Federal Court of Australia

Ogbonna, in the matter of Ogbonna [2026] FCA 835

ORDERS

THE COURT ORDERS THAT:

1.    The application be determined without an oral hearing.

2.    The application 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    On 23 May 2022, vexatious proceeding orders were made against Mr Celestine Ogbonna pursuant to s 37AO of the Federal Court of Australia Act 1976 (Cth) (Orders). The Orders prohibited Mr Ogbonna from instituting any proceedings in this Court against CTI Logistics Limited (or any of its officers and employees), Mr Neil Raspa, Mr Justin Sims, Mr Thomas Wilson or Mr David Mellor, or any of their present or future legal practitioners. I was the judge responsible for making the Orders.

2    Section 37AR provides that an applicant who is subject to a vexatious proceeding order may apply to the Court for leave to institute a proceeding that is subject to the order. It provides that the applicant for leave must file an affidavit with the application that:

(a)     lists all the occasions on which the applicant has applied for leave under this section; and

(b)     lists all other proceedings the applicant has instituted in any Australian court or tribunal, including proceedings instituted before the commencement of this section; and

(c)     discloses all relevant facts about the application, whether supporting or adverse to the application, that are known to the applicant.

3    If a judge considers that the affidavit provided in support of such an application does not substantially comply with the above requirements then the judge may make an order dismissing the application: s 37AS(1). Further, the judge must make such an order if the judge considers the proceedings to be vexatious: s 37AS(2). The application may be dismissed without an oral hearing: s 37AS(3).

4    Mr Ogbonna now seeks leave to institute proceedings 'in accordance with' the Orders. He says that he seeks to commence proceedings in (a) defamation; and (b) malicious prosecution of bankruptcy proceedings. Mr Ogbonna's application says that it is supported by his own affidavit dated 22 September 2025. He has since filed a supplementary affidavit dated 5 February 2026.

5    The proposed respondents to the proceedings are CTI Logistics, Mr David Mellor and five other persons not identified by name in the Orders. However, it appears that they are officers, employees or past or present legal representatives of CTI Logistics.

6    The annexures to the affidavits include a very long list of previous legal proceedings in which Mr Ogbonna has been involved. They also include a proposed originating application and a proposed statement of claim.

7    The proposed statement of claim identifies seven matters complained of as alleged defamatory publications made in September 2022. The first matter complains about affidavits deposed by a person who is said to be a lawyer acting for CTI Logistics that was relied upon by CTI Logistics in bankruptcy proceedings against Mr Ogbonna. The claims concerning the first matter contain various unparticularised and general allegations of fraud, abuse of power and an offence under the Bankruptcy Act. It also complains about a decision that was published by the Federal Circuit and Family Court of Australia (Division 2) and the contents of a creditors petition and a bankruptcy notice.

8    The second, third and fourth matters appear to complain about publications in relation to the making of a sequestration order against Mr Ogbonna based upon the lawyer's affidavit.

9    The fifth matter repeats earlier paragraphs about the making of a sequestration order and refers to an affidavit by a different lawyer said to have been acting for CTI Logistics in the bankruptcy proceedings. It alleges fraud and abuse of power.

10    The sixth matter repeats earlier paragraphs and refers to an affidavit affirmed in support of a creditors petition by a person said to be a 'director and/or officer' of CTI Logistics. It includes allegations that there was a breach of director's duties by that person, it claims that the application was fraudulent and alleges a contravention of the Corporations Act that is said to attract a civil penalty.

11    The seventh matter complains about another affidavit by a different person said to be a 'director and/or officer' of CTI Logistics. It contains similar allegations to those advanced as to the sixth matter but does so against the different deponent.

12    There follows a plea of aggravated damages that includes allegations of criminal conduct.

13    There is then a claim of alleged malicious prosecution of bankruptcy proceedings. It is without any material facts and is expressed in conclusionary terms without any particularity as to conduct that might amount to malicious prosecution. It appears to rely upon the alleged making of false affidavits but there is no indication of the particular aspects that are said to be false and knowingly so.

