FEDERAL COURT OF AUSTRALIA

Ogawa v Attorney General [2018] FCA 498

ORDERS

THE COURT ORDERS THAT:

1.    The application be dismissed.

2.    There be no order as to costs.

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

REASONS FOR JUDGMENT

LOGAN J:

1    By her originating application, Dr Ogawa sought a writ of mandamus requiring the respondent Attorney-General of the Commonwealth to deal with a petition lodged in 2014, by which she sought the exercise by His Excellency the Governor-General of the Royal Prerogative of Mercy or, alternatively, a reference to the Queensland Court of Appeal in respect of her convictions and sentence by the Queensland District Court in March 2009.

2    Details of the offences concerned, as well as the statutory foundation for the reference jurisdiction, are set out in my judgement in respect of separate, although not unrelated, proceedings earlier brought by Dr Ogawa against the Minister for Immigration and Border Protection in respect of a decision to cancel her visa: Ogawa v Minister for Immigration and Border Protection [2018] FCA 62. To the authorities there cited should be added the judgement of the Full Court in Yasmin v Attorney-General (Commonwealth) (2015) 236 FCR 169 (Yasmin). Yasmin puts beyond doubt the existence of a jurisdiction to consider and make a decision in respect of a petition of the kind lodged by Dr Ogawa. The Royal Prerogative of Mercy forms part of the executive power of the Commonwealth, exercisable by the Governor-General as the Queen’s representative pursuant to s 61 of the Constitution (Constitution). Even so, it is, in modern times, entwined with statutory reference powers of the kind found in s 672A of the Criminal Code (Qld), as applied in respect of federal offences by s 68 of the Judiciary Act 1903 (Cth) (Judiciary Act). The prerogative is “a constitutional safeguard against mistakes” R v Home Secretary; ex parte Bentley [1994] QB 349 at 365 (Bentley), although that is not its limit.

3    Both the current petition and an earlier one lodged during the previous Vice-Regal incumbency had been unactioned for some years.

4    The jurisdiction invoked by Dr Ogawa is that conferred on the Court by s 39B(1) of the Judiciary Act. Within the limits of that conferral, that jurisdiction is the same as that vested in the High Court by s 75(v) of the Constitution.

5    It has proved unnecessary to determine the merits of Dr Ogawa’s application. That is because, on 20 March 2018, which was the last case management hearing in this matter, but apparently after that hearing, the Attorney-General (Attorney) signed a submission to him by his Department in respect of Dr Ogawa’s petition. A consequential recommendation was made by the Attorney to His Excellency the Governor-General. That recommendation is presently under consideration by His Excellency.

6    These facts were communicated to Dr Ogawa, but not to the Court, on the afternoon of 3 April 2018.

7    On 20 March 2018, on the understanding, based on a submission on behalf of the Attorney that a decision was shortly expected but also conscious of Dr Ogawa’s right to have her application heard in a timely way, I made provision for the application to be heard on the merits on 20 April 2018, if a decision in respect of the petition were not made before 4 April 2018. I fixed 4 April 2018 as the date on which a further case management hearing would be conducted for the purpose of making directions with respect to that hearing, if the same proved necessary. The Attorney was represented at that hearing. Dr Ogawa appeared on her own behalf at that hearing.

8    The limit of an exercise of judicial power in the present proceeding was an order which required the making of a decision, not a particular decision. If Dr Ogawa is dissatisfied with the particular decision made on recommendation that may give rise to an ability to institute a separate judicial review application. In that separate application, it may become necessary to consider observations in Yasmin and Bentley about the nature of permissible review in relation to a recommendation for the exercise of prerogative power but no such consideration is necessary in order to dispose of the present proceeding.

9    My understanding, as a result of the case management hearings conducted on 20 March 2018 and earlier on 9 February 2018, was that each of the parties was also of this view. As it transpires that understanding, insofar as it related to Dr Ogawa, has been shown to be misplaced.

