FEDERAL COURT OF AUSTRALIA

Ogawa v The University of Melbourne (No 2) [2004] FCA 1275

PRACTICE AND PROCEDURE – leave to appeal from interlocutory judgments of Federal Magistrates Court – whether indemnity costs should be awarded against self-represented litigant in the circumstances 

Federal Court of Australia Act 1976 (Cth) ss 23, 24(1)(d), 24(1A), 25(1B) and (2)

Federal Magistrates Act 1999 (Cth) ss 39, 43

Federal Court RulesO 52 r 18, O 80

Federal Magistrates Court Rules 2001 (Cth) Pt 12

Kurniadi v Loh [2003] FMCA 24 considered

Carr v Finance Corp of Australia Ltd (1980) 147 CLR 246 referred to

Cubillo v The Commonwealth of Australia (2001) 183 ALR 249 referred to

Computer Edge Pty Ltd v Apple Computer Inc (1984) 54 ALR 767 referred to

Decor Corporation Pty Ltd v Dart Industries Inc (1991) 33 FCR 397 followed

Colgate-Palmolive Company v Cussons Pty Limited (1993) 46 FCR 225 referred to

Ruddock v Vadarlis (2001) 115 FCR 229 referred to

Henke v Carter [2002] FCA 492 considered

Fountain Selected Meats (Sales) Pty Ltd v International Produce Merchants Pty Ltd (1988) 81 ALR 397 referred to

Commissioner of Taxation v Levick (1999) 168 ALR 388 referred to

Bhagat v Royal and Sun Alliance Life Assurance Australia Ltd [2000] NSWSC 159 cited

Bhagat v Global Custodians Ltd [2002] FCA 223 cited

MEGUMI OGAWA v THE UNIVERSITY OF MELBOURNE

V 936 OF 2004

V 1130 OF 2004

KENNY J

1 OCTOBER 2004

MELBOURNE

THE COURT ORDERS THAT:

1.                  The application for leave to appeal from orders made by the Federal Magistrate on 27 July 2004 be refused.

2.                  The applicant’s motion, notice of which is dated 2 August 2004, be dismissed.

3.                  The applicant pay the respondent’s costs of and incidental to the applicant’s motion, to be taxed and paid on an indemnity basis.

4.                  There be no order as to the costs of the respondent’s motion, notice of which is dated 12 August 2004.

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

THE COURT ORDERS THAT:

1.                  The application for leave to appeal from the orders made by the Federal Magistrate on 3 September 2004 be refused.

2.                  The applicant’s motion, notice of which is dated 9 September 2004, be dismissed.

3.                  The applicant pay the respondent’s costs of and incidental to the applicant’s motion, on a party-party basis.

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

REASONS FOR JUDGMENT

1                     There are three motions before the Court today.  In proceeding V 936/04, by a notice of motion dated 2 August 2004 (“the applicant’s First Motion”), Ms Megumi Ogawa seeks, amongst other things, leave to appeal from orders made by a Federal Magistrate (“the Federal Magistrate”) on 27 July 2004.  Also in proceeding V 936/04, by a notice of motion dated 12 August 2004 (“the University’s motion”), The University of Melbourne (“the University”) seeks, amongst other things, an order that the application for leave to appeal, in so far as it is based upon the Federal Magistrate’s order dismissing the applicant’s application for transfer to this Court, be dismissed as incompetent.  In proceeding V 1130/04, by a notice of motion dated 9 September 2004 (“the applicant’s Second Motion”), Ms Ogawa seeks, amongst other things, leave to appeal from orders made by the Federal Magistrate on 3 September 2004. 

2                     Ms Ogawa is a self-represented litigant who has, from time to time, had the benefit of pro bono counsel.  She presently resides in Brisbane and was represented by pro bono counsel at the hearing today.  Counsel appeared in Brisbane by way of video link.  The University has had legal representation at all material times.

3                     In proceeding V 936/04, Ms Ogawa affirmed an affidavit dated 2 August 2004 in support of the applicant’s First Motion.  She relies on this affidavit in proceeding V 1130/04, as well as on an affidavit affirmed by her on 8 September 2004.  In both proceedings, the University relies on an affidavit sworn by the respondent’s solicitor, Michelle Shannon Power, on 23 September 2004.

