Ogbonna v Programmed Integrated Workforce Ltd [No 2] - [2022] WASCA 79

JURISDICTION     :   SUPREME COURT OF WESTERN AUSTRALIA
TITLE OF COURT :   THE COURT OF APPEAL (WA)
CITATION:   OGBONNA -v- PROGRAMMED INTEGRATED WORKFORCE LTD [No 2] [2022] WASCA 79
CORAM:   QUINLAN CJ
MURPHY JA
BEECH JA

HEARD:   21 JUNE 2022
DELIVERED          :   12 JULY 2022
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 - Indorsement of writ - Where indorsement of writ by appellant contained no facts and merely described a cause of action - Whether defective indorsement - Limitation defence - Whether defective indorsement could be amended - Whether subsequent statement of claim cured irregularity - Whether statement of claim alleged new cause of action

Practice and procedure - Strike-out application by respondents filed out of time - Application for leave to extend time - Principles applicable to application for leave to extend time - Whether prejudice to appellant by reason of delay in application to strike out - Whether judge erred in granting extension of time

Practice and procedure - Appeal under pt 2 r 15(6) of District Court Rules - De novo review - Where deputy registrar had struck out indorsement and dismissed action - Whether deputy registrar's orders binding on parties pending determination of review to District Court judge under pt 2 r 15(6) of District Court Rules

Practice and procedure - Whether leave required to appeal from District Court judge's order dismissing action because action failed to disclose a reasonable cause of action

Legislation:

Limitation Act 2005 (WA), s 15, s 40, s 79
Rules of the Supreme Court 1971 (WA), O 2, O 3 r 5, O 6, O 20 r 19, O 21
District Court Rules 2005 (WA), pt 2 r 15

Result:

Leave to appeal refused
Appeal 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):

AB v State of New South Wales [2014] NSWCA 243
ABB Service Pty Ltd v Hetherington [2001] WASCA 235
Belgravia Nominees Pty Ltd v Lowe Pty Ltd [2017] WASCA 127; (2017) 51 WAR 341
Boomalli Ltd v Hake [1985] WAR 7
FAI General Insurance Co Ltd v Southern Cross Exploration NL [1988] HCA 13; (1988) 165 CLR 268
Florida Investments Pty Ltd v Milstern (Holdings) Pty Ltd [1972] WAR 148
Fourmi Pty Ltd v Commissioner for Consumer Protection [2017] WASCA 69
Glendinning v Cuzens [2009] WASCA 21
Harris v Caladine [1991] HCA 9; 172 CLR 84
Hoffmans (a firm) v Ahmed [2021] WASCA 210
Hunter Valley Developments Pty Ltd v Cohen [1984] FCA 186; (1984) 3 FCR 344
Kezic v St John of God Health Care Inc [2015] WASCA 220
Leybourne v Habkouk [2012] NSWCA 212
Melville v East End Holdings Inc [2003] WASCA 133
Minogue v Williams [2000] FCA 125; (2000) 60 ALD 366
Ogbonna v Programmed Integrated Workforce Ltd [2020] WADC 75
Ogbonna v Programmed Integrated Workforce Ltd [No 2] [2020] WADC 150
Papps v Medical Board of South Australia [2006] SASC 234
Rayney v The State of Western Australia [2009] WASC 105
Rayney v The State of Western Australia [No 3] [2010] WASC 83
Re Luck [2003] HCA 70; (2003) 78 ALJR 177
Simonsen v Legge [2010] WASCA 238
State of Western Australia v Bond Corp Holding Ltd (1991) 5 WAR 40
Summit Chemicals Pty Ltd v Vetrotex Espana SA [2004] WASCA 109
Tidswell v Tidswell [No 2] [1958] VR 601
Tobin v Dodd [2004] WASCA 288
Wilson v Metaxas [1989] WAR 285
Wilson v Official Trustee in Bankruptcy [2000] FCA 204

JUDGMENT OF THE COURT:

Introduction

In this appeal, the appellant (Mr Ogbonna) appeals against orders of Bowden DCJ dismissing his defamation action against the respondents in the District Court. Bowden DCJ published written reasons: Ogbonna v Programmed Integrated Workforce Ltd [No 2] (primary decision).[1] The primary decision concerned an appeal de novo from a decision of Deputy Registrar Hewitt in Ogbonna v Programmed Integrated Workforce Ltd,[2] pursuant to which the deputy registrar also made orders dismissing Mr Ogbonna's action.
[1] Ogbonna v Programmed Integrated Workforce Ltd [No 2] [2020] WADC 150.
[2] Ogbonna v Programmed Integrated Workforce Ltd [2020] WADC 75.
This appeal came on for hearing on 21 June 2022, having been listed for hearing on 24 February 2022. Mr Ogbonna, who had filed an appellant's case including grounds of appeal, submissions and a list of authorities, did not attend at the hearing of the appeal. He gave no prior notice of his non‑attendance. At the appointed time for the hearing, court officers made numerous attempts to contact him by email and telephone, and the commencement of the hearing was delayed. The matter was also called outside court. In these circumstances, the court did not invite oral submissions from counsel for the respondents, and said that it would reserve its decision.
For the reasons which follow, the appeal should be dismissed.

Background

2017

On 7 November 2017, the alleged defamatory publication occurred.[3]

2018

[3] Statement of claim, par 4; BB 44.

On 6 November 2018, Mr Ogbonna filed a writ of summons.[4] This was one day before the expiry of the relevant limitation period.[5] Mr Ogbonna's indorsement of claim provided:[6]
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

2019

[4] BB 38.

[5] Primary decision [6].

[6] BB 40.

Nearly a year later, on 5 November 2019, Mr Ogbonna served the writ of summons, one day before the expiry of the term for which the writ was required to be served.[7]
[7] Primary decision [9].
Mr Ogbonna filed a statement of claim, recorded as having been filed on 5 November 2019.[8] There was a dispute as to whether the statement of claim was served on 5 November 2019 or 3 December 2019.[9] The learned primary judge found that it was not necessary to determine this dispute.[10] In general terms, the statement of claim alleged that on 7 November 2017, the respondents made a defamatory statement about Mr Ogbonna to the police and the police then called on his home and repeated it to his then spouse.[11]
[8] BB 42 - 52.
[9] Primary decision [11] - [21].
[10] Primary decision [21].
[11] Statement of claim pars 4, 5, 12 ‑ 14; BB 44, 46, 48.
On 15 November 2019, the respondents filed and served a notice of appearance.[12]
[12] Primary decision [10].
On 5 December 2019, Mr Ogbonna filed a chamber summons 'to force the West Australian Police Force' to provide certain information and for summary judgment against the respondents. The chamber summons was amended on 16 December 2019.[13]
[13] Primary decision [22].
On 17 December 2019, the respondents filed and served a chamber summons pursuant to O 20 r 19(1) of the Rules of the Supreme Court 1971 (WA) (RSC) seeking orders to strike out Mr Ogbonna's indorsement of claim and parts of the statement of claim, and for the action to be dismissed (Strike‑Out Application).[14] This was 42 days after service of the writ, being 21 days out of the time provided for under O 20 r 19(3) of the RSC. Despite the respondents' application being brought out of time, no application for an extension of time was then brought by the respondents.[15]
[14] BB 56.
[15] Primary decision [23] - [24].
On 18 December 2019, Mr Ogbonna filed an application for the issue of subpoenas.[16]

2020

[16] Primary decision [25].

