Ogawa v Stewart

1. The applicant be granted leave to file her affidavit affirmed on 14 June 2023.
2. The application for an order that Justice Rangiah disqualify himself from hearing QUD325/2022 and QUD391/2022 be dismissed.
3. The matter be adjourned for a case management hearing on a date to be fixed. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

RANGIAH J: 1 In Ogawa v Stewart [2023] FCA 286, I dismissed the applicant's application for judicial review of a decision of a Registrar of the Court refusing to accept documents lodged by the applicant for filing. 2 In Ogawa v Buckingham [2023] FCA 287, I dismissed the applicant's similar application in respect of a different Registrar's refusal to accept other documents for filing. 3 In each case, the orders for dismissal were made under r 30.22 of the Federal Court Rules 2011 (Cth), in circumstances where the applicant had failed to appear at the hearing on 27 March 2023. 4 The applicant has now filed an interlocutory application seeking orders, including: 1. The order made in this matter and in the matter of QUD391 of 2022 Ogawa v M C Buckingham on 27 March 2023 be set aside. 2. Justice Rangiah disqualify himself from the hearing of this matter and the matter of QUD391 of 2022 Ogawa v M C Buckingham. … 5 I have heard the applicant's application for my disqualification. The applicant relied upon written submissions she filed on 26 March 2023, and also made oral submissions in support of her application. 6 For the reasons that follow, I decline to recuse myself. 7 In PD v President, Australian Human Rights Commission (No 2) [2021] FCA 851, I dismissed another application made by the applicant for my disqualification. The applicant's application for leave to appeal was dismissed by a Full Court in Ogawa v President, Australian Human Rights Commission [2022] FCAFC 161. I adopt, without repeating, the Full Court's reasons at [30] - [35]. 8 In Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337, the High Court held at [6] that apprehended bias is established: …if a fair minded lay observer might reasonably apprehend that the judge might not bring an impartial mind to the resolution of the question the judge is required to decide. 9 In QYFM v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs & Anor [2023] HCA 15 at [67], the High Court recently reaffirmed the test stated in Ebner. 10 As I understand the applicant's submissions, she contends that a reasonable apprehension of bias arises because: (1) At a case management hearing on 10 February 2023, I ought to have told the applicant that the strength of her proposed case would be relevant to whether the Registrars' decisions should be set aside. (2) At the same case management hearing, the applicant indicated that she would require two weeks to file one set of written submissions and a further two weeks for the second set, whereas I only gave her three weeks in total. (3) In Ogawa v Carter [2020] FCA 828, I dismissed the applicant's application by relying on evidence I had found to be inadmissible. (4) In Ogawa v Finance Minister [2020] FCA 829, I must have known that the Finance Minister's decision had not been sent to the applicant until a certain time, despite the Minister's counsel not having disclosed that fact to the Court. (5) I had disqualified myself from hearing a previous proceeding involving the applicant. (6) In a previous proceeding, VID792/2020, I had ordered the applicant to file an outline of submissions within two working days. 11 As to the applicant's first argument, in the course of the case management hearing, I informed the applicant that it was necessary for me to be satisfied that there was an appropriate and proper basis to set aside the Registrars' decisions. Later, the applicant indicated that she understood that it was necessary for the court to determine the legality of the Registrars' decisions. I cannot see how failing to specifically tell the applicant that the strength of her proposed case was relevant in circumstances where the documents were rejected on the basis that they were an abuse of process or frivolous or vexatious, can give rise to a reasonable apprehension of bias. 12 As to the second argument, the applicant asked for a total of four weeks for the filing of her written submissions. I agreed, and nominated 3 March 2023. The date I nominated was, mistakenly, three weeks away, not four. I asked the applicant if that was enough time. The applicant's reply indicated she hoped it was enough time, but she did not suggest any later date. When the applicant subsequently pointed out by email that she had been given only three weeks, I ordered that the time for compliance be extended to 10 March 2023. The exchange at the case management hearing obviously involved miscommunication between the applicant and I. I cannot see how that can give rise to a reasonable apprehension of bias. 13 As to the third argument, as the Full Court held, I was in error in considering evidence that I had rejected during the hearing. That error cannot give rise to a reasonable apprehension of bias. 14 As to the fourth argument, I cannot see how any reasonable lay observer could think or suspect that I must have known something that I was not informed of. 15 As to the fifth argument, I informed the applicant during the case management hearing on 10 February 2023 that the reason I had recused myself from hearing one of her previous proceedings was that one of my family members had commenced working for the Australian Government Solicitor, who were acting for the respondent in that matter. However, that circumstance does not apply in the present proceedings. 16 As to the sixth ground, I cannot see that allowing two working days for the provision of written submissions concerning a proposed amendment of an Originating Application in the period leading up to a final hearing can give rise to a reasonable apprehension of bias. 17 Whether the circumstances raised by the applicant are considered individually or in combination, I consider that no basis for my recusal has been established. Accordingly, the application for my disqualification will be dismissed. 18 I will order that the application for an order that I disqualify myself from the hearing of this matter and QUD391 of 2022 be dismissed. 19 The applicant has indicated she intends to seek leave to appeal from this judgment and opposes the making of any case management orders. I will order that the matter be adjourned for a case management hearing to a date to be fixed. I certify that the preceding nineteen (19) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Rangiah.