Federal Court of Australia

Ogawa v President, Australian Human Rights Commission [2023] FCA 940

ORDERS

THE COURT ORDERS THAT:

1.    The application for leave to appeal is dismissed.

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

REASONS FOR JUDGMENT

CHARLESWORTH J

1    The Court has before it an application for leave to appeal to the Full Court. The application is suitable for hearing and resolution before a single Judge.

2    By an interlocutory application filed on 7 August 2023 the applicant sought an order that I be disqualified from presiding in the matter for any purpose. I made an order dismissing that application on 8 August 2023 and proceeded to hear submissions in relation to the application for leave to appeal. Judgment on the application was reserved.

3    I now provide written reasons for the order dismissing the interlocutory application and explain why leave to appeal will be refused.

Alleged apprehended bias

4    The test for apprehended bias is whether a fair-minded lay observer might reasonably apprehend that a judge might not bring an impartial mind to the resolution of the issues to be decided:  Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337, Gleeson CJ, McHugh, Gummow and Hayne JJ (at [6]); Isbester v Knox City Council (2015) 255 CLR 135, Kiefel, Bell, Keane and Nettle JJ (at [12]). See also ALA15 v Minister for Immigration and Border Protection [2016] FCAFC 30, Allsop CJ, Kenny and Griffiths JJ (at [35] — [36]).

5    It is convenient to repeat what I said in Burgess v Minister for Immigration and Border Protection (2018) 259 FCR 197 about the two “mights” in that test:

35    The first ‘might’ concerns the likelihood (to be assessed by the Court) of the lay observer forming the reasonable apprehension. The second ‘might’ concerns the content of the apprehension itself. It concerns the assessment (notionally made by the lay observer) of the likelihood of the decision-maker having a foreclosed mind (as opposed to having a predisposed opinion) and so deviating from the course of deciding a case on its merits.

36    Judicial statements to the effect that an allegation of apprehended bias must be distinctly made and clearly established are not to be understood as altering the degrees of likelihood inherent in the test itself:  see MZZXM v Minister for Immigration and Border Protection [2016] FCA 405 at [106] and the cases cited therein. Each ‘might’ in the double might test connotes a degree of likelihood that is lower than that which may be required by the civil standard of proof in an ordinary fact-finding context. It must nonetheless be shown that the reasonable lay observer might apprehend that the decision-maker might have a foreclosed mind. It is not sufficient to demonstrate that the observer may have ‘a vague sense of unease or disquiet’ on the question:  Jones v Australian Competition and Consumer Commission (2002) 76 ALD 424 (Jones) at [100] (Weinberg J).

6    In Charisteas v Charisteas (2021) 273 CLR 289, the High Court said (at [12]):

As five judges of this Court said in Johnson v Johnson, while the fair-minded lay observer ‘is not to be assumed to have a detailed knowledge of the law, or of the character or ability of a particular judge, the reasonableness of any suggested apprehension of bias is to be considered in the context of ordinary judicial practice’.

(footnote omitted)

7    The interlocutory application was supported by an affidavit sworn by the applicant on 7 August 2023. The affidavit was read to the extent that it contains allegations of fact. To the extent that it contains material in the nature of submissions it was also read for that purpose.

8    The applicant raised a number of additional matters in support of the apprehended bias application in the course of the hearing and provided further documents. On the basis of the affidavit and additional material, I understood the interlocutory application to be based on the multiple grounds discussed below. They will be considered separately and in combination with each other.

Conduct of an earlier appeal

9    In 2022, I was the presiding member of a bench of the Full Court in an appeal commenced by the applicant. I joined in orders dismissing the appeal, for reasons given in Ogawa v Finance Minister [2022] FCAFC 145 (Ogawa Full Court). The appeal was from a judgment and orders dismissing the applicant’s application for judicial review of a decision of the Finance Minister. The applicant was self-represented in the proceeding at first instance and on the appeal.

