Federal Court of Australia Ogbonna v CTI Logistics Limited (No 6) [2022] FCA 615 File number: WAD 226 of 2021 Judgment of: COLVIN J Date of judgment: 23 May 2022 Date of publication of reasons: 24 May 2022 Catchwords: PRACTICE AND PROCEDURE - application by respondents seeking vexatious proceedings order - where applicant commenced defamation proceedings against respondent - where applicant applied to set aside bankruptcy notice - where applicant relied on claims of alleged fraud, conspiracy and judicial corruption - where application to oppose bankruptcy notice summarily dismissed - where applicant's other claims and applications dismissed - where leave to appeal from interlocutory applications arising from those claims disallowed - whether applicant's claims against the respondents are vexatious proceedings - application allowed Legislation: Federal Court of Australia Act 1976 (Cth) s 37AO Cases cited: Fokas v Mansfield as Trustee of the Bankrupt Estate of Maria Fokas (No 2) [2020] FCA 30 Fuller v Toms [2015] FCAFC 91; (2015) 234 FCR 535 Kowalski v Mitsubishi Motors Australia Ltd [2011] FCAFC 159; (2011) 198 FCR 153 Mathews v State of Queensland [2015] FCA 1488 Mohareb v Palmer (No 2) [2020] NSWCA 324 Official Trustee in Bankruptcy v Gargan (No 2) [2009] FCA 398 Ogbonna v CTI Logistics Ltd [2016] FCA 239 Ogbonna v CTI Logistics Limited [2021] FCA 1491 Ogbonna v CTI Logistics Limited (No 2) [2022] FCA 75 Ogbonna v CTI Logistics Limited [2022] FCA 227 Ogbonna v CTI Logistics Limited (No 3) [2022] FCA 267 Ogbonna v CTI Logistics Limited [2022] FCA 612 Ogbonna v CTI Logistics Ltd (No 2) [2015] FCCA 2318 Ogbonna v Lay [2013] WASC 266; (2013) 230 A Crim R 148 Ogbonna v Programmed Integrated Workforce Ltd [2020] WADC 75 Ogbonna v Programmed Integrated Workforce Ltd (No 2) [2020] WADC 150 Ogbonna v Programmed Integrated Workforce Ltd [2021] WASCA 85 Ogbonna v Qantas Airways Ltd [2019] WASCA 146 Soden v Kowalski [2011] FCA 318 Teoh v Hunters Hill Council (No 8) [2014] NSWCA 125 Division: General Division Registry: Western Australia National Practice Area: Other Federal Jurisdiction Number of paragraphs: 33 Date of hearing: 23 May 2022 Counsel for the Applicant: The Applicant did not appear Counsel for the Respondents: Mr CM Slater Solicitor for the Respondents: Jackson McDonald ORDERS WAD 226 of 2021 BETWEEN: CELESTINE OGBONNA Applicant AND: CTI LOGISTICS LIMITED (ACN 008 778 925) First Respondent NEIL RASPA Second Respondent JUSTIN PETER SIMS Third Respondent THOMAS PETER WILSON Fourth Respondent DAVID ANDERSON MELLOR Fifth Respondent order made by: COLVIN J DATE OF ORDER: 23 may 2022 THE COURT ORDERS THAT: 1. Pursuant to s 37AO(2) of the Federal Court of Australia Act 1976 (Cth), Celestine Ogbonna, the applicant in this proceeding, must not institute any proceeding in this Court against any of the respondents, any of the first respondent's officers and employees or the respondents' present or future legal practitioners (together, the Parties). 2. Any extant proceeding instituted in this Court by Celestine Ogbonna against the Parties or any of them prior to the date of this order shall be stayed and shall not be continued by Celestine Ogbonna without the leave of the Court. 3. The applicant must pay the respondents' costs of and incidental to the application for orders pursuant to s 37AO(2) of the Federal Court of Australia Act such costs to be assessed on a lump sum basis. 4. By 4.00 pm on 10 June 2022, the respondents must file a proposed minute of orders fixing a lump sum in relation to the respondents' costs of the application. 5. In the absence of agreement being reached with the applicant on or before 24 June 2022 as the quantum of the lump sum costs pursuant to these orders, the matter of an appropriate lump sum figure for the respondents' costs is referred to a Registrar for determination. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011. REASONS FOR JUDGMENT COLVIN J: 1 If the Court is satisfied that a person has frequently instituted or conducted vexatious proceedings in Australian courts or tribunals, then the Court may make an order prohibiting the person from instituting proceedings, or proceedings of a particular type, in the Court: s 37AO of the Federal Court of Australia Act 1976 (Cth). The order may be made on the application of a person against whom another person has instituted or conducted a vexatious proceeding (amongst others). In considering whether to make such an order, the Court may have regard to (a) proceedings instituted (or attempted to be instituted) or conducted in any Australian court or tribunal; (b) orders made by any Australian court or tribunal; and (c) the person's overall conduct in proceedings conducted in any Australian court or tribunal (including the person's compliance with orders made by that court or tribunal): s 37AO(6). 