Ogawa v Marshall & Ors

[2005] HCATrans 444

[2005] HCATrans 444

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Melbourne  No M224 of 2004

B e t w e e n -

MEGUMI OGAWA

Applicant

and

THE HONOURABLE SHANE MARSHALL, A JUDGE OF THE FEDERAL COURT

First Respondent

FEDERAL MAGISTRATE MAURICE PHIPPS

Second Respondent

THE HONOURABLE ANTHONY NORTH, A JUDGE OF THE FEDERAL COURT

Third Respondent

UNIVERSITY OF MELBOURNE

Fourth Respondent

Summonses

GLEESON CJ

TRANSCRIPT OF PROCEEDINGS

FROM MELBOURNE BY VIDEO LINK TO BRISBANE

ON WEDNESDAY, 22 JUNE 2005, AT 4.30 PM

Copyright in the High Court of Australia

__________________

MS M. OGAWA appeared in person.

MR C.M. CALEO:   If your Honour pleases, I appear for the fourth respondent, the University of Melbourne.  (instructed by Minter Ellison)

HIS HONOUR:   I have certificates from the Deputy Registrar saying that she has been informed that the first, second and third respondents will abide by any decision of the Court in this matter.  Swear the interpreter please.

KAORU KITAGAWA, affirmed as interpreter:

HIS HONOUR:   Ms Ogawa, will you make such use of the interpreter’s services as you feel necessary ‑ ‑ ‑

MS OGAWA:   Yes, thank you.

HIS HONOUR:   ‑ ‑ ‑ either in interpreting what I say to you or what Mr Caleo says or what you want to say to me.  You make such use of the interpreter’s services as you wish.

MS OGAWA:   Thank you very much, your Honour.

HIS HONOUR:   Now, before we begin, there is an unsworn affidavit of yours, Ms Ogawa, undated also but apparently prepared in April 2005.  Have you a copy of that, Mr Caleo?

MR CALEO:   Your Honour, I have two affidavits which have been sworn in this proceeding but they are both sworn.  I am not aware of a further I might call a draft affidavit.  The two that I have, one is 10 paragraphs in length and the other is six paragraphs.

HIS HONOUR:   Now, the affidavit that is 10 paragraphs in length is an affidavit of Ms Ogawa of 29 March 2005?

MR CALEO:   Yes, your Honour.

HIS HONOUR:   And the affidavit that is six paragraphs in length is an affidavit of 30 March 2005?

MR CALEO:   That is correct, your Honour. 

HIS HONOUR:   Do you read those affidavits, Ms Ogawa?

MS OGAWA:   Yes.

HIS HONOUR:   Have you any objection to either of those affidavits, Mr Caleo?

MR CALEO:   No, your Honour.

HIS HONOUR:   I have read those affidavits, thank you, Ms Ogawa.  Apart from those two affidavits of 29 and 30 March, is there any other evidence that you want to put before me in support of these summonses, Ms Ogawa?

MS OGAWA:   No, your Honour, that is the only evidence that I put before the Court.

HIS HONOUR:   Thank you, then you go ahead and say what you want to say.

MS OGAWA:   First of all, your Honour, I have to ask about the conduct of this proceeding.  I am pretty certain that your Honour is aware of the trouble in relation to the interpreter I have had in this Court.  First of all, one of the grounds of this appeal is that Justice Hayne at the first instance did not allow me to use an interpreter in the proceedings and resulting in, I felt, a misconception of the facts on the part of his Honour.  After that, there is other related proceedings in this Court, again,…..the  interpreter arranged by this Court was not really an interpreter, not a qualified person, and it caused me I should struggle as well. 

This time that Ms Kitagawa was.....interpreter and she is prepared to interpret the proceedings, but if the Court allows me to ask her to interpret proceedings, one by one, sentence by sentence, if your Honour or the other party gives me time to actually listen to the interpreter, I would appreciate that.  Is it possible to hold a break between the sentences?

HIS HONOUR:   You make such use of the services of the interpreter as you desire.  Go ahead with your submissions.

