Federal Court of Australia

Ogawa v Australian Information Commissioner (Vexatious Proceedings Orders) [2025] FCAFC 167

ORDERS

THE COURT ORDERS THAT:

Lump Sum Costs

1.    Pursuant to r 40.02 of the Federal Court Rules 2011 (Cth), the respondent’s costs awarded by order dated 27 March 2025 be fixed by a registrar in a lump sum if not agreed.

2.    By 11 December 2025, the respondent file and serve an affidavit in the form of a Costs Summary in accordance with paragraphs [4.10], [4.11] and [4.12] of the Federal Court Practice Note (GPN-Costs).

3.    By 24 December 2025, the appellant is to file and serve any affidavit in the form of a Costs Response in accordance with paragraphs [4.13] and [4.14] of GPN-Costs.

4.    By 30 January 2026, the parties are to file and serve any written submissions, not exceeding 3 pages in length.

5.    The quantum of the lump sum payable to the respondent in accordance with paragraph 1 of the orders dated 27 March 2025 be determined on the papers, without an oral hearing, on the basis of the Costs Summary, the Costs Response and any written submissions filed by 30 January 2026.

Disqualification Application

6.    Dr Ogawa’s Interlocutory Application dated 29 September 2025 be dismissed.

Vexatious Proceedings Orders

7.    Pursuant to s 37AO(2)(a) of the Federal Court of Australia Act 1976 (Cth) (the Act):

(a)    all current proceedings instituted by Dr Megumi Ogawa in this Court be stayed;

(b)    Dr Megumi Ogawa be prohibited from continuing any current proceedings in this Court without making an application for leave to continue.

8.    Pursuant to s 37AO(2)(b) of the Act, Dr Ogawa be prohibited from instituting proceedings in this Court without first making an application for leave to institute proceedings in accordance with s 37AR of the Act.

9.    At the time of filing any application for leave to continue any current proceedings or to institute proceedings, or any other application, Dr Ogawa pay the sum of $200 to the Registry as security for costs, to be held by the Court in a non-interest bearing account.

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

ORDERS

THE COURT ORDERS THAT:

Lump Sum Costs

1.    Pursuant to r 40.02 of the Federal Court Rules 2011 (Cth), the respondent’s costs awarded by order dated 27 March 2025 be fixed by a registrar in a lump sum if not agreed.

2.    By 11 December 2025, the respondent file and serve an affidavit in the form of a Costs Summary in accordance with paragraphs [4.10], [4.11] and [4.12] of the Federal Court Practice Note (GPN-Costs).

3.    By 24 December 2025, the appellant is to file and serve any affidavit in the form of a Costs Response in accordance with paragraphs [4.13] and [4.14] of GPN-Costs.

4.    By 30 January 2026, the parties are to file and serve any written submissions, not exceeding 3 pages in length.

5.    The quantum of the lump sum payable to the respondent in accordance with paragraph 1 of the orders dated 27 March 2025 be determined on the papers, without an oral hearing, on the basis of the Costs Summary, the Costs Response and any written submissions filed by 30 January 2026.

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

REASONS FOR JUDGMENT

THE COURT:

Introduction

1    In Ogawa v Australian Information Commissioner [2025] FCAFC 37 (the Initial Judgment) at [84], we expressed the preliminary view that it may be that this Court could be satisfied that Dr Ogawa has frequently instituted or conducted vexatious proceedings and if that were so, the Court should consider the making of a vexatious proceedings order. Dr Ogawa notified the registry that she wished to have an oral hearing in relation to whether the proposed order ought to be made by the Full Court. The Court has been greatly assisted by the able and measured written and oral submissions of Mr Christian Jennings KC, acting as amicus curiae. Dr Ogawa filed affidavits on 24 April 2025, 29 September 2025 and 8 November 2025, and also filed written submissions, although Dr Ogawa withdrew those written submissions in the course of her oral address (T13.24–34).

2    Dr Ogawa also filed an interlocutory application on 29 September 2025, seeking that we be disqualified from hearing this matter on the ground of apprehended bias. The interlocutory application also sought an order that the hearing of the interlocutory application be listed before judges other than ourselves, which we rejected for the reasons set out in Ogawa v Australian Information Commissioner (No 2) [2025] FCAFC 156. At the oral hearing on 10 November 2025, we rejected Dr Ogawa’s application that we be disqualified on the ground of apprehended bias, and indicated that we would give reasons in this judgment.

