Federal Court of Australia

Ogawa v Australian Information Commissioner (No 2) [2022] FCA 1610

ORDERS

THE COURT ORDERS THAT:

1.    The applicant’s outline of submissions be placed on the Court file.

2.    The proceedings be dismissed.

3.    The applicant pay the costs of and incidental to the proceedings, including the applications for dismissal, and subject to any costs orders already made, to be fixed by a registrar in a lump-sum 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 15 November 2022, I made orders which dismissed an application for disqualification and an application for adjournment made orally by Dr Ogawa, the present applicant. I also dismissed an application for an extension of time within which to challenge a decision made by the first respondent insofar as the application was made under the Administrative Decisions (Judicial Review) Act 1977 (Cth) (AD(JR) Act). At the same time, I dismissed an application to amend the originating application so as to raise an alternative, cause of action in respect of alleged jurisdictional error sought to be brought under s 39B of the Judiciary Act 1903 (Cth) (Judiciary Act). In addition, I adjourned, until today, the proceeding for further case management and the return of any application by a respondent for consequential dismissal of the proceeding in light of orders made on 15 November 2022.

2    As it has transpired, since 15 November 2022, each respondent has been disposed to seek the consequential dismissal of the proceeding. I am satisfied that Dr Ogawa has been given notice of such an application. There is affidavit evidence which attests to that.

3    When the proceeding was called on, Dr Ogawa was in attendance. She voiced some apprehension about continuing to appear in the proceeding. I indicated to her that I regarded any appearance that she made as conditional in the sense that it was made without prejudice to her right to pursue on an application for leave to appeal or appeal, a ground which was to the effect that I was in error in not disqualifying myself on 15 November 2022.

4    I also sought and obtained from the respective solicitors for each respondent confirmation that neither would regard Dr Ogawa’s appearance and making of submissions in response today as in any way constituting a waiver of her objection to my hearing the proceeding on the ground of apprehended bias. That confirmation having been given, I again put to Dr Ogawa that her perfect right was to attend and to make submissions, and she should at least wait until the applications had been made so as to decide whether to make submissions. I said to her that it was her perfect right either to remain or not.

5    Dr Ogawa continued to voice apprehension about her appearing, notwithstanding my indication and the confirmation given by the respondents. She stated that she was not going to participate, “No matter what.” Dr Ogawa then left the courtroom.

6    Each respondent pressed an application for dismissal. It was put that dismissal was a necessary consequence of the orders made on 15 November 2022. Dr Ogawa had sought to file on Sunday 18 December 2022 an outline of submissions. Each respondent confirmed, by their solicitors, that these submissions had been received.

7    Before she left, I did put to Dr Ogawa whether she wished to have the submissions placed on the Court file. She expressed some disquiet that the filing decision had not been made within the registry. I indicated to her that sometimes such questions were reserved to judges. Neither respondent objected to the outline of submissions being placed on the Court file. It seems to me that the interests of justice are better served by their being placed on the Court file. I therefore direct that the applicant’s outline of submissions be placed on the Court file.

8    It was put on behalf of the respondents that a feature of this outline of submissions was that it was addressed to a substantive issue in the judicial review proceeding rather than responsive to the dismissal applications. This is true. It may well be that Dr Ogawa should have expended effort at an earlier stage in endeavouring, perhaps, on bases which are set out in the outline (which I have considered) to give particularity to otherwise generally stated proposed grounds of review. As it is, the submissions are truly, as the respondents put, not responsive to whether the proceedings should now consequentially be dismissed.

9    The position which obtains is that Dr Ogawa has been denied an extension of time within which to institute a proceeding insofar as she sought to rely upon the AD(JR) Act. She has also been refused leave, alternatively, to seek to impeach the decision on the basis of alleged jurisdictional error under s 39B of the Judiciary Act.

10    What necessarily follows from the foregoing is that there is no cause of action for determination. Each potential means of challenge of the Information Commissioner’s decision of 1 December 2021 was foreclosed by the orders made on 15 November 2022. The proceeding therefore should be dismissed.

11    Each respondent has sought an order for costs. There was no reason why costs should not follow the event.

12    For completeness, I should add that I have considered whether or not to adjourn the proceeding and not to deal with the applications for dismissal made by the respondents. I note that an application for a stay of the further conduct of these proceedings was dismissed. It seems to me that the orders sought by the respondents are truly consequential. By dismissing as I consider I must, the proceedings, whatever rights Dr Ogawa has on the basis of any error made in the orders made on 15 November will be preserved. She is able, in light of an order of dismissal, to raise those as a right as grounds of appeal.

Associate:    

Dated:    2 March 2023