FEDERAL COURT OF AUSTRALIA

Ogawa v University of Melbourne [2005] FCA 1150

PRACTICE AND PROCEDURE – motions seeking extension of time and leave to appeal – proposed appeals against interlocutory orders reserving costs and adjourning a directions hearing – no adverse impact by either order – no prospect of success on appeal – motions dismissed – indemnity costs awarded

MEGUMI OGAWA v THE UNIVERSITY OF MELBOURNE

VID 835 OF 2005

FRENCH J

12 AUGUST 2005

MELBOURNE

THE COURT ORDERS THAT:

1.         The motions filed on 25 July 2005 and 3 August 2005 be dismissed.

2.         The applicant pay the respondent’s costs of the motions on an indemnity basis.

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

REASONS FOR JUDGMENT

1                     The two motions which are returnable before the Court today are brought by Megumi Ogawa in proceedings against the University of Melbourne (the University).  The background to these motions is convoluted.  In outline, it appears that Ms Ogawa, who is a citizen of Japan and a holder of a student visa, came to Australia in 1999 to study for a PhD in law at the University of Queensland.    Her enrolment as a PhD student was evidentlytransferred to the University.  For reasons which are not material here she did not complete the PhD and the University refused to extend the time in which she was allowed to complete it.

2                     An application for an Australian Post-Doctorate Fellowship at the University was unsuccessful.  In September 2003 Ms Ogawa commenced proceedings in the Federal Court, in its Queensland Registry, seeking orders against the University, claiming, among other things, that it had contravened s 52 of the Trade Practices Act 1974 (Cth).  The matter seems to have taken a long time in interlocutory processes, but eventually, in November 2003 the University filed a motion seeking an order that Ms Ogawa's claim against it be transferred to the Victorian District Registry and seeking orders that she provide security for the costs of the proceedings. 

3                     Kiefel J ordered that the proceeding be transferred to the Victorian District Registry and adjourned to the Victorian Registry that part of the University's motion in which it claimed security for costs.  That part of the motion came before Marshall J on 19 March 2004.  For reasons which he published on 26 April 2004, Marshall J dismissed the University's application for security for costs and reserved the costs of that application.  That was not an unusual order to be made where security for costs is either granted or refused, because it is sometimes thought appropriate for the question of the costs of such motions be stood over until the overall outcome of the case is seen. 

4                     That was an order made on 26 April 2004.  The first of the two motions with which I am dealing today was filed on 25 July 2005.  By that motion Ms Ogawa seeks an extension of time to seek leave to appeal and seeks leave to appeal from Marshall J’s order of 26 April 2005 insofar as it reserved the costs of the security motion.  As I have already indicated to Ms Ogawa in oral exchange when she was addressing that motion, I am not prepared to either extend time or grant leave to appeal.  The order made by Marshall J was in its own terms neutral in relation to the issue of costs.  A substantial amount of time has passed since it was made.  There is absolutely no benefit to be gained by extending time.  Any appeal would be hopeless and the motion will be dismissed. 

5                     Following Marshall J’s order of 26 April 2004, the matter went to a further directions hearing on 4 May 2004.  At that time, as his Honour had foreshadowed in his orders of 26 April 2004, the parties were heard on whether the matter would be transferred to the Federal Magistrates Court.  Marshall J made an order that the proceedings be so transferred.  He evidently did so for reasons of cost and convenience, and also because of the cost of video-link arrangements, which are ordinarily funded by the parties in the Federal Court, a policy which apparently does not exist in the Federal Magistrates Court.

6                     In the course of interlocutory processes in the Federal Magistrates Court, Phipps FM made an order on 19 May 2005 in Melbourne that the matter be adjourned for a directions hearing on 26 May 2005 and he made an order reserving costs of the adjourned directions hearing.  It is his interlocutory order that is the subject of the second notice of motion which was filed in this Court on 3 August 2005.  By that notice of motion Ms Ogawa seeks the following orders:

‘1.        That pursuant to O 52 r 10(2) of the Federal Court Rule, the Applicant have leave to appeal from the orders of the Federal Magistrate Phipps dated 19 May 2005 at Melbourne.

2.         That the time of the filing of this notice of motion be extended.

3.         That the Applicant be granted pro bono assistance under O 80 of the Rules of the Court.

4.         That in the event that pro bono assistance is not granted to the Applicant, the hearing of this matter be undertaken by videolink to Queensland and the Court provide the services of an interpreter to interpret to the applicant in Japanese the conduct of the proceedings and to translate from Japanese into English any oral submissions which the applicant may wish to make in the course of the proceeding.

5.         Such further or other relief as this Honourable Court thinks fit.

6.         Costs.’

7                     Ms Ogawa filed an affidavit in support of that motion.  I will endeavour to set out its essential elements.  She said in the affidavit that she was born in Japan and sent to school in Japan and the language used both at home and school was Japanese.  She had neither been trained for, nor even interested in, legal practice either in Japan, Australia or elsewhere.  She cannot work as quickly as Australian lawyers.  She is a litigant who has previously been considered as requiring pro bono assistance but currently does not have such assistance.

