FEDERAL COURT OF AUSTRALIA

Ogawa v Australian Information Commissioner (No 2) [2018] FCA 1305

ORDERS

THE COURT ORDERS THAT:

1.    The application for setting aside the Orders of 8 May 2018 be dismissed.

2.    The applicant pay the first respondent’s costs, of and incidental to the appeal, to be taxed if not agreed.

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

REASONS FOR JUDGMENT

(Revised From Transcript)

LOGAN J:

1    On 9 March 2018, Collier J dismissed with an order for costs in favour of the first respondent, the Australian Information Commissioner, an application by Dr Ogawa for the judicial review of a decision of a delegate of the Commissioner to decline to investigate a complaint made by Dr Ogawa against the second respondent in the original jurisdiction, Dr Michele Calvird: Ogawa v Australian Information Commissioner [2018] FCA 266. By that complaint, Dr Ogawa had alleged an interference with her privacy by Dr Calvird under s 41(1)A of the Privacy Act 1988 (Cth).

2    On 29 March 2018, Dr Ogawa filed a notice of appeal against that order of dismissal. She did not thereafter serve the notice of appeal on either of the named respondents, the Commissioner and Dr Calvird. In the course of the management of the appellate business of the Court, it came to pass that this particular appeal was allocated to me for case management. That allocation having occurred and upon noting an absence of service of the notice of appeal as evidenced by an absence of either an affidavit of service or the filing of a address for service by any respondent, I decided that the appeal was one which required a case management hearing forthwith with the appellant, Dr Ogawa, being required to attend in person for that purpose.

3    At 9.49 am on 3 May 2018, a case manager within the Court’s Queensland District Registry sent an email to, materially, Dr Ogawa notifying that the appeal had been listed for a first case management hearing on Tuesday, 8 May 2018, not before 10.15 am, at the Court in Brisbane. As a matter of courtesy, the involvement of the Information Commissioner’s solicitors, Holding Redlich, having been apparent from the proceedings in the original jurisdiction, that email was copied to that firm.

4    As it transpired, on 8 May 2018, there was no appearance by Dr Ogawa or on her behalf at the appointed time and place. Earlier that morning shortly before 8am, Dr Ogawa sent a note to the email address of my Associate which in turn repeated some sentiments which had been voiced in an earlier email sent the preceding evening at 7.53pm, but also materially stated:

I have just noticed that the case management hearing is listed for today. I received a notice on Thursday so that I thought the hearing would be on Thursday. I am sorry but I will not be able to make it today as I do not have money to get to Brisbane today. I request an adjournment.

There was also elaboration as to impecuniosity. It was that sentiment which was the one repeated from the earlier email of 7 May 2018. That earlier email did not evidence any misapprehension as to the date, rather, it recorded:

I received a notice of listing in the above matter. I understand the case management is docketed to Logan J. I do not wish to trouble his Honour, but my current situation requires me to make a number of requests to his Honour.

5    One of those requests, as set out in that earlier email, was for an ex parte hearing for the case management. Reference was made in the email to Dr Ogawa’s not having served the appeal on the other side. It is not necessary to elaborate further on the contents of that earlier email.

6    Suffice it to say, upon there being no appearance by or on behalf of Dr Ogawa on 8 May, I decided that the appeal was one which ought to be dismissed for want of compliance with the direction as to the first case management hearing and also an apparent want of prosecution: see Ogawa v Australian Information Commissioner [2018] FCA 766.

7    On 23 June 2018, Dr Ogawa made application for the setting aside of the order of dismissal. On this occasion, the Information Commissioner was served with that application and chose to enter an appearance. Dr Ogawa did not serve, though she named as a respondent, Dr Calvird.

8    On 31 July 2018, Dr Ogawa filed an affidavit which she made on 20 June 2018, in which she provided an explanation as to her absence of attendance before the Court on 8 May. In the ordinary course of events, that affidavit ought to have been filed in conjunction with the interlocutory application and served with that application. As it was, the contents of the affidavit only came to the attention of the Information Commissioner in the course of the hearing of the application today.

9    The affidavit’s admissible contents are brief. The Commissioner was able, by his solicitor, to assimilate the contents of the affidavit. Subject to an objection, which I upheld, in respect of a paragraph dealing with an alleged public interest which was not relevant, the Commissioner did not object to the reading of the affidavit. Nor did the Commissioner seek to cross-examine Dr Ogawa. In that affidavit, Dr Ogawa states:

3.    On 3 May 2018, I received an email Notice of Listing in this matter. I misunderstood that the listing was for the following Thursday rather than the following Tuesday particularly since the Monday was a Labour Day holiday.