10    The applicant submitted that the hearing of the appeal was conducted in a manner giving rise to an apprehension of bias within the principles stated in Ebner. Two circumstances were relied upon. First, the applicant relied on a portion of transcript evidencing that I:

(1)    reminded her of the limited purpose of submissions in reply;

(2)    informed her that she would not be permitted in her reply submissions to raise issues that could and should be raised in her primary submissions; and

(3)    invited her to consider whether the Full Court should require the respondent on the appeal to make submissions first, so that she may properly understand the respondent’s case before presenting her own arguments.

11    The applicant submitted that the exchange might be understood by the fair-minded observer to lure her into a “trap” so as to limit her submissions only to those that would be responsive to the respondent’s argument, and that the respondent’s argument would relate only to his strongest points. I reject that submission.

12    The exchange between the bench and the applicant related to the benign topic of the preferred order of submissions. Raising that topic would be understood by the fair-minded observer as an ordinary instance of judicial practice, involving nothing more than a suggestion to a self-represented litigant as to how she might be assisted in the presentation of her case, given that the Court would insist on the limited scope of reply. The guidance given to the applicant made it expressly clear that she could use her time to advance whatever submissions she saw fit. The question of whether to present her submissions first was left to the applicant to decide.

13    Second, the applicant alleged that in my capacity as the presiding member I interrupted her submissions or otherwise engaged with her in a way that demonstrated antagonism toward a self-represented litigant. The interruptions complained of are extracted in her supporting affidavit. As appears from the appeal transcript, the applicant was indeed interrupted in the presentation of her submissions. The words accompanying the interruptions evidence that their purpose was to remind the applicant of the importance of addressing an issue that had been raised by the respondent in the case, namely whether she was attempting to agitate matters before the Full Court on the appeal that had not been raised before the original decision-maker. I asked the applicant to identify where in the appeal papers the Full Court could find evidence that the submissions being made on appeal had been agitated previously. The request was repeated and there was no substantive response. The applicant then made an oral application that I be disqualified from further presiding on the appeal because, she alleged, my exchanges with her gave rise to an apprehension of bias. I refused the application and gave oral reasons for doing so in the course of the hearing. As extracted from the unrevised transcript, save for one revision to correct a spelling error (as marked), the oral reasons were expressed as follows:

CHARLESWORTH J:    The appellant Dr Ogawa has made an oral application …. that I be disqualified as the presiding judge on her appeal. The test for apprehended bias is well established. It is whether a reasonable well-informed lay observer might apprehend a judge might not bring an impartial mind to the questions that are to be decided. On this appeal, the Minister submits that Dr Ogawa cannot succeed because the argument that she sought to raise before the primary judge or a number of arguments that she sought to raise before the primary judge were not put to the person who made the decision subject to her application for judicial review before his Honour. That submission may or may not be correct. It is a question for this Full Court to decide.

The question raised by the respondent on the appeal involves a question of both fact and law. The factual question is whether the issues were in fact raised before the decision-maker who made the way of a decision subject to the proceedings before the primary judge from whom there is an appeal. Dr Ogawa asks that I be disqualified, as I understand it, because I have had some exchanges with her from the bench. I apprehend that she relies on at least two of those exchanges by which I first asked or provided to her a reminder that, in due course in the course of her submissions, she should not forget to address the question raised by the respondent, that is, the question of fact as to whether or not she put to the decision-maker the same arguments that she sought to agitate before the primary judge and that now forms the subject matter of her submissions before this Full Court.

The other exchange involved a question advanced by me from the bench. I interrupted Dr Ogawa’s submissions for the purpose of asking her to identify where in the materials in the court book might be contained materials on which she might wish to rely that might tend to show whether or not she did advance the same arguments before the decision-maker. It would remain open to Dr Ogawa to advance the arguments she wishes to make that apprehend that she might wish to make, and that is, that it does not matter whether she advance those arguments before the original decision-maker.

The mere fact that a judge asks to be taken to materials that might inform a question before it, even if it is not the only question, ….. not give rise to an apprehension of bias on the part of the judge, constitutes the judge asking for assistance from the litigant, albeit the litigant in person, to be taken to the materials upon which that person might rely in support of their arguments. Here, the onus is on Dr Ogawa to succeed on her repeal appeal, and it is important that the justices on the bench be taken to all of the material upon which she relies to answer the arguments put forward by the respondent. It is up to her how she responds to the question. The mere fact that the judge has asked the question or given the reminder does not give us the bias, and accordingly, I do not accede to her request that I be disqualified from hearing her appeal.

