Federal Court of Australia

Ogawa v President of the Australian Human Rights Commission [2022] FCA 1396

ORDERS

THE COURT ORDERS THAT:

1.    The application for leave to appeal filed on 21 October 2022 is dismissed.

2.    The applicant is to pay the second respondent’s costs as agreed or taxed.

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

REASONS FOR JUDGMENT

MARKOVIC J:

1    This is an application made by Dr Megumi Ogawa seeking leave to appeal from an order made on 21 October 2022 dismissing an application for an interim suppression order pending the determination of Dr Ogawa’s application for an interlocutory suppression order: see Ogawa v President, Australia Human Rights Commission (No 3) [2022] FCA 1260 (Ogawa (No 3)).

2    The first and second respondents to the application are respectively the President of the Australian Human Rights Commission (AHRC President), who filed a submitting notice in the Primary Proceeding (see [4] below), and the Commonwealth of Australia.

background

3    The background to Dr Ogawa’s application for leave to appeal was summarised in the Commonwealth’s written submissions. I did not understand those matters to be in dispute and set them out below.

4    On 26 September 2022 Dr Ogawa filed an interlocutory application, part of which came before the primary judge for hearing, in proceeding VID792/2020 which she had commenced by originating application filed on 14 December 2020 (Primary Proceeding). The AHRC President and the Commonwealth are respectively first and second respondents to that Proceeding.

5    In the Primary Proceeding Dr Ogawa seeks to challenge findings of the AHRC President made in a notice issued pursuant to s 29 of the Australia Human Rights Commission Act 1986 (Cth) dated 14 August 2020 under s 39B of the Judiciary Act 1903 (Cth) and the Administrative Decisions (Judicial Review) Act 1977 (Cth). In particular, Dr Ogawa challenges findings made in the notice that she was an unlawful non-citizen and that her immigration detention between 2 November 2017 and 9 February 2018 was lawful. Among other things she also asserts that the making of those findings, as well as the AHRC President not making a recommendation for the payment of compensation for what she alleges to have been unlawful detention, involved a denial of natural justice.

6    On 3 March 2021 the Court made an order transferring the Primary Proceeding from the Victorian Registry of this Court to the Queensland Registry.

7    On 12 July 2021 Dr Ogawa filed an interlocutory application in the Primary Proceeding seeking an order that “the Honourable Justice Rangiah be disqualified”. I infer that, having been transferred to the Queensland Registry of this Court, the proceeding was placed in his Honour’s docket. His Honour dismissed that application with costs.

8    Dr Ogawa sought leave to appeal from Rangiah J’s order referred to in the preceding paragraph. That application was refused by a Full Court of this Court: see Ogawa (formerly Ms PD) v President of the Australia Human Rights Commission (Leave to Appeal) [2022] FCAFC 161. During the hearing for leave to appeal the Full Court queried why Dr Ogawa had a pseudonym in that and other ongoing proceedings in this Court. The Full Court ordered that Dr Ogawa file affidavit evidence and written submissions in support of an order that she seek to maintain her pseudonym.

9    The Full Court determined that there was no necessity or other ground under s 37AG(1) of the Federal Court of Australia Act 1976 (Cth) to justify that Dr Ogawa be known under a pseudonym in that or any of the other proceedings. On 16 September 2022 the Full Court made orders substituting the applicant’s name “Megumi Ogawa” as the name of the applicant in each of those proceedings including the Primary Proceeding: see Ogawa (formerly Ms PD) v President of the Australia Human Rights Commission (Pseudonym) [2022] FCAFC 160 (Ogawa (Pseudonym)).

10    On 26 September 2022 Dr Ogawa filed an interlocutory application in the Primary Proceeding (Interlocutory Application) in which she sought the following orders:

1.    The hearing of this Interlocutory Application be expedited.

2.    The name “Dr Megumi Ogawa” be substituted as the name of the Applicant.

3.    Under s 37AG(1)(a) and (c) of the Federal Court of Australia Act 1976, the entire proceeding be suppressed in this matter and publication of any documents filed in this matter be prohibited until the end of the Applicant’s life.

4.    The interim suppression order be made until the hearing and determination of this Interlocutory Application.

11    On 21 October 2022 prayer 4 of the Interlocutory Application, that is the application for an interim suppression order “until the hearing and determination of [the] Interlocutory Application”, came before the primary judge in her capacity as general duty judge for hearing. Her Honour refused the application: see Ogawa (No 3).

