OGBONNA -v- CTI LOGISTICS LTD [2021] WASCA 22 | Case summary

Court of Appeal (WA)|2021-02-08|Before: Murphy JA

The appellant in this matter (Mr Ogbonna) appeals against the award of summary judgment in favour of the respondents in a defamation action which he had commenced in the District Court of Western Australia. The appeal was listed for hearing on 2 February 2021.
At the commencement of the hearing of the appeal Mr Ogbonna made an application that I disqualify myself from hearing the appeal on the basis of actual basis.[1] He submitted, in effect, that the existence of actual bias, in the form of judicial corruption and dishonesty on my part, is to be inferred from my participation in other matters in which he is or has been a party.[2] I refused the application and said I would provide written reasons. These are my reasons.

I have been involved in the following matters in the Court of Appeal in which Mr Ogbonna currently is or has been a party:
1. The hearing of appeal CACV 123 of 2018, in which Mr Ogbonna's appeal was dismissed.
2. Interlocutory proceedings in CACV 149 of 2019 (the current appeal).
3. Interlocutory directions in CACV 123 of 2020.

Mr Ogbonna's appeal in CACV 123 of 2018 concerned an appeal against the decision of Le Miere J in Ogbonna v Qantas Airways Ltd[3] granting defendant's summary judgment in proceedings commenced by Mr Ogbonna.
Mr Ogbonna's claim arose out of his employment at Qantas Ground Services. A consultant psychiatrist was engaged to assess Mr Ogbonna's fitness for work and to give her opinion as to Mr Ogbonna's ability to return to his normal duties as an airline services operator. The psychiatrist provided reports to Qantas Ground Services. Mr Ogbonna's case was, in substance, that whilst he had consented to the provision of a first report by the psychiatrist, he had not consented to the provision of any subsequent reports. Mr Ogbonna sued the psychiatrist, alleging that she had intentionally or recklessly intruded on his privacy and was liable for breach of privacy pursuant to the Privacy Act 1988 (Cth) and other related statutes by providing two further reports. In the primary decision, the judge found that the psychiatrist had made out a good defence on the merits and that summary judgment should be granted.
Mr Ogbonna appealed. The appeal was heard by Quinlan CJ, Mitchell JA and me on 6 September 2019. The court found that the primary judge had not erred in fact or at law as alleged in the granting of summary judgment. The court published joint reasons on 20 September 2019 dismissing Mr Ogbonna's appeal.[4]
Mr Ogbonna applied for special leave to appeal the decision of the Court of Appeal to the High Court. The application for special leave was refused on 12 February 2020.
The factual issues in that case have no connection with any of the issues in the present appeal.

In the current appeal, Mr Ogbonna, in an amended application filed 21 April 2020, supported by an affidavit sworn by him on 16 April 2020 in support of his original application, sought orders to the effect that the respondents' answer not be accepted for filing. Mr Ogbonna contended in effect that the respondents' answer (1) was filed out of time, (2) failed to comply with the Supreme Court Rules 1971 (WA) and the Supreme Court (Court of Appeal) Rules 2005 (WA) relating to formatting and other requirements, (3) contained submissions which were 'written and arranged haphazardly and presented in that way with the intent to confuse and evade facts', and (4) contained a reply to the appellant's draft chronology that was 'dishonestly written'.
Mr Ogbonna sought, in effect, an order that the respondents' be required to file and serve a new respondents' answer making amendments to the reply to the appellant's draft chronology and submissions addressing the issues he had raised. Further, Mr Ogbonna also sought an order that, before any new respondents' answer be accepted for filing, the respondents be required to file an affidavit sworn by the respondents' solicitor verifying that the submissions and reply to the appellant's draft chronology contained in the respondents' answer were true and correct.
The respondents' answer had been due for filing on 18 March 2020. A respondents' answer was received by the court at 4.43 pm on 18 March 2020.
Mitchell JA and I heard Mr Ogbonna's application (as amended) on 22 May 2020. We dismissed the application and extended the time for the respondents to file and serve the respondents' answer to 19 March 2020.
The court provided ex-tempore reasons at the hearing. Those reasons included:[5]

On 12 March 2020 the respondents filed an application in an appeal and a supporting affidavit sworn by Mr Wilson on 11 March 2020. The application sought orders that the date for filing of the respondents' answer be extended to Wednesday, 18 March 2020. On 12 March 2020 Registrar Eaton ordered that the time for the respondents to file and serve the respondents' answer be extended to Wednesday, 18 March 2020. A respondents' answer was sent by email to the Court of Appeal office after 4 pm on 18 March 2020. On 19 March 2020 the respondents' answer was accepted for filing.

[Mr Ogbonna] submits that in accordance with practice direction 1.2.2 at paragraph 77 the respondents' answer was taken to have been filed on 19 March 2020 as it was received after 4 pm on 18 March 2020. Assuming that to be the case the fact that the respondents' answer was filed on [sic] day late does not justify striking out the respondents' answer. In the circumstances it is appropriate to deal with any irregularity by further extending the time for filing the respondents' answer to 19 March 2020. We are satisfied that otherwise the respondents' answer sufficiently complies with the rules. We see no proper basis on which an order should be made requiring the filing of a verifying affidavit as sought by [Mr Ogbonna].

On 10 December 2020, Mr Ogbonna filed an appeal notice against a decision of Bowden DCJ on 27 November 2020 dismissing Mr Ogbonna's appeal against a decision of Deputy Registrar Hewitt which dismissed an action in defamation brought by Mr Ogbonna in the District Court of Western Australia. Bowden DCJ made orders, relevantly, striking out Mr Ogbonna's indorsement on the writ of summons in that action as disclosing no reasonable cause of action, dismissing the action and ordering Mr Ogbonna to pay the defendants' costs.
An application for leave to appeal the orders of Bowden DCJ was referred to me in the course of the court's ordinary practices and procedures. On 12 January 2021, I made orders referring the application for leave to appeal to the hearing of the appeal. Such orders are not uncommonly made given that the question of leave is often best assessed in the context of a full appreciation of the merits of the appeal derived from the hearing of the appeal.[6] This appeal has not yet been listed for hearing.