14    In the present case, the applicant persists in her submission that there was the appearance of an unwillingness on my part to hear her submissions, particularly by my repeating the reminders and requests relating to the question of whether her submissions complained of matters that had not been complained of before the original decision-maker. For the same reasons given orally in the course of the hearing, this aspect of the conduct of the proceeding did not give rise to an apprehension of bias at that time and does it do so now. The exchange involved a firm reminder to the applicant to address an issue of importance and to assist the Court to understand any material upon which she relied in respect of it. The fair-minded observer would not perceive the exchange to amount to anything other than the ordinary practice of a court in controlling the conduct of its own proceeding, including by maintaining a firm hand in the conduct of a case so as to make efficient use of the Court’s judicial resources.

Reasons in Ogawa Full Court

15    The next matter relied upon is the content of some parts of the reasons in Ogawa Full Court. The applicant alleges that the judgment contains passages that might cause the fair-minded observer to apprehend that the Full Court had been “sneaky” in the manner in which it approached the case. She submitted that the reasons employ language that avoided the need to grapple with her submissions. She alleged that the Full Court otherwise erred in reaching certain conclusions in a way that would give rise to an apprehension that the it was minded to do all that it could to ensure that the respondent in that case would “win”.

16    In support of that allegation that applicant pointed to (among other things) an alleged error affecting findings expressed at [60] of the reasons for judgment. To support a claim of apprehended bias it is not sufficient to show that a judicial officer has made an error in relation to any matter previously decided that may affect a litigant’s rights. The applicant so acknowledged in the course of her submissions. She then submitted that it was not necessary to demonstrate error, and that it was sufficient to show that the fair-minded observer would perceive that the Full Court had exercised its powers in the “sneaky” way she described.

17    The applicant’s submissions on this topic involve serious allegations having no proper foundation in the facts. Read in accordance with their ordinary meaning, there is nothing in the reasons for judgment delivered in Ogawa Full Court that is capable of giving rise to an apprehension of bias on the part of the Full Court or, more specifically, the presiding judge. The applicant is clearly aggrieved by the outcome of the earlier appeal. It also appears that she does not and cannot accept the correctness of the result. It may be that the applicant genuinely suspects that the Full Court has conducted itself in the manner she alleges. But the applicant’s suspicions are irrelevant on the present application. Any suspicions she harbors cannot properly be attributed to the fair-minded observer.

Correspondence following Ogawa Full Court

18    Next, the applicant relies on the circumstance that she corresponded with my Associate following the delivery of judgment in Ogawa Full Court for the purposes of seeking my approval for her to obtain documents on the Court record. The correspondence was originally rejected because the applicant had not complied with the requirements of a practice note concerning the appropriate procedure for contacting the chambers of a Judge. The applicant was then asked to clarify the document that she sought. The applicant said that the transcript of the proceeding would help her to establish that she cried during the course of the hearing so resulting in the need for an adjournment and she also sought a copy of the transcript to facilitate proof of that asserted fact in another action. The applicant also sought further documents, the nature of which were uncertain. The Court did not provide the applicant with a copy of the transcript and it otherwise informed the applicant that the other documents she sought did not exist. I directed by Associate not to correspond any further with the applicant and that direction was conveyed to her.

19    It is unclear what significance the applicant seeks to attach to this exchange. To the extent that she submits that the refusal to provide her with a copy of the transcript (or the correspondence more generally) evidences an attitude of antagonism toward her, I reject the submission. The provision of transcript free of charge is a matter for the discretion of the Court. It has not been established how the refusal of a request for a copy of the transcript after judgment has been delivered could conceivably give rise to an apprehension of bias in the mind of the fair-minded observer. The fair-minded observer may be taken to appreciate that the provision of transcript is always a matter of discretion. The direction that my Associate enter into no further correspondence involved the exercise of a judgment as to how the Court’s administrative resources should be prioritised. It is plain that I determined that the time of the Associate should not be utilised in any further exchanges with a party whose case had already been judicially determined and whose request had been responded to. The exchange would be understood by the fair-minded observer in that context.