On 21 January 2020, the respondents' Strike‑Out Application and Mr Ogbonna's chamber summons were listed for hearing on 12 February 2020.[17]
[17] Primary decision [26].
On 4 February 2020, the court vacated the special appointment to hear the Strike‑Out Application as Mr Ogbonna was unable to attend.[18]
[18] GB 204.
On 21 February 2020, Mr Ogbonna advised by email that he was unable to attend a hearing for three months.[19] On 5 March 2020, the court wrote to Mr Ogbonna seeking an explanation as to why he was unavailable for three months.[20]
[19] GB 202.
[20] Primary decision [28].
On 11 March 2020, Mr Ogbonna filed a chamber summons and affidavit seeking orders to amend his writ pursuant to O 21 r 5(2) of the RSC.[21] The proposed amended writ included the following indorsement:[22]
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 plaintiff's character on 7 November 2017 by employees of Western Australia Police Force during the performance of official duties, a consequence of the employee, agent, officer and/or manager of the defendants initial defamation. (original emphasis)
[21] Primary decision [29]
[22] Mr Ogbonna's affidavit filed 11 March 2020, Annexure C; primary decision [29].
On 24 March 2020, Mr Ogbonna filed an amended chamber summons for orders to amend his writ pursuant to O 21 r 5(2) of the RSC.[23]
[23] Primary decision [29].
On 14 April 2020, the court listed the respondents' Strike‑Out Application and Mr Ogbonna's applications for a special appointment on 27 May 2020.[24]
[24] Primary decision [30].
On 7 May 2020, Mr Ogbonna filed a discontinuance notice in relation to his amended application for leave to amend the writ.[25]
[25] Primary decision [29].
On 15 May 2020, Mr Ogbonna wrote to the court advising that he was sick and could not attend the hearing on 27 May 2020.[26]
[26] Primary decision [32].
On 18 May 2020, the court wrote to Mr Ogbonna and advised that it could provide a direct phone number for him to attend the 27 May 2020 hearing, via telephone.[27]
[27] Primary decision [33].
On 27 May 2020, the respondents' Strike‑Out Application was heard by Deputy Registrar Hewitt. Mr Ogbonna did not attend in person or via telephone.[28]
[28] Primary decision [34].
On 11 June 2020, the deputy registrar in effect upheld the respondents' Strike‑Out Application and dismissed Mr Ogbonna's applications and dismissed the action.[29] The orders, which were extracted on 24 June 2020, were as follows:[30]
1.The plaintiff's action be dismissed.
2.The plaintiff's appeal hearing on 29 June 2020 be vacated.
3.The plaintiff's chamber summons for the summary judgment dated 5 December 2019 be dismissed.
4.The plaintiff's chamber summons for issue of the subpoena dated 18 December 2019 be dismissed.
5.The plaintiff's chamber summons to amend the writ of summons dated 11 March 2020 be dismissed.
6.The plaintiff's amended chamber summons to amend the writ of summons dated 24 March 2020 be dismissed.
7.The plaintiff pay the defendants' costs to be taxed.
[29] Primary decision [35].
[30] BB 3 - 4.
On 19 June 2020, Mr Ogbonna filed a notice of appeal and affidavit in support of the notice of appeal. He sought orders to the effect that the deputy registrar's decision be set aside, and that he be given leave to amend his writ of summons in accordance with an amendment proposed in his affidavit.[31] The proposed amendment was to the following effect:[32]
[T]he 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.
[31] Primary decision [36].
[32] Primary decision [38].
In his affidavit in support, Mr Ogbonna raised, for the first time, the respondents' delay in filing the Strike‑Out Application.[33] In that regard, Mr Ogbonna said:[34]
21.It is important for ethnic minority to see that our justice system is above board and that decisions made are consistent with the court rules and rule of law, regardless of any impending fact, it is ultimately important that the general public have confidence in the justice system.
22.It is clear that the [respondents'] strike out application should have been dismissed in the first instance in line with [the RSC] O 20 r 19 for failure to comply with the mandatory provisions of the rule.
23.A ruling by the High Court emphasised on the fact that parties who do not comply with court rules and practice directions will be likely made to face 'severe sanctions' (see: Fons HF v Corporal Ltd [2013] EWHC 1278 (Ch) (09 May 2013).
24.It is impossible for the [respondents] to be exempted from adhering to the Court rules, and then attempt made to impose similar Court rules on the other party without such action being biased. A fair and strict approach ought to apply consistently across the board for all litigants and is ultimately good for the parties and administration of justice and creates certainty and clarity as well.
25.It is obvious from the preceding paragraphs that the [respondents] did not have grounds to proceed with their strike out application and thus, Registrar Hewitt's decision on 11 June 2020 needs to be set aside.
[33] Primary decision [67].
[34] Affidavit of Mr Ogbonna sworn 19 June 2020, GB 21.
On 12 August 2020, the respondents filed an amended chamber summons to strike out Mr Ogbonna's indorsement of claim and parts of the statement of claim, pursuant to O 20 r 19(1)(a) and (c) of the RSC. This chamber summons sought, for the first time, an extension of time until 17 December 2019 to apply for the order striking out Mr Ogbonna's indorsement.[35]
[35] Primary decision [39].
On 21 August 2020, Mr Ogbonna filed an affidavit in which he also referred to the respondents' delay in commencing the Strike‑Out Application:[36]
10.Thus, the [respondents'] strikeout application is out of time and the [respondents have] not presented 'acceptable explanation of delay' that it is 'fair and equitable in the circumstances' to extend time. Read through all the [respondents'] affidavit, there is no reasonable explanation given. …
11.I hope the administration of justice would be allowed to prevail, as an ethnic minority my rights are constantly violated but I [am] consistently fighting my cause within the rule of law, even when the [respondents] and their lawyers are breaking the laws and engaging in egregious conducts.
[36] Affidavit of Mr Ogbonna sworn 21 August 2020, GB 158.
Also on 21 August 2020, Mr Ogbonna attempted to file an amended writ of summons via the eLodgment Portal (August 2020 Purported Amended Writ).[37] The Purported Amended Writ included the following indorsement:[38]
The plaintiff's claim is for is for ~~intimidation and~~ defamation of character from defamatory publication by an employee, agent, officer and/or manager of one of the defendants which occurred on 7 November 2017 and the defamatory words disparaged the plaintiff. It also includes the subsequent republication that occurred on the same day (7 November 2017) when WP/Hume Andrew Timothy and WP/Leunig Isabell Bronwyn of the Western Australia Police Force visited the plaintiff home at 41 Erpingham Road, Hamilton Hill Western Australia to conduct a police mental health welfare check with one of the officers and said to Ms Hiwot Solomon Abera: 'We came to see Mr Celestine Ogbonna, someone called us to say that he has been making rambling statements and is suicidal, the reason we were dispatched as a matter of urgency to attend to check on his mental state'. (underlined emphasis in original, italics emphasis removed, strikethrough in original)
[37] Primary decision [42].
[38] BB 162; primary decision [41].
On 24 August 2020, the court wrote to Mr Ogbonna advising that the August 2020 Purported Amended Writ had not been accepted for filing because the writ of summons had already been dismissed.[39]
[39] Primary decision [42], [114].
On 3 September 2020, Stewart DCJ made orders that, amongst other things, the respondents bring an application, if any, to amend the Strike‑Out Application (dated 17 December 2019) by 4.00 pm on 4 September 2020.[40]
[40] Primary decision [43].
On 4 September 2020, the respondents filed a chamber summons and affidavit for leave to amend the Strike‑Out Application to include an order extending time to 17 December 2019.[41]
[41] Primary decision [44]; BB 164 ‑ 167; Mr Ogbonna's affidavit filed 18 September 2020, par 41; GB 217. See also the respondent's affidavit, GB 170.
On 18 September 2020, Mr Ogbonna filed an affidavit in which he again also referred to the late filing of the Strike‑Out Application:[42]
41.The [respondents'] strikeout application despite being filed out of time. The [respondents have] not presented 'acceptable explanation of the delay' that it is 'fair and equitable in the circumstances' to extend time. [The respondents' solicitor's] affidavit affirmed on 4 September 2020 on behalf of the [respondents], offers no reasonable explanation but instead bring [sic] matter [sic] that are irrelevant.
42.[The respondents' solicitor] has lied on different occasions and the [respondents] have given no good reason for the delay in making their application and the procedure for setting aside a writ of summons irregularity was not followed.
[42] Affidavit of Mr Ogbonna sworn 18 September 2020, GB 217 - 218.
7 November 2020 was the date three years from the date of the alleged publication of the defamation. It was the date after which an action in defamation, as alleged by Mr Ogbonna, could not be commenced: s 40(3) of the Limitation Act 2005 (WA) (Limitation Act).
On 20 November 2020, Bowden DCJ heard the appeal and the respondents' application to amend their Strike‑Out Application.[43]
[43] Primary decision [52].
On 27 November 2020, Bowden DCJ delivered reasons and made orders including for the dismissal of Mr Ogbonna's appeal and Mr Ogbonna's action. His Honour ordered that:[44]
1.Leave is granted to the [respondents] to amend their chamber summons in terms of their amended chamber summons of 4 September 2020.
2.The time for the [respondents] to apply for orders that the indorsement of [Mr Ogbonna's] writ of summons be struck out be extended to 17 December 2019.
3.The indorsement on [Mr Ogbonna's] writ of summons dated 6 November 2018 be struck out as disclosing no reasonable cause of action.
4.[Mr Ogbonna's] action be dismissed.
5.[Mr Ogbonna] pay the [respondents'] costs of the action.
6.[Mr Ogbonna's] appeal be dismissed.
[44] BB 1.

