Federal Court of Australia

Ogbonna v CTI Logistics Limited [2022] FCA 227

ORDERS

THE COURT ORDERS THAT:

1.    The application for leave to appeal is dismissed.

2.    The applicant must pay the respondents' costs of the application from 7 February 2022 on a lump sum basis.

3.    By 4.00pm AWST on 30 March 2022, the parties must file any agreed proposed minute of orders fixing a lump sum in relation to the respondents' costs of the application.

4.    In the absence of any agreement having been reached, 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

JACKSON J:

1    This is an application for leave to appeal from two interlocutory decisions of the primary judge in proceeding WAD 226 of 2021.

2    The applicant in the present proceeding, Mr Ogbonna, commenced WAD 226 on 12 October 2021. On 12 November 2021, Mr Ogbonna filed Form 43A applications for leave to issue various subpoenas.

3    On 11 December 2021, Mr Ogbonna filed this application for leave to appeal. One of the interlocutory decisions in WAD 226 Mr Ogbonna wants to challenge is a refusal by the primary judge to recuse himself for bias, in relation to which his Honour gave brief ex tempore reasons on 30 November 2021. The other interlocutory decision is a refusal by the primary judge to grant leave to issue the subpoenas. His Honour did not give reasons for that decision, but confirmation that he had made it was, at the latest, communicated to the parties by his Chambers on 3 December 2021.

4    On 25 January 2022, in WAD 226, the respondents (who are the same in both that proceeding and this one) applied for orders based on a contention that Mr Ogbonna has frequently instituted and conducted vexatious proceedings. On 7 February 2022 the primary judge made orders dismissing proceeding WAD 226, save as to the respondents' application for vexatious proceedings orders, with reasons published as Ogbonna v CTI Logistics Limited [2022] FCA 75 (Dismissal Decision).

5    Against that background, the respondents oppose the application for leave to appeal.

6    For the reasons set out below, the application will be dismissed.

Principles

7    The following well established principles concerning applications for leave to appeal from interlocutory decisions are drawn from Decor Corporation Pty Ltd v Dart Industries Inc (1991) 33 FCR 397 at 398-399. The decision whether to grant leave is a discretionary one. The discretion is conferred in unqualified terms by s 24(1A) of the Federal Court of Australia Act 1976 (Cth) and is unfettered. The two major considerations that will generally be addressed in the exercise of the discretion are whether the decision sought to be appealed from is attended with sufficient doubt to warrant its being reconsidered by the appellate court, and whether substantial injustice would result if leave were refused, supposing the decision to be wrong. These two considerations are not to be isolated in separate compartments; they bear upon each other, so that the degree of doubt that is sufficient in one case may be different from that required in another. They provide an appropriate litmus test for the general run of cases, but they are not rigid rules that destroy a court's discretion in all cases but those falling within them.

Mr Ogbonna's submissions and consideration of some of his points

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.

9    Mr Ogbonna also submits that in fact he does not need leave to appeal from the primary judge's two interlocutory decisions. He appears to accept that the decisions were interlocutory, but he relies on s 24(1C) of the Federal Court Act. That subsection provides for an exception to the general rule that leave is required to appeal from interlocutory judgments. The exception applies, relevantly, to interlocutory judgments 'affecting the liberty of an individual'. Mr Ogbonna refers to dictionary definitions of 'liberty' which include in the meaning of the word 'right' or 'privilege'. He appears to be asserting that since the interlocutory decisions affected his rights, they affected his liberty, so leave to appeal was not required. He explained at hearing that he only sought leave because the law was unclear. He also appeared to suggest that an application for leave was required because it was necessary for him to establish by the affidavit in support that his liberty had been infringed, in order to establish that leave was not required. He sought to avoid the circularity inherent in that suggestion by saying that until he had established that, leave was required, but afterwards it was not.

10    I do not accept these submissions. The Court has construed judgments 'affecting the liberty of an individual' in the context of s 24(1C) of the Federal Court Act as being 'confined to orders which subject an individual to direct incarceration or other total deprivation of his or her physical liberty': Talacko v Talacko [2010] FCA 239; (2010) 183 FCR 297 at [43] (Ryan J). That construction has been approved numerous times: see the authorities cited in Hastwell v Kott Gunning [2021] FCAFC 70 at [20] (McKerracher, Kerr and Charlesworth JJ). Even the cases referred to in Hastwell at [21], which suggest that a wider meaning might apply, were all in the context of the actual physical detention of a person. To the extent that the primary judge's decisions have affected Mr Ogbonna's rights, that comes nowhere near interference with his physical liberty as in the sense used in Talacko. Mr Ogbonna does require leave to appeal from both interlocutory decisions of the primary judge.