12    Her Honour observed that the genesis for the application was the orders and reasons of the Full Court in Ogawa (Pseudonym) and that the Interlocutory Application only concerned the order made by the Full Court in relation to the Primary Proceeding. At [7] her Honour referred to Ogawa (Pseudonym) at [1]-[3] noting that:

At [1]-[3] of Ogawa (formerly Ms PD) the Full Court explained how the issue dealt with in the Full Court’s orders came about:

The Full Court raised an issue during the course of oral argument on the applications for leave to appeal from Rangiah J’s refusal, in proceeding VID792/2020 (the AHRC proceeding), to recuse himself on 22 July 2021 (the recusal application) and Logan J’s decision, in proceeding QUD264/2021 (the Registrar review), on 4 November 2021 not to order the Registrar to pay the applicant’s costs incurred through the Registrar’s wrongful refusal to file the recusal application (the costs application), namely, why the applicant had a pseudonym in both applications and the AHRC and Registrar review proceedings.

The Court ordered that, by 30 August 2022, she file and serve an affidavit and written submissions limited to 5 pages in support of any order that she seeks to maintain her pseudonym “Ms PD”: see Ogawa (formerly Ms PD) v President of the Australian Human Rights Commission (Leave to Appeal) [2022] FCAFC 161 (the principal reasons) at [4].

The applicant complied with the above order. Having considered her two affidavits and two sets of submissions (as corrected) dated 30 August 2022, we are satisfied, for the reasons below, that there was no necessity or other reason to justify that the applicant, Dr Megumi Ogawa, be known under the pseudonym in any of the proceedings.

(Original emphasis.)

13    Her Honour then referred to the reasoning of the Full Court at [27]-[28], [36]-[46] and [49]-[50] where the Court explained why it was not persuaded that any pseudonym order or any other form of suppression should be maintained for the applicant.

14    At [11] the primary judge observed that it was clear the Full Court had decided that there was no basis for any orders under s 37AF of the Federal Court Act in either of the two proceedings before it (which included the Primary Proceeding) and that it did so after hearing Dr Ogawa’s submissions and carefully considering the matter.

15    The primary judge observed that the only matter before her was whether an interim suppression order should be made in the Primary Proceeding on the basis that the applicant needed time to prepare “her full interlocutory application for suppression orders”: see Ogawa (No 3) at [12].

16    At [14] the primary judge explained that she refused to make an interim suppression order because Dr Ogawa sought orders contrary to those made by the Full Court and it would not be appropriate, and probably not within power, for a single judge of this Court to make orders entirely contrary to those of a Full Court on the same question. Her Honour also noted (at [15]) that, as the Full Court’s reasons made clear, Dr Ogawa’s identity is “already revealed for all to find”, a finding by which Dr Ogawa and her Honour were bound.

17    At [16] her Honour said:

The task in persuading a single Judge that circumstances have changed so much since 16 September 2022 that there might now, just over a month later, be circumstances justifying orders representing the exact opposite of the conclusions of the Full Court is a considerable task indeed. Dr Ogawa had little or no basis today to make an arguable case there was a change in circumstances. Her arguments about matters the Full Court allegedly overlooked invited me as a single Judge to review, or sit on appeal from, the Full Court and that is not possible. Otherwise, her arguments that journalists now know who she is and can access her material is nothing more than a consequence of her identity “already” being revealed, as the Full Court found.

the application for leave to appeal

18    In her application for leave to appeal Dr Ogawa sets out the following as her grounds of application:

1.    The orders were made in breach of procedural fairness.

2.    The orders were affected by an error of law.

3.    The orders were made by failing to take a relevant consideration into account.

4.    The orders were made by taking an irrelevant consideration into account.

5.    Such and other grounds that the Court thinks fit.

19    The application for leave to appeal was accompanied by a draft notice of appeal which included those same grounds as the proposed grounds of appeal and an affidavit sworn by Dr Ogawa on 21 October 2022. In that affidavit Dr Ogawa says, among other things, that she believes that the decision in Ogawa (Pseudonym) “clearly made an error and [the primary judge] could not disagree with me on this point and I need an interim suppression order to give me sufficient time to finish writing my Outline of Submissions of which paragraph 26 onwards explain what the Full Court failed to consider”.

