Federal Court of Australia

Ogbonna v Government of Western Australia (No 2) [2024] FCA 77

ORDERS

THE COURT ORDERS THAT:

1.    The Applicant’s application for leave to appeal dated 22 August 2023 be dismissed.

2.    The Applicant pay the Respondents’ costs of the proceeding.

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

REASONS FOR JUDGMENT

O’BRYAN J:

Introduction

1    In this proceeding, the applicant, Mr Ogbonna, applies for leave to appeal from the decision of this Court in Ogbonna v Government of Western Australia (No 5) [2023] FCA 935 (primary judgment or PJ). By that decision, the primary judge refused Mr Ogbonna’s application for summary judgment and allowed the respondents’ application for summary dismissal of Mr Ogbonna’s claims in the proceeding pursuant to s 31A(2) of the Federal Court of Australia Act 1976 (Cth) (FCA Act). The primary judge also ordered Mr Ogbonna to pay the respondents’ costs of the proceeding and made a number of ancillary orders.

2    In the proceeding below, Mr Ogbonna alleged that he had been defamed by three named respondents, namely the “Government of Western Australia”, the Western Australian Police Force and Programmed Integrated Workforce Ltd (Programmed). Subsequently, the Western Australian Police Force was removed as a named respondent, leaving the “Government of Western Australia” (being the first respondent in the proceeding below) and Programmed (being the third respondent in the proceeding below) (PJ [1]).

3    In this proceeding, Mr Ogbonna has joined the “Government of Western Australia” (which I understand to be a reference to the State of Western Australia, and which I will refer to as the “State”) and Programmed. In his application for leave to appeal, Mr Ogbonna identified the State as the first respondent and Programmed as the third respondent. As this proceeding constitutes a separate proceeding to the proceeding below, and there are only two respondents, Programmed has been identified on Court documents (including this judgment) as the second respondent. Ordinarily, this would not require explanation. However, I refer to this matter because it appears to have caused Mr Ogbonna considerable angst, with the Court being copied to numerous emails in which Mr Ogbonna alleges that the identification of Programmed as the second respondent involves corrupt conduct.

4    Mr Ogbonna’s behaviour in the conduct of this proceeding has been vexatious. Mr Ogbonna regularly makes inappropriate and insulting communications by telephone and email. As detailed further below, Mr Ogbonna regularly sends communications to the Court, the parties and third parties which contain scandalous allegations of corruption, perjury and fraud. Nothing filed by Mr Ogbonna in the proceeding lends the slightest support for the allegations he makes. In so far as the communications are sent to the Court, the communications are in breach of an order made by the Court in this proceeding.

5    Mr Ogbonna has failed to adhere to the Court’s orders in this proceeding and ultimately failed to attend the hearing of the application for leave to appeal which was listed yesterday. This is not the first time this has occurred. As discussed below, this appears to be Mr Ogbonna’s practice in the conduct of litigation.

6    Mr Ogbonna’s conduct has occasioned unnecessary expense and aggravation to the other parties. It has also caused aggravation to the Court and wasted the Court’s scarce resources.

7    I made orders at the hearing on 12 February 2024 dismissing Mr Ogbonna’s application for leave to appeal under r 35.32 of the Federal Court Rules 2011 (Cth) (FCR) by reason of Mr Ogbonna’s failure to comply with the directions of the Court and failure to attend hearings in this proceeding. These are my reasons for doing so.

Primary judgment

8    As noted earlier, Mr Ogbonna commenced proceedings against the State, the Western Australian Police Force and Programmed alleging he had been defamed (PJ [1]). As described by the primary judge (PJ [14]), Mr Ogbonna’s case consists of two claims of defamation based upon the following:

(a)    a statement allegedly made on 7 November 2017 by an employee of Programmed to the Western Australian Police Force, said to be the original publication;

(b)    a statement allegedly made to Mr Ogbonna’s then spouse on 7 November 2017 by two identified police officers who attended at his residence, said to be a republication; and

(c)    a statement allegedly made on 31 August 2020, by an unidentified police officer publishing a “running sheet” on the “WAPOL Incident Management System” (IMS) which was allegedly accessible across Australia via the “National Police Reference System” (NPRS), also said to be a republication.

9    In the claim, the “first matter complained of” was the publication of the running sheet on the IMS which was said to be accessible throughout Australia by means of the NPRS. The publication made on 31 August 2020 was alleged to be continuing (PJ [15]). The “second matter complained of” was the alleged republication when the police officers attended at his residence and spoke to his then spouse (PJ [16]).