14    Finally, there is claim to exemplary damages.

15    In the proposed statement of claim, there are repeated references to loss of privilege over particular communications in the bankruptcy proceedings. It appears that these references are concerned with the privilege associated with communications for the purposes of Court proceedings. As was stated by the majority in Mann v O'Neill (1997) 191 CLR 204 at 211-12 (Brennan CJ, Dawson, Toohey and Gaudron JJ):

It is well settled that absolute privilege attaches to all statements made in the course of judicial proceedings, whether made by parties, witnesses, legal representatives, members of the jury or by the judge. It extends to oral statements and to statements in originating process, in pleadings or in other documents produced in evidence or filed in the proceedings. It is said that it extends to any document published on an "occasion properly incidental [to judicial proceedings], and necessary for [them]".

It is also settled law that absolute privilege attaches to statements made in the course of quasi-judicial proceedings, ie proceedings of tribunals recognised by law and which act "in a manner similar to that in which a Court of justice acts". Various considerations are relevant to the question whether proceedings are quasi-judicial. However, the overriding consideration is "whether there will emerge from the proceedings a determination the truth and justice of which is a matter of public concern". The privilege extends to members of tribunals and to "advocates, litigants, and witnesses". And its scope is no less extensive in other respects than in the case of statements made in the course of judicial proceedings.

(Footnotes omitted).

16    Given the apparent focus of the proposed statement of claim upon matters stated in court documents and affidavits used in Court proceedings, the absence of any coherent articulation in the proposed statement of claim (or elsewhere in the affidavit in support of the application) as to why absolute privilege would not be a defence to the alleged defamatory publications is significant.

17    I note that there are also a number of references in the proposed statement of claim to an order that was made on 29 November 2021 dismissing an application by Mr Ogbonna to set aside a bankruptcy notice. Again, I was the judge who made the order. As to the reasons for the making of the order: see my reasoning in Ogbonna v CTI Logistics Limited [2021] FCA 1491. There are claims made in the proposed statement of claim that 'in truth' the bankruptcy notice was invalid. The basis for these claims appear to the allegations about the various court documents referred to in the proposed statement of claim.

18    After the application was allocated to me, Mr Ogbonna informed my chambers that he intended to apply to set aside the Orders and that he considered that it may be appropriate for me to recuse myself from involvement in the application for leave to institute the proposed proceedings. Mr Ogbonna did not provide details as to the basis for these positions.

19    On 3 June 2026, I ordered that Mr Ogbonna inform the Court by email to my associate whether he contends that I should not determine his application for leave and, if so, that he should file and serve written submissions specifying any matters relied upon in support of that position.

20    The only communication received from Mr Ogbonna after the making of those orders was an email in which Mr Ogbonna said:

I write concerning the order made on 3 June 2026 inviting me, as the Applicant, to notify Justice Colvin's Chambers if I contend that Justice Colvin should disqualify himself from determining the application. I respectfully request that Justice Colvin not determine the application and that the matter be referred to another judge of the Court.

The basis of my request is that Justice Colvin has previously made decisions in proceedings involving me which I contend have adversely affected my rights and interests. Those matters have given rise to a genuine concern on my part as to whether a fair-minded lay observer might reasonably apprehend that Justice Colvin may not bring an impartial mind to the determination of the present application.

In particular, I rely upon the procedural history of prior proceedings before Justice Colvin, including decisions that are presently the subject of challenge, review, appeal, or related proceedings. I contend that issues arising from those earlier proceedings are sufficiently connected to matters presently before the Court such that it is appropriate, in the interests of justice and maintaining public confidence in the administration of justice, that the present application be determined by another judge.

Accordingly, I respectfully request that the application be referred to a different judge for determination.

21    In the above circumstances, the issues that arise for determination are:

(1)    Should I recuse myself having due regard to the matters raised by Mr Ogbonna?

(2)    Should there be an oral hearing of Mr Ogbonna's application?

(3)    Has Mr Ogbonna substantially complied with the requirements of s 37AS of the Federal Court of Australia Act?

(4)    If no to (3), should the Court exercise its discretion to refuse leave to Mr Ogbonna to commence the proposed proceedings?

(5)    Do I consider the proposed proceedings to be vexatious?

Issue (1): Should I recuse myself having due regard to the matters raised by Mr Ogbonna?

