Ogbonna v CTI Logistics Ltd

FEUTRILL J: 1 The proceedings concern an appeal from a sequestration order made by a judge of the Federal Circuit and Family Court of Australia (Division 2) against the estate of the appellant on 20 September 2022. 2 On 23 May 2022 a judge of this Court made an order pursuant to s 37AO(2) of the Federal Court of Australia Act 1976 (Cth) (vexatious proceedings order). As a consequence of the vexatious proceedings order, the appellant required leave to commence an appeal from the sequestration order. On 2 November 2023 I made an order granting the appellant leave to file a notice of appeal confined to one ground of appeal under s 37AR(2). 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. 3 In the meantime, the appeal was listed for hearing on 28 March 2024. On 7 December 2023 I made certain orders modifying the operation of r 36.52 of the Federal Court Rules 2011 (Cth), but otherwise Div 36.5 (preparation of appeals) applied to the appeal. However, when the appeal came on for hearing on 28 March 2024, none of the steps in Div 36.5 had been taken. In particular, no appeal books or submissions had been filed. On 28 March 2024 I made orders that included vacating the appeal, varying the orders of 7 December 2023 and Div 36.5 in its application to this appeal as follows: … 4. The appeal listed for hearing on 28 March 2024 be vacated and the appeal be re-listed on a date to be fixed. … 7. Rules 36.51 - 36.56 of the Federal Court Rules (Cth) do not apply to this appeal. 8. The appeal book be constituted by: (a) the application relied upon in the proceeding below (as amended, if applicable), (b) the affidavits and other relevant evidence and documents filed in the proceeding below, (c) any part of the transcript of the proceeding below that is relevant and necessary for the hearing and determination of the appeal, (d) the reasons for judgment and orders made in the proceeding below, (e) the notice of appeal or, if applicable, the amended notice of appeal, any notice of contention, notice of cross appeal or any related application including any application for extension of time or leave to appeal); (f) orders of the Court granting leave to appeal. 9. By 9 May 2024, the respondents serve on the appellant a proposed index of the documents for inclusion in the appeal book. 10. If there be any dispute about the documents for inclusion in the appeal book, the appellant must apply to a Registrar of the Court for that index to be settled within 10 business days after the respondents have served the proposed index on him. 11. The appeal book be prepared by the lawyer for the respondents in accordance with the index served under para 9 or as settled by a Registrar under para 10 of these orders. 12. The respondents file and serve the appeal book on or before 30 business days prior to the hearing date. … 4 On 19 June 2024 a Registrar made the following orders settling the appeal book index as contemplated by the orders of 28 March 2024: 1. Further to paragraph 10 of the orders of 28 March 2024, the appeal book index has been settled by [a Registrar] in the form circulated by the respondents on 17 June 2024. 2. The appellant has leave to prepare a supplementary appeal book in the form settled by [a Registrar] and circulated to the parties by the Registrar's legal case manager on 19 June 2024, comprising the appellant's affidavit material filed in this appeal only: a. Affidavit of Celestine Ogbonna dated 10 October 2022, filed 14 October 2022; b. Affidavit of Celestine Ogbonna Supporting Application for Leave to Institute Proceeding pursuant to s37AR(2) of the Federal Court of Australia Act 1976 (Cth) dated 10 October 2022, filed 14 October 2022; c. Affidavit of Service dated 8 February 2023, filed 16 February 2023; d. Affidavit of Celestine Ogbonna dated 31 May 2023, filed 31 May 2023; e. Affidavit of Celestine Ogbonna dated 9 September 2023, filed 11 September 2023; f. Affidavit of Celestine Ogbonna dated 5 October 2023, filed 9 October 2023; g. Affidavit of Celestine Ogbonna dated 22 March 2024, filed 26 March 2024. 3. The appellant file and serve any supplementary appeal book prepared in accordance with order 2 on or before 30 business days prior to hearing date. 4. The documents within any supplementary appeal book must: a. be in portable document format (PDF); b. be capable of being searchable for specified text; c. have an index and be paginated; d. have each entry in the index bookmarked; and e. be set so that when opened: i. it shall display at 100% zoom; and ii. the bookmarks menu shall be displayed. 5 On 10 July 2024 the appellant lodged a proposed interlocutory application, statement of charge and affidavit. The proposed application was for orders to set aside or vary paras 7, 9, 10, 11 and 12 of the orders of the Court of 28 March 2024, to set aside an appeal book index settled by a Registrar on 19 June 2024 and for orders, in effect, under Pt 42 of the Rules 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. I refused the appellant leave to file that proposed interlocutory application: Ogbonna v CTI Logistics Ltd (No 3) [2024] FCA 872. 6 On 27 August 2024 the appellant lodged another proposed interlocutory application and an affidavit. The orders sought in the proposed application are as follows: 1. Leave to file an interlocutory application to set aside or vary Court orders dated 28 March 2023. 2. Paragraphs 7, 9, and 10 of the Court orders dated 28 March 2024 be varied to allow the Appellant prepare the appeal book and appeal book index in compliance with rules 2.25(3) and 36.51(1) of the Federal Court Rules 2011. 