Correspondence before the hearing in this matter

20    On the day before the hearing in this matter, the Court received a request by email to establish a link by Microsoft Teams so as to facilitate the attendance of the first respondent (who had filed a submitting notice) to observe the proceedings.

21    The applicant engaged in email correspondence in which she raised a concern that the provision of the Teams link equated to the Court permitting the proceedings to be streamed on the internet to all of the world. The reasons why the applicant had a concern about that need not be explored here.

22    The applicant was given the following information via email in reply:

Dear parties

I have been directed by Justice Charlesworth to respond as follows.

The hearing will commence and proceed in person and in open Court. The applicant may make submissions at the commencement of the hearing as to why the Court should be closed to the public and for what purpose(s).

The first respondent’s solicitor may observe the hearing by video link. The applicant may make submissions at the commencement of the hearing as to whether the Microsoft Teams link should be terminated and for what purpose(s).

I have made enquiries as to a Teams link and will revert shortly.

…

23    That information was repeated and is clear enough on its face. The applicant persisted in her demand for a response to her question as to whether the proceedings would be streamed. In one of her retorts to my Associate she said that she did not “give a stuff” about whether the Court would be closed.

24    When the hearing commenced I told the applicant that the Teams link was provided to facilitate persons observing the hearing as they were entitled to do. I reminded the applicant that the proceedings were to be conducted in open court. I also reminded her that by her application she had sought an order that the hearing be conducted in a closed court. I told the applicant that I had directed my Associate not to further correspond with her on the issue, because her correspondence had descended into discourtesy.

25    The applicant relies on the email exchange and the circumstance that she did not receive a direct answer to her question with respect to the streaming of the proceeding in support of her application that I be disqualified for apprehended bias. However, she did not articulate how the correspondence informed the application of the test in Ebner other than to say that it would be perceived by the fair-minded observer to involve the Court luring her into a “trap” and to assert that the correspondence had distracted her from the preparation of her case. The submissions on this topic are wholly without merit. The applicant had no entitlement to be provided with an answer to her questions about “streaming”, expressed in a way that ultimately descended into discourtesy toward my Associate. The purpose of the Teams link was plainly stated. The fair-minded observer would appreciate that a litigant in the Court has no entitlement to demand responses to questions at the time and in the way the litigant insisted upon.

26    In case it is not clear to the applicant I now make it plain that any discourtesy displayed to the staff of the Court will never be justified, at least in a case in which I preside. The fair-minded observer would attribute the perceived delay in responding to the question about “streaming” to be a result of the applicant’s obstinacy. The circumstance that the Court strongly disapproves of that conduct cannot justify an order for recusal on any reasonable view.

Conduct of the present hearing

27    The matter relied upon by the applicant is an allegation that the hearing of the present recusal application itself gives rise to an apprehension of bias. The applicant complained that she had been made to present her arguments with expedition. She alleged that her submissions had not been heard. Later in the hearing she made remarks that she expected that I would rule against her.

28    The applicant is correct in her assertion that the Court had required her to make submissions in support of her recusal application immediately upon the commencement of the hearing. The fair-minded observer would be aware that the applicant herself had sought to have the hearing expedited. The fair-minded observer would also be aware that the parties had been informed that the matter was set down for a substantive hearing on that day, and that the proceedings before the primary judge remain on foot. The expedition of the hearing was in part at the Court’s instance. The documents upon which the applicant relied were documents that were in her possession or readily able to be obtained by her. I am not satisfied that there is anything in the conduct of the hearing itself that supports the allegation of apprehended bias. The most that can be said is that the applicant believes that the Court’s powers and functions should have been exercised or performed differently. That is insufficient to give rise to an apprehension of bias.

