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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2021] WASCA 24
Decision Date

CaseChat Overview and Summary

The appeal in Ogbonna v CTI Logistics Ltd was heard by Mitchell JA in the Court of Appeal of the Supreme Court of Western Australia. The appellant, Celestine Ogbonna, sought to have the judge recuse himself on the basis of actual bias, which he claimed arose from the judge's handling of a previous application in the same appeal and a previous appeal concerning the appellant. The first respondent was CTI Logistics Ltd and the second respondent was Neil Raspa. The appeal was against a decision of the District Court granting summary judgment in favour of the respondents in an action for defamation brought by the appellant.

The legal issues before the court were whether the judge was actually biased against the appellant or whether there was a reasonable apprehension of bias that might affect the judge's impartiality in the current appeal. The appellant argued that the judge's past decisions demonstrated actual bias and corruption, and that these decisions led to a reasonable apprehension of bias. The judge considered these arguments and concluded that there was no actual bias and no reasonable apprehension of bias that would prevent him from fairly and impartially deciding the current appeal.

Mitchell JA held that the appellant's allegations of actual bias were unfounded. The judge rejected the suggestion that his past decisions were influenced by anything other than a genuine attempt to administer justice according to law. The judge also dismissed the appellant's contention that his ethnic or cultural background had any effect on his decisions. Regarding the reasonable apprehension of bias, the judge found that a fair-minded lay observer would not reasonably apprehend that he might not bring an impartial mind to the resolution of the questions in the current appeal. The legal issues in the current appeal were distinct from those in the previous cases, and the complaints made by the appellant did not create a reasonable apprehension of bias.

The court dismissed the appellant's application for the judge to recuse himself from the hearing of the appeal. The appeal was against the grant of summary judgment in favour of the respondents in the appellant's action for defamation in the District Court. The final orders of the court were not specified in the published reasons.

Orders