JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
TITLE OF COURT : THE COURT OF APPEAL (WA)
CITATION: OGBONNA -v- CTI LOGISTICS LTD [2021] WASCA 25
CORAM: QUINLAN CJ
MURPHY JA
MITCHELL JA
HEARD: 2 FEBRUARY 2021
DELIVERED : 12 FEBRUARY 2021
FILE NO/S: CACV 149 of 2019
BETWEEN: CELESTINE OGBONNA
Appellant
AND
CTI LOGISTICS LTD
First Respondent
NEIL RASPA
Second Respondent
ON APPEAL FROM:
Jurisdiction : DISTRICT COURT OF WESTERN AUSTRALIA
Coram: STAVRIANOU DCJ
File Number : CIV 744 of 2018
Catchwords:
Practice and procedure - Summary judgment - Defamation - Appellant commenced proceedings for defamation against respondents - Summary judgment awarded in favour of respondents - Where alleged defamatory material contained in an email admitted as evidence in Federal Circuit Court proceedings and reproduced in the reasons for decision of the Federal Circuit Court - Where reasons for decision of the Federal Circuit Court were subsequently published on website - Where appellant sued alleging a cause of action based on the republication on the website rather than the original publication of the email - Whether arguable case existed that respondents were liable for republication of alleged defamatory imputations on the website - Whether it is arguable that publication of the email in a judgment on the website was a natural and probable consequence of the original publication of the email
Legislation:
Defamation Act 2005 (WA), s 28
Limitation Act 2005 (WA), s 15, s 40
Result:
Appeal dismissed
Category: B
Representation:
Counsel:
| Appellant | : | In person |
| First Respondent | : | T P Wilson |
| Second Respondent | : | T P Wilson |
Solicitors:
| Appellant | : | In person |
| First Respondent | : | Jackson McDonald |
| Second Respondent | : | Jackson McDonald |
Case(s) referred to in decision(s):
Belbin v McLean [2004] QCA 181
Charisteas v Charisteas [2020] FamCAFC 162; (2020) 354 FLR 167
Concrete Pty Ltd v Parramatta Design & Developments Pty Ltd [2006] HCA 55; (2006) 229 CLR 577
Cummings v Fairfax Digital Australia and New Zealand Pty Ltd [2018] NSWCA 325; (2018) 99 NSWLR 173
Ebner v Official Trustee in Bankruptcy [2000] HCA 63; (2000) 205 CLR 337
Habib v Radio 2UE Sydney Pty Ltd [2009] NSWCA 231
Jia v Minister for Immigration and Multicultural Affairs (1998) 84 FCR 87
Johnson v Johnson [2000] HCA 48; (2000) 201 CLR 488
Jorgensen v Fair Work Commission [2019] FCAFC 113; (2019) 271 FCR 461
KWLD v The State of Western Australia [2020] WASCA 94
March v E & MH Stramare Pty Ltd (1991) 171 CLR 506
Michael Wilson & Partners Ltd v Nicholls [2011] HCA 48; (2011) 244 CLR 427
Minister for Immigration and Multicultural Affairs v Jia Legeng [2001] HCA 17; (2001) 205 CLR 507
Oakey Coal Action Alliance Inc v New Acland Coal Pty Ltd [2019] QCA 184; [2019] 2 Qd R 271
Oakey Coal Action Alliance Inc v New Acland Coal Pty Ltd [2021] HCA 2
Ogbonna v CTI Logistics Ltd [2016] FCA 239
Ogbonna v CTI Logistics Ltd [2019] WADC 111
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- AGLC
- Ogbonna v CTI Logistics Ltd [2021] WASCA 25
- Case
- [2021] WASCA 25
- Decision Date
CaseChat Overview and Summary
The legal issues before the court included whether the appellant's dissatisfaction with the outcome of the decision and the perceived errors of fact or law by the judge constituted grounds for establishing actual bias. The court had to clarify the distinction between errors of fact or law and actual bias, noting that while the former could be addressed on appeal, the latter required a demonstration of the judge's lack of impartiality. The court also considered whether the outcome of the decision could be used to assess whether the principles of natural justice had been followed.
The court ruled that the appellant's submissions were misconceived insofar as they relied on disagreements with the content or outcome of the decision. The focus, according to the court, should be on the procedure followed rather than the merits of the decision. The court emphasised that a fair-minded lay observer would not reasonably apprehend bias merely because of a disagreement with the judge's reasoning or the outcome. The court concluded that the appellant had not met the stringent standard necessary to establish actual bias, as the allegations did not distinctly and clearly demonstrate the judge's lack of impartiality.