11    With respect to the decision not to issue the subpoenas, Mr Ogbonna submits that he has a right to have a subpoena issued. That goes to the underlying merits of one of the two decisions from which leave to appeal is sought. For reasons that will be explained, it is not necessary to go into those merits in order to decide the present application. To the extent that Mr Ogbonna submits that he will suffer substantial injustice if leave to appeal is refused, I will deal with that below.

12    Mr Ogbonna also submits that the respondents may not oppose his application for leave to appeal the decision not to issue the subpoena, or any subsequent appeal, because he is seeking a 'declaration of right', and such an application cannot be dismissed. That submission is based on s 21 of the Federal Court Act, which provides that the Court may 'make binding declarations of right' and, at s 21(2), that a 'suit is not open to objection on the ground that a declaratory order only is sought'. The submission is based on a misreading of the section. Even if Mr Ogbonna is seeking a 'declaration of right' (on which I express no view), the effect of s 21(2) is to preclude an opponent from objecting to the application on a specific basis. The basis that is precluded is that the applicant is only seeking an order of a specific kind, that is a declaration, and is not seeking any other kind of remedy (for example, damages). Section 21 does not preclude objection or opposition on any other ground.

13    In terms of the correctness of the primary judge's decision not to recuse himself for bias, Mr Ogbonna advanced few submissions, other than his sweeping and strident claims about racial discrimination and corruption, and those that went to the merits of the case in the District Court and Court of Appeal mentioned earlier. It is not possible to discern any specific complaint about the manner in which the primary judge approached WAD 226. Mr Ogbonna makes complaint about the merits of the primary judge's decision in a different proceeding, WAD 338 of 2019, including his Honour's decision not to apply a provision of the Bankruptcy Act 1966 (Cth). Mr Ogbonna's affidavit in support also says that during the hearings of both WAD 338 of 2019 and of WAD 226, the primary judge 'acted in a prejudicial manner toward me, and I could feel it that he had suppressed dislike for me'.

The respondents' submissions

14    The respondents submit that, now that the Dismissal Decision has been made, Mr Ogbonna does not need leave to appeal to pursue his complaints about the two interlocutory decisions in that proceeding. Referring to Gerlach v Clifton Bricks Pty Ltd [2002] HCA 22; (2002) 209 CLR 478 and Durolek v Pier (WA) Pty Ltd [No 2] [2019] WASCA 138, the respondents submit that where a final judgment is issued in a proceeding, it is open to a party who is unhappy with an interlocutory decision to challenge that decision as part of an appeal against the final judgment. The respondents accept that before the Dismissal Decision, the present application for leave to appeal was at least competent, and they do not appear to suggest that it suddenly became incompetent when that decision was made. But, they say, Mr Ogbonna can now pursue his complaints as part of an appeal as of right, so the present application has become redundant.

15    An immediate difficulty with this submission is that it does not grapple with the question of whether the Dismissal Decision is indeed a final judgment, or whether it is interlocutory. That could make a difference because if it is the latter, there is still no appeal as of right and at least some of the force of the respondents' submissions would be lost. While on the face of things there is some finality in a decision that dismisses a party's originating application, the question of whether summary dismissal is final or interlocutory has rightly been described as a 'vexed area': Weatherall v Satellite Receiving Systems (Australia) Pty Ltd [1999] FCA 741; (1999) 92 FCR 101 at [5] (Burchett J); see for example the divergence of views between Jefferson Ford Pty Ltd v Ford Motor Co of Australia Ltd [2008] FCAFC 60; (2008) 167 FCR 372 at [12]-[16] (Finkelstein J), [161]-[166] (Gordon J) and Kowalski v MMAL Staff Superannuation Fund Pty Ltd [2009] FCAFC 117; (2009) 178 FCR 401 at [40] (Spender, Graham and Gilmour JJ). Section 24(1D)(b) of the Federal Court Act makes it clear that a decision granting summary judgment under s 31A of that Act is taken to be an interlocutory judgment for the purposes of the requirement to seek leave to appeal, but the respondents' application for summary dismissal was expressly made under r 26.01(1) of the Federal Court Rules 2011 (Cth) and was not expressed to be made under s 31A.

16    However, it is not necessary to resolve the question of whether the Dismissal Decision was final or interlocutory for the purposes of determining this application and, in the absence of considered submissions from any party, I will not do so. When I deal with the application below, I will proceed on the assumption that the summary dismissal is an interlocutory judgment, so that leave to appeal from it is required. As I have said, that robs the respondents' submissions of some force, and so is an assumption favourable to Mr Ogbonna.

17    In any event, the nub of the respondents' submissions is simple: in light of the summary dismissal, 'the world has moved on', and the present application is no longer necessary (if it ever was). The respondents also made submissions about the merits of any appeal if leave to appeal is considered.

