FEDERAL COURT OF AUSTRALIA
Ogawa v Finance Minister [2021] FCA 603
Appeal from: Ogawa v Finance Minister [2021] FCA 59 File number: QUD 62 of 2021 Judgment of: LOGAN J Date of judgment: 17 May 2021 Catchwords: PRACTICE AND PROCEDURE – issue of apprehended bias raised at case management hearing – where judge assigned to case management had participated in two earlier Full Court judgments concerning the appellant – where factual substratum overlapped between cases – where judge assigned to case management ought to disqualify themselves if panelled to Full Court – where earlier judgments had not involved findings as to credibility of the appellant by the Full Court – no order made as to disqualification Cases cited: Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337
Michael Wilson & Partners Ltd v Nicholls (2011) 244 CLR 427
Ogawa v Carter (Delegate of Finance Minister) [2021] FCAFC 16
Division: General Division Registry: Queensland National Practice Area: Administrative and Constitutional Law and Human Rights Number of paragraphs: 10 Date of hearing: 17 May 2021 Counsel for the Appellant: The appellant appeared in person Solicitor for the Respondent: Australian Government Solicitor ORDERS
QUD 62 of 2021 BETWEEN: MEGUMI OGAWA
Appellant
AND: FINANCE MINISTER
Respondent
ORDER MADE BY:
LOGAN J
DATE OF ORDER:
17 MAY 2021
THE COURT ORDERS THAT:
1.Justice Logan is not disqualified, by reason of earlier participation in appeals in which the appellant was a party, from sitting on the Full Court in respect of the present appeal.
2.The respondent prepare the appeal book, which is to include, exceptionally, the written submissions filed by the parties in the original jurisdiction. The registrar is to settle the contents of the appeal book in the event of any disagreement between the parties.
3.Subject to Order 2, the registrar make the usual interlocutory directions to the end of listing the appeal for a hearing before the Full Court of half a day to a day.
4.There be liberty to apply.
5.The costs of and incidental to the preparation of the appeal book be the respondent’s costs in any event. Save as aforesaid, costs be reserved.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
REASONS FOR JUDGMENT
(REVISED FROM TRANSCRIPT)LOGAN J:
Dr Megumi Ogawa has appealed to the Full Court against orders given in the original jurisdiction in respect of an application by her for the judicial review of a decision by the Finance Minister not to make an ex gratia payment to her: see Ogawa v Finance Minister [2021] FCA 59. The appeal has been assigned to me for the purposes of case management. On this morning’s case management hearing, I raised with each of the parties a question as to whether or not having regard to my participation in two earlier judgments of the Full Court, either wished to submit that I should disqualify myself? Those…
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- Case
- [2021] FCA 603
- Decision Date
CaseChat Overview and Summary
The central legal issue before the court was whether the prior involvement of the judge in related cases necessitated their disqualification from presiding over the current appeal. The appellant argued that the judge’s prior judgments, coupled with the overlap in factual matters, created a reasonable apprehension of bias. The court had to determine whether these circumstances warranted disqualification under the principles of judicial impartiality and perceived bias.
The court carefully considered the precedents and principles regarding judicial disqualification. It noted that while the judge’s prior involvement in similar cases did create a factual overlap, the earlier judgments did not involve findings on the credibility of the appellant. Consequently, the court concluded that there was no basis for a reasonable apprehension of bias. The court held that the judge was not disqualified from sitting on the Full Court in the present appeal. Furthermore, the court made specific orders regarding the preparation of the appeal book and the allocation of costs, reserving the broader costs for later determination.
Orders
Orders of the court
1. Justice Logan is not disqualified, by reason of earlier participation in appeals in which the appellant was a party, from sitting on the Full Court in respect of the present appeal.
2. The respondent prepare the appeal book, which is to include, exceptionally, the written submissions filed by the parties in the original jurisdiction. The registrar is to settle the contents of the appeal book in the event of any disagreement between the parties.
3. Subject to Order 2, the registrar make the usual interlocutory directions to the end of listing the appeal for a hearing before the Full Court of half a day to a day.
4. There be liberty to apply.
5. The costs of and incidental to the preparation of the appeal book be the respondent’s costs in any event. Save as aforesaid, costs be reserved.
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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