Federal Court of Australia

Ogawa (formerly Ms PD) v President of the Australian Human Rights Commission (Pseudonym) [2022] FCAFC 160

ORDERS

THE COURT ORDERS THAT:

1.    The name “Megumi Ogawa” be substituted as the name of the applicant.

2.    In proceeding VID792/2020, the name “Megumi Ogawa” be substituted as the name of the applicant.

3.    The application made in the applicant’s submissions filed on 30 August 2022 for recusal of each of Justices Rares, Perry and Hespe be dismissed.

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

ORDERS

THE COURT ORDERS THAT:

1.    The name “Megumi Ogawa” be substituted as the name of the applicant.

2.    In proceeding QUD264/2021:

(a)    Orders 1 and 2 made on 31 August 2021 be set aside.

(b)    The name “Megumi Ogawa” be substituted as the name of the applicant.

3.    The application made in the applicant’s submissions filed on 30 August 2022 for recusal of each of Justices Rares, Perry and Hespe be dismissed.

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

REASONS FOR JUDGMENT

THE COURT:

1    The Full Court raised an issue during the course of oral argument on the applications for leave to appeal from Rangiah J’s refusal, in proceeding VID792/2020 (the AHRC proceeding), to recuse himself on 22 July 2021 (the recusal application) and Logan J’s decision, in proceeding QUD264/2021 (the Registrar review), on 4 November 2021 not to order the Registrar to pay the applicant’s costs incurred through the Registrar’s wrongful refusal to file the recusal application (the costs application), namely, why the applicant had a pseudonym in both applications and the AHRC and Registrar review proceedings.

2    The Court ordered that, by 30 August 2022, she file and serve an affidavit and written submissions limited to 5 pages in support of any order that she seeks to maintain her pseudonym “Ms PD”: see Ogawa (formerly Ms PD) v President of the Australian Human Rights Commission (Leave to Appeal) [2022] FCAFC 161 (the principal reasons) at [4].

3    The applicant complied with the above order. Having considered her two affidavits and two sets of submissions (as corrected) dated 30 August 2022, we are satisfied, for the reasons below, that there was no necessity or other reason to justify that the applicant, Dr Megumi Ogawa, be known under the pseudonym in any of the proceedings.

Background

4    On 9 February 2018, Logan J quashed the decision of the Minister to refuse Dr Ogawa’s application for a partner (temporary) (class UK) visa and ordered her immediate release from immigration detention: Ogawa v Minister for Immigration and Border Protection [2018] FCA 62; 159 ALD 138. The Full Court dismissed the Minister’s appeal from that decision: Minister for Home Affairs v Ogawa (2019) 269 FCR 536, a decision to which we referred in the principal reasons at [20], [22]–[23], [37].

5    Dr Ogawa filed the originating application in the AHRC proceeding using the pseudonym “Ms PD”. There was no order in that proceeding that she be known by a pseudonym. However, she proceeded, understandably, on the basis that the respondent, the President of the Australian Human Rights Commission, had given a direction pursuant to s 14(2) of the Australian Human Rights Commission Act 1986 (Cth) in her report dated 4 August 2020, prohibiting the disclosure of Dr Ogawa’s identity and assigned the pseudonym, Ms PD, to her. The President had power under s 14(2)(a) to prohibit the disclosure of the identity of a person who had made a complaint to the Commission where the Commission considered it “necessary to protect the security of employment, the privacy or any human right of the person”. The President wrote in her report:

12.    Ms PD has requested that her name not be published in connection with this inquiry. I consider that the preservation of her anonymity is necessary to protect her human rights. Accordingly, I have given a direction under s 14(2) of the AHRC Act and refer to the complainant as Ms ‘PD’ in this document.

6    In the AHRC proceeding, which is still pending before Rangiah J, Dr Ogawa claims declarations that:

(a)    the President erred in finding that, first, Dr Ogawa was an unlawful non-citizen when in immigration detention “between 2 November 2017 and ended on 9 February 2018 by the orders of Logan J in the matter of QUD605/2017 Ogawa v Minister for Immigration and Border Protection” and, secondly, that detention was lawful; and

(b)    the President denied her procedural fairness in, first, making those two findings and, secondly, in deciding not to recommend the payment of compensation to Dr Ogawa in respect of her detention.