Other allegations

29    I have not overlooked that in the course of the hearing the applicant made a range of allegations from the bar table. They took the form of complaints that her submissions were not listened to and allegations that I would proceed to judgment without having regard to her submissions. In addition, she alleged that the Court had a deliberate practice of allocating matters to judges so as to ensure that she appeared before judges who had previously ruled against her and not judges who had previously ruled in her favour. There was no evidentiary foundation for that allegation. The applicant’s submissions are suggestive of a belief that any person who rules against her is thereby to be regarded as personally antagonistic toward self-represented litigants generally, as well as the applicant personally. The circumstance that the applicant has over and again been unsuccessful in litigation does not give rise to an apprehension of bias on the part of a justice who has previously decided an issue against her.

Combined effect of submissions

30    The submissions of the applicant take her case no higher when considered in combination with each other. It is true that I have had past dealings with the applicant in my capacity as a judicial officer. Those dealings have involved the performance of judicial functions as well as administrative discretions going to matters closely related to those functions. It is true to say the applicant has had very little success in persuading me to accept any of her arguments or requests.

31    Being fair-minded, the observer must be taken to be a person who does not engage in scurrilous supposition or conjecture. An apprehension of bias would not arise in the mind of such an observer merely because a litigant is unsuccessful over and over again. The pattern that emerged from the facts and circumstances relied upon is that the applicant personally perceives bias affecting a judge who rules against her. That is not sufficient to fulfil the test for apprehended bias.

32    The interlocutory application was dismissed on that basis.

33    I now turn to resolve the application for leave to appeal.

Leave refused

34    The applicant commenced proceedings in the Victoria District Registry in December 2020. On 3 March 2021 Allsop CJ made an order that the proceeding be transferred from the Victoria Registry to the Queensland Registry. The proceeding has since been allocated to the docket of the primary judge, ordinarily residing in Sydney.

35    The applicant seeks leave to appeal from orders made by the primary judge on 21 June 2023 as follows:

1.    The applicant is to file and serve any application to transfer the matter to the Queensland Registry on or before 4pm on Friday, 14 July 2023.

2.    The matter is listed for a case management hearing on Friday 21 July 2023 at 9.30am.

(emphasis in original)

36    The orders were made and entered administratively after a Registrar of the Court notified the parties of the intention of the primary judge to make the orders unless either party opposed them within a specified timeframe. There is no evidence that the applicant responded directly to the Registrar’s email so as to bring Allsop CJ order to the attention of the primary judge. She did, however, send an email to the chambers of the then duty judge seeking to be heard on an urgent application for pre-action discovery. She expressed an intention to commence a suit against persons in the Registry or in the chambers of the primary judge who was responsible for “telling the lie appearing in the email”.

37    Two observations may be made of the order in [1] from the outset. First, the word “any” makes it plain that the applicant was not compelled to file any such application. If the applicant considered it necessary or prudent to file any such application, then the order did nothing more than to fix a time by which that should be done. Second, as the applicant correctly submits, the order is premised on an assumption that the proceeding was not a matter already transferred to the Queensland Registry. That assumption is inconsistent with the order of Allsop CJ made on 3 March 2021. The applicant’s submissions on the present application are correct to that extent.

38    The proposed grounds of appeal are expressed as follows:

1.    The order was vitiated by apprehended bias.

2.    The order was made in a way that constitutes abuse of power.

3.    The order was made by taking an irrelevant consideration into account.

4.    The order was made by failing to take a relevant consideration into account.

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

39    The orders sought on the proposed appeal include a “declaratory order that apprehended bias of the primary judge be recognised”.

40    The application is supported by an affidavit which, among other things, gives particulars of grounds on which the primary judge should be disqualified from presiding in the proceeding at first instance altogether. It contains allegations of fact as well as submissions concerning prior instances in which the same primary judge has resolved issues in other proceedings adversely to the applicant.

41    The applicant supplemented her supporting affidavit with further material tendered in the proceeding and enlarged on the submissions within the affidavit as to how the materials were said to support the claim of apprehended bias.