18    It is also necessary to record that at an interlocutory stage in this proceeding, and shortly after the Dismissal Decision, the respondents sought orders summarily dismissing the present application for leave on the basis that it was academic. Mr Ogbonna objected to that course and also insisted that it was necessary for the respondents to file an affidavit. I directed the application for leave to appeal to proceed to a final hearing so as to give Mr Ogbonna a reasonable opportunity to meet any argument based on the Dismissal Decision. Mr Ogbonna continued to insist at the final hearing that the respondents could only oppose his application by filing an affidavit. That insistence was misconceived. Generally speaking, it is for a party to choose what evidence they wish to adduce in support of their position in litigation, including whether to adduce any evidence at all. If an absence of evidence adduced by a party means that the party's position is not accepted by the court, that party must bear the consequences. There is nothing in this matter to take it outside the ordinary run of cases in that regard. The respondents were free to choose not to put on any affidavits or other evidence.

Consideration - the decision not to issue the subpoenas

19    The identities of the proposed recipients of the subpoenas which the primary judge refused to issue, and the terms of the proposed subpoenas, are not in evidence in this proceeding. I do not know who or what they are.

20    What can be said about the proposed subpoenas, though, is that leave to issue them was sought well before the respondents' application for vexatious proceedings orders was made. In those circumstances it is difficult to see how the subpoenas could be relevant to the part of WAD 226 that remains on foot, namely the vexatious proceeding application. Mr Ogbonna appears to accept that they are not relevant, because he says in his written submissions on this application and repeated in oral submissions that he intends to exercise his rights by issuing a new subpoena to compel the respondents to give evidence in that application.

21    It follows that his application for leave to appeal from the primary judge's prior refusal to issue subpoenas is now pointless. There is no proceeding on foot in relation to which those subpoenas can have any utility. If they ever did have any utility, that must have been in relation to the orders sought in the originating application in WAD 226 or in relation to the competing applications for summary judgment. The application by the respondents was successful and Mr Ogbonna's application for summary judgment was dismissed. Those applications are over, and the result is that subject to any appeal, Mr Ogbonna's application for the orders he sought in WAD 226 is over too. The only way Mr Ogbonna can pursue the orders he sought is to seek leave to appeal or (if applicable) file an appeal. Even if the decision not to issue subpoenas was wrong, and even if it were to be set aside, there would be no point in issuing them afresh.

22    That is a sufficient and complete answer to the application for leave to appeal from the decision not to permit the issue of the subpoenas. To the extent that it is necessary to describe it in terms of the two major considerations identified in Decor, substantial injustice will not result if leave is refused, supposing the primary judge's decision to be wrong. Given the clarity with which that appears, it is not necessary to consider the other major consideration, as to whether there is a sufficient level of doubt as to whether the decision is indeed wrong. Leave to appeal from the subpoena decision will be refused.

Consideration - recusal for bias

23    Mr Ogbonna has articulated no cogent reason to doubt the correctness of the primary judge's decision not to recuse himself for bias. It is well established that the mere fact that a judge has made findings of fact or law adverse to a party in a previous decision does not give rise to a reasonable apprehension of bias let alone, as Mr Ogbonna claims, actual bias: Charan v Secretary, Department of Social Services [2019] FCAFC 134 at [23]-[25] applying Re JRL; Ex parte CJL (1986) 161 CLR 342 at 352 (Mason J); see also Piepkorn v Caroma Industries Ltd [2000] FCA 1230 at [10] (Wilcox J, Moore and Kiefel JJ agreeing). Mr Ogbonna's broad and unparticularised assertion in his affidavit that the primary judge acted in a prejudicial manner adds nothing to the position.

24    As for whether denying leave would cause substantial injustice if the primary decision is wrong, to the extent that the primary judge was (purely as a hypothesis) biased in the way he has disposed of Mr Ogbonna's claims in WAD 226, Mr Ogbonna is free to pursue that as a basis of any application for leave to appeal from the Dismissal Decision (or an appeal from it). Further, that is the context in which it should be pursued, if it is to be pursued at all, now that the Dismissal Decision has been made. Any bias on the part of the primary judge would strike at the basis of the Dismissal Decision and any such claim should be agitated in an application for leave to appeal from that decision rather than from a procedural step made along the way. That will avoid a multiplicity of proceedings and so promote the overarching purpose of the civil practice and procedure provisions to facilitate the just resolution of disputes as quickly, inexpensively and efficiently as possible: Federal Court Act s 37M(1). There will be no substantial injustice if Mr Ogbonna is not permitted to appeal from the prior interlocutory decision.

25    Both of the major considerations that usually determine applications for leave to appeal speak against granting leave from the primary judge's decision not to recuse himself. Leave will be refused.

Costs

26    In large part the application has been dismissed because of the effect of the Dismissal Decision. Whatever merit the application had up to that point, once that decision was made the application should have been withdrawn. The respondents are entitled to their costs of the application from the date of the Dismissal Decision.

Associate:

Dated:    16 March 2022