Statutory and regulatory context

RSC

Irregularities

Order 2 of the RSC provides:
1.Non compliance with rules
(1)Where in beginning or purporting to begin any proceedings or at any stage in the course of or in connection with any proceedings, there has, by reason of anything done or left undone, been a failure to comply with the requirements of these rules, whether in respect of time, place, manner, form or content or in any other respect, the failure shall be treated as an irregularity and shall not nullify the proceedings, any step taken in the proceedings, or any document, judgment or order therein.
(2)Subject to subrule (3) the Court may, on the ground that there has been such a failure as is mentioned in subrule (1), and on such terms as to costs or otherwise as it thinks just, set aside either wholly or in part the proceedings in which the failure occurred, any step taken in those proceedings, or any document, judgment or order therein or exercise its powers under these rules to allow such amendments (if any) to be made and to make such order (if any) dealing with the proceedings generally as it thinks fit.
(3)The Court shall not wholly set aside any proceedings or the writ or other originating process by which they were begun on the ground that the proceedings were required by any of these rules to be begun by an originating process other than the one employed.
2.Application to set aside for irregularity
(1)An application to set aside for irregularity any proceedings, any step taken in any proceedings or any document, judgment or order therein shall not be allowed unless it is made within a reasonable time and before the party applying has taken any fresh step after becoming aware of the irregularity.
(2)An application under this rule shall be made by summons or motion, as the case may require, and the grounds of objection must be stated in the summons or notice of motion.

Time

Order 3 of the RSC provides, relevantly:
5.Extending and abridging time
(1)The Court may, on such terms as it thinks just, by order extend or abridge the period within which a person is required or authorised by these rules, or by any judgment, order, or direction, to do any act in any proceedings.
(2)The Court may extend any such period as is referred to in subrule (1) although the application for extension is not made until after the expiration of that period.
(3)The period within which a person is required by these rules, or by any order or direction, to serve, file or amend any pleading or other document may be extended by consent (given in writing) without an order of the Court being made for that purpose.

Indorsement

Order 6 r 1 of the RSC provides:
(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 of the RSC provides:
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. (emphasis added)

Appearance

Order 12 of the RSC relevantly provides:
1.Who may enter appearance
(1)Subject to subrule (2) and to Order 70 rule 2, a defendant to an action may (whether or not he is sued as a trustee or personal representative or in any other representative capacity) enter an appearance in the action and defend it by a practitioner or in person.
(2)Except as expressly provided by any Act, a defendant to such an action which is a body corporate may not enter an appearance in the action or defend it otherwise than by a practitioner.
…
6.Conditional appearance
(1)A defendant in any cause may enter a conditional appearance denying the jurisdiction of the Court or reserving the right to apply to the Court to set aside the originating process, or the notice thereof, or the service of the originating process, or notice thereof, on the ground of any informality or irregularity which renders the originating process or the service thereof invalid, and shall not thereby be deemed to have submitted to such jurisdiction, except as to the costs occasioned by the appearance or by any application under this rule.
(2)The defendant shall forthwith apply to the Court to have the question raised by his conditional appearance decided, and if such an application is not made within 14 days from the entry of the conditional appearance, or if the application be dismissed, the conditional appearance shall, unless the Court otherwise orders, become and operate as an unconditional appearance.

Pleadings and strike out

Order 20 r 1 and r 2 of the RSC provide:
1.Statement of claim, service of
Unless the Court gives leave to the contrary or a statement of claim is indorsed on the writ, the plaintiff must serve a statement of claim on the defendant or, if there are 2 or more defendants, on each defendant, and must do so either when the writ is served on that defendant or at any time after service of the writ but before the expiration of 14 days after that defendant enters an appearance.
2.Statement of claim, content of
(1)A statement of claim must state specifically the relief or remedy which the plaintiff claims, but costs need not be specifically claimed.
(2)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, facts giving rise to a cause of action so mentioned.
(3)Subject to subrule (2) a plaintiff may in his statement of claim alter, modify or extend any claim made by him in the indorsement of the writ without amending the indorsement.
(4)Except when indorsed on the writ every statement of claim must bear on its face a statement of the date on which the writ in the action was issued.
Order 20 r 19 of the RSC relevantly provides:
19.Striking out pleadings etc.
(1)The Court may at any stage of the proceedings, subject to subrule (3), order to be struck out or amended any pleading, or the indorsement of any writ in the action, or anything in any pleading or in the indorsement on the ground that -
(a)it discloses no reasonable cause of action or defence, as the case may be; or
(b)it is scandalous, frivolous or vexatious; or
(c)it may prejudice, embarrass or delay the fair trial of the action; or
(d)it is otherwise an abuse of the process of the Court,
and may order the action to be stayed or dismissed or judgment to be entered accordingly, as the case may be.
(2)No evidence shall be admissible on an application under subrule (1)(a).
(3)An application for an order under subrule (1) must -
(a)be made within 21 days of the service of any pleading, or amended pleading, or writ to which the application refers; and
(b)where the application is to strike out certain pleadings, specify -
(i)the paragraph of subrule (1) under which the application is made; and
(ii)those parts of the pleadings which the applicant seeks to have struck out;
and
(c)where the application is to strike out the entire pleading, clearly indicate that intention in the application.
[(4)deleted]
(5)Unless special circumstances are shown, an application to amend pleadings consequent upon an order striking the pleadings out, in whole or in part, shall be accompanied by a minute of the proposed amendment.
(emphasis added)

Amendments

Order 21 of the RSC relevantly provides:
1.Amending writ without leave
(1)Subject to subrule (3), the plaintiff may, without the leave of the Court, amend the writ once at any time before the pleadings in the action begun by the writ are deemed to be closed by filing its amended writ before the closure.[45]
[45] See O 20 r 20 of the RSC as to the close of pleadings.
[(2)deleted]
(3)This rule shall not apply in relation to an amendment which consists of -
…
(b)the addition or substitution of a new cause of action; or
(c)without prejudice to rule 3, an amendment of the statement of claim, if any, indorsed on the writ.
…
3.Amending pleadings without leave
(1)A party may amend any of its pleadings, without the leave of the Court, by filing its amended pleading not later than 7 weeks before the date fixed for the start of the trial of the case.
…
(3)A party served with a pleading amended under subrule (1) … may apply to the case manager for any amendment in the pleading to be struck out.
(4)A party's application under subrule (3) must be made within 7 working days after the date on which the party is served with the amended pleading.
(5)If, on an application made under subrule (3), the case manager is satisfied that, had an application for leave to make the amendment in question been made under rule 5 at the date when the amended pleading was filed under this rule, leave to make the amendment or part of the amendment would have been refused, the manager must order the amendment or that part of it to be struck out.
…
5.Amending writ or pleading with leave
…
(2)The Court may at any stage of the proceedings, without determining whether any relevant period of limitation has expired, allow the plaintiff to amend the plaintiff's writ, or any party to amend that party's pleading, on any terms as to costs or otherwise that may be just and in the manner (if any) that the Court may direct.
…
7.Amending other documents
(1)For the purpose of determining the real question in controversy between the parties to any proceedings, or of correcting any defect or error in any proceedings, the Court may at any stage of the proceedings on the application of any party to the proceedings order any document in the proceedings to be amended on such terms as to costs or otherwise as may be just and in such manner (if any) as it may direct.
…
…
9.How amendments to be made
…
(2)Except as provided in subrule (1), and subject to any direction given under rule 5 or 7, the amendments so authorised shall be effected by writing the necessary alterations on the writ, pleading or other document in any manner that will distinguish the alterations from the original document or from any previous amendment, and in the case of a writ or originating summons, by filing a copy and the request that it be re sealed.
(3)A writ, pleading or other document which has been amended under this Order must be indorsed with a statement that it has been amended, specifying the date on which it was amended, the name of the judge or master by whom the order (if any) authorising the amendment was made, and the date thereof, or if no such order was made, the number of the rule of this Order in pursuance of which the amendment was made.
(emphasis added)

Limitation provisions

Section 15 of the Limitation Act provides:
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 that a court may extend the time to commence defamation actions in certain circumstances:
(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. (emphasis added)
Section 79 of the Limitation Act relevantly provides:
79.Burden of proof
…
(3)The plaintiff in an extension application has the burden of proving that a court should extend the relevant limitation period.

