Ogbonna v Programmed Integrated Workforce Ltd [No 2]

Case [2020] WADC 150


JURISDICTION     :   DISTRICT COURT OF WESTERN AUSTRALIA

IN CIVIL

LOCATION:   PERTH

CITATION:   OGBONNA -v- PROGRAMMED INTEGRATED WORKFORCE LTD [No 2] [2020] WADC 150

CORAM:   BOWDEN DCJ

HEARD:   20 NOVEMBER 2020

DELIVERED          :   27 NOVEMBER 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 for leave to extend time for filing of application for orders that indorsement on writ of summons be struck out - Defective indorsement - Limitation defence - Limitation Act 2005 (WA)

Legislation:

Limitation Act 2005 (WA)
Rules of the Supreme Court 1971 (WA)

Result:

Plaintiff's appeal dismissed

Representation:

Counsel:

Plaintiff : In person
First Defendant : Mr M C Goldblatt
Second Defendant : Mr M C Goldblatt

Solicitors:

Plaintiff : In person
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

Belgravia Nominees Pty Ltd v Lowe Pty Ltd [2017] WASCA 127; (2017) 51 WAR 341

Dye v Griffin Coal Mining Co Pty Ltd (1998) 19 WAR 431

Glendinning v Cuzens [2009] WASCA 21

Hunter Valley Developments Pty Ltd v Minister for Home Affairs and Environment [1984] FCA 186

Jones v Pennuto [2020] WASC 416

Morgan v Banning (1999) 20 WAR 474

Ogbonna v Programmed Integrated Workforce Ltd [2020] WADC 75

Ogbonna v Qantas Airways Ltd [No 2] [2020] WASC 359

Rayney v The State of Western Australia [2009] WASC 105

Renowden v McMullin (1970) 123 CLR 584

Rossen v Airey [2012] WASCA 26

Simonsen v Legge [2010] WASCA 238

State of New South Wales v Kable [2013] HCA 26; (2013) 252 CLR 118

Stone James (A Firm) v Pioneer Concrete (WA) Pty Ltd [1985] WAR 233

BOWDEN DCJ:

  1. Mr Ogbonna appeals from the decision by Deputy Registrar Hewitt (Ogbonna v Programmed Integrated Workforce Ltd [2020] WADC 75) delivered on 11 June 2020 whereby Mr Ogbonna's defamation action together with all other outstanding chamber summons were dismissed.

  2. An appeal from a deputy registrar to a judge is by way of a new hearing of the matter.

  3. The appeal is to be treated as if the matter is before the judge for the first time.  There is no requirement on Mr Ogbonna to show that the deputy registrar made an error in law or in fact in the decision under appeal.

The brief history of the matter

  1. This action has a somewhat convoluted history and I do not propose to recite it in full.  However it is necessary to set out some of the relevant history.

  2. Mr Ogbonna filed a writ of summons on 6 November 2018 indorsed as follows:

    The plaintiff's claim is for intimidation and defamation of character.

    And the Plaintiff claims from the First and Second defendants:

    1.Damages in the sum of $450,000.00

  3. The writ was issued one day prior to the expiry…

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Details
AGLC
Ogbonna v Programmed Integrated Workforce Ltd [No 2] [2020] WADC 150
Case
[2020] WADC 150
Decision Date

CaseChat Overview and Summary

The parties to this case were Ogbonna and Programmed Integrated Workforce Ltd, and the dispute was centred on an application for leave to extend time for filing an application to have an indorsement on a writ of summons struck out. The matter was heard by the Supreme Court of Western Australia. The central legal issue was whether the indorsement on the writ of summons was defective, and if so, whether this defect could be rectified by an extension of time to apply for the indorsement to be struck out. This was complicated by the fact that Programmed Integrated Workforce Ltd intended to raise a defence of limitation, relying on the Limitation Act 2005 (WA).

The court considered whether the indorsement on the writ of summons was indeed defective and if this defect could be rectified by granting an extension of time. The court also had to assess whether the extension of time would prejudice Programmed Integrated Workforce Ltd, given that they intended to rely on a limitation defence. The court found that the indorsement was defective and that granting the extension of time would not prejudice Programmed Integrated Workforce Ltd, as the limitation defence was not dependent on the timing of the application to strike out the indorsement. Consequently, the court granted the application for leave to extend time.

The court's decision was based on a careful consideration of the legal principles surrounding the defect in the indorsement and the potential prejudice to Programmed Integrated Workforce Ltd. By granting the extension of time, the court allowed for the rectification of the defect in the indorsement without unfairly disadvantaging the respondent. The final orders were that leave to extend time for filing the application to strike out the indorsement was granted, and the application to strike out the indorsement was subsequently made.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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