Ogawa v Colbeck and Anor (No.2)
[2007] FMCA 2127
•5 December 2007
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| OGAWA v COLBECK & ANOR (No.2) | [2007] FMCA 2127 |
| ADMINISTRATIVE LAW – Improper exercise of power – claim for waiver of fees – detention debt and legal debts associated with detention proceedings – failure to comply with court orders – want of prosecution that application is not being prosecuted in a bona fide manner – exercise of power to dismiss application is absence of applicant. |
| Administrative Decisions (Judicial Review) Act1977 |
| Applicant: | MEGUMI OGAWA |
| Respondents: | RICHARD COLBECK & ANOR |
| File number: | BRG 297 of 2007 |
| Judgment of: | Burnett FM |
| Hearing date: | 5 December 2007 |
| Date of last submission: | 5 December 2007 |
| Delivered at: | Brisbane |
| Delivered on: | 5 December 2007 |
REPRESENTATION
| No appearance for or on behalf of the Applicant |
| Counsel for the Respondent: | Mr McLeod |
| Solicitors for the Respondent: | DLA Phillips Fox |
ORDERS
That the application be dismissed and the applicant pay the respondent's costs of and incidental to the application, including reserved costs, to be taxed.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT BRISBANE |
BRG 297 of 2007
| MEGUMI OGAWA |
Applicant
And
| RICHARD COLBECK & ANOR |
Respondent
REASONS FOR JUDGMENT
Introduction
Now, this matter was set down for hearing today. I will briefly detail some of the background relevant to the application, but in broad terms the matter has come on today for hearing and Mr McLeod appears for the respondents. The applicant, Ms Ogawa, has not appeared. Mr McLeod asks of the Court to dismiss the application on one or either of three grounds.
First, pursuant to r.13.03(1), failure to comply with a Court order; secondly, 13.03(2), that the Court on its own motion dismiss the application to hear on the basis that there has been in effect a want of prosecution which would suggest that the application is not being prosecuted in a bona fide manner; and third, that in the absence of the applicant that the Court exercise its powers to dismiss the application under r.13.03A(3).
This application has a long history. It was commenced by an application made on 18 April 2007. The application is one whereby the applicant sought judicial review under the ADJR Act of the decisions made by the respondents concerning an application made by her for the waiver of expenses and fees incurred in the course of her detention at the Villawood Immigration Detention Centre between 19 May 2006 and 28 July 2006.
The basis upon which the application against the first respondent is said to have been based was the making of the decision an improper exercise of the power conferred by the relevant enactment; that the exercise of the power was so unreasonable that no reasonable person could have exercised the power; that the decision was induced or effected by fraud and that there was no evidence or other material to justify making of a decision; and, that there was a catchall that further or other grounds not presently within the apprehension of the unrepresented applicant. So far as the application concerned the second respondent, Mr Verney, again it was asserted that Mr Verney failed to take relevant consideration into account in the exercise of a power; that an exercise of a power was so unreasonable no reasonable person could have exercised the power; if fraud had taken place it was likely to take place in the course of the conduct and that there was no evidence or other material to justify the making of the proposed decision; and again, the catchall, other grounds not presently within the apprehension of the unrepresented applicant. Further, as I will expand upon shortly, the basis or the grounds of the application were wanting of even the most basic particularity.
The matter, as I say, had its genesis in a decision made by the
decision-maker concerning a claim for waiver of certain fees which gave rise to a debt totalling $35,186.65 in respect of a detention debt and legal debts associated with the detention proceedings.
The history of the matter is well-detailed in a letter which is an annexure to the affidavit of Janette McRae filed 7 November 2007, which is addressed by Mr Ruben Gray, who was the director of the Finance and Policy Section, to Ms Janette Mulcahy, who was the special financial claims section officer for the Department of Finance and Administration. That letter has attached to it also an attachment which deals with the considerable history associated with this matter which led ultimately to the Minister's decision which is also attached to the affidavit of Ms McRae ultimately determining that the debt would not be waived.
When the matter first came on it came on before me on 29 May 2007 the proceeding was adjourned to 27 June, for reasons I can no longer recall. But in the interim it would seem that the application itself was then subject to some further particularisation and leave was granted on that date for an amended application to be filed, which mended application fleshed out many of the very broad complaints made by the applicant in her initial application.
On that same day – and I should note that I think on that occasion there was only an appearance of the applicant – orders for service were made in respect of that amended application on the first and second respondents who, it should be noted, were the relevant officers within the Department who are the alleged decision-makers.
It was further ordered on 27 June that the application then be adjourned for mention on 25 July 2007 on which occasion the respondents did appear and the application in its true sense proceeded.
On that occasion the matter was given the standard directions in relation to an application of this kind requiring the applicant to file and serve a further amended application for review by 16 August 2007. It was also foreshadowed at that time by the respondents that there would be a notice of motion filed seeking to strike out the applicant's application. Orders were made in respect of that matter. And then there was also an order made on the request of the applicant for the appointment of a pro bono lawyer to assist her in relation to the prosecution of the application. The matter was then adjourned for mention at 10.30 on 19 September 2007.