10    The primary judge recorded (PJ [18]) that the defamatory words alleged to have been published were as follows:

(a)    the words allegedly published by the two police officers on 7 November 2017 are said to have been:

We came on Mr Celestine Ogbonna, someone called us to say that he has been making rambling statements and is suicidal, the reason we were dispatched as a matter of urgency to attend to check on his mental state

(b)    the words allegedly included on the running sheet published on the IMS are said to have been:

Warnings: Not to issue firearm, Has medical condition

11    The primary judge made the assumption (PJ [19]) that the allegation made was that the words allegedly spoken by the police officers were a republication of words communicated by an employee of Programmed to someone at the Western Australian Police Force that Mr Ogbonna had been making rambling statements and was suicidal. Further, the warning included in the running sheet was somehow alleged to be a repetition or republication of what is alleged to have been communicated by the employee of Programmed.

12    In the proceeding below, Mr Ogbonna sought summary judgment on his claims and the respondents (the State and Programmed) sought summary dismissal. Those applications were listed for hearing on three separate occasions being 30 August 2022, 20 June 2023 and 2 August 2023. Mr Ogbonna did not appear at any of the hearings: see Ogbonna v Government of Western Australia (No 4) [2023] FCA 686 (Ogbonna No 4) at [5]-[7] and primary judgment at [6].

13    In the proceeding below, Mr Ogbonna also filed some three rounds of notices to admit. The primary judge recorded (Ogbonna No 4 at [15]) that that is a course Mr Ogbonna has followed in other proceedings in this Court, referring to 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 primary judge observed that the filing of successive notices in the same terms is an abuse of process.

14    In the proceeding below, the primary judge also found that Mr Ogbonna had been making repeated inquiries of registry staff by telephone and in person attendance and, on occasions, he had telephoned more than 20 times in a single day (Ogbonna No 4 at [17]). By reason of that behaviour, the primary judge made 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. As discussed below, I made the same order in this proceeding for the same reason. However, Mr Ogbonna has failed to comply with the order.

15    The primary judge dismissed Mr Ogbonna’s claim summarily for the following principal reasons (PJ [34]-[35]):

34    The fundamental problem for Mr Ogbonna is the disconnect between his claim as to what was said by the officers on 7 November 2017 said to be a repetition of a statement by an employee of Programmed (which was that he had been making rambling statements and was suicidal) and the form of the alleged republication (which is a warning not to issue a firearm and that he has a medical condition). On the face of it, the latter is not a republication of the former. There is evidence from the State to the effect that the warning has nothing to do with what was said on 7 November 2017. Rather, as to the firearm, it is a standard warning that is expressed whenever a restraining order has been granted against a person. As to the reference to a medical condition it reflects a record made on 18 January 2012 when the applicant was held in the Perth watch house to the effect that Mr Ogbonna suffers from asthma and is claustrophobic. The context deposed to supports that evidence and no credible contention has been raised by Mr Ogbonna to dispute the evidence.

35     There is a further problem that Mr Ogbonna does not claim, in terms, that the running sheet has been downloaded through the NRPS. Rather, his pleading indicates that he relies upon the fact that the South Australian police officer referred to the ‘restraining orders’ in the presence of the other occupants of the car. There is no suggestion that the police officer mentioned the warnings on that occasion. In the face of evidence from the State that the information on the running sheet is not accessible nationally, there is no reasonable basis for the allegation that the warning on the running sheet was published to the police officer.

Procedural history

16    Mr Ogbonna commenced this proceeding by filing an application for leave to appeal and an affidavit in support sworn 22 August 2023. The application stated nine grounds supporting the grant of leave to appeal. Oddly, the first ground of the application was a contention that leave to appeal was not required because, although the primary judgment was interlocutory, it concerned proceedings relate to contempt of the Court.

17    On 27 October 2023, I conducted a case management hearing and made orders timetabling the present proceeding to a hearing on 12 February 2024. Prior to the case management hearing, Mr Ogbonna sent the Court a notice of appeal which contained nine grounds. The first ground of the application for leave to appeal (which contended that leave was not required) was removed and replaced by a new ground. At the case management hearing, Mr Ogbonna advanced a submission that he did not require leave to appeal from the primary judgment. I granted Mr Ogbonna leave to amend his application to include the new ground, and I also listed the following questions for hearing on 12 February 2024:

(a)    whether leave to appeal is required; and

(b)    if leave to appeal is required, whether leave should be granted,

(the Leave Questions).

18    The proposed grounds of appeal from the primary judgment, if leave were to be granted, were stated as follows (errors and emphasis in original):

1.    First, whether a first party who served on a second party, a notice to admit dated 1 June 2023 for the proceeding only, specified facts (rule 22.01) and if those facts were not traversed within 14 days (15 June 2023) under rule 22.02 of the Federal Court Rules 2011, resulting in an deemed admission (rule 22.05) if the first party is entitled to judgment on admissions against the second party upon making the proper application pursuant to rule 22.07 of the Federal Court Rules 2011 (Cth)

2.    Second, the standard of review of the facts of the matter was not subject to the high level of scrutiny required in cases involving a common law right given the supporting affidavit sworn on 31 July 2023, for leave to file the amended interlocutory application dated 31 July 2023 and for summary judgement which was mentioned in the Applicant’s submissions dated 31 July 2023 was not amongst the affidavits listed in paragraph 21 of the judgement. The omitted evidence and affidavit contained relevant facts related to the matter, and some were material particular that could determine the case and entitled the Applicant to judgement and the orders sought on the First Respondent’s deemed admissions.