42    The test for apprehended bias has already been discussed and need not be repeated here.

Principles

43    The orders of the primary judge are interlocutory. Leave to appeal is required:  Federal Court of Australia Act 1976 (Cth), s 24(1A). It is convenient to repeat what I said in Ecap Finance Pty Ltd v Ottoway Engineering Pty Ltd (No 2) [2017] FCA 237 with respect to the principles guiding the discretion to grant leave:

5    …  In Samsung Electronics Co Limited v Apple Inc [2013] FCAFC 138 (Samsung) at [19], the Full Court emphasised the need for flexibility in the exercise of the discretion conferred under s 24(1A) of the FCA Act:

The very width of the discretion and the prudence in not seeking to confine the manner in which it is to be exercised is a necessary corollary of the myriad of interlocutory decisions which may be made — ranging from interlocutory decisions affecting the substantive rights of parties (and effectively being final orders) to matters of practice and procedure (including decisions to extend time, the granting or refusal of adjournments and the filing of evidence). The different character of interlocutory decisions which may be made and the different factual and forensic circumstances in play when such decisions are made nevertheless have occasioned a different emphasis from one judgment to another upon one particular factor or factors rather than others.

6    In Décor Corporation Pty Ltd v Dart Industries Inc (1991) 33 FCR 397 (Décor Corporation) the Full Court (Sheppard, Burchett and Heerey JJ) identified ‘an appropriate litmus test for the general run of cases in which leave to appeal from an interlocutory decision is sought’ (at 399). The test involves an inquiry firstly into whether the judgment of the primary judge is attended by sufficient doubt to warrant it being reconsidered by the Full Court and secondly into whether substantial injustice would result if leave were refused, supposing the decision to be wrong. The two aspects of the test are not to be applied in a tick-a-box fashion. They bear upon each other such that the degree of doubt sufficient to justify the grant of leave in one case may differ from that required in another, having regard to the nature and degree of substantial injustice that might result should leave be refused. It is in this respect that the discretion to grant leave may involve a fine balance of competing considerations:  see Sharp v Deputy Commissioner of Taxation (Cth) [1988] FCA 76; (1988) 88 ATC 4,184 at 4,186 (Burchett J) (approved by the Full Court in Décor Corporation at 398 - 399).

7    As White J observed in Ferdinands v The State of South Australia [2017] FCA 32, s 24(1A) of the FCA Act is a legislative endorsement of the recognised principle that appellate courts should exercise restraint before interfering with matters concerning practice and procedure. The consequences of a lack of appellate restraint were identified by Jordan CJ in In re the Will of F.B. Gilbert (dec.) (1946) 46 SR (NSW) 318 at 323:

…  I am of the opinion that, … there is a material difference between an exercise of discretion on a point of practice or procedure and an exercise of discretion which determines substantive rights. In the former class of case, if a tight rein were not kept upon interference with the orders of Judges of first instance, the result would be disastrous to the proper administration of justice. The disposal of cases could be delayed interminably, and costs heaped up indefinitely, if a litigant with a long purse or a litigious disposition could, at will, in effect transfer all exercises of discretion in interlocutory applications from a Judge in Chambers to a Court of Appeal.

That passage was cited with approval by the High Court in Adam P Brown Male Fashions Pty Ltd v Philip Morris Inc (1981) 148 CLR 170 at 177.

Consideration

44    On their face, the orders sought to be appealed in the present case go to matters solely of practice and procedure, namely the date by which any application of the kind described should be filed. As explained above, nothing in the orders compelled the applicant to file an application to transfer the proceeding to the Queensland Registry. One reason she may decline to do so is that no such order is necessary, given that an order for transfer had already been made.

45    It may nonetheless be accepted that the allegation of apprehended bias, if it could be established, is one that is capable of affecting the whole of the proceeding before the primary judge. To that extent the applicant has an interest in having her allegation of apprehended bias determined so as to ensure that the proceeding at first instance is not affected by any such apprehension.

46    I consider it neither necessary nor appropriate to traverse in detail the range of allegations the applicant sought to make before the Full Court on the question of apprehended bias. Nor do I consider it necessary to express a view as to whether the relief claimed on the proposed notice of appeal is able to be granted in the exercise of the Court’s appellate jurisdiction. Whatever be the basis for the allegation of apprehended bias, I have concluded that in the present case there are two matters weighing decisively in the exercise of the Court’s discretion to refuse to grant leave.