4                     Ms Ogawa, who is a Japanese national, has deposed that she graduated from Waseda University Law School in 1991 and that she completed a Master’s Degree in International and Business Law at Yokohama National University in 1999.  According to her affidavits, she arrived in Australia on 24 November 1999, in order to undertake study for a PhD in Law at the University of Queensland.  On 24 November 2001, she transferred to The University of Melbourne.  A subsequent dispute with The University of Melbourne is the subject of the proceeding in the Federal Magistrates Court (“the Proceeding”).  According to Ms Ogawa, in the Proceeding, she alleges misleading or deceptive conduct and unconscionable conduct under the Trade Practices Act 1974 (Cth) and other causes of action “seeking orders that would enable [her] to complete [her] PhD at the University of Melbourne”. 

5                     Ms Ogawa instituted the Proceeding in the Queensland Registry of the Federal Court of Australia on 9 September 2003.  On 25 November 2003, on the University’s motion, a Judge ordered that the proceeding be transferred to the Victoria District Registry of the Court.  I note that the University’s motion also sought an order that Ms Ogawa provide security for the University’s costs of the Proceeding.  The outcome of this aspect of its motion is referred to below.

6                     On 17 December 2003, in Melbourne, a Judge of this Court granted Ms Ogawa leave to file and serve an amended statement of claim; and apparently made an order pursuant to O 80 of the Federal Court Rules (“the Rules”) referring Ms Ogawa to the Registrar of the Federal Court for referral to a legal practitioner on the pro bono panel for legal assistance.  The University reserved its rights in respect of the adequacy of the amended pleading. 

7                     At a subsequent directions hearing on 2 February 2004, another Judge of this Court set a timetable preparing for hearing the University’s motion for security for costs.  The motion was listed for hearing on 19 March 2004 and dismissed on 26 April 2004.  At a subsequent directions hearing on 4 May 2004, a Judge of the Court ordered that the Proceeding be transferred to the Federal Magistrates Court.  The transfer was upon the Court’s own motion.  It was opposed by both parties.

8                     On 26 May 2004, Ms Ogawa filed and served a notice of motion in the Federal Magistrates Court, seeking an order that the Proceeding be transferred back to this Court.  She subsequently withdrew this motion and the University sought its costs.  At a directions hearing on 11 June 2004, the Federal Magistrate made orders including that:

(a)    Ms Ogawa have leave to file and serve a second further amended statement of claim on or before 9 July 2004;

(b)   the University, if it intends to apply to strike out the statement of claim or otherwise to apply for summary dismissal, give notice by letter of the application supported by affidavit if necessary on or before 16 July 2004;

(c)    if notice is given as described, the application be heard on 27 July 2004 at 9.30 am; and

(d)   Ms Ogawa pay the University’s costs of the motion, notice of which was dated 26 May 2004 (“the costs order”).

9                     On 18 June 2004, Ms Ogawa filed a notice of motion in the Federal Court of Australia seeking leave to appeal from the costs order.  This motion has not yet been determined. 

10                  On 9 July 2004, Ms Ogawa filed and served her second further amended statement of claim.  On 12 July 2004, she filed and served a further motion, again seeking an order that the Proceeding be transferred back to this Court.  On 16 July 2004, the University filed and served its motion that her pleading be struck out (“the University’s pleading motion”). 

11                  At the hearing on 27 July 2004, Ms Ogawa was represented by pro bono counsel in respect of her application for transfer.  Pro bono counsel advised the Court that he was not in a position on that day to deal with the University’s pleading motion as he had not been briefed by the Court in respect of that motion.  The Federal Magistrate made the following orders:

(a)    Ms Ogawa’s application to transfer the proceeding to the Federal Court of Australia be dismissed;

(b)   the University’s notice of motion filed 16 July 2004 be adjourned to 5 August 2004 at 9.30 am;

(c)    the University file and serve an outline of argument of its strike out application on or before 4.00 pm on 30 July 2004;

(d)   any written outline or submissions in reply upon which Ms Ogawa wishes to rely be filed and served by 4.00 pm on 4 August 2004;

(e)    the directions hearing be adjourned to 5 August 2004 at 9.30 am; and

(f)     Ms Ogawa pay the University’s taxed costs of 27 July 2004.

