Ogawa v Parker

[2008] FCA 388

FEDERAL COURT OF AUSTRALIA

Ogawa v Parker [2008] FCA 388

PRACTICE AND PROCEDURE – application for summary judgment pursuant to s 31A(2) of the Federal Court of Australia Act 1976 (Cth) – whether Court is satisfied that party has no reasonable prospect of successfully prosecuting the proceeding – where no reasonable prospect of establishing jurisdiction of Court to hear proceeding – where no reasonable prospect of successfully demonstrating jurisdictional error or misfeasance in public office

Migration Act 1958 (Cth), ss 351, 474, 476A
Federal Court of Australia Act 1976 (Cth), ss 31A, 51A
Constitution, para 75(v)

Ogawa v Minister for Immigration and Multicultural Affairs and Migration Review Tribunal [2006] FCA 1694 cited
Day v Victorian Railways Commissioners (1949) 78 CLR 62 cited
General Steel Industries Inc v Commissioner for Railways (NSW) (1964) 112 CLR 125 cited
Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex Parte Applicants S134/2002 (2003) 211 CLR 441 applied
Northern Territory v Mengel (1995) 185 CLR 307 applied
James v Commonwealth (1939) 62 CLR 339 cited
RACZ v Home Office [1994] 2 AC 45 cited

MEGUMI OGAWA v NATALIE PARKER AND COMMONWEALTH OF AUSTRALIA
QUD327 OF 2007

LOGAN J
10 MARCH 2008
BRISBANE

IN THE FEDERAL COURT OF AUSTRALIA
QUEENSLAND DISTRICT REGISTRY	QUD327 OF 2007

BETWEEN:

MEGUMI OGAWA
Applicant

AND:

NATALIE PARKER
First Respondent

COMMONWEALTH OF AUSTRALIA
Second Respondent

JUDGE:	LOGAN J
DATE OF ORDER:	10 MARCH 2008
WHERE MADE:	BRISBANE

THE COURT ORDERS THAT:

1.The substantive application originally filed in the Federal Magistrates Court and transmitted to this Court be dismissed.

2.The Applicant pay the Respondent’s costs of and incidental to this proceeding, to be taxed, if not agreed.

Note:    Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA
QUEENSLAND DISTRICT REGISTRY	QUD327 OF 2007

BETWEEN:

MEGUMI OGAWA
Applicant

AND:

NATALIE PARKER
First Respondent

COMMONWEALTH OF AUSTRALIA
Second Respondent

JUDGE:	LOGAN J
DATE:	10 MARCH 2008
PLACE:	BRISBANE

EX TEMPORE REASONS FOR JUDGMENT

1. There is an old adage that the road to hell is paved with good intentions.  These proceedings indicate that it is not only that destination that is paved with good intentions, but also the pathway to a courthouse.  By that I mean, that when one reflects upon the history of this case, and in particular the observations that Cowdroy J made in his reasons for judgment in Ogawa v Minister for Immigration and Multicultural Affairs and Migration Review Tribunal (2006) FCA 1694, one sees there particular sources of grievance that, at a humane level, one might see Ms Ogawa having in respect of the saga of her dealing with the immigration authorities of the Commonwealth.

2. Those grievances, though, do not translate into actionable causes of action against either of the Respondents in this proceeding.  In between when this proceeding was first instituted in the Federal Magistrates Court in June last year and today, there have been many “good intentions”, in terms of adjournments granted for the purpose…