The court dismissed the appeal, affirming that the appellant's dissatisfaction with the decision and perceived errors of fact or law did not constitute actual bias. The court reiterated that the principles of natural justice pertain to the procedure followed in decision-making, not the outcome. The appellant's failure to meet the stringent standard of proof for actual bias meant that the decision stood.
Orders
Orders of the court
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Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
An inquiry about actual bias in the form of prejudgment requires assessment of the state of mind of the judge in question, ordinarily on the basis of what the judge had said and done.[24] As French J noted in Jia v Minister for Immigration and Multicultural Affairs:[25]The onus of demonstrating actual bias lies upon an applicant for judicial review and it is a heavy onus. The fact that an applicant may have demonstrated that on the decision-maker's provisional views he has an uphill job to persuade him away from those views is not enough to demonstrate actual bias.That is, as Kirby J noted in Jia,[26] an allegation of actual bias is subject to a 'stringent standard of proof' and will only be upheld 'where the accusations are distinctly made and clearly proved' and, as in the case of allegations of reasonable apprehension of bias,[27] where it is 'firmly established'.[24] Michael Wilson & Partners Ltd v Nicholls [2011] HCA 48; (2011) 244 CLR 427[33].[25] Jia v Minister for Immigration and Multicultural Affairs (1998) 84 FCR 87, 106, a judgment approved by members of the High Court in Jia [72], [82].[26] Jia [127].[27] See R v Commonwealth Conciliation and Arbitration Commission; ex parte Angliss Group (1969) 122 CLR 546, 553 - 554. The appellant's submissions are misconceived so far as they rest on his disagreement with the content or outcome of Stavrianou DCJ's reasoning, which the appellant contends ignored the facts and deliberately avoided applying the law. If the judge made an error of fact or law then that error can be corrected on appeal in dealing with the appellant's substantive grounds. However, establishing that a judge made errors of fact or law does not establish either actual or ostensible bias. As this court recently noted in KWLD v The State of Western Australia,[28] the question of whether there has been a failure to comply with the rules of natural justice is not answered by reference to the outcome of the exercise of the relevant power. The principles of natural justice are not concerned with the merits of a particular exercise of power, but with the procedure that must be observed in its exercise. The focus of attention must therefore be on the position as it stood before the impugned decision is taken. Where apprehended bias is alleged, the reasons ultimately given for the impugned decision are not relevant to the objective assessment of whether a fair-minded lay observer might reasonably apprehend that the judge might not bring an impartial and unprejudiced mind to the resolution of the issues.[29] [28] KWLD v The State of Western Australia [2020] WASCA 94 [104].[29] Michael Wilson & Partners [33], [67] - [68]. There will be cases where comments made by a judge in the course of his or her reasons for decision give rise to a reasonable apprehension of partiality in the process which led to the decision. The decision of the Queensland Court of Appeal in Oakey Coal Action Alliance Inc v New Acland Coal Pty Ltd provides an example of such a case.[30] However, there is a difference between apprehending bias in the decision making process from statements in a court's reasons which might suggest partiality, on the one hand, and apprehending bias merely from the outcome of the decision-making process. The mere fact that a reviewing court does not agree with the reasoning of the decision-maker, or regards such reasoning as illogical, irrational or even perverse, is not, in itself, sufficient to establish actual or apprehended bias.[31][30] Oakey Coal Action Alliance Inc v New Acland Coal Pty Ltd [2019] QCA 184; [2019] 2 Qd R 271 [77] - [102]. While this decision was overturned on appeal, the High Court did not doubt the Queensland Court of Appeal's reasoning as to apprehended bias: see Oakey Coal Action Alliance Inc v New Acland Coal Pty Ltd [2021] HCA 2. It is unnecessary to address the question of whether Sofronoff P was correct, at [103], to regard the fact that the member determined some issues in favour of a party as relevant in that case.[31] Re Minister for Immigration and Multicultural Affairs; ex parte Applicant S20/2002 [2003] HCA 30; (2003) 77 ALJR 1165 [99] (per Kirby J). While Kirby J's observations were made in relation to the review of administrative decisions, they apply equally to allegation of actual bias by a judge.