Ogawa v University of Melbourne [2004] FCA 491 (‘Ogawa’). The overseas student who initiated the proceedings is the author of this article. Because of this, the author is familiar with all relevant facts including ones that do not appear in the documents filed with the Court. However, this Brief is based solely on information in the court documents including the transcripts of the proceeding.
2.
See further, ColbranS, ‘Application for Security for Costs’ (1993) 10Australian Bar Review11, 11. See for the opposite objective, BatrouneyJ, ‘Security for Costs — Shield or Sword?’ (April 1992) Law Institute Journal284.
3.
Thus, a common defence for resisting security is to prove the existence of sufficient funds. See for a possible defence, DelanyJ, Security for Costs (1989) 117.
4.
Bell Wholesale Co Ltd v Gates Export Corp (1984) 52 ALR 176, 177.
5.
See, CairnsB, Australian Civil Procedure, (5th ed, 2002) 535.
6.
Cowell v Taylor (1885) 31 Ch D 34, 38 (Bowen LJ).
7.
Scargill v Minister for Immigration and Multicultural Affairs [2003] FCAFC 116.
8.
Ogawa, above n 1, [27].
9.
In Scargill v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 116, 75 ALD 53, [26], French, von Doussa and MarshallJJ cited GummowJ in Gauthiez v Minister for Immigration and Ethinic Affairs (1994) 53 FCR 512, 519 that: ‘The meaning ordinarily given to the phrases ‘resides’, ‘usually resides’ and ‘ordinarily resides’ is such as to make the result in a given case depend largely upon matters of fact and degree.’ See also, Logue v Hansen Technologies (2003) 125 FCR 590, 597.
10.
Ogawa, above n 1, [25] and [26].
11.
Ibid [28].
12.
Ogawa, Transcript of Proceedings, Federal Court of Australia, 19 March 2004, 56.
13.
Barton v Minister for Foreign Affairs (1984) 54 ALR 586.
14.
Ogawa, above n 1, [42].
15.
Ibid.
16.
Ibid [43].
17.
MarshallJ considered that a student visa was an indicator of temporary residence in Australia. See, Ogawa, Transcript of Proceedings, 48.
18.
In this respect, MarshallJ stated that: ‘I wouldn't worry about that [the applicant is not on the Australian electoral roll]. Neither is my brother.’ See, Ogawa, Transcript of Proceedings, 70.
19.
Ogawa, above n1, [43].
20.
See, FlickG, Federal Court Practice (1989), [3064/10].
