Ogawa v MIMIA

[2006] HCATrans 587

[2006] HCATrans 587

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Brisbane  No B76 of 2004

B e t w e e n -

MEGUMI OGAWA

Applicant

and

MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

Respondent

Summons

CALLINAN J

TRANSCRIPT OF PROCEEDINGS

AT BRISBANE ON FRIDAY, 27 OCTOBER 2006, AT 11.35 AM

Copyright in the High Court of Australia

MS M. OGAWA appeared in person.

MR J.S.H. LO:   If your Honour pleases, I appear for the respondent.  (instructed by Clayton Utz)

HIS HONOUR:   Ms Ogawa, I understand you want somebody to assist you, is that correct?

MS OGAWA:   No, your Honour, I will do it myself.

HIS HONOUR:   You do not require an interpreter?

MS OGAWA:   I do not think I need one.

HIS HONOUR:   Is this correct, Ms Ogawa?  Your application is for the reinstatement of your application for special leave to appeal to this Court, is that correct?

MS OGAWA:   I am not quite sure.  Well, seeking an order to file a summons to extend the time of filing of a summary of argument.  That is the primary order I am seeking in this summons.

HIS HONOUR:   You correct me if I am wrong, but do you not first need an order that your application for special leave to this Court be reinstated?  It is deemed to be abandoned under the Rules because you did not file a summary of argument, is that not correct?

MS OGAWA:   I am seeking an order to dispense the provision of the deemed abandonment as well, yes.

HIS HONOUR:   Yes, but I think you need that first because, unless you get an order reversing the deemed abandonment, as it were, there is no point in you getting any other orders.  Do you understand that?

MS OGAWA:   Yes.

HIS HONOUR:   Let me see what Mr Lo has to say about this.  Mr Lo, what is your attitude to the reinstatement?  Am I correct in what I have put to Ms Ogawa that her application is deemed to be abandoned because she defaulted in effect in filing her summary of argument?  Is that correct?

MR LO:   Yes, quite right, your Honour.  The summons in its present form does not achieve any outcome.

HIS HONOUR:   No, but we all understood that she wanted reinstatement of her application.  You do not doubt that, do you?

MR LO:   No, that is correct.

HIS HONOUR:   What is the Minister’s attitude to that?

MR LO:   The respondent objects to that course.

HIS HONOUR:   Why?

MR LO:   For a number of reasons.  First of all, there has been no satisfactory explanation of the delay in bringing this application since the matter was deemed abandoned in January 2005.  It is almost two years ago.  Further, there has been no proper explanation or submission made as to why the Rules of the Court ought to be dispensed with or why this is an appropriate case for your Honour to dispense with the compliance with those Rules. 

Most importantly, we say, your Honour, that this honourable Court places some importance on finality in litigation, and one of the more notable cases of late is The State of Queensland v J.L. Holdings Pty Ltd.  Our client should be able to expect after almost two years that this matter has been put to rest.  The parties should not have the opportunity to bring fresh proceedings or to renew proceedings each time they come up with new arguments or each time the law changes.  There has to be a point where an end is put to the proceedings and we submit that there is simply insufficient cause shown for this application to be reinstated at this stage.

HIS HONOUR:   I will give you another opportunity, but thank you, Mr Lo.  That gives me a good idea of – Ms Ogawa, why have you taken so long?  Is it not correct that you have really had since January last year to deal with this matter?

MS OGAWA:   …..that summons I tried to file in January 2005 was not received by the Registry actually.  Today’s summons is for the order to file that summons.

HIS HONOUR:   Have you done anything since the Registry refused to ‑ ‑ ‑

MS OGAWA:   Actually, I have done quite a lot.  First, tried to persuade the Registry to file it.  They did not file it.  Then I filed an application – I tried to file an application I think in this Court seeking my order mandamus directing to the Registrar to file it and that was not filed either.  Then I filed in the Federal Court under the Administrative Decisions (Judicial Review)

Act seeking an order to direct the Registrar to review the decision of Registrar not to receive.  Actually, Registrar did not reject, simply did not receive, so I am seeking an order to review that decision.  That eventually came in the Federal Court last September before Justice Finkelstein and Justice Finkelstein, together with all other applications, simply adjourned.  I am striving to file that summons and ‑ ‑ ‑

HIS HONOUR:   So you have been quite active?

