Ogbonna v Qantas Airways Ltd - [2019] WASCA 146

JURISDICTION     :   SUPREME COURT OF WESTERN AUSTRALIA
TITLE OF COURT :   THE COURT OF APPEAL (WA)
CITATION:   OGBONNA -v- QANTAS AIRWAYS LIMITED [2019] WASCA 146
CORAM:   QUINLAN CJ
MURPHY JA
MITCHELL JA

HEARD:   6 SEPTEMBER 2019
DELIVERED          :   20 SEPTEMBER 2019
FILE NO/S:   CACV 123 of 2018
BETWEEN:   CELESTINE OGBONNA
Appellant
AND
QANTAS AIRWAYS LIMITED
First Respondent
QANTAS GROUND SERVICES PTY LTD
Second Respondent
DAWN BARKER
Third Respondent

ON APPEAL FROM:
Jurisdiction              :   SUPREME COURT OF WESTERN AUSTRALIA
Coram:   LE MIERE J
Citation: OGBONNA -v- QANTAS AIRWAYS LTD [2018] WASC 378
File Number             :   CIV 2573 of 2016

Catchwords:

Practice and procedure - Appeal against defendant's summary judgment - Summary judgment - Whether standard of proof for summary judgment application was met - Whether primary judge erred in concluding, in the context of a summary judgment application, that the appellant had consented to release of information provided by appellant to defendant psychiatrist - Turns on own facts

Legislation:

Mental Health Act 2014 (WA), s 4, s 16, s 17, s 576

Result:

Appeal dismissed

Category: B

Representation:

Counsel:

Appellant	:	In person
First Respondent	:	No appearance
Second Respondent	:	No appearance
Third Respondent	:	Mr T J Palmer

Solicitors:

Appellant	:	In person
First Respondent	:	Ashurst Australia
Second Respondent	:	Ashurst Australia
Third Respondent	:	Panetta Mcgrath Lawyers

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

Australian Broadcasting Corporation v Lenah Game Meats Pty Ltd [2001] HCA 63; (2001) 208 CLR 199
Kennedy v Charity Commission [2015] AC 455; [2014] 2 WLR 808
Ogbonna v Qantas Airways Ltd [2018] WASC 378
R v Secretary of State for the Home Department, Ex parte Bugdaycay [1987] AC 514; [1987] 2 WLR 606
Sutton Investments Pty Ltd v Realistic Investments Pty Ltd [2017] WASCA 14

JUDGMENT OF THE COURT:

This appeal is against the decision of Le Miere J in Ogbonna v Qantas Airways Ltd[1] (primary decision). The judge granted defendant's summary judgment in favour of a defendant (Dr Barker) in proceedings commenced by the appellant (Mr Ogbonna) against Dr Barker,[2] Qantas Airways Ltd[3] and Qantas Ground Services Pty Ltd.[4]
[1] Ogbonna v Qantas Airways Ltd [2018] WASC 378 (primary decision).
[2] The third respondent.
[3] The first respondent.
[4] The second respondent.
Mr Ogbonna appeals against that decision. Neither Qantas Airways nor Qantas Ground Services took part in the appeal. The appeal only concerns the case between Mr Ogbonna and Dr Barker.

Background

Mr Ogbonna was an employee of Qantas Ground Services, where he worked as a baggage handler.[5]
[5] Primary decision [1].
By letter dated 21 September 2015, Qantas Ground Services engaged Dr Barker, a consultant psychiatrist, to assess Mr Ogbonna, to answer particular questions put to her and to give her opinion as to Mr Ogbonna's ability to return to normal duties as an airline services operator. Qantas Ground Services provided Dr Barker with information concerning Mr Ogbonna's employment with Qantas Ground Services, his employment duties and events leading to Mr Ogbonna being directed not to…

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.

