Ogawa v Stewart (No 2) - [2023] FCA 661

FEDERAL COURT OF AUSTRALIA
Ogawa v Stewart (No 2) [2023] FCA 661

File number: QUD 325 of 2022

Judgment of: RANGIAH J

Date of judgment: 14 June 2023

Catchwords: PRACTICE AND PROCEDURE – application for disqualification on ground of apprehended bias – whether any reasonable apprehension of bias arises – application dismissed

Legislation: Federal Court Rules 2011 (Cth) r 30.22

Cases cited:
Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337

Ogawa v Buckingham [2023] FCA 287

Ogawa v Carter [2020] FCA 828

Ogawa v Finance Minister [2020] FCA 829

Ogawa v President, Australian Human Rights Commission [2022] FCAFC 161

Ogawa v Stewart [2023] FCA 286

PD v President, Australian Human Rights Commission (No 2) [2021] FCA 851

QYFM v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs & Anor [2023] HCA 15

Division: General Division

Registry: Queensland

National Practice Area: Administrative and Constitutional Law and Human Rights

Number of paragraphs: 19

Date of hearing: 14 June 2023

Counsel for the Applicant: The Applicant was self-represented

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:

14 JUNE 2023

THE COURT ORDERS THAT:
1.The applicant be granted leave to file her affidavit affirmed on 14 June 2023.
2.The application for an order that Justice Rangiah disqualify himself from hearing QUD325/2022 and QUD391/2022 be dismissed.
3.The matter be adjourned for a case management hearing on a date to be fixed.

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:

In Ogawa v Stewart [2023] FCA 286, I dismissed the applicant’s application for judicial review of a decision of a Registrar of the Court refusing to accept documents lodged by the applicant for filing.
In Ogawa v Buckingham [2023] FCA 287, I dismissed the applicant’s similar application in respect of a different Registrar’s refusal to accept other documents for filing.
In each case, the orders for dismissal were made under r 30.22 of the Federal Court Rules 2011 (Cth), in circumstances where the applicant had failed to appear at the hearing on 27 March 2023.
The applicant has now filed an interlocutory application seeking orders, including:
1.The order made in this matter and in the matter of QUD391 of 2022 Ogawa v M C Buckingham on 27 March 2023 be set aside.
2.Justice Rangiah disqualify himself from the hearing of this matter and the matter of QUD391 of 2022 Ogawa v M C Buckingham.
…
I have heard the applicant’s application for my disqualification. The applicant relied upon written submissions she filed on 26 March 2023, and also made oral submissions in support of her application.
For the reasons that follow, I decline to recuse myself.
In PD v President, Australian Human Rights Commission (No 2) [2021] FCA 851, I dismissed another application made by the…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Ogawa v Stewart (No 2)

Details

AGLC: Ogawa v Stewart (No 2) [2023] FCA 661
Case: [2023] FCA 661
Decision Date: 14 June 2023

CaseChat Overview and Summary

The applicant in this case, Ogawa, sought to disqualify Justice Rangiah from presiding over two matters, QUD325/2022 and QUD391/2022, on the basis of apprehended bias. The application was heard in the Federal Court of Australia, where the applicant argued that Justice Rangiah had an inherent bias due to his previous involvement in related legal proceedings. This bias, it was argued, would prevent him from fairly adjudicating the current cases.

The legal issue before the court was whether there was any reasonable apprehension of bias on the part of Justice Rangiah that would necessitate his disqualification from the cases in question. The court had to consider the nature of Justice Rangiah's prior involvement, the extent to which it could be seen as influencing his impartiality, and whether any reasonable person in the position of the applicant might apprehend bias.

The court thoroughly examined the circumstances of Justice Rangiah's prior involvement in related legal matters and found that there was no reasonable apprehension of bias. The court concluded that the prior involvement did not create a situation where a fair-minded lay observer might reasonably apprehend that the judge might not bring an impartial and unbiased mind to the resolution of the questions in the proceeding. Accordingly, the application for disqualification was dismissed. The court granted leave for the applicant to file an affidavit and adjourned the matter for a case management hearing.

Orders

Orders of the court

1. The applicant be granted leave to file her affidavit affirmed on 14 June 2023.

2. The application for an order that Justice Rangiah disqualify himself from hearing QUD325/2022 and QUD391/2022 be dismissed.

3. The matter be adjourned for a case management hearing on a date to be fixed.

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

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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File number:	QUD 325 of 2022
Judgment of:	RANGIAH J
Date of judgment:	14 June 2023
Catchwords:	PRACTICE AND PROCEDURE – application for disqualification on ground of apprehended bias – whether any reasonable apprehension of bias arises – application dismissed
Legislation:	Federal Court Rules 2011 (Cth) r 30.22
Cases cited:	Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337 Ogawa v Buckingham [2023] FCA 287 Ogawa v Carter [2020] FCA 828 Ogawa v Finance Minister [2020] FCA 829 Ogawa v President, Australian Human Rights Commission [2022] FCAFC 161 Ogawa v Stewart [2023] FCA 286 PD v President, Australian Human Rights Commission (No 2) [2021] FCA 851 QYFM v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs & Anor [2023] HCA 15
Division:	General Division
Registry:	Queensland
National Practice Area:	Administrative and Constitutional Law and Human Rights
Number of paragraphs:	19
Date of hearing:	14 June 2023
Counsel for the Applicant:	The Applicant was self-represented
Counsel for the Respondent:	The Respondent filed a submitting notice

ORDER MADE BY:	RANGIAH J
DATE OF ORDER:	14 JUNE 2023