MS OGAWA:   Okay.  There is other trouble in the High Court.  One affidavit is – actually I swear on 23 March and filed, I submitted to the Queensland District Registry, that document was missing from the High Court, Melbourne, because of that I make another affidavit that is now before the Court.  Before that document is missing, there is another occasion I submitted a document by express post.  That go missing in the High Court, Melbourne as well. 

On both occasions the place where the document lodged actually gave me the consignment number of the courier and for the express post cases Australia Post confirms that documents are delivered but it has gone missing in the High Court, Melbourne.  I have another proceeding in this Court about a migration matter because my problem is in relation to the University.  The University can…..and of course my visa is cancelled as a result of the wrongdoing of the University and that is also the dispute in this Court.

For the migration matter is administrated by the Canberra office and so far there is no documents missing.   So I have had a very bad experience with the Melbourne office unfortunately and I wanted to ask your Honour to remove the files from Melbourne and to ask the Canberra ‑ ‑ ‑

HIS HONOUR:   I am here to deal with two applications that you have made commenced by summons relating to matter M224 of 2004 and those are the two matters with which I will deal this afternoon.

MS OGAWA:   Okay.  In the matter of M224 of 2004 I request your Honour to remove the file from Melbourne to the Canberra office.  One of the reasons I am here is that Justice Hayne did not explain that his Honour had a position in the respondent University as well as his Honour had a very close relationship, like a family relationship, with one of the professors who is actually at the centre of the dispute between the University and myself.

HIS HONOUR:   Why is he the centre of the dispute?

MS OGAWA:   The professor?

HIS HONOUR:   Why is the professor the centre of the dispute?

MS OGAWA:   The University is relying on his existence to say that the University did not contravene section 52 of the Trade Practices Act.  Anyway, he will be actually the centre.  He will be one of the main witnesses of the University, and once or twice by the local lawyers because of that, this Court cannot be totally disinterested in this case because this Court has to protect Justice Hayne, to say that Justice Hayne is not wrong, to protect integrity of the Court or whatever, and to do that, Court has to say that I am wrong.  That is…..I am not happy with this situation. 

I suspect that usually the Chief Justice does not hear this sort of interlocutory proceeding.  As long as I am aware, search the transcript, could not find such a case.  Because the Chief Justice is going to deal with it first of all, if something happens in this proceeding, effectively I have no way to appeal it.  Because I am not a lawyer and my knowledge is not sufficient, I feel quite uneasy with this situation, your Honour.  I do not know what I should ask to overcome this difficulty but perhaps – I do not know what to do but I have to ask the Court to bear in mind that this situation is probably not usual.  I am disadvantaged by that…..that administrative issue. 

The first thing I have to do is that I made a mistake in making a summons, summons seeking an order of expedition of the hearing and waiver of the production of appeal book, I wrote that hearing of the applicant’s application for special leave to appeal be listed but I understand this is leave application.

HIS HONOUR:   Yes, I will treat it as an application for leave.

MS OGAWA:   Thank you very much.

HIS HONOUR:   Actually, you have two summonses on.

MS OGAWA:   Yes.

HIS HONOUR:   The matter that you raise in the second one is, in a sense, dependent on the outcome of the first one because the outcome of the first one seeks to avoid the consequences of the deemed dismissal of your application.

MS OGAWA:   Yes.  Your Honour, in that case, I have to ask your Honour to give me a time.  I understand that in the Court file now, my summary of argument and draft notice of appeal is placed ‑ ‑ ‑

HIS HONOUR:   Yes.

MS OGAWA:   ‑ ‑ ‑ and they send it to the other side as well.

HIS HONOUR:   Yes.

MS OGAWA:   I took a little bit longer to complete writing that ‑ ‑ ‑

HIS HONOUR:   I have read that document.

MS OGAWA:   ‑ ‑ ‑ than required, but if the party is represented by lawyer deemed abandonment will not take place for six months.  Only if the party is not represented deemed abandonment will happen in 28 days.  I think that should be the other way round.  Lawyer probably can write this horrible document quite quickly.  They are professional but I am not a lawyer.

I approached a lawyer on how to write and even writing this is not easy because I have to write it in a foreign language and the things that I have to argue is not really easy.  There is excess of jurisdiction and want of jurisdiction.  I believe that even though it is amateurish, I make my best and I think I should make sense ‑ ‑ ‑

HIS HONOUR:   Ms Ogawa, that document – officer, will you show Ms Ogawa that document.