12                  As already noted, Ms Ogawa filed the applicant’s First Motion on 2 August 2004.  The applicant’s First Motion is, in substance, an application for leave to appeal from the order of the Federal Magistrate dismissing her application for an order that the proceeding be transferred back to this Court and adjourning the University’s pleading motion to 5 August 2004.  The University opposes the applicant’s First Motion.

13                  On the adjourned hearing in the Federal Magistrates Court on 5 August 2004, Ms Ogawa appeared by telephone link and sought an adjournment of the University’s pleading motion on the basis that she had applied to the Federal Court for a stay of the proceeding.  The Federal Magistrate refused the adjournment, heard the University’s pleading motion, and reserved judgment.

14                  Also on 5 August 2004, Ms Ogawa filed an “Application for an Urgent Order for the Stay of the Proceeding in the Federal Magistrates Court” (“the Urgent Application”).  This Urgent Application was supported by an unsworn “Statement of Megumi Ogawa Supporting my Application For An Urgent Order for the Stay of the Proceeding in the Federal Magistrates Court”.  On 10 August 2004, a Judge of the Federal Court dismissed the Urgent Application and ordered that Ms Ogawa pay the University’s costs of and incidental to it.  His Honour refused the University’s application for costs on an indemnity basis.  On 7 September 2004, Ms Ogawa filed an application for special leave to appeal from the decision of this Court of 10 August 2004.  This application is yet to be heard.

15                  Also on 10 August 2004, Ms Ogawa filed an “urgent” notice of motion seeking a stay of the Proceeding until pro bono counsel could be appointed for her in Queensland.  By letter dated 13 August 2004, the Court refused to accept this application. 

16                  On 12 August 2004, the University filed and served the University’s motion, by which the University challenges the competency of the appeal referred to in the applicant’s First Motion. 

17                  By an email dated 14 August 2004, Ms Ogawa sought the University’s consent to a stay of the Proceeding.  By letter dated 17 August 2004, the University notified her that it did not consent to the stay. 

18                  On 3 September 2004, the Federal Magistrate delivered judgment in relation to the University’s pleading motion.  The University was largely successful in its application.  On this day, his Honour ordered that paragraphs 3(a), 3A, 23-26 (both inclusive), 27 and 28, 29-34 (both inclusive) and the references to paragraph 3A in paragraphs 5, 6, 7 and 9 of the statement of claim be struck out; and that Ms Ogawa have leave to file and serve a third further amended statement of claim on or before 1 October 2004. 

19                  On 8 September 2004, Ms Ogawa filed the applicant’s Second Motion.  This motion seeks leave to appeal from the Federal Magistrates’ decision on 3 September 2004 (and, presumably, would seek to appeal from that decision in the event leave were granted).  Also by this motion, Ms Ogawa seeks a stay of the Proceeding pending the determination of the appeal. 

20                  The University opposes the applicant’s Second Motion. 

the parties’ submissions

(a)               The Applicant’s First Motion and the University’s Motion

21                  The parties’ submissions on these two motions are inextricably bound together.  The University submitted that, since the Federal Magistrate had dismissed Ms Ogawa’s transfer application under s 39(1) of the Federal Magistrates Act 1999 (Cth) (“the Act”), s 39(6) of the Act precluded the possibility of an appeal by Ms Ogawa to this Court.  Accordingly, so the University contended, there could be no competent appeal and Ms Ogawa’s application for leave to appeal must be refused.

22                  In a written outline of argument, pro bono counsel for Ms Ogawa acknowledges that “the respondent is correct in asserting that the applicant’s First Motion is incompetent”, but notes that Ms Ogawa has filed a special leave application against the judgment of this Court on 10 August 2004, in substance asserting that s 39(6) of the Act has been misconstrued.  Her counsel also submitted “that [w]hilst an appeal might not lie from a decision of the Federal Magistrate made pursuant to s 39(1) of [the Act], judicial review could be sought of that decision if jurisdictional error could be demonstrated”; and he submitted that, arguably, the decision of the Magistrate does reveal such error, because his Honour appeared to be of the view that Ms Ogawa was obliged to show a change of circumstance to succeed on her application to transfer the matter to the Federal Court; and may not have taken account of the fact that the University did not oppose her transfer application. 