3.    Third, the learned judge erred in law when he said in paragraph 26 of his judgement that: “the contents of the notice to admit reveals that the matters in respect of which it seeks ‘admissions’ are not properly the subject of such a notice”. The facts outlined in the notice to admit dated 1 June 2023 referred to subject matters relevant in legal proceeding WAD 201/2021 and amongst the stated facts were material particular of significant importance that laid the basis for judgment on the deemed admission.

4.    Fourth, the learned judge erred in law when he said in paragraph 28 of his decision that: “Mr Ogbonna has not established the factual basis for his application for summary judgment” There were no substantive legal defects as the sought admissions were properly the subject of the notice dated 1 June 2023. Furthermore, facts admitted under a ‘notice to admit’ are generally not withdrawn where the truth of the facts has been admitted because the Courts rarely grant leave for the withdrawal of admission in respect of a party who transgresses the fourteen (14) days to maintain the status quo. Subsection 38(1)) of the Federal Court of Australia Act 1976 (Cth), provides: “Subject to any provision made by or under this or any other Act with respect to practice and procedure, the practice and procedure of the Court shall be in accordance with Rules of Court made under this Act.”

5.    Fifth, the learned judge erred in facts when he said in paragraph 34 of his decision: ‘‘As to the reference to a medical condition it reflects a record made on 18 January 2012 when the applicant was held in the Perth watch house to the effect that Mr Ogbonna suffers from asthma and is claustrophobic. The context deposed to supports that evidence and no credible contention has been raised by Mr Ogbonna to dispute the evidence.” It should be noted “WARNING: “Not to issue firearm” is the standard warning stated whenever a restraining order is issued, not “WARNING: “Not to issue firearm” Has medical condition.” The latter is an imputation that someone has a serious mental illness, and there was credible contention that proved the First Respondent’s assertions were fraudulent.

6.     Sixth, the learned judge wrongly stated in paragraph 35 of his decision: “In the face of evidence from the State that the information on the running sheet is not accessible nationally”. It is a well-known fact that information on the running sheet is accessible nationally because the National Domestic Violence Order Scheme (NDVOS), is openly accessible in any Australian jurisdiction through the National Police Reference System (NPRS).

7.     Seventh, the learned judge wrongly stated in paragraph 40 of his decision: “Mr Ogbonna as seeking to resurrect historical matters that occurred on 7 November 2017 as the basis for a claim.” The basis for the claim is the Fremantle Police Cockburn Police Station Violence Restraining Order Running Sheet with a received date of 31 August 2020 that included the following words: “WARNING: “Not to issue firearm” Has medical condition.” which was uploaded to a national database and accessed by others.

8.     Eighth, the learned judge erred in both facts and laws in the entire matter by not affording procedural fairness to the Applicant, resulting in the waste of the Court’s time and resources for failure to take into consideration the Applicant’s affidavit sworn on 31 July 2023, which determined the matter in the Applicant’s favour without contention. Leave for subpoenas was not granted for disclosures as admitted in paragraph 45, Section 37M of the Federal Court of Australia Act 1976 (Cth) provides:

(1)    The overarching purpose of the civil practice and procedure provisions is to facilitate the just resolution of disputes:

(a)    according to law; and

(b)    as quickly, inexpensively and efficiently as possible.

9.     Nineth, the First and Third Respondent solicitors and witnesses filed false and misleading interlocutory application, notices of disputes and affidavits which contravened these sections of the Crimes Act 1914 (Cth): section 35 - giving false testimony; section 36-fabricating evidence; section 42-conspiracy to defeat justice; and section 43- attempting to pervert justice of the Crimes Act 1914 (Cth) and therefore were contemptuous and an abuse of process.

19    On 27 October 2023, I also made the following timetabling orders:

6.    By 8 December 2023, the Applicant file and serve:

(a)    an outline of submissions in respect of the Leave Questions limited to 10 pages;

(b)    a list of any evidence adduced before the Court at first instance (WAD 201/2021), whether an affidavit, document or transcript, to which the Applicant wishes to refer in respect of the Leave Questions; and

(c)    any affidavit on which the Applicant wishes to rely in respect of the Leave Questions.

7.    By 22 December 2023, each Respondent file and serve:

(a)    an outline of submissions in respect of the Leave Questions limited to 10 pages;

(b)    a list of any evidence adduced before the Court at first instance (WAD 201/2021), whether an affidavit, document or transcript, to which the Respondent wishes to refer in respect of the Leave Questions; and (c) any affidavit on which the Respondent wishes to rely in respect of the Leave Questions.