4.    On 8 May 2018, I noticed that the listing was not for the Thursday but for Tuesday. At that time, I was not in a position to be able to arrange travel to Brisbane for reasons of my financial difficulty and mental health issue both of which continued from the time of the first instance and were exacerbated by the Government’s recent wrongdoing in detaining me at Villawood for three long months.

10    Even though the Commissioner appeared, there was no appearance by or on behalf of Dr Calvird, who, as in the original jurisdiction, was named as a respondent. In the original jurisdiction, the originating application made reference to an intention not to serve Dr Calvird. Of course it is unorthodox, to say the least, to name a party but not to serve that party. However that may be, the application in the original jurisdiction was dealt with on the basis that the only substantive respondent was the Commissioner.

11    Upon noting that Dr Calvird was a respondent both to the appeal and the interlocutory application on the hearing today, I raised with the parties how it was the application could be dealt with, without proof that Dr Calvird had been served with a copy of the interlocutory application. Upon further inquiry, it transpired that Dr Ogawa had not served her. I indicated that I considered that, as a named respondent for the application for the, in effect, reinstatement of an appeal to which she was a named respondent, Dr Calvird needed to be afforded an opportunity to be heard. An exchange with Dr Ogawa occurred; the upshot of which was an indication on her part that she wished to discontinue the substantive appeal as against Dr Calvird. I was initially disposed to grant leave to discontinue, particularly in light of an absence of objection on the part of the Commissioner to that course. Upon reflection, though, it seemed to me that, there already being an order of dismissal of the appeal in place, it would not be appropriate to grant leave to discontinue as against Dr Calvird. Rather, the position was that Dr Ogawa had sought the setting aside of the order of dismissal on the basis that if it were set aside, she would forthwith discontinue the appeal as against Dr Calvird. The Commissioner was content for the interlocutory application to be dealt with on that basis.

12    In these circumstances, it seemed to me that procedural fairness did not require any adjournment of the hearing of the interlocutory application in order to be satisfied that Dr Calvird had been served with a copy of it. That was because, even if the appeal were to be reinstated, she would not be affected by that reinstatement order because of the disposition of Dr Ogawa forthwith to discontinue as against her.

13    So it is, then, that what is necessary to determine today is whether to set aside the order of 8 May 2018 dismissing the appeal. By s 25(2B)(ba) and (bb) of the Federal Court of Australia Act 1976 (the Act), a single judge or a Full Court may:

(ba)    make an order that an appeal to the Court be dismissed for want of prosecution or;

(bb)    make an order that an appeal to the Court be dismissed for (1) failure to comply with a direction of the Court or (2) failure of the appellant to attend a hearing relating to the appeal.

It is further provided in s 25(2B)(bc) that a single judge or a Full Court may:

(bc)    vary or set aside an order under, materially, paragraph (ba) or (bb).

There was, then, a statutory foundation for the order of dismissal, and there is also a statutory power (witness s 25(2B)(bc)) to set aside that order. So the question is not one of whether there is any lack of power to set aside the order of dismissal but, rather, whether in the particular circumstances of this case, that power should be exercised.

14    The principles which are relevant to the exercise of an application to set aside an order dismissing an appeal were discussed by White J in Carey v Freehills [2014] FCA 788. Suffice it to say there needs to be an explanation for the default or defaults which gave rise to the exercise of the power to dismiss as well as satisfaction that there is some utility in setting aside the order of dismissal. As to the latter, it is usually pertinent to consider whether any of the grounds of appeal is reasonably arguable.

15    In this regard, I consider there is an analogy to be drawn with cases where it falls to consider whether an extension of time ought to be granted within which to appeal. By that, I mean that it is no part of the function of the Court in considering whether to set aside an order of dismissal to treat the application for that order as if it were a hearing on the substantive merits of the appeal. It is enough for an appellant to show that there is reasonably arguable ground or grounds, but it is not necessary to persuade the Court that those grounds will succeed, much less should the Court embark on a detailed consideration of the merits as if hearing the substantive appeal.

16    It may be accepted that it is a serious step to dismiss an appeal without affording the parties, in particular here the appellant, a hearing in respect of the merits of the appeal: see Dowling v Fairfax Media Publications Pty Ltd (No. 2) [2010] FCAFC 28 at [79] (Dowling v Fairfax Media Publications Pty Ltd). Equally, though, there is a need to avoid preferential treatment of self-represented litigants in fairness to other parties: see Malouf v Malouf (2006) 65 NSWLR 449 at p 452 per Bryson J. His Honour’s observations were cited with approval by Graham J at [24] in Dowling v Fairfax Media Publications Pty Ltd.

