Ogbonna v Programmed Integrated Workforce Ltd [No 2] - [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:

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

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.
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
The writ was issued one day prior to the expiry of the limitation period for defamation specified under s 15 of the Limitation Act 2005 (WA).
Section 15 of the Limitation Act provides:
15. Defamation - one year from publication
An action relating to the publication of defamatory matter cannot be commenced if one year has elapsed since the publication.

Section 40 of the Limitation Act provides:
40. Court may extend time to commence defamation actions
(1)A plaintiff may apply to a court for leave to commence an action relating to the publication of defamatory matter even though one year has elapsed since the publication.
(2)Subject to subsection (3), on an application a court, if satisfied that it was not reasonable in the circumstances for the plaintiff to have commenced an action in relation to the matter complained of within one year from the publication, must extend the time in which the action can be commenced.
(3)An action relating to the publication of defamatory matter cannot be commenced if 3 years have elapsed since the publication.

Mr Ogbonna served the writ on the defendants on 5 November 2019, one day before the expiry of the term for which the writ was required to be served.
The defendants entered their appearance on 15 November 2019.
There is a dispute as to when the statement of claim was served on the defendants. The defendants claim that it was served on 3 December 2019. Mr Ogbonna claims that it was served with the writ on 5 November 2019.
In relation to this dispute, evidence was received by way of an affidavit of Ms Dawson sworn 4 September 2020. Ms Dawson swears to the standard practice of the defendants being that when a court document is served on the defendants, their employees are required to complete a pro forma service document, attach it to the court document, and email the completed pro forma service document and the court document to the defendants' legal department.
Ms Dawson further swears that the defendants' employees have completed the pro forma service document for the service of the writ but there is no pro forma service document for the service of the statement of claim.
The pro forma service document is signed by Mr Ogbonna and the only document referred to as served on the defendants is the writ.
A contemporaneous document sent by the defendants to their lawyers after receipt of the writ refers to Mr Ogbonna's 'claim being for intimidation and defamation of character, include the indorsement, there does not appear to be any further particulars of the claim that I could see'. This supports the argument that it was the writ alone and not the statement of claim which was served on the defendants' employees.
In addition, on 3 December 2019 Mr Ogbonna sent an email to the defendants' solicitors and attached his statement of claim. The email refers to 'pleas [sic] see attached, by way of service, the plaintiff's statement of claim'.
In Mr Ogbonna's affidavit of service dated 11 March 2020 he swears to 'personally serving two copies of the writ of summons' on the defendants. There is no mention in that affidavit of serving the statement of claim. Mr Ogbonna does not dispute that he signed the defendants 'service of documents' form which refers only to the 'writ of summons' as having been served.
In a further affidavit of Mr Ogbonna dated 21 August 2020 he swears that he served both the writ of summons and statement of claim on the defendants on 5 November 2019 saying that he had filed the statement of claim on that date so he could serve it together with the writ of summons. He says that he wrote 'writ of summons' on the defendants' documentation because the writ of summons was the originating process document which was primarily the key document to serve.
In a later affidavit of 18 September 2020 he repeats that he served both the writ and statement of claim on 5 November 2019 notwithstanding that the statement of claim was mistakenly dated 6 November 2019. He says that when he received the memorandum of appearance on 15 November 2019, he served the statement of claim for a second time on 3 December 2019 on Ms Dawson.
Ms Adewole-Osiwa's affidavit of 21 August 2020 says that on 5 November 2019 she went to the District Court of Western Australia where Mr Ogbonna filed the statement of claim. Ms Adewole-Osiwa's says they then drove to the defendants' premises and Mr Ogbonna walked in with a copy of the writ of summons and statement of claim in his hand and later returned empty handed telling her he 'had dropped off both documents'.
It is not necessary for me to determine whether the statement of claim was served on 5 November 2019 or 3 December 2019.
On 5 December 2019, Mr Ogbonna filed a chamber summons pursuant to O 14 r 1 of the Rules of the Supreme Court 1971 (WA) (RSC), inter alia, for an order 'to force the West Australian Police Force' to provide details of the 'person of interest' and for summary judgment in his favour against the defendants. On 16 December 2019, that chamber summons was amended.
On 17 December 2019, the defendants filed a chamber summons to strike out Mr Ogbonna's indorsement of claim (strike out application) and parts of the statement of claim pursuant to O 20 r 19 RSC, and seeking an order that the action be dismissed. Order 20 r 19(3) RSC requires the strike out application to be made within 21 days of service of the writ. The chamber summons was not filed until 42 days after service of the writ and therefore 21 days out of time.
Notwithstanding that the strike out application was out of time, no extension of time was sought.
On 18 December 2019 Mr Ogbonna filed an ex parte chamber summons in relation to the issue of subpoenas.
