Federal Court of Australia Ogawa v Australian Information Commissioner (No 3) [2024] FCA 135 File number: QUD 387 of 2021 Judgment of: LOGAN J Date of judgment: 22 February 2024 Catchwords: PRACTICE & PROCEDURE – where the applicant was ordered to pay the first respondents costs, either as agreed or to be fixed in a lump sum by a Registrar – where the applicant informally applies for the review of a Registrar's costs decision – where the Federal Court Rules 2011 (Cth) provide a procedure to challenge a taxation of costs but not where costs have been awarded in a lump sum – whether specific procedure should be prescribed for the challenge of a lump sum costs decision – procedure akin to challenge of taxation of costs decision ordered Legislation: Federal Court of Australia Act 1976 (Cth) s 23 Federal Court Rules 2011 (Cth) r 1.21, r 1.32, r 40.02, r 40.34, r 40.35 Division: General Division Registry: Queensland National Practice Area: Administrative and Constitutional Law and Human Rights Number of paragraphs: 17 Date of hearing: 22 February 2024 Counsel for the Applicant: The applicant did not appear Counsel for the First Respondent: Ms S Amos Solicitor for the First Respondent: Holding Redlich Solicitor for the Second Respondent: Australian Government Solicitor ORDERS QUD 387 of 2021 BETWEEN: MEGUMI OGAWA Applicant AND: AUSTRALIAN INFORMATION COMMISSIONER First Respondent DEPARTMENT OF HOME AFFAIRS Second Respondent order made by: LOGAN J DATE OF ORDER: 22 FEBRUARY 2024 THE COURT ORDERS THAT: 1. The Registrar furnish forthwith a copy of the applicant's email of 29 December 2023 to the Associate to Justice Kennett to the solicitors for the first respondent. 2. In the absence of express provision in the Federal Court of Australia Rules 2011 (Cth) (Rules), akin to the r 40.34 procedure in the Rules in respect of review by a judge of a Registrar's taxing decisions and in circumstances where the Court has, pursuant to r 40.02 of the Rules awarded costs to the first respondent to be fixed in a lump sum by a Registrar, the process to be followed in this review be: (a) The applicant file and serve an application for review using a Form 133, with that form adapted to specify, in lieu of items challenged, the grounds upon which the applicant contends that the Registrar's decision is excessive and the amount by which it is thereby excessive (review application). (b) The review application must be filed and served on or before 21 March 2024. (c) If the applicant seeks a stay of the execution on any of the costs included in the Registrar's decision, the applicant must: (i) Include such an application in the review application (stay application). (ii) File and serve in conjunction with the stay application any affidavit in support thereof. 3. In the event that the review application is filed and served in accordance with order 2: (a) If the review application includes a stay application, the first respondent must file and serve within 14 days any affidavit relied on in relation to the stay application. (b) The Registrar must list the proceeding for case management and, if necessary, a return of the stay application on a date to be fixed in consultation with the parties. 4. Liberty to apply. 5. Costs be reserved. 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 On 20 December 2023, for reasons published that day, a registrar of the Court ordered that the costs of the first respondent, the Australian Information Commissioner, payable by the applicant, Dr Megumi Ogawa (Dr Ogawa), pursuant to the orders made, on 15 December 2022 and 19 December 2022, be fixed in the sum of $74,416.28. 2 On 29 December 2023, Dr Ogawa sent an email to the associate to Justice Kennett in these terms: Dear Associate to Kennett J I apply for the Court's review of the Registrar's decision (attached). I also apply for all the rules of the Court for making such application to be dispensed with and this email is to be taken to satisfy the requirement for making such an application. If possible, I wish to apply for the stay of the orders made by the first instance judge, Logan J, since Holding Redlich probably will not stop extracting money from the Government. Kind regards Megumi Attached to that email was a copy of the registrar's decision of 20 December 2023. 3 That email communication was unorthodox in a number of ways. First, it was directed, contrary to the practice of the court in respect of litigants acting for themselves, to a Judge's associate. Second, it was not copied to those acting for the respondents. Third, it sought to challenge, in an informal way, the registrar's costs decision. It appears that the communication was directed to Justice Kennett's associate because his Honour is presently seized with a question as to whether to grant leave to appeal in respect of orders made in this proceeding. 4 Litigants in person can present very particular challenges in the administration of justice. But there are no separate rules of court applicable to litigants in person. 