Ogbonna v CTI Logistics Limited (No 6)

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FEDERAL COURT OF AUSTRALIA

Ogbonna v CTI Logistics Limited (No 6) [2022] FCA 615

File number: WAD 226 of 2021
Judgment of: COLVIN J
Date of judgment: 23 May 2022
Date of publication of reasons: 24 May 2022
Catchwords: PRACTICE AND PROCEDURE - application by respondents seeking vexatious proceedings order - where applicant commenced defamation proceedings against respondent - where applicant applied to set aside bankruptcy notice - where applicant relied on claims of alleged fraud, conspiracy and judicial corruption - where application to oppose bankruptcy notice summarily dismissed - where applicant's other claims and applications dismissed - where leave to appeal from interlocutory applications arising from those claims disallowed - whether applicant's claims against the respondents are vexatious proceedings - application allowed
Legislation: Federal Court of Australia Act 1976 (Cth) s 37AO
Cases cited:

Fokas v Mansfield as Trustee of the Bankrupt Estate of Maria Fokas (No 2) [2020] FCA 30

Fuller v Toms [2015] FCAFC 91; (2015) 234 FCR 535

Kowalski v Mitsubishi Motors Australia Ltd [2011] FCAFC 159; (2011) 198 FCR 153

Mathews v State of Queensland [2015] FCA 1488

Mohareb v Palmer (No 2) [2020] NSWCA 324

Official Trustee in Bankruptcy v Gargan (No 2) [2009] FCA 398

Ogbonna v CTI Logistics Ltd [2016] FCA 239

Ogbonna v CTI Logistics Limited [2021] FCA 1491

Ogbonna v CTI Logistics Limited (No 2) [2022] FCA 75

Ogbonna v CTI Logistics Limited [2022] FCA 227

Ogbonna v CTI Logistics Limited (No 3) [2022] FCA 267

Ogbonna v CTI Logistics Limited [2022] FCA 612

Ogbonna v CTI Logistics Ltd (No 2) [2015] FCCA 2318

Ogbonna v Lay [2013] WASC 266; (2013) 230 A Crim R 148

Ogbonna v Programmed Integrated Workforce Ltd [2020] WADC 75

Ogbonna v Programmed Integrated Workforce Ltd (No 2) [2020] WADC 150

Ogbonna v Programmed Integrated Workforce Ltd [2021] WASCA 85

Ogbonna v Qantas Airways Ltd [2019] WASCA 146

Soden v Kowalski [2011] FCA 318

Teoh v Hunters Hill Council (No 8) [2014] NSWCA 125
Division: General Division
Registry: Western Australia
National Practice Area: Other Federal Jurisdiction
Number of paragraphs: 33
Date of hearing: 23 May 2022
Counsel for the Applicant: The Applicant did not appear
Counsel for the Respondents: Mr CM Slater
Solicitor for the Respondents: Jackson McDonald

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:

23 MAY 2022

THE COURT ORDERS THAT:

1.Pursuant to s 37AO(2) of the Federal Court of Australia Act 1976 (Cth), Celestine Ogbonna, the applicant in this proceeding, must not institute any proceeding in this Court against any of the respondents, any of the first respondent's officers and employees or the respondents' present or future legal practitioners (together, the Parties).

2.Any extant proceeding instituted in this Court by Celestine Ogbonna against the Parties or any of them prior…

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Details
Case
[2022] FCA 615
Decision Date

CaseChat Overview and Summary

The case of Ogbonna v CTI Logistics Limited (No 6) involved an application by the respondents seeking an order under section 37AO of the Federal Court of Australia Act 1976, which allows for the declaration of proceedings as vexatious. The applicant, Celestine Ogbonna, had previously initiated defamation proceedings against the respondents, CTI Logistics Limited and others, which were dismissed. Ogbonna subsequently applied to set aside a bankruptcy notice and sought leave to issue subpoenas, which were both denied. The respondents applied for summary dismissal of Ogbonna's further claims and applications, which were also dismissed. Ogbonna's application for leave to appeal from the interlocutory applications was disallowed. The respondents sought orders to prevent Ogbonna from continuing his vexatious claims.

The court was required to determine whether Ogbonna's claims against the respondents constituted vexatious proceedings. This involved examining whether Ogbonna's actions were an abuse of process and whether they were advanced without any reasonable ground. The court considered the record of the earlier proceedings, including the dismissal of Ogbonna's defamation claim, the lack of merit in his claims, and his persistent attempts to pursue the matter despite clear legal outcomes. The court also had to assess whether the proceedings had imposed an unfair burden on the respondents and consumed court resources without justification.

The court found that Ogbonna's claims were indeed vexatious. The court noted the hopelessness of Ogbonna's claims, the final adjudication of his defamation claim, and the absence of any factual basis to question the propriety of the judges involved. The court concluded that Ogbonna's conduct demonstrated an abuse of process and a lack of reasonable grounds for his claims. This was evident from his attempts to set aside the bankruptcy notice, issue subpoenas, and pursue the defamation claim despite clear legal outcomes. The court found that Ogbonna's actions had placed an unfair burden on the respondents and consumed court resources without justification.

