Federal Court of Australia

Ogbonna v CTI Logistics Limited (No 5) [2022] FCA 612

ORDERS

THE COURT ORDERS THAT:

1.    For the purposes of today's hearing, and pursuant to s 47B of the Federal Court of Australia Act 1976 (Cth), parties are permitted to appear by way of video link using the Microsoft Teams platform.

2.    The recusal application by the applicant is dismissed.

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

REASONS FOR JUDGMENT

COLVIN J:

1    Mr Celestine Ogbonna brought defamation proceedings in the District Court of Western Australia. The proceedings were summarily dismissed. An appeal to the Court of Appeal was also dismissed. An application for special leave was refused. Mr Ogbonna then claimed 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. He brought proceedings in this Court in which he made those allegations. He named as the respondents to those proceedings, the respondents to the defamation proceedings together with two lawyers who had acted for the respondents (Respondents).

2    The Respondents applied to summarily dismiss the proceedings in this Court. They also applied for orders pursuant to s 37AO of the Federal Court of Australia Act 1976 (Cth) prohibiting Mr Ogbonna from commencing proceedings against the Respondents or their lawyers. I determined that Mr Ogbonna's substantive application should be summarily dismissed. The order dismissing the proceedings was made subject to orders allowing for the subsequent hearing of the pending application for orders pursuant to s 37AO: Ogbonna v CTI Logistics Limited (No 2) [2022] FCA 75.

3    On 25 February 2022, orders were made by consent to facilitate the hearing of the application by the Respondents for orders pursuant to s 37AO. Subsequently the application was listed for hearing on 23 May 2022. In accordance with listing protocols then prevailing by reason of the COVID pandemic, the hearing was listed to be conducted remotely using the Microsoft Teams platform and the parties were advised accordingly.

4    Mr Ogbonna did not comply with aspects of the orders dated 25 February 2022. In consequence, an email was sent to him by my associate on 16 May 2022 inquiring as to whether he proposed to participate in the hearing. Mr Ogbonna then communicated in a telephone call to my associate on 20 May 2022 that he maintained that I was biased and referred to an application that he had made in other unrelated proceedings seeking that I recuse myself. He was told that the application in those proceedings was a separate matter. Later that day, Mr Ogbonna sent an email to my associate stating that because the application in the unrelated proceeding had not yet been determined, 'it would prejudice [his] rights … for [him] to attend any further proceedings' at which I presided that included him as a party.

5    Then on the weekend before the hearing of the application for orders pursuant to s 37AO (which was to take place at 10.15 am on the following Monday), Mr Ogbonna lodged an interlocutory application in which he applied for an order that I disqualify myself from this proceeding 'based on actual biasness'. Mr Ogbonna also stated in his application a claim to the effect that I cannot hear these proceedings because Mr Ogbonna has requested by his application in the unrelated proceedings that I disqualify myself from every case that Mr Ogbonna is a party to 'given the racial discrimination, bullying and corrupt practices that [Mr Ogbonna says he has] had to endure'. Mr Ogbonna also provided an affidavit sworn by him in support of his application for orders that I disqualify myself from hearing these proceedings.

6    Shortly before the hearing on the Monday, Mr Ogbonna was informed that his late application for recusal was to be listed for hearing at the same time as the application by the Respondents that had been listed for hearing that day. Mr Ogbonna served both the application and the affidavit upon those acting for the Respondents on the application pursuant to s 37AO.

7    In accordance with usual practice for a Teams hearing, the details for the hearing were published as part of the daily court list. The matter was allocated a court room and the connection to the Teams hearing was established. Any party or member of the public could attend the hearing in Court. The parties had been notified of a link by which they could join the hearing.

8    Mr Ogbonna did not join the link and he did not appear in person. In these and related proceedings, Mr Ogbonna has previously joined hearings conducted using a Teams link without difficulty. This has included at least one occasion when he was able to join whilst overseas.