3. Subsequently, paragraphs 11 and 12 of the Court orders dated 28 March 2024 be set aside[.] 4. The appeal book index settled by Registrar Goucke and the ensuing orders dated 19 June 2024 be set aside under rules 3.04 and 3.11 of the Federal Court Rules 2011 because of fraudulent conduct. 5. The appeal hearing listed for 26 September 2024 at 10.15 AM AWST be vacated 6. Following the above orders, the parties are to provide unavailable dates for the appeal to be relisted for hearing. 7 Paragraphs 2 and 3 of the proposed application seek to invoke the power of the Court to vary an interlocutory order under r 39.05(c) of the Rules. Paragraph 4 of the proposed application seeks a review of the exercise of the Registrar's power under s 35A(5) of the Federal Court Act. 8 This is the third proposed interlocutory application the appellant has lodged and for which he has sought 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 v CTI Logistics Ltd (No 2) [2024] FCA 383 at [3]; Ogbonna (No 3) at [12]. 9 Regarding paras 2 and 3 of the proposed application, r 39.05(c) confers a broad power on the Court to vary or set aside an interlocutory order. The power is constrained only by the demands of the interests of justice. As interlocutory orders are 'virtually limitless in their variety, it is dangerous to seek to generalise about them': Luo v Zhai (No 6) [2016] FCA 805 at [15] (Perram J). However, considerations of finality and the overarching purpose of the civil practice and procedure provisions are important factors and, at least in the case of substantive orders after a contested hearing, the power is not usually exercised unless there has been a material change in circumstances or the discovery of new material that could not reasonably have been put before the Court on the hearing of the original application: see Brimaud v Honeysett Instant Print Pty Ltd (1988) 217 ALR 44 at 46 (McLelland J). There is nothing in the application or the affidavit lodged with the application that raises a reasonably arguable ground for varying or setting aside paras 7 - 12 of the orders made on 28 March 2024 on the basis that it would be in the interests of justice to do so. 10 A Registrar may exercise a power of the Court prescribed by the Rules. Rule 3.01 prescribes that a Registrar may exercise a power of the Court under a provision of the Rules mentioned in column 2 of an item in Sch 2 of the Rules. The powers in Sch 2 include the power to give a direction for the conduct of an appeal in r 36.11 of the Rules. Paragraphs 2 - 4 of the Registrars orders would fall within that power. I am also prepared to assume, without deciding, that settling the appeal book index falls within the same power although that function may well involve the exercise of administrative rather than judicial power. 11 Section 35A(5) of the Federal Court Act provides: 35A Powers of Registrars … (5) A party to proceedings in which a Registrar has exercised any of the powers of the Court under subsection (1) may, within the time prescribed by the Rules of Court, or within any further time allowed in accordance with the Rules of Court, apply to the Court to review that exercise of power. … 12 Rule 3.11 of the Rules provides: 3.11 Application for review of a Registrar's exercise of power (1) A party may apply to the Court under section 35A(5) of the Act for review of the exercise of a power of the Court by a Registrar. (2) The application must be made within 21 days after the day on which the power was exercised. 13 The proposed application was not lodged within 21 days after the Registrar made her orders on 19 June 2024. The proposed application does not seek an extension of that time and there is nothing in the affidavit lodged with the application that would warrant the grant of an extension of the time within which the appellant had to apply for a review of the exercise of the power. Therefore, there are no reasonable grounds for the application insofar as it seeks a review of the exercise of the Registrar's power. 14 Paragraph 4 of the proposed application also seeks to invoke r 3.04 of the Rules which provides that a person may apply to the Court for an order that a Registrar do any act or thing that Registrar is required or entitled to do but has refused to do. There is no reasonably arguable ground for considering that the Registrar has refused to do any act or thing she is required or entitled to do. On the contrary, the appellant wishes, out of time, to have the Court review the exercise of the Registrar's delegated power. 15 The affidavit lodged with the proposed application is an affidavit of Celestine Ifeanyi Ceefyne Ogbonna sworn 27 August 2024. Like the affidavit lodged with the proposed application of 10 July 2024, the affidavit is a mixture of assertion and submission, and contains little by way of relevant statements of fact. It also largely repeats assertions made in the earlier affidavit including baseless allegations of serious misconduct on the part of the Registrar and Mr Reid concerning the manner in which the appeal book index was settled. These unfounded assertions individually and collectively amount to an abuse of process, and material that is vexatious and scandalous. That is another reason to refuse to accept the application and affidavit for filing and to refuse leave for the application to be made. 16 For these reasons, leave is refused to file the proposed interlocutory application and neither the application nor affidavit should be accepted for filing. I certify that the preceding sixteen (16) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Feutrill.

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