8                     Ms Ogawa claimed that as a direct result of the conduct of the University, which is the subject of the proceeding from which the motion stems, she became impecunious. Marshall J so found in his reasons for decision in the security for costs application.  She was unable to take legal advice or  to pay for an interpreter or for certain evidentiary documents.  As a direct result of her time at the University she has had a visa problem.  The visa problem is not material to this motion.  It is sufficient to say that proceedings are still pending in the Migration Review Tribunal (MRT) in relation to her visa.

9                     Ms Ogawa said that on 24 November 1999 she arrived in Australia as a Rotary Ambassadorial Scholar to undertake research in copyright law for a PhD at the University of Queensland.  She said that she had published a number of articles in journals in Australia and Japan during her first two years of study, won an award and a research grant from a Japanese foundation.  In November 2001 she transferred to the University which provided her with a scholarship for living expenses and another scholarship for fee remission.  However, she had a dispute with the University of which she complains in the substantive proceedings.

10                  She had tried to resolve that dispute but that attempt was unsuccessful.  She referred in her affidavit to the institution of the substantive proceedings on 9 September 2003 in which she had alleged misleading or deceptive conduct and unconscionable conduct on behalf of the University in contravention of the Trade Practices Act, breach of contract and other causes of action under the approved jurisdiction of the Court.  She was in effect seeking orders enabling her to complete the PhD.  The proceeding was transferred from the Queensland Registry to the Victorian Registry asmentioned in par 16 of her affidavitdated3 August 2005:

‘ ... currently in the Federal Magistrates Court as the matter of MZ463 of 2004 pending hearing.’

11                  She submitted an application and a statement of claim in a fresh proceeding, QUD245 of 2004, raising substantially the same claim as in MZ463.  As expressed in her affidavit, the reason for this was:

‘… I believed that the matters could not be heard in the Federal Magistrates Court and the Federal Magistrates Court did not have power to order the relief sought.’

12                  Ms Ogawa said that on 18 March 2005 the University had filed a notice of motion  seeking summary dismissal of her application in the Federal Court and an order striking out the statement of claim because of the proceedings in the transferred matter pending in the Federal Magistrates Court.  On 26 April 2005 the University's notion of motion in the Federal Court proceedings was heard in part by Ryan J, who ordered that Ms Ogawa file submissions by 26 May 2005.   The applicant says that at the time of writing her affidaviton 2 August 2005, the University's motion of 18 March  2005 in the Federal Court proceedings was pending in this Court.  Ryan J was considering, she said, whether the Federal Court proceedings should continue rather than the proceedings in the Federal Magistrates Court. 

13                  Ms Ogawa set out the circumstances of the order made on 19 May 2005 by Phipps FMof which she now complains.  She said that on 10 May 2005 the University sent an email to her notifying her that it had requested Phipps FM to list a directions hearing on 19 May 2005.  When she received the email she said she was preparing submissions in accordance with the order of Ryan J in the Federal Court proceedings.  On 12 May 2005 she said she sent an email to the University, a copy of which was sent to the Federal Magistrate’s Associate, informing them that the directions hearing of 19 May 2005 was unnecessary in the light of the Federal Court proceedings in QUD245 of 2004.  She said that from 10 to 13 May 2005 she sent a number of emails to the Registrar of the Federal Magistrates Court and the relevant Associate and requested them not to list the directions hearing on 19 May 2005 since she could not deal concurrently with the preparation of submissions in the pending Federal Court proceedings and preparation for a directions hearing in the Federal Magistrates Court.

14                  On 13 May 2005 she received an email, evidently from Phipp FM’s Associate, in which she was advised that her request had not been brought to the attention of Phipps FM.  Ms Ogawa then sought to change the date of the proposed directions hearing.  It was explained to her, evidently by someone in the Federal Magistrates Court, that although a directions hearing had been listed on 19 May 2005 the listing did not have much meaning as it was not based on an order. When she objected to the listing of 19 May 2005, she was informed that a notice of listing would be sent to her in due course.

15                  Ms Ogawa said she did not receive any letter, email or telephone call from the Federal Magistrates Court concerning the listing before 19 May 2005.  On that basis she believed her objection had been taken into account and that a notice of listing on a day some time after judgment on the strike out application in the Federal Court proceedings would be delivered to her in due course.  She checked the law list of 19 May 2005 in the Federal Magistrates Court to make sure that there was no listing on that date of the matter in MZ463 of 2004.  No proceeding was listed in that matter.  On 19 May 2005 however she received a telephone call from an officer of the Federal Magistrates Court, asking whether she agreed to have no directions hearing on that day.  She informed the officer that she knew there was no directions hearing on that day as she had checked the law list.  She then said that on 23 May 2005 Registrar Mussett of the Federal Magistrates Court informed her that there had been no directions hearing because no advice of listing was sent to the parties.  She said the Registrar informed her that the Federal Magistrate intended to set the directions hearing down for another date and she would be advised of that date.  Registrar Mussett later, on 3 June 2005, confirmed that the information referred to in the preceding paragraph was provided by the chambers of Phipps FM.

