Ogbonna v CTI Logistics Limited

Ogbonna v CTI Logistics Limited - [2022] FCA 851 - FCA 2022 case summary — Zoe

[3]

Background 3 Proceeding WAD 226 of 2021 concerned a claim for defamation that Mr Ogbonna brought against the first and second respondents in the District Court of Western Australia (there was also in WAD 226 of 2021 an application for vexatious proceedings orders which is not presently relevant). The background has been summarised in several other judgments in this and other courts, including the Primary Judgment. I will not repeat that exercise in full here. The key points are: (1) The defamation claim concerned an allegedly defamatory email which the second respondent sent in 2012. (2) The specific publication which founded the claim was alleged to have taken place in 2018, however. A legal information services provider, the Australasian Legal Information Institute (AustLII), published online a judgment of the Federal Circuit Court of Australia which contained an extract from the email. Mr Ogbonna pleaded that the relevant publication occurred when the judgment was downloaded from AustLII's website in 2018. (3) The District Court granted summary judgment against Mr Ogbonna in the claim. In this proceeding, Mr Ogbonna disputes the basis on which that court dismissed the claim. I will come to that later. (4) Mr Ogbonna appealed to the Court of Appeal of Western Australia. The appeal was dismissed. Again, the basis for this is contentious. (5) The High Court of Australia dismissed an application for special leave to appeal from the Court of Appeal's decision on the basis that the application raised no reason to doubt the correctness of the decision. 4 The originating process and statement of claim in proceeding WAD 226 of 2021 were not in evidence in this proceeding. The Primary Judgment described the application as follows (at [8]), and Mr Ogbonna has put no evidence before me to indicate that the description was incorrect: … Mr Ogbonna acting on his own behalf now claims 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. In various respects those actions are alleged by him to have involved the judges and lawyers acting in those proceedings. Mr Ogbonna alleges that the conduct amounts to 'criminality, fraud or other serious misconduct'. He says that there has been abuse of public office. …

[4]

The Primary Judgment 5 After setting out the background in more detail than I have, and describing the claim as quoted above, the primary judge said that the whole of Mr Ogbonna's argument concerned the approach to s 28 of the Defamation Act 2005 (WA), which provides for a defence to defamation claims where defamatory matter is contained in a public document. His Honour said that Mr Ogbonna made it clear that if s 28 had been applied the way he said it should, he would not have commenced WAD 226 of 2021. According to his Honour, Mr Ogbonna submitted that his allegations of fraud and conspiracy were established by the publicly made decisions of the District Court, the Court of Appeal and the High Court mentioned above. His Honour said that Mr Ogbonna pointed to nothing beyond what had occurred in open court, through the making of submissions and the publication of reasons as to matters concerned with s 28. 6 The primary judge's reasons for granting summary judgment in those circumstances are encapsulated in the Primary Judgment at [16]: There is nothing out of the ordinary in anything that is the subject of the affidavits upon which Mr Ogbonna relies. His submissions rise no higher than a fervent hyperbolic expression of his disagreement with the legal reasoning by judges in three courts. He has had his opportunity to bring his claim. It has been dealt with in open court and has been taken all the way to the High Court without success. It is a substantial injustice that the respondents should now be burdened with having to deal with a complaint of the kind that is now advanced by Mr Ogbonna. It is fundamentally misconceived and is oppressive. 7 Also, the primary judge noted that the Court of Appeal's approach to s 28 of the Defamation Act did not explain the dismissal of the appeal, which was based on a conclusion that the second respondent was not responsible for AustLII's republication of the extract from the email. At PJ [18] his Honour concluded that these 'fundamental defects in the contentions advanced by Mr Ogbonna are a full and sufficient basis for Mr Ogbonna's summary judgment application to be dismissed and the respondents' summary dismissal application to be allowed'.

