Ogbonna v CTI Logistics Ltd

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 unsuccessfully sought leave to file interlocutory applications on three 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. The last two applications relate to the orders made on 28 March 2024 and 19 June 2024. The background to and circumstances in which those orders were made are set out in Ogbonna (No 4) and need not be repeated. In short, the effect of part of the orders made on 28 March 2024 was to modify the operation of rr 36.51 - 36.56 of the Federal Court Rules 2011 (Cth). The orders identified the documents that were to be included in the appeal book and made provision for the appeal book index to be settled, in the absence of agreement, by the Registrar and for the respondents to prepare and file the appeal book. Evidently, there was disagreement about the appeal book index. The Registrar made orders on 19 June 2024 settling the appeal book index containing the documents identified in the orders of 28 March 2024 and permitting the appellant to file a supplementary appeal book containing additional documents identified in that order. 3 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 paragraphs 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 (No 3). 4 On 27 August 2024 the appellant lodged another proposed interlocutory application and an affidavit. The orders sought in the proposed application again sought to vary or set aside paragraphs 7, 9, 10, 11 and 12 of the orders of 28 March 2024 and to set aside the appeal book index the Registrar settled on 19 June 2024. I refused the appellant leave to file that proposed interlocutory application and affidavit: Ogbonna (No 4). 5 The proposed application lodged on 27 August 2024 proposed a review of the orders of 19 June 2024 under r 3.04 and r 3.11 of the Rules. Insofar as the proposed application relied on r 3.04 I refused that application because there was no reasonable prospect of the appellant demonstrating that the Registrar had refused to do any act or thing that the Registrar was required or entitled to do. Insofar as the proposed application relied on r 3.11, I refused that application because it had not been made with 21 days of the Registrar exercising power, no application for an extension of that time had been made and there was nothing in the affidavit filed in support of the application that would warrant the grant of an extension of time: Ogbonna (No 4) at [10]-[14]. I also refused leave, as a whole, and the application for review of the Registrar's orders because the affidavit contained 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 and those unfounded assertions individually and collectively amount to an abuse of process, and material that is vexatious and scandalous: Ogbonna (No 4) at [15]. 6 On 12 September 2024 the appellant lodged yet another proposed interlocutory application and a supporting affidavit. The orders sought in the proposed application are identical to the orders sought in the proposed application lodged on 27 August 2024 except that the appellant requests an extension of time, in substance, for review of the Registrar's exercise of power under r 3.11. The affidavit lodged in support of the proposed application is also in the same terms as the affidavit lodged in support of the proposed application on 27 August 2024 except that it has four additional paragraphs. Three of those paragraphs set out rr 1.39, 3.11 and 3.04 of the Rules. The last paragraph is to the effect that an extension of time is sought to set aside the Registrar's orders 'because of fraudulent conduct'. Further, the appellant deposes that on 10 July 2024 he lodged the proposed application to which reference has been made earlier in these reasons by which, in effect, he sought to have the Registrar's orders set aside and that was lodged within the 21-day period r 3.11 requires. 7 To the extent that the proposed application seeks to have the orders of 28 March 2024 varied or set aside and seeks an order under r 3.04 of the Rules, it is the same application that was lodged on 27 August 2024 and leave must be refused for the same reasons. Likewise, the affidavit in support contains the same unfounded assertions that individually and collectively amount to an abuse of process and material that is vexatious and scandalous. Accordingly, that affidavit should not be accepted for filing. Further, the application for leave to make the proposed interlocutory application is itself an abuse of process and vexatious in that it is the same application that was made and refused on an earlier occasion. 8 Insofar as leave is requested to make an interlocutory application for an extension of time to apply under s 35A(5) of the Federal Court Act for review of the Registrar's orders of 19 June 2024 the application for leave is new. 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]. 9 Although the application for leave to make an interlocutory application lodged on 10 July 2024 did not, in terms, seek to invoke a review of the Registrar's exercise of power under s 35A(5) of the Federal Court Act, making due allowance that the appellant is self-represented, it is reasonably arguable that the appellant be granted an extension of time to apply for review of the Registrar's decision. 10 Leave will be granted to the applicant to make an interlocutory application to apply for an extension of time to apply for review of the Registrar's exercise of power on 19 June 2024. I will treat the proposed interlocutory application lodged on 12 September 2024 as that application without the need for a formal application to be filed. Further, having regard to s 37M of the Federal Court Act and the nature of the application, I am satisfied that it is appropriate to deal with the application for an extension of time without an oral hearing in accordance with power to do so conferred on the Court under s 20A of the Federal Court Act. 11 Rule 1.39 confers a discretionary power on the Court to extend a time fixed by the Rules. The principles applicable to the exercise of that power are well-established and need not be set out. The overarching purpose of granting an extension of time is to avoid injustice. Many factors may be taken into account in the exercise of the discretion. Typically, relevant factors include any explanation for the failure to comply with the time fixed by the Rules and the merits of the application for which an extension of time is necessary. Here, given that the appellant, in effect, sought to have the Registrar's orders set aside within the 21-day period, that, subject to the time limit, a party is entitled to a de novo review of a Registrar's exercise of delegated power, and the review of the Registrar's orders can be dealt with at the same time as the appeal, I am satisfied that it is in the interests of justice to grant the appellant as a self-represented party the requested extension of time. Having invoked the Court's power of review, I will treat the application as made without the need to file a formal application. 12 A Registrar may exercise a power of the Court prescribed by the Rules: s 35A(1)(h) of the Federal Court Act. 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 under r 36.11 of the Rules. Paragraphs 2 - 4 of the Registrar's orders on 19 June 2024 would fall within that power. I am also prepared to assume, without deciding, that paragraph 1 of those orders (settling the appeal book index) falls within the same power although that function may well involve the exercise of administrative rather than judicial power. 13 The process of settling an appeal book index and the preparation of an appeal book is to ensure that the material before the Court exercising appellate jurisdiction is limited to that which is relevant to the determination of the issues raised in the appeal. Therefore, provided that all material that the appellant contends is relevant is available at the time the appeal is heard, there can be a review of the Registrar's decision to include or exclude that material immediately before or during the hearing of the appeal. If and to the extent that the Court decides that material that has been excluded from the appeal book should have been included, that material can be added to the appeal book. The most efficient way of adding any material will be through a supplementary appeal book. 14 Accordingly, and consistently with s 37M of the Federal Court Act, orders will be made to the effect that review of the Registrar's orders be heard immediately before or at the same time as the appeal and for the appellant to provide the Court with an index of the documents he contends should have been included in the appeal book as well as copies of those documents (by way of a supplementary appeal book). The question of whether the additional documents should or should not be included in the materials before the Court in the appeal will be decided at the hearing of the appeal. I certify that the preceding fourteen (14) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Feutrill.