23                  In addition, Ms Ogawa maintains that the Federal Magistrates Court is an inappropriate forum for hearing her dispute with the University.  In her affidavit of 2 August 2004, Ms Ogawa stated that she had decided to appeal from the orders of the Federal Magistrate made on 27 July 2004 because she believed that “if the Respondent’s pleading motion is to be heard, it should be heard in the Federal Court, and since my notice of motion for the transfer of the proceeding was denied, the Respondent’s pleading motion should have been summarily dismissed”.  Ms Ogawa also claimed that, if the University’s pleading motion was to be heard in the Federal Magistrates Court, then “it will give rise to a problem of a double standard for justice available in this country’s judicial system”.  In substance, she claimed that the Federal Court of Australia and the Federal Magistrates Court deliver different standards of justice and that it is only by transfer to the Federal Court of Australia that her case will receive the standard of justice that it deserves. 

(b)        The Applicant’s Second Motion

24                  In her 2 August 2004 affidavit, under the heading “Errors of the Respondent and the Federal Magistrate”, Ms Ogawa said that:

I believe that the Respondent and the Federal Magistrate erred in law in that the Respondent applied for a pleading motion in the Federal Magistrates Court and the Federal Magistrate did not summarily dismiss the Respondent’s pleading motion but adjourned the hearing for the motion.

I believe that the Federal Magistrate should not have allowed the pleading motion to be heard [in] the Federal Magistrates Court where pleadings are not required.

I also believe that the Federal Magistrate should have dismissed the pleading motion since the relief sought and the facts that I rely on have been provided to the Respondent in my pleadings and the Respondent has understood the facts alleged in my pleadings.  This is evident for the following reasons. 

First, the Respondent filed its defence corresponding to my Further Amended Statement of Claim.  Paragraphs 1 to 15 of my Second Further Amended Statement of Claim are basically the same as my Further Amended Statement of Claim.  If the Respondent could not understand what facts had been alleged in these paragraphs, the Respondent would not have filed its defence. 

Secondly, the Respondent did not challenge paragraphs 16 to 22 of my Second Further Amended Statement of Claim.  If the Respondent could not understand what facts had been alleged in these paragraphs, the Respondent must have [sic] challenged these paragraphs in its pleading motion. 

Thirdly, paragraphs 23 to the end of my Second Further Amended Statement of Claim are alternative causes of action, the facts alleged in which are the same of those in paragraphs 1 to 22, that were understood by the Respondent.

25                  In her affidavit of 8 September 2004, Ms Ogawa also referred to the decision of Kurniadi v Loh [2003] FMCA 24 (“Kurniadi”) in support of the proposition that the purpose of pleadings in the Federal Magistrates Court is different from that in this Court.  Referring to this decision, she also stated that “[c]onsideration should be given to the fact that the proceeding had been transferred from the Federal Court”; and “to the fact that the Applicant has not been granted pro bono assistance for the pleading motion notwithstanding that Weinberg J on 17 December 2004 [sic] directed that the Applicant be granted pro bono assistance up to and including trial and Marshall J promised to provide the Applicant with a pro bono counsel even in the Federal Magistrates Court”.  She added that she believed that she would suffer injustice if she were not granted leave to appeal.

26                  At the hearing this afternoon, counsel for Ms Ogawa further submitted that “[w]hilst a strict approach to pleading might well justify most of the orders made by the Magistrate on 3 September 2004, that approach ignores the broad thrust of the [Act] and Rules and, in particular, the fact that generally speaking there are no pleadings in the Federal Magistrates Court proceedings”.  He submitted that, although Ms Ogawa’s pleading lacks precision in a number of aspects, the broad thrust of her complaint is apparent from the document and that it seems unlikely that she will be able to improve on her pleading since she is unlikely to obtain legal assistance in preparing an amended pleading.  This, so counsel submitted, would also be the cause of substantial injustice if leave to appeal was refused. 

