Ogawa v Attorney-General
[2018] FCA 1625
•19 October 2018
FEDERAL COURT OF AUSTRALIA
Ogawa v Attorney-General [2018] FCA 1625
File number: QUD 381 of 2018 Judge: LOGAN J Date of judgment: 19 October 2018 Catchwords: PRACTICE AND PROCEDURE – interlocutory application in regard to further discovery – whether material relevant – where material already in appeal book. Held – application allowed in part. Date of hearing: 19 October 2018 Date of last submissions: 19 October 2018 Registry: Queensland Division: General Division National Practice Area: Administrative and Constitutional Law and Human Rights Category: Catchwords Number of paragraphs: 8 Counsel for the Applicant: The Applicant appeared in person Counsel for the Respondent: Mr G del Villar Solicitor for the Respondent: Australian Government Solicitor ORDERS
QUD 381 of 2018 BETWEEN: DR MEGUMI OGAWA
Applicant
AND: ATTORNEY-GENERAL
Respondent
JUDGE:
LOGAN J
DATE OF ORDER:
19 OCTOBER 2018
THE COURT ORDERS THAT:
1.With regard to the interlocutory application filed on 17 October 2018, the respondent give discovery to and allow inspection to the applicant of:
(a)The letter to Dr Ogawa headed “Dr Megumi OGAWA – Petition for the exercise of the Royal Prerogative of Mercy” to which the “Main grounds for seeking a pardon and referral” were attached (listed as Document 4 – Attachment B(2) in the draft index of the application book) dated 24/4/2018 signed by Stephen Bouwhuis, Delegate of the Attorney-General.
(b)The letter addressed to Mr Salvatore (Sam) di Carlo of counsel dated 1 February 2016 signed by Simon Lee of the Federal Offenders Unit, stating the issues raised by the CDPP’s comments and inviting a response.
2.The discovery and inspection take the form of the filing and service on the applicant by the respondent of a supplementary appeal book including these documents.
3.The costs of and incidental to the interlocutory application be reserved.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
REASONS FOR JUDGMENT
(Revised From Transcript)LOGAN J:
There is an interlocutory application before the Court, filed on 17 October 2018, by which Dr Ogawa, the applicant, seeks an order for particular discovery in respect of six documents enumerated in para 1 of the application. They are:
i)The document entitled “Comments on the Attorney-General’s Refusal of Dr Ogawa’s Petition” (57 paras, 10pp) (undated and unsigned, written by Dr Clive Turner and emailed to Dr Ogawa on 21 May 2018).
ii)The letter to Dr Ogawa headed “Dr Megumi OGAWA – Petition for the exercise of the Royal Prerogative of Mercy” to which the “Main grounds for seeking a pardon and referral” were attached (listed as Document 4 – Attachment B(2) in the draft index of the application book) dated 26/4/2018 signed by Stephen Bouwhuis, Delegate of the Attorney-General.
iii)The letter address to Mr Salvatore (Sam) di Carlo of counsel dated 1 February 2016 signed by Simon Lee of the Federal Offenders Unit, stating the issues raised by the CDPP’s comments and inviting a response.
iv)Email to Dr Megumi Ogawa from the Commonwealth Parole Office dated 19 January 2018 headed “RE: Request for an Update on Petition for Statutory Referral to the Queensland Court of Appeal”.
v)Email to Dr Megumi Ogawa of 6 October 2017, attaching a letter from the Commonwealth Parole Office, Attorney-General’s Department, dated 6 October 2017, headed “Petition for a statutory referral to the Queensland Court of Appeal – Royal Prerogative of Mercy”.
vi)Email by Dr Megumi Ogawa from Fiona Dempsey, A’g Team Leader, Australian Government Solicitor, dated 3 April 2018 headed “Ogawa v Attorney-General – QUD39/2018 – Update”.
As to these (i) is an ex post facto commentary and axiomatically it is not a document which was before the respondent Attorney-General at the time when the decision under challenge was made. I therefore do not propose to order discovery of that document.
As to (ii), this may already be in the application book helpfully prepared by the respondent, but the version, if it be that, in the application book is undated. If only out of an abundance of caution, I propose to order discovery by the document of (ii), which does appear to be one created prior to the making of the decision.
As to (iii), this document, it is said, was not before the Attorney, although the comments of Mr Di Carlo of counsel were. It is a moot point as to whether, given its absence of provision to the Attorney, it is relevant, but if only out of an abundance of caution again and so as to give context to the report which Mr Di Carlo furnished, I propose to order discovery of document (iii).
As to documents (iv), (v) and (vi), these were not before the Attorney at the time when the decision under challenge was made. They are not therefore relevant. I do not propose to order discovery in respect of those documents.
There will be an order accordingly.
Dr Ogawa has succeeded, in part of her application, but not wholly. Subject to anything which might be put in submissions, which I shall invite momentarily, my present disposition is, given the extent of forensic success and failure, merely to reserve costs.
There is a separate application in relation to the masking out of names of particular public servants in the material which has been furnished. The point taken by the respondent Attorney is no longer one going to public interest immunity, but only as to relevance. Often that point is not taken in relation to the names of subordinates whose names incidentally appear in the course of consideration of a submission by a decision-maker. There is though a very particular history in relation of Dr Ogawa, the nature of which is evident enough from the District Court proceedings evidenced in the application book. There was no particular basis for relevance identified by Dr Ogawa in her submissions. It might be an over abundant caution that has motivated the masking out but, truly, the names of the individuals concerned are not relevant to any particular ground of review. For that reason, I propose not to order any unmasking.
I certify that the preceding eight (8) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Logan. Associate:
Dated: 30 October 2018
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