In the meantime the application which had been foreshadowed by the respondents had been filed and no doubt it was anticipated it would have been argued on the next return date, which had been otherwise allowed for.
On the 27th at about 10.30 the matter did come on for mention, but on that occasion there was no appearance by Ms Ogawa. My recollection is that she did attend earlier in the day, but became impatient with the length of the list and the fact that the matter was not being disposed of with the priority that she considered it deserved and she left the Court precinct some time through the course of the morning.
In any event, the matter was stood over until after lunch on that day and Mr Noble of Counsel, who had been the appointed pro bono lawyer appeared. I should say that Mr Noble did not appear in the morning on that occasion and I had my associate make inquiries through the registry as to who had been appointed as the pro bono lawyer to act for Ms Ogawa and that Mr Noble was identified as that person and efforts were made by my associate to secure his attendance.
He initially was unable to attend, but subsequently did attend when the matter was mentioned later in the day some time after lunch and informed the Court that although he had initially accepted the pro bono appointment he was unable to make contact with Ms Ogawa and get any meaningful instructions from her and, in fact, the impression I had from Mr Noble's attendance and appearance on that day was that Ms Ogawa had simply refused to provide him with the instructions he needed to enable him to act in any meaningful way and accordingly he ultimately determined to reject the appointment as the pro bono lawyer.
Directions were then made in the presence of Mr Noble but obviously in the absence of Ms Ogawa in relation to the further prosecution of the application in terms of my orders of 27 September, which in part required her to file and serve any material by 12 October 2007 and to file any further amended application by 10 October 2007 and the matter was then adjourned for further directions on 17 October with a hearing listed on that day for 14 November.
I should say that the purpose of adjourning the matter for mention on 17 October was to ensure that the applicant attend on that occasion to satisfy myself that she was indeed complying with the terms of the orders which I had made in order to ensure that the trial proceeded on 14 November as I had otherwise ordered.
On 17 October 2007 the matter was again mentioned. On that day it was listed for mention, as my orders provided, at 9.30. However, on that day unfortunately for me I had broken by arm a day or two earlier and on the morning of 17 October I was at the hospital having my arm set in plaster at 9.30 am and so the day's proceedings were delayed and did not commence until 11 am. My associate informs me that all those who were present at 9.30 in the precincts of the Court were informed of that matter. She also informed me that Ms Ogawa was present on that occasion.
When the matter came on at 11 o'clock Ms Ogawa was not present and again the matter was stood over until after lunch in order to see if Ms Ogawa perhaps had misunderstood the directions which were given concerning the disposal of business that day. Despite that Ms Ogawa did not appear that afternoon either.
Accordingly, orders were made in terms of my directions of 17 October 2007 for her to provide further and better particulars in respect of a request which had been contained in a letter dated 23 July 2007 and the matter was adjourned again to 14 November, which had been the previous date set for trial. An order was also made in relation to costs given Ms Ogawa's failure to appear, which in my view appeared to be deliberate.
When the matter then came on the last occasion, which was 14 November, for further mention Ms Ogawa sought leave to file a further amended application which leave was granted and that further embellished the grounds being pursued by the applicant in this application, but did not appear to in any sense impede or impact upon the prospect of the application proceeding for trial on today's date.
But importantly on that occasion two matters were apparent. First, there had been a failure to comply with earlier directions made by me in relation to the filing of material and there had been a failure by the applicant to comply with directions in relation to the delivery of particulars.
The applicant was informed in no uncertain terms on that 14 November date that that had been a date for hearing and that by reason of her conduct the hearing had been unnecessarily adjourned. The respondents had appeared by instructing counsel and they were in all respects ready to proceed.
There was no reasonable excuse concerning the applicant's failure to be ready and accordingly a costs order was made against her. I informed her on that occasion that the matter would be adjourned to today for hearing and that it would be expected that she would be ready to proceed today, and further that there would really be no application for any adjournment countenanced in the absence of good reason.
Today she has simply failed to appear. Last night she sent to the Court by e-mail at about 2059 a letter from a clinical psychologist, a Mr Malcolm McKenzie - and I will mark the letter exhibit 1, together with the e-mail, which is her e-mail directed to the Registrar of the Court.
Now, Mr McKenzie is a clinical psychologist. He informs the Court - the letter is dated 2 December, it is addressed "To Whom It May Concern" - he says he is currently counselling Ms Ogawa as she is seeking to recover from a significant anxiety disorder and major depression. He talks about her having made some advances in dealing with issues and the impact of the illness varies at times on a daily basis depending on the demands that are made upon her.
He says:
“In this circumstance it is obviously best for Ms Ogawa to limit her exposure to stressful situations whenever possible while she is working on her recovery.”
He continues:
“While I am not asking that Ms Ogawa be excused from meeting her obligations to the Court it is important to note that there have been days when the extent of Ms Ogawa's condition has been so debilitating it has not been possible for her to prepare the documentation required by the Court in a timely manner.
