Ogbonna v CTI Logistics Ltd - [2021] WASCA 22

JURISDICTION     :   SUPREME COURT OF WESTERN AUSTRALIA
TITLE OF COURT :   THE COURT OF APPEAL (WA)
CITATION:   OGBONNA -v- CTI LOGISTICS LTD [2021] WASCA 22
CORAM:   MURPHY 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 judicial system - Judges - Application for disqualification of judge on ground of actual/apprehended bias

Legislation:

Nil

Result:

Application refused

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):

Ebner v Official Trustee in Bankruptcy [2000] HCA 63; (2000) 205 CLR 337
Helljay Investments Pty Ltd v Deputy Commissioner of Taxation [1999] HCA 56; (1999) 166 ALR 302
Johnson v Johnson [2000] HCA 48; (2000) 201 CLR 488
Michael Wilson & Partners Ltd v Nicholls [2011] HCA 48; (2011) 244 CLR 427
Ogbonna v Qantas Airways Limited [2019] WASCA 146
Ogbonna v Qantas Airways Ltd [2018] WASC 378
R v Masters (1992) 26 NSWLR 450
Re Polites; Ex parte Hoyts Corporation Pty Ltd [1991] HCA 25; (1991) 173 CLR 78, 86

MURPHY JA:

Introduction

The appellant in this matter (Mr Ogbonna) appeals against the award of summary judgment in favour of the respondents in a defamation action which he had commenced in the District Court of Western Australia. The appeal was listed for hearing on 2 February 2021.
At the commencement of the hearing of the appeal Mr Ogbonna made an application that I disqualify myself from hearing the appeal on the basis of actual basis.[1] He submitted, in effect, that the existence of actual bias, in the form of judicial corruption and dishonesty on my part, is to be inferred from my participation in other matters in which he is or has been a party.[2] I refused the application and said I would provide written reasons. These are my reasons.

Participation in other matters

[1] Appeal ts 10, 15.

[2] Appeal ts 17 - 18.

I have been involved in the following matters in the Court of Appeal in which Mr Ogbonna currently is or has been a party:
1.The hearing of appeal CACV 123 of 2018, in which Mr Ogbonna's appeal was dismissed.
2.Interlocutory proceedings in CACV 149 of 2019 (the current appeal).
3.Interlocutory directions in CACV 123 of 2020.

CACV 123 of 2018

Mr Ogbonna's appeal in CACV 123 of 2018 concerned an appeal against the decision of Le Miere J in Ogbonna v Qantas Airways Ltd[3] granting defendant's summary judgment in proceedings commenced by Mr Ogbonna.
[3] Ogbonna v Qantas Airways Ltd [2018] WASC 378.
Mr Ogbonna's claim arose out of…

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 22
Decision Date

CaseChat Overview and Summary

In the case of Ogbonna v CTI Logistics Ltd, the applicant, Mr Ogbonna, sought the recusal of the presiding judge on the basis of apprehended bias. The dispute arose from a series of legal proceedings involving Mr Ogbonna and the respondent, CTI Logistics Ltd, and the matter was being heard in the Federal Court of Australia. Mr Ogbonna contended that the judge had exhibited bias in previous decisions, which led to an apprehended bias that would prevent a fair hearing of the appeal. The legal issues before the court were whether the judge should recuse themselves due to a reasonable apprehension of bias, as articulated in the case of Re Polites; Ex parte Hoyts Corporation Pty Ltd.

The court carefully considered the submissions made by Mr Ogbonna and examined the previous decisions of the judge. It was established that the test for apprehended bias requires a demonstration that there is a reasonable apprehension that the judge would not decide the case impartially or without prejudice. The court emphasised that the test is not met by showing that the judge may decide the case adversely to one party due to their previous decisions. Instead, it must be shown that the judge's prior decisions create a reasonable apprehension of lack of impartiality. The court found that Mr Ogbonna had not provided any evidence that the judge had approached any previous decisions with anything other than an impartial and unprejudiced mind. The previous decisions did not indicate any prospect that a fair-minded lay observer might reasonably apprehend bias. The judge had acted honestly and applied the law as they understood it, without any personal bias against Mr Ogbonna.

As a result of this analysis, the court dismissed the application for the judge to recuse themselves. The court was satisfied that there was no reasonable apprehension of bias based on the matters presented. The judge had fulfilled their duty to approach each case impartially and without prejudice. The unfounded accusations of bias made by Mr Ogbonna did not form a basis for the judge to recuse themselves. The court concluded that the making of the application and its dismissal did not provide grounds for a reasonable apprehension of bias. The appeal would proceed with the original judge presiding, as there was no reasonable apprehension that the judge would not decide the appeal impartially.

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

In Re Polites; Ex parte Hoyts Corporation Pty Ltd,[16] Brennan, Gaudron and McHugh JJ said in relation to the test for apprehended bias:In applying this test, it is necessary to bear in mind the caution expressed by Mason J in Re JRL; Ex parte CJL:It seems that the acceptance by this Court of the test of reasonable apprehension of bias in such cases as Watson and Livesey has led to an increase in the frequency of applications by litigants that judicial officers should disqualify themselves from sitting in particular cases on account of their participation in other proceedings involving one of the litigants or on account of conduct during the litigation. It needs to be said loudly and clearly that the ground of disqualification is a reasonable apprehension that the judicial officer will not decide the case impartially or without prejudice, rather than that he will decide the case adversely to one party. There may be many situations in which previous decisions of a judicial officer on issues of fact and law may generate an expectation that he is likely to decide issues in a particular case adversely to one of the parties. But this does not mean either that he will approach the issues in that case otherwise than with an impartial and unprejudiced mind in the sense in which that expression is used in the authorities or that his previous decisions provide an acceptable basis for inferring that there is a reasonable apprehension that he will approach the issues in this way. An inference of corruption and dishonesty, contended for by Mr Ogbonna, is not fairly open on the matters outlined in [4] to [15] above. Further, whilst recognising that actual bias may be subconscious, I will also record that I have approached the discharge of my judicial duties in relation to matters concerning Mr Ogbonna honestly and in a genuine attempt to apply the law as I apprehended it. No decision has been the product of any personal bias against Mr Ogbonna. The matters referred to in [4] to [15] above also indicate that there is no prospect that a fair-minded lay observer might reasonably apprehend that I might not bring an impartial and unprejudiced mind to the resolution of the appeal in this matter. Neither the subject matter nor the nature of the decisions point to apprehended bias having regard to the relevant test. I am also mindful that Mr Ogbonna has made serious accusations against me in this application which I have concluded to be unfounded. That in itself does not provide a platform for a contention of apprehended bias. In the context of ordinary judicial practice, judges by their oath and training are required to discard the irrelevant, the immaterial and the prejudicial. That includes baseless allegations of bias. The making of Mr Ogbonna's application for recusal, and its dismissal, are not matters in respect of which a fair-minded lay observer might reasonably apprehend that I might not bring an impartial and unprejudiced mind to the resolution of the issues in this appeal.