8.    By 5 February 2024, the Respondents file and serve an electronic hearing book containing:

(a)    the pleadings before the Court at first instance (WAD 201/2021);

(b)    the evidence referred to in the Applicant’s list referred to in paragraph 6(b);

(c)    the evidence referred to in each Respondent’s list referred to in paragraph 7(b);

(d)    any affidavit referred to in paragraph 6(c); and (e) any affidavit referred to in paragraph 7(c).

20    Mr Ogbonna failed to comply with paragraph 6 of the orders made on 27 October 2023.

21    I also made an order on 27 October 2023 (paragraph 1) stipulating that no party is to communicate with the Court in relation to the proceedings otherwise than by email addressed to perth.registry@fedcourt.gov.au. As I explained at the case management hearing, I made that order because Mr Ogbonna had been sending numerous inappropriate emails to my chambers and had made numerous telephone calls to my chambers.

22    In recent weeks, Mr Ogbonna has breached paragraph 1 of the orders made on 27 October 2023 on numerous occasions by sending emails to chambers. Those emails are referred to further below.

23    Prior to the case management hearing, the State also sought orders restraining Mr Ogbonna from communicating with the State or its legal representative in relation to this proceeding other than by email directed to two specified addresses. At the case management hearing, Mr Ogbonna opposed the making of those orders. I therefore listed that application for hearing on 2 November 2023. Despite opposing the orders, Mr Ogbonna failed to attend the hearing on 2 November 2023. At the hearing, I heard that application and made orders as sought for the reasons given in Ogbonna v Government of Western Australia [2023] FCA 1345. As stated in those reasons, the evidence showed that Mr Ogbonna had on numerous occasions telephoned and emailed lawyers and staff at the State Solicitor’s Office in what can only be described as an insulting, abusive and harassing manner.

24    On 22 December 2023, and in compliance with the timetabling orders, Programmed filed and served outline submissions and a list of evidence it wished to rely on at the hearing. Programmed also filed and served an interlocutory application seeking dismissal of the Mr Ogbonna’s application for leave to appeal pursuant to rr 35.32(a), (c) or (d) of the FCR on the basis of Mr Ogbonna’s failure to comply with paragraph 6 of the orders made on 27 October 2023. The application was supported by an affidavit of Rachel Alice Dawson, a partner of Herbert Smith Freehills, solicitors for Programmed, affirmed 22 December 2023. The affidavit contained evidence of Mr Ogbonna’s repeated failure to attend hearings in this Court or comply with orders, including:

(a)    in the proceeding below, Mr Ogbonna’s failure to attend the hearings scheduled for 30 August 2022, 22 June 2023 and 2 August 2023;

(b)    in this proceeding, Mr Ogbonna’s failure to attend the interlocutory hearing on 2 November 2023; and

(c)    Mr Ogbonna’s failure to file material in accordance with the timetabling orders in this proceeding.

25    Ms Dawson also deposed that the main publication allegedly made by an employee of Programmed, on which Mr Ogbonna relies for his alleged republication claim against Programmed, was the subject of a defamation action against Programmed in the District Court of Western Australia under case No. 4215 of 2018. That action was dismissed by Deputy Registrar Hewitt in a decision delivered on 11 June 2020 in an unreported judgment, Ogbonna v Programmed Integrated Workforce Ltd [2020] WADC 75. Mr Ogbonna appealed the decision by Deputy Registrar Hewitt to a single judge of the District Court. By judgment delivered on 27 November 2020, Bowden DCJ dismissed the appeal in an unreported judgment, Ogbonna v Programmed Integrated Workforce Ltd [No 2] [2020] WADC 150. Mr Ogbonna then appealed to the Western Australian Court of Appeal against the orders made by Bowden DCJ. In a unanimous decision, the Court of Appeal (Quinlan CJ, Murphy and Beech JJA) refused Mr Ogbonna leave to appeal and dismissed the appeal in an unreported judgment, Ogbonna v Programmed Integrated Workforce Ltd (No 2) [2022] WASCA 79. Mr Ogbonna did not attend the appeal hearing and gave no notice of his non-attendance, as observed by the Court of Appeal (at [2]).

26    On 12 January 2024, the State filed and served an outline of submissions and a list of evidence it wished to rely on at the hearing. At the hearing, Counsel for the State explained that they had deferred filing submissions and a list of evidence in circumstances where Mr Ogbonna had failed to file material in accordance with the Court’s orders. It would have been preferable for the State to approach the Court in those circumstances, although I accept that it was late in the year. While it is regrettable that the State did not file and serve its material at the time required by the Court’s orders, I do not consider that any prejudice was caused to Mr Ogbonna in circumstances where Mr Ogbonna did not file any material in support of his application.