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Details

Case: [2019] WASCA 146
Decision Date: 20 SEPTEMBER 2019

CaseChat Overview and Summary

Ogbonna brought an action against Qantas Airways Ltd in relation to the disclosure of his personal information. The case came before the court on an appeal against a summary judgment in favour of the defendant. The appellant argued that the primary judge erred in concluding that he had consented to the release of the information provided to the defendant psychiatrist. The appeal hinged on whether the primary judge was correct in his interpretation of the consent forms and whether the standard of proof for summary judgment was met.

The court found that the primary judge correctly interpreted the consent forms, which clearly authorised the release of the information provided by the appellant to the defendant psychiatrist. The court also found that the primary judge applied the correct standard of proof for summary judgment, which is proof on the balance of probabilities. The court held that the appellant's construction of the consent forms was not reasonably arguable and that the action against the defendant was doomed to fail. The court therefore dismissed the appeal.

The court held that the primary judge was correct in his interpretation of the consent forms and that the appellant's construction of those forms was not reasonably arguable. The court also found that the primary judge applied the correct standard of proof for summary judgment and that the action against the defendant was doomed to fail. The appeal was dismissed and the summary judgment in favour of the defendant was upheld.

Orders

Orders of the court

Appeal dismissed

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Mr Ogbonna submitted that his case below relied on the common law and the Royal Australian and New Zealand College of Psychiatrists Code of Ethics, not the Mental Health Act. He said that he used the Mental Health Act to demonstrate the seriousness of Dr Barker's misconduct, which he said was 'deplorable'. Mr Ogbonna referred to cases which, he said, demonstrate that the right of privacy is protected with a duty of confidence.[51] He cited Australian Broadcasting Corporations v Lenah Games Meat Pty Ltd,[52] as supporting an action for breach of confidence to protect private information being disclosed, and submitted, in effect, that had the judge applied the principles in that case, he would have found that Dr Barker breached her duty of confidence towards him.[53] Mr Ogbonna also handed up, at the commencement of the hearing of the appeal, an 18‑page document referring to aspects of the evidence and emphasising a number of the arguments that he made in his written submissions filed as part of his appellant's case. There is no merit in ground 1. The only relevant standard the judge was required to apply was proof on the balance of probabilities, bearing in mind that the relevant context was a defendant's summary judgment application.[54] [54] See, in that regard, O 16 r 1 of the Rules of the Supreme Court 1971 (WA). The relevant principles governing the exercise of the court's power to grant summary judgement were summarised by this court in Sutton Investments Pty Ltd v Realistic Investments Pty Ltd:[55]Summary judgment will be granted only when there is no real question to be tried. The power to order summary judgment is one that should be exercised with great care: Fancourt v Mercantile Credits Ltd [1983] HCA 25; (1983) 154 CLR 87, 99. It is only in the clearest of cases, when there is a high degree of certainty about the ultimate outcome of the proceedings if it went to trial, that summary judgment ought properly be granted: Agar v Hyde [2000] HCA 41; (2000) 201 CLR 552 [57]; Batistatos v Roads and Traffic Authority of New South Wales [2006] HCA 27; (2006) 226 CLR 256 [46]; Spencer v The Commonwealth of Australia [2010] HCA 28; (2010) 241 CLR 118 [24], [53] - [55].[55] Sutton Investments Pty Ltd v Realistic Investments Pty Ltd [2017] WASCA 14 [24]. In this case, there was no dispute as to the terms of the consent forms signed by Mr Ogbonna on 24 September 2015. The only real question on which Dr Barker's liability turned was whether, on their proper construction, those two consent forms authorised the release of information provided by Mr Ogbonna to Dr Barker in her second report and third report. If they did, then Dr Barker would have an unassailable defence to Mr Ogbonna's action against her. For the reasons explained by the judge, and elaborated upon below, Mr Ogbonna's construction of the consent forms was not reasonably arguable. The consent forms clearly authorised the release of information provided by Mr Ogbonna to Dr Barker on 24 September 2015 in the second report and third report. In these circumstances, the action against Dr Barker was doomed to fail, and the judge correctly concluded that the high threshold for granting summary judgement was met.