3    Also on 10 November 2025, applications were made by the Australian Information Commissioner and the Attorney-General’s Department that costs orders which had been made in their favour should be varied such that the costs be fixed by a Registrar in a lump sum if not agreed. We are of the view that such an order is appropriate. The Costs Practice Note (GPN-Costs) at para [4.1] indicates that the Court’s preference, wherever it is practicable and appropriate to do so, is for the making of a lump sum costs order. In the present case, that preference is fortified by the circumstance of Dr Ogawa’s apparent impecuniosity. A significant factor in favour of a lump sum costs order is that, having regard to the financial capacity of the party liable to pay costs, the additional cost of taxation would be likely to impose a significant burden on the party which is entitled to costs, without real prospects of recovering those additional costs: Sony Entertainment (Australia) Limited v Smith [2005] FCA 228; (2005) 215 ALR 788 at [194]–[195] (Jacobson J). Accordingly, we are satisfied that this is an appropriate case for a lump sum costs order.

Dr Ogawa’s application for disqualification

4    The governing principle concerning apprehended bias is that, subject to qualifications relating to waiver or necessity, a judge is disqualified if a fair-minded lay observer might reasonably apprehend that the judge might not bring an impartial mind to the resolution of the question the judge is required to decide: Ebner v Official Trustee in Bankruptcy [2000] HCA 63; (2000) 205 CLR 337 at [6] (Gleeson CJ, McHugh, Gummow and Hayne JJ). The basis of Dr Ogawa’s disqualification application is the contention that we made a number of errors in the Initial Judgment, as set out in her written submissions dated 29 September 2025. Even if one assumes for the purpose of analysis that these matters constitute errors or appealable errors, that would not be sufficient to establish apprehended bias: Michael Wilson & Partners Ltd v Nicholls [2011] HCA 48; (2011) 244 CLR 427 at [67] (Gummow ACJ, Hayne, Crennan and Bell JJ), [116] (Heydon J). We are unable to see how the errors contended for by Dr Ogawa, or any other matter, could support her application. Accordingly, we dismiss the interlocutory application dated 29 September 2025.

Vexatious proceedings orders

5    Section 37AO of the Federal Court of Australia Act 1976 (Cth) (the FCA Act) relevantly provides:

(1)    This section applies if the Court is satisfied:

(a)     a person has frequently instituted or conducted vexatious proceedings in Australian courts or tribunals; or

(b)    a person, acting in concert with another person who is subject to a vexatious proceedings order or who is covered by paragraph (a), has instituted or conducted a vexatious proceeding in an Australian Court or tribunal.

(2)    The Court may make any or all of the following orders:

(a)    an order staying or dismissing all or part of any proceedings in the Court already instituted by the person;

(b)    an order prohibiting the person from instituting proceedings, or proceedings of a particular type, in the Court;

(c)    any other order the Court considers appropriate in relation to the person

…

(6)    For the purposes of subsection (1), the Court may have regard to:

(a)    proceedings instituted (or attempted to be instituted) or conducted in any Australian court or tribunal; and

(b)    orders made by any Australian court or tribunal; and

(c)    the person’s overall conduct in proceedings conducted in any Australian court or tribunal (including the person’s compliance with orders made by that court or tribunal);

including proceedings instituted (or attempted to be instituted) or conducted, and orders made, before the commencement of this section.

6    The word “proceeding” in relation to a court is defined in s 37AM(1) by reference to the meaning given by s 4 of the FCA Act, namely “a proceeding in a court, whether between parties or not, and includes an incidental proceeding in the course of, or in connexion with, a proceeding, and also includes an appeal”. The term “vexatious proceeding” is defined in s 37AM(1) as including:

(a)    a proceeding that is an abuse of the process of a court or tribunal; and

(b)    a proceeding instituted in a court or tribunal to harass or annoy, to cause delay or detriment, or for another wrongful purpose; and

(c)    a proceeding instituted or pursued in a court or tribunal without reasonable ground; and

(d)    a proceeding conducted in a court or tribunal in a way so as to harass or annoy, cause delay or detriment, or achieve another wrongful purpose.

7    The Court’s power to make orders pursuant to s 37AO is not to be exercised lightly. Further, the nature of the order is not to bar vexatious litigants from instituting proceedings entirely or to impose condign punishment for past litigious misdeeds, but to place any further prospective litigation brought by the litigant under the control of the Court, by imposing a requirement for leave: Storry v Parkyn [2024] FCAFC 67 at [39] (Lee, Feutrill and Jackman JJ); Storry v Parkyn (Vexatious Proceedings Order) [2024] FCAFC 100; (2024) 304 FCR 318 at [18] (Lee, Feutrill and Jackman JJ); Luck v Secretary, Services Australia (Vexatious Proceedings Order) [2025] FCAFC 103 at [44] (Rofe, Hespe and Kennett JJ).

