Ogawa (formerly Ms PD) v President of the Australian Human Rights Commission (Leave to Appeal)
[2022] FCAFC 161
•23 August 2022
FEDERAL COURT OF AUSTRALIA
Ogawa (formerly Ms PD) v President of the Australian Human Rights Commission (Leave to Appeal) [2022] FCAFC 161
Appeal from: PD v President, Australian Human Rights Commission (No 2) [2021] FCA 851
Ms PD v Registrar of the Federal Court of Australia (No 2) [2021] FCA 1665
File number(s): QUD 352 of 2021
QUD 385 of 2021Judgment of: RARES, PERRY AND HESPE JJ Date of judgment: 23 August 2022 Catchwords: ADMINISTRATIVE LAW – apprehension of bias – application for primary judge to recuse himself – where primary judge involved in three previous proceedings to which applicant was a party – where primary judge had previously found in applicant’s favour – whether fair-minded lay observer might reasonably apprehend that primary judge might determine case other than on its legal and factual merits – Held: application for leave to appeal dismissed
PRACTICE AND PROCEDURE – costs – where primary judge found that Registrar erred in rejecting for filing application for extension of time – where Registrar filed submitting appearance in proceeding brought against registry officer to challenge that decision – whether primary judge erred by failing to order Registrar to pay self-represented applicant’s out-of-pocket expenses – Held: application for leave to appeal dismissed
Legislation: Federal Court of Australia Act 1976 (Cth) ss 37AF and 37AG
Federal Proceedings (Costs) Act 1981 (Cth)
Migration Act 1958 (Cth)
Federal Court Rules 2011
Cases cited: Bienstein v Bienstein (2003) 195 ALR 225
Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337
EEU20v Meat Industry Employees’ Superannuation Fund Pty Ltd (Trustee) (No 2) [2020] FCA 1536
GetSwift Ltd v Webb (2021) 283 FCR 328
House v The King (1936) 55 CLR 499
Johnson v Johnson (2000) 201 CLR 488
Livesey v New South Wales Bar Association (1983) 151 CLR 288
Minister for Home Affairs v Ogawa (2019) 269 FCR 536
Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v AAM17 (2021) 388 ALR 257
Ms PD v Registrar of the Federal Court of Australia (No 2) [2021] FCA 1665
Ms PD v Registrar of the Federal Court of Australia [2021] FCA 1197
Ogawa (formerly Ms PD) v President of the Australian Human Rights Commission (Pseudonym) [2022] FCAFC 160
Ogawa v Carter (Delegate of Finance Minister) [2021] FCAFC 16
Ogawa v Carter [2020] FCA 828
Ogawa v Finance Minister [2020] FCA 829
Ogawa v Finance Minister [2021] FCAFC 17
Our Town FM Pty Ltd v Australian Broadcasting Tribunal (No 3) (1987) 77 ALR 609
Pham v Victims of Crime Assistance Tribunal (No 2) [2016] VSCA 135
Rana v Registrar Cridland (No 2) [2021] FCA 1212
Re JRL; ex parte CJL (1986) 161 CLR 342
Re Minister for Immigration and Multicultural and Indigenous Affairs; ex parte Lam (2003) 214 CLR 1
Webb v The Queen (1994) 181 CLR 41
Division: General Division Registry: Queensland National Practice Area: Administrative and Constitutional Law and Human Rights Number of paragraphs: 44 Date of hearing: 23 August 2022 Counsel for the Applicant: The Applicant appeared in person Counsel for the Second Respondent: Mr N Swan Solicitor for the Second Respondent: Australian Government Solicitor Amicus curiae: Mr C Jennings KC ORDERS
QUD 352 of 2021 BETWEEN: MEGUMI OGAWA
Applicant
AND: PRESIDENT OF THE AUSTRALIAN HUMAN RIGHTS COMMISSION
First Respondent
COMMONWEALTH OF AUSTRALIA
Second Respondent
ORDER MADE BY:
RARES, PERRY AND HESPE JJ
DATE OF ORDER:
23 AUGUST 2022
THE COURT ORDERS THAT:
1.The application for leave to appeal be dismissed.