10    Probably prompted by the filing of the application but nonetheless voluntarily, the Attorney’s decision meant that whatever public duty had hitherto not been performed, was performed. The petition sought either a recommendation or a reference. The precise recommendation made to His Excellency the Governor-General could not be revealed on 3 April 2018, because, at that stage, advice of this nature to the Governor-General is confidential. Even so, that a recommendation decision had been made necessarily meant, and means that, there was and is no longer any utility in the application for a mandamus. All that could have been achieved by such an order has been achieved.

11    In these circumstances and ideally, in light of these developments, what should have occurred on 3 April 2018 was that the parties promoted, consensually, the making of an order dismissing the proceedings by the lodging of a consent. Further, the consequential absence of a need for a substantive hearing necessarily meant that there was no utility in the conduct of a further case management hearing on 4 April 2018. Insofar as the same was necessary at all, the parties ought also, ideally, on 3 April 2018, have consensually promoted jointly the vacation of that case management hearing.

12    As it transpired, Dr Ogawa, who has high academic attainments in the study of law but who has not practised (save for acting on her own behalf) chose not to promote this ideal course. She travelled from the Gold Coast to the Court in Brisbane on 4 April 2018. There she found that the case management hearing had been delisted. In contrast, the Australian Government Solicitor made inquiry of chambers that morning and was informed that an appearance was unnecessary. I can understand why the attendance occurred, but that does not mean that it was a necessary attendance.

13    The Australian Government Solicitor subsequently proposed to Dr Ogawa that an order that the application be dismissed with each party bearing their own costs be consensually promoted to the Court. Dr Ogawa opposed a disposal of the application as proposed on behalf of the Attorney. I directed the making of submissions in writing on whether such orders should be made and have considered the submissions consequentially made.

14    Dr Ogawa has submitted that an order of dismissal “should be made only when the Court is satisfied that the proceeding will serve no more purpose”. She further submitted, “At this stage, the Respondent has not clarified the subsequent procedure as to the handling of the petition. If the Governor-General signs and sends the petition back to the Attorney-General, then the Attorney-General (or his Department) may not do anything again. In the circumstances, it is premature to dismiss the present application before obtaining some security from the Respondent.”

15    As to costs, Dr Ogawa submitted that the “whole costs” were incurred as a result of a failure in the part of the respondent Attorney to undertake a duty to deal with her petition in a timely way. She further submitted that there was no time prior to 4 April in which she could consider and propose the consent orders to be made in chambers. Her submission was that the amount of costs which might be awarded “does not make any difference to the principle of awarding the costs”.

16    For reasons already given, I am satisfied that the substantive application no longer has any utility. A recommendation has been made. Such public duty as fell on the Attorney as a result of the lodgement of the petition in 2014 has been performed.

17    As to costs, the relevant principle in respect of the costs of a litigant in person is as stated in Cachia v Hanes (1994) 179 CLR 403 at 410-411 (Cashia v Hanes):

To use the Rules to compensate a litigant in person for time lost would cut across their clear intent. Costs, within the meaning of the Rules, are reimbursement for work done or expenses incurred by a practitioner or practitioner's employee. Compensation for the loss of time of a litigant in person cannot be said to constitute costs within the meaning of the Rules.

This is hardly surprising. It has not been doubted since 1278, when the Statute of Gloucester introduced the notion of costs to the common law, that costs are awarded by way of indemnity (or, more accurately, partial indemnity) for professional legal costs actually incurred in the conduct of litigation. They were never intended to be comprehensive compensation for any loss suffered by a litigant. As Coke observed of the Statute of Gloucester, the costs which might be awarded to a litigant extended to the legal costs of the suit, “but not to the costs and expences of his travell and losse of time”.

