Ogawa v Secretary, Department of Education, Science and Training
[2005] FCA 1650
•15 NOVEMBER 2005
FEDERAL COURT OF AUSTRALIA
Ogawa v Secretary, Department of Education, Science & Training
[2005] FCA 1650MEGUMI OGAWA v SECRETARY OF THE DEPARTMENT OF EDUCATION, SCIENCE AND TRAINING and ANOR
No QUD 478 of 2005
SPENDER J
15 NOVEMBER 2005
BRISBANE
IN THE FEDERAL COURT OF AUSTRALIA
QUEENSLAND DISTRICT REGISTRY
QUD 478 OF 2005
BETWEEN:
MEGUMI OGAWA
APPLICANTAND:
SECRETARY OF THE DEPARTMENT OF EDUCATION, SCIENCE AND TRAINING
FIRST RESPONDENTMINISTER FOR EDUCATION, SCIENCE AND TRAINING
SECOND RESPONDENTJUDGE:
SPENDER J
DATE OF ORDER:
15 NOVEMBER 2005
WHERE MADE:
BRISBANE
THE COURT ORDERS THAT:
1.The notice of motion be dismissed for non prosecution.
2.The costs of today be costs in the appeal.
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
QUD 478 OF 2005
BETWEEN:
MEGUMI OGAWA
APPLICANTAND:
SECRETARY OF THE DEPARTMENT OF EDUCATION, SCIENCE AND TRAINING
FIRST RESPONDENTMINISTER FOR EDUCATION, SCIENCE AND TRAINING
SECOND RESPONDENT
JUDGE:
SPENDER J
DATE:
15 NOVEMBER 2005
PLACE:
BRISBANE
REASONS FOR JUDGMENT
This is the return of a notice of motion filed by Megumi Ogawa on 7 November 2005 in which she sought the following orders:
‘1.That pursuant to O.52 r.15(1) of the Federal Court Rules, the Applicant have leave to file and serve any notice of appeal from the decision of Dowsett J on 21 October 2005 by 23 January 2006;
2.That the hearing and determination of this motion be expedited so that certainty to the Applicant to have sufficient time to write a notice of appeal;
3.That pursuant to O.80 of the Federal Court Rules, the Applicant have assistance for the hearing of this motion, or in the alternative, the Court provide the services of an interpreter to interpret to the applicant in Japanese the conduct of the said proceedings of this motion and to translate from into English any oral submissions which the applicant may wish to make in the course of the said proceedings of this motion; …’
The affidavit filed by Ms Ogawa in support of that motion was quite short. It says:
‘Applicant
1. I am the Applicant in this proceeding.
2.I was born in Japan and went to school in Japan where the language both at home and school was Japanese.
3.I have neither been trained for nor even interested in legal … in Japan, Australia or elsewhere.
4.I cannot work as quickly as Australian lawyers.
5.I am a litigant whom Justice Hayne of the High Court of … Justice Herey, Justice Kiefel, Justice Marshall, and Justice … this Court considered to require pro bono assistance.
6.I do not have pro bono assistance.
7.As a direct result of the conduct of the University of Melbourne … the cause of the proceeding from which the present application … became impecunious, which was found by Justice Marshall in … Court in the proceeding of Q136 of 2003.
8.I am unable to take legal advice or afford to pay for some … documents.
9.As a direct result of the conduct of the University of Melbourne … the cause of the proceeding from which the present application … have had a visa problem.
Related proceedings – Migration
10.The bills of costs in my migration matters have been listed … 2005 and I wish to obtain a court order against the Respondent … matter before that time as I believe that it is the responsibility … Respondents to pay for these costs rather than I go through a proceeding or any other disaster.
Related proceedings – University dispute
11.There are related proceedings to this proceeding, which I set … affidavit sworn on 26 April 2005 and filed in the matter of QUD … I request the Court to refer to the documents filed in the … QUD245 of 2004. It is too costly for me to reproduce the documents … believe that all these proceedings became necessary because … Respondents’ failure, the subject of the present application.
12.All the facts and circumstances deposed to herein are within … knowledge save such as are deposed to from information on … means of knowledge and sources of information appear on the … Affidavit.’
The relevant part of that affidavit seems to be the assertion by the applicant that she cannot work as quickly as Australian lawyers, has no pro bono assistance, and cannot afford legal advice.
The application was made by a motion within the time for which a notice of appeal might be filed. Surprisingly, a notice of appeal was also filed. It bears the same filing date, 7 November 2005, and provides in the body of it the following:
‘1.The Appellant appeals from the whole of the judgment of Justice Dowsett made on 21 October 2005 at Brisbane.
2.The grounds of appeal will be provided prior to the hearing.