8    In the Initial Judgment at [82], we found that the three proceedings brought by Dr Ogawa which were the subject of that judgment were without merit and constituted an abuse of process.

9    Mr Christian Jennings KC, as amicus curiae, has provided us with a detailed analysis of Dr Ogawa’s history of litigation, by reference to judicial decisions in those cases. That analysis comprises 82 decisions of courts in Australia. Dr Ogawa enjoyed success in six of those matters, although one of those was overturned on appeal. Most of Dr Ogawa’s proceedings (including interlocutory proceedings) were dismissed or refused, including a significant number which were found to be groundless or without merit. Further, in some of Dr Ogawa’s proceedings, Dr Ogawa sought an adjournment of hearings, failed to appear at hearings, or left the Court during the hearing. On occasions, her failure to appear at hearings was described as deliberate. In respect of many of these decisions, it is difficult to make a finding as to whether the proceeding in question, considered in isolation, constitutes a “vexatious proceeding” as defined, having regard simply to the way in which the reasons for decisions are expressed. However, there is a considerable number of decisions which clearly indicate that the proceedings were vexatious proceedings, as we identify below.

10    One set of such proceedings concerns Dr Ogawa’s claims against the University of Melbourne. On 9 September 2003, Dr Ogawa commenced proceedings in the Federal Court against the University of Melbourne, seeking relief for alleged contraventions of the Trade Practices Act 1974 (Cth) and alleged breach of contract and negligence with respect to her undertaking a Doctor of Philosophy course at that University. In Ogawa v University of Melbourne (No 2) [2004] FCA 1275, Dr Ogawa’s application for leave to appeal against applications for transfer and striking out was refused by Kenny J, who described Dr Ogawa’s conduct of the litigation at [48] as “unreasonable persistence in applications that are devoid of merit”, having described the applications at [46] as misconceived and untenable. In the High Court, Dr Ogawa’s application for orders nisi for constitutional writs and associated relief against various Judges and the University of Melbourne was dismissed by Hayne J because none of them were “shown to be arguable”: Re University of Melbourne & Ors; Ex parte Ogawa [2004] HCATrans 404 at lines 1000–1045. Dr Ogawa’s further applications for orders nisi against various Judges and Registrars and the University of Melbourne were dismissed by Heydon J because there was “no arguable ground for relief sought by the applicant in her two applications”: Re University of Melbourne & Ors; Ex parte Ogawa [2004] HCATrans 565 at line 390. Dr Ogawa sought to appeal the decision of Hayne J, and Gleeson CJ held that Dr Ogawa’s applications had no merit and there was no merit in her argument concerning apprehended bias on the part of Hayne J: Ogawa v Marshall [2005] HCATrans 444 at lines 520–540. Subsequently, Dr Ogawa filed motions seeking an extension of time to appeal (and to appeal a costs order which in fact reserved costs) and an interlocutory order adjourning a directions hearing, which were dismissed by French J, who stated that Dr Ogawa’s motions had been “a complete and utter waste of time of the Court and the University” and that they were “misconceived”, ordering Dr Ogawa to pay the respondent’s costs of the motions on an indemnity basis: Ogawa v University of Melbourne [2005] FCA 1150 at [24].

11    A further set of proceedings was brought by Dr Ogawa against the Minister for Immigration and Multicultural and Indigenous Affairs concerning the decision of the Minister’s delegate to cancel Dr Ogawa’s student visa when her candidature for her studies expired. The Migration Review Tribunal set aside the delegate’s decision. Despite that success, Dr Ogawa sought review of the decision in the Federal Court, which was dismissed by Kiefel J as misconceived: Ogawa v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 1006 at [6]–[7]. In June 2007, Dr Ogawa was granted a student visa and, just before it expired, was granted a bridging visa, but Dr Ogawa sought review of that decision. Dr Ogawa did not appear at the hearing, and Logan J dismissed her application on the ground that there was “no reasonable prospect of success”: Ogawa v Parker [2008] FCA 388 at [31].

