Federal Court of Australia Ogbonna v Government of Western Australia (No 4) [2023] FCA 686 File number: WAD 201 of 2021 Judgment of: COLVIN J Date of judgment: 22 June 2023 Cases cited: Charisteas v Charisteas [2021] HCA 29; (2021) 273 CLR 289 Ogbonna v CTI Logistics Limited (No 3) [2022] FCA 267 Ogbonna v CTI Logistics Limited (No 4) [2022] FCA 358 Ogbonna v Government of Western Australia [2022] FCA 443 Ogbonna v Government of Western Australia (No 2) [2022] FCA 584 Ogbonna v Government of Western Australia (No 3) [2022] FCA 1019 Ogbonna v Link Workforce Pty Ltd [2023] FCA 633 Division: General Division Registry: Western Australia National Practice Area: Other Federal Jurisdiction Number of paragraphs: 18 Date of hearing: 20 June 2023 Counsel for the Applicant: The applicant did not appear Counsel for the First Respondent: Mr A Shuy with Ms PA Femia Solicitor for the First Respondent: State Solicitor's Office Counsel for the Third Respondent: Mr M C Goldblatt Solicitor for the Third Respondent: Herbert Smith Freehills ORDERS WAD 201 of 2021 BETWEEN: CELESTINE OGBONNA Applicant AND: GOVERNMENT OF WESTERN AUSTRALIA First Respondent PROGRAMMED INTEGRATED WORKFORCE LTD Third Respondent order made by: COLVIN J DATE OF ORDER: 22 June 2023 THE COURT ORDERS THAT: 1. On or before 27 June 2023, the third respondent do file and serve supplementary written submissions having regard to the amendments made to the statement of claim. 2. The applications for summary judgment and for summary dismissal are listed for hearing at 10.15 am AWST on 2 August 2023. 3. Until further order, no party is to communicate with the Court in relation to these proceedings otherwise than by email addressed to perth.registry@fedcourt.gov.au. 4. Until further order, no party is to file any further document in these proceedings or commence any further proceedings concerning the subject matter of these proceedings without leave first being obtained from the case managing judge. 5. Any application for leave pursuant to these orders shall be made by sending an email setting out the basis upon which leave is sought and attaching any affidavit as to any factual matters relied upon to support the application for leave. 6. The costs of and incidental to the hearing on 20 June 2023 are reserved. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011. REASONS FOR JUDGMENT COLVIN J: 1 By proceedings commenced in this Court in 2021, Mr Ogbonna alleges that he has been defamed by the publication of the contents of a running sheet on the WA Police Force Incident Management System (System) by a police officer. He alleges that the contents of the running sheet were uploaded into the System on or about 31 August 2020. He says that the information on the running sheet was published to a South Australian police officer who accessed the information at midnight on 7 or 8 April 2021 when the vehicle in which Mr Ogbonna was a passenger was stopped by the police at Port Augusta. He says that the police officer spoke to the occupants of the car (including him) about restraining orders referred to in the running sheet. 2 Mr Ogbonna also complains about an alleged publication on 7 November 2017 by police officers attending at an address where they spoke to Mr Ogbonna's then spouse and communicated certain concerns about his health. He says that the making of the statement on that occasion was a repetition and republication of a defamatory statement made by an employee of Programmed Integrated Workforce Ltd (Programmed) in a telephone call to the police in Western Australia on that date. 3 It appears that Mr Ogbonna claims that there was some connection between the alleged publication in 2017 and the contents of the running sheet and thereby to the South Australian police officer and perhaps to the content of statements made to occupants of the car at the time. However, the nature of that connection is difficult to discern from the terms of the most recent version of his statement of claim in the proceedings. 4 Applications for summary dismissal of Mr Ogbonna's claims have been brought by both respondents to the proceedings, namely 'the Government of Western Australia' and Programmed. Mr Ogbonna has himself sought summary judgment on his claims. 5 The competing applications were listed for hearing at 10.15 am AWST on 20 June 2023. 6 At 9.56 am AWST on 20 June 2023, Mr Ogbonna sent to my associate an email in the following terms: I would not be able to attend the hearing this morning for a number of reasons, I have a stomach upset and a bit of a cold. Secondly, I filed an application today for Justice Colvin to disqualify himself. Thirdly, the First Respondent has admitted the facts in the Notice to Admit dated 1 June 2023 which now entitles me to judgement against both Respondents as outlined in my submissions and supporting affidavit. The Respondent's Solicitor has engaged in criminal conduct, and I will be making this public and demanding that necessary actions be taken soon. Please see attached the request and supporting affidavits which were filed today. 7 Mr Ogbonna did not appear at the hearing. The competing applications had previously been listed for hearing on 30 August 2022 at which time Mr Ogbonna did not appear. In circumstances where there were concerns as to the costs being incurred by court attendances, I indicated to counsel that I would make orders that would adjourn the hearing of the competing applications to a date at which Mr Ogbonna would be given an opportunity to be heard orally (reconvened hearing). If I formed the view at that reconvened hearing that there was merit in his application or it was otherwise necessary to hear orally from the respondents then I would adjourn the reconvened hearing to a later date at which time I would receive those submissions. Accordingly, there would be no need for counsel for the respondents to appear at the reconvened hearing. 