Although Mr Ogbonna (an in person litigant) relied on actual bias rather than apprehended bias, these reasons will also address his application on the basis that he may have intended also to allege apprehended bias.
In Ebner v Official Trustee in Bankruptcy,[7] Gleeson CJ, McHugh, Gummow and Hayne JJ said:[8]

Judges have a duty to exercise their judicial functions when their jurisdiction is regularly invoked and they are assigned to cases in accordance with the practice which prevails in the court to which they belong. They do not select the cases they will hear, and they are not at liberty to decline to hear cases without good cause. Judges do not choose their cases; and litigants do not choose their judges. If one party to a case objects to a particular judge sitting, or continuing to sit, then that objection should not prevail unless it is based upon a substantial ground for contending that the judge is disqualified from hearing and deciding the case.

A finding of actual bias is a grave matter. An allegation of actual bias must be distinctly made and clearly proved. Such a finding should not be made lightly, and cogent evidence is required.[9] The inquiry requires an assessment of the state of mind of the judge in question. However it is not confined to a consideration of the intentional state of mind of the judge. Actual bias may be subconscious.[10] Generally speaking, that inquiry has to be undertaken based on what the judge has said and done.[11]
The test for actual bias is to be distinguished from the test for apprehended bias.[12] The test to be applied in determining whether a judge is disqualified by reason of the appearance of bias is whether a fair‑minded lay observer might reasonably apprehend that the judge might not bring an impartial and unprejudiced mind to the resolution of the question the judge is required to decide.[13] In this context there must be an articulation of the logical connection between (1) the matter identified as the basis upon which it is said that the judge might decide the case other than on its merits, and (2) the feared deviation from the course of deciding the case on its merits.[14]
The test for apprehended bias is objective. There are two aspects to that: first, the observer is taken to be reasonable, and, secondly, the person being observed is a professional judge whose training, tradition and oath or affirmation require the judge to discard the irrelevant, the immaterial and the prejudicial. Accordingly, whilst the hypothetical observer is not to be assumed to have a detailed knowledge of the law, or of the character or ability of a particular judge, the reasonableness of any suggested apprehension of bias is to be considered in the context of ordinary judicial practice.[15]
In Re Polites; Ex parte Hoyts Corporation Pty Ltd,[16] Brennan, Gaudron and McHugh JJ said in relation to the test for apprehended bias:

In applying this test, it is necessary to bear in mind the caution expressed by Mason J in Re JRL; Ex parte CJL:

It seems that the acceptance by this Court of the test of reasonable apprehension of bias in such cases as Watson and Livesey has led to an increase in the frequency of applications by litigants that judicial officers should disqualify themselves from sitting in particular cases on account of their participation in other proceedings involving one of the litigants or on account of conduct during the litigation. 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.

An inference of corruption and dishonesty, contended for by Mr Ogbonna, is not fairly open on the matters outlined in [4] to [15] above. Further, whilst recognising that actual bias may be subconscious, I will also record that I have approached the discharge of my judicial duties in relation to matters concerning Mr Ogbonna honestly and in a genuine attempt to apply the law as I apprehended it. No decision has been the product of any personal bias against Mr Ogbonna.
The matters referred to in [4] to [15] above also indicate that there is no prospect that a fair-minded lay observer might reasonably apprehend that I might not bring an impartial and unprejudiced mind to the resolution of the appeal in this matter. Neither the subject matter nor the nature of the decisions point to apprehended bias having regard to the relevant test.
I am also mindful that Mr Ogbonna has made serious accusations against me in this application which I have concluded to be unfounded. That in itself does not provide a platform for a contention of apprehended bias. In the context of ordinary judicial practice, judges by their oath and training are required to discard the irrelevant, the immaterial and the prejudicial. That includes baseless allegations of bias. The making of Mr Ogbonna's application for recusal, and its dismissal, are not matters in respect of which a fair-minded lay observer might reasonably apprehend that I might not bring an impartial and unprejudiced mind to the resolution of the issues in this appeal.

I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.

[3] Ogbonna v Qantas Airways Ltd [2018] WASC 378.

[4] Ogbonna v Qantas Airways Limited [2019] WASCA 146.

[6] Having said that, it should be noted that there is no hard and fast rule and the manner for dealing with such applications will depend upon all the particular circumstances of the matter.

[7] Ebner v Official Trustee in Bankruptcy [2000] HCA 63; (2000) 205 CLR 337.

[9] WKS v The State of Western Australia [No 4] [2020] WASCA 178 [341].

[11] Michael Wilson & Partners Ltd v Nicholls [2011] HCA 48; (2011) 244 CLR 427 [33].

[15] Johnson v Johnson [2000] HCA 48; (2000) 201 CLR 488 [12] - [13]

[16] Re Polites; Ex parte Hoyts Corporation Pty Ltd [1991] HCA 25; (1991) 173 CLR 78, 86; see also Helljay Investments Pty Ltd v Deputy Commissioner of Taxation [1999] HCA 56; (1999) 166 ALR 302 [11]; R v Masters (1992) 26 NSWLR 450, 471.

Supreme Court Rules 1971(WA)

Court (Court of Appeal) Rules 2005

OGBONNA -v- CTI LOGISTICS LTD [2021] WASCA 22 (8 February 2021)

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