Ogawa v Australian Information Commissioner
[2022] FCA 1514
•8 December 2022
FEDERAL COURT OF AUSTRALIA
Ogawa v Australian Information Commissioner [2022] FCA 1514
Appeal from: Application for leave to appeal and stay: Ogawa v Australian Information Commissioner [2022] FCA 1374 File number: QUD 426 of 2022 Judgment of: FEUTRILL J Date of judgment: 8 December 2022 Date of publication of reasons: 14 December 2022 Catchwords: PRACTICE AND PROCEDURE – application for leave to appeal – application for stay of primary judge’s orders pending appeal – assessment of prospects of obtaining leave to appeal –whether the appeal would be rendered nugatory – whether any prejudice would flow from refusal of a stay – application dismissed. Legislation: Federal Court of Australia Act 1976 (Cth) s 29 Cases cited: Décor Corporation Pty Ltd v Dart Industries Inc [1991] FCA 844; (1991) 33 FCR 397
Dubow v Fitness First (Australia) Pty Ltd [2010] FCA 660
Ogawa v Australian Information Commissioner [2022] FCA 1374
Division: General Division Registry: Queensland National Practice Area: Other Federal Jurisdiction Number of paragraphs: 15 Date of hearing: 8 December 2022 Counsel for the Applicant: The applicant appeared in person Counsel for the First Respondent: Mr T Boys Solicitor for the First Respondent: Holding Redlich Counsel for the Second Respondent: Ms B Griffin Solicitor for the Second Respondent: Australian Government Solicitor ORDERS
QUD 426 of 2022 BETWEEN: DR MEGUMI OGAWA
Applicant
AND: AUSTRALIAN INFORMATION COMMISSIONER
First Respondent
DEPARTMENT OF HOME AFFAIRS
Second Respondent
ORDER MADE BY:
FEUTRILL J
DATE OF ORDER:
8 DECEMBER 2022
THE COURT ORDERS THAT:
1.The applicant’s application for a stay of proceedings in QUD 387 of 2021 and of the Court’s orders made on 15 November 2022 is dismissed.
2.The costs of today’s hearing are reserved.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
REASONS FOR JUDGMENT
(REVISED FROM THE TRANSCRIPT)FEUTRILL J:
The applicant has made an application for leave to appeal from the judgment of the primary judge delivered on 15 November 2022: Ogawa v Australian Information Commissioner [2022] FCA 1374. On that occasion, the primary judge made the following orders:
The applicant’s oral applications
1. The disqualification application be dismissed.
2. The application for an adjournment be refused.
Interlocutory applications
3.The application for an extension of time within which to challenge the first respondent’s decision of 1 December 2021 under the Administrative Decisions (Judicial Review) Act 1977 (Cth) be dismissed.
4.The application to amend the originating application be dismissed.
Other orders
5.The applicant pay the respondents’ costs of and incidental to the applications, with such costs to be fixed by a registrar in a lump-sum if not agreed.
6.The substantive proceeding be adjourned to not before noon on 19 December 2022 for:
(a) further case management; and
(b) the return of any application for the dismissal of the proceeding.
7.Each respondent be at liberty to apply on 19 December 2022 for the consequential dismissal of the proceeding, with a letter giving notice of such application sent within seven days hereof being deemed to be an interlocutory application seeking such orders, with the need for the filing and service of such an interlocutory application being dispensed with.
8.The Registrar send to each of the parties at their respective addresses for service a copy of the orders made today.
I am informed on the hearing of the application by counsel for the second respondent that an application has been made in accordance with the liberty referred to in the primary judge’s orders for orders to be made to dismiss the proceedings before the primary judge.
The application for leave to appeal identifies two grounds. The first ground is that the primary judge failed to disqualify himself despite that apprehended bias was shown, and the second ground is such other grounds as the Court thinks fit. On the application, amongst other things, the applicant has sought an interlocutory order staying the orders of the primary judge from which the applicant is appealing pending the hearing and determination of that matter. The scope of the requested stay was clarified during the course of the applicant’s oral submissions to be seeking an order, in effect, staying the proceedings in their entirety before the primary judge.
