Ogawa v Buckingham (No 2) - [2023] FCA 1387

FEDERAL COURT OF AUSTRALIA
Ogawa v Buckingham (No 2) [2023] FCA 1387

File number: QUD 391 of 2022

Judgment of: RANGIAH J

Date of judgment: 13 November 2023

Catchwords: PRACTICE AND PROCEDURE – Federal Court of Australia Rules 2011 – application under r 39.05(a) to set aside judgment – where applicant did not appear at hearing – application dismissed

Legislation: Federal Court Rules 2011 (Cth) rr 2.26, 30.22 and 39.05

Cases cited:
Australian Securities and Investments Commission v ActiveSuper Pty Ltd (No 4) [2013] FCA 318

Lal v Minister for Immigration and Border Protection (No 2) [2014] FCA 892

Ogawa v Buckingham [2023] FCA 287

Ogawa v Finance Minister [2020] FCA 829

Ogawa v Finance Minister [2021] FCAFC 17

Ogawa v Stewart (No 2) [2023] FCA 661

Ogawa v Stewart (No 3) [2023] FCA 1386

Polis v Zombor (No 5) [2022] FCA 122

Division: General Division

Registry: Queensland

National Practice Area: Administrative and Constitutional Law and Human Rights

Number of paragraphs: 16

Date of hearing: Heard on the papers

Counsel for the Applicant: The Applicant was self-represented

Counsel for the Respondent: The Respondent filed a submitting notice

ORDERS

QUD 391 of 2022

BETWEEN:
MEGUMI OGAWA

Applicant

AND:
MC BUCKINGHAM

Respondent

ORDER MADE BY:

RANGIAH J

DATE OF ORDER:

13 NOVEMBER 2023

THE COURT ORDERS THAT:
1.The applicant’s interlocutory application filed on 18 April 2023 be dismissed.

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

REASONS FOR JUDGMENT
RANGIAH J:

On 27 March 2023, in Ogawa v Buckingham [2023] FCA 287, I dismissed the applicant’s application for judicial review of a decision of the respondent, a registrar of the Court (the Registrar), to refuse to accept an originating application for judicial review and affidavit lodged by the applicant for filing.
The order for dismissal (the Dismissal Order) was made under r 30.22 of the Federal Court Rules 2011 (Cth) (the Rules) on the basis that the applicant had failed to appear at the trial of the proceeding.
This matter has some relationship with Ogawa v Stewart (No 3) [2023] FCA 1386 (QUD325/2022), which I have also delivered today.
The application presently before the Court is an interlocutory application filed on 18 April 2023 for an order that the Dismissal Order be set aside (the Interlocutory Application). Although the interlocutory application was filed only in QUD325/2022, it also sought to set aside the Dismissal Order in this proceeding.
The applicant had also sought an order that I disqualify myself from hearing her application to set aside the Dismissal Order on the basis of apprehended bias. In Ogawa v Stewart (No 2) [2023] FCA 661, I declined to recuse myself. The applicant then applied for leave to appeal, but subsequently discontinued that application.
On 18 September 2023, the applicant notified the Court that she wished to have the Interlocutory Application decided on the papers.
The Registrar filed a submitting appearance and there is no contradictor.
To give context…

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.

Continue reading Ogawa v Buckingham (No 2)

Details

AGLC: Ogawa v Buckingham (No 2) [2023] FCA 1387
Case: [2023] FCA 1387
Decision Date: 13 November 2023

CaseChat Overview and Summary

Ogawa, the applicant, brought a proceeding against Buckingham, the respondent, in the Federal Court of Australia. The applicant sought to set aside a judgment obtained by the respondent under Federal Court of Australia Rules 2011, Rule 39.05(a). The core of the dispute was whether the application could proceed given that the applicant did not appear at the hearing. The applicant did not attend the hearing of the interlocutory application, which was filed on 18 April 2023. This absence was a significant factor in the court's consideration of the matter.

The primary legal issue before the court was whether the applicant's absence at the hearing justified dismissing the application. The court had to consider the procedural rules and the importance of the applicant's presence at the hearing. The Federal Court Rules 2011, Rule 39.05(a) sets out the procedure for setting aside a judgment, but it does not explicitly address the consequences of the applicant's non-attendance at the hearing. The court had to balance the procedural requirements with the principles of fairness and justice.

The court held that the applicant's non-attendance at the hearing was a substantial procedural default, which warranted dismissal of the application. The court emphasised the importance of appearing at the hearing and noted that the applicant had not provided a satisfactory explanation for their absence. The court determined that the application did not meet the criteria for setting aside the judgment and that the procedural default was significant enough to warrant dismissal. Consequently, the court dismissed the interlocutory application filed on 18 April 2023. The dismissal of the application resulted in no alteration of the existing judgment in favour of the respondent.

Orders

Orders of the court

1. The applicant’s interlocutory application filed on 18 April 2023 be dismissed.

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.

File number:	QUD 391 of 2022
Judgment of:	RANGIAH J
Date of judgment:	13 November 2023
Catchwords:	PRACTICE AND PROCEDURE – Federal Court of Australia Rules 2011 – application under r 39.05(a) to set aside judgment – where applicant did not appear at hearing – application dismissed
Legislation:	Federal Court Rules 2011 (Cth) rr 2.26, 30.22 and 39.05
Cases cited:	Australian Securities and Investments Commission v ActiveSuper Pty Ltd (No 4) [2013] FCA 318 Lal v Minister for Immigration and Border Protection (No 2) [2014] FCA 892 Ogawa v Buckingham [2023] FCA 287 Ogawa v Finance Minister [2020] FCA 829 Ogawa v Finance Minister [2021] FCAFC 17 Ogawa v Stewart (No 2) [2023] FCA 661 Ogawa v Stewart (No 3) [2023] FCA 1386 Polis v Zombor (No 5) [2022] FCA 122
Division:	General Division
Registry:	Queensland
National Practice Area:	Administrative and Constitutional Law and Human Rights
Number of paragraphs:	16
Date of hearing:	Heard on the papers
Counsel for the Applicant:	The Applicant was self-represented
Counsel for the Respondent:	The Respondent filed a submitting notice

ORDER MADE BY:	RANGIAH J
DATE OF ORDER:	13 NOVEMBER 2023