12    A further set of proceedings was brought by Dr Ogawa against the Department of Education, Science and Training, alleging that the Department failed to investigate the University of Melbourne following her complaint that it did not have appropriate support services, including appropriate arrangements for independent grievance handling and dispute resolution, and that the University had falsely informed the Department that she had ceased studying for her degree. After failing at first instance, Dr Ogawa’s appeal came before Kiefel J on an interlocutory application, and Kiefel J found that there was “no question arising from the unparticularised grounds of appeal” and dismissed the appeal as incompetent: Ogawa v Secretary of the Department of Education, Science and Training [2006] FCA 214 at [6]–[7]. In associated proceedings in the Supreme Court of Queensland, Dr Ogawa sought an injunction under the Copyright Act 1968 (Cth) against Spender J for having made use of passages from emails sent by Dr Ogawa to the Chief Justice. The appeal from Mullins J’s dismissal of that application came before the Full Federal Court, and Dr Ogawa did not appear at the hearing of the appeal, which was dismissed because there was no error in the primary judgment: Ogawa v Spender [2006] FCAFC 68 (Sundberg, Kenny and Gyles JJ).

13    Dr Ogawa also brought proceedings against the Human Rights Commissioner, for having stated in a report that Dr Ogawa was an unlawful non-citizen when in immigration detention and that her detention was lawful. An aspect of that litigation was an application by Dr Ogawa for leave to appeal two decisions in which she was given a pseudonym, and those applications were dismissed as failing to identify any error, being without merit and having no prospect of success: Ogawa v President of the Australian Human Rights Commission [2022] FCAFC 161 (Rares, Perry and Hespe JJ).

14    In the proceedings brought by Dr Ogawa against the Australian Information Commissioner, an application by Dr Ogawa for an order setting aside the dismissal of one of her appeals, was dismissed by Logan J as “utterly hopeless”: Ogawa v Australian Information Commissioner (No 2) [2018] FCA 1305 at [28]. Further, Logan J dismissed Dr Ogawa’s application to amend her Originating Application in a way which his Honour described as “devoid of meaningful content”: Ogawa v Australian Information Commissioner [2022] FCA 1374 at [33]. Similarly, Logan J dismissed a further application to amend the Originating Application on the basis that the proposed grounds of review were cast at such a level of generality as to be “devoid of meaningful content”: Ogawa v Australian Information Commissioner [2022] FCA 1514 at [29].

15    Dr Ogawa also brought proceedings against the Finance Minister concerning decisions relating to a debt owed by Dr Ogawa to the Commonwealth. Having failed at first instance, Dr Ogawa’s appeal was dismissed, with the Full Court observing that the primary judge had found “no merit” in any of the grounds of appeal, a conclusion with which the Full Court agreed: Ogawa v Carter [2021] FCAFC 16 (Logan, Katzmann and Jackson JJ) at [13]. Subsequently, a delegate of the Minister refused Dr Ogawa’s further application for waiver of her indebtedness to the Commonwealth, and an appeal from the dismissal of her application for judicial review was itself dismissed on the basis that it had “no merit”: Ogawa v Finance Minister [2022] FCAFC 145 (Charlesworth, Thawley and Goodman JJ). Subsequently, Dr Ogawa applied for judicial review of a decision of a Registrar of this Court to refuse to accept an interlocutory application and affidavit for filing, which was dismissed when Dr Ogawa failed to appear at the hearing. A later interlocutory application by Dr Ogawa that that order be set aside was dismissed as Dr Ogawa did not offer any submissions as to why the Registrar may have erred in characterising her rejected applications as an abuse of process and frivolous and vexatious, finding also that her substantive and interlocutory applications resulted in “wastage of a disproportionate amount of the Court’s resources”: Ogawa v Stewart (No 3) [2023] FCA 1386 (Rangiah J) at [17].

16    Accordingly, there is abundant evidence to satisfy us that Dr Ogawa has frequently instituted or conducted vexatious proceedings in Australian courts. The waste of time and other resources of the Courts which Dr Ogawa’s conduct has entailed makes it manifestly appropriate that vexatious proceedings orders be made against her. Those orders should involve a stay of proceedings in the Court already instituted by Dr Ogawa, together with an order prohibiting Dr Ogawa from instituting proceedings in the Court, subject in both cases to Dr Ogawa applying for leave. In addition, it is appropriate to impose a modest financial disincentive against pointless litigation by way of a requirement that Dr Ogawa pay $200 to the Registry as security for costs of any application for leave to continue proceedings or for leave to institute proceedings pursuant to s 37AR, which would be refundable to Dr Ogawa in the event that she obtained leave: see Luck v Secretary, Services Australia (Vexatious Proceedings Order) [2025] FCAFC 103 (Rofe, Hespe and Kennett JJ) at [49].

Associate:

Dated:    27 November 2025