Federal Court of Australia

Ogbonna v CTI Logistics Limited (No 2) [2022] FCA 75

ORDERS

THE COURT ORDERS THAT:

1.    The application by the applicant for summary judgment be dismissed.

2.    The application by the respondents for summary dismissal be allowed.

3.    Subject to order 4, the proceedings be dismissed.

4.    The respondents' application for orders pursuant to s 37AO(2) of the Federal Court of Australia Act 1976 (Cth) be heard on a date to be fixed.

5.    The applicant do pay the respondents costs of and incidental to the application up to and including 7 February 2022, such costs to be assessed if not agreed.

6.    There be a further case management hearing concerning directions to be made for the hearing of the respondents' application referred to in order 4 such case management hearing to take place at 11.15 am on 1 March 2022.

7.    Until further order, save for any minutes of orders to be considered at the case management hearing, no party shall file any further application in these proceedings or other document without prior leave of the Court.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

COLVIN J:

1    In 2012, Mr Celestine Ogbonna worked for CTI Logistics Limited (CTI) as a warehouse storeperson. Mr Raspa, an employee of CTI, sent an email to four other employees of CTI containing statements about Mr Ogbonna. Two days after the email was sent, Mr Ogbonna's employment with CTI was terminated. He brought proceedings in what was then the Federal Circuit Court claiming damages for alleged breach of the Racial Discrimination Act 1975 (Cth) and for unpaid allowances. In reasons dismissing his claim, a judge of the Circuit Court quoted an extract from the email. An appeal from the decision was dismissed.

2    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 it published a report of the reasons for decision of the Circuit Court judge on 24 February 2018. 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.

3    The defamation proceedings were summarily dismissed by a judge of the District Court. Two issues were addressed by the reasons dismissing the application. First, whether CTI and Mr Raspa were responsible for the republication of the email by AustLII. Second, whether the original publisher of material which is republished by another could rely upon a defence open to the republisher (relevantly, the defence afforded by s 28 of the Defamation Act 2005 (WA)).

4    As to the first issue, the District Court judge held that neither CTI nor Mr Raspa were responsible for the republication by AustLII. As to the second issue, his Honour held that the Defamation Act provided a complete defence.

5    Mr Ogbonna brought an appeal in the Court of Appeal of Western Australia. The appeal was dismissed on the basis that alleged error had not been demonstrated as to the conclusion that CTI and Mr Raspa were not responsible for the republication. The Court then reasoned that it was unnecessary to resolve the appeal grounds that concerned the defence afforded by s 28 of the Defamation Act: Ogbonna v CTI Logistics Ltd [2021] WASCA 25. In that regard, it said at [54]-[58]:

It is unnecessary for this court to resolve those grounds, as the first basis for entering summary judgment has been sustained. Success of the grounds challenging his Honour's conclusion that the respondents had a defence under s 28 of the Defamation Act could not therefore lead to the appeal being allowed.

Further, it seems to us to be undesirable for this court to express any concluded view in relation to the issue when it is not necessary to do so. The question is not one which is the subject of any significant prior judicial consideration. The fact that the appellant is self-represented means that the court does not have the benefit of submissions in support of the grounds which are as sophisticated as might be expected from a represented party.

In any event, consideration of the application of s 28 would have a hypothetical and artificial aspect to it in the present circumstances. The question of the availability of a defence under s 28 only arises in a case where the defendant would otherwise be liable for the publication which is the subject of the cause of action. In the present appeal, we have concluded that the respondents are not liable for the publication on AustLII's website on 24 February 2018. There is a degree of artificiality in considering the application of s 28 to circumstances where the respondents are not liable for the publication in any event.

Different questions may arise in a case where responsibility for republication is established. We see no reason to doubt Stavrianou DCJ's conclusion that the reference in s 28(3) to material being published is to the publication which is the subject of the cause of action and to which the defence is to apply. That is, in this case the question would be whether the publication on 24 February 2018 was not a publication honestly for the information of the public or the advancement of education. The appellant's argument based on the purposes for which the original publication was made on 21 July 2010 is without merit. However, in a case (unlike the present) where more than one party was responsible for the republication, questions may arise as to whose purpose is relevant under s 28(3) of the Defamation Act. It is undesirable for this court to attempt to deal with those questions of construction in a case where the application of s 28 does not arise because the respondents are not liable for the republication in any event.

Therefore, we do not express any concluded view in relation to the construction of s 28 of the Defamation Act or these grounds of appeal.

6    An application for special leave to appeal to the High Court was refused: Ogbonna v CTI Logistics Pty Ltd [2021] HCASL 122.