22    Two matters appear to be raised by Mr Ogbonna in support of his respectful request that I recuse myself from deciding his application for leave. First, I have made decisions on other applications that have been adverse to Mr Ogbonna. Second, there are prior proceedings that were before me 'that are presently the subject of challenge, review, appeal, or related proceedings' and they have a connection to the matters the subject of his leave application.

23    As to the first matter, the following observation by Mason J in Re JRL; ex parte CJL (1986) 161 CLR 342 at 352 must be borne in mind:

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.

24    The fact that I have heard and determined previous cases on the facts and the law and reached a result that is adverse to Mr Ogbonna in previous instances does not give rise to a reasonable apprehension of bias. The outcome in previous cases is not a sound basis for concluding that any future decision by the same judge will not be approached with an impartial and unprejudiced mind. I am not aware of any instance where I have made adverse findings as to the credit of Mr Ogbonna. Given the general terms in which the objection is expressed and for reasons I have given I am not persuaded that the first matter raised by Mr Ogbonna is a reason for recusal.

25    As to the second matter, I am unclear as to the ongoing applications to which Mr Ogbonna refers. He provides no details. I am aware that Feutrill J has determined that an appeal brought by Mr Ogbonna in relation to his bankruptcy should be allowed: Ogbonna v CTI Logistics Ltd (No 7) [2025] FCA 1125. Notwithstanding that success there appears to have been an appeal brought against that decision by Mr Ogbonna. However, those proceedings do not concern the correctness of any decision made by me. The relevant history is explained by Feutrill J in Ogbonna v CTI Logistics Ltd (No 7) at [4]-[16].

26    As I have explained, in his proposed statement of claim, Mr Ogbonna does refer to an order that I made in 2021 dismissing his application to set aside a bankruptcy notice. It is apparent from the history explained by Feutrill J that failure to comply with that bankruptcy notice was the basis for a sequestration order made by a judge of the Federal Circuit and Family Court (Division 2). It is also apparent that Feutrill J allowed Mr Ogbonna's appeal as to the making of that sequestration order on the basis of a limitation point.

27    I am unable to discern how any of those matters might give rise to an apprehension of bias when it comes to the present application brought by Mr Ogbonna. It appears that the proposed proceedings seek to make allegations against CTI Logistics and certain of its officers and lawyers as to materials that were presented to the Court as part of the bankruptcy proceedings brought against Mr Ogbonna. Those proceedings were conducted in the Federal Circuit and Family Court (Division 2). It seems that Mr Ogbonna wishes to contend that the conduct of CTI Logistics, its officers and lawyers means that the bankruptcy notice was invalid. However, none of those matters seek to impugn by way of appeal or some other form of review the decision that I made in Ogbonna v CTI Logistics Limited [2021] FCA 1491 or the reasoning on which that decision was based.

28    For those reasons, I am also not persuaded that the second matter is a reason for my recusal.

Issue (2): Should there be an oral hearing of Mr Ogbonna's application?

29    Mr Ogbonna has filed two affidavits in support of his application. The second of those affidavits was filed after a registrar of this Court informed Mr Ogbonna of a number of deficiencies with his application. Further, Mr Ogbonna has been involved in a previous successful application for leave and, therefore, has some awareness of what is required: Ogbonna, in the matter of Ogbonna [2023] FCA 1334.

30    For reasons that I will provide, it is obvious that the application for leave must be refused. In those circumstances, no purpose would be served by convening an oral hearing. An oral hearing is not necessary in order to provide explanation to Mr Ogbonna or otherwise as a matter of fairness. For those reasons, I will order that the application be determined without an oral hearing.

Issue (3): Has Mr Ogbonna substantially complied with the requirements of s 37AS of the Federal Court of Australia Act?

31    As I have mentioned, amongst other things, s 37AR requires that the affidavit in support of the application for leave 'discloses all relevant facts about the application, whether supporting or adverse to the application, that are known to the applicant': see s 37AR(3). The Court may dismiss an application for leave if it does not substantively comply with s 37AR(3): s 37AS.

32    In my view, the 'relevant facts about the application' include a general description of the nature of the claim in respect of which leave is sought. The requirement for leave would be meaningless if it could be met by filing affidavit material that failed to disclose the essential facts said to give rise to a claim in respect of which the leave is sought. An affidavit which failed to include such facts would not enable an assessment to be made as to whether there was a claim in respect of which leave might be given or whether the proposed claim was vexatious, both being matters that must be evaluated. It would also lack the necessary detail to enable the Court to be specific as to the particular claim to which any leave given might pertain.

