Ogawa v Colbeck [2007] FCA 1910

FEDERAL COURT OF AUSTRALIA

Ogawa v Colbeck [2007] FCA 1910

MEGUMI OGAWA v RICHARD COLBECK AND GUY VERNEY QUD393 OF 2007

COLLIER J

4 DECEMBER 2007

BRISBANE IN THE FEDERAL COURT OF AUSTRALIA

QUEENSLAND DISTRICT REGISTRY QUD393 OF 2007

BETWEEN: MEGUMI OGAWA

Applicant

AND: RICHARD COLBECK

First Respondent

GUY VERNEY

Second Respondent

JUDGE: COLLIER J

DATE OF ORDER: 4 DECEMBER 2007

WHERE MADE: BRISBANE

THE COURT ORDERS THAT:

1. The application commenced by notice of motion filed 19 November 2007 be dismissed. 2. The applicant pay the respondents' costs of and incidental to today to be taxed, if not otherwise agreed. Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules. IN THE FEDERAL COURT OF AUSTRALIA

QUEENSLAND DISTRICT REGISTRY QUD393 OF 2007

BETWEEN: MEGUMI OGAWA

Applicant

AND: RICHARD COLBECK

First Respondent

GUY VERNEY

Second Respondent

JUDGE: COLLIER J

DATE: 4 DECEMBER 2007

PLACE: BRISBANE

REASONS FOR JUDGMENT 1 I have before me a notice of motion filed by the applicant on 19 November 2007. The applicant seeks the following orders: 1. That pursuant to Order 52 rule 10(2) of the Federal Court Rules, the Applicant have leave to appeal from part of the orders of the Federal Magistrate Burnett dated 14 November 2007 and 17 October 2007 made at Brisbane. 2. Such and other orders that the Court thinks fit. 3. Cost. 2 I understand that the applicant's substantive proceedings before Burnett FM concern an application filed by the applicant on 18 April 2007 seeking relief from a decision of the first respondent not to waive the applicant's migration detention costs debts and legal costs debts. 3 The orders of Burnett FM of 17 October 2007 are as follows: 1. That the Applicant provide further and better particulars in respect to the request for further and better particulars made by the Respondent in their letter dated 23 July 2007 by 4.00 pm on 12 November 2007. 2. that the application be adjourned for hearing at 10.00 am on 14 November 2007 in the Federal Magistrates Court of Australia at Brisbane. 3. That the Applicant pay the Respondents costs of today. 4. that there be liberty to apply. 4 His Honour's orders of 14 November 2007 are as follows: 1. That the applicant pay the respondents costs thrown away today. 2. That the applicant file and serve any further material including submissions by 4.00 pm on 21 November 2007. 3. That the respondent file and serve any affidavits and submissions by 4.00 pm on 28 November 2007. 4. Adjourn this matter for hearing at 10.00 am on 5 December 2007 in the Federal Magistrates Court of Australia at Brisbane. 5 These orders are clearly interlocutory orders. As is clear from O 52 r 10 Federal Court Rules, and is accepted by the applicant in her notice of motion, leave to appeal from these orders is required. I also note that O 52 r 10(2A)(b) Federal Court Rules provides that an appeal from an interlocutory judgment must be made within seven days after the date on which the interlocutory judgment was pronounced or within such further time as the Court may allow. Clearly, the applicant was out of time in relation to her application to seek leave to appeal from the orders of Burnett FM of 17 October 2007 and would in any event require leave to file and serve out of time a notice of appeal from his Honour's decision of that date. 6 For the moment considering the issue of leave to appeal only, it is clear that the Court must be satisfied that the decision below is attended with sufficient doubt to warrant it being reconsidered, and that substantial injustice would result if leave to appeal were refused: Federal Commissioner of Taxation v Hydrocarbon Products Pty Ltd (1987) 72 ALR 391, Telstra Corporation Ltd v AAPT Ltd (1997) 38 IPR 539. 7 It is not clear from the documentation filed by the applicant, being only a notice of motion, with no supporting affidavit, proposed grounds of appeal or particulars, from which part of those orders of Burnett FM the applicant seeks to appeal, or on what grounds the applicant seeks to leave to appeal. Further, I note that, other than the order as to costs, his Honour's orders were in the nature of directions. With respect to his Honour's orders as to costs, it is clear that the discretion to award costs is unfettered and is absolute, except that it must be exercised judicially, not arbitrarily or capriciously, or on grounds unconnected with the litigation: Trade Practices Commission v Nicholas Enterprises Pty Ltd & Ors (1979) 28 ALR 201. It is clear that the usual rule is that a party at fault pays the costs of the other party which have been thrown away on account of an adjournment or amendment: cf Shaheed v Tax Agents' Board of New South Wales [2007] FCA 1418 per Allsop J at [10] in respect of an adjournment; Hilditch Pty Limited v Dorval Kaiun KK [2007] FCA 1495 per Rares J at [18] in respect of an amendment. This appears to be exactly what has occurred in this case. 8 On 28 November 2007 I understand that Deputy District Registrar Belcher wrote to the applicant by ordinary post to inform her that the rules of the court require that a respondent and the court be on notice as to the applicant's case. I understand that this letter was also communicated by email and courier to the applicant on 29 November 2007, and copied to the respondent's legal representatives. Specifically, DDR Belcher pointed out that O 19 r 1 requires that a notice of motion be supported by an affidavit setting forth the facts relied upon in seeking leave to appeal and that such affidavit should be filed and served without delay. The Deputy District Registrar informed the applicant that the hearing was listed at 10.15 am on 4 December 2007. 9 This morning my associate received an email, forwarded to my chambers by a third party, Mr Clive Turner at what appears (on the face of the email) to be at the applicant's request, stating that she was not ready to appear before me this morning as she was unable to prepare a supporting affidavit for the notice of motion or serve the motion or other documents on the respondents. The applicant said that this was due to the fact that she suffered depression. In the email the applicant also said: "Since I have not been able to file necessary documents with the court yet, I have not served a motion or any other documents on the other side. Therefore I believe that the other side is not aware of the proceedings and the vacation of the listing for tomorrow will not cause any problem to other side. I apologise for any inconvenience to her Honour but I must request the vacation of listing of the proceeding of 4 December 2007. I intend to make an affidavit to support the notice of motion as soon as possible and to file it with the court." 10 Annexed to that email was a scanned letter, which appeared to be from a clinical psychologist. 11 There has been no appearance in court by the applicant this morning. However, the respondent has appeared represented by Counsel and its solicitors. 12 It is apparent that there was some urgency to list this matter prior to 5 December 2007, in the event that the applicant was appealing Burnett FM's order that the matter be relisted for that date. However, on the material before me, and in the absence of any supporting affidavit, particularised grounds in support of leave to appeal, or draft notice of appeal supporting the applicant's notice of motion, it not possible for me to be satisfied that the decision below was attended with sufficient doubt to warrant it being reconsidered, or that substantial injustice would result if leave to appeal were refused. 13 In any event, while I note the communication despatched this morning to my associate and the applicant's request that this morning's hearing be adjourned, I also note that the applicant filed her notice of motion with the Court on 19 November 2007, and on 28 November 2007 the Registry drew her attention to the fact that her notice of motion failed to comply with O 19 r 1(2) and r 3. In my view the applicant has had ample opportunity to state the case she is prosecuting, and the case the respondents are required to meet. A notice of motion for leave to appeal, without either grounds upon which the applicant relies, or supporting documentation, is in my view not competent. 14 Accordingly, the application is dismissed.