District Court Rules

Part 2 r 15 of the District Court Rules 2005 (WA) (DCR) provides, relevantly:
15.Appeal lies from registrar to judge
(1)If a party is dissatisfied with a decision of a registrar the party may appeal to a judge.
…
(3)The appeal must be commenced by filing and serving a notice that -
(a)sets out the particulars of the registrar's decision or that part of it to which the appeal relates; and
(b)sets out the final orders that it is proposed the Court should make on the appeal.
…
(5)The appeal does not operate as a stay of proceedings unless a judge or legally qualified registrar orders otherwise.
(6)The appeal is to be by way of a new hearing of the matter that was before the registrar.

Primary decision

The learned primary judge said that the appeal was an appeal de novo, and that the issues for determination were:[46]
1.The respondents' application for leave to amend their Strike‑Out Application.
2.Whether an extension of time should be granted in relation to the Strike‑Out Application.
3.Whether the indorsement on the writ should be struck out.
4.Whether there ought to be judgment for the respondents.
[46] Primary decision [2], [52].
In summary, the learned primary judge found that the indorsement was defective as it disclosed no reasonable cause of action. The learned primary judge also allowed the application for leave to amend the Strike‑Out Application and granted the extension of time. His Honour found that the indorsement could not be amended because any amendment would add a new cause of action that would be statute‑barred, and consequently the action should be dismissed.

Application for leave to amend the Strike‑Out Application

The learned primary judge found that it was in the interests of justice to grant leave to amend the Strike‑Out Application. Mr Ogbonna had been on notice since 17 December 2019 that the Strike‑Out Application was going to be made and leave to amend should be granted so that all issues were dealt with.[47]
[47] Primary decision [60].
The learned primary judge said that O 3 r 5 of the RSC permitted an extension of time to be granted,[48] and that the factors to be considered included 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.[49]
[48] Primary decision [62].
[49] Primary decision [64].
The learned primary judge found that the length of the delay in making the Strike‑Out Application was 21 days and was 'not extensive'.[50] The learned primary judge found, in effect, that the respondents were not in a position to make relevant enquiries about the subject matter of the action until the statement of claim was served, whether that was on 5 November 2019 or 3 December 2019. His Honour found, in this regard, that there was an adequate explanation for the 21‑day delay. His Honour said:[51]
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.
[50] Primary decision [66], [68].
[51] Primary decision [83].
The learned primary judge also referred to a delay of approximately eight and a half months (possibly intending to refer to the period 17 December 2019 to 4 September 2020), which was 'considerable', in applying for an order to extend the time within which to make the Strike‑Out Application.[52] However, the learned primary judge found that Mr Ogbonna did not originally make any objection to the Strike‑Out Application on the basis that it was filed out of time. The issue was first raised by Mr Ogbonna six months after the Strike‑Out Application was filed and served, and after judgment had been delivered by the deputy registrar.[53] The learned primary judge found that, notwithstanding the delay in seeking the orders to extend the time for making the Strike‑Out Application, Mr Ogbonna was on notice about the strike‑out issue from the date of the application (17 December 2019).[54] The learned primary judge said that the respondents' solicitors did not explain why they did not seek orders for an extension of time earlier, and found that the 'only rational explanation' was that they had overlooked the fact that the Strike‑Out Application was out of time, and that this 'was a surprising error on their behalf'.[55]
[52] Primary decision [66], [68].
[53] Primary decision [67].
[54] Primary decision [68].
[55] Primary decision [76].
In relation to the prospects of success of the Strike‑Out Application, the learned primary judge found that Mr Ogbonna's indorsement was clearly defective and disclosed no reasonable cause of action,[56] as further discussed in [57] ‑ [58] below.
[56] Primary decision [84].
Next, the learned primary judge considered the question of prejudice to Mr Ogbonna. The learned primary judge said that there was 'clearly' prejudice to Mr Ogbonna if the application were granted.[57] His Honour said that if an extension of time were not granted, the Strike‑Out Application would not be 'considered'.[58] Further, if the Strike‑Out Application had been made within time and had been successful, Mr Ogbonna 'may have been able to apply … for leave to extend the time to bring a defamation action and then issue a fresh writ properly indorsed provided that he did so before three years had elapsed since the [alleged] publication on 7 November 2017'. Mr Ogbonna could not do so now and 'it effectively dismisses his action'.[59]
[57] Primary decision [85].
[58] Primary decision [86].
[59] Primary decision [86] - [87].
However, the learned primary judge found, in effect, that the most significant cause of Mr Ogbonna's prejudice was his own conduct and not the 21‑day delay in bringing the Strike‑Out Application.[60] In particular, he was solely responsible for the defective indorsement, and he was responsible for his own delay or the delays to which he contributed:[61]
1.Mr Ogbonna filed the writ one day short of 12 months after the alleged defamation, 12 months being the statutory bar for defamation actions.[62]
2.Mr Ogbonna served the writ two days short of two years after the alleged defamation.[63]
3.Mr Ogbonna served the statement of claim two days short of two years after the alleged defamation (assuming the statement of claim was served on 5 November 2019 as Mr Ogbonna contended).[64]
4.Mr Ogbonna advised he was not available for three months to attend the special appointment dealing with the respondents' Strike‑Out Application. During this period Mr Ogbonna nonetheless filed court processes on 11 March 2020, 24 March 2020, and 7 May 2020, and filed five affidavits.[65]
[60] Primary decision [88].
[61] Primary decision [88].
[62] Primary decision [88].
[63] Primary decision [88].
[64] Primary decision [88].
[65] Primary decision [89].
The learned primary judge summarised his findings on whether an extension of time ought be granted as follows:[66]
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.

The striking out of the indorsement on the writ

[66] Primary decision [91] - [92].

The learned primary judge struck out the indorsement of claim on the basis that it disclosed no cause of action.[67] In relation to the claim for defamation, the learned primary judge said:
1.The indorsement did not identify any 'critical factual field or events' giving rise to the relief claimed.[68]
2.The indorsement did not state sufficient particulars to enable identification of the publication in respect of which the action was brought, and failed to comply with O 6 r 2 of the RSC.[69]
3.The indorsement did not link the claim to any facts, including any facts from which a 'limitation outcome' might be ascertained.[70]
[67] Primary decision [113], [122].
[68] Primary decision [109].
[69] Primary decision [110].
[70] Primary decision [111].
The learned primary judge also found that the 'intimidation claim' in the indorsement disclosed no facts to support a cause of action.[71]

The dismissal of the action

[71] Primary decision [123].

The learned primary judge said that whilst Mr Ogbonna's indorsement of claim should be struck out, Mr Ogbonna's action should only be dismissed if the indorsement could not be amended.[72]
[72] Primary decision [125].

With reference to the case law, the learned primary judge said, in effect, that a writ of summons may not be amended where the amendment seeks to add a new cause of action and that cause of action is time‑barred.[73] The learned primary judge said that in determining whether an amendment adds a new cause of action, the court will not take an overly technical approach and will construe the indorsement generously.[74] Also, the learned primary judge said that if there were any doubt that the limitation defence would succeed, the appropriate course would be to allow the amendment and enable the matter to be determined at trial.[75]
[73] Primary decision [130] - [138].
[74] Primary decision [134].
[75] Primary decision [139].
The learned primary judge noted that in his original 'orders wanted on appeal', Mr Ogbonna had sought an order that he be allowed to amend his writ of summons pursuant to O 21 r 1 of the RSC. However, in his amended orders 'wanted on appeal' filed on 18 September 2020, he no longer sought such an order. The learned primary judge said that he assumed this was because Mr Ogbonna still treated his August 2020 Purported Amended Writ as validly filed and effective to amend his writ. The learned primary judge said, however, that the August 2020 Purported Amended Writ had not been accepted for filing and had no legal force or effect.[76] In this regard, the learned primary judge rejected Mr Ogbonna's contention that because the appeal was a hearing de novo, the orders of the deputy registrar were not binding. His Honour said that the deputy registrar's orders stood until they were set aside.[77]
[76] Primary decision [127] - [128], [158].
[77] Primary decision [115] - [118].
The learned primary judge further said that even if Mr Ogbonna's submissions were treated as an application for leave to file the August 2020 Purported Amended Writ, he would not grant leave. This was on the basis that the August 2020 Purported Amended Writ had, as its factual basis, an allegation of defamation on 7 November 2017, and this could not be a clarification, particularisation or expansion of the previously filed indorsement which had disclosed no reasonable cause of action. Accordingly, the August 2020 Purported Amended Writ could not cure the defective indorsement. Rather, a new writ would be required to allege a cause of action arising on 7 November 2017, and that claim would be statute‑barred.[78] Accordingly, the learned primary judge rejected Mr Ogbonna's contention that the August 2020 Purported Amended Writ merely clarified an existing cause of action.[79]
[78] Primary decision [159].
[79] Primary decision [120] - [121].
The learned primary judge also rejected Mr Ogbonna's submission that his statement of claim provided sufficient particulars and cured the defects in the indorsement.[80] The learned primary judge found that the statement of claim alleged causes of action on 7 November 2017.[81] It clearly exceeded the indorsement as the indorsement disclosed no cause of action, and any amendment would constitute a new cause of action.[82] The learned primary judge found in that regard that:
1.The new cause of action (arising on 7 November 2017) in the statement of claim was outside the 12‑month limitation period for bringing a cause of action, which expired on 7 November 2018.[83]
2.Any application to extend time to bring a defamation action must be made within three years of publication. This time expired on 7 November 2020.[84]
3.No application for leave to extend time to bring a defamation action based on the new cause of action in the statement of claim had been made within time.[85]
4.The respondents' limitation period defence would inevitably succeed,[86] as would an application to strike out the statement of claim.[87]
5.Any application by Mr Ogbonna to amend the writ or indorsement would inevitably fail.[88]
[80] Primary decision [140].
[81] Primary decision [141] - [142].
[82] Primary decision [143] - [147].
[83] Primary decision [149].
[84] Primary decision [150].
[85] Primary decision [151].
[86] Primary decision [152].
[87] Primary decision [153].
[88] Primary decision [152] - [155].

