Ogawa v Australian Information Commissioner [2018] FCA 766

FEDERAL COURT OF AUSTRALIA

Ogawa v Australian Information Commissioner [2018] FCA 766 Appeal from: Ogawa v Australian Information Commissioner [2018] FCA 266

File number: QUD 191 of 2018

Judge: LOGAN J

Date of judgment: 8 May 2018

Catchwords: ADMINISTRATIVE LAW – appeal – failure to serve notice of appeal – failure by appellant to appear as required at case management hearing – dismissed for want of prosecution.

Legislation: Privacy Act 1988 (Cth)

Date of hearing: 8 May 2018

Registry: Queensland

Division: General Division

National Practice Area: Administrative and Constitutional Law and Human Rights

Category: Catchwords

Number of paragraphs: 6

Counsel for the Appellant: The appellant did not appear

Solicitor for the Respondents: Holding Redlich Lawyers (courtesy appearance only)

ORDERS QUD 191 of 2018

BETWEEN: MEGUMI OGAWA Appellant

AND: AUSTRALIAN INFORMATION COMMISSIONER First Respondent

MICHELE CALVIRD Second Respondent

JUDGE: LOGAN J DATE OF ORDER: 8 MAY 2018

THE COURT ORDERS THAT:

1. The appeal be dismissed. 2. There be no order as to costs. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

(Revised From Transcript) LOGAN J: 1 Dr Megumi Ogawa has instituted proceedings against the Australian Information Commissioner (Information Commissioner) arising out of a complaint made by her against a medical specialist practitioner, Dr Calvird, under the Privacy Act 1988 (Cth). The background to the present proceedings concerns criminal proceedings instituted against Dr Ogawa and related undertakings given by her in 2009 to attend appointments with Dr Calvird. 2 Dr Ogawa's complaint appears to concern a communication by or on behalf of Dr Calvird to the Commonwealth Director of Public Prosecutions. In an earlier proceeding in this Court, QUD363 of 2013, Greenwood J set aside an earlier decision of the Information Commissioner declining to investigate Dr Ogawa's privacy complaint against Dr Calvird. His Honour found that, on the available material, the delegate concerned had not reached a state of satisfaction that the collection of the information was authorised. In turn, in later proceedings, Collier J made particular orders which have become the subject of an appeal by Dr Ogawa. 3 Earlier this month, Dr Ogawa communicated with the registrar. She signified that she was considering whether to prosecute the appeal. The advice, though, from the registrar to her, materially, was that today was, nonetheless, a date appointed for case management in respect of the appeal. It appears that Dr Ogawa has not yet served the notice of appeal. At the registrar's request and without waiving a right as to service, there has been an attendance today on behalf of the Information Commissioner. That was with a view to the case management of the appeal, perhaps with service being acknowledged in the event that Dr Ogawa chose to appear. 4 As it happens, that particular plan has been brought to naught by the failure by Dr Ogawa to appear today. It is incumbent upon a person who has instituted an appeal either to serve the notice of appeal and prosecute it or promptly to discontinue the appeal. Dr Ogawa has done neither. She has also failed to attend today as required. That is an event of default. 5 That being so, the proceedings should be dismissed. I certify that the preceding six (6) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Logan.