20    At the hearing of her application for leave to appeal Ms Ogawa also sought to rely on a number of other affidavits which had initially been filed in the Primary Proceeding. They are:

(1)    an affidavit sworn by Dr Ogawa on 3 December 2020 which was the initial affidavit filed in the Primary Proceeding;

(2)    an affidavit sworn by Dr Ogawa on 22 September 2022 which annexes Dr Ogawa’s affidavit sworn on 29 August 2022 which was filed in the proceeding before the Full Court referred to at [8] above;

(3)    an affidavit sworn by Dr Ogawa on 13 October 2022 which annexes a copy of the Australian Human Rights Commission Report in PD v Commonwealth of Australia (Department of Home Affairs) [2020] AusHRC 138 dated 28 October 2020;

(4)    an affidavit sworn by Dr Ogawa on 8 November 2022 which sets out Dr Ogawa’s attempts to obtain the transcript of a hearing which took place on 1 August 2022; and

(5)    an affidavit sworn by Dr Ogawa on 10 November 2022 which annexes documents which according to Dr Ogawa had been omitted from previous affidavits, namely the affidavit referred to at (2) above.

Principles

21    As set out above, Dr Ogawa seeks leave to appeal from Ogawa (No 3).

22    On an application for leave to appeal an applicant must usually show that:

(1)    in all the circumstances, the decision to be appealed is attended with sufficient doubt to warrant its reconsideration on appeal; and

(2)    supposing the decision to be wrong, substantial injustice would result if leave were refused,

see: Bellamy’s Australia Limited v Basil [2019] FCAFC 147; (2019) 372 ALR 638 at [7] citing Décor Corporation Pty Ltd v Dart Industries Inc (1991) 33 FCR 397 at 398-399.

23    In Bellamy’s (at [7]) a Full Court of this Court observed that:

... The sufficiency of the doubt in respect of the decision proposed to be appealed and the question of substantial injustice bear upon each other so that the degree of doubt which is sufficient in one case may be different from that required in another. It has also been said that the considerations are cumulative such that leave ought not be granted unless each limb is made out: Rawson Finances Pty Ltd v Deputy Commissioner of Taxation [2010] FCAFC 139; (2010) 81 ATR 36 at 38 [5] (Ryan, Stone and Jagot JJ); Melbourne City Investments Pty Ltd v Treasury Wine Estates Ltd [2017] FCAFC 98; (2017) 252 FCR 1 at 4 [3] (Jagot, Yates and Murphy JJ).

Dr Ogawa’s submissions

24    Dr Ogawa submitted that when an interim suppression order is sought based on an application for a suppression or non-publication order, an interim order preserving the subject matter of the application for a suppression or non-publication order is to be made if the Court is satisfied that the application is a bona fide application made on genuine grounds, referring to Registered Clubs Association of New South Wales v Stolz (No 4) [2022] FCA 994.

25    Dr Ogawa submitted that there are genuine grounds for her application for suppression and non-publication orders and that the primary judge erred in attempting to resolve the problem created by the Full Court by expediting the hearing of the Interlocutory Application for suppression and non-publication orders. Dr Ogawa said that she needs more time to finish writing her outline of submissions for suppression and non-publication orders such that the hearing cannot be expedited. Rather than expediting that hearing an interim suppression order should have been made by the primary judge.

26    Dr Ogawa then set out an explanation as to why a pseudonym was first used in earlier proceedings in this Court. It is not necessary to repeat those matters.

27    Dr Ogawa submitted that following the publication of reasons in Ogawa (Pseudonym) “everyone knows that the applicant is PD and anyone who wants to read the President’s Report on the Applicant’s case can easily search PD’s Report on the internet and download the report either from the website of the Australian Human Rights Commission or from Trove (National Library of Australia) in no time”. She submitted that the AHRC President’s report described disputed facts as well as some information which she is legally entitled to keep in confidence.

28    Dr Ogawa contended that she needs suppression and non-publication orders to bring back the “level of exposure of her personal and/or confidential information to the level which would have been, had there not been” the instruction from the Victorian Registry of this Court and Ogawa (Pseudonym). She said it was never her intention to apply for suppression and non-publication orders or to take the risk of that ground being dismissed “effectively renouncing her human rights”. She said that Ogawa (Pseudonym) made it impossible for her not to apply for suppression and non-publication orders.

29    Dr Ogawa submitted that “once the information is exposed, that doesn’t mean the end of the story” and noted that the Court can make a suppression order “even after the proceeding”. She submitted that such an order is appropriate given the “digital age” in which we operate where unsuppressed material is accessible on the internet.