7    Mr Ogbonna has taken considerable exception to the manner in which the issue concerning the availability of the defence under s 28 of the Defamation Act was addressed. He has done so despite the fact that, ultimately, the issue concerning that defence had no bearing upon the outcome of the summary dismissal application. That is because even if his submission to the effect that s 28 did not apply had been accepted, the decision by the District Court judge to uphold the summary judgment application would still stand.

8    By application and statement of claim lodged in this Court on 11 October 2021, Mr Ogbonna acting on his own behalf now claims that there were conspiracies and perversions of the course of justice in respect of the determination of the proceedings in the District Court, the Court of Appeal and the High Court. In various respects those actions are alleged by him to have involved the judges and lawyers acting in those proceedings. Mr Ogbonna alleges that the conduct amounts to 'criminality, fraud or other serious misconduct'. He says that there has been abuse of public office. He says that he knows the seriousness of making the allegations and has available material to prove the allegations and has a proper basis for them. As will emerge, the claim that there is a proper basis for the allegations is plainly incorrect.

9    Mr Ogbonna commenced his proceedings in this Court against CTI, Mr Raspa, Mr David Mellor (who is alleged to have been a manager at CTI) and two lawyers who have acted for CTI in the course of the defamation proceedings. The respondents have brought an application for summary dismissal. Mr Ogbonna has responded by applying for summary judgment on his claims, for summary dismissal of the respondents' application for summary dismissal and for various declarations and orders (including an order for the payment of damages, aggravated damages and exemplary damages as well as an order requiring the publication of an apology).

10    After an initial hearing at which case management directions were made, the opposing interlocutory applications were heard together. In his oral submissions at the hearing Mr Ogbonna made submissions in the most strident of terms. It was apparent from those submissions that he regards a failure to apply what he claims to be the correct legal approach in relation to s 28 of the Defamation Act in the course of his defamation proceedings to be fraudulent, dishonest, a perversion of the course of justice and a failure to perform the judicial task that is criminal in character. He used descriptions of that kind liberally during the course of his written and oral submissions. He also applied the same description to conduct by lawyers who had advanced legal submissions contrary to his view concerning the proper application of s 28.

11    Indeed, the whole of Mr Ogbonna's argument concerned the approach to s 28. He made clear that if s 28 had been applied in his defamation proceedings in the manner that he contended it should have been applied then he would not have a claim to be advanced in the proceedings in this Court. He said that he would not have brought the present claim if s 28 had been applied as he said it should have been.

12    Mr Ogbonna submitted that his allegations of fraud and conspiracy were clearly established by three matters which he submitted were the case. First, the District Court judge had not correctly applied s 28. Second, the judges in the Court of Appeal had refused to answer a question of law being the issue concerning s 28. Third, the judges of the High Court had refused to make a judgment when they refused special leave.

13    By his statement of claim and his affidavits, Mr Ogbonna points to nothing beyond what has occurred in open court, through the making of submissions and through their consideration in the publication of reasons for decision as to matters concerned with s 28 of the Defamation Act.

14    Contrary to his allegations, the evidence shows careful deliberation in relation to his claims and assiduous attention to the content of his arguments. The submissions the subject of his complaint concern matters of a kind that are regularly addressed by courts every day, namely the meaning and application of statutory provisions. The fact that the Court reaches a conclusion contrary to propositions advanced by one party as to such legal matters does not demonstrate any impropriety. On the contrary, it is the performance of the judicial function.

15    To the extent that the Court of Appeal declined to rule on the question concerning s 28 because, in the result, it was not determinative, that course was also proper. The reasoning of the Court of Appeal in that regard was entirely orthodox: Boensch v Pascoe [2019] HCA 49; (2019) 268 CLR 593 at [7]-[8].

16    There is nothing out of the ordinary in anything that is the subject of the affidavits upon which Mr Ogbonna relies. His submissions rise no higher than a fervent hyperbolic expression of his disagreement with the legal reasoning by judges in three courts. He has had his opportunity to bring his claim. It has been dealt with in open court and has been taken all the way to the High Court without success. It is a substantial injustice that the respondents should now be burdened with having to deal with a complaint of the kind that is now advanced by Mr Ogbonna. It is fundamentally misconceived and is oppressive.

17    Further, Mr Ogbonna's complaint concerning the way in which the defence under s 28 of the Defamation Act was addressed ignores the actuality that it was not the availability of the defence that explained why the summary dismissal of his claim in the District Court was upheld by the Court of Appeal. He makes no complaint about the basis upon which his claim failed, namely the conclusion that Mr Raspa was not responsible for the republication by AustLII.

