Ogbonna v CTI Logistics Ltd

[2019] WADC 111

JURISDICTION     :   DISTRICT COURT OF WESTERN AUSTRALIA

IN CHAMBERS

LOCATION:   PERTH

CITATION:   OGBONNA -v- CTI LOGISTICS LTD [2019] WADC 111

CORAM:   DEPUTY REGISTRAR HEWITT

HEARD:   30 JULY 2019

DELIVERED          :   15 AUGUST 2019

FILE NO/S:   CIV 744 of 2018

BETWEEN:   CELESTINE OGBONNA

Plaintiff

AND

CTI LOGISTICS LTD

First Defendant

NEIL RASPA

Second Defendant

Catchwords:

Application for summary judgment by both plaintiff and defendant - Defamation claim - Whether issuing a judgment containing the defamatory words and the subsequent inclusion of that judgment in the data base amounted to republication and exposed the defendants to suit - Whether the Defamation Act 2005 offered a defence

Legislation:

Defamation Act 2005 (WA), s 27, s 28

Result:

Plaintiff's application dismissed
Defendants' application granted

Representation:

Counsel:

Plaintiff	:	In person
First Defendant	:	Mr J Sims
Second Defendant	:	Mr J Sims

Solicitors:

Plaintiff	:	Not applicable
First Defendant	:	Jackson McDonald
Second Defendant	:	Jackson McDonald

Case(s) referred to in decision(s):

DEPUTY REGISTRAR HEWITT:

1. On 28 February 2019 the plaintiff filed a writ seeking damages against the defendants to this action seeking payment of the sum of $745,000 and a public apology for the defamation of the plaintiff's character in the publication.  As the action evolved the facts became clearer and arose from proceedings in the Federal Circuit Court of Australia between himself and the defendants which were heard in 2015 with the full reference title being of Ogbonna v CTI Logistics Ltd & ORS (No. 2) [2015] FCCA 2318. CTI Logistics Ltd was a former employer of the plaintiff and Mr Raspa a person who was employed by the company who prepared and forwarded to another employee of the company an email which was critical of the plaintiff. Undoubtedly, the comments contained in the email were defamatory of the plaintiff, although there may have been an opportunity to plead qualified privilege or truth. The company dismissed the plaintiff and he brought an action for breach of the Racial Discrimination Act 1975 (Cth) (Act). The email to which I have referred to was put into evidence presumably to inform the court that the decision to dismiss the plaintiff was based on the assessment of his character, and was not anything to do with his racial background.

2. The Federal Court considered the case and concluded that the facts did not disclose a breach of the Act and accordingly dismissed the plaintiff's claim against the company and the co-defendant and ordered the plaintiff to pay the costs of those proceedings.  Subsequently, the decision was published by in the website maintained by that organisation and the judgment contained a reference to the email to which I have referred.  The plaintiff pursues the defendants in this action on the basis that the publication by amounts to a republication for which the defendants can be held liable.

3. As matters now stand each party has brought a summary judgment application, for the plaintiff for judgment and the defendant for dismissal.

4. In deciding this matter it is necessary for me to have regard to the provisions of the Defamation Act 2005 (WA), which supplements the defences which may be available to a defendant in a defamation action and in particular s 27 of that Act sets out the defence of absolute privilege which is in the following terms:

   27.     Defence of absolute privilege    

   (1)It is a defence to the publication of defamatory matter if the defendant proves that it was published on an occasion of absolute privilege.

   (2)Without limiting subsection (1), matter is published on an occasion of absolute privilege if –

   (a)the matter is published in the course of the proceedings of a parliamentary body, including (but not limited to) –

   (i)the publication of a document by order, or under the authority, of the body;

   (ii)the publication of the debates and proceedings of the body by or under the authority of the body or any law;

   (iii)the publication of matter while giving evidence before the body; and

   (iv)the publication of matter while presenting or submitting a document to the body;

   (b)the matter is published in the course of the proceedings of an Australian court or Australian tribunal, including (but not limited to) –

   (i)the publication of matter in any document filed or lodged with, or otherwise submitted to, the court or tribunal (including any originating process);

   (ii)the publication of matter while giving evidence before the court or tribunal; and

   (iii)the publication of matter in any judgment, order or other determination of the court or tribunal;

   (c)the matter is published on an occasion that, if published in another Australian jurisdiction, would be an occasion of absolute privilege in that jurisdiction under a provision of a law of the jurisdiction corresponding to this section; or

   (d)the matter is published by a person or body in any circumstances specified in Schedule 1.

5. As to the publication by s 28 is relevant which is in the following terms:

   28.Defence for publication of public documents

   (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.

   (2)For the purposes of subsection (1), if a report or other document under the law of a country would be a public document except for non-compliance with a provision of that law about –

   (a)the formal requirements for the content or layout of the report or document; or

   (b)the time within which the report or document is prepared, or presented, submitted, tabled or laid to or before a person or body,

   the report or document is a public document despite that non-compliance.

   (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.

   (4)In this section –

   public document means –

   (a)any report or paper published by a parliamentary body, or a record of votes, debates or other proceedings relating to a parliamentary body published by or under the authority of the body or any law;

   (b)any judgment, order or other determination of a court or arbitral tribunal of any country in civil proceedings and including –

   (i)any record of the court or tribunal relating to the judgment, order or determination or to its enforcement or satisfaction; and

   (ii)any report of the court or tribunal about its judgment, order or determination and the reasons for its judgment, order or determination;

   (c)any report or other document that under the law of any country –

   (i)is authorised to be published; or

   (ii)is required to be presented or submitted to, tabled in, or laid before, a parliamentary body;

   (d)any document issued by the government (including a local government) of a country, or by an officer, employee or agency of the government, for the information of the public;

   (e)any record or other document open to inspection by the public that is kept –

   (i)by an Australian jurisdiction;

   (ii)by a statutory authority of an Australian jurisdiction;

   (iii)by an Australian court; or

   (iv)under legislation of an Australian jurisdiction;

   (f)any other document issued, kept or published by a person, body or organisation of another Australian jurisdiction that is treated in that jurisdiction as a public document under a provision of a law of the jurisdiction corresponding to this section; or

   (g)any document of a kind specified in Schedule 2.

6. The plaintiff is therefore claiming that a judgment which was published in circumstances of absolute privilege and reproduced by in circumstances which clearly attract the protection of s 28(1), should be regarded by this court as a republication of the original defamatory material, thereby exposing the present defendant and its employee to a claim for damages for defamation.

7. In my view the proposition is not sustainable.  Were the position to be otherwise, no successful defamation action would ever be concluded, the publication of the decision being a republication of the original defamation giving rise to a further claim and so on and so on. 

8. It is my view that publication of a judgment which attracts absolute privilege and republication of that judgment, in circumstances where s 28(1) of the Defamation Act applies, are not capable of being regarded as a republication of the original defamation giving rise to a viable claim by the present plaintiff against the present defendants. The umbrella of protection conferred by s 27 and s 28 of the Defamation Act extends to protect the present defendants.

9. The law requires a summary judgment application brought by a defendant to clearly disclose that the action has no prospects of success.  I consider that this case satisfies that criterion and it is my view that the action should not proceed further and it should be dismissed with costs.

10. My orders therefore will be that the plaintiff's application for summary judgment be dismissed with costs and that of the defendants allowed with the plaintiff to pay the defendants' costs of the application and the action.

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

KT
Court Person

13 AUGUST 2019