consideration

(a)        Leave applications

27                  Section 24(1)(d) of the Federal Court of Australia Act 1976 (Cth) confers jurisdiction on the Federal Court of Australia to hear and determine an appeal from a judgment of the Federal Magistrates Court.  An appeal from an interlocutory judgment of the Federal Magistrates Court cannot be brought, however, except by leave: see s 24(1A).  An application for leave may be heard and determined by a single Judge: see ss 24(1A), 25(1B) and (2).  The orders that are the subject of Ms Ogawa’s motions are plainly interlocutory since they do not finally determine the substantive rights of the parties: see Cubillo v The Commonwealth of Australia (2001) 183 ALR 249 at 297 per Sackville, Weinberg and Hely JJ; Computer Edge Pty Ltd v Apple Computer Inc (1984) 54 ALR 767 at 768 Gibbs CJ, Murphy and Wilson JJ; and Carr v Finance Corp of Australia Ltd (1980) 147 CLR 246 at 248 per Gibbs CJ and 253-254 per Mason J.  Accordingly, Ms Ogawa cannot appeal from the orders made by the Federal Magistrate on 27 July 2004 and 3 September 2004 unless she is granted leave to do so.

28                  Generally speaking, an applicant for leave to appeal must satisfy the Court that: (1) in all the circumstances, the impugned decision is attended by sufficient doubt to warrant its being reconsidered by a Full Court; and (2) substantial injustice will result if leave were refused supposing the decision to be wrong: see Decor Corporation Pty Ltd v Dart Industries Inc (1991) 33 FCR 397 at 398 per Sheppard, Burchett and Heerey JJ.  As their Honours in that case said at 400:

When the court comes to exercise its discretion on a particular application, an important distinction to be observed is that between the common interlocutory decision on a point of practice – concerning which the High Court has given (see Adam P Brown Male Fashions Pty Ltd v Philip Morris Inc (1981)148 CLR 170 at 177) a strong warning that ‘a tight rein’ should be kept on appeals – and an interlocutory decision determining a substantive right – where leave will more readily be granted.

The orders at issue in the present case are in the former category.

29                  Whilst noting Ms Ogawa’s special leave application in the High Court of Australia, I accept that, as the University submits, an appeal from a decision of the Federal Magistrates Court in relation to the transfer of a proceeding would be incompetent.  This follows from s 39(6) of the Act.  Subsections 39(1) and (6) of the Act provide as follows:

(1)   If a proceeding is pending in the Federal Magistrates Court, the Federal Magistrates Court may, by order, transfer the proceeding from the Federal Magistrates Court to the Federal Court or the Family Court.

…

(6)   An appeal does not lie from a decision of the Federal Magistrates Court in relation to the transfer of a proceeding under subsection (1).

30                  Since any appeal from a decision of a Federal Magistrate in relation to the transfer of a proceeding would be incompetent, any grant of leave with respect to such an appeal would be futile.  Ms Ogawa’s application for leave to appeal must be refused in so far as it seeks leave to appeal against the order of the Federal Magistrate dismissing her transfer application.

31                  Whilst counsel for Ms Ogawa made submissions concerning possible jurisdictional error, there is no application for judicial review or similar before the Court that might raise such a ground.  As the respondent’s counsel noted, his Honour made his decision concerning transfer after considering Ms Ogawa’s submissions, s 39 of the Act and r 8.02 of the Federal Magistrates Court Rules 2001 (Cth). 

32                  In so far as any application for leave to appeal in the applicant’s First Motion concerns the Federal Magistrate’s decision to adjourn the hearing of the University’s pleading motion until 5 August 2004, the application cannot meet the criteria for a grant of leave referred to in par [28] above.  The Federal Magistrate adjourned the University’s pleading motion on 2 August 2004 because Ms Ogawa’s pro bono counsel was not in a position to address the Court on the motion on that day.  His Honour evidently considered that, in this circumstance, Ms Ogawa should not be required to meet the University’s pleading motion in an unprepared state, but that, in the interests of fairness to her, she should be given some further time.  There is no other order made on 27 July 2004 that could support a successful application for leave to appeal.

33                  For these reasons, I would dismiss the applicant’s First Motion. 

34                  As already noted, by the applicant’s Second Motion, Ms Ogawa also seeks leave to appeal from the Federal Magistrate’s orders of 3 September 2004, which are set out at par [18] above.  Having carefully read his Honour’s reasons for judgment in Ogawa v The University of Melbourne (No 3) [2004] FMCA 536, I am not persuaded that his Honour’s decision was attended by sufficient doubt as to warrant its reconsideration by a Full Court.  His Honour’s reasons clearly explain the deficiencies in Ms Ogawa’s pleading.  Although a self-represented litigant, it does not seem to me that Ms Ogawa is incapable of understanding his Honour’s clear statement of the deficiencies in her pleading.  His Honour’s reasons do not disclose any basis for a grant of leave.  In any event, given the guidance by his Honour in his reasons for judgment, I do not accept that Ms Ogawa would suffer any substantial injustice if leave were refused. 