MS OGAWA:   Yes.

HIS HONOUR:   That is the document to which you are referring as your summary of argument, is that correct?

MS OGAWA:   Yes.

HIS HONOUR:   Thank you, officer.  Yes, I have read that.  Both documents back, please, officer.

MS OGAWA:   Yes, and…..

HIS HONOUR:   Both documents back, thank you, officer.

MS OGAWA:   …..

HIS HONOUR:   I have read your summary of argument.

MS OGAWA:   And I think, your Honour, prima facie, there is, I believe, particularly in the circumstances where the – I do not say that Justice Hayne is biased but this is not the occasion where everybody in the world can confidently say that justice has been manifestly seen to have been done.  Well, at least, his Honour did not consider a lot of possibility of Justice Marshall’s excess of jurisdiction and that should be heard and I took a bit longer than usual to write up this argument, but just given that I am not…..not a lawyer, not represented, everybody thinks that I need a pro bono lawyer but I do not have a pro bono lawyer, so in this circumstance that an extension of time should be granted, although the time is a little bit over, but even I over the time, still that it is much earlier than an ordinary lawyers duration of deemed abandonment.  So that is the thing I wanted to say.

HIS HONOUR:   Thank you.  Mr Caleo, what do you want to say?

MR CALEO:   Your Honour, in relation to what your Honour has termed the first summons, that is, where Ms Ogawa seeks to be excused from compliance with those rules which would provide that her application for leave to appeal is deemed to be abandoned, my client opposes the relief sought on this basis, that no explanation has been given for the delay in the filing of the written case.  The two affidavits which have been served upon my client, and I am uncertain whether both are relied upon in support of this particular summons, but even if they are, neither of those affidavits deposes to any explanation for the delay that has occurred.  On that basis alone, in my submission, there is no basis for what would in effect be an extension of time to be granted to Ms Ogawa.

HIS HONOUR:   Excuse me for a moment.  Interpreter, will you interpret to the Japanese language what Mr Caleo just said.

THE INTERPRETER:   I am sorry.  I was not taking notes.

HIS HONOUR:   Please say it again so that the interpreter may interpret it.  Go ahead, Mr Caleo.

MR CALEO:   If your Honour pleases.  Your Honour, my client opposes the relief sought in the summons being the summons in which Ms Ogawa seeks to be excused from compliance with rules 41.10.3 and 41.10.4.

HIS HONOUR:   Just a moment.  Will you please interpret that?

THE INTERPRETER:   Yes, your Honour.

HIS HONOUR:   Now, would you repeat, Mr Caleo, what you said about the lack of explanation of a reason for the delay.

MR CALEO:   If your Honour pleases.  Neither of the affidavits sworn by Ms Ogawa and relied upon on this application provides any explanation for the delay in filing with the Court the written case required by rule 41.10.

HIS HONOUR:   Interpreter, would you interpret that, please.

THE INTERPRETER:   Sure, your Honour.

HIS HONOUR:   Is one of the grounds upon which you oppose the making of the order sought that there is insufficient merit in the substance of the matters that the applicant seeks to raise?

MR CALEO:   It is, your Honour, yes.

HIS HONOUR:   Would interpret that, please?

THE INTERPRETER:   What you just said?

HIS HONOUR:   Yes, what I just said and what the barrister said.  I will repeat what I just said. 

THE INTERPRETER:   Yes, thank you, your Honour.

HIS HONOUR:   Is one of the grounds upon which you oppose the first summons that there is insufficient merit in the substance of the arguments which the applicant seeks to raise and the barrister answered the question, “Yes”. 

THE INTERPRETER:   Yes.

HIS HONOUR:   On that point, Mr Caleo, what do you say about the allegation of the centrality to the proceedings of the Professor referred to by Ms Ogawa?

MR CALEO:   Your Honour, if Ms Ogawa means that Professor Malcolm Smith will be a witness in the substantive proceeding which is pending in the Federal Magistrates Court between herself and my client, I can confirm that the Professor will be called as a witness.