Grounds of appeal and appellant's submissions

Grounds of appeal

Mr Ogbonna's grounds of appeal identify six grounds. In addition to the six grounds, in Mr Ogbonna's amended submissions he sought to raise a seventh ground.
Ground 1 alleges, in effect, that the learned primary judge erred in fact and law by finding that the Deputy registrar's orders prevented Mr Ogbonna from filing his August 2020 Purported Amended Writ given that the appeal to the District Court operated as an entirely new trial without reference to the deputy registrar's decision.
Ground 2, in substance, repeats ground 1 and further alleges that the finding that the action had been dismissed by the deputy registrar's orders was inconsistent with leave being granted to the respondents to amend their chamber summons filed on 4 September 2020.
Ground 3 alleges that the learned primary judge erred in law by holding that the August 2020 Purported Amended Writ introduced a new cause of action, when the indorsement was amended to correct an irregularity pursuant to O 6 r 2 of the RSC.
Ground 4 alleges, in effect, that the learned primary judge erred in law by finding that the amendment of the indorsement on the writ in relation to the alleged defamation on 7 November 2017 was statute‑barred, when the amendment merely provided further particulars to the indorsement.
Ground 5 alleges, in effect, that the learned primary judge erred in fact and law by finding that the writ of summons and statement of claim did not disclose a reasonable cause of action.
Ground 6 alleges, in effect, that the learned primary judge erred in fact and law by granting the respondents an extension of time, given that the respondents had no 'acceptable explanation of the delay' that it was 'fair and equitable' in the circumstances for an extension of time to be granted.
Mr Ogbonna's amended submissions seek to raise a seventh ground to the effect that the learned primary judge erred in law by finding that the writ could be set aside by application pursuant to O 20 r 19 of the RSC, when it could only be set aside because of 'irregularity' under O 2 r 2 of the RSC or O 12 r 6 of the RSC.[89]

Appellant's written submissions

Ground 1

[89] Appellant's written submissions, par 7.

Mr Ogbonna referred to r 15(6) of the DCR and submitted that, since there is no legal requirement for the appellant to show an error in law or in fact, the following propositions follow as a matter of logic: (1) the appeal is 'not an appeal proper'; (2) it is a rehearing with new evidence; (3) at any stage, a party can amend any document to correct an irregularity pursuant to O 2 r 1 of the RSC; and (4) Mr Ogbonna's August 2020 Purported Amendment was valid because if the deputy registrar's decision were still in effect, then no party would be permitted to present new evidence, and the matter could not be heard 'afresh'.[90]
[90] Appellant's written submissions, par 1.7.
Mr Ogbonna also relied on the following passage from Dawson J's judgment in Harris v Caladine:[91]
An order made by a Registrar is reviewable by way of a hearing de novo. That means that the court reviewing the order begins afresh and exercises for itself any discretion exercised below by the Registrar. The parties commence the application again, subject to any restrictions in the rules upon the calling of evidence or provisions relating to the use before the court of evidence called before the Registrar. A hearing de novo involves the exercise of the original jurisdiction and 'the informant or complainant starts again and has to make out his case and call his witnesses'. (emphasis added)
[91] Harris v Caladine [1991] HCA 9; 172 CLR 84, 124.
Mr Ogbonna appeared to implicitly accept that success on this ground would be contingent on whether the August 2020 Purported Amendment introduced a new cause of action:[92]
[T]he appellant has the right to amend his writ of summons and does not require leave to amend the writ pursuant to O 21 r 1 RSC. The appellant has shown below that his amendment does not introduce any new cause of action. Since this is the case, the appellant's amended writ of summons dated 21 August 2020 was validly filed and should not have been dismissed. The issue of whether amendment of the indorsement introduced a new cause of action is addressed in the third ground of appeal. (emphasis added)
[92] Appellant's written submissions, par 1.2.
Mr Ogbonna also referred to s 254 and s 256 of the Criminal Procedure Act 2009 (Vic).[93]

Ground 2

[93] Section 254 and s 256 of the Criminal Procedure Act 2009 (Vic) provide:

Mr Ogbonna submitted that the deputy registrar's decision did not prevent the parties from amending their originating documents.[94] Under this ground, Mr Ogbonna also referred to Papps v Medical Board of South Australia.[95]
[94] Appellant's written submissions, par 2.5.
[95] Papps v Medical Board of South Australia [2006] SASC 234 [32].
Further, Mr Ogbonna submitted that the August 2020 Purported Amended Writ did not require leave or an order of the court because it did not constitute an addition, omission, or substitution of a party to the action or the addition or substitution of a new cause of action pursuant to O 21 r 1 of the RSC and therefore was validly filed in compliance with O 6 r 2 of the RSC.[96]
[96] Appellant's written submissions, par 2.6.5.
Otherwise, Mr Ogbonna's submissions on this ground substantively echoed those with respect to ground 1.

Ground 3

Mr Ogbonna submitted that it is not uncommon for an indorsement to only refer to the nature of the cause of action.[97]
[97] Appellant's written submissions, par 3.3.
Mr Ogbonna referred to a sentence in par 15 of the respondents' outline of submissions filed 29 August 2020 in the District Court, that:[98]
although the Statement of Claim provides sufficient particulars to enable the publication, in respect of which the action is brought, to be identified, it was only filed and served on 5 November 2019, two days short of two years after publication.
[98] Appellant's written submissions, par 3.7.
Mr Ogbonna submitted the August 2020 Purported Amended Writ simply deleted the word 'intimidation' as a 'typographical error' and clarified the existing action, being 'defamation of character' which was borne out of the same facts instituted on the original writ of summons.[99]
[99] Appellant's written submissions, par 3.8.
Mr Ogbonna referred to authorities including Summit Chemicals Pty Ltd v Vetrotex Espana SA,[100] as well as the following passage from ABB Service Pty Ltd v Hetherington:[101]
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; O21 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.
[100] Summit Chemicals Pty Ltd v Vetrotex Espana SA [2004] WASCA 109 [42] ‑ [43].
[101] ABB Service Pty Ltd v Hetherington [2001] WASCA 235 [9] (McLure & Wheeler JJ).
Mr Ogbonna submitted that the amendment of the indorsement sought to be filed on 21 August 2020 emanated from the same facts identified in the statement of claim and that the statement of claim was filed within time.[102]

Ground 4

[102] Appellant's written submissions, par 3.10.

Mr Ogbonna submitted that the August 2020 Purported Amended Writ 'is of the same facts and date as those alluded to in the original indorsement'.[103] Accordingly, the limitation defence did not apply to the August 2020 Purported Amended Writ, and the August 2020 Purported Amended Writ was validly filed.[104]

Ground 5

[103] Appellant's written submissions, par 4.2.

[104] Appellant's written submissions, pars 4.4 - 4.5.

Although the ground alleges that the statement of claim and the writ both disclosed a reasonable cause of action, Mr Ogbonna's submissions focus on the statement of claim. He referred to the sentence from the respondents' submissions referred to in [80] above.[105]

Ground 6

[105] Appellant's written submissions, par 5.2.