On 21 January 2020 the court advised Mr Ogbonna that the defendants' chamber summons of 17 December 2019 and Mr Ogbonna's chamber summons of 16 December 2019 and 18 December 2019 were to be heard at a special appointment before the registrar on 12 February 2020.
On 4 February 2020 the court vacated that special appointment as Mr Ogbonna advised he was unavailable to attend it.
On 20 February 2020 the court requested Mr Ogbonna's unavailable dates and on 21 February he advised the court that he was not available for the next three months. On 5 March 2020 the court requested that Mr Ogbonna explain in writing why he was unavailable for three months from 25 February 2020.
On 11 March 2020 Mr Ogbonna applied by chamber summons for leave to amend the writ of summons pursuant to O 21 r 5(2) RSC. This chamber summons was amended on 24 March 2020 and these chamber summons were discontinued by Mr Ogbonna on 7 May 2020.
On 14 April 2020 the court advised Mr Ogbonna that his summons dated 16 December 2019, 18 December 2019 and 11 March 2020 as amended on 24 March 2020, were listed for a special appointment for 27 May 2020, together with the defendants' chamber summons of 17 December 2019.
Mr Ogbonna filed a further chamber summons on 6 May 2020 seeking, inter alia, that the defendants be directed to file their defence in compliance and in accordance with O 21 r 4(2) RSC.
On 15 May 2020, Mr Ogbonna advised the court registry that he had been sick and coughing and thought it was inadvisable that he attend the hearing of 27 May 2020.
By correspondence of 18 May 2020, the court advised Mr Ogbonna that he could attend by telephone and invited him to provide contact details for that to occur. Mr Ogbonna did not respond to that letter.
On 27 May 2020 Mr Ogbonna did not attend the court, nor had he provided any means by which he could be contacted by phone. The applications were dealt with in his absence.
By written reasons dated 11 June 2020, the deputy registrar in effect allowed the defendants' chamber summons of 17 December 2019 and dismissed Mr Ogbonna's claim. In light of that decision he went on to dismiss Mr Ogbonna's various other chamber summonses.
On 19 June 2020 Mr Ogbonna lodged an appeal seeking orders that the deputy registrar's decisions of 11 June 2020 be set aside and that he have leave to amend his writ of summons as described in his supporting affidavit.
Mr Ogbonna's supporting affidavit of 19 June 2020 refers to a writ attached to his chamber summons of 11 March 2020 as 'a draft to give an indication and contain typographical error'.
As I understand Mr Ogbonna's affidavit, he maintains that the writ that he filed on 5 November 2019 could be amended pursuant to O 21 r 5 RSC to read:
… the plaintiff's claim is for defamation of character by an employee, agent, officer and/or manager of the defendant republished on 7 November 2017 by employees of the West Australia Police Force.
Mr Ogbonna maintains that this is clarifying or expanding an existing cause of action, not inserting a new cause of action.
On 12 August 2020 the defendants filed an amended chamber summons to strike out the plaintiff's indorsement of claim and parts of the statements of claim. This chamber summons sought, for the first time, an extension of time until 17 December 2019 to apply for the order striking out the plaintiff's indorsement.
The chamber summons also sought an order that the writ be struck out on the grounds it disclosed no reasonable cause of action and did not comply with O 6 r 2 RSC and that pars 4 ‑ 15 and par 22 of the statement of claim be struck out on the grounds it disclosed no reasonable cause of action and may prejudice, embarrass or delay the fair trial of the action and sought an order that the plaintiff's action be dismissed. It did not seek the court's leave to amend the chamber summons of 17 December 2019.
On 21 August 2020 Mr Ogbonna filed an amended writ of summons with the District Court by way of eLodgment. In that purported amended writ of summons the indorsement is amended and specifically pleaded the events occurring on 7 November 2017.
On 24 August 2020 the District Court registry advised Mr Ogbonna that the purported amended writ received on 21 August 2020 by way of eLodgment was not accepted or deemed to be filed because the writ of summons had been dismissed and an amended version of the document was unable to be filed without an order of the court.
On 3 September 2020 the defendants were ordered to bring an application, if any, to amend their chamber summons dated 17 December 2019, by 4 September 2020.
On 4 September 2020 the defendants filed a chamber summons for leave to amend the defendants' chamber summons of 17 December 2019 pursuant to O 21 r 7 RSC seeking the same orders as their amended chamber summons of 12 August 2020.
Various other chamber summonses essentially seeking orders for compliance were filed, however it is not necessary to recite the details.
I have read Mr Ogbonna's submissions dated 29 June 2020, 13 July 2020, 18 August 2020, 21 August 2020 and 2 October 2020 and a further five pages of submissions which are undated but commence with the sentence 'the respondent's application for leave to amend application for an extension of time and does raise issues to be determined'.
I have read the defendants' submissions of 29 January 2020, 31 January 2020, 20 July 2020, and 25 September 2020.
There is considerable repetition in respect of the submissions of both parties because of the way this matter has unfolded.
I have read the affidavits of Mr Ogbonna dated 5 December 2019, 16 December 2019, 18 December 2019, 11 March 2020, 11 March 2020 (affidavit of service), 24 March 2020 and 5 May 2020. These affidavits primarily, but not exclusively, relate to the issue of subpoenas. I have also read his affidavits of 14 May 2020, 19 June 2020, 6 July 2020, 18 August 2020, 21 August 2020, and 18 September 2020.
I have read the affidavit of Ms Adewole‑Osiwa of 21 August 2020.
I have read the affidavits of Ms Dawson dated 12 August 2020, 20 August 2020 and 4 September 2020.