30    Dr Ogawa also made submissions about the content of the AHRC President’s report which, again, it is not necessary for me to set out in any detail.

Consideration

31    The crux of Dr Ogawa’s argument is that the primary judge erred in attempting to resolve what Dr Ogawa described as a problem created by the Full Court by expediting the hearing of the Interlocutory Application, rather than making the interim suppression order she sought. Dr Ogawa said that she required more time to finish writing her outline of submissions in support of the remaining prayers for relief in the Interlocutory Application such that expedition was not appropriate. Rather, Dr Ogawa contended that it was appropriate to make an interim order for a suppression order under s 37AI of the Federal Court Act.

32    Dr Ogawa also submitted that the primary judge erred in law because her Honour asked herself the wrong question, namely whether or not Dr Ogawa’s identity had already been revealed.

33    Section 37AF of the Federal Court Act empowers the Court to make a suppression or non-publication order and relevantly provides:

(1)    The Court may, by making a suppression order or non‑publication order on grounds permitted by this Part, prohibit or restrict the publication or other disclosure of:

(a)    information tending to reveal the identity of or otherwise concerning any party to or witness in a proceeding before the Court or any person who is related to or otherwise associated with any party to or witness in a proceeding before the Court; or

(b)    information that relates to a proceeding before the Court and is:

(i)    information that comprises evidence or information about evidence; or

(ii)    information obtained by the process of discovery; or

(iii)    information produced under a subpoena; or

(iv)    information lodged with or filed in the Court.

34    The grounds on which an order can be made under s 37AF are set out in s 37AG(1) of the Federal Court Act which provides:

(1)    The Court may make a suppression order or non‑publication order on one or more of the following grounds:

(a)    the order is necessary to prevent prejudice to the proper administration of justice;

(b)    the order is necessary to prevent prejudice to the interests of the Commonwealth or a State or Territory in relation to national or international security;

(c)    the order is necessary to protect the safety of any person;

(d)    the order is necessary to avoid causing undue distress or embarrassment to a party to or witness in a criminal proceeding involving an offence of a sexual nature (including an act of indecency).

35    Section 37AH sets out the procedure for making an application under s 37AF of the Act.

36    Section 37AI of the Federal Court Act empowers the Court to make a suppression or non-publication order on an interim basis in certain circumstances and provides:

(1)    If an application is made to the Court for a suppression order or non-publication order, the Court may, without determining the merits of the application, make the order as an interim order to have effect, subject to revocation by the Court, until the application is determined.

(2)    If an order is made as an interim order, the Court must determine the application as a matter of urgency.

37    Dr Ogawa relies on Stolz (No 4) in support of her contention that the primary judge was required to make the interim suppression order that she sought. In that case Yates J had made a number of orders on the ex parte application of the applicant, the Registered Clubs Association of New South Wales (ClubsNSW), including an interim order under s 37AI of the Federal Court Act. His Honour noted that he made that order to preserve the subject matter of the application for the order under s 37AF of the Federal Court Act. ClubsNSW had also made an application for non-publication orders under that section.

38    At [49]-[50] Yates J set out the relevant sections of the Federal Court Act which empower the Court to make a suppression or non-publication order and provide the grounds on which such an order can be made. At [51]-[53] his Honour continued:

51    Given these requirements, it seems to me to be axiomatic that, before the Court makes an order under s 37AF of the Act, it must be satisfied on the evidence or other material before it that one or more of the grounds in s 37AG(1) are established. Once one or more of those grounds are established, the decision to make a suppression order or a non-publication order is not a matter of discretion: Hogan at [33]; see also Rinehart at [48], dealing with the comparable provisions of the Court Suppression and Non-publication Orders Act 2010 (NSW) (the CSNO Act). This requires the Court to determine the merits of the application for the s 37AF order that is before it, based on one or more of those grounds.

52    However, s 37AI recognises that this might not be possible. This might not be possible for a number of reasons, including the exigencies of the case. Another reason might be that the Court does not believe that it has before it the parties that are either necessary or appropriate to enable the application under s 37AF to be determined on its merits.

