Ogbonna v CTI Logistics Limited

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FEDERAL COURT OF AUSTRALIA

Ogbonna v CTI Logistics Limited [2022] FCA 851

Appeal from: Ogbonna v CTI Logistics Limited (No 2) [2022] FCA 75
File number: WAD 41 of 2022
Judgment of: JACKSON J
Date of judgment: 20 July 2022
Catchwords: PRACTICE AND PROCEDURE - leave to appeal from summary dismissal of claim - no doubt about correctness of primary decision - leave refused
Legislation:

Federal Court Rules 2011 (Cth) rr 22.02, 22.04, 26.01

Defamation Act 2005 (WA) s 28
Cases cited:

Blair v Curran (1939) 62 CLR 464

Decor Corporation Pty Ltd v Dart Industries Inc (1991) 33 FCR 397

Ogbonna v CTI Logistics Limited [2022] FCA 227

Ogbonna v CTI Logistics Ltd [2021] WASCA 25

Re Macks; Ex parte Saint [2000] HCA 62; (2000) 204 CLR 158

Speight v Gosnay (1891) 60 LJQB 231

Tomlinson v Ramsey Food Processing Pty Limited [2015] HCA 28; (2015) 256 CLR 507
Division: General Division
Registry: Western Australia
National Practice Area: Other Federal Jurisdiction
Number of paragraphs: 42
Date of hearing: 13 July 2022
Counsel for the Applicant: The applicant appeared in person
Counsel for the Respondents: Mr C Slater
Solicitor for the Respondents: Jackson McDonald

ORDERS

WAD 41 of 2022
BETWEEN:

CELESTINE OGBONNA

Applicant
AND:

CTI LOGISTICS LIMITED (ACN 008 778 925)

First Respondent

NEIL RASPA

Second Respondent

JUSTIN PETER SIMS

Third Respondent

THOMAS PETER WILSON
Fourth Respondent

DAVID ANDERSON MELLOR
Fifth Respondent

ORDER MADE BY:

JACKSON J

DATE OF ORDER:

20 JULY 2022

THE COURT ORDERS THAT:

1.The application for leave to appeal is dismissed.

2.The applicant must pay the respondents' costs of the application on a lump sum basis.

3.By 4.00 pm AWST on Wednesday 3 August 2022, the parties must file any agreed proposed minute of orders fixing a lump sum in relation to the respondents' costs of the application.

4.In the absence of any agreement having been reached, the matter of an appropriate lump sum figure for the respondents' costs is referred to a Registrar for determination.

Note:   Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.


REASONS FOR JUDGMENT

JACKSON J:

  1. Mr Ogbonna seeks leave to appeal from the decision of this Court in Ogbonna v CTI Logistics Limited (No 2) [2022] FCA 75 (Primary Judgment or PJ).  That decision was made in proceeding WAD 226 of 2021, in which Mr Ogbonna was the applicant and the respondents to the present application were the respondents.  In the Primary Judgment, summary judgment was awarded against Mr Ogbonna, and his own application for summary judgment against the respondents (and for various other declarations and orders) was dismissed.

  2. For the following reasons, the application for leave to appeal will be dismissed.

    Background

  3. Proceeding WAD 226 of 2021 concerned a claim for defamation that Mr Ogbonna brought against the first and second respondents in the District Court of Western Australia (there was also in WAD 226 of 2021 an application for vexatious proceedings orders which is not presently relevant).…

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Details
Case
[2022] FCA 851
Decision Date

CaseChat Overview and Summary

In the matter of Ogbonna v CTI Logistics Limited, the applicant, Mr Ogbonna, sought leave to appeal the decision of the primary judge, his Honour Justice Emmett, to dismiss his application for leave to appeal the summary dismissal of his defamation claim in the District Court of Western Australia. The respondent, CTI Logistics Limited, opposed the application for leave to appeal. The primary judge dismissed Mr Ogbonna's application for leave to appeal on the basis that there was no doubt about the correctness of the primary decision. Mr Ogbonna's application for leave to appeal was dismissed, and he was ordered to pay the respondents' costs of the application.

The legal issues before the court were whether Mr Ogbonna's proposed grounds for appeal and the evidence and submissions he presented raised a sufficient level of doubt about the correctness of the primary decision to warrant the Full Court reconsidering it. The primary judge had concluded that there was nothing out of the ordinary in the affidavits upon which Mr Ogbonna relied, and that his submissions amounted to no more than a fervent hyperbolic expression of his disagreement with the legal reasoning of the judges in three courts. The primary judge held that it would be a substantial injustice for the respondents to be burdened with having to deal with a complaint of the kind that Mr Ogbonna was now advancing. The primary judge also noted that the Court of Appeal's approach to s 28 of the Defamation Act did not explain the dismissal of the appeal, which was based on a conclusion that the second respondent was not responsible for republication of the extract from the email.