HIS HONOUR:   Does he have any interest in the case other than as a witness?

MR CALEO:   No, your Honour, none whatsoever.  He is an employee of the University.

HIS HONOUR:   Excuse me.  Interpreter, would interpret that please.

THE INTERPRETER:   Yes, I will try.  I think he said ‑ ‑ ‑

HIS HONOUR:   I will repeat it.

THE INTERPRETER:   Yes.

HIS HONOUR:   I asked what Mr Caleo wanted to say about the allegation that Professor Smith was a central witness in the substantive proceedings and Mr Caleo said he would be a witness, but in response to a further question I asked, he said that otherwise than as a witness he has no interest in the proceedings.

THE INTERPRETER:   Other than a witness.

HIS HONOUR:   Thank you, Mr Caleo.

MR CALEO:   If your Honour pleases.

HIS HONOUR:   Yes, Ms Ogawa, what do you want to say in answer to anything that Mr Caleo said?

MS OGAWA:   If my affidavit is not sufficient, I will ask the leave of the Court to file and swear an additional affidavit.

HIS HONOUR:   Having regard to the history of these proceedings, it seems to me inappropriate that further time should be taken up in that exercise but perhaps you could explain to the Court from where you are now the reason for the delay.

MS OGAWA:   Well, actually I already explain.  I am not a lawyer.  I am not from an English‑speaking background either.  Just collecting information hard to write the document, is not easy, particularly since that all rules suddenly applied from 1 January this year, so I could not even find the precedent of that and I do not have pro bono lawyer, I cannot take advice for – if this explanation is too general, then what else can I say? 

Also, Professor Malcolm Smith’s personal interest is the only thing that your Honour might bear in mind, but even if that is disregarded, well, I think that Professor Malcolm Smith has a personal interest in this case because he is a professor of the respondent, but apart from that fact, even we disregard Professor Malcolm Smith, there are 18 other grounds I put before the Court.  Justice Marshall’s transfer order is not appealable because of the Federal Court of Australia Act.  So the only way to ask a court above to review his transfer order is good or bad is the…..application, constitutional writ. 

Then I have to say that Justice Marshall’s transfer order is very, very bad, very nasty order.  All the evidence was put before Justice Hayne in M169 of 2004.  That was referred to in my summary of argument.  Justice Marshall said when order the transfer pro bono assistance was available in the Federal Magistrates Court. 

Justice Hayne asked Federal Court, but it was not true, it did not happen, and Justice Marshall said that he ordered the transfer of the proceedings because unless he order the transfer, Federal Court may not hear my case because the matter is in Melbourne and I cannot afford to fly to Melbourne.  But after the order is made, I asked the Court video conference staff that fee waiver of the video link is possible and their answer is that if the judge orders that the Court pay the fees for the video it is possible.  So, even I am impecunious, cannot afford to fly to Melbourne, still, in reality, the proceeding can go ahead in the Federal Court but Justice Marshall said different thing. 

All those sorts of things…..the transfer.  I put the transfer back, a motion of transfer back to the Federal Magistrate but Federal Magistrate could not do anything because the matter was ordered to transfer from the Federal Court to the Federal Magistrates Court by the Federal Court judge.  The Federal Magistrate is court below, so he cannot disregard what a court above said. 

If this summons is not heard – well, if the extension of time is not granted and matter will not be heard, have to think that I was deceived by the Federal Court judge.  This is not a good situation in my understanding and, well, Federal Court has to hear the case until the end.  There is a provision in section 22 of the Federal Court Act if the transfer order result in the matter has not been heard, then Federal Court cannot transfer order and when Justice Marshall ordered the transfer, at that moment Justice Marshall assumes that the trial will take place in 2004 in Federal Magistrates Court. 

If the matter has remained in Federal Court in Justice Marshall’s docket, trial will not take until 2005.  That is another reason his Honour ordered transfer and based on that assumption, his Honour calculated damages I have to seek, but in fact the trial did not take place in 2004.  Matter is still pending in the Federal Magistrates Court, the loss and damages…..accumulating up and up, and actually I am seeking more than $200,000, means that the Federal Magistrates Court does not have jurisdiction.  If your Honour does not grant the extension of time, what is going to happen is that the matter remain in the Federal Magistrates Court where there is no way that I can get the order I am seeking. 