2.The applicant pay the second respondent’s costs.
3.On or before 30 August 2022, the applicant file and serve an affidavit in support of any order that she seeks that her pseudonym “Ms PD” be maintained, together with submissions limited to 5 pages.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
ORDERS
QUD 385 of 2021 BETWEEN: MEGUMI OGAWA
Applicant
AND: REGISTRAR, FEDERAL COURT OF AUSTRALIA
Respondent
ORDER MADE BY:
RARES, PERRY AND HESPE JJ
DATE OF ORDER:
23 AUGUST 2022
THE COURT ORDERS THAT:
1.The application for leave to appeal be dismissed.
2.There be no order as to costs.
3.On or before 30 August 2022, the applicant file and serve an affidavit in support of any order that she seeks that her pseudonym “Ms PD” be maintained, together with submissions limited to 5 pages.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
REASONS FOR JUDGMENT
(Revised from the Transcript)THE COURT:
These are two applications for leave to appeal from decisions of, first, Logan J refusing to order that the Registrar of the Court pay the applicant’s costs (the costs application) in respect of an erroneous decision to refuse to accept for filing her application for leave to appeal against a second decision, being that of Rangiah J, who had refused to recuse himself from further hearing the substantive proceeding brought by the applicant (the recusal application).
The applicant’s pseudonym
At the beginning of the hearing today, the Court asked the parties what was the reason for the applicant having a pseudonym. There was no order for a pseudonym in the proceeding the subject of the recusal application, which the applicant had commenced using the pseudonym “Ms PD”. In the proceeding the subject of the costs application, that the applicant commenced later, Logan J ordered on 31 August 2021 as follows:
1.The name, as opposed to the assigned pseudonym, of the applicant not be published, save with the leave of the Court or a judge first had and obtained.
2.Any copy of the transcript of the proceeding not be published in a way that records the name, as opposed to the assigned pseudonym, of the applicant without the leave of the Court or a judge first had and obtained.
His Honour did not identify any reason for making the orders under the powers in s 37AF of the Federal Court of Australia Act 1976 (Cth) (the Federal Court Act) or any ground for the orders as would ordinarily be required under s 37AG(2).
The Court gave the applicant until 30 August 2022 to identify a basis on which the suppression orders should be maintained.
The principles on which the Court determines whether leave to appeal should be granted are well settled. An applicant for leave, first, must establish that the decision in question is attended with sufficient doubt to warrant the grant of leave and, secondly, must show that substantial injustice will result from a refusal of leave to appeal: Bienstein v Bienstein (2003) 195 ALR 225 at 231 [29] per McHugh, Kirby and Callinan JJ.
The costs application
On 31 August 2021, Logan J held that the Registrar had erred in refusing, under rr 2.26 and 2.27 of the Federal Court Rules 2011, to accept the application seeking leave to appeal from Rangiah J’s recusal decision and directed that the Registrar accept it for filing, giving reasons for doing so: Ms PD v Registrar of the Federal Court of Australia [2021] FCA 1197. He substituted the Registrar as respondent in lieu of the named registry officer with whom the applicant had corresponded. Before the substitution, the named registry officer had filed a submitting appearance except as to costs. The effect of Logan J’s order for substitution was that the submitting appearance took effect as being filed by the Registrar. That led to the applicant seeking an order for costs against the Registrar.
At the second hearing, his Honour informed the applicant of the principles to which Mortimer J had referred in EEU20v Meat Industry Employees’ Superannuation Fund Pty Ltd (Trustee) (No 2) [2020] FCA 1536. He referred to the possibility that the Federal Proceedings (Costs) Act 1981 (Cth) had a lacuna that did not cover the unfortunate situation that had arisen, where the applicant had to seek an order from the Court to be able to file her application for leave to appeal that she should have been entitled to file as of right.
On 4 November 2021, his Honour gave reasons why it was not appropriate, in the exercise of his discretion under s 43 of the Federal Court Act, to order that the Registrar pay any costs: Ms PD v Registrar of the Federal Court of Australia (No 2) [2021] FCA 1665.