2 For the purposes of the statutory power, the term 'vexatious proceeding' is defined to include: (a) a proceeding that is an abuse of the process of a court or tribunal; and (b) a proceeding instituted in a court or tribunal to harass or annoy, to cause delay or detriment, or for another wrongful purpose; and (c) a proceeding instituted or pursued in a court or tribunal without reasonable ground; and (d) a proceeding conducted in a court or tribunal in a way so as to harass or annoy, cause delay or detriment, or achieve another wrongful purpose. 3 The purpose of the statutory power is not to punish the litigant for past misdeeds. The purpose is to shield other litigants from harassment and to protect the Court itself from the expense, burden and inconvenience of baseless and repetitious suits: Official Trustee in Bankruptcy v Gargan (No 2) [2009] FCA 398 at [3] (Perram J), approved in Teoh v Hunters Hill Council (No 8) [2014] NSWCA 125 at [56] (Beazley P; Emmett JA and Sackville AJA). It is an extreme measure and the exercise of the power should be approached accordingly: Soden v Kowalski [2011] FCA 318 at [35] (Stone J), as endorsed in Kowalski v Mitsubishi Motors Australia Ltd [2011] FCAFC 159; (2011) 198 FCR 153 at [58]. 4 The requirement for frequency in instituting or conducting vexatious proceedings must first be met before the statutory power to make any order of the kind described arises. Frequently is a relative term. Therefore, in evaluating whether there has been frequent conduct of the required kind, account must be taken of the nature of the litigation being considered. The requirement connotes a lesser test than its predecessor which required proceedings to have been conducted 'habitually and persistently'. Significantly for present purposes 'the Court may find that a person has instituted or conducted proceedings 'frequently' even though the number of proceedings may be quite small, such as where the proceedings are an attempt to re-litigate an issue determined against the person': as to these matters see Fuller v Toms [2015] FCAFC 91; (2015) 234 FCR 535 at [33]-[34] (Besanko, Logan and McKerracher JJ), whilst noting the divergence in views in application that may arise, as is evident from the reasoning in Mohareb v Palmer (No 2) [2020] NSWCA 324. 5 Various types of interlocutory applications may constitute a proceeding for the purposes of evaluating whether the requirement for frequency is met: see Mathews v State of Queensland [2015] FCA 1488 at [92] (Reeves J). The nature of the application in the present case 6 In the present case, an order is sought against Mr Celestine Ogbonna pursuant to s 37AO by CTI Logistics Limited (CTI) and four other parties. They have together been the respondents to a proceeding in this Court brought by Mr Ogbonna (Respondents). 7 The principal application is for an order that Mr Ogbonna must not, without leave of this Court institute any proceeding in this Court against any of the Respondents, any of CTI's officers and employees or the Respondents' legal practitioners. An order is also sought staying any extant proceedings against the Respondents that are pending in this Court and an order that they not be continued without leave. The Respondents seek that the costs of and incidental to the application be paid by Mr Ogbonna. Context for the present application 8 A number of years ago, Mr Celestine Ogbonna worked for a time for CTI. His employment was terminated. Acting on his own behalf, Mr Ogbonna brought a claim in what was then the Federal Circuit Court alleging racial discrimination in the course of his employment. The claim was made against CTI and two of its employees, Mr Tim Barton and Mr Mark Vanderlist. The allegations made by Mr Ogbonna concerned events which were said to have occurred in 2012. After a hearing, his claims were dismissed. In the course of the reasons given by the Circuit Court judge, an email sent by a manager of CTI, Mr Raspa, which contained comments which were adverse to Mr Ogbonna was quoted: Ogbonna v CTI Logistics Ltd (No 2) [2015] FCCA 2318 at [68]. Since then, as will emerge, the email has been the focus of much litigation. 9 With the assistance of lawyers acting on his behalf, an appeal was brought against the dismissal of the claim in the Circuit Court. One of the appeal grounds concerned the email. It contended that it was unfair for the primary judge to have relied upon the statements in the email concerning Mr Ogbonna in circumstances where its author had not been called to give evidence. The appeal ground alleged that the statements in the email were defamatory and contrary to evidence at the hearing. On the appeal, the issue raised by the ground was described by a judge of this court as being 'of some concern' and the fact that extracts from the email were set out in the reasons were said to be 'troublesome' in circumstances where the author of the email was not called as a witness. 