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:

1. 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.

2. 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. 

3. A number of other orders were sought but they are not relevant to my determination of this matter. 

4. 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.

5. 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 agreed at [7] and following her Honour considered the requirements of an indorsement per claim and stated as follows:

   7.This application raises for consideration the information which must be included in an indorsement to satisfy the requirements of O 6 r 1 and O 20 r 19 of the SCR. The minimum requirement has to be assessed in the context of the functions of an indorsement of claim in a writ. It has three functions two of which are related. Firstly, it marks out the perimeter within which a plaintiff may frame the statement of claim. Pursuant to O 20 r 2(2) of the SCR:

   a Statement of claim must not contain any allegation or claim in respect of a cause of action unless that cause of action is mentioned in the writ or arises from facts which are the same as, or include or form part of, the facts giving rise to a cause of action so mentioned.

   8. If a statement of claim or a proposed amendment exceeds the indorsement, the statement of claim should be struck out or the amendment refused unless the indorsement is amended:  Stone James v Pioneer Concrete (WA) Pty Ltd [1985] WAR 233 at 238.

   9. Secondly, an indorsement in a writ has important limitation ramifications.  The Limitation Act 1935 is concerned with the date of issue of the writ.  Provided a writ is not a nullity, amendments can be made to a defective indorsement on the writ if the terms of the writ are wide enough to encompass the proposed amendments as they particularise, clarify or expand a cause of action already instituted: Morgan v Banning (1999) 20 WAR 474; O 21 r 5(5) SCR. An open ended or otherwise defective indorsement may be relied on to the advantage of a plaintiff who seeks to amend its writ and then its statement of claim after the expiry of the limitation provided.

   10. Thirdly, an indorsement also provides notice to the defendant of the nature of the plaintiff's claim and the relief sought in the action.  However, it is not intended to be in the nature of a pleading but only a summary of the nature of the claim: Renowden v McMullin (1970) 123 CLR 584 at 895.

   11. The nature and extent of the information necessary to meet the requirement that the indorsement contain a concise statement of the nature of the claim made and the relief or remedy required does not depend upon a rigid formula.  Relevant information can be conveyed in different ways and adequacy is to be determined from the indorsement as a whole.

6. The plaintiff's indorsement of claim does no more than identify the area of law upon which the plaintiff relies on and the amount of damages sought namely the sum of $450,000 and contains no particulars of the date of publication or by whom or in what manner the publication was made or anything which would allow a defendant to identify what cause of action is intended to be pursued other than for intimidation and defamation of character.  In relation to the first of those causes of action there is not as far as I am aware any cause of action encompassed by the term intimidation.

7. On 5 November 2019 the plaintiff filed a statement of claim.  That statement of claim contained pleadings identifying the date upon which the defamation was alleged to have been made the party to whom it was made and what may or may not have been the words or substance of the defamatory material.  The argument advanced by the defendants' in their application is that the plaintiff's indorsement could encompass practically anything which the plaintiff might care to consider defamatory and was completely deficient in identifying the facts upon which his cause of action rested.  The defendants' argue that it is only upon filing of such a statement of claim (although arguably a defective statement of claim) that the plaintiff identified the cause of action which he intended to pursue with anything even remotely resembling particularity.  Since the statement of claim was filed well outside the one year limitation period and since the defendants' argue that the indorsement on the writ did not identify any cause of action capable of being pursued it is submitted that such cause of action as may be pursued by the plaintiff could only be considered to have been commenced on the filing of the statement of claim and thus statute barred.

8. In my view the submissions by the defendants are sound.  The cause of action pursued by the plaintiff articulated in his statement of claim was a new cause of action commenced outside the limitation period for an action for defamation and as a consequence the defendants' have a clear defence to the claim which should be dismissed. 

9. A further matter to be considered is the application of the plaintiff by a chambers summons filed 11 March 2020 seeking leave to amend the indorsement of that writ of summons in the following terms:

   The plaintiff's claim is for intimidation and defamation of the plaintiff's character by an employee, agent, officer and/or manager of the defendants and the further defamation of the plaintiffs character on 7 November 2017 by employees of Western Australian Police Force during the performance of official duties, a consequence of the employee, agent, officer and/or manager of the defendants initial defamation.

10. That indorsement is as defective as that it seeks to replace and were it to be allowed would not advance the plaintiff's position nor affect the argument by the defendant's that the plaintiff is pursuing a statute barred claim.  The decision in Morgan v Banning (1999) 20 WAR 474 is authority for the proposition that amendments to indorsement made after the limitation period has expired are not effective to defeat a limitation defence and should not be allowed.

11. As a consequence, a number of other applications which were listed before me for determination by the plaintiff namely the application dated 19 December 2019 for leave to issue a subpoena the chamber summons for summary judgment and various other matters and the amended chamber summons dated 16 December 2019 should also be dismissed.

12. Finally I comment on the fact that the plaintiff did not attend the hearing either in person or by audio link.  By a letter dated 15 May 2020 the plaintiff advised that he had been sick and coughing and thought it inadvisable to attend the hearing.  By letter in response dated 18 May 2020 the court advised the plaintiff that he could attend by telephone and invited him to provide contact details for that to occur.  The plaintiff did not respond to that letter nor did he file submissions as ordered on 10 January 2020.  In any event the plaintiff did not attend court nor provide a means by which he could be contacted by telephone.  Whether the plaintiff was ill as he claimed was not supported by any medical certificate and the plaintiff made no further contact with the court.  Given that some 12 days had elapsed since the plaintiff had advised the court he had a cough and in the absence of any further contact by the plaintiff I decided to proceed with the defendant's application in his absence.

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

DH
Court Officer

8 JUNE 2020