Ogbonna v CTI Logistics Ltd

Case [2016] FCA 239

FEDERAL COURT OF AUSTRALIA

Ogbonna v CTI Logistics Ltd [2016] FCA 239

File number: WAD 558 of 2015
Judge: BARKER J
Date of judgment: 11 March 2016
Catchwords: HUMAN RIGHTS – claims of racial discrimination – claims of unpaid employment allowances and superannuation – claims dismissed by Federal Circuit Court – application to extend time for lodging appeal – extension of time granted – whether findings of fact open on the evidence – whether hearsay evidence erroneously admitted – whether secret recording erroneously not admitted into evidence – appeal dismissed
Legislation:

Evidence Act 1995 (Cth)

Racial Discrimination Act 1975 (Cth)

Surveillance Devices Act 1998 (WA)

Cases cited: House v The King (1936) 55 CLR 499; [1936] HCA 40
Date of hearing: 19 February 2016
Registry: Western Australia
Division: General Division
National Practice Area: Administrative and Constitutional Law and Human Rights
Category: Catchwords
Number of paragraphs: 80
Counsel for the Applicant: Mr N Marsh
Solicitor for the Applicant: Swan River Law
Counsel for the Respondents: Mr S Kemp
Solicitor for the Respondents: Jackson McDonald Lawyers

ORDERS

WAD 558 of 2015
BETWEEN:

CELESTINE OGBONNA

Applicant
AND:

CTI LOGISTICS LTD

First Respondent

TIM BARTON

Second Respondent

MARK VANDERLIST

Third Respondent

JUDGE:

BARKER J

DATE OF ORDER:

11 MARCH 2016

THE COURT ORDERS THAT:

1.The time to lodge the appeal be extended.

2.The appeal be dismissed.

3.The applicant/appellant pay the respondents’ costs of the application and appeal to be taxed, if not agreed.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.


REASONS FOR JUDGMENT

BARKER J:

  1. The applicant, Mr Ogbonna, applies to extend the time within which to file an appeal, and if granted, to appeal from a judgment of the Federal Circuit Court of Australia dismissing his claims against the respondents in which he alleged racial discrimination under the Racial Discrimination Act 1975 (Cth) (RD Act).

  2. The Court below also dismissed a further claim that Mr Ogbonna was not paid allowances to which he was entitled, and superannuation. 

  3. Mr Ogbonna failed to lodge an appeal within the required period of 21 days following the decision and orders of the Court below.  Rather, he attempted to lodge an appeal within 28 days.

  4. Thus, Mr Ogbonna seeks an order of the Court extending the time for lodging an appeal and for appealing against the decision of the Court below.

  5. Two issues therefore arise in the hearing of this matter:

    (1)whether time to appeal should be extended; and, if so,

    (2)whether the appeal has any merit.

  6. The second issue is also relevant to the first.  As the respondents submit, any application to extend time to appeal will necessarily involve a consideration of the reasons why the appeal was not lodged within the prescribed time, as well as a consideration of the merits of the proposed appeal.

  7. In this case, the Court is satisfied that time to lodge an appeal should be extended.  While the evidence of Mr Ogbonna as to how the confusion arose…

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AGLC
Ogbonna v CTI Logistics Ltd [2016] FCA 239
Case
[2016] FCA 239
Decision Date

CaseChat Overview and Summary

The case of Ogbonna v CTI Logistics Ltd was heard in the Federal Circuit Court of Australia, where the applicant, Ogbonna, sought to appeal the dismissal of his claims against CTI Logistics Ltd, including allegations of racial discrimination, unpaid employment allowances, and superannuation. The court was tasked with determining whether the primary judge's findings of fact were open to challenge based on the evidence presented, whether hearsay evidence was erroneously admitted, and whether a secret recording was wrongly excluded from evidence. Additionally, the court considered an application to extend the time for lodging the appeal.

The court found that the primary judge's findings of fact were supported by the evidence, and that there was no error in the admission of hearsay evidence as the email in question was part of a broader context that did not unfairly prejudice the appellant. The court also found that the exclusion of the secret recording was justified as it was not relevant, deliberately withheld until the last minute, and an incomplete recording. The court concluded that the admission of the recording would not have affected the outcome of the matter.

Ogbonna's application to extend the time for lodging the appeal was granted. However, the appeal itself was dismissed. The court ordered that Ogbonna pay the respondents' costs of the application and appeal, to be taxed if not agreed. This decision was made in accordance with Rule 39.32 of the Federal Court Rules 2011.

