Ogawa v Colbeck

[2007] FMCA 2126

FEDERAL MAGISTRATES COURT OF AUSTRALIA

OGAWA v COLBECK & ANOR [2007] FMCA 2126

ADMINISTRATIVE LAW – Cross-examination relating to the transfer of information from one level of the department to another.

Applicant: MEGUMI OGAWA

Respondents: RICHARD COLBECK & ANOR

File number: BRG 297 of 2007

Judgment of: Burnett FM

Hearing date: 14 November 2007

Delivered at: Brisbane

Delivered on: 14 November 2007

REPRESENTATION

Ms Ogawa appeared on her own behalf

Counsel for the Respondents: Mr McLeod

Solicitors for the Respondent: DLA Phillips Fox

ORDERS

1. That the Applicant file and serve any further material including submissions on or before 4.00pm on 21 November 2007.

2. That the respondents file and serve any further affidavits and submission on or before 4.00pm on 28 November 2007.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
BRISBANE

BRG 297 of 2007

MEGUMI OGAWA

Applicant

And

RICHARD COLBECK & ANOR

Respondent

REASONS FOR JUDGMENT

1. The applicant wants to have available for cross-examination, by telephone, two witnesses.  The first is Guy Verney and the second is Jeanette McRae. They are public servants employed by the department.  In particular, Mr Verney is a branch manager of the Department of Administration and Finance and Special Claims Land Policy Branch of the Assets Management Group and Ms McRae is again employed by the Department of Finance, Director of Special Financial Claims Section, Asset Management Group.  Paragraph 8 of the further amended application, in particular, deals with allegations of fraud which are the proposed subject of cross-examination by the applicant. 

2. Subparagraph (i) to (xv) in particular deal with allegations which in each instance are prefaced in these terms.  The second respondent, that being Mr Verney, falsely informed the first respondent, that being Mr Colbeck, who was the decision-maker of a certain matter of which matter is particularised, as I say, in each of those 15 instances. 

3. When one looks at the matters in question, for instance, the first matter, that Ms Ogawa was in breach of her student visa, which included that she be in a full time course of study; (I take that matter by way of illustration); Whether that matter was informed or otherwise, and it seemed arguably that that was the information provided, really raises questions of good faith in the context of public servants conveying information. In this case the basis of the information is paragraph 3 of the ministerial briefing. It does not occasion in my view, as a matter of law, false information but rather simply the transfer of information from one level of the department to another. While you can cross-examine in relation to those matters, I do not see that the conveyance of information internally within the department, which information is a matter of contest from the perspective of the applicant, of itself demonstrates any falsehood or fraud or intended or intentional misinformation.

4. In this case the real contest is that Ms Ogawa says she wasn't in breach of her student visa.  A determination had been made in respect of that matter and that is the determination which has been resolved elsewhere. Communication of that information from one level of the department to another level does not, in my view, of itself constitute the false transfer information and to that end I do not think it is necessary to have these witnesses available.  I will hear what transpires from cross-examination.  If something arises then Ms Ogawa's position can be protected by a further adjournment and direction requiring her attendance to give evidence orally, but at this stage I do not think that that is going to be necessary.

5. We will have a trial of this matter on 5 December.

6. I am going to direct that the applicant file and serve any further material including submissions on or before 4 pm on 21 November and that the respondents will then file and serve any further affidavits and submissions or before 4 pm on 28 November.

7. We are proceeding on 5 December at 10 am.

I certify that the preceding seven (7) paragraphs are a true copy of the reasons for judgment of Burnett FM

Associate:  Beverley Schmidt

Date:  15 January 2008