Logan J recorded that the applicant had sought a costs order to recover her out of pocket expenses. He found that she had acted appropriately in bringing the application to review the Registrar’s, or the registry officer’s decision and, indeed, that this was the only course effectively open to her in the circumstances. Nonetheless, his Honour found that principles applicable to the award of costs against an independent decision-maker, such as a tribunal, were apposite to be applied in the exercise of his discretion not to order costs by analogy against a person in the position of the Registrar who had submitted to any order the Court might make except as to costs. He referred to EEU20 [2020] FCA 1536, where Mortimer J applied the remarks of the Court of Appeal of the Supreme Court of Victoria in Pham v Victims of Crime Assistance Tribunal (No 2) [2016] VSCA 135 at [5] in a similar situation. Logan J also referred to the explanation for the approach taken in cases such as the present, that Wilcox J had given in Our Town FM Pty Ltd v Australian Broadcasting Tribunal (No 3) (1987) 77 ALR 609 at 612, namely:
It seems to me somewhat hard for the courts at the one time to tell the tribunal that it should not actively intervene to defend its decision and, at the same time, to order the tribunal to pay costs if, without having had an opportunity of defending its position, the decision is held to be bad in law.
Logan J concluded (at [14]) that “the present is not a case where the circumstances are such as to warrant the awarding of even out of pocket expenses against a submitting party, in this case the Registrar” and dismissed the application.
The applicant’s submissions on the costs application
The applicant argued that his Honour had acted on a wrong principle because, she contended, in some way, in Rana v Registrar Cridland (No 2) [2021] FCA 1212, White J had concluded that a costs order of the kind she sought should be made.
During the course of argument today the applicant sought leave to amend her draft notice of appeal to add a further ground of appeal that she had been denied procedural fairness when his Honour substituted the Registrar for the named registry officer. The applicant contended that she had been denied procedural fairness because his Honour had raised issues at case management hearings without her being apprised that he would make dispositive orders, first, on 31 August 2021, when directing the Registrar to accept her documents for filing and substituting the Registrar as the respondent and, secondly, on 4 November 2021, in making the costs order.
Consideration – the costs application
It is impossible to discern any basis to suggest that Logan J erred in the exercise of his discretion by refusing to order that the Registrar pay the applicant’s costs. He applied the correct principles, asked himself the correct question, had regard to all relevant considerations and did not have regard to any irrelevant considerations. There is no basis on which it could be said that his Honour erred within the principles in House v The King (1936) 55 CLR 499 at 504–505 per Dixon, Evatt and McTiernan JJ.
The applicant is on a bridging visa and she told us that she is entitled to a waiver of any court fees. When the Court asked the applicant what costs she may have been able to recover, she indicated that they could be telecommunication costs, that is, some unidentified cost of using the internet to lodge documents, and, possibly, some printing costs. That was an insufficient basis to warrant the exercise of the discretion to order costs. White J found in Rana [2021] FCA 1212 at [9], that there are circumstances in which a successful self-represented litigant may be entitled to recover expenses. However, White J decided, in the exercise of his discretion, not to allow Mr Rana’s printing costs which could be fairly regarded as out of pocket expenses or to make any order against the Registrar. It follows that White J’s decision provided no support for the applicant’s contention that she had an entitlement to a costs order.
As she stated during the course of argument, the applicant’s real object was to obtain a costs order against the Commonwealth or an officer of the Commonwealth for the purposes of being able to use it in connection with the subject matter of other proceedings or a visa application. She has experienced difficulties in obtaining a visa because she has outstanding amounts of costs owed to the Commonwealth based on earlier orders made against her in other proceedings. That purpose provided no basis to make the order for costs that she sought.
There is also no basis for the applicant’s claim that she was denied procedural fairness. She did not identify any practical injustice in Logan J’s decision to substitute the Registrar or in refusing to make the costs order after his Honour had given her an opportunity to address the principles that he had explained to her earlier in the second hearing: Re Minister for Immigration and Multicultural and Indigenous Affairs; ex parte Lam (2003) 214 CLR 1 at 14 [37]–[38] per Gleeson CJ.
