Ogbonna v Qantas Airways Ltd [No 3]

[2021] WASC 94

JURISDICTION     :   SUPREME COURT OF WESTERN AUSTRALIA

IN CHAMBERS

CITATION:   OGBONNA -v- QANTAS AIRWAYS LTD [No 3] [2021] WASC 94

CORAM:   LE MIERE J

HEARD:   28 JANUARY 2021

DELIVERED          :   8 APRIL 2021

FILE NO/S:   CIV 2573 of 2016

BETWEEN:   CELESTINE OGBONNA

Plaintiff

AND

QANTAS AIRWAYS LTD

First Defendant

QANTAS GROUND SERVICES PTY LTD

Second Defendant

Catchwords:

Practice and procedure - Application for leave to file and rely upon a substituted statement of claim - Plaintiff has previously filed numerous problematic statements of claim - Leave granted for plaintiff to rely upon a statement of claim substantially in the terms of the substituted statement of claim

Legislation:

Limitation Act 2005 (WA)

Result:

Leave granted to file and rely on statement of claim, substantially in the terms of substituted draft statement of claim

Category:    B

Representation:

Counsel:

Plaintiff	:	In person
First Defendant	:	Mr A Willinge
Second Defendant	:	Mr A Willinge

Solicitors:

Plaintiff	:	In person
First Defendant	:	Ashurst Australia
Second Defendant	:	Ashurst Australia

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

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

LE MIERE J:

Summary

1. The plaintiff seeks leave to file and serve a substituted statement of claim in the terms of a draft substituted statement of claim (DSSOC) he filed on 11 February 2021.

2. The plaintiff will have leave to file a substituted statement of claim in the terms of his DSSOC filed 11 February 2021 with pars 97 and 101 deleted.

Brief history of the plaintiff's statements of claim

1. This action has been beset by numerous amendments to the plaintiff's writ of summons and statement of claim in response to objections raised by the defendants or orders of the court striking out the pleading.

2. The plaintiff filed his writ of summons on 8 September 2016.  He filed a statement of claim on 5 December 2017, an amended statement of claim on 22 February 2018, a minute of proposed further amended statement of claim on 13 April 2018, a minute of proposed substituted statement of claim on 4 June 2018, an amended writ of summons on 4 June 2018, an amended writ of summons on 10 August 2018, an amended writ of summons on 29 August 2018, a substituted statement of claim on 30 August 2018, a minute of proposed amended statement of claim on 22 April 2020, a minute of proposed re‑amended statement of claim on 4 June 2020, a minute of proposed re‑amended statement of claim on 5 June 2020, a minute of proposed substituted statement of claim on 7 July 2020 and a second amended writ of summons on 6 August 2020.

3. On 14 August 2020 I heard an application by the plaintiff for leave to file a statement of claim in accordance with his minute of proposed substituted statement of claim of 7 July 2020.  The defendants opposed leave being granted on the ground that many paragraphs of the proposed substituted statement of claim would be liable to be struck out if leave were granted.  The plaintiff is self‑represented.  On 13 November 2020, I published my reasons for decision (the November reasons).[1]

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

4. I observed that the court should ensure that a self‑represented plaintiff is not improperly deprived of the opportunity of having his case tried.  It should ensure that, in a poorly expressed or unstructured statement of claim, there is not a viable cause of action which, with appropriate amendment or permissible assistance from the court, could be put into proper form.  I upheld many of the defendant's objections and ordered that the plaintiff have leave to rely upon a substituted statement of claim substantially in the form set out in the annexure to the November reasons (the November draft).

The proposed substituted statement of claim

1. On 10 December 2020, the plaintiff filed a substituted statement of claim.  The defendants objected that the substituted statement of claim departs from the November draft; that it introduced new allegations; that a number of the amendments are unclear; that it removed words in various paragraphs that I had added to the plaintiff's substituted statement of claim of 7 July 2020; and at least one of the amendments was directly inconsistent with my judgement.  The defendants elected not to object to every departure from the November draft, but objected to pars 9, 24, 25, 32, 37(d), 40, 44 ‑ 47, 90(a)(i), 97 and 101.