35                  As already noted, Ms Ogawa relied on the decision in Kurniadi.  This case, which is a decision of theFederal Magistrates Court, contains the following observation, at [38]:

It is important to note that in the Federal Magistrates Court pleadings are not a matter allowed as of right.  The Court does not follow the practice and procedure of superior Courts in relation to pleadings generally.  In trade practices matters whilst I have allowed pleadings in many cases it does not and should not mean that the purpose of those pleadings is anything other than providing an opportunity for the parties to at least make some assessment of the case and that those pleadings disclose the case.  It is clear … that there was at least sufficient to enable the Court to determine the general nature of the claim and the specific complaints of the applicants.

36                  I do not detect any real conflict between the approach adopted by the Federal Magistrate in Ms Ogawa’s case and the approach referred to in this passage.  As this passage shows, the decision in Kurniadi acknowledges that pleadings may be appropriate in some, though not all, trade practices cases in the Federal Magistrates Court.  In Ms Ogawa’s case, the Federal Magistrate indicated that, although pleadings were not generally required in the Federal Magistrates Court, he considered pleadings appropriate, particularly having regard to the procedural history of the Proceeding.  Paragraph [7] of his Honour’s reasons for judgment reflects this.  It reads:

The application was commenced in the Federal Court by the filing of an application and statement of claim.  The applicant’s statement of claim was filed pursuant to O 4 r 6 of the Federal Court rules.  The second further amended statement of claim, the current statement of claim, was filed pursuant to my order of 11 June 2004.  The Federal Magistrates Court Rules 2001 made no provision for pleadings.  Section 43(2)(b) of the Federal Magistrates’ Act 1999 (Cth) permits the Court to apply the Federal Court rules where the Federal Magistrates Court rules are insufficient.  The Federal Court rules contain provisions for pleadings.  Given that the current statement of claim was filed pursuant to the order I made, the application, as it now is in the Federal Magistrates Court, is proceeding by way of pleadings.

37                  It is, moreover, apparent from the Federal Magistrate’s reasons, read as a whole, that, because of the deficiencies in Ms Ogawa’s pleading (referred to in his reasons for judgment), his Honour considered that Ms Ogawa’s statement of claim, as it then stood, did not state her case with sufficient clarity to allow the University and the Court to determine the nature of her claim and her specific complaints.

38                  For these reasons, I would dismiss the applicant’s Second Motion.  Ms Ogawa also referred to a number of matters concerning the availability of pro bono counsel.  I discuss these matters briefly below.

 (b)       Costs

39                  The University has made an application for costs on an indemnity basis and, in the alternative, on a party-party basis. 

40                  The power of the Court to make an order for costs derives from s 43 of the Federal Court of Australia Act 1976 (Cth).  Costs ordinarily follow the event and are awarded on a party-party basis, unless there are particular or special circumstances which warrant the Court departing from this practice and making some other order:  see Colgate-Palmolive Company v Cussons Pty Limited (1993) 46 FCR 225 (“Colgate-Palmolive”) at 232-233 per Sheppard J and Ruddock v Vadarlis (2001) 115 FCR 229 at 234 per Black CJ and French J. 

41                  Whilst the Court has power to make an order for costs on an indemnity basis, the question is whether the Court should so exercise its discretion in the particular case.  In Colgate-Palmolive, at 232-234, Sheppard J set out some relevant principles concerning indemnity costs, including some of the circumstances in which courts have ordered that costs be paid on an indemnity basis.  His Honour’s examples include the undue prolongation of a case by groundless contentions.  In Henke v Carter [2002] FCA 492 at [22], Goldberg J exercised his discretion to make an order for costs on an indemnity basis because he considered that “the application by notice of motion was wholly untenable and misconceived”: see also Fountain Selected Meats (Sales) Pty Ltd v International Produce Merchants Pty Ltd (1988) 81 ALR 397 at 401 per Woodward J and Commissioner of Taxation v Levick (1999) 168 ALR 388 at 390 per Hill J.