I accept that, for the purposes of the application, the Court has power under s 29 of the Federal Court of Australia Act 1976 (Cth) to stay the proceedings below in an application for leave to appeal. On an application of that nature, there are no express constraints on the exercise of the Court’s power to grant a stay. But, there are some well-established principles or guidelines as to the manner in which that power is generally to be exercised. Flick J summarised those principles in the case of Dubow v Fitness First (Australia) Pty Ltd [2010] FCA 660 at [21] - [22].
I will not quote from his Honour’s reasons for decision, but in summary, his Honour observed that the Court retains a discretion to grant or refuse a stay, and the usual principle is that a successful party is entitled to the fruits of the judgment, and that sound reasons to justify a suspension of that right need to be shown. The factors a Court will ordinarily take into consideration include the relative merits of the appeal, or more, the application for leave to appeal, the balance of convenience, and whether, if a stay were not granted, then the appeal itself will be rendered nugatory.
In this context, on an application for leave as to whether there is an arguable point, relevantly, that is to be determined at least in part by reference to whether or not there is a reasonable prospect that leave to appeal will be granted, and that is usually governed by a question of whether the decision below is attended with sufficient doubt to warrant the grant of leave and whether if leave were refused, it would work a substantial injustice against the applicant. There are numerous authorities for that proposition, but the principal one in this Court is Décor Corporation Pty Ltd v Dart Industries Inc [1991] FCA 844; (1991) 33 FCR 397 at 398 to 400.
The application includes an affidavit of the applicant sworn on 25 November 2022. The relevant paragraph in that affidavit is para 3, in which the deponent deposes to the following fact:
I believe that a fair-minded lay observer who has read the judgment in Ogawa (formerly Ms PD) v President of the Australian Human Rights Commission (Pseudonym) [2022] FCAFC 160 might consider that the primary judge might not bring an impartial mind to the case because the primary judge had made the pseudonym and non-publication order for me where there was no ground to make such an order.
That is, although it is in an affidavit, it is a statement really no more than a submission, as it does not depose to any relevant fact.
The application also includes a draft notice of appeal. The draft notice of appeal, like the application for leave, contains two grounds and they are in the same terms. Ground 1, the ‘primary judge failed to disqualify himself despite that apprehended bias was shown’, does not identify any error in the reasoning of the primary judge by way of legal error or error of fact. It is a general ground that really amounts to disagreement with the primary judge’s reasons for decision without any degree of specificity. In those circumstances, it is actually quite difficult to identify what the relevant ground of appeal would be and to make any assessment, even on a preliminary basis, of the prospects of an appeal ground being successful.
As to the second ground, that ‘such other grounds that the Court thinks fit’, that is not a proper ground of appeal because it really is inviting an appellate court to sift through the primary judge’s reasons for decision and look for error itself which is not the purpose of an appeal. In any case, I have read the primary judge’s reasons for decision, and I cannot identify any evident error in his identification of the relevant principles or the application of those principles to the facts that were before his Honour as regarding the question of apprehended bias or whether an adjournment ought to have been granted on the application before him.
So, in summary, without prejudging the matter in any way, I have formed the view on the material before me that the applicant’s prospects of obtaining leave to appeal are not particularly good. So, I now turn to consider the effect on the applicant if a stay were not granted.
It is difficult to see what prejudice would flow from a refusal of the stay. The primary judge refused to recuse himself or grant an adjournment and then went on to determine the substantive matters before him.
Now, if there were error in either of those decisions, from the primary judge's reasons for decision, it is evident that the applicant signified her disagreement with them and withdrew from participation in the hearing thereafter. So there seems to be little doubt that the applicant did not accede to or accept the primary judge’s ruling, and therefore, if ultimately an appeal were permitted and granted on the primary judge’s reasons for decision, it seems to me that the applicant’s right to assert that his Honour ought to have recused himself and not granted the adjournment is preserved.
And the extent to which those decisions affected in any way the ultimate decision that his Honour made on the applications before him would also be preserved. Similarly, if and to the extent that any further case management or other decisions are made, that depend upon or result or flow from those reasons for decision, it seems to me, at least at this stage, that it is likely they will be unwound if the appeal were ultimately successful. And so for all of those reasons, I do not consider that if a stay were not granted, that it would render the application for leave and if leave granted, the appeal nugatory.
Therefore, I refuse the application for a stay of the proceedings before the primary judge. So that part of the application for leave to appeal is dismissed.
I certify that the preceding fifteen (15) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Feutrill. Associate:
Dated: 14 December 2022
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