The issues to be determined

The issues to be determined on this appeal are the defendants' application for leave to amend their strike out application of 17 December 2019, filed 21 days out of time, whether an extension of time ought be granted, whether the indorsement on the writ ought be struck out and, if so, whether there ought be judgment for the defendants.

Mr Ogbonna's submissions

As is indicated by both the number of affidavits and submissions filed and the quality of those documents and his oral submissions, Mr Ogbonna is clearly passionate about pursuing the events of 7 November 2017 and has spent a considerable amount of work endeavouring to pursue those claims.
Mr Ogbonna's primary submissions are the defendants' strike out application was filed out of time and an extension of time ought not be granted.
Mr Ogbonna further says that the defendants were required to enter a conditional appearance under O 12 r 6(2) RSC and then apply within 14 days of such appearance to have the writ set aside for irregularity for O 2 r 2 RSC. Mr Ogbonna says that by filing an unconditional appearance the defendants have waived their rights to set aside any irregularity.
Mr Ogbonna further complains that Ms Dawson has misrepresented facts in relation to the service of the statement of claim. As I have said, the date of the service of the statement of claim is not critical to any finding that I have reached.
Mr Ogbonna maintains that the statement of claim which he filed and the purported amended writ of 21 August 2020 (the purported amended writ) disclose a reasonable cause of action and cure any defect in the indorsement.
Mr Ogbonna also submits that as the appeal is a hearing de novo, the orders made by the deputy registrar are void ab initio.
For reasons expanded upon later in this judgment, I have found that both the statement of claim and the purported amended writ would not cure the defective indorsement because they, in effect, plead a new cause of action which is now, regrettably for Mr Ogbonna, statute barred.

The defendants' application for leave to amend the chamber summons of 17 December 2019

It is in the interests of justice that I grant leave for the defendants to amend their chamber summons dated 17 December 2019. Mr Ogbonna has been on notice since that date that the strike out application was going to be made and leave to amend should be granted so that all issues are dealt with.

The defendants' application to extend the time for its strike out application

The defendants' strike out application was filed on 17 December 2019. The time limit prescribed by the Rules within which to bring such an application is 21 days. The application was filed approximately 21 days out of time.
The defendants required an extension of time to extend the period within which their application may be made. Order 3 r 5 RSC permits an extension of time to be granted. When the application was filed it should have been, but was not, accompanied by an application to extend time. When that application was filed it should have, but did not, seek leave to amend the chamber summons of 17 December 2019. Those two matters have now been remedied.
The principles to be applied in relation to an application for an extension of time were stated in Simonsen v Legge [2010] WASCA 238 and Hunter Valley Developments Pty Ltd v Minister for Home Affairs and Environment [1984] FCA 186.
The factors to be considered include the length of the delay, the adequacy of the reasons for the delay, the prospects of the application succeeding and the extent of any prejudice to Mr Ogbonna.
These factors are not exhaustive, other factors to be considered include whether the interests of justice require the extension of time. In this regard the efficient utilisation of the resources of the parties and of the court are also matters to consider: Rayney v The State of Western Australia [2009] WASC 105 as are the principles of positive case flow management, O 1 r 4A and O 1 r 4B RSC. Ultimately, the court must be positively satisfied that it is proper to extend time whether that be expressed as it being in the interests of justice or it being fair and equitable to extend time.

