Federal Court of Australia

Ogawa v Australian Information Commissioner [2022] FCA 1374

ORDERS

THE COURT ORDERS THAT:

The applicant’s oral applications

1.    The disqualification application be dismissed.

2.    The application for an adjournment be refused.

Interlocutory applications

3.    The application for an extension of time within which to challenge the first respondent’s decision of 1 December 2021 under the Administrative Decisions (Judicial Review) Act 1977 (Cth) be dismissed.

4.    The application to amend the originating application be dismissed.

Other orders

5.    The applicant pay the respondents’ costs of and incidental to the applications, with such costs to be fixed by a registrar in a lump-sum if not agreed.

6.    The substantive proceeding be adjourned to not before noon on 19 December 2022 for:

(a)    further case management; and

(b)    the return of any application for the dismissal of the proceeding.

7.    Each respondent be at liberty to apply on 19 December 2022 for the consequential dismissal of the proceeding, with a letter giving notice of such application sent within seven days hereof being deemed to be an interlocutory application seeking such orders, with the need for the filing and service of such an interlocutory application being dispensed with.

8.    The Registrar send to each of the parties at their respective addresses for service a copy of the orders made today.

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:

Background

1    On 17 November 2021, Dr Megumi Ogawa filed an originating application under the Administrative Decisions (Judicial Review) Act 1977 (Cth) (AD(JR) Act), by which she sought the judicial review of an alleged failure by the Australian Information Commissioner (Information Commissioner), the first respondent, in the making of a decision in respect of a complaint by her against the Department of Home Affairs (Department), the second respondent, on 19 May 2021, as sent to her by the Information Commissioner the following day. That was a sequel to the communication to Dr Ogawa by the Information Commissioner of an interim or draft decision in respect of her complaint.

2    As it transpired, the Information Commissioner made a final decision on 1 December 2021 under the Privacy Act 1988 (Cth) (Privacy Act), by which under s 41(1) of the Privacy Act, the Information Commissioner decided not to investigate the complaint. In the ordinary course of events, the making of the final decision by the Information Commissioner rendered otiose the AD(JR) application seeking to compel the making of such a decision, save, of course, in respect of any cost controversy relating to that application.

3    The Information Commissioner’s decision of 1 December 2021 included reasons for that decision. That being so, the time limit specified by s 11 of the AD(JR) Act for the institution of a challenge under that Act to the final decision of the Information Commissioner was 28 days after the receipt of that decision and related reasons. It is common ground that no application to challenge that decision under the AD(JR) Act was filed within that period. Instead, outside that period, Dr Ogawa has applied for leave to amend the originating application so as to challenge, pursuant to s 39B of the Judiciary Act 1903 (Cth) (Judiciary Act), and, if an extension of time be granted, also under the AD(JR) Act, the final decision of the Information Commissioner.

4    The proceeding has had something of a chequered history in earlier case management before other judges. It has, though, been more latterly allocated to my docket. Today is the appointed day for the hearing of Dr Ogawa’s interlocutory applications, seeking to amend the originating application and to obtain a related extension of time, insofar as she relies on a cause of action under the AD(JR) Act.

Dr ogawa’s applications

5    This morning, Dr Ogawa raised a question as to whether I should continue to sit so as to hear the interlocutory application. The basis of that was a submission that I should disqualify myself because there existed, having regard to earlier involvement by me in two Full Court cases, a reasonable apprehension of bias. The two earlier Full Court cases are Ogawa v Finance Minister [2021] FCAFC 17 and Ogawa v Carter (Delegate of Finance Minister) [2021] FCAFC 16, in which, in each instance, with Katzmann and Jackson JJ, I constituted the Full Court.

6    A separate application made by Dr Ogawa, although, in fairness, not just in its origins by Dr Ogawa, is that I should adjourn the hearing of the interlocutory application pending the hearing and determination of the disqualification application. The background to the adjournment application, as was frankly conceded by Mr Eteuati of the Australian Government Solicitor’s Office, acting for the Department, lay in confessed inattention by him to interlocutory orders providing for pre-hearing steps in respect of today’s interlocutory application.

7    A consent promoted by the Department, via its solicitor, was circulated to the other parties, including Dr Ogawa. It is that proposed consent which has formed the background to Dr Ogawa’s approach to today’s hearing.

8    The Information Commissioner did file substantive submissions in respect of the interlocutory application, by which the Information Commissioner quite plainly sought that those substantive issues be determined on the appointed hearing date, namely, today. If the application does proceed, the Department is disposed to adopt those substantive submissions. Those substantive submissions oppose the granting of any extension of time or any amendment of the originating application.

9    The two earlier judgments of the Full Court concerned challenges on judicial review to decisions of the Finance Minister to enter into a payment plan with Dr Ogawa in respect of an indebtedness to the Commonwealth and a separate, although not unrelated, decision by the Finance Minister not to waive a debt owed to the Commonwealth by Dr Ogawa. In turn, each of those decisions can be viewed against a broader background of an application by Dr Ogawa under the Migration Act 1958 (Cth) for a visa, with a condition being absence of indebtedness to the Commonwealth.