42                  Generally speaking, courts are more reluctant to make orders for indemnity costs against litigants in person than against legally represented litigants, although, in an appropriate case, they will make such an order.  In Bhagat v Royal and Sun Alliance Life Assurance Australia Ltd [2000] NSWSC 159 at [13] Hodgson CJ in Eq observed:

… I accept that a court does have to make allowances for the position of litigants in person, and to try to ensure that such a litigant does not lose out because of lack of expertise; although there is a limit to what the Court can do in that regard, while still remaining an impartial determinant of a dispute.  The Court may in those circumstances refrain from making orders against litigants in person for conduct that might be considered as justifying orders for costs against represented litigants.  By the same token, litigants in person can cause great hardship and expense to other parties, through making allegations and claims that lawyers would recognise as allegations and claims that could not reasonably or even properly be made, and through making proceedings much longer and much more expensive than they would otherwise be, by not focusing accurately on the real issues in the case.  Conduct of that nature by legally represented parties would often lead to orders for indemnity costs.  Litigants in person may escape the consequence of indemnity costs, but I do not think that the circumstance that a party is a litigant in person is a ground for displacing the ordinary result that costs follow the event. 

As a Full Court of this Court (constituted by O’Loughlin, Whitlam and Marshall JJ) observed in Bhagat v Global Custodians Ltd [2002] FCA 223 at [57], the Chief Judge did not say that litigants in person always escape the consequence of indemnity costs.  Indeed, the Full Court in that case declined (at [60]) to interfere with the decision of the trial Judge to order indemnity costs against the unrepresented litigant.

43                  As I observed at the hearing, the University’s case for indemnity costs is strongest in relation to the applicant’s First Motion.  Both in the course of the hearing in the Federal Magistrates Court on 5 August 2004, and in his reasons for judgment delivered that day in connection with Ms Ogawa’s adjournment application, the Federal Magistrate very clearly told Ms Ogawa that she was unable to appeal from his decision dismissing her application to transfer the Proceeding to the Federal Court and he drew her attention specifically to s 39(6) of the Act: see transcript at p 4 and Megumi Ogawa v University of Melbourne [2004] FMCA 492 at [5].  Further, during the hearing of Ms Ogawa’s stay application in the Federal Court, on 10 August 2004, a Judge of this Court also explained to her that the Federal Magistrate’s decision in relation to transfer could not be appealed: see transcript at p 7.  His Honour reiterated this in his reasons for judgment on the stay application: see Ogawa v the University of Melbourne [2004] FCA 1099 at [4]. 

44                  This is not the first application for indemnity costs that the University has made against Ms Ogawa.  After foreshadowing such an application by a letter dated 6 August 2004, the University made an indemnity costs application in this Court on 10 August 2004.  Although refusing the application, his Honour observed, at [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.

45                  By the University’s motion, which was heard today, the University gave Ms Ogawa clear notice that it challenged the competency of any appeal from the Federal Magistrate’s decision in relation to transfer and that it intended again to seek indemnity costs.  By a letter from its solicitors dated 23 September 2004, it reiterated that s 39(6) of the Act precluded any appeal against this decision and it would seek indemnity costs on the applicant’s First Motion (as well as on the applicant’s Second Motion and the University’s Motion: see below). 

46                  Whilst Ms Ogawa is a Japanese national, she has shown sufficient facility in the English language to satisfy me that she was capable of fully understanding the statements made to her in the Federal Magistrates Court and in this Court concerning the untenability of an appeal from a decision concerning transfer, as well as the University’s letters to her.  In the circumstances, there can be no doubt that Ms Ogawa should have understood that an appeal from a decision in relation to transfer does not lie from the Federal Magistrates Court to this Court.  I infer from Ms Ogawa’s perseverance in her application for leave to appeal against this decision that she has simply refused to accept this position; and, indeed, as her counsel noted, she has filed a special leave application in the High Court, on the ground that the Court has misconstrued s 39 of the Act.  I consider, however, that her application for leave to appeal from the transfer decision and from any other decision made by the Federal Magistrate on 27 July 2004 was, in the circumstances, misconceived and her supposed grounds, untenable.  In these circumstances, I would order that Ms Ogawa pay the University’s costs of and incidental to the applicant’s First Motion, to be taxed and paid on an indemnity basis.  I would make no order as to the payment of the costs of the University’s motion.  Since no appeal was yet on foot, I am not persuaded that the University’s motion was necessary in the circumstances of the case: compare the Rules, O 52, r 18. 