It is also equally important to note that as a result of her illness it would on occasion have been impossible for her to appear before the Court. Accordingly, there will likely be occasions in the future when Ms Ogawa may not be sufficiently well to attend Court. In addition, it is recommended that Ms Ogawa not be required to remain in the courtroom any longer than necessary”
et cetera.
Two issues arise, the first relates to the preparation of material. I have already indicted that there have been failings by the applicant to prepare material. As I say, this application has a long history, it commenced in April this year. Directions pertaining to the issue of material have been extant since 27 September 2007, but in any event it will have been well-anticipated by the applicant well before then of the need to prepare material, but yet nothing has been forthcoming.
Ms Ogawa, it should be noted, is not an unintelligent person. She has signed one of her letters addressed to Dr Guy Verney – and again, this is one of the annexures to the affidavit of Janette McRae – as
Ms Megumi Ogawa BA Law, Osaka University, MA International and Business Law, Yokohama National University
Her letters detail part of her history relevant to her enrolment as a PhD student at both the University of Melbourne and an application to enrol as a PhD student at the University of Queensland.
While it might be correct to say that she is not a legal practitioner and might be correct to say that she is not a native English speaking person, having regard to her academic qualifications and the fact that she has been enrolled in a PhD program in an Australian University where the standard language is English she is not without ability to express herself in the English language.
So much, of course, also appears apparent from her correspondence, again, if one looks to the various letters attached to the affidavit of Ms McRae, a letter addressed to the Minister of 14 October 2006, a letter addressed to Dr Guy Verney of 9 September 2006, and various
e- mails which are also annexed to Ms McRae's affidavit. In one of the various e-mails attached to Ms McRae's affidavit it can be seen that she commands a very good capacity of the English language in a written sense and, I would also observe, in an oral sense having regard to the capacity of which she has been able to make submissions before me in both this and other applications.
Accordingly, it seems to me that despite Mr McKenzie's observations she has had more than ample time in my view to address even the elementary requirements in terms of the provision of material in accordance with the Court's directions.
So far as the prospect of her not perhaps being able to appear today because she is under a disability I make the following observations. On each of the occasions that Ms Ogawa has appeared before me in this Court she has always been accompanied by a gentleman whom I know to be Associate Professor Clive Turner. I do not know of the relationship between Mr Turner and Ms Ogawa, but he comes to Court with her and he departs from the Court with her.
Even if Ms Ogawa has chosen not to provide instructions to the pro bono lawyer it is obvious to me that Ms Ogawa is not without some social support. Professor Turner is not here today and I have no reason to believe that he would not be able to be present if Ms Ogawa was not able to attend, even as a friend, to inform the Court of her basis for non-attendance.
I further note that Ms Ogawa has an extensive history of communicating with the Court. She communicates regularly with the Registrar at our Court about proceedings in Court by e-mail, just as she sent an e-mail to the Court last night in the terms I have identified contained in exhibit 1; but she has not, for instance, sought to e-mail the Court to inform the Court that she regards herself as being under a disability today and therefore being unable to attend. All she asked the Registrar to do was to
“forward the attached document to Burnett FM before 10 am as the document is relevant to the proceeding. Thank you very much. Yours sincerely.”
In the circumstances, I am not prepared to find that she is presently under a disability or at least is so disabled and so isolated from a support network that she could not send somebody along today to inform the Court of her disability and request an adjournment in that event.
It follows, in my view, that there has been clearly a failure by the applicant to comply with Court orders in particular, as I have already indicated, the directions that were issued on 17 October in relation to the provision of further and better particulars and the directions issued on 27 September in relation to the filing of material and on that basis I dismiss the application.
In any event, it is worthy of note that in this case the Court may of its own motion under O 13.03 (2) make an order to end a proceeding or dismiss a response. In this case I think it is appropriate to exercise the Court's power under that order as well. My impression of the prosecution of the application by Ms Ogawa is that she has not been bona fide in her efforts to prosecute the application. She has sought at every instance to frustrate the prosecution of the application and she has sorely tested the patience of the Court in that regard. She has been given ample opportunity to comply with the Court's directions. She has been afforded the opportunity of a pro bono lawyer whom she failed to instruct such that he in frustration withdrew from his appointment. And she has on previous occasions treated the Court with disdain by her refusal or failure to appear or leaving the Court before her matter had been mentioned.
In all the circumstances it struck me that the object of her application was simply to preserve her time in Australia rather than to seriously prosecute the matters that are complained of in her application.
So on that basis I think it is appropriate that the Court bring an end to this vexatious conduct and dismiss the application on that basis.
Finally, of course, there is the failure by the applicant to appear today and on that basis there is no adequate explanation for her failure to appear. It does not appear to me that there is any basis or any justification for the applicant not appearing or, indeed, sending somebody along to explain her non-appearance. Having regard again to the lengthy history of this matter and the number of opportunities that the applicant has been afforded and the indulgences that have been granted to her the absence to appear, I think, on its own again justifies an order dismissing the application.
I direct that the applicant pay the respondent's costs of and incidental to the application to be taxed.
I certify that the preceding thirty-nine (39) paragraphs are a true copy of the reasons for judgment of Burnett FM
Associate: Beverley Schmidt
Date: 15 January 2008
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