27    On 2 February 2024, without seeking leave or a variation to the previous timetabling orders made by the Court, Mr Ogbonna filed a written outline of submissions dated 2 February 2024 and a list of evidence to be relied upon at the hearing. On the same day, Mr Ogbonna filed an interlocutory application supported by an affidavit sworn by him the same day. The interlocutory application sought the following orders:

1.    The amendment in the terms outlined in the grounds of appeal one and two be allowed in the ‘Proposed Notice of Appeal’ dated 2 February 2024.

2.    The affidavit of Celestine Ifeanyi Ceefyne Ogbonna, sworn on 31 July 2023, be known as the affidavit originally filed on 1 August 2023 in WAD201/2021, notwithstanding its status as further evidence on appeal in this proceeding in the form of annexure “CICO-05” in the affidavit of Celestine Ifeanyi Ceefyne Ogbonna sworn on 24 January 2024.

3.    All documents filed on 22 December 2023 by the Third Respondent in the role of the Second Respondent be declared null and void as the Second Respondent, as a non-juristic entity, ceased to be a party in WAD201/2021 by consent in paragraph 2 of Colvin J’s orders on 26 April 2022 and herein in WAD210/2023 mutatis mutandis.

4.     Ms Rachel Alice Dawson, Mr Stephen John Olynyk, and Mr Martin Clive Goldblatt be prosecuted for contempt of court for submitting fraudulent documents and relying on the ensuing false and misleading affidavits, where the deponents in the affidavit of Georg Raithel affirmed on 21 April 2022, the Affidavit of Justin Wade Budden affirmed on 21 April 2022, and the Affidavit of Damien John Brown affirmed on 16 June 2022, have been referred to law enforcement agencies for perjury.

5.     Such further relief as the Court may deem fit, given the circumstance of fraud by both Respondents.

28    The proposed notice of appeal dated 2 February 2024, referred to in paragraph 1 of the interlocutory application, was annexure CICO-6 to Mr Ogbonna’s affidavit of the same date. The proposed amendments to the earlier notice of appeal are minor.

29    The lawyers for Programmed provided an electronic hearing book to the Court, Mr Ogbonna and the State by email on 5 February 2024 which contained a hyperlink that enabled the hearing book to be downloaded. The email stated:

Dear Registry

Pursuant to Order 8 of Justice O’Bryan’s Orders dated 27 October 2023, please see the attached Index to the Respondents’ electronic hearing book and link to the file sharing platform Kiteworks, where the eBook can be downloaded.

We note that the eBook has a file size greater than 50MB and so pursuant to the Practice Note on Technology Resources: GPN‐ebooks, we have provided this eBook via the file sharing platform in a single volume. We understand that this constitutes filing and the Court will appropriately split the eBook into several sealed parts and make them available on the Commonwealth Courts Portal for the parties.

Given the size of the file, we respectfully request that the eBook be accepted in the current format, being Format 2 as listed on the eBooks Practice Note (GPN‐eBOOKS) dated 17 August 2022.

All parties have been copied into this correspondence by way of service.

30    On 6 February 2024, the Perth Registry of the Court sent an email to the lawyers for Programmed, with a copy to Mr Ogbonna and the State, advising that the hearing book had been successfully downloaded and placed on the electronic court file in its entirety, available to court staff including chambers.

31    On 9 February 2024, the lawyers for Programmed sent an email to the Perth Registry of the Court, with a copy to Mr Ogbonna and the State, advising of two minor pagination errors in the hearing book, and providing a further hyperlink to an updated version of the hearing book.

Recent communications from Mr Ogbonna in breach of the orders of the Court

32    As noted above, by paragraph 1 of the orders made on 27 October 2023, I ordered that no party is to communicate with the Court in relation to the proceedings otherwise than by email addressed to perth.registry@fedcourt.gov.au. By paragraph 1 of the orders made on 2 November 2023, I also ordered that Mr Ogbonna is restrained until further order from communicating with the State, or its legal representatives, in relation to this proceeding, other than in writing, and by an email sent to sso@sso.wa.gov.au and/or s.olynyk@sso.wa.gov.au.

33    In the last two weeks, Mr Ogbonna has breached those orders on a number of occasions.

34    On 30 January 2024, Mr Ogbonna sent an email to my associate and executive assistant in breach of the above orders (which email was also copied to a number of Ministers of the Crown and to the NOSSC, which appears to be the National Operations State Service Centre of the Australian Federal Police). The email begins with a complaint that the Court refers to Programmed as the second respondent in this proceeding and states:

I was horrified to see Programmed Integrated Workforce Ltd subsequently file documents as Second Respondent when they knew that they were the Third Respondent and then it dawned on me that Programmed Integrated Workforce Ltd was attempting to defeat justice.

