Ogawa v Secretary of the Department of Education, Science and Training

[2006] FCA 214

FEDERAL COURT OF AUSTRALIA

Ogawa v Secretary of the Department of Education, Science & Training [2006] FCA 214

Judiciary Act (1903) (Cth)
Trade Practices Act 1974 (Cth)

MEGUMI OGAWA v SECRETARY OF THE DEPARTMENT OF EDUCATION, SCIENCE AND TRAINING and MINISTER FOR EDUCATION, SCIENCE AND TRAINING
QUD 478 of 2005

KIEFEL J
BRISBANE
9 MARCH 2006

IN THE FEDERAL COURT OF AUSTRALIA
QUEENSLAND DISTRICT REGISTRY	QUD478 OF 2005

BETWEEN:

MEGUMI OGAWA
APPLICANT

AND:

SECRETARY OF THE DEPARTMENT OF EDUCATION, SCIENCE AND TRAINING 
FIRST RESPONDENT

MINISTER FOR EDUCATION, SCIENCE AND TRAINING
SECOND RESPONDENT

JUDGE:

KIEFEL J

DATE OF ORDER:

9 MARCH 2006

WHERE MADE:

BRISBANE

THE COURT ORDERS THAT:

1.The notice of appeal filed on 7 November 2005 and the supplementary notice of appeal filed electronically on 20 February 2006 be dismissed.

2.The appellant pay the respondents’ costs, of and incidental to the appeal, including any reserved costs.

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	QUD478 OF 2005

BETWEEN:

MEGUMI OGAWA
APPLICANT

AND:

SECRETARY OF THE DEPARTMENT OF EDUCATION, SCIENCE AND TRAINING 
FIRST RESPONDENT

MINISTER FOR EDUCATION, SCIENCE AND TRAINING
SECOND RESPONDENT

JUDGE:	KIEFEL J
DATE:	9 MARCH 2006
PLACE:	BRISBANE

REASONS FOR JUDGMENT

1. On 21 October 2005 Dowsett J dismissed an application by Ms Ogawa seeking judicial review of three alleged decisions on the part of the respondents not to pursue action against the University of Melbourne on her behalf.  The proceedings related to a dispute between Ms Ogawa and the University which developed in late 2002.  The purported decisions were made in 2003. 

2. His Honour held that they were not decisions which could found judicial review;  that Ms Ogawa had no relevant interest to support the proceedings;  that the relief sought did not assist her and, inferentially, orders would not have been made; that her complaints were misconceived;  that her application for review was out of time and there was no basis for the exercise of a discretion to pursue the proceedings.  Ms Ogawa had also relied upon the Judiciary Act (1903) (Cth) for relief but had not put forward any argument in that regard. 

3. Two further motions, seeking orders that the proceedings be heard with other proceedings brought against the University under the Trade Practices Act 1974 (Cth) and for a stay of the proceedings, were also dismissed by his Honour.  In the course of the hearing his Honour declined to certify for pro bono legal assistance or for the provision of an interpreter.  On 7 November 2005 Ms Ogawa filed a notice of appeal from his Honour’s decision in which it is said that grounds of appeal would be provided prior to the hearing of the appeal.  On 14 November 2005 Ms Ogawa failed to appear before Spender J on a directions hearing and callover, and her motion seeking to defer the provision of grounds of appeal and other matters was dismissed.

4. The respondents filed a notice of objection to competency and a date was set for that hearing.  That date was today.  On 20 February 2006 Ms Ogawa filed, electronically, a document entitled Supplementary Notice of Appeal, in which she set out 43 purported grounds of appeal.  The respondents submit that that document does not cure the defects in the notice of appeal.  I agree that that is so.  The document does no more than recite findings made by his Honour and complain that his Honour was wrong and that the findings were not supported by the evidence.  It does not, provide any particulars as to why that is so.  No question of law is disclosed in the document, no basis for error of either fact or law is articulated in the document.  Doing the best one can with the document, I am not able to discern proper grounds of appeal from the findings made and the determinations of his Honour.

5. I was advised by a Deputy District Registrar this morning that Ms Ogawa had telephoned this morning and advised that she required the hearing today to be adjourned because she was unwell.  She was advised that she should provide a medical certificate to the Court and that if she did not she should appear to seek an adjournment.  She was advised that if she failed to do so the matter might proceed.  She advised the Deputy District Registrar that she would not be attending.  She did not seek to put a medical certificate before the Court.  Ms Ogawa is quite familiar with court proceedings and has had an opportunity to provide evidence of ill-health.  I am not satisfied that she is unable to argue her case and I will therefore proceed to deal with the matter in her absence.

6. I can discern no question arising from the unparticularised grounds of appeal.  The notice of appeal is therefore incompetent and should be dismissed, pursuant to Order 52 rule 18.

7. The orders will therefore be that the notice of appeal filed on 7 November 2005 and the supplementary notice of appeal filed electronically on 20 February 2006 be dismissed and that the appellant pay the respondents’ costs, of and incidental to the appeal, including any reserved costs.

I certify that the preceding seven (7) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Kiefel.

Associate:

Dated:             9 March 2006

For the Applicant	No appearance
Counsel for the Respondents:	S A McLeod
Solicitor for the Respondents:	Clayton Utz
Date of Hearing:	9 March 2006
Date of Judgment:	9 March 2006