Ogawa v Australian Information Commissioner
[2023] FCA 1096
•14 September 2023
FEDERAL COURT OF AUSTRALIA
Ogawa v Australian Information Commissioner [2023] FCA 1096
File number(s): QUD 298 of 2023 Judgment of: MEAGHER J Date of judgment: 14 September 2023 Catchwords: PRACTICE AND PROCEDURE – Application for suppression orders under ss 37AG and 37AI of the Federal Court of Australia Act 1976 (Cth) (the Act) – Application for exclusion of the public from the Court room under s 17(4) of the Act – Whether necessary to suppress affidavit to prevent prejudice to the proper administration of justice – Whether interim orders should be made – Whether necessary to exclude the public in the interests of justice – Application refused
COSTS – Self-represented litigant – Discretion to award costs – No costs awarded
Legislation: Federal Court of Australia Act 1976 (Cth) ss 37AF, 37AG, 43 Cases cited: Cachia v Hanes (1994) 179 CLR 403; [1994] HCA 14
Ogawa v Attorney General’s Department (Recusal Application) [2023] FCA 1015
Rinehart v Rinehart (2014) 320 ALR 195; [2014] FCA 1241
Rinehart v Welker (2011) 93 NSWLR 311; [2011] NSWCA 403
The Country Care Group Pty Ltd v Commonwealth Director of Public Prosecutions (No 2) [2020] FCAFC 44
Division: General Division Registry: Queensland National Practice Area: Administrative and Constitutional Law and Human Rights Number of paragraphs: 15 Date of last submission/s: 21 August 2023 Date of hearing: Determined on the papers Counsel for the Applicant: The applicant appeared in-person Counsel for the Respondent: Ms S A Amos Solicitor for the Respondent: Holding Redlich ORDERS
QUD 298 of 2023 BETWEEN: DR MEGUMI OGAWA
Applicant
AND: AUSTRALIAN INFORMATION COMMISSIONER
Respondent
ORDER MADE BY:
MEAGHER J
DATE OF ORDER:
14 SEPTEMBER 2023
THE COURT ORDERS THAT:
1.The application for a suppression order over the applicant’s supporting affidavit contained in the originating application dated 5 July 2023 is refused.
2.The application for an interim suppression order contained in the originating application dated 5 July 2023 is refused.
3.The application for the exclusion of public persons in the Court room contained in the originating application dated 5 July 2023 is refused.
4.There be no order as to costs.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
REASONS FOR JUDGMENT
MEAGHER J
INTRODUCTION
On 28 August 2023, I ordered that this application be dismissed as, inter alia, the operative decision was no longer in effect and the relief sought by the applicant lacked utility: Ogawa v Attorney General’s Department (Recusal Application) [2023] FCA 1015 (Judgment).
A brief background of this matter is detailed at paragraphs [18]-[23] of the Judgment. Of relevance, in the applicant’s originating application she sought the following interlocutory relief:
1.Under s 37AG(1)(a) and (c) of the Federal Court of Australia Act 1976, the supporting Affidavit sworn by Dr Megumi Ogawa be supressed until further order.
2.Under s 37AI(1) of the Federal Court of Australia Act 1976, the interim suppression order be made until the hearing and determination of this Interlocutory Application.
3.Under s 17(4) of the Federal Court of Australia Act 1976, only the parties and the Applicant’s support persons be allowed to be present at the hearing for the interlocutory application for the abovementioned orders 1 and 2.
4.The hearing of this Application be expedited.
5.If the Application Book is required, the Respondent produce the Application Book.
6.Such and other orders that the Court thinks fit.
Despite the dismissal of the application, the applicant pressed her application for suppression orders, and also foreshadowed that she would be seeking costs. The respondent filed submissions addressing these points. I ordered that the applicant also file written submissions, and that the question of costs and suppression orders would be dealt with thereafter on the papers. No such submissions have been filed by the applicant. In any event, I will deal with the orders sought by the applicant.