The length of the delay

The length of the delay in making the strike out application is 21 days. The length of the delay in seeking an extension of time within which to make that application is approximately 8 ½ months.
The defendants make the point that Mr Ogbonna did not appear before the deputy registrar and raise any objection at any time, either orally or in writing, to the strike out application being heard because it was not filed in time. All parties, including the deputy registrar, appear to have proceeded on the basis that the strike out application was within time. It was not until after the judgment had been delivered some six months after the application was filed and served that the issue was first raised. Whilst it was clearly the defendants' obligation to comply with the RSC and apply for an extension of time, the fact that the point now raised by Mr Ogbonna was not raised by him earlier is also to be taken into account.
The length of the delay in making the strike out application is not extensive. The length of the delay in seeking an extension of time within which to make that application is considerable. Notwithstanding the delay in the application to extend time, Mr Ogbonna was on notice from the date of the application that the defendants intended to raise the strike out issue.

The reasons for the delay

Ms Dawson's affidavit of 4 September 2020 deposes to the fact that Mr Ogbonna had commenced proceedings against the defendants under the Fair Work Act 2009 (WA) in the Federal Court of Australia on 27 April 2018 and discontinued those proceedings on 1 October 2018 without any prior notification to the defendants.
Ms Dawson deposes that the writ was served on 5 November 2019 without the statement of claim and that as the indorsement lacked information, the defendants did not understand what the claim related to as the only complaint previously received from Mr Ogbonna was in relation to his pay slips.
Ms Dawson further deposes that she believes the defendants spent considerable time and resources in relation to the previous claim which Mr Ogbonna had by then, discontinued, and bearing in mind they had no knowledge of what Mr Ogbonna's claim related to, they decided to wait to see if he filed a statement of claim before incurring any further legal costs by way of interlocutory proceedings.
Ms Dawson deposes that upon receiving the statement of claim on 3 December 2019, it was realised that what was being complained about related to events occurring on 7 November 2017.
Ms Dawson says that between 3 December 2019 and 16 December 2019 the defendants' legal advisers were looking at the events of 7 November 2017 and considering the most appropriate way to manage these proceedings and were preparing to brief counsel to determine whether it was appropriate to strike out the indorsement and parts of the statement of claim.
Ms Dawson says that on 16 December 2019 she telephoned Mr Ogbonna to tell him of their intention to bring a strike out application and then on 17 December 2019 filed and served the appropriate chamber summons. Ms Dawson points out that Mr Ogbonna had advised the court on 21 February 2020 that he was not able to attend any hearing before 21 May 2020. The application was heard on 27 May 2020 and judgment delivered on 11 June 2020 and it was only after judgment was delivered that Mr Ogbonna, who had not attended the hearing, raised the issue that the strike out application was out of time.
The fact that the strike out application was out of time should have been apparent to the defendants' solicitors. It is not up to Mr Ogbonna to point out to the defendants that they are out of time. It is the defendants' obligation to comply with the Rules and file the application within time or apply for an extension of time.
It is not stated in Ms Dawson's affidavit why an extension of time to bring the strike out application was not made. The only rational explanation is that the defendants overlooked the fact that it was out of time. This was a surprising error on their behalf.
Mr Ogbonna's position is that the defendants should have entered a conditional appearance (O 12 r 6(2) RSC) and then applied within 14 days of such appearance to have the writ set aside for irregularity (O 2 r 2 RSC). I find Mr Ogbonna's point in respect to a conditional appearance without merit. Order 20 r 19(1) RSC enables the defendants to make the application which they have made.
Mr Ogbonna further says that by their failure to enter the unconditional appearance, the defendants are taken to have waived their rights to set aside any irregularity. This submission is without merit and dismissed by me. Order 20 r 19(1) RSC enables the defendants to make the application which they have made.
In addition, Mr Ogbonna says that the defendants failed to apply within 21 days, pursuant to O 20 r 19(3)(a) RSC to set aside the indorsement and that there has been no adequate explanation for the delay and that Ms Dawson has misrepresented to the court the day on which the statement of claim was served.
I reject these submissions.
Order 20 r 19 RSC specifically allows the defendants to proceed in the manner in which they did. Order 3 r 5 RSC permits an extension of time to be granted if the court considers it appropriate. The defendant was not required to enter a conditional appearance or proceed in the manner Mr Ogbonna suggests.
Taking the position at its highest for Mr Ogbonna that the statement of claim was served on 5 November 2019 (I repeat that it is not necessary for me to determine this issue), I consider there has been an adequate explanation for the delay.
Mr Ogbonna had previously commenced proceedings in the Federal Court against the defendants and discontinued them without notice. The indorsement gave no factual details as to when the defamation occurred and it was only after the statement of claim was served (irrespective of the date upon which it was served) that enquiries could be made into the allegations. I consider that the delay, which is relatively minor, has been adequately explained.