Mr Ogbonna submitted, in effect, that the respondents' application for an extension of time should not have been granted, given:
1.The chamber summons was originally filed without an application to extend time or an affidavit in support of such an application.[106]
2.Mr Ogbonna 'fought his case' on the basis that the respondents filed an application for extension of time.[107]
3.Mr Ogbonna had a prospect of success because his August 2020 Purported Amended Writ did not contain any irregularity.[108]
4.The primary decision gave rise to a miscarriage of justice. In this regard, Mr Ogbonna referred to Glendinning v Cuzens.[109] Mr Ogbonna submitted that, in that case, the appellant's writ introduced a new cause of action, namely fraud, and required leave to amend; nonetheless, leave was granted. By contrast, in this case, Mr Ogbonna submitted the August 2020 Purported Amended Writ introduced no new cause of action and did not require leave to amend.[110]

Ground 7

[106] Appellant's written submissions, pars 6.3 - 6.4.

[107] Appellant's written submissions, par 6.5.

[108] Appellant's written submissions, par 6.7.

[109] Glendinning v Cuzens [2009] WASCA 21.

[110] Appellant's written submissions, par 6.8.

As noted above, this proposed ground was raised in Mr Ogbonna's written submissions.
In effect, Mr Ogbonna submitted that because the statement of claim disclosed sufficient particulars, 'any legally qualified person' could infer that the elements of defamation were satisfied.[111] Consequently, Mr Ogbonna submitted, the proper course was for the respondents to enter a conditional appearance on the basis of the irregularity under O 2 r 2 and O 12 r 6 of the RSC.[112]
[111] Appellant's written submissions, par 7.6.
[112] Appellant's written submissions, par 7.8.
Therefore, Mr Ogbonna submitted, the respondents' Strike‑Out Application was invalid because:
1.it was not raised 'timeously' so the respondents can be taken to have waived the 'irregularity' in the writ;[113] and
2.the respondents did not apply within 14 days to enter a conditional appearance.[114]
[113] Appellant's written submissions, par 7.12.
[114] Appellant's written submissions, par 7.13.

The respondents' submissions and notice of contention

In general terms, the respondents contended that the learned primary judge was correct for the reasons that he gave. The respondents raised two additional points. First, they contended that the appeal requires leave on the basis that the judgment under appeal is interlocutory rather than final, and that leave should not be granted. Secondly, they filed a notice of contention in relation to ground 6.

Leave

On the question of leave, they submitted that insofar as the Full Court in Florida Investments Pty Ltd v Milstern (Holdings) Pty Ltd[115] held that an order dismissing an action on the basis that the statement of claim of claim should be struck out for disclosing no reasonable cause of action was a final order, that decision should not be followed. The respondents observed that the correctness of the decision in Florida Investments had been doubted in subsequent decisions of this court,[116] and had not been followed in New South Wales,[117] or in the Full Court of the Federal Court of Australia.[118]
[115] Florida Investments Pty Ltd v Milstern (Holdings) Pty Ltd [1972] WAR 148.
[116] Glendinning [24]; Tobin v Dodd [2004] WASCA 288 [9] ‑ [12].
[117] AB v State of New South Wales [2014] NSWCA 243 [10] ‑ [16]. See also the discussion of Re Luck in Leybourne v Habkouk [2012] NSWCA 212 [15] ‑ [16].
[118] Minogue v Williams [2000] FCA 125; (2000) 60 ALD 366 [18]; Wilson v Official Trustee in Bankruptcy [2000] FCA 204 [18].
The respondents further submitted, in effect, that the decision of the learned primary judge was correct, and that:[119]
There would be no substantial injustice in this case if leave to appeal was refused. The allegation is that publication was made of an incident, involving the appellant, by an employee of the respondents to one [Western Australian police] officer and two [Western Australian police] officers republished the publication to the appellant's wife at the appellant's house in the course of a mental health check. The action is of a trivial nature and no substantial damage has been suffered by the appellant. The appellant has also not sought any non‑pecuniary relief, such as an injunction, to restrain the respondents from repeating the imputations of which he complains. The resources of the parties and the court needed to determine the claim would be wholly disproportionate to the interests at stake[.]

Respondents' notice of contention

[119] Respondents' amended submissions, par 19.

The notice of contention alleges that even if this court finds that the learned primary judge erred in relation to ground 6, the learned primary judge's decision to grant leave to amend to seek an extension of time should be upheld on the basis that the learned primary judge erred in finding (at primary decision [85] ‑ [87], [90] and [160]) that the appellant would suffer significant or enormous prejudice if:
1.the primary court granted leave to the respondents to amend their chamber summons, in terms of their amended chamber summons of 4 September 2020; or
2.the primary court extended the time for the respondents to apply for orders that the indorsement on the writ be struck out.

Respondents' submissions on notice of contention

The respondents submitted that Mr Ogbonna gave no indication in the primary proceedings that he intended to apply for leave to extend the time to bring a defamation action under s 40(1) of the Limitation Act, nor does his appeal evince this intention.[120]
[120] Respondent's notice of contention, par 1.
The respondents further submitted that, in any event, to succeed in such an application, Mr Ogbonna would need to demonstrate that it was not reasonable for him to have commenced proceedings within the one‑year limitation period.[121] Since Mr Ogbonna did commence proceedings, by filing the writ within the limitation period, he could not demonstrate it was not reasonable for him to have commenced proceedings within the one‑year limitation period.[122] Reference was made to the observations of Martin CJ in Rayney v The State of Western Australia [No 3]:[123]
The first question which arises is whether the plaintiff has brought himself within the express provisions of s 40(2) of the Limitation Act which require a court to grant an extension of time if satisfied that it was not reasonable for the plaintiff to have commenced an action within one year from the publication.
That is a difficult hurdle for a plaintiff to overcome unless there are some unusual circumstances such as, for example, the plaintiff being unaware of the publication within the period of one year from the publication having occurred. The important points to note are that by virtue of s 79 of the Limitation Act the onus of proving that it was not reasonable to have commenced within the period of one year rests with the plaintiff, and as the Court of Appeal of Queensland observed in the case of Noonan v MacLennan [2010] QCA 50, the burden that must be discharged is to establish that it was not reasonable to have commenced within one year. It is not a burden which is discharged by showing that it was not unreasonable to have not commenced within one year.
The problem the plaintiff faces in this case is that the one year period expired on 20 September 2008. He had in fact commenced proceedings within one year of that date by these proceedings which were commenced on 16 September 2008. It would have been quite possible for him to have included in the writ a reference to the three earlier statements made on that occasion. Given that the plaintiff carries the burden of showing that it was not reasonable for him to have commenced proceedings by 20 September 2008, it seems to me that in the circumstances of this case that is an almost impossible burden to discharge and that he has failed to discharge it.
[121] Respondent's notice of contention, par 2.
[122] Respondent's notice of contention, par 4.
[123] Rayney v The State of Western Australia [No 3] [2010] WASC 83 [40] ‑ [42].

In addition, the respondents referred to their submissions in relation to the alleged trivial nature of the action.[124]

Appellant's response to notice of contention

[124] Respondent's notice of contention, par 5.

Mr Ogbonna's submissions in response essentially repeated his submissions in support of his grounds of appeal.