8 Counsel for Programmed sought an opportunity to put on short further written submissions to be considered at the reconvened hearing. I directed that any such submissions be filed and served on or before 27 June 2023. 9 Before considering the listing of the reconvened hearing it is necessary for me to consider Mr Ogbonna's application that I disqualify myself from the further conduct of the proceeding. It takes the following form: 1. I seek that Justice Colvin disqualifies himself from the legal proceeding WAD 201/2021, because he has racially discriminated against me, acted in a biased manner towards me, and acted with impunity regarding the application of procedure and practice and bullied me. 2. Justice Colvin has refused me leave to file form 43B- 'subpoena to produce documents' pursuant to rule 24.13(1)(b) of the Federal Court Rules 2011 (Cth) with respect to documents that contain relevant information which would materially assist on identified issues. 3. The requested information was for legitimate forensic purposes that would assist the Court in determining the real questions raised by the proceeding, but he has so far refused which has made me take an alternative route to protect my rights and I am in the process of referring the matter to the Australian Federal Police and National Anti-Corruption Commission. 4. Justice Colvin has emboldened the First and Third Respondents and made orders to the effect of both Respondents not having to file their defence, knowing they have none. 5. The application should be determined on the papers. 6. The affidavit of Celestine Ifeanyi Ceefyne Ogbonna, sworn on 29 August 2022, provides sufficient evidence and justification for Justice Colvin to disqualify himself. 10 The affidavit of 29 August 2022 to which reference is made in the above request contains matters advanced by Mr Ogbonna for the purposes of the competing applications, particularly his claim that summary judgment should be entered against the respondents. I am unable to discern from the contents of that affidavit any specific claim that supports the disqualification request. 11 Further, the unparticularised allegations of actual bias do not establish a basis for me to recuse myself. 12 It is the case that I have refused leave for Mr Ogbonna to issue subpoenas. I have given separate reasons for doing so: Ogbonna v Government of Western Australia [2022] FCA 443; Ogbonna v Government of Western Australia (No 2) [2022] FCA 584; and Ogbonna v Government of Western Australia (No 3) [2022] FCA 1019. Having regard to those reasons I do not accept that the requested information was for a legitimate forensic purpose. The fact that I have made reasoned decisions adverse to Mr Ogbonna is not a basis of itself for me to recuse myself. 13 There being no evidentiary foundation disclosed for the claim of actual bias, I decline to disqualify myself. Treating the request as being also based on a claim of apprehended bias, I have considered whether those well-established principles are met: see their recent exposition in Charisteas v Charisteas [2021] HCA 29; (2021) 273 CLR 289 at [11]. Other than the refusal of leave to issue subpoenas there is no basis asserted to support a concern that the claims by Mr Ogbonna would not be determined otherwise than on their factual and legal merits. As to the subpoenas, the fact that the applications were rejected is insufficient to give rise to such a concern especially when the reasons given are not sought to be impugned and did not depend upon any finding concerning the credit of Mr Ogbonna. 14 Therefore, I will make orders relisting the matter for hearing on the basis I have indicated. 15 As to the notice to admit, Mr Ogbonna has now filed at least three rounds of notices to admit in these proceedings. It is a course that he has followed in other proceedings in this Court: see Ogbonna v Link Workforce Pty Ltd [2023] FCA 633; Ogbonna v CTI Logistics Limited (No 3) [2022] FCA 267 at [4]; and Ogbonna v CTI Logistics Limited (No 4) [2022] FCA 358. The filing of successive notices in the same terms is plainly an abuse of process. 16 Mr Ogbonna has also sought to file a further application for summary judgment based upon what he says are admissions arising from the failure by the Government of Western Australia to respond to his most recent notice. That notice was in the same terms as an earlier notice the contents of which were formally disputed. For reasons given by Feutrill J in Ogbonna v Link Workforce Pty Ltd that course will not establish any admission. 17 Mr Ogbonna has been making repeated inquiries of registry staff by telephone and in person attendance. On occasions, he has telephoned more than 20 times in a single day. 18 In the circumstances, the point has been reached where it is appropriate to closely supervise the conduct of these proceedings pending the resolution of the competing applications for summary judgment and dismissal. I will make case management orders in that regard. As a matter of fairness they will apply to all parties to the proceedings. I will make orders by way of case management that no party is to file any further document in these proceedings or commence any further proceedings concerning the subject matter of these proceedings without leave first being obtained from the case managing judge. I will also make an order that no party is to communicate with the Court as to any matter concerning these proceedings otherwise than by email to the registry. I certify that the preceding eighteen (18) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Colvin. Associate: Dated: 22 June 2023