7    On 3 March 2021, the AHRC proceeding came before the Chief Justice who ordered that it be transferred from the Victorian to the Queensland Registry (PD v President of the Australian Human Rights Commission [2021] FCA 174) after which it was docketed to Rangiah J. The Chief Justice referred in his reasons to the decisions of Logan J in Ogawa 159 ALD 138 and the Full Court in Ogawa 269 FCR 536. Allsop CJ said (at [1]):

The applicant, who has been given an acronym pseudonym by reason of provisions of the Migration Act 1958 (Cth), has had a considerable body of litigation in the Court.

8    However, his Honour’s not unreasonable, but erroneous, assumption as to the source of the pseudonym does not appear to have been the subject of anything that was said by Dr Ogawa or the lawyer then appearing for the President.

9    As recorded in the principal reasons, on 31 August 2021, in the Registrar review proceeding, Logan J ordered that (the August 2021 orders):

1.    The name, as opposed to the assigned pseudonym, of the applicant not be published, save with the leave of the Court or a judge first had and obtained.

2.    Any copy of the transcript of the proceeding not be published in a way that records the name, as opposed to the assigned pseudonym, of the applicant without the leave of the Court or a judge first had and obtained.

Dr Ogawa’s evidence and submissions

10    Dr Ogawa gave evidence as to how the pseudonym came to be, first, applied in each proceeding before Rangiah J and Logan J and, secondly, repeated in her respective applications for leave to appeal. Her evidence was accurate and we have drawn on it in the summary above. She said that Rangiah J discussed the pseudonym with her on one occasion. She explained:

I vaguely remember that Rangiah J told me something to the effect that the use of the pseudonym did not really hide my identity. I remember fairly clearly that I said to his Honour, ‘Yes, I know, because when I searched my name in Austlii, the first case which came up was this case.’ I explained that the search picked my real name visa cases referred to in Allsop CJ’s judgment and brought up Allsop CJ’s judgment at the top. Then I was asked by Rangiah J whether I preferred using the pseudonym or preferred changing it to my name. I informed Rangiah J that I preferred keeping the pseudonym because even though the pseudonym did not hide my identity effectively, the pseudonym would not attract journalists who were checking the court list so that I did not have to worry about journalists behind me during the hearing. I do not remember what Rangiah J said in response to my explanation but I remember that Rangiah J decided to keep the pseudonym straight away without any fuss. I do not have the transcript of the proceeding but I understand that the Court has access to the record of the proceeding.

Sometime after this case management hearing, I realised that my name in all my visa cases listed as ‘Cases Cited’ on Allsop CJ’s judgment page in Austlii had been altered to [PD].

(emphasis added)

11    The transcript of the hearing before Rangiah J on 22 July 2021, which was in evidence on the hearing of the recusal application, bears out this account. It records his Honour saying at the outset of the discussion:

Now, one thing I wanted to raise was that you’ve been given the pseudonym “Ms PD”. As far as I can understand it, there doesn’t seem to be any legal requirement for you to be given that pseudonym and, in any event, in order to decide your application for disqualification I will have to refer to the cases that have referred – or described you, by the name of Ms PD. What I am wondering is whether the pseudonym should be removed - - -

Ms PD: Well---

HIS HONOUR: - - - so that you’re known by your proper name - - -

(emphasis added)

12    His Honour finished the discussion saying that he would not make any order to change the pseudonym.

13    On 30 August 2022, Dr Ogawa filed evidence and submissions that, in the past, she has suffered one or more serious mental health illnesses which became particularly acute in the period between 2006 and 2011 during which she was involved in criminal proceedings and, at times, in prison. She also explained that she suffered from a recurrent depressive disorder that has developed into major episodes on occasion, including in recent years. She said that she takes prescribed medications and is under the regular care of her psychiatrist.

14    Dr Ogawa submitted that the continued use of the pseudonym would be justified on the ground for making a suppression or non-publication order in s 37AG(1)(c) of the Federal Court of Australia Act 1976 (Cth) (the Federal Court Act), namely, for the protection of her safety. She argued that Logan J, before whom she has appeared in many proceedings over the years, was familiar with her medical conditions when his Honour made the August 2021 orders.