The court made orders that Ogbonna must not institute any further proceedings against the respondents, their officers and employees, or their legal practitioners. Any existing proceedings by Ogbonna against the respondents were to be stayed and could not be continued without leave. Ogbonna was ordered to pay the respondents' costs of the application, to be assessed on a lump sum basis if not agreed. The respondents were required to file a proposed minute of orders fixing a lump sum for their costs, and if an agreement could not be reached, the matter was referred to a Registrar for determination.

Orders

Orders of the court

1. Pursuant to s 37AO(2) of the Federal Court of Australia Act 1976 (Cth), Celestine Ogbonna, the applicant in this proceeding, must not institute any proceeding in this Court against any of the respondents, any of the first respondent's officers and employees or the respondents' present or future legal practitioners (together, the Parties).

2. Any extant proceeding instituted in this Court by Celestine Ogbonna against the Parties or any of them prior to the date of this order shall be stayed and shall not be continued by Celestine Ogbonna without the leave of the Court.

3. The applicant must pay the respondents' costs of and incidental to the application for orders pursuant to s 37AO(2) of the Federal Court of Australia Act such costs to be assessed on a lump sum basis.

4. By 4.00 pm on 10 June 2022, the respondents must file a proposed minute of orders fixing a lump sum in relation to the respondents' costs of the application.

5. In the absence of agreement being reached with the applicant on or before 24 June 2022 as the quantum of the lump sum costs pursuant to these orders, 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

These matters, of themselves, are a sufficient basis to justify the application by the Respondents for orders pursuant to s 37AO. They demonstrate that the proceedings in this Court which have been summarily dismissed were an abuse of process and were advanced without any reasonable ground. Since the refusal of his application for special leave, Mr Ogbonna has frequently maintained, in effect, that he is not bound by the outcome by which his defamation claim was dismissed. Without articulating any coherent basis for doing so, he has adopted that position in seeking to set aside the bankruptcy notice, in seeking leave to issue subpoenas, in bringing the present proceedings, in opposing the application by the respondents for summary dismissal of those proceedings and then seeking an order that would disqualify me from hearing the application for orders pursuant to s 37AO by maintaining that same claim and seeking to pursue the defamation proceedings in the context of the application for leave to appeal. His conduct has resulted in a number of court hearings and has included his application for leave to appeal that was dismissed by Jackson J. It has placed an unfair burden on the Respondents and has consumed the resources of the Court, all without any arguable justification. There is every indication that Mr Ogbonna is persisting in this conduct in pursuing further applications that are pending.Mode of proof of relevant facts In reaching that conclusion, I note the careful analysis by Wheelahan J in Fokas v Mansfield as Trustee of the Bankrupt Estate of Maria Fokas (No 2) [2020] FCA 30 of the state of the authorities concerned with the respect in which the court record (in the form of court documents, submissions and reasons of the Court) may be relied upon to make the findings that are necessary for the purposes of considering whether there is power under s 37AO to make an order and whether the discretion to make such an order should be exercised. In order for an applicant to succeed in persuading the court to make an order under s 37AO, the applicant must demonstrate that the party against whom the order is sought has frequently instituted or conducted vexatious proceedings. Whether that is so requires a determination of a mixed question of fact and law. For that purpose, it is not necessary to determine any fact that might have been in issue in the proceeding that was addressed in reasons given in adjudicating earlier proceedings. Rather, it is necessary to reach a view as to the character of the proceedings. In the present case, a conclusion as to whether the relevant proceedings have been vexatious does not turn upon factual findings as to matters in issue between the parties. Nor does it turn upon any findings as to what the motivations or purpose of Mr Ogbonna may have been. The vexatiousness of the proceedings is said to lie in their hopelessness. Having regard to the final adjudication of the defamation claim and the lack of any factual foundation to question the propriety of the judges involved, there is simply no merit in the position being advanced repeatedly by Mr Ogbonna. This is made even more plain when the focus of his complaint is a complaint only about a failure to address an aspect of his claim in circumstances where he needed to succeed on that point as well as another point (about which he raises no complaint): see my reasoning in Ogbonna v CTI Logistics Limited [2021] FCA 1491 at [18]‑[22].

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

For those reasons, I put each of the above matters to one side.Conclusion and costs It follows that the application by the Respondents should succeed. For those reasons, I made orders substantially in the terms sought by the Respondents. In addition, the Respondents sought orders for costs to be assessed on a lump sum basis if not agreed. The usual practice of this Court is to assess costs on a lump sum basis if application is made for assessment on that basis and it is possible to fairly undertake an assessment in that way. I was satisfied that the nature of the application which required the preparation of affidavits in support, written submissions and attendances is such that costs will be readily capable of assessment on a lump sum basis. The Respondents have been wholly successful. Therefore, I made orders that Mr Ogbonna pay the costs of and incidental to the application and for those costs to be assessed on a lump sum basis if not agreed.

Ratio Decidendi

Legal Principle Established

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