9    The hearing was convened with counsel for the Respondents joining remotely. I also joined remotely. The court officer was in a publicly accessible court room in the Federal Court in Perth. After taking the appearance of counsel I arranged for my associate to send an email to the address that was used by Mr Ogbonna reminding him of the hearing and requesting that he join the hearing urgently. This occurred about five minutes after the scheduled commencement time for the hearing. The email again included the link to join the Teams hearing. I allowed for a few minutes for Mr Ogbonna to join. He did not do so.

10    In those circumstances, the hearing of the application pursuant to s 37AO and the associated very late application by Mr Ogbonna for orders that I recuse myself for bias proceeded.

11    Having considered the papers that had been filed by Mr Ogbonna, I indicated that I would not accede to his application that I disqualify myself on the claimed basis of actual bias. I also indicated that I would publish my reasons for that decision. These are my reasons.

12    The affidavit of Mr Ogbonna in support of his application for an order that I disqualify myself begins by alleging that the Respondents have filed a fraudulent affidavit and have made what is alleged to be a vexatious interlocutory application to dismiss the proceedings. It says that a complaint would be made to the Commissioner of the Australian Federal Police, the Commonwealth Director of Prosecutions and the Chief Justice of this Court. It goes on to allege that the application for orders under s 37AO is itself 'frivolous, vexatious and fraudulent in nature'.

13    In effect, by these early paragraphs in his affidavit, Mr Ogbonna says that because he is not a vexatious litigant the application for orders under s 37AO and the affidavit in support are, to adopt his terminology, fraudulent. The statements in his affidavit are unparticularised. They identify no fact that might provide any foundation for use of the epithet of fraud. They amount to no more than an unfounded exaggeration of his claim that there is no basis for the application for orders pursuant to s 37AO. Whether that is so is the issue for adjudication on the present application. Beyond identifying that there is no identified basis for the claim of fraud, it is not appropriate to say any more at this stage. To the extent that there is some implied claim that my failure to accept the claims by Mr Ogbonna to the effect just articulated is evidence of actual bias, there is no logical foundation for any such conclusion to be drawn from the fact that the application by the Respondents is being entertained by the Court. It is the usual business of the Court to consider applications and adjudicate them.

14    Mr Ogbonna's affidavit goes on to list certain matters under the heading 'reasons for disqualification'. He complains that I have previously declined to recuse myself. He provides no further details. Thereafter, Mr Ogbonna complains in his affidavit about various interlocutory decisions that I have made that have been adverse to Mr Ogbonna. His affidavit is no more than a strident disagreement with those decisions. I am unable to extract from the affidavit any conduct that might be said to support in some way the terms of the general claims that he makes about my past conduct in making determinations that have been adverse to him. The fact that I have made decisions with which he disagrees is not a basis, of itself, for claiming that I have been actually biased in the conduct of these proceedings.

15    I note that general allegations of the kind stated in his affidavit have been raised previously by Mr Ogbonna, including in communications with the Chief Justice. These complaints have not resulted in the matter being removed from my docket. I also note that in respect of one of the interlocutory decisions that I made in these proceedings, namely a decision to refuse leave to issue certain subpoenas, Mr Ogbonna sought leave to appeal. At the time of making that decision I had considered a submission from Mr Ogbonna that I should recuse myself from hearing the application but declined to do so. In refusing Mr Ogbonna's application for leave to appeal, Jackson J said (Ogbonna v CTI Logistics Limited [2022] FCA 227 at [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] HCA 39; (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.

16    Having considered the matters relied upon by Mr Ogbonna in support of the present application (as stated in his affidavit) it seems to me that the same position applies. I am unable to discern any evidence to support the claim made. It is well established that an allegation of actual bias is a grave matter and that cogent evidence is required to support such a claim: Reid v Commercial Club (Albury) Ltd [2014] NSWCA 98 at [68]-[74] (Gleeson JA, Emmett and Tobias JJ agreeing). There is simply no factual foundation upon which to base the allegation of actual bias.

