Ogawa v Finance Minister [2022] FCA 693 | Case summary

THE COURT NOTES THAT:

The parties are to contact the local registry or chambers of the presiding judge (where known) by 3.00 pm on the next business day in the event of any non-compliance with these orders by any party.
The parties are to confer as to whether Part C of the Appeal Book will be a joint Part C of the Appeal Book in this matter and in QUD450/2021. THE COURT ORDERS THAT:
Paragraph 1 of the interlocutory application accepted for filing on 20 April 2022 is dismissed.
Costs reserved.
The matter be listed for hearing before a Full Court in Brisbane during the August 2022 Full Court and appellate sitting period.
The hearing be listed consecutively or concurrently with the hearing in matter QUD450/2021.
The hearing of both matters be listed for a total estimate of up to one day.
The respondent file and serve Parts A and B of the Appeal Book by 27 June 2022.
Not later than 4.00pm on 4 July 2022, the appellant file and serve on the respondent an outline of submissions and any chronology of the relevant events.
In accordance with Practice Note APP2, not later than 4.00pm 15 business days before the hearing, the respondent file and serve on the appellant an outline of submissions, a chronology of the relevant events and a list of materials to be included in Part C of the Appeal Book.
In accordance with Practice Note APP2, not later than 4.00pm 10 business days before the hearing, the appellant file and serve on the respondent any submissions in reply and any response to the list of materials to be included in Part C of the Appeal Book.
Not later than 4.00pm 5 business days before the hearing, the respondent file and serve on the appellant Part C of the Appeal Book.
Each party must file and serve a list of authorities and legislation: (a) not later than 5 business days before the hearing for the appellant; and (b) not later than 4 business days before the hearing for the respondent.

DOWNES J: 1 This is an application for an order that the listing of two appeals in the matters of QUD6/2022 and QUD450/2021 be vacated and that QUD6/2022 be stood over until after the final resolution of the appeal in QUD450/2021. 2 Both appeals are from a decision of a single judge of this Court in Ogawa v Finance Minister [2021] FCA 1666, which is a 30 paragraph decision. In that decision, the primary judge addresses and makes findings about matters which relate to grounds of appeal raised by the appellant in both of the appeals. 3 In the decision of the primary judge, the primary judge recorded reasons for declining to accept further affidavits which were sought to be filed by the appellant and for declining to make an order that other affidavits which had not been accepted for filing should be accepted for filing. The respondent accepts that the material which the appellant sought to put before the primary judge can be before the Full Court on the appeal, which was one of the issues raised by the appellant today. 4 In support of her application, the appellant raised issues relating to the fact that English is not her first language and that she is self-represented. However, the appellant has achieved tertiary qualifications in this country which demonstrates that she does have an ability to both write and speak the English language. Further, the appellant has already filed written submissions for the appeal in QUD450/2021, and the evidence shows that she has drafted submissions for the appeal in QUD6/2022 (which are annexed to an affidavit which she relied upon today). 5 The appellant also raised concerns that, in effect, she will not be able to deal with both appeals at the same time and so they should be severed to enable her to represent herself fairly. However, it is proposed that both appeals be heard together in August 2022, which is some two months away, and, as already observed, the appellant has either already filed submissions or drafted submissions in relation to both appeals. 6 In terms of the appellant being able to deal with the issue of whether or not the additional evidence sought to be relied upon by her will be accepted by the Full Court, the appellant can prepare submissions on the basis that the additional evidence is or is not admitted, and supplement her submissions in that way. 7 In other words, she can approach the matter as if the evidence is admitted or not admitted when making submissions to the Full Court. 8 Both appeals were to be heard together in May 2022, and this means that the appellant has already had several further weeks since May 2022 to prepare both of these appeals. 9 In the circumstances, I am not persuaded that the two matters should be severed such that QUD450/2021 proceeds first and the appeal in QUD6/2022 does not proceed until the earlier appeal is determined. 10 A further reason for this conclusion arises from the respondent's reference to Practice Information Note APP1: Case Management of Full Court and Appellate Matters (APP1). This relevantly provides that a triage process is undertaken by the Court during which matters are reviewed by a National Appeals Coordinating Judge with the assistance of a Registrar with a view to considering how the matter can be case managed to finalisation as quickly, inexpensively and efficiently as possible in accordance with the overarching purpose in s 37M of the Federal Court of Australia Act 1976 (Cth). 11 In this case, it has been determined after that process that the two appeals should be heard concurrently; that is, that they should be heard together along with the application for leave to appeal in QUD450/2021. This is not surprising as the primary judge's decision is quite short, and it is expedient, efficient and cost-effective for the issues raised in both appeals to be dealt with by one Full Court on the same day. 12 In the circumstances, paragraph 1 of the interlocutory application which was accepted for filing on 20 April 2022 should be dismissed. 13 When I asked the parties for submissions on the issue of costs, Dr Ogawa raised the point that the application below was for orders that evidence in other matters be evidence in that matter, that outlines of submissions filed in other proceedings be evidence in that matter, and that all affidavits that the applicant has eLodged and will eLodge in that matter be filed. That interlocutory application was dismissed by the primary judge by order dated 16 December 2021 by reference to the reasons to which I referred earlier and which are, as I have said, quite short. This does not affect the conclusion which I have reached. 14 The respondent seeks, and I will make an order that, costs of the application be reserved. I certify that the preceding fourteen (14) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Downes.

Ogawa v Finance Minister

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