10    The Privacy Act complaint which Dr Ogawa made can, if one views matters broadly, also be seen to have an association with the broad background against which the Finance Minister came to make particular decisions which ended up before the Full Court. However that may be, the Information Commissioner’s decision is a discrete administrative decision made under a separate statute, the Privacy Act, for reasons which are separately explained in the Information Commissioner’s decision of 1 December 2021. Save for the broad background or general level of abstraction that I have mentioned, there is no overlap factually, or, for that matter, in terms of applicable law.

11    The earlier decisions were made under legislation administered by the Finance Minister, more particularly described in the two Full Court cases. The present administrative decision was made under the Privacy Act, which is differently administered and, as I have indicated, raises quite discrete public law issues. Those public law issues are pleaded with great generality in the proposed amendments, but for all that, and necessarily, they raise discrete issues to those which were before the Full Court in each of the cases I have mentioned.

The application for disqualification

12    The principles pertinent to whether or not a judge should disqualify him or herself are to be found in, notably, Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337 (Ebner) and Michael Wilson & Partners Ltd v Nicholls (2011) 244 CLR 427. The essence of those principles is what has been termed a “double might” test, in terms of whether or not a reasonable apprehension of bias exists.

13    Whilst I acknowledge the broad background overlap, it seems to me the issues of public law are quite discrete from those which received attention in the Full Court. Judges have a duty to sit as much as they have a duty not to sit: Ebner at [19] to [21] per Gleeson CJ, McHugh, Gummow and Hayne JJ. A judge should not lightly disqualify him or herself.

14    I am not persuaded that the issues at large in the earlier cases mentioned are such as to give rise to a reasonable apprehension of bias, having regard to the tests posited in the cases mentioned.

15    I therefore dismiss the disqualification application.

The application for an adjournment

16    The question now becomes whether or not to adjourn the proceeding? There has been no order for adjournment made in response to a promoted consent. The consent, I gather, was formally proposed this morning, although it seems it had been foreshadowed earlier.

17    Parties should not assume that a consensual position is one which will be shared by the Court. The judicial resources of this Court are limited. There is always competition for judicial time, be that time spent in hearing another case or in devotion to the completion of a reserved judgment. Case management principles are always pertinent. The considerations in relation to case management are not limited to consensual positions of the parties, but have a wider embrace, as s 37N and s 37M of the Federal Court of Australia 1976 (Cth) illustrates: see also Aon Risk Services Australia Ltd v Australian National University (2009) 239 CLR 175.

18    In the absence of any order granting an adjournment, it was always incumbent on the parties to prepare for a substantive hearing today. Dr Ogawa acts on her own behalf. I do take that into account, although in that regard, she is not without experience in litigation and is a highly intelligent, well-educated lady, with high academic achievements in law. That does not, of course, equate with experience in legal practice, but as I have mentioned, she is not without experience in the conduct of proceedings in this Court.

19    It was a misconception to regard any overture from any respondent in respect of an adjournment as equal to the granting of an adjournment by the Court.

20    I therefore refuse the adjournment application and propose substantively to hear the interlocutory applications.

application for amendment and extension of time

21    I will note that upon pronouncement of the reasons in respect of the disqualification application and adjournment application, Dr Ogawa signified that she proposed to appeal against those orders. I indicated to her that she would need leave to appeal, and further, that I proposed to deal with the applications on the basis of her written submission. Dr Ogawa indicated that she would withdraw from appearance, and did so.

22    Before her departure, and within her hearing, I indicated that I did not propose, in the circumstances, to hear further oral submissions from either respondent. Each respondent supported that course.

23    It therefore remains, in my view, to deal with the originating application’s amendment and related extension of time. The amendment proposed by the draft amended originating application promotes, either under the AD(JR) Act or, more latterly, the Judiciary Act, the following grounds:

(1)    A breach of the rules of natural justice occurred in connection with the making of the decision.

(2)    The decision was made by taking an irrelevant consideration into account.

(3)    The decision was made by failing to take a relevant consideration into account.

(4)    The decision was made in accordance with a rule or policy, without regard to the merits of the case.

(5)    [T]he decision involved an error of law.

(6)    [T]here was no evidence or other material to justify the making of the decision.

(7)    Such other grounds that the court thinks fit.

24    The orders sought, apart from costs, are that the Information Commissioner’s decision – which would be the final decision dated 1 December 2021 – be set aside and the matter remitted to the Information Commissioner to consider and determine according to law, and such other orders as the court thinks fit.

25    The limitation period for a challenge to the final decision under the AD(JR) Act expired either in very late December 2021, 29 December 2021 at the earliest, or at some time in very early January 2022, depending upon the time of receipt of the Information Commissioner’s final decision. It does appear that the decision was sent by email, so it may well be that the final date for challenge as of right under the AD(JR) Act expired on 29 December 2021. However, that may be, a matter of some weeks elapsed before the promoted amendment to the originating application occurred.