15    Dr Ogawa contended that she could have made more detailed submissions and presented medical evidence to support the use of the pseudonym had the Court given her more time than the 7 days after the hearing on 23 August 2022.

16    Finally, Dr Ogawa submitted:

19    It is my submission that the present Court should not tamper with the pseudonym order made by Logan J. It is also my submission that the present Court should not tamper with the practice of using the pseudonym for me in all the cases where the pseudonym has been used.

20    Furthermore, given that the bias of the present Court has been apprehended clearly in the course of dealing with the issue of the pseudonym, I seek the following orders:

1)     All the orders made by this Court in the matters of QUD352 of 2021 and QUD385 of 2021 on 23 August 2022 be set aside.

2)     All the judges of the present Court disqualify themselves.

3)     The matters be listed for a hearing before the Court differently constituted on a date to be fixed.

4)     Costs be paid by the Respondents.

The recusal and other new orders claimed by Dr Ogawa

17    The last submission must be rejected. First, Dr Ogawa did not identify any basis on which an informed, fair-minded lay observer reasonably might apprehend that any of the three judges constituting the Full Court might not bring an impartial mind to the resolution of any of the issues that arose directly on either of her applications for leave to appeal. Nor did she identify what, if anything, suggestive of inflexibility or prejudgment or other bias, any of the judges might do or decide in relation to the pseudonym after we received her evidence and submissions in relation to it. Barwick CJ, McTiernan, Kitto, Taylor, Menzies, Windeyer and Owen JJ said in R v Commonwealth Conciliation and Arbitration Commission; ex parte Angliss Group (1969) 122 CLR 546 at 554:

a [fair and unprejudiced] mind is not necessarily a mind which has not given thought to the subject-matter or one which, having thought about it, has not formed any views or inclination of mind upon or with respect to it.

18    In Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337 at 345 [8], Gleeson CJ, McHugh, Gummow and Hayne JJ said of the application of the principles relevant to determining whether there is a reasonable apprehension of bias:

First, it requires the identification of what it is said might lead a judge (or juror) to decide a case other than on its legal and factual merits. The second step is no less important. There must be an articulation of the logical connection between the matter and the feared deviation from the course of deciding the case on its merits.

(emphasis added)

Dr Ogawa put nothing in her submissions that addressed either of those two steps.

19    Secondly, the Full Court’s enquiries during the hearing on 23 August 2022 as to the basis of the pseudonym went to its concerns about the apparent departure from the principle of open justice and why it was being asked to hear Dr Ogawa’s recusal and costs applications with the pseudonym in place. That occurred in the circumstances where no order had been made in the appellate jurisdiction of the Court in either proceeding (in which she sought leave to appeal) and also where there was no apparent reason for the application of the pseudonym in the proceedings before each of Rangiah J and Logan J. One such concern was the absence of any reasons, or even identification of a ground under s 37AG(1), as to why Logan J had made the August 2021 orders. The Court’s expression of those concerns on 23 August 2022 could not reasonably have created a reasonable apprehension of bias.

20    Thirdly, the Full Court sought Dr Ogawa’s evidence and submissions on the pseudonym question because it was not then able to form a final view about that matter and it had not been an issue that she or any of the other parties or amicus curiae had come prepared to address.

21    Fourthly, Dr Ogawa did not make any application for the members of the Full Court to recuse themselves at the hearing on 23 August 2022 before or after the Full Court gave its ex tempore reasons and made orders dismissing both her applications for leave to appeal.

22    There was no substance in support of Dr Ogawa’s application for the recusal of the Full Court or the related orders that she sought.

The power to make a pseudonym order

23    Relevantly, the Federal Court Act requires in s 17(1) that, except where that or another Act authorises, “the jurisdiction of the Court shall be exercised in open court”. This reflects the fundamental rule of the common law that, with very limited exceptions, the administration of justice must occur in open court: Dickason v Dickason (1913) 17 CLR 50 at 51 per Barton ACJ, with whom Isaacs, Gavan Duffy, Powers and Rich JJ agreed; John Fairfax & Sons Ltd v Police Tribunal of New South Wales (1986) 5 NSWLR 465 at 476 per McHugh JA, with whom Glass JA agreed. In addition, at common law, a court can only depart from the principle of open justice if such a course is necessary in the interests of justice: Scott v Scott [1913] AC 417; Dickason 17 CLR at 51; Hogan v Australian Crime Commission (2010) 240 CLR 651.

