Federal Court of Australia

Ogbonna v CIT Logistics Ltd (No 2) [2024] FCA 383

ORDERS

THE COURT NOTES THAT:

The document referred to in paragraph 2(e) of these orders was stamped as ‘Received’ in the eLodgment portal of the Court at 5:40:38 PM (AWST) on 30 November 2023. A copy of that document is Annexure “A” to these orders.

THE COURT ORDERS THAT:

1.    Leave to file an interlocutory application for punishment for alleged contempt dated 22 March 2024 and the affidavits and other documents in support be refused.

2.    As a consequence of paragraph 1 of these orders, the following documents lodged on 22, 25 and 28 March 2024 not be accepted for filing:

(a)    interlocutory application for punishment for alleged contempt dated 22 March 2024;

(b)    affidavit of Celestine Ifeanyi Ceefyne Ogbonna sworn 22 March 2024;

(c)    Form 137, statement of charge dated 22 March 2024;

(d)    affidavit Celestine Ifeanyi Ceefyne Ogbonna sworn 25 March 2024; and

(e)    minute of consent orders dated 30 November 2023.

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

Annexure “A”

REASONS FOR JUDGMENT

REVISED FROM TRANSCRIPT

FEUTRILL J:

1    On 2 November 2023 the Court made orders, amongst others, that no further interlocutory application or affidavit is to be filed in these proceedings unless leave has been given to do so by a judge of the Court. The appellant lodged an interlocutory application and sought leave in accordance with that order on 22 March 2024, by which he seeks leave to make an interlocutory application under Pt 42 of the Federal Court Rules 2011 (Cth) to charge Mr Matthew David Reid with contempt. Mr Reid is a solicitor who acts for, amongst others, the first respondent in the appeal, CTI Logistics Limited.

2    Leave to file that application is not only necessary under the orders made on 2 November 2023, but leave would also be required in accordance with an order that has been made in respect of the appellant, known as a vexatious proceedings order, because these proceedings are separate, in effect, proceedings for a contempt. The Court’s power to refuse to accept a document for filing exists where, amongst other things, an application or a document is an abuse of process of the Court or contains vexatious material.

3    Whether one has regard to the interlocutory application as one brought and requiring leave under the vexatious proceedings order or in accordance with the order made on 2 November 2023, the test is whether the proposed proceeding or application raises a ground for the requested order that is ‘reasonably arguable’. I have dealt with this previously in my reasons for decision concerning the grant of leave for the appellant to commence this appeal, which is Ogbonna, in the matter of Ogbonna [2023] FCA 1334 at [31]-[35]. Amongst other things, the Court may take into account the litigation history and that the vexatious proceedings order has been made.

4    The statement of proposed charge is to the following effect that:

[Mr Reid] contravened section 137.1 of the Criminal Code Act 1995 (Cth) by providing false or misleading information to a Commonwealth Officer in relation to the elodgment of the Minute of Consent Order dated 30 November 2023.

5    The particulars of the charge go on to identify allegations that the consent order was not lodged as claimed in an email from Mr Reid to my associate, and that was confirmed in an email from her dated 7 December 2023.

6    The proposed application is supported by a proposed affidavit of Mr Ogbonna sworn 22 March 2023. In my view, neither the charge nor the proposed affidavit in support of the application discloses any reasonably arguable allegations of contempt of court. There is nothing in the alleged conduct concerning disobeying an order of the Court, misleading a judge of the Court or abuse of process or otherwise interfering with the administration of justice. The affidavit also does not disclose facts that demonstrate that there was not in fact eLodgment of the consent order. But in any event, the consent order was brought to the attention of the Court and orders were made in part in reliance on it on or about 7 December 2023.

7    Accordingly, I will not grant leave to the appellant to file the application for contempt proceedings or the affidavit in support.

Associate:

Dated:    17 April 2024