33    With due respect to Mr Ogbonna and making allowance for the fact that he is a litigant in person, the claims that are made in the proposed statement of claim attached to his supplementary affidavit are vague and unclear. They are extremely repetitive and, though cast in formal language of the kind associated with causes of action in defamation and malicious prosecution, fail to provide a comprehensible foundation for claims of that kind against the proposed respondents. They are expressed in very general terms and lack coherence as a factual explanation as to the basis for claims of that kind. They lack any narrative of events or other detail that would enable the reader to discern the basis for the serious allegations to which reference is made throughout the document. Further, neither the affidavit nor the supplementary affidavit relied upon by Mr Ogbonna in support of his application discloses the relevant facts upon which Mr Ogbonna relies or the events that have occurred that are relevant to his proposed application. Finally, as I have indicated that do not deal with the issue of absolute privilege in a way that indicates why complaint may be made in respect of court documents.

34    For those reasons, the application fails to substantively comply with the requirements of s 37AS. It is not necessary to consider the other requirements. However, in that regard, I note that the affidavit fails to provide any meaningful information as to the outcome of the many proceedings listed in the attachment to Mr Ogbonna's affidavit. The facts as to the outcome in each of those proceedings would be relevant to the application for leave, especially given that many of those proceedings involve the bringing of unsuccessful defamation proceedings. The failure to provide those facts is a further reason why the application fails to substantively comply.

35    Having regard to the nature and extent of the failure to comply and Mr Ogbonna's history as a litigant, I consider it appropriate to exercise the discretion conferred by s 37AS(1) to dismiss the application for leave.

Issue (4): If no to (3), should the Court exercise its discretion to refuse leave to Mr Ogbonna to commence the proposed proceedings?

36    Given the conclusion I have reached as to Issue (3), this further issue does not arise. If the affidavit did comply (contrary to the finding I have made as to Issue (3)) then, substantially for the reasons I have given in dealing with Issue (3), I would have concluded that leave should be refused.

Issue (5): Do I consider the proposed proceedings to be vexatious?

37    Section 37AS(2) provides that the application must be dismissed if the proceedings are vexatious. For the following reasons, compliance with that requirement is a further reason why the application must be dismissed.

38    The inclusive statutory definition of 'vexatious proceedings' that applies to s 37AS is expressed in the following terms:

(a)     a proceeding that is an abuse of the process of a court or tribunal; and

(b)     a proceeding instituted in a court or tribunal to harass or annoy, to cause delay or detriment, or for another wrongful purpose; and

(c)     a proceeding instituted or pursued in a court or tribunal without reasonable ground; and

(d)     a proceeding conducted in a court or tribunal in a way so as to harass or annoy, cause delay or detriment, or achieve another wrongful purpose.

39    In Garrett, in the matter of Company One [2016] FCA 703 at [9], Charlesworth J considered the language of the statutory definition. For reasons there given, the question whether a proceeding is commenced without reasonable ground is to be determined objectively 'and requires an assessment requires an assessment of whether the proceeding is "bound to fail" or "so obviously untenable that it cannot possibly succeed", "manifestly groundless" or "bad beyond argument" '.

40    Further, on the evidence filed by Mr Ogbonna, he has been a prodigious litigant in this and other Courts since 2013. A cursory examination of the list of previous proceedings shows that many involve claims of defamation and they have not met with success. Further, Mr Ogbonna has brought many unsuccessful appeals. Even in the list provided, Mr Ogbonna provides annotations which indicate that he does not accept the outcomes in those past proceedings.

41    That history provides important context for considering whether the proposed proceedings are vexatious. Together with the form of the proposed statement of claim (the deficiencies with which have been explained), it is obvious that the proposed proceedings are vexatious. With due respect to Mr Ogbonna, the nature of the claims that he seeks to raise cannot be readily discerned from the documents he has filed and the form in which they have been expressed is so lacking in coherence that proceedings commenced in that form would be an abuse of process.

42    For those reasons, even if the affidavit in support of the application otherwise substantially complied with the requirements of s 37AS, leave must be refused.

Associate:

Dated:    26 June 2026