16                  Ms Ogawasaid that on 24 May 2005 she received an email from Registrar Byrne of the Federal Magistrates Court informing her that there had been no directions hearing on 19 May 2005 and on 27 May 2005 she received a letter from Registrar Mussett at the Federal Magistrates Court including orders made at a directions hearing on 19 and 26 May 2005.  She said she was very surprised that there was a sealed order of the directions hearing on 19 May 2005 which she had been informed did not exist.  She said, further in her affidavit, that in June 2005 she searched the website, conducted an e-search and found a directions hearing had been listed on 19 May 2005.  She said she was shocked because there had been no directions hearing of 19 May 2005 listed until on or about 25 May 2005 when she last checked the listings.

17                  Ms Ogawathen said that on 3 June 2005 she received an email from Registrar Reynolds and subsequently from Registrar Wood, informing her that the listing of 19 May 2005 had been entered retrospectively on 26 May 2005.  In June 2005 she received a further email from Registrar Mussett confirming there had been no directions hearing on 19 May 2005 and that there was no transcript of any such directions hearing.  What subsequently happened, as appeared from the record, is that on 26 May 2005 Phipps FMmade orders requiring her to file and serve affidavits of evidence in the proceedings in the Federal Magistrates Court by 23 June 2005 and the University to file and serve affidavits of evidence by 28 July 2005.  If Ms Ogawa did not comply with par 1 of those orders the University was to be at liberty to apply for the fixing of a date for the hearing of any interlocutory application.  There was liberty to apply generally. 

18                  Subsequently the matter came before Phipps FMon 8 August 2005, which was a date fixed for the final hearing of the application, which as he said in his reasons had been commenced in the Federal Court and then transferred to the Federal Magistrates Court.  Ms Ogawa did not appear at that hearing.  The University submitted to the Magistrate that he should proceed with the hearing generally, pursuant to r 13.03AD of the Federal Magistrates Court Rules 2001.  He did so and dismissed the application, adjourning the matter to 18 August 2005 for the question of costs to be determined.

19                  Ms Ogawa has informed me that she did not attend at the hearing of 8 August 2005 because in her view the Federal Magistrates Court did not have authority to deal with the matter as the matter was pending in the Federal Court of Australia, that being a reference to the proceedings to which I have already referred which have been separately commenced in the Federal Court.

20                  The motion which is before me relates solely to the order made on 19 May 2005, which simply adjourned the directions hearing, which apparently had previously been scheduled for that day and reserved costs.  The formal order was:

‘1.        The matter be adjourned for a directions hearing on 26^th  May 2005 at 9.15 am.

2.         Reserve costs.’

21                  Ms Ogawa seeks to make a point that there was no directions hearing and asked rhetorically how such an order could have been made.  It is clear that the Magistrate has simply made an order adjourning the matter, which evidently had originally been scheduled for 19 May 2005, to 26 May 2005.  Now, it may be that he made the order in chambers as a way of listing the matter for 26 May 2005.  There can be no basis upon which it can be said that that order had any adverse impact upon Ms Ogawa.  It was simply an order adjourning the matter to 26 May 2005 and reserving costs.

22                  There is no basis upon which any appeal against that order could succeed or would have any useful effect at all.  There is no basis upon which I would either extend time or give leave to appeal against that order.  The motion, which is utterly misconceived, will be dismissed, as with the earlier motion relating to the order made by Marshall J.  I would add  that the substantive issue, as far as Ms Ogawa is concerned, has to be the outcome of the  proceedings in the Federal Magistrates Court and the orders that were made by Phipps FM on 8 August 2005 in which he has dismissed her applications. 

23                  The dismissal order of 8 August 2005 is, at the moment, the final resolution of the matter in the Federal Magistrates Court.  There is a provision in the Rules of that Court, to which Mr Caleo has referred, under which it may be possible for Ms Ogawa to seek to re-open the matter in that Court on the basis that the decision was made without any appearance by her.  It may be that any such re-opening, if it were allowed, would be on conditions in relation to costs which she may or may not be able to meet.  There is, of course, the question of the pending proceedings in the Federal Court which evidently cover the same ground as those which have been dealt with in the Federal Magistrates Court.  I make no comment about those.  It will be a matter for the Judge dealing with those questions to determine whether it is open to her to proceed in the Federal Court in respect of a matter which replicates the proceedings already dealt with in the Federal Magistrates Court on transfer from the Federal Court.   It is sufficient to say that the two motions which have been filed will be dismissed.

24                  Ms Ogawa’s motions have been a complete and utter waste of time of the Court and the University.  They have been misconceived.  They seek leave to appeal against orders which had no adverse impact in relation to the applicant.  Having regard to the history of the matter and having regard to what was said by Kenny J in the judgment of October 2004 I consider that an order for indemnity costs should be made.  I will order in respect of each of the motions that the applicant pay the respondent's costs of the motion on an indemnity basis.  

Associate:

Dated:              19 August 2005