The Full Court considered the well established principles governing applications for leave to appeal, which are whether the decision sought to be appealed from is attended with sufficient doubt to warrant its being reconsidered by the appellate court, and whether substantial injustice would result if leave were refused, supposing the decision to be wrong. The Full Court found that Mr Ogbonna's proposed grounds for appeal and the evidence and submissions he presented did not raise a sufficient level of doubt about the correctness of the primary decision. The Full Court noted that a large proportion of Mr Ogbonna's evidence and submissions were vociferous denunciations of the alleged conduct of several lawyers and judicial officers, accompanied with descriptions of numerous complaints he has made and intends to make to various authorities and governmental bodies, such as the Australian Federal Police and members of the Commonwealth Parliament. The Full Court held that the denunciations had no basis in the evidence and the making of such complaints to other bodies is irrelevant to the determination of this proceeding. The Full Court concluded that the primary judge's decision was not attended with sufficient doubt to warrant reconsideration by the Full Court. The application for leave to appeal was dismissed, and Mr Ogbonna was ordered to pay the respondents' costs of the application.

Orders

Orders of the court

1. The application for leave to appeal is dismissed.

2. The applicant must pay the respondents' costs of the application on a lump sum basis.

3. By 4.00 pm AWST on Wednesday 3 August 2022, the parties must file any agreed proposed minute of orders fixing a lump sum in relation to the respondents' costs of the application.

4. In the absence of any agreement having been reached, the matter of an appropriate lump sum figure for the respondents' costs is referred to a Registrar for determination.

Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

Background

Background to the litigation

For the following reasons, the application for leave to appeal will be dismissed.Background Proceeding WAD 226 of 2021 concerned a claim for defamation that Mr Ogbonna brought against the first and second respondents in the District Court of Western Australia (there was also in WAD 226 of 2021 an application for vexatious proceedings orders which is not presently relevant). The background has been summarised in several other judgments in this and other courts, including the Primary Judgment. I will not repeat that exercise in full here. The key points are:(1)The defamation claim concerned an allegedly defamatory email which the second respondent sent in 2012.(2)The specific publication which founded the claim was alleged to have taken place in 2018, however. A legal information services provider, the Australasian Legal Information Institute published online a judgment of the Federal Circuit Court of Australia which contained an extract from the email. Mr Ogbonna pleaded that the relevant publication occurred when the judgment was downloaded from website in 2018.(3)The District Court granted summary judgment against Mr Ogbonna in the claim. In this proceeding, Mr Ogbonna disputes the basis on which that court dismissed the claim. I will come to that later.(4)Mr Ogbonna appealed to the Court of Appeal of Western Australia. The appeal was dismissed. Again, the basis for this is contentious.(5)The High Court of Australia dismissed an application for special leave to appeal from the Court of Appeal's decision on the basis that the application raised no reason to doubt the correctness of the decision. The originating process and statement of claim in proceeding WAD 226 of 2021 were not in evidence in this proceeding. The Primary Judgment described the application as follows (at [8]), and Mr Ogbonna has put no evidence before me to indicate that the description was incorrect:… Mr Ogbonna acting on his own behalf now claims that there were conspiracies and perversions of the course of justice in respect of the determination of the proceedings in the District Court, the Court of Appeal and the High Court. In various respects those actions are alleged by him to have involved the judges and lawyers acting in those proceedings. Mr Ogbonna alleges that the conduct amounts to 'criminality, fraud or other serious misconduct'. He says that there has been abuse of public office. …The Primary Judgment After setting out the background in more detail than I have, and describing the claim as quoted above, the primary judge said that the whole of Mr Ogbonna's argument concerned the approach to s 28 of the Defamation Act 2005 (WA), which provides for a defence to defamation claims where defamatory matter is contained in a public document. His Honour said that Mr Ogbonna made it clear that if s 28 had been applied the way he said it should, he would not have commenced WAD 226 of 2021. According to his Honour, Mr Ogbonna submitted that his allegations of fraud and conspiracy were established by the publicly made decisions of the District Court, the Court of Appeal and the High Court mentioned above. His Honour said that Mr Ogbonna pointed to nothing beyond what had occurred in open court, through the making of submissions and the publication of reasons as to matters concerned with s 28.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