The prospects of the application succeeding

The merits of the strike out application must be considered. For reasons explained later in this judgment, the indorsement is clearly defective and discloses no reasonable cause of action.

The extent of any prejudice to Mr Ogbonna caused by the delay

Clearly, there is prejudice to Mr Ogbonna if the application is granted.
If an extension of time is not given, the strike out application would not be considered. If the strike out application was made within time and was successful, Mr Ogbonna may have been able to apply under s 40(1) of the Limitation Act for leave to extend the time to bring a defamation action and then issue a fresh writ properly indorsed provided he did so before three years had elapsed since the publication on 7 November 2017.
Mr Ogbonna is now not able to do so and that obviously creates significant prejudice to him. It effectively dismisses his action. That is extremely unfortunate for Mr Ogbonna.
However, the most significant cause of the position that Mr Ogbonna finds himself in is not the delay of 21 days, caused by the defendants, but his delay in filing the writ (one day short of 12 months after the alleged defamation), and the delay in serving the writ (two days short of two years after the alleged defamation) and statement of claim (two days short of two years after the alleged defamation on the version of events most favourable to him).
In addition to these delays, Mr Ogbonna advised the court he was not available for three months to attend the special appointment dealing with the defendants' strike out application. I note that during the time he was not available, the court record reveals he was able to file court processes on 11 March 2020, 24 March 2020 and 7 May 2020 and file five affidavits.
In addition to these matters, the defective indorsement was solely his responsibility.

Conclusion on extension of time

In my view, bearing in mind the relatively modest length of the delay in filing the strike out application, the reasons for the delay, the compelling nature of the strike out application and notwithstanding the enormous prejudice to be suffered to Mr Ogbonna, it is in the interests of justice that the strike out application be dealt with.
The overriding interests of justice is that an indorsement of claim that discloses no reasonable cause of action should not be permitted to stand. The delay in raising the issue on behalf of the defendants was not inordinate. The procedure by which they raised it was somewhat defective but Mr Ogbonna was on notice of the issue from 17 December 2019. No issue was taken that an extension of time was required until after the hearing before the deputy registrar. The merits of the application are strong. The court simply cannot permit a writ to stand if the indorsement discloses no reasonable cause of action.
I therefore grant leave to extend the time within which the defendants file their strike out application until 17 December 2019.

