Federal Court of Australia Ogbonna v CTI Logistics Ltd (No 3) [2024] FCA 872 Appeal from: CTI Logistics v Ogbonna [2022] FedCFamC2G 781 File number: WAD 218 of 2022 Judgment of: FEUTRILL J Date of judgment: 6 August 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 Rules 2011 (Cth) rr 36.51–36.56. 39.05; Pt 42 Div 42.2 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: 13 Date of hearing: Determined on the papers Counsel for the Applicant: 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: 6 August 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 and to charge Matthew David Reid for alleged contempt, the statement of charge and the affidavit of Celestine Ifeanyi Ceefyne Ogbonna sworn 10 July 2024 lodged with the Court on 10 July 2024. 2. As a consequence of paragraph 1 of these orders, the following documents lodged on 10 July 2024 not be accepted for filing: (a) Form 35 interlocutory application of the appellant; (b) Form 137 statement of charge of the appellant; and (c) Form 59 affidavit of Celestine Ifeanyi Ceefyne Ogbonna sworn 10 July 2024. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011. REASONS FOR JUDGMENT FEUTRILL J: 1 On 2 November 2023 the Court made orders, amongst others, that no further interlocutory application or affidavit is to be filed in these proceedings unless leave has been given to do so by a judge of the Court. 2 On 10 July 2024 the appellant lodged a proposed interlocutory application, statement of charge and affidavit. The proposed application is for orders to set aside or vary paragraphs 7, 9, 10, 11 and 12 of the orders of the Court of 28 March 2024, to set aside an appeal book index settled by a Registrar on 19 June 2024 and for orders, in effect, under Pt 42 of the Federal Court Rules 2011 (Cth) to charge Mr Matthew David Reid with contempt. Mr Reid is a solicitor who acts for, amongst others, the first respondent in the appeal, CTI Logistics Limited. 3 By paragraph 7 of the relevant orders made on 28 March 2024 rr 36.51 – 36.56 of the Rules do not apply to the appeal. Paragraph 8 of the orders identifies the documents that are to constitute the appeal book. Paragraphs 9 and 10 deal with settling an index of those documents by a Registrar, if necessary. Paragraphs 11 and 12 require the respondent (as opposed to the appellant) to prepare, file and serve the appeal book in accordance with the index as settled. 4 On 19 June 2024 a Registrar made an order the effect of which was to settle the appeal book index in the form of a document the respondents had circulated on 17 June 2024. The order also made provision for the appellant to prepare a supplementary appeal book in a form settled by the Registrar comprising certain affidavit material he had lodged in the appeal. The material in the supplementary appeal book is outside the scope of the documents identified in paragraph 8 of the orders of 28 March 2024. 5 Paragraph 17 of the orders of 28 March 2024 also made provision for the parties to have liberty to apply to list the matter for further or other directions or orders. The proposed application purports to be made in accordance with that liberty. However, in point of detail, the proposed application is, in effect, an application to vary or set aside interlocutory orders of the Court under r 39.05 of the Rules and an application for punishment for contempt under Div 42.2 of the Rules. Therefore, leave is necessary to make the proposed application as it is not for further or other directions or orders in accordance with the liberty granted to the parties in paragraph 17 of the orders of 28 March 2024. 6 Insofar as the proposed interlocutory application seeks to have Mr Reid charged for contempt, leave to file that application is not only necessary under the orders made on 2 November 2023, but leave would also be required in accordance with an order that has been made in respect of the appellant, known as a vexatious proceedings order, because these proceedings are separately, in effect, proposed proceedings for contempt. The Court also has power to refuse to accept a document for filing where, amongst other things, an application or a document is an abuse of process of the Court and (or) contains frivolous, vexatious and (or) scandalous material. 7 Whether leave to make the proposed application is considered under the vexatious proceedings order or in accordance with the order made on 2 November 2023, the test is whether the proposed proceeding or application raises a ground for the requested order that is 'reasonably arguable'. Amongst other things, the Court may take into account the litigation history and that the vexatious proceedings order has been made: see, Ogbonna, in the matter of Ogbonna [2023] FCA 1334 at [31]-[35]; Ogbonna v CTI Logistics Ltd (No 2) [2024] FCA 383 at [3]. 8 The statement of proposed charge is to the following effect that: … [Mr Reid] contravened the following legislation. 