MS OGAWA:   Yes. 

HIS HONOUR:   What is the date of the summons that is actually before me today?

MS OGAWA:   I filed it from the Villawood immigration detention centre.

HIS HONOUR:   Was this the one that was filed on 13 July this year?

MS OGAWA:   Yes.

HIS HONOUR:   Is that right, Mr Lo?

MR LO:   Yes, your Honour.

HIS HONOUR:   Thank you.  So ‑ ‑ ‑

MS OGAWA:   I could eventually file this summons in this Court because that I was in Villawood which make me fall in the category of a person who does not have to pay fees to this Court.

HIS HONOUR:   Yes, I understand that.  You might be able to help me, Mr Lo.  What is the provision in the Rules about abandoned applications?

MR LO:   It is rule 41.10.4.

HIS HONOUR:   Ms Ogawa, your problem has been, I think – 41.10.4, Mr Lo, is it?

MR LO:   Yes.  That provides for deemed abandonment, failure to file a written case.

HIS HONOUR:   Thank you.  Your problem is – what is the rule about reinstatement?  Deemed abandonment is 41.13.

MR LO:   Pursuant to the same rule, your Honour, in the last line there, “the Court or a Justice” may otherwise order.

HIS HONOUR:   Thank you.  I think your problem has been, Ms Ogawa, that you have not asked for the right relief.  You have asked that the summons be filed and deemed to have been filed as from 21 January last year, but do you not need an order before there is any utility in that from the Court that your deemed abandonment be – or, rather, that your application be reinstated?  Do you understand what I am saying to you?  There is no point in filing a summons about a written argument unless there is a case, an application live before the Court, to which the argument is relevant.  Your application for special leave to this Court has been deemed to be abandoned because you have not filed any written argument.  Do you understand what I am saying to you?  Apply your mind to that, Ms Ogawa.  Do you understand what I am saying to you?

MS OGAWA:   Not quite, your Honour.  I am seeking an order in paragraph 3, compliance with rules 41.10.4 or other rules that the Registrar of the Court either correctly or wrongly believed to apply to the summons or to the applicant be dispensed with.  So I believe that covers the ‑ ‑ ‑

HIS HONOUR:   No, not in terms it does not.  Perhaps it is implicit.  Let me tell you, Ms Ogawa – was there anything more you need to say, Mr Lo?

MR LO:   Yes, your Honour, just one point.  In deciding whether to reinstate the application for special leave, one still needs to have regard to whether that application has any prospects.  It is our submission that given the course of the proceedings below is that it was a refusal of leave to appeal by a Full Court from a summary judgment.  Having regard to those decisions below and to – well, what the applicant seeks to raise now does not seem to relate to those decisions below.  She seems to be raising new points.

In our submission, there is insufficient prospects for this Court to reinstate the application.  I think, your Honour, in considering the prospects of the application, your Honour may have regard to the criteria for granting special leave in section 35A of the Judiciary Act.  Looking at the circumstances of this case, in our submission, there would not be any utility and it is extremely unlikely that the applicant would be granted special leave even if it is reinstated.  Indeed, our submission is that the prospect of the application is extremely low.

HIS HONOUR:   Thank you, Mr Lo.  Ms Ogawa, I am prepared to make an order in the exercise of my discretion reinstating your application for special leave to appeal but upon some strict conditions.  I am prepared to do that because you have been active in trying to have the matter brought before a court or courts during what appears to be at first sight a long period.  I also have regard to your language difficulties and some degree of impecuniosity which I understand has been of some difficulty to you, but there will need to be very strict compliance with the conditions that I will impose with respect to the reinstatement of your application for special leave.

MS OGAWA:   Yes.

HIS HONOUR:   If you do not comply with them – I am going to make an order that in default of compliance with them, the reinstated application for special leave will then certainly be deemed to be abandoned.  Do you understand what I am saying to you?