47    The first is that the order appealed from (even if based on an incorrect assumption) does not, of itself, affect that applicant’s rights. The applicant first submitted that she would be in contempt of the Court if she failed to file a transfer application in the time specified, but she quickly withdrew that submission. As I have said, the order does nothing more than to fix a time by which a thing may be done. As the applicant acknowledged, the order does not alter the legal operation of the order made by Allsop CJ on 3 March 2021.

48    Secondly, on the material before me I am satisfied that the applicant has had ample opportunity to make an application to the primary judge for an order for recusal in the proceeding at first instance but she has not done so in a timely way or at all, and that she had every opportunity to prevent the orders being made.

49    A litigant may make an application for recusal at any time. No leave is required to do so. By reference to what follows it may be inferred that the applicant has previously threatened such an application but has not followed through.

50    On 16 February 2023, the primary judge made orders fixing a time by which any application for recusal should be made, and requiring that any such application clearly specify the grounds upon which it was based. By a note to the orders, the primary judge prevented the applicant from filing any affidavit in support of the application except with the leave of the Court. On the present application the applicant submitted that the note made it impossible for her to file the application because she had been told by staff in the Registry that an interlocutory application must be supported by an affidavit. Assuming that occurred, it has not been established that the applicant drew the staff member’s attention to the orders and the note of the primary judge. Plainly, those orders permitted an application to be filed without an affidavit (indeed required it). The order also made provision for the applicant to make an application for leave to rely on affidavit material. Nothing in the orders prevented the making of the disqualification application at that earlier time, nor was the applicant prevented from seeking leave to rely on affidavit material in support. The next events make it plain that the applicant was in any event well aware that she could make an application for recusal.

51    At a case management hearing before the primary judge on 15 June 2023, the applicant confirmed that she had lodged or intended to lodge an interlocutory application in another proceeding (QUD378/2022) in which the same primary judge presided, by which she would seek an order that the primary judge be disqualified in all actions affecting her interests before the Court.

52    She also said that she had in fact lodged for filing an interlocutory application seeking to have the present proceeding before the primary judge stayed pending the outcome of the disqualification application to be made in the other proceeding. Those papers, as lodged, were before the primary judge. Her Honour invited submissions as to whether they should be accepted for filing. The relief sought by the applicant included the following:

The matter be stood over to a date to be fixed. Such a date be not before the final disposition, including appeal if any, of the Applicant’s Interlocutory Application dated 14 June 2023 in the matter of QUD378 of 2022 Ogawa v Finance Minister seeking an order that Justice Perry disqualify herself from hearing any matters in which the Applicant is a party.

53    The primary judge heard submissions from the respondent to the effect that it was not a party in the action QUD378/2022 and that the other action was not progressed in the Court in any event.

54    By those events it is plain that the applicant had foreshadowed an application for a recusal order, but was proposing to make that application in different proceedings allocated to the same primary judge. In those circumstances it is unsurprising that the primary judge enquired into whether it was appropriate to direct that the interlocutory application not be accepted for filing.

55    At the same case management hearing, the following exchange occurred:

HER HONOUR:    Well, I wonder then whether the fairest approach might be to afford you, Dr Ogawa, the opportunity to make an application for me to disqualify myself in this matter if that’s what you wish to press, and then we can see the basis on which you seek my disqualification which should be properly articulated in the application. Does that sound to you, Dr Ogawa, like a fair way to proceed?

DR OGAWA:        Unfortunately not. I want to file the interlocutory application. …

56    That exchange speaks for itself. The exchange continued in a way that appears to involve some confusion about whether the applicant had in fact lodged for filing an application to have the proceedings transferred to Queensland.

