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Ogbonna v Programmed Integrated Workforce Ltd [No 2]

Ogbonna v Programmed Integrated Workforce Ltd [No 2]

Case [2020] WADC 150 27 November 2020

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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…

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 [No 2]

Details

AGLC: Ogbonna v Programmed Integrated Workforce Ltd [No 2] [2020] WADC 150
Case: [2020] WADC 150
Decision Date: 27 NOVEMBER 2020

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