3.The orders sought are:
(i)Appeal allowed with costs;
(ii)The orders of Justice Dowsett dated 21 October 2005 be set aside and in lieu thereof orders that:
(a)the proceeding be stood over to a date to be fixed for further hearing;
(b)the Court provide the service of an interpreter to interpret to the applicant in Japanese the conduct of the said proceeding referred to in the foregoing subparagraph (a) and to translate from Japanese into English any oral submissions which the Applicant may wish to make in the course of such proceedings;
(c)the Applicant have leave to amend the Second Further Amended Application;
(d)the Applicant have leave to file another affidavit in support of her application;
(e)costs reserved.’
It seems that the applicant wants a further hearing of the proceeding before Dowsett J, as well as the other matters to which I have just made reference. This is a notice of appeal, although it seems to me it is a notice of appeal likely to face a notice of objection to competency pursuant to O 52 r 18. That is not a matter that need be considered today.
Importantly, on Friday, 11 November 2005, Ms Ogawa sent an email to the Registrar seeking an adjournment of this matter. The original email said:
‘I request the adjournment of the mention and the notice of motion listed on 15 November 2005 for the two reasons:
1.I have not served any documents on the other side. It will be a short notice even if I serve the documents from now on. Since nothing can be decided on that day, there is no point to go on that day.
2.I did not know until this morning that the court would not arrange an interpreter for the proceeding where the opponent appears. I usually do not request an interpreter for an ex parte hearing, but I do no need an interpreter for a non-ex parte hearing. There was a judge, in fact a judge of the first instance, proceeded ignoring my request. That caused an appeal on the ground of denial of natural justice. The judge of the first instance did not understand what I said at all but pretended that he understood, resulting in his judgment comprised of his immaginary [sic] facts all of them are contrary to evidence. Further, he refused to release the transcript in order to conceal the true facts. It is a waste of time to have a hearing if there is no interpreter since we have to do the same proceeding again later when an interpreter is arranged.
I am writing Alexander Downer to send a staff to the court so that the matter be adjourned until DFAT’s secure a staff who speaks Japanese. I will also write to the Japanese Embassy, the Queensland Premier, the National Federation of Australia and Japan and others who might be able to send an interpreter to the Federal Court.
In the meantime, I will file a notice of motion seeking a transfer of the proceedings to the Victoria Registry of this Court. The Victoria Registry always arrange an interpreter for me. This motion should be heard together with other motion when DFAT officer comes to the Queensland Registry for the next hearing.
Please note that I am also complaining to the Human Rights and Equal Opportunity Commission about the racial discrimination by the Queensland Registry of the Federal Court of Australia. I will file the matter in Victoria to be heard by a Victorian judge who has arranged an interpreter for me, to see what he will consider about the refusal of an arrangement of an interpreter by the Queensland Registry.’
Next, in the same email, Ms Ogawa sent to the Chief Justice an email in these terms:
‘Dear Chief Justice
I have sent the following email to the Queensland Registry. However, I simultaneously wish to complain to you against the Queensland Registry for its racial discrimination. The Queensland Registry has engaged in discriminatory policy in that it deprives a person with a Japanese heritage of her right to be heard fairly and justly by refusing to make an arrangement of a Japanese interpreter. I note that an interpreter is always arranged for me in the Victoria Registry.
I request you to direct the Queensland Registry to stop engagin [sic] in such a discrimination and arrange an interpreter for me.’
Notwithstanding the impertinent tone of the email to the Registrar and the intimation of the making of numerous complaints to the various bodies identified, the Registrar wrote to Ms Ogawa and said:
‘Your request for an adjournment has been referred to the judge for consideration. He will not be able to consider it today as he is absent from Chambers. I will contact you further regarding the matter on Monday.’
Ms Ogawa was informed that I indicated that the matter would be listed for hearing today and that Ms Ogawa should appear to request an adjournment. No such appearance by Ms Ogawa has been made.
It seems to me that, from all of the material, and in particular the fact that a document which purports to be a notice of appeal has been filed within time, there is no utility in making any of the orders sought by the notice of motion in paragraphs 1 and 2, and there is no need to consider whether it is appropriate to make an order under Order 80 in respect of the presence of an interpreter.
It is plain that Ms Ogawa has chosen not to appear to seek an adjournment of her motion, and in the circumstances it is appropriate that it be dismissed for non-prosecution by her.
I reserve the costs of today as part of the costs of the appeal.
I certify that the preceding eleven (11) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Spender Associate:
Dated: 16 November 2005
Solicitor for the Applicant: There was no appearance on behalf of the applicant
Counsel for the Respondent: Mr Scott A. McLeod Solicitor for the Respondent: Clayton Utz Date of Hearing: 15 November 2005 Date of Judgment: 15 November 2005
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