57    As mentioned earlier, the orders subject to the present application were foreshadowed to the applicant in an email from the New South Wales Registry days before they were made. That email stated:

Dear Parties,

Following the case management hearing, the chambers of Justice Perry made enquiries of the Registry in order to ascertain whether there was any record of an application by Dr Ogawa being filed which sought to transfer these proceedings to the Queensland Registry of the Federal Court. The Registry has confirmed that they have no record of any such application having been filed.

In those circumstances, if Dr Ogawa wishes to have the matter transferred to the Queensland registry, her Honour considers that an application seeking orders to that effect needs to be filed by Dr Ogawa, together with an affidavit in support of that application.

Her Honour therefore proposes to make the following orders in Chambers, subject to any objection by any party received by 4pm on Monday, 19 June 2023:

1.    The applicant is to file and serve an application to transfer the matter to the Queensland Registry on or before 4pm on Friday, 14 July 2023.

2.    The matter is listed for a case management hearing on Friday, 21 July 2023 at 9.30am.

58    The applicant did not raise any objection as the email specifically indicated she could do. Instead, she elected to apply to the duty judge for urgent discovery orders so that she could commence legal proceedings against the persons responsible for the “lies” in the email.

59    Leave to appeal should not be granted in respect of an order that the applicant had every opportunity to object to by way of responding email to the Registrar, both on the basis that the proposed order was wrong footed or on the basis that the proceeding was affected by an apprehension of bias, or both. To the extent that the applicant invest the Court to find that her urgent missive to the duty judge must necessarily have come to the attention of the primary judge I decline to do so. The short point is that the email she complained of expressly invited her to state an objection and yet she elected not to respond to it. It may reasonably be inferred that she did not respond because she was fixed in a view that the proposed orders were the product of lies rather than a mistake. But that was her choice. The result is that she failed to object to the orders from which she now seeks leave to appeal.

60    At a further case management hearing on 21 July 2023 (following the lodgment of the present application), the primary judge again fixed a time by which the applicant should file any recusal application. No application was filed within the time ordered.

61    These matters weigh determinatively in the exercise of the discretion to refuse leave to appeal from the order made on 21 June 2023 fixing a time for any transfer application to be made. On the material before me, I am satisfied that the applicant is seeking to use that order as a device to agitate before the Full Court an issue that can and should first be raised before the primary judge. If raised before the primary judge, the matter will be resolved on the basis of the evidence and the arguments of the parties and its disposition will be the subject of reasons for judgment applying the law to the facts as found. It would be open to either party to seek leave to appeal from the judgment. In the event that leave is then granted, the Full Court will have the benefit of the reasons of the primary judge so as to better perform its appellate function.

62    The applicant could advance no compelling submission against these considerations. She submitted that I should not “send her back” to the primary judge. Her submissions otherwise went no higher than to assert that if she made the application before the primary judge she would not be heard. That assertion must also be rejected. The Court as presently constituted does not send a litigant “back” to the judge presiding at first instance. The applicant is presently a party to proceedings allocated to the primary judge. Those proceedings remain on foot and, absent a stay, it is her duty to diligently prosecute them.

63    The submissions otherwise involve a serious allegation directed to the primary judge for which there is no proper evidentiary basis. There is nothing before me to indicate that the primary judge would adjudicate upon any recusal application other than judicially or other than in accordance with the rules of procedural fairness. As at 15 June 2023 the applicant had foreshadowed her intention to seek to have the primary judge recuse herself in all proceedings. All that remained to be determined was the procedure by which, and the timeframe in which, her foreshadowed recusal application should be made. The applicant refused to engage because she remained firm in her view that the proceeding should be stayed whilst an interlocutory application was filed, then heard, then determined in another proceeding that was in its infancy. The conduct of the applicant is causative of disruption and delay. No adequate explanation has been put forward for her refusal to accede to the invitation extended by the primary judge to make the disqualification application in the appropriate action, and no reasonable explanation has been provided for her failure to respond to the email inviting objections to the impugned orders before they were made.

64    I will not express any further view about the merits of serious allegations the applicant wished to agitate before a Full Court, given the likelihood that they will arise for consideration and resolution by the primary judge. Leave to appeal will be refused irrespective of the merits of the applicant’s claims.

Associate:

Dated:    10 August 2023