Ogawa v President, Australian Human Rights Commission (No 3)

[2022] FCA 1260

FEDERAL COURT OF AUSTRALIA

Ogawa v President, Australian Human Rights Commission (No 3) [2022] FCA 1260

File number:	VID 792 of 2020
Judgment of:	MORTIMER J
Date of judgment:	21 October 2022
Catchwords:	PRACTICE AND PROCEDURE – application for interim suppression order – application refused
Legislation:	Federal Court of Australia Act 1976 (Cth) s 37AF
Cases cited:	Ogawa (formerly Ms PD) v President of the Australian Human Rights Commission (Pseudonym) [2022] FCAFC 160
Division:	General Division
Registry:	Queensland
National Practice Area:	Administrative and Constitutional Law and Human Rights
Number of paragraphs:	18
Date of hearing:	21 October 2022
Counsel for the Applicant:	The Applicant was self-represented
Solicitor for the Second Respondent:	Mr E Eteuati of Australian Government Solicitor

ORDERS

VID 792 of 2020

BETWEEN:

MEGUMI OGAWA

First Applicant

AND:

PRESIDENT OF THE AUSTRALIAN HUMAN RIGHTS COMMISSION

First Respondent

COMMONWEALTH OF AUSTRALIA

Second Respondent

ORDER MADE BY:	MORTIMER J
DATE OF ORDER:	21 OCTOBER 2022

THE COURT ORDERS THAT:

1.The application for an interim suppression order contained in the interlocutory application dated 26 September 2022 is refused.

2.No order as to costs.

THE COURT DIRECTS THAT:

3.The hearing of the interlocutory application for suppression orders in VID792/2020 be allocated to a Judge for determination as soon as reasonably practicable.

4.A copy of the transcript of the hearing on 21 October 2022 be provided to the applicant and the second respondent, on the basis that it is in the interests of justice for this to occur, and on the basis that the applicant is self-represented.

Note:   Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

MORTIMER J:

1. Today, an interlocutory application made by Dr Megumi Ogawa came before me as duty Judge. It is not necessary to rehearse how that occurred. Dr Ogawa appeared by telephone. Mr Tigiilagi Eteuati appeared on behalf of the second respondent, and the first respondent filed a submitting notice. The hearing was held over Microsoft Teams.

2. Dr Ogawa seeks an interim suppression order. What she seeks it over is somewhat unclear, but the relevant terms of her interlocutory application are:

   Under s 37AG(1)(a) and (c) of the Federal Court of Australia Act 1976, the entire proceeding be suppressed in this matter and publication of any documents filed in this matter be prohibited until the end of the Applicant’s life.

   The interim suppression order be made until the hearing and determination of this Interlocutory Application.

3. The genesis for this application are the orders and reasons of the Full Court in Ogawa (formerly Ms PD) v President of the Australian Human Rights Commission (Pseudonym) [2022] FCAFC 160. Orders were made by the Full Court in two proceedings.

4. In proceeding QUD352/2021 the following orders were made:

   1. The name “Megumi Ogawa” be substituted as the name of the applicant.

   2. In proceeding VID792/2020, the name “Megumi Ogawa” be substituted as the name of the applicant.

   3. The application made in the applicant’s submissions filed on 30 August 2022 for recusal of each of Justices Rares, Perry and Hespe be dismissed.

5. In proceeding QUD385/2021 the following orders were made:

   1.        The name “Megumi Ogawa” be substituted as the name of the applicant.

   2.        In proceeding QUD264/2021:

   (a) Orders 1 and 2 made on 31 August 2021 be set aside.

   (b) The name “Megumi Ogawa” be substituted as the name of the applicant.

   3. The application made in the applicant’s submissions filed on 30 August 2022 for recusal of each of Justices Rares, Perry and Hespe be dismissed.

6. The interlocutory application before me as duty Judge only concerns the order made in relation to proceeding VID792/2020.

7. At [1]-[3] of Ogawa (formerly Ms PD) the Full Court explained how the issue dealt with in the Full Court’s orders came about:

   The Full Court raised an issue during the course of oral argument on the applications for leave to appeal from Rangiah J’s refusal, in proceeding VID792/2020 (the AHRC proceeding), to recuse himself on 22 July 2021 (the recusal application) and Logan J’s decision, in proceeding QUD264/2021 (the Registrar review), on 4 November 2021 not to order the Registrar to pay the applicant’s costs incurred through the Registrar’s wrongful refusal to file the recusal application (the costs application), namely, why the applicant had a pseudonym in both applications and the AHRC and Registrar review proceedings.

   The Court ordered that, by 30 August 2022, she file and serve an affidavit and written submissions limited to 5 pages in support of any order that she seeks to maintain her pseudonym “Ms PD”: see Ogawa (formerly Ms PD) v President of the Australian Human Rights Commission (Leave to Appeal) [2022] FCAFC 161 (the principal reasons) at [4].

   The applicant complied with the above order. Having considered her two affidavits and two sets of submissions (as corrected) dated 30 August 2022, we are satisfied, for the reasons below, that there was no necessity or other reason to justify that the applicant, Dr Megumi Ogawa, be known under the pseudonym in any of the proceedings.

   (Original emphasis.)

8. The Full Court then gave detailed reasons for the conclusion expressed at [3]. See especially at [27]-[28]. At [27], the Full Court explained that:

   Considerations of embarrassment, convenience or personal sensitivity to the publication of personal and often very private circumstances given in evidence or revealed in the course of a proceeding in open court, of themselves, cannot justify or support the exercise of any inherent or implied power of a court to suppress or prohibit the publication of those matters.

