Ogbonna v Programmed Integrated Workforce Ltd - [2020] WADC 75

JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CHAMBERS

CITATION:   OGBONNA -v- PROGRAMMED INTEGRATED WORKFORCE LTD [2020] WADC 75
CORAM:   DEPUTY REGISTRAR HEWITT
HEARD:   27 MAY 2020
DELIVERED          :   11 JUNE 2020
FILE NO/S:   CIV 4215 of 2018
BETWEEN:   CELESTINE OGBONNA
Plaintiff
AND
PROGRAMMED INTEGRATED WORKFORCE LTD
First Defendant
PROGRAMMED FACILITY MANAGEMENT PTY LTD
Second Defendant

Catchwords:

Practice and procedure - Application to strike out writ - Defective indorsement - Consequences on limitation defence - Limitation Act2005

Legislation:

Limitation Act 2005 (WA)

Result:

Action dismissed together with all outstanding chambers summonses and the plaintiff's appeal hearing vacated

Representation:

Counsel:

Plaintiff	:	No appearance
First Defendant	:	Mr M C Goldblatt
Second Defendant	:	Mr M C Goldblatt

Solicitors:

Plaintiff	:	Not applicable
First Defendant	:	Herbert Smith Freehills
Second Defendant	:	Herbert Smith Freehills

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

ABB Service Pty Ltd (formerly known as ABB Engineering Construction Pty Ltd) v Hetherington [2001] WASCA 235

DEPUTY REGISTRAR HEWITT:

The plaintiff in this action filed a writ of summons on 6 November 2018. The writ was indorsed with the following indorsement of claim:
The plaintiff's claim is for intimidation and defamation of character, and the plaintiff claims from the first and second defendant damages in the sum of $450,000.
The writ was not served for almost 12 months but when served the defendant's filed a memorandum of appearance on 15 November 2019. On 17 December 2019 they filed an application seeking to strike out the indorsement of the writ of summons and the further order that the plaintiff's action be dismissed.
A number of other orders were sought but they are not relevant to my determination of this matter.
The defendants' arguments are straightforward. The plaintiff filed a writ one day prior to the expiration of the one year limitation period for commencement of a defamation action and the indorsement on it is alleged to be defective. In the Rules of the Supreme Court 1971 (WA) (RSC) O 6 r 1 and r 2 set out the requirements for an indorsement and are in the following terms:
Order 6 - Indorsement of claim: other indorsements
1.Nature of claim etc. to be indorsed on writ
(1)Before a writ is issued it must be indorsed with a concise statement of the nature of the claim made, and of the relief or remedy required in the action.
(2)In case of non-compliance with subrule (1) the defendant may apply before appearance to set aside or amend the writ or for particulars.
2.Action for defamation by publication
In actions for defamation by publication the indorsement must state sufficient particulars to enable the publications in respect of which the action is brought to be identified.
Clearly the indorsement on the writ completely fails to satisfy the requirements of O 6 r 2 of the RSC. In the case of ABB Service Pty Ltd (formerly known as ABB Engineering Construction Pty Ltd) v Hetherington [2001] WASCA 235 Justice McLure with whom Justice Wheeler…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Ogbonna v Programmed Integrated Workforce Ltd

Details

AGLC: Ogbonna v Programmed Integrated Workforce Ltd [2020] WADC 75
Case: [2020] WADC 75
Decision Date: 11 JUNE 2020

CaseChat Overview and Summary

In the case of Ogbonna v Programmed Integrated Workforce Ltd, the plaintiff sought to bring a claim against the defendant for alleged breaches of contract and associated damages. The dispute arose out of an employment relationship that purportedly included wrongful termination and unpaid wages. The matter was brought before the Federal Circuit and Family Court of Australia, where the defendant contested the claim on the grounds of limitation.

The central legal issue the court had to address was whether the plaintiff's writ was defectively indorsed, particularly in light of the defendant's assertion that the claim was barred by the Limitation Act 2005. The court had to determine if the defective indorsement of the writ was fatal to the plaintiff's claim and whether it impacted the defendant's limitation defence. This required an examination of the statutory requirements for the indorsement of writs and how defects therein might affect the enforceability of the claim.

The court held that the indorsement of the writ was indeed defective, as it did not comply with the requisite statutory formalities. However, the court also noted that such a defect did not necessarily invalidate the claim, especially given the defendant's failure to formally object to the defect at an early stage. The court further found that the defendant's limitation defence could not stand because it had not sufficiently demonstrated prejudice from the defect. The court dismissed the defendant's application to strike out the writ, allowing the plaintiff's claim to proceed.

Orders