Ogbonna v CTI Logistics Ltd
[2021] WASCA 24
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
TITLE OF COURT : THE COURT OF APPEAL (WA)
CITATION: OGBONNA -v- CTI LOGISTICS LTD [2021] WASCA 24
CORAM: MITCHELL JA
HEARD: 2 FEBRUARY 2021
DELIVERED : 2 FEBRUARY 2021
PUBLISHED : 8 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:
Courts and judges - Where a party alleges actual bias by judge arising from prior decisions in relation to a party - Whether reasonable apprehension of bias arises from disposition of prior decisions
Legislation:
Nil
Result:
Application for recusal 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):
British American Tobacco Australia Services Pty Ltd v Laurie [2011] HCA 2; (2011) 242 CLR 283
Ebner v Official Trustee in Bankruptcy [2000] HCA 63; (2000) 205 CLR 337
Johnson v Johnson [2000] HCA 48; (2000) 201 CLR 488
Livesey v NSW Bar Association (1983) 151 CLR 288
Ogbonna v Qantas Airways Ltd [2019] WASCA 146
Smits v Roach [2006] HCA 36; (2006) 227 CLR 423
MITCHELL JA:
At the hearing of this appeal on 2 February 2021, I dismissed the appellant's application that I recuse myself from the hearing of the appeal. I said that I would publish my reasons for that decision at a later time. These are my reasons for dismissing the application.
Grounds of recusal application
The appellant's application, as articulated in his submissions, was that I should disqualify myself on the basis of actual bias, to be inferred from:[1]
(1)the manner in which I dealt with his previous application in this appeal; and
(2)the manner in which I dealt with his previous appeal concerning another party.
[1] See appeal ts 15 - 18, 20.
Previous application in this appeal
On 22 May 2020, Murphy JA and I heard an amended application in this appeal, filed by the appellant on 21 April 2020. In that application, the appellant sought, amongst other orders, an order that the respondents' answer be refused for filing. After hearing oral submissions from the appellant, the court dismissed the application. The background to that application, and the manner in which it was dealt with, are contained in the oral reasons which I delivered for the court at that time:[2]
We are dealing with the appellant's amended application in an appeal filed on 21 April 2020. The application, in effect, seeks orders that the respondents' answer filed on 19 March 2020 be refused for filing for being filed out of time and for failing to comply with the court rules. The appellant also seeks orders that any new respondents' answer be accompanied by a verifying affidavit of the lawyer who signed the submissions verifying that the submissions and the reply to the appellant's draft chronology are true and correct and not misleading in material facts. The appellant has filed an affidavit sworn 16 April 2020 in support of the application.
The substantive appeal is against the grant of summary judgment in favour of the respondent in the appellant's action of defamation in the District Court of Western Australia. The alleged defamatory matter was contained in an email dated 21 July 2012 from the second respondent to a number of persons. The first respondent was joined on the basis of being vicariously liable for the conduct of its employee, the second respondent. The content of the email was included in a judgment published by the Federal Circuit Court which was, thereafter, published on the website of the Australasian Legal Information Institute. It was this republication about which the appellant complained.
[An appeal] from a decision of a deputy registrar dismissing the appellant's claim for summary judgment and granting summary judgment in favour of the respondents was heard and dismissed by Stavrianou DCJ on 18 November 2019. The appeal to this court is against the orders made by Stavrianou DCJ. The appeal notice was filed on 5 December 2019. Following the grant of an extension of time in which to do so the appellant filed his appellant's case on 17 February 2020. On 19 February 2020 the registrar sent a notice to the respondents informing them that they were required to file and serve an answer to the appellant's case by Wednesday, 11 March 2020.
On 12 March 2020 the respondents filed an application in an appeal and a supporting affidavit sworn by Mr Wilson on 11 March 2020. The application sought orders that the date for filing of the respondents' answer be extended to Wednesday, 18 March 2020. On 12 March 2020 Registrar Eaton ordered that the time for the respondents to file and serve the respondents' answer be extended to Wednesday, 18 March 2020. A respondents' answer was sent by email to the Court of Appeal office after 4 pm on 18 March 2020. On 19 March 2020 the respondents' answer was accepted for filing.
The appellant submits that in accordance with practice direction 1.2.2 at paragraph 77 the respondents' answer was taken to have been filed on 19 March 2020 as it was received after 4 pm on 18 March 2020. Assuming that to be the case the fact that the respondents' answer was filed on day late does not justify striking out the respondents' answer. In the circumstances it is appropriate to deal with any irregularity by further extending the time for filing the respondents' answer to 19 March 2020. We are satisfied that otherwise the respondents' answer sufficiently complies with the rules. We see no proper basis on which an order should be made requiring the filing of a verifying affidavit as sought by the appellant.
[2] ts 22 May 2020, 4 - 5.
The court made orders extending the time for the respondents' answer to be filed to 19 March 2020 and dismissing the appellant's application in an appeal. Costs of the application were ordered to be in the cause of the appeal.
The Qantas appeal
The second basis for the appellant's recusal application was my participation in an earlier appeal concerning the appellant, Ogbonna v Qantas Airways Ltd.[3] The appellant's appeal in that case was dismissed by a court comprised of Quinlan CJ, Murphy JA and me. The court delivered joint reasons for that decision.
[3] Ogbonna v Qantas Airways Ltd [2019] WASCA 146.