[5]

The proposed grounds of appeal 8 Mr Ogbonna has represented himself in this application. His proposed grounds of appeal were in fact set out as the grounds of his application for leave to appeal (although there was also a draft notice of appeal that contained some of the grounds in the application). 9 With the deletion of one ground (ground 5) which Mr Ogbonna withdrew in oral submissions, the proposed grounds of appeal are: 1. First, pursuant to rule 22.01 of the Federal Court Rules 2011 (Cth) and s 59(2)(p),(3) of the Federal Court of Australia Act 1976 (Cth), the undisputed facts and document on the 'notice to admit facts or documents' dated 2 February 2022, served on the Respondents on 3 February 2022, at 4.23 PM via email is taken to be an admission by the Respondents in accordance with rule 22.04 and rule 22.05 of the Federal Court Rules 2011 (Cth) given the facts in the affidavit of the Applicant sworn on 16 February 2022, established that Mr Neil Raspa was liable for the defamation of Mr Celestine Ogbonna in the District Court of Western Australia Matter CIV 744 of 2018. 2. Second, a claim of 'defence for publication of public documents' under s 28 (1) of the Defamation Act 2005 (WA) is subject to s 28 (3) of the Defamation Act 2005 (WA). Since Mr Mark Vanderlist was a direct recipient of the defamatory email sent by Mr Neil Raspa on 23 July 2012 at 10.06 AM and 11:00 AM respectively, it follows in accordance with the rule in 'Speight v Gosnay', that the republication was the natural and probable consequence of Mr Neil Raspa original publication based on documental evidence, which therefore warrants a declaratory order pursuant to s 21 of the Federal Court of Australia Act 1976 (Cth). 3. Third, since [the primary judge] has determined the Federal Court of Australia has jurisdiction to hear the Applicant's claim of fraud by unlaw [sic] means conspiracy against the Respondents that was filed on 11 October 2021, hence the documental evidence proves it isn't an unjustifiable oppression on the Respondents if issues that were not fully determined in previous proceedings were re-examined, because they cannot be precluded on the basis where fraud is established, such matters are revisited and 'perfected orders' set aside and furthermore this claim of fraud does not serve to bring the administration of justice into disrepute or constitutes a collateral challenge to the completion and finality of these previous proceedings but rather addresses the question of facts and law that were not determined in those proceedings due to the fraudulent conduct of the Respondents and co-conspirators which should have led the Respondents' application being dismissed for being meritless. 4. Fourth, the decision is facially invalid because it contains no finding of fact or conclusion of law that supports [the primary judge's] position, given the documental evidence establishes Mr Neil Raspa is responsible for the republication by Australasian Legal Information Institute (Austlii) of the defamatory statement on 24 February 2018. While the legislative provisions of s 28 (3) of the Defamation Act 2005 (WA) makes it clear that Mr Neil Raspa's claim of defence for publication of public documents was defeated given his defamatory statement was not published honestly for the information of the public or the advancement of education. … 6. Sixth, the learned Judge acted biased by perversely exercising jurisdiction in these proceedings and related ones by dispensing with the Respondents' obligations under the Federal Court Rules and rejecting the Applicant's application for leave to issue subpoena which was to ensure all relevant documents or people with knowledge of relevant facts to assist the court in the 'proper administration of justice between the parties were allowed but instead [the primary judge] assisted the Respondents to gain dishonest advantages as well as wilfully relied on the Respondents false and misleading submissions and affidavits in making his decisions, therefore contravened s 34(4) of the Crimes Act 1914 (Cth). 7. Seventh, a judgment rendered in violation of constitutional protections and human rights is invalid because it is affected by a failure to give the constitutionally required due process and the opportunity to be heard since equal protection of the law extend to judicial as well as political branches of government. So that a judgment may not be rendered in violation of those constitutional limitations and guarantees. 8. Eighth, it is a fundamental doctrine of law that a party to be affected by a personal judgment must be given the opportunity to be heard in a court of law upon every question involving his rights or interests before he is affected by any judicial decision on the question because a judgment of a court without hearing the party or giving him an opportunity to be heard is not a judicial determination of his rights. 9. Nineth [sic], a judgment which is void upon its face, and which requires only an inspection of the decision to demonstrate its wants of vitality is null and void and a miscarriage of justice which must be set aside upon appeal because if a court grants relief, which under the circumstances it hasn't any power or authority to grant, then the judgment is to that extent void and does not create any binding obligation and not entitled to the respect accorded a valid adjudication because an illegal order is forever void. 10 Mr Ogbonna relied on an affidavit he swore on 16 February 2022, which was read into evidence on this application. An affidavit dated 15 November 2021 in WAD 226 of 2021 was also admitted into evidence in this proceeding as an exhibit.