47                  I would also order that Ms Ogawa pay the University’ costs of and incidental to the applicant’s Second Motion, such costs to be payable on a party-party basis.  Although the University’s solicitors informed Ms Ogawa, by their letter of 23 September 2004, that they considered that her application for leave to appeal from the Federal Magistrate’s orders of 3 September 2004 was unlikely to succeed, I accept that, from her point of view, she was doing no more than exercising a right to challenge a decision that she considered to be erroneous and that she had no particular reason to accept the University’s evaluation of her prospects of success.  I would not grant the University indemnity costs on the applicant’s Second Motion. 

48                  It is important, however, that Ms Ogawa should be given to understand that unreasonable persistence in applications that are devoid of merit prolongs the Proceeding and unnecessarily increases costs.  Further, such conduct might place her again in the position where an order for indemnity costs is made against her. 

pro bono counsel

49                  As already noted, on these applications, Ms Ogawa has had the benefit of pro bono counsel.  The Court acknowledges the very great service rendered to the Court and to litigants in person by members of the profession who agree to act without fee as counsel (or solicitor) in the presentation of argument or in the preparation of a case.  Such assistance is not, however, available as of right. 

50                  At the heart of the present interlocutory proceedings is, it seems, Ms Ogawa’s concern about the availability of pro bono counsel in the Federal Magistrates Court.  By a letter dated 13 August 2004, the Registrar of the Federal Magistrates Court advised Ms Ogawa that:

The appropriate way to seek the appointment of pro bono counsel is to make a request under Part 12 of the Rules and your request will then be referred to a Magistrate for assessment in accordance with Part 12.

This Court is informed that the procedures in the Federal Magistrates Court for pro bono referrals pursuant to Pt 12 of the Federal Magistrate Rules 2001 (Cth) mirror those in this Court under O 80 of the Rules, although the Federal Magistrates Court does not have formal arrangements with the Queensland Bar.  As noted, in the Federal Magistrates Court, Ms Ogawa has already had the benefit of pro bono counsel in Melbourne.  Without commenting on her eligibility to receive further assistance, there is nothing to disclose that it is not open to her to make another application under Pt 12 of the Federal Magistrates Court Rules 2001 (Cth) for the pro bono assistance of counsel in Melbourne, including assistance with the pleading amendments that are necessitated by the Federal Magistrates’ reasons for judgment of 3 September 2004. 

51                  Although not part of my reasons delivered orally on Friday, 1 October 2004, for the sake of completeness, I also note that, during the hearing on 1 October 2004, counsel for Ms Ogawa arranged to fax a letter from the Federal Magistrates Court dated 16 August 2003 to my Chambers prior to the oral delivery of judgment the same day.  The letter, in which the Registrar of that Court refused the applicant’s request for a referral for pro bono counsel, was received by facsimile transmission in my Chambers on the following Monday, 4 October 2004.  The letter does not have any bearing upon the motions that were before me, and does not disclose any reason for the refusal of the applicant’s request.  There is, therefore, still no material before this Court that appears to preclude the applicant from applying again for the assistance of pro bono counsel in that Court.

disposition

52                  Accordingly, for the reasons stated:

In proceeding V 936/04:

1.         The application for leave to appeal from orders made by the Federal Magistrate on 27 July 2004 is refused.

2.         The applicant’s motion, notice of which is dated 2 August 2004, is dismissed.

3.                  The applicant pay the respondent’s costs of and incidental to the applicant’s motion, to be taxed and paid on an indemnity basis.

4.                  There be no order as to the costs of the respondent’s motion, notice of which is dated 12 August 2004.

In proceeding V 1130/04:

1.         The application for leave to appeal from the orders made by the Federal Magistrate on 3 September 2004 is refused.

2.         The applicant’s motion, notice of which is dated 9 September 2004, is dismissed.

3.         The applicant pay the respondent’s costs of and incidental to the applicant’s motion, on a party-party basis.

Since leave to appeal is refused, there is no occasion to consider any application for a stay pending the hearing and determination of any appeal.

Associate:

Dated:              1 October 2004