10 It was found that the Circuit Court judge ought to have raised the issue of the admissibility of the material with Mr Ogbonna as a self-represented litigant. However, the appeal ground was not successful because it was found that the contents of the email did not affect the relevant findings made by the primary judge: Ogbonna v CTI Logistics Ltd [2016] FCA 239 at [40]-[47]. The other appeal grounds were also not upheld and the appeal was dismissed. 11 Mr Ogbonna then commenced proceedings in the District Court of Western Australia in which he alleged that there had been a republication of the extract from the email by the Australian Legal Information Institute (AustLII) when, on 24 February 2018, it published a report of the reasons for decision of the Circuit Court judge. AustLII provides a service by which the reasons for decisions of various courts and tribunals in Australia may be accessed through its website. Mr Ogbonna alleged that the republication was defamatory and that Mr Raspa was responsible for the republication as a natural and probable consequence of the original publication of the email. CTI was alleged to be vicariously liable for the conduct of Mr Raspa. 12 The defamation proceedings were summarily dismissed. Mr Ogbonna then brought an unsuccessful appeal in the Court of Appeal in Western Australia. An application for special leave to appeal to the High Court was refused. In each of those proceedings, Mr Ogbonna acted on his own behalf. 13 In the meantime, in reliance upon the failure to pay an amount of costs ordered in the original proceedings in the Circuit Court, CTI, Mr Vanderlist and Mr Barton issued a bankruptcy notice. Mr Ogbonna applied to set aside the bankruptcy notice on the basis of an alleged counterclaim, setoff or cross-demand, being his defamation claim which was then being pursued. The set aside application was held in abeyance until the outcome of that claim was known. Once special leave was refused by the High Court, the set aside application was listed for hearing. 14 At that point, Mr Ogbonna commenced fresh proceedings in this Court in which he maintained that there had been fraud, conspiracy and judicial corruption in the consideration and rejection of his defamation claim by the courts (Claims). So, having relied for a number of years upon the claim for defamation as the basis for setting aside the bankruptcy notice and having taken his case to the High Court and been unsuccessful Mr Ogbonna then relied upon the Claims as the basis for opposing the bankruptcy notice. Notwithstanding the nature of the allegations (which were mostly directed at the judges who had been involved in determining the outcome of his defamation claim), the proceedings in respect of the Claims were brought against CTI, Mr Raspa, Mr Mellor and two lawyers who had acted for CTI in the course of the defamation proceedings, namely the Respondents. 15 In November 2021, I heard and dismissed Mr Ogbonna's application to set aside the bankruptcy notice: Ogbonna v CTI Logistics Limited [2021] FCA 1491. For reasons that I then gave, the application was hopelessly misconceived. It made allegations of the most serious kind against senior and experienced judges of three courts. They were most fervently expressed, but utterly devoid of merit. 16 Undeterred, Mr Ogbonna continued to press the Claims in the present proceedings. In February 2022, I upheld an application to summarily dismiss the Claims: Ogbonna v CTI Logistics Limited (No 2) [2022] FCA 75. Those orders were conditioned in a way that provided for the pending application by the Respondents for orders pursuant to s 37AO to be determined at a later time. 17 Prior to the summary dismissal of the proceedings, I had refused to grant leave to issue a subpoena in terms sought by Mr Ogbonna which was said by him to be necessary for any consideration as to whether the proceedings should be dismissed on a summary basis (and an application that he had brought for what he described as summary dismissal of the Respondent's application for summary dismissal). At the time of making that decision I also refused an application by Mr Ogbonna that I should recuse myself for actual bias. Mr Ogbonna then sought leave to appeal against that decision. The application for leave was refused. In reasons for refusing leave, Jackson J said (Ogbonna v CTI Logistics Limited [2022] FCA 227 at [8]): Turning to Mr Ogbonna's case for leave to appeal, he made a number of extravagant and inflammatory submissions alleging racial discrimination, dishonesty, corruption and criminality against a number of persons. There is no apparent proper basis in the evidence before me for those allegations, and there is no need to record those submissions in any detail in this judgment. He also made submissions going to the merits of historical proceedings in the District Court of Western Australia and the Court of Appeal of Western Australia which were addressed in the Dismissal Decision. Those submissions are irrelevant to the present proceeding and also need not be recorded. 