[6]

Consideration 11 It is convenient to quote the summary of well established principles governing applications for leave to appeal drawn from Decor Corporation Pty Ltd v Dart Industries Inc (1991) 33 FCR 397 at 398-399 which I gave in Ogbonna v CTI Logistics Limited [2022] FCA 227 (Previous Leave Decision) at [7]: The decision whether to grant leave is a discretionary one. The discretion is conferred in unqualified terms by s 24(1A) of the Federal Court of Australia Act 1976 (Cth) and is unfettered. The two major considerations that will generally be addressed in the exercise of the discretion are whether the decision sought to be appealed from is attended with sufficient doubt to warrant its being reconsidered by the appellate court, and whether substantial injustice would result if leave were refused, supposing the decision to be wrong. These two considerations are not to be isolated in separate compartments; they bear upon each other, so that the degree of doubt that is sufficient in one case may be different from that required in another. They provide an appropriate litmus test for the general run of cases, but they are not rigid rules that destroy a court's discretion in all cases but those falling within them. There was no dispute between the parties to the present application as to these principles. 12 The respondents submit that one reason that the application for leave to appeal should be dismissed is that even if the Primary Judgment was wrong, no substantial injustice has been caused to Mr Ogbonna because his defamation claim proceeded through the Western Australian courts all the way to the High Court, so he has already had access to substantial justice in this case. But that is not an answer to the question about substantial injustice, because the question is whether substantial injustice would result if leave were refused, supposing the primary decision to be wrong. Here, if the primary decision is wrong, then Mr Ogbonna should have been permitted to pursue his claims that the decisions of those previous courts were vitiated by conspiracy and fraud. 13 In this case, it can readily be accepted that if the outcome of the Primary Judgment were to wrongly prevent Mr Ogbonna from pursuing a case of that kind, there would be substantial injustice. The key consideration in this case, then, is whether the Primary Judgment is attended with sufficient doubt to warrant its being reconsidered by the Full Court. The relative strength of the 'substantial injustice' consideration means that the level of doubt need not be high in order to justify leave to appeal. 14 With that in mind, the focus of the rest of this judgment will be on whether Mr Ogbonna's proposed grounds, and such submissions and evidence as he presented that were relevant to those grounds, raise a sufficient level of doubt about the correctness of the Primary Judgment. It has been necessary to word the last sentence that way because a large proportion of Mr Ogbonna's evidence and submissions were vociferous denunciations of the alleged conduct of several lawyers and judicial officers, accompanied with descriptions of numerous complaints he has made and intends to make to various authorities and governmental bodies, such as the Australian Federal Police and members of the Commonwealth Parliament. The denunciations had no basis in the evidence and the making of such complaints to other bodies is irrelevant to the determination of this proceeding, so those matters need not be mentioned further.

[8]

Ground 2 - republication 18 On its face, this proposed ground is an attempt to relitigate the issue on which Mr Ogbonna lost his case in the District Court and the Court of Appeal, namely whether the second respondent was responsible for AustLII's republication of an extract of the allegedly defamatory email. That is confirmed by Mr Ogbonna's written submissions, much of which are devoted to arguing the substantive merits of the question of whether the second respondent was responsible for the republication. 19 The written submissions assert that the District Court did not answer that question. The assertion is plainly wrong. A transcript of the ex tempore judgment delivered in the District Court is in evidence on the present application. The District Court judge conducted a survey of the law concerning liability for republication, including the principles set out in Speight v Gosnay (1891) 60 LJQB 231, and a review of the evidence as to how the extract of the email came to be in the Federal Circuit Court judgment and so on AustLII. His Honour concluded that the republication was not reasonably foreseeable and that it was far-fetched and fanciful to suggest that the author of the email would have reasonably expected that it would end up appearing in a judgment that was published on a website. So his Honour clearly found against Mr Ogbonna on the contention he seeks to reassert in proposed ground 2. 20 The Court of Appeal agreed (in Ogbonna v CTI Logistics Ltd [2021] WASCA 25 at [50]) that 'it can be confidently concluded that the appellant has no reasonable prospect of establishing the respondents' liability for the publication by AustLII'. The High Court refused special leave to appeal. 21 As a result, it is clear that the issue raised in ground 2 is the subject of, at least, an issue estoppel which prevents Mr Ogbonna from seeking to raise it again. The issue was an ultimate issue of fact and law which was necessarily resolved as a step in reaching the determination made in the District Court's judgment that the first and second respondents were not liable for the alleged defamation: see Tomlinson v Ramsey Food Processing Pty Limited [2015] HCA 28; (2015) 256 CLR 507 at [22]. It was the actual ground on which the existence of the right was negatived: see Blair v Curran (1939) 62 CLR 464 at 532. That judicial determination directly involving the issue sought to be raised in proposed ground 2 disposed once for all of the issue, so that it cannot now be raised between Mr Ogbonna and the first and second respondents or their privies: Blair at 531; Tomlinson at [22]. And while there are three other respondents who were not parties in the District Court and the Court of Appeal, it is plainly an abuse of process as against them to seek to reassert this ground. Proposed ground 2 is bound to fail.