17    In this case, and this reflects a submission made on behalf of the Commissioner, for all the Commissioner and, for that matter, Dr Calvird knew, but particularly the Commissioner, given the absence of any active party role or any role at all by Dr Calvird in the original jurisdiction, the appeal period in this case had passed without an apparent challenge by Dr Ogawa to the order of dismissal made by Collier J. In fact, what occurred was that Dr Ogawa, in effect, was sitting on a filed but unserved notice of appeal. To do that is capable of being regarded as an abuse of process, although, of course, there may be an explanation. That subject was one worthy of consideration, particularly in light of anterior email correspondence at a first case management hearing.

18    These days, having regard to the overarching duties of parties in proceedings in the Court as specified in the Act (s 37N), and the many competing demands on the available judicial resources of the Court, the importance of attendance at case management hearings cannot be overemphasised. As against that, it is always necessary to remind oneself that the system of justice administered in this Court is one which involves doing justice in respect of the acts of one’s fellow human beings, or at least corporate personalities that act through human agents. And we all do make mistakes from time to time with dates and times. Even though, given the apparent importance of the case for Dr Ogawa, one might be sceptical about inadvertence particularly having regard to an absence of any apparent misunderstanding in the email of 7 May 2018, there is an explanation which does reflect a realistic possibility of human error on Dr Ogawa’s part in her affidavit as to why she found herself unable to attend as directed at the first case management hearing. It is a matter of public record in terms of other published judgments of the Court that she was, as at the time she filed her application, but recently released from immigration detention, which doubtless brought with it both particular stressors and particular relief. The particular stressors also included other litigation to which she was a party.

19    I am prepared to deal with this application, and do deal with it, on the basis that there is an explanation for the absence of appearance on 8 May.

20    The real question, it seems to me, is whether there is any utility in the reinstatement of the appeal by setting aside the order of dismissal. As to that, it is necessary to say something about the background to the proceedings below, the basis upon which the order of dismissal was made below and the proposed grounds of appeal.

21    In the judgment delivered by Collier J, there is a lengthy and detailed recitation of background facts. Pertinently they commence on 13 November 2008, when Dr Ogawa was granted bail in relation to charges then pending in the District Court of Queensland. She secured bail on the basis of undertakings, which materially included an undertaking in these terms:

12.    The undertakings relevant to the current proceeding were in these terms:

5.    On 18/12/2008 I shall attend the clinic of Dr Calvird, at Toowong Private Hospital, for assessment and

i)    thereafter take all medication and undertake all treatment prescribed or recommended by Dr Calvird;

ii)    thereafter attend all further appointments for treatment by Dr Calvird.

…

7.    I shall provide a written authorisation for [Dr Calvird and other named health professionals] to notify the Commonwealth Director of Public Prosecutions of any failure by her [sic: me] to comply with the obligations in paragraph 4, 5 & 6 above.

13.    On 13 November 2008, Dr Ogawa signed an authority directed to Dr Calvird in these terms:

I hereby authorise Doctor Calvird to notify the Commonwealth Director of Public Prosecutions of any failure by me to comply with the following obligations:

(a)    On 18 December 2008, attend the clinic of Dr Calvird, at Toowong Private Hospital for assessment;

(b)    thereafter take all medication and undertake all treatment prescribed or recommended by Dr Calvird;

(c)    thereafter attend all further appointments for treatment by Dr Calvird.

22    In February 2009, Dr Calvird had a number of conversations with an officer of the Commonwealth Director of Public Prosecutions office in the context of an absence of rebooking for an appointment, so Dr Calvird then understood it, by Dr Ogawa. In the course of those conversations, Dr Calvird ascertained from the Commonwealth Director of Public Prosecutions’ officer that Dr Ogawa was not in custody. She told the officer concerned of Dr Ogawa’s move to Lismore and that she, in other words, Dr Ogawa, according to Dr Calvird’s understanding, would be reducing the frequency of her appointments and that Dr Ogawa had a mobile phone on which messages could not be recorded. Later, Dr Calvird told the officer that there had been no response by Dr Ogawa to an email sent the previous day asking Dr Ogawa to make an appointment and that Dr Ogawa’s last appointment had been on 22 January 2009. It later emerged that, in making these statements, Dr Calvird had made an error because, though an email to Dr Ogawa had been drafted, it had not been properly sent by Dr Calvird’s secretarial staff. It also later transpired that Dr Ogawa replied promptly to the email requesting the making of an appointment once it had been properly sent. It was against that background that Dr Ogawa made a privacy complaint against Dr Calvird.