The merits of the strike out application

Mr Ogbonna's writ and the indorsement

Mr Ogbonna's writ dated 6 November 2018 was 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
Order 6 r 1 RSC provides:
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.
Order 6 r 2 RSC provides:
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.
A cause of action is a factual situation that entitles a person to approach the court for relief: Morgan v Banning (1999) 20 WAR 474.
For the indorsement to disclose a reasonable cause of action, the indorsement must disclose the factual situation linking the nature of the action and the relief sought.
In ABB Service Pty Ltd (formerly known as ABB Engineering Construction Pty Ltd) v Hetherington [2001] WASCA 235, McLure J as she then was, specified what must be included in the indorsement to satisfy the requirements of O 6 r 1.
Her Honour pointed out that an indorsement had three functions. Firstly, it marked out the parameter within which a plaintiff may frame the statement of claim, pointing out that if the statement of claim or proposed amendment exceeded the indorsement, the statement of claim should be struck out or the amendment refused unless the indorsement is amended.
Secondly, the indorsement had important limitation ramifications stating that, 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, O 21 r 5(5) RSC. 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.
Thirdly, an indorsement provides notice to the defendant of the nature of the plaintiff's claim and the relief sought in the action.
Her Honour pointed out that the requirements that the indorsement contain a concise statement of the nature of the claim made and 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.
An indorsement which merely identifies a cause of action and the relief sought is insufficient. The indorsement must put the facts in a recognised legal framework and there should be sufficient factual information in the indorsement to predetermine the limitation outcome, that is, the facts in the indorsement should enable a factual trail to be perused which would result in identification of the date on which the cause of action accrued: ABB Service Pty Ltd (formerly known as ABB Engineering Construction Pty Ltd) v Hetherington.
Whilst an indorsement is not a pleading and should not be read narrowly but generously it must identify the critical events which give rise to relief claimed without descending to the factual particulars appropriate in a statement of claim. The ambit of the action commenced by the writ is determined by reference to the facts asserted in it and not by reference to any legal labels or categories which may or may not have been used in the indorsement: Morgan v Banning; Belgravia Nominees Pty Ltd v Lowe Pty Ltd [2017] WASCA 127; (2017) 51 WAR 341.
An indorsement will naturally cover a narrower factual field and be of greater level of generality than a statement of claim however, the indorsement must cover a factual field which ties in with the nature of the claim and the damages sought and even reading the indorsement generously, it must be possible to discern from it the underlying facts entitling the plaintiff to the relief sought.
It is accepted that the court should ensure that Mr Ogbonna is not improperly deprived of the opportunity of having his case tried particularly as he is self-represented. A court should also ensure that in a poorly expressed or unstructured pleading there is not a viable cause of action which, with appropriate amendment or permissible assistance from the court, could be put into a proper form.
Accordingly, the court should afford the pleadings of a self‑represented litigant, a liberal and lenient construction however the court cannot and must not trample upon the rights of an opponent who is legally represented: Ogbonna v Qantas Airways Ltd [No 2] [2020] WASC 359.
The indorsement in this case has not identified any critical factual field or events which give rise to the relief claimed.
The indorsement does not state sufficient particulars to enable the publication in respect of which the action is brought to be identified and fails to comply with O 6 r 2 RSC in that it does not enable identification of the written document or conversations containing the defamatory matter, which was made available to a third party and which the third party had available for his or her comprehension: Rossen v Airey [2012] WASCA 26.
The indorsement simply identifies the area of law (defamation) and claims damages. There are no facts referred to and nothing to put any facts into a recognised legal framework showing how the claim arises. There is nothing linking the claim to any facts and no particulars from the relevant publication may be identified or the limitation outcome established.
Mr Ogbonna's affidavit (par 10) dated 6 July 2020 acknowledges that the particulars of the date of publication, or by whom, or in what manner the publication was made, or anything that would allow a defendant to identify the specifics of his cause of action were lacking in the indorsement.
In relation to the defamation claim the indorsement discloses no cause of action.
Mr Ogbonna's purported amended writ dated 21 August 2020 was rejected by the court on the basis that the writ of summons had been dismissed. The purported amended writ has not been accepted for filing by the court and has no legal states. I agree with the submission by the defendants that Mr Ogbonna, in any event, would need leave to amend the writ pursuant to O 21 r 1(3) RSC and that Mr Ogbonna's attempts to amend the writ clearly adds an additional cause of action, being the events of 7 November 2017. There would also need to be an application by Mr Ogbonna to extend the limitations pursuant to the Limitation Act.
Mr Ogbonna's position, as I understand it, is that because the appeal is a hearing de novo, the orders of the deputy registrar made on 11 June 2010 do not exist. Therefore, the action has not been dismissed and he is entitled to file the purported amended writ dated 21 August 2020 pursuant to O 21 r 1 RSC.
Further, Mr Ogbonna says the purported amended writ does not add a new cause of action as it merely expands and clarifies an existing cause of action. The basis of the latter submission seems to be that because his indorsement refers to defamation, any amendment to the writ that relates to defamation merely expands or clarifies that cause of action. In short, on Mr Ogbonna's submissions, the reference to defamation on the indorsement established a cause of action.
I reject those submissions.
Whilst I agree that the appeal is by way of a hearing de novo, it does not mean that the orders made by the deputy registrar do not exist. The orders made are not void ab initio. The orders stand until they are set aside. It may be arguable that if the orders were made without jurisdiction, they may have been a nullity, however the orders were clearly made within jurisdiction and are effective until set aside: Jones v Pennuto [2020] WASC 416; State ofNew South Wales v Kable [2013] HCA 26; (2013) 252 CLR 118.
Mr Ogbonna's primary submission is that because the indorsement on his writ referred to defamation, the statement of claim he filed is simply clarifying an existing cause of action.
Further, Mr Ogbonna says that the purported amended writ of summons dated 21 August 2020 is simply clarifying an existing cause of action.
I reject these submissions for reasons explained later in this judgment.
As indicated, the current indorsement discloses no reasonable cause of action. There is no factual link between the relief and the defamation referred to.
In relation to the intimidation claim, there are no facts alleged in support of such a cause of action.
I strike out the indorsement of claim as it discloses no reasonable cause of action.
Mr Ogbonna's action, however, should only be dismissed if the indorsement cannot be amended.

