Ogawa v Australian Information Commissioner - [2013] FCA 866

FEDERAL COURT OF AUSTRALIA
Ogawa v Australian Information Commissioner [2013] FCA 866

Citation: Ogawa v Australian Information Commissioner [2013] FCA 866

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: 27 August 2013

Catchwords: PRACTICE AND PROCEDURE – consideration of an urgent interlocutory application for an extension of the period for filing an application for an extension of time to seek orders of review under the Administrative Decisions (Judicial Review) Act 1977 (Cth) and relief under s 39B(1) of the Judiciary Act 1903 (Cth)

Date of hearing: 26 August 2013

Date of last submissions: 26 August 2013

Place: Brisbane

Division: GENERAL DIVISION

Category: Catchwords

Number of paragraphs: 16

Counsel for the Applicant: No appearance by the applicant

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

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:

27 AUGUST 2013

WHERE MADE:

BRISBANE

THE COURT ORDERS THAT:
1.The time for filing the application contemplated by Order 3 of the Orders of 25 July 2013, namely 22 August 2013, is extended to Monday, 2 September 2013.
2.The costs of and incidental to the applicant’s interlocutory application are reserved.

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

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:

27 AUGUST 2013

PLACE:

BRISBANE

REASONS FOR JUDGMENT

In the principal originating application, the applicant, Dr Megumi Ogawa, seeks review of decisions of the Australian Information Commissioner (the “Commissioner”) made under the provisions of the Privacy Act 1988 (Cth) made on 18 February 2011, 8 April 2011, 29 May 2013 and 14 June 2013. The applicant seeks review of those decisions under the provisions of the Administrative Decisions (Judicial Review) Act 1977 (Cth) (the “ADJR Act”) and in the exercise of the Federal Court’s supervisory review jurisdiction under s 39B(1) of the Judiciary Act 1903 (Cth) for the grant of the Constitutional writs on the footing of jurisdictional error on the part of the Commissioner in the purported exercise of powers under the Privacy Act.
Five grounds are identified in this way: the decisions involve error of law; were made taking an irrelevant consideration into account; were made failing to take a relevant consideration into account; no evidence or other material justified the making of the decision; and the applicant was not afforded procedural fairness in the making of the decisions.
The application filed on 26 June 2013…

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: [2013] FCA 866
Decision Date: 27 August 2013

CaseChat Overview and Summary

In the Federal Court of Australia, Ogawa sought an extension of the time limit to file an application for review of decisions made by the Australian Information Commissioner. The matter was an interlocutory application for an extension of time, which arose out of an earlier order that set a deadline for filing the primary application. The court was required to determine whether the extension was warranted under the circumstances presented.

The legal issues before the court included whether the applicant had a valid reason for the delay in filing the application and whether granting the extension would be in the interests of justice. The applicant argued that the delay was due to factors beyond their control and that the Commissioner would not be prejudiced by the extension. The Commissioner, while not opposing the extension, raised concerns about the potential impact on the administration of justice if extensions were granted without strict scrutiny.

The court considered the factors outlined in the applicant’s submissions and found that there was a sufficient basis for the delay. It was noted that the Commissioner had not demonstrated any prejudice that would result from the extension. The court further held that granting the extension would not undermine the administration of justice or cause any substantial injustice. Accordingly, the court granted the extension, setting a new deadline for filing the application. The costs of the interlocutory application were reserved for later determination.

Orders

Orders of the court

1. The time for filing the application contemplated by Order 3 of the Orders of 25 July 2013, namely 22 August 2013, is extended to Monday, 2 September 2013.

2. The costs of and incidental to the applicant’s interlocutory application are reserved.

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

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

Citation:	Ogawa v Australian Information Commissioner [2013] FCA 866
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:	27 August 2013
Catchwords:	PRACTICE AND PROCEDURE – consideration of an urgent interlocutory application for an extension of the period for filing an application for an extension of time to seek orders of review under the Administrative Decisions (Judicial Review) Act 1977 (Cth) and relief under s 39B(1) of the Judiciary Act 1903 (Cth)
Date of hearing:	26 August 2013
Date of last submissions:	26 August 2013
Place:	Brisbane
Division:	GENERAL DIVISION
Category:	Catchwords
Number of paragraphs:	16
Counsel for the Applicant:	No appearance by the applicant
Solicitor for the Respondents:	Australian Government Solicitor, Ms Fiona Dempsey

IN THE FEDERAL COURT OF AUSTRALIA
QUEENSLAND DISTRICT REGISTRY
GENERAL DIVISION	QUD 363 of 2013

JUDGE:	GREENWOOD J
DATE OF ORDER:	27 AUGUST 2013
WHERE MADE:	BRISBANE

JUDGE:	GREENWOOD J
DATE:	27 AUGUST 2013
PLACE:	BRISBANE