In essence, that appeal was against the award of summary judgment to a psychiatrist who was a defendant to the appellant's action, arising from the provision of psychiatric reports to officers of the company which then employed the appellant as a baggage handler. The court rejected each of the appellant's four grounds of appeal and dismissed the appeal.
The appellant's submissions
The appellant's submissions on the recusal application indicate that he clearly disagrees with the court's decisions in the above matters. In essence, the appellant submits that aspects of the above decisions are wrong. Further, he submits, in effect, that the decisions are so clearly wrong as to give rise to an inference that the reason for the court's failure to agree with his position was judicial corruption. Although the appellant said at one point that he did not want to bring race into the matter,[4] he also suggested that racial discrimination was a reason for the court's past failure to agree with his submissions.[5] The appellant says that this case is one of actual bias, and did not contend that a reasonable apprehension of bias arose from my dealing with the above matters.
[4] Appeal ts 14.
[5] Appeal ts 18.
Disposition
I do not accept the appellant's contention that I am actually biased against him or his case in the present appeal. I am satisfied that I am able to, and will, fairly, objectively and impartially deal with the appellant's legal arguments in the current appeal on their merits. I see nothing in the circumstances of the present case which might actually distract me from the proper performance of my judicial function.
In reaching the above conclusion, I have considered the fact that the appellant has made serious allegations in relation to my dealing with the above matters. However, I do not consider that this to be a factor which might divert me from the proper disposition of the current appeal on its merits. The experience of the courts is that sometimes a litigant feels so strongly about the merits of his or her own case that he or she is unable to accept that failure might be attributable to deficiencies in the litigant's own arguments. The appellant is not the only litigant to find that the only explanation he can accept for the court's past rejection of his arguments is that the judge or judges who ruled against those arguments must be acting corruptly. Judges are expected to be able to ensure that complaints of this nature do not divert them from the proper administration of justice, and the fair and impartial determination of later cases on their objective legal merits. I feel no difficulty or hesitation in doing so in the present case.
I reject the allegation that my past decisions in relation to the appellant were other than my genuine attempt to administer justice fairly according to law to the best of my ability. If those decisions were wrong (and now this is not the appropriate forum to debate the merits of those past decisions) any error was honestly made. I also reject the suggestion that the appellant's ethnic or cultural background has had, or will have, any effect whatsoever on my decisions.
For these reasons, I do not accept the appellant's contention that I should recuse myself by reason of actual bias.
As noted above, the appellant confined his submissions to alleging actual bias. Given that he is a self-represented litigant, I have also considered whether the matters referred to above give rise to any reasonable apprehension of bias. I am satisfied that they do not.
Reasonable apprehension of bias will be established if a fair-minded lay observer might reasonably apprehend that the judge might not bring an impartial mind to the resolution of the question the judge is required to decide. In applying this principle, it is necessary to identify what is said might lead a judge to decide a case other than on its legal or factual merits, and to articulate a logical connection between the matter and the feared deviation from the course of deciding the case on its merits.[6] The test is objective and the fair‑minded observer is someone who is aware that the person who is being observed is a professional judge whose training, tradition and oath or affirmation require him or her to discard the irrelevant, the immaterial and the prejudicial.[7]
[6] See Ebner v Official Trustee in Bankruptcy [2000] HCA 63; (2000) 205 CLR 337 [6], [8]; Smits v Roach [2006] HCA 36; (2006) 227 CLR 423 [53] ‑ [60].
[7] Johnson v Johnson [2000] HCA 48; (2000) 201 CLR 488 [12].
This is not a case where a fair-minded lay observer might reasonably apprehend that a judge who has found a state of affairs to exist, or has come to a clear view about the credit of a witness, may not be prepared to depart from that view in a subsequent case.[8] The legal issues raised in this appeal from the grant of summary judgment do not raise any issues of the appellant's credibility, and are quite independent and distinct from the issues which required determination in the Qantas appeal. The decision in relation to the appellant's application in the present appeal merely concerned a procedural issue as to the filing of a respondent's answer, and did not address the substantive merits of the appeal. I do not consider there to be any reasonable basis on which my past decisions might lead a fair-minded lay observer to reasonably apprehend that I might not bring an impartial mind to the resolution of the questions which fall for decision in the present appeal.
[8] See British American Tobacco Australia Services Pty Ltd v Laurie [2011] HCA 2; (2011) 242 CLR 283[139]; Livesey v NSW Bar Association (1983) 151 CLR 288.
Nor do I consider, having regard to the content of the appellant's complaints, the terms in which they are expressed and the legal issues for determination in this appeal, that the fact of those complaints gives rise to a reasonable apprehension of bias. It is clear that the mere making of such an allegation does not necessarily give rise to a reasonable apprehension of bias. To so hold would be inconsistent with the general rule that judges do not chose their litigants and litigants do not choose their judges, as it would enable a litigant to avoid a judge dealing with his or her case by the expedient of making a complaint or allegation of impropriety (however baseless it was). In this regard, it is important to emphasise that the hypothetical observer is taken to know that a judge is required by his or her training, tradition and oath or affirmation to discard the irrelevant, the immaterial and the prejudicial.[9] I do not consider that a reasonable observer with that knowledge would apprehend that I might not put aside the appellant's complaints of impropriety based on disagreement with my past decisions adverse to him, expressed in the terms in which the appellant's complaints are expressed, when resolving the legal issues raised by this appeal.
[9] Johnson [12].
For these reasons, I dismissed the appellant's application that I recuse myself from the hearing of this appeal.
I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
MT
Associate to the Honourable Justice Mitchell
8 FEBRUARY 2021
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