Ogawa v University of Melbourne (No.2)
[2004] FMCA 492
•5 August 2004
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| OGAWA v UNIVERSITY OF MELBOURNE (No.2) | [2004] FMCA 492 |
| PRACTICE & PROCEDURE – TRADE PRACTICES – Adjournment of summary disposal application sought pending application to Federal Court for leave to appeal and stay – order sought to be appealed from refusal to transfer to Federal Court – no appeal possible from order – application for adjournment refused. |
Federal Magistrates Act 1999, s.39
Federal Magistrates Court Rules 2001, r.13
| Applicant: | MEGUMI OGAWA |
| Respondent: | UNIVERSITY OF MELBOURNE |
| File No: | MZ 463 of 2004 |
| Delivered on: | 5 August 2004 |
| Delivered at: | Melbourne |
| Hearing Date: | 5 August 2004 |
| Judgment of: | Phipps FM |
REPRESENTATION
| Counsel for the Applicant: | Ms M. Ogawa appeared on her own behalf |
| Counsel for the Respondent: | Mr J.M. Garner |
| Solicitors for the Respondent: | Minter Ellison |
ORDERS
The application for an adjournment of the hearing of the notice of motion is refused.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT MELBOURNE |
MZ 463 of 2004
| MEGUMI OGAWA |
Applicant
and
| UNIVERSITY OF MELBOURNE |
Respondent
REASONS FOR JUDGMENT
There is before the Court today, a notice of motion filed by the respondent which seeks to have various parts of the applicant's claim dealt with under the summary disposal provisions of the Federal Magistrates Court Rules 2001. They are contained in rule 13. The history of this proceeding is that it was commenced in the Federal Court and then by an Order made by Marshall J in the Federal Court of Australia, it was transferred to the Federal Magistrates Court on
27 July 2004. I dealt with an application by the applicant to have the whole proceeding transferred back to the Federal Court and I dismissed that application.
The respondent's notice of motion for summary disposal was returnable on that day. The applicant was represented by counsel appearing pro-bono who was only able to deal with the transfer application. The circumstances in which that occurred and then the adjournment of the respondent's notice of motion until today is dealt with in reasons which I gave on 27th July 2004. The applicant resides in Queensland. In the original directions in this Court, she appeared by way of a video link. Arrangements were made for a video link on 27th July 2004 so that the applicant could be present in Court in Brisbane while the applications then before the Court were dealt with, but she did not attend on that day. But as I said, the applicant was represented by pro-bono counsel who was present in the Court in Melbourne.
Given that this is an argument on the papers only, since it is a summary disposal application, I determined that a video link was unnecessary and a telephone link would be sufficient. The conduct of proceedings by video or audio link is dealt with in division 5 of the Federal Magistrates Act 1999 and arrangements were made for an audio link with a courtroom in Brisbane. The applicant did not appear in the courtroom at Brisbane. I was informed by my associate that the applicant had left a message giving both a land line number and a mobile telephone number and as I understand it, she is now connected to the Court by a land line number.
The applicant has filed a notice of motion in the Federal Court in which she seeks leave to appeal against the orders I made on 27 July 2004 and seeks a stay of all the proceedings in this Court pending the hearing of that application. She has said today that she considers that the proceedings in this Court should not continue until her application in the Federal Court is dealt with. The only substantive order that was made by me on 27 July 2004 was to dismiss the applicant's application to transfer the proceedings back to the Federal Court of Australia. The application to transfer was made pursuant to s.39 of the Federal Magistrates Act 1999. Subsection 39(6) provides:
An appeal does not lie from a decision of the Federal Magistrates Court in relation to the transfer of a proceeding under subsection (1).
Therefore, there is no ability to appeal from the order I made dismissing the applicant's application to transfer the proceedings to the Federal Court. That means that so far as the only substantive order is concerned from 27 July 2004, the applicant's application to the Federal Court must fail. The other orders I made were an order adjourning the notice of motion for summary disposal until today and directions for the filing and serving of outlines of argument or submissions. I also adjourned the directions hearing to today and I made an order that the applicant was to pay the respondent's costs.
The applicant of course can apply for leave to appeal against the order for costs. She could also apply for leave to appeal against the order adjourning the application until today. But she cannot, as I have said, appeal against the order dismissing the application to transfer to the Federal Court. That means that the proceedings in this Court will remain in this Court unless at some future time a Federal Magistrate determines to make an order that it be transferred to the Federal Court, but that is not something which is a possibility at the moment.
I have treated the applicant's position as an application to adjourn the respondent's notice of motion. The respondent was in a position to proceed with that notice of motion on 27th July 2004 and I note that transcripts, when the matter was in the Federal Court, show that this application was foreshadowed many months ago. The reason why it was not heard on 27th July 2004 is, as I have said, set out in the reasons I gave on that day.
The notice of motion is properly before the court today. The applicant had notice that the notice of motion is before the court today. This court must deal with the proceeding; has an obligation to deal with the proceeding. No stay order has been made by the Federal Court. Because of what I have said about the limited ability to appeal from the Orders of 27th July 2004, I can see no basis why the application should be adjourned, pending any decision by the Federal Court. The proceeding has to stay in this court. I note, as I referred to in my reasons on 27 July 2004 when Marshall J decided to transfer the proceeding to this Court, his Honour did so against the objection of both parties.
The position is this. The proceeding is before this Court. The notice of motion is before this Court. The notice of motion is set down for hearing today before me and there is no reason why it should be adjourned. Indeed, I consider I am obliged to hear it. I have no choice but to hear it. There is no basis for an adjournment. Insofar as the applicant has made an application for adjournment of the hearing of the notice of motion, that application is refused.
I certify that the preceding nine (9) paragraphs are a true copy of the reasons for judgment of Phipps FM
Associate: Sherryn Kwong
Date: 10 August 2004
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