The effect of a defective indorsement in this case

An indorsement can be amended with leave of the court: O 6 r 1(2), O 20 r 19(1) RSC.
In his original 'orders wanted on appeal' dated 21 July 2020, Mr Ogbonna sought an order that he be allowed to amend his writ of summons pursuant to O 21 r 1 RSC. In his amended orders 'wanted on appeal' filed on 18 September 2020, he longer seeks such an order.
I assume this is because Mr Ogbonna still treats his purported amended writ of 21 August 2020 as being validly filed and therefore amending his writ. The purported amended writ has not been accepted for filing and is of no legal force or effect.
There is no valid application to amend the indorsement before the court, however the issue of whether the indorsement could properly be amended is a matter that is relevant to the consideration of whether Mr Ogbonna's claim should be dismissed.
The circumstances in which an indorsement can be amended has been considered in a number of cases.
In Morgan v Banning, Wheeler J stated:
[I]f the defective indorsement appearing on the writ when issued, is not of a type which is capable of encompassing amendments sought to be made after the expiry of the limitation period, so that the amendments truly 'add' an additional and time barred cause of action (rather than particularising, clarifying, or expanding one already instituted) then, whether leave to amend is granted or not, the new action remains time barred. Whatever the rules of court may provide, an action which is in fact instituted out of time is able to be defeated by reliance upon the Limitation Act, which the court has no power to override, whether by a procedural rule of 'relation back' or otherwise.
Morgan v Banning and ABB v Herrington stand for the proposition that if an application to amend does not add a new cause of action in the sense described in the cases no limitation issue arises then the general power conferred by O 21 r 5(1) RSC to allow an amendment can be exercised.
On the other hand, if the amendment does add a new cause of action after the time specified for the commencement of that action and outside the limitation provisions no doctrine of relation back or rule of the court can preclude the defendant relying upon a limitation defence.
In assessing whether an amendment invokes the addition of a new cause of action, the court will not undertake an overly technical and rigid investigation and will construe an indorsement generously rather than narrowly.
Generally speaking, limitation issues are best decided at trial with a consequence that amendment will only be disallowed on the basis of a limitation defence in the clearest case: Dye v Griffin Coal Mining Co Pty Ltd (1998) 19 WAR 431; Rossen v Airey [72].
If, however, a limitation defence is sufficiently clear and uncontroversial as to justify a disallowance of an amendment, which would inevitably be defeated by a limitation claim, the amendment should be disallowed on the basis that it was futile because the limitation defence would inevitably succeed: Belgravia v Lowe.
For similar reasons, in a case where a defendant indicates an intention to plead a limitation defence to a cause of action barred by statute at the time it is proposed to be added by amendment, the court will disallow the amendment if there is no doubt that such defence would defeat the claim: Rossen v Airey.

The defendants have advised that they would seek to amend their current application to strike out the majority of Mr Ogbonna's statement of claim to include a ground pursuant to O 20 r 2 RSC, that the statement of claim be struck out because it contains allegations of a claim in respect of a cause of action which is not mentioned in the writ and do not arise from the facts which are the same as, or include or form part of, facts giving rise to a cause of action so mentioned.
If there is a doubt that a limitation defence would succeed, the appropriate course is to allow the amendment, thus enabling the defendant to plead any limitation defence and have the matter determined at trial.

Mr Ogbonna's claim that the statement of claim remedies the defective indorsement of claim