[Footnote references omitted]

18    These statements were made with respect to the then rules of the New South Wales Supreme Court but they are just as applicable to the taxation of costs under the Federal Court Rules 2011 (Cth). In Cachia v Hanes there is a possible qualification by the High Court of Sir Edward Coke’s statement that a litigant in person was not entitled to travelling expenses. That qualification arises from this observation (at 416): “and since the appellant was not entitled to any recompense for his appearance in court to hear judgment, it was, we think, within the discretion of the Taxing Master to disallow any travelling expenses as an out-of-pocket expense incurred for that purpose.” That might be thought to suggest that it was equally within the Taxing Master’s discretion to allow travelling costs to a litigant in person. It is within my experience that, rightly or wrongly, as a matter of discretion travelling expenses have, as an outlay incurred, been allowed to a litigant in person on occasion, along with other disbursements such as reasonable photocopying expenses and, of course, court fees.

19    Before any such principle would fall for further consideration and application on a taxation it would be necessary, as a matter of discretion, to determine that an award of costs should be made in Dr Ogawa’s favour. The discretionary power to award costs conferred by s 43 of the Federal Court of Australia Act 1976 (Cth) (FCA Act) is qualified but not in any material way. The discretion must, of course, be exercised judicially and that usually means that costs will follow the event.

20    Here, that event is an order of dismissal but that, in turn, is because a voluntary act of the Attorney after the commencement of the proceeding has deprived the proceeding of utility. Whatever criticism might be made of the Attorney (or, strictly, his predecessor in office) in respect of the hitherto inaction concerning the petition, and it would be procedurally unfair to make any without affording an opportunity to provide an explanation, expedition has occurred after the application was filed.

21    That it apparently took the filing of an application to secure expedition would have inclined me to make an order for costs in favour of Dr Ogawa to the extent of a filing fee incurred and paid in respect of the application. However, the court’s records disclose that no such fee was incurred. That is perhaps explained by the fact that, at the time when the application was filed, Dr Ogawa was in immigration detention.

22    The only fee which looks, prima facie, to have been incurred by Dr Ogawa, having regard to the court’s records, is a setting down fee in respect of a hearing on 20 April 2018, invoiced on 22 March 2018. That invoicing was premature in that such a hearing was only to occur in the event that a decision in respect of the petition was not made by 4 April 2018. It was. A setting down fee only became payable if on 4 April 2018, the setting down of the case on 20 April for hearing was confirmed by the absence of a decision. So the invoiced fee is not payable by Dr Ogawa. That makes it unnecessary to decide whether, had it been payable, it ought to have been allowed to her as a disbursement.

23    There remains a question as to whether, as a matter of discretion, to allow an amount, if only a nominal amount, in respect of travel expenses associated with an appearance on 4 April 2018. For reasons given above, it is moot as to whether such expenses could be allowed but I assume for present purposes that they can be. As a matter of discretion, my view is that such costs ought not to be allowed to Dr Ogawa. On the receipt of the advice from the Australian Government Solicitor on 3 April 2018 it ought readily to have been obvious to her that the proceedings no longer had utility. As a party, Dr Ogawa, no less than the Attorney, had a duty in the conduct of the present litigation so as to comply with the overarching duty specified in s 37M of the FCA Act (as per s 37N of that Act). It is true that Dr Ogawa’s great depth of knowledge was in legal theory, not practice. But it was knowledge of legal theory in relation to the limits of mandamus which ought immediately to have been excited by the communication of 3 April 2018. More than most litigants in person, Dr Ogawa was well equipped by higher education to understand the ramifications of the Attorney’s having made a decision. That she apparently has not is no reason to make a costs order in her favour. It is unfortunate that the communication of further developments did not occur prior to 3 April both to her and to the Court but I do not regard that as a reason for making a costs order in her favour in respect of an attendance on 4 April 2018. I regard the attendance that day as unnecessary. No less than the Attorney, Dr Ogawa ought, in the circumstances, to have promoted the vacation of that case management hearing and the dismissal of the proceeding. It should not have been necessary for the Court to vacate that case management hearing on 4 April 2018.

Associate:

Dated:    13 April 2018