2. At a directions hearing on 28 January 2021, the plaintiff said he would make further changes to his proposed statement of claim in response to the defendant's objections.  I ordered that the plaintiff file and serve a draft substituted statement of claim.  On 11 February 2021, the plaintiff filed the DSSOC.  I will consider the paragraphs of the DSSOC which correspond to the paragraphs of the plaintiff's substituted statement of claim of 10 December 2020 to which the defendants objected.

Paragraphs 9, 24, 25, 32, 37 (d) and 40

1. These paragraphs are now in the same terms as the November draft.

Paragraphs 44 - 47

1. The plaintiff has chosen not to amend these paragraphs in response to the defendant's objections.  Whilst the defendant's objections are correct in that these paragraphs depart from the corresponding paragraphs in the November draft, I will permit the plaintiff to plead these paragraphs.  Insofar as the facts asserted are different from those asserted in the plaintiff's previous drafts, that is a matter which may be raised in relation to the credit and reliability of the plaintiff's evidence.  Whether the pleas make out a reasonable cause of action will be a matter for submission at trial.

Paragraph 90(a)(i)

1. The plaintiff has added back the imputation that 'the plaintiff steals', which was not in the November draft.  I am presently unable to see how the word 'rat' conveyed the meaning that the plaintiff steals.  However, the imputations pleaded by the plaintiff include that 'the plaintiff is a thief'.  Accordingly, the additional imputation does not cause any substantial prejudice to the defendants.  I will allow the additional imputation.

Paragraph 97

1. This paragraph contains a new plea.  The plea is:

   The defamatory statements as pleaded in the paragraphs of the statement of claim has been widely disseminated by Qantas and QGS employees nationally and.  The publications of the defamatory letters and medical reports to statutory authorities like office of the Australian nation Commissioner, the Australian Health practitioner Regulation agency and the Supreme Court of Western Australia et cetera in Australia and are thus public documents

2. The defendants submitted in effect that the claims would be statute barred under the Limitation Act 2005 (WA). That is not correct. The plea is not a plea of publications giving rise to separate causes of action. It is a plea going to damages.

3. The defendants further submitted that the plea does not make the nature and extent of the publications clear.  For this reason, the plea cannot be maintained.  It fails to inform the court or the defendant of each alleged publication of each of the statements pleaded in the statement of claim to each of the stated authorities, and by who, when and how they were published.  It is not permissible to state that they were published to authorities 'like' those named.  The plaintiff must identify the recipient of each alleged publication.

4. The plaintiff will not be permitted to include par 97 in his substituted statement of claim.

Paragraph 101

1. In this paragraph, the plaintiff claims:

   A published public apology and retraction by the defendants in a national newspaper to acknowledge the harm that has been permanently done to reputation Mr Ogbonna.

2. In the November reasons, I held that a similar plea should be struck out because 'the court does not have power to order a defendant to make an apology'.

3. I remain of that opinion.  The plaintiff will not be permitted to include par 101 in his substituted statement of claim.

Conclusion

1. The plaintiff will have leave to file a substituted statement of claim in the terms of his DSSOC filed 11 February 2021, with pars 97 and 101 deleted.

2. The plaintiff must file and serve a substituted statement of claim in the same terms as his draft substituted statement of claim filed 11 February 2021, with pars 97 and 101 deleted.  The plaintiff may not make any further changes.  If the plaintiff wishes to make further changes, he must file and serve a new application after he has filed and served a substituted statement of claim in the same terms as his DSSOC of 11 February 2021, with pars 97 and 101 deleted.

3. The plaintiff has amended his statement of claim, or filed and served proposed amended or substituted statements of claim, on numerous occasions.  It is unfair and oppressive to the defendants for the plaintiff to file a substituted statement of claim in terms different from those for which leave has been granted.  If the plaintiff files a further statement of claim that is different from that for which leave has been granted, that is in the form of his DSSOC of 11 February 2021 with pars 97 and 101 deleted, the plaintiff may not be given leave to file any further statement of claim and the plaintiff's action may be dismissed.

I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.

CR

Associate to the Honourable Justice Le Miere

8 APRIL 2021