FEDERAL COURT OF AUSTRALIA
Ogbonna v CTI Logistics Ltd (No 5) [2024] FCA 1101
Appeal from: CTI Logistics v Ogbonna [2022] FedCFamC2G 781 File number: WAD 218 of 2022 Judgment of: FEUTRILL J Date of judgment: 19 September 2024 Catchwords: PRACTICE AND PROCEDURE – application for leave to file proposed interlocutory application – proposed applicant subject of vexatious proceedings order – proposed interlocutory application for extension of time to review decision of a Registrar – leave granted but refusal to accept documents for filing as abuse of process or is frivolous or vexatious Legislation: Federal Court of Australia Act 1976 (Cth) ss 20A, 35A(1)(h), 37A 37AO, 37M
Federal Court Rules 2011 (Cth) rr 1.39, 3.04, 3.11, 17.01, 36.11, 36.51 – 36.56.
Cases cited: 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: 14 Date of hearing: Determined on the papers Solicitor for the Respondents: Jackson McDonald Lawyers 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:
19 SEPTEMBER 2024
THE COURT ORDERS THAT:
1.The appellant have leave to make an interlocutory application for an extension of time to apply for review of the orders of the Registrar made on 19 June 2024, that application be taken to have been made and filed on 12 September 2024 and compliance with r 17.01 of the Federal Court Rules 2011 (Cth) be dispensed with.
2.Pursuant to s 20A of the Federal Court of Australia Act 1976 (Cth) the application for an extension of time be heard without an oral hearing.
3.The appellant be granted an extension of time for applying for review of the orders of the Registrar made on 19 June 2024, that application be taken to have been made and filed on 12 September 2024, compliance with r 17.01 of the Rules be dispensed with and the review be listed for hearing at or immediately before the hearing of the appeal on 26 September 2024.
4.For the purposes of the review, by 4.30pm (AWST) on 24 September 2024 the appellant file and serve:
(a)his proposed index of the documents for inclusion in the appeal book;
(b)a supplementary appeal book containing any document that is not already included in the appeal book index as settled by the Registrar; and
(c)written submissions (limited to 5 pages) explaining the grounds upon which he contends that each document in the supplementary appeal book is relevant to the issues to be determined in the appeal and should be received as part of the materials in the appeal.
5.For the avoidance of doubt, notwithstanding paragraphs 3 and 4 of these orders,…
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- Case
- [2024] FCA 1101
- Decision Date
CaseChat Overview and Summary
The court considered whether granting leave would constitute an abuse of process or be frivolous or vexatious. It found that the proposed application was not an abuse of process or frivolous or vexatious, and that it should be heard without an oral hearing. The court granted leave for the appellant to file the interlocutory application for an extension of time to review the Registrar's orders. However, the court refused leave for the appellant to file the affidavit and interlocutory application seeking to vary or set aside certain orders of the Court.
The court granted the appellant an extension of time for applying for review of the Registrar's orders, with specific conditions for filing documents and written submissions. The appeal book index was to remain as settled by the Registrar, except as provided in the orders. Certain documents were not accepted for filing as a consequence of the orders.
Orders
Orders of the court
1. The appellant have leave to make an interlocutory application for an extension of time to apply for review of the orders of the Registrar made on 19 June 2024, that application be taken to have been made and filed on 12 September 2024 and compliance with r 17.01 of the Federal Court Rules 2011 (Cth) be dispensed with.
2. Pursuant to s 20A of the Federal Court of Australia Act 1976 (Cth) the application for an extension of time be heard without an oral hearing.
3. The appellant be granted an extension of time for applying for review of the orders of the Registrar made on 19 June 2024, that application be taken to have been made and filed on 12 September 2024, compliance with r 17.01 of the Rules be dispensed with and the review be listed for hearing at or immediately before the hearing of the appeal on 26 September 2024.
4. For the purposes of the review, by 4.30pm (AWST) on 24 September 2024 the appellant file and serve:
(a) his proposed index of the documents for inclusion in the appeal book;
(b) a supplementary appeal book containing any document that is not already included in the appeal book index as settled by the Registrar; and
(c) written submissions (limited to 5 pages) explaining the grounds upon which he contends that each document in the supplementary appeal book is relevant to the issues to be determined in the appeal and should be received as part of the materials in the appeal.
5. For the avoidance of doubt, notwithstanding paragraphs 3 and 4 of these orders, for the purposes of paragraphs 7, 8, 10, 11, 12 and 13 of the orders of 28 March 2024 and until further order, the appeal book index be as settled in paragraph 1 of the orders of the Registrar made on 19 June 2024.
6. Except as provided for in paragraphs 1 to 5 of these orders, 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 12 September 2024.
7. As a consequence of paragraphs 1 to 6 of these orders, the following documents lodged on 12 September 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 12 September 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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