24    Part VAA of the Federal Court Act is headed “Suppression and non-publication orders”. In deciding whether to make such an order, s 37AE requires the Court to take into account that a primary objective of the administration of justice is to safeguard the public interest in open justice. The Court has power, by making a suppression or non-publication order under s 37AF(1)(a) and (2), to prohibit or restrict the publication or the disclosure of information tending to reveal the identity of, or otherwise concerning, any party to, or witness in, a proceeding on one or more of the grounds in s 37AG(1), namely:

(a)    the order is necessary to prevent prejudice to the proper administration of justice;

(b)    the order is necessary to prevent prejudice to the interests of the Commonwealth or a State or Territory in relation to national or international security;

(c)    the order is necessary to protect the safety of any person;

(d)    the order is necessary to avoid causing undue distress or embarrassment to a party to or witness in a criminal proceeding involving an offence of a sexual nature (including an act of indecency).

25    If the Court makes a suppression or non-publication order, it must specify the ground or grounds for doing so (s 37AG(2)).

26    One reason for the common law’s insistence that justice be administered in public, transparently, in open court, that is reflected in ss 17(1) and 37AE of the Federal Court Act, is the importance of the common law right of any person to make fair and accurate reports of judicial proceedings: Attorney-General v Leveller Magazine Ltd [1979] AC 440 at 450A–B per Lord Diplock; Police Tribunal 5 NSWLR at 477A, 481C–E. As McHugh JA said (5 NSWLR 481E–F):

Without the publication of the reports of court proceedings, the public would be ignorant of the workings of the courts whose proceedings would inevitably become the subject of the rumours, misunderstandings, exaggerations and falsehoods which are so often associated with secret decision making. The publication of fair and accurate reports of court proceedings is therefore vital to the proper working of an open and democratic society and to the maintenance of public confidence in the administration of justice. It is a right which can only be taken away by words of plain intendment.

(emphasis added)

27    Considerations of embarrassment, convenience or personal sensitivity to the publication of personal and often very private circumstances given in evidence or revealed in the course of a proceeding in open court, of themselves, cannot justify or support the exercise of any inherent or implied power of a court to suppress or prohibit the publication of those matters. None of the grounds in s 37AG(1) for a statutory suppression or non-publication order refers to such a basis other than, perhaps, the ground in s 37AG(1)(d) (which, however, only applies in a criminal proceeding). The reason that considerations of embarrassment, convenience or personal sensitivity are not relevant to a Court’s inherent and statutory powers to derogate from the principle of open justice is that the principle is a fundamental condition for the exercise of every court’s jurisdiction, subject to any common law or statutory exception. As French CJ, Gummow, Hayne, Heydon and Kiefel JJ said in Hogan 240 CLR at 664 [31] in respect of an analogue of s 37AF (and see too: R v Tait (1979) 46 FLR 386 at 404 per Brennan, Deane and Gallop JJ and The Food Improvers Pty Ltd v BGR Corporation Pty Ltd (No 2) (2006) 155 FCR 216 at 220–223 [18]–[29] per Rares J):

It is insufficient that the making or continuation of an order under s 50 appears to the Federal Court to be convenient, reasonable or sensible, or to serve some notion of the public interest, still less that, as the result of some “balancing exercise”, the order appears to have one or more of those characteristics.

(footnote omitted)

28    Thus, at common law, subject to very limited exceptions, a court has power to make an order derogating from the law’s insistence that it exercise its jurisdiction in open court in accordance with the principle of open justice only where the public disclosure of evidence or other matter, or the identity of a party to, or a person involved in, a proceeding would frustrate the administration of justice. In Scott [1913] AC at 437–438, Viscount Haldane LC instanced that exceptions to this principle include the wardship and lunacy jurisdictions as well as the protection of trade secrets and confidential information.

