Ogawa v Finance Minister

1. Justice Logan is not disqualified, by reason of earlier participation in appeals in which the appellant was a party, from sitting on the Full Court in respect of the present appeal.
2. The respondent prepare the appeal book, which is to include, exceptionally, the written submissions filed by the parties in the original jurisdiction. The registrar is to settle the contents of the appeal book in the event of any disagreement between the parties.
3. Subject to Order 2, the registrar make the usual interlocutory directions to the end of listing the appeal for a hearing before the Full Court of half a day to a day.
4. There be liberty to apply.
5. The costs of and incidental to the preparation of the appeal book be the respondent's costs in any event. Save as aforesaid, costs be reserved. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

LOGAN J: 1 Dr Megumi Ogawa has appealed to the Full Court against orders given in the original jurisdiction in respect of an application by her for the judicial review of a decision by the Finance Minister not to make an ex gratia payment to her: see Ogawa v Finance Minister [2021] FCA 59. The appeal has been assigned to me for the purposes of case management. On this morning's case management hearing, I raised with each of the parties a question as to whether or not having regard to my participation in two earlier judgments of the Full Court, either wished to submit that I should disqualify myself? Those earlier Full Court judgments were Ogawa v Carter (Delegate of Finance Minister) [2021] FCAFC 16 and Ogawa v Finance Minister [2021] FCAFC 17. 2 Dr Ogawa put with commendable succinctness and respectfulness that there was occasion in my participation in those earlier Full Court judgments warranting my disqualifying myself from participating in any Full Court which came to determine the present appeal. 3 It also became apparent that Dr Ogawa's objection extended not just to me but also to the other judges who had constituted the Full Court in those earlier appeals. It is not of course for me to decide whether or not each of those other judges should disqualify themselves. In the first instance at least, that is a question to be determined by each individual judge. 4 The Minister's stance was that occasion was not to be found in either of those earlier Full Court judgments warranting my disqualification. That submission, I should record, also extended to the other members of the Full Court. 5 The relevant principles in relation to whether or not a judge should disqualify him or herself are not in doubt. They are to be found in, amongst other cases, Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337 and Michael Wilson & Partners Ltd v Nicholls (2011) 244 CLR 427. In substance, what is posited is what has been termed a "double might" test in terms of whether or not a reasonable apprehension of bias exists. 6 With the discrimination one might expect from someone whose academic attainments in legal studies are high, Dr Ogawa did not make any submission that there was actual bias. Rather, her submission was that, having regard to the reasons for judgment in each of the Full Court cases, necessarily I had reached views as to her credibility. That being so, the submission she made was that I ought not sit in the Full Court to hear the present appeal. 7 The factual substratum for the present appeal is certainly similar, if not for all practical purposes identical, to the factual substratum which underpinned at least the Full Court case concerning whether or not there ought to be waiver of the overall debt owed by Dr Ogawa to the Commonwealth. That said, the statutory power which was sought to be engaged in respect of that earlier debt waiver appeal is quite different to the statutory power sought to be engaged so as to secure the making of an act of grace payment. 8 Further, whilst there were factual evaluations to make in relation to each of those cases, those factual evaluations including assessment as to credibility were for the administrator alone to make, not for a judge and the exercise of judicial power. 9 In my view the judgments in each of those earlier Full Court cases involved no credibility assessment by me. Rather, at most, all they involved is recognition that such assessments were for the administrator and, if reasonably made, and not otherwise attended with jurisdictional error, were for the administrator alone to make. 10 It is also part of the law in relation to apprehended bias disqualification that judges have a duty to sit and to exercise their judicial commissions and should not lightly disqualify themselves. In this particular case, the view which I have reached is there is not occasion to be found for my disqualifying myself from sitting on the Full Court if so panelled for the purposes of the hearing and determination of the present appeal. I so rule. I certify that the preceding ten (10) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Logan.