MS OGAWA:   I am sorry.

HIS HONOUR:   What I am saying is I am going to allow your application for special leave to appeal to proceed but I will only do that if you comply with some conditions, that is to say, some orders that I am going to make.  Do you understand that?

MS OGAWA:   Yes.

HIS HONOUR:   Yes, all right.  Mr Lo, I would like your assistance in drafting a form of order.  What are the conditions that you would suggest should be imposed?  Obviously, that the matter proceed expeditiously – well, they should be to the end that the matter proceed expeditiously.

MR LO:   Your Honour, the applicant has exhibited to her affidavit her written case in draft notice of appeal already, so it could proceed to a determination on the papers.

HIS HONOUR:   Yes.

MR LO:   The respondent at this point of time does not need to do anything unless the Court directs ‑ ‑ ‑

HIS HONOUR:   Yes, unless the Court asks for some response from you.

MR LO:   Yes.

HIS HONOUR:   Thank you for that, Mr Lo.  Then I will order that the application for special leave to appeal shall not be deemed to have been abandoned and should be regarded as having been reinstated.  I will further order that the written case contained in the material filed by the applicant be regarded and treated as having been filed within time.  I will further order that if the applicant wishes to supplement that written case by further written submissions, she must do so by 4 November 2006.  Does that cover it, Mr Lo?

MR LO:   Perhaps an order that the costs of this summons be part of the application.

HIS HONOUR:   Yes.  I will further order that the costs of this application today be – they really should be your costs, I think, the respondent’s costs in the cause, the cause being the application for special leave.

MR LO:   Thank you.

HIS HONOUR:   Do you understand that, Ms Ogawa?

MS OGAWA:   Yes.

HIS HONOUR:   Your application for special leave is reinstated.  I have made an order which has the effect of treating your written summary of the case as having been filed with the Court and I have made a further order that if you wish to supplement that or say anything else or anything different, you must do so in writing filed on or before 4 November next.  Of course, you must also serve at the same time or by the same date any such supplementary, further or other submissions or written case upon the respondent.

MS OGAWA:   Yes, your Honour.  I request specifically to the Court to hear and determine the special leave application very urgently because I receive a letter from the University of ‑ ‑ ‑

HIS HONOUR:   Have you seen the document that is being handed up to me, Mr Lo?

MR LO:   I have, your Honour.

MS OGAWA:   Obviously University of Melbourne want to resolve the matter very quickly and the University of Queensland obviously agree to do so.

HIS HONOUR:   You wish to make this part of your material?

MS OGAWA:   Yes, because that says that they want my enrolment from 1 November or as soon as possible.

HIS HONOUR:   I understand.  You do not have any objection to the reception of this material in this form, Mr Lo?  It could, if necessary, be verified by an affidavit.

MR LO:   No, no objection to that.

HIS HONOUR:   Thank you.  Yes, I will receive this document, Ms Ogawa, and it will be considered with your other material.

MS OGAWA:   Thank you, your Honour.

HIS HONOUR:   Nothing further then?  I will mark that.  That should be exhibit 1 in the special leave proceedings. 

MS OGAWA:   Do I need to make application book or something to be heard?  If I need to, I request the Court to dispense that because it is very difficult to make the application book to comply with all sorts of very difficult rules.

HIS HONOUR:   What do we need?  We only need the judgments and the affidavits down below, do we not?  Is there anything else, Mr Lo?

MR LO:   Only if the Court directs the matter proceed after examining the application on the papers would the issue of application book come into question.  It is not an issue at this stage.

HIS HONOUR:   No, you need not compile and serve an application book.

MS OGAWA:   No need?

HIS HONOUR:   No need to.

MS OGAWA:   That is good, thank you very much.

HIS HONOUR:   Nothing further?

MR LO:   Nothing further, your Honour.

HIS HONOUR:   Thank you for your assistance, Mr Lo.

MR LO:   Thank you.

AT 11.58 AM THE MATTER WAS CONCLUDED