Disposition

The principles of appellate review pursuant to r 15(6) have been conveniently summarised, for present purposes, in the commentary on r 15(6) of the DCR in Civil Procedure Western Australia as follows:[125]
The appeal is by way of a new hearing of the matter that came before the registrar: DCR r 15(6). It involves a complete de novo review: Briggs v Glentham Pty Ltd (1992) 8 WAR 339 at 349 ‑ 350; Hunt v Knabe [No 2] (1992) 8 WAR 96 at 109 ‑ 110; Hazart Pty Ltd v Rademaker (1993) 11 WAR 26 at 28; Liebherr-Australia Pty Ltd v Bloomfield [2006] WASCA 128; BC200604984 at [8]; Kezic v St John of God Health Care Inc [2015] WASCA 220; BC201510804 at [42]. The judge hearing the appeal is to treat the application as if it was before the court for the first time, save that the party appealing has the right as well as the obligation to open the appeal: Stewart v Hames [2019] WASCA 127; BC201907837 at [8]; Hazart Pty Ltd v Rademaker (1993) 11 WAR 26 at 28; Settlers House Pty Ltd v Rocca Enterprises Pty Ltd [2011] WADC 157 at [4]. There is no requirement on the appellant to show that the registrar made an error of law or principle in the decision under appeal: Hazart Pty Ltd v Rademaker (1993) 11 WAR 26 at 28.
As the appeal is by way of a new hearing of the matter that came before the registrar, the parties are not confined to the evidence presented to the registrar, and the court should ordinarily allow the parties to rely on additional evidence, subject to a discretion to exclude: Hazart Pty Ltd v Rademaker (1993) 11 WAR 26 at 28 ‑ 30, 37; Australia Machinery Engineering (Ame) Pty Ltd v Moore Group Holding Pty Ltd [2017] WADC 124; BC201740529 at [7]; Seaton v Enever [2014] WADC 58; BC201441022 at [4]; Vassilou (an infant) v Roberman (2007) 53 SR (WA) 338; [2007] WADC 145; BC200740144 at [12] ‑ [15].
[125] LexisNexis, Civil Procedure Western Australia, vol 2 (193) [16,065.5].
The deputy registrar's orders, albeit interlocutory in that their legal effect was not such as to finally determine the rights of the parties in the cause pending between them,[126] were nevertheless binding on the parties unless and until set aside.[127] The effect of the orders was to dismiss the action, but in a context in which the orders could be reviewed afresh upon an appeal under r 15 of the DCR. There is a difference in these circumstances between, on the one hand, a party seeking to file a document, the sole purport of which is to ignore and contradict the orders of the deputy registrar (the August 2020 Purported Amended Writ), and, on the other hand, a party filing an application which concerns a matter properly within the purview of the appeal under r 15 of the DCR and which to that extent is not inconsistent with those interlocutory orders (the respondents' application to amend the Strike‑Out Application to seek an extension of time). The District Court was correct to reject the August 2020 Purported Amended Writ for filing, and the learned primary judge was correct, in the particular circumstances of this case, to treat the document as, in substance, an application by Mr Ogbonna to amend the writ, returnable on the same day as, and for the purposes of the determination of, his appeal under r 15 of the DCR.
[126] Re Luck [2003] HCA 70; (2003) 78 ALJR 177 [4]; see also Kezic v St John of God Health Care Inc [2015] WASCA 220 [42].
[127] Tidswell v Tidswell [No 2] [1958] VR 601, 605 (Herring CJ); Herring CJ's observations in Tidswell were cited with approval by Dawson J in Harris (126).
The following further observations may be made as to the procedural issues raised by the appeal and in the primary proceedings.
First, the indorsement on the writ filed 6 November 2018 disclosed no cause of action, and was not a proper indorsement. It failed to fulfil any of the functions required of an indorsement to a writ, in that (1) there was no factual information in the indorsement which would enable the identification of any cause of action (being the factual situation which would entitle a claim to relief)[128] or, correspondingly, the identification of any limitation issue,[129] (2) it failed in any meaningful way to mark out the perimeter within which a statement of claim could be pleaded,[130] and (3) it failed to disclose the nature of the plaintiff's claim[131] - the bare reference to a type of cause of action (defamation) devoid of any factual content whatsoever was vague to the point of meaningless and did not amount to a disclosure of the nature of Mr Ogbonna's claim.
[128] Glendinning [29.2]; Hoffmans (a firm) v Ahmed [2021] WASCA 210 [18].
[129] ABB Service [9], [14], [17]; Hoffmans [17].
[130] ABB Service [7] - [8] ; Glendinning [29.3]; Hoffmans [17].
[131] ABB Service [10]; Glendinning [29.1]; Hoffmans [17].
Secondly, the statement of claim filed on 5 November 2019 alleged a cause of action arising on 7 November 2017. This was a new cause of action, which was not within the scope of the indorsement because the indorsement was effectively meaningless. If a statement of claim exceeds the indorsement, the statement of claim should be struck out unless the indorsement is amended.[132] Further, at the time of filing the statement of claim, the new cause of action was statute‑barred under s 15 of the Limitation Act, subject to any order extending time to commence the action under s 40 of the Limitation Act.
[132] ABB Service [8].
Thirdly, as the indorsement of the writ failed to disclose any cause of action (see [101] above), the August 2020 Purported Amended Writ, with its reference to a cause of action on 7 November 2017, necessarily raised a new cause of action.
Fourthly, the Strike‑Out Application, insofar as it was 21 days out of time, was not a nullity, and nor did it result in the deputy registrar's judgment being a nullity: O 2 r 1 of the RSC; Fourmi Pty Ltd v Commissioner for Consumer Protection.[133]
[133] Fourmi Pty Ltd v Commissioner for Consumer Protection [2017] WASCA 69 [21] ‑ [22].
Fifthly, the court hearing the Strike‑Out Application pursuant to Mr Ogbonna's appeal under r 15 of the DCR had the power to extend the time (relevantly, by 21 days up to 17 December 2019) for bringing the Strike‑Out Application and thereby cure the irregularity: O 3 r 5 of the RSC. Order 3 r 5 is a remedial provision which confers on a court a broad power to relieve against injustice.[134] An application for an extension of time under O 3 r 5 is ultimately to be determined having regard to the interests of justice in all the circumstances of the case, including taking into account case management considerations.[135] Moreover, as Martin CJ observed in Rayney:[136]
[T]he fact that the delay in bringing an application to strike out a part of a pleading is unjustifiable is not necessarily determinative of the application. Even in such a case, the decision to be made by the court on such an application is to be made having regard to the interests of justice, including the interests which are served by the case management principles which are embodied in the Rules of the Supreme Court[.]
[134] FAI General Insurance Co Ltd v Southern Cross Exploration NL [1988] HCA 13; (1988) 165 CLR 268, 283.
[135] Melville v East End Holdings Inc [2003] WASCA 133 [17]; Rayney v The State of Western Australia [2009] WASC 105.
[136] Rayney [46].
Seventhly, it was open to the learned primary judge to find that there was a reasonable explanation for the 21‑day delay in making the Strike‑Out Application: primary decision [70] ‑ [73] and [82] ‑[83].
Eighthly, for the reasons in [109] ‑ [111] below, there was no error in the learned primary judge's conclusion to extend the time for filing the Strike‑Out Application, even though aspects of his Honour's reasons might, with respect, be doubted for two reasons. One is that the particular principles in Simonsen v Legge[137] and Hunter Valley Developments Pty Ltd v Cohen,[138] which the learned primary judge was apparently invited to follow and to which his Honour referred at [63], were not strictly apposite. The principles in Simonsen concerned the lateness in filing a notice of appeal, the starting point for which is that the respondent has a vested right to retain the judgment unless an application for an extension of time is granted, and is entitled to order his or her affairs on that basis.[139] That consideration was not a factor in the determination of the respondents' application to amend to seek an extension of time. Hunter Valley concerned an application to extend time to review an administrative decision under s 11(1)(c) of the Administrative Decisions (Judicial Review) Act 1977 (Cth), to which public law considerations beyond the interests of the parties may be of particular relevance.[140] An application to extend time in the circumstances of the present case is more appropriately addressed by reference to the broad principles referred to in [105] above, in which the presence or absence of prejudice to the other party is a factor to be weighed in determining where justice lies, as are considerations such as the extent of the delay, any explanation (or absence of explanation) for it, and the merits of the underlying application for which an extension of time is required.
[137] Simonsen v Legge [2010] WASCA 238.
[138] Hunter Valley Developments Pty Ltd v Cohen [1984] FCA 186; (1984) 3 FCR 344.
[139] Boomalli Ltd v Hake [1985] WAR 7, 9.
[140] Hunter Valley (349 - 350).
The other matter concerns the learned primary judge's analysis of the issue of prejudice. On one view of his Honour's reasons, his Honour may have conflated the issue of prejudice to Mr Ogbonna if the Strike‑Out application was successful with the question of prejudice resulting from delay in bringing the Strike‑Out Application. His Honour also appears to have conflated, at least to some extent, the question of prejudice to Mr Ogbonna arising from the 21‑day delay in filing the Strike‑Out Application, with any potential prejudice to Mr Ogbonna arising from the delay in seeking an order to extend the time under O 3 r 5. Whilst a delay in seeking an extension of time might, in an appropriate case, be a factor to be taken into account in considering the overall justice of the case in an application under O 3 r 5, the anterior and generally more important issue on the question of prejudice is the prejudice, if any, to the other party as a result of the failure to bring the application within the period required by the rules of court. In this case, the focus of the question of prejudice in respect of that anterior step was on the prejudice, if any, to Mr Ogbonna by the respondents having filed the Strike‑Out Application on 17 December 2019, rather than 21 days earlier than that. To the extent that his Honour erred in this respect, it was an error favourable to Mr Ogbonna.
With reference to that anterior question, there could be no basis for a finding that the three‑week delay caused prejudice to Mr Ogbonna. Mr Ogbonna, in his affidavit of 19 June 2020, did not refer to any particular prejudice other than what he perceived to be the more general prejudice of not being treated equally and fairly (see [24] and [26] above). Even if the Strike‑Out Application had been brought within time and not 21 days late, there is no reason to suppose that, in the circumstances, the application would have been heard materially earlier (either by the deputy registrar or by the learned primary judge), or that Mr Ogbonna would have done anything materially different in resisting the application. Nor did Mr Ogbonna suggest in evidence otherwise. In particular, there is no basis for a finding to the effect that, without the 21‑day delay in the commencement of the Strike‑Out Application, the appeal under r 15 of the DCR would, or may, have been heard and determined in sufficient time before 7 November 2020 to allow for the prospect of an application to be made under s 40 of the Limitation Act for an order to extend the time to commence an action for an alleged defamation on 7 November 2017.
Despite these criticisms of the learned primary judge's reasoning, the learned primary judge's ultimate conclusion on the question of leave to amend the Strike‑Out Application to seek an extension of time was correct. Indeed, even on the discrete question of prejudice, despite the finding that there was '[c]learly … prejudice to Mr Ogbonna',[141] his Honour's ultimate conclusion appears to have been that Mr Ogbonna's inability to prosecute defamation proceedings in respect of the alleged defamation on 17 November 2017 was ultimately referable to his own conduct and delay, rather than any delay by the respondents.[142]
[141] Primary decision [85].
[142] Primary decision [88] - [92].
In summary, the learned primary judge was correct to allow the application to extend time because (1) the delay was relatively minimal (21 days) in the context of the stilted and glacial pace at which Mr Ogbonna prosecuted the proceedings up to 17 December 2019; (2) the 21‑day delay was adequately explained; (3) the Strike‑Out Application was meritorious, effectively for the reasons given by the learned primary judge and as discussed in [99] and [101] ‑ [104] above and [112] below; (4) Mr Ogbonna did not take any issue as to the timing of the application until six months after it was filed and at a time after judgment had been given by the deputy registrar; and (5) as explained earlier, there was no material prejudice to Mr Ogbonna arising from the 21‑day delay. Nor was there any potential prejudice to Mr Ogbonna suggested or apparent from the further delay in filing the application to amend the Strike‑Out Application to include an order for an extension of time within which to bring it. In particular, it was not suggested or apparent that the additional delay before the application to amend was filed on 4 September 2020 resulted in Mr Ogbonna not taking steps to bring an application under s 40 of the Limitation Act or acting in a manner which foreclosed, or potentially foreclosed, any such application. Matters of this kind appear, in substance, to be addressed in the primary decision at [88] ‑ [92]. But if on the proper construction of the judge's reasons they are not, we would, in this regard and to this extent, uphold the notice of contention. It is unnecessary to go on to consider the respondents' further contention to the effect that Mr Ogbonna would in any event have had no prospect of discharging the burden of proof under s 40(2) of the Limitation Act, given that the writ was in fact filed within the one‑year limitation period.[143]
[143] Rayney [No 3] [40] - [42].
Ninthly, for the reasons in [101] ‑ [104] above, the learned primary judge was correct to strike out the indorsement. His Honour was also correct not to grant leave to amend and, in the circumstances, to dismiss the action. That is because at the hearing of the appeal, on 27 November 2020, and having regard to the combined effect of s 15 and s 40(3) of the Limitation Act 'this was one of those cases in which it was so clear that a foreshadowed limitation defence would succeed that the amendment should be disallowed on the ground that it would be futile'.[144]
[144] Belgravia Nominees Pty Ltd v Lowe Pty Ltd [2017] WASCA 127; (2017) 51 WAR 341 [54].
With those observations in mind, we now turn to Mr Ogbonna's grounds of appeal. Grounds 1 and 2 should be dismissed for the reasons in [99] above. Also, s 254 and s 256 of the Criminal Procedure Act 2009 (Vic) have no application by way of analogy to the issues in this appeal. Ground 3 should be dismissed for the reasons in [99] and [101] ‑ [103] above and in [114] below. Ground 4 should be dismissed for the reasons in [101] and [103] above. Ground 5 should be dismissed for the reasons in [101] ‑ [102] above. Ground 6 should be dismissed for the reasons in [104] ‑ [106] and [109] ‑ [112] above.
Proposed ground 7 has no merit because O 20 r 19(1) of the RSC expressly provides for the indorsement of a writ to be struck out on the ground that it discloses no reasonable cause of action. Order 6 r 1 is not, in terms, confined to the situation where the writ fails to disclose a reasonable cause of action. It applies more generally to an application to set aside the writ for non‑compliance with O 6 r 1(1). The two provisions (O 6 r 1 and O 20 r 19) operate harmoniously, albeit that there may be some overlap in their potential application to the circumstances of a particular case. There is no occasion to ignore the plain wording of O 20 r 19(1), or to read down O 20 r 19(1) so as to make it subservient to O 6 r 1.
For these reasons, the appeal has no merit.
Finally, we turn to the question of leave to appeal. In Re Luck the High Court said:[145]
Given the long established English rule, the decision in Tampion and our decisions in Pye, Hall, Carr and Bienstein, we see no valid reason for departing from the rule laid down in Tampion. An order is an interlocutory order, therefore, when it stays or dismisses an action or refuses leave to commence or proceed with an action because the action is frivolous, vexatious, an abuse of the process of the court or does not disclose a reasonable cause of action. (emphasis added)
[145] Re Luck [9].
Insofar as the Full Court's decision in Florida Investments would suggest otherwise, it is inconsistent with this High Court authority and can no longer be accepted as correctly stating the law on the point under consideration in this appeal. It is also of some, although plainly less, significance that (as the respondents contended) there have been subsequent decisions of this court doubting the correctness of Florida Investments, and that other jurisdictions treat such orders as interlocutory (see [91] above).
Accordingly, in this case, where Mr Ogbonna's action was dismissed because the writ failed to disclose a reasonable cause of action and no amendment was available, Mr Ogbonna requires leave to appeal. Ultimately, the question is whether it is in the interests of justice to grant leave. Ordinarily, an applicant for leave to appeal must demonstrate that the judgment was wrong or at least attended with sufficient doubt to justify the grant of leave, and a substantial injustice would occur if the decision were left unreversed.[146]
[146] Wilson v Metaxas [1989] WAR 285, 294; State of Western Australia v Bond Corp Holding Ltd (1991) 5 WAR 40, 54 ‑ 57.
For the reasons given earlier, the judgment below was correct and, on this basis, leave to appeal should be refused and, in any event, as the appeal has no merit, the appeal should be dismissed. For completeness we would add that had the appeal had merit, we would not have accepted the respondents' submissions referred to in [92] above as grounds for refusing leave and thereby, in effect, shutting out peremptorily the pursuit of the alleged cause of action.