Here, there is no doubt at all that the decisions of Logan J were correct, and the applicant identified no injustice that could flow from a refusal of leave to appeal. The costs application is without merit and has no prospect of success. It should be refused with no order as to costs.
The recusal application
The second application is against Rangiah J’s refusal to recuse himself. The issue in the proceeding before Rangiah J involves claims by the applicant that the President of the Australian Human Rights Commission made two errors in a report, namely that the President, first, wrongly found that, for a period of about three months, the applicant was an unlawful non-citizen for the purposes of the Migration Act 1958 (Cth) and, secondly, denied her procedural fairness in making that finding.
On 7 July 2021, the applicant applied to Rangiah J for leave to amend her originating application. His Honour’s associate emailed to the parties some procedural directions that his Honour made. That led to the applicant filing, on 12 July 2021, the interlocutory application seeking that his Honour recuse himself. His Honour heard that application on 22 July 2021 and delivered reasons ex tempore in which he refused to grant the relief sought.
The applicant had put to his Honour that he ought disqualify himself because of his involvement in three proceedings to which she was a party (and in respect of which she did not have a pseudonym), namely, first, Minister for Home Affairs v Ogawa (2019) 269 FCR 536 (the Home Affairs case); secondly, Ogawa v Carter [2020] FCA 828 (that the Full Court affirmed in Ogawa v Carter (Delegate of Finance Minister) [2021] FCAFC 16) (the Carter case); and, thirdly, Ogawa v Finance Minister [2020] FCA 829 (that the Full Court affirmed in Ogawa v Finance Minister [2021] FCAFC 17) (the Finance Minister case).
Rangiah J recorded that the applicant submitted that, as a result of findings that his Honour had made and other aspects of his involvement in those cases, a fair-minded lay observer might apprehend that he might not bring an unbiased and impartial mind to the determination of the substantive proceeding.
His Honour noted that, in the Home Affairs case 269 FCR 536, the majority, Davies, Rangiah and Steward JJ, of which he was part, dismissed the Minister’s appeal from the decision of Logan J that set aside the Minister’s refusal to grant the present applicant’s visa under s 501 of the Migration Act. However, the majority (at 565 [137]) rejected one of Dr Ogawa’s arguments (which Logan J had accepted). They found, applying administrative law principles, that the Minister’s conclusion that it was unlikely that Dr Ogawa would be granted a pardon or succeed on an appeal was, in fact, one which was open to the Minister, acting reasonably.
In the Finance Minister case [2021] FCAFC 17 at [12], the Full Court found that in oral submissions, the applicant had not pressed her argument, that Rangiah J ought to have disqualified himself because of his involvement in the Home Affairs case 269 FCR 536 and the majority’s finding at 565 [137]. Their Honours also found that she had not raised the issue of recusal at all in those proceedings when she appeared before Rangiah J. As their Honours said:
there is nothing in his Honour’s participation in the joint majority judgment in that case in the Full Court remotely capable of giving rise to a reasonable apprehension that his Honour might not have brought an impartial and unbiased mind to the resolution of the issues raised in the original jurisdiction in the present proceeding. That is the relevant test: Michael Wilson [& Partners Ltd v Nicholls (2011) 244 CLR 427], at [31], and the authorities cited at fn 27.
(emphasis added)
Rangiah J said that those views of the Full Court applied equally in respect of the hearing of the substantive proceeding currently before his Honour.
His Honour noted that in the Finance Minister case [2021] FCAFC 17, the applicant had complained that he had refused to hear grounds of review other than that of legal unreasonableness. But, as Rangiah J pointed out in his reasons for refusing to recuse himself at [26], although he gave her leave to amend her claim, the applicant, first, did not utilise that leave by making the amendments and, secondly, did not press any alternative ground to legal unreasonableness in her written submissions or oral argument. He determined the ground adversely to her on ordinary administrative law principles. He noted that the Full Court found that no further grounds had been raised before his Honour.
In the Carter case [2021] FCAFC 16, the Full Court affirmed his Honour’s dismissal of the applicant’s application for judicial review, saying that the applicant “sensibly” had not pressed a contention that he should have disqualified himself there.
