by the applicant on 10 August 2004 in MZ463 of 2004.  That notice of motion sought an order that a pro bono counsel for the applicant be appointed in Queensland and that the proceedings be stayed until that appointment.

On 13 August 2004 the registrar informed the applicant that he refused to accept her notice of motion and affidavit in support because it was frivolous.  It was frivolous because the FederalMagistrates Act and the Federal Magistrates Rules did not allow the applicant to seek appointment of pro bono counsel by notice of motion.  Rather, she should have made a request under Part 12 of the Rules.  He said he would treat the notice of motion as a request for assistance under Part 12, and he said that he had referred it to a magistrate to be dealt with under Part 12.  The registrar’s conduct is not demonstrated to have been outside jurisdiction or to have constituted a failure to exercise jurisdiction.

Paragraph 2 of the draft order nisi calls on the respondents to show cause why a writ of certiorari should not issue against Federal Magistrate Phipps and Justice Kenny to quash orders made by them after 10 August 2004.  Paragraph 3 is a similar order of prohibition against the magistrate prohibiting him from further proceeding on the orders made after 10 August 2004.

No basis for this relief has been shown.  It may rest on the view that had Registrar Wood accepted the notice of motion of 10 August 2004, that would have had the effect of staying the Federal Magistrates Court proceedings automatically.  If so, that view is fallacious because no automatic stay would have flowed.

It may rest on the view that since Registrar Wood ought to have stayed the proceedings, steps taken in relation to them thereafter should be quashed.  If so, the conclusion does not follow since, as indicated above, no error on the part of Registrar Wood as to jurisdiction has been shown.  For that reason, the relief in paragraphs 2 and 3 must be refused.  Paragraph 4 seeks an extension of time in relation to mandamus, which need not be dealt with.

Justices Kiefel and Dowsett are joined as the second and third respondents in proceedings M200 of 2004, and complaints are made about them in the applicant’s affidavit dated 19 November 2004.  However, since no specific relief is claimed against them, nothing more need be said about them.

Since no arguable ground for relief sought by the applicant in her two applications has been demonstrated, each application is dismissed.  Mr Garner, do you have any application?

MR GARNER:   Yes ‑ ‑ ‑

MS OGAWA:   Sorry, your Honour.  I know that I cannot say a word at this moment, but your Honour’s factual understanding is an error.  The ‑ ‑ ‑

HIS HONOUR:   Ms Ogawa, please sit down ‑ ‑ ‑

MS OGAWA:   But your Honour made a misunderstanding of the error.  Your Honour did not comprehend the important fact, which is the basis of my application.  Your Honour said that Weinberg J’s pro bono direction was discharged because of my second – first and second pro bono lawyer is discharged, but first pro bono lawyer is appointed under Kiefel J’s directions of Order 80, not Weinberg J.  So it is irrelevant.  Second lawyer is the one I asked to act for me only for the security for cost proceeding, not for the whole entire directions – Weinberg J’s directions.  That is important to that court, and Marshall J knows it.

So Marshall J said when he made a transfer on 2 February which – a transcript of which is included in my affidavit as in evidence and which is admitted to this Court – Marshall J said that they are only for the security for cost, the second pro bono lawyers appointed after the security for cost, the pro bono lawyer to satisfy Weinberg J’s directions to look after for my rest of the proceedings be appointed.  That is what Marshall J said.

Your Honour did not comprehend the crucial facts.  That is different.  Because of the security for cost finished, my second pro bono lawyer is discharged.  Tim Connard has to look for the subsequent lawyer to satisfy that direction of Weinberg J.  It is commonly understood by Marshall J and, of course, me.  Marshall J believes that it will happen.  It did not happen because Registrar Tim Connard did not look for.

Your Honour’s understanding of the crucial fact is in error.  If facts is correctly understood, your Honour’s order must have been different.  If I could not write the affidavit in a comprehensible way – well, perhaps I could not write it in a way which would make sense, but I am not a lawyer so that sort of thing happen.

HIS HONOUR:   Yes.  Have you finished?

MS OGAWA:   Why your Honour did not ask me that crucial facts, whether it is correct or not and makes such a decision ‑ ‑ ‑

HIS HONOUR:   Have you finished, Ms Ogawa?  Have you finished?  Now, Mr Garner ‑ ‑ ‑

MS OGAWA:   Your Honour, factual error is error.

HIS HONOUR:   Mr Garner, have you anything to say?

MR GARNER:   Yes, your Honour, I would apply for costs in both applications.  In application No M193 of 2004 I would apply for costs on an indemnity basis.  Your Honour, in your Honour’s reasons has pointed out that it was an abuse of process to seek the relief that was sought against Justice Marshall, Magistrate Phipps and Justice North.  The same relief had been sought before Justice Hayne in proceeding No M169 of 2004.  That relief was again opposed by the University today, your Honour, and in that circumstance, in my submission, it is appropriate for an order for indemnity costs to be made.  In relation to the second proceeding, I would simply seek costs in the ordinary manner, your Honour.

HIS HONOUR:   Thank you.  Ms Ogawa, do you have anything to say against the application that Mr Garner has just made?

MS OGAWA:   Actually, first thing is that the orders your Honour pronounced is wrong. 

HIS HONOUR:   Yes, you have said ‑ ‑ ‑

MS OGAWA:   Your Honour, now – after my explanation, your Honour must have understood that your Honour oversighted one crucial evidence, the transcript of 2 February which put before the Court and your Honour did not read the letter from the Federal Court in the way in which it is literally written.  So, before considering the costs, that substantive order should be reconsidered.  If I could not make ‑ ‑ ‑

HIS HONOUR:   Ms Ogawa, do you have anything to say against Mr Garner’s application for costs?

MS OGAWA:   Of course, it should not happen because if the Court appointed the pro bono lawyer nothing should have happened.  Court promised me to appoint a lawyer after the security for costs proceeding.  Court lied and ordered the transfer and honestly believed the litigants should not be betrayed.  If this continues, that nobody believes that Court will act judicially.  Your Honour realised that facts your Honour pronounced is not correct.  Why cannot it correct it?  I cannot understand.  The judge is the person who corrects the mistakes and this is the Court to correct the mistakes made by the courts below.  Whatever I said, your Honour will not listen.  I know it.  But that is not correct.  That should not happen. 

HIS HONOUR:   Yes, have you anything else?

MS OGAWA:   Your Honour just ignore it, I was just believe that I give up and that is it?  Or your Honour’s fellow judges will not do anything so your Honour does not have to correct the mistake.  Is that your Honour’s idea? 

HIS HONOUR:   I do not think what you are saying is helping at all, Ms Ogawa.  Would you just take a seat.

MS OGAWA:   Well, but your Honour pronounced that there are two pro bono lawyers appointed and discharged so it satisfied Justice Weinberg.  Is not that the order that your Honour pronounced?  That is not correct.

HIS HONOUR:   Ms Ogawa, please sit down.  In each case, I order the applicant to pay the costs of the University of Melbourne.  In proceedings M193 of 2004 the order is that the costs be paid on an indemnity basis because of the overlapping nature of these proceedings with those heard by Justice Hayne on 13 October.  I certify that this was an appropriate matter for the attendance of counsel in Chambers.  Please adjourn the Court.

AT 9.14 AM THE MATTERS WERE CONCLUDED