17    As Mr Ogbonna is a litigant in person, I have also considered his application on the basis that he intended to claim that the principles of apprehended bias should cause me to disqualify myself. As to the application of those principles in a case (like the present) where the complaint arises from conduct by judges in making determinations in the course of proceedings, I note that in Re Polites; Ex parte Hoyts Corporation Pty Ltd (1991) 173 CLR 78 at 86, Brennan, Gaudron and McHugh JJ quoted with apparent approval the following passage from the reasons of Mason J in Re J.R.L; Ex parte C.J.L (1986) 161 CLR 342 at 352:

It needs to be said loudly and clearly that the ground of disqualification is a reasonable apprehension that the judicial officer will not decide the case impartially or without prejudice, rather than that he will decide the case adversely to one party. There may be many situations in which previous decisions of a judicial officer on issues of fact and law may generate an expectation that he is likely to decide issues in a particular case adversely to one of the parties. But this does not mean either that he will approach the issues in that case otherwise than with an impartial and unprejudiced mind in the sense in which that expression is used in the authorities or that his previous decisions provide an acceptable basis for inferring that there is a reasonable apprehension that he will approach the issues in this way.

18    I am unable to discern from the contents of the affidavit of Mr Ogbonna any basis for complaint beyond his strong disagreement with the decisions I have made to date. I am not aware of any finding that I have made as to any aspect of the evidence given by Mr Ogbonna that would cause there to be any apprehension as to whether I could bring an independent mind in respect of future findings. The applications that I have determined have required consideration of matters of law and procedure that have not required the adjudication of disputed factual matters that turn on any assessment of Mr Ogbonna's credit as a witness.

19    Finally, I record that, recognising the real possibility that bias may be subconscious, I have approached my judicial task in an effort to resolve fairly and according to law the matters I have been asked to adjudicate. As part of that approach, I have provided these reasons to enable others to be able to see the basis upon which I have declined the application. There is also a transcript of previous hearings that is available and Mr Ogbonna identifies no matter by reference to the past record of the proceedings to support his application (beyond his general complaint about the outcome of the interlocutory applications).

20    For those reasons, I dismiss the application for an order that would disqualify me from the further hearing of these proceedings.

21    Finally, I observe that had I been satisfied that there was some arguable basis for the allegations made, then by reason of their character, I would have given serious consideration to whether it was appropriate to refer the disqualification application to another judge. Although it is usual practice for such applications to be dealt with by the judge (with any complaint about the judge's decision to be pursued by way of appeal), there may be instances where the nature of the claim is such that it is appropriate in the first instance for the application to be considered by another judge. That is especially so where the claim made concerns the manner in which determinations have been made by the judge in the course of ongoing proceedings between the same parties. As to such an approach, three senior judges of this Court (Middleton, McKerracher and Jagot JJ) said in GetSwift Limited v Webb [2021] FCAFC 26; (2021) 283 FCR 328 at [4]:

… this appeal shows that it may be more prudent for an independent mind (or minds) to consider disqualification applications on some occasions. This approach may assist to promote confidence in the legal system, which after all is a key rationale for the apprehended bias rule. As the primary judge understood, despite any countervailing issue of public policy and case management, if 'the law requires disqualification then so be it'.

22    Implicit in the above statement is a recognition that referral to another judge should not be the usual course. A decision in a particular case as to whether such a course should be taken must also take account of the possible unfairness to other parties that would be occasioned by the delay and additional cost that would result in referral of such an application to another judge, especially where such matters are raised late in the day. In most instances, parties are adequately protected by the selection process for judicial appointment, the seriousness with which judges in this country regard their judicial oath, the conduct of proceedings in open court where they can be observed and reported upon by the media, the publication of reasons and the availability of an appeal in appropriate cases.

Associate:

Dated:    24 May 2022