FEDERAL COURT OF AUSTRALIA
Ogbonna v CTI Logistics Ltd (No 4) [2024] FCA 1035
Appeal from: CTI Logistics v Ogbonna [2022] FedCFamC2G 781 File number: WAD 218 of 2022 Judgment of: FEUTRILL J Date of judgment: 5 September 2024 Catchwords: PRACTICE AND PROCEDURE – application for leave to file proposed interlocutory application – proposed applicant subject of vexatious proceedings order - refusal to accept document that is abuse of process or is frivolous or vexatious Legislation: Federal Court of Australia Act 1976 (Cth) ss 35A(5), 37AO(2), 37AR(2)
Federal Court Rules 2011 (Cth) rr 3.01, 3.04, 3.11, 36.11, 36.52, 39.05(c); Pt 42; Divs 36.5; Sch 2
Cases cited: Brimaud v Honeysett Instant Print Pty Ltd (1988) 217 ALR 44
Luo v Zhai (No 6) [2016] FCA 805
Ogbonna, in the matter of Ogbonna [2023] FCA 1334 Ogbonna v CTI Logistics Ltd (No 2) [2024] FCA 383
Division: General Division Registry: Western Australia National Practice Area: Commercial and Corporations Sub-area: General and Personal Insolvency Number of paragraphs: 16 Date of hearing: Determined on the papers Counsel for the Appellant: The Appellant did not appear Counsel for the Respondents: The Respondents did not appear Solicitor for the Respondents: Jackson McDonald ORDERS
WAD 218 of 2022 BETWEEN: CELESTINE OGBONNA
Appellant
AND: CTI LOGISTICS LTD (ACN 008 778 925)
First Respondent
MARK VANDERLIST
Second Respondent
TIM BARTON
Third Respondent
ORDER MADE BY:
FEUTRILL J
DATE OF ORDER:
5 SEPTEMBER 2024
THE COURT ORDERS THAT:
1.Leave be refused for the appellant to file the interlocutory application for orders to vary or set aside orders of the Court made on 28 March 2024 and for review of the Registrar’s orders made on 19 June 2024 and the affidavit of Celestine Ifeanyi Ceefyne Ogbonna sworn 27 August 2024.
2.As a consequence of paragraph 1 of these orders, the following documents lodged on 27 August 2024 not be accepted for filing:
(a)Form 35 interlocutory application of the appellant; and
(b)Form 59 affidavit of Celestine Ifeanyi Ceefyne Ogbonna sworn 27 August 2024.
Note:
Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
REASONS FOR JUDGMENT
FEUTRILL J:
The proceedings concern an appeal from a sequestration order made by a judge of the Federal Circuit and Family Court of Australia (Division 2) against the estate of the appellant on 20 September 2022.
On 23 May 2022 a judge of this Court made an order pursuant to s 37AO(2) of the Federal Court of Australia Act 1976 (Cth) (vexatious proceedings order). As a consequence of the vexatious proceedings order, the appellant required leave to commence an appeal from the sequestration order. On 2 November 2023 I made an order granting the appellant leave to file a notice of appeal confined to one ground of appeal under s 37AR(2). At that time I also made an order to the effect that no further interlocutory application or affidavit is to be filed in these proceedings unless leave…
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- Case
- [2024] FCA 1035
- Decision Date
CaseChat Overview and Summary
The central legal issue before the court was whether the proposed application and accompanying affidavit fell within the scope of the vexatious proceedings order. The court had to assess if the documents were an abuse of process or were frivolous or vexatious. The appellant's history of previous applications and the nature of the proposed application were considered in making this determination. The court also examined the content of the affidavit to ascertain if it contained any new evidence or arguments that warranted a reconsideration of the earlier orders.
The court found that the proposed application and accompanying affidavit were indeed an abuse of process and were frivolous or vexatious. It considered the appellant's prior conduct, including numerous unsuccessful applications, and concluded that the proposed application did not present any new or compelling grounds for relief. The court was particularly critical of the appellant's failure to acknowledge the futility of his previous attempts and the repetitive nature of the proposed application. Based on these findings, the court refused the appellant leave to file the interlocutory application and directed that the relevant documents not be accepted for filing.
Consequently, the court ordered that leave be refused for the appellant to file the interlocutory application. Additionally, the court ruled that the Form 35 interlocutory application and the Form 59 affidavit lodged on 27 August 2024 were not to be accepted for filing. The orders were made under Rule 39.32 of the Federal Court Rules 2011, which governs the entry of orders in the Federal Court.
Orders
Orders of the court
1. Leave be refused for the appellant to file the interlocutory application for orders to vary or set aside orders of the Court made on 28 March 2024 and for review of the Registrar’s orders made on 19 June 2024 and the affidavit of Celestine Ifeanyi Ceefyne Ogbonna sworn 27 August 2024.
2. As a consequence of paragraph 1 of these orders, the following documents lodged on 27 August 2024 not be accepted for filing:
(a) Form 35 interlocutory application of the appellant; and
(b) Form 59 affidavit of Celestine Ifeanyi Ceefyne Ogbonna sworn 27 August 2024.
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
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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