Ogbonna v Programmed Integrated Workforce Ltd - [2021] WASCA 85

JURISDICTION     :   SUPREME COURT OF WESTERN AUSTRALIA
TITLE OF COURT :   THE COURT OF APPEAL (WA)
CITATION:   OGBONNA -v- PROGRAMMED INTEGRATED WORKFORCE LTD [2021] WASCA 85
CORAM:   MITCHELL JA
VAUGHAN JA

HEARD:   12 MAY 2021
DELIVERED          :   12 MAY 2021
PUBLISHED           :   13 MAY 2021
FILE NO/S:   CACV 123 of 2020
BETWEEN:   CELESTINE OGBONNA
Appellant
AND
PROGRAMMED INTEGRATED WORKFORCE LTD
First Respondent
PROGRAMMED FACILITY MANAGEMENT PTY LTD
Second Respondent

ON APPEAL FROM:
Jurisdiction              :   DISTRICT COURT OF WESTERN AUSTRALIA
Coram:   BOWDEN DCJ
Citation: OGBONNA -v- PROGRAMMED INTEGRATED WORKFORCE LTD [No 2] [2020] WADC 150
File Number            :   CIV 4215 of 2018

Catchwords:

Practice and procedure - Application for orders requiring respondents to file amended respondent's answer - Whether respondent's answer compliant with
r 33(5) of the Supreme Court (Court of Appeal) Rules 2005 (WA) - Turns on own facts

Legislation:

Nil

Result:

Appellant's application dismissed

Category: B

Representation:

Counsel:

Appellant	:	In person
First Respondent	:	M C Goldblatt
Second Respondent	:	M C Goldblatt

Solicitors:

Appellant	:	In person
First Respondent	:	Herbert Smith Freehills
Second Respondent	:	Herbert Smith Freehills

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

Nil

REASONS OF THE COURT:

This appeal came before the court on 12 May 2021 pursuant to registrar's notices to attend to consider the appellant's applications in an appeal dated 29 March 2021 and 7 May 2021.
Aspects of the appellant's application dated 7 May 2021 were uncontentious. By this application, supported by the appellant's affidavit sworn 7 May 2021 (the 21 page affidavit), the appellant in effect sought orders that:
1.The appellant have leave to amend his grounds of appeal in accordance with annexure 'CICO-02' to the appellant's affidavit sworn 7 May 2021.
2.The appellant have leave to amend his application dated 29 March 2021 in accordance with annexure 'CICO-03' to the appellant's affidavit sworn 7 May 2021.
3.The appellant have leave to amend his submissions in support of his application dated 29 March 2021 in accordance with annexure 'CICO-05' to the appellant's affidavit sworn 7 May 2021.
4.The appellant have leave to file his affidavit sworn 7 May 2021 (the four page affidavit) - this affidavit correcting certain aspects of the appellant's affidavit sworn 29 March 2021 in support of the application dated 29 March 2021.
These above four orders were uncontentious. Orders to this effect were made at the commencement of the hearing.
By the application of 7 May 2021 the appellant also sought further orders. First, the appellant sought an order that the respondents make any amendments to their documents as filed which were necessitated by the appellant's amendments. No amendments were required. Hence no such order was required and this aspect of the application fell away. Second, the appellant sought an order that the respondents be directed to amend par 4 of the respondents' submissions dated 3 May 2021. Third, the appellant sought an order that the hearing listed on 12 May 2021 to determine the application dated 29 March 2021 be vacated and relisted for a future date.
Dealing first with the application to vacate, the respondents were in a position to argue the appellant's application dated 29 March 2021 on 12 May 2021 notwithstanding the appellant's numerous late amendments and further affidavit. So too the court was in a position to hear and determine the application. Accordingly, it was not in the interests of justice to vacate the hearing on 12 May 2021. Having, in substance, allowed what was sought by the appellant's application dated 7 May 2021 (with the exception of the proposed order referred to at [4] above requiring the respondents to amend their submissions) the court refused the application to vacate the hearing. We said, in refusing the order to vacate, that we would provide our reasons for refusing the application in our written reasons on the applications generally. This paragraph sets out our reasons for refusing the application to vacate the hearing on 12 May 2021.
The remaining aspect of the application dated 7 May 2021 was the order sought to direct the respondents to amend their submissions in opposition to the appellant's application dated 29 March 2021. The appellant sought an order that the respondents' submissions be amended as shown below:
The ~~appellant~~ respondents will be able to address the merits of the submissions in the amended respondent's answer at the hearing of the application in [sic] appeal.
The appellant submitted that, as currently drafted, the submission was 'fraudulent in nature'. He said that he 'strongly object[s]' to his name or standing as a party being used to prejudice his rights. It is apparent that the appellant has misread or misapprehends the gravamen of the submission. The respondents are not suggesting that the appellant will be able to (or must) recount the positive merits of the respondents' submissions in answer to the appellant's grounds of appeal at the appeal hearing. The submission is rather that the appellant will be able to answer the submissions - addressing their merits or lack of merits as the appellant sees fit - at the appeal hearing. As so expressed there is nothing improper in the submission. Whether it was correct or not was something to be determined on the hearing of the 29 March 2021 application. But, for these reasons, there was no basis to make a direction that the respondents amend their submissions in opposition to the appellant's application dated 29 March 2021 in the terms sought in par 6 of the appellant's application dated 7 May 2021. Accordingly, that aspect of the application was refused.
The appellant's application dated 29 March 2021 as originally drafted sought orders pursuant to r 44(1) of the Supreme Court (Court of Appeal) Rules 2005 (WA) (Rules) that:
1.The respondents file a new respondent's answer that complies with r 33(5) of the Rules.
2.The new respondent's answer be accompanied by a verifying affidavit declaring its content contains no misleading information and is true and correct and complies with the Rules and the Rules of the Supreme Court 1971 (WA).
3.The respondents' lawyer who signs the 'submissions' be the one to affirm or swear the verifying affidavit.
As amended pursuant to the application dated 7 May 2021, the application dated 29 March 2021 also sought like orders in relation to the appellant and the appellant's case. That might be appropriate, as a matter of reciprocity, if such orders were to be made in relation to the respondents and the respondent's answer. The real issue was whether such orders should have been made in relation to the respondents and the respondent's answer. If such orders - which were opposed - should not have been made, then so too no like orders should have been made as regards the appellant and the appellant's case.
Proposed orders 2 and 3 were dependent on the court making proposed order 1. Accordingly, the threshold question was whether the respondents ought to have been ordered to file a new respondent's answer that complied with r 33(5) of the Rules. That, in turn, required that the appellant demonstrate that the present respondent's answer did not comply with r 33(5) of the Rules.
The appellant's application was supported by his affidavit sworn 29 March 2021 as corrected by his affidavit sworn 7 May 2021. The appellant had also filed submissions dated 16 April 2021 as amended by his amended submissions dated 7 May 2021. Those submissions were amplified by oral submissions at the hearing on 12 May 2021.
In summary, however, the appellant contended that the submissions in the respondent's answer were based on fraudulent opinions. He complained that various laws have been contravened. Mention was made of s 9 and s 10 of the Racial Discrimination Act 1975 (Cth), s 4 of the Corruption, Crime and Misconduct Act 2003 (WA) and s 4, s 135 and s 143 of the Criminal Code. The appellant also referred to rules of professional practice to which members of the legal profession are subject. The appellant said that, as a result of such failures, the respondent's answer did not comply with r 33(5) of the Rules. The appellant also said as to each ground of appeal that the force of the alleged error was so strong that the respondent's answer could only properly concede the ground and that not to do so was incompatible with r 33(5). The appellant alleged that the respondents had brought spurious submissions to avoid conceding any of the grounds of appeal.
Rule 33 deals with the obligation to file a respondent's answer. Among other things the respondent's answer is to consist of a Form 8 to which is attached a document titled 'Respondent's Submissions'. Rule 33(5) provides:
The document titled 'Respondent's submissions' must, in respect of each of the appellant's grounds of appeal, either concede the allegation in the ground or:
(a)set out in numbered paragraphs all of the submissions that the respondent makes about the ground; and
(b)include references to:
(i)each page number of the primary court's transcript on which relevant material appears; and
(ii)the number of each exhibit, and a description of any other piece of documentary evidence, in the primary court that is relevant; and
(iii)each principal legal authority on which the respondent relies.
Rule 33(5) does not require that a respondent's answer be supported by a verifying affidavit. There being no such requirement in the Rules, the respondent's answer in this appeal is not deficient simply because the respondents have not filed and served such an affidavit.
The appellant developed at length his reasons for contending that the respondents' submissions in answer to his grounds of appeal were so hopeless or misconceived that they should be conceded. In our view, this was a matter for the appeal hearing proper rather than an interim hearing of the type before the court. Case management considerations, and the public interest in the effective and efficient use of the resources of the court, militate against close examination of alleged weaknesses in the respondents' submissions in answer to an appeal ground when that will occur in any event at an appeal hearing before three judges of the Court of Appeal. The position is quite different from that which arises when the court is asked to strike out a ground of appeal on the basis that it does not have reasonable prospects of succeeding. An appellant must establish error if his or her appeal is to succeed. Even if an appeal ground is conceded by a respondent this court must consider the merits of the ground of appeal for itself.
The respondents' submissions sufficiently outline what is said by the respondents in answer to the contentions made by the appellant. Both the appellant and the court are sufficiently informed of what the respondents' case will be on the hearing of the appeal. The appellant knows the case he will have to meet. Indeed, that is manifestly so given the comprehensive arguments developed by the appellant as to why the respondents' submissions are so hopeless or misconceived that they should be conceded. In all the circumstances the submissions in the respondent's answer did comply with r 33(5) of the Rules.
As the respondent's answer complied with r 33(5) of the Rules there was no basis to require the respondents to file an amended respondent's answer. Accordingly, assuming that the court may take the unusual step of requiring that a respondent's answer be verified by affidavit, this was not an occasion on which such an order ought to be entertained. The appellant's application failed on the threshold issue of whether the respondents ought to be ordered to file a new respondent's answer that complied with r 33(5) of the Rules.
For these reasons the appellant's application in an appeal dated 29 March 2021 was dismissed. The costs of both applications were reserved.

I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
AT
Research Associate to the Honourable Justice Vaughan
13 MAY 2021