Ogawa v Australian Information Commissioner - [2014] FCA 229

FEDERAL COURT OF AUSTRALIA
Ogawa v Australian Information Commissioner [2014] FCA 229

Citation: Ogawa v Australian Information Commissioner [2014] FCA 229

Parties: DR MEGUMI OGAWA v AUSTRALIAN INFORMATION COMMISSIONER, TOOWONG PRIVATE HOSPITAL, MICHELE CALVIRD and COMMONWEALTH DIRECTOR OF PUBLIC PROSECUTIONS

File number(s): QUD 363 of 2013

Judge(s): GREENWOOD J

Date of judgment: 13 March 2014

Catchwords: PRACTICE AND PROCEDURE – consideration of four interlocutory applications arising in connection with the applicant’s originating application for relief under the provisions of the Administrative Decisions (Judicial Review) Act 1977 (Cth) and s 39B of the Judiciary Act 1903 (Cth)

Cases cited: R v Australian Broadcasting Tribunal; ex parte Hardiman (1980) 144 CLR 13 – cited
Community Television Sydney Ltd v Australian Broadcasting Authority (No 2) (2004) 136 FCR 338 - cited TXU Electricity Ltd v Office of the Regulator‑General (2001) 3 VR 93 – cited
Fagan v Crimes Compensation Tribunal (1982) 150 CLR 666 – cited
Giniotis v Human Rights and Equal Opportunity Commission [2000] FCA 1954 - cited

Date of hearing: 13 March 2014

Date of last submissions: 13 March 2014

Place: Brisbane

Division: GENERAL DIVISION

Category: Catchwords

Number of paragraphs: 30

Counsel for the Applicant: Applicant granted leave not to appear on the hearing of the applications for interlocutory orders

Solicitor for the Applicant: No appearance by solicitor

Solicitor for the Respondents: Ms Fiona E Dempsey, Australian Government Solicitor

IN THE FEDERAL COURT OF AUSTRALIA

QUEENSLAND DISTRICT REGISTRY

GENERAL DIVISION

QUD 363 of 2013

BETWEEN:
DR MEGUMI OGAWA
Applicant

AND:
AUSTRALIAN INFORMATION COMMISSIONER
First Respondent

TOOWONG PRIVATE HOSPITAL
Second Respondent

MICHELE CALVIRD
Third Respondent

COMMONWEALTH DIRECTOR OF PUBLIC PROSECUTIONS
Fourth Respondent

JUDGE:

GREENWOOD J

DATE OF ORDER:

13 MARCH 2014

WHERE MADE:

BRISBANE

THE COURT ORDERS THAT:
1.The applicant is granted an extension of time for the filing of the originating application in respect of the decisions the subject of that application up to and including the date of filing of the originating application.
2.The first respondent is granted leave to withdraw the notice of objection to competency.
3.The first respondent’s interlocutory application filed on 25 July 2013 is dismissed.
4.The applicant’s interlocutory application filed on 25 November 2013 is dismissed.
5.The originating application proceed and be heard and determined on the papers.
6.The costs of the applications heard and determined today be costs in the cause.
7.The applicant file and serve any further material upon which she proposes to rely in the substantive proceeding on or before 10 April 2014.
8.The applicant file and serve any further written submissions upon which she proposes to rely on or before 10 April 2014.
9.The first respondent file and serve any submissions in response on or before 24 April 2014.
10.The applicant file and serve any submissions in reply on or before 1 May 2014.
11.Pursuant to s 17(2) of the Federal Court of Australia Act 1976 (Cth) and r 1.36 of the Federal Court Rules 2011, these orders and the reasons for judgment in support of these orders be published from…

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: [2014] FCA 229
Decision Date

CaseChat Overview and Summary

Dr Megumi Ogawa, the applicant, sought judicial review of four decisions of the Australian Information Commissioner in the Federal Court. The applicant sought review of decisions declining to investigate her complaints of privacy breaches by Dr Michele Calvird, Toowong Private Hospital, and the Commonwealth Director of Public Prosecutions. The Australian Information Commissioner, the first respondent, filed a notice of objection to the competency of the applicant's application and an interlocutory application seeking the dismissal of the proceeding. The applicant filed an application for an extension of time to file her originating application and an interlocutory application seeking orders restraining the first respondent from making submissions on the substantive questions in issue.

The court considered four interlocutory applications: the notice of objection to competency, the interlocutory application filed by the first respondent, the application for extension of time filed by the applicant, and the interlocutory application filed by the applicant. The court granted the applicant an extension of time, dismissed the notice of objection to competency and the interlocutory application filed by the first respondent, and dismissed the interlocutory application filed by the applicant. The substantive application will proceed on the papers, with written submissions to be filed by the parties by specified dates. The costs of the applications will lie where they fall.

The court's decision was based on the principle that administrative decision-makers generally do not become contradictors in proceedings challenging the legality of their decisions. However, the court found that in this case, there was no active contradictor to frame propositions concerning the legality of the decisions, and it was desirable to receive submissions from the first respondent to assist the court in determining the legality of the decisions. The court also found that the interests of justice were served by granting the extension of time and dismissing the interlocutory applications.

Orders