Ogawa v Stewart

1. The applicant's interlocutory application filed on 18 April 2023 be dismissed. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

RANGIAH J: 1 On 27 March 2023, in Ogawa v Stewart [2023] FCA 286, I dismissed the applicant's application for judicial review of a decision of the respondent, a registrar of the Court (the Registrar), to refuse to accept an interlocutory application and affidavit lodged by the applicant for filing. 2 The order for dismissal (the Dismissal Order) was made under r 30.22 of the Federal Court Rules 2011 (Cth) (the Rules) on the basis that the applicant had failed to appear at the trial of the proceeding. 3 This matter has some relationship with Ogawa v Buckingham (No 2) [2023] FCA 1387 (QUD391/2022), which I will also deliver today. 4 The application presently before the Court is an interlocutory application filed on 18 April 2023 for an order that the Dismissal Order be set aside (the Interlocutory Application). 5 The applicant had also sought an order that I disqualify myself from hearing her application to set aside the Dismissal Order on the basis of apprehended bias. In Ogawa v Stewart (No 2) [2023] FCA 661, I declined to recuse myself. The applicant then applied for leave to appeal, but she subsequently discontinued that application. 6 On 18 September 2023, the applicant notified the Court that she wished to have the Interlocutory Application decided on the papers. 7 The Registrar filed a submitting appearance and there is no contradictor. 8 To give context to the Interlocutory Application, it is necessary to begin with the applicant's application for judicial review of a decision of the Finance Minister's delegate declining to waive a debt owed by the applicant to the Commonwealth (given the file number QUD663/2019). On 16 June 2020, I dismissed that application: Ogawa v Finance Minister [2020] FCA 829. The Full Court subsequently dismissed the applicant's appeal against my judgment: Ogawa v Finance Minister [2021] FCAFC 17. 9 On 10 September 2022, the applicant lodged an interlocutory application for filing in QUD 663 of 2019, seeking an order under r 39.05(b) of the Rules setting aside my orders of 16 June 2020. Rule 39.05(b) provides that the Court may set aside a judgment or order after it has been entered if "it was obtained by fraud". On 14 September 2022, the Registrar refused under r 2.26 of the Rules to accept the application for filing on the basis that it was an abuse of the Court's process and was frivolous or vexatious. The Registrar's decision became the subject of the proceeding which I dismissed under the Dismissal Order. 10 I infer that the applicant seeks to have the Dismissal Order set aside under r 39.05(a) of the Rules, which allows the Court a discretion to set aside a judgment or order after it has been entered if it was made in the absence of a party. The discretion should ordinarily be exercised only in exceptional circumstances: Australian Securities and Investments Commission v ActiveSuper Pty Ltd (No 4) [2013] FCA 318 at [6]; Polis v Zombor (No 5) [2022] FCA 122 at [43]. The relevant considerations include whether the applicant has provided a proper explanation for their absence, and whether the applicant has shown a case which is reasonably arguable: Lal v Minister for Immigration and Border Protection (No 2) [2014] FCA 892 at [9]; Polis (No 5) at [44]. 11 The Interlocutory Application was accompanied by an affidavit sworn by the applicant on 14 April 2023. The only assertion in that affidavit that may have some present relevance is that the applicant had been unable to locate anyone at Queensland Registry of the Court to witness an affidavit she had proposed to file. The applicant has provided no explanation for why she could not have located a qualified witness elsewhere, nor has she explained any connection between her inability to swear her proposed affidavit and her failure to attend the trial. I do not consider that material to demonstrate any adequate reason for her failure to appear. 12 By orders made on 22 September 2023, Dr Ogawa was given the opportunity to file any further affidavits and written submissions in support of the Interlocutory Application. She did not take up that opportunity. The applicant's response merely asserted that I had been, "ready to hand down the judgment on 14 June 2023 without any further submissions". I gave no such indication. 13 I am not satisfied that the applicant has provided any proper, reasonable or adequate explanation for her failure to attend the trial. I am not satisfied that the applicant has demonstrated any reasonably arguable case of error in the Registrar's decision. Consequently, I am not satisfied that the applicant has established any adequate basis for setting aside the Dismissal Order. The Interlocutory Application will be dismissed. 14 On 9 November 2023, after the applicant had been notified of the date for delivery of judgment, she sent an email to my associate stating: I wish to make sure that his Honour has not forgotten that his Honour said to me in court in response to my outline of submissions that the merits of my Interlocutory Application which the Respondent in this case had refused to file were irrelevant in this case. I also wish to make sure that his Honour understands that paragraphs 7 and 8 of my Affidavit of 27 September 2022 are my allegation of the second fraud which is based the Full Court judgment which changed the fact upon which his Honour had made the judgment in the case where I tried to file the rejected Interlocutory Application. 15 I did not tell the applicant that the merits of her application refused for filing were irrelevant. 16 Paragraphs 7 and 8 of the applicant's affidavit of 27 September 2022 appear below a heading "Fraud in equity", but do not make any allegation of fraud. They merely explain that if the applicant had a pro bono lawyer, the lawyer would have argued the applicant's case differently. 17 It may be noted that in this matter and in Buckingham, the applicant has not offered any submissions as to why the Registrars may have erred in characterising her rejected applications as an abuse of the Court's process and frivolous or vexatious. Yet her substantive and interlocutory applications have resulted in wastage of a disproportionate amount of the Court's resources, including necessitating the production of five separate judgments. I certify that the preceding seventeen (17) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Rangiah.