29    The Court may only depart from hearing a proceeding in open court in accordance with the principle of open justice where such a course is necessary so as to enable it to do justice. The paramount consideration as to the court’s power to prohibit or restrict publication, or exclude the public, in any particular situation is whether justice cannot be done in any other way: Scott [1913] AC at 438; cf Hogan v Hinch (2011) 243 CLR 506 at 552–553 [87]–[88] per Gummow, Hayne, Heydon, Crennan, Kiefel and Bell JJ.

30    The power to permit use of a pseudonym to anonymise the name of a party to, or witness in, a judicial proceeding is based on considerations of the public interest in the administration of justice, and so, is exercisable only in limited circumstances: Mr C (1993) 67 A Crim R 562 at 565 per Hunt CJ at CL, with whom Smart and James JJ agreed. Importantly, in the context of the administration of justice by this Court, the public interest also requires attention to the requirements of s 17(1) (in respect of the exercise of both its inherent and statutory power), s 37AE (for the exercise of its statutory power under s 37AF) and the use of the word “necessary” in each of the grounds in s 37AG. It follows that any decision to derogate from the Act’s requirement that the Court exercise its jurisdiction in open court must be “necessary”. That is, the Court must determine that justice cannot be done if the proceeding is heard in open court or without the use of a pseudonym or other derogation from open justice. If the Court decides that it is necessary in order to do justice in the proceeding to derogate from the principle of open justice, it must craft an order or procedure that limits the derogation only to the extent necessary to ensure that justice will be done: Hogan 240 CLR at 664 [32].

31    In this context, the Court would have to conclude that there is no other way to administer justice in the proceeding than to make the order, suppressing or prohibiting the publication of the particular evidence, matter or identity, or to adopt a procedure that achieves a similar result. As Viscount Haldane LC said in Scott [1913] AC at 438, the person seeking an order, such as a pseudonym, “must satisfy the Court that by nothing short of the exclusion of the public can justice be done”.

32    In Leveller [1979] AC 440, a magistrates court hearing committal proceedings permitted a prosecution witness to give evidence without openly stating his name, where the name was written down and shown to the court, the defendants and their counsel. The magistrates ruled that “at the hearing in their court”, the witness be referred to as “Colonel B” ([1979] AC at 449D). During cross-examination (without objection or any order restricting publication) the witness disclosed the name of the army unit to which he belonged and that the fact of his posting there had been recorded in a particular edition of a publicly available magazine. Subsequently, another magazine published those two pieces of information together with Colonel B’s name and an account of his military career. A different magazine, “The Leveller”, also published Colonel B’s name. The Attorney-General commenced proceedings for contempt against the journalists, the publishers and others involved in disclosing Colonel B’s identity. The House of Lords held that in the circumstances, the publications could not be found to have had any real or definite tendency to interfere in the administration of justice or amount to a contempt.

33    Lord Diplock explained (at 451G–452F and see too at 456D–457B per Viscount Dilhorne, 464A–E per Lord Edmund-Davies, and 467G–468B per Lord Russell of Killowen) that it is not necessary for a court to make an order explicitly prohibiting publication of evidence or matter given or disclosed in open court before third parties will be bound not to disclose or publish any such evidence or matter. For example, whenever a jury is sent out so that questions of admissibility of evidence or other issues can be debated and decided in their absence, it is obvious that publication of any part of the hearing in their absence (at least until the jury has been discharged after verdict or otherwise) may have a real tendency to prejudice the administration of justice by making the jury aware of matter that they had not heard and of which the court intended they not be aware. Such a publication could amount to a contempt of court. But, if the material is subsequently admitted in evidence before the jury in open court without restriction or after the jury has given its verdict, different considerations can arise.

34    In Police Tribunal 5 NSWLR 465, the Tribunal, which was a court of record (see at 476D), made an order that the name of a specified person called ‘Mr X’ “is not to be published in reports of these proceedings nor in any material which would serve to identify him or his place of abode” (see at 474E–F). Mahoney JA (at 473F–G) and McHugh JA (at 481A–B, with whom Glass JA agreed) held that the order was invalid because it was beyond the jurisdiction of a court to prevent persons outside the court room publishing evidence given in public before the Tribunal.

