Ogawa v The University of Melbourne

[2005] HCATrans 59

[2005] HCATrans 059

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Melbourne  No M157 of 2004
  No M194 of 2004

B e t w e e n -

MEGUMI OGAWA

Applicant

and

THE UNIVERSITY OF MELBOURNE

Respondent

Applications for expedition

GUMMOW J

TRANSCRIPT OF PROCEEDINGS

FROM BRISBANE BY VIDEO LINK TO MELBOURNE

ON FRIDAY, 11 FEBRUARY 2005, AT 2.03 PM

Copyright in the High Court of Australia

MS M. OGAWA appeared in person.

MR P.D. CRUTCHFIELD:   If the Court pleases, I appear for the respondent.  (instructed by Minter Ellison)

YUJI C. OTAKI, affirmed as interpreter:  

HIS HONOUR:   I have here two applications in matters M157 of 2004 and M194 of 2004 for expedition of special leave.  What does the applicant wish to say in support of those applications?

MS OGAWA (through interpreter):   On January 10, I inquired as to my…..order.

THE INTERPRETER:   Does that make sense? 

MS OGAWA (through interpreter):   In relation to summons, I also submitted affidavits. 

THE INTERPRETER:   I apologise, your Honour, I was only assigned this morning so I am not totally ‑ ‑ ‑

HIS HONOUR:   Yes, I understand.

MS OGAWA (through interpreter):   The summons has been rejected and I received further instructions from the Registrar, a registrar named Carlsund.  I was told that…..needs to create an index, an appeal book, to proceed with the procedure. 

HIS HONOUR:   The only question I have to decide is whether the application for special leave should be expedited and put in the queue ahead of other matters waiting for hearing in special leave applications  That is what I want to hear, anything that Ms Ogawa has to say, and nothing else.  That is what I want to hear about, if she has anything orally to add to the applications in the summonses.

MS OGAWA:   Your Honour, the first conversation…..but at that moment Registrar Carlsund contacted me and advised me that unless the index is settled and appeal books filed and the Justice makes a decision on paper whether or not to have an oral hearing, the summons is irrelevant.  That is what I was told and at that moment I informed the Registrar that the – I

would also wish to apply for a waiver of the production of appeal books, but the Registrar also informed me that I ‑ ‑ ‑

HIS HONOUR:   I am not hearing – just listen to me.  I am not hearing any appeal from what the Registrar has or has not said to you.  All I am concerned with is whether the merits are such that you should be given an advantage over other applications for special leave by being put ahead of them in the queue.  Do you understand that?

MS OGAWA:   Because I was informed that it was irrelevant I have not prepared for – actually, I am not prepared to make oral argument because I did not know that this is listed for hearing before the index is settled.  So if any difficult issues should be argued here, I actually need time to prepare for that.

HIS HONOUR:   Are you applying for an adjournment of the hearing of the summons, are you?

MS OGAWA:   Yes.

HIS HONOUR:   Very well.  What do you say about that, Mr Crutchfield?

MR CRUTCHFIELD:   Your Honour, I have an unsworn affidavit of Ms Ogawa.  I am not sure if your Honour has that affidavit?

HIS HONOUR:   Yes.

MR CRUTCHFIELD:   What I say is this, your Honour, there are a number of matters in this affidavit that we wanted to correct.  There seems to be a misconception on Ms Ogawa’s part, as reflected in this affidavit, that the reason that she needs expedition of the special leave application is that unless the special leave application is heard and determined before 11 March 2005, her proceeding before Federal Magistrate Phipps will come to an end.  That is paragraph 8 of her affidavit.  That in fact is not the case, and, if I could just hand up to your Honour the orders that were made by Federal Magistrate Phipps on 28 October 2004, your Honour will see that the matter was set down for trial ‑ ‑ ‑

MS OGAWA:   Excuse me, can you…..

HIS HONOUR:   Yes, go on, Mr Crutchfield.

MR CRUTCHFIELD:   Your Honour will see that the matter was set down for trial on a five day hearing on 8 August 2005, and order 2 requires Ms Ogawa to file and serve affidavits of evidence by 4.00 pm on 11 March.  Then your Honour will see order 6:  if the applicant does not comply with

paragraph 2, the respondent will be at liberty to apply for the fixing of a date for the hearing of any interlocutory application the respondent may wish to make.  Your Honour will see these are not self‑executing orders.  There does not appear to be in the material any reason for urgency, and Ms Ogawa has not orally pointed to any matter that would necessitate ‑ ‑ ‑

HIS HONOUR:   Yes, thank you.

MR CRUTCHFIELD:   If your Honour pleases.

HIS HONOUR:   Ms Ogawa, the situation in the Federal Magistrates Court is that the Federal Magistrate has fixed the case for hearing on 8 August.  There is a direction about you filing and serving affidavits by 11 March.  If that is not done, then the matter may have to go back for further consideration of the timetable, but it does not bring the matter to an end, automatically, at all.  That being so, there is no particular reason for the expediting and the disposition of the special leave applications.

In any event, there is simply no possibility that the special leave applications could be disposed of by 11 March 2005.  Do you understand that?  Mr Translator, you had better ‑ ‑ ‑

THE INTERPRETER:   Excuse me, your Honour, Ms Ogawa refers to my interpretation as insufficient and it lacks substance, so I seek your further instructions.