35    As explained earlier, this proceeding is a different proceeding from the proceeding before the primary judge. In this proceeding, there are only two respondents and Programmed is the second respondent. Mr Ogbonna’s assertion that Programmed was “attempting to defeat justice” is nonsense.

36    Mr Ogbonna’s email continues with scandalous and unsubstantiated assertions that, by her affidavit of 22 December 2023 (referred to above), Ms Dawson “has committed perjury” and continued with further scandalous and unsubstantiated assertions that:

The deponents who swore the following documents contravened Commonwealth law in using fabricated documents and false and misleading information that relates to material terms and, therefore, committed perjury in the following affidavits:

•    the Affidavit of Georg Raithel was affirmed on 21 April 2022.

•    the Affidavit of Justin Wade Budden was affirmed on 21 April 2022.

•    the Affidavit of Damien John Brown, was affirmed on 16 June 2022

Mr Col Blanch, Commissioner of Police | Western Australia Police Force and Mr Paul Papalia, Western Australian Minister for Police, know about these public officers and have done nothing to stand these officers down and ensure that the law prevails. I have copied them into this email once again so that they do not deny that they were unaware, and the Government of Western Australia is aware, including the Premier, that these public officers lied on behalf of the Western Australian Government and are being protected.

37    On 6 February 2024, Mr Ogbonna sent another email to my associate and executive assistant, as well as Counsel for the State, in breach of the above orders (which email was also copied to a number of Ministers of the Crown, the NOSSC and numerous media organisations). The email reiterated Mr Ogbonna’s misconceived complaint about Programmed being referred to as the second respondent and contained a number of scandalous, unsubstantiated assertions of illegality or misconduct by the legal representatives of the respondents.

38    By email dated 6 February 2024, my chambers reminded Mr Ogbonna of paragraph 1 of the above orders made by the Court and informed Mr Ogbonna that I considered his recent emails to be in breach of those orders in so far as they had been sent to my chambers and to other legal representatives of the State.

39    In disregard of that reminder and the orders, on 9 February 2024 Mr Ogbonna sent a further email to my associate and executive assistant in breach of the orders (which email was also copied to a number of Ministers of the Crown, the NOSSC and numerous media organisations). The email was a lengthy diatribe against the Court and the legal representatives of the respondents, again containing scandalous, unsubstantiated assertions of illegality and misconduct.

Hearing of the application

40    I heard the application for leave to appeal at 10.15 am (WAST) on 12 February 2024 via videoconference (using Microsoft Teams).

41    Shortly before the hearing, Mr Ogbonna contacted my chambers to state that he was unable to access the electronic hearing book and that he would not be attending the hearing. In an email sent at 11.42 am (AEDT), Mr Ogbonna stated:

I told you this morning that I could not access the Appeal book when I spoke to you over the phone. I signed into the Commonwealth Courts Portal and was horrified that the Appeal book was not uploaded.

As I already told you, I will not be attending the hearing this morning as the application for leave to appeal hearing will have to be rescheduled, with all due respect.

The Appeal book is key evidence to be presented to the National Anti-corruption Commission, Australian Federal Police and other relevant law agencies, given the systemic, ongoing corruption.

42    The third paragraph of the email suggests that Mr Ogbonna wished to obtain a copy of the hearing book on this application in order to present it to the “National Anti-corruption Commission, Australian Federal Police and other relevant law agencies”.

43    My chambers responded to Mr Ogbonna by email sent at 11.51 am (AEDT) which informed Mr Ogbonna that, if he wished to make an application to adjourn the hearing, he would need to attend the hearing and make that application.

44    Mr Ogbonna did not appear at the hearing to apply for an adjournment. I find that Mr Ogbonna was aware of the hearing, and was aware that an application for an adjournment was able to be made, and was required to be made, at the hearing and yet deliberately chose not to appear at the hearing to make that application.

45    In the circumstances, I proceeded with the hearing. There was no proper application before the Court for an adjournment and, most importantly, no evidence adduced in support of an adjournment. The Court will not grant an adjournment on the basis of an email sent to chambers which merely asserts that a party has been unable to access materials for the hearing. The Court requires a party to appear, adduce evidence of any difficulty that the party has encountered and, if required, answer questions about the difficulty. The Court has a busy schedule with a high volume of cases. It is not possible for the Court to indulge litigants who deliberately choose not to appear before the Court at scheduled hearings. To do so would be to waste the time of the Court and the other parties at considerable expense to both.

46    At the hearing, Programmed pressed its application that Mr Ogbonna’s application for leave to appeal be dismissed under r 35.32 of the FCR or, in the alternative, r 35.33 of the FCR. In circumstances where Mr Ogbonna failed to appear at the hearing, the State joined that application.