53    Section 37AI recognises, therefore, that, where an application for a suppression order or non-publication order under s 37AF is before it, the Court can make an interim order “without the Court determining the merits of the application”—meaning the merits of the application made under s 37AF. In DSO18 v Minister for Home Affairs (No 3) [2020] FCA 640 at [4] – [5], Derrington J referred to s 37AI as a “sensible and pragmatic provision” which is designed to preserve an applicant’s claim for relief by ensuring that any subsequent suppression or non-publication order is not rendered inutile. However, when an interim order is made, s 37AI(2) commands the Court to determine the application under s 37AF as a matter of urgency. It follows that, when the Court makes an interim order under s 37AI, it will not have determined the merits of the application under s 37AF. This has two immediate and related consequences.

(Emphasis added.)

39    At [60] his Honour observed the following in relation to the operation of s 37AI of the Federal Court Act:

None of what I have said should be taken as suggesting that an order under s 37AI can be, or should be, made simply for the asking. The making of an order under s 37AI involves a discretion that must be exercised judicially. Nothing in s 37AI, or in any other provision of Pt VAA of the Act, compels the making of an interim order: Drummond v Canberra Institute of Technology [2021] FCA 376 at [12]. Section 37AI proceeds on the basis that an application for a suppression order or non-publication order is before the Court. It is in those circumstances that the Court must determine whether it is appropriate to make an interim order. In the present case, I was satisfied that the Court had before it a bona fide application for a suppression order or non-publication order under s 37AF, based on genuine grounds. As I have said, I was satisfied that it was appropriate to make the interim order to protect the subject matter of the s 37AF application until that application could be heard and determined on an appropriate basis.

(Emphasis added.)

40    Contrary to Dr Ogawa’s submission, it is not the case that, provided an application for suppression or non-publication orders has been made pursuant to s 37AF of the Federal Court Act and that application is “a bona fide one based on genuine grounds, which cannot be heard and determined immediately”, an interim order is to be made under s 37AI. There is no such automatic entitlement to an interim suppression order. As explained by Yates J, the making of such an order involves a discretion to be exercised judicially.

41    The Commonwealth submitted that in this case the primary judge decided not to grant an interim suppression order for two principal reasons.

42    First, the issue of whether Dr Ogawa’s identity should be suppressed in the Primary Proceeding had already been determined by a Full Court of this Court after considering evidence and submissions relied on by Dr Ogawa. That is so. As her Honour found, the order that the applicant sought was contrary to that made by the Full Court in Ogawa (Pseudonym) such that it would be inappropriate for a single judge to make the interim order on the same question.

43    Secondly, the primary judge found that the applicant’s identity was already revealed for all to find. That was an available finding. The Full Court came to the same view: see Ogawa (Pseudonym) at [44]-[46].

44    In the circumstances, the primary judge did not consider it was appropriate to make an interim suppression order pursuant to s 37AI of the Federal Court Act as sought by Dr Ogawa.

45    In addition the contention that the primary judge erred in expediting the hearing of the Interlocutory Application rather than making the interim suppression order does not assist Dr Ogawa. First, the primary judge reached her conclusion about whether an interim suppression order could be made having regard to the circumstances of the case. Secondly, Dr Ogawa sought such an order. That is, by prayer 1 of the Interlocutory Application she sought an order that the Interlocutory Application be expedited. Thirdly, and in any event, had the interim suppression order that Dr Ogawa sought been made, the Court would have been under an obligation to determine the application for a suppression order under s 37AF(1) of the Federal Court Act “as a matter of urgency” as required by s 37AI(2).

46    Dr Ogawa has not demonstrated that the decision of the primary judge is attended with sufficient doubt to warrant its reconsideration on appeal.

47    Further, I am not satisfied that substantial injustice would result if leave were refused in this case. That is for the very reasons identified by the primary judge at [15] of Ogawa (No 3) namely that the applicant’s identity “is already revealed for all to find”.

48    To the extent that Dr Ogawa contends that the decision in Ogawa (Pseudonym) is incorrect, this application for leave to appeal does not relate to nor concern that decision. Any contention that that decision is wrong is not a matter for me. If Dr Ogawa wishes to argue that is the case then the appropriate course is for her to pursue an appeal (or application for special leave to appeal) in relation to the Full Court’s decision.

conclusion

49    For those reasons I will not grant leave to appeal from Ogawa (No 3). The application for leave to appeal should be dismissed. As Dr Ogawa has been unsuccessful she should pay the Commonwealth’s costs.

50    I will make orders accordingly.

Associate:

Dated:    24 November 2022