Orders

Orders of the court

1. The time to lodge the appeal be extended.

2. The appeal be dismissed.

3. The applicant/appellant pay the respondents’ costs of the application and appeal to be taxed, if not agreed.

Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

Background

Background to the litigation

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Evidence

Evidence Before The Court

It follows that this ground fails.Did the primary judge err in relation to the admission of evidence as alleged? The more detailed statement of this eighth ground of appeal, which is part statement of an error of law or fact and part submission, is in the following terms:Mr Ogbonna honestly believed he was carrying out the recording for the protection of his lawful interest being that he has been bullied by Mr Vanderlist and Mr Barton in the past with discriminatory remarks also made against his person. This situation informed Mr Ogbonna of the need to have some sort of proof of what was being said to him at that time. The contravention does not apply as stated in Section 5(3)(d) of the surveillance Devices Act 1998 (WA):(1)(b) does not apply to the installation, use or maintenance of a listening device by or on behalf of a person who is a party to a private conversation if - a principal party to the private conversation consents expressly or impliedly to that installation, use or maintenance and the installation, use or maintenance is reasonably necessary for the protection of the lawful interests of that principal party. In relation to this ground and these contentions, the respondents submit as follows:47.The first time that the appellant disclosed the existence of the recording was the day before the hearing when he delivered a disc containing a copy of the recording to the respondent's solicitors (Tab X, transcript, at page 17).48.The appellant acknowledged being aware of the provisions of the Surveillance Devices Act 1998 (Tab X, transcript, at page 17).49.At no stage in the proceeding did the appellant claim that recording was for the protection of his lawful interest (see Tab X, transcript, (transcript 19/12/2014) page 17 and pages 61 to 66).50.There was no evidence before the court of any dispute that would enliven the exception in section 5(3)(d) of the Surveillance Devices Act 1998.Georgiou Building Pty Ltd v Perrinepod Pty Ltd [2012] WASC 72 at [16] to [17] 51.In any event, the court was entitled to exclude the evidence on the basis that:(a)it was not relevant, the appellant having acknowledged that it related only to a ‘side issue’ (see Tab X, transcript, at page 65 line 45);(b)the fact that the appellant deliberately withheld the existence of the recording until the very last minute; and(c)that there was an incomplete recording and in those circumstances the best evidence was to be obtained from the evidence of the other witnesses (Mr Barton, Mr Vanderlist and the appellant) (see Tab G, judgment, at [48]).52.The content of the recording would not have affected the outcome of the matter. At the hearing of the application and appeal, counsel for Mr Ogbonna conceded that it was matter of discretion for the primary judge as to whether or not the recording that Mr Ogbonna wished to adduce in evidence should be admitted. In those circumstances, the question is whether Mr Ogbonna has demonstrated on this appeal that an error of a House v The King (1936) 55 CLR 499; [1936] HCA 40, type was made by the primary judge.

Decision

Reasons for decision

For these reasons, ground 3 must fail.Did the primary judge err in relation to the admission of hearsay as fact in [68] of his judgment as alleged? The more detailed statement of this fourth ground of appeal, which is part statement of an error of law or fact and part submission, is in the following terms:It was not in the best interest of justice and fairness for the Court to rely on mere hearsay stated in an email, that claim Mr Ogbonna was a nutcase, disrespectful and disruptive, when in fact there was no letter of warning issued or evidence to support this statement. In particular:-a.Mr Ogbonna as a self-represented litigant never saw it necessary to object to this statement made in the email because from his understanding he thought it was only necessary to respond to the statements in the paragraphs of the sworn affidavits of the First, Second and Third Respondents respectively. Which he did do where such statements were inaccurate. b.The statement credited Mr Neil Raspa who had no contact with Mr Ogbonna is not only hearsay but defamatory in nature and does not represent the character of Mr Ogbonna who worked hard in the best interests of CTI Logistics to the extent he went beyond the call of duty to clean the toilet and even provided work materials to perform his duties which was acknowledged by Mr Vanderlist during cross examination. In relation to this ground and these contentions, the respondents submit as follows:29.The email from Mr Rasper (annexure MV8 to Mr Vanderlist's affidavit dated 23 October 2013, Tab O) was admitted into evidence without objection as part of an email exchange between a number of managers.30.Reference to the email exchange is made to identify the issues being discussed by Messrs Saxild, Barton and Vanderlist and the thoughts of managers at the time the appellant was dismissed.31.There is no finding or suggestion that Mr Ogbonna was ‘a nut case, disrespectful or disruptive’.32.The reference to Mr Rasper's email is not hearsay evidence.33.In any event, there was evidence by Mr Barton and Mr Vanderlist and Mr Saxild confirming the email exchange.34.Finally, the appellant does not challenge the finding in Tab G, judgment, at [71].35.The reference to Mr Rasper's email did not materially affect the outcome of the matter. The issue raised by this ground is of some concern. While the respondents submit that no actual finding was made that Mr Ogbonna was “a nut case, disrespectful or disruptive”, the primary judge went out of his way at [68] of the judgment to extract those passages from an email which reflected on Mr Ogbonna in that regard. The material from which the extracts were taken constituted a long sequence of email material. While, as the respondents submits, it appears this evidence overall was designed to demonstrate to the Court that by their general conduct, there was nothing in any of the conduct of the first respondent and its employees to support an allegation that they had at any time acted in a way that was motivated by racial discrimination, the fact that the primary judge set out these extracts is troublesome.

Ratio Decidendi

Legal Principle Established

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