26    The affidavit evidence, offered by way of explanation for the delay, by Dr Ogawa, rises no higher than the following statements in an affidavit filed on 16 March 2022 (and repeated in affidavits filed 24 and 31 March, 20 and 29 April, 4 and 23 May 2022), namely:

3.    I am an unrepresented litigant.

4.    I am impecunious and cannot afford to engage a lawyer.

5.    I am not a legal practitioner anywhere in the world.

6.    I am from a non-English speaking background.

27    The correctness of these statements was not challenged by either respondent. Each of them I regard as true. It is also, though, the case, as was evident, I thought, in Dr Ogawa’s acceptance of my understanding as to her background, that she has a doctorate in philosophy in law conferred by the University of Queensland. She is also, whilst English is plainly not her first language, articulate, especially in writing, but also orally. She is also, as the numerous cases on the court record attest, not without experience in litigation, particularly judicial review litigation.

28    The AD(JR) Act confers on the Court a discretion to grant an extension of time. The considerations pertinent to the granting of an extension were notably canvassed in a non-exhaustive way by Wilcox J in Hunter Valley Developments Pty Ltd v Minister for Home Affairs and Environment (1984) 3 FCR 344. Whether or not there is an acceptable explanation for delay, and the prospective merits of the proposed application are pertinent considerations. As to prospective merits, those are to be assessed at an impressionistic level and certainly with the same degree of scrutiny as would attend a final hearing. Another consideration which is pertinent is the desirability of finality in public administration: see as to this Lucic v Nolan (1982) 45 ALR 411.

29    The proposed grounds of review under the AD(JR) Act are cast at such a level of generality as to be devoid of meaningful content. The no evidence ground would only be made out if there were no evidence at all before the Information Commissioner. But on the face of the Information Commissioner’s reasons, there was material by reference to which one might reach a view that a complaint should not further be investigated under s 41 of the Privacy Act.

30    Dr Ogawa had shown particular diligence in challenging the November decision of the Information Commissioner. She did not display any such diligence in relation to the final decision, although that was the operative decision. None of her explanations, in my view, provide an acceptable reason for why an extension of time should be granted. It looks very much as if a challenge under the AD(JR) Act to the final decision was something of a belated afterthought.

31    The Judiciary Act does not provide for any particular time limit within which to institute a proceeding in this court for relief akin to that which can be ordered by the High Court pursuant to a constitutional writ issued in the jurisdiction conferred by s 75(v) of the Constitution on that court.

32    The question as to whether or not to amend the originating application is therefore one which falls for consideration pursuant to the rules of court governing amendment. By r 8.21 of the Federal Court Rules 2011 (Cth) an applicant may apply to the Court for leave to amend an originating application for any reason, including so as to claim relief, in whole or in part, out of facts or matters that have occurred or arisen since the start of the proceeding. The Information Commissioner’s final decision was a fact or matter which occurred after the start of the proceeding.

33    It would be a wrong exercise of the discretion to permit amendment under r 8.21 to permit amendment of an originating application so as to raise a claim under the Judiciary Act which alleged grounds devoid of meaningful content.

34    Rule 8.21 would also be pertinent in the event that I had been disposed to grant an extension of time in respect of the alternative challenge to the final decision under the AD(JR) Act. Once again, however, it would be a wrong exercise of the discretion to permit amendment, in my view, to permit an amendment so as to raise an application under that Act specifying grounds devoid of meaningful content.

35    For these reasons, then, I dismiss the application for an extension of time within which to challenge the first respondent’s decision of 1 December 2021 under the AD(JR) Act. I also dismiss the application to amend the originating application so as to raise such a cause of action under the AD(JR) Act if an extension be given. I also dismiss the application to amend the originating application so as to raise a cause of action challenging the final decision, alternatively, under s 39B of the Judiciary Act.

Costs

36    Each respondent has sought an order for costs. The Information Commissioner’s position was one of opposing any amendment or extension of time for procedural reasons, but in the event that the Court was disposed to grant an extension of time and, as the case may be, amendment of the originating application, to abide the order of the Court. Particularly given the earlier absence of substantive submissions by the Information Commissioner, it was, at least in the circumstances of this case, in my view, appropriate for the Information Commissioner to have made substantive submissions.

37    There is no reason why costs should not follow the event. I therefore further order that the applicant pay each respondent’s costs of and incidental to the interlocutory applications, to be fixed in a lump-sum by a registrar, if not agreed.

disposition

38    I will adjourn the substantive proceeding to not before noon on 19 December for further case management and the return of any application for the dismissal of the proceeding, in light of the orders made today.

39    I will make some further orders. Each respondent is at liberty to apply on 19 December 2022 for the consequential dismissal of the proceedings, with a letter giving notice of any such application sent within seven days hereof, being deemed to be an interlocutory application seeking such orders, and with the need for the filing and service of any such interlocutory application being dispensed with.

40    The further order I make is that the Registrar send to each of the parties, at their respective addresses for service, a copy of the orders made today, and those orders will be prepared within the registry and sent out.

Associate:    

Dated:    17 November 2022