If there is no way to get an order, what is the point to go to the trial?  Justice Marshall said that I should be able to advance my claim.  To do that, his Honour ordered the transfer.  That is what his Honour said.  But in reality what has happened is that because of the transfer, I cannot advance my claim and if somehow result pro bono assistance if I go to the trial and manage to complete the trial, somehow in a miracle I do not think I can do, but even if I do, I cannot get order because Federal Magistrate does not have jurisdiction to make an order which I am seeking.

So everything becomes very, very ridiculous.  There is no point to go to the trial in the Federal Magistrates Court.  So I have to ask your Honour to allow me to hand up summary of argument which I submitted to the Court.  If it is not well written, perhaps I have to learn more about Australian law and have to retype it.  I do not know Australian law.  I have studied law, I know what…..and this is the situation your Honour can help me to resolve the dispute between University and me.  If this extension is granted, the matter is heard by the Full Court of this Court.  I am sure the Full Court will consider whether Federal Magistrate cannot hear the case, whether Federal Magistrate can make an order I seek which Justice Hayne unfortunately did not consider.  So I have to ask ‑ ‑ ‑

HIS HONOUR:   Thank you.

MS OGAWA:   Thank you.

HIS HONOUR:   On 13 October 2004, Justice Hayne of this Court dismissed with costs an application for an order nisi.  His Honour’s reasons for judgment explain in detail the background to the proceedings that were commenced in this Court.  It is unnecessary for me to repeat what his Honour said in that regard, but I wish to incorporate by reference in these reasons the account of the background to the matter given by Justice Hayne.

Matter M224 of 2004 is an application for leave to appeal against the decision of Justice Hayne.  Under the Rules of the Court, the time for filing such an application expired on 10 November 2004.  The application M224 of 2004 was filed on 23 December 2004.  Under the Rules of Court, the applicant was required to file a summary of her argument and draft notice of appeal, and the time for doing that expired on 20 January 2005.  The consequence of failure to comply with that rule was a deemed abandonment of the application for leave to appeal.

On 4 October 2005, the applicant filed two summonses in matter M224 of 2004, and she has also filed, although out of time, a summary of her argument in support of her application for leave to appeal.  I have examined the detail of that summary of argument.

The first summons, in effect, sought dispensation from compliance with the rules limiting the times, to which I have referred, and the second summons, which really only arises in the event that an order in favour of the applicant is made on the first summons, sought expedition of the hearing of the application for leave to appeal and dispensation from the requirement to prepare an application book.

In considering the first application, which is dispensation from compliance with the rules limiting time, I note that counsel for the fourth respondent argues that there has been insufficient explanation for the failure to comply with the rules as to time.  I do not intend to dispose of the application on that basis.  Rather, I intend to deal with the application by reference to my views of the substantive merits of the application for leave to appeal against the decision of Justice Hayne.  In my view, there are none.  I see no reason to doubt the correctness of the reasons given by Justice Hayne for his decision of 13 October 2004.

Furthermore, in relation to the further arguments that the applicant has sought to raise, concerning what might be summarised as apprehended bias, I see no substance in those arguments.  The potential witness to whom the applicant has referred, and with whom Justice Hayne is said to be acquainted, is not shown by the evidence to be a person who has any personal interest in the outcome of the case.  He was not a witness in the proceedings before Justice Hayne.  His evidence had no bearing on the outcome of the proceedings before Justice Hayne, and the fact that he might be intended to be called as a witness in the proceedings in the Federal Magistrates Court does not seem to me to bear the weight which the applicant in her argument seeks to attach to it.

Similarly, the fact that Justice Hayne has in the past had an association with the University of Melbourne does not seem to me to carry the consequences for which the applicant contends.

Because I am of the view that there are no substantial merits in the proposed application for leave to appeal against Justice Hayne, I consider that the applications in the two summonses, to which I have referred, should be dismissed with costs.  I order that both applications be dismissed with costs.  The Court will adjourn.

AT 5.08 PM THE MATTER WAS CONCLUDED