35    It is not necessary to explore here the ambit of what disclosure of such evidence or material might amount to interference with the administration of justice. Rather, the issue here is whether some device, such as giving Dr Ogawa the pseudonym, so as to maintain her anonymity, was necessary in order to administer justice in either of the AHRC or Registrar review proceedings or the recusal or costs applications or generally. Here, Dr Ogawa contended that the pseudonym and the August 2021 orders were “necessary to protect” her safety within the meaning of the ground in s 37AG(1)(c).

Consideration

36    Dr Ogawa’s argument for the maintenance of her pseudonym must be rejected.

37    First, when we heard both of her applications for leave to appeal, Dr Ogawa’s real name was used, in open court, as she sought. Any member of the public could have made a fair and accurate report that named her doing so: Police Tribunal 5 NSWLR at 481D–F; Leveller [1979] AC 440. Likewise, anyone could find out who Ms PD was by navigating to the medium neutral citations or reported judgments that the reasons of each of the Chief Justice and Rangiah J had set out using “[PD]” in the title of the relevant judgments instead of “Ogawa”. In addition, as Rangiah J observed, in order to deal with the application that he recuse himself, it was necessary for him to discuss in his reasons, as he did, the prior judgments of other single judges and Full Courts which named Dr Ogawa as a party on which she had relied. We had to do likewise in the principal reasons. And, anyone who knew who Dr Ogawa was could have made a fair and accurate report of the proceeding before Rangiah J on 22 July 2021 (which antedated the August 2021 orders in the Registrar review proceeding).

38    In addition, in each of his reasons for judgment given on 31 August 2021 and 4 November 2021, Logan J referred expressly to proceeding VID792/2020 and, in the former reasons, stated that, on 22 July 2021, Rangiah J had refused to recuse himself in it (Ms PD v Registrar of the Federal Court of Australia [2021] FCA 1197 at [1]; Ms PD v Registrar of the Federal Court of Australia (No 2) [2021] FCA 1665 at [1]). As Lord Russell of Killowen said in Leveller [1979] AC at 468E–G (and see too at 452 per Lord Diplock): “The gaff was already blown”, well before Logan J made the August 2021 orders.

39    This demonstrates that not only was the use of the pseudonym wholly ineffective in anonymising Dr Ogawa’s identity, but it could not conceivably have been necessary in the interests of justice or her safety to protect her identity from disclosure, since it was never protected from disclosure. By no later than the publication on the internet of the Chief Justice’s reasons in PD [2021] FCA 174, Dr Ogawa was not anonymous.

40    More fundamentally, the relief that Dr Ogawa sought in the AHRC proceeding was predicated on her assertion that because Logan J had decided in Ogawa 159 ALD 138, that the Minister’s cancellation of her visa was invalid, the President should have found that her detention under s 189(1) of the Migration Act 1958 (Cth) for the three months (from the cancellation decision until Logan J’s orders quashing it) was a breach of her human rights. In any final hearing of that claim, Logan J’s decision and the Full Court’s dismissal of the Minister’s appeal are very likely to be discussed in open court. It will be plain as day to anyone in court or with knowledge of the proceeding, that Dr Ogawa was the applicant or Ms PD. That circumstance demonstrates that the use of any pseudonym and the prohibitions in the August 2021 orders are untenable in the face of the requirements of s 17(1) and 37AE of the Federal Court Act, and the principle of open justice.

41    Secondly, order 1 of the August 2021 orders was expressed as an order binding the world as a general rule that prohibited Dr Ogawa’s name being published, except with the leave of the Court or a judge. It was not limited to apply only to prohibiting the publication of Dr Ogawa’s name in connection with her being a party in the Registrar review proceeding before his Honour. The scope of the order exceeded any interest of securing Dr Ogawa’s anonymity in respect of her claim that the Registrar, or the previously named court official, had erred in rejecting her attempt to file the recusal application (ie, the application for leave to appeal against Rangiah J’s refusal to recuse himself on 22 July 2021 in the AHRC proceeding): Police Tribunal 5 NSWLR at 473F–G, 481A–B.