18 His Honour also observed at [23] that 'Mr Ogbonna has articulated no cogent reason to doubt the correctness of the primary judge's decision not to recuse himself for bias'. 19 Just prior to the scheduled hearing of the application for orders pursuant to s 37AO, Mr Ogbonna made a further application for my recusal. As I have explained in separate reasons on that application, in effect the basis for the application was a complaint about the outcome of various interlocutory applications made by Mr Ogbonna: see Ogbonna v CTI Logistics Limited (No 5) [2022] FCA 612. The nature of the application and the extravagant language used to support the application, manifested an extreme unwillingness on the part of Mr Ogbonna to accept not only the determination of his defamation claim (after exhausting all avenues of appeal) but also the adjudication in decisions of this Court that the Claims to the effect that there had been some form of judicial impropriety in the adjudication of his defamation claim lacked any proper foundation. 20 In addition, on 22 March 2022 I dealt with an application by Mr Ogbonna for leave to file an application for judgment based upon the Claims which had been summarily dismissed. Leave was refused, noting that the only avenue to challenge the dismissal was an appeal: Ogbonna v CTI Logistics Limited (No 3) [2022] FCA 267. Mr Ogbonna has indeed sought leave to commence such an appeal. His affidavit in support of the application asks the Court to revisit the whether CTI and Mr Raspa were responsible for republication of the email by AustLII being the issue finally determined by the Court of Appeal and the refusal by the High Court of special leave. Proper basis for orders demonstrated 21 These matters, of themselves, are a sufficient basis to justify the application by the Respondents for orders pursuant to s 37AO. They demonstrate that the proceedings in this Court which have been summarily dismissed were an abuse of process and were advanced without any reasonable ground. Since the refusal of his application for special leave, Mr Ogbonna has frequently maintained, in effect, that he is not bound by the outcome by which his defamation claim was dismissed. Without articulating any coherent basis for doing so, he has adopted that position in seeking to set aside the bankruptcy notice, in seeking leave to issue subpoenas, in bringing the present proceedings, in opposing the application by the respondents for summary dismissal of those proceedings and then seeking an order that would disqualify me from hearing the application for orders pursuant to s 37AO by maintaining that same claim and seeking to pursue the defamation proceedings in the context of the application for leave to appeal. His conduct has resulted in a number of court hearings and has included his application for leave to appeal that was dismissed by Jackson J. It has placed an unfair burden on the Respondents and has consumed the resources of the Court, all without any arguable justification. There is every indication that Mr Ogbonna is persisting in this conduct in pursuing further applications that are pending. Mode of proof of relevant facts 22 In reaching that conclusion, I note the careful analysis by Wheelahan J in Fokas v Mansfield as Trustee of the Bankrupt Estate of Maria Fokas (No 2) [2020] FCA 30 of the state of the authorities concerned with the respect in which the court record (in the form of court documents, submissions and reasons of the Court) may be relied upon to make the findings that are necessary for the purposes of considering whether there is power under s 37AO to make an order and whether the discretion to make such an order should be exercised. 23 In order for an applicant to succeed in persuading the court to make an order under s 37AO, the applicant must demonstrate that the party against whom the order is sought has frequently instituted or conducted vexatious proceedings. Whether that is so requires a determination of a mixed question of fact and law. For that purpose, it is not necessary to determine any fact that might have been in issue in the proceeding that was addressed in reasons given in adjudicating earlier proceedings. Rather, it is necessary to reach a view as to the character of the proceedings. 24 In the present case, a conclusion as to whether the relevant proceedings have been vexatious does not turn upon factual findings as to matters in issue between the parties. Nor does it turn upon any findings as to what the motivations or purpose of Mr Ogbonna may have been. The vexatiousness of the proceedings is said to lie in their hopelessness. Having regard to the final adjudication of the defamation claim and the lack of any factual foundation to question the propriety of the judges involved, there is simply no merit in the position being advanced repeatedly by Mr Ogbonna. This is made even more plain when the focus of his complaint is a complaint only about a failure to address an aspect of his claim in circumstances where he needed to succeed on that point as well as another point (about which he raises no complaint): see my reasoning in Ogbonna v CTI Logistics Limited [2021] FCA 1491 at [18]-[22]. 