Ogawa v The University of Melbourne [2004] FCA 491

FEDERAL COURT OF AUSTRALIA

Ogawa v The University of Melbourne [2004] FCA 491 PROCEDURE - application for security for costs – impecuniosity of applicant – circumstances in which an award for security for costs will be made against an impecunious applicant Trade Practices Act 1974 (Cth) s 52 Federal Court of Australia Act 1976 (Cth) s 56 Logue v Hansen Technologies [2003] FCA 81, followed

P S Chellaram & Co Ltd v China Ocean Supply Co (1991) 102 ALR 321, referred to

Scargill v Minister for Immigration and Multicultural Affairs [2003] FCAFC 116, referred to

Bell Wholesale Co Pty Ltd v Gates Export Corporation (No 2) (1984) 2 FCR 1, referred to

MEGUMI OGAWA v UNIVERSITY OF MELBOURNE Q 136 OF 2003 MARSHALL J 26 APRIL 2004 MELBOURNE

IN THE FEDERAL COURT OF AUSTRALIA

VICTORIA DISTRICT REGISTRY Q 136 OF 2003

BETWEEN: MEGUMI OGAWA

APPLICANT

AND: UNIVERSITY OF MELBOURNE

RESPONDENT

JUDGE: MARSHALL J

DATE OF ORDER: 26 APRIL 2004

WHERE MADE: MELBOURNE

THE COURT ORDERS THAT: 1. Paragraphs 1 to 4 of the respondent's motion of 24 November 2003 be dismissed. 2. Costs reserved. 3. The substantive hearing be adjourned to a telephone directions hearing at 10.15 am on 4 May 2004 at which time the parties will be heard on whether the matter should be transferred to the Federal Magistrates Court. Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA

VICTORIA DISTRICT REGISTRY Q 136 OF 2003

BETWEEN: MEGUMI OGAWA

APPLICANT

AND: UNIVERSITY OF MELBOURNE

RESPONDENT

JUDGE: MARSHALL J

DATE: 26 APRIL 2004

PLACE: MELBOURNE

REASONS FOR JUDGMENT

Background 1 On 9 September 2003 the applicant, Ms Ogawa, applied to the Court for orders in respect of what she alleged to be contraventions of the Trade Practices Act 1974 (Cth) ("the TP Act"). Ms Ogawa, in the alternative, in the accrued jurisdiction of the Court, sought damages for breach of contract and negligence. Ms Ogawa commenced the proceeding in the Queensland District Registry of the Court. 2 In her statement of claim, filed in the proceeding, Ms Ogawa alleged, amongst other things, that the respondent, The University of Melbourne ("the University") had engaged in misleading and deceptive conduct with respect to her undertaking of a Doctor of Philosophy course at the University ("the course"). 3 In an amended statement of claim, filed on 8 October 2003, Ms Ogawa contended that the University had breached s 52 of the TP Act. She abandoned her claims made in the accrued jurisdiction of the Court. On 24 November 2003 the University filed a defence in which it denied that it had breached s 52 of the TP Act. 4 Also on 24 November 2003, the University filed a notice of motion seeking that the proceeding be transferred to the Victoria District Registry of the Court. Amongst other relief, the University sought the following orders:- "1. The applicant provide security for the respondent's costs of the proceeding, … in the manner and for the amount and on the terms which the Court considers appropriate, pursuant to Order 28, rule 3(1) of the Rules of Court and section 56 of the Federal Court of Australia Act 1976 (Cth).