FEDERAL COURT OF AUSTRALIA
Ogawa v Commonwealth of Australia [2023] FCA 929
File number(s): QUD 139 of 2023 Judgment of: MEAGHER J Date of judgment: 8 August 2023 Catchwords: PRACTICE AND PROCEDURE – Where applicant has not proved service upon the respondent – Where applicant failed to appear – Proceeding dismissed Legislation: Federal Court of Australia Act 1976 (Cth) ss 37AG(1)(a), 37AI(1)
Judiciary Act 1903 (Cth) s 39B
Division: General Division Registry: Queensland National Practice Area: Administrative and Constitutional Law and Human Rights Number of paragraphs: 8 Date of hearing: 8 August 2023 Counsel for the Applicant: The applicant did not appear Counsel for the Respondent: The respondent did not appear ORDERS
QUD 139 of 2023 BETWEEN: DR MEGUMI OGAWA
Applicant
AND: COMMONWEALTH OF AUSTRALIA
Respondent
ORDER MADE BY:
MEAGHER J
DATE OF ORDER:
8 AUGUST 2023
THE COURT ORDERS THAT:
1.The proceeding be dismissed.
2.There be no order as to costs.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
REASONS FOR JUDGMENT
(REVISED FROM TRANSCRIPT)MEAGHER J
On 31 March 2023, the applicant lodged an application seeking relief pursuant to s 39B of the Judiciary Act 1903 (Cth) that her detention by the Commonwealth was unlawful, and seeking an order for damages as a result of false imprisonment, trespass to chattels and/or conversion, and assault and/or battery. The applicant also sought interlocutory orders for suppression pursuant to ss 37AG(1)(a) and 37AI(1) of the Federal Court of Australia Act 1976 (Cth).
This matter was allocated to my docket on 2 May 2023. On 11 May 2023, I instructed an email to be sent to the applicant advising that the matter was set down for a first case management hearing at 10:30 am AEST on 13 June 2023. In that email, the applicant was put on notice that she was required to prove service if the respondent did not file a notice of address for service before the case management hearing.
The first case management hearing was rescheduled to 11:30 am AEST on 27 June 2023. The applicant was advised of this on 31 May 2023, and was again put on notice that she was required to prove service upon the respondent.
The first case management hearing proceeded at 11:30 am AEST on 27 June 2023. The respondent had not filed a notice of address for service, and the applicant failed to prove service. I directed the applicant to the Attorney-General Department’s website for details as to how to effect service upon the Commonwealth, and advised that the matter would be called back on in six weeks, at 11:30 am AEST on 8 August 2023, by which time the applicant was required to have served the respondent.
At 2:30 pm AEST on 7 August 2023, the applicant sent the below email to the Court:
Dear Registry
Please inform her Honour that I will not be able to attend tomorrow's case management hearing because: i) my old guinea pig is not very well and I cannot be away from him for too long; and ii) in any event, I am going to file my interlocutory application for her Honour's disqualification in this matter and 2 other matters currently before her Honour so that I do not participate in any proceedings in those matters before the hearing of my interlocutory application.
Kind regards
Megumi
Dr Meg Ogawa
(Emphasis in original)
On the same day, I instructed an email to be sent to the applicant advising that the case management hearing would proceed, and that non-appearance may result in the dismissal of her application.
The applicant has failed to serve the respondent. She also failed to appear at the case management hearing and has not given a reasonable excuse for doing so. Both are events of default.
Accordingly, the proceeding is dismissed. There will be no order as to costs.
I certify that the preceding eight (8) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Meagher. Associate:
Dated: 8 August 2023
- AGLC
- Ogawa v Commonwealth of Australia [2023] FCA 929
- Case
- [2023] FCA 929
- Decision Date
CaseChat Overview and Summary
The primary legal issue before the court was whether the applicant had demonstrated that the proceeding papers were served upon the respondent. In the absence of proof of service, the court had to consider whether the failure to appear constituted a sufficient ground for dismissal. The court also had to determine whether the dismissal should be with or without costs.
The court held that the applicant had not discharged the onus of proving that the proceeding papers were served upon the respondent. Furthermore, the applicant's failure to appear before the court without a satisfactory explanation constituted a serious procedural irregularity. The court noted that the applicant had an obligation to ensure that the proceeding papers were properly served and to attend the hearing. The court concluded that the proceeding should be dismissed due to the applicant's failure to comply with the procedural requirements. The court also noted that there were no exceptional circumstances that warranted an order for costs against the respondent.
The court ordered that the proceeding be dismissed and that there be no order as to costs. The dismissal of the proceeding means that the applicant's claims against the respondent were not proceeded with, and the respondent was not required to respond to the claims. The absence of an order as to costs means that neither party was required to bear the other's legal costs. The entry of orders is governed by Rule 39.32 of the Federal Court Rules 2011.
Orders
Orders of the court
1. The proceeding be dismissed.
2. There be no order as to costs.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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