Ogawa v Stewart

[2023] FCA 286

FEDERAL COURT OF AUSTRALIA

Ogawa v Stewart [2023] FCA 286

File number:	QUD 325 of 2022
Judgment of:	RANGIAH J
Date of judgment:	27 March 2023
Catchwords:	PRACTICE AND PROCEDURE – where applicant failed to appear – proceeding dismissed
Legislation:	Federal Court Rules 2011 (Cth) rr 2.26 and 30.22
Division:	General Division
Registry:	Queensland
National Practice Area:	Administrative and Constitutional Law and Human Rights
Number of paragraphs:	7
Date of hearing:	27 March 2023
Counsel for the Applicant:	The Applicant did not appear
Counsel for the Respondent:	The Respondent filed a submitting notice

ORDERS

QUD 325 of 2022

BETWEEN:

MEGUMI OGAWA

Applicant

AND:

THOMAS STEWART

Respondent

ORDER MADE BY:	RANGIAH J
DATE OF ORDER:	27 MARCH 2023

THE COURT ORDERS THAT:

1.The proceeding be dismissed in accordance with rule 30.22 of the Federal Court Rules 2011 (Cth).

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

REASONS FOR JUDGMENT
(DELIVERED EX TEMPORE AND REVISED FROM TRANSCRIPT)

RANGIAH J:

1. On about 12 September 2022, the applicant lodged an interlocutory application and affidavit for filing in proceeding QUD 663 of 2019. On 14 September 2022, a Registrar of the Court made a decision refusing to accept these documents for filing pursuant to r 2.26 of the Federal Court Rules 2011 (Cth) on the basis that they were an abuse of the Court’s process and frivolous or vexatious.

2. On 14 September 2022, the applicant filed an originating application seeking judicial review of the Registrar’s decision.  The Registrar filed a submitting appearance and has not otherwise taken any part in the proceeding. 

3. At a case management hearing on 10 February 2023, the applicant’s proceeding was listed for a final hearing on 27 March 2023 at 10.15 am.  Another proceeding commenced by the applicant (QUD 391 of 2022) was listed for hearing at not before 10.15am on the same day.

4. At 1.31 am on 27 March 2023, the applicant sent an email to my Associate saying:

   Since the hearing is today, I am sending my Outline of Submissions directly to you for his Honour's attention. I also eLodged the Outline of Submissions but I understand that it will take some time before it is forwarded to you.

   The Outline of Submissions is incomplete in that I did not have time to list all materials for apprehended bias. However, I believe that his Honour will understand what my problem is.

   Please give my apologies to his Honour as I will not come to the Court today. I have not been able to find a way to have my affidavits witnessed and I should write to the Attorney-General urgently to ask him to establish the Commonwealth JP certification course to train Queensland JPs to witness the Federal Court affidavits rather than coming to the court only to inform the court that I will not appear as I am applying for his Honour's disqualification.

5. The Registry, at my request, sent an email to the applicant at 8.44 am on the same day indicating that if she did not attend, her proceedings would be dismissed. 

6. The applicant did not appear at the hearing.   She has not demonstrated any reasonable basis for her failure to appear.  The issues raised in her application and written submissions, concerning assertions of legal error by the Registrar and apprehended bias on my part, are serious ones affecting the administration of justice in the Court.  It is not appropriate to consider these issues in the applicant’s absence. 

7. The hearing will be dismissed pursuant to r 30.22 of the Federal Court Rules.

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

Associate:       

Dated:       31 March 2023