Ogawa v University of Melbourne

The case of Ogawa v University of Melbourne involves the applicant, Ms Ogawa, a Japanese citizen who entered Australia on a student visa to pursue a PhD. Ms Ogawa's visa was subsequently cancelled, and she is now seeking judicial review of that decision. The University of Melbourne has applied for an order that Ms Ogawa provide security for its costs, as she is ordinarily resident outside Australia and has no assets in the country. The court had to decide whether it should compel Ms Ogawa to provide security for the University’s costs.

The court considered the statutory provisions under Section 56 of the Federal Court of Australia Act 1976, which empowers the court to order an applicant to provide security for costs. The court also considered the relevant rules of court, specifically Order 28 rules (3), (4), and (5). The court had to balance Ms Ogawa’s impecuniosity against the usual practice of ordering security for costs for parties who are not ordinarily resident in Australia and have no assets here. The court observed that Ms Ogawa’s impecuniosity and inability to work due to her visa status could stifle the litigation. The court concluded that the circumstances of Ms Ogawa’s impecuniosity outweighed the usual practice of ordering security for costs for non-resident applicants.

The court dismissed the University's application for security for costs, reserving costs for a later determination. The court also adjourned the substantive hearing to a telephone directions hearing to consider whether the matter should be transferred to the Federal Magistrates Court.

The final orders of the court were to dismiss paragraphs 1 to 4 of the respondent’s motion of 24 November 2003, reserve costs, and adjourn the substantive hearing to a telephone directions hearing at 10.15 am on 4 May 2004 to address the transfer issue.