[9]

Ground 3 - fraud 22 It appears that by this ground, Mr Ogbonna seeks to address the problems of issue estoppel and abuse of process by alleging that the orders of the District Court, Court of Appeal and High Court should be set aside by reason of fraud. In the ground he refers to the 'fraudulent conduct of the Respondents', without describing that conduct. 23 The reference in the ground to the primary judge's determination about this Court's jurisdiction is a reference to part of the Primary Judgment in which his Honour considered a submission by the respondents that Mr Ogbonna had failed to identify a jurisdiction that was invoked by his application: PJ at [20]-[21] . His Honour was satisfied that the Court had jurisdiction to entertain the substantive application about defamation. The use Mr Ogbonna proposes to make of this now appears from a passage in his affidavit of 16 February 2022. The affidavit said (paragraph 13): During the hearing on 3 February 2022, the ackwonledgement [sic] by [the primary judge] that the Federal Court of Australia had jurisdiction to hear the my originating application and statement of claim (claim of fraud by unlaw means conspiracy against the Respondents filed on 11 October 2021 meant that the Respondents' application for summary judgement should have been dismissed, given the basis of their application had been defeated. See annexures 'CICO-23 and CICO-24'. 24 The contention appears to be that because the respondents' summary judgment application was based on an alleged lack of jurisdiction, the primary judge's finding that the Court had jurisdiction meant that the respondents' application should be dismissed. But the simple answer to this is that the respondents' application was based on several other grounds, including that Mr Ogbonna's claim raised issues that had been determined in the District Court and Court of Appeal proceedings. As discussed above and below, the primary judge's conclusions about that aspect of the claim were undoubtedly correct, so Mr Ogbonna could not succeed on the point about jurisdiction alone. 25 As for the broader contentions about fraud made in the proposed ground, while Mr Ogbonna's affidavit of 16 February 2022 contains assertions of fraud, it lacks any evidence capable of substantiating those assertions. For example, he asserts that the District Court decision was fraudulent, but his only evidence for that is the transcript of the decision itself. No fraud is apparent on the face of that transcript and Mr Ogbonna neither asserts nor annexes any facts that are capable of establishing that the decision was somehow fraudulent. Mr Ogbonna's strident submissions (in the affidavit) as to why the decision was fraudulent are based on his disagreement with the decision, and on a reading of it that is plainly wrong. That reading centres on an assertion that the District Court judge could not and did not deal with the issue of republication. But as I have indicated, his Honour dealt with it in some detail, and expressly found against Mr Ogbonna on the issue. 26 Similarly, Mr Ogbonna's claim that the Court of Appeal decision was fraudulent is developed in his affidavit of 16 February 2022. It is clear from that affidavit that the claim is based on a misreading of that decision, coupled with numerous assertions about the conduct of that court which have no basis in the evidence. 27 Mr Ogbonna also relies on the affidavit he swore in WAD 226 of 2021 which has been marked as an exhibit in this proceeding. That affidavit, he submits, 'proves beyond reasonable doubt, the Applicant's claim of fraud by unlawful means conspiracy' by the respondents, and also establishes 'that the mentioned judicial officers abused public office' (see paragraph 35 of affidavit of 16 February 2022). The affidavit is replete with bald and unsubstantiated assertions of fraud. The only points at which it particularises how various judicial officers are said to have departed from the correct position concern their approach, in their public reasons for decision, to s 28 of the Defamation Act. That is addressed below in relation to ground 4. 28 Mr Ogbonna complains that the affidavit of 15 November 2021 is not mentioned in the Primary Judgment, but the primary judge had clearly considered it and other affidavits filed (see PJ [13] and [16]) and was correct to dismiss it (at PJ [13]) as pointing to 'nothing beyond what has occurred in open court, through the making of submissions and through their consideration in the publication of reasons for decision as to matters concerned with s 28 of the Defamation Act'. 29 Proposed ground 3 is bound to fail.

