Federal Court of Australia

Ogbonna v CTI Logistics Ltd (No 6) [2024] FCA 1134

ORDERS

THE COURT ORDERS THAT:

1.    Leave be refused for the appellant to file the interlocutory application for orders to vary or set aside orders of the Court made on 28 March 2024 and on 19 June 2024 lodged on 20 September 2024 and the affidavit of Celestine Ifeanyi Ceefyne Ogbonna sworn 20 September 2024.

2.    The following documents lodged on 20 September 2024 not be accepted for filing:

(a)    Form 35 interlocutory application of the appellant;

(b)    Form 59 affidavit of Celestine Ifeanyi Ceefyne Ogbonna sworn 20 September 2024; and

(c)    Form 18 Notice of a Constitutional matter under section 78B of the Judiciary Act 1903 (Cth).

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

REASONS FOR JUDGMENT

FEUTRILL J:

1    The appellant in these proceedings is subject to a vexatious proceedings order made on 23 May 2022 under s 37AO(2) of the Federal Court of Australia Act 1976 (Cth). On 2 November 2023 I made an order granting the appellant leave to file a notice of appeal from a sequestration order made by a judge of the Federal Circuit and Family Court of Australia (Division 2) against the appellant on 20 September 2022. At that time, I also made an order to the effect 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: Ogbonna, in the matter of Ogbonna [2023] FCA 1334.

2    The appellant has sought leave to file interlocutory applications on four occasions: see, Ogbonna v CTI Logistics Ltd (No 2) [2024] FCA 383; Ogbonna v CTI Logistics Ltd (No 3) [2024] FCA 872; Ogbonna v CTI Logistics Ltd (No 4) [2024] FCA 1035; and Ogbonna v CTI Logistics Ltd (No 5) [2024] FCA 1101. Leave was refused for the first three applications and was largely refused on the last application. The last three applications relate to the orders made on 28 March 2024 by me and 19 June 2024 by a Registrar. The background to and circumstances in which those orders were made are set out in Ogbonna (No 4) and need not be repeated.

3    On 20 September 2024 the appellant lodged yet another application for leave to make an interlocutory application challenging the orders made on 28 March 2024 and 19 June 2024, with a supporting affidavit of Celestine Ifeanyi Ceefyne Ogbonna sworn 20 September 2024. Paragraphs 1 to 4 of the proposed application are quintessential examples of a vexatious application that is an abuse of process as those proposed orders have been the subject of four earlier applications for leave and proposed interlocutory applications. There are no circumstances that would warrant revisiting the earlier decisions refusing leave. Otherwise, for the reasons given in Ogbonna (No 5), the appellant’s application for review of the Registrar’s orders of 19 June 2024 is listed to be heard immediately before or at the appeal that is to be heard tomorrow. The affidavit of 20 September 2024 is also in substantially the same form as the earlier affidavits that contain vexatious and scandalous material for which directions refusing to accept them for filing have been made. The most recent affidavit has some additional paragraphs to the affidavit lodged on 12 September 2024 that refer to Ogbonna (No 5). The purpose of these paragraphs is to raise unfounded assertions about the conduct of the Registrar and other assertions regarding the contents of the appeal book index and Crimes Act 1914 (Cth) that are also vexatious, scandalous and an abuse of process. The most recent application for leave also includes a proposed interlocutory application for an order vacating the appeal listed for hearing tomorrow pursuant to s 78B of the Judiciary Act 1903 (Cth). The applicant lodged with the application for leave a document entitled ‘Notice of a constitutional matter under section 78B of the Judiciary Act 1903’.

4    As with the previous applications for leave, the applicable test for the grant of leave is whether the proposed application raises a ground for the requested orders that is ‘reasonably arguable’. Amongst other things, the Court may take into account the litigation history and that a vexatious proceedings order has been made: see, Ogbonna at [31]-[35]; Ogbonna (No 2) at [3]; Ogbonna (No 3) at [7]; Ogbonna (No 4) at [8]; Ogbonna (No 5) at [8].

5    Section 78B(1) of the Judiciary Act provides that where a cause is pending in a federal court involving a matter arising under the Constitution or involving its interpretation, it is the duty of the court not to proceed in the cause unless and until the court is satisfied that notice of the cause, specifying the nature of the matter has been given to the Attorneys-General of the Commonwealth and of the States, and a reasonable time has elapsed since the giving of the notice for consideration by the Attorneys-General of the question of intervention in the proceeding or removal of the cause to the High Court. Matters arising under the Constitution or involving its interpretation are those in which the right, title, privilege or immunity is claimed under that instrument, or matters which present necessarily and directly and not incidentally an issue upon its interpretation: James v South Australia [1927] HCA 32; 40 CLR 1 at 40 (Gavan Duffy, Rich and Starke JJ); Re McBain; Croome v Tasmania [1997] HCA 5; 191 CLR 119 at 126 (Brennan CJ, Dawson and Toohey JJ); Ex parte Australian Catholic Bishops Conference [2002] HCA 16; 209 CLR 372 at [68] (Gaudron and Gummow JJ).

6    There is no issue in the appeal to which s 78B of the Judiciary Act could possibly apply. Assuming that the notice of a constitutional matter is directed to the review of the Registrar’s orders of 19 June 2024, there is also nothing in that notice that raises any issue in respect of which it is reasonably arguable that it involves a matter arising under the Constitution or involves its interpretation. Moreover, the notice of a constitutional matter purports to raise matters that have been the subject of earlier proposed interlocutory applications for which leave was refused. That is, the notice contains assertions that are vexatious, scandalous and an abuse of process. It also contains appears to contain additional assertions of a vexatious and scandalous nature.

7    For these reasons, leave to make the proposed interlocutory application to vacate the hearing of the appeal will be refused. Further, the Registrar will be directed not to accept the proposed application, affidavit of the appellant or notice of a constitutional matter for filing.

Associate:

Dated:    25 September 2024