Mr Ogbonna maintains that his statement of claim provides sufficient particulars to enable the publication in respect of which action is brought to be identified. Simply put, he says the statement of claim cures any defects in the indorsement.
As his statement of claim clearly shows, Mr Ogbonna's defamation claim has its factual basis in the allegation that is, that on 7 November 2017 an employee, agent, and /or officer of the defendants made a false and damaging statement about him to the West Australian Police knowing it to be false, untrue, malicious and misleading.
As a result of that report, the police dispatched two police officers to his residence and when they attended his residence, they advised the person who answered his door why they were there and of other matters, which Mr Ogbonna says constitute a republication of the defamation. Mr Ogbonna claims general damages in the sum of $407,500 and aggravated damages in the sum of $42,500, making a total claim of $450,000.
The statement of claim does not particularise, clarify or expand an existing cause of action because, as I have found, there was no existing cause of action contained in the indorsement.
As no cause of action has previously been indorsed on the writ, any amendment would consist of a new cause of action.
Assuming that Mr Ogbonna's statement of claim creates a cause of action, it is a new cause of action based on events occurring on the 7 November 2017.
Where a statement of claim exceeds the indorsement, the statement of claim would be struck out if the indorsement cannot be amended: Renowden v McMullin (1970) 123 CLR 584, 597 (Barwick CJ and McTiernan J); Stone James (A Firm) v Pioneer Concrete (WA) Pty Ltd [1985] WAR 233.
The statement of claim clearly exceeds the indorsement. The current indorsement cannot now be amended for the following reasons.
Mr Ogbonna's writ would be required to be amended and indorsed to accommodate the new cause of action being the defamation and its republication of 7 November 2017. Mr Ogbonna requires leave to amend the writ as I have found that his current indorsement is defective.
The new cause of action in the statement of claim is outside of the 12 month Limitation Act period specified for bringing a cause of action for defamation, which expired on 7 November 2018.
An application to extend the time within which to bring a defamation action can be made. However, the Limitation Act provides that any action relating to the publication of defamatory matter cannot be commenced if three years have elapsed since the publication, ie 7 November 2020: Limitation Act s 40(3).
No application for leave to commence a defamation action based on the new cause of action contained in the statement of claim has been made and such an application cannot now be made. No valid application to amend the writ is before the court.
In those circumstances, the defendants' claim that the cause of action that Mr Ogbonna wishes to pursue via his statement of claim is barred under the Limitation Act is correct and if any application was made by Mr Ogbonna to amend the writ or indorsement it would inevitably fail.
Any application to strike out the statement of claim would inevitably succeed because it exceeds the ambit of the indorsement.
When an indorsement is deficient, the plaintiff shall ordinarily be allowed a reasonable opportunity to put it into a proper form so long as it could be done without irremediable prejudice to the defendant.
The fact that the relevant limitation period has expired means that the consequence is that Mr Ogbonna will be left without a remedy for any defamation arising from the matters of 7 November 2017. That is an important factor to take into account: Glendinning v Cuzens [2009] WASCA 21. The difficulty for Mr Ogbonna is that the deficiencies in the indorsement are incapable of being cured by appropriate amendment or particulars.
Once an indorsement is defective the court may set aside the writ (O 6 r 1(2) RSC), strike out the indorsement in whole or in part (O 20 r 19(1) RSC), grant leave to the plaintiff to amend the indorsement (O 6 r 1(2) RSC, O 20 r 19(1) RSC) or order the plaintiff provide further particulars of the indorsement (O 6 r 1(2) RSC): Glendinning v Cuzens.
Any amendment to the indorsement or the provision of further particulars of the indorsement could only relate to matters occurring on 7 November 2017 and, thus, for reasons expressed above would be statute barred.

The purported amended writ

The purported amended writ was not accepted for filing.
Even treating Mr Ogbonna's submissions as an application for leave to file the purported amended writ of 21 August 2020, I would not grant leave. The purported amended writ has, as its factual basis, events of 7 November 2020 which is a new cause of action requiring a new writ. It cannot be a clarification, particularisation or expansion of the previously filed indorsement because that discloses no reasonable cause of action. It cannot cure the defective indorsement. The original indorsement is defective because it discloses no factual basis to link up with the claimed cause of action, and the purported amended writ cannot link up with non‑existing facts and be said to clarify, particularise or expand those facts. A new writ is required and, as previously seen, that would now be statute barred.
Notwithstanding the prejudice to Mr Ogbonna, the indorsement must be struck out and his action dismissed. Whilst this leaves Mr Ogbonna effectively without a remedy for any defamatory matter occurring on 7 November 2017, this, as stated previously, is a result of the defective indorsement.
The fact that Mr Ogbonna now has insufficient time to remedy the defects is primarily as a result of the matters referred to at [88] - [90].
The orders I make are as follows:
1.I grant leave to the defendants to amend their chamber summons in terms of their amended chamber summons of 4 September 2020.
2.The time for the defendants to apply for orders that the indorsement of the plaintiff's writ of summons be struck out be extended to 17 December 2019.
3.The indorsement on the plaintiff's writ of summons dated 6 November 2018 be struck out as disclosing no reasonable cause of action.
4.The plaintiff's action be dismissed.
5.The plaintiff pay the first and second defendants' costs of the action.
6.The plaintiff's appeal be dismissed.

I certify that the preceding paragraph(s) comprise the reasons for decision of the District Court of Western Australia.
AO
Associate to Judge Bowden
27 NOVEMBER 2020