47    At the conclusion of the hearing, I made an order dismissing Mr Ogbonna’s application for leave to appeal under r 35.32, and ordered that Mr Ogbonna pay the respondents’ costs of the proceeding, for the following reasons.

Dismissal of the proceeding

48    Rule 35.32 provides as follows:

A respondent to an application under rule 35.12 may apply to the Court for an order that the application be dismissed:

(a)    for an applicant’s failure to comply with a direction of the Court; or

(b)    for an applicant’s failure to comply with these Rules; or

(c)    for an applicant’s failure to attend a hearing relating to the application; or

(d)    for want of prosecution.

49    As set out above, Mr Ogbonna has both failed to comply with directions of the Court and has failed to attend hearings of the Court.

50    In relation to directions of the Court, Mr Ogbonna has repeatedly failed to comply with paragraph 1 of the orders made on 27 October 2023 and paragraph 1 of the orders made on 2 November 2023. The recent emails sent by Mr Ogbonna to the Court indicate that the failure to comply is in deliberate defiance of the Court’s orders. Mr Ogbonna also failed to comply with the Court’s timetabling orders with respect to the hearing of this proceeding. Mr Ogbonna was required to file and serve an outline of submissions, and a list of evidence to be relied upon, by 8 December 2023. That order was made at the only hearing at which Mr Ogbonna appeared. Despite that order, Mr Ogbonna did not file any submissions or a list of evidence to be relied on until 2 February 2024, nearly two months late. Mr Ogbonna has not offered any explanation for the delay. It appears that Mr Ogbonna considers himself entitled to disregard the Court’s orders.

51    In relation to attending hearings, Mr Ogbonna attended the first case management hearing on 27 October 2023, but then failed to appear at the interlocutory hearing on 2 November 2023 and the hearing proper on 12 February 2024. In relation to the latter, and as noted above, Mr Ogbonna was informed that if he wished to make an application to adjourn the hearing, he would need to appear to do so. Mr Ogbonna chose not to appear.

52    In my view, the above circumstances not only enliven the Court’s power to dismiss an application for leave to appeal but provide a sound reason for doing so. Mr Ogbonna’s behaviour in the conduct of this proceeding is the obverse of behaviour required by the overarching purpose in s 37M of the FCA Act. Mr Ogbonna’s behaviour has occasioned additional expense for the parties and has promoted delay. I also find that Mr Ogbonna is seeking to use this proceeding as a platform from which to publish scandalous, unsubstantiated claims against the legal representatives of the respondents. I infer that Mr Ogbonna wishes to delay the proceeding so that he can continue on that course.

53    In the circumstances, it is unnecessary to consider the merits of Mr Ogbonna’s application for leave to appeal. Nevertheless, having reviewed the materials that have been filed with the Court, I consider that Mr Ogbonna’s application has no prospects of success.

54    There is no doubt that Mr Ogbonna requires leave to appeal from the decision below. Section 24(1A) of the FCA Act provides that an appeal shall not be brought from a judgment referred to in s 24(1) that is an interlocutory judgment unless the Court or a Judge gives leave to appeal. Section 24(1D) states that a decision granting or refusing summary judgment under s 31A of the FCA Act is taken to be an interlocutory judgment for the purposes of s 24(1A). The decision below was summary judgment under s 31A.

55    The principles concerning leave to appeal from interlocutory judgments are well known. The Court must be satisfied that the decision below, in all the circumstances, is attended by sufficient doubt to warrant it being reconsidered by a Full Court and that a substantial injustice would result if leave were refused, supposing the decision to be wrong: Décor Corp Pty Ltd v Dart Industries Inc (1991) 33 FCR 261. These considerations are cumulative and each limb must be made out.

56    For the following reasons, the grounds of appeal contained in Mr Ogbonna’s draft notice of appeal (which have been reproduced earlier) do not raise any doubt about the correctness of the decision below.

Proposed ground 1

57    Proposed ground 1 challenges the primary judge’s conclusions concerning Mr Ogbonna’s multiple notices to admit. At PJ [26], the primary judge concluded (in respect of Mr Ogbonna’s application for summary judgment):

By way of submission, Mr Ogbonna also sought to rely upon admissions alleged to have arisen by reason of an alleged failure to respond to a notice to admit filed on 1 June 2023. I have already determined that the notice to admit is an abuse of process: Ogbonna v Government of Western Australia (No 4) at [6], [15]. Further, regard to the contents of the notice to admit reveals that the matters in respect of which it seeks ‘admissions’ are not properly the subject of such a notice.

58    Proposed ground 1 does not identify any arguable error in the primary judge’s conclusion with respect to Mr Ogbonna’s purported notices to admit.