18    The fundamental defects in the contentions advanced by Mr Ogbonna are a full and sufficient basis for Mr Ogbonna's summary judgment application to be dismissed and the respondents' summary dismissal application to be allowed.

19    Mr Ogbonna submitted that the application for summary judgment brought by respondents was invalid for alleged failure to conform to the requirements of r 26.01(2)(a) of the Federal Court Rules 2011 (Cth). It provides that the application must be accompanied by an affidavit stating the grounds of the application and the facts and circumstances relied upon to support those grounds. The application by the respondents was supported by two affidavits dated 9 and 15 November 2021. The respondents' application for summary judgment was filed on 9 November 2021. The grounds of the application were evident from the second affidavit. The respondents also filed submissions dated 18 November 2021 setting out the basis upon which it claimed that the application should be dismissed summarily. Those submissions also articulated the grounds for the application. Thereafter, the applicant was given an opportunity to file further affidavit material and submissions. He did not take up that opportunity. A considerable amount of time has passed since the materials relied upon by the respondents were filed. In those circumstances, there has been no injustice to Mr Ogbonna to the extent that there has been a failure to comply with the Rules. For those reasons, I would dispense with the requirement concerning the provision of grounds at the time of bringing the application. Therefore, it is not a reason why the respondents' summary dismissal application should be denied.

20    Finally, I note that the respondents had submitted in their initial written submissions that the applicant had failed to identify a jurisdiction that was invoked by the application. The application by Mr Ogbonna seeks in part a declaration that there has been an actionable defamation by the republication of the reasons for decision by AustLII as the natural and probable consequence of the sending of the email by Mr Raspa. It is a claim that is brought against, at least, Mr Raspa. It appears that the alleged publication is said to be actionable on the basis that the claim has not been lawfully determined by the defamation proceedings in the District Court and the appeal to the Court of Appeal by reason of alleged fraud. This is indicated by the claims for damages and for an order requiring the publication of an apology. However, it must be said that the precise nature of the claims advanced is not entirely clear. Even so, it is apparent that the matter, that is the justiciable controversy, includes the dispute in relation to the alleged defamatory publication by AustLII on its website. It is the matter that must be within the original jurisdiction of the Court: see Allsop J 'Federal Jurisdiction and the Jurisdiction of the Federal Court of Australia in 2002' (2002) 23 Aust Bar Rev 29.

21    Mr Ogbonna acts on his own behalf. Had the issue of jurisdiction been a matter that might have been determinative then it would have been necessary to bring to his attention the authorities concerned with this Court's jurisdiction in defamation. In particular, it has been decided that this Court has jurisdiction to entertain the application for defamation to the extent that there is said to be publication in a territory: Oliver v Nine Network Australia Pty Ltd [2019] FCA 583 at [10]-[18] (Lee J). The claim made by Mr Ogbonna is of publication on a website that is accessible throughout Australia and, as a popular legal resource, may be taken to be accessed throughout Australia. In those circumstances, a conclusion may be reached that the material has been downloaded in a territory: see, for example, the reasoning by Wigney J in Lin v Google LLC [2021] FCA 1113 at [25]-[26]. There was no contention advanced by the respondents that the claim by Mr Ogbonna was colourable in any respect. When Mr Ogbonna indicated that he relied upon the Court's defamation jurisdiction by relying on what had occurred in the Australian Capital Territory, no submission was advanced for the respondents to the effect that it should not be concluded that there had been publication in a territory. Indeed, in the result the issue of jurisdiction was not pressed with any force in written submissions for the respondents. In those circumstances, I was satisfied that the Court had jurisdiction to entertain the substantive application and proceeded to hear the interlocutory applications.

Orders

22    For the reasons that I have given the application by Mr Ogbonna for summary judgment should be dismissed and the application by the respondents for summary dismissal should be allowed. The respondents have brought a separate interlocutory application in these proceedings for vexatious proceedings orders pursuant to s 37AO of the Federal Court of Australia Act 1976 (Cth). They seek to pursue that application even if their application for summary dismissal is successful. For that reason I will condition the order dismissing the proceedings so as to allow that application to be heard and determined in these proceedings. I will also make directions for a case management hearing as to the filing of affidavits and submissions in respect of that application. As the substantive application will otherwise be dismissed I will also make orders to the effect that until further order no further application or document be filed in these proceedings (save for a minute of orders to be sought at the case management hearing).

23    The respondents seek an order for costs of the proceedings. There is no reason why costs should not follow the event. There should be an order that Mr Ogbonna pay the costs of and incidental to the proceedings to date.

Associate:

Dated:    7 February 2022