Conclusion and orders

The appeal should be dismissed. The orders should be:
1.Leave to appeal refused.
2.The appeal is dismissed.

I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
RW
Associate to the Honourable Justice Murphy
12 JULY 2022

254 Right of appeal

(1)Subject to subsection (2), a person convicted of an offence by the Magistrates' Court in a criminal proceeding conducted in accordance with Part 3.3 may appeal to the County Court against -

(a) the conviction and sentence imposed by the court; or

(b) sentence alone.

(2)If the Magistrates' Court was constituted by the Chief Magistrate who is a dual commission holder, the appeal is to be made to the Court of Appeal.

…
256 Determination of appeal

(1)An appeal under section 254 must be conducted as a rehearing and the appellant is not bound by the plea entered in the Magistrates' Court.

(2)On the hearing of an appeal under section 254, the County Court or the Supreme Court, as the case requires -

(a) must set aside the sentence of the Magistrates' Court; and

(b) may impose any sentence which the court considers appropriate and which the Magistrates' Court imposed or could have imposed; and

(c) may exercise any power which the Magistrates' Court exercised or could have exercised.

(3)On the hearing of an appeal under section 254, the court must warn the appellant, as early as possible during the hearing, that the appellant faces the possibility that a more severe sentence may be imposed than that imposed by the Magistrates' Court.

(4)The court may backdate a sentence imposed under subsection (2) to a date not earlier than the date of the sentence of the Magistrates' Court that was set aside on the appeal.

(5)A sentence imposed under subsection (2) is for all purposes to be regarded as a sentence of the County Court or the Supreme Court, as the case requires.