HIS HONOUR:   I am not understanding you and I am not going to sit here much longer.  What does Ms Ogawa have to say any further in response to what I have said about this summons?

THE INTERPRETER:   She has indicted that she is not happy with my interpreting and she claims that my interpreting lacks substance.

HIS HONOUR:   I see.  So what does she want to do?  She seems to me to be able to speak English, actually, with a certain degree of proficiency.  She has already done so.  Ask Ms Ogawa whether she wants to say anything further either in English or through you.

MS OGAWA:   There is no request for an adjournment…..

HIS HONOUR:   There is no reason to grant an adjournment if it would be futile, and it would be futile because the summons is pointless and unnecessary.  There is no particular case made out of urgency for dealing with these applications for special leave.  Accordingly, the summons dated 7 February and filed on that date as seeking expedition of both special leave

applications M157 and M194 of 2004 should be dismissed.  Is there anything you want to say, Mr Crutchfield?

MR CRUTCHFIELD:   Your Honour, I am instructed to seek the costs of today.

HIS HONOUR:   Yes.  The costs of today will be costs of the special leave applications when finally disposed of.

MR CRUTCHFIELD:   If your Honour pleases.

HIS HONOUR:   Do you understand that, Ms Ogawa?

MS OGAWA:   Yes.  The Registrar specifically..…this summons today not just because…..a day, but actually that summons includes…..order, waiver of the appeal book application.  There I have not sworn any affidavit, due to a lack of time, but ‑ ‑ ‑

HIS HONOUR:   You seek dispensation of compliance with Order 41, do you?

MS OGAWA:   Yes, my intention in seeking that order is to appeal book production be waived, because it cost too much.  When I filed the special leave application on 23 August, I actually filed an affidavit regarding my financial statements.  I obtained directions of the Registrar of fee waiver of all these proceedings and also in that application on a fee waiver I explained that I have a Federal Court order, Ogawa vUniversity of Melbourne [2004] FCA 491. In that they ask for security for costs – application of the University is refused by the Federal Court. Furthermore, the Council of the University…..my financial situation and that was found that I am impecunious. So I think that they can rely on those, too, but if your Honour requires further evidence about my financial status, I would be ‑ ‑ ‑

HIS HONOUR:   No, I am not interested in your financial – no, Ms Ogawa.  At the moment what you have is a request for dispensation of the requirements of the rules that you prepare an application book.

MS OGAWA:   Yes ‑ ‑ ‑

HIS HONOUR:   Having heard what you say, I am not prepared to grant you that dispensation.

MS OGAWA:   …..Corporation Limited, 355 of 1998, Gaudron J on two separate occasions ordered that the appeal book production is waived.

HIS HONOUR:   That is fees.  We are not dealing with fees, we are dealing with preparation of the book.

MS OGAWA:   Yes.

HIS HONOUR:   I am really not sitting here to take the Court’s time dealing with these peripheral matters.  The immediate question, as provided by the summons – the question is should you be granted the leave there referred to in Rule 41.9.10 and 9.12.  Is there anything more you want to say on that?

MS OGAWA:   Sorry?

HIS HONOUR:   Is there anything more you want to say on that question?

MS OGAWA:   Well, of course I have other applications ‑ ‑ ‑

HIS HONOUR:   Not on other questions, on that question.

MS OGAWA:   Yes, one more thing to say is that there is an Education Services for Overseas Students Act 2000, which requires a university to arrange independent dispute resolution to resolve the dispute if the university has a dispute with an overseas student. That actually requires the university to arrange an inexpensive dispute resolution. The university breached that Act and because of that ‑ ‑ ‑

HIS HONOUR:   That has nothing to do with this summons, Ms Ogawa.

MS OGAWA:   It is relevant ‑ ‑ ‑

HIS HONOUR:   I am not going to hear you any further on it.  Now, sit down, please.  Is there anything you want to say, Mr Crutchfield?

MR CRUTCHFIELD:   No, your Honour.

HIS HONOUR:   Very well.  The order I made dismissing the summons carries with it not only the refusal of the application for expedition of the leave applications in matters M157 and M194, it carries with it also a refusal to dispense with compliance with the rules as to preparation of the application books.  No sufficient reason has been shown to depart from the ordinary procedure in such matters. 

As indicated, the summons then is dismissed.  Costs of the summons will be costs of the special leave applications as they are finally disposed of. 

MS OGAWA:   Your Honour, I understand that there are ‑ ‑ ‑

HIS HONOUR:   I have made the orders, Ms Ogawa.  Sit down. 

MS OGAWA:   But the only ‑ ‑ ‑

HIS HONOUR:   Sit down, please. 

MS OGAWA:   The orders are not accompanied by the reasons why ‑ ‑ ‑

HIS HONOUR:   There is no reason shown whatsoever for the expedition of this matter.  I have taken you through the orders of the Magistrates Court, which do not require the necessary immediacy. 

MS OGAWA:   Your Honour, there is only ‑ ‑ ‑

HIS HONOUR:   I am not discussing the matter with you any further.  Please sit down, Ms Ogawa. 

MS OGAWA:    ‑ ‑ ‑ correction of the order ‑ ‑ ‑

HIS HONOUR:   Please sit down.  I will not hear you any further.  You just have to understand some things, and that is one of them.  Now, sit down. 

MS OGAWA:   I need a reason. 

HIS HONOUR:   The Court will now adjourn. 

AT 2.21 PM THE MATTERS WERE CONCLUDED