1. Section 137.1 of the Criminal Code Act 1995 (Cth) by providing false or misleading information in an Appeal Book Index on 17 June 2024. 2. Section 42 of the [Crimes] Act 1914 (Cth) by providing false filing dates in an Appeal Book Index and conspiring to defeat justice with [a Registrar] in which [the Registrar] made orders settling the appeal book index in the form circulated by [Mr Reid] and the respondents on 17 June 2024. 3. Section 43 of the [Crimes] Act 1914 (Cth) by omitting [the] relevant Appellant['s] affidavits in an Appeal Book Index by attempting to pervert justice. … 9 The particulars of the charge are as follows: 4. [Mr Reid] removed the relevant Appellant's affidavits from the list of documents in the Appeal Book Index [Mr Reid] served on [the appellant] on 9 May 2024 and the copy [Mr Reid] presented to [a Registrar] on 17 June 2024, which [a Registrar] settled in paragraph 1 of [the] orders of 19 June 2024. 5. [Mr Reid] altered the original dates in which the Appellant's documents were filed in the Appeal Book Index that [Mr Reid] presented on 9 May and 17 June 2024 by using the dates the documents were stamped as a ploy to make the documents inadmissible during the Appeal proper when [Mr Reid] knew that a document is filed on the date that it was received by the Registry office before 4.30 pm on a business day except the day was a weekend or public holiday according to Federal Court Rules 2011 (Cth) 10 The proposed application is supported by an affidavit of Celestine Ifeanyi Ceefyne Ogbonna sworn 10 July 2024. The affidavit is a mixture of submission and assertion. It contains little, if any, statement of fact and none that would provide any reasonably arguable foundation to set aside or vary the orders made on 28 March 2024 or the settling of the appeal book index on 19 June 2024 under r 39.05 of the Rules or otherwise. Amongst other things, the affidavit contains unfounded assertions of serious misconduct on the part of the Registrar and Mr Reid relating to the process by which the appeal book was settled. It also contains unfounded and irrelevant assertions of serious misconduct on the part of a judge of this Court, a judge of the Federal Circuit and Family Court of Australia (Division 2) and of the Commonwealth Director of Public Prosecutions. These unfounded assertions individually and collectively amount to an abuse of process, and material that is vexatious and scandalous. Further, neither the proposed charge nor the affidavit discloses any reasonably arguable allegations of contempt of court. 11 Insofar as the first particular alleges that affidavits were removed from a list served on 9 May 2024, the evident effect of the Registrar's order of 19 June 2024 is to permit the appellant to include that material in a supplementary appeal book that he is to prepare. The second particular is incomprehensible. There is nothing in the affidavit that identifies the significance for the appeal of the filing dates of the various documents or the manner in which the Court could be misled or the administration of justice affected by the asserted 'incorrect' filing dates. To the extent that the appellant asserts in his affidavit that there are 'errors' in the filing dates the asserted 'errors' are, for the most part, a matter of a day or a few days. Documents filed in the Court or the court below that are included in the appeal book or supplementary appeal book will be date stamped with the date and time that they were accepted for filing. Therefore, to the extent anything may turn on the date of filing, that will be evident from the document before the Court on the appeal and the appellant will be able to make submissions in the appeal on that issue. 12 It follows that, on the basis of the Registrar's order of 19 June 2024, the appellant will have the opportunity to include whatever material he contends is relevant with whatever dates he contends are correct in the materials for the appeal. The extent to which that material is within the scope of paragraph 8 of the orders of 28 March 2024 and, if not, whether the Court receives that material in the appeal will be determined at a later time. Therefore, there are no reasonable grounds for contending that Mr Reid has disobeyed an order of the Court, misled a judge of the Court or abused the process of the Court or otherwise interfered with the administration of justice on the basis that affidavits were excluded from the draft appeal book index or that the filing dates of documents included in any index are incorrect. Further, and in any event, alleged contravention of the Criminal Code Act 1995 (Cth) and Crimes Act 1914 (Cth) are not proper grounds for the asserted contempt of Court. 13 For these reasons, leave is refused to make the proposed interlocutory application orders and none of the proposed application, statement of charge and the affidavit in support should be accepted for filing. I certify that the preceding thirteen (13) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Feutrill. Associate: Dated: 6 August 2024