23    An initial decision made by the Commissioner to decline to investigate that complaint and then, on internal review, to affirm that decision was set aside by Greenwood J: see Ogawa v Australian Information Commissioner (2015) FCA 152. The decision which came to be the subject of the judicial review application heard and determined by Collier J was a sequel to that earlier judgment of the Court.

24    It is a feature of the judicial review application determined by Collier J that the grounds of review were broadly expressed and particularised. That feature did not pass unnoticed by her Honour. Nonetheless, the case was dealt with, hardly unfairly with respect, on the basis that it was possible nonetheless to ascertain particular alleged errors of laws, rather than just being dismissed on the basis that no meaningful ground of review had been pleaded.

25    Whether or not the complaint was one which required investigation by the Commissioner required a state of administrative satisfaction to be reached by the Commissioner. The exercise of particular statutory powers conditioned on a state of administrative satisfaction is not unexaminable on judicial review, a feature notably highlighted by Sir Owen Dixon in Avon Downs v Federal Commissioner of Taxation [1949] 78 CLR 353 and further explored in Minister for Immigration & Multicultural Affairs v Eshetu (1999) 197 CLR 611.

26    In this case, her Honour found that it was open to the Commissioner’s delegate to conclude that Dr Ogawa had given, by necessary implication, consent to the collection by Dr Calvird of information concerning whether Dr Ogawa had been returned to criminal custody. Her Honour further found it was open to the delegate to find it was not reasonably practical for Dr Calvird to collect that information directly from Dr Ogawa. Yet further, her Honour found it was open to the delegate to conclude that Dr Ogawa had impliedly consented to the disclosure by Dr Calvird to the Commonwealth Director of Public Prosecutions of information which was the subject of the privacy complaint. Her Honour further found it was open to the delegate to find that Dr Calvird had taken reasonable steps to check the information she had collected and to correct her error concerning the dispatch of the email to Dr Ogawa on discovery of the error.

27    The grounds of appeal, as specified in the notice, are these:

1.    The Honourable Justice Collier erred in finding (Judgment at [35]) that it was open to the First Respondent to find that it was reasonable for the Second Respondent to have assumed an implied consent to collection by the Second Respondent, in circumstances where:

(a)    her Honour erroneously considered that the First Respondent found that the Appellant, to the Second Responde[n]t’s knowledge, did not respond to the email from the Second Respondent (Judgment at [35]) although in fact the evidence before the First Respondent and her Honour established that the Second Respondent did not send an email to the Appellant when engaging in the collection from the third party;

(b)    her Honour erred in failing to find that consent to disclose does not include consent to collection.

2.    The Honourable Justice Collier erred in finding (Judgment at [37]) that it was open to the First Respondent to find that the Appellant gave an implied consent to disclosure by the Second Respondent relating to the Appellant’s failure to attend the Second Respondent’s office as:

(a)    the implied consent cannot override the limitation explicitly agreed between the Appellant and the Second Respondent;

(b)    in any event, the matters disclosed by the Second Respondent were not relating to the Appellant’s failure to attend the Second Respondent’s office.

3.    The Honourable Justice Collier erred in finding (Judgment at [38]) that it was open to the First Respondent to find that the Second Respondent took reasonable steps to check the information she had collected, in circumstances where:

(a)    her Honour misconstrued the standard of reasonableness applied to the First Respondent’s finding;

(b)    the First Respondent found that the presumption of the Second Respondent that an email sent by her administrative staff to the Appellant’s email address had been successfully sent and received was reasonable notwithstanding the evidence before the First Respondent was that the Second Respondent had never checked with her administrative staff whether she had sent an email to the Appellant.

28    Having regard to the undertakings given to the District Court and, further, to the authority signed by Dr Ogawa, the terms of each of which I have set out above, it seems to me that the conclusion or rather the state of satisfaction reached by the Information Commissioner was, for the reasons given by Collier J in her reasons for judgment, reasonably open. In particular, it seems to me not reasonably arguable at all, having regard to those undertakings and that authority, that there was any wont of authority by Dr Calvird to collect and to disclose particular information. I regard the reasons for the dismissal of the judicial review application as plainly right and the grounds of appeal as utterly hopeless.

29    In these circumstances, there would be no utility in the setting aside of the order of dismissal. Accordingly, I dismiss the application for the setting aside of the order 8 May 2018.

Associate:

Dated:    24 August 2018