Ogawa v Australian Information Commissioner - [2025] FCAFC 37

FEDERAL COURT OF AUSTRALIA
Ogawa v Australian Information Commissioner [2025] FCAFC 37

File number(s): QUD 386 of 2023
QUD 392 of 2023
QUD 418 of 2024

Judgment of: MCELWAINE, MCEVOY AND JACKMAN JJ

Date of judgment: 27 March 2025

Catchwords:
PRACTICE AND PROCEDURE — apprehended bias — appeal and applications to extend time and for leave to appeal in three separate matters-where applicant’s claims of apprehended bias were without merit and properly refused in each case — where relief claimed in one proceeding was in any event inutile and claim was correctly dismissed — appeal and applications for leave to appeal each to be dismissed with costs following determination whether the applicant should be the subject of a vexatious proceedings order

PRACTICE AND PROCEDURE — Consideration of invoking procedure for making a vexatious proceedings order — where applicant has initiated many matters with little or no merit — where present matters devoid of merit and an abuse of process — orders made facilitating the hearing of whether a vexatious proceedings order should be made in respect of the applicant.

Legislation:
Administrative Decisions (Judicial Review) Act 1977 (Cth) s 5(1)

Crimes Act 1914 (Cth) ss 5ZV, 85ZW, 85ZZA, 85ZZH
Federal Court of Australia Act 1976 (Cth) ss 17(4), 20A, 24(1A), 37AE, 37AG, 37AI, 37AM, 37AO, 37M, 37N
Federal Court Rules 2011 (Cth) rr 8.06, 35.13, 35.14, 36.01
Judiciary Act 1903 (Cth) s 39B
Migration Act 1958 (Cth)
Privacy Act 1988 (Cth)
Public Governance, Performance and Accountability Act 2013 (Cth) s 63(1)

Cases cited:
Bahonko v Sterjov [2008] FCAFC 30; (2008) 166 FCR 415

Branir Pty Ltd v Owston Nominees (No 2) Pty Ltd [2001] FCA 1833; (2001) 117 FCR 424

Charan v Secretary Department of Social Services [2019] FCAFC 134; (2019) 167 ALD 206

Degning v Minister for Home Affairs [2019] FCAFC 67; (2019) 270 FCR 451

Ebner v Official Trustee in Bankruptcy [2000] HCA 63; (2000) 205 CLR 337

Elzain v Deputy Commissioner of Taxation [2024] HCASJ 45

Ferdinands v RegistrarBurns [2024] FCAFC 105

Nathan Ltd v Rossington Holdings Pty Ltd [1992] NSWCA 137

Official Trustee in Bankruptcy v Gargan (No 2) [2009] FCA 398

Ogawa v Attorney- General’s Department (Recusal Application) [2023] FCA 1015

Ogawa v Commonwealth of Australia [2023] FCA 929

Ogawa v Finance Minister [2020] FCA 829

Ogawa v Finance Minister [2021] FCAFC 17

Ogawa v Finance Minister [2024] FCA 365

Praljak v State of Queensland [2022] FCA 572

QYFM v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2023] HCA 15; (2023) 409 ALR 65

Storry v Parkyn [2024] FCAFC 67

Division: General Division

Registry: Queensland

National Practice Area: Administrative and Constitutional Law and Human Rights

Number of paragraphs: 85

Date of hearing: 18 March 2025

Counsel for the Appellant in QUD 386 of 2023, QUD 392 of 2023 and QUD 418 of 2024 The Appellant appeared in person

Counsel for the Respondent in QUD 386 of 2023 Ms S Amos

Solicitor for the Respondent in QUD 386…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2025] FCAFC 37
Decision Date: 27 March 2025

CaseChat Overview and Summary

The case of Ogawa v Australian Information Commissioner involved Dr Ogawa’s attempts to disqualify Meagher J from hearing several matters on the basis of apprehended bias. The Federal Court had to determine the validity of Dr Ogawa’s claims, including whether they were meritless, and if they constituted an abuse of process. Meagher J addressed these issues in a detailed judgment published on 28 August 2023, where she outlined the legal principles relevant to claims of apprehended bias and applied them to each of Dr Ogawa’s contentions.

The central legal issues in the case were whether Dr Ogawa's claims of apprehended bias against Meagher J had any merit and if they properly justified the disqualification of the judge. Meagher J meticulously examined each of Dr Ogawa’s contentions, finding them to be devoid of merit. For instance, the omission of certain lines in an email correspondence and the failure to serve another party did not rationally connect to any apprehension of bias. The judge concluded that a fair-minded lay observer, having a broad knowledge of the material objective facts and the nature of the decision, would not reasonably apprehend bias. Dr Ogawa's claims were dismissed as they lacked a cogent or rational link to the apprehension of bias test.

Following the comprehensive analysis, Meagher J dismissed Dr Ogawa’s applications, ordering her to pay the costs of the respondents. The court also considered whether Dr Ogawa's conduct warranted a vexatious proceedings order. The extensive history of Dr Ogawa initiating numerous matters with little or no merit, coupled with the current proceedings being devoid of merit, led the court to facilitate a hearing on whether such an order should be made against her. The court found that the applications for leave to appeal were to be dismissed, and the costs were to be paid by Dr Ogawa.

Orders

Orders of the court

1. Following the determination of the process timetabled at orders (2) – (6) as made in proceeding QUD 386 of 2023, the application for leave to appeal be dismissed and the applicant pay the respondent’s costs.

Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

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Decision

Reasons for decision

The fourth category concerned a complaint made by Dr Ogawa to Mortimer CJ to the effect that Meagher J had racially discriminated against her: MJ [48] – [52].Justice Meagher’s judgment Justice Meagher dealt with all applications with alacrity and published her reasons on 28 August 2023. Her Honour commenced with a succinct and correct summary of the legal principles applicable to an application to disqualify for apprehended bias at MJ [3] – [8], by reference to the well-known decisions of the High Court in Ebner v Official Trustee in Bankruptcy [2000] HCA 63; (2000) 205 CLR 337 and QYFM v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2023] HCA 15; (2023) 409 ALR 65, amongst others. That is, whether “a fair-minded lay observer might reasonably apprehend that the judge might not bring an impartial mind to the resolution of the question the judge is required to decide”: Ebner at [6]. Her Honour then applied that test to each of the categorised contentions. As to the first, her Honour found it “difficult to comprehend” how the omission of two inconsequential lines in the email correspondence from Dr Ogawa could possibly found the apprehended bias contention: MJ [24]. The observation that Dr Ogawa had failed to serve the Commonwealth, was not only correct but reflects the onus an applicant has to prove service at r 8.06 of the Federal Court Rules 2011 (Cth): MJ [25]. Similarly, the failure of Dr Ogawa to appear in her proceeding against the Commonwealth bore no rational relationship to the apprehended bias test; more so when Dr Ogawa managed to appear before her Honour in a case management hearing in the AIC matter, immediately after the dismissal of her proceeding against the Commonwealth: MJ [28]. The need to care for Dr Ogawa’s guinea pig, which allegedly prevented her from attending Court on 8 August 2023, could not be reconciled with the fact that she did attend on that day: MJ [27] – [28]. At MJ [29], her Honour further explained why those contentions could not be accepted:While the applicant identified what she considers to be a relevant factor, being step one of the Ebner test, the logical connection is not established. There is no cogent or rational link between me omitting links to various website pages, finding that the applicant had failed to serve another party in circumstances where no evidence was provided that she had served the other party, and making a decision that I did not find her excuse for non-appearance as reasonable, and an apprehension that I might be prejudiced against the applicant. The fair-minded lay observer, having a broad knowledge of material objective facts, as well as the nature of the decision and the circumstances leading to it, would not reasonably apprehend that I might be biased against the applicant. Furthermore, while the fair-minded lay observer is not attributed with detailed knowledge of the law, they are to be aware of the relevant statutory framework. In those circumstances, I am not satisfied that the fair-minded lay observer might consider the above to be racial discrimination which might be a manifestation of prejudice against the applicant.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

File number(s):	QUD 386 of 2023 QUD 392 of 2023 QUD 418 of 2024
Judgment of:	MCELWAINE, MCEVOY AND JACKMAN JJ
Date of judgment:	27 March 2025
Catchwords:	PRACTICE AND PROCEDURE — apprehended bias — appeal and applications to extend time and for leave to appeal in three separate matters-where applicant’s claims of apprehended bias were without merit and properly refused in each case — where relief claimed in one proceeding was in any event inutile and claim was correctly dismissed — appeal and applications for leave to appeal each to be dismissed with costs following determination whether the applicant should be the subject of a vexatious proceedings order PRACTICE AND PROCEDURE — Consideration of invoking procedure for making a vexatious proceedings order — where applicant has initiated many matters with little or no merit — where present matters devoid of merit and an abuse of process — orders made facilitating the hearing of whether a vexatious proceedings order should be made in respect of the applicant.
Legislation:	Administrative Decisions (Judicial Review) Act 1977 (Cth) s 5(1) Crimes Act 1914 (Cth) ss 5ZV, 85ZW, 85ZZA, 85ZZH Federal Court of Australia Act 1976 (Cth) ss 17(4), 20A, 24(1A), 37AE, 37AG, 37AI, 37AM, 37AO, 37M, 37N Federal Court Rules 2011 (Cth) rr 8.06, 35.13, 35.14, 36.01 Judiciary Act 1903 (Cth) s 39B Migration Act 1958 (Cth) Privacy Act 1988 (Cth) Public Governance, Performance and Accountability Act 2013 (Cth) s 63(1)
Cases cited:	Bahonko v Sterjov [2008] FCAFC 30; (2008) 166 FCR 415 Branir Pty Ltd v Owston Nominees (No 2) Pty Ltd [2001] FCA 1833; (2001) 117 FCR 424 Charan v Secretary Department of Social Services [2019] FCAFC 134; (2019) 167 ALD 206 Degning v Minister for Home Affairs [2019] FCAFC 67; (2019) 270 FCR 451 Ebner v Official Trustee in Bankruptcy [2000] HCA 63; (2000) 205 CLR 337 Elzain v Deputy Commissioner of Taxation [2024] HCASJ 45 Ferdinands v RegistrarBurns [2024] FCAFC 105 Nathan Ltd v Rossington Holdings Pty Ltd [1992] NSWCA 137 Official Trustee in Bankruptcy v Gargan (No 2) [2009] FCA 398 Ogawa v Attorney- General’s Department (Recusal Application) [2023] FCA 1015 Ogawa v Commonwealth of Australia [2023] FCA 929 Ogawa v Finance Minister [2020] FCA 829 Ogawa v Finance Minister [2021] FCAFC 17 Ogawa v Finance Minister [2024] FCA 365 Praljak v State of Queensland [2022] FCA 572 QYFM v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2023] HCA 15; (2023) 409 ALR 65 Storry v Parkyn [2024] FCAFC 67
Division:	General Division
Registry:	Queensland
National Practice Area:	Administrative and Constitutional Law and Human Rights
Number of paragraphs:	85
Date of hearing:	18 March 2025
Counsel for the Appellant in QUD 386 of 2023, QUD 392 of 2023 and QUD 418 of 2024	The Appellant appeared in person
Counsel for the Respondent in QUD 386 of 2023	Ms S Amos
Solicitor for the Respondent in QUD 386…