SUPPRESSION ORDERS
The Court has the power to make suppression and non-publication orders pursuant to s 37AF of the Federal Court of Australia Act 1976 (Cth). Section 37AG of the Act provides the grounds for which the Court can make such orders, including that is must be “necessary”. In The Country Care Group Pty Ltd v Commonwealth Director of Public Prosecutions (No 2) [2020] FCAFC 44 (Allsop CJ, Wigney and Abraham JJ), the Full Court considered that the use of the word “necessary” placed a fetter on the exercise of power in this section, such that suppression or non-publication orders should only be made in “exceptional circumstances”: at [8]. The Full Court emphasised the need to consider a primary objective of the Court, being the need safeguard the public interest in open justice: at [8], citing Rinehart v Welker (2011) 93 NSWLR 311; [2011] NSWCA 403 at [32] and Rinehart v Rinehart (2014) 320 ALR 195; [2014] FCA 1241 at [25].
The key question is whether the suppression orders sought are “necessary to prevent prejudice to the proper administration of justice”: s 37AG(1)(a) of the Act.
As already mentioned, the applicant provided no submissions in support of the interlocutory orders sought, therefore it is unclear on what grounds she considers the orders to be necessary. The affidavit in respect of which the applicant seeks suppression provides a brief background to the claim that has been brought, and annexes an email chain, the applicant’s privacy complaint and the outcome of the complaint, and the document from which the complaint arose. I am not satisfied that there is any information in these documents such that suppression is necessary to prevent prejudice to the proper administration of justice.
Orders two and three sought by the applicant are futile. As the application has been dismissed, no further hearings are to be held in this matter. In any event, I am not satisfied that it is necessary in the interests of justice to make either order.
Accordingly, the application for a suppression order over the applicant’s supporting affidavit, the application for an interim suppression order and the application for the exclusion of public persons in the Court room is refused.
COSTS
The Court has the jurisdiction to award costs in all proceedings before the Court, with some limited exceptions, pursuant to s 43 of the Act. Generally speaking, costs are awarded to reimburse legal fees paid by the successful party. In this proceeding, the applicant was self-represented.
In Cachia v Hanes (1994) 179 CLR 403; [1994] HCA 14 (Mason CJ, Brennan , Deane , Dawson and McHugh JJ), the High Court considered an application involving a claim for costs by a self-represented party, and stated at 410-411:
To use the rules to compensate a litigant in person for time lost would cut across their clear intent. Costs, within the meaning of the rules, are reimbursement for work done or expenses incurred by a practitioner or practitioner's employee. Compensation for the loss of time of a litigant in person cannot be said to constitute costs within the meaning of the rules.
This is hardly surprising. It has not been doubted since 1278, when the Statute of Gloucester introduced the notion of costs to the common law, that costs are awarded by way of indemnity (or, more accurately, partial indemnity) for professional legal costs actually incurred in the conduct of litigation. They were never intended to be comprehensive compensation for any loss suffered by a litigant. As Coke observed of the Statute of Gloucester, the costs which might be awarded to a litigant extended to the legal costs of the suit, ``but not to the costs and expences of his travell and losse of time'’.
(Footnotes omitted)
The application for costs was made orally at a case management hearing held in this proceeding. The applicant did not detail what costs she was seeking, nor has she provided any submissions regarding the costs she incurred and why they ought to be paid for by the respondent.
In the ordinary course of a proceeding, costs follow the event. In this case, the event is the dismissal of the applicant’s application as a result of the voluntary reconsideration by the respondent of the applicant’s complaint. This means that the relief sought by the applicant, being a reconsideration of the decision, is no longer necessary.
As a final hearing has not occurred, it does not appear that a hearing fee would have been paid. It is unclear whether any fee was paid with respect to the filing of the application. Any award of costs with respect to either of those expenses would be a matter of discretion.
Accordingly, I am not satisfied that an order as to costs should be made. There is no evidence before me that indicates that the applicant paid legal fees. In any case, as a matter of discretion I am not satisfied that the applicant should redeem any Court fees should such have been paid.
CONCLUSION
The application for suppression orders is refused. There will be no order as to costs.
I certify that the preceding fifteen (15) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Meagher. Associate:
Dated: 14 September 2023
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