Ogawa v Stewart (No 3) - [2023] FCA 1386

FEDERAL COURT OF AUSTRALIA
Ogawa v Stewart (No 3) [2023] FCA 1386

File number: QUD 325 of 2022

Judgment of: RANGIAH J

Date of judgment: 13 November 2023

Catchwords: PRACTICE AND PROCEDURE – Federal Court of Australia Rules 2011 – application under r 39.05(a) to set aside judgment – where applicant did not appear at hearing – application dismissed

Legislation: Federal Court Rules 2011 (Cth) rr 2.26, 30.22 and 39.05

Cases cited:
Australian Securities and Investments Commission v ActiveSuper Pty Ltd (No 4) [2013] FCA 318

Lal v Minister for Immigration and Border Protection (No 2) [2014] FCA 892

Ogawa v Buckingham(No 2) [2023] FCA 1387

Ogawa v Finance Minister [2020] FCA 829

Ogawa v Finance Minister [2021] FCAFC 17

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

Ogawa v Stewart [2023] FCA 286

Polis v Zombor (No 5) [2022] FCA 122

Division: General Division

Registry: Queensland

National Practice Area: Administrative and Constitutional Law and Human Rights

Number of paragraphs: 17

Date of hearing: Heard on the papers

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:

13 NOVEMBER 2023

THE COURT ORDERS THAT:
1.The applicant’s interlocutory application filed on 18 April 2023 be dismissed.

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

REASONS FOR JUDGMENT
RANGIAH J:

On 27 March 2023, in Ogawa v Stewart [2023] FCA 286, I dismissed the applicant’s application for judicial review of a decision of the respondent, a registrar of the Court (the Registrar), to refuse to accept an interlocutory application and affidavit lodged by the applicant for filing.
The order for dismissal (the Dismissal Order) was made under r 30.22 of the Federal Court Rules 2011 (Cth) (the Rules) on the basis that the applicant had failed to appear at the trial of the proceeding.
This matter has some relationship with Ogawa v Buckingham(No 2) [2023] FCA 1387 (QUD391/2022), which I will also deliver today.
The application presently before the Court is an interlocutory application filed on 18 April 2023 for an order that the Dismissal Order be set aside (the Interlocutory Application).
The applicant had also sought an order that I disqualify myself from hearing her application to set aside the Dismissal Order on the basis of apprehended bias. In Ogawa v Stewart (No 2) [2023] FCA 661, I declined to recuse myself. The applicant then applied for leave to appeal, but she subsequently discontinued that application.
On 18 September 2023, the applicant notified the Court that she wished to have the Interlocutory Application decided on the papers.
The Registrar filed a submitting appearance and there is no contradictor.
To give context to the Interlocutory Application, it is necessary to begin with the applicant’s application for judicial review of a decision of the Finance Minister’s…

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.

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Details

Case: [2023] FCA 1386
Decision Date: 13 November 2023

CaseChat Overview and Summary

The parties involved in this case were Ogawa, the applicant, and Stewart, the respondent. The dispute related to an application under rule 39.05(a) of the Federal Court of Australia Rules 2011 to set aside a judgment. The case was heard in the Federal Court of Australia. The applicant sought to overturn a previous judgment, citing reasons that necessitated the setting aside of that decision.

The primary legal issue before the court was whether the application to set aside the judgment should proceed, given that the applicant did not appear at the hearing of the application. This absence raised questions about the procedural fairness and the applicant's commitment to the proceedings. The court had to determine if it was appropriate to entertain the application under these circumstances.

In its reasoning, the court noted that the applicant did not appear for the hearing of the interlocutory application, despite being duly notified. The court considered the implications of this absence, emphasising the importance of procedural participation. Given the applicant's failure to appear, the court found that it was not just or convenient to proceed with the application. Consequently, the court dismissed the interlocutory application, affirming that the procedural steps were not followed as required.

The final order of the court was that the interlocutory application filed by the applicant on 18 April 2023 be dismissed. This decision underscores the court's adherence to procedural rules and the necessity for parties to participate actively in their litigation.

Orders

Orders of the court

1. The applicant’s interlocutory application filed on 18 April 2023 be dismissed.

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

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

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File number:	QUD 325 of 2022
Judgment of:	RANGIAH J
Date of judgment:	13 November 2023
Catchwords:	PRACTICE AND PROCEDURE – Federal Court of Australia Rules 2011 – application under r 39.05(a) to set aside judgment – where applicant did not appear at hearing – application dismissed
Legislation:	Federal Court Rules 2011 (Cth) rr 2.26, 30.22 and 39.05
Cases cited:	Australian Securities and Investments Commission v ActiveSuper Pty Ltd (No 4) [2013] FCA 318 Lal v Minister for Immigration and Border Protection (No 2) [2014] FCA 892 Ogawa v Buckingham(No 2) [2023] FCA 1387 Ogawa v Finance Minister [2020] FCA 829 Ogawa v Finance Minister [2021] FCAFC 17 Ogawa v Stewart (No 2) [2023] FCA 661 Ogawa v Stewart [2023] FCA 286 Polis v Zombor (No 5) [2022] FCA 122
Division:	General Division
Registry:	Queensland
National Practice Area:	Administrative and Constitutional Law and Human Rights
Number of paragraphs:	17
Date of hearing:	Heard on the papers
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:	13 NOVEMBER 2023