Proposed ground 2

59    Proposed ground 2 challenges the “standard of review of the facts of the matter” by the primary judge. The ground is largely unintelligible. In so far as the ground places reliance on Mr Ogbonna’s affidavit dated 31 July 2023, the affidavit was not before the Court (and, for that reason, not referred to by the primary judge). The primary judge had made an order on 22 June 2023 requiring leave to be sought and obtained to file any further documents. Mr Ogbonna did not seek or obtain such leave in relation to the affidavit dated 31 July 2023.

Proposed ground 3

60    Proposed ground 3 challenges the primary judge’s conclusion that the content of the notice to admit dated 1 June 2023 “reveals that the matters in respect of which it seeks ‘admissions’ are not properly the subject of such a notice” (PJ [26]). The notice to admit dated 1 June 2023 contains matters of argument, not matters of fact. By way of illustration, paragraph 3 of the notice commences:

The Family Violence Restraining Order (FVRO) marked “JWB1” with an effective date of 20-FEB-2018 and listed names: ‘OGBONNA, Celestine Ifeanyi Ceefyne’ on page 6 in the affidavit of Justin Wade Budden sworn on 21 April 2022, was false and misleading in a material particular.

61    As a further illustration, paragraph 7 states that: “It is unequivocally clear that the First and Third Respondents possess no defences to the alleged defamation claims in the legal proceeding WAD 201/2021 that is available under the Defamation Act 2005 (WA)”.

62    Having reviewed the notice to admit, there is no arguable error in the conclusion reached by the primary judge.

Proposed ground 4

63    Proposed ground 4 alleges error by the primary judge in concluding at PJ [28] that Mr Ogbonna had not established the factual basis for his application for summary judgment. The proposed ground again relies on deemed admissions said to have arisen as a result of the notice to admit dated 1 June 2023. As stated in respect of proposed grounds 1 and 3, there is no arguable error in the primary judge’s conclusions with respect to the notices to admit served by Mr Ogbonna in Ogbonna No 4 at [15]-[16] and the primary judgment at [26].

Proposed ground 5

64    Proposed ground 5 alleges that the primary judge erred in making the following finding at PJ [34]:

As to the reference to a medical condition it reflects a record made on 18 January 2012 when the applicant was held in the Perth watch house to the effect that Mr Ogbonna suffers from asthma and is claustrophobic. The context deposed to supports that evidence and no credible contention has been raised by Mr Ogbonna to dispute the evidence.

65    Mr Ogbonna appears to contend that that finding is in error because the statement on the running sheet, “WARNINGS: Not to issue firearm. Has medical condition”, necessarily carries an imputation that someone has a serious mental illness. The contention cannot be accepted and does not demonstrate arguable error in the primary judge’s factual finding.

Proposed ground 6

66    Proposed ground 6 challenges the primary judge’s finding at PJ [35], on the basis of evidence from the State, that the information on the running sheet is not accessible nationally. By proposed ground 6, Mr Ogbonna contends that: “It is a well-known fact that information on the running sheet is accessible nationally because the National Domestic Violence Order Scheme (NDVOS), is openly accessible in any Australian jurisdiction through the National Police Reference System (NPRS)”. Mr Ogbonna’s assertion of the “well-known fact” does not demonstrate any arguable error in the primary judge’s finding based on evidence adduced at the hearing.

Proposed ground 7

67    Proposed ground 7 challenges the primary judge’s finding at PJ [40] that it is correct to characterise Mr Ogbonna’s case as seeking to resurrect matters that occurred in 2017. As submitted by the State, the primary judge’s acceptance of that characterisation was not material to his Honour’s decision. At PJ [41], the primary judge upheld the State’s application for summary dismissal for the reasons given in respect of the application by Programmed. The finding at PJ [40] was not part of those reasons.

Proposed ground 8

68    By proposed ground 8, Mr Ogbonna contends that the primary judge did not afford him procedural fairness because the Court failed “to take into consideration the Applicant’s affidavit sworn on 31 July 2023, which determined the matter in the Applicant’s favour without contention”. The ground has no merit. As noted above in connection with proposed ground 2, Mr Ogbonna’s affidavit dated 31 July 2023 was not before the Court because the primary judge had made an order on 22 June 2023 requiring leave to be sought and obtained to file any further documents and Mr Ogbonna did not seek or obtain such leave in relation to the affidavit. Accordingly, there was no denial of procedural fairness.

Proposed ground 9

69    By proposed ground 9, Mr Ogbonna alleges that the solicitors and witnesses for the State and Programmed filed false and misleading interlocutory applications, notices of disputes and affidavits in breach of various laws. Mr Ogbonna has not filed any evidence in support of that ground, beyond mere assertion. I consider the allegation to be scandalous and baseless.

Conclusion

70    In conclusion, Mr Ogbonna’s application for leave to appeal is dismissed under r 35.32 of the FCR by reason of Mr Ogbonna’s failure to comply with the directions of the Court and failure to attend hearings in this proceeding. Costs should be awarded in favour of the respondents.

Associate:    

Dated:    13 February 2024