FEDERAL COURT OF AUSTRALIA

Ogawa v The University of Melbourne [2004] FCA 1099

STAY APPLICATION – no issue of principle

MEGUMI OGAWA v THE UNIVERSITY OF MELBOURNE

V936 OF 2004

NORTH J

10 AUGUST 2004

MELBOURNE

THE COURT ORDERS THAT:

1.         The application for a stay is rejected. 

2.         The applicant pay the respondent's costs of and incidental to the stay application. 

Note:    Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

REASONS FOR JUDGMENT

1                     Before the Court is an urgent application brought by the applicant, Megumi Ogawa, seeking a stay of a proceeding before Phipps FM.  In that proceeding the respondent, the University of Melbourne, has applied to strike out the applicant's statement of claim, or part of it.  The federal magistrate has already conducted a hearing of the strike out application and all that remains is for his decision to be delivered. 

2                     On 27 July 2004, the federal magistrate made two orders relevant to the present application.  The first order refused an application by the applicant to transfer the proceeding from the Federal Magistrates Court to the Federal Court.  The second order adjourned the hearing of the respondent's strike out motion until 5 August 2004.

3                     On 2 August 2004, the applicant filed a notice of motion seeking leave to appeal from each of the orders made by the Federal Magistrate on 27 July 2004, and sought an order that, in the meantime, the proceeding in the Federal Magistrates Court be stayed.  In order to prevent the federal magistrate from proceeding further, the applicant has brought this urgent application before me as duty judge. 

4                     Insofar as the application for a stay relates to the application for leave to appeal against the refusal by the federal magistrate to transfer the proceedings, I would refuse it, because that order of the federal magistrate is non-appellable: s 39(6) Federal Magistrates’ Act 1999 (Cth).  The application for leave to appeal is therefore doomed to fail and it would be wrong to grant a stay based on the existence of a hopeless application. 

5                     Insofar as the stay application relates to the order that the strike out motion be adjourned, I would also refuse a stay for several reasons.  Firstly, the basis for the applicant’s objection to the federal magistrate continuing with that proceeding is intimately connected with the first order, namely the refusal to transfer the matter to the Federal Court.  To the extent that there is that connection, the reason for refusing a stay in relation to the first order applies equally to the second.  Additionally, as Mr Garner, who appeared for the respondent, argued, the order adjourning the proceeding is a discretionary order on a procedural matter.  The chances of the applicant obtaining leave to appeal against that order are extremely remote.  Prima facie, the court should allow an order subject to an appeal to remain on foot.  In my view, the applicant has pointed to no circumstances which justify an order preventing the federal magistrate from determining the strike out motion.  Finally, the applicant argued in her written submissions that if the proceeding before the federal magistrate were not stayed, her application for leave to appeal against the orders would be rendered nugatory.  This argument is not made out. Even if the federal magistrate proceeds to deliver his decision on the strike out motion, the applicant may apply for leave to appeal and, if the appeal is successful, the order of the federal magistrate will be set aside. 

6                     Consequently, the application for a stay is rejected. 

7                     I have been asked by the respondent to order that the applicant pay indemnity costs.  There is a strong argument in favour of making such an order.  The stay application was entirely without prospect of success.  That fact was drawn to the attention of the applicant by letter dated 6 August 2004.  However, this application forms part of a series of legal actions and applications between the parties.  Indemnity costs have not been ordered in any of them.  The appropriate course is to reject the application for indemnity costs on this occasion, but to emphasize to the applicant that this may well be the last occasion on which such an approach is adopted.  For instance if, as is my view, the application for leave to appeal is similarly utterly hopeless, and the applicant continues to pursue it, and if the respondent makes the same application, then it would be open to the court hearing that application to consider whether indemnity costs should be awarded.  However, that is not a matter for me.  I raise it only to indicate that the respondent's opportunities for pursuing an indemnity costs argument might be open at a later point in the proceedings. In light of the fact that the applicant is self-represented, it seems to me proper on this occasion to make the ordinary order that the applicant pay the respondent's costs of and incidental to today's application. 

Associate:

Dated:              1 September 2004