Rangiah J identified the applicant’s most recent contention as to why he should recuse himself, the subject of this application, as being that his prior participation in the three proceedings could give rise to an apprehension of bias. He recorded one of the applicant’s complaints as being that in case management hearings he had ruled against her too quickly, said little in the hearing, and that the hearing had not taken longer than an hour, albeit she did not raise, nor did she raise on this application before the Full Court, that there was anything more she wished to say or ought to have said. His Honour considered that there was nothing in the material before him by reason of which a fair-minded lay observer might reasonably apprehend that he might not bring an impartial mind to the resolution of the substantive proceeding.
Rangiah J then found that, whether considered individually or in combination, the three previous proceedings in which he had participated did not give rise to any basis for the application that he recuse himself.
The applicant’s submissions on the recusal application
In her affidavits and submissions in support of her application for leave to appeal, the applicant asserted that his Honour did not understand her use of English, which is not her first language, and, effectively, could not understand what she was saying. She contended that in giving directions on 8 July 2021, through his associate’s email, for the hearing of the application to amend her originating application in the substantive proceeding, his Honour somehow denied her procedural fairness which led to her immediately applying for him to recuse himself. She repeated her assertions that his involvement in the previous three cases somehow gave rise to an apprehension of bias. And last, she asserted that, in revising his ex tempore reasons the subject of her present application, his Honour somehow revealed a basis for suggesting an apprehension of bias.
Consideration
The apprehension of bias in the form of prejudgment disqualifies a judge from hearing or continuing to hear a court proceeding. The test is whether a fair-minded lay observer might reasonably apprehend that the judge might not bring an impartial and unprejudiced mind to the resolution of the question the judge is asked to decide: Johnson v Johnson (2000) 201 CLR 488 at 492–493 [11]–[12] per Gleeson CJ, Gaudron, McHugh, Gummow and Hayne JJ. The test is objective and requires the decision-maker to assume the observer is reasonable and “the person being observed is ‘a professional judge whose training, tradition and oath or affirmation require [the judge] to discard the irrelevant, the immaterial and the prejudicial’”.
The reasonableness of any apprehension must be considered in the context of ordinary judicial practice, including the exigencies of modern litigation such as active case management and intervention by the judge in the conduct of cases by, among other means, the expression of tentative views in exchanges with counsel or the parties. While those views “reflect a certain tendency of mind, [they] are not on that account alone to be taken to indicate prejudgment”: Johnson 201 CLR at 493 [13]. The relevant test for apprehension of bias is that explained in Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337 at 345 [8]. There, Gleeson CJ, McHugh, Gummow and Hayne JJ said:
The apprehension of bias principle admits of the possibility of human frailty. Its application is as diverse as human frailty. Its application requires two steps. First, it requires the identification of what it is said might lead a judge (or juror) to decide a case other than on its legal and factual merits. The second step is no less important. There must be an articulation of the logical connection between the matter and the feared deviation from the course of deciding the case on its merits. The bare assertion that a judge (or juror) has an “interest” in litigation, or an interest in a party to it, will be of no assistance till the nature of the interest, and the asserted connection with the possibility of departure from impartial decision-making, is articulated. Only then can the reasonableness of the asserted apprehension of bias be assessed.
(emphasis added)
The test is the same where the judge has been involved in earlier litigation involving the same party. The fair-minded lay observer is a person who is informed: Webb v The Queen (1994) 181 CLR 41 at 51–52 and 55 per Mason CJ and McHugh J, 57 per Brennan J agreeing on this point, 76 per Deane J, and see also, at 87–88 per Toohey J. Importantly, a judge’s duty is to hear and determine the litigation before him or her. In Livesey v New South Wales Bar Association (1983) 151 CLR 288 at 294, Mason, Murphy, Brennan, Deane and Dawson JJ said:
it would be an abdication of judicial function and an encouragement of procedural abuse for a judge to adopt the approach that he should automatically disqualify himself whenever he was requested by one party so to do on the grounds of a possible appearance of prejudgment or bias, regardless of whether the other party desired that the matter be dealt with by him as the judge to whom the hearing of the case had been entrusted by the ordinary procedures and practice of the particular court.