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Ground 4 - s 28 of the Defamation Act 30 To the extent that this proposed ground returns to the question of the second respondent's responsibility for AustLII's republication, it has been dealt with above under proposed ground 2. But ground 4 also seems to be an attempt to argue that the defence of publication of public documents under s 28 of the Defamation Act was not available to the second respondent because the allegedly defamatory matter was not published honestly for the information of the public or the advancement of education. Once again, that is confirmed by Mr Ogbonna's written submissions, which seek to reargue the merits of that question. 31 Contrary to what appears to be Mr Ogbonna's view, the District Court did deal with that issue as well. To understand how the issue arose, it is necessary to set out the relevant provisions of s 28: (1) It is a defence to the publication of defamatory matter if the defendant proves that the matter was contained in - (a) a public document or a fair copy of a public document; or (b) a fair summary of, or a fair extract from, a public document; … (3) A defence established under subsection (1) is defeated if, and only if, the plaintiff proves that the defamatory matter was not published honestly for the information of the public or the advancement of education. 32 There could be no issue that the Federal Circuit Court's decision was a public document. The availability of the defence thus depended on s 28(3). The District Court held, in effect, that whether or not the second respondent acted honestly when he originally sent the email, the occasion of publication to which s 28(3) refers is the publication of the public document, in this case by AustLII. Since there was no question that AustLII was acting honestly for the information of the public or the advancement of education, the District Court reached the conclusion that the defence in s 28 did apply. 33 In the course of dismissing the appeal from that decision, the Court of Appeal declined to express a firm view on the proper construction of s 28, because the conclusion that the second respondent was not responsible in any event for the republication by AustLII was a complete answer to Mr Ogbonna's claim. Mr Ogbonna expresses his objections to the Court of Appeal's approach to s 28 in the strongest possible terms. But by itself, a choice made by a court, in a public and reasoned fashion, not to deal with a particular issue because the court finds it unnecessary to do so in order to decide the case, is not capable of constituting fraud. If that choice was incorrect, the remedy was to seek special leave to appeal to the High Court. The dismissal of the application for special leave, combined with the issue estoppel that arise from the Court of Appeal's decision, provide a complete answer to this ground.

[11]

Ground 6 - dispensation with Federal Court Rules and refusal of leave to issue subpoena 34 This proposed ground complains, first, about the primary judge's decision to dispense with compliance with the Federal Court Rules, specifically it appears about the decision to hear and determine the summary judgment application despite the fact that the respondents did not comply with the requirement in r 26.01(2)(a) of the Federal Court Rules that an application for summary judgment must be accompanied by an affidavit stating the grounds of the application. The first affidavit filed in support of the respondents' summary judgment application did not comply with that requirement. 35 But the respondents subsequently filed an affidavit that did comply with the requirement. The summary judgment application was filed on 10 November 2021. The affidavit that rectified the position was filed six days later on 15 November 2021. That was well in advance of the hearing on 3 February 2022. So Mr Ogbonna had ample opportunity to consider the grounds and he responded to them in an affidavit of 18 November 2021. The primary judge's decision to dispense with strict compliance with s 26.01(2)(a) was a discretionary one, and there is no reason to doubt its correctness. The pejorative description of the decision in proposed ground 6 does not provide any such reason, and the strident allegations of dishonesty and wilfulness have no basis. Nor can a decision of that nature evidence bias without more: see Previous Leave Decision at [23]. 36 As for the second complaint, about a decision not to give leave to issue a subpoena, the request for the issue of a subpoena is not in evidence so I do not know the addressee or subject matter of the subpoena (see Previous Leave Decision at [19]). In any event, Mr Ogbonna articulated no basis for thinking that the decision was erroneous, beyond a bald assertion in his affidavit that the subpoena was not oppressive or an abuse of process or directed at privileged material. 37 Ground 6 has no merit.

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