42    Thirdly, Dr Ogawa’s mental illness, unfortunate as it has been for her, has not inhibited her commencing many proceedings over the years, including recently, in this court in her own name. There is nothing in the evidence concerning either the AHRC or the Registrar review proceeding that suggests that her mental illness creates any occasion in respect of her safety, let alone necessity or otherwise in the interests of justice, for suppressing publication of or anonymising her name in connection with the proceeding. The fact that an administrative decision-maker, such as the President, had power in an administrative proceeding not held in public to make a direction to preserve a person’s anonymity under a provision such as s 14(2) of the AHRC Act, is not sufficient to enliven the exercise of the Court’s jurisdiction to suppress Dr Ogawa’s identity in the various proceedings in this Court.

43    Fourthly, Dr Ogawa said in her affidavit of 30 August 2022 that she had told Rangiah J that she “preferred keeping the pseudonym … even though [the pseudonym] did not hide my identity effectively” (see [10] above). That was a reasonable summary of her understanding of the inefficacy of the pseudonym and reflected her statement to his Honour as recorded in the transcript:

Allsop CJ kept the Ms PD and get rid of the reference of my name from his Honour's judgment, still … that case … referred to is my case. So that’s appears on the law site on other legal dictionaries and when I search my name … this case comes up first. So it’s virtually no meaning, but … still it will help … getting newspapers out of the problem.

(emphasis added)

44    As she revealed in her evidence and statement to his Honour, the use of a pseudonym was futile, for the very reason that her identity in connection with each of the AHRC and Registrar review proceedings, like Colonel B’s in Leveller [1979] AC 440, was already readily ascertainable. Moreover, both in the Chief Justice’s and Rangiah J’s reasons, as published on the Austlii website, all of the cases to which their Honours referred, in which Dr Ogawa was a party, were recorded with their full medium neutral and any relevant reported citations, but with “[PD]” substituted for “Ogawa” in their titles. Anyone could search for those judgments and, without any difficulty, discover that PD was Dr Ogawa.

45    The use of a pseudonym in those circumstances was unjustifiable. Therefore, in those circumstances, this Court lacks any power to make or maintain any order that prohibits any member of the public publishing matter that reveals that the applicant, called “Ms PD” in each proceeding is, in fact, Dr Ogawa. That is because, as Dr Ogawa accepted, her identity is already discernible and the pseudonym serves no purpose. The pseudonym cannot be necessary in the interests of justice to keep her role as a party suppressed in the four proceedings.

46    It is important to appreciate that Dr Ogawa’s use of the pseudonym in the title of her four proceedings does not have any legal authority or force, other than as provided for in the August 2021 orders. With respect, Logan J erred in failing to give reasons for those orders. They were made beyond the Court’s powers because they were not necessary in the interests of justice when anyone could work out easily who Ms PD was by following citation links on Austlii. This is not a mere quibble. A contravention of an order of the Court not to reveal a person’s identity is a contempt, unless, as in situations such as in Leveller [1979] AC 440, the secret is, as here, already revealed for all to find.

Disposition

47    The August 2021 orders should not have been made and the pseudonym should not have been used in any of the four proceedings because there was no necessity to do so either in the interests of justice (Hogan 240 CLR 651) or on any ground under s 37AG(1) of the Federal Court Act.

48    Even though these were applications for leave to appeal, the appellate jurisdiction of the Court under s 25(1) and (2)(a) of the Federal Court Act extends to the making of orders under s 28 in the exercise of that jurisdiction. The Court has power, under s 28(1)(b) and (3) to make any such order, as in all the circumstances, it thinks fit, even if that relief were not sought in the notice of appeal or, here, an application for leave to appeal.

49    Because of the fundamental importance of the two proceedings still pending before Rangiah J and Logan J being dealt with in open court in accordance with the principle of open justice, as ss 17(1) and 37AE of the Federal Court Act also require, it is necessary to make an order in each of those proceedings as well as in the recusal and costs applications that the name, “Megumi Ogawa”, be substituted as the name of the applicant. We will also order that the August 2021 orders be set aside.

50    The Registrar will need to remove any restrictions that had been put in place to ensure the efficacy of the pseudonym or the August 2021 orders that now would inhibit access in the ordinary course to the Court files in each of the four proceedings.

Associate:

Dated:    16 September 2022