Mason J echoed this important principle in Re JRL; ex parte CJL (1986) 161 CLR 342 at 352, saying:
There may be many situations in which previous decisions of a judicial officer on issues of fact and law may generate an expectation that he [or she] is likely to decide issues in a particular case adversely to one of the parties.
His Honour said that this did not mean that the judge would:
approach the issues in the particular case otherwise than with an impartial and unprejudiced mind in the sense in which that expression is used in the authorities or that [the judge’s] previous decisions provide an acceptable basis for inferring that there is a reasonable apprehension that [the judge] will approach the issues in this way.
Mason J said that the judge would only be disqualified if it was firmly established that there is a reasonable apprehension of bias by reason of prejudgment. In GetSwift Ltd v Webb (2021) 283 FCR 328 at 338–339 [35]–[39], Middleton, McKerracher and Jagot JJ referred to the fact that a reasonable apprehension of bias may arise from the decision-maker receiving extraneous information, including knowledge of some prejudicial or inadmissible fact or circumstance that could have an influence on the ultimate decision.
However, the possibility that the Full Court discussed in GetSwift 283 FCR at 338–339 [35]–[39] is a world away from the present application. There is nothing in the material to suggest that his Honour’s involvement or decisions in the three judicial review matters, made him aware of any relevant or other extraneous fact that a fair-minded lay observer might apprehend reasonably might influence his Honour not to bring a fair and impartial mind to the resolution of the substantive proceeding.
The issues in the substantive proceeding have no relation to the issues in the other three proceedings with which his Honour was involved. Moreover, in the Home Affairs case 269 FCR 536, as part of the majority, his Honour decided in the applicant’s favour to dismiss the Minister’s appeal, although not on all of the grounds that the primary judge there had decided. But that is no reason to think that there is any substance to the recusal application.
His Honour heard and understood the applicant’s submissions and gave cogent reasons for refusing to recuse himself. There is no reason to doubt the correctness of his Honour’s refusal to disqualify himself. Indeed, his Honour had no alternative on the material before him than to proceed to remain the judge to whom the case had been docketed under the ordinary administrative arrangements for the allocation of cases within the Court: Livesey 151 CLR at 294; Re JRL 161 CLR at 352. No error in his Honour’s reasoning can be suggested, and there is no possible injustice in the matter remaining docketed to his Honour.
The applicant asserted, on an alternative basis, that his Honour should be disqualified “for the sake of justice and fairness or for any other reason that the court thinks fit”. For the reasons given above, there is no principle on which the Court could possibly act, other than the application of the principles of law as to whether Rangiah J should have recused himself. Accordingly, this argument must be rejected.
The applicant’s suggestion that his Honour amended his ex tempore reasons so as to give rise to an apprehension of bias is entirely without substance. Steward J, with whom Kiefel CJ, Keane, Gordon and Edelman JJ agreed, held in Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v AAM17 (2021) 388 ALR 257 at 267 [32], 271 [44], after the delivery of an ex tempore judgment, that the settled reasons of the court are the authentic expression of the court’s reasons. There was no evidence that his Honour had changed, in the settled reasons, any of the substance of what he said in giving the ex tempore reasons.
The recusal application for leave to appeal should be refused.
Conclusion
The costs application must be dismissed with no order as to costs. The recusal application must be dismissed with costs.
Postscript
On 30 August 2022, the applicant complied with the Full Court’s order that she file and serve an affidavit in support of any order seeking that her pseudonym “Ms PD” be maintained together with written submissions.
Subsequently, we have decided that there was no basis for the use of the pseudonym or Logan J’s orders 1 and 2 made on 31 August 2021. We ordered that the name “Megumi Ogawa” be substituted as the name of the applicant in each of the recusal and costs applications and in each proceeding before Rangiah J and Logan J and set aside orders 1 and 2 made on 31 August 2021: Ogawa (formerly Ms PD) v President of the Australian Human Rights Commission (Pseudonym) [2022] FCAFC 160. Hence, these settled reasons as published reflect those orders.
I certify that the preceding forty-four (44) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justices Rares, Perry and Hespe. Associate:
Dated: 16 September 2022
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