25 Therefore, this is not a case where the application depends upon a claim that the Court should give effect to factual findings in other proceedings. It depends upon an evaluation of the character of the claims advanced. For reasons I have given, those claims are plainly vexatious. This is a conclusion I reach based upon the nature of the claims themselves which I have now evaluated for the purpose of a number of applications by Mr Ogbonna. Other aspects of the conduct of Mr Ogbonna 26 In support of their application, the Respondents relied upon other proceedings brought by Mr Ogbonna against other parties. They pointed to a number of instances where determinations have been made that allegations or grounds advanced by Mr Ogbonna should be summarily dismissed or lack any merit. They included the following: (1) a determination by Kenneth Martin J that a ground of appeal advanced by Mr Ogbonna against a conviction by a magistrate for the offence of obstructing a police officer was 'clearly without merit': Ogbonna v Lay [2013] WASC 266; (2013) 230 A Crim R 148 at [23]; (2) a determination by the Court of Appeal that there was no merit in any of the grounds advanced by Mr Ogbonna in an appeal against the summary dismissal of his claim against a consultant psychiatrist who had made an assessment as to his fitness to work as a baggage handler (and a refusal of an application for special leave to appeal to the High Court): Ogbonna v Qantas Airways Ltd [2019] WASCA 146 at [50]-[58]; and (3) determinations in proceedings against Programmed Integrated Workforce Ltd to the effect that his allegations of intimidation and defamation disclosed no cause of action and his unsuccessful application in the course of a pending appeal to the Court of Appeal to require the respondent to amend its submissions: Ogbonna v Programmed Integrated Workforce Ltd [2020] WADC 75; Ogbonna v Programmed Integrated Workforce Ltd (No 2) [2020] WADC 150; and Ogbonna v Programmed Integrated Workforce Ltd [2021] WASCA 85. 27 Reference was also made to other proceedings in this and other Courts. Some of those proceedings have been determined. Others appear to have settled or to have been withdrawn by Mr Ogbonna. Others are pending. 28 As to all of these proceedings, it would take considerable time to evaluate whether the nature of the claims made met the statutory description of vexatious. The Respondents did not take on that burden. They relied upon the extent of other proceedings in which Mr Ogbonna had been involved that were said to relate to his employment to support the claim that the proceedings against the Respondents were vexatious. 29 The Respondents also referred to various communications that the applicant has seen to make to various authorities which repeated the kinds of allegations that he has advanced in this Court as well as similar communications as to other proceedings. It is possible that in a different case communications of that kind may go to the motives or purpose of Mr Ogbonna in a way that tended to support a claim that the court proceedings to which the allegations related were vexatious. However, the Respondents have not demonstrated any respect in which those communications bear upon such a conclusion in a way that is relevant for present purposes. They do not amount to conduct in the proceedings. 30 Further, the Respondents did not seek orders in terms that would apply to any proceedings other than those which they face from Mr Ogbonna. 31 For those reasons, I put each of the above matters to one side. Conclusion and costs 32 It follows that the application by the Respondents should succeed. For those reasons, I made orders substantially in the terms sought by the Respondents. 33 In addition, the Respondents sought orders for costs to be assessed on a lump sum basis if not agreed. The usual practice of this Court is to assess costs on a lump sum basis if application is made for assessment on that basis and it is possible to fairly undertake an assessment in that way. I was satisfied that the nature of the application which required the preparation of affidavits in support, written submissions and attendances is such that costs will be readily capable of assessment on a lump sum basis. The Respondents have been wholly successful. Therefore, I made orders that Mr Ogbonna pay the costs of and incidental to the application and for those costs to be assessed on a lump sum basis if not agreed. I certify that the preceding thirty-three (33) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Colvin. Associate: Dated: 24 May 2022