Ogbonna v CTI Logistics Limited (No 4)

[2022] FCA 358

FEDERAL COURT OF AUSTRALIA

Ogbonna v CTI Logistics Limited (No 4) [2022] FCA 358

File number:	WAD 226 of 2021
Judgment of:	COLVIN J
Date of judgment:	6 April 2022
Legislation:	Federal Court of Australia Act 1976 (Cth) s 37AO
Cases cited:	Ogbonna v CTI Logistics Limited (No 3) [2022] FCA 267
Division:	General Division
Registry:	Western Australia
National Practice Area:	Other Federal Jurisdiction
Number of paragraphs:	7
Date of hearing:	Determined on the papers
Counsel for the Applicant:	The Applicant did not appear
Counsel for the Respondents:	The Respondents did not appear

ORDERS

WAD 226 of 2021

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:	COLVIN J
DATE OF ORDER:	6 APRIL 2022

THE COURT ORDERS THAT:

1.In respect of the request for leave dated 1 April 2022, the request for leave is refused.

2.Order 7 of the orders made 7 February 2022 is varied to read:

Until further order, save for any minutes of orders to be considered at the case management hearing and any application pursuant to this order, no party shall file any further application in these proceedings or other document without prior leave of the Court, such leave to be sought by filing an ex parte interlocutory application and any submissions in support of the application for leave.

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

REASONS FOR JUDGMENT

COLVIN J:

1. Mr Ogbonna seeks leave to file a notice to admit.  In Ogbonna v CTI Logistics Limited (No 3) [2022] FCA 267 I explained the circumstances in which the requirement for leave was imposed. In those reasons, I also explained why I refused to grant leave to Mr Ogbonna to file a number of documents including a notice to admit: at [4].

2. The new proposed notice is similar in form to the proposed notice for which leave has been refused. It is sought on the basis of a claim that the respondents' application for orders declaring Mr Ogbonna to be a vexatious litigant is frivolous, vexatious and oppressive because Mr Ogbonna maintains that he has presented evidence to show that he is not a vexatious litigant. He also says that an order under s 37AO of the Federal Court of Australia Act 1976 (Cth) should not be made without giving the person concerned an opportunity to be heard.

3. Orders were made for the respondents' application to be listed after a date in April. Those orders provide for Mr Ogbonna to file submissions by 8 April 2022. The application has now been listed for hearing on 23 May 2022. It is not the case that it is contemplated that an order under s 37AO will be made without affording Mr Ogbonna an opportunity to be heard.

4. The new proposed notice, like the previous proposed notice, seeks admissions as to matters that are properly addressed by way of submissions.  It seeks admissions as to the inadequacy of the evidence relied upon by the respondents and admissions to the effect that the respondents' interlocutory application should be removed from the court file or the matter struck out on the basis that Mr Ogbonna has 'presented concrete evidence to prove that he is not a vexatious litigant'.

5. The new proposed notice is not in proper form.  Leave to serve the proposed notice would serve no purpose because it simply calls upon the respondents to withdraw.  It does not seek to narrow the issues or seek admissions as to discrete matters.  It would require costs to be incurred by way of response.

6. For those reasons, leave to file the new proposed notice to admit is refused.

7. Any further application for leave to file any further document in these proceedings should only be brought by filing the appropriate application being an ex parte interlocutory application seeking such leave.  I will amend the orders concerning leave to make that position clear.

I certify that the preceding seven (7) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Colvin.

Associate:

Dated:       6 April 2022