9. At [36]-[46], the Full Court explained in detail why it was not persuaded that any pseudonym order should be maintained, nor any other form of suppression. At [44]-[46] it stated:

   As she revealed in her evidence and statement to his Honour, the use of a pseudonym was futile, for the very reason that her identity in connection with each of the AHRC and Registrar review proceedings, like Colonel B’s in Leveller [1979] AC 440, was already readily ascertainable. Moreover, both in the Chief Justice’s and Rangiah J’s reasons, as published on the website, all of the cases to which their Honours referred, in which Dr Ogawa was a party, were recorded with their full medium neutral and any relevant reported citations, but with “[PD]” substituted for “Ogawa” in their titles. Anyone could search for those judgments and, without any difficulty, discover that PD was Dr Ogawa.

   The use of a pseudonym in those circumstances was unjustifiable. Therefore, in those circumstances, this Court lacks any power to make or maintain any order that prohibits any member of the public publishing matter that reveals that the applicant, called “Ms PD” in each proceeding is, in fact, Dr Ogawa. That is because, as Dr Ogawa accepted, her identity is already discernible and the pseudonym serves no purpose. The pseudonym cannot be necessary in the interests of justice to keep her role as a party suppressed in the four proceedings.

   It is important to appreciate that Dr Ogawa’s use of the pseudonym in the title of her four proceedings does not have any legal authority or force, other than as provided for in the August 2021 orders. With respect, Logan J erred in failing to give reasons for those orders. They were made beyond the Court’s powers because they were not necessary in the interests of justice when anyone could work out easily who Ms PD was by following citation links on This is not a mere quibble. A contravention of an order of the Court not to reveal a person’s identity is a contempt, unless, as in situations such as in Leveller [1979] AC 440, the secret is, as here, already revealed for all to find.

10. At [49]-[50], the Full Court stated:

    Because of the fundamental importance of the two proceedings still pending before Rangiah J and Logan J being dealt with in open court in accordance with the principle of open justice, as ss 17(1) and 37AE of the Federal Court Act also require, it is necessary to make an order in each of those proceedings as well as in the recusal and costs applications that the name, “Megumi Ogawa”, be substituted as the name of the applicant. We will also order that the August 2021 orders be set aside.

    The Registrar will need to remove any restrictions that had been put in place to ensure the efficacy of the pseudonym or the August 2021 orders that now would inhibit access in the ordinary course to the Court files in each of the four proceedings.

11. It is as clear as it could be that the Full Court had decided there was no basis for any orders under s 37AF of the Federal Court of Australia Act 1976 (Cth) in either of the two proceedings before it. It formed that conclusion after hearing Dr Ogawa’s submissions, and carefully considering the matter.

12. The only matter before me, as Dr Ogawa accepted, was whether an interim suppression order should be made in proceeding VID792/2020. Dr Ogawa submitted she needed time to prepare her full interlocutory application for suppression orders.

13. Dr Ogawa submitted that the Full Court reasons omitted some matters. She also submitted that since those orders were made, she has been contacted by a journalist, and I infer (favourably to her arguments) that in substance she is submitting that circumstances have changed since the Full Court’s orders and there is now a proper justification for suppression orders to be made. As can be seen, the breadth of the orders she seeks go beyond simply suppression of her name, although that appeared to be the focus of her concerns today.

14. I refused the application for an interim suppression order because in my opinion what was being sought by Dr Ogawa were orders contrary to those made by the Full Court. It would not be appropriate, and probably not within power, for a single Judge of this Court to make interim orders entirely contrary to the considered orders of a Full Court on the same question of suppression, made just over a month ago.

15. Further, as the Full Court’s reasons make clear, Dr Ogawa’s identity is “already revealed for all to find” (at [46]). That was their Honour’s finding, and Dr Ogawa is bound by that finding, as is a single judge of this Court.

16. The task in persuading a single Judge that circumstances have changed so much since 16 September 2022 that there might now, just over a month later, be circumstances justifying orders representing the exact opposite of the conclusions of the Full Court is a considerable task indeed. Dr Ogawa had little or no basis today to make an arguable case there was a change in circumstances. Her arguments about matters the Full Court allegedly overlooked invited me as a single Judge to review, or sit on appeal from, the Full Court and that is not possible. Otherwise, her arguments that journalists now know who she is and can access her material is nothing more than a consequence of her identity “already” being revealed, as the Full Court found.

17. Nevertheless, Dr Ogawa is entitled to have her interlocutory application determined, and she is entitled to put forward fresh evidence to seek to justify new suppression orders. As I have said, a single Judge will not sit in judgment of the Full Court. They will consider whether circumstances have changed so much, or there is additional evidence not before the Full Court, that might now justify a new suppression order. Otherwise, the orders of the Full Court will continue to bind Dr Ogawa and any single Judges dealing with her proceedings.

18. Dr Ogawa expressly stated she needed time to prepare her application and file evidence to support it. Nevertheless, she was clearly distressed and I accept she genuinely wishes to have this application determined sooner rather than later. The first step is to ensure her application is allocated to a Judge for hearing and determination with as much expedition as is reasonably practicable. I have made an order to that effect, in addition to an order refusing the application for an interim suppression order.

I certify that the preceding eighteen (18) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Mortimer.

Associate:     

Dated:       21 October 2022