The originating process and statement of claim in proceeding WAD 226 of 2021 were not in evidence in this proceeding. The Primary Judgment described the application as follows (at [8]), and Mr Ogbonna has put no evidence before me to indicate that the description was incorrect:… Mr Ogbonna acting on his own behalf now claims that there were conspiracies and perversions of the course of justice in respect of the determination of the proceedings in the District Court, the Court of Appeal and the High Court. In various respects those actions are alleged by him to have involved the judges and lawyers acting in those proceedings. Mr Ogbonna alleges that the conduct amounts to 'criminality, fraud or other serious misconduct'. He says that there has been abuse of public office. …The Primary Judgment After setting out the background in more detail than I have, and describing the claim as quoted above, the primary judge said that the whole of Mr Ogbonna's argument concerned the approach to s 28 of the Defamation Act 2005 (WA), which provides for a defence to defamation claims where defamatory matter is contained in a public document. His Honour said that Mr Ogbonna made it clear that if s 28 had been applied the way he said it should, he would not have commenced WAD 226 of 2021. According to his Honour, Mr Ogbonna submitted that his allegations of fraud and conspiracy were established by the publicly made decisions of the District Court, the Court of Appeal and the High Court mentioned above. His Honour said that Mr Ogbonna pointed to nothing beyond what had occurred in open court, through the making of submissions and the publication of reasons as to matters concerned with s 28. The primary judge's reasons for granting summary judgment in those circumstances are encapsulated in the Primary Judgment at [16]:There is nothing out of the ordinary in anything that is the subject of the affidavits upon which Mr Ogbonna relies. His submissions rise no higher than a fervent hyperbolic expression of his disagreement with the legal reasoning by judges in three courts. He has had his opportunity to bring his claim. It has been dealt with in open court and has been taken all the way to the High Court without success. It is a substantial injustice that the respondents should now be burdened with having to deal with a complaint of the kind that is now advanced by Mr Ogbonna. It is fundamentally misconceived and is oppressive. Also, the primary judge noted that the Court of Appeal's approach to s 28 of the Defamation Act did not explain the dismissal of the appeal, which was based on a conclusion that the second respondent was not responsible for republication of the extract from the email. At PJ [18] his Honour concluded that these 'fundamental defects in the contentions advanced by Mr Ogbonna are a full and sufficient basis for Mr Ogbonna's summary judgment application to be dismissed and the respondents' summary dismissal application to be allowed'.The proposed grounds of appeal

Ratio Decidendi

Legal Principle Established

Mr Ogbonna relied on an affidavit he swore on 16 February 2022, which was read into evidence on this application. An affidavit dated 15 November 2021 in WAD 226 of 2021 was also admitted into evidence in this proceeding as an exhibit.Consideration It is convenient to quote the summary of well established principles governing applications for leave to appeal drawn from Decor Corporation Pty Ltd v Dart Industries Inc (1991) 33 FCR 397 at 398-399 which I gave in Ogbonna v CTI Logistics Limited [2022] FCA 227 (Previous Leave Decision) at [7]:The decision whether to grant leave is a discretionary one. The discretion is conferred in unqualified terms by s 24(1A) of the Federal Court of Australia Act 1976 (Cth) and is unfettered. The two major considerations that will generally be addressed in the exercise of the discretion are whether the decision sought to be appealed from is attended with sufficient doubt to warrant its being reconsidered by the appellate court, and whether substantial injustice would result if leave were refused, supposing the decision to be wrong. These two considerations are not to be isolated in separate compartments; they bear upon each other, so that the degree of doubt that is sufficient in one case may be different from that required in another. They provide an appropriate litmus test for the general run of cases, but they are not rigid rules that destroy a court's discretion in all cases but those falling within them.There was no dispute between the parties to the present application as to these principles. The respondents submit that one reason that the application for leave to appeal should be dismissed is that even if the Primary Judgment was wrong, no substantial injustice has been caused to Mr Ogbonna because his defamation claim proceeded through the Western Australian courts all the way to the High Court, so he has already had access to substantial justice in this case. But that is not an answer to the question about substantial injustice, because the question is whether substantial injustice would result if leave were refused, supposing the primary decision to be wrong. Here, if the primary decision is wrong, then Mr Ogbonna should have been permitted to pursue his claims that the decisions of those previous courts were vitiated by conspiracy and fraud. In this case, it can readily be accepted that if the outcome of the Primary Judgment were to wrongly prevent Mr Ogbonna from pursuing a case of that kind, there would be substantial injustice. The key consideration in this case, then, is whether the Primary Judgment is attended with sufficient doubt to warrant its being reconsidered by the Full Court. The relative strength of the 'substantial injustice' consideration means that the level of doubt need not be high in order to justify leave to appeal. With that in mind, the focus of the rest of this judgment will be on whether Mr Ogbonna's proposed grounds, and such submissions and evidence as he presented that were relevant to those grounds, raise a sufficient level of doubt about the correctness of the Primary Judgment. It has been necessary to word the last sentence that way because a large proportion of Mr Ogbonna's evidence and submissions were vociferous denunciations of the alleged conduct of several lawyers and judicial officers, accompanied with descriptions of numerous complaints he has made and intends to make to various authorities and governmental bodies, such as the Australian Federal Police and members of the Commonwealth Parliament. The denunciations had no basis in the evidence and the making of such complaints to other bodies is irrelevant to the determination of this proceeding, so those matters need not be mentioned further.Ground 1 - notice to admit facts or documents