5 It appears from a perusal of the administrative part of the Court's file in respect of this proceeding that officers of the Registry have been doing their best to meet those challenges. As a sequel to Dr Ogawa's email of 29 December 2023, staff in the Registry tried to ascertain whether she wished to press a challenge to the registrar's decision and, if so, to settle upon a time for case management in respect of such a challenge. 6 In turn, it appears that Dr Ogawa has, in dealings with the registrar, formed a view that her challenge might not need to be heard, pending the disposal of proceedings before Justice Kennett. 7 The upshot though is that the proceedings were listed for case management today. There has been an appearance on behalf of the first respondent and, for that matter, the second respondent. There has not been an appearance by or on behalf of Dr Ogawa. I can, though, see how Dr Ogawa might have formed a view that an appearance by her was not necessary. However that may be, there is a need, in my view, to regularise the position with respect to such challenge as Dr Ogawa may wish to make in respect of the registrar's decision. 8 It will be quite obvious from the date of her email and the time of year that Dr Ogawa moved, however informally, to give notice at least to the Court of a desire on her part to challenge the decision. The question becomes how to regularise a challenge if Dr Ogawa wishes so to do? 9 In the course of a helpful exchange between me and Ms Amos of counsel for the first respondent, it became ever increasingly clear on an examination of Pt 40 of the Federal Court Rules 2011 (Cth) (Rules), which deals with costs, that there was not in that Part provision akin to r 40.34 and r 40.35 in circumstances where, in lieu of costs falling to be taxed, costs have instead been awarded by the Court in a lump sum, pursuant to r 40.02, to be fixed by a Registrar. 10 Where costs have fallen for taxation, r 40.34 provides for a review, on application by a party who attended the taxation, of the taxation decision. In itself, such an application does not operate to stay execution for costs that are the subject of a certificate of taxation. But r 40.35 provides that a party making an application under r 40.34 may apply to the court to stay execution on any costs included in a certificate of taxation until the application is heard and determined. 11 Under the Rules, by r 1.32: The Court may make any order that the Court considers appropriate in the interests of justice. That rule takes up the Court's power conferred by s 23 the Federal Court of Australia Act 1976 (Cth) to make such orders as are appropriate in respect of matters within jurisdiction. 12 Further, by r 1.21 of the Rules: Application for orders about procedures A person who wants to start a proceeding, or take a step in a proceeding, may apply to the Court for an order about the procedure to be followed if: (a) the procedure is not prescribed by the Act, these Rules or by or under any other Act; or (b) the person is in doubt about the procedure. By her email, Dr Ogawa plainly enough sought a deeming of the informal process constituted by the application she voiced in her email. The first respondent also came to submit that there was a need to regularise the position so far as any challenge that Dr Ogawa sought to make to the Registrar's costs decision. 13 It seems to me that there is a gap in the procedure in the rules in relation to the challenging of a registrar's decision where costs have been fixed in a lump sum. In my view, there is a need for such a procedure to be prescribed, certainly, in the circumstances of the present case and perhaps more generally in the Court's practice as a result of the experience with this case. 14 The procedure which seems to me to be just is to adapt that provided for in r 40.34 and r 40.35 to the circumstance of a fixing of costs in a lump sum, as opposed to taxing costs, with provision, also, for an application for a stay of execution. There is a need, in my view, to adapt that procedure in a way which requires an applicant to give particularity to the basis upon which a registrar's decision to fix costs in a lump sum is challenged. I therefore propose to require the filing of a Form 133 by Dr Ogawa in the event that she seeks to challenge the registrar's decision, with that form adapted so as to specify, in lieu of items challenged, the grounds upon which she contends that in whole, or in part, the sum fixed by the registrar is excessive and, if so, the amount in which it is thereby excessive. 15 I propose to allow Dr Ogawa a like time to that which would be allowed for the filing of an application for review under r 4.34 and, further, to make provision if she be so disposed for an application for stay of execution in respect of the registrar's decision. 16 Nothing in foregoing, I should add, is intended in any way to inhibit the power of the Court to make such orders as may be just in conjunction with the application for leave to appeal which is presently upon Justice Kennett's